Devolution System In The UK: Asymmetrical System, Power-sharing, And Constitutional Reform
LAW139-Strength or Weakness of the Devolution System
LAW139-Strength or Weakness of the Devolution System
Introduction to Devolution System in the UK
Devolution enabled Wales, Scotland and Northern Ireland to have forms of government within the United Kingdom. Each of these parts of the country has been given legislative powers by the UK parliament to make laws for the respective parts.
That Article 149 of the Constitution states that “Through the administrative decentralization of the State, the harmonious development of its entire territory is encouraged, the encouragement of depressed areas, the distribution of resources and services according to the needs of the respective territorial districts .
That the second paragraph of Article 153 of the Constitution states that “Only by virtue of the Law may be imposed duties and regulations to provincial councils or municipal councils”;
That literal e) of article 159 of the Constitution states as a duty of the municipal council “Encourage community development through neighborhood organizations”;
That the Second Transitory Provision of the Special Distribution Law of 15% of the Budget of the Central Government for the Sectional Governments establishes that “The decentralization of the functions of the human, material and financial resources will be carried out as of January 1998, of according to the Decentralization Law that will be issued by the Legislative and Executive functions within a maximum period of 180 days .
Special law of decentralization of the state and of social participation
Art. 1.- Purpose.- The purpose of this Law is to promote the implementation of decentralization and administrative and financial decentralization of the State, social participation in public management, as well as to implement the category of decentralized State.
Art. 2.- Scope of application.- The provisions contained in this Law shall apply to entities, organisms, dependencies of the State and others of the Public Sector; those that make up the Autonomous Sectional Regime; and, the legal persons created by Law for the exercise of state authority or for the provision of decentralized public services or to develop economic activities under State responsibility.
Art. 3.- Definitions.- The decentralization of the State consists in the definitive transfer of functions, attributions, responsibilities and resources, especially financial, material and technological resources of national and foreign origin, of which the entities of the Executive Function are responsible. Autonomous Sectional Governments for the purpose of distributing resources and services in accordance with the needs of the respective territorial circumscriptions.
Strength of the devolution system
The deconcentration of the State is the mechanism through which the superior levels of a public entity or body delegate permanently the exercise of one or more of its attributions as well as the necessary resources for its fulfillment, to other dependent bodies, provincial or not, that are part of the same entity or body.
Theoretical Considerations About Devolution
Social participation is the system by which all social sectors are actively involved in the legal, political, cultural and economic social life of the country, in order to improve the living conditions of the U K inhabitant, with a view to a fairer distribution of public services and resources.
In this paper we shall discuss on some of the elements of devolution in the UK to understand how the process works. The similarities of devolution in the UK as compared to other countries
Theoretical considerations about devolution
In general, devolution seeks that local needs and preferences are expressed, heard and resolved from the level of government that is closest to people and that is capable of making the correct diagnoses and responding to the needs of the inhabitants in an efficient and effective way.
In general, some departments and large municipalities have the economic capacity and human resources to fulfill their competencies in an efficient manner. However, there is another group of entities that has shown poor fiscal and administrative management, if not miserable.There are functions that can be covered by intermediate levels of government such as health, fire, education etc, leaving national governments issues such as defense, monetary policy, or international relations; however, this would only make sense if the intermediate levels of government covered the minimum requirements to be able to develop serious policies on issues such as health, education or the provision of public services.
The phenomenon of devolution in U K
Regarding the phenomenon of devolution in U K, there is a certain consensus in affirming that it is a young process, incomplete, but that it is on the right track and that it should be deepened and refined since it is the best long-term option for the country’s development.
In this sense, it is generally stated that the process of devolution in U K has not yet been consolidated; In spite of several achievements in fiscal and administrative devolution, it is affirmed that there are social, economic and political reasons that interfere in the process. On the other hand, there are shortcomings in the instruments that define intergovernmental fiscal relations and in the implementation of devolution at sectoral levels.
It is understood that even so, the process is relatively new and is in a transition stage, where U K opts for a process of fiscal and administrative devolution in the mid-1980s, which is explicitly specified in the 1991 Constitution. Ten years after the reforms were applied, devolution is understood as an incomplete process with consequences on the provision of services and on the macroeconomic balance of the nation.
Phenomenon of Devolution in the UK
Among the most common criticisms of the process is that the regulation and administrative organization is complex and in some cases inconsistent, whose clearest expression is the lack of consensus on the responsibilities of the different levels of government. An important point that I would like to highlight is the fact that, in general, the political support given to the devolution process in 1991 has lost strength and has manifested itself in a new centralist tendency, which is attributed to the lack of clarity in the rules and administrative problems, but in my opinion, it has to do with the inability of many departmental and municipal governments to perform the functions that correspond to them; they are simply unsustainable.
In this scenario, while the central government has more spending responsibilities, intermediate governments do not have greater real autonomy, nor economic power to develop their functions, always ending the nation rescuing the departments from their crises and solvency problems.
If we look at regional development, we will find that territorial entities are a highly heterogeneous universe. In general, some departments and large municipalities have the economic capacity and human resources to fulfill their competencies in an efficient manner. However, there is another group of entities that has shown poor fiscal and administrative management, if not miserable. In my opinion, the problem in the end, has nothing to do with administration, it has to do with size and real capacity of influence for the inhabitants.
There are functions that can be covered by intermediate levels of government such as health, fire, education etc, leaving national governments issues such as defense, monetary policy, or international relations.
U K is a big country, and it is not a pity to have more than 30 subnational governments, with weak fiscal powers and that are favored mainly by the nation’s transfers; it is necessary to reduce its functions and attributions, the departmental governments are an obstacle, but not poles of development and progress.
It would be more appropriate to think of stronger intermediate governments, which take advantage of economies of scale in the regions, it would be quite productive to organize the map of the nation, not with political but economic criteria in order to achieve greater real progress.
There are too many municipalities without any fiscal capacity, and without the opportunity to take advantage of some types of economies of scale, it would be valuable to make an effort to avoid general operating expenses, create larger municipal jurisdictions to think about making more investment without going through so many stages of development. administrative management, which ultimately does not represent any productive expenditure.In U K it makes more sense, to have a more centralized scheme, with a greater real capacity to influence the inhabitants, than a decentralized system with limited action capabilities, in other words, to have fewer desk positions, and more peak and shovel positions. with productive work.
Promotion of Power-sharing through the Northern Ireland Act 1998
If we return to the principle of tax equivalence, we could say that in terms of public goods, there must be as many levels of governments as there are public goods to be supplied, and it could be said that when the limits of public service provision, they are the same as those of the jurisdiction that provides them, there is the minimum cost point, which is the optimum.
When the limits of public service provision are greater or less than the jurisdiction that provides it, inefficiency problems will occur, since in extreme cases, services that are not needed will be charged, or services rendered will be left unpaid. If we return to the principle of Economic Federalism, we should prefer the decentralized governance structure that internalizes all economic externalities subject to the political or constitutional restriction that central government policies are decided by a central planner.
Judicial review of the procedure
In this case, it will be possible to judicial review of enforcement procedures that deal not only with obligations to give (where liens may be blocked) but also with respect to obligations to do or not to do, but conditioned to the conclusion of the procedure.
Coercive enforcement procedure
The coercive enforcement procedure is defined as a procedural instrument that allows the Administration to directly satisfy its credit by means of the legal effect (seizure) of the debtor’s assets and its subsequent forced transfer to, with its product, cancel the debt placed against payment.
The procedure of coercive execution does not have a cognitive nature but an executive one and for that reason it is limited to comply with what was ordered by an earlier administrative act (payment order, resolution of determination, etc.). For this reason, the possibility of challenging the acts that have the purpose of executing the order is not admitted. However, in order to guarantee the right to due process, the LPEC has established various grounds for suspending the coercive enforcement proceedings, one of which is that the administrator has filed a demand for judicial review against the coercive enforcement procedure.
Paragraph 1 of article 23establishes that any of these two cases must occur in order to validly file a claim for judicial review:
a) When a coercive enforcement proceeding has been initiated, the retention of assets, securities and funds in current accounts, deposits, custody and others, as well as the credit rights of which the obligor or the jointly liable owner and who are in the possession of third parties, as well as any of the precautionary measures provided for in article 33 of the law.
Significant Changes by the Constitutional Reform Act 2005
In respect to the Law
Human rights and The LAW139 paper
Therefore, in our opinion, it is not enough that a coercive enforcement proceeding has been initiated to be able to file a demand for judicial review. It is essential that, previously, an embargo has been ordered in any of the ways provided in article 33 of the same law (retention, deposit, kidnapping, registration, etc.). However, as regards the suspension of the coercive enforcement proceedings, the Tax Court considers that it is not relevant whether a claim complies with the requirement of prior freezing since the executing agency will always be obliged to suspend the proceeding with the single presentation of the claim. This is because the executing agency is not competent to assess whether a judicial review request is appropriate, but rather the jurisdictional body. B) After the coercive enforcement proceeding is concluded, within fifteen (15) business days of notification of the decision that sets end to the procedure.
Purpose of the judicial review process
The purpose of the process is to analyze whether the coercive enforcement procedure has been initiated or processed in accordance with the provisions of the LPEC. If an illegal act is verified, the law provides that the judge must order the lifting of the precautionary measures (numeral 23.5 of the LPEC). In addition, if obvious evident irregularity or illegality is noted as well as the production of damages, the competent Chamber may determine the existence of
liability and administrative liability of the executing agency and coercive assistant and the corresponding amount for compensation (second paragraph of the article already cited). Competent judge The demand for judicial review is presented before the Superior Court of Justice of the Judicial Power, being competent the Contentious Administrative Chamber of the place where the procedure of coercive execution was carried out, subject matter of review or the competent one by reason of the domicile of the obligor. Where there is no Contentious Administrative Chamber, the corresponding Civil Chamber shall have jurisdiction and, failing that, the person acting as such (numeral 23.8 of the LPEC). As a second instance, the Constitutional Chamber of the Supreme Court of Justice of the Republic shall act. In these cases, the cassation remedy provided for in the Unified Text of Law No., Administrative Contentious Law, is not applicable.7. The parties of the process Acting the coercive executor on behalf of the Administration, corresponds to the latter the quality of defendant in the judicial process. However, it is customary to include the coercive executor in the process, not only because he or she is an interested party, but also because, as indicated in paragraph2 of the LPEC, the magistrates can determine the existence of civil and administrative liability of the enforcer and coercive assistant and fix a reparation. in those cases in which there is an evident irregularity or illegality in the process of coercive enforcement proceedings, which of course, requires the granting of right of defense in court to said officials.
Relationship between Sections 3 and 4 of the Human Rights Act 1998
Characteristics and implications of conventionality control to human rights law
The court has added something to the initial content of the Covenant, although the literal text of this has not changed. Thus, a State may be bound by the doctrine established by the UK Court of Human Rights, in a case in which it has not been a party, nor obviously had the opportunity to argue in favor of an interpretation different from that formulated in that file. At the same time, the interpretation formulated by the UK Court will in fact have the same value as the letter of the Covenant, and will even be superior to its wording, because as the final interpreter it fixes the surface and scope of its written clause.
This implies installing in the Latin UK legal system an institution that is in principle foreign to the legal system of continental law.
Thus, the control of conventionality that the UK Court provides supposes the affirmation of a supranational legal order, and together with it the existence of a court of the same characteristics with jurisdiction to sanction the States Parties and to establish internally the standards of rights humans to whom they must subject themselves.
That is why an author has argued that “the UK Convention on Human Rights is a norm of norms in the Organization of UK States and the UK Court establishes itself as the authentic guardian and final interpreter of the Convention. Therefore, that convention would enjoy a primacy over national legal systems and thus “the UK Convention is the international norm of superior hierarchy to which domestic law is subordinated (Constitution, laws, administrative acts, jurisprudence, administrative and judicial practices This is a legal link of supra and subordination of national law (constitutional law, administrative law, etc.), with respect to the International Law of Human Rights, thus constituting the Supremacy of the UK Convention, understanding that domestic law is an infraconventional right.
The first source of the legal system, because it is she herself who consents to refer to international law and subject to a higher normative order. That it does not replace it, but rather complements it by invigorating its normative force20. Is this, at least, the interpretation given by some authors – the supporters of this form of supranational control to the jurisdiction of the Court. This jurisdiction, as is evident, would constitute not only a source of international law, but would have an imperative character for all the powers of the States parties to the UK Convention, breaking with the way of understanding the restricted and auxiliary scope of international decisions that we examined at first. This not only constitutes a novelty in itself for international law and for UK legal systems, but could also lead to an important restriction on local powers because of the wide scope that the Court has given to the clauses of the UK Convention, that would directly affect a reduction of state sovereignty21.
The conventionality test. Constitutional support and national margin of appreciation As we saw earlier, the thesis of conventionality control places the judgments and advisory opinions of the IACHR as a source of domestic law of the countries that have signed the UK Convention on Human Rights. The control of conventionality implies that the decisions of the IACHR have direct application in the countries subject to its jurisdiction and it also places them as a parameter of what is not “susceptible to be decided” by the majorities. What we will try now is reflect on this last. We will identify the points of tension of this doctrine and suggest some ideas that can help to ponder and eventually resolve the conflict that can result from the scope of the decisions of the IACHR versus the democratic decisions adopted by the peoples by virtue of their right to self-determination (enshrined in the first article of both international human rights covenants)