Question:
‘Devolution has transformed the UK from a unitary state to a quasi-federal state’.
Discuss.
Answer:
The name itself, the United Kingdom of Great Britain and Northern Ireland, implies that this country is a unitary state. However, according to Bogdanor, the introduction of the devolved regions of Scotland, Wales, and Northern Ireland questions this sense of unity and has transformed the UK from a unitary to a quasi-federal state.[1] However, to assert that the UK is a quasi-federal state would be inaccurate due to the existence of the doctrine of parliamentary sovereignty, the lack of individual constitutions for the devolved states, and the inequality between the powers of the devolved regions and England.[i] Moreover, to persist in calling the UK a unitary state would be invalid as well due to the retainment of separate national governments. This essay will argue that the UK is neither a unitary nor quasi-federal state but rather a union state.[2]
A unitary state consists of one national parliament and one national government that has sovereign authority to legislate and govern.[3] Although there can be other levels of government, the principal authority must be maintained. The main characteristics in a federal state are that sovereignty has been divided resulting in multiple centres of power, all of which are equal and bound within each state’s individual constitution.[4] On the other hand, a quasi-federal system is one that contains some but not all features of a federal state. To say that devolution has transformed the UK from a unitary state to a quasi-federal state would be false as the current system in the UK does not exhibit any features of a federal state, as described above.[ii]
Devolution challenged the unitary state by the creation of the elected devolved assemblies in Scotland, Wales, and Northern Ireland but the ultimate power is still vested in the Parliament of the UK. Westminster Parliament can at any time abolish the devolved assemblies by repealing the devolution acts and legislating on all matters for the devolved regions, including those that are formally beyond its competence. All of the devolution acts make it explicitly clear that they are not against the doctrine of parliamentary sovereignty. For instance, Section 28 of the Scotland Act, states that the ‘power of the Parliament of the United Kingdom to make laws for Scotland’.[5] This emphasises that parliamentary sovereignty is still intact despite the delegation of powers to the devolved nations, showing that sovereignty has not been divided and there still is a single centre of power in the Westminster Parliament.[iii]
There are real political constraints that, in theory, restrict Parliament from legislating for the devolved regions. The Sewel Convention [iv] is one of these constraints.[6] Despite this convention, in reality, Parliament does have the power to make legal decisions for its devolved nations.[v] This can be seen in Miller, where the Supreme Court ruled that the Sewel convention was merely a ‘statement of political intent’ and that Parliament was not legally bound by it.[7] The court held that the devolved legislatures in Scotland, Wales, and Northern Ireland had no legal right to veto the European Union Withdrawal Act.[8] This decision perpetuates the notion that devolved nations cannot be seen as other centres of power that are on par with the Westminster Parliament. This supports the argument that despite devolution, the power to legislate and govern the UK has remained with the single sovereign centre of Westminster Parliament, emphasising one of the main characteristics of a unitary state.[vi]
There has been no official codification of the United Kingdom’s constitution that would formally define the functions and division of power between Westminster Parliament and the devolved nations. It can be argued that the 1998 Scotland Act,[9] 1998 Government of Wales Act,[10] and 1998 Northern Ireland Act were created to act as mini constitutions for the devolved territories.[11] For example, the Scotland Act gave birth to a Scottish Parliament and government which can traditionally only be established through a constitution.[vii][12] However, it is difficult to confirm that the devolution acts are constitutions for each of the devolved nations as they were originally created by Westminster Parliament as parliamentary acts. As a result, they are merely an extension of Parliament’s power to create other levels of government.[viii] Thus, granting these subordinate levels constitutional authority by integrating the devolution acts into the UK’s constitution. In other words, these acts can merely be seen as an addition to the UK constitution which requires courts to recognise their constitutional status. The constitutional authority given to the devolved nations by Parliament through the devolution acts was emphasised in AXA General Insurance, where the supreme court recognised the constitutional significance of the Scotland Act as a reason to grant wider immunity from common law judicial review.[13] The recognition that an Act of Scottish Parliament cannot be challenged as if it were the decision of an ordinary public body stems from the fact that the Scotland Act is part of the UK constitution. Hence, this accentuates the lack of individual constitutions in Scotland, Wales, and Northern Ireland. Therefore, from a constitutional perspective, devolution does not affect the unity of the UK, or the sovereignty of Parliament because unity does not preclude other levels of government, underlining the lack of multiple centres of power seen in federal states.[ix]
One of the largest problems with labelling the UK as a quasi-federal state is the existence of the asymmetrical union between England, Scotland, Wales, and Northern Ireland. The way in which powers are devolved and defined varies between the regions. In Scotland, for example, the Scottish Parliament and Government have all the powers which are not expressly reserved to the UK.[14] Whereas Northern Ireland has established 3 categories of powers,[15] and the Welsh National Assembly only has powers that are conferred onto them.[16] This lack of uniformity takes away any notion of equality of powers between Parliament and the three devolved states. This erases any sense of federalism from the UK [x] as this type of system requires equal political units in the political landscape that cannot be seen in the UK at the moment.
Moreover, the absence of an English-only institution further indicates the lack of equality in the representation in Parliament. The problem is in the unanswered West Lothian question in that Scotland, Wales, Northern Ireland are represented in Parliament and can vote on issues that only affect England. However, this competence is not reciprocal. It is clear that even though England is responsible for over 80% of the population in the UK, it does not have an English Parliament, thus, creating an asymmetrical system. Consequently, it would be impossible to label the UK as a federal or even quasi-federal state.[xi]
The absence of any federal features in the UK suggests that to call it a quasi-federal state would be flawed.[xi] However, despite the retainment of a single sovereign parliament within the UK, the nature of the current system, where Scotland and Northern Ireland still have separate national governments that are not subordinate to the English government, realistically makes it difficult to categorize the UK as a completely unitary state. This is because a unitary state requires only one single national government. Instead, the UK seems to straddle the line between a unitary and quasi-federal state. Perhaps, it should continue to be called a ‘union state’ to accurately reflect its historical roots in joining separate territories while still retaining separate national governments but one sovereign Parliament.[xiii]
To summarise, the devolution acts have transformed the constitutional arrangement of the UK by becoming additions to the UK constitution. However, despite devolution, the UK cannot be seen as a quasi-federal state due to the retainment of the doctrine of parliamentary sovereignty and the lack of equality between the devolved regions. Moreover, it is impossible to call the UK a unitary state as well due to the national governments of Scotland and Northern Ireland remaining as national governmental institutions. There should be the creation of a better term to describe the UK’s unique political structure after devolution but currently, it would be the most accurate to call the UK a union and multinational state.[xiv][17]
Feedback:
Grade: 58
What was done well:
This essay demonstrates good knowledge of the materials and some attempt at independent thought. The argument that the UK isn’t even quasi-federal because it does not have any features of a federal state is interesting (but see below). Also interesting is the point that the UK is a union/multinational state. These two points show some attempt at thinking independently and beyond the course content.
What is needed to improve:
Your argument needs to be better presented and organised. At times, your essay came across as arguing that the UK isn’t a federal state—which is not what the question is suggesting. Your argument thus got lost in the rather haphazard structure of your essay. One way to structure it better is to state what the features of a federal state are, say that UK isn’t even quasi-federal because it doesn’t have any of those features, and organise your argument according to those features. You can also deal with the unitary state point by saying that perhaps it was never even one to begin with.
There are some good points in here; you just need to organise them better and develop the more insightful points in more detail.
References: [1] Vernon Bogdanor, Devolution in the United Kingdom (Oxford University Press 1999) 285 [2] Iain McLean, Alistair McMillan, State of the Union (Oxford Scholarship Online 2006) [3] Andrew Le Sueur, Maurice Sunkin, Jo Eric Khushal Murkens, Public Law: Text, Cases and Materials (4th edn, OUP 2020) 161 [4] Gerard Horgan, The United Kingdom as a Quasi-federal State (Department of Political Studies, Queen’s Univeristy 1999) 2 [5] Scotland Act 1998, s 28 [6] Scotland Act 2016, s 2 (8) [7] R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 [8] European Union (Withdrawal) Act 2018 [9] Scotland Act 1998 [10] Government of Wales Act 1998 [11] Northern Ireland Act 1998 [12] Scotland Act 1998 [13] AXA General Insurance Limited and other v The Lord Advocate and others (Scotland) [2011] UKSC 46 [14] Scotland Act 1998, s 5 [15] Northern Ireland Act 1998, s 4 [16] Government of Wales Act 2006, s 3 [17] Vernon Bogdanor, Devolution in the United Kingdom (Oxford University Press 1999) 285
Marker Comments:
[i]Interesting.
[ii]Strong claim. I hope the essay develops this in more detail.
[iii]So is the UK a unitary, federal or quasi-federal state?
[iv]What is it?
[v]Is that what the Sewel Convention is?
[vi]Are you now arguing that UK is a unitary state? Your argument is getting lost now.
[vii]Was the Westminster Parliament created by a constitution?
[viii]Good point.
[ix]But the question isn’t saying that UK is a federal state. it’s saying that it’s a quasi-federal state.
[x]See comment above.
[xi]Why not quasi-federal?
[xii]Ok, I see this is your argument. This needs to be more clearly presented.
[xiii]What is a union state? Needs more elaboration.
[xiv]Needs more elaboration.
Comments