1 Royal and Parliamentary Titles Act 1927, s. 2(2); Interpretation Act 1978, s. 5 and Schedule 1.

2 On which see the Report of the Commission on the Constitution, Cmnd. 5460 (1973), vol. 1, Part XI. Those self-governing dependencies will not be considered further here.

3 Interpretation Act 1978, s. 5 and Schedule 1.

4 For a valuable corrective to the Anglocentric view of history in this context see Davies, John, A History of Wales (1993)Google Scholar. And see Andrews, J.A., Welsh Studies in Public Law (1970)Google Scholar, especially chapters 2, 3, 4.

5 See David Williams, A History of Modern Wales (1950), chapter 3; and David G.T. Williams, “Devolution: the Welsh Perspective” in Jack Beatson, Christopher Forsyth and Ivan Hare (eds.), Constitutional Reform in the United Kingdom: Practice and Principles (1998).

6 Wales and Berwick-on-Tweed Act 1746.

7 Welsh Language Act 1967, s. 4. See now the Welsh Language Act 1993.

8 See, e.g., MacCormick v. Lord Advocate 1953 S.C. 396, 411–413; Mitchell, J.D.B., Constitutional Law (2nd ed., 1968), pp. 69–74Google Scholar; T.B. Smith, “The Union of 1707 as Fundamental Law” [1957] P.L. 99; M. Upton, “Marriage Vows of the Elephant: The Constitution of 1707” (1989) 105 L.Q.R. 79; Lord Woolf, “Droit Public—English Style” [1995] P.L. 57, 69; Sir John Laws, “Law and Democracy” [1996] P.L. 72, 84–89.

9 Rodney Brazier, Ministers of the Crown (1997), p. 9.

10 Report of the Commission on the Constitution, vol. 2, evidence of the Scottish Office, the Lord Advocate's Department and the Crown Office; J.P. Mackintosh, The Devolution of Power (1968). On Scottish national identity as it relates to statehood see, e.g., D. Miller, On Nationality (1995), chapter 2. And see generally Linda Colley, Britons: Forging the Nation 1707–1837 (1996).

11 Scotland's Parliament, Cm. 3658 (1997), p. v.

12 F.W. Maitland, Constitutional History of England (1908), p. 335.

13 Act of Union with Ireland 1801.

14 The Government of Ireland Act 1914 had provided for an internally self-governing Ireland with its own Parliament, but it was bitterly opposed by the Protestant majority in the North, was not activated because of the outbreak of war, and never came into effect.

15 Only part of the 1920 Act became operative because of the armed uprising in the South.

16 Irish Free State (Agreement) Act 1922; see Sir Kenneth Wheare, The Constitutional Structure of the Commonwealth (1960), pp. 90–94; Brigid Hadfield, The Constitution of Northern Ireland (1989), chapter III.

17 For the meaning of “Northern Ireland”, see Government of Ireland Act 1920, s. 1(2), Northern Ireland Act 1998, s. 79(1) (inclusion in that definition of internal waters and territorial sea).

18 Northern Ireland Constitution Act 1973, s. 31.

19 For the constitutional story of Northern Ireland down to 1972 see Claire Palley, The Evolution, Disintegration and Possible Reconstruction of the Northern Ireland Constitution (1972); and from 1968 to 1989 see Hadfield, op. cit., chapters IV–VII. For an excellent analysis of the history from 1886 to the early 1990s see Christopher McCrudden, “Northern Ireland and the British Constitution” in Jeffrey Jowell and Dawn Oliver (eds.), The Changing Constitution (3rd ed., 1994), chapter 12.

20 Cm. 3883 (1998). The agreement is referred to as the “Belfast Agreement” in the Northern Ireland Act 1998, s. 79(1), but it is known popularly as the Good Friday agreement.

21 Northern Ireland Act 1998, s. 1(1).

22 That description of the constituent parts comes from the terms of reference of the Royal Commission on the Constitution. In popular speech Scotland is usually described as a nation, Wales as a principality, and Northern Ireland as a province, but none of those descriptions is universally accepted.

23 For that reason it has been argued that the United Kingdom is a union, rather than a unitary, state: see Stein Rokkan and Derek Urwin, “Introduction: Centres and Peripheries in Europe” in Rokkan and Urwin (eds.), The Politics of Territorial Identity (1982).

24 Elections to the Scottish Parliament and the Welsh Assembly will be held in 1999 (although the Parliament will not start its duties until 2000). The implementation of the Northern Ireland package depends on important non-legal developments to the satisfaction of the Secretary of State for Northern Ireland.

25 The formal style of that Parliament is the Parliament of the United Kingdom of Great Britain and Northern Ireland, and has been since the Royal and Parliamentary Titles Act 1927, s. 2(1).

26 Notably in the last century as it did by the Municipal Corporations Act 1882.

27 As was seen under the 1979 Conservative Government.

28 As was done when the Greater London Council and the metropolitan county councils were abolished by the 1979 Conservative Government.

29 That point will be developed in section IV.

30 Ireland Act 1949, s. 1(2); Northern Ireland Constitution Act 1973, s. 1; see now the Northern Ireland Act 1998, s. 1 (which will be examined later).

31 Cmnd. 9657 (1985).

32 That can be seen, for example, in the proposed North–South Ministerial Council and British–Irish Council which will be set up under that agreement (see Strands Two and Three).

33 See generally Beatson, Forsyth and Hare, op. cit., chapters 1–5 (Vernon Bogdanor, Robert Reed, Anthony Bradley, David Williams, Brigid Hadfield); Constitution Unit, Scotland's Parliament (1996), An Assembly for Wales (1996), Regional Government in England (1996).

34 The Government's White Paper, for example, says that “The Government's aim is a fair and just settlement for Scotland within the framework of the United Kingdom… . Scotland will remain firmly part of the United Kingdom… . [The Scottish Parliament] will be responsible for much of the business of government in Scotland.” Scotland's Parliament, p. vii. On the White Paper see Neil Walker, “Constitutional Reform in a Cold Climate” in A. Tomkins (ed.), Scottish and Welsh Self-Government: The Challenges (1998).

35 It may be remembered that the Scotland Act 1978 attempted the process the other way round, devolving only powers which were exhaustively enumerated in that Act (which as a result was a very complicated piece of legislation).

36 In the absence of some unforeseeable catastrophe, abolition is unlikely, especially because the maintenance of the Parliament was accepted by the Conservative Party after the Scottish referendum, so that all the British political parties are united behind it.

37 For a discussion of devolution and entrenchment see J. McFadden and W. Bain, “Strategies for the Future: A Lasting Parliament for Scotland?” in T. St.J. Bates (ed.), Devolution to Scotland: The Legal Aspects (1997).

38 “Ordinary” in the sense that it was produced without any special method of enactment.

39 Ndlwana v. Hofmeyr [1937] A.D. 229, 237. For analysis see Ian Loveland, Constitutional Law: A Critical Introduction (1996), pp. 48–57.

40 It makes no difference that the legislative body is called a “Parliament”: the word is obviously grander than “Assembly” or “Council”, but the question is what are its powers and how secure is it, not what is it called.

41 Federalism will be considered further in section IV.

42 Constitution of the United States, article X of the Bill of Rights.

43 For a general examination of the Scotland Act 1998 as a constitutional text see Rodney Brazier, “The Scotland Bill as Constitutional Legislation” [1998] Statute Law Review 12.

44 Provision is made in the Scotland Act, s. 63, for the devolution of further authority by Order in Council.

45 Such words appear in many constitutions, most famously at the beginning of the United States Constitution—“We the People …”. Such an explanatory note would be unusual in a British constitutional statute, but not unprecedented: see, e.g., the preambles to the Parliament Act 1911 and the Statute of Westminster 1931.

46 Scottish Office, January 1998.

47 There is similar provision in the Northern Ireland Act 1998, s. 2: “[T]his Act shall have effect notwithstanding any other previous enactment.”

48 On s. 75 see Hadfield, op. cit., pp. 66–67, 80ff.

49 On which see New Labour: Because Britain Deserves Better (General Election manifesto, 1997); A New Agenda for Democracy (Labour Party, 1993); Rodney Brazier, Constitutional Reform (2nd ed., 1998), chapter 3.

50 Scotland Act, s. 63: statutory functions exercisable by a Minister of the Crown may be transferred to Scottish Ministers by Order in Council.

51 The Government confirmed during the committee stage on the Scotland Bill that this was, indeed, intended to be the effect: see HL Deb., vol. 592, col. 797 (21 July 1998).

52 Subject, as in any British legislation, to the legal limitations imposed by European Community law.

53 74.3% voted for a Scottish Parliament, and 25.7% against; 63.7% voted for tax-varying powers for that Parliament, and 36.5% against. The turnout was 60.4%.

54 Such as the requirement in the German Constitution that amendments to it must have the support of two-thirds of the members of each chamber.

55 It will be seen later that the Government of Wales Act 1998 does contain limited provision for referendums.

56 A Bill will become such an Act when it has been passed and has received royal assent (s. 28(2)). The validity of any Scottish Act is not to be affected by any invalidity in parliamentary proceedings leading to its enactment (s. 28(5)): but there are discrete procedures for judicial rulings on the vires of disputed laws after enactment: see ss. 98–103 and Schedule 6.

57 The Scotland Bill had proposed a prohibition on Scottish legislation which would change the Scotland Act itself, but that was deleted before enactment. Specified (and limited) provisions may be altered by the Parliament itself.

58 Other circumstances are set out in s. 29(2).

59 Though not as clearly as they might have been: see Brazier, “The Scotland Bill as Constitutional Legislation”, pp. 18–21.

60 A similar analysis applies to the Northern Ireland Act 1998: see especially s. 6 and Schedules 2, 3.

61 Ibid., s. 98 and Schedule 6.

62 Northern Ireland (Entry to Negotiations, Etc.) Act 1996, s. 4.

63 Government of Wales Act 1998, s. 36. This is discussed later.

64 A standing Referendum Act, monitored by a permanent body, has been urged by in Constitution Unit and the Electoral Reform Society, Report on the Conduct of Referendums (1996). The Committee on Standards in Public Life has also recommended new statutory rules to ensure fairness in the conduct of referendums: see its 5th Report, The Funding of Political Parties, Cm. 4057 (1998), chapter 12.

65 Section 30 and Schedule 5, para. 1.

66 Ibid.

67 HL Deb. vol. 585, col. WA 111 (3 February 1998).

68 There is another restraint: the requirement of royal assent for Scottish Bills. Such consent could be withheld from any such measure. This is discussed later.

69 Schedule 5, para. 1(b).

70 In addition, Scottish Ministers on appointment must take the official oath prescribed by the Promissory Oaths Act 1868, as well as the oath of allegiance: Scotland Act, s. 84(4), (5).

71 Ibid., s. 29(1), (2)(b), Schedule 4. Certain provisions of the Scotland Act may be amended by the Parliament: see Schedule 4, para. 4(2).

72 Ibid., s. 84(1).

73 Ibid., s. 84(2).

74 Ibid., s. 84(3). An MP (like Gerry Adams or Martin McGuinness) who refuses to take the oath of allegiance may not take his or her seat, but the seat is not vacated. The United Kingdom Parliament should adopt the Scottish rule.

75 Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645.

76 A Voice for Wales, Cm. 3718 (1997).

77 Its formal title is the National Assembly for Wales: Government of Wales Act, s. 1(1).

78 See section III.

79 This was restored to Edinburgh Castle by the late Conservative Government.

80 That is, Her Majesty's Seal appointed by the Treaty of Union to be kept and used in Scotland in place of the Great Seal of Scotland: Scotland Act, s. 2(6).

81 Under the Wales Act 1978.

82 A Voice for Wales, para. 1.4.

83 A Voice for Wales begins by stating (in para. 1.1) that “The Government proposes that a directly-elected Assembly will assume responsibility for policies and public services currently exercised by the Secretary of State for Wales.” That may be contrasted with the first substantive sentences of Scotland's Parliament (at p. ix): “The Scottish Parliament will have law-making powers over a wide range of matters which affect Scotland. There will be a Scottish Executive headed by a First Minister which will operate in a similar way to the United Kingdom Government and will be held accountable by the Scottish Parliament.”

84 Government of Wales Act, s. 21.

85 Ibid., s. 22(1).

86 Ibid., s. 22(2) and Schedule 2.

87 Ibid., s. 66.

88 Ibid., s. 1(3).

89 Their titles are not specified in the Act, although members are referred to in it as “Assembly members”: s. 2(3).

90 Ibid., s. 20.

91 Ibid., ss. 109, 110 and Schedule 8.

92 Even the argument about political entrenchment, achieved through the referendums in Scotland, Wales and Northern Ireland, is weakest in Wales given the hair's breadth nature of the vote there.

93 Ibid., s. 36. It could (and no doubt will) be argued that a poll could be held to seek support for such functions being exercised by an independent Welsh Parliament. Under s. 33, the Assembly itself can make representations about any matter affecting Wales.

94 Ibid., s. 101(3).

95 Ibid., s. 3; Cm. 3883 (1998). Public attention has naturally centred on the commitments on decommissioning arms.

96 “Northern Ireland remains part of His Majesty's dominions and of the United Kingdom and it is hereby affirmed that in no event will Northern Ireland or any part thereof cease to be part of His Majesty's dominions and of the United Kingdom without the consent of the Parliament of Northern Ireland.”

97 “It is hereby declared that Northern Ireland remains part of Her Majesty's dominions and of the United Kingdom, and it is hereby affirmed that in no event will Northern Ireland or any part of it cease to be part of Her Majesty's dominions and of the United Kingdom without the consent of the majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1 to this Act.”

98 That section will be examined in a moment.

99 Hadfield argues that the constitutional guarantee is actually in article 1 of the Act of Union, which states that “… the kingdoms of Great Britain and Ireland … shall upon [1 January 1801] and for ever after, be united in one kingdom, by the name of the United Kingdom of Great Britain and Ireland …”: Hadfield, op. cit., p. 105. The guarantee was stronger after 1949 because it was supported by political mechanisms for testing the will of the people of Northern Ireland about their future.

100 Indeed, the 1973 border poll and the 1998 referendum on the Good Friday agreement constitute precedents supporting the view that the people of Northern Ireland should be consulted whenever any significant change of status is envisaged.

101 Ibid., Constitutional Issues, paras. 1, 2.

102 Ibid., para. 1(iv). See Brigid Hadfield, “The Belfast Agreement, Sovereignty and the State of the Union” [1998] P.L. 599.

103 Ibid., para. 1(i) and Annex A. Obligations were also cast on the Government of Ireland, especially to seek approval for vital amendments to articles 2 and 3 of the Constitution (which it did at a referendum, in which over 90% voted in favour of deleting the Republic's historic claim to sovereignty over Northern Ireland).

104 Section 1(1) of the Northern Ireland Act 1998 is the equivalent of s. 1 of the 1973 Act, but there are several changes of wording. There is no reference to Northern Ireland remaining part of “Her Majesty's dominions” (a phrase which appeared twice in the 1973 Act, s. 1); there is no reference to “any part of” Northern Ireland ceasing to be part of the United Kingdom (so that the guarantee will refer to the entirety of Northern Ireland, presumably ruling out any partial cession), and there is other more modern phraseology. Thus the new s. 1(1) reads: “It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1.” The substance is unaltered, but the deletion of the royalist references is a gesture towards nationalist sympathies.

105 Ibid., s. 2: that provision mirrors the Scottish legislation, and would rule out any challenge on the ground that the Northern Ireland Act was in breach of the Act of Union with Ireland. Most of the 1973 Northern Ireland Constitution Act will be expressly repealed: Northern Ireland Act 1998, s. 100 and Schedule 15.

106 That Act was repealed by the Welsh Language Act 1993, but it shows the legislative intention of the time.

107 Section 1(1) provides the adjective “New” to distinguish it from previous Northern Ireland Assemblies. The word “New” will be dropped when the Northern Ireland Act 1998 is brought into force: 1998 Act, s. 4(5).

108 Ibid., s. 1(1). On those two Councils, see Good Friday agreement, Strands Two and Three.

109 Ibid., ss. 5–8 and Schedules 2–3. As with the Scottish Parliament, the Northern Ireland Assembly will have legislative competence over all matters save those that are designated excepted or reserved.

110 Mainly that decisions must be arrived at on a cross-community basis in specified circumstances. Cross-community authority may be expressed through either of two voting formulas set out in the 1998 Act: see s. 4(5).

111 Good Friday agreement, Strand One, para. 26.

112 Section 5 of the Northern Ireland Act provides for the Assembly's law-making powers, but states (s. 5(6)) that “This section does not affect the power of the Parliament of the United Kingdom to make laws for Northern Ireland, …” That exact phrase appeared in the Northern Ireland Constitution Act 1973, s. 4(4).

113 Ibid., para. 33.

114 71% voted in favour of the Good Friday agreement, and 29% against, on an 81% turnout.

115 Northern Ireland Act, s. 31(1).

116 Ibid., s. 32.

117 This appeared originally as clause 43. It was deleted on the ground that the clause “planned for failure”.

118 Ibid., s. 5(1), (2).

119 On whom see ibid., s. 39. Lord Alderdice has been elected to that post. He will have a statutory duty to decide whether any Bill is ultra vires the Assembly and, if he thinks that any is, must refer it to the Secretary of State.

120 Ibid., s. 14(1).

121 Ibid., ss. 10, 12, 79–82 and Schedule 10. The legislative competence of the Assembly depends on whether the subject-matter is “excepted” (which is outside its competence), or “reserved” or “transferred” (ibid., s. 4(1) and Schedules 2, 3). As with reserved matters in Scotland, excepted and reserved matters in Northern Ireland are listed exhaustively, so that all the rest are transferred. A reserved matter may be made into a transferred matter by Order in Council, and vice versa, provided that the Assembly approves. Excepted matters include the Crown, the United Kingdom Parliament, international relations, defence, nationality, and United Kingdom taxes; reserved matters range from such vital matters as public order and the criminal law to such things as the National Lottery. The hope is that reserved matters could be devolved to the Assembly.

122 This possibility will be examined in section III.

123 David Williams has objected to the use of the Judicial Committee in relation to the Welsh Assembly: Williams, “Devolution: the Welsh Perspective”, pp. 48–49.

124 On which see section III.

125 See section IV.

126 The Conservative leader, however, has not. That possibility (with others) is being considered by the Conservative Party.

127 Regional Development Agencies Act 1998, ss. 1, 2, 4.

128 Ibid., s. 6.

129 Ibid., ss. 8, 18.

130 Held under the Greater London Authority (Referendum) Act 1997. See A Mayor and Assembly for London, Cm. 3897 (1998).

131 For a full treatment of the Scottish Executive see Rodney Brazier, “The Scottish Government” [1998] P.L. 212.

132 See generally Scotland Act, Part II, especially ss. 44–49.

133 More precisely, a Prime Minister's patronage is constrained by the limit of 95 Ministers who may sit and vote in the House of Commons: House of Commons Disqualification Act 1975, s. 2(1).

134 See generally the Good Friday agreement, Strand One, paras. 13–25; Northern Ireland Act, ss. 14–18.

135 Northern Ireland Act, ss. 16–19. The maximum number of Ministers can be altered with the Secretary of State's consent.

136 Ibid., s. 20.

137 Ibid., s. 23.

138 Government of Wales Act, ss. 53–56.

139 Ibid., s. 56.

140 While the collective of Welsh Secretaries is to be termed the Executive Committee, the Assembly may give it a different title in its standing orders: Government of Wales Act, s. 56(2).

141 Scotland's Parliament, para. 2.6; A Voice for Wales, para. 1.6; Good Friday agreement, Strand One, paras. 14, 16, 25.

142 See Scotland Act, ss. 3(1)(a), 45(2), 47(3)(c); Government of Wales Act, s. 53(1), (2); Northern Ireland Act, s. 30; Good Friday agreement, Strand One, para. 25.

143 The Scottish Parliament and the Welsh Assembly will be elected by the additional member system, and the Northern Ireland Assembly by the single transferable vote. PR is spreading throughout the United Kingdom: the Government wants future European Parliament elections to be conducted using the regional list system; it is possible that elections to the Commons itself may be conducted by a more proportional system if that is approved at a national referendum following the Report of the (Jenkins) Independent Commission on the Voting System, Cm. 4090 (1998).

144 Scotland Act, s. 45(1), 46.

145 Government of Wales Act, s. 53(1).

146 Northern Ireland Act, s. 16; Good Friday agreement, Strand One, para. 15. David Trimble and Seamus Mallon were so elected. On cross-community voting, see above note 110.

147 Scotland Act, ss. 3, 46. The Queen then has a discretion to dissolve the Parliament: Scotland Act, s. 3(1)(b), 3(2); Brazier, “The Scottish Government”, pp. 216–217.

148 Scotland Act, ss. 47–49. The Queen may have the same conventional role as she does in relation to the appointment of her Ministers in London—to offer comments and even objections to particular names, but falling in with the head of government's wishes in the end. For this process see Rodney Brazier, Constitutional Practice (2nd ed., 1998), pp. 63–65.

149 Government of Wales Act, s. 53.

150 Northern Ireland Act, s. 18.

151 Northern Ireland Act, ss. 18(2)–(12); Good Friday agreement, Strand One, paras. 16, 21, 22, 25.

152 Northern Ireland Act, s. 30. If the Assembly so votes, that person will be excluded from office for 12 months: s. 30(1). There is also a provision to exclude an entire political party from ministerial office for 12 months: s. 30(2).

153 Ibid., s. 18(9)(a).

154 Scotland Act, s. 84(4), (5).

155 Government of Wales Act, s. 20.

156 Northern Ireland Act, ss. 18(8), 19(3) and Schedule 4; Good Friday agreement, Strand One, para. 23 and Annex A.

157 This point has not been advanced with respect to Northern Ireland.

158 Scotland's Government, para. 4.2.

159 Scotland Act, s. 2(5), 3(2).

160 The First Minister will also be Keeper of the Scottish Seal (ibid., s. 45(7))—perhaps as a symbol of office from the Queen.

161 It will also facilitate reshuffles, because any Minister who declined to leave office could be dismissed.

162 See also Notes on Clauses (Scottish Office, January 1998), cl. 79.

163 Although this could be avoided by a “Queen's Speech” which (unlike the Westminster version) made no reference to Scottish Executive policies (which could be at variance with those of British Ministers).

164 The Cabinet might avoid royal embarrassment by passing legislation at Westminster to negative the offending Scottish Act. See generally Brazier, “The Scottish Government”, p. 220.

165 See Government of Wales Act, s. 1(3); A Voice for Wales, para. 1.20.

166 Scotland's Parliament, para. 4.12; A Voice for Wales, paras. 3.33–3.35. The Secretary of State for Northern Ireland will have many duties under the Northern Ireland Act, including those in relation to activating the Act itself, enactment of Northern Ireland Bills, possible exclusion of Ministers from office, elections, obtaining the block grant which will finance the Assembly, and so on. That Secretary of State will be required for the foreseeable future.

167 Scotland Act, s. 44(1), 48(6). They need not be MSPs: ibid., s. 27.

168 Ibid., ss. 32(4), 87; Scotland's Parliament, para. 4.9.

169 On the formation of British national identity over a rather longer period see Colley, op. cit.

170 In Labour's case there is also a low political reason for union: the party does very well at parliamentary elections in Scotland.

171 John Major made the maintenance of the Union a key part of his 1992 General Election campaign.

172 No further poll has been held. The Northern Ireland Constitution Act 1973 permitted such polls at 10-year intervals.

173 Northern Ireland Act, s. 1 and Schedule 1.

174 For a good short account see Eric Barendt, An Introduction to Constitutional Law (1998), chapter 3.2; see also G. Sawyer, Modern Federalism (1976); Sir Kenneth Wheare, Federal Government (3rd ed., 1953).

175 David Simpson, Romanticism, Nationalism and the Revolution Against Theory (1993).

176 That attitude may also explain in part the Labour Government's disinclination to present its constitutional reform programme as a related whole, driven by any constitutional theory.

177 This was a reason why the Royal Commission on the Constitution supported a devolutionary approach: op. cit., para. 520.

178 See Williams, “Devolution: The Welsh Perspective”, p. 49; Brazier, Constitutional Reform, chapter 2.