A Federalist Constitution for the U.K.

A United Kingdom Federation

Current circumstances present a need and opportunity for the United Kingdom (UK) fully to realise the federal potential always contained within it.

Its territorially diverse, multi-national makeup makes the UK well suited to federalism, a system allowing for geographical variety within a cohesive whole. The UK has played a part in the enactment of numerous federal constitutions worldwide; and has – especially since the late 1990s – increasingly taken on federal characteristics itself. Devolution has created (in the territories to which it has been provided) equivalents to the ‘states’ within a federal system. But the UK has yet fully to realise its latent federal tendencies. Comprehensive devolution is lacking. For most of the population of the UK – that is the roughly 85 per cent who live in England – devolution either it does not exist at all, or only in a limited form. At the centre, the devolved territories are not incorporated into the legislature as they might be in a federal second chamber.

The dominant issue of contemporary UK politics, Brexit, has heightened the salience of the idea of a federal UK. It has revealed the extent to which, post-devolution, political authority in the UK nonetheless remains centralised. The sub-components of the state lack mechanisms to provide for their meaningful input into crucial decisions. Brexit also has important implications for the future. Departure from the EU implies – in theory – the transfer of responsibilities that once resided at European level to the UK. The question arises as to how and by whom these authorities will be exercised. Some of them fall within areas that are technically devolved, such as agriculture and the environment, while others – such as international trade policy – are reserved to UK level. Tensions have developed between the devolved and UK governments regarding how these fields of activity should be handled. The stress of Brexit has created a conflict between the principle of devolution on the one hand, and the need to retain a single UK market on the other hand. Neither secessionism nor centralising unionism offer a means of reconciling this apparent contradiction, which has exposed the limitations of devolution as a system of government. Federalism offers a potential resolution. A federal constitution could extend the benefits of devolution – namely that it allows more local democratic control over the provision of important services – to the entire UK. Yet while providing more secure structural realisation for the territorial variety of the UK through the formation of a series of ‘states’, it would also create mechanisms that served to integrate the sub-components of the UK more fully into the central system. It would help ensure that major decisions that impacted upon the whole of the UK were taken on a basis of wide consent. Continued uniformity, where required, would be more democratically legitimate.

If the UK is to move meaningfully towards a federal constitution, it must establish a comprehensive framework of territorial ‘states’.

No parts of England (or any other part of the UK) can be omitted. The main decision that follows involves how England is to be included in the federation alongside Wales, Scotland and Northern Ireland. One option is to treat England as a single unit. However, there are strong grounds for believing a federation with one component that accounted for around 85 per cent of the total population would be inherently unstable. Furthermore, one of the benefits of federalism – that it enables some functions to be exercised closer to the people whom they are intended to benefit – would not be obtainable in a unit made up of more than fifty million people. Consequently, an England of the regions is by elimination the preferable model for a federal UK.

Discerning a set of English territories each of which would command enthusiasm among the people who lived within them might seem a difficult task. However, regions that might initially seem somewhat artificial could be expected in time to achieve acceptance. But what powers should be vested in these ‘states’, and how great should they be? It would not be appropriate or politically realistic to reduce the autonomy currently possessed by Scotland, where devolution is most extensive; or to deny to any other ‘state’ the law-making and revenue raising powers possessed by Scotland. It might be appropriate to create a mechanism whereby states could decide the functions for which they wished to take responsibility, up to the maximum represented by Scotland. At any given time, some states would be less autonomous than others, but could retain the possibility to become more so in future.

In the existing system, the devolved territories have not been fully integrated into UK-level decision making. The introduction of a federal constitution could correct this omission. The second chamber of the UK Parliament would be reconstituted to provide the ‘states’ with a firm place in deliberation and law-making on behalf of the whole UK. Major decisions – for instance involving the joining or leaving of international organisations, and alterations to the constitutional system of the UK – could be made subject to approval, perhaps by a supermajority, in this chamber. If the UK exits the EU, the ‘states’ chamber’ would play a part in future decisions about the extent to which the UK diverges from or maintains congruence with EU regulatory regimes. Voting rights for each state could be weighted by population size, but equality in this respect would probably be a more effective means of promoting unity.

The members of this second chamber would be appointed by the state legislatures (themselves directly elected, presumably using proportionate systems). This method of determining composition would provide greater legitimacy than the House of Lords possesses at present. But it would be legitimacy of a qualitatively different variety to that possessed by a directly elected chamber. The states’ chamber would not be a rival to the House of Commons as the basis for a UK government. Rather than creating unhelpful destabilisation in this way, the upper House would be responsible for revising legislation; and could be provided with a special role in authorising decisions that are of fundamental importance to the entire federal polity. Therefore, the states’ internal integrity would be protected; and they would be able to play a part in certain central decisions.

Within this new federal system, it would no longer be appropriate for ultimate power to be reside in the ‘sovereign’ UK Parliament.

Fundamental authority would instead be vested in a constitutional text. This document would need to be agreed by some form of convention, possibly composed of representatives of the devolved and UK legislatures and members of the public. The division of responsibilities between federal and state tiers would be set out in this document. It would achieve this objective through prescribing those powers needed at the centre, for instance over foreign affairs, external trade and monetary policy. The remainder would, by implication, fall to the states. A UK government would no longer be able to secure the passing of a bill that impacted directly on a territorial policy area without agreement from that territory. The constitution would apportion powers to the two chambers of the UK Parliament and regulate the relationship between them. All public institutions would be required to comply with a charter of rights that – along with the constitutional text as a whole – would be enforced by the Supreme Court. The Supreme Court would be empowered to disapply even Acts of the UK Parliament in as far as they were incompatible with the terms of the document. Changes to the constitution would be subject to a special process, probably involving agreement from the House of Commons and a supermajority of states. The entrenched constitutional text, providing for the autonomy of the parts while integrating them fully into the whole, would embody the completion of the journey towards a UK federation.

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Dr Andrew Blick, King’s College, London

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