The progress of devolution

11.10The devolution settlements have been extensively modified since they were first introduced, and it is likely that they will be modified further as a result of UK withdrawal from the EU. Readers are referred to specialist texts for details. At the outset there was a distinction between the way in which powers were devolved to each of the devolved legislatures. The Scottish Parliament had the most extensive legislative powers of the three devolved legislatures in the UK. The Scotland Act 1998 defined the limits on the Scottish Parliament's powers by reserving particular matters to the UK Parliament and granting the Scottish Parliament authority to legislate in any non-reserved field, provided such legislation did not conflict with EU law and obligations.1

The Northern Ireland Act 1998 adopted a model defined in terms of ‘transferred’, ‘reserved’ and ‘excepted’ matters. The excepted matters can only be legislated by the UK Parliament or ministers. The reserved matters are set out in schedule 3 to the Act. Everything else is a transferred matter on which the Assembly can legislate. Reserved matters may be transferred (and transferred matters can also be reserved) by an Order in Council made under schedule 4 to the Act, but only with the consent of a cross-community majority of the Assembly.

In contrast, the Government of Wales Act 1998 gave the National Assembly for Wales relatively limited powers. Unlike the other two devolved jurisdictions, where the scope of devolved powers was defined by exception (that is that the legislatures can make the law in any area other than those which are specifically excluded—‘reserved’, ‘excepted’, etc—by statute) the National Assembly could only legislate in areas where it had explicit statutory authority to do so, granted by Parliament either through primary or secondary legislation. This competence was enlarged through the Government of Wales Act 2006 and has been changed to a reserved powers model by the Wales Act 2017. The Welsh Parliament and Elections Bill (Wales) will use the powers in the Wales Act 2017 to change the name of the Assembly (to the Welsh Parliament) and make changes to the franchise and electoral and internal arrangements.

Footnotes

  1. Reserved matters are set out in sch 5 to the Scotland Act 1998 and sch 4 sets out a list of enactments which the Scottish Parliament cannot modify.