Mark Elliott: Devolution, the West Lothian Question, and the nature of constitutional reform in the United Kingdom
Earlier this week, the McKay Commissionpublished its Report on the Consequences of Devolution for the House of Commons. The Commission’s terms of reference required it to determine “how the House of Commons might deal with legislation which affects only part of the United Kingdom, following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales”. In other words, the Commission was established to do that which Lord Irvine of Lairg (in)famously counselled against: viz to tackle the West Lothian Question. (Irvine reportedly said that the best thing to do about that question was to “stop asking it”.) There are various ways in which the question can be framed. The Commission, for its part, took the central issue to be the possibility that “MPs from outside England could help determine laws that apply in England, while MPs from England would have no reciprocal influence on laws outside England in policy fields for which the devolved institutions would now be responsible”.
The notion of reciprocity—or, more accurately, the lack of reciprocity that is a function of the UK’s asymmetric model of devolution—has always been at the heart of the West Lothian Question. Viewed more broadly, the fact that the West Lothian Question has arisen and remained unanswered for so long is reflective of a typically British approach to constitutional reform—one that treats the constitution as a work-in-progress, and which accepts disjointedness and inelegance as the price of pragmatism and speed. Within that tradition of constitutional reform, loose ends are an inevitable result of an underlying reluctance to confront big-picture questions. The McKay Commission’s approach to the West Lothian Question is of a piece with this dominant approach to constitutionalism in the UK, in that it proposes a practical solution that leaves the some fundamental questions unanswered.
The Commission’s guiding principle—and where that principle did not lead it
The Commission is clear that doing nothing should not be regarded as a viable option. In doing so, they rightly reject the view (advanced by Vernon Bogdanor in evidence to the Commission) that because England has a de facto predominance in the UK, it has “no need to beat the drum or blow the bugle”. Bogdanor argues that if England seeks to exploit its inherent dominance, it may strain the Union to “breaking point”. But this overlooks the potentially fissiparous effect of leaving the West Lothian Question hanging and thereby stoking a sense of disempowerment. This is a sphere in which perception matters: and the risk is that England may perceive itself to be (as Richard Rawlings, “Concordats of the Constitution” (2000) 116 LQR 257, put it) “the spectre at the feast”.
Instead, the Commission concludes that: “Decisions at the United Kingdom level having a separate and distinct effect for a component part of the United Kingdom should normally be taken only with the consent of a majority of the elected representatives for that part of the United Kingdom.” The Commission recommends that this principle be adopted by means of a resolution of the House of Commons. The question then became how this guiding principle should be given practical effect.
One obvious issue is that the “separate and distinct effect” formulation is undeniably vague. As Brigid Hadfield, “Devolution, Westminster and the English Question”  PL 286, put it, “What … is an English law? If it cannot be defined with sufficient precision, then non-English MPs cannot fairly be precluded from voting on it.” By advocating the vaguer “separate and distinct effect” formulation, the Commission implicitly acknowledges that the matter is a complex one in relation to which judgement would have to exercised, rather than something that can be reduced to a clear-cut formula. But acknowledging complexity is not the same thing as resolving it, and the application of the “separate and distinct” criterion would doubtless excite controversy. Such definitional difficulties are not good reasons for shelving attempts to resolve the West Lothian Question (on the ground that it is all too difficult), but there is clearly further work to be done here.
Leaving to one side the inevitable questions of categorisation, how does the Commission propose that its guiding principle should be implemented? It rejects the creation of a separate English legislature, arguing that it might have a destabilising effect and would likely require wholesale constitutional reform. What, though, of the more modest proposal that only MPs representing English constituencies (or MPs representing English and Welsh constituencies) should be allowed to vote on laws likely to have a “separate and distinct effect” upon England (or upon England and Wales)?
The Commission rejects this option too. Its reasons for doing so are largely pragmatic. In particular, it fears that different “classes” of MPs would be created, and that the possibility of “deadlock” would arise: a Government might enjoy a majority in Parliament as a whole whilst lacking an outright majority of English MPs. Such a scenario is alien to the standard modus operandi of the UK system, in which (typically) a single party has an overall majority such that the Executive is able to drive its business through Parliament with (at least a degree of) impunity. In any event, the flip-side of the “deadlock” problem is arguably more profound. It concerns the dual functions ascribed to the post-devolution UK Parliament, whereby it is required to sustain not only the UK Government but also the de facto English Government. This is the sort of big-picture issue that the McKay Commission fails squarely to confront—a point that I develop below.
The Commission’s key proposals
Having rejected an English Parliament and “English votes for English laws” (along with various other options), the Commission concludes that its guiding principle should be implemented (first) by giving a voice to English (or English and Welsh) MPs in relation to relevant Bills, and (second) by making it politically difficult—but not impossible, either as a matter of law or parliamentary procedure—to enact relevant Bills in the absence of majority support on the part of relevant MPs.
As to the first point, the Report says that “views from England (or England-and-Wales) should be known before a final decision is made about something with a separate and distinct effect”. The Commission identifies a range of ways in which this might be achieved. One possibility is modelled on “legislative consent motions” whereby, under the Sewel convention, the consent of a devolved legislature may be sought to the enactment of UK legislation encroaching upon devolved competence. The McKay Commission envisages that an analogous procedure might be used in relation to UK legislation liable to have a “separate and distinct” effect upon England (or England and Wales), the suggestion being that a Grand Committee consisting of all MPs representing relevant constituencies would render an opinion (by means of a resolution) as to whether the (relevant parts of the) Bill should be proceeded with. Other options identified by the Commission include debating a motion “expressing an opinion on that part of a bill relating separately and distinctly to England (or England-and-Wales)”, and the committal of relevant Bills to specially-constituted Public Bill Committees in which the party balance would reflect that which obtained in England (or England and Wales) rather than in the whole House. The Report does not express a firm conclusion as to which of these options should be taken forward; it identifies further questions that would need to be resolved, and suggests that the Government should put its preferred options to the House of Commons, and that a Select Committee should subsequently advise the House on points of detail.
So much for a distinctive English (or English and Welsh) “voice”. What if that voice (by a majority) opposes a Bill or relevant parts of it? Here, the Commission is very clear that MPs representing English (or English and Welsh) constituencies should not have a power of veto. It therefore rejects a “double-lock” procedure, under which it would be necessary, where relevant, to secure the approval not only of a majority of all MPs but also the approval of a majority of English (or English and Welsh) MPs. This reflects the Commission’s view that once the views of MPs representing particularly affected parts of the country have been heard and considered, “the UK majority should prevail, not least in order to retain the UK Government’s accountability at election time for decision-making during its time in office”.
However, at the same time as rejecting a “double-lock”, the Commission proposes a “double-count” procedure. This would involve making public not just the names of MPs who voted for and against the Bill, but also the constituencies they represent—with a view to determining whether relevant Bills (or provisions) attracted the support of a majority of MPs representing relevant constituencies. Although no legal or procedural consequences would ensue if a majority of the latter type were not secured, the Commission envisages that “if a government was seen to have failed to attract the support of a majority of MPs from England (or England-and-Wales) for business affecting those interests, it would be likely to sustain severe political damage”. The intention, therefore, is to disincentivise the use of MPs from unaffected (or less affected) parts of the country to push through legislation against the wishes of the majority of MPs representing particularly affected parts of the UK, whilst stopping short of preventing such a practice.
In preferring double-count over double-lock, the Commission cites its own guiding principle—that decisions “should normally be taken only with the consent of a majority of the elected representatives for that part of the United Kingdom” (emphasis added). The Commission’s defence of this position rests upon the principle of reciprocity. Devolved legislatures’ wishes with respect toincursions by Westminster into areas of devolved competence are normally respected (via the use of legislative consent motions under the Sewel convention), but are not necessarily respected (because Westminster could, at least in theory, override their wishes by asserting its legislative supremacy, which is undiminished by devolution).
By the same token, while English (or English and Welsh) MPs should be able to object to UK legislation likely to have “separate and distinct” effects upon England (or England and Wales), they should not thereby be able to veto such Bills. Instead, the consequences of oibjecting—like the consequences of a devolved legislature refusing to endorse a legislative consent motion—should play out on the political stage. The essence of the proposal, therefore, is to place (for these purposes) the group of MPs representing English (or English and Welsh) constituencies in a position vis-à-vis the (full) Westminster Parliament that is analogous to the position that devolved legislatures occupy in relation to Westminster. And, as the Commission notes, the analogy would likely be extended by the emergence of a constitutional convention corresponding to the Sewel convention. (It is worth noting in passing that the likely prescriptiveness of such a convention would mean that a double-lock requirement might well obtain in effect if not in form, just as the UK Parliament’s capacity unilaterally to interfere in devolved affairs is rendered essentially notional by the Sewel convention.)
The bigger picture
The analogy outlined above is persuasive as far as it goes—but, arguably, it does not go far enough because it takes insufficient account of two sets of distinctions and the relationship between them. First, there is the distinction between the twin roles performed by all Westminster-style legislatures: viz legislating, on the one hand, and determining the composition of and sustaining the Executive, on the other. Second, there is the distinction between the way in which the Westminster Parliament, on the one hand, and the devolved legislatures, on the other, discharge those roles. The McKay Commission’s focus is upon the way in which the Westminster Parliament discharges its first—i.e. legislative—function. But there is insufficient consideration of the second function—i.e. determining the composition of and sustaining the Executive.
The analogy between devolved legislatures and Westminster breaks down because, unlike the former, the latter has to determine the composition of and sustain a Janus-like Executive: one that functions both as the Government of the United Kingdom and as the Government of England. Within this distinction is concealed the West Lothian Question writ large. As conventionally framed, the West Lothian Question is concerned with micro-level (albeit important) questions concerning Parliament’s legislative function and its exercise in relation to individual Bills. But a macro-level question also arises. Because the Westminster Parliament must sustain not only the UK Executive but also the de facto English Executive, no amount of finessing of the procedure whereby legislation is enacted can get around the possibility that elections to the UK Parliament may yield an Executive that does not accurately reflect the wishes of voters in England (as refracted through Parliament as an electoral college). Indeed, the 2010 election is a case in point, in that the Conservative Party won an overall majority of English but not UK constituencies.
It is in this sense that the McKay Commission might be said to have failed fully to grasp the nettle. The underlying issue that is never fully grappled with is that the post-devolution Westminster Parliament is required to perform a set of functions that may be in tension with one another. And this raises questions about our constitutional architecture more profound than those addressed by the Commission. It does not, of course, follow that that particular nettle should be grasped. As noted at the outset of this post, a certain degree of messiness is an unavoidable byproduct of the approach that characterises constitutional reform in the UK—and history teaches that the results of that approach do not necessarily yield a constitution lacking workability or public acceptance.
Viewed thus, the McKay Commission’s proposed solution to the West Lothian Question is of a piece with the type of constitutionalism that generated the question in the first place. It provides a partial, practical workaround to a problem created by a disjointed set of constitutional changes. Whether all of this showcases the merits of the UK’s highly pragmatic approach to constitutional reform or reflects a failure to confront difficult and fundamental questions is a matter of perspective. In any event, the McKay Commission’s Report shows that Lord Irvine was wrong; the West Lothian Question needed to be asked, and we could do a lot worse than answer it by implementing the Commission’s proposals. It is likely, however, that the concern underpinning Irvine’s reluctance to engage with the question derived from his recognition that once one begins to pick away at the loose edges of the constitution, it may quickly begin to unravel. It follows, then, that while asking the West Lothian Question is not unwise, thinking about it too hard might well be discomforting.
Mark Elliott is Reader in Public Law at the Faculty of Law, University of Cambridge.
Suggested citation: M. Elliott, ‘Devolution, the West Lothian Question, and the nature of constitutional reform in the United Kingdom’ UK Const. L. Blog (26th March 2013) (available at http://ukconstitutionallaw.org)
When it was introduced in 1999, devolution for Scotland, Wales, and Northern Ireland was recognized as a constitutional change of pivotal importance. This article argues that devolution has been a dynamic process which has triggered further important constitutional changes. The first section provides a conceptual discussion of devolution by comparing it with federalism as a system of territorial government. In order to further develop the argument, attention is then concentrated on the evolving characteristics of the respective systems in Scotland, Wales, and Northern Ireland. Particular attention is devoted to crucial issues of constitutional design. For example, this includes the failure to establish a link between revenue raising and spending in Scotland; the creation of a Welsh Assembly without sufficient law-making powers; the debate over the functions granted to the Northern Ireland executive. Next the discussion turns to the so called West Lothian question which draws attention to the most pronounced asymmetry caused by devolution, namely, the implications of not having an equivalent level of devolved government for England. Finally, the discussion examines the impact of devolution on legislative procedures and the use of legislative consent motions. The article concludes by considering the trajectory of the changes to each devolved system and related constitutional implications.
The introduction of devolution under the new Labour government elected in 1997 was a radical constitutional change; however, it was not undertaken as part of a wider strategy of constitutional transformation.1 Rather, the package of measures contained in each devolution statute and subsequently ratified by referenda represented a distinct and pragmatic attempt to solve particular problems and aspirations associated with Scotland, Wales, and Northern Ireland. The schemes set in place, under the 1998 legislation, were meant to confer sufficient power to satisfy local political conditions while also addressing the dissatisfaction felt in the most far-flung parts of the United Kingdom with the centralizing tendencies that had been emanating from Westminster under the previous Conservative administration.2 In its effect, devolution has also contributed significantly to creating what has been termed “a multi-layered constitution,” featuring a hollowing out of central government power, which has come to be located at several different levels and which is exercised in many different ways, adding greatly to the complexity of modern governance.3
The discussion that follows demonstrates how devolution has been employed in the United Kingdom in a somewhat different way from federalism as a mechanism for organizing the division of powers and functions between national and subnational government. However, it is mainly argued here that it is incorrect to regard these changes as forming a new constitutional settlement.4 While it is true that the nature of the Constitution has been transformed in fundamental respects, and that certain local aspirations in Scotland, Wales, and Northern Ireland have been met, devolution has triggered a process of ongoing constitutional change at many levels. There was a lack of any overall reflection on the wider constitutional impact that would be caused by the extreme asymmetry in the way power has been distributed and exercised. For example, we will see that the Scottish government, now under the control of the Scottish National Party, only views the current arrangements as a staging post on the road to full independence. The Government of Wales Act (GWA) 2006 put the seal on a second phase of Welsh devolution by granting the devolved bodies enhanced lawmaking powers; however, this was also an acknowledgment of the limitations of the original scheme. Devolution in Northern Ireland has been plagued with difficulties, leading to suspension on three occasions up until its most recent and so far sustained relaunch in 2007. More generally, the funding arrangements for devolution under the Barnett formula,5 which have remained in place since its launch in 1999, have been called into question and may soon be replaced by an alternative method of revenue raising.
Perhaps the most serious constitutional imbalance has concerned the implications for Westminster and the lack of any equivalent form of government for England. In constitutional terms, it is as if each nation comprising the U.K. has embarked on a journey with an uncertain destination. Viewed from a rather different perspective, it will also become apparent that devolution has not only involved the introduction of innovative legislative and oversight processes in Scotland, Wales and Northern Ireland, which have so far proved more resistant to executive domination than their counterparts at Westminster, but it has also had unanticipated consequences here, as well. One such result, which will be discussed briefly below, has concerned the continuing importance of Westminster legislation in the devolved areas of the United Kingdom.6 In view of the many changes in the form of devolution alluded to in this essay, it is suggested that not only is devolution itself a dynamic process but that it has also exerted a major influence on the development of the U.K. constitutional system.
2. Comparing devolution to federalism
In terms of constitutional design, federalism and devolution have certain characteristics in common but at the outset there are important distinctions which also need to be made. The United States is frequently thought of as a prototypical federal system. Certainly, it was the first modern constitution to exhibit key federal characteristics which have been widely replicated in other constitutions.7 The core principle of separation of powers is employed equally at national and at state level. Indeed, there is an institutional-mirroring effect with the national institutions of president, Congress, and Supreme Court almost precisely replicated in each state by governor, state legislature, and a state supreme court, and with identical powers and functions granted to all the states that comprise the federation.
Although the federation which comprises the United States of America has greatly expanded from the original thirteen states that declared independence, there has been a symmetrical approach to the conferment of powers and functions to the individual states.8 In fact, the majority of federal systems are symmetrical9 in their conception, and all federal systems have been conceived as part of a written constitution. On the other hand, the asymmetry of devolution is one of its most distinctive features. In broad terms, U.K. devolution has been described as involving “… the transfer of powers from a superior to an inferior political authority. More precisely, devolution may be defined as involving three elements: the transfer to a subordinate elected body, on a geographical basis, of functions at present exercised by ministers and Parliament.”10 However, with U.K. devolution there has been no standardized constitutional method of approaching the task. From this discussion, it will become clear that the devolved systems for Scotland, Wales, and Northern Ireland are each significantly different from the other, with each devolution statute functioning almost as a constitution for that part of the United Kingdom, while no devolution of any kind has been introduced for England. Moreover, it will be apparent from this discussion that a new dynamic has been created by the lack of constitutional balance created by these extremely diverse conditions.
Further, in a formal sense, federalism is often regarded as a method for sharing sovereignty among governments within a single state as part of a rigid written constitution. For example, in the United States the powers not delegated to Washington under the U.S. Constitution are reserved to the states.11 Provided that there is no conflict with constitutional provisions, the states have legislative powers over certain areas ranging from criminal law to family law. By way of contrast, a crucial feature of devolution is that, despite the conferral of considerable powers, including in the case of Scotland and Northern Ireland the introduction of a subnational body with lawmaking power, legal sovereignty is retained by the Westminster Parliament. The devolution legislation not only has elaborate provisions to prevent sovereignty from becoming undermined, for example, in the form of prelegislative and postlegislative scrutiny,12 but further, once an act of the Scottish Parliament or Northern Ireland Assembly has been passed, the Scottish High Court of Justiciary and ultimately the U.K. Supreme Court will be responsible for deciding the limits of the legislative competence of the Scottish Parliament or Northern Ireland Assembly. Judicial review can be used to determine “a devolution issue,” and this may involve the Court's declaring an act of the Scottish Parliament or Northern Ireland Assembly invalid. In practice, the extent to which this distinction is important might be contested.
Both federalism and devolution have been adopted as constitutional strategies to address problems that are essentially political. It has been observed that “[f]ederalism developed as a response to the ancient question of how to link separate political communities together in order to pursue effectively objectives unobtainable alone, but without submerging their own identities.”13 Federal constitutions have been introduced as a method of accommodating diversity, especially in large nation-states. It has been argued that “[a]t a deeper level, the contemporary constitutional agenda of sub-state national societies also represents a theoretical challenge to those conceptual and normative assumptions which underpin a monistic approach to liberalism and to liberal constitutionalism—assumptions which presuppose the existence of only one people or demos within the state.”14 The identity of the individual units associated with the confederation is recognized, and this might include the accommodation of tensions between linguistic, ethnic, and religious groups.15 The special status of Quebec in Canada would be an obvious example.16 Devolution has been adopted for similar reasons in Indonesia (Aceh), Spain (Catalonia, Basque Country, and Galicia), and, perhaps most prominently, in the United Kingdom. In fact, as we will observe below, the form of devolution introduced under the Northern Ireland Act 1998 results directly from the Belfast (Good Friday) Agreement of 1998. It not only creates a unique system of compulsory power sharing at every level of decision making to ensure joint participation by both communities in the processes of government but also, as we will see when discussing Northern Ireland below, it requires supranational, multileveled, and multilayered cooperation in the form of North / South Ministerial Council and the British-Irish Council.
In many federal systems, the Supreme Court or a constitutional court is responsible for policing the boundaries between the component parts of the system via judicial review of legislation.17 In the case of the U.K., devolution issues can be referred to the U.K. Supreme Court for judicial resolution; however, despite the range of measures to rein in the powers of the devolved institutions in the U.K., the legal contestation of these powers has so far been marginal.18 One reason for the lack of litigation associated with the allocation of functions since the introduction of devolution has been because concordats have been of practical importance for the administrative implementation of devolution.19 Concordats emerged fairly late in the process and “represent a further step down the road of juridification in the form of ‘bureaucratic law.’ ”20 Thus, for a picture of U.K. devolution to come into any sort of focus we find that, certainly at an administrative level, reference must be made to this developing body of nonjusticiable soft law. Concordats consist mainly of a memorandum of understanding linked to informal, mostly bilateral, agreements between the Westminster government and the devolved administrations. They have been referred to as “a form of codification of the processes of government”21 that have not only contributed significantly to continuity and the smooth transition of policy but have also helped facilitate policy coordination between the many overlapping layers of modern governance.22
In terms of administration, devolution should not be regarded as a fresh start. On the one hand, the policy initiatives in Edinburgh and Cardiff have been and continue to be implemented by a cadre of civil servants schooled in the traditions of the U.K. home civil service. On the other hand, the ground rules for the operation of devolution have been negotiated by officials from the Westminster government mainly on their terms. In consequence this network of concordats have been, in effect, employed as a means of setting an unofficial seal on an existing bureaucratic culture centred upon the influence of Whitehall and the Cabinet Office.23 In a positive sense this approach helped to achieve continuity in policy administration in a changed constitutional landscape but at the same time this has meant that existing civil service custom and practice is perpetuated as part of these intergovernmental relations.24
At a certain level, federalism and devolution both concern the distribution of powers and functions between a national and a subnational layer of government, and so, in a practical sense, it is not surprising that there are many common issues to address. For example, it will nearly always be the case that national government predominates over economic management and retains responsibility for defense, foreign affairs, international trade, and immigration. Further, certain laws relating to individual citizens apply throughout the nation with common agencies for law enforcement. In both cases there will be democratically elected institutions at the national and subnational levels, often including a lawmaking process, although in other respects the precise form of federal and of devolved systems will be adjusted to suit local conditions. This means that there is no set pattern for the division of competences between national and subnational governments, which is what distinguishes a federal system from devolution. But in both cases there is scope for changing the distribution of functions and powers between the two levels of government. For example, policing and justice powers were transferred to the Northern Ireland Assembly from the Westminster government in April 2010, following the Hillsborough Castle Agreement. With respect to the United States, Mark Tushnet has recently pointed to a contrary trend, observing that the “[n]ational government is today essentially a government of plenary power over all subjects” with national law pervading many areas apparently falling within the province of the states. To illustrate the point he notes, somewhat ironically, that robbing a neighborhood grocery store has been made a federal crime.25
In sum, it will be apparent that federalism and devolution, almost inevitably, have shared characteristics since they are essentially addressing the same question, namely, how to define the political organization prevailing within separate polities while maintaining the union of the overarching political system.26 U.K. devolution diverges from most forms of federalism in three crucial respects. These are: the startling asymmetry of its design, which leaves England without any equivalent layer of government; the fact that legal sovereignty is not divided but still ultimately retained by the Westminster Parliament; and the manner of its administration by soft-law concordats, which, in turn, have marginalized the role of the courts in resolving disputes between central and devolved governments. These are distinctive features and, in consequence, devolution should not be regarded as an intermediate step toward federalism.27 Looking to the future, we should remember the pragmatism of the original conception and regard this element as the main guiding principle of devolution. We should therefore expect further incremental adjustments to the existing schemes of devolution in Scotland, Wales, and Northern Ireland to meet the political, economic, and legal challenges ahead.28
3. Reviewing the national dynamics
Devolution has resulted in the four nations that make up the United Kingdom having different systems of government, although, in each case the introduction of devolution has triggered further questions for constitutional resolution.
Scotland has the strongest form of devolved government, reflecting the high degree of support for devolution. Although devolution fell short of the objective of some nationalists, it was expected to satisfy the aspirations of most of the Scottish electorate. In fact, lately there have been more strident calls for an independent nation, a trend to some extent reflected in the political success of the Scottish National Party, which formed a minority government after emerging as the largest party in the 2007 elections. The party is committed to holding a referendum on Scottish independence.
Scottish devolution is based on a single chamber Scottish Parliament (SP) of 129 elected members with full lawmaking powers over devolved functions.29 The SP is elected for a four-year term.30 Following an election to the SP, a government is formed after the SP has nominated a first minister. The first minister is empowered, in turn, to appoint ministers from members of the Scottish Parliament (MSPs) in order to form a Scottish executive (now called the Scottish government). The executive group of ministers is roughly equivalent to the cabinet (under the Westminster system), and the ministerial appointments are made subject to royal approval.31 The SP and government have responsibility for many aspects of Scotland's domestic policy; but at the same time there are particular functions reserved for Westminster.32 The Scottish government is the administrative organ that has taken over most of the powers of the Scottish Office,33 and it is responsible for the implementation of policy in Scotland. The SP also exercises an oversight function by way of “subject” committees, which shadow the main Scottish departments.34 The lawmaking power of the SP, although described as primary legislation, is not comparable with the Westminster Parliament's primary legislation; the SP is strictly limited to matters within the scope of its legislative competence, reflecting the concern of Westminster to retain its legal sovereignty.35 In essence, Scottish devolution introduced a locally elected Parliament, and the functions previously performed by the Scottish Office were assigned to the Scottish government. This gave Scotland improved mechanisms of accountability that involve an increased level of political participation and representation.36
From the outset, the arrangements in Scotland had weaknesses with a potential for undermining the stability of the new structure. In particular, the Scottish Parliament and government were granted limited tax-raising powers.37 These were unlikely to be used because of the political unpopularity that would be generated by adding to the tax burden in Scotland. This has meant that the method of funding for Scotland and, incidentally, for Wales and Northern Ireland, has remained under the preexisting block-grant system,38 which is determined by the Westminster government.39 In one sense, the secure funding base made a considerable contribution to the smooth transition at the time devolution was introduced. The relatively generous financial provision from Westminster had allowed each devolved administration considerable flexibility in funding the competences falling under its remit. This so-called Barnett formula works by establishing a ratio by which the total spending is fixed in relation to England. Thus, the levels of spending made available to Scotland, Wales and Northern Ireland are related to the sums allocated in the same designated policy areas by the Westminster Parliament.40 An overall budget is fixed annually by the Westminster Parliament in each departmental field. The allocations for an increase or decrease in expenditure are made according to a ratio calculated on relative population size. In effect, then, this formula has guaranteed an amount reflecting the proportion of the spending allocated to England.
One destabilizing dynamic at work in this arrangement is that Scotland's declining population since devolution has resulted in a progressively less generous allocation.41 However, the conspicuous lack of any integral link between revenue raising and the ability to spend at the devolved level has remained a more fundamental problem. There are calls to increase the amount of revenue raising at the devolved level, and to replace the current Barnett formula method of funding allocation with a needs-based system for calculating the contribution from Westminster.42 Most significantly, the Calman Commission—which was established by the Scottish Parliament and U.K. government to review devolution ten years after its introduction—has recommended the abolition of variable income tax and its replacement with a new Scottish rate of income tax. This would be reduced by 10p in the pound while a new needs-based block-grant allocation from Westminster would be reduced accordingly. In addition, Scottish ministers would be given additional borrowing powers, and the Scottish Parliament would have the power to introduce new taxes applying in Scotland, though only with the consent of the Westminster Parliament.43
It is important to keep in mind, before we move on, that, as a response to the intensity of nationalist sentiment, Scotland was granted the strongest form of devolved government. Moreover, in a number of fields, such as education and care for the elderly, the scope for policy divergence in comparison with England has been very apparent.44 The issue of “Sewel motions” with respect to areas of overlapping responsibility will be discussed in a later section; still, the impact of any revision to the distribution of competences between London and Edinburgh is also worth mentioning. The grant of more competences to Scotland not only arises as a current, contentious issue, at a political level, but it will also impact on the conduct of intergovernmental arrangements, for example, by confirming the redundancy of the Scottish Office in connection with the conduct of Scottish affairs.45 Lastly, although the Scottish Parliament was granted both lawmaking powers and a limited capacity to introduce extra revenue by adding to the income tax, it has in fact been the lack of any routine method of local revenue raising that has emerged as the most obvious weakness of the Scottish system. This shortcoming has prompted proposals for substantial changes to the financial parameters of the system which forms part of the 2010–2011 legislative program at Westminster. At the time of writing in April 2011 the proposals contained in the Calman Commission report to change the rate of Scottish income tax were in the process of being enacted by the Westminster Parliament in the Scotland Bill 2011.
The most limited form of devolution was devised for Wales.46 Although Wales retained its distinctive language and culture when originally brought into the U.K., from the standpoint of law and administration it lacked Scotland's distinctive legal and education system and Wales was more integrated with England. Moreover, it was clear when devolution was introduced that there was much less popular support for this change in Wales.47 However, the limitations of the Government of Wales Act 1998 were such that the devolved institutions in Wales have already been granted additional powers following the passage of the Government of Wales Act 2006. The major original difference was that the Welsh Assembly, unlike the Scottish Parliament and Northern Ireland Assembly, was not granted the power to pass legislation in its own right. The fact that Welsh bills had to take their place in the queue before being shepherded through the Westminster Parliament by the Welsh secretary was regarded as a serious drawback.48 Otherwise the Welsh Assembly only had the power to pass secondary legislation.49 In consequence, there were almost immediate calls after devolution to give the Welsh Assembly the power to pass laws.50 The Westminster government responded by granting the Assembly powers to propose a form of law known as a “Measure of the National Assembly of Wales.”51 These measures are enacted by first receiving scrutiny and approval by the Assembly and, then, the measure is referred to the Westminster Parliament for approval by resolution of each house before being recommended as a new form of Order in Council.52 This procedure created a special form of delegated legislation which potentially could be vetoed at Westminster. However, in practice, the new procedure overcame the problem of securing the passage of legislation required for Wales through the Westminster Parliament. The revised arrangements for Welsh legislation might have proved problematic if there was a strong conflict of wills between the Welsh Assembly and the government in power at Westminster—for example, if different political parties had a majority in the Assembly and at Westminster. In another sense, these measures to enhance the lawmaking capacity of the Welsh Assembly53 have a wider, incidental impact, as there is now distinctively “English” legislation introduced before the Westminster Parliament.54 A referendum in accordance with the provisions of the Government of Wales Act 2006 was held in March 2011 which approved by a large majority (63.5 per cent for with 36.5 per cent against) the conferral of full legislative powers upon the Welsh Assembly.55 In consequence, the Welsh Assembly in common with the Scottish Parliament and Northern Ireland Assembly will soon have powers to pass legislation concerning the policy areas which fall under its competence.
There are some obvious parallels between Scotland and Wales with respect to the electoral system and the organization of the legislative and executive bodies.56 The Government of Wales Act 1998 set up a single chamber Assembly for Wales, consisting of sixty members57 who must be elected every four years by an additional member system. Each elector is given two votes. Assembly members for each constituency are returned by simple majority, while the four Assembly members for each region are returned by a system of proportional representation based on party lists.
In common with Scotland, the Welsh Assembly is required to form policy and take decisions in its particular areas of responsibility. Also, as in Scotland, the cabinet style of government is formed following an election. The newly elected members of the Welsh Assembly vote for a first minister. Once elected, the first minister has the power to appoint an Executive Committee of Assembly Secretaries, which forms the equivalent of a cabinet. The ministerial portfolios of this executive committee (the combinations of policy areas allocated to the individual assembly secretaries) determine the areas of competence of the scrutiny committees (or subject committees) that are subsequently formed to provide executive oversight. The appointments to the executive committee can be from a single party or a combination of parties.
As with Scotland, the Welsh executive took over, by means of transfer orders, most of the administrative functions of the secretary of state for Wales under the Government of Wales Act 1998.58 Cabinet members have the equivalent of departmental responsibility for their given policy areas. Although the National Assembly of Wales was formed as a single corporate body, a de facto division emerged postdevolution between the Welsh Assembly government and the Welsh Assembly as a representative body. The Welsh Assembly government has been recognized under the Government of Wales Act 2006 as an entity separate from, but accountable to, the National Assembly. One significant difference between the approach to devolution in Scotland and Wales is that while the Scottish Parliament was granted general competence, subject to the reserved matters under the Scotland Act, in the case of Wales powers were conferred according to particular areas of policy.59 The Assembly and executive are also responsible for many Welsh nondepartmental governmental organizations, funded and appointed by government.60
From this brief discussion, it will be apparent that there are clear parallels between the general frameworks of Scottish and Welsh devolution, including for example, the method of election and the way a devolved executive is formed. This resemblance will grow a great deal closer should the proposal to give the Welsh Assembly full lawmaking powers gain the approval from the Welsh electorate in 2011. However, the Welsh Assembly has no devolved tax-raising powers (unlike the proposals for Scotland), and no such powers are in immediate prospect.
3.3. Northern Ireland
The Belfast (Good Friday) Agreement of 1998, which was negotiated between the British and Irish governments and the main political players in Northern Ireland, shaped almost every detail of the form of devolved government in Northern Ireland. As the replacement to the Stormont system introduced in 1922 under the Ireland Act 1920, which broke done in 1972, it was the second attempt at introducing devolution to address the issues raised by a community strongly divided on religious grounds.61 A unique form of devolution was introduced in 1999 following the Belfast agreement based on a system of compulsory power sharing between the unionist and republican communities.62 This scheme is based on “… the need to obtain (minority) nationalist consent” so that “the institutions of the new dispensation are consociational at both the legislative and executive levels, with a stipulation that public power must be exercised in accordance with the principle of ‘parity of esteem’ between the two communities.”63 After an election there is a further process in the formation of the executive to determine the allocation of ministerial posts and other positions.
The point is that “[a]ll of the institutional arrangements are based on principles of cross community support. Thus there is no single person who is head of government in Northern Ireland. A bicephalous head of government ‘the First Minister’ and ‘Deputy First Minister’ take charge of a multi-party executive.”64 Under the revised arrangement, following the St. Andrews Agreement,65 the nominating officer of the largest political designation nominates a person as first minister while the nominating officer of the second largest political designation nominates a person to hold office as deputy first minister. A method of proportional representation determines the allocation of ministerial posts and other positions.66 Furthermore, the notion of power sharing is carried over into the decision-making process itself. Key decisions have to be taken on a cross-community basis, in the sense that for a decision to be approved there has to be a majority for the measure among unionists and nationalists.67 Any agreement would have to be founded on satisfying the basic demands of the conflicting factions. Thus, changes to these basic elements would only be possible with the consent of each community. The devolved assembly in Northern Ireland, once chosen, then elects an executive, which assumes full legislative and executive authority for all devolved matters.68
The Belfast (Good Friday) Agreement of 1998 included a complex supranational dimension that also involved the Irish Republic and the distinct nations constituting the U.K. Although Northern Ireland itself was born out of Ireland's troubled history,69 the United Kingdom and the Republic of Ireland are now separate, independent nations and coequal member of the European Union. Irish Nationalists have a united Ireland as their ultimate goal. Under the Northern Ireland Act this can only be achieved with the consent of the majority.70 However, to go some way toward satisfying the affinity that nationalists might feel with Ireland, the Belfast (Good Friday) Agreement contains some important provisions involving Ireland. The North/South Ministerial Council (NSMC) was formed to bring together members of the executive of the Northern Ireland Assembly and representatives of the Irish government for the purposes of cross-border cooperation on issues of common interest.71 Six North/South implementation bodies have been established as part of the NSMC to implement policy.72
By way of contrast, the unionists were keen to consolidate the area's connection with the remainder of the United Kingdom. As part of the same agreement, the British-Irish Council was established as a body to consider broader mutual interests with the U.K., and it includes elected representatives from the Scottish Parliament, the Welsh Assembly, the Channel Isles, and the Isle of Mann, as well from Northern Ireland. In seeking greater integration between nations and dependent territories it has features comparable with the Nordic Council, which also includes a combination of nations and autonomous regions. One should add that the British-Irish Council does not include distinct representation for England.73 The latter's avenue of participation may be found in a further institutional structure with a supranational aspect, the British-Irish Intergovernmental Conference, which meets regularly to promote cooperation between Ireland and the United Kingdom on matters of mutual interest, in particular, criminal justice, security, prisons, and policing. Meetings are attended by ministers of the Northern Ireland executive, when matters concerning Northern Ireland are on the agenda. The effect of this multiplicity of interwoven institutional contacts is to cement engagement and cooperation at a number of levels.74
Devolution in Northern Ireland was designed specifically to bring peace. Although based on the election of an Assembly with lawmaking powers and with competences similar to those of Scotland and Wales, the Northern Ireland system displays many unique characteristics, most notably: the method of election of the Northern Ireland Assembly; the degree of permanent power sharing at every level of government; the emphasis on peace and reconciliation through the recognition of human rights and the promotion of equality of opportunity;75 and the dedicated national and supranational bodies (discussed above) set up to satisfy the respective aspirations of both communities. The fact that devolution has been suspended on three occasions, before it was restored most recently in May 2007, illustrates the fragility of these arrangements. Not only are there still some dissident republican groups in Northern Ireland which refuse to accept devolution but also the viability of the entire process may be threatened by outstanding issues, for example, those relating to security and policing, which were not fully resolved as part of the original agreement.76
3.4. The West Lothian question and the consequences for England
We next turn to England, by far the most populous part of the United Kingdom,77 which was entirely omitted from the devolution equation in the sense that no equivalent nationwide layer of regional or devolved government was proposed to coincide with devolution elsewhere. Nevertheless, devolution has exerted a significant influence on the workings of the Westminster system as well as prompting calls for further constitutional reform. The so-called West Lothian question has been recognized since the conception of devolution, and it will simply be referred to here as an important constitutional issue created by the introduction of asymmetrical devolution. In essence, establishing a Scottish Parliament and, to a lesser extent, a Northern Ireland Assembly and a Welsh Assembly plays havoc with the notion of representative government in the United Kingdom. Westminster Members of Parliament (MPs) representing English, Northern Irish, and Welsh constituencies no longer vote on the devolved matters, which now become the responsibility of devolved bodies; however, the Scottish, Northern Irish, and Welsh MPs at Westminster retain the right to vote on all bills coming before the Westminster Parliament, including those concerning domestic policy for England. Furthermore, as a result of the transfer of many domestic functions to the Scottish, Welsh, and Northern Irish executives, the Scottish, Northern Irish, and Welsh Westminster MPs have a greatly reduced role to play with regard to their own constituents. The obvious line of accountability for the devolved areas in domestic affairs is through their representatives in Edinburgh, Belfast, or Cardiff.78
The other related question is the lack of any equivalent level of representation for England. Voices of discontent at the lack of provision for England have been heard most loudly in the socially disadvantaged English regions bordering Scotland and Wales. This is where one finds the strongest perception of having missed out economically in comparison with the devolved parts of the U.K.79 Otherwise, there has been minimal attention paid to assessing the impact of devolution on the nondevolved parts of the U.K.80 Nevertheless, since the advent of devolution the failure to provide a layer of comparable government for England has become an emerging issue that has not been addressed.81 The Campaign for an English Parliament, as its name implies, presents a case for the introduction of an English Parliament.82 A proposal for a body equivalent to the Scottish Parliament appears to have some merit, since setting up a Parliament for England could provide the constitutional basis for correcting the glaring asymmetries relating to representation, accountability, and administration. The introduction of an English Parliament would also bring the U.K. closer to having a genuine federal system.
However, there are some obvious reasons why such a proposal has little chance of implementation.83 First, it enjoys limited support within any of the mainstream political parties or, more widely, with the English electorate.84 Second, an additional Parliament for England with equivalent powers to the Scottish Parliament would be a strong competitor to the Westminster Parliament, which would no longer have a pivotal role in relation to domestic issues. Third, a uniquely English Parliament would be yet another elected political body requiring a fresh cohort of politicians at a time when there is already evidence of voter fatigue with existing elected political institutions and politicians. Fourth, establishing an English Parliament would prompt a wider debate about the financial provisions on which devolution is based and, in so doing, open up fresh controversy over the allocation of resources within the U.K.85 In turn, such controversy might provide further impetus in Scotland for Scottish independence. Vernon Bogdanor has recently argued that if English nationalism were to move from culture to politics it would seriously undermine the union.86 Fifth, an English Parliament would be very costly to introduce. Although there is some evidence that English nationalism has been growing recently there has been little enthusiasm in England, as a whole, for an English Parliament or, indeed, for any equivalent kind of constitutional reform.87
Another response to the asymmetry was the Labour government's flirtation with regional governance in England which exactly coincided with devolution.88 The Regional Development Agencies Act 199889 was initially a vehicle for the introduction of a new policy for regional economic regeneration.90 The 1998 act divided England into eight regions (plus London) and created Regional Development Agencies (RDAs) in order to coordinate regional economic development. The new agencies were made responsible for formulating regeneration strategies to promote business efficiency, investment, and competitiveness within their areas91 by forging links and formalizing relationships with the business sector at regional level. The next step in Labour's exploration of regional governance was a proposal to introduce a directly elected regional government with very limited powers in regions where the proposals were supported by a referendum.92 In the only attempt to launch such an elected assembly in the North East region, the scheme was decisively rejected in a referendum and then dropped.93 Of course, had these very weak regional assemblies been established on an uneven basis, it would have added further to the lack of consistency in the provision of representative government in the United Kingdom.94 The upshot is that only London has a directly elected mayor and a twenty-five-member directly elected London assembly, operating at a level between Westminster and local government, in the form of the inner and outer London boroughs.
An alternative approach to the problem of voting rights for Westminster MPs, which is much less radical than resorting to an English Parliament or to some form of regional government for England, would be to introduce a new political convention or to implement new procedures and rules within the U.K. Parliament that would prevent Scottish and Northern Irish Westminster MPs95 from voting on legislation not applying in Scotland and Northern Ireland.96 It should be pointed out that any attempt to restrict the voting rights of Scottish, Welsh, and Northern Irish MPs at Westminster would be politically controversial, since Labour traditionally relies heavily on the votes of MPs in Scotland and Wales, where its support is concentrated while Conservative support is strongest in England.97 A further problem in introducing any restrictive rule regarding the way legislation is considered by MPs, as it passes through Parliament, concerns the technical difficulties in drafting legislation with this consideration in mind; for example, where there are mix of different clauses, some of which only apply to particular parts of the U.K..98 Although the 2010 Conservative Party manifesto included a pledge to introduce “English votes for English laws,”99 following the general election the ruling Conservative–Liberal Democrat coalition announced its intention to set up a commission to consider the West Lothian question, including the related issue of the voting rights of Westminster MPs.100
4. Devolution and legislation
The legislative procedures used by the devolved legislatures include some elements that appear very novel in contrast with those employed by the Westminster Parliament. For example, draft bills have been used routinely in Scotland to allow for greater consultation and to provide scope for more participation, with the relevant subject committees of the Scottish Parliament taking detailed evidence from interested parties during a period of scrutiny before the legislation goes through its parliamentary stages.101
It is interesting that the procedure at Westminster has since been modified to allow for the much more frequent publication of draft bills in order to facilitate greater consultation before the legislation goes through its parliamentary stages.102 The latest published guidelines from the U.K. Cabinet Office make this clear: “The Government is committed to publishing more of its Bills in draft before they are formally introduced to Parliament, and to submitting them to a Parliamentary Committee for pre-legislative scrutiny where possible.”103 At Westminster, smaller specialist departmental select committees normally undertake the task of prelegislative scrutiny but do not examine legislation during its formal passage through Parliament. On the other hand, the subject committees, which operate in all the devolved legislatures, have been designed to combine the specialist executive oversight function of House of Commons departmental select committees with the scrutinizing function of the House of Commons public bill committees, which are responsible for examining legislation during its committee stage in the Commons.104 These subject committees also differ from both the public bill committees and the select committees at Westminster in that they were intended to have a powerful legislative role, being able to introduce bills in their own right.105
Another interesting dynamic relating to the legislative activity of the Scottish Parliament and Northern Ireland Assembly concerns a practice that has developed to determine whether the devolved legislatures always need to legislate when a matter falls within their competence. As already explained, in theory at least, devolution has left intact Albert Venn Dicey's core principle of U.K. Parliamentary sovereignty. Westminster is still able to legislate for any part of the U.K., and the devolution legislation, at any time, can be repealed or modified, as was the case with the Government of Wales Act 2006 (which increased the powers of the Welsh Assembly). It should also be remembered that the distinctive status of Scotland, Wales, and Northern Ireland was previously recognized through special procedures that were in place in the Westminster Parliament prior to devolution in order to oversee the passage of legislation directed at these parts of the United Kingdom. Nevertheless, it was predicted that following devolution the supremacy of Parliament would have a “different and attenuated” meaning, so that “instead of enjoying a regular and continuous exercise of supremacy, [Westminster] will possess merely a nebulous right of supervision… .”106 In other words, in practice, Westminster would find it difficult to legislate against the wishes of the Scottish Parliament or the Northern Ireland Assembly postdevolution.107 Moreover, there was an expectation that a convention would be established whereby the U.K. Parliament would not normally legislate with regard to devolved matters, and that Westminster legislation applying to Scotland and Northern Ireland would be an unusual occurrence and would take place only with the agreement of the relevant devolved legislature.108
Since devolution, the so-called Sewel convention has emerged,109 the idea behind it being to recognize that the Westminster Parliament retains (given its legal sovereignty) full legal power to legislate on devolved matters while also recognizing that the spirit of devolution implies that political power rests with the Scottish Parliament or the Northern Ireland Assembly. The government thus undertook not to support relevant legislation in the Westminster Parliament without the prior consent of the Scottish Parliament or Northern Ireland Assembly. This consent is embodied in a Sewel motion or, as it is otherwise termed, a “legislative consent motion.” Rather surprisingly, a more detailed review of the legislative record reveals that, in fact, Westminster legislation applying to Scotland has abounded since 1999.110 This has occurred to a much greater extent than anticipated. Before a motion is put, the matters are discussed first by the relevant subject committee of the Scottish Parliament. Since the Scottish election in 2007, consent motions were passed by the Scottish Parliament with respect to fifteen pieces of legislation.111
By way of contrast, in Northern Ireland the legislative consent motions (not referred to in Northern Ireland as Sewel motions) were little used, initially, during the period between 1999 and 2003 when the Assembly was frequently suspended.112 However, the trend since the Assembly resumed operating in May 2007 seems to be broadly similar to that discernible in Scotland,113 although the Northern Ireland Assembly had no formalized procedures with regard to legislative consent. Until the 2010–2011 session, there were only guidance notes114 outlining the process which the U.K. government and the Northern Ireland executive should follow when seeking consent from the Assembly for such a motion.115
To some degree, the use of Sewel motions could be accounted for by the fact that the same party was in power both in Westminster and Scotland and shared a commitment to common policy objectives during the initial phase of devolution. Moreover, there is a need to comply with international obligations on a nationwide basis116 and for Scottish participation in particular initiatives involving the whole of the U.K.117 Also, in certain areas there may be an advantage in having common regulatory measures.118 Alan Page and Andrea Batey have explained that there were straightforward practical reasons for the continuing dominance of U.K. departments in promoting legislation across borders. For example, seeing legislation enacted on a U.K. basis prevents unacceptable delay in the introduction of measures likely to be popular with the electorate in Scotland, while leaving more time for the Scottish executive to pursue its own agenda of reform. Another reason for the popularity of Sewel motions has been to avoid the prospect of legal challenge to the competency of Scottish legislation in politically controversial areas. This is because Westminster legislation, unlike Scottish legislation, is not open to direct challenge in the courts. In consequence it has been explained that “[w]here there is [likely to be] disagreement between London and Edinburgh over whether matters are devolved, the executive may find itself effectively faced with a choice between consenting to Westminster legislation in areas it regards as devolved, and the risk that the U.K. law officers will refer any Scottish bill to the Judicial Committee of the Privy Council (now to the U.K. Supreme Court).”119
The Sewel convention, according to Page and Batey, allows Scotland to have the best of both legislative worlds. They point out: “Without it, the stark choice would be to do without worthwhile legislation in Scotland or, in those cases within the legislative competence of the Scottish Parliament, to put aside [its] own legislative priorities to make room for a separate Bill… .”120 The evidence so far indicates that the Scottish Parliament and Scottish executive have assumed a much less prominent legislative role than seemed likely, given the powers granted to them under the Scotland Act (the same point, to some extent, applies to Northern Ireland). The evidence also suggests that, although there has been marked policy divergence in certain fields, there has also been, as a result of Sewel motions, a continuing drift toward uniformity, which pervades the devolved system of government.121
Devolution is now accepted by all the main national political parties as well as the nationalist parties in Scotland and Wales and the main parties in Northern Ireland as an important part of the constitutional landscape. However, it has been argued in this article that the introduction of devolution, as part of the U.K. uncodified constitution, is not truly a settlement at all; rather, it has set in motion a constitutional process of considerable complexity. It has many diverse implications, though it is without any overtly general or overarching objective for the United Kingdom. Instead, the aim has been to provide specifically tailored institutional responses for Scotland, Wales, and Northern Ireland. In part, this is a reflection of the British “make do and mend” approach to constitutional questions.
Despite the fact that devolution was introduced to deflect nationalist trends, nationalists are either in power or share power in all the devolved bodies. Moreover, the Scottish Nationalist Party is keen to press for a referendum on independence. In practice, the attempt to fix the dissatisfaction felt in Scotland, Wales, and Northern Ireland has posed a whole new set of questions. Most obviously, devolution draws attention to disparities in the Westminster Parliament and the lack of an equivalent level of government for England. The imposition of any restrictions on the voting rights of MPs from Scotland, Wales, and Northern Ireland would certainly have a major impact on the functioning of the Westminster Parliament. Turning to another dimension, the financial parameters of the entire system have been increasingly criticized and it has already been noted that a Scotland Bill making fundamental changes to the present method of financing in Scotland has been introduced during the current legislative session.122