Question:
‘Devolution has transformed the UK from a unitary state to a quasi-federal state’.
Discuss.
Answer:
This essay will argue that devolution since the mid-20th century has transformed the UK from a unitary state to a quasi-federal state. The first section will address the UK’s move away from a unitary state, the second section will examine that this does not mean that the UK can now be considered federal, and the final section will seek to reconcile these two seemingly competing ideologies.[i]
Federal shall refer to a structure of the state which combines a hierarchy of government comprising of national-rule and regional-rule with non-centralised sovereignty. Devolution, on the other hand, will refer to the process by which the supreme legislative authority delegates powers and responsibilities from a national to a regional level. Quasi-federal will be defined as a system that functionally mimics a federation, while simultaneously lacking the constitutional or institutional framework that would make it so.[1]
References to devolved legislatures is to encompass the Scottish Parliament, Welsh Senedd and the Northern Ireland Assembly, though particular distinction will be drawn between the Northern Irish agreement and those of the other devolved nations where relevant.
Dismantling the Unitary State
Since the mid-20th century, nationalist sentiments have grown within each respective nation in the UK. This has led to progressive shifts in power: central government and legislative powers have slowly been delegated as a result of legislation passed in Westminster.[2]
By definition, a unitary state ‘consist[s] of a number of areas or groups that are joined together and are controlled by one government or group’.[3] It can be seen that this is simply not the case in relation to the complex arrangements between the Westminster Parliament and the devolved nations: there is not one government, but a hierarchy of national and devolved administrations and legislatures. There is, however, a sovereign Parliament.[ii]
The ‘reserved powers’ model, used in Scottish and Welsh devolution, delegates jurisdiction to the devolved nations over all matters, except those that are reserved for central governance.[4] The system relating to Northern Ireland is different: the Northern Irish Assembly has full legislative control over transferred powers, partial control over reserved powers (subject to approval by the Secretary of State) and no jurisdiction over excepted powers. It is clear that power is no longer confined solely to Westminster but spread between Westminster and the devolved bodies. This has eroded the unitary nature of the state as power is no longer centralised.
Federalism in the UK
While the state was unitary in nature prior to devolution, it cannot be said that the United Kingdom is still a unitary state in the fullest sense anymore. This shift should not be conflated with the idea of federalism though.
The United Kingdom differs in its constitutional arrangement from many federal states, perhaps most importantly on the means and operation of power sharing. For example, the US Constitution grants individual states the right to legislate on any matter that is not explicitly excluded by the Constitution and the federal government’s powers are limited by what has been granted to them by the Constitution.[5] While there is some leeway with an ‘elastic clause’,[6] the federal approach in the US certainly employs a decentralised, power-sharing model.
Differently, the UK Parliament has retained the power to legislate contrary to the devolved legislatures.[7] The idea that one legislative entity holds supreme power (Parliamentary sovereignty) directly conflicts with the power-sharing model employed in federalism. Despite the widespread recognition of the Sewel Convention and its placement on a statutory footing, Parliament remains sovereign. The Supreme Court in Miller (No 1) held that the convention merely provided ‘symbolic reassurance’ regarding legislative consent, not a ‘legal obligation’ to consult the devolved nations.[8] Furthermore, it was reaffirmed in Axa that devolved legislatures can only legislate on matters within their competence.[9]In this sense, devolution in the UK does not amount to federalism.[iii]
Brexit has demonstrated particular tension between Westminster and the devolved nations. While Theresa May’s government had commented that the ‘devolved administrations should be fully engaged’,[10] Paul Craig has criticised that ‘while the devolved bodies exercised voice, its impact at Westminster was muted’ when Article 50 was invoked without seeking consent from the devolved administrations.[11] This is particularly important in light of the fact that the majority of leave votes stemmed from England and English MPs make up the majority of seats in Parliament; asymmetric representation within the UK Parliament is another demonstration of how the British system cannot be considered completely federal in nature.
Furthermore, in regard to the Withdrawal Agreement, Westminster reaffirmed its supremacy in the Scottish Continuity Bill Case by adding the European Union (Withdrawal) Act to the list of provisions that cannot be modified by the Scottish Parliament.[12] Even when the judgment from the Supreme Court was given, it was in favour of UK government. It can be seen that the devolved nations were, and continue to be, easily side-tracked by Westminster. Without the oversight of a constitution that establishes and regulates a federal state, devolved bodies are always subordinate to the legislator that enables their power. In the case of the UK, the Scottish Parliament, Senedd and Northern Ireland Assembly are subordinate to the Westminster Parliament because of Parliamentary sovereignty. This model, in theory as well as practice, does not allow for power sharing to the same degree as in federalism. [iv]
Reconciliation – A Hybrid Quasi-Federal State
It is also important to examine the more practical aspects of devolution. While the Westminster Parliament has not relinquished its sovereignty and retains the unilateral power to transfer power back to itself,[13] this would be politically unacceptable and likely lead to further calls for independence within the devolved nations if it attempted to do so. Bogdanor comments on this, writing that
‘It is then in constitutional theory alone that full legislative power remains with London; and it is only in constitutional theory that the unitary state is preserved. In practice, power will be transferred, and it cannot, except under pathological circumstances, be recovered.’[14]
Parliament has not transferred or limited its sovereignty in a legal sense, but the political ramifications of attempting to regain full control do threaten it. Therefore, the Westminster Parliament’s sovereignty is limited due to devolution. [v]
It cannot then be said, in a political sense, that the UK remains a unitary state; nor can it be said, in a legal sense, that the United Kingdom is now a federal state[vi] . The United Kingdom is a union of states[vii] , but not a federation.[15] Legally, the UK remains as a unitary state that has been devolved, but on a functional basis it incorporates federal ideologies, pragmatically making it quasi-federal.[16] Academics have argued that since Brexit, ‘the old notion that the UK is a unitary state is no longer credible and it makes more sense to describe the UK as having a quasi-federal constitution.’.[17][viii]
Conclusion:
In conclusion, it has been shown that the UK is neither a unitary nor federal state. Devolution has transformed the UK into a quasi-federal state from a unitary one and while theory suggests that this development could easily be reversed, it has been shown that this could not be the case in practice due to the tensions between Parliamentary sovereignty and national sentiment in the devolved nations.
Feedback:
Grade: 57
What was done well:
This essay shows that you have incorporated the feedback on your previous essay, in particular the point about substantiating your claims. This essay is a significant improvement in that regard. It generally reads very well: it is logically organised, clearly written, and contains good references to the key cases and academic texts. It is a good effort. However…
What is needed to improve:
The question is not asking whether devolution has turned the UK into a federal state. It is asking whether the UK is now a quasi-federal state. There is an important distinction between the two. Your argument that the UK is not a federal state is trivially correct, but does not answer the question. A better way to approach the question is to ask to what extent devolution has turned the UK into a quasi-federal state—and this is where the Brexit discussion is key.
Apart from that, the essay is very good in terms of the presentation, expression and coherency of the argument. You would have scored better if you had correctly focused the essay. You are definitely on the right track.
References: [1] Gerard Horgan, The United Kingdom as a Quasi-Federal State [2] See Scotland Act(s), Government of Wales Act(s) and Northern Ireland Act [3] ‘unitary’ Oxford Learner’s Dictionary [4] Scotland Act 1998 s29, Schedule 4-5; Government of Wales Act 2017 [5] US Constitution, 10th Amendment [6] US Constitution, Article 1 s8 [7] EG: Scotland Act 1998 s28(7) [8] R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 [9] AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46 [10] Theresa May, Lancaster House Speech (17 January 2017) [11] Paul Craig, ‘Chapter 4’ in Jeffrey Jowell and Colm O’Cinneide (eds), The Changing Constitution (9th edn, Oxford University Press) [12] McHarg and Mitchell, ‘Brexit and Scotland’ (2017) 19 British Journal of Politics and International Relations 512; Re UK Withdrawal from the EU (Legal Continuity) (Scotland) Bill [2018] UKSC 64 [13] Royal Commission on the Constitution 1967–73, vol. 1 (Cm 5460), para. 543 (often called ‘the Kilbrandon report’ after the commission’s chairman) [14] Vernon Bogdanor, Devolution (Oxford University Press 1979) 217 [15] Iain McLean and Alistair McMillan, State of the Union (2005) [16] Gerard Horgan, The United Kingdom as a Quasi-Federal State [17] Ros Taylor, ‘Brexit is forcing the UK to confront its territorial governance’ (LSE Blog, 6th March 2019) <https://blogs.lse.ac.uk/brexit/2019/03/06/brexit-is-forcing-the-uk-to-confront-its-territorial-governance/> accessed 20th March 2022; Tom Mullen (Professor of Law, University of Glasgow), ‘Brexit and the Territorial Governance of the United Kingdom’ (2019) Contemporary Social Science
Marker Comments:
[i]Good paragraph that clearly sets out the essay’s objectives and argument. [ii]What’s the significance of this in terms of the question? [iii]This is all correct, but the question is asking whether the UK has been turned into a quasi-federal state. [iv]Same comment as above. I think a better approach would be to consider to what extent, in the light of this discussion, the UK is even quasi-federal. [v]So is UK unitary or quasi-federal? [vi]That’s not what the question is asking. [vii]What does this mean? [viii]This is an important point and should have been developed more (that is, to what extent is this true?).
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