Discuss whether federalism in the Uk would be so unbalanced as to be unworkable.

The question requires a discussion on the possibility and practicality of adopting a federal
system of government as opposed to its current arrangement, which is that of devolution. Both
these concepts will be discussed, but it is submitted at this point that while federalism would
undoubtedly bring about constitutional change, it isn’t too far of a change from where the UK is
right now.

Devolution and federalism exists on the spectrum where executive and legislative power is
distributed throughout the country. The UK is a union of four nations, England, Wales, Northern
Ireland and Scotland. A unitary system is on one end of the spectrum, where there exists only

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one legislative and executive body. While this ensures uniformity of policy-application across the

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state, it is clearly not the current system in the UK.

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Federalism lies on the other end of the spectrum. According to Cheryl Saunders in a 2015
lecture, federalism “involves shared and therefore limited power”. Each jurisdiction is allowed to
govern and pass laws for itself, and according to [Link] (2007), such a system is characterized
by a division of policy competences between the different levels of government. According to

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him, a common feature between federal nations is that “the assignment of competences will be
set out in relevant articles of a written constitution and may only be changed in accordance with
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the provisions of that constitution”. Clearly, the UK has no such constitution.

Thus, the UK system of devolution lies in the middle of that spectrum. It allocates powers to
different levels of government but in a way that was described by Le Seuer as “constitutionally
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different”. McEldowney explains that this is because unlike federalism, devolution “does not
create any entrenched autonomous powers”. He states that while powers are transferred to the
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devolved constituencies, this is subject to the key qualification of Parliamentary sovereignty, a

and this was observed in the first Miller case, where despite the codification of the Sewel
convention into statute by the Scottish Parliament, Westminster nonetheless has overriding
authority over the devolved legislature.
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The ‘balance’ which the question mentioned above, refers to the fact that the supreme power
that Westminster enjoys currently would tip towards the once-subordinate legislatures should
federalism be adopted, which supposedly poses a constitutional issue. Whether or not this is
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true will require an analysis on the competences the current devolved legislatures possess.

It must be understood that unlike the distribution of power in federations, the way power is
devolved across the nations in the UK is “assymetrical”. There are three main types of powers
that are devolved: administrative powers, executive powers and legisaltive powers.

Devolution for Scotland came after the 1997 referendum in the form of the Scotland Act 1998,
which prescribed for the creation of the Scottish Government of Ministers and the Scottish
Parliament. Per s29 of the Act, the Scottish Parliament had competence on all areas of law
except for reserved matters in Sch.5, which were matters relating to the Crown, the Union
between Scotland and England, Parliament, and specific reservations like financial & economic
matters, energy, transport, social security etc. More recently, the Scotland Act 2016
implemented recommendations by the Smith Commmission, which not only declared that the
devolved executive and legislature were “permanent parts of the UK’s constitutional
arrangements”, but it also gave greater autonomy to the devolved institutions in Scotland.

Devolution in Wales also came after its 1997 referendum, in the form of the Government of
Wales Act 1998. It created the National Assembly, which was a single body without separation
of legislative and executive functions (this was different from Scotland). The Act was criticised

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by Sir David Williams as being ‘neither fish nor fowl’. It was noted that the nature of devolution

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was more restricted (competences were expressly written down) and the degree of reserved
powers was greater than that of Scotland’s. Still, in subsequent reforms by the WA 2014 and

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2017, further powers were devolved and most recently, the Welsh Assembly was renamed the
Welsh Parliament in the SE(W)A 2020. In fact, [Link] in ‘Drifting towards federalism?’ noted
that these reforms have pushed devolution in Wales to be more symmetrical with Scotland.

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The process of devolution in Northern Ireland was much more chaotic, and as Le Seuer notes,
since 2010, the process there has been “from crisis to crisis”. The Northern Ireland Assembly
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and Executive was created in 1998 via the NIA 1998. One such “crisis” was observed in 2017
when the political parties in the Assembly failed to form a coalition government following general
elections, and for over 2 years, Northern Ireland had no functioning legislature or executive.
Westminster had to set the budgets for its constituent to ensure public services were
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maintained.
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Surprisingly enough, as the most populated and largest nation, England has no local legislature
or executive. This was referred to as the West Lothian question, and which [Link] described
as “the gaping hole in the devolution settlement”. There was a lack of reciprocity since MPs from
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devolved nations could vote on English matters in Westminster but not the other way around.
Finally, this was resolved in the Commons’ Standing Order in 2015, where an additional stage
was created for Bills where the consent of English (sometimes Welsh) MPs would consent to
‘English’ bills.
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What can be clearly inferred from the above is that devolution has not been symmetrical in the
UK. However, at the same time, Westminster has conceded a significant degree of power to
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both Scotland and Wales. This was why [Link] writes that the UK “has been on a federal
trajectory since 1998”. In fact, Cheryl Saunders suggests that the UK may already be an
‘unusual federation’, where federalism applied “without the courage of its convictions”. She
argued that the increasingly diverse federations have blurred the line between the necessary
features of a federation. Given this, federalism doesn’t seem to be a very far off idea for the UK.
There are already well-defined territorial lines between the different nations, which Cheryl
argued, gave a compelling rationale for devolution.
However, the fact still remains that there is no devolution in England, and it does not seem to be
“on the horizon” as observed by [Link]. Further, the legal supremacy of Westminster also
remains as an elephant in the room, which was highlighted in the Continuity Bill case, where the
UKSC held that the Scottish Parliament “does not enjoy the sovereignty of the Crown in
Parliament.”

Discuss the claim that the devolved structure of each part of the UK is immensely
complicated, but that the overall constitutional arrangement of the UK is clear and
straightforward.
Define devolution

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The process

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Is the “constitutional arrangement” clear?

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The question requires an assessment on the system of devolution in the UK, whether or not it is
actually “immensely” complicated. As will be discussed, while the devolution process in the UK
has been asymmetrical, one thing has remained constant, that is the supremacy of Westminster
as the legislature of the UK.

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Devolution comes from a greater spectrum that dictates how power is distributed throughout the
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state. On one end of the spectrum is a unitary system, where the nation only has a single
legislature, and a single executive; power is largely concentrated in these institutions. On the
other end of the spectrum is a federation, which according to [Link], ‘Federalism’, the authority
to govern and legislate is divided between a central institution and “a number of constituent
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regions”. He observed that the common feature of federations is that the competences of the
state are assigned in “relevant articles of a written constitution and may only be changed in
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accordance with the provisions of that constitution.”

Clearly, the UK has no such constitution. It adopted devolution, which is found between these
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two “ends”. While powers are still distributed, Le Seuer notes that the way it does so is
“constitutionally different”. Of course, we are referring to the devolution of power sMcEldowney
distinguishes devolution from federalism in that it “does not create any entrenched autonomous
powers” and that “the UK Parliament does not relinquish any of its sovereignty”. Westminster
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can withdraw the devolved powers at any time it deems necessary, at least legally speaking.

When the question states “immensely complicated” it is likely referring to the fact that devolution
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in the UK has been an asymmetrical process.