A United Kingdom Federation: The Prospects
Dr. Andrew Blick
King’s College London
The United Kingdom (UK) has always contained federal potential within it. The establishment of a federal UK would be to apply more fully already existing practical and intellectual tendencies. Far from importing an external model, it would involve the domestic implementation of a method of government that the UK has exported to the world.
One source of this innately federal quality is the pronounced diversity of the state, made up of different nations, each with its own historic, cultural, linguistic and political qualities. This characteristic requires that, if the components comprising it are to function as a single polity, then the UK must be structured in a way that recognises their variety. The UK came into being in a protracted fashion through a series of initiatives, each different in nature, creating an uneven polity. The formal unification of the British Isles began in the Tudor period with the legal absorption of Wales into England. The Treaty and Acts of Union between Scotland and England came in 1706 and 1707. In the negotiations leading to this Union, the opening position of the Scottish commissioners was for the formation of what was termed a ‘federal union’, by which they meant a loose association retaining separate parliaments. The English favoured an ‘incorporating union’: a more centralised model with only a single legislature based in Westminster. The English were in the stronger bargaining position and were able to impose their agenda. Nonetheless, the Union contained many provisions safeguarding distinctive features of Scotland that are retained to the present day, notably its legal, educational and local government system, and its official religion. Following in this pattern, the Union of Great Britain and Ireland that came into force in 1801 contained protections for the position of Ireland, though not as extensive as those created for Scotland. Thus while the UK is often described as being a ‘unitary’ state, this label has never properly conveyed the diversity within it. Indeed, in some respects, the difference between the UK constitution and a federal polity is that the former is more, not less, heterogenous than the latter.
Following the creation of the United Kingdom of Great Britain and Ireland, this differentiation intensified. From the nineteenth century onwards, territorial divergence received recognition through the establishment of various UK level ministers and offices for Scotland, Wales and eventually Northern Ireland. But pressure also developed within these areas – and especially Ireland – for the introduction of their own elected institutions, providing for a degree of what was known as ‘Home Rule’. The connections between this concept and federalism are clear, since they involve a division of authority between central and territorial institutions. Policy-makers in the UK came to take this idea seriously as a possible means of addressing Irish grievances while avoiding their complete exit from the Union. One option identified was that of ‘home rule all-round’, with elected legislatures not only for Ireland, but perhaps also for Scotland and Wales, and even England. In 1912, Winston Churchill, then a Liberal minister, advocated the establishment of a series of assemblies for Wales, Scotland, Ireland and multiple English regions, in a scheme he expressly described as federal.
Such plans for the internal reconfiguration of the UK took place in parallel with – and were often related to – ideas regarding the relationship between the UK and the outside world. Connections with the Empire could have a federal dimension. Indeed, from the late nineteenth century an influential movement emerged for a fully-blown imperial federation.
The UK, partly via its imperial enterprise, contributed to the enactment of a number of federal constitutions across the world. It provided not only practical but also theoretical impetus. English and UK political thought, including its emphasis on limited government, provided inspiration for federalists from the founders of the United States onwards. The UK influence was also important to European federalists during the twentieth century. They looked to the UK as an example to be followed of an integrated multi-national polity with a single market; and were guided by UK thinkers, including those associated with Federal Union, and the models they promoted.
For the UK to become more clearly federal in its internal configuration would, therefore, be an expression of some of its own tendencies. The establishment of devolved systems of government represented movement in such a direction. From 1921 to 1972, Northern Ireland had its own Parliament and executive. They were reintroduced in a new form from the 1990s, alongside equivalent bodies for Wales and Scotland; and in the period since they were established, all of these systems have seen a net increase in the powers available to them. In some senses, they resemble the ‘states’ or ‘provinces’ of a federal constitution. The statutes in which the devolved institutions are founded are akin to the ‘written’ constitutions that regulate federal polities, both providing for and limiting the powers of the devolved legislatures and administrations, and dividing responsibilities between the territories and the centre. Founded in approval through referendums, the devolved institutions possess a degree of political entrenchment, that also has legal basis. For Northern Ireland, formal protection comes from the Belfast or ‘Good Friday’ Agreement of 1998, an international treaty (implemented in the UK through the Northern Ireland Act 1998). The Wales Act 2017 and the Scotland Act 2016 both provide that devolution in the respective territories is a permanent part of the UK constitution, and could be abolished only subject to consent through popular votes in the areas concerned.
The UK system as a whole has, especially since the late 1990s, increasingly taken on federal characteristics. The Human Rights Act 1998 provides to some extent the equivalent of the bills of rights that often exist in federal polities; while the UK Supreme Court, that became operational in 2009 under the Constitutional Reform Act 2005, performs some of the functions one would associate with a similarly-named entity in a federal jurisdiction. The Joint Ministerial Committee (JMC) is an equivalent, within a UK context, to a federal mechanism for ensuring input from the states into important decisions. In a federation, interference from the centre in the responsibilities of the states is constitutionally restricted; while in the UK, the devolved legislatures have been protected by a rule that the UK government will not ‘normally’ introduce bills into the Westminster Parliament to legislate in devolved spheres of competence. This convention has been included in statute in 2016 and 2017 with respect to Scotland and Wales. Moreover, the UK generally has developed in the direction of a ‘written’ constitution, with a growing tendency for its fundamental arrangements to be expressed in official documents such as codes and Acts of Parliament.
But the UK has yet fully to express its latent federal tendencies. Comprehensive devolution is lacking. The devolved arrangements of Wales, Scotland and Northern Ireland differ in many of their details, though in some respects they have converged over time. That devolution in Northern Ireland has been suspended for long periods of time, as it is at the time of writing, is a significant restriction on the full operation of a federal system, arising from the particular characteristics of the territory concerned. But for most of the population of the UK – that is the roughly 85 per cent who live in England – the issue is not the frequent interruption of devolution, but that either it does not exist at all, or only in a limited form. London has had a directly elected mayor and assembly since 2000; and as part of a package introduced following the Scottish independence referendum of 2014 a number of directly elected mayors with new powers have been introduced for groups of local authorities (or in the case of Cornwall, a single authority). But these measures fall well short of those in existence in Wales, Scotland and (when it is operating) Northern Ireland. Their precise content – largely determined by central government – differs in every case. Legislative assemblies have not been created; and not all of England possesses even this limited form of devolution.
At the centre, the devolved territories are not incorporated into the legislature. The second chamber, the House of Lords, which might in a federal system comprise a states’ chamber, is mainly appointed by central government and not on a specifically territorial basis. It is also important not to exaggerate the extent to which the UK constitution has taken on ‘written’ form. The judiciary has a greater constitutional role, exercised, for instance, under the devolution statutes and the Human Rights Act, in particular by the Supreme Court. But ultimate authority resides not with a constitutional text interpreted by the courts – as would be the case in a federation – but with the Westminster Parliament. It can legislate as it chooses, subject only to political limitations, and can intervene in devolved areas of competence, or even alter the constitutional system itself, without a specific need for adherence to special amendment procedures. In this sense, the UK still clearly lacks a ‘written’ constitution. In this respect it is unlike almost any other democratic state in the world, and certainly any democratic federation. But what are the contemporary arguments for it to make a transition towards federalism, and what are the prospects for it doing so?
The Case for a U.K. Federalist Constitution
The dominant issue of contemporary UK politics, Brexit, has a variety of federal implications. Most obviously, it entails projected UK departure from an entity – the European Union – that has important federal aspects to it. For European federalists in the UK and elsewhere, this prospect is important in a number of respects, involving a number of variables that make the outcome hard to predict. It also has connections to varieties of federalism that focus on other layers of governance. Brexit raises matters involving the role of institutions of global governance, in particular the World Trade Organisation. It has further associations with the internal arrangements of the UK and the territorial division of power within it. Certain observations can be made in this regard. They apply to a large extent whether or not the UK ultimately leaves the EU and – if it does – irrespective of the particular manner in which it does so.
First, Brexit has revealed the extent to which authority remains centralised in the UK, notwithstanding the advent of devolution; and the absence of provision for the sub-components of the state to have a meaningful input into crucial decisions. Throughout the process, the UK government has asserted its primacy as interpreter and implementer of the result of the referendum of 23 June 2016. It has been willing to consult with and make limited concessions to the devolved executives over some aspects of legal provision for departure from the EU. Yet in this area it has also proved willing to deploy its theoretical ability to secure the passage of legislation – the European Union (Withdrawal) Act 2018 – regardless of an express withholding of consent by the Scottish Parliament.
Furthermore, the UK administration has rejected the desires of the Welsh and Scottish governments to maximise post-Brexit regulatory alignment with the EU, insisting that the UK will not seek continued participation in either the Single Market or Customs Union. Moreover, UK ministers have shown an unwillingness fully to recognise the consequences of such a decision for fundamental aspects of the Northern Ireland peace process as set out in the Belfast (‘Good Friday’) Agreement. They have also refused to accept that the territorial differentials in the referendum result – in which Scotland and Northern Ireland (and London) both produced substantial ‘remain’ majorities – should be of any consequence for the material outcome.
Second, the Brexit episode has demonstrated not only the extent of inequity between the territories and the UK tier of governance. It has shown that within the centre on which such authority is focused, constitutional balancing mechanisms are limited in their ability to subject the UK executive to proper limitations. The House of Commons has been willing, notwithstanding the misgivings of a majority within it, to legislate for an exceptionally open-ended referendum; to accept – so far – that its result necessitates leaving the EU; and largely to acquiesce in a high degree of executive flexibility in pursuing such an outcome. It possesses extensive theoretical powers, including to force the government to pursue different courses of action, or to install a new administration. But to date, in relation to Brexit, they have largely remained theoretical. The House of Lords has offered more resistance, but its lack of democratic legitimacy makes it reluctant fully to deploy the powers it possesses, which are in any case less than those of the Commons.
The courts exercised some control over the UK executive in that they forced the government – in a case that concluded in the Supreme Court in January 2017 – to seek express statutory authorisation to activate Article 50 of the Treaty on European Union, commencing the process of exit. However, given the aversion of both Houses of Parliament fully to assert themselves over this issue the immediate practical impact of the judgement was not immense. Moreover, the Supreme Court majority, in delivering its findings on Article 50, sought to exclude the possibility that the Court might become involved in reviewing another aspect of the Brexit process. When discussing the rule that the UK government would not normally seek to legislative for devolved matters without consent from the devolved legislatures involved, the majority judgement insisted that this rule was not justiciable, despite its having received statutory recognition for Wales and Scotland in 2017 and 2016.
The executive has not, therefore, been subject to significant restraint either by Parliament or by the courts. But while it has much power concentrated within it, the government itself is not strong. The governing Conservative Party lacks a majority in the House of Commons and is riven by seemingly irreconcilable divisions, from Cabinet level downwards. A vacuum, therefore, exists. In this circumstance it has proved possible for a determined minority within the Conservative parliamentary cohort (backed by a large body of activists beyond Westminster) to impose its perception that the referendum result creates an obligation to leave the EU, and to do so in way that maximises discontinuity. This faction, associated with the European Research Group (ERG), has wielded influence directly upon the executive not so much through Parliament as through the party system. It is far more plausible that associates of the ERG can remove the Conservative leader and install their own candidate than defeat the government in a vote in the Commons.
Third, as well as highlighting significant aspects of the existing constitution, Brexit has important implications for the future. Departure from the EU – if it occurs and depending on the precise form it takes – implies the transfer of responsibilities that once resided at European level to the UK. The question arises as to how 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 trade policy – are reserved to UK level. Significant tensions have already developed between the devolved and UK governments regarding how these areas of activity should be handled. The UK, Welsh and Scottish executives have each presented different views of how the constitution should function in future. The UK government has stressed the need to preserve a single market for the UK and retain uniformity of decision making in this regard. It has argued, therefore, that in some instances it will be necessary for decisions that fall within devolved policy remits to be taken centrally. The devolved administrations, however, have emphasised the importance of transferring powers to them. The Welsh administration has referred to the desirability of moving partially in a federal direction, with decisions taken jointly between the different parties. The Scottish executive has emphasised the importance of its ability to control its own policies, with some possibility for wider cooperation.
The foregoing discussion of Brexit and the internal division of power within the UK constitution suggests that the existing system has made it possible for a minority within a minority at UK level to commandeer largely unchecked executive authority for purposes of its own. A policy of unsurpassed importance in UK history has been adopted and pursued despite a clear lack of consensus and regardless of its profoundly destabilising potential. This course of action could make unavoidable the introduction of new governmental mechanisms for the disposal of repatriated functions. In this sense, it creates an opportunity to propose systemic reforms that could be appropriate regardless of the final conclusion of the Brexit episode, and could help correct some of the democratic defects it has revealed. With this objective in mind, the next section outlines a proposed federal constitution for the UK.
A Federalist Constitution for the U.K.
The main attractions of a UK federation are that it would allow for a fuller expression of its multinational, diverse character. It could extend the benefits of devolution – namely that it allows more local democratic control over the provision of important services – to the whole of the UK. Yet while providing more secure structural realisation for the territorial variety of the UK, 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.
If the UK is to move meaningfully towards a federal constitution, it must establish a comprehensive framework applying to the whole of the country. No parts of England (or any other part of the UK), as is currently the case under devolution, can be omitted. (While in some federal systems the administrative capital does not have the same representation as the rest of the country – for instance, Washington D.C. in the US – such an arrangement does not seem a realistic proposition for London, with the Greater London Authority area accounting for more than eight million people.) The main decision that follows involves how England is to be included in the federation. One option is to treat it as a single unit. This approach would have the advantage of utilising an acknowledged entity that is a nation alongside Wales and Scotland (though the status of Northern Ireland is more complex). 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. Churchill recognised this point in his 1912 speech, as have others subsequently. Conflict between the English and UK tiers would be both likely and difficult satisfactorily to resolve. Furthermore, one of the benefits of federalism – that it enables some functions 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 may be a difficult task. However, regions that might initially seem somewhat artificial might be expected in time to achieve acceptance. An important precedent has been set by the Conservative governments that have lately introduced directly elected mayors to seemingly arbitrary constructs such as ‘North of Tyne’, ‘Cambridgeshire and Peterborough’; and ‘West of England’. Moreover, these changes have taken place without approval being sought through referendums. The Conservative Party was once the main source of opposition to English regional devolution. It has now adopted a variant on this model, and implicitly acknowledged that it can be introduced without popular votes taking place. This development is of considerable significance to any project for the introduction of devolution across the whole of the UK, which is in turn a necessary precursor to a federal constitution.
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, which is the most extensive of any of the devolved territories. By extension, particularly given the basic principle of a comprehensive system, it would seem difficult absolutely to deny to any other unit the law-making and revenue raising powers possessed by Scotland. However, it might be possible – to some extent emulating the example provided by the Spanish constitution of 1978 – 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. It seems likely that there would be a general tendency for all to converge on the fullest available range of functions. Divergence regarding internal arrangements – such as voting systems and the configuration of the legislature and executive – could be permitted, though it would probably be necessary to prescribe certain basic requirements.
It is in the nature of devolution that the emphasis of this constitutional development to date has been on the downward transfer of powers. A focus on reconciling this dispersal of authority with the maintenance of a cohesive UK state has been lacking. This absence – and its capacity to generate tension and instability – has been manifest during the Brexit episode. The devolved territories have not been fully integrated into 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. Wales, Scotland and perhaps Northern Ireland might object to being treated as equivalent to English regions – but under the system envisaged here they would be provided with a more extensive role than they enjoy at present.
How would the composition of this second chamber be determined? The two basic options would be for direct elections within each territory, or for members to be appointed by each state legislature and/or executive. Some variant on the latter model is more attractive for two key reasons. First, it would facilitate the integration of the state level institutions more fully into the overall system. Second, it would function well within the context of a parliamentary system. Appointing of its members by state legislatures and/or governments would provide the second chamber with greater legitimacy than it possesses at present, enabling it to assert itself over areas within its remit in a way the House of Lords cannot. But it would be legitimacy of a qualitatively different variety to that possessed by a directly elected chamber. The states chamber would possess genuine authority, but it 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 (as does the Lords presently); and could be provided with a special role in authorising decisions that are of fundamental importance to the entire federal polity (something that the Lords today lacks). Therefore, the states’ internal integrity would be protected; and they would, in addition, be able to play a part in certain decisions that are at present reserved to the centre alone.
Within this new federal system, it would no longer be appropriate for ultimate power to be reside in the 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. Ratification by referendum would not be necessary and indeed – given the doubt currently surrounding the merits of this method of decision making – would preferably be avoided. 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 to 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.
If you would like to explore this topic further please see Dr Andrew Blick’s Book: “Beyond Magna Carta: A Constitution for the United Kingdom”.
For an example of a Written U.K. Constitutional text please click here.