Constitutional- Muhammad Syed

‘Regardless of whether Lady Hale was correct to suggest in 2012 that the UK was a federal state, the undeniable fact is that, today, it most certainly is not.’

By Muhammad Syed

The quote is correct. The UK has never been and is presently not a federal state. I will draw this conclusion by outlining three features of federalism, taken from states like Germany and the US, and demonstrate that the constitutional arrangements of the UK do not share any of them.

Division of Sovereignty

For a state to be federal, its sovereignty must be shared between different levels of government so that “each government is legally independent within its own sphere” (Wheare).99 This starkly contrasts the basis of the UK constitution which presupposes that sovereignty ultimately lies with the UK Parliament. The courts have not shied away from upholding this central tenet.

In AXA, the key question for the Supreme Court was whether Acts of the Scottish Parliament were amenable to judicial review, and if so, on what grounds.100 Although the court unanimously held that they could not be subject to judicial review, Lord Hope highlighted that constraints were already placed on the Scottish Parliament. He affirmed that the Scottish Parliament receives its authority from the UK Parliament, so it does not enjoy sovereignty. Its powers are limited by s.29(1) and s.29(2)(d) of the Scotland Act 1998. These statutes ensure that an Act is not law if it falls outside its legislative competence, and that legislation must be compatible with any of the Convention rights. So the reason for their non-intervention was that adequate provisions already existed to ensure sovereignty ultimately lies with the UK Parliament.

That said, when the Scotland Act was amended to politically embed the position of the devolved states, the constitutional arrangements appeared to move towards a federal character. This was because s.63(a) firmly placed the Scottish Parliament and Government as permanent components of the UK’s

99 Wheare, Kenneth C, Federalism in the History of Thought, 1991. 100 AXA General Insurance Limited and others v The Lord Advocate and others [2011] UKSC 46

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constitutional arrangements while s.28(8) gave statutory recognition to the Sewel Convention. Both these statutes seemed to confer greater sovereignty to the devolved states, albeit only to a superficial level.

Firstly, the use of ‘permanent’ in s.63(a) was a misnomer because, as the House of Lords Constitution Committee reports, Parliament can still abolish the Scottish Parliament under specific conditions, such as the holding of a referendum.101 This preserves parliamentary sovereignty on a theoretical and practical level by providing a route for Parliament to restore its sovereign power if it so wishes.

Secondly, the Supreme Court in Miller (No 1) unanimously held that consent was not needed from the devolved legislatures before initiating proceedings to leave the EU, dismissing the relevance of s.28(8) of the Scotland Act and s.1(1) of the Northern Ireland Act.102 On the argument that the Northern Ireland Act was made under the assumption that the UK would be a member of the EU, this was not a binding promise that its membership in the EU was eternal. The only requirement under s.1(1) concerned a referendum for Northern Ireland to gain independence from the UK; it did not state that consent of Northern Ireland was needed to leave the UK.

The Supreme Court also expressed reluctance to enforce the Sewel Convention despite its statutory status. They held that it was a political convention which Parliament refrained from converting into a legal rule justiciable by the courts. As Elliott observes, this reveals s.28(8) to be “nothing more than a political token in legislative garb” with no real sense of enforcement or meaning.103 This reaffirms that power is centralised in Westminster and is in no way divided.

Written constitution

The second feature is that federal states typically have a written constitution that demarcates the parameters in which each level of government is allowed to operate in. Most importantly, an implication of this characteristic is that provisions in the constitution cannot be changed by one level of government.

101 House of Lord Constitution Committee, Scotland Bill- Sixth Report, 2015 102 [2017] UKSC 5 103 Elliott, Mark, Analysis/The Supreme Court/s Judgement in Miller, Public Law For Everyone, 2017.

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It requires consent from all levels of government. Two points merit attention on this matter.

Firstly, the UK does not have a codified constitution. Instead, its constitution is made up of the common law, Acts of Parliament, constitutional principles and conventions.

Secondly, this ties in closely with the fact that sovereignty lies with Westminster. For this reason, consequential statutes like the EU Withdrawal Act 2018 and the EU Withdrawal (Agreement) Act 2020 could be passed without consent from the devolved legislatures.

In response to the 2018 Act, the Scottish Parliament tried to pass a Continuity Bill, with s.17 providing that subordinate legislation made by Westminster required the consent of the Scottish Ministers if it concerned devolved matters. The Supreme Court held that it was in breach of s.29(2)(c) of the Scotland Act, ruling that s.17 was a nullity. Lady Hale, departing from her earlier stance that the UK is a federal state, affirmed that s.17 was contrary to s.28(7) of the Scotland Act which highlights “the essence of devolution”.104 This preserves the power of Westminster.

Same levels of autonomy

The final feature requires every constituent nation to possess the same rights autonomy at each level of government. However, the asymmetrical nature of the devolved arrangements means that there is a difference in powers conferred upon each state depending on the histories and attitudes of the constituent nations. The unwritten nature of the UK constitution facilitates any changes to their varying levels of autonomy to be made.

For example, the Scotland Act 1998 conferred powers to the Scottish Parliament to legislate independently. It also outlined the reserved matters which fall outside the competence of the devolved legislature. This initially included fiscal and monetary policies but following the Scotland Act 2016, a greater degree of economic power over taxation and welfare payments were devolved.

104 Lady Hale, President of the Supreme Court, Devolution and The Supreme Court- 20 Years On, Scottish Public Law Group 2018, 2018

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Meanwhile, the process of devolution in Wales was strikingly different. For starters, the Government of Wales Act 1998 implemented a scheme of “executive devolution”, where powers over primary legislation and taxation were not awarded (Tomkins and Turpin).105 The elected Welsh Assembly was only permitted to make delegated or secondary legislation until 2007, when a primary law-making power was granted on a limited basis. It was only after the 2011 referendum that this power was conferred completely.

Lastly, the aim of the Northern Ireland Act 1998 was to give legal effect to the provisions of the Belfast Agreement. The arrangement of the Northern Ireland Executive merits particular attention. In order to gain universal support from both sides of the political spectrum, the First Minister is to be nominated by the largest political party while the Deputy First Minister is nominated by the second largest political party. This same model does not apply to Wales or Scotland.

In addition, England’s precarious position in relation to devolution must be considered because of the absence of devolution in England. This is animated by the West Lothian question, where MPs of the devolved nations can decide on laws affecting English matters in the UK Parliament while the same scope of intervention is unavailable to MPs of English constituencies on devolved matters. This imbalance of power is a further illustration that the UK is not a federal state. Although the government has introduced ‘English Votes for English Laws (EVEL)’ as a potential solution, concerns have been raised over the dual function of Westminster as both the UK Parliament and a de facto English legislature.

Conclusion

In sum, the devolved arrangements of the UK means that it cannot be considered a federal state. Indeed, the fact that devolution is a “process, not an event” (Davies) raises questions over the end of devolution (Tierney), with some even arguing that it is “a road with no logical stopping point short of independence”. However, the current arrangements of the UK are entirely irreconcilable with the general features of federalism.

105 Young, A., n.d. Turpin & Tomkins' British government and the constitution.

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