Includes a ‘Ministerial Code of Conduct’ (see sched. 4). The code

requires the ‘strictest standards of propriety, accountability, openness,

good community relations and equality and avoiding or declaring

conflicts of interest’. Any direct or indirect pecuniary interests which

members of the public might reasonably think could influence their

judgement must be registered. The content of the code is similar to that

which, following the reports of the Nolan Committee, applies to UK

ministers and requires compliance with the Committee’s ‘seven prin-

ciples of public life’ (above, p. 82). In the rest of the UK the code has

not been entrenched into law. In Northern Ireland it might therefore

be enforceable in the courts.

There are further provisions designed to encourage peace. Firstly

the Assembly and other public bodies cannot discriminate on grounds

of religious belief or political opinion. Secondly all public bodies must

have ‘due regard’ to the need to promote equal opportunities between

persons of different religious belief, political opinions, races, ages,

marital status, sexual orientation, gender, and in relation to disability

and people with dependants. Thirdly all public authorities must have

regard to the desirability of promoting good relationships between

persons of different religions, political opinions or racial groups. There

are Human Rights and Equal Opportunities Commissioners with

powers to advise government and support legal proceedings.

160 General Principles of Constitutional and Administrative Law

7.4 Wales

Wales has strong cultural traditions, but unlike Scotland and Northern

Ireland has never had its own government or legal system. Wales was

never a separate state but consisted of a number of principalities. The

largest of these passed into English rule in 1084 (Statute of Wales) and

the others were subdued by England by the sixteenth century (see Acts

of Union with Wales 1536). A separate Welsh Assembly was abolished

in 1689. English law applied throughout Wales and a single court

system was introduced in 1830. Within Wales there are markedly differ-

ent areas both economically and culturally, so that it is more difficult

than in the case of Scotland to regard Wales as a country or a nation.

Earlier proposals for Welsh devolution in the Wales Act 1978 were

defeated by a referendum and the current proposals were only nar-

rowly approved.

The emphasis of the Welsh arrangements is threefold: first the

strengthening of democratic accountability within Wales, secondly

stimulating economic development; thirdly representing Welsh inter-

ests at a national and international level (see A Voice for Wales:

The Government’s Proposals for a Welsh Assembly, 1997, Cm. 3718).

Relatively weak and flexible mechanisms have been devised for Wales

which leave considerable discretion in the hands of UK ministers.

These might form a test-bed for future devolution within England (see

Rawlings, 1998).

The Government of Wales Act 1998 gives Wales less power than

the other regions. The Act creates an elected Welsh Assembly of

60 members elected by a combination of first-past-the-post and the

‘additional member’ system similar to that in Scotland. The Welsh

electoral system is less proportional than the Scottish system, having a

greater proportion of first-past-the-post seats (40/20 compared with

73/56). This gives greater power to the majority party which in Wales

is likely to be the Labour party.

The Assembly is a corporate body, and a hybrid between a local

government model and a cabinet/parliamentary one. It is a combination

of subordinate lawmaking and executive body and a method of

scrutinising the executive. Unlike the other devolved bodies it has no

lawmaking powers of its own. It can exercise only such legislative or

executive powers as are transferred to it by Order in Council from UK

ministers. The Assembly exercises the functions that were previously

exercised by the Welsh Office. These include agriculture, forestry,

fisheries and food, environmental and cultural matters, economic and

industrial development, education and training, health, housing, local

161

Federalism and Devolution

government, social services, sport and tourism, town and country

planning, transport, water and flood defences, and the Welsh language.

There is particular concern with economic development, and the

Assembly is required to prepare schemes dealing with sustainable

development, the sustaining and promotion of local government and

the promotion of relevant voluntary organisations.

The Assembly has certain powers of control over Welsh QUANGOs,

these being specialised non-elected bodies that have proliferated in

Wales in recent years. These powers include in some cases the power of

abolition or to transfer functions to the Assembly or a local author-

ity. This is designed to meet widespread concerns about the lack of

democratic accountability in Wales. An expanded Welsh Development

Agency takes over the functions of the Development Board for Rural

Wales and the Land Authority for Wales, both of which are abolished.

The powers exercisable under the Act are vested in the Assembly

itself with flexible powers to delegate. This is analogous to a local gov-

ernment system on which is grafted a cabinet style executive structure.

The Assembly must elect a first secretary, analogous to a prime min-

ister. The first secretary appoints assembly secretaries analogous to

ministers (about eight are proposed of which two will not have

Assembly committee functions). The first secretary and the assembly

secretaries together comprise the Executive Committee analogous to the

Cabinet. The Executive Committee can be made up from one party but

there must be representation of minority parties on other committees.

The Assembly must also elect committees, one for each of its

functions as it determines, to which the executive will be responsible,

and also an Audit Committee, and a Subordinate Legislation Scrutiny

Committee. Because of the blurring of functions between executive and

legislature the Assembly committees are expected to be more pro-active

than committees of Parliament and to be involved at every stage of the

decision-making process rather than merely scrutinising after the event.

The Assembly can delegate any of its executive functions to the

Executive Committee or to another committee or to the first secretary.

The Executive Committee can delegate to the first secretary or to

an assembly secretary. Considerable power is concentrated in the

first secretary along the lines of a cabinet system. The first secretary

can delegate any function to an assembly secretary, who in turn can

delegate to officials (s. 63 (1)). However, the process of delegation and

the structuring of the executive functions is initially controlled by

the Secretary of State in the form of power to make standing orders

on the advice of a commission. These can be overridden only by a

two-thirds majority of the Assembly (ss. 46, 50, 51).

162 General Principles of Constitutional and Administrative Law

There is an Auditor General for Wales who reports to the Assembly

and a Welsh Ombudsman. The National Audit Office can also scruti-

nise the Assembly’s accounts and must work in co-operation with the

Auditor General for Wales. The Secretary of State for Wales will

continue to represent Welsh affairs at national level and in the Council

of Ministers of the EU. The Secretary of State has a duty to consult

the Assembly.

There are no separate Welsh courts or an Attorney-General for

Wales, the UK Attorney-General having responsibility also for Wales.

It seems that any court can invalidate decisions and legislation made

by the Assembly. Nevertheless there are provisions similar to those in

Scotland and Northern Ireland, for the Privy Council to deal with

challenges to the powers of the Assembly and other Welsh bodies by

way of appeal or by a reference from the Assembly or the Attorney-

General (Government of Wales Act 1998 s. 109, sched. 7).

7.5 The Channel Islands and the Isle of Man

The Channel Islands and the Isle of Man have special constitutional

status, being neither part of the UK nor colonies nor overseas ter-

ritories. They are subject to the Crown under the royal prerogative. The

Channel Islands are subject to the Crown as successor to the Duke of

Normandy and have their own legislatures, the ‘states’, their own

courts, and are self-governing as to their internal affairs. The common

law does not apply and, subject to prerogative and statutory legisla-

tion, the law is local customary law. However, because the Channel

Islands and the Isle of Man are directly subject to the Crown, the

important protection provided by the judicial review powers of the

High Court applies to both (see Ex parte Brown (1864); Ex parte

Anderson (1861)).

Parliamentary supremacy was extended to the Channel Islands by

a Prerogative Order in Council of 1806. There is a presumption of

interpretation that an Act will not apply to the Channel islands in

the absence of express words or necessary implication. The Channel

Islands are not members of the European Union but there are special

treaty arrangements. Channel Island citizens are British citizens

(British Nationality 1981 ss. 1, 11, 50 (1)). The position of the Isle of

Man is broadly similar, although the Crown’s rights seem to derive

from an ancient agreement with Norway confirmed by statute (Isle of

Man Purchase Act 1765 (repealed)). Legislation made by its legisla-

ture, the Tynewald, must be assented to by the Queen in Council. (See

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Federalism and Devolution

generally Royal Commission on the Constitution 1969–1973 Part XI

and Minutes of Evidence VI, pp. 7, 13, 227–34; X v. UK (1981), ECHR.)

7.6 British Overseas Territories

In the majority of former UK overseas territories all ties with UK law

have been severed by particular Acts of Parliament (e.g. Canada Act

1982; Australia Act 1986). The UK retains a handful of dependent

territories (formerly called colonies). In principle these are subject to

the full force of parliamentary sovereignty and can be governed under

the royal prerogative. However, certain rules determine the extent to

which English law applies. If the colony was acquired by settlement,

then the settlers carry the common law with them. If the colony is

acquired by conquest or agreement (cession) so that it had its own

population then, once a representative legislature has been established,

English law does not apply unless the Crown reserved the right to

legislate (Campbell v. Hall (1774)). Moreover, under the Colonial Laws

Validity Act 1865 all representative legislatures have full lawmaking

power, including the power to alter their own constitution, powers and

procedure subject to the UK Parliament (see Liyanage v. R. (1967)).

The inhabited dependent territories are Anguilla, Bermuda, British

Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Mont-

serrat, the Pitcairn Islands, St Helena, the Turks and Caicos Islands.

Summary

7.1 The UK constitution does not distribute power geographically as a method of

limiting the power of the state or enhancing democracy. It favours a strong

central authority. The UK is therefore not a federal state.

7.2 Legislative and executive power has been devolved to elected bodies in

Scotland and Northern Ireland and executive power has been devolved to an

elected Welsh Assembly subject to central government control. In the case

of Scotland and Northern Ireland the UK Parliament has reserved the power to

legislate in respect of many matters and has a general power to override the

devolved assemblies. The distribution of powers between the UK Parliament

and the devolved assemblies, including the protection of particular interests,

reflects the historical and political circumstances of each area. The courts

culminating in the Privy Council have power to adjudicate in devolution issues.

Elections to the devolved bodies are by proportional representation.

7.3 There is no devolved government in England. Regional Development Agencies

have been created but these are appointed bodies charged only with particular

economic goals thus lacking essential attributes of democratic government.

164 General Principles of Constitutional and Administrative Law

Further Reading

Bogdanor, V. (1998) Devolution in the United Kingdom, Oxford: OUP.

Bogdanor, V. (1999) ‘Devolution: decentralisation or disintegration?’ 70 Political

Quarterly 185.

Brazier, R. (1999) ‘The constitution of the United Kingdom’, 58 Cambridge Law

Journal 96.

Hazell, R. (1999) ‘Re-inventing the constitution: can the state survive?’, Public Law 84.

Himsworth, C., Munro, C. (1999) The Scotland Act 1998.

Jones, T.H. (1997) ‘Scottish devolution and demarcation disputes’, Public Law 283.

Jowell and Oliver, The Changing Constitution, chapter 5.

Rawlings, R. (1998) ‘The new model Wales’, 25 Journal of Law and Society 461.

Rawlings, R. (2000) ‘Concordats of the constitution,’ Law Quarterly Review 257.

Walker, N. (2000) ‘Beyond the unitary conception of the United Kingdom constitution’,

Public Law 384.

White Paper, Scotland’s Parliament (1997), Cm. 3658.

White Paper, A Voice for Wales (1997), Cm. 3718.

Mitchell, J. (1999) ‘The creation of the Scottish Parliament: journey without End’, 52

Parliamentary Affairs 649.

O’Neill, A. (2001) ‘Judicial politics and the judicial committee: the devolution

jurisprudence of the Privy Council’, 64 Modern Law Review 603.

Merinos, J. (2001) ‘Democracy, governance and governmentally: civic public space

and constitutional renewal in Northern Ireland’, 21 Oxford Journal of Legal Studies

287.

McAlester, L. (2001) ‘Wales: Labour’s devolution dilemma’, 54 Parliamentary Affairs

156.

Bradbury, J. and Mitchell, J. (2001) ‘Devolution: new politics for old’, 54 Parliamentary

Affairs 257.

Exercises

7.1 What is a federation? Outline the advantages and disadvantages of a federal

structure.

7.2 Compare the arguments for devolution within the UK with those in favour of a

federal UK.

7.3 What are the main differences between the devolved powers of Scotland,

Wales and Northern Ireland and what are the reasons for those differences?

Which region has the greatest degree of autonomy?

7.4 ‘The Scotland Act 1998 provides for the executive in terms based on but

differing in important ways from the conventions that apply to the Westminster

Parliament’. Discuss.

8 Local Government

Local government in the UK is characterised by two main features.

First it is fragmented with several different kinds of local body,

functions conferred by many different statutes and diverse methods of

control and accountability. Secondly it has no constitutional protec-

tion and is regulated in detail by the central government. Con-

trary to the classical republican notion of devolved power, there is

neither law nor convention protecting local autonomy. As a matter

of political practice, local authorities may in fact be given a degree of

freedom in particular cases this option being conditional upon con-

forming to a central agenda. However, this fails to meet the republican

criterion of non-domination as a right. More usually local powers

are required to be exercised in conformity with the central execu-

tive’s wishes.

By contrast some constitutions specifically protect local government

autonomy. For example the Italian constitution and legislation pro-

tects both regional and local autonomy according to the subsidiarity

principle (Arts 5, 117, 118, Acts 1990/142, 1997/59). The US federal

constitution leaves the residual powers of government at state level

with some states devolving ‘home rule’ powers to local authorities.

This gives protection to local government through the principle that

state interference must be justified by a ‘substantial state interest’ ( see

White v. City of Dallas (1974)).

Carnwath (1996) lamented the absence of a framework of constitu-

tional principles which structure competing centres of governmental

power and in particular the fact that the central government has an

inbuilt advantage in that it both makes the rules and implements them.

The attitude of the courts to local government law has also been criti-

cised as unprincipled and perhaps hostile towards local government

(see Alder, 2001).

Local authorities have a certain political claim to autonomy at least

for the following reasons:

(i) They are directly elected and can therefore act as a separation of

powers check on central government.

(ii) Some local expenditure (in practice about 20%) is raised by local

taxation.

165

166 General Principles of Constitutional and Administrative Law

(iii) Services such as housing, education and environmental con-

trol should be administered flexibly in accordance with local

circumstances.

(iv) It is desirable in the interests of democracy and individual self-

fulfillment for people to have closer contact with governmental

bodies than is possible at central government level.

(v) They generate different political perspectives and healthy dis-

agreement and debate.

The flourishing of incommensurable values was one of Aristotle’s

primary justifications for the existence of local political units, a posi-

tion also held by Mill. Aristotle regarded the polis as embodying

the principle of self-sufficiency essential to which was pluralism. Each

smaller community that together make up the polis, families, villages

etc., should have autonomy within its own sphere. In a widely accepted

formulation Sharp (1970, XIII Political Studies 153) outlined the foun-

dational values of local government in a way that emphasises the in-

commensurable values involved. Firstly there is autonomy in the sense

of enabling those who use local services to decide priorities; secondly

there is democratic participation, including voluntary group involve-

ment in public affairs and also in providing a safety valve, which allows

electoral opposition to the central government of the day; thirdly there

is (allocate) efficiency of service provision.

In support of local autonomy Mill argued that the role of central

government should be confined to laying down general principles and

acting as a default mechanism. ‘The very object of having local repre-

sentation is in order that those who have any interest in common,

which they do not share with the general body of their country-

men, may manage that joint enterprise by themselves’ (Representative

Government, p. 350). Mill’s argument for local autonomy is based on

the Aristotelian values of civic virtue and individual self-realisation.

One implication of this is that where other values are regarded as more

important than local autonomy, for example where equality of service

provision is especially valued, the service should not be in local gov-

ernment hands except possibly as a clearly identified delegate of the

centre. Thus local government should perhaps do less but have greater

autonomy in relation to what it does do.

8.1 Local Authority Organisation and Functions

Until the middle of the nineteenth century, much of the detailed work of

government was carried out by local bodies – in particular, justices

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Local Government

of the peace and specialised ad hoc bodies. Indeed it is sometimes

claimed that this local tradition rather than any formal separation of

powers is the main reason why the British constitution was stable during

the eighteenth century. Elected multi-purpose local authorities were

introduced during the nineteenth century in parallel with the extension

of parliamentary democracy but were set up as statutory corporations

dependent on central government. The basic legislation is the Local

Government Act 1972 which must be read together with many later

Local Government Acts, various Local Government Finance Acts, the

Audit Commission Act 1998, the Local Government and Rating Act

1997 and legislation concerning particular local services. The combined

effect of these measures is a dense and complex legislative code.

Outside the metropolitan areas (below) there are three principal

kinds of local authority, namely county councils, district councils, and

unitary authorities. Counties and districts are not in a relationship

of superior and inferior but each has its own area of responsibility

allocated to it by statute. Under the Local Government Act 1992, a

Local Government Commission appointed by the Secretary of State

was established to review periodically the structures, boundaries and

electoral arrangements of local authorities and to make recommenda-

tions to the Secretary of State who has power to make decisions on

these matters subject to parliamentary approval. Except in the case

of the metropolitan authorities the Commission can recommend that

the two levels of local government can be merged in single unitary

authorities. As a result of recommendations made in 1996 there are

currently 46 unitary authorities. There are at present 318 local author-