But this highlighting has come about through the assertion of contrasting, even conflicting, models which — though they are not necessarily compatible with each-other — have impetus of their own, and pose a threat to some aspects of devolutionary governance as it has developed.
One challenge is relatively novel in the UK constitutional context. It rests on the view that, through the referendum, the UK people as a whole made a decision by which they are all bound. That majorities in two devolved territories, Scotland and Northern Ireland and in London voted to remain has, on this interpretation, no bearing either on the decision to leave, or even on the type of departure that should be sought.
Responsibility for interpreting and implementing this result, according to this school of thought, falls primarily to the UK executive. Unsurprisingly, the main advocates of this outlook are Brexit enthusiasts and UK ministers some of the individuals concerned fall into both categories, others only one.
Over time limited concessions have been made to the UK Parliament and devolved institutions as having a secondary role in shaping the outcome. But this approach leaves no room for meaningful engagement from such groups, that are perceived as a source of unhelpful distraction, or as seeking to dilute or perhaps prevent Brexit. A second perception — not entirely congruent with the first — that draws attention to the importance of devolution while challenging it, has a longer established place in UK constitutional perception and practice.
It is founded in the doctrine of parliamentary sovereignty. The relationship between this theory and the circumstances of Brexit is complex. Throughout its development a core feature of Euroscepticism has been the rhetorical veneration of parliamentary sovereignty, and the claim that it is incompatible with UK participation in continental incorporation, a project that is partly for this reason undesirable.
However, the claimed commitment of those who advocate leaving the EU to the legal supremacy of the UK Parliament has proved inconsistent with their post-referendum attitude towards Parliament.
Eurosceptics exhibited hostility to the idea that express statutory authority from Parliament should be required for the UK government to activate Article 50 of the Treaty on European Union, the act required to instigate the departure process. They preferred the idea that the executive should be able to operate on its own discretion, deriving legitimacy from the exercise in direct democracy of June , rather than the representative institution in Westminster.
Furthermore, supporters of leaving have disparaged the idea that Parliament should be able substantially to alter the negotiating position of the government for instance, with regard to the Customs Union , or that it should have the opportunity to vote for the UK to seek to prolong or terminate the process of leaving.
For it is through the traditional principle that an Act of Parliament is the ultimate source of legal authority that any objections raised from devolved level can, ultimately, be overcome. In bringing about an intersection between competing constitutional norms, the UK government policy of leaving the EU has revealed much about devolution and its position within the wider system, and will continue to do so.
The UK government has felt it necessary to negotiate with the devolved executives through the specifically established machinery of the Joint Ministerial Council on European Negotiations. It has also made various concessions to them. Crucially, it has introduced amendments to the European Union Withdrawal Bill that have the effect of reversing a key presumption in its handling of the distribution of powers between the devolved and UK legislatures.
The initial provisions, contained in clause 11 of the bill, created an assumption that a repatriated power resided with the UK Parliament unless express provision was made to the contrary. The objection to this proposal was that it contradicted the reserved powers model, under which the only powers located at the centre were those specifically allocated to it.
Clause 15 of the amended European Union Withdrawal Bill now gives expression to the principle that the default position is the devolution of a law-making power.
Clearly these approaches have purchase within the UK political and constitutional environment. That a UK government has had to contend with and make concessions to outside forces demonstrates how much the UK constitution has changed in the past two decades. However, the experience since June has also revealed the limitations to which this transformation is subject. The devolved systems and their powers may be politically entrenched, but they lack any special legal protection.
The Scotland and Wales Acts of and respectively contained commitments to the principle that the existence of the devolved institutions in the nations concerned could only be revoked following consent through referendums in the territories involved. However, in the Article 50 judgement of January , the Supreme Court went out of its way to note that it did not regard these provisions as being enforceable in a court, and stressing that the commitments they described were only political in nature, despite their being included in statute.
Ultimately, the UK government, provided it has the consent of the UK Parliament, can overrule its devolved equivalents. Indeed, UK ministers have been careful throughout their negotiations with the devolved executives to reserve their position, allowing for the possibility they will, if necessary, proceed without approval from devolved level.
At the time of writing, while the Welsh executive has— while expressing reluctance about doing so — obtained legislative consent to the European Union Withdrawal Bill, the Scottish Parliament has withheld it. Parliament is therefore on the brink of passing an Act notwithstanding the objections of a devolved legislature demonstrating where the ultimate authority still resides. The legal and constitutional imbalance between the devolved and UK tiers is further emphasised by the handling of the continuity bills introduced to the Welsh and Scottish legislatures.
Though passed by the legislatures concerned, they were both referred by the UK government to the Supreme Court to decide whether they fall within the competence of those legislatures. Under this procedure bills do not become law unless the legislation concerned is deemed to be within the devolved remit. There is no corresponding means of challenging the constitutionality of an Act of the UK Parliament the closest equivalents being the review of compatibility with European law and with the European Convention on Human Rights.
The challenge to the Welsh continuity legislation has been dropped in accordance with an agreement formed between the Welsh and UK governments over amendments to the European Union Withdrawal Bill and associated commitments.
Assuming no agreement is reached between the respective governments in the interim, if the bill is found to be within the powers of the Scottish Parliament, the possibility remains that the UK Parliament can legislate to supersede the Scottish law with its own Act. To do so will be in some respects politically unappealing. But to do otherwise might create other political difficulties.
It could also undermine the existing policy of exit followed by the negotiation of new trade agreements. On the other hand, if the Supreme Court rules the bill outside the powers of the Scottish Parliament significant limitations upon the Scottish Parliament will have been made explicit in a different way.
The combination of the Welsh and Scottish governments during to present a united opposition to the UK government proposals as encapsulated in the European Union Withdrawal Bill was a significant event from the perspective of the politics of the UK constitution. But the extent to which it suggested the pursuit of a shared vision of the UK polity should not be overplayed. The Cardiff-Edinburgh alliance has been partly one of temporary convenience.
The former seeks a more federal structure for the UK; the latter retains the objective of leaving the UK altogether. The engagement of the Scottish government, in collaboration with the Welsh government, in discussion and negotiation about the future constitution of the UK was arguably in large part a tactical matter.
It coincided with an apparent loss of political and electoral momentum for the cause of Scottish independence. To be seen to have tried to engage in good faith with the UK government, but to have been treated in an unfair, overbearing fashion, might open the way for a revival of the independence option.
That, ultimately, the Welsh came to terms with the UK government, while the Scottish — as yet — have not done so is evidence of their divergent perspectives. The limitations upon devolution as a harbinger of a new constitutional model for the UK, perhaps federal in its potential, are illustrated in another fashion. It is uneven in application. A third devolved territory, Northern Ireland, has been absent from negotiations aside from the presence of official observers , because its executive is not presently operative.
What policy the Northern Ireland Executive would be able to form in this area, were it functioning, and whether and how far it would align itself with Wales and Scotland, is unclear. Further differentiation manifests itself in the way that all three devolved systems function differently to each-other, and the remainder of the UK, that is to say England, where the majority of the UK population lives, lacks any form of devolved legislature at all though there is limited devolution to London and to some local authorities — or combinations thereof — in England.
The asymmetrical nature of devolution in the UK makes claims about the emergence of a comprehensive system difficult to assert. Furthermore, unlike under many federal constitutions, the territories are not formally incorporated into the legislative process.
The Joint Ministerial Committee is a non-statutory body that does not take binding decisions. If it is an embryo for some kind of federal council or chamber, it is in a very early stage of gestation. On the basis of this discussion, certain conclusions can be advanced.
The UK is in the process of refounding its legal and constitutional order, to accommodate Brexit. The central government claims to be the custodian of an irresistible obligation to implement a particular response to the referendum of , that legitimises its plans for changes impacting upon the fields of operation of the devolved institutions.
Whatever arrangements are established may be presented as only provisional in nature. The UK could, therefore, be in the process of a fundamental constitutional reconfiguration that partially reverses devolutionary patterns of development of the preceding two decades.
This project is taking place in a fashion that is not wholly consensual, and involves the UK government deploying, or at least threatening to deploy, parliamentary sovereignty for purposes of legal coercion. Such an approach could be seen to be in accordance with the UK constitutional tradition.
The Union has never been a partnership of equals, and at every stage of its creation, England was clearly the preeminent force. Thus while the UK is sometimes depicted as an unexceptionally stable state, it is also characterised by internal tensions, involving the places of Ireland, Scotland and Wales within it.
The aim is to encourage poor families to mix earnings and assistance and increase total income and to increase work participation rates among families on the rolls. The state essentially eliminated federal time limits by committing itself to use state funds to assist people beyond the five-year limit. But instead of financial incentives, Michigan uses a wide range of training, employment, and educational services through its workforce development system to move people into jobs and keep them there.
Kansas, like Michigan, uses a service strategy. But rather than focusing on employment needs and services, case managers draw from a mix of services and assessment tools to deal with a wide range of family needs, including learning disabilities, mental health, and substance abuse. Likewise, states that stress caseload reduction also use varying structures and services. Like Minnesota, Wisconsin offers incentives to which families are expected to respond.
It stresses independence from cash assistance, while Minnesota mixes cash assistance and earnings to maximize income. Access to publicly subsidized work is restricted most families are eligible only for services and in-kind benefits , and services such as child care and medical benefits require co-payments.
Some states offer varied services to minimize cash assistance caseloads. West Virginia has tried to keep families from using up their cash assistance by diverting them to food stamps and other sources of support and by offering in-kind benefits such as dental benefits and clothing vouchers to help families get by without getting or staying on the welfare rolls.
Finally, some states have devolved considerable control and responsibility for developing programs down to localities, in most cases county governments, though sometimes private contractors. Some of this state-to-state variation seems to grow out of earlier differences among states under the old Aid to Families with Dependent Children AFDC program. States that emphasize caseload reduction tend, for example, to be states that offered and still offer relatively low cash benefits, while states that focus on work participation tend to be those that provided and still provide relatively generous cash assistance.
But there are important exceptions. First, goals are not always predictable based on spending and benefit levels. Tennessee, for example, is a low-benefit state that stresses work participation. To motivate clients to engage in work and educational activities, it offers cash bonuses for achieving certain thresholds, such as completing a training or educational program.
Second, some states with centralized systems under AFDC, such as Florida and Washington, now give broad discretion to local districts, administrators, or case managers. Third, as states develop distinct service strategies, differences are arising that were not at all evident under AFDC.
To the extent that the block grant was expected to be a federalism initiative, an instrument for permitting different welfare reform strokes for different state and local governments, YES, welfare reform is working.
As noted, states and localities already vary widely in how they implement welfare reforms and appear to be moving in ever more distinct directions. The rolls are down more than 50 percent nationally since before most major AFDC-waiver reforms were implemented. Employment rates for single mothers with young children grew from 50 percent to 62 percent between and Average state work participation rates for adult caregivers on cash assistance reached nearly 40 percent in , much higher than under previous welfare reforms.
True, much of this growth in employment and decline in dependence is due to the strong national economy. And only a handful of states such as Oregon and Wisconsin have been able to engage nearly all their cases in some sort of work. But even the typical states have seen major and rapid changes in employment both off and on the welfare rolls, and there are good reasons for attributing a sizable share of these changes to the new systems of welfare.
A third view is that welfare reform was meant to be a new social contract. Poor family heads must work; in exchange, governments will provide services to help them do that.
The focus here is on services to help families be self-sufficient. Most states have increased spending on work supports, especially child care, child support enforcement, job placement services, and transportation. A few states are providing services involving skills development, short-term benefits for poverty prevention, and assistance for hard-to-employ clients burdened with learning disabilities, mental health problems, and substance abuse.
But there are still important limits to this social bargain. The first is resources. Even states that spend a lot on services, such as Minnesota, have waiting lists for child care benefits. Second, states are still struggling to connect welfare agencies to other service bureaucracies. These issues become ever more daunting as state welfare offices try to draw on agencies involved in mental health, substance abuse, child welfare, and other services to address obstacles to employment.
Many states and localities have a long way to go to make services accessible to all who need them. The concern is that working-poor families are not connected to social agencies. While many states are working on the problem, critics see their efforts as inadequate: too many people who need aid are not getting it.
These critics believe that the new signals of welfare avoidance and work create problems for poor families that are not counterbalanced by providing decent jobs and related work-support services. Also welfare procedures remain complex and burdensome, and busy working families cannot easily comply with them. Even a cursory reading of the welfare law produces a jolt, for though the law stresses work, its strongest admonitory purpose is promoting marriage and reducing out-of-wedlock and teen births.
And although efforts are being made to change personal behavior, states have not invested much in them. Part of the problem is organizational. Human service and employment agencies have little experience working with family planning clinics and public health agencies.
Yet part is political. While state legislative debates over welfare reform showed considerable consensus over the work-related goals, they usually sparked strong disagreement over how to accomplish the family formation objectives. In the new world of welfare, two groups need particular attention.
One is multi-problem families. Some efforts to integrate services for these families are impressive, but they are few and far between. The second group needing attention is the working poor—families whose head is working and whose goal is to stay in, and move up in, the labor force. The welfare reform law allows the use of federal funds to aid adults and children in working-poor families.
But, again, progress varies widely by state. Three things are critical in making the changes required. The first is time.
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