Discuss whether a federal system would be much better than the current devolution

arrangements for the United Kingdom.

There are various systems that countries adopt in determining how to distribute powers within
their territories. The question of which powers are to be exercised at a national level and which
powers are to be delegated at sub-national levels is usually solved by reference to a written
constitution. This system is known as federalism. In a federal system a written constitution lays
down in advance the powers which are to be exercised by the national government and powers
which would be exercised at a local, provincial or a regional level.
By contrast, in the United Kingdom which does not have a written constitution, a system of
‘devolution’ is adopted. The UK consists of England, Wales, Scotland and Northern Ireland.
Without a written constitution being present, a system of devolution is adopted in the UK in the
following manner; the UK Parliament, known as the Westminster Parliament is the supreme
lawmaker within the English legal system whereas powers are devolved to the regional
Parliaments and Governments so that they could legislate on and make policies regarding
matters which are of specific concern to them. These powers have been devolved under the
‘devolution legislations’; The Scotland Act 1998, The Northern Ireland Act 1998 and The
Government of Wales Act 1998.
These devolution Acts lay down the framework for the division of powers between the UK
Parliament and the devolved Parliaments. Powers are divided between the central and regional
levels. For example, matters of national concern are left to be dealt with by the UK Parliament
and the UK Government whereas matters of regional concern are devolved to be legislated
upon and dealt with by the devolved Parliaments and the devolved Governments. However,
there are variations between the way devolution works in each of the devolved regions. For
example, Scotland has been given more devolved powers than have been given to Northern
Ireland and Wales.
Devolution in the UK came about fairly recently in 1998 following the 1997 general elections
which returned a Labour Party Government which in its manifesto had assured that upon
election, it would devolve powers to each of the regions within the UK to strengthen its Union.
The Scotland Act 1998 was used to devolve legislative and executive powers to Scotland.
Legislative powers in Scotland were devolved by the creation of a Scottish Parliament and the
Scottish Executive headed by the First Minister for Scotland replaced a lot of the functions
which were previously carried out by the Scottish Office (which is a government department of
the UK executive rather than the Scottish Executive). The Scotland Act gives the Scottish
Parliament and the Scottish executive legislative and executive powers over all areas which are
not reserved for the UK Parliament. Matters which are reserved to the UK Parliament under the
Scottish Act include matters of national concern such as the conferrence of nationality, defence
policies, economic matters, regulation of various professional societies, trade and industry, etc.
This means that the Scottish Parliament and the Scottish Government have remit over a wide
range of matters, e.g. the devolved region of Scotland has powers to make laws and policies on
its own taxation, variation of taxation, local media/ culture, its own healthcare and medical
system, tourism, its own transport, fishing, local education, etc.
On the other hand, legislative and executive powers were devolved to Northern Ireland under
the Northern Ireland Act 1998. However, in contrast to the way that devolution occurred in
Scotland, the Northern Ireland Act provides a list of matters devolved to Northern Ireland which
means that matters which are not specifically devolved to Northern Ireland remain within the
UK’s remit. The kind of matters devolved to Northern Ireland’s Parliament and executive are its
fishery policies, tourism, local environment, local culture, local healthcare facilities, local
transport, etc. However, unlike Scotland, Northern Ireland has not been given any tax varying
powers.
Wales was granted devolution under the Government of Wales Act 1998 which sets up a
devolved Welsh Parliament known as the General Assembly for Wales and its own devolved
executive. However, the Welsh Assembly has even fewer devolved powers than the Northern
Ireland Parliament since Wales is still treated as having the same legal system as the English
one. However, matters of specific concern to Wales such as the preservation of the Welsh
language, customs and culture, etc. have been devolved to Wales while significant national
strategies are left to be dealt at a central level by the UK Parliament and Executive.
Although legislative and executive powers have been devolved to the different regions of the UK
in varying levels, it needs to be noted that the powers of each of these devolved Parliaments are
considered to be subordinate to the powers of the central UK Parliament since the concept of
Parliamentary sovereignty applies with full force in this context (Robinson v Secretary of State
for Northern Ireland). Thus, any of the legislation enacted by any of the devolved Parliaments is
to be considered as delegated legislation that is open to judicial review (Whaley v Lord Watson
of Invergowrie). However, even though the legislative powers of the devolved Parliaments are
subordinate to the UK Parliament, it is worth noting that the devolution Acts are to be treated as
constitutional Acts (Imperial Tobacco v HM Lord Advocate). This means that devolution Acts are
considered as acts which have constitutional significance and so cannot be impliedly repealed
in the way that ordinary statutes can.
Despite there being a division under the devolution Acts of matters that are to be dealt with at a
central level by the UK Parliament/Executive and the devolved Parliaments/Executive, there are
certain issues which might require co-legislation at both the central and regional levels. To that
end, there are established various Joint Ministerial Committees (JMCs). The JMCs are required
to meet annually and are staffed by the UK Prime Minister, the UK Deputy Prime Minister,
Secretary of State for Scotland (who heads the UK governmental department Scottish Office),
Secretary of State for Wales (who heads the UK Welsh Office), Secretary of State for Northern
Ireland (who heads the UK Northern Ireland Office) along with First Ministers for Scotland,
Northern Ireland and Wales each respectively. However, the drawback with JMCs is that they
do not meet very frequently, and only the JMC on matters related to European Union has been
reported by Andrew Le Sueur to have met most regularly. This means that there is a
communication gap between the central and the regional levels which is a major problem within
the devolved system adopted by the UK.
There is also an asymmetry in the way that devolution works within the UK. As discussed
above, Scotland has been given the highest devolved powers when compared to Northern
Ireland and Wales. Plus, Scotland has its own legal systems and its own courts with the Court of
Sessions being its highest court rather than the UK Supreme Court. By contrast, Wales’ legal
system is bound up with England’s. Additionally, there have also been questions asked as to
why England does not have any of its own devolved Parliament, i.e. why is there no separate
English Parliament? A lot of MPs of the UK Parliament have argued that given the lack of a
separate English Parliament, there should be introduced a system of the ‘English question’
which means that MPs in the UK Parliament who come from Scotland, Northern Ireland or
Wales must be excluded from Parliamentary debates when a matter of specific concern to
England is being considered in the UK Parliament. However, this would result in treating MPs
differently from one another which would give rise to political tensions and would further alienate
those who are in favour of separation of Scotland and Northern Ireland from the United
Kingdom.
Thus, given the imperfections of the way that the system of devolution works in the UK, it might
be thought that either the UK should adopt a unitary system , i.e. give all the powers to the UK
Parliament and Government or else that it must have a federal system with a constitution
allocating powers between the UK and regional governments and legislatures in advance.
However, it does not seem that a federal system would improve the current devolved system in
any significant way since even within the devolution system, the devolution Acts have laid out in
advance what the devolved and reserved matters are. What needs to be worked out though is
to do away with the asymmetry in the manner that devolution has been granted in the UK so as
to bring the devolved powers of all of the regions within the UK to an equal footing which means
that even Northern Ireland and Wales should have equal powers of revenue variation and their
own separate legal systems if Scotland has been given these privileges. In addition, England
could also be given its own devolved Parliament so that the unfairness that English matters are
to be determined by all MPs, even from devolved areas of Scotland, Northern Ireland and
Wales, is eliminated. Interestingly, a local government has been introduced in London through
the introduction of a Greater London Assembly and local authorities within England have been
given local powers under the Localism Act 2011, this still does not resolve the English question
completely unless England has its own devolved Parliament. Thus, the devolution system is
workable but there is considerable scope for improvement