British Constitution -62-70.pdf

The Great Exhibition in 1851 was a prime example of soft power. Victoria and Albert wanted to influence other countries by showing their strength and prowess (not impose power through coercion). Both (V&A) helped stem criticism and according to them, the monarchy had to fulfil various missions/dutie...

The Great Exhibition in 1851 was a prime example of soft power. Victoria and Albert wanted to influence other countries by showing their strength and prowess (not impose power through coercion). Both (V&A) helped stem criticism and according to them, the monarchy had to fulfil various missions/duties. All-in-all, they demonstrated they had a practical, pragmatic value in society (not a decorative monarchy but built for a purpose). A sense of duty comes out strongly. In addition, Victoria was the first media monarch. In part this is due to her alleged intimate relationship with John Brown, her husband’s equerry who became a confidant after Albert’s death. Victoria mourned and retired for a long time (+- 10 years) in Balmoral, Scotland. All of this coincided with the development of modern journalism, photography, the telegraph, and finally, cinema. Prime Minister Benjamin Disraeli persuaded Victoria to resume her public duties in 1871. She further accepted the title of Empress of India (upon the advice of Disraeli) in 1877. The monarchy and empire were now tied together. If we fast-forward to 1997, we can relate Victoria to Queen Elizabeth II and Princess Diana. When Diana died in a car crash in 1997, the Queen also retired in Scotland, in part because she didn’t want to express sympathy for Diana. Increasingly, people were concerned about the Queen’s silence. Prime Minister Tony Blair reminded the Queen she had to make a public announcement regarding to Diana’s death. §2. British Politics A. The British Constitution The United Kingdom is a constitutional monarchy that does not possess a comprehensive and pre-eminent constitutional document governing the behavior of government. There is no 161 single sovereign text overlooking the country. The explanations for this one-of-a-kind constitutional feature are varied. One might ascribe the absence of a written constitution to the pragmatic and historical evolution of the United Kingdom. The present situation would be one of gradual and measured growth, a spontaneous happening that occurred through a process of growth – or sedimentation – rather than deliberate design. Arguably, the country never 161 Israel and New Zealand also lack pre-eminent constitutional documents. In the case of Israel, the country’s first governing assembly wrote a Declaration of Independence that promised to deliver a constitution. For political reasons in the main (tensions between secular- minded socialists and Orthodox Jews), Ben-Gurion’s Knesset side-stepped the issue altogether, leaving future Knessets the task of passing a series of “Basic Laws”, of which there are eleven (see http://www.knesset.gov.il/description/eng/eng_mimshal_yesod1.htm). The question of the superiority of the Basic Laws is disputed (various rulings of the High Court of Justice holding in the late 1990s that laws in contradiction with Basic Laws were null and void). See most notably the opinion of Chief Justice Aharon Barak, in United Mizrahi Bank v. Migdal Communal Village, CA 6821/93, 49(4) PD221 (1995), For a comparative perspective on this judgment, see Yoram Rabin and Arnon Gutfeld, “Marbury v. Madison and Its Impact on Israeli Constitutional Law”, 15 U. Miami Int’l & Comp. L. Rev. 303 (2007). For extended discussion on this entire topic, see Marcia Gelpe, The Israeli Legal Stystem (Durham, NC: Carolina Academic Press, 2013), Chapter 8. Various reasons explain the absence of a written constitution in New Zealand: English legal and constitutional heritage, the size and unitary nature of the country, and satisfaction with the status quo. The Constitution Act 1986 and the Bill of Rights Act 1990 have the status of ordinary acts of parliament, open to repeal by simple majority vote in parliament. For extended developments, cf. James Allan, “Why New Zealand Doesn’t Need a Written Constitution”, Agenda, Volume 5, Number 4, 1998, pp. 487-494. 62 underwent radical changes of the kind experienced in many other countries where the drafting of a codified constitution was seen as a turning of the page, a “tabula rasa”, a fresh start. In 162 the words of Vernon Bogdanor, “Almost all codified constitutions are enacted to mark a new beginning”. In the UK, “the fundamental characteristics of the state remained unchanged and the English, at least, have felt little need for a codified constitution”. It would appear that the 163 British have never felt dissatisfaction at this “lacuna” (at least amongst the majority of citizens), hence, there has been little demand for a new start or formalization of the political structures. Had there been such a demand, the adoption of a written constitution may have been called for. Some might add that the reason for an unwritten constitution pertains to the British thinking that rules are for lesser breeds and that they don’t need them. Alternatively, one could argue that written constitutions fail to solve all problems. To point, the USA’s exemplary founding document addressed the plight of African –Americans, as well as that of native-Americans, in the most appalling manner. Fundamentally, by reason of there being no formal British constitution, there is no special legal procedure to amend it. The situation provides utmost flexibility since Parliament may alter the constitution by passing a statute in the ordinary way, by simple majority vote in parliament. Paradoxically, this can lead to overt instrumental usage, accommodating the political wishes of those who wish to control Westminster. Writing in 1952, Labour politician Aneurin Bevan lay down his hope of producing radical social and economic change without hindrance when boasting that, “The absence of a written constitution gives British politics a flexibility enjoyed by few nations. No courts can construe the power of the British Parliament. It interprets its own authority, and from it there is no appeal. This gives it a revolutionary quality, and enables us to entertain the hope of bringing about social transformations, without the agony and prolonged crisis experienced by less fortunate nations. The British constitution, with its adult suffrage, exposes all rights and privileges, properties and powers, to the popular will”. The United States 164 Constitution, by contrast, contains cumbersome safeguards for any type of amendment, thus rendering fundamental change an arduous task: a two-thirds majority in both Houses of Congress plus ratification by three-quarters of the state legislatures (Article V). 165 For it not being formalized, the British Constitution is nevertheless a reality. It comprises laws, judicial decisions, and different conventions, all hammered out – so to speak – on the anvil of experience. Indeed, parts of the governmental system are written down in Acts of Parliament (also called “statutes”). There is nevertheless no universally accepted definition as to which Acts have constitutional value, nor is there any certainty that these Acts have greater value than ordinary acts of Parliament. Put differently, it could be argued that the Scotch Whisky Act 1988 has the same value as the Magna Carta of 1215. Agreement on the list of Acts that form part of the UK constitution is more or less settled on the following: 162 Admittedly, the beheading of Charles I in 1649, Oliver Cromwell and the republican rule of 1649 to 1660 run against this presentation of a smooth historical evolution. It should be noted that the Levellers and Cromwell drew up a codified constitution – an Agreement of the People – which can be “regarded as the first codified constitution in modern European history”: cf. Vernon Bogdanor, The New British Constitution (Oxford : Hart Publishing, 2009), at 11. 163 Vernon Bogdanor, The New British Constitution, ibidem. 164 Aneurin Bevan, In Place of Fear (London : Heinemann, 1952), at 100. The same thought was echoed as recently as 1999 when a leading constitutional lawyer claimed that the doctrine of “legal sovereignty continues to rest with Parliament”, this being “the first constitutional principle of democratic socialism”: see K D Ewing, “The Human Rights Act and Parliamentary Democracy” (1999) Modern Law Review, 99. 165 Article VI, clause 2 of the US. Constitution (the Supremacy Clause) further provides that the constitution is “the supreme Law of the Land”. It should be noted that in certain countries, there are constitutional provisions that cannot be amended at all: the basic principles of the German federal system and the basic rights contained in Articles 1 to 20 of the Grundgesetz. 63 a). Constitutional time-line Magna Carta (1215) "Great Charter", is a charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the Archbishop of Canterbury to make peace between the unpopular King and a group of rebel barons. Many fundamental rights still find their root in the Magna Carta today. Case of Proclamations: 1610 (royal prerogative). The King wanted to proclaim something that didn’t exist before → the King wanted to proclaim that a certain amount of people could be able to make starch, buildings, and if not respected you would be punished by the court → important case because it is the first time that Westminster(parliament) said no. → this is English law today not just historical facts. The Case of Proclamations (1610) was a court decision during the reign of King James VI and I (1603-1625) which defined some limitations on the Royal Prerogative at that time. Principally, it established that the Monarch could make laws only through Parliament. The Bill of Rights of 1689: about citizens’ rights !!! Watch-out !!! there exists two Bill of Rights (also for the USA). The Act of Settlement of 1701 regulates the succession to the throne Reform Act 1832: franchise = vote right. Representation of the People Act 1918: extension of the franchise, i.e. gives the ability to women to vote Parliament Acts of 1911 & 1949, which reduced the power of the House of Lords. House of Commons has the last word and not the Lords. By way of illustration, Tony Blair wished to enact a to stop fox-hunting (>< House of Lords is made up of people who like to hunt foxes - rich people). Eventually, the law was adopted… European Communities Act (1972): legislation that gave effect to EU law in the UK. Please don’t forget Brexit (effective February 1, 2020). The U.K. will remain a MS of the Council of Europe (47 States). Human Rights Act 1998: important piece of legislation that incorporates the European Convention of Human Rights into domestic law. Besides the above-mentioned Acts of Parliament, Britain’s governmental system is made up of judicial precedent and constitutional conventions. An example of the former may be found in a number of landmark cases delivered over the centuries. The case of Entick v Carrington (1765) is noteworthy. The case concerned the constitutional issues of separation of powers, 166 the rule of law, and illegal searches and seizures. Specifically, the affair concerned the sending of messengers by Lord Halifax to take possession of all the papers and books contained in the house of John Entick, alleged to be writing material containing “scandalous reflections and invectives upon His Majesty’s government, and upon both Houses of Parliament” and thus being suspected of seditious libel. Acting upon instruction, the 166 Entick v Carrington EWHC KB J98, 19 Howell’s Sttae Trials 1029 (1765). 64 messengers went into the house of Entick and seized all his papers. The search, lasting four hours, offended Entick’s basic liberty to be free from invasion of property (in colloquial terms, one could say that “an Englishman’s home is his castle”…). Entick sued for trespass and won (without there being any need to show damages). The Court of Common Pleas, sitting in Westminster Hall, held that the person who provided the warrant – Lord Halifax – had no authority to behave the way they did: Halifax was acting as secretary of State when he issued the warrant and not as Justice of the Peace. He was thus acting in an executive rather than a judicial role and thus had no technical right to issue the warrant. Consequently, the guards who proceeded with the search – among whom Carrington – were liable of trespass. The dicta of Lord Chief Justice Camden stand out: “By the law of England, every invasion of private property, be it ever so minute, is a trespass. No man can set foot upon my property without my licence, but he is liable to an action though the damage be nothing”. Stated 167 differently, individuals are free to do anything that is not specifically prohibited and government agents cannot do anything that is not specifically allowed by case law or statute. Besides judicial precedent such as the one just described in Entick v Carrington, there exist many instances by which courts of law provide constitutional input through statutory interpretation. 168 For the most part, constitutional conventions are made up of accepted assumptions about the way things have been done in the past and should continue to be done in the future. They are to be distinguished from mere usage or behavioral quirks that have no political consequences (e.g. the Queen reading out a list of her government’s bills amid the pomp and ceremony of the yearly state opening of Parliament ). Conventions imply a genuine normative rule, i.e. 169 something obligatory and for which a penalty is exacted in the event that it is broken, albeit the penalty may be merely political. By way of illustration, it is commonly understood that the monarch must assent to all Bills properly passed by Parliament. Were the Queen to refuse her assent to legislation, a major constitutional crisis would ensue. Two issues arise from the existence of these conventions. The first is that, being conventions, they are nowhere specified, leaving their content and scope in a permanent state of limbo. The so-called Salisbury Convention thus emerged from working arrangements reached under the Labour Government of 1945-51 when the 5 Marquess of Salisbury was the leader of the th Conservative Opposition in the House of Lords. The problem of properly identifying and 170 delineating conventions is hence one of inductive generalization. In the words of one author, 167 The Police and Criminal Evidence Act 1984 provides for exceptions to the principle that the police cannot enter private property without a search warrant. 168 By way of illustration, in R v Secretary of State for the Home Department ex parte Simms and Another , the Home Secretary had imposed a blanket ban excluding visits to prisoners by journalists for interviews. The Appellate Committee of the House of Lords found this policy to be unlawful in so far as it interfered with freedom of speech. In substance, the Law Lords ruled against the Home Secretary’s interpretation of the relevant legislative provision and indicated that in the absence of express language in the legislation, the courts would presume that Parliament’s intention was not to infringe the basic rights of the individual. See R v. Secretary of State for the Home Department, ex parte Simms and Another 3 WLR 328 (House of Lords). 169 Gordon Brown broke this 150-year tradition in 2007 when he personally announced his draft legislative program before the Queen’s speech. This caused little controversy in Britain, the Financial Times referring to a “welcome change”. For the FT, “[t]he plans are government’s so it makes more sense for the PM to announce them than for the Queen, acting as the mouthpiece of the ruling party, to reveal them first” : “A familiar menu”, Financial Times, July 12, 2007. In the same critical vein, cf. “Throwing out the Queen’s Speech”, The Economist, November 11, 1995. 170 According to the Salisbury Convention, the House of Lords will refrain from voting down a Government Bill at second or third reading when that Government Bill was mentioned in the Government’s election manifesto. 65 they are “an expression and ex post facto legitimation of practices rather than principles… They reflect observed regularities of behaviour”. On occasion, conventions may become 171 Acts of Parliament: the Ministers of the Crown Act 1937 thus set and formalized the existence of the Prime Minister and his salary. The Parliament Acts 1911 and 1949 gave statutory 172 recognition to the practice that in cases of conflict between the two Houses, the Lords had to yield to the Commons (this being the “penalty” for the House of Lords’s rejection of Lloyd George’s “People’s” budget). The second – related – issue arising from conventions is that they cannot be enforced by a court of law (despite their embodying normative rules). Should the Queen withhold her assent, the outcome would be a non-justiciable crisis but her refusal as such could not be considered “unconstitutional” (in contrast with the United States where the word “unconstitutional” clearly means “contrary to law”). b). Constitutional pillars According to Albert Venn Dicey, there exist two main constitutional pillars: the rule of law and parliamentary sovereignty. 1 pillar: the rule of law st Is so fundamental to the C°. It’s a combination of ideas that we can't bend. Equality before the law, the right to silence, presumption of innocence. Dicey insists on: Equality before the law Right to silence Presumption of innocence 2 pillar: parliamentary sovereignty: nd The absence of an entrenched constitution in the UK is conceptually related to the doctrine of parliamentary sovereignty, or parliamentary supremacy. The doctrine, formalized in the late 19 century by legal theorist Albert Venn Dicey (1835-1922), means that Parliament is not th subordinate to any other body or group, either inside UK or outside, nor can Parliament bind its successors since it can make and unmake any laws to any extent. This doctrine – in its 173 traditional and absolute understanding – supersedes all others in one’s approach to the UK Constitution. For Dicey, “under all the formality, the antiquarianism, the shams of the British Constitution, there lies latent an element of power which has been the true course of its life 171 Cf. D Feldman, “One, none or several? Perspectives on the UK constitution(s)”, (2005) Cambridge Law Journal, 334. 172 For a summary of this statute, see “The Ministers of the Crown Act, 1937”, 1 Modern Law Review, pp. 145-148 (1937). 173 Cf. Albert Venn Dicey, An Introduction to the Study of the Law of the Constitution (1885). Never formalized in any Act of Parliament, the principle of parliamentary sovereignty may be viewed as the product an inductive approach to the behavior of Parliament and the courts over time. 66 and growth… the secret source of its strength is the absolute omnipotence, the sovereignty of parliament”. It stems from these assertions the logical conclusion that courts cannot declare a statute invalid and that there is no limit to what “the Queen in Parliament” can do: make wars, abrogate individual liberties, suspend habeas corpus, … With such a doctrine, it becomes perfectly coherent for Lord Hoffmann, a leading judge, to write in 1997 – without any objection in the realm – that, “[...] Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights”. Indeed, individual 174 liberties enjoy no protection in Britain. Governments can eliminate a right, no matter how basic or long-standing, in a single vote in the House of Commons. The House of Lords emphasizes this view of parliamentary supremacy pure and simple still today. The website of the Constitutional Committee of the House of Lords develops its view of this doctrine when it provides that the Committee “examines all Public Bills for constitutional implications and investigates broad constitutional issues”. With this view of parliamentary supremacy, taken 175 in its traditional and absolute form, the very assertion of constitutional rights could be viewed a misnomer. For Sir John Laws, writing in 2003, “there was in general no hierarchy of rights, no distinction between ‘constitutional’ and other rights. Every Act of Parliament had the same standing in law as every other, and so far as rights were given by judge-made law, they could offer no competition to the status of statutes. The courts evolved rules of interpretation which favoured the protection of certain basic freedoms, but in essence Parliament legislated uninhibited by claims of fundamental rights”. 176 Writing in 1867, the 19 century essayist Walter Bagehot (1826-1877) breaks down the th evolution of the British constitution into three great periods. The first is the ante-Tudor time 177 during which there “was a Parliament to advise, but scarcely a Parliament to control. […]”. 178 Bagehot scarcely sees any legislation worth mentioning during this time. Even the Magna Carta is dealt with in passing-by as a non-novelty. The second period of the British 179 Constitution begins in 1485 following the defeat of Richard III at the Battle of Bosworth Field. With the ascent to the throne of Henry Tudor and the beginning of a convoluted and 180 bloody time that would last until 1688, this period is “in substance the history of the growth, development, and gradually acquired supremacy of the new great council. [T]he slavish Parliament of Henry VIII grew into the murmuring Parliament of Queen Elizabeth, the mutinous Parliament of James I, and the rebellious Parliament of Charles I. The steps were many, but the energy was one […] ”. Bagehot sets the start of his third period in 1688, at the 181 end of the Stuart dynasty. Drawing a comparison with the Greek cities, he argues that, “the appendages of a monarchy have been converted into the essence of a republic; only here [and 174 R v. Secretary of State for the Home Department, ex parte Simms and Another 3 WLR 328, 341 (House of Lords)(per Lord Hoffmann). 175 Cf. role of the Constitutional Committee of the House of Lords, Internet available at http://www.parliament.uk/business/committees/committees-a-z/lords-select/constitution-committee/role/ (visited April 9, 2013). 176 International Transport Roth GmbH v Secretary of State Q.B. 728 (per Sir John Laws). 177 Walter Bagehot, The English Constitution (Oxford: OUP, 1945), at 245. 178 At 246. 179 At 248: “Even in the ‘Great Charter’ the notion of new enactments was secondary, it was a great mixture of old and new; it was a sort of compact defining what was doubtful in floating custom, and was re- enacted over and over again, as boundaries are perambulated once a year, and rights and claims tending to desuetude thereby made patent and cleared of new obstructions”. 180 The Battle of Bosworth Field (August 22, 1485) and the passing of the crown from the Plantagenet Dynasty to the Tudor Dynasty, put an end to thirty years of civil commotion known as the War of the Roses. The House of York, of which Richard III was the final leader, was represented by white roses and the House of Lancaster, associated with Henry VII, was represented by red roses. The 181 At 249-50. 67 in contrast with the Greek cities], because of a more numerous heterogeneous political population, it is needful to keep the ancient show while we secretly interpolate the new reality”. 182 Where does Bagehot’s historical account, interrupted in 1867, leave us today? The turn of the 20 century, with the adoption of the first Parliament Act in 1911 (complemented by the th second Parliament Act in 1949), was particularly noteworthy in the evolution of the British Constitution. The House of Lords was effectively deprived of its absolute power of veto on legislation, marking a significant step in the gradual democratization of the British Constitution. The turn of the 21 century was also noteworthy. New Labour, elected at the st general election of May 1997, undertook major constitutional changes. This prompts us to make a series of cursory observations. One item remains unarguable. As mentioned above, a logical conclusion that stems from the sovereignty of parliament is that there is still no need for a pre-eminent constitutional document in the UK. Naturally, “… if Parliament is sovereign then there is no point in having a codified constitution. […] a codified constitution is incompatible with this principle. A constitution would have specifically to limit the sovereignty of Parliament”. Absent a written constitution, the UK is thus left with two 183 opposing camps. On the hand, there are those who consider the present situation antiquated and antidemocratic. Many basic freedoms would be in sore need of protection, requiring root- and-branch constitutional reform and a setting aside of the pragmatic incrementalism that has so typified the evolution of the British Constitution thus far. The enactment of the Asylum and Immigration (Treatment of Claimants, etc.) Act in 2004 seemed to vindicate the fears of people in this camp. When passed, many considered that the Act, applicable in the main to 184 asylum seekers, undermined fundamental aspects of the British Constitution, thus warranting debate on whether the time has come for a written constitution. Critics aimed at a specific – 185 and controversial – provision contained in the Act, most notably that failed asylum seekers who refuse a government-funded flight home lose their social security benefits (section 19). If left destitute, their children could be taken into the care of local authorities (prompting two types of fears: either driving failed asylum seekers underground and actually making it harder to remove them, or giving them an incentive to leave their children in the care of local authorities, at public expense). Should such fears not be addressed in a pre-eminent written compact that would prevent such legislation from being enacted? At the opposite end, there are those who consider the absence of written constitution a continued source of pride. To point, Britain remains a stable democracy, universally admired – if not copied throughout the world. In the eyes of this group, the existence of its unwritten constitution is an illustration – and monument – to British pragmatism. Its flexibility would be perfectly suited to the demands of today’s fast-changing society. The constitution could not be bettered and fears of the country tipping into despotism would be unfounded. In line with the ingrained conservatism of many Britons, the partisans of this group further show wariness towards rapid change. They are suspicious of grand schemes of improvement and reluctant to abandon the tried course of centuries-old historical growth for the uncertainties of the new. In short, why bother…? 182 At 253. 183 Vernon Bogdanor, The New British Constitution, op. cit., at 13-14 (no emphasis added). 184 For the complete text of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, see http://www.legislation.gov.uk/ukpga/2004/19 (visited April 11, 2013). 185 Cf. Rabinder Singh and Sam Grodzinski, “Asylum Bill threat to habeas corpus”, The Times (Law), December 16, 2003, p. 4. 68 The debate as to whether or not Britain should put its constitution in writing has taken particular momentum since the 1990s. With hindsight, the uproar coincided with two series of events combining geopolitical and domestic concerns. Firstly, the debate took place at a time when democracy was taking root in many parts of the ex-Communist world. All across Europe, there was an acute need to embark on a clear path of change regarding the way peoples were governed. This implied ambitious agendas of reform and a major overhaul of the protection of fundamental rights from the encroachments of almighty governments. In addition to changes observed across the Channel, the British could but only take note of changes at home brought about by (1) EU membership, (2) Labour’s commitment to enhance the protection of civil liberties, and (3) growing disaffection with the relentless concentration of power in London. By reason of their taking note of these changes, and giving substantive flesh to them, the British have effectively been transforming their un-codified constitution into a codified one (albeit in a piecemeal and ad hoc way). c). Current Strains on the British Constitution 1). UK membership in the EU. Twice rejected in the 60s. But accession in 73. Bumpy relationship from the start (vote to remain in 1975, BBQ in 1984, creeping Euroscepticism…) as soon as the UK joined they had second thoughts about it and had a referendum in 1975 (voted to remain). To comply with EU law, British legislation had to be “set aside”… Ever- increasing euroscepticism led to the Brexit vote of June 23rd 2016. 2). European Convention on Human Rights (ECHR) The UK was the first State to sign it (1951). However, the UK waited nearly 50 years (Human Rights Act 1998: supra) to incorporate the ECHR into their domestic order (it became enforceable). The HRA 1998 gave British courts the possibility to say there was a problem between British Law and the ECHR. Courts still don’t have the power to invalidate an English law but they can deliver a “declaration of incompatibility” between an English law and the rights protected in the ECHR, that almost has that effect (political value only). 3). Devolution For centuries, the British equated civilization with centralization. The Anglo-Irish political thinker Edmund Burke (1729-1797) expressed his hostility at French plans for strong municipal government as “barbarous”. Most of the U.K.’s totemic achievements – from the Reform Act 1832 to the establishment of the National Health Services in 1948 – sapped local power and hoarded responsibilities in London. This trend then buckled with “devolution”. The concept of “devolution” refers to statutory delegation of power from central government to “lower” bodies (national, regional, or local level). As far as relevant, it covers varying degrees of decision-making authority that were conferred from Westminster to Scotland, Wales, and Northern Ireland in the late 1990s. The primary effect of devolution has been to 186 set up new democratically elected bodies and to grant substantial powers to devolved legislatures and executives, thereby modifying the constitutional balance of power between central government and the regions. Devolution is not the same thing as federalism since the powers devolved ultimately reside in central government. The Westminster Parliament retains 186 Devolution also concerned the introduction of a Mayor and Assembly for London. 69 sovereignty and the State remains, de jure, unitary. Put differently, a devolved parliament can be repealed by central government in the same way an ordinary statute can be. The legal framework of devolution is primarily to be found in acts of the U.K. Parliament (developed below) but also in soft-law agreements, known as concordats, which reflect the dominance of Whitehall over the devolved administrations. As such, devolution is not a recent 187 phenomenon. It began in Northern Ireland with the partition of Ireland in 1922. It thereafter resurfaced in the 1970s as a major political platform of the Labour Party, seeking to capitalize on significant Conservative decline in Scotland and Wales and a necessary rebalancing of economic growth throughout the “peripheral” areas of the U.K. Devolution concerns three 188 nations: (i) Scotland, with the adoption of the Scotland Act (SA) 1998 ; 189 (ii) Wales, with Government of Wales Act (GWA) 1998, setting up a Welsh Assembly (modified by the Government of Wales Act 2006, establishing a separate executive drawn from and accountable to the legislature); and (iii) Northern Ireland, with the Belfast Agreement (also known as the Good Friday Agreement or Stormont Agreement) of April 10, 1998, leading to a referendum on this Agreement, which then formed the basis of the Northern Ireland Act (NIA) 1998. The devolution arrangements that resulted from these changes reflect an asymmetrical distribution of powers by reason of the distinct history of each nation, along with separate cultural identities and languages. The powers of the Scottish Parliament are not those of the 190 Assemblies in Wales and Northern Ireland. Furthermore, the entire phenomenon of devolution may be described as “a process, not an event”. As such, devolution has further to run. Finally, the Judicial Committee of the Privy Council originally dealt with the ambit of 191 devolved powers and had the power to set aside legislation that was deemed to be outside of the competence of the new decision-making authorities. Similarly, the Privy Council had 192 jurisdiction over challenges brought to Acts of the Scottish executive or legislation enacted by the Scottish Parliament based on alleged incompatibility with the European Convention on Human Rights. When the Supreme Court replaced the Appellate Committee of the House of Lords in October 2009, it took over jurisdiction for devolution and incompatibility cases from the Judicial Committee of the Privy Council. 193 187 By way of illustration, see http://www.scotland.gov.uk/About/Government/concordats (visited May 8, 2013). 188 The economic boom of South-East England in the 1980s was viewed as having taken place at the expense of the rest of the U.K. 189 For the text of the SA 1998, cf. http://www.legislation.gov.uk/ukpga/1998/46/contents (visited May 8, 2013). 190 For extended discussion on the issue of asymmetrical devolution – sometimes referred to as the “West Lothian Question” – cf. Vernon Bogdanor, The New British Constitution (Oxford: Hart Publishing, 2009), pp. 98-110. 191 Ron Davies (former Labour Welsh secretary), quoted in Brian Groom, “”Untied Kingdom. Scotland and the Union”, Financial Times, January 28-29, 2012. 192 By way of illustration, SA, 1998, s 98, sch. 6. 193 Constitutional Reform Act 2005, s 40, sch 9. 70