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Death of the Unitary State (Part II)

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

Following on from Part I of this series, this second article will ask: what should replace the unitary system in light of result of the Scottish independence referendum? The article will begin by dismissing 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 codification of the UK Constitution. 

Nothing’s changed; everything’s different

The former Secretary of State for Wales, Ronald Davies, once said: ‘devolution is a process, not an event’. Encapsulated in this statement is the idea that devolution is not the final settlement of the constitutional relationship between Westminster and the nations of the UK. Instead, devolution is merely a path towards a definitive arrangement. When Scotland rejected independence on 18th of September 2014 it became clear that the price for keeping some form of the British State was the end of the United Kingdom as we knew it. But just what has replaced it remains to be seen.

Some commentators and MPs, including the deputy Prime Minister, have called for a federal constitutional settlement. A federal constitution would certainly address many of the complex constitutional issues that have been unearthed by the Referendum. For example – a federal constitution would create state parliaments in Scotland, Wales, and Northern Ireland and assemblies in the English regions, alongside a federal UK Parliament. Constitutionally dividing of competences between state and federal legislatures would provide a solution to the West Lothian question. The need to address the lack of English devolution has become a mainstream political issue since David Cameron declared ‘English votes for English laws’. Some academics have argued the creation of an English Parliament is not possible due to lack of appetite amongst the electorate. Whilst this may have been historically true, a recent poll conducted by the Institute of Public Policy Research found that 54% favoured the creation of an English parliament. As Robert Hazell has argued, ‘those who demand an English Parliament are in effect demanding a full blown federation’.

Is the answer a United States of Great Britain and Northern Ireland? I am of the view that it is not. Federations such as Australia, Canada, Germany, Russia, and the USA work because there is a general balance in population amongst their respective constituent states. This is translated into roughly equal voting power in the federal legislature. The same cannot be said to be true for the nations of the UK. England has a population share of 83.9% - ten times greater than that of Scotland. In addition, owing to its greater population, England contributes £1.12 trillion to the wider UK economy. Such significant demographic imbalances render any proposal for a federal state unworkable. Many commentators have pointed out that it would be dominated by the political and economic importance of England. As the Royal Commission on the Constitution concluded: ‘the English Parliament would rival the UK federal Parliament; and in the federal Parliament itself, the representation of England could never be scaled down so that it could be outvoted by Scotland, Wales, and Northern Ireland’. Thus, the United States of Great Britain and Northern Ireland, much like the USSR, Yugoslavia, or Czechoslovakia, would inevitably collapse.

However, there is nothing to suggest that potential English devolution would necessarily mean the United Kingdom would become a de facto federal state. Assuming any English devolution occurs within the same legislative framework as the other devolved administrations, it would remain a creature of statute. Parliamentary sovereignty means that Westminster could legally abolish the devolved administrations. This lack of guaranteed permanence reflects the fact devolution is not an event; I believe it also fuels the fire of nationalism since self-government is a gift, and not a right. Whilst parliamentary sovereignty has produced the flexibility and creativity needed during the process of decentralisation, it cannot settle the constitutional relationship between Westminster and the constituent nations of the UK. The current First Minister of Wales has called for the end of Parliamentary Sovereignty in order to constitutionally protect the positions of the devolved administrations. Arguably therefore, the current UK Constitution has come to the end of its ability to deal with devolution.

Perhaps then, in the wake of the rejection of Scottish independence, we have been provided with the opportunity to codify the UK Constitution. I believe that the Spanish Constitution of 1978 can provide a valuable example here, given the similarities between strength of national identity in Catalonia, the Basque Country, and Galicia and the nations of the UK. Article two of the Spanish Constitution affirms the indissoluble unity of the Spanish State, whilst at the same time recognising and guaranteeing the right to autonomy of regions and nations. I believe that a codified UK constitution should follow the same principle: dividing power amongst, but pooling resources across, the nations and regions of the British State. However, such a suggestion may seem surprising given that Catalonia is preparing to hold its own independence referendum in spite of the Spanish Constitution. Thus, it may be argued that codified constitutions can do no more to curtail nationalist movements than the current British Constitution. However I think such a conclusion would be rash. The Spanish Constitution appears to ‘guarantee two irreconcilable principles: the unity of the nation and an unspecified extent of regional home rule’ as Taylor-Turano notes. Failing to specify a concrete ceiling on the power of the regional assemblies has enabled Catalonia to unilaterally push for greater autonomy, perhaps even independence. In designing a UK constitution, I would suggest a fully-participatory process. This would enable a definitive list of competences for each of the devolved administrations to be democratically decided, in much the same way as current devolution legislation is structured. Therefore, a codified UK constitution should guarantee the unity of the British State but a specified extent of regional autonomy, representing an important, but coherent, distinction.

The quasi-federal solution outlined above lies between traditional conceptions of the unitary state and a truly federal constitution. The benefit of this approach is the division of sovereignty across English regions, Scotland, Wales, and Northern Ireland, whilst at the same time maintaining the unity of the UK. By fully entrenching subsidiarity as an integral part of the governance structure of the British State, an additional layer of democratic accountability will be created. It is hoped that this will increase public engagement in politics. As Gordon Brown noted: ‘it is therefore possible to imagine support for a system of government in which welfare, the funding of health care, defence, foreign affairs and most macroeconomic issues are managed at a UK level, while the devolved assemblies and parliaments are autonomous in most other areas'.

It has been suggested that a federal solution to constitutional issues is unworkable. By codifying the UK Constitution we can reach a definitive constitutional settlement and hopefully preserve the union for another 300 years. Thus, the UK will become as close to a federal state as is practically workable where 85% of the population comes from one of its four nations. The end of the devolution process is nigh: nothing’s changed, but everything’s different.

Further Reading

Author unknown, The Financial Times, ‘Towards A Federal Future for the UK

Gordon Brown, The New Statesman, ‘Union does not mean Uniform

Jonathon Brown, The Independent, ‘Carwyn Jones: ‘The UK must continue down the road to becoming a federal nation

Leslie Taylor-Turano, ‘The Making of the Spanish Constitution’, in Robert Blackburn (ed.), ‘Mapping the Path Towards Codifying or not Codifying the UK Constitution: Case Studies on Constitution Building

Paul Embery, Huffington Post, ‘The Case for an English Parliament is about to become Unanswerable – The Left Should Support It

Royal Commission on the Constitution, Volume 1: Report (London: HMSO, 1973) Cmnd. 5460

The Spanish Constitution of 1978

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Tagged: Constitution

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