Governing Scotland in a federal United Kingdom

The United Kingdom does not have a constitution at all, in the sense of a document setting down the rules and institutions for governing the country, and there are various arguments for and against having one.

Some argue that the rules about our core institutions of government, in particular the executive, the legislature, and judiciary, are too important and separate from ordinary law and therefore should be codified in a special document.(1) Others maintain that the UK currently has an evolutionary system of government that adapts to changing social and political conditions, unlike a written constitution which would be more rigid and difficult to change.(2)

Aside from this, there is also an issue with the current devolution scheme, which has created various constitutional imbalances in the UK. These include the doctrine of parliamentary sovereignty, and the so-called “West Lothian question”. Furthermore, devolution has been configured in different ways, with the Scottish Parliament having more powers than the Welsh Assembly, and no devolution has been introduced at all to England, outside Greater London.(3) This raises the question of whether adopting a fully federal constitution (similar to the USA, Germany, Austria or Belgium) would work for Scotland and the UK.

Federalism v devolution

What is federalism, and how does it differ from the UK’s current model? Federalism is defined as a theory of shared sovereignty.(4) All federal countries have written constitutions where powers are devolved to federal “decentralised governments”(5) which are coordinate to one another instead of subordinate.(6) This differs from the UK’s current model of devolution, as powers would be distributed between federal and state governments (horizontal relationship as opposed to vertical delegation of power), and sovereignty would be divided and shared between different levels of government.(7)

The most recent development in the current strategy is found in the Report of the Smith Commission for further devolution of powers to the Scottish Parliament. The commission was set up following the Scottish independence referendum to try and broker a deal amongst the five political parties and to strengthen the Scottish Parliament’s abilities, and not to alienate it from the rest of the UK. The report contains three heads of agreement (pillars 1-3) which include:

Pillar 1: Providing for a durable but responsive constitutional settlement for the governance of Scotland;
Pillar 2: Delivering prosperity, a healthy economy, jobs and social justice; and
Pillar 3: Strengthening the financial responsibility of the Scottish Parliament.

The Scotland Act 2016 implements the commission's recommendations. It has major constitutional significance, particularly ss 1 and 2. Section 1 inserts a new section 63A(1) into the Scotland Act 1998, which states: “The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements.” Similarly, s 2 amends s 28 of the 1998 Act to place the Sewel convention on a statutory footing, by stating that “the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.

From an orthodox Diceyan perspective this appears disorienting. However, in simple legal terms s 2 has no legal effect. Mark Elliot comments that these sections are symbolic or, at the most, political.(8) This does not mean that s 2 is irrelevant; it is merely legally irrelevant. This cardinal and ongoing piecemeal model of previous and current devolution schemes contains the same feature which is that the UK Parliament has chosen to relinquish none of its power.

There are further issues surrounding the proposal for transforming the UK into a federation. First, the Kilbrandon Commission(9) opposed federalism, as a large proportion of the UK’s population resides in England, therefore a federation consisting of four units – England, Scotland, Wales and Northern Ireland – would be too unbalanced as it would be dominated by the overwhelming political importance and wealth of England. Its report stated that the imbalance could be corrected if England were to be divided into a number of units, each having the status of a federal province; however it highlighted that if this were carried out, the fact would remain that England by its weight and numbers would continue to dominate the federation.(10)

Nevertheless, Scotland still contributes greatly to the UK’s GVA (7.7%),(11) and the country could operate as an effective federal state. In AXA General Insurance Ltd v Lord Advocate(12) it was expressed that the Scottish Parliament is a competent legislature; and “most legal challenges to Acts of the Scottish Parliament [have] been based on Convention rights grounds”.(13) The Lord Ordinary in AXA stated that he “would be concerned if any more liberal approach were to lead the courts into unwarranted scrutiny of the democratic legislative process”,(14) and it was held that the petitioners’ complaints failed to “come anywhere near the standard of 'irrationality' which would be necessary in order to invalidate a primary Act of the Scottish Parliament”.(15)

Fundamental problems

As outlined in the s 28 amendment, Scotland and other devolved legislatures only enjoy lawmaking autonomy because the UK Parliament does not intervene in devolved affairs, rather than it not being able to do so. Laws LJ has provided an orthodox analysis of why the legislation is worded this way and why the UK Parliament is not relinquishing any of its power. In the case of Thoburn v Sunderland City Council(16) he states that the UK Parliament is sovereign and therefore incapable of legally abandoning “its sovereignty”.(17) Any statements restricting Parliament’s sovereignty are thus ineffective. Moreover, as a matter of strict constitutional law and as a practical political restraint, this means that the UK Parliament still retains the power to diminish and/or abolish devolved institutions altogether.(18)

Parliamentary sovereignty is an important issue, as Adam Tomkins points out that a federal UK would end Parliament’s sovereignty, and both Scotland and Westminster would have to give something up.(19) This poses a greater problem, as Scotland currently has more constitutional power than it would have under a fully federal constitution.(20) Therefore, asking Scotland to give up powers when a large percentage of the population supports independence would be difficult to implement due to a lack of support. This fear is combined with the fact that support for independence may be stronger following the EU referendum.

Tomkins goes on to state that all federal countries have written constitutions, where the centre cannot alter the powers of the regions/states/provinces: rather, these are enshrined in the constitution, with any disputes being resolved by a powerful Supreme or Constitutional Court (therefore the written constitution would be sovereign, as opposed to the UK Parliament).(21) This adds to the difficulty of implementing a federal system, as an already divided UK would have to agree to a new federal settlement.

The current model for devolution is evidenced as having created constitutional imbalances in the UK. It should therefore come as no surprise why there is such a strong support for further devolution, and also Scottish independence. The option of combining self-rule with shared rule through transforming the UK into a federation has been shown to be not straightforward. Scotland's political position and wealth (in comparison to England) makes it difficult to justify equal powers, although it does contribute greatly to the UK’s GVA and has proven itself to be a competent legislature. Additionally, a federal UK would mean that there would no longer be a strong central power. It is then difficult to formulate such an approach where the current system includes a central legislature where no power has been relinquished.

These are the key reasons why it is unlikely that the UK would ever become federal. If it were to implement that model, it would have to be similar to effective federal OECD countries so as to learn from their experience and mitigate issues that may arise between the states. Furthermore, the UK remains divided following the Scottish and EU referendum results. Work is required to strengthen the union so as to prevent a future break-up, and before large changes can be implemented.

References

(1) House of Commons Political and Constitutional Reform Committee, A new Magna Carta? – Political and Constitutional Reform (2014): www.publications.parliament.uk/pa/cm201415/cmselect/cmpolcon/463/46308.htm: see part I, point 6.
(2) Ibid, part II, point 3.
(3) Democratic Audit UK, Unfinished devolution has created constitutional imbalances in the UK (2013): www.democraticaudit.com/?p=1265, paras 3, 5, 6.
(4) A Tomkins, “Federalism or Bust? How to Save the Union” (2015), on Notes From North Britain: notesfromnorthbritain.wordpress.com/2015/05/17/federalism-or-bust-how-to-save-the-union/, para 3.
(5) K C Wheare, Modern Constitutions (2nd ed, 1966), Oxford: Oxford University Press, 13.
(6) Ibid, 19.
(7) C Turpin and A Tomkins, British Government and the Constitution (7th ed, 2011), Cambridge: Cambridge University Press, 212, para 1.
(8) M Elliot, "The Draft Scotland Bill and the Sovereignty of the UK Parliament" (22 January 2015), on Public Law for Everyone: publiclawforeveryone.com/2015/01/22/the-draft-scotland-bill-and-the-sovereignty-of-the-uk-parliament/, para 7.
(9) Report of the Royal Commission on the Constitution (Cmnd 5460 (1973), paras 501-523).
(10) Ibid, paras 531, 532.
(11) Office for National Statistics, Compendium of UK Statistics: Main Comparisons: Economy (2014): www.ons.gov.uk/ons/guide-method/compendiums/compendium-of-uk-statistics/economy/index.html
(12) AXA General Insurance v Lord Advocate [2010] CSOH 2; 2010 SLT 179 (affd [2011] CSIH 31; 2011 SLT 439 and [2011] UKSC 46; 2011 SLT 1061).
(13) C Turpin and A Tomkins, note 7 above, 238, para 1.
(14) AXA General Insurance [2010] CSOH 2; 2010 SLT 179, at [143].
(15) Ibid, at [248].
(16) Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151.
(17) Ibid at [59].
(18) M Elliott, "Devolution, Federalism and a New Constitution for the UK" (2014), on Constitution UK: blogs.lse.ac.uk/constitutionuk/2014/01/08/devolution-federalism-and-a-new-constitution-for-the-uk/, para 5.
(19) See note 4 above.
(20) Ibid.
(21) Ibid.