Devolution and its Jurisdictional Asymmetries

AuthorC. M. G. Himsworth
DOIhttp://doi.org/10.1111/j.1468-2230.2006.00625.x
Publication Date01 Jan 2007
Devolution and its Jurisdictional Asymmetries
C. M. G. Himsworth
n
The devolution of legislativeand executive powers to the di¡erent parts of the United Kingdom
has meant that, because of the asymmetricarrangements made, there has been an increase in pol-
icy divergence from one part to another. Some of this has been intended, some unintended.With
reference,in particular, to Scotland and Walesthis article focuses on the asymmetric consequences
of devolution which derive speci¢cally from the jurisdictional or ‘legal system’ di¡erences across
the United Kingdom. These a¡ect the conditions under which law-making powers may be
devolved, the‘management’ of devolution and the rights enjoyed byc itizens. It is argued that
the devolution of ‘legal system’ competence carries with it problems quite di¡erent from those
associated with the devolution of other powers.
INTRODUCTION
A principal focus of discussion in Scotland and, indeed, the United Kingdom more
broadly since the Scotland Act of 1998 (and its implementation from 1999) has been
the opportunity that devolution has provided for the emergence of government
policydi¡erences between di¡erent parts of the country. For many, the point of the
provision of the new institutions of the Scottish Parliament and Executive with
their locally-legiti mated democratic base and their new pol icy competences was to
provide the opportunity for such di ¡erences.
1
Inevitably, because of the di¡erent
institutional provision made for Wales, the failure to implement even what was
enacted for Northern Ireland, and the near absence of provision made for Engla nd,
an emergence of policy di¡erences in any part of the United Kingdom would be
based on an ‘asymmetry’ of legislative and executive competence and would prob-
ably, but not inevitably, be asymmetric in e¡ect as well. Such asymmetries would
be viewed by some as a logical and acceptable consequence of the overall structure
of devolution. Asymmetrically designed institutions would provide asymmetric
policy choices. This was not, of course, a wholly new phenomenon with the com-
ing of devolution. There had been a degree of policy di¡erence (for instance, in
relation to the structure a nd powers of local authorities, education and social work)
in Scotland based o nth e separateness of the Scottish O⁄ce withi nth eUK govern-
ment machine and the tradition of legislating separately for Scotland, quite routi-
nely, atWestminster.The same was true for Northern Ireland and, albeit to a lesser
extent, for Wales. Devolution has enhanced the capacity for di¡erence and, more
n
Universityof Edinburgh. The text of this article has evolvedfrom that of a paperdel iveredat a‘Devo-
lution Club’conference in Trento, Italy on 27 May 2005.Thanks to Dr Niamh Nic Shuibhne for her
comments on an earlier draft.
1 See eg the Lord Chancellor, Lord Falconerof Thoroton in a spe echto the ¢nal co nferenceof the
ESRC Devolution Programme,10 March 2006. Ithas, though, also been argued that a stronger
sign of the maturity of devolutionwi ll be the con¢dence to use the powers to doth ings di¡er-
ently to do things the same.See eg J. Mitchell,‘Scotland: Devolution is not justfor Chri stmas’ in
A.Trench (ed),The Dynamics ofDevolution (Exeter: ImprintAcademic, 2005) 23,33^34.
r2007 The Author.Journal Compilation r2007 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(1) MLR 31^58
importantly, enhanced its democratic base. If it were claimed to be in any way
‘unfair’ that asymmetry dispenses the capacity for di¡erence unevenly, this is an
unevenness that derives from the choice of the inhabitants of the di¡erent parts of
the country. There would, in principle, be nothing stand ing in the way of the
degree of devolutionary power currently allocated to Scotland being extended to
the rest of the United Ki ngdom. There wast he opportunity, even if it was not taken
up, for cafe
Łpara todos.
2
Whilst such an approach may, in general, be su⁄cient to justify policy diver-
gences under devolution, there may be particular questions raised at those points
where policy divergence appears also to impinge on the ‘rights’ of the a¡ected
populations. It might be supposed that some such ‘rights’should not be subject to
the vagaries of devolution but should be enjoyed uniformly by all citizens across
the state as a whole. And it is, of course, for this reason that many such‘rights’are
embraced within the ‘reserved matters’ of the Scotland Act scheme. The Scottish
Parliament cannot legis late on social security, employment law, immigration nor
on much to do with taxation. This does not, of course, absolutely prevent the
Westminster Parliament from varying the provision made on a regional basis
but the power to make suchvariations is at least centrallycontrolled. Local popu-
lations cannot adopt d i¡erent statutory schemes of their own in the reserved areas.
This does not, however, avoid all possible controversy because ‘rights’ issues may
also arise in relation to devolved matters. Indeed, two of the Scottish Parliament’s
most famous divergences from UK-level policies may be examples of this ^ the
‘right’to free perso nal care for the elderly and the ‘right’ for university students to
avoid‘up-front’ fees. Even though the formal authority of the Scottish Parliament
to legislate for such deviations may be undeniable, reasonable questions may be
asked as to the broader justi¢cation for them.The pertinence of such questions
increases in those areas, such as university student fees, where EU rules may
require parity of provision between Scotland and the rest of Europe but not
between Scotland and other parts of the United Kingdom.
Such questions may relate simply to their position within the logic of the
reserved/devolved line, as contingently drawn by the devolution Acts, or they
may be questions cast more generally as to the rights of ci tizens andtheir univers-
ality within a single state. I shall return brie£y tothese questions at the end of the
paper. In the meantime, however, I want to use the core of the paper to address
some rather more narrowly de¢ned questions of legal asymmetry which have a
strong bearing on both the implementation of devolution and the ‘rights of citi-
zens in the United Kingdom as a whole. It has already been indicated that the
devolution project of the Blair government from 1997 was not constructed on a
green ¢eld site. The distinctively territorial forms of administration providing a
degree of decentralisation or, at least, de-concentration of government in Scot-
land, Northern Ireland and Wales also provided the jumping-o¡ point for the
increased measure of democratically based powerand accountability which devo-
lution was intended to establish or, in the case of Northern Ireland, to restore.
Broadly speaking, devolution, though varying from one terri tory to another,
2 ‘Co¡ee forall’ ^ the expression used in Spain for the spreading of the bene¢ts of devolution to all
regions.
Devolution and its Jurisdictional Asymmetries
32 r2007 The Author.Journal Compilation r2007 The Modern LawReview Limited.
(2007) 70(1) MLR 31^58

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