Ing the nineteenth century. Also during the nineteenth century the

large absentee landowners displaced tenant farmers in the notorious

‘Highland Clearances’ which remains a source of grievance.

Until the Scotland Act 1998 there was administrative devolution in

Scotland through the Scottish Office. There are also special

committees in Parliament to examine Scottish Affairs. In particular

the ‘Scottish Grand Committee’ deals with bills exclusively relating to

Scotland. Before the Scotland Act 1998, Scotland was entitled to at

least 71 seats in the UK Parliament, thus making it over-represented in

terms of its population. Section 86 (1) of the 1998 Act abolishes this

entitlement and places Scotland under the same regime as England in

terms of the criteria of defining constituencies. This is likely to reduce

the number of Scottish MPs in future UK Parliaments.

The Scotland Act 1998 creates a Scottish Parliament elected by the

first-past-the-post system, topped up by a regional party list elected by

the additional-member version of proportional representation (below,

Chapter 10). There are eight regions each having seven seats and

currently 73 single-member constituencies. The Scottish Parliament

has a general power, subject to restrictions, to legislate by means of

Acts which will receive the Royal Assent. The Parliament elects a

Presiding Officer and two Deputies (s. 19).

The Scotland Act 1998 (s. 27 (7)) preserves the power of the UK Par-

liament to legislate for Scotland. Indeed s. 37 empowers the UK Parlia-

ment to override the Acts of Union. However, as we saw in Chapter 6,

it is arguable that the UK Parliament cannot override certain

provisions of the Acts of Union. The Scottish Parliament can legislate

generally subject to the restrictions in the Act (s. 28, s. 29 sched. 4).

These are substantial and make it clear that, in law at any rate, this

is devolution rather than federalism. In practice the scope of the

Scottish Parliament corresponds to the functions formerly exercised by

the Scottish Office. However, given the substantial influence of the

Scottish Nationalist Party, Scottish administrations are more likely to

152 General Principles of Constitutional and Administrative Law

be coalitions than is the case in the UK Parliament because of the

proportionate element of the electoral system. This might have a de-

stabilising effect on the UK as a whole by enabling Scotland to follow

different, and more consensual policies than those of Westminster.

The Scottish Parliament cannot, except in minor respects (sched. 4,

para. 4), amend the Scotland Act itself. Nor can it alter basic con-

stitutional provisions nor the free trade provisions of the Acts of

Union. It cannot override European law, nor ECHR rights binding in

UK law under the Human Rights Act 1998. It has a limited tax-raising

power to vary income tax by up to 3 pence in the pound, so that the

government will depend on supply from Westminster.

There is a list of ‘reserved matters’ on which only the UK Parliament

can legislate (sched. 5). They include the main economic levers, foreign

policy, defence and national security, border controls security, trans-

port safety and regulation, employment and the regulation of key

professions and social security (see Cm. 3658 (1997) and s. 30 sched. 5).

By virtue of s. 29 (3) the question whether a matter is a reserved matter

must be decided by reference to its purpose having regard among other

things to its effect in all the circumstances. Legislation will not therefore

be invalidated if it incidentally effects matters outside its field (see

Gallagher v. Lynn [1937] AC 863 at 870). There is a variation applicable

to Scots criminal law and private law whereby a provision which would

otherwise not relate to a reserved matter but does so because it alters

these areas of law is treated as a reserved matter unless its purpose is to

secure consistency between reserved matters and others (s. 29 (4)). This

allows the Scottish Parliament to make general reforms to Scots law.

This purposive approach is capable of giving rise to considerable

difficulty (see Himsworth and Munro, 1999, p. 37). However s. 101 (2)

requires laws to be interpreted narrowly in favour of their competence.

Despite the royal assent, Acts of the Scottish Parliament are tech-

nically subordinate legislation owing their validity only to the Scotland

Act 1998 (see e.g. Human Rights Act 1998 s. 21). They can be set aside

by the courts and will be overridden by inconsistent UK legislation.

The validity of proceedings leading to an enactment does not affect

its validity (s. 28 (5)), but otherwise Acts of the Scottish Parliament

which are outside its competence ‘are not law’ (s. 28). Indeed it is

arguable that, as in the case of other delegated legislation, for example

local bylaws, the courts might set aside an Act of the Scottish Parlia-

ment on the grounds of unreasonableness or unfairness. However,

the democratic character of the devolved law-making process provi-

sions suggests that the court will be reluctant to interfere on these

grounds. The parliament has no immunity from legal proceedings but

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Federalism and Devolution

has absolute privilege in defamation and protection in relation to

contempt of court (ss. 40–42).

There are mechanisms for ensuring that the Scottish Parliament

keeps within its powers. ‘Devolution issues’ can be raised in any court

and can be ultimately decided by the Privy Council either on appeal or

by way of a reference from a lower court (sched. 6). Where a devolution

issue arises before the House of Lords it must be referred to the Privy

Council unless the House in all the circumstances thinks that it is

more appropriate to decide it itself. The Advocate General (an officer

responsible to the UK government), the Lord Advocate or the UK

Attorney-General can bring proceedings or require to be made a party

to any litigation (s. 33). The court can protect people who may have

relied on invalid laws passed by the Scottish Parliament by removing

the retrospective effect of the invalidity or suspending the invalidity to

allow the defect to be corrected (s. 102).

When a bill is introduced in the Scottish Parliament the Presiding

Officer must decide whether it is within the powers of the Parlia-

ment (s. 31). The Advocate General, the Lord Advocate or the UK

Attorney-General can also require a bill to be referred to the Privy

Council (s. 33). The Presiding Officer submits bills for royal assent.

However, and somewhat controversially due to the ‘colonial’ flavour

of such a power, the Secretary of State can prohibit a bill from being

sent for royal assent where s/he ‘has reasonable ground to believe’ that

the bill would be incompatible with international obligations, or the

interests of national security or defence, or would have an adverse

effect on the law relating to reserved matters (s. 35) (see also s. 58). The

Secretary of State’s intervention would be subject to judicial review.

The UK government can make subordinate legislation remedying ultra

vires acts of the Scottish Parliament and the Scottish executive (s. 107).

The Scotland Act 1998 provides for the executive in terms based on,

but differing in important respects from, the conventions that apply to

the Westminster Parliament. The Parliament elects a First Minister

from among its members. The First Minister appoints and removes

the other ‘Scottish Ministers’. Appointments must be approved by the

Parliament (s. 44, s. 47). The Scottish Ministers must also be members

of the Parliament but cannot also hold ministerial office in the UK

government. Thus Scottish devolution raises political questions about

the balance and composition of the UK cabinet and indeed of the

political responsibilities of the Secretary of State for Scotland (see

Himsworth and Munro, 1999). Additional functions outside devolved

matters can be given to Scottish ministers by Order in Council (s. 63),

for which they are accountable to the UK Parliament.

154 General Principles of Constitutional and Administrative Law

The Scottish Parliament is stronger in relation to the executive than

is the case with the UK Parliament. The Parliament lasts for a fixed

term of four years, so that, unlike the case with the UK prime minister,

the first minister cannot request a dissolution. A first minister can

resign at any time and must do so if the Scottish executive is defeated

on a vote of confidence (s. 45). The first minister ceases to hold office if

a person is appointed in his place, as where a new Parliament is formed

after a general election (s. 46). Other ministers must also resign if the

executive is defeated on a vote of confidence, and automatically lose

office on ceasing to be a member of Parliament except in the case of a

dissolution where they retain office until removed by the incoming

administration.

Suppose an administration finds itself deadlocked because of ten-

sions within a coalition. Under the Scotland Act the Parliament can

resolve that it be dissolved. The resolution must be supported by at

least two-thirds of the total number of seats. The Presiding Officer

must then propose an election and the Queen ‘may’ dissolve Parlia-

ment and call an election (s. 3). It is not clear what advice, if any,

the Queen should take or whether she must automatically dissolve

Parliament on a request by the Presiding Officer. The same procedure

applies if the Parliament cannot agree on the choice of first minister.

This procedure seems to mean that a minority can hold a government

to ransom. Bagehot’s claim for the Westminster system that Parlia-

ment can easily get rid of a struggling government would not therefore

seem to apply to Scotland.

7.3 Northern Ireland

The history of Ireland is complex and raises fundamental political

issues. These centre upon religious divisions between the Catholic and

Protestant communities and upon a history of imposed settlement

from England and Scotland. Broadly speaking the majority Protest-

ant community prefer to remain an integral part of the UK while

the Catholic community would prefer union with the neighbouring

Republic of Ireland.

Ireland had been subject to the English Crown since the tenth

century, although in practice England originally controlled only an

area around Dublin called the Pale. According to English law, laws

made by the Irish Parliament had been subject to English statutes and

to approval by the King in Council since 1494 (‘Poyning‘s Law’). Henry

VIII and Elizabeth I attempted to extend English administration to the

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Federalism and Devolution

whole of Ireland, precipitating rebellion followed by confiscation of

land belonging to the Catholic population and extensive settlement by

the English and Scots. Cromwell’s regime during the 1650s consoli-

dated this policy with large-scale massacres, thus sowing the seeds of

current problems. The conquest of Ireland was completed in 1690 when

William III, in alliance with France and supported by the Pope,

defeated the deposed Catholic king of England, James II, at the Battle

of the Boyne.

After a series of violent rebellions against protestant supremacy, the

Acts of Union of 1800 joined Britain and Ireland into the UK thus

creating the UK Parliament. The Irish Parliament was abolished in

favour of Irish representation in the UK Parliament. The Acts of

Union declared that the Union was to last ‘for ever’. The Acts of

Union also protected the United Church of England and Ireland but

the repeal of this provision by the Irish Church Act 1879 has been

upheld (Ex parte Canon Selwyn (1872)).

Unrest punctuated by periods of violence continued throughout the

nineteenth and twentieth centuries generated by internal religious

discrimination and by the apparent indifference of the UK govern-

ment to the economic disasters of the 1840s which decimated the Irish

population. In the late nineteenth century the question of ‘Irish home

rule’ was among the most important questions in UK politics. It weak-

ened the personal authority of the monarchy which unwisely took

sides in the dispute and generated dispute about the most fundamental

principles of the constitution including the balance of representation

in the UK parliament. No agreement was reached but the notion of

parliamentary supremacy became a powerful symbol. Dicey in par-

ticular was a strong supporter of the Union and thought that home

rule would be possible only by abolishing Parliament.

In 1920 there was a crude compromise. The Government of Ireland

Act 1920 partitioned Ireland and established a devolved government

in Northern Ireland. Section 75 provided that ‘notwithstanding the

establishment of the Parliament of Northern Ireland or anything

contained in this Act, the supreme authority of the Parliament of the

United Kingdom shall remain unaffected and undiminished over all

persons, matters and things in (Northern Ireland) and every part

thereof.’ Originally there was proportional representation, thus giving

a voice to the Catholic minority, but this was abolished in 1929,

allowing Protestant majority rule until 1972. The Irish Free State (Con-

stitution) Act 1922 gave the southern states internal self-government.

However, these measures were ignored in Southern Ireland which

created its own constitution based upon the sovereignty of the people.

156 General Principles of Constitutional and Administrative Law

This constitution extended to the whole of Ireland although it was

ineffective in the north. However, according to UK law, the status of

Ireland still depended upon the older UK legislation (see Murray v.

Parkes (1942)). There were therefore conflicting legal orders, each

being valid from its internal viewpoint. Eventually the UK recognised

the independence of the republic (Ireland Act 1949) but provided that

‘. . . in no event will Northern Ireland cease to be part of . . . the United

Kingdom without the consent of the Parliament of Northern Ireland’

(ibid. s. 1 (2)).

In 1972 the devolved Northern Ireland Parliament at Stormont was

prorogued and direct rule from Westminster imposed. The Ireland Act

1949 was repealed by the Northern Ireland Constitution (Amendment)

Act 1973 and a new Assembly with proportional representation was

created (Northern Ireland Assembly Act 1973). The entrenchment of

the Union in the 1949 Act was replaced by a provision requiring a

referendum of the people. However, these arrangements were opposed

by unionist politicians and never implemented. The concept of power-

sharing led to strikes and disturbances and stringent emergency legisla-

tion was imposed on Northern Ireland (Northern Ireland (Temporary

Provisions) Act 1972; Northern Ireland Act 1974).

Latterly a series of agreements attempted to engineer a compro-

mise by tackling discrimination, combating terrorism and creating

machinery for inter-community negotiations (e.g. the Anglo-Irish

Agreement 1985; the ‘Downing Street Declaration’ (1994), Cm. 2422).

These formed the basis of the current accommodation in the ‘Good

Friday Agreement’ (1998 Cm. 3883) between the two governments and

the main political parties in Northern Ireland. This provides for the

restoration of devolved government, the amendment of the Irish Con-

stitution so as to accept that Northern Ireland is currently part of the

UK, the creation of a ‘British Island Council’ as a consultative forum

representing the interests of Ireland and the various parts of the UK

and the Channel Islands, and for an extension of cross border co-

operation in the form of a NorthSouth Ministerial Council.

The Good Friday Agreement was endorsed by 71% of voters in

Northern Ireland and 94% in the Republic of Ireland in referendums.

However, because the Good Friday Agreement makes devolution

conditional upon the completion of the peace process there are powers

to suspend the devolved institutions and to revert to direct rule by

the UK government. This occurred for several months during 1999.

The main points of contention are the question of the decommission-

ing of weapons by the IRA which also bedevilled the unsuccessful

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Federalism and Devolution

negotiations in the 1920s, and the organisation of policing in Northern

Ireland (see Police (Northern Ireland Act) 2000).

The current legislation, the Northern Ireland Act 1998, repeals the

1920 Act and the 1973 legislation. The Act is designed to reduce the im-

pact of sectarianism and to encourage power-sharing between the

political communities. It introduces a system of devolved government

which attempts to ensure a balance between the competing commu-

nities. In doing so it restricts the political freedom of the chief executive

to a greater extent than is the case with other governments in the UK.

The overriding power of Parliament to make law for Northern Ireland

is not affected (s. 5 (6)).

Section 1 provides that Northern Ireland remains part of the UK

and that the status of Northern Ireland will be altered only with the

consent of a majority of its electorate. If a referendum favours a united

Ireland, the Secretary of State is required to ‘make proposals’ to

implement this by agreement with the Irish government. This less than

absolute commitment can be interpreted as reducing the UK’s claim

to Northern Ireland to the ‘one hinge’ of the will of the majority,

although it can be argued that because the Irish constitution now

renounces territorial claim to Northern Ireland the Union is thereby

reinforced (see Hadfield, 1998).

The Act creates a Northern Ireland Assembly elected by the single

transferable vote (Chapter 10). The Assembly’s powers are more cir-

cumscribed than is the case with Scotland and the Secretary of State

has stronger powers. The Assembly chooses the executive (below),

subject to provisions designed to ensure cross-community representa-

tion. It also elects a Presiding Officer (s. 39). Acts of the Assembly

require the Royal Assent and the validity of proceedings leading to an

enactment shall not be questioned in the courts (s. 5 (5)). The Assembly

sits for a fixed four-year term but can be dissolved on a resolution

supported by two-thirds of its members or if a Chief Minister or

Deputy Chief Minister cannot be elected (s. 32).

The Assembly has general legislative power in relation to matters

exclusively within Northern Ireland subject to European law, to the

rights protected by the Human Rights Act 1998 and to ‘excepted

matters’ (s. 6). Discrimination on the ground of religious belief or

political opinion is also outside the competence of the Assembly. The

Assembly can raise certain taxes but not the main taxes that apply

generally throughout the UK. Provisions of the Assembly outside its

competence are not law (s. 6). Where a measure is ambiguous it must

be interpreted in favour of its validity (s. 78). If the Presiding Officer