By Joanna George
Research Associate, University of Cambridge
At a glance, the UK constitution has some characteristics of a federal model. This includes two types of government which represent different parts of the country. The national government, the UK Government, represents the whole of the country. Meanwhile, the devolved governments represent three out of four component parts within the UK. This includes the Scottish Government, the Welsh Government, and the Northern Ireland Executive. Each of the devolved governments are accompanied by legislatures (the Scottish Parliament, the Welsh Parliament (Senedd Cymru) and the Northern Ireland Assembly), as is the national UK (Westminster) Parliament which is based in England.
However, as this post will explain, the UK remains a unitary state with a devolved system of government with the UK Parliament retaining parliamentary sovereignty. As a nation within the Union, England is currently represented by the UK Parliament and lacks its own distinct government and legislature, unlike the devolved nations. Despite uncertainty surrounding the English Question, significant constitutional developments, including devolution of powers in the last two decades and the recent legal and political ramifications of Brexit and Covid-19, have increased constitutional curiosity in a federal UK, particularly amongst the devolved governments, political parties, and civil society groups.
How is devolution different from federalism?
As a constitutional model, federalism is commonly used in countries with large populations and complex democracies such as the USA, Canada, Germany, and the United Arab Emirates. By way of example, in the USA there are 50 states which each have their own legislature and government. At national level Congress – the federal legislature – deals with certain matters, such as declaring war. This is overseen by the President and their administration. How does devolution in the UK differ from federalism in a country like the USA?
Firstly, unlike the USA which has a written (codified) constitution, the UK has an uncodified constitution. This means that we do not have a single written document providing rules on what the UK Parliament can and cannot do, although the judiciary does provide a vital check on its power to prevent constitutional imbalance. As a result, there are no limits to the power of the UK Parliament and no requirements for it to act in a certain way in relation to the devolved nations.
Take, for example, the Sewel convention. This provides that the UK Parliament will not normally legislate on devolved matters without the consent of the devolved governments. Despite the recognition of the Sewel convention in the Scotland Act 2016 and the Wales Act 2017, the UK Parliament still retains a legally unlimited power to legislate on all matters for all nations within the UK. In contrast, the division of power in a federal system is legally defined, secured, and protected in a constitution.
Secondly, in a federal system each level of government has equal autonomy over allocated policy areas. This does not apply under UK devolution and has indeed been a source of tension among the devolved governments. Because the UK has asymmetrical devolution – where different parts of the UK have different amounts and types of power – this would mean that if the UK were to move to a federal model it would require the UK Parliament to actively equalise the degree of its involvement in the affairs of Scotland, Wales, and Northern Ireland.
Serious consideration would also be required to address English governance which has distinctly different challenges to the other UK nations as it lacks a Parliament/Assembly. An English Parliament would go some way towards completing the federalisation begun in the devolved nations, although concerns would remain regarding its population size and economic influence within the Union.
Thirdly, the main difference between devolution and federalism is the power dynamics at play. Devolution is a top-down system where power is ‘devolved’ from the Westminster Parliament to the devolved governments at its own discretion. In contrast, federalism is based on a partnership of nations willing to pool their sovereignty together for the benefit of the national interest. For example, we can think of federalism as a cake.
If the UK were federal, the whole cake would belong to the four nations as a Union cake. However, each nation would recognise their own sovereign slice as well as the sovereign slices belonging to the other nations. All four nations would then decide among them which slices to share with each other for the purposes of enhancing and improving the cake (Union) as a whole.
How likely is a federal UK?
It is widely acknowledged that the introduction of devolution in Scotland and Wales, along with the reintroduction of devolution in Northern Ireland in the late 1990s, has transformed the political and constitutional dynamics of the UK. Before devolution, power was deeply centralised in the UK Government and the UK Parliament. But since the implementation of the devolution settlements power has become more geographically and politically dispersed across the UK nations.
As a result, there is wider cultural impetus for a Union based on co-operation and partnership. Equally, there are also demands for greater accountability from the UK Government on its approach to Union policy, especially after accusations that it committed a ‘power grab’ of EU powers during the Brexit process.
Constitutional debates in the UK largely focus on devolution or independence for nations such as Scotland in light of the recent independence referendum held there. Federalism, in contrast, is less commonly discussed within the mainstream. Nevertheless, in recent years thinkers from across the political spectrum have drafted proposals for a UK federal system in response to further devolution, the constraints placed on devolution by the Brexit process and a desire for shared sovereignty amongst all UK nations.
The cross-party Constitution Reform Group advocates for a new Act of Union which would guarantee the rights and autonomy of each constituent nation and region within a reformed UK. Following the Welsh Parliament elections in 2021, the Welsh Government has established a Commission on the Constitutional Future of Wales where federalism is likely to be a topic of discussion based on Welsh Labour’s manifesto promise to ‘Work for a new and successful United Kingdom, based on a far-reaching federalism’.
In 1913, Winston Churchill famously spoke about the establishment of federalism for the UK, however he declared the idea ‘outside the sphere of practical politics’ at that moment in time. The Kilbrandon Commission of the 1970’s concluded that a federal UK ‘would be so imbalanced as to be unworkable’. Yet following seismic constitutional changes within the UK, in 2022 it doesn’t seem wholly impractical for a federal UK to emerge at some point.
This requires not only constitutional and legal changes to come about, but a cultural mind shift among politicians and the UK population. The recent Review of intergovernmental relations highlight subtle changes in this respect, with reference to ‘devolved administrations’ now replaced by recognition that they all carry the status of governments. On the other hand, the current UK Government’s use of muscular Unionism appears to contradict this.
These incremental changes highlight that the Union requires delicate diplomacy to keep it together under devolution. To create a federal UK, however, would necessitate a collective willingness to bring it about and a shared understanding of what this would mean for each nation or region. Whether that willingness will become evident in due course remains to be seen.
- Elliott and Thomas, Public Law (4th edn, Oxford University Press)
- The Federal Trust, ‘Federalism for the United Kingdom: an answer that raises questions’
- Centre on Constitutional Change, ‘Back to the Unitary State?’