#17384 - The Uk Territorial Constitution - Public Law

The UK Territorial Constitution

UK= multipolar system with a plurality of parliaments/ assemblies:

• Westminster Parliament

• Edinburgh Parliament

• Cardiff Assembly

• Belfast Assembly.

The territorial constitutional arrangements are still/ constantly evolving. There are many issues i.e.

• Division of powers

• Constitutional

• Fiscal responsibilities

• Multiple identities e.t.c.

The Brexit process is of particular relevance, not least since England and Wales voted ‘leave’ and Northern Ireland and Scotland voted ‘remain’...

CONCEPTUAL FRAMEWORK

Unitary State and Union State

• `The unitary state [is] built up around one unambiguous political centre which enjoys economic dominance and pursues a more or less undeviating policy of administrative standardisation. All areas of the state are treated alike, and all institutions are directly under the control of the centre.’ [strong version]

• ‘The union state [is] not the result of straightforward dynastic union, for example by treaty, marriage or inheritance. Integration is less than perfect. While administrative standardisation prevails over most of the territory, the consequences of personal union entail survival of pre-union rights and institutional infrastructures which preserve some degree of regional autonomy…’

Note the fact of Dicey’s doctrine of Parliamentary Sovereignty as an English (and not Scots) doctrine…

Devolution and Federalism

• Devolution: The transfer of powers at present exercised by ministers and parliament to regional or sub-national bodies which are subordinate… Devolution is thus a process by which parliament transfers its powers without relinquishing its supremacy, at least in legal theory.

• Federalism: as classically defined, a system where the sub-national territorial units of government are within their defined spheres of powers and functions supreme, in the sense that neither the central government nor other sub-national units can override their exercise of legislative and other power. But under the broader rubric of ‘the Federal idea’ of ‘enabling unity while guaranteeing diversity’ there is lots of room for hybrids in terms of ‘self rule’ and ‘shared rule’.

Note the view of the UK as moving in a ‘quasi-federal’ direction….

Forms of devolution

Legislative – powers transferred to the regions/provinces/countries to determine policy on a range of subjects, to enact legislation to give effect to that policy and to provide the administrative machinery for its execution, while reserving to the central (Union) legislature the ultimate power to legislate for the regions on all matters.

• Reserved powers model: governing statute sets out powers retained at the centre and devolves everything else.

• Conferred powers model: governing statute sets out devolved powers (in other words, what is not specified is not devolved).

Executive – Central (Union) legislature and central government … responsible for the framework of legislation and major policy on all matters but … wherever possible, transfer to other directly elected assemblies the responsibility within the framework for devising specific policies for the regions, including through delegated legislation, for the execution of those policies and for general administration.

Administrative (decentralisation) – decision-making in territorial departments (old-style Scottish Office etc) and agencies.

Systems of devolution

• Asymmetrical Devolution: different measures of devolution within the State for different regions/provinces/countries [the original UK model].

• Devolution ‘all round’: whereby all parts of the state are granted substantially similar devolved powers. In a strong version, ‘Home Rule’ all round.

DEEPER CONTESTATION

Competing interpretations of what the United Kingdom actually is:

• a unitary nation-state: based on social and political homogeneity. This in turn draws on modernization theories based on territorial integration and globalisation. This is matched on the constitutional side by the ‘Westminster’ understanding of the UK as a unitary state founded on parliamentary sovereignty.

• a plurinational union: ‘family of nations’ based on contractual membership, territorial differentiation and negotiation and ultimately, based on the recognition of popular sovereignty in each part of the UK, self-determination of its constituent parts. This view is expressed for example by the notably pro-devolution and pro-union Welsh Government.

In this regard, there may be disagreement about the demos, or the existence of a unitary people; telos, or the purpose of union; and ethos, the existence or need for shared a values across the polity.

• Unitary States: All of the constitutional power is allocated to the centre who may then devolve power to the regions. The UK is normally regarded as a unitary state but this is not definite. There is no need for a written constitution, strong judicial review, or a second chamber of national legislature for the regions. The centre could if it wished take the power back from the regions.

The UK is a unitary state but this is more of a spectrum. The UK is moving towards a more federal state. Because in reality it is impossible to see power withdrawn from the devolution settlements.

If the UK became a full federal state there would be a need for a written constitution, the judges to exercise judicial review and a reform of the House of Lords which represent the regions (proposition of Ed Miliband).

Constitutional changes initiated by New Labour

• The Human Rights Act incorporated the European Convention on Human Rights into UK law.

• A Supreme Court was established, with a constitutional remit.

• Devolved legislatures were established for Scotland, Wales and Northern Ireland.

Yet, while the programme may have attracted a broad coalition of support, that did not depend of fundamental agreement on the end point or telos. The approach = an incomplete one, leaving many issues in abeyance.

Could say:

• It was a radical programme of reform, which might have put the country on the road to a fully-fledged and federal constitution.

• Or: It might be seen as a conservative series of measures, another step in central territorial management which left the central doctrine of parliamentary sovereignty intact.

• Another view, prevalent for over a hundred years, was that home rule or devolution would lead to the break-up of the state.

A central question when addressing the UK territorial constitution is whether this general development is, or can be, the basis of a stable equilibrium or whether it will be overwhelmed by either centrifugal or centripetal (centralising) tendencies. Not least, that is, when the extended Brexit process is added to the mix…

BASIS OF THE UNION

• UK has come together because there are benefits in working together. This is a union based on consent.

Not true: Northern Ireland and Scotland were merged by choice but not Wales. This has affected the way in which regions of the UK perceive themselves. This is one explanation of the vibrancy in Scotland and the re-emergence of nationalism in Wales. They are recognized as constituent assemblies that are constitutional agents. Continuation of the Union depends on continued consent and regions can withdraw from the UK if they wish.

Note in particular that Scotland and Northern Ireland always retained separate legal systems (unlike Wales which was integrated into the English legal system).

More particularly:

• The Act of Union between Scotland and England of 1707 provided that the UK Parliament it established could not take certain actions such as abolishing the Scottish Courts or disestablishing the Presbyterian religion. Whether these provisions provided substantive and enforceable limits on the powers of the UK Parliament was not certain at least in Scotland in the light of a distinctive Scots tradition of popular sovereignty (MacCormick v Lord Advocate SC 396 Court of Session, (1953)).

• Administrative decentralisation: from 1885 there has been a Secretary of State for Scotland, from 1964 a Secretary of State for Wales.

MacCormick v Lord Advocate – MacCormick challenged the Queen’s title. Is Queen Elizabeth’s title the second or just Queen Elizabeth? There was Queen Elizabeth first of England but not of Scotland. So in Scottish law she was just Queen Elizabeth.

The principle of unlimited sovereignty of Parliament is a distinctively an English principle that has no counterpart in Scottish constitutional law. Parliamentary sovereignty is just a rule of the English legal system. The Scottish legal system and the English legal system merged created the UK Parliament. There are different rules that define this new institution. Since Scottish Parliamentary sovereignty did not exist, this could constrain the UK Parliament.

A substantial ‘pre-history’ of devolution

• Northern Ireland 1920-1972

-Supremacy of Westminster shown by the fact that the Northern Ireland Parliament was prorogued without its consent in 1972.

• Gradual rise of demand for separate institutions from 1960s onwards (particular demands of national identity, regionalism in Europe)

• Kilbrandon Commission (1973) on the Constitution.

Rejected federalism on grounds that the difference in size amongst the units (England, Scotland, Wales, Northern Ireland) made it impractical, not least since it risked gridlock (an English Parliament rivalling Westminster).

• Failed attempt in 1978 to provide legislative devolution to Scotland and executive devolution to Wales.

Proposals struggled through Westminster Parliament which imposed a requirement that the measures be approved by...