Blog of the International Journal of Constitutional Law

Book Review: Oran Doyle on “The United Kingdom and the Federal Idea” (Robert Schütze and Stephen Tierney eds.)

[Editor’s Note: In this instalment of I•CONnect’s Book Review Series, Oran Doyle reviews The United Kingdom and the Federal Idea (Robert Schütze and Stephen Tierney eds., Hart Publishing 2018).]

–Oran Doyle, Trinity College Dublin; University of Pennsylvania

Laws do not exist as abstract disembodied propositions, akin to the axioms of geometry, but rather hold true in particular places at particular times. In a simple view of the post-colonial world, laws form the legal system of a state and have the same geographic extent as that state. But this picture is complicated by the laws of supranational or international organisations as well as by intra-state territorial differentiation.

Federalism, understood broadly, provides a conceptual framework that explains both how laws can a have different geographic dimension from the state and how different legal systems can apply in the same geographic area. Federal structures allow discrete political communities to be combined and/or recognised within a larger political entity. To prevent the larger political entity collapsing into a welter of competing and contradictory laws, however, some central authority must ensure the unity of the system as a whole. But the assertion of that authority may make the federal arrangements unacceptable to one or more of the discrete political communities.

The United Kingdom and the Federal Idea engages these issues with breadth, depth and rigour, in the exciting crucible of law and politics that is the UK Constitution. Ten thematic chapters, previously presented at a workshop in late 2015, are bookended by a thought-provoking Introduction and Conclusion, penned by Robert Schütze and David Armitage respectively. Although the UK is often characterised as devolutionary rather than federal, the contributors mostly adopt a less exacting account of federalism as, in Armitage’s words, ‘a family of ideas and practices’ (278) rather than specific institutional prescriptions.

Territorial differentiation within the UK is explored historically (Alvin Jackson), externally with reference to Empire and the Commonwealth (Peter Oliver), comparatively with the USA, Canada and South Africa (Adam Tomkins) and with Spain and Italy (Barbara Guastaferro and Lucía Payero). Stephen Tierney concludes Part I with a detailed focus on devolution in the UK in 2017-18. Externally, there is consideration of the UK’s relationship to the EU (both Jo Murkens and Sionaidh Douglas-Scott), the ECtHR (Roger Masterman), the WTO (Lorand Bartels) and the UN (Nigel D White).

Between the workshop and publication, the UK began the process of leaving the EU. Given the impossibility of predicting even weekly twists in the Brexit saga, no book could survive as an account of the UK’s federal condition, still less as a prediction of its future. Nevertheless, the editors and authors have produced a compelling analysis of the territorial issues with which the UK must grapple, both internally and externally, as it leaves the EU.

A recurring theme is parliamentary sovereignty. Murkens suggests that, from the British perspective, European integration could only proceed and succeed if the Westminster model of government remained unchanged and if the British remained convinced of the economic benefits of the single market. But, viewed through the prism of parliamentary sovereignty, post-Maastricht integration destabilised the UK’s membership (154). Many of the authors emphasise how UK governance nowadays approximates less closely to the Westminster model. Murkens refers to the decentralisation of political authority and the Supreme Court’s related jurisdictional competence (168). Douglas-Scott adds EU membership and the weak entrenchment of human rights (175).

Tierney provides the most detailed account of how devolution is changing the UK constitution, describing the UK as on a federal trajectory (101). He pays particular attention to the Scotland Act 2016. This provides that the Scottish Parliament and Scottish Government are ‘a permanent part’ of the UK’s ‘constitutional arrangements’ alongside statutory recognition of the Sewel Convention, whereby Westminster will not normally legislate in a way that affects devolved matters without the consent of the Scottish Parliament. Tierney speculates whether the Scottish Parliament might now be entrenched against repeal by Westminster, although he accepts that this speculation has been unsettled by the UK Supreme Court decision in Miller (No 1), treating the Sewel convention as a political constraint beyond judicial scrutiny.

Tierney’s conclusion about Miller (No 1) is perhaps too mild. The UK Supreme Court’s discovery of legally enforceable principles empowers Westminster not only over the Government, but also over the devolved regions. Principles that might protect the devolution settlement, in contrast, remain at the level of mere political constraints to which political actors pay little or no regard.

This illustrates the challenge of federalism: parliamentary sovereignty preserves the unity of the legal system despite territorial differentiation, but allows Westminster to override the wishes of the devolved nations. The political imperative of Brexit trumped any federal or devolutionary niceties. This perhaps bears out Schütze’s suggestion, quoting Bogdanor, that the UK may be a federation in normal times and a unitary state in crisis times (24). The solution is not necessarily a constitutionally entrenched devolution settlement enforced by the Supreme Court. As Gustaferro and Payero illustrate, the Constitutional Courts in both Spain and Italy are not regarded as flawless arbiters of those countries’ regional settlements (123 and 140).

Ultimately, for federalism to work, the various actors at central and regional level must be prepared to sacrifice at least of some of their interests. Douglas-Scott quotes WS Livingstone that federalism is to be identified in the economic, social, political, and cultural forces that have made the outward form of federation necessary (183). Doubtless Tierney is right to warn of the dangers of decentralisation without direction, and the attendant need to focus on what central institutions are needed to bind the Union together (102).  Tomkins is equally correct to draw attention to how the UK can learn from other federal countries (74). But will economic, social, political, and cultural forces keep the UK on a federal trajectory?

In his account of Canada and Australia’s evolution to legal independence, Oliver demonstrates how the constitutional understandings of a particular time can constrain what is politically feasible (62). The United Kingdom and the Federal Idea increases constitutional possibilities by illustrating the conceptual alternatives to unitary sovereignty at Westminster. But the political forces are more reminiscent of the failure of British and Irish federalism 100 years ago, analysed by Jackson. Federalist ideals were propagated uniformly by learned and elaborate essays and pamphlets, as distinct from mass campaigns (46). Among the reasons for failure was that federalism was a compromise idea for which there was insufficient popular support among both unionists and nationalists (48).

Back to the present, the centripetal and centrifugal effects of Brexit (Douglas-Scott, 192) in my view both undermine the federalist trajectory. The harder the border between Northern Ireland and Ireland, the more likely the voters of Northern Ireland are to support reunification. The more that Westminster asserts authority over Scotland, the greater the encouragement of nationalist sentiment. Even if the UK’s trajectory is towards dissolution rather than federalism, however, it must grapple with the issues so perceptively analysed in this excellent book.

Suggested citation: Oran Doyle, Review of “The United Kingdom and the Federal Idea”, Int’l J. Const. L. Blog, Nov. 22, 2019, at:“the-united-kingdom-and-the-federal-idea”-(robert-schutze-and-stephen-tierney-eds-)


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