The Nature of Devolution in Scotland and Northern Ireland: Key Issues of Responsibility and Control
by Brigid Hadfield
Paragraph 20 refers to the role of the Executive Committee in agreeing and reviewing annually an agreed budget (78) linked to policies and programmes (subject to cross community Assembly approval). These are included by reference in s 20 of the Act which establishes the Executive Committee. Paragraph 24 of the Agreement states that Ministers 'have full executive authority in their respective areas of authority, within any broad programme agreed by the Executive Committee' and endorsed by the Assembly and this requirement is essentially found reflected in that part of the Pledge of Office, which requires a Minister ' to participate with colleagues in the preparation of a programme for government', to operate within the framework of that programme when agreed within the Executive Committee and endorsed by the Assembly', and 'to support, and act in accordance with, all decisions of the Executive Committee and Assembly'. These provisions are designed to secure some collectivity into what might otherwise be highly fragmented decision making, given that a Minister will owe his or her office to party support in the Assembly rather than as a 'gift' from the FM and DFM (79). The way in which internal difficulties are resolved, therefore is of considerable importance both as an issue in its own right as well as with regard to London-Belfast relations. The amendments to the Northern Ireland Bill removing the Westminster government's prorogation and early dissolution powers not only place the responsibility for resolving these matters where (arguably) it most appropriately belongs - on the devolved government and legislature - they also heighten the significance of the power to call an extraordinary general election. This power - under both the 1998 Acts - makes much more real the threat of a resignation for both Scotland's first Minister and Northern Ireland's FM and DFM. In the absence of acceptable replacements (and the majority/large parties may have agreed with the resignation, thus providing no alternative names) a general election becomes inevitable. This power may be ''threatened' both with regard to internal opponents(within the same party, or of a different party within the executive) or with regard to perceived and unwelcome 'interference' from London. Such tensions of the latter type may arise in a variety of ways, but a comparison of the provisions of the Scotland Act and of the Northern Ireland Act concerning the giving of the Royal Assent to devolved Acts may provide one scenario. Under s 28 of the Scotland Act a Bill of the Scottish Parliament becomes law when it has been passed by the Scottish Parliament and received the Royal Assent, which is to be signified by Letters Patent under the Scottish Seal. Under the Northern Ireland Act, where there is no direct access to the Queen by the Northern Ireland Executive, individually dor collectively, it is the Secretary of State who submits the Bill for Royal Assent (80). The vires of devolved legislation can and will be dealt with through, for example, pre-legislative scrutiny and by the courts; consequently the question of the Queen being advised by the Westminster government to withhold her Assent from an (intra vires) devolved Bill is likely to arise only on policy grounds - for example, if, as Brazier suggests 'the Bill was repugnant to UK interests' (81). In such a situation (and if it reaches that stage (82) a harmonious resolution seems somewhat unlikely) the threat of resignation from the devolved government, or from the First Minister of FM and/or DFM, cannot be discounted. Politicians, at least in Northern Ireland, will be well aware of the (successful) threat of the Unionist government in 1922 to resign when Westminster (through their power to 'advise' the Governor) (83) was inclined to withhold' the Royal Assent to a Bill which was within the devolved Parliament's power but which had considerable political repercussions (84). The Westminster government, aware that had there been a general election in Northern Ireland a Unionist government would have been re
turned to power, advised that the Royal Assent be given. It is wrong to assume that the current situations in Scotland and in Northern Ireland are identical to that prevailing in 1922, but the lesson none the less is there for the taking.
Thus the Westminster government and Parliament through some (85) of the provisions contained in the devolved legislation (86) have imposed certain constraints on how that system may evolve - not least through the electoral systems to be employed and the formation of the governments. The silences or omissions in the legislation however, especially on the relations between the devolved institutions and Westminster, are of equal significance in terms of our understanding of the nature of devolution. It is also interesting to consider the extent to which the respective Acts now proceed on the basis of trust and expectation of success.
60. see also s 76. For a consideration of the equivalent provisions in the Northern Ireland Constitution Act 1973, see B. Hadfield "The NI Constitution Act - lessons for minority rights" in P Cumper and S Wheatley (eds) Minority Rights in the New Europe (1999) 129-146. Under the 1998 Act, the new NI Human Rights Commission may, in certain circumstances, give assistance to a person wishing to proceed under, inter alia s 76.
61. Section 15. |
