Features - Devolution in the United Kingdom: A Revolution on Online Legal ResearchBy Stephen Young, Published on June 1, 2001
Stephen Young is the Collection Management Librarian at The University of Texas Tarlton Law Library. Stephen has written a number of articles in the area of U.K. legal research and teaches an advanced legal research course on the subject at the University of Texas School of Law.
Since 1998 the constitutional structure of the United Kingdom has undergone dramatic changes. Through the process of devolution certain powers formally vested in the U.K. Parliament have been transferred to new legislative bodies located in Scotland, Northern Ireland and Wales. These legislative bodies are responsible for promulgating primary and/or delegated legislation in a wide variety of areas. For the legal researcher the process of locating primary or delegated legislation extending to, or exclusive to these regions has been revolutionized by these changes. This article will outline the process of devolution and discuss how it has impacted online legal research for Scotland, Wales and Northern Ireland.
The Process of Devolution
Devolution refers to the ‘transfer and subsequent sharing of powers between institutions of government within a limited framework set out in legislation.’ The process of devolution in the United Kingdom is neither new nor necessarily complete. Attempts to provide Scotland, Northern Ireland and Wales with degrees of legislative autonomy have existed in various forms since the 19th Century, however the present Labour government has been the first government to succeed in providing all of these countries with home-rule. Moreover, there is no reason to suggest that the changes that we have witnessed over the past 3 years will not continue. It is certainly possible that the powers devolved to these regions may be extended or curtailed, as has already been the case in Northern Ireland.
The "New Labour" government, formed by Prime Minister Tony Blair in 1997, came to power with a mandate to reform the constitutional structure of the United Kingdom. A major component of this ‘modernization’ of the Constitution was the transfer of devolved powers to Scotland, Northern Ireland and Wales. It would be incorrect to assume that the level of devolved powers for each of these countries was identical. Through the provisions outlined in three key pieces of legislation, The Scotland Act 1998, The Government of Wales Act 1998, and The Northern Ireland Act 1998, differing degrees of home-rule were defined for each region. As a result of these acts, and many subsequent pieces of delegated legislation, Scotland and Northern Ireland now experience a traditional form of devolved government consisting of legislative and executive branches. Wales' experience with devolution is more limited. At the present time there is no primary legislation authority granted to Wales. A more complete and scholarly discussion of the process of devolution can be found in Devolution by Noreen Burrows (Sweet & Maxwell, 2000).
Devolution for Scotland
"There shall be a Scottish Parliament." With this simple phrase The Scotland Act 1998 (s.1 ss.1) brought to fruition the desire by the majority of the electorate in Scotland for the return to the region of a fully functioning legislative body. For the first time since the 1707 Act of Union Scotland had a legislative body capable of promulgating primary legislation. The government’s policy of providing Scotland with its own parliament was outlined in the July 1997 White Paper, “Scotland’s Parliament.” In order to ensure popular support for its devolution policies the government quickly enacted the Referendums Act 1997 culminating in a September 1997 referendum in Scotland and Wales. The result of the referendum was emphatic support for not only a Scottish parliament (74.3% in favor) but also the ability of the parliament to vary taxes (63.5% in favor).
Following the referendum the government continued to place devolution for Scotland on the fast track. In December of the same year the government introduced the Scotland Bill into the House of Commons. The large parliamentary majority enjoyed by the Labour government assured successful passage of the legislation through both houses. The bill received the Royal Assent in November 1998 and became The Scotland Act 1998.
With the passage of The Scotland Act 1998 the origins and availability of legislation, primary and delegated, affecting Scotland have changed. Prior to July 1, 1999 (when the Act came into force) primary legislation for the region was solely the responsibility of the U.K. Parliament. This legislation was either in the form of national legislation that extended to the region, as defined by the extent clause at the end of the act, or legislation specific to the region, identifiable by the use of the word 'Scotland' in parenthesis before the word 'Act.'
Availability of U.K. parliamentary material has traditionally been through a variety of publications: The Public & General Acts and Measures published by The Stationery Office, The Law Reports Statutes, Current Law Statutes, and Statutes In Force. It should be noted that Halsbury’s Statutes of England & Wales does not contain the text of acts, or sections of acts, extending only to Scotland. Her Majesty’s Stationery Office (H.M.S.O.) has made available full text copies of U.K. acts of Parliament dating back to 1988 on its U.K. Legislation web site. The same material is also available on the British and Irish Legal Information Institute’s (BAILII) U.K. site. The long-standing online service for U.K. legal material has been Lexis. Coverage in the UK, STAT file includes “All Public General Acts of England and Wales currently in force, as amended. These include all acts covered by Halsbury's Statutes of England and Wales. Those sections of very old Acts, such as the Magna Carta and the Statute of Marlborough Westminster (dated 1267), that are still in force are also available.” Westlaw, on the other hand, is a relative newcomer to the U.K., however they have quickly developed extensive and useful databases of U.K. materials. Westlaw coverage of acts of the U.K. Parliament “consists of statutes including company commercial, intellectual property, property, tax, personal injury and litigation consolidated by the editors at Sweet & Maxwell. The Law in Force coverage for statutes begins in 1267.”
The Scottish Parliament
Since July 1, 1999, when the Scottish Parliament assumed its powers granted under The Scotland Act 1998, primary legislation affecting Scotland has been issued either by the U.K. Parliament in London or the Scottish Parliament sitting in Edinburgh. The determination as to which areas are governed by which legislative body is outlined in sections 29 and 30 and schedules 4 and 5 of the Act. These provisions define the matters “reserved” by the U.K. Parliament, i.e. deemed to be outside of the legislative competence of the Scottish Parliament, and those matters "devolved" to the Scottish Parliament, i.e. deemed to be within the legislative competence of the Scottish Parliament. Reserved matters include the U.K. Constitution, foreign policy, national security, fiscal policy, international trade policy, nuclear safety, certain areas of social security and employment policy, and certain areas of health policy. Devolved matters include education, local government, housing, tourism, civil and criminal law, emergency services, economic development, agriculture, and sports.
The source for primary legislation for Scotland varies depending on which legislative body is responsible for producing legislation. Acts of the U.K. Parliament extending to Scotland are available in The Public & General Acts and Measures, The Law Reports Statutes, Current Law Statutes, Statutes In Force, and Halsbury's Statutes of England & Wales. Online availability of U.K. Acts includes the official H.M.S.O. U.K. Legislation website and BAILII's U.K. Legislation site together with Westlaw and Lexis. The extent section of U.K. acts, usually located toward the end of the act, details the geographical extent of the act, however it is presumed that the act extends nationwide unless the extent section indicates otherwise.
Acts passed by the Scottish Parliament ("ASP") can be located using the following sources. The H.M.S.O. Scottish Legislation web site contains full text versions of ASPs. The aim of the H.M.S.O. is "to publish these documents on the Internet simultaneously or at least within 24 hours of their publication in printed form. However, any document which is especially complex in terms of its size or its typography may take longer to prepare." Print versions of ASPs can be located in sessional volumes published by The Stationery Office and in Current Law Statutes. In addition, selected ASPs are reproduced in the Parliament House Book, a five-volume looseleaf set published by Green. ASPs are often first listed on the Stationery Office's Daily List. In addition this site provides information on other Scottish Parliamentary publications. ASPs are not yet available through BAILII, however it appears that these may become available soon. In spring 2001 Westlaw introduced a series of new Scottish databases, including one containing legislation specifically or primarily affecting Scotland (UKSCO-ST). This database includes acts of the U.K. government and the Scottish Parliament. Other databases in this series include Scottish legislation in force since 1706 (UKSCO-LIF), a Scottish legislative locator (UKSCO-LEGISLOC), and a database for Scottish delegated legislation (see below). Lexis does not provide coverage of Scottish legislation.
The passage of legislation through the Scottish Parliament is somewhat different than the process employed in the U.K. Parliament. Since the Scottish Parliament is a unicameral body the passage of a bill is understandably less complex than in its London counterpart. A Scottish Parliament bill encounters four stages in the parliamentary process. The Scotland Act 1998 called for bills to proceed through a three stage process, however the Consultative Steering Group on the Scottish Parliament indicated in their report, Shaping Scotland’s Parliament, that a four stage process should be employed. Stage 1 is deliberation on the principles of the bill by a lead committee. At this stage a determination is made as to whether the scope and purpose of the bill is acceptable. This determination is then reported to a plenary session of Parliament. In stage 2 the plenary session of Parliament debates and votes on the principles of the bill. The details of the bill are discussed in Stage 3. In Stage 3 the bill is assigned to one or more committees. It is at this stage that amendments to the bill can be made. Stage 4 is the final debate and voting stage before another plenary session. Once again amendments can be made, however there are strict guidelines concerning the extent of amendments at this stage. The Official Report carries committee discussion and floor debate from the plenary session of Parliament. The passage of a bill can be tracked using the Current Bulletin (a resource very similar in style to the Weekly Information Bulletin of the House of Commons) in conjunction with WHISP (What’s Happening In the Scottish Parliament), a weekly publication providing information on the workings of the Scottish Parliament.
It is important to realize that the above procedures apply to those types of bills known as Executive Bills. These are bills presented to Parliament by the Scottish Executive. Other types of bills include Committee and Private Members’ bills, each of which follow a slightly different process.
Scottish Delegated Legislation
Delegated legislation, also referred to as secondary or subordinate legislation, is comprised of the rules, regulations, orders and bylaws implemented under the powers delegated by Parliament in primary legislation. This voluminous body of law most commonly takes the form of statutory instruments, however it also includes procedural court rules, referred to in Scotland as Acts of Sederunt and Acts of Adjournal. Acts of Sederunt govern procedure in the civil courts, while acts of Adjournal govern procedure in the criminal courts. Statutory instruments are traditionally made by a minister of the Crown or their department, and then laid before Parliament prior to coming into force.
Prior to 1999 all delegated legislation affecting Scotland was made under powers delegated by U.K. acts. Since devolution, secondary or delegated legislation affecting Scotland has originated either in London or in Edinburgh. Delegated legislation made under powers not devolved to the Scottish Parliament has continued to originate in London. These can be located most easily by using either the official H.M.S.O. Statutory Instruments web site or the H.M.S.O. Scottish Legislation web site. The former is used to locate UK statutory instruments that extend to Scotland, while the latter is used to locate UK statutory instruments that were made either exclusively or primarily for Scotland. UK statutory instruments are also available on Lexis, Westlaw, and BAILII.
The Scottish Executive exercises Scottish delegated legislation, made under powers granted by acts of the Scottish Parliament (The Scotland Act 1998 s.112). The Scottish Executive is comprised of the First Minister, Scottish Ministers appointed by the First Minister, the Lord Advocate, and the Solicitor General (The Scotland Act 1998 s.44). The Scottish Executive can only make delegated legislation on matters that are within its devolved competence as defined by section 54 of The Scotland Act 1998. The majority of Scottish Statutory Instruments (S.S.I.s) are reviewed by the Scottish Parliament prior to coming into force. This process of reviewing S.S.I.s is very similar to the one adopted by the U.K. Parliament, and includes subjecting the S.S.I. to either affirmative or negative procedure. Peter Clinch provides a useful description of the Scottish Parliament's review of S.S.I.s in Using a Law Library: A Student’s Guide to Legal Research Skills (Blackstone, 2000).
S.S.I.s are cited by their title, and are assigned a sequential number according to the chronological order in which the Queen’s Printer receives the S.S.I. For example, The Smoke Control Areas (Exempt Fireplaces) (Scotland) Order 2001 SSI 2001/16 refers to the 16th Scottish Statutory Instrument made in 2001. S.S.I.s are made available full-text on the Scottish Legislation web site either instantaneously or within 24 hours of their print publication. Draft S.S.I.s are also made available at this site. The Stationery Office's Daily List often provides the first notification of new S.S.I.s. The Queen’s Printer publishes print versions of S.S.I.s, in both individual and cumulative bound versions. The Parliament House Book publishes select S.S.I.s following the authorizing ASP. Westlaw has recently made S.S.I.s available in a new database (UKSCO-SI) alongside U.K. statutory instruments affecting Scotland. BAILII provides an entry for S.S.I.s in their Scotland database, but as yet this is unlinked. Lexis does not provide coverage of Scottish delegated legislation.
Devolution for Wales
The Government of Wales Act 1998 was the result of disolution in the principality during the administrations of the Conservative Party (1979 to 1997). Throughout this period welsh politics grew increasingly divorced from centralized government in London. Although the cries for welsh devolution were never as strong as the scottish, the Labour party in the 1990's recognized the need for a limited amount of welsh empowerment. Following the 1997 election, the Labour government released the White Paper, A Voice for Wales: The Government's Proposals for a Welsh Assembly, in which it recommended that executive, not legislative, powers be devolved to the principality. The referendum of September 18, 1997 saw the welsh people vote in favor (50.3%) of creating a national assembly for Wales. This mandate, albeit slim, allowed the government to introduce and eventually pass The Government of Wales Act 1998. The National Assembly for Wales officially opened in Cardiff, the principality's capital city, in May 1999. Additional information on the history and process of devolution for Wales may be obtained in Symposium on the Devolution of Wales, 23 Suffolk Transnational Law Review 459 (summer 2000).
The National Assembly for Wales
The Assembly's powers as outlined in The Government of Wales Act 1998, and made possible by The National Assembly for Wales (Transfer of Functions) Order 1999, are certainly less extensive than those accorded Scotland's Parliament. For a more complete discussion of the Assembly's powers see Ann Sherlock, “A Wales of Bits and Pieces,” in 6 European Public Law 193 (June 2000). The Assembly does not have primary law making authority; it can only make delegated legislation within its areas of devolved competence. These areas include tourism, culture, ancient monuments, highways, health, education, transportation, agriculture, environment, sports and recreation, water and flooding, and the welsh language (The Government of Wales Act 1998 Sch.2). Although it could be argued that the National Assembly for Wales has no more power than the former Welsh Office in London, it is important to recognize the symbolic role that the Assembly plays. For the first time in over 700 years the country of Wales has an elected body located within its borders capable of developing and implementing policies for the people of Wales.
The Assembly, a corporate body comprised of 60 elected members, is led by the First Secretary and a cabinet. The proceedings of the Assembly, including background information and documents laid before the Assembly, are available on the National Assembly of Wales web site. Legislation made by the Assembly, in the form of Statutory Instruments, is published by Her Majesty’s Stationery Office on the Welsh Legislation web site. It should be noted that all documents produced by or on behalf of the Assembly are available in English and Welsh. Welsh S.I.s are identified by a parenthetical reference to Wales in the title and number of the citation, e.g., SI 2000/1079 (W. 72) The Homelessness (Wales) Regulations 2000).
Primary legislation for the U.K. made exclusively or primarily for Wales is available on the Welsh Legislation web site, while U.K. primary and secondary legislation extending to the principality is made available in the sources cited above. Westlaw provides access to delegated legislation made by the National Assembly for Wales as part of its UK-SI database. BAILII currently does not provide access to this material, however there is an unlinked entry for Welsh legislation on their database page. Lexis does provide coverage of delegated legislation made by the National Assembly for Wales. This material is located in the Statutory Instruments of England and Wales file.
Devolution for Northern Ireland
The process of devolution for Northern Ireland has been a far more complex and fragile process than has been experienced in Scotland and Wales. The “troubles” that have beleaguered the province since the late 1960’s provided the context for delicate negotiations between the British government and the various parties representing the unionists and the nationalists.
Northern Ireland had experienced home-rule in the period between 1921, when the Government of Ireland Act 1920 came into force and created the province, and 1972, when the British government declared an end to home-rule and instituted direct rule from Westminster. During this period the Northern Ireland Parliament (‘Stormont’) operated as a devolved legislative body, however it was perceived as a body more representative of the unionists’ interests than the Catholics’. The escalation of violence in the province during the late 1960’s and early 1970’s resulted in the suspension of home-rule and the vesting of wide discretionary powers in the Secretary of State for Northern Ireland under direct rule. In 1973 a second attempt at devolution was made with the creation of the first Northern Ireland Assembly. This Assembly lasted only five months, although in that time it did manage to pass a number of measures. Direct rule of the province was resumed in the summer of 1974 as a result of increased sectarian violence.
During the 1980s and the 1990s continued negotiations between the British government and various parties attempted to bring an end to the violence and establish a system of home-rule agreeable to all concerned. The breakthrough occurred in 1998 with the signing of the Belfast Agreement (also referred to as the 'Good Friday Agreement' or simply ‘The Agreement’). This document formed the basis for the style of devolution currently experienced in Northern Ireland. Included within the agreement is a provision for a democratically elected legislative body for Northern Ireland. The Northern Ireland (Elections) Act 1998 laid out the process for electing the Assembly members, while the Northern Ireland Act 1998 provided for the peaceful transfer of functions to the new Northern Ireland Assembly.
Although the Assembly met for the first time in July of 1998, the inability of the members to reach agreement on the nomination of ministers resulted in an extended adjournment of the Assembly. In December 1999 the Assembly was eventually granted the devolved powers when it agreed to the D’Hondt procedure for electing ministers.
The New Northern Ireland Assembly
The powers conferred on the New Northern Ireland Assembly include the power to adopt primary legislation for the province. However, the Northern Ireland Act 1998 clearly delineates between those matters within the legislative competence of the Assembly and those matters outside of its competence. Drawing distinctions between transferred, entrenched, excepted, and reserved matters, the Northern Ireland Act 1998 clearly defines the scope of the Assembly's powers. Entrenched matters include the Human Rights Act 1998, the European Communities Act 1972, and other basic constitutional documents as outlined in section 7 of the act. These matters can not be altered or amended by the Assembly. Excepted matters are defined in section 6 as matters that are outside of the legislative competence of the Assembly, and are listed in schedule 2 of the Northern Ireland Act 1998. Reserved matters are those matters which are within the legislative competence of the Assembly but can only be legislated on with the consent of the Secretary of State for Northern Ireland. Reserved matters are outlined in schedule 3. All other matters are considered transferred matters and are deemed within the legislative competence of the Assembly.
The Northern Ireland Assembly web site provides researchers with access to a variety of information including general information concerning the body, a calendar of events, and services for tracking legislation (primary and secondary) through the Assembly. Bills may be tracked through the various legislative stages and can be accessed full-text together with committee reports. Floor debate may be located using the Official Report, a daily Hansard publication. The legislative process adopted by the Assembly is very similar in practice to the one outlined above for the Scottish Parliament. It should be noted that in keeping with the other legislative bodies in the U.K. the acts of the Northern Ireland Assembly are published by the H.M.S.O. on behalf of the Government Printer for Northern Ireland, and are therefore not located on the Assembly’s web site.
Since 1998 primary legislation for Northern Ireland has included legislation promulgated by the new Northern Ireland Assembly, acts of the U.K. government extending to Northern Ireland, and Orders in Council made for the province by the U.K. government. Orders in Council are a form of secondary legislation considered primary legislation for Northern Ireland. They have been used since the first period of direct rule in 1972, however since 1998 their use has been limited to periods when the Assembly has been suspended. Acts of the U.K. government that extend to Northern Ireland may be located in the traditional U.K. primary legislation sources described above. Acts of the U.K. government which apply primarily or exclusively to Northern Ireland may be located on the H.M.S.O. Northern Ireland Legislation web site. Acts of the new Northern Ireland Assembly are also published by the H.M.S.O. on the Northern Ireland Legislation web site and are available in hard copy. U.K. Orders in Council, made by and with the advice of the Privy Council, are published full text on the Northern Ireland Legislation site. BAILII provides coverage of the Revised Statutes Northern Ireland, a set that includes legislation made by ‘Stormont’ and by the first Assembly. Lexis and Westlaw do not provide coverage of Northern Ireland Assembly legislation. Initial notification of the publication of official documents for Northern Ireland is in the Stationery Offices Daily List.
Northern Ireland Delegated Legislation
Since 1998 delegated or secondary legislation for the province has taken any one of four forms. It has been issued as U.K. statutory instruments extending to Northern Ireland, U.K. statutory instruments made primarily or exclusively for Northern Ireland, statutory rules made under the authority of an act of the U.K. government, or as statutory rules made under the authority of an act of the Northern Ireland Assembly.
U.K. statutory instruments extending to Northern Ireland may be located using the online resources described above (e.g. Lexis, Westlaw, BAILII, and the H.M.S.O. Statutory Instruments site). U.K. statutory instruments made primarily or exclusively for Northern Ireland are located on a separate H.M.S.O. Legislation site.
Statutory rules are the traditional type of delegated legislation used in the province. The Northern Ireland Assembly provides information on its web site detailing the various processes through which a statutory rule must pass in the Assembly before it becomes law. Statutory rules laid before the Assembly can be subject to affirmative resolution, confirmatory resolution, or negative resolution. Once the rule has become law it is published by H.M.S.O. on the Statutory Rules of Northern Ireland site together with statutory rules passed by the U.K. Parliament. BAILII does include a section for Northern Ireland “Statutory Instruments” but so far no material has been added. Lexis and Westlaw do not provide coverage of Northern Ireland statutory rules.
Scotland, Wales, and Northern Ireland have achieved different levels of devolution at a time when the availability of government information online has proliferated. The net result for the legal researcher is that although a more complex constitutional structure is in place, the availability of official documents from the new legislative bodies mitigates some of the difficulties one might expect to encounter with a new system of government. Nonetheless the events of the past few years have created a multi-layer system of government for Scotland, Wales, and Northern Ireland, and it therefore behooves anyone involved in researching the law of the United Kingdom to take into account the existence of these new legislative bodies.
The existence of the Scottish Parliament, the National Assembly for Wales, and the new Northern Ireland Assembly, alongside the U.K. Parliament falls short of a federal system of government for the United Kingdom. However, U.K. legal research is starting to adopt a flavor more associated with the United States, Australia or Canada in which both national and regional (state, provincial, or territorial) variances in law must be considered. While the term 'devolution' has been used throughout this article in describing the recent constitutional changes in the U.K., the term 'revolution' would be more appropriate for describing the changes in online legal research witnessed by law librarians and legal researchers.