2016 Global Review of Constitutional Law

minster MPs from Northern Ireland, Scotland
and Wales should be able to vote on matters
that affect only England while MPs from England
are unable to vote on matters that have
been devolved to the devolved legislatures.
EVEL attempts a procedural solution within
the law-making process of the UK Parliament,
by giving a veto, respectively, to the
whole House of Commons and to a Grand
Committee of Welsh and English MPs. The
Speaker is given a role in deciding which
Bills or provisions of Bills fall within the
ambit of the new procedure. In legislation
affecting only England (or England and
Wales), English (or English and Welsh)
MPs are offered a vote, although the whole
House of Commons retains a power to reject
these votes. Conversely, English (or English
or Welsh) MPs can also veto Bills over devolved
matters affecting England (or England
and Wales) that have been approved
by the whole House. 15
Reviews of the complex system in operation,
while raising deep philosophical questions, 16
have broadly noted that it is too early to draw
definitive conclusions about its strengths and
weaknesses, although it will not be long before
the internal territorial implications of
withdrawing from the European Union will
pose severe tests for EVEL. 17
Wales Act 2017
The process of making major changes to
the devolution settlement in Wales continued
throughout 2016, culminating in the
Wales Act 2017. 18 It introduces a reserved
powers model of devolution for Wales. 19 In
provisions similar to those in the Scotland
Act 2016, it provides for the permanence of
Welsh institutions of government, including
through the requirement of a referendum
for the abolition of the National Assembly.
It recognises the convention (‘the Sewel
convention’ 20 ) that the UK Parliament will
not normally legislate in areas of devolved
competence, even though it retains the legal
power to do so (such a provision is also to be
found in the Scotland Act 2016). It also devolves
further legislative and executive powers
over a range of competences to Wales,
including over elections, onshore petroleum,
road transport, ports, electricity generation,
equal opportunities, marine conservation,
and some other more specific powers.
Another noteworthy feature of the 2017 Act
is the recognition of a distinctive body of
Welsh law. Unlike Scotland and Northern
Ireland, which have long had separate judicatures
and bodies of law, Wales belongs to
the single legal jurisdiction of England and
Wales. The purpose of the new provision is
to recognise the body of distinctive primary
and secondary legislation enacted by the
Welsh Assembly since the advent of devolution,
which forms part of the laws of the
jurisdiction of England and Wales, but which
applies only to Wales. 21
Constitutional innovations such as the provisions
concerning permanence and consent,
however, have to be understood in the context
of the doctrine of parliamentary sovereignty,
which continues to be the fundamental
rule of the UK constitution. 22 This means
that a future Parliament can legally change
any existing legislation, including those of
a constitutional character, through ordinary
legislative procedure. Nevertheless, the fact
that Parliament has given a commitment to
the principle that the Scottish and Welsh institutions
can no longer be abolished except
through a referendum in each territory respectively
seems to be a form of contingent
entrenchment that reinforces the political
limits, and arguably the legal limits, of the
UK Parliament’s legislative capacity.
MAJOR CASES
The main focus in 2016 was upon significant
litigation concerning Brexit. Two separate
strands of litigation have addressed the issue
of consent in the initial stage of the process
of withdrawing from the EU, set out in Article
50 TEU: (i) two cases brought before
the High Court in Northern Ireland concerned
whether, under the existing devolution
framework, the consent of the Northern
Ireland Assembly was required to trigger the
UK’s exit (with implications for the devolved
nations more generally); and (ii) the Miller
case before the High Court of England and
Wales concerned whether authorisation was
required from the UK Parliament to trigger
Article 50. Both strands of litigation were
joined for hearing before the Supreme Court
in December 2016, which issued a judgment
in January 2017.
The High Court of Northern Ireland decision
in McCord’s Application
The judicial review applications considered
in the McCord litigation advanced five main
issues for the Court’s consideration. 23 First, it
was argued that the executive prerogative in
respect of foreign relations and treaty-making
had been displaced by the Northern Ireland
Act 1998, read together with the Belfast
Agreement and British-Irish Agreement,
15
M Elliott and S Tierney, ‘House of Lords Constitution Committee Reports on ‘English Votes for English Laws’ U.K. Const. L. Blog (2 November 2016): http://
bit.ly/2p1ZaYB.
16
See e.g. B Guastaferro, ‘Disowning Edmund Burke? The Constitutional Implications of EVEL on Political Representation’, U.K. Const. L. Blog (2 May 2016):
http://bit.ly/2pf4BQC.
17
House of Lords Constitution Committee, ‘English Votes for English Laws’, 6th Report of Session 2016-17, 2 November 2016, HL Paper 61: http://bit.ly/2pz-
K9tf; UK Government, ‘Technical Review of the Standing Orders Related to English Votes for English Laws and the Procedures they Introduced’, March 2017,
CM9430: http://bit.ly/2oxbz5k.
18
For background, see Wales Governance Centre and The Constitution Unit, ‘Challenge and Opportunity: The Draft Wales Bill 2015’, February 2016: http://
bit.ly/2oskuDm; A Cogbill, ‘The Wales Bill 2016: A Marked Improvement but there are Fundamental Questions Yet to be Resolved’, The Constitution Unit Blog,
26 July 2016: http://bit.ly/2os8z8B.
19
P Bowers, ‘Wales Bill 2016-17’, House of Commons Library Briefing Paper No. 07617, 13 June 2016: http://bit.ly/2pfcLIQ.
20
A Trench, ‘Legislative consent and the Sewel convention’, Devolution Matters Blog, March 2017: http://bit.ly/29o6xTA.
21
Ibid.
22
Ibid.
23
McCord’s (Raymond) Application [2016] NIQB 85: http://bit.ly/2fN1ZXF.
2016 Global Review of Constitutional Law | 223