No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 02 January 2018
Devolution is usually described in terms of the transfer of powers from central to regional and subordinate authorities. Attention then tends to focus on one dimension of relational power, namely that between the sovereign ‘principal’ and its ‘devolved’ agent. In this paper, and without seeking to assert that devolved institutions are sovereign, it is suggested that we need to develop an additional dimension to our studies of devolution, namely the relational power between government and governed in devolved contexts. Taking the example of devolution to Scotland and the exercise of devolved law-making powers to repeal ‘section 28’ of the Local Government Act 1988, it is argued that in the process of exercising legal and political authority, contestation and conflict over government can produce important constitutional discourses that normativise what counts as an appropriate or inappropriate exercise of devolved governmental power. The process of contesting devolved government is productive of what it means to govern and be governed under conditions of devolution, thereby producing and reproducing devolution itself.
1 The Scottish Parliament's own website defines devolution as ‘the transfer of powers from a central body to subordinate regional bodies’: http://www.scottish.parliament.uk.
2 For comprehensive overviews of devolution in Scotland, Wales and Northern Ireland see Burrows, N Devolution (London: Sweet & Maxwell, 2000); Hazell, R (ed) The State and the Nations: the, first year of devolution in the United Kingdom (Devon: Imprint Academic, 2000 Google Scholar); A Trench (ed) The State and the Nations: the second year of devolution in the United Kingdom (Devon: Imprint Academic, 2001).
3 S 2A was introduced into the 1986 Act via s 28 of the Local Government Act 1988 and it is ‘s28’ which is most often referred to in discussions. However, for the purposes of this paper, reference will be made to the repeal of ‘s 2A’.
4 N Walker ‘Beyond the Unitary Conception of the United Kingdom Constitution?’ (2000) PL 384 at 397–398.
5 See B Winetrobe’ Scottish devolved legislation and the courts' (2002) PL 3 1.
6 N Walker ‘The Idea of Constitutional Pluralism’ (2002) 6.5 MLR 3 at 317. See also: Walker, N Sovereignty and Differentiated Integration in the European Union’ (1998) 4 ELJ 4at355 CrossRefGoogle Scholar; N Walker ‘Flexibility within a Metaconstitutional Frame: reflections on the future of legal authority in Europe’ in G de Búrca and J Scott Constitutional Change in the EU: From Uniformity to Flexibility (Oxford: Hart Publishing, 2000).
7 By ‘non-sovereign’ I mean that there is no claim to ultimate legal or political authority.
8 Walker, n 4 above.
9 C Harlow ‘Disposing of Dicey: from Legal Autonomy to Constitutional Discourse?’ (2000) 48 PL 356 at 359.
10 Lord Bingham of Cornhill ‘Dicey Revisited’ (2002) PL 44.
11 Walker, n 4 above.
12 Official Report, vol 1, no 1, col 5 (12 May 2000).
13 MacCormick, N Questioning Sovereignty (Oxford: Oxford University Press, 1999 CrossRefGoogle Scholar).
15 N MacCormick ‘Is There a Constitutional Path to Scottish Independence?’ (2000) 53 Parliamentary Affairs 721.
16 MacCormick, n 15 above, at 730.
17 J Morison ‘The Case Against Constitutional Reform?’ (1998) 25 J Law & Society 4 at 510.
18 Morison, n 17 above, at 518.
19 See D Monk ‘Sex Education and the Problematization of Teenage Pregnancy: A Genealogy of Law and Governance’ (1998) 7 Social & Legal Studies 2 at 139; D Cooper ‘Declining Shakespeare. Governing School — Sex and Space’ in Governing out of Order: Space, Law and the Politics of Belonging (London: Rivers Oram, 1998); A Barron ‘The Governance of Schooling: Genealogies of Control and Empowerment in the Reform of Public Education’ (1996) 15 Studies in Law, Politics & Society 167.
20 J A G Griffith ‘The Political Constitution’ (1979) 42 MLR 1 at 19.
21 Loughlin, M Public Law and Political Theory (Oxford: Clarendon Press, 1992) p 198 Google Scholar.
22 Griffith, n 20 above.
23 Griffith, n 20 above, at 3.
24 Dean, M Governmentality: Power und Rule in Modem Society (London: Sage, 1999) p 103 Google Scholar.
25 See Hindess, B Discourses of Power: From Hobbes to Foucault (Oxford: Blackwell, 1996) pp 110–111 Google Scholar.
26 B Hindess ‘Politics and Governmentality’ (1997) 26 Economy & Society 2 at 257.
27 Dean, n 24 above, p 50.
28 Hindess, n 26 above, p 261ff.
29 Hindess, n 26 above, p 261.
30 Hindess, n 26 above, p 261.
31 Hindess, n 26 above, p 266.
32 See M Loughlin Legality and Locality: The Role of Law in Central-Local Government Relations (Oxford: Clarendon Press, 1996).
33 N MacCormick ‘Liberalism Nationalism and the Post-Sovereign State’ (1996) 44 Pol S 553.
34 Official Report, vol 4, no 10, col 941 (debate on Opposition Motion) (10 February 2000).
35 For a fuller discussion of the connection between the new Labour constitutional reform project and issues of sovereignty, constitutionalism and sexuality see C Stychin ‘New Labor, New’ Britain?’ Constitutionalism, Sovereignty and Nation/State in Transition’ (1999) 19 Studies in Law, Politics & Society 139.
36 Official Report, vol 4, no 10 Google Scholar, col 969 (debate on Opposition Motion) (10 February 2000).
37 Robertson made the comment during one of his ‘700 Club’ cable television broadcasts. Criticism of the comment resulted in the collapse of a joint broadcasting venture between Robertson and the Bank of Scotland.
38 ‘Cardinal Winning and the speech he gave in Malta last week’ Scotland on Sunday, 30 January 2000. The speech was reproduced in full in this edition of the paper because Cardinal Winning took exception to the original coverage of this speech in the previous week's Scotland on Sunday under the headline ‘Gay Lobby compared to Nazis in a new broadside by Winning’.
39 ’Winning warning on gay militants' The Scotsman, 22 January 2000.
40 Stychin, C A Nation By Rights (Philadelphia: Temple Press, 1998 Google Scholar).
41 Herman, D The Antigay Agenda: Orthodox Vision and the Christian Right (Chicago: University of Chicago Press, 1997 CrossRefGoogle Scholar) ch 7.
42 Herman, n 41 above, ch 3.
43 ‘Ayr loss looms for Labour as Dewar clause attacked’ The Scotsman, 25 February 2000.
44 ‘Donald's “insult” to parents. Windy Donald Bottles out’ The Daily Record, 25 February 2000.
45 Meeting of the Equal Opportunities Committee. 6 March 2000, 6th Meeting Session 1999–2000 col 420.
46 ’Tolerance, equality top poll of Scots' Sundnv Herold, 20 February 2000.
47 J Alridge ‘Egos fight over the soul of Scotland’ Observer, 5 March 2000.
48 ‘Radical Move Left Labour Looking like Extremists: How Wendy Alexander let genie out of the bottle and started a countdown to capitulation’ The Scotsman, 25 February 2000.
49 Columnist G Warner Scotland on Sunday, 21 May 2000.
50 Comment of Keith Harding (Conservative Msp) Official Report, vol 4, no 10 Google Scholar, Col 952 (10 February 2000).
51 ‘Irony as opposition to repeal shows its mettle’ The Herald, 18 January 2000.
52 ‘I'll go back and live in a council house. That's how strongly I feel’ Scotland on Sunday, 30 January 2000.
53 Speaking at a press conference on 30 May 2000.
54 ‘Souter to fund “family values” poll candidates’ Sunday Herald, 4 June 2000.
55 See Editorial ‘Dark day for democracy. Section 28 referendum was flawed and tawdry’ The Herald, 3 1 May 2000.
56 See Iris Marion Young's discussion of the problems of conceptualising ‘representation’: Young, I M Inclusion and Democracy (Oxford: Oxford University Press, 2000 Google Scholar) ch 4.
57 Official Report, vol 4, no 10 Google Scholar, col 965 (debate on Opposition Motion) (10 February 2000).
58 Official Report, vol 7, no 4 Google Scholar, cols 577–578 (21 June 2000).
59 From 1 July 2000, the SCCC merged into a new body called ‘Learning and Teaching Scotland’.
60 Official Report, vol 5, no 2 Google Scholar, col 168 (24 February 2000).
61 For an analysis of the impact of this guidance in England and Wales see D Monk ‘New Guidance/old problems: recent developments in sex education’ (2001) 23 J Social Welfare & Family L 3 at 271.
62 For discussion of the parliamentary process see M Waites ‘Regulation of Sexuality: Age of Consent, Section 28 and Sex Education’ (2001) 54 Parliamentary Affairs 495.
63 M Loughlin Sword and Scales (Oxford: Hart Publishing, 2000) p 16.
64 Z Bankowski and E Christodoulidis ‘The European Union as an Essentially Contested Project’ (1998) 4 ELJ 4 at 341–354.
65 J Shaw ‘Process and Constitutional Discourse in the European Union’ (2000) 27(1) J Law & Society 4 at 21.