Table of contents
- 1. Devolution deals in England: Recent developments skip to link
- 2. UK government action on devolved affairs in Northern Ireland skip to link
- 3. Scottish government plans for an independence referendum skip to link
- 4. Welsh government policy on constitutional reform skip to link
- 5. UK government powers to ‘veto’ devolved legislation skip to link
- 6. Read more skip to link
1. Devolution deals in England: Recent developments
1.1 Government policy
The UK government’s 2022 ‘Levelling up in the United Kingdom’ white paper set out its ambition that by 2030 “every part of England that wants one will have a devolution deal with powers at or approaching the highest level of devolution”. It also committed to providing “simplified” and “long-term” funding settlements.
The white paper outlined the government’s plans for devolution in England. It included commitments to negotiate further devolution deals, and it set out a ‘devolution framework’ detailing pathways for areas seeking a deal. As part of this framework, each proposed deal would match one of three ‘levels’, with ‘level one’ deals offering the lowest degree of devolution and level three deals offering the highest degree of devolution. Level three deals would require the adoption of a directly elected mayor and was the stated preference of the government. Further information on the framework and its three levels can be found in the House of Lords briefing ‘Queen’s Speech 2022: Devolved affairs’ (5 May 2023).
The government also made a commitment in the white paper to establish “appropriate accountability” for local leaders and institutions and to create common standards. In March 2023, the government published its ‘English devolution accountability framework’.
1.2 Recent deals agreed
In March 2023, the government published new “trailblazer deeper devolution deals” for Greater Manchester and the West Midlands combined authorities. The deals would give the combined authorities additional powers and funding. For example, under the deals both areas would take on the affordable homes programme, and funding for retrofitting houses for energy efficiency would be devolved. The deals would permit mayoralties to take the strategic lead in certain policy areas, such as careers and housing.
The deals would also introduce a new “single departmental-style settlement” for both areas. This would mean the two combined authorities would be treated like government departments and given single financial allocations, for which they would be accountable to Parliament. The finance settlement will be implemented as part of the 2025 spending review.
In August 2022, the government agreed a level three deal with Derbyshire County Council, Derby City Council, Nottinghamshire County Council and Nottingham City Council to establish an East Midlands mayoral combined county authority (CCA). CCAs are a new governing model that was established by the Levelling Up and Regeneration Act 2023. An inaugural mayoral election is expected to take place in the East Midlands in 2024, subject to consent from the relevant councils and parliamentary approval of the necessary secondary legislation.
Further information on recent devolution deals can be found in the House of Commons Library briefing ‘English devolution: What’s in the new deals?’ (27 March 2023) and the House of Lords Library briefing ‘Local government and local democracy in England’ (8 June 2023). Further information on the measures to create mayoral CCAs can be found in the House of Lords Library briefing ‘Levelling-up and Regeneration Bill’ (10 January 2023).
2. UK government action on devolved affairs in Northern Ireland
2.1 UK Parliament legislation on governance and finance in Northern Ireland
Northern Ireland has been without a fully functioning executive or assembly since February 2022, following the collapse of power sharing over the Democratic Unionist Party’s (DUP) objections to the Northern Ireland Protocol. Northern Ireland Assembly elections took place in May 2022. However, the statutory period for forming a new executive after the May election ended with no executive being formed.
In response to this situation, the UK Parliament has legislated several times to extend the time allowed for forming a new executive before another assembly election must be held. Currently, this period will now end on 18 January 2024. However, the secretary of state also has powers to call an election before this point. If no executive is formed by the January deadline, the secretary of state has a duty to call assembly elections. To change this duty, primary legislation would be required.
The UK Parliament has also passed legislation to allow senior Northern Ireland civil servants to exercise departmental functions in the public interest, and to put on a statutory footing budget allocations for Northern Ireland departments and other bodies for the financial year ending 31 March 2024. There has been concerns about the sustainability of Northern Ireland’s public finances, highlighted by a shortfall of £297mn to be repaid to the Treasury to cover spending in the 2022/23 financial year. Legislation passed by Parliament gives the secretary of state powers to direct Northern Ireland departments to provide advice or consult on options to raise revenue or deliver sustainable public finances in the absence of an executive. In September 2023, the secretary of state directed Northern Ireland civil service departments to launch the public consultations on budget sustainability and revenue raising measures. Further information on the suite of legislation introduced by the UK government since the collapse of the Northern Ireland Executive can be found in the following House of Lords Library briefings:
- ‘Northern Ireland (Executive Formation and Organ and Tissue Donation) Bill ’, 24 February 2023
- ‘Northern Ireland (Interim Arrangements) Bill’, 15 May 2023
- ‘Northern Ireland Budget (No. 2) Bill’, 6 September 2023
A return to power sharing has yet to take place because of ongoing political disagreements about the protocol and the Windsor Framework that was agreed between the UK government and the EU. DUP Leader Sir Jeffrey Donaldson has said that he could not give a political commitment to restore devolved institutions until the party’s concerns about certain proposals in the Windsor Framework were addressed.
Commenting on the situation in autumn 2023, Northern Ireland Secretary Chris Heaton-Harris said there were extensive discussions with the DUP over the summer, and that the government was working on a response to the party’s remaining concerns. Sir Jeffrey has stated that the DUP would continue to engage with the UK government “to try to bring about the fair and sustainable conditions that are necessary to get the Stormont assembly and executive functioning”. However, he stressed that the party would “not be bullied or cajoled” into accepting arrangements that would “entrench irreparable damage to Northern Ireland’s interests within the United Kingdom”.
The Windsor Framework and negotiations between the UK government and the DUP are discussed in more detail in section 2.2 of this briefing.
2.2 Windsor Framework and legislation on Northern Ireland’s place in the UK internal market
It is possible that one outcome of discussions between the government and the DUP may be legislation relating to Northern Ireland’s place in the UK internal market. Chris Heaton-Harris said in June 2023 that he looked forward to being able to bring in legislation that would enable Sir Jeffrey Donaldson to give him a date when the DUP would go back into the Northern Ireland executive. In August, Mr Heaton-Harris said it had been “difficult” to find a legislative fix that would satisfy the DUP’s concerns about the Windsor Framework, but there had been progress.
The government has indicated that it plans to legislate in relation to Northern Ireland’s place in the UK internal market. Its command paper on the Windsor Framework, published in February 2023 when the deal with the EU was announced, included a commitment on this. In the command paper, the government said the new framework would remove requirements for businesses moving goods from Northern Ireland to Great Britain to provide export declarations (as required in the original protocol) or equivalent information (a compromise arrangement agreed on by the UK and the EU in December 2020). It said this would assure “unfettered access” for Northern Ireland’s businesses to the UK market on a permanent basis, with controls applied only where strictly necessary to manage the UK’s international obligations (for instance, on movements of endangered species). To underscore this “permanent guarantee of free movement for this critical trade within the UK internal market”, the government said it would legislate to “provide protection in law against export procedures”. It said it would do this by reinstating provisions in the United Kingdom Internal Market Act that were dropped during the bill’s original passage in 2020. The government said it would now be able to do this “in compliance with international law and our own constitutional order”.
In the government paper ‘Border target operating model’, the final version of which was published in August 2023, the government said arrangements would be “enshrined and further strengthened in domestic legislation” to “ensure that Northern Ireland businesses have unfettered access when moving qualifying goods to their most important market in Great Britain”. The government said this would apply to qualifying Northern Ireland goods moving both on direct routes from Northern Ireland to Great Britain and indirect routes from Northern Ireland via Ireland to Great Britain. It said this would “ensure a continued and unwavering commitment to unfettered access for Northern Ireland businesses”.
While the new measures the government has spoken about focus on movements of goods from Northern Ireland to Great Britain, the DUP’s concerns also extend to the requirements in the Windsor Framework for goods moving from Great Britain to Northern Ireland. In his party conference speech in October 2023, Sir Jeffrey Donaldson said the DUP’s objectives included “restoring and future-proofing in law our article 6 rights under the Acts of Union thus ensuring our ability to trade freely with the UK internal market, and securing further measures that will strengthen Northern Ireland’s place within the union”. Sir Jeffrey said that “the default route for goods moving from GB to NI should be through the UK’s own internal market system”. He believed it was “simply not right that within the UK, businesses and traders who pose no risk of criminality or smuggling or disease should have their goods subject to physical inspections”. The DUP has objected to a recent package of regulations implementing aspects of the Windsor Framework. It argued, among other things, that the arrangements do not represent “unfettered access within the UK single market” as goods moving from Great Britain to Northern Ireland under the retail movement scheme (the ‘green lane’) still require an export number, customs and sanitary and phytosanitary paperwork and may be subject to identity checks at a border control post. It also argued that even before going live, the complexity of the new arrangements was causing a diversion of trade, with supermarkets looking to alter their supply chains to source goods from Ireland rather than Great Britain. Sir Jeffrey has also highlighted other features of the Windsor Framework with which the DUP disagrees, such as the continued application of EU law to goods manufactured in Northern Ireland, and the fact that the ‘Stormont brake’ mechanism does not apply to existing EU laws.
In relation to possible legislation, prior to the party conference, Sir Jeffrey told journalists that the DUP believed legislation and “additional measures required to safeguard [Northern Ireland]’s ability to trade with the rest of the UK” were needed. He said that the legislation could not simply be “declaratory” but would have to contain practical steps to remove red tape limiting the free movement of goods.
Sir Jeffrey said at the party conference that the DUP was making progress in discussions with the government but there remained “more work to do”. He said there would come a point when the party would have to determine if the outcome “measures up to our objectives and our manifesto commitments” and whether there was a sustainable basis for moving forward.
While talks between the DUP and the government have been going on, other parties within the Northern Ireland Assembly have called on the DUP to return to power-sharing. Declan Kearney, Sinn Féin’s Brexit spokesperson, said the UK government had “made it clear that further renegotiation of the Windsor Framework is not plausible”. He said it was time for the DUP to return to power-sharing institutions to “realise the potential of the Windsor Framework and create the political stability needed to begin addressing the scale of the crisis across our public services”. Colum Eastwood, leader of the SDLP and MP for Foyle, suggested people in Northern Ireland were more concerned about public services in Northern Ireland than about implementation of the Windsor Framework. Stephen Farry, deputy leader of Alliance and MP for North Down, suggested that the DUP’s position “illustrates the lack of realism about the choices that face us collectively in Northern Ireland, and the choices that face unionism in ensuring that Northern Ireland works for everyone”. Doug Beattie, leader of the UUP, said that “what is on offer from the UK government […] does not include changing the Windsor Framework”. He argued the DUP’s “boycott” of Stormont was “hurting Northern Ireland, our people and unionism itself”. However, Jim Allister, leader of the Traditional Unionist Voice (TUV), said that any solution must “address and reverse that which has through the Protocol/Windsor Framework wrought dire constitutional damage to Northern Ireland’s place within the United Kingdom”. He argued that “mere tinkering within the Windsor Framework” or legislation to protect against future changes would not “undo what has already been imposed”.
Baroness Neville-Rolfe, minister of state at the Cabinet Office, said on 12 October 2023 that the government aimed to finalise a package of policy and legal proposals as soon as possible to address the concerns of the DUP and others. She noted that prior to the start of new red/green lane arrangements on 1 October 2023, “some sought to justify not forming an executive by virtue of concerns the October arrangements would be disruptive and unworkable”. She maintained that those concerns had not materialised and that “the overriding priority for Northern Ireland now must […] be to see a new executive restored”.
Further background information about the Windsor Framework is available in the following briefings:
- House of Lords Library, ‘Northern Ireland Protocol and Windsor Framework: Reports by the House of Lords Protocol on Ireland/Northern Ireland Sub‑Committee’, 4 September 2023
- House of Lords Library, ‘Windsor Framework (Democratic Scrutiny) Regulations 2023 and the Stormont brake’, 24 March 2023
- House of Commons Library, ‘Northern Ireland Protocol: The Windsor Framework’, 21 March 2023
2.3 Legislation to address the legacy of the Troubles in Northern Ireland
In May 2022, the UK government introduced a bill into the UK Parliament “to address the legacy of Northern Ireland’s past”. The bill received royal assent on 18 September 2023, and became the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023. The act established a new body called the Independent Commission for Reconciliation and Information Recovery (ICRIR) and created a new conditional immunity scheme. The scheme gives immunity from prosecution for Troubles-related offences to individuals that cooperate with the ICRIR. The legislation also limits certain Troubles-related criminal investigations and legal proceedings.
The legislation was largely welcomed by veterans’ groups. However, political parties in Northern Ireland, some victims’ groups, and the political leaders in Ireland have expressed concern about the immunity scheme, and about the measures limiting legal proceedings and criminal investigations. Questions have been raised by these parties and other organisations, such as the Northern Ireland Human Rights Commission, about whether the provisions are compatible with the European Convention on Human Rights (ECHR).
Discussion of these issues, reaction to the bill, and a summary of its provisions can be found in the House of Lords Library briefing ‘Northern Ireland Troubles (Legacy and Reconciliation) Bill’ (14 July 2023) and the House of Commons Library briefing ‘Northern Ireland Troubles (Legacy and Reconciliation) Bill 2022–2023’ (24 July 2023).
In November 2023, a legal challenge to the Northern Ireland Troubles (Legacy and Reconciliation) Act will come before a Belfast high court. The judge hearing the case, Mr Justice Colton, said the court’s primary focus would be the argument that sections of the act are incompatible with the ECHR. The court had received 20 applications for judicial review of various aspects of the legislation. However, Mr Justice Colton said it was “not practical, nor fair” to hear all applications, and he had identified a lead case to be examined by the court. However, he also granted leave for several other cases to be brought whose applications raised issues not covered by the lead case.
The Irish government is also considering whether to make a legal challenge against the legislation. Prior to the legislation receiving royal assent, Taoiseach Leo Varadkar said the proposals were the “the wrong way to go about dealing with legacy issues in Northern Ireland”. He urged the UK government to pause the law. Mr Varadkar has said that the Irish attorney general was preparing advice on whether the case could be taken to the European Court of Human Rights.
The UK government has acknowledged that the legislation is “not perfect”, but argues that it had to be “honest” about what it could “realistically deliver”. Speaking at an event in Belfast on 11 September 2023, Northern Ireland Secretary Chris Heaton-Harris said the proposals were an “honest and true attempt to try and get information” for the victims’ families. Mr Heaton-Harris argued that “no-one has an alternative for what could possibly replace” the measures.
3. Scottish government plans for an independence referendum
In November 2022, the Scottish government referred to the UK Supreme Court the question of whether it could legislate to hold an independence referendum. On 23 November 2022, the Supreme Court found that if the UK government and Parliament were unwilling to modify the relevant reserved powers (as they had prior to the 2014 independence referendum) then “the Scottish Parliament does not have the power to legislate for a referendum on Scottish independence”. Nevertheless, the SNP has restated its intentions to campaign and work towards holding a second independence referendum.
At the SNP’s convention on independence in June 2023, Scotland’s First Minister Humza Yousaf told delegates that the party would “absolutely fight” the next general election with independence “front and centre” of its campaign. However, Mr Yousaf said that he was “very clear” that the only route was through a “lawful, democratic process”.
In his speech, Mr Yousaf set out his plan for negotiating independence if the SNP were to “win” the next general election”. He said the SNP would set out in a new partnership agreement the terms it would seek with the UK government. He said the document would include draft legal text on the transfer of powers from the UK Parliament to the Scottish Parliament necessary to prepare for independence. Mr Yousaf said the Scottish government would conduct a nationwide consultation on a draft interim constitution and would establish an envoy position in Brussels with the purpose of working towards becoming an independent member state of the EU.
At the SNP’s October 2023 party conference, the party voted to seek independence negotiations with the UK government, if the party won a majority of Scottish seats at the next general election. The motion, which was backed by the leadership, proposed making the first line of its next general election manifesto “Vote SNP for Scotland to become an independent country”.
The Scottish government has published a series of papers called ‘Building a new Scotland’, which set out its proposals on several policy areas for an independent Scotland. This suite of documents includes plans for a written constitution and a model of citizenship.
The UK government has criticised the SNP for being “irresponsible” for using public funds to campaign for independence. In a letter to Mr Yousaf, Scottish Secretary Alister Jack said that ministers had “a responsibility to spend taxpayers money wisely”. Mr Jack criticised the Scottish government for its “obsession with independence ahead of pressing priorities in Scotland”. In response, Mr Yousaf told reporters that he felt “comfortable” using public funds to promote independence. He said that the SNP had been elected on a mandate to deliver a referendum.
The House of Commons Library briefing ‘Devolution in Scotland: “The settled will”?’ (30 March 2023) considers recent developments in the devolution settlement in Scotland, and its briefing ‘Scottish independence referendum: Legal issues’ (10 January 2023), discusses the Scottish government’s reference to the Supreme Court in 2022 on its ability to hold a referendum, and the SNP’s reaction to the court’s decision.
4. Welsh government policy on constitutional reform
4.1 Independent commission on the constitution
In 2021, the Welsh government established the Independent Commission on the Constitutional Future of Wales. The commission has two broad objectives:
- to consider and develop durable options for fundamental reform of the constitutional structures of the United Kingdom
- to consider and develop all progressive principal options to strengthen Welsh democracy and deliver improvements for the people of Wales
The commission is co-chaired by Professor Laura McAllister and Lord Williams of Oystermouth, former Archbishop of Canterbury and former member of the House of Lords.
- Entrenched devolution: This option would protect against unilateral changes by the UK government and Parliament. The commission said it would review the case for expanding devolved powers, including in respect of policing and justice.
- Federal structures: This option would involve reform of the constitution along federal lines. It would include separation of the UK Parliament and government’s responsibility for England from their responsibility for the UK, and reform of the UK Parliament’s second chamber.
- Independence: Under this option Wales would become a sovereign country, eligible for full membership of the UN and other international organisations
On 3 March 2023, the commission published a constitutional options analysis framework for examining and appraising the three options.
Since the publication of the interim report, the commission has received evidence and held workshops to consider the implications of further devolution in policy areas such as justice, policing, transport, employment, welfare and energy. Contributors include members of the UK and Welsh governments; constitutional, legislative and fiscal experts and academics; and representations from the policing and justice sector. Welsh and Scottish government officials have also participated in the workshops to provide “factual information”.
In May 2023, the commission met with members of both Houses of Parliament, and the co‑chairs appeared before the House of Commons Welsh Affairs Committee. In her evidence to the committee, Professor McAllister said the commission’s final report would provide a “body of evidence and a set of serious credible recommendations”. She argued the report would be a resource for any future government “should they decide that constitutional change is needed”.
The final report is scheduled to be published by the end of 2023.
4.2 Senedd reform
In October 2021, the Special Purpose Committee on Senedd Reform was created to consider recommendations made by the Committee on Senedd Electoral Reform to increase the size of the Senedd and change the system by which its members are elected.
The Special Purpose Committee on Senedd Reform published its report in May 2022. It recommended the Senedd’s current membership of 60 be increased to 96, and be elected by a closed list proportional electoral system. It also recommended gender quotas for candidates standing for election to the Senedd. The Senedd debated the report in plenary on 8 June 2022. Members voted to approve the recommendations.
The Welsh government’s June 2023 legislative statement included two bills to reform the Senedd. The Senedd Cymru (Members and Elections) Bill was introduced to the Senedd on 18 September 2023. It includes provisions to increase the size of the Senedd to 96 members and to introduce the closed list proportional electoral system. It would also require candidates to, and members of, the Senedd to be resident in Wales, and would decrease the length of time between Senedd ordinary general elections from five to four years. A second bill to introduce gender quotas for candidates for election to the Senedd is likely to “be brought forward later [in 2023]”.
Welsh First Minister Mark Drakeford has expressed his confidence that the Senedd has the powers to legislate on gender quotas. However, he has acknowledged that there may be others with an opposing view. He explained that is why the reforms were spilt in two separate bills:
We are confident that we have the legal scope here in Wales to legislate in this area, and we will bring forward a bill confident of the basis on which we do so. But it is an area in which other views may be possible, and where a challenge might be mounted. In order to make sure that the main reforms are not vulnerable to challenge, we’ve severed the two aspects.
Conservative Senedd member Darren Millar has argued that the Senedd does not have the power to legislate on gender quotas because equal opportunities is not a devolved area. Mr Millar had been a member of the Special Purpose Committee on Senedd Reform. However, he resigned from the committee shortly before it had reported. Mr Millar has said that the committee had been given “clear” legal advice the Senedd did not have the power to implement mandatory gender quotas.
Information on the development of Senedd reform policy and political debate in Wales on the reforms can be found the briefings:
- Senedd Research blog, ‘Senedd reform: The story so far’, 24 August 2023
- House of Commons Library, ‘Devolution in Wales: “A process, not an event”’, 31 July 2023
5. UK government powers to ‘veto’ devolved legislation
On 18 January 2023, the UK government used section 35 of the Scotland Act 1998 to ‘veto’ the Gender Recognition Reform (Scotland) Bill. This action, which is being challenged in the courts by the Scottish government, has led to wider arguments about the UK government’s constitutional powers to block laws passed in the devolved legislatures.
5.1 What is a section 35 order and why did the UK government use it?
Section 35 of the Scotland Act 1998 gives the UK secretary of state for Scotland certain powers to block a Scottish bill from becoming law. It can only be used if the Scottish secretary has “reasonable grounds to believe” the legislation:
- would be incompatible with the UK’s international obligations or not in the interests of national defence
- would modify the law on reserved matters in such a way as to have an “adverse effect” on the operation of the law as it applies to reserved matters
Reserved matters are policy areas, such as defence and foreign policy, which are the responsibility of the UK government and UK Parliament.
On 22 December 2022, the Scottish Parliament passed the Gender Recognition Reform (Scotland) Bill. The bill would change the process to get a gender recognition certificate (GRC). Following the vote in Holyrood to pass the bill, the UK government expressed concerns about its potential impact on how the law operated in reserved policy areas, particularly equal opportunities and the Equality Act 2010.
On 16 January 2023, Scottish Secretary Alister Jack said he would make a section 35 order to prevent the bill from receiving royal assent. In an oral statement to the House of Commons the following day, Mr Jack said it was the UK government’s position that the bill met the “adverse effect” test because of the “serious adverse impact, among other things, on the operation of the Equality Act 2010”. On 17 January 2023, the UK government also published a ‘statement of reasons’ on the decision to use section 35 powers. The government said it was concerned that having a different system in Scotland and the rest of the UK would impact single sex associations or clubs and the public sector equality duty and equal pay, while leading to an increase in fraudulent applications for GRCs.
The secretary of state laid the Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 (a section 35 order) on 17 January 2023, and it came into force on 18 January 2023. A section 35 order is subject to the parliamentary negative procedure, which meant it would immediately become and remain law unless rejected by either House of Parliament within 40 sitting days. On 24 January 2023, an early day motion was submitted to formally object to the order. It was supported by 52 MPs. As well as SNP members, Scottish Liberal Democrats, Green, Plaid Cymru, Social Democratic and Labour party MPs also signed the motion. Time was not made for it to be debated within the objection period, which ended on 7 March 2023. Therefore, the order remained in force.
This is the only time a section 35 order has been used.
5.2 How has the Scottish government responded to the section 35 order?
A section 35 order cannot be overturned by the Scottish Parliament. The Scottish government could amend and reconsider the bill or it could challenge the order either by referring the matter to the UK Supreme Court under schedule 6 of the Scotland Act 1998 or through judicial review.
On 19 April 2023, the Scottish government lodged a petition for judicial review with the Court of Session in Scotland. The case, which is being heard by Lady Haldane, began on 19 September 2023.
5.3 What are the concerns over the UK government’s use of its section 35 powers?
The Scottish government argues that the conditions for a section 35 order have not been met. It said the UK government had “not used the power in line” with the 2013 memorandum of understanding between the UK and devolved governments, or as “envisaged” when the Scotland Act 1998 was passed. On the decision to lodge a petition for judicial review, Scottish Cabinet Secretary for Social Justice Shirley Anne Somerville said the use of the order was “unprecedented”, and therefore it was “important to have clarity on the interpretation and scope of the power, and its impact on devolution”. Representing the Scottish government in its case, Lord Advocate Dorothy Bain KC has said that a section 35 order was designed to be “narrowly construed” and should only be used in very specific circumstances as a “last resort”. However, Alister Jack has confirmed the UK government would “robustly defend the decision” to block the bill. Mr Jack has argued that the “use of the power is entirely within the devolution settlement as set out from its inception”.
The UK government’s use of its power to veto Scottish legislation has also caused concern among other parties, notably the Welsh government. The UK government has similar powers to block both Welsh and Northern Irish legislation under section 114 of the Government of Wales Act 2006 and section 14 of the Northern Ireland Act 1998 respectively. While neither of these provisions have been used, Welsh First Minister Mark Drakeford has said the UK’s government’s use of the section 35 order (under the Scotland Act) sets a “very dangerous precedent” for devolution more generally. Both the Counsel General for Wales and the Attorney General for Northern Ireland were listed as interested parties on the Scottish Parliament’s petition for a judicial review. When Mr Drakeford was asked in the Senedd whether the Welsh government would “associate” itself with an appeal of the case to the UK Supreme Court, he said:
Well, we’ve shown a willingness to do that in the past. It’s premature for me to say how we might be able to do that, given that there isn’t a case yet there, but, as the member [Adam Price, leader of Plaid Cymru] will know, we have previously made sure that Welsh interests were represented in the Supreme Court when there were matters of constitutional significance to Wales at stake, and we would certainly be prepared to do that again.
Further information on the Welsh perspective can be found on the Senedd Research blog, ‘Can the UK government block Welsh legislation?’ (20 January 2023). A detailed overview of the wider political reaction and a summary of the debate on the extent of the UK government’s powers to veto bills under section 35 can be found in the House of Commons Library briefing ‘The secretary of state’s veto and the Gender Recognition Reform (Scotland) Bill’ (13 September 2023).
6. Read more
- House of Lords Library, ‘Queen’s Speech 2022: Devolved affairs’, 5 May 2023
- House of Commons Library, ‘Reserved matters in the United Kingdom’, 24 June 2022
Cover image from Wikimedia.
- Department for Levelling Up, Housing and Communities, ‘Levelling up in the United Kingdom’, 2 February 2022. Return to text
- As above, p 234. Return to text
- Department for Levelling Up, Housing and Communities, ‘English devolution accountability framework’, 16 March 2023. Return to text
- House of Commons, ‘Written statement: Levelling up update (HCWS641)’, 16 March 2023. Return to text
- As above. Return to text
- HM Government, ‘West Midlands combined authority trailblazer deeper devolution deal’, 15 March 2023. Return to text
- Department for Levelling Up, Housing and Communities, ‘East Midlands devolution deal’, 30 August 2022. Return to text
- Damien Edgar and Eimear Flanagan, ‘DUP: NI First Minister Paul Givan announces resignation’, BBC News, 3 February 2022. Return to text
- Northern Ireland Office, ‘Secretary of state writes to Northern Ireland civil service on sustainable public finances’, 20 September 2023. Return to text
- HC Hansard, 22 March 2023, col 355; and HC Hansard, 21 June 2023, col 781. Return to text
- Chris Heaton-Harris, ‘We will see how Windsor Framework will work in practice and listen to concerns’, NewsLetter, 30 September 2023; and Enda McClafferty, ‘Windsor Framework: New NI trade rules “will work unbelievably well”’, BBC News, 2 October 2023. Return to text
- Jeffrey Donaldson, ‘The Windsor Framework does not go far enough to repair the damage to Northern Ireland and to restore Stormont’, News Letter, 30 September 2023. Return to text
- HC Hansard, 21 June 2023, col 780. Return to text
- BBC News, ‘Chris Heaton-Harris meets Jayne Brady to discuss revenue raising’, 4 August 2023. Return to text
- HM Government, ‘The Windsor Framework: A new way forward’, 27 February 2023, CP 806, pp 8–9. Return to text
- The United Kingdom Internal Market Bill as originally introduced was controversial because it sought to give ministers the power to unilaterally interpret, disapply or modify parts of the Northern Ireland Protocol, including in relation to the application of export declarations and other exit procedures to goods moving from Great Britain to Northern Ireland. For further information, see: House of Lords Library, ‘United Kingdom Internal Market Bill and the Northern Ireland Protocol: What happened at the Lords committee stage?’, 17 November 2020. Return to text
- Cabinet Office, ‘The border target operating model’, August 2023, CP 935, p 14. Return to text
- As above, p 67. Return to text
- DUP, ‘Conference 2023: Leader’s address’, 14 October 2023. A legal challenge to the original Northern Ireland Protocol brought by unionists argued that the protocol was incompatible with article VI of the Acts of Union 1800, the acts that provided for the Union of Great Britain and Ireland. The trade limb of article VI states that “his Majesty’s subjects of Great Britain and Ireland shall […] be on the same footing […] in respect of trade”. The Supreme Court found that the protocol was not unlawful. It said the protocol is incorporated into UK law by section 7A of the European Union (Withdrawal) Act 2018; article VI is modified to the extent it conflicts with the protocol by section 7A; and in passing the 2018 act and the European Union (Withdrawal Agreement) Act 2020, Parliament authorised the making of the protocol (Supreme Court, ‘Press summary: James Hugh Allister and others (first appellants) and Clifford Peeples (second appellant) v the secretary of state for Northern Ireland and others (respondents),  UKSC 5’, 8 February 2023). Return to text
- House of Lords Secondary Legislation Scrutiny Committee, ‘Submissions from the Democratic Unionist Party (DUP) on the Windsor Framework instruments laid in August and September 2023’, 14 September 2023. Return to text
- HC Hansard, 22 March 2023, cols 354–8. Return to text
- Jonathan McCambridge, ‘Jeffrey Donaldson says there’s “absolutely no dissent” as he hints at Stormont return’, Belfast Live, 12 October 2023. Return to text
- James Crisp, ‘Starmer holds ‘extensive’ DUP talks over Labour plans for closer EU ties’, Telegraph (£), 12 October 2023. Return to text
- DUP, ‘Conference 2023: Leader’s address’, 14 October 2023. Return to text
- Sinn Féin, ‘Renegotiation of Windsor Framework implausible—Kearney’, 24 August 2023. Return to text
- Rebecca Black, ‘Call to ‘redouble’ efforts to resurrect Stormont Assembly’, Independent, 3 October 2023. Return to text
- HC Hansard, 4 September 2023, col 155. Return to text
- ‘Windsor Framework and Northern Ireland Protocol: UUP and TUV sceptical on DUP hopes of resolution and restoration of Stormont within weeks’, News Letter, 12 October 2023. Return to text
- TUV, ‘Addressing the issues with the protocol’, 13 October 2023. Return to text
- Cabinet Office, ‘Baroness Neville-Rolfe letter to Lord Jay on Windsor Framework Implementation (12 October 2023)’, 16 October 2023. Return to text
- HM Government, ‘The Queen’s Speech’, 10 May 2022. Return to text
- Irish Times, ‘Challenge to Troubles legacy act to be heard over five days next month’, 10 October 2023. Return to text
- BBC News, ‘Northern Ireland Troubles: Controversy legacy bill passes through Commons’, 6 September 2023. Return to text
- Claudia Savage, ‘No-one has an alternative to the legacy bill, says Heaton-Harris’, Evening Standard, 11September 2023. Return to text
- HC Hansard, 6 September 2023, col 449. Return to text
- Claudia Savage, ‘No-one has an alternative to the legacy bill, says Heaton-Harris’, Evening Standard, 11 September 2023. Return to text
- Lord Advocate’s Reference  UKSC 31. Return to text
- SNP, ‘Humza Yousaf’s speech at the convention on independence’, 24 June 2023. Return to text
- As above. Return to text
- SNP, ‘Our strategy for winning Scotland’s independence’, 15 October 2023. Return to text
- BBC News, ‘Humza Yousaf dismisses criticism over IndyRef spending’, 29 July 2023. Return to text
- Independent Commission on the Constitutional Future of Wales, ‘Broad objectives’, accessed 27 September 2023. Return to text
- Lord Williams sat in the House of Lords as Archbishop of Canterbury between 2003 and 2012. After standing down as archbishop, he became a life peer in 2013, where he sat on the crossbenches. He retired from the House in 2020. Return to text
- Independent Commission on the Constitutional Future of Wales, ‘Independent Commission on the Constitutional Future of Wales: Interim report’, 6 December 2023. Return to text
- As above, p 8. Return to text
- Independent Commission on the Constitutional Future of Wales, ‘Constitutional options analysis framework’, 3 March 2023. Return to text
- Independent Commission on the Constitutional Future of Wales, ‘Progress report’, April 2023. Return to text
- As above. Return to text
- House of Commons Welsh Affairs Committee, ‘Oral evidence: The Independent Commission on the Constitutional Future of Wales’, 17 May 2023, HC 1361 of session 2022–23, Q31–5. Return to text
- Committee on Senedd Electoral Reform, ‘Senedd reform: The next steps’, September 2020. Return to text
- Special Purpose Committee on Senedd Reform, ‘Reforming our Senedd: A stronger voice for the people of Wales’, 30 May 2022. Return to text
- Senedd Cymru, ‘Plenary’, 8 June 2023, cols 179–440. Return to text
- As above, col 537. Return to text
- Welsh Parliament, ‘Oral statement made in the Senedd: Legislative programme’, 27 June 2023. Return to text
- Welsh Government, ‘Written statement: Update on Senedd reform’, 27 July 2023. Return to text
- Welsh Government, ‘Plans for modern, more representative Senedd published’, 18 September 2023. Return to text
- Senedd Cymru, ‘Plenary’, 27 June 2023, col 141. Return to text
- As above. Return to text
- BBC News, ‘Senedd has no powers for gender quota at elections, claims Tory MS’, 8 June 2023. Return to text
- Scottish Parliament, ‘Gender Recognition Reform (Scotland) Bill’, accessed 26 September 2023. Return to text
- Libby Brooks and Peter Walker, ‘Sunak government threatens to block Scottish gender recognition law’, Guardian, 22 December 2022. Return to text
- Office of the Secretary of State for Scotland, ‘Gender Recognition Reform (Scotland) Bill: Statement from Alister Jack’, 16 January 2023. Return to text
- HC Hansard, 17 January 2023, cols 199–200. Return to text
- Office of the Secretary of Scotland, ‘Statement of reasons related to the use of section 35 of the Scotland Act 1998’, 17 January 2023. Return to text
- House of Commons, ‘Early day motion: ‘Constitutional law’, 24 January 2023, EDM 794. Return to text
- House of Commons Library, ‘The secretary of state’s veto and the Gender Recognition Reform (Scotland) Bill’, 13 September 2023, p 40. Return to text
- BBC News, ‘UK block on Scottish gender reforms unlawful, court hears’, 19 September 2023. Return to text
- Scottish Parliament, ‘Written question: Reference S6W–17198’, 12 April 2023. Return to text
- BBC News, ‘UK block on Scottish gender reforms unlawful, court hears’, 19 September 2023. Return to text
- Katrine Bussey, ‘Gender Bill court fight ‘only means’ of defending Scottish democracy: Yousaf’, Independent, 12 April 2023. Return to text
- David Deans, ‘Gender reform: Drakeford says Scottish law block is dangerous precedent’, BBC News, 17 January 2023. Return to text
- Scottish Government, ‘Gender recognition reform: Section 35 order challenge petition’, as adjusted 9 August 2023. Return to text
- Senedd Cymru, ‘Plenary’, 17 January 2023. Return to text