HomepageCommercial LawPrivate LawPublic Law & Human RightsCriminal LawEU & International LawCareers

Accessibility

Have Irlen Syndrome, or need different contrast? Click the button below for options.

Background Colours

Subscribe

Enter you email address below to subscribe to free customisable article notifications.

Alternatively, click the button below for our various RSS Feeds (available journal wide, or per section).

Death of the Unitary State (Part I)

About The Author

Josh Dowdall (Writer)

Josh is a final year law student at Durham University. His primary interests lie in private law, public law and EU Constitutional law. Outside of academics, Josh is involved in a number of pro bono projects, and is passionate about diversity within the legal profession.

Abstract

This article will consider how the devolution settlements for Scotland, Wales, and Northern Ireland have come to challenge the traditional unitary state in the UK. It will first outline the historical developments that led to the centralisation of governmental power, before analysing whether constitutional reform has preserved the unitary state. It will conclude that the orthodox conception of the unitary state is now a defunct concept within UK constitutional law.

In a second article, the question will be asked: what should replace the unitary system in light of result of the Scottish independence referendum? The article will begin by rejecting calls for a federal constitution, advocating instead a quasi-federal solution to current constitutional issues arising from the rejection of Scottish independence. The conclusion will be drawn that the asymmetry in the relationships between the territories of the UK and Westminster should be conclusively settled, favouring the ‘devo-max’ approach.

Arguably, one of the key functions of a constitution is to proscribe the structure of government. A unitary state is a sovereign state governed as a single unit, with the power of the constituent parts vested in central government. A contrast can be drawn with federalism, which constitutionally divides sovereign power between state and federal governments. Legal scholars have traditionally described the United Kingdom as a unitary state, owing to the historical concentration of power in the hands of the central UK government. Yet devolution arguably presents a challenge to this conception, which has been reinforced by the outcome of the 2014 referendum on Scottish independence.

Centralised government in the UK

Centralisation is a concept that has always rested uneasily within the UK system of government. The UK is a union of nation states. The strength of national identity in the four constituent parts of the UK may go some way to explain the geo-political instability of the union since the original Act of Union 1707. This is because the marriage was never an equal one. Whilst Scotland was allowed to keep its church, education and legal system, the Scottish Parliament was abolished. The union replicated English governmental structures, with law making centralised at Westminster. As Lord Cooper noted in MacCormick v Lord Advocate:

I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament.

In reality, union with Scotland swelled the number of MPs in the Commons and rebranded the English Parliament into the Parliament of Great Britain; the competences and status of the English Parliament remained unaltered. Thus the price of union with England was not ‘English gold’ as Burn’s poem suggests, but acceptance of what Dicey calls the ‘concentration of the strength of the state in the hands of one visible sovereign power’: the Westminster Parliament.

Together with the centralisation agenda pursued by the Thatcher government, perceived remoteness of the Westminster parliament ignited nationalist movements in the ‘Celtic fringe’ of the UK. A combination of English dominance in the Commons and the first past the post electoral system created a situation in which Conservative governments have been elected to govern the UK without ever holding a majority amongst Scottish and Welsh MPs. Resentment of the unitary state and what Mitchell terms, the resulting ‘democratic deficit’, was one of the strongest arguments put forward by Yes Scotland in favour of succession from the Union during the 2014 referendum. Even though Scotland may have voted by a 10% margin to remain part of the UK, it is clear that the unitary state cannot continue in its conventional form.

Has the unitary state survived devolution?

The end of the traditional unitary state began with the programme of devolution under Blair’s Labour government. It can be suggested that devolution was a response to the rising tide of nationalism, intended to redress the democratic deficit and implement the principle of subsidiarity in governing the UK. Subsidiarity, as a principle that reserves power for central government only where local government cannot adequately exercise it, provides a contrast to centralisation. The former Prime Minister, James Callaghan, recognised the importance of the need to move towards subsidiarity when he said ‘components of the old sovereign States, and especially minority components, have become more conscious of a special individual identity and tradition.’ It was this consciousness that lead to broad acceptance of devolution in referendums by the Scottish and Welsh electorate. Thus, the creation of devolved institutions ended a period of highly centralised government in the UK, marking the beginning of the demise of the orthodox unitary state.

It is open to interpretation, nonetheless, as to whether devolution has completely eroded the unitary state within the UK system of government. Fundamental to a discussion of the UK’s present constitutional arrangements is parliamentary sovereignty, and how this preserves a unitary state. Parliamentary sovereignty provides for the legal competence to pass legislation repealing the Acts establishing devolved administrations in Scotland, Wales, and Northern Ireland. Sovereignty is reflected in the language of s. 28(7) of the Scotland Act 1998, which makes clear that the act ‘does not affect the power of the Parliament of the United Kingdom to make laws for Scotland’. The Government of Wales Act 2006 and the Northern Ireland Act 1998 both contain similar provisions. Academic commentators and judges alike have recognised that Westminster has not given up sovereignty by devolving power to the subordinate Parliaments, with Brazier (Rodney Brazier, ‘The Constitution of the United Kingdom’ [1999] 58 CLJ 96) noting the existence of ‘triple locks’. The first lock is that the devolved administrations owe their authority to the UK Parliament, which would suggest that the lack of constitutional rhetoric in the Acts is an assertion of the degree to which they are subject to Westminster, which demonstrates the second lock. The final lock is the express limitations in the competences devolved to the institutions. This is the most important of the locks as it prevents the devolved administrations from passing legislation altering the constitutional settlement of the UK; this is a competence reserved explicitly to Westminster. In the event of the devolved administrations passing such legislation, the courts could and would strike it down as ultra vires. The devolution Acts therefore seek to preserve the authority of Westminster; Westminster has the constitutional authority to repeal the devolution Acts and centralise power once more, should it choose to. Thus, it may be suggested that devolution has weakened, but not eradicated the unitary state.

Opponents of this view may draw attention to the fact legal sovereignty is constrained by political reality, which may offer an alternative conclusion. In the context of devolution this is demonstrated by the operation of the Sewel convention. Under the Sewel convention the UK government has pledged not to legislate in areas in which a devolved legislature has competence, unless it is requested to do so. This is despite the fact the devolution Acts explicitly acknowledge the ability of Parliament to make law for Scotland and Wales. In the absence of a request, any law passed by Westminster in an area where competence has been devolved would be deemed unconstitutional for being in breach of a clear constitutional convention.

Other commentators have gone further, suggesting that devolved administrations are now a politically entrenched feature of the UK’s constitution. Bogdanor (Vernon Bogdanor, ‘Review Article: the Evolution of a Constitution: Eight Key Moments in British Constitutional History’ [2007] 123 LQR 480) has suggested that the political reality of devolution is such that Westminster would find it exceptionally difficult to restrain or abolish the devolved institutions, and centralise power once more. Lord Denning, in Blackburn v Attorney General, also recognised the political impossibility of repealing the devolution Acts in pursuit of centralisation:

[F]reedom once given cannot be taken away. Legal theory must give way to practical politics.

Academics and judges now recognise that ‘the British state has come closer than ever before to conceding that its retention of legislative omnicompetence in the context of a devolution process is a matter of legal form rather than political substance’ (Neil Walker, ‘Beyond the Unitary Conception of the United Kingdom Constitution?’ [2000] PL 384).

Conclusively, whilst it may be true that the UK Parliament retains legal competence to abolish the devolved administrations and govern the UK solely from Westminster, political reality prevents it from doing so. This conclusion has arguably hardened in light of the outcome of the Scottish independence referendum. Given that over 1.6 million votes favoured succession from the union, and that the Better Together campaign won promising extensive new powers for the Scottish Parliament, it seems political opinion is firmly in favour of increasing democratic accountability through subsidiarity. It is almost inconceivable that the electorate would support a centralisation agenda, thus preventing Westminster from abolishing the devolved administrations. 

Devolution has presented the greatest challenge to traditional conceptions of the unitary state in the UK constitution. Whilst legal sovereignty may remain with the UK Parliament, its operation is constrained by the continuing political success of devolution. Therefore, it is suggested that it would be practically impossible to centralise power and re-establish the traditional unitary state.

What should replace the Unitary State? Read Death of the Unitary State (Part II).

Further Reading

Albert Dicey, An Introduction to the Study of the Constitution (8th edn, first published in 1915, Indianapolis: Liberty Fund, 1982)

James Mitchell, ‘Devolution’s Unfinished Business’ [2006] 77 The Political Quarterly 465

Neil Walker, ‘Beyond the Unitary Conception of the United Kingdom Constitution?’ [2000] PL 384

Rodney Brazier, ‘The Constitution of the United Kingdom’ [1999] 58 CLJ 96

Roger Masterman and Colin Murray, Exploring Constitutional and Administrative Law (1st edn, Pearson 2013)

Vernon Bogdanor, ‘Review Article: the Evolution of a Constitution: Eight Key Moments in British Constitutional History’ [2007] 123 LQR 480

For the latest articles straight to your inbox, you can subscribe for free. Alternatively, follow @KeepCalmTalkLaw on Twitter or Like us on Facebook.

Tagged: Constitution

Comment / Show Comments (0)

You May Also Be Interested In...

Exploring the Christian Marginalisation Narrative beyond the Workplace

24th Apr 2018 by Kelly Ann Cannon (Guest Author)

Where is the Love? A Lament to Justice

16th Jun 2015 by Rachel Dean

Can Sturgeon Save the Human Rights Act and Prevent ‘Brexit’?

15th Jun 2015 by Josh Dowdall

Queen and Country: Important Changes to the Crown Succession

3rd Jun 2015 by Jade Rigby

A Web of Influence: Freedom of Information and the Black Spider Memos

28th Apr 2015 by Amy Ling

The role of the UKSC recently determined following Chester and McGeoch

11th Nov 2013 by Thomas Horton

Section Pick March

Coronavirus and the ECHR: Should the UK Trigger Article 15?

Editors' Pick Image

View More

KCTL News

Keep Calm Talk Law: Moving Forward

3rd Sep 2019

Changing of the Guard: Moving Keep Calm Talk Law Forward

12th Aug 2018

An Anniversary or Two: Four Years of Keep Calm Talk Law

11th Nov 2017

Rising from the Ashes: The Return of Keep Calm Talk Law

18th Nov 2016

Two Years On, Keep Calm Talk Law’s Legacy is Expanding

11th Nov 2015

Twitter

Javascript must be enabled for the Twitter plugin to function. Click below to visit us on Twitter.

Free Email Subscription

Subscribe to Keep Calm Talk Law for email updates, and/or weekly roundups. You can tailor your subscription on activation. Both fields are required.

Your occupation / Career stage is used to tailor your subscription and for readership monitoring.

Uncheck this box if you do not want to receive our monthly newsletter.

By clicking the Subscribe button, you agree to our privacy policy and terms of service. Please ensure you read these in full.

Free Subscription