In 1990 the Labour politician and later party leader John Smith first referred to a Scottish Parliament as “the settled will of the Scottish people”. He later said a Scottish Parliament would form the “cornerstone” of his party’s plan for “democratic renewal” in the UK. Although he did not live to see it, that “settled will” became a legislative reality exactly 20 years ago, when the Scotland Act 1998 received Royal Assent on 19 November.
The Northern Ireland Act 1998 joined the statute book the same day, and together with the Government of Wales Act 1998 from earlier that year, those three devolution statutes transformed the territorial constitution of the UK. The devolution settlements in Scotland and Northern Ireland were, however, very different, for which history offers the easiest explanation.
Devolution is not new
It’s often assumed that devolution in the UK began in 1998, but it has a deeper provenance in different parts of the country if one distinguishes between the “executive”, “administrative” and “legislative” varieties. Ireland, for example, retained a separate executive after its Union with Great Britain in 1801 (a Chief Secretary, Lord Chancellor, junior minister and two law officers), while after 1885 Scotland enjoyed what was known as administrative devolution: a dedicated Minister and Scottish Office (later located in Edinburgh) with a degree of autonomy over specifically Scottish affairs.
Only Northern Ireland, however, was granted legislative devolution, a constitutional hangover from the Government of Ireland Act 1920 which had originally envisaged “Home Rule” parliaments in Northern and Southern Ireland (and eventual unity between the two). This was overtaken by events, and only the “Northern Parliament” was constituted in June 1921, a bicameral legislature with three categories of powers: excepted, reserved and transferred. It was prorogued in 1972 and abolished in 1973 amidst the period known as The Troubles.
The devolution statutes of 1998
In 1998, therefore, legislative devolution was restored in Northern Ireland while being extended to Scotland for the first time. In the former case, it followed multi-party talks intended to bring peace to Northern Ireland, while in Scotland the devolution settlement marked the conclusion of a long-running campaign, primarily by the Labour and Liberal Democrat parties, to give effect to John Smith’s “settled will”.
The Northern Ireland Bill came before Parliament after elections to the new Northern Ireland Assembly in March 1998, rather than before, as with the Scotland Bill. And while both Bills were based on the “reserved powers” model, the similarities ended there. The Northern Ireland Assembly would be elected under the Single Transferable Vote, and the Scottish Parliament via the Additional Member System; and while the new Scottish Executive (later Government) was to be formed in the Westminster manner (i.e. by the largest single party, or from a coalition of two parties), the Northern Ireland Executive was to comprise all eligible parties in a power-sharing arrangement first attempted 25 years before.
A process, not an event
The late Donald Dewar did not say, as is commonly claimed, that devolution was “a process, not an event” (that was former Welsh Secretary Ron Davies), but he would almost certainly have agreed with it. That process was initially slow in Scotland, with the first eight years producing two Labour-Liberal Democrat coalition Executives and general constitutional stability. The devolution settlement had a more difficult start in Northern Ireland, with the Assembly suspended twice over delays to IRA decommissioning, and Direct Rule reintroduced in 2003.
Both devolution statutes made allowance for further transfers of power. In 2003 the Scottish Parliament assumed control of Scotland’s railways, while in 2010 the Northern Ireland Assembly acquired power over policing and justice. Later, the Scotland Act 2012 and Scotland Act 2016 transferred greater fiscal and welfare powers to Edinburgh, while legislation to devolve Corporation Tax to Northern Ireland was passed, though not enacted, in 2015. The 2014 Scottish independence referendum, meanwhile, derived legislative authority from Section 30 of the Scotland Act 1998.
Sovereignty of the UK Parliament
The independence referendum in Scotland highlighted long-running debates concerning the constitutional status of the UK’s devolved legislatures. While both statutes included standard statements of Westminster sovereignty, that neither affected “the power of the Parliament of the United Kingdom to make laws” for Scotland or Northern Ireland, the popular campaign for the Scottish Parliament had rested upon the belief that the “people of Scotland” were sovereign rather than Westminster.
Referendums in both Northern Ireland and Scotland, meanwhile, underscored the difference between “legal” and “political” sovereignty. The 1973 “Border Poll”, although boycotted by the Nationalist community, had nevertheless conceded Northern Ireland’s constitutional right to secede (and join the Republic of Ireland), an option further reinforced by the 2012 Edinburgh Agreement and subsequent referendum in Scotland. Together with the 1997/98 referendums on the Belfast Agreement and Scottish devolution plans, an element of “popular” sovereignty had long been factored into the devolution settlements.
Important in this respect is the concept of legislative consent, whereby the UK Parliament does “not normally” legislate in devolved areas without the permission of the affected legislature. For most of the past two decades this was rarely an issue, although disputes between the Welsh and Scottish Governments and the UK Government over Brexit have altered that dynamic.
The European Union (Withdrawal) Act 2018 will directly impact upon the devolution settlements in Northern Ireland and Scotland, although given the collapse of the former’s Assembly and Executive in early 2017 only the Scottish Parliament and Government have been able to engage with the Brexit process. The political response to the 2016 European referendum has also produced calls in both parts of the UK for further referendums.
In Northern Ireland, Sinn Féin has suggested a new “Border Poll” in 2021, while in Scotland, some in the Scottish National Party wish to turn Scottish Parliament elections due that year into an informal referendum Scotland’s constitutional status. In other words, twenty years on from the Scotland and Northern Ireland Acts, the respective devolution settlements appear far from settled.
David Torrance, “The settled will”? Devolution in Scotland, 1998-2018, House of Commons Library.
David Torrance, Devolution in Northern Ireland, 1998-2018, House of Commons Library.
James Mitchell, The Scottish Question, Oxford: Oxford University Press, 2014.
Aileen McHarg et al (eds), The Scottish Independence Referendum: Constitutional and Political Implications, Oxford: Oxford University Press, 2016.
Siobhán Fenton, The Good Friday Agreement, London: Biteback, 2018.
Colin Knox, Devolution and the governance of Northern Ireland, Manchester: Manchester University Press, 2010.
David Torrance is a Senior Library Clerk at the House of Commons Library, specialising in devolution, monarchy and religion.