The United Kingdom is often described as a country of countries, comprising England, Scotland, Wales, and Northern Ireland. This may lead people to assume the status of the constitution, with a ‘country of countries’ likely alluding to some sort of federal state. However, this is not the case, and for me it begs the question: why has the UK developed devolution without a coherent constitutional settlement, and could federalisation be the answer?
Background
The United Kingdom is a unitary state, meaning that power is ultimately held by one supreme authority that can then make decisions for the rest of the country. Prior to the 1880s, this was largely the case. An all-powerful central government operated with a largely laissez-faire attitude towards its citizens, although this was starting to change with the introduction of essential and long-overdue public health acts and compulsory education.
In terms of devolution, medieval towns and cities could have limited self-government through acquiring borough status. Over time, multiple towns became ‘incorporated’, meaning they were governed by corporations. If a town or city was large or significant enough, it could be designated as a ‘county corporate’ or ‘county of itself’, which meant it was administratively detached from the surrounding area.
As local governance became more common, and the laissez-faire attitude employed by the government slowly began to decline, many local bodies and boards were created. These were mainly established for services such as poor relief and public health.
The Municipal Corporations Act 1835 reformed corporations in certain towns and cities and replaced them with elected town councils, effectively expanding democracy at a local level. This was then expanded significantly in 1888, when the Local Government Act established county councils, meaning that more areas had elected local government. Before this, each area had different local bodies, the majority of which were unelected or based on older forms of local administration.
Local governance was then expanded significantly throughout the 20th century, eventually leading to the establishment of devolved parliaments and executives in Scotland, Wales and Northern Ireland, alongside a Mayor and Assembly for London. In Northern Ireland, the old Parliament was abolished in 1972, and direct rule was reinstated by the Secretary of State for Northern Ireland. A new power-sharing executive and Assembly were later established as part of the peace process.
The 21st century has seen more devolution, especially in England. The century started weakly for the devolution cause, with a resounding ‘No’ vote in the North East referendum on establishing a regional assembly in 2004. This effectively ended the Blair administration's plans for wider elected regional assemblies outside London.
The establishment of combined authorities in the 2010s (now called Strategic Authorities), has handed more powers to certain local areas in England. These authorities generally involve an elected mayor working alongside leaders of constituent councils. Their usefulness and actual democratic mandate are still yet to be fully determined, with concerns about weak turnouts in some mayoral elections and the role of councillors on the committees and cabinets of these authorities. These councillors were elected to their local authorities, not directly to the additional roles they carry out within the combined authorities.
Federalisation: What Actually Is It?
Federalisation is a style of constitution for a country where there are multiple layers of government, all of which have constitutionally protected powers. Neither layer can simply remove, amend or overpower the other acting alone. The most well-known example is the United States, which has a federal government, 50 state governments and thousands of local governments. The federal government and the states have powers defined by the constitution, meaning that the federal government cannot simply abolish the states or unilaterally change the constitutional division of powers. Put simply, sovereignty and authority are constitutionally divided rather than one level of government simply granting powers to another.
Despite the UK now having multiple tiers of governance, it is still a unitary state because the UK Parliament at Westminster retains ultimate legal authority over the country. It can still legislate on devolved matters, although it does not normally do so without the consent of the relevant devolved institution. This is fundamentally different from a federal state, where the powers of each level of government are constitutionally protected.
However, the situation is not quite as straightforward as it once was. The Scotland Act 2016 and [Wales Act 2017](https://www.lexisnexis.co.uk/legal/legislation/uk-parliament-acts/wales-act-2017-c4#:~:text=The Act significantly increases the legislative competence of,as energy%2C transport%2C and the running of elections.) recognised the permanence of the devolved institutions within the UK's constitutional arrangements. The Scottish Parliament and Government are not to be abolished except following a decision by the people of Scotland in a referendum. These changes largely followed the 2014 Scottish Independence Referendum, when David Cameron promised further devolution to Scotland if voters rejected independence.
Federalisation could also potentially end the West Lothian Question, a peculiar problem that has occurred because of the UK's asymmetrical approach to devolution. The problem is that MPs from devolved nations can vote on laws affecting England alone in the House of Commons, but English MPs cannot vote on matters that have been devolved to Scotland, Wales and Northern Ireland, as these are largely controlled by their respective devolved parliaments.
There is no problem with Scotland, Wales and Northern Ireland having devolved parliaments. It is one of the biggest achievements of the modern political era for challenging the Westminster bubble, and I personally have strong and unwavering support for devolution. However, it has changed the UK's political and constitutional landscape, moving it away from a system where one legislative authority held ultimate sovereignty, with all MPs having broadly equal voting rights, towards a multi-layered system of governance.
This is much closer to the way many other countries are governed, but it is a system that has arguably been implemented rather badly at home. If the government had planned devolution properly and introduced it as part of a coherent settlement from the beginning, problems such as the West Lothian Question might have been avoided. Issues like this have occurred because successive governments have handled devolution in England differently while gradually handing out powers to the devolved nations.
It is no secret that Wales does not have the same devolution settlement as Scotland, despite both having devolved parliaments of significant constitutional importance. Scotland has powers over areas such as justice, policing, prisons and certain aspects of taxation, alongside different arrangements for borrowing and public finances. Wales has a different settlement, with some responsibilities and financial powers differing between the two nations.
Scotland's settlement is a triumph for devolution, making its Parliament one of the more powerful devolved legislatures in the world. However, it could also be argued that this has contributed to Scotland becoming one of the more centralised devolved countries, with significant powers concentrated at Holyrood rather than being distributed more widely to local government. Surely, though, devolution should provide a clearer and more coherent framework for the distribution of powers across the devolved nations, even if their exact responsibilities are not identical.
The limited nature of Welsh devolution compared with Scotland's was apparent from the start, perhaps because devolution was, and still is, a much more divisive issue in Wales than it is in Scotland.
The Welsh devolution referendum in 1997 was one of the closest votes in UK political history, with the proposal winning by just 0.6 percentage points. An earlier referendum in the 1970s had been heavily defeated. When the National Assembly for Wales was established in 1999, it did not have the same formal separation between the legislature and executive as Scotland. Instead, its initial arrangements were much more limited, with executive functions carried out through the Assembly's structures.
[Wales did not receive a clearer statutory separation between its legislature and executive until 2007](https://commonslibrary.parliament.uk/research-briefings/cbp-8318/?), following the Government of Wales Act 2006. It was not even officially called the Welsh Government until 2011, having previously been known as the Welsh Assembly Government. Initially, it could not pass primary legislation in the same way as the Scottish Parliament, instead having limited powers to make secondary legislation.
The Government of Wales Act 2006 introduced a route to primary law-making powers through Assembly Measures. Following the 2011 referendum, the Assembly gained the ability to pass primary legislation across its devolved areas without needing case-by-case approval from Westminster. The Wales Act 2017 later introduced a reserved-powers model, setting out the areas in which the Senedd could not legislate.
Despite the differences between the devolved governments, the biggest failure of successive governments in handling devolution has arguably been in England. The confusing multiple layers of devolution, combined with the fact that not everywhere has the same arrangements, have created a complete patchwork of governance. The boundaries of some authorities, and the party politics involved in establishing regional arrangements, have not helped in the slightest.
Instead, England now has confusing tiers of devolution which entirely depend on where you happen to live. In some areas, there is a unitary council alongside a combined or strategic authority. Some of these have significant powers, as in Greater Manchester, where the mayor is seen as a leading political figure nationally. Other areas have two layers of councils, such as county and district councils. Some have unitary authorities but no regional combined authority, while London has its own Assembly instead of a combined authority.
The whole system is further confused by the mixture of Police and Crime Commissioners, NHS bodies, regional organisations and statistical regions. Not to mention that ceremonial counties and postal counties can be completely different from administrative areas.
This is further confused by the fact that local government reform is commonly carried out in an ad hoc manner, resulting in confusing boundaries and unfinished projects which do not necessarily provide good value for money for the taxpayer. It is almost accepted now that when new councils and authorities are established, they have a lifespan, as they will eventually be changed when a new government comes in with its own plans for devolution.
Anybody remembers ‘levelling up’ or the ‘Northern Powerhouse’? These were major Conservative plans for devolution and regional economic development, which have since lost much of their prominence and direction, often before their ambitions could be fully realised.
What Would Federalisation Actually Do?
Federalisation would end Westminster's ability to legislate unilaterally in areas that are constitutionally assigned to devolved governments. Although the Scotland Act 2016 and Wales Act 2017 recognise the permanence of the devolved institutions, they do not establish a federal constitution or remove Westminster's ultimate legal authority.
A written or entrenched constitution would allow the UK to finally have some security within its constitutional arrangements, allowing national and regional governments to exercise their powers with the security that they could not simply be removed or altered by central government. A federal Westminster would only be able to legislate on its dedicated constitutional powers, while the devolved nations would have their own protected areas of responsibility. Changes to these powers would require a constitutional amendment process involving the relevant levels of government, rather than just a decision by Westminster.
It would also finally give England a clearer devolutionary settlement, rather than one that has been created and implemented on an ad hoc basis by successive governments and councils. The current patchwork could be replaced by a more coherent system. There are many ways to achieve this, such as an English Parliament or regional governments. This would allow for a much clearer division of responsibilities between each layer of government, empowering local bodies to take more action and allowing voters to understand what each layer does more easily than they can currently.
Although a federal constitution would not automatically produce uniform regional government in England, it would require England's constitutional position to be settled more clearly. This would provide an opportunity to establish a more consistent framework for English governance, rather than allowing arrangements to develop differently from one area to another.
It would also open the conversation about Scotland, Wales and Northern Ireland having more clearly defined devolution settlements within a common constitutional framework. This would help establish the powers of each authority and their legal competence, allowing voters to understand which responsibilities belong to the devolved governments, and which belong to the federal government.
This would reset the relationship between Westminster and the devolved nations, as the UK Government would no longer have the same ultimate legal authority to alter their constitutionally protected powers unilaterally – making the relationship much more equal than previously seen.
It could also help end the West Lothian Question. A clear division between federal and constituent-country responsibilities could help resolve this problem. The establishment of an English legislature, for example, could allow England to decide on matters devolved to it, while MPs at the federal level would only vote on issues within the responsibilities of the federal Parliament. This would help address the imbalance that has developed under the current system.
Conclusion
The days of the UK being a highly centralised state governed almost entirely from Westminster are long over. The reason devolution does not always work effectively is that it has not been given a coherent plan, and in some cases has not been given the powers, resources or security needed to fulfil its ambitions.
There is constant conflict between Westminster, the devolved nations and English mayors. If Westminster was the top body of a federal United Kingdom, it would no longer have the same ultimate authority over the powers or legal competence of the devolved governments. This would empower them to do their work with greater certainty, sufficient resources and the security that their constitutional powers could not simply be removed or changed when a new government comes into power or plans in Whitehall change.
Federalisation would not solve every problem, and there would still be difficult decisions to make about England's constitutional structure, funding, and the distribution of powers. However, it would provide an opportunity to move away from the current piecemeal approach and towards a more coherent constitutional settlement.
If the UK already has multiple layers of governance, then surely it is time to properly recognise and protect those layers within the constitution. Devolution has changed the UK, and it is unlikely that the country will return to the centralised model of the past. The question is whether the constitution should finally catch up with the reality of how the country is governed.
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