By Bora Balci
UK CONSTITUTIONAL SYSTEM
UK: COMPOSED OF NATIONS
SCOTLAND WITHIN THE UK
DEVOLUTION FOR SCOTLAND- SCOTLAND ACT 1998
UK CONSTITUTIONAL SYSTEM
United Kingdom, in official terms “ United Kingdom of Great Britain and Northern Ireland” has an unique constitutional structure, which has attracted great attention to analysis among the public lawyers all around the world. As the founding source of so called, “parliamentary” system, UK system has a very basic public structure from the outset and this illusionary observation will definitely fall short of real living mechanism that has several far deep dimensions.
As an introduction to the Constitutional Law or
Public Law studies, it is essential to commence with a description of the called
constitution and then to place the quoted requirements within that particular
jurisdiction by means of legal, institutional, doctrinal aspects. In following
our own instruction, we may very well start with a definition of the
A set of fundamental rules, which defines the basic framework and the functions of the public authority and prescribes the fundamental rights and liberties…
Since the constitution of a country defines the basic
framework and the functions of the public authority on one hand, it is an
historical fact that from the very early stages of the mankind there has been
written references to the power of the ruling person or classes or institutions
in a society. So it was long before the clashes between the public authority and
the civil liberties that there has been rules regulating the state conducts.
However the importance of these written provisions has started to be weighed in
the 18th century as the civil liberties were in the agenda. The
struggle for the expansion of the liberties was against either to a domestic
suppression or to an external power, usually an occupying one. So as one by one
the guarantees have been achieved new states or public authorities have been
established with different institutions and with different political doctrines.
The end of this historical social turmoil established a necessity to enact
special rules with special provisions. That necessity provided the birth of
single written documents called constitutions, with a special status of
hierarchy in the relevant legal system.
In the context of United Kingdom, the last foreign
occupation outside the Britain dates back to 1066 and Britain has not suffer an
occupation or colonialism in the manner of the other nation states which has
written constitutions. Also, despite the small gap in the second half of 17th
century, there has not been any big civil clash that might create conditions
demanding for a single empowered constitutional document. UK has experienced her
social and legal transitions rather in an evolutionary form. So in contrast to
the post-revolutionary construction of the societies UK public legal structure
has evolved during the centuries according to the practical needs of the social
life. The unique social and historical background of the UK legal system never
required a written document to codify the state
conduct. In better words it has required more than one single document for this
purpose but since the system evaluated through the absorption of social
experiences there has not been much a matter of concern to return back and
consequently a need to empower the special legislation to maintain the
guarantees that many other jurisdictions seek. This leads us to the very fact
that the constitution of UK is written. However as Lord Scarman states that
‘today our constitution is not “unwritten” but hidden and difficult to
Consequently in UK there is more than one single document, which can serve for
the needs of a modern single constitution.
This vast and sporadic existence of the UK constitution does not only make a
study on the area difficult but lacks of any particular hierarchy provided for
The historical and social realities of the UK have
culminated with a vast number of statutes of constitutional importance. For a
constitutional study to find the place of the devolution scheme in this
framework it is required to understand the UK public law machinery rather than
trying to cover all the constitutional statutes. The relatively stable
development of the UK constitutional understanding stands on the relatively
stable institutions and fundamental principles that enable the system to improve
regarding the social needs.
The historical and political fact for the UK
legislation is the stable concept of parliament as a founding institution, which
exists over centuries and a constructing principle of “legislative
supremacy” developed again in centuries.
As it is observed above there is more than a single
legal instrument created through out the history of Britain until today to value
with constitutional importance. The statutes enacted accordingly from an
institution of “King/Queen in Parliament”, which is composed of Crown, House
of Lords and House of Lords sitting at Westminster, London. The history of the
English parliament dates back to 1265, the era of Edward I. The parliament as an
established institution clearly appeared in the 15th century.
Britain, apart from the Crownwell experience, never tried a republican system.
The question has not been much on the existence of monarchy but rather how to
restrict powers of the crown until the beginning of the 18th century.
A threat of monarchist tyranny has been saved for and all after the 1689 Bill of
Rights for England and 1689 Claim of Rights of Scotland. 18th century
can be recorded a century for the developments of responsible government in
addition to the fundamental developments which founded the United Kingdom of
Great Britain. 19th and 20th centuries have witnessed the
power struggle between the House of Lords and the House of Commons, which ended
with the clear victory of the Commons finally with the House of Lords Act 1999.
Although there has been a great power struggle within
the constitutional framework of the United Kingdom for centuries, these have
been mainly focused on one institution: the “Crown in Parliament”. The
restrictions upon the exercise of Royal Prerogatives, for instance, were an
aspect of the parliamentary mechanism because the legislation in UK does not
necessarily mean only the House of Commons. It is a complicated system that is
composed of different legs. So while the balance in the parliament has been
changing, the concept of parliament has been left intact or positively
highlighted in the era towards democracy. The power struggle between the Commons
and the Lords also has experienced the same kind of form, which has not impaired
the notion of parliament.
Consequently it is a clear constitutional fact that
throughout the history of UK the “Crown in Parliament” has been the supreme
legislative body. Restructuring the monarchism on different stages did not break
the chain of the endorsing authority of the parliament. This endorsement has
been conducted either in new acts, statutes or in implicit or explicit approval
of the common law or the constitutional practises.
In Diceyan terminology, “the legislative
sovereignty”, or more reliable reference for today, “legislative
supremacy” has been the fundamental source for the UK legal system. This
doctrine stands on a number of principles, which are inevitable to the nature of
The first one is the founding principle that has
enabled the British Constitutional system evolved through the centuries: “No
parliament can bind its successors!” It must be also followed accordingly that
no parliament can be bound by its predecessors This principle provides the UK
system to adopt herself to the daily difficulties and the expectations without
any restrictions on it. The cited principle is very well established with the
non-hierarchical nature of legislation. Although some of the legislation
apparently has more constitutional importance, this could be related to the
political importance of the given legislation rather than envisaging any kind of
restriction for the coming parliaments. The other very crucial aspect of the
doctrine is the lack of a judicial review of the parliamentary legislation. This
is not only a doctrinal fact. There have been several attempts to challenge the
legislation of the parliament before the judicial organs but failed so far due
to the lack of any provision within UK Constitutional system for the judicial
review of the statutes.
Many of the fundamental rules have been subject to
either amendment or repealing so far. Bearing a very highly constitutional
profile, Bill of Rights for instance, could not escape to be amended with the
enactment of the Defamation Act 1996. A recent example can be given with the
House of Lords Act 1999, which allegedly infringed the safeguards of the Treaty
The hierarchy of the statutes has been submitted
before the courts to endorse some legislation higher than other enactment. This
is of particular importance regarding the nature of the Treaty of Union in 1707
between England and Scotland as will be described below in detail. In theory the
Treaty of Union in 1707 brought the two countries, England and Scotland together
and established a new country with a new parliament. The treaty also provided
special privileges to Scotland to meet the concerns of Scottish people. For
instance, the Church of Scotland has been prescribed as the dominant Church of
Scotland. Also, the high courts of Scotland have been given power to conduct
their work after the union. However following these several privileges there has
been no instrument to limit the powers of the Great Britain parliament. So it is
questioned whether the provisions of the Treaty of Union are rather moral
restrictions upon the new parliament for the Great Britain or as a founding
legislation they have more importance to be protected comparing to the other
These questions were submitted in two very well known
cases of MacCormick v. Lord Advocate
and the Gibson v. Lord Advocate.
In the case of MaCormick v. Lord Advocate, Lord President Cooper suggests that,
it is difficult to understand why the new UK parliament after the union has
inherited a peculiar institution of English parliament that is the unlimited
sovereignty of the parliament. He
states that such a principle did not exist in the previous Scottish parliament.
However the Lord President clearly hesitates when it comes to review the
legislation asserting that there is no authority of the judiciary to review the
legislation in terms of compatibility to the fundamental laws. In Gibson case
where a judicial challenge has been introduced about the incompatibility of the
European Communities Act to the Treaty of Union, the court concluded that
categorisation of the legislation to the needs of the subjects is entirely in
the discretion of the parliament. So the safeguards within a particular
legislation are moral issues rather than legal limitation. This argument
deserves to be strengthened by the fact that there is a lack of judicial review
in the system.
Although it is asserted that the doctrine of
legislative supremacy might be accompanied by some other doctrinal principles,
namely separation of powers, equality, rule of law, etc the parliament on
several occasions did not hesitate to legislate on controversial issues. Some
indemnity acts or the retrospective legislation, which has been enacted in the
parliament, is the clear illustration of the legislative supremacy, and in
theory the superior meaning allocated to the doctrine.
UK: COMPOSED OF NATIONS
United Kingdom of Great Britain and Northern Ireland
is a unitary state composed of several nations and countries. The common error
to refer UK as England must be corrected here with a brief description of UK
United Kingdom is composed of England, Wales,
Scotland and Northern Ireland.
The joinder of Wales to England was not so much a
union as an absorption.
Much of today’s Wales was conquered in the end of 13th century. She
is united with England in 1536 with an Act of the English Parliament. The Wales
and Berwick Act 1746 provided that where the expression “ England” was used
in an act of parliament, this should be taken to include the dominion of Wales
and the town of Berwick on Tweed. This has been ceased only in 1967 the Welsh
Language Act. In 1968 the post of Secretary of State for Wales was established
and the welsh Office emerged as a department of the UK government. In 1998,
following a referendum, the
Government of Wales Act has provided an Assembly for Wales however with only a
power of secondary legislation. The Assembly is composed of 60 members. 40
members are elected on a single constituency basis and 20 of them by the list
Ireland and the Great Britain have been united under
the Union with Ireland Act 1800, and the act in the Irish Parliament
respectively. However Ireland was not ruled fairly and cultural, economic and
religious differences have caused social disturbances in the country. Eventually
home-rule was provided for the country in 1914 but enforcement has been
suspended due to the 1st World War. Following the uprisings of the
nationalist movement of Sinn Fein, the island basically divided in two separate
parts. The South Ireland, which is dominated by Catholics reached a status of
Irish Free State in 1922 as a member of Commonwealth and declared her withdrawal
from the Commonwealth in 1949. Northern Ireland where is dominated with the
Protestant communities and an important ratio of Catholic minorities lived
another destiny. The North on the other hand -six of the nine counties
are provided a home-rule until 1972 when the social disturbances between the
loyalist and nationalists have been unbearable. Subsequently the UK suspended of
the Northern Ireland Constitution and applied a direct rule from Westminster.
The Good Friday Agreement brought a new dimension to the country which is
incorporated with the Northern Ireland Act 1998. Accordingly a devolved Assembly
with legislative powers has been established with 108 members. The Assembly is
elected under the single transferable vote system of proportional
representation. Special voting systems are prescribed in the standing orders of
the Assembly to meet the basic qualification for the cross-community approval.
England is the largest country within the United
Kingdom. This usually causes a wrong impression that UK is equal to England. 85%
of the population of UK lives in England and England covers a territory of
almost 3/5 of the UK territory.
England has no protected legal status within the
union. A secretary of state for England is not designed in the cabinet for
instance, or there is no devolved body of legislative authority to rule merely
on English matters.
However the devolution era and the Labour Governments
agenda have also some space for England. The Regional Development Agencies Act
1998 must be quoted for this purpose. The statute provided England to be divided
into 9 regions, including London. A white paper set out government policy as
being to move in due course to directly elected regional assemblies, as and when
justified by local demand. The implication was that the areas which most
actively sought elected assemblies might be given them first, without a uniform
pattern being imposed.
Devolution experiences for Scotland and Wales can be interesting examples for
England as well as the Greater London Authority Act 1999 that enables a directly
elected major with London Assembly.
As it is the main topic of the essay Scotland will be
discussed in detail below.
SCOTLAND WITHIN THE UK
Before the Treaty of Union
Four different kingdoms living on the today’s
territory of Scotland were almost united under the same kingdom in the 11th
century. Unlike Ireland and Wales Scotland has been able to maintain her
independence. The final defeat of the English army in the battle of Bannockburn
in 1314 strengthened the Scottish Independence against England.
There has been always a tension between the relations
and Henry VII’s attempt to marry his daughter Margaret Tudor with the Scottish
King James the IV started the events rather accidentally to the unification. It
is because this marriage enabled the English Crown enthroned by the James VI of
Scotland as James I of England in 1603. This is only personal union of the
Crowns. England and Scotland has carried to exist with their own legal
establishments. Although there has been several attempts to bring the countries
together and united, they have all failed for different reasons but for sure the
lack of trust to English was a primary concern. However there were small steps
taken forward in the meantime. Trade restrictions have been abolished and a
single citizenship has been introduced throughout the Britain.
On the other hand the developments on the religious
sphere had important impacts to bring these countries closer. With the apparent
effect of Calvinism Th Scotland Church has also distanced herself from the
Vatican Church and established the Presbyterian Protestant Church which was
expected to be more align to the creed of the Church of England, which has also
concerns towards Catholicism and particularly France with the religious agenda
in her policies to expand and challenge the supremacy of England in overseas.
The civil war in the second half of the 17th
century brought the centuries closer to establish a limited monarchy and save
the religious fundamentals of the society. The Bill of Rights 1689 for England
and Claim of Rights 1689 for Scotland resulted with the restriction of the
monarchy that is responsible to the parliament. The existence of two parliaments
for one restricted crown appeared to be bizarre in every sense.
England’s colonial expansion was no doubt a vast
economic interest for Scotland but has never been sure to relinquishing the
sovereignty in return of these economic benefits. On occasions even just before
the Treaty of Union the two countries were on the brink of war, again for the
trading restrictions they have applied towards each other.
In the end the two parliaments asked the Queen to
appoint commissioners on their behalf for a treaty of union. The task was
completed in nine weeks. It was a treaty of compromise. Scotland bear the
relinquishment her sovereignty in the new state and the new parliament in London
and the Act of Settlement 1700 for enabling the Crown to the Hannoverian
dynasty. In return Scotland has received certain privileges in the treaty which
safeguards the domination of the Presbyterian Church in Scotland and the
functions and existence of the Court of Session and High Court of Justiciary. In
addition England promised to abolish any restriction to Scotland for free trade.
The treaty brought about an “incorporating”
union in that both countries merged their legislatures and identity.
The Government of Scotland Before Devolution
The administration of has been very much under the
shadow of the London parliament. However it must be noted that Westminster has
usually been careful in conducting her work with respect to the Treaty of Union
despite the doctrine of legislative supremacy. The amendments or implied repeals
have been enacted for positive purposes to develop the law of Scotland or the
The legislative supremacy is clearly illustrated in the Act of Union in favour
of the Great Britain Parliament with enabling the alteration of the public law
of the new country according to the her free will. The alteration of the private
law of the Scottish subjects on the other hand designed as conditional to say
that the necessity of “evident utility of the subjects of Scotland”. However
it is entirely left to the discretion of the parliament to test this condition,
particularly with the lack of any judicial review of legislation provided in the
Lord Advocate held an office, also serving as a Law
Officer of the Crown in Scotland. The changes of the Scottish Administration has
started to evolve with the influence of the Home rule question for Ireland. A
new system of administration was instituted in 1885 when a Secretary for
Scotland was appointed as ministerial head of a Scottish Office in Whitehall.
Since 1892, the wartime apart, relevant minister had a seat in the cabinet. In
1926 the status of the ministry has been increased to the level of “Secretary
The functions and the importance of the Scottish
Office gradually increased and in 1998 the Secretary of State were heading a
team of five subordinate ministers and employing ten thousand civil servants.
She was responsible for agriculture and fisheries, the arts, crofting,
education, enterprise and training, the environment, the fire service, forestry,
the health, housing, industry, criminal justice and some legal matters, local
government, prisons, roads, rural and urban development, social work, sport,
transport, tourism and town and country planning and some public corporations
operating in Scotland.
It is accepted that the ministerial post for a
Secretary of State for Scotland has been a benefit for Scotland. It has provided
a direct voice for the Scottish concerns in the cabinet. However whether the
voice of the Secretary of State has been heard or not is another issue. This has
especially been problematic when the Westminster Parliament majority differs
from the majority of Scottish MPs. This was the case when long ruling of the
Conservative Party in ‘80s and ‘90s has lacked the support of Scotland in
contrast to England and rest of Britain. So the function of a Secretary of State
for Scotland could politically be very much restricted
DEVOLUTION FOR SCOTLAND- SCOTLAND ACT 1998
The History of the Devolution Procedure
On the way to devolution Report of the Royal
Commission on the Constitution must be quoted. Following the signs of asserting
more about national identities, Labour government recognised the necessity to
assess the constitutional structure of the UK with possible foreseeing
developments. The Royal Commission appointed in 1969 and produced her report in
1973 and known as Kilbrandon Report due to the Scottish judge chair of the
Commission. The report adopted a broad meaning of the term devolution so as to
include both the “deconcentration” of functions within the governmental
hierarchy, which it termed “administrative devolution” and the more advanced
devolution which involves a transfer of central government powers to regional
bodies, although without the “relinquishment of sovereignty”. However this
advanced devolution can differ whether being legislative devolution or
executive. In the first one some sort primary legislation function would be
allocated where in the second one the transfer would be more on subordinate
functions. All the commissioners were believing that the central government were
overloaded. However the measures to develop the situation differ among the
Commissioners. Nevertheless the strongest agreement appeared to be around the
idea of legislative devolution for Scotland.
The Labour Party put the issue to her agenda and
following a bargain with Liberal Democrats introduced the relevant bills for
legislative devolution for Scotland and executive devolution for Wales. The
bills passed the parliament and received the royal assent and enacted. However
as required by their provisions both acts were submitted to the referendums and
since the stipulated 40per cent threshold was not achieved in either country,
the Acts were repealed as provided, by Orders in Council.
Despite the loss of the Acts the devolution remained
the priority in public debate
in Scotland and Wales. And the Labour Party after a brief period of hesitation,
allocated a primary importance to her commitment to devolution in the political
manifesto. So after the general elections of 1997 the devolution was again on
the track. The proposals of the government presented on two different White
Papers. Unlike the experience in 1978, the government first submitted her
proposals to referendum before legislation in accordance with the Referendums
(Scotland and Wales) Act 1997. In Scotland in a turnout of 60.4 per cent, 74.3
per cent of those voting agreed that there should be a Scottish Parliament, and
63.5 per cent also voted the Parliament should have tax –varying powers. The
Welsh electorate on the other hand voted in favour of a executive devolution
with a Welsh Assembly in a turnout of 50 per cent, 50.3 per cent of those voting
Following the referendums the Scotland Bill and the
Government of Wales Bill were introduced to the House of Commons in 1997 and
enacted in 1998. Northern Ireland Act was also enacted in 1998 respectively.
The essential features of the devolution are to be
found in the relative enacted statutes but also they are complemented by a
variety of more or less formal arrangements, principally a series of agreements
between the United Kingdom Government and the devolved administrations which set
out the principles on which they will conduct their mutual relations.
The agreements “are not legally binding but there is nevertheless a clear
expectation that the spirit and letter will be observed by all parties.”
Scotland Act 1998
The provisions of the Scotland Act provide legal
framework for the Scottish devolution. The devolution for Scotland has all the
dimensions of the devolution namely, administrative, legislative and executive.
Administrative devolution continues to exist for
Scotland since the Secretary of State for Scotland has still her seat in the
United Kingdom Government. She has lost many of her ministerial functions
related to the executive devolution but nevertheless some important new duties
proscribed for her office in the Act. These are rather political scrutiny of the
devolution especially with respect to reserved matters.
For the purpose of legislative devolution, a Scottish
Parliament is been established by the Act. Scottish Parliament is composed of
129 members (MSPs). It is elected by the Additional Member system, designed to
achieve a degree of proportionality between votes cast and seats won through a
combination of the plurality or “first past the post” with a regional list
system. 73 MSPs are elected from the same constituencies of the Westminster
Also seven additional members are elected from eight regions.
So in a Scottish election there will be two votes to cast, one for the single
constituency one for the list of a political party. The parliament and the
elections are designed to prevent any domination of a single party. Labour Party
seems to sacrificy a possible advantageous position from an outcome of an only
“first past the post” system, since Scotland is a very stronghold of the
Labour. They do so in favour of a plural and competing democracy with a
compromised election system. This feature of the election system has been
illustrated in both of the elections of 1999 and 2003, which have both created
coalition governments. That is also to say that British political system
experiences the first time the notion of coalition government with a regular
compromised political agenda.
Parliament term of office is fixed and four years.
However the two thirds of the parliament may decide to dissolve or the a
parliamentary deadlock in the choice of the First Minister can bring the
The feature of legislative devolution is demonstrated
in section 5 of the Scotland Act. The parliament has limited powers. The
subjects of the legislation are divided in two categories; reserved and
devolved. Section 5 particularly refers to the reserved matters, which will be
retained in the competence of Westminster United Kingdom Parliament. Those
matters that are not reserved being generally devolved.
The changes to the list of deserved matters may be made by Order in council
under section of the 30 of the Act. This can be done only if the Westminster and
Scottish Parliaments agree on the change, for the Order in Council has to be
approved in draft by both Houses at Westminster and by the Scottish Parliament.
Scotland Act under section 29 places certain
restrictions on the competence of the Scottish Parliament. In addition to the
restriction that an Act of the Parliament may not relate to reserved matters and
cannot modify the Scotland itself and also the Human Rights Act 1998 and
European Communities law draw the boundaries of the Scottish legislation.
Parliament can not include provisions to any of her enactment that would be
incompatible with the Convention right by means of Human Rights Act 1998 or
Finally it must be noted that The Parliament has
power to vary the basic rate of United Kingdom income tax in Scotland by up to
3p. Apart from that it must be remembered that finance for Scotland is provided
in a block grant voted by the Westminster Parliament and paid by the Secretary
of state for Scotland.
Also a special procedure is provided for the Scottish
Parliament that helps the Parliament to exercise her functions within the limits
of devolved area.
Legislative devolution provided for the Scottish
Parliament can not limit the competence of the UK Parliament to legislate for
Scotland under section 28.
The third layer of the devolution for Scotland rests
with the executive devolution. For this purpose there is a Scottish Executive
established in the Scotland Act. It exercises executive functions in devolved
matters. The Scottish Executive is composed of a First Minister, ministers
appointed by the First Minister and the Scottish Law Officers. The executive
works like a cabinet-style and cabinet members are both collectively and
individually responsible to the Parliament. Similar to the restrictions on the
legislation, the Scottish Executive is bound to implement European Community
obligations in the devolved area and restricted to act incompatible to the
Community. Same restriction applies to the Executive exercise subject to the
compatibility to the Human Rights Act 1998. Subordinate legislation or other
acts of the Scottish Executive must be compatible with Convention rights under
the Human Rights Act 1998. (Section 57/2).
A very imported feature of the devolution is the
judicial scrutiny that is provided to safeguard the boundaries of the Scotland
Act 1998. In addition to the procedural safeguards provided for the Scottish
Parliament, there are other provisions as judicial remedies for the Acts of the
Parliament. They include measures both before the enactment and after.
Despite of the procedural safeguards for a bill to be
introduced according to the Scotland Act and within the boundaries of the
devolution, there might be instances where a bill is presented to the Parliament
involves concerns being ultra vires. It is then the Advocate General for
Scotland, Lord Advocate or the Attorney-General may refer the question in four
weeks to the Judicial Committee of the Privy Council. It is then the Judicial
Committee who decides on the legislative competence of the Parliament about the
particular issue. The outcome of the Judicial Committee’s decision is binding.
Questions of incompetence, termed as devolution
issues may be raised after the enactment of the legislation. After a bill has
received the Royal Assent and become an Act of the Scottish Parliament, a
devolution issue can be raised before the Scottish Courts or elsewhere in UK.
Also the appropriate law officers in the countries of the UK can bring the cases
before any of the courts after enactment. In general terms the Judicial
Committee is the final court of appeal on devolution issues.
United Kingdom is an unique example in the
constitutional law studies all around the world. That is because there is not
any single document which has been entrenched in legal system to be referred as
Constitution in UK. Rather than a single document there are hundreds of statutes
of the Parliament which is composed of Queen, House of Lords and House of
Commons which the latter bares the weight of the legislation. These documents
and Statutes are usually the practical responses to the social and political
needs of the society. So the UK Constitution appears to be an evolving character
depending on some doctrines and fundamental institution.
One of the fundamental institution- the only supreme
by means of constitutional importance- is the parliament. The notion of
parliament existed through the centuries in Britain. Although the power struggle
in the parliaments has varied in the history, the concept remained intact. In
pluralistic democracy there is no doubt that the understanding of parliament
hugely depends on the power of the House of Commons and the majority of the
House as the ruling party.
The notion of the parliament exists in a society who
has not suffered big turmoil in her history. This notion has been supported by
several doctrines. One of them is very fundamental the principle of
“legislative supremacy”. The doctrine of legislative supremacy provided the
parliaments to legislate on any matter where they deem necessary without any
restrictions. So we can reach the principle that a parliament can not bind its
This institutional and doctrinal framework of the
British Constitution continue to modify itself to the daily necessities. One
question remains whether there is a challenge to the British Constitutional
understanding with the introduction of devolution scheme throughout the United
Devolution for Scotland occupies a special
importance. For one reason, it is a historical fact that Scotland from the very
beginning of the Union enjoyed a level of protection regarding her legal system
and some nationally cherished institutions, namely the Church of Scotland. In
addition to that very legal existence of Scottish legal notion before the
devolution with several institutions, the devolution scheme for Scotland
provided an elected Parliament for Scotland with legislative powers on devolved
areas. So it is not only the parliamentary supremacy to be tested but also the
unitary state of UK is experiencing of a very new concept of devolution.
However a mere legal analysis will not be sufficient.
Because from the outset United Kingdom is still an unitary state. Scotland Act
which constructs the devolution for Scotland is only a piece of legislation
without any entrenchment provided against the central government. Devolution is
not placed in a federal constitution which could draw the boundaries of absolute
legislation areas clearly for central government and federal states. Since the
only constitutional doctrine to be referred is “the supremacy of the
parliament” and the cited Statute is naturally a legislation of this
parliament then successor parliaments will not find their obstacles to intervene
the devolved areas in legal context but rather in politics. To provide any
hesitation and as an unnecessary provision in the Scotland Act it also clearly
states that UK Parliament retains the competence to legislate in all matters for
Scotland. So it may be concluded that without the entrenchment of this
legislation within the United Kingdom, it is difficult to refer the scheme of
devolution as federalism or the end of the supremacy of the Westminster
Parliament in the legal context. The political impact of the progress deserves
to be observed in detail.
However the framework for the Scotland Act and its
related institutions and legal rules resembles a construction of a constitution.
This is not a constitution for UK but the question remains whether not for the
Scotland? Even in today’s constitutions it is possible to find some articles
which can not be altered. Scotland appears to be bound by Westminster Parliament
on reserved matters. However the broadness of the devolved sphere and the
provisions provided for the judicial review of the implementation of the
Scotland Act, especially before the Judicial Committee recalls the very basic
Supreme or Constitutional Courts provided to do the same business.
Consequently it must be stated that legal supremacy
of the parliament is intact even in the era of devolution. The political aspects
of the scheme is quite dynamic. Rather than a constitutional challenge to the UK
constitution, devolution for Scotland opens a path directly to Scotland which
regulates important part of the public and civil law. It is quite an early stage
to refer this document as constitution since Scotland is not the sovereign in
her system but at least deserves to be treated an evolving progress either
strengthen the union or institutionally dissolute the United Kingdom.
Bradley, A.W. and Ewing, K.D. Constitutional and
Administrative Law, 13th Edition 2003.
Brazier, R. Constitutional Reform: Re-Shaping the
British Political System, 2nd Edition.
Dicey, A.V. the Law of the Constitution , 10nd
Himsworth, C.M.G. and Munro, C.R. Scotland Act 1998
Munro, C.R. Studies in Constitutional Law,
Turpin, C. British Government and the Constitution, 5th
Edition, Butterworths, 2002
(Official web site of the United Kingdom)
(Official web site of the Scottish Parliament)
(official web site of the Welsh Assembly)
(Official web site of the Northern Ireland Assembly)
(official Web site of the Judicial Committee of Privy
(Official web site of the Labour Party)
(Official web site of the Conservative Party)
(Official web site of the Liberal Democrat Party)
(Official Web site of the Scottish National Party)
It must be bear in mind that the universal understanding of the concept “state” and consequently the “citizenship” fails to receive the same attention in the UK legal system. It is rather formulated in the frame of “the Crown”. It is only a 20th century development for UK to instruct these phrases next to the Crown and his/her subjects.
 “Why Britain needs a written constitution?” , 1992, p.4
 Albert P Blaustein and Gisbert H Flanz in the Constitutions of the World (1992), present us a with a list of constitutional statutes of the United Kingdom, which names over 300 statutes, ranging from Magna Carta 1215 and Bill of Rights 1689 to more recent statutes such as the Parliament Acts 1911 and 1949, the Crown Proceedings Act 1947, the Parliamentary Commissioner Act 1967, the European Communities Act 1972, the Race Relations Act 1976 and the British Nationality Act 1981.
 SC 396, 1953
 SLT 134, 1975.
 Ex: War Damage Act 1965(For the case Burmah Oil Co v. Lord Advocate(1965) AC75: or the retrospective effects of the The Immigration Act 1971.
 Munro, Colin R. Studies in Constitutional Law, Sec. Ed. Butterworths, 1999 p.19
 Northern Ireland is usually referred as Ulster. However it must be noted that to provide a majority for the Protestant communities in the North, it is specially designed to exclude three counties in the Ulster while drawing the boundaries of Northern Ireland.
 Munro, Colin R. Studies in Constitutional Law, Sec. Ed. Butterworths, 1999 p.53
Munro, Colin R. Studies in Constitutional Law, Sec. Ed. Butterworths, 1999 p.24
 An example can be the repealing of the provision in the Act of Union, which obliges the professors of Scottish Universities to make submission to Presbyterianism in Universities Act(Scotland) 1853 and 1932.
 In 1989 A Scottish Constitutional Convention assembled, composed of all Scottish Labour and Liberal Democrat MPs together with representatives of local authorities, churches, trade unions and other bodies.
 Turpin, Colin, British Government and the Constitution 5th Ed. , Butterworths, 2002, p.265
 Scotland Office Departmental Report, Cm 5120/2001, par. 3.2
 Ex: Section 35 of the Scotland Act states that Secretary of State may make an order prohibiting the Presiding Officer of the Parliament from submitting a bill for Royal Assent, if she has reasonable grounds to believe that its provisions would be incompatible with international obligations or the interests of defence or national security, or would adversely affect the operation of the law in reserved matters.
 The Constituency of the islands Shetney and Orkland is divided in the Scottish elections so there is one more single constituency in the Scottish elections than the Westminster elections.
 These regions are designed in accordance with the European Parliament elections.
 Reserved matters include, the constitutional framework, international relations and the European Communities, defence and the armed forces, fiscal, economic and monetary policy, electoral arrangements, immigration and nationality, national security and official secrets, competition policy, consumer protection, ownership and exploitation of coal, oil and gas, nuclear energy, social security, employment and industrial relations, broadcasting, equal opportunities.