Annex A: The development of devolution in the UK since 1922
1.In Chapter 2, we gave a brief history of the Union as it developed into its modern form. In this Annex, we set out a further brief history of devolution across the UK since what is now the Republic of Ireland left the Union in 1922. We focus in particular on the development of the devolution settlements since 1997.
Devolution prior to the 1990s
Northern Ireland
2.Northern Ireland’s history in the Union since 1922 has been markedly different from those of the other nations. From the start of its existence it had a devolved Parliament and Government. Importantly, though, as Professor Arthur Aughey, Professor of Politics, University of Ulster, told us:
“The legitimacy of Northern Ireland as a part of the Union has been challenged at three distinct but interrelated levels: first, politically; secondly, constitutionally [as the Republic of Ireland’s constitution sought reunification]; and, thirdly, as of course we have experienced over the last quarter of a century, violently.”589
3.After southern Ireland become an independent dominion in 1922, Northern Ireland continued in the Union governed by the powerful devolved government and legislature established by the Government of Ireland Act 1920. By the late 1960s, civil rights protests over the Northern Irish Government’s failure to address discrimination against Catholics had turned into violent confrontation. British Army troops were deployed in an attempt to restore order, but the violence continued. In 1972, the UK Parliament suspended devolution and restored direct rule. Inter-communal relations, the violence and legacy of the Troubles, and relations with the Republic of Ireland, have shaped Northern Ireland’s history and continue to dominate its politics.
Great Britain
4.Against a background of growing concern that the UK Government and Parliament were not dealing effectively with economic difficulties in Scotland and Wales (allied to linguistic grievances in Wales), and in light of the growing electoral appeal of nationalist parties, Labour and the Conservatives both explored the potential for devolution. In the ‘Declaration of Perth’, Conservative Leader Edward Heath declared his party’s support for devolution and set up a committee on the subject that brought forward proposals for a devolved Scottish Assembly. Meanwhile, the Labour Government set up a Royal Commission on the Constitution in 1969, known as the Kilbrandon Commission.590 A majority of its members favoured the creation of Scottish and Welsh assemblies with legislative powers, elected by proportional representation, and the creation in England of “regional co-ordinating and advisory councils, partly indirectly elected by the local authorities and partly nominated.”591
5.Scotland and Wales Acts were passed in 1978 providing for the creation of devolved institutions. They required approval through a referendum with a threshold of 40% of electors voting in favour. The Scottish Assembly would have limited primary legislation powers, and the Welsh Assembly only executive functions and no separate government. In 1979, referendums were held in which Wales gave a clear ‘no’ vote. In Scotland, meanwhile, 51.6% voted in favour of devolution but while achieving a majority, this was below the threshold of 40% of the electorate.592 Neither assembly was created.
6.Supporters of devolution continued to campaign and to make progress during the 1980s and 1990s, with the early introduction of the Community Charge (‘poll tax’) in Scotland adding impetus to the campaign. The most prominent part of this campaign was the Scottish Constitutional Convention, which began in 1989 by signing a ‘Claim of Right’593 and in 1995 published detailed proposals for a Scottish Parliament.594
The modern devolution settlements
The creation of the devolved institutions
7.Referendums on devolution to Scotland and Wales were held once again in 1997. In Scotland, the referendum process gave clear approval for a Scottish Parliament with the power to vary tax rates. The Parliament came into being in 1999; it had a reserved-powers model,595 the power to make primary legislation, and the ability to vary income tax by up to three pence in the pound.
8.Following a narrow vote in favour of devolution in the Welsh referendum, the National Assembly for Wales was also created in 1999. It had only secondary legislative power (meaning that primary legislation for Wales continued to be passed by the UK Parliament), a conferred powers model of devolution,596 and an Executive that was a committee of the Assembly rather than a separate entity. Tax-varying powers were not offered in the referendum on Welsh devolution.
9.In 1998 a referendum in Northern Ireland ratified the Belfast Agreement, or the Good Friday Agreement, which brought an end to the Troubles and returned devolved rule in Northern Ireland. The Agreement contained three strands reflecting the unique cross-community and cross-border nature of the settlement:597 a new Northern Ireland Assembly and power-sharing Executive; an institutional relationship with the Republic of Ireland in the North-South Ministerial Council; and new East-West institutions in the British-Irish Council to improve relationships and co-operation across the British Isles,598 and the British-Irish Intergovernmental Conference.599
10.Akash Paun of the Institute for Government told us that the UK Government’s approach to devolving power “was to try to change as little as possible of the pre-1999 administrative devolution arrangements.”600 The new Scottish and Welsh institutions largely took over the responsibilities of the Scottish and Welsh Offices.601 The Northern Irish Assembly and Executive, in turn, inherited the extensive powers of the old Parliament and Government including the tripartite structure of ‘reserved’, ‘excepted’ and ‘devolved’ powers.602
11.Notably less attention was paid at that time to English governance. Regional Development Agencies were established and unelected regional chambers promoted as part of a regional policy for England, but there was no institutional recognition of England itself. An attempt to create devolved institutions in England’s regions saw a directly-elected mayor and Assembly created for London (after a referendum in 1998) and, in 2002, a proposal for elected regional assemblies. The only referendum under these proposals produced a resounding ‘no’ vote from the people of the North East region in 2004 in response to what we were told was a “half-baked” proposal lacking in clear political support.603
The continuing evolution of devolution
12.The devolution settlements have evolved since 1999. In Wales, the Government of Wales Act 2006 separated the Government and Assembly and—following another referendum in 2011—gave the Assembly the power to make primary legislation. Two reports from the Commission on Devolution in Wales (the Silk Commission) have led to the Wales Act 2014 and the draft Wales Bill published in 2015.604 While some of the changes proposed are controversial, they would—if and when fully enacted—provide the Assembly with tax-varying powers; the capacity to alter its composition and the franchise for its elections; and a reserved-powers model akin to that used in Scotland.
13.The Commission on Scottish Devolution (the Calman Commission) reported in 2009.605 Many of the Commission’s recommendations were reflected in the Scotland Act 2012, including an increase in the Scottish Parliament’s control of income tax that came into effect in April 2016. Those changes were, to some extent, overtaken by events. During the independence referendum campaign in 2014 the pro-Union parties promised a further devolution of power to Scotland. That promise, encapsulated in ‘the Vow’ made by the party leaders and published on the front of the Daily Record on 16 September 2014,606 resulted in the convening of the cross-party Smith Commission following the referendum. The Commission produced a set of proposals for further devolution in only two months,607 following which the UK Government published draft clauses in early 2015 before introducing a Scotland Bill in May 2015.
14.Our report on the draft clauses expressed our concern that the process did not allow for proper consultation and engagement with the UK and Scottish Parliaments. Nor did the Smith Commission process meet the standards expected for the production of proposals for constitutional change.608 Nonetheless, the Scotland Act 2016 received Royal Assent on 23 March 2016. The Act provides for significant further devolution, including almost full control of income tax and significant powers over welfare.
15.The history of Northern Irish devolution since 1998 has been far more difficult than in Scotland or Wales, again reflecting its particular history and circumstances. One witness told us that members of his organisation in Northern Ireland described the devolution arrangements as “more like a peace treaty than a proper devolution deal. The process is more about keeping warring factions at arm’s length than proper devolution.”609 Professor Aughey told us that Northern Ireland politics was “almost in political neutral. The engine is revving and there is a lot of activity going on. It is using precious fuel, but in some ways the engine is not engaged and major issues are not addressed within the institutions”.610
16.Issues around the legacy of the Troubles and, more recently, debates around welfare have strained relations in the power-sharing Executive. Devolved rule was suspended sporadically in 2000–2001 then completely from 2002 until 2007. A breakdown was again feared in late 2014, but was averted after talks that resulted in the Stormont House Agreement.611 Further problems over the welfare changes and alleged activity by the Provisional IRA saw most of the leadership of the Democratic Unionist Party resign temporarily from the Executive, including then First Minister Peter Robinson MLA in September 2015. The situation was resolved in November 2015 with a ‘Fresh Start’ agreement.612 As Democratic Unionist Party MLA and Minister Lord Morrow told us, “The issue of political stability in Northern Ireland is one which must still be taken into consideration.”613
590 After Lord Kilbrandon, who chaired the Commission following the death of Lord Crowther in 1972.
591 Kilbrandon Report, Chs 24-25. These are the main recommendations, they were not unanimous and other proposals are also recorded in the report.
592 It was instead only 32.9% of the electorate. Calman Commission, Serving Scotland Better, para 1.76-77. The referendum result in Wales was 79.7% ‘no’ to 20.3% ‘yes’.
593 This asserts “the sovereign right of the Scottish people to determine the form of government best suited to their needs.”
594 The main organisations involved in the Convention were the Labour Party, Liberal Democrats, Scottish Green Party, trade unions including the Scottish Trade Union Congress, local government, the Church of Scotland and other organisations from Scottish civil society. Calman Commission, Serving Scotland Better, paras 1.76-77
595 Whereby those powers reserved to the UK Parliament were set out in Schedules to the Scotland Act 1998, giving the Scottish Parliament control of all non-reserved matters.
596 Whereby only powers explicitly listed in the Government of Wales Act 1998 were devolved.
598 Made up of the governments and administrations of the Republic of Ireland, the UK, Northern Ireland, Scotland, Wales, the Isle of Man, Jersey and Guernsey.
599 Northern Ireland Office, The Belfast Agreement (10 April 1998): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/136652/agreement.pdf [accessed 9 May 2016]
601 The London-based parts of those departments became the modern Scotland and Wales Offices.
604 Silk Commission, Empowerment and Responsibility: Financial Powers to Strengthen Wales (November 2012): http://webarchive.nationalarchives.gov.uk/20140605075122/http://commissionondevolutioninwales.independent.gov.uk/ [accessed 9 May 2016], and Legislative Powers to Strengthen Wales. The draft Bill was the result of the ‘St David’s Day Agreement’, which reviewed the recommendations of the Silk Commission’s report Legislative Powers to Strengthen Wales and the applicability to Wales of the Smith Commission’s recommendations relating to Scottish devolution (See Wales Office, Powers for a purpose: Towards a lasting devolution settlement for Wales (27 February 2016): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/408587/47683_CM9020_ENGLISH.pdf[accessed 9 May 2016]).
605 Calman Commission, Serving Scotland Better, para 1.1
606 ‘David Cameron, Ed Miliband and Nick Clegg sign joint historic promise which guarantees more devolved powers for Scotland and protection of NHS if we vote No’, Daily Record (16 September 2014): http://www.dailyrecord.co.uk/news/politics/david-cameron-ed-miliband-nick-4265992#pDGgQRR38gyJWoDQ.97 [accessed 7 April 2016]
607 Smith Commission, Report
608 Constitution Committee, Proposals for the devolution of further powers to Scotland; see also Q 270 (Professor Richard Rawlings)
611 Northern Ireland Office, Stormont House Agreement (December 2014): https://www.gov.uk/government/publications/the-stormont-house-agreement [accessed 9 May 2016]
612 Northern Ireland Office, ‘A fresh start for Northern Ireland’ (17 November 2015): https://www.gov.uk/government/news/a-fresh-start-for-northern-ireland [accessed 7 March 2016]