Devolution In The Uk Essay Dissertations

What Have Been the Major Effects of Devolution on Politics in the UK?  What Challenges Does It Pose for the State?

The United Kingdom has a unitary Constitution and is a multi-national state. Its institutions and powers have traditionally been highly centralized in the Westminster Parliament. Yet, the Labour Party, supported by the Liberal Democrats, introduced in 1997 and enacted in 1998 a fundamental change into this political model: devolution, i.e., the transference of powers from a central government to national governments. Devolution was intended to democratize the UK, to improve the territorial management and to unite its nations. Moreover, devolution should release a safety valve upon a pent-up nationalistic fervour. Yet the Conservatives remained resolutely against any threat to the UK integrity, seeing devolution as the thin end of a wedge which would ultimately fracture the Union altogether.

This essay examines the major effects of devolution on British politics and the challenges it poses for the State.

First, the essay explains that devolution created various government systems within the Union with varying degrees of power. Second, it describes the unequal electoral systems and the challenge of the UK becoming a multi-party system. This essay also analyses the unequal political and influence power, describing the imbalance in the constitutional system and the unequal distribution of the public budget. All these issues could have a ‘domino effect’ and end up in the creation of an English Parliament. Finally, this essay examines the main challenge: will devolution lead to the break up of the UK or to its consolidation?

Devolution targeted increased opportunities for democratic choice and popular participation in the government of local areas. Institutions, well informed about local needs, conditions and demands, were expected to guarantee a more responsive and rational decision-making system. This democratisation has been achieved, according to some experts: “What devolution did was to democratise this ‘state of unions’, transferring different sets of territorial competences formerly exercised from within central government to separate devolved governments established by new electoral processes” (Jeffery, C. 2008: 140). Yet others think that the transference of power has led to a disunited democracy: “The setting-up of the Scottish Parliament and the Welsh Assembly mark the start of a new song. They seem to imply that the United Kingdom is becoming a union of nations, each with its own identity and institution, rather than (…) ‘one nation representing different kinds of people’” (Bogdanor, V. 1999: 287).

Complexity of the devolved political system has to be added to the costs of setting up transferred governments and providing them with a budget. In fact, devolution was asymmetric, introducing various layers of government systems within the Union and with heterogeneous degrees of power. While the Welsh Assembly was given a series of enumerated dominions and the power to scrutinize secondary legislation, the Scottish Parliament and the Northern Ireland Assembly were given primary legislative powers in matters not reserved to Westminster. Moreover, electoral systems in devolved governments mark a major innovation. In fact, the electoral system in Scotland and Wales – Additional Member System – achieve a closer correlation between the allocation of seats for parties in the Parliament and Assembly and their shares of the popular vote.

On the contrary, in the First Past the Post system (FPTP) used in Westminster, some parties (e.g. Liberal Democrats) are in clear disadvantage and, moreover, minority voices are almost not heard. Therefore, the Additional Member System advocates more equality among all parties threatening the FPTP: “It has enforced a more consensual governing style very different from the partisan, adversarial system that we saw embedded in the Westminster system” (Moran, M. 2005: 224).

This diversity of electoral systems could lead Great Britain to swap over from a two party system to a multiparty system. This shift, together with the newly decentralized aspect of the Westminster model, could lead to the Majoritarian democracy becoming a more consensus one.

“Devolution introduced imbalances into the constitutional system”, claimed Mr. Tam Dalyell, nowadays MP for Linlithgow. These imbalances led to still unresolved tensions and clashes between the devolved Parliaments and Westminster. A clear example is the ‘West Lothian Question’ which raises the following question: “Should Scottish MPs at Westminster be permitted to debate policy for England, while English MPs are excluded from the Scottish Parliament? Again, should Scotland maintain its existing over-representation at Westminster?”(Kingdom, J. 1999: 146). Even though 60% of English respondents to a 2003 survey were concerned about the ‘West Lothian Question’, the problem is still unresolved. “The West Lothian Question draws attention to a constitutional and political imbalance arising from asymmetrical devolution in an otherwise unitary state” (Bogdanor, V. 1999: 228).

In addition, there is an unequal distribution of public budget. The ‘Barnett Formula’ is often raised in association with the ‘West Lothian Question’ as ‘The English Question’. The ‘Barnett Formula’ is a mechanism used by the Treasury to adjust the amounts of public expenditure allocated to Scotland, Wales and Northern Ireland. According to that formula, taxation and charges made in only one nation affect the other nations. As an example, tuition fees paid by English people are shared with Scottish universities, despite students in the latter universities not having to contribute any extra fees. English people criticise the ‘Barnett Formula’ because they argue that some regions benefit more than others. “Spending in policy areas that have been devolved to Scotland has been on average 31% per person higher in Scotland than in England” says the Campaign for an English Parliament (CEP 2011).

Another effect of devolution is that Scotland and Wales are over-represented in the House of Commons in comparison with England, which remains the ‘gaping hole’. Scotland and Wales have control over local government spending on devolved services and they have the right to establish their own expenditure priorities. Moreover, at least Scotland enjoys more public spending than those English regions whose GDP per head is lower. “The constitutional imbalance accentuated by devolution could lead to a serious economic imbalance favourable to Scotland and Wales, but unfavourable to the less privileged English regions” (Bogdanor, V 1999: 266).  In addition, devolved governments have a better opportunity to defend their interests in the European Union.

Thus, English people are concerned about the constitutional differences. 75% of English respondents to a 2003 surveys were concerned that the Scottish Parliament did not raise enough of its own taxes (Devolution Survey 2003). Lacking representation in the Cabinet and lacking assemblies of their own, it is hard for England to influence the UK Parliament.

“Any devolution settlement has to be acceptable not just to the Scots and the Welsh but also to the English, who return 529 of the 659 Members of Parliament to Westminster and who constitute 85 per cent of the population of the United Kingdom” (Bogdanor, V. 1999:264). The above described lopsidedness could lead to a ‘domino effect’ in which the English look for fair play and equality of rights. For example, “in February 1998, the Conservative leader, William Hague, called for changes to be made in the government of England, following devolution to Scotland and Wales. He put forward as suggestions an English Grand Committee or an English parliament” (Bogdanor, V. 1999: 267). Mr. Tam Dalyell also concluded that,“some legislative entity is going to have to emerge in England to fill the vacuum left by Scottish home rule” (Turpin and Tomkins, 2007: 243).Nowadays many people, including those in Scotland, think that England should have its own parliament, as a BBC poll of 2007 found: “Newsnight found 61% in England, 51% in Scotland and 48% in Wales agreed with the idea”.

Source: BBC Article of 16 January 2007

Yet, some powerful politicians refuse this idea. Mr Cameron claimed in 2006: “The union between England, Scotland and Wales is good for us all and we are stronger together than we are apart. The last thing we need is yet another parliament with separate elections and more politicians spending more money” (Hennessy and Kite, 2006).

The main important challenge, however, is whether devolution will lead to the break up of the UK or to its consolidation. According to statistics from 2006, 59% of the English and 52% of the Scottish think that Scotland should become an independent country, and 48% of English people and 45% of Scottish believe that England should become independent of Scotland, Wales and Northern Ireland (ibid).

Nationalist sentiments are spreading out, especially in Scotland, leading the UK to an unstable situation. The bad economic conditions are worsening even more the current circumstances. According to the austerity plan the UK presented in 2011: “between 2010-2011 and 2014-2015, the Scots will lose 6.8% of their grant, the Northern Irish 6.9% and the Welsh 7.5%” (Economist 2010). Alex Salmond, Scotland’s nationalist first minister, argues that, “now the pocket from Westminster is stingier, Scotland has even more reason to aim for independence and full control of its economy” (Ibid).

In the general elections of October 1974, the Scottish Nationalist Party used the British economic crisis to win 30% of the vote and 11 of Scotland’s 71 Westminster seats. Now under the same circumstances, the consequences for the British union could be even worse.  A referendum on independence is going to take place in Scotland. The Scottish National Party wants the referendum to take place in the autumn of 2014, while the unionists want it ‘sooner rather than later’. Scottish nationalists are struggling in order to have an additional question in the referendum: whether Scotland should at least become Devo-Max, i.e. receive all powers except those of foreign and military affairs.

In summary, devolution represents the most important change that the Westminster model has ever experienced. Even though the principal objective was to consolidate the UK, devolution has affected its politics in many different ways and it challenges the UK’s integrity.  John Major and Tom Nairn stated that devolution would lead to constitutional chaos and the disintegration of the UK. Others, such as ex-Prime Minister Tony Blair, predicted that devolution would be “the salvation of the UK” (Economist 2010). The central government in London will struggle in order to keep Great Britain united. Yet, the referendum on independence in Scotland may be the first step to the break up of the UK. The future remains uncertain.


Bogdanor, V. (2001). Devolution in the UK. Oxford: Oxford University Press

Budge, I., Crewe, I., McKay D., Newton K. (2004) The New British Politics. Harlow: Pearson Education Limited

Bulmer, S., Burch, M., Carter, C., Hogwood, P., Scott, A. (2002) British devolution and European policy-making. New York: Palgrave MacMillan

Campaign for an English Parliament (Accessed March 2011) ‘Barnett Formula’,“constitutional-case/the-barnett-formula/

Chisholm, M. (2000) Structural reform of British local government. Manchester: Manchester University Press

Dearlove, J., Saunders P. (2000) Introduction to British Politics. Cambridge: Blackwell Publishers Ltd

Devolution and Constitutional Change Program Final Report (2006) Devolution, Public Attitudes and National Identity, accessed March 2011 at

Dunleavy, P., Gamble, A., Heffernan, R., Holliday I., Peele G. (2002) Developments in British Politics 6. New York: Palgrave MacMillan

Dunleavy, P., Heffernan, R., Cowley P., Hay, C. (2006) Developments in British Politics 8. New York: Palgrave MacMillan

Economist (2010) ‘The ties that bound: will the government’s spending cuts fray the union?’ 28 October 2010, available at:

Gamble, A. (2003) Between Europe and America: the Future of British Politics. New York: Palgrave Macmillan

Hennessey, P. and Kite, M. (2006) ‘Britain wants UK break up, poll shows’ Telegraph 26 November 2006, available at

Kingdom, J. (1999) Government and Politics in Britain, an Introduction. Cambridge: Blackwell Publishers Ltd

Moran. M. (2005) Politics and Governance in the UK. New York: Palgrave Macmillan

Turpin, C. (1999) British Government and the Constitution. London: Butterworths, a Division of Reed Elsevier (UK) Ltd

Written by: Alvaro Florez Diez
Written at: University of Sussex
Written for: Dr. Paul Webb
Date written: March 2012


This essay employs Scottish devolution as a prism through which to examine two public policies used to manage national diversity: “accommodation” and “integration.” While an accommodationist discourse can certainly capture many of the substantive constitutional outcomes sought by substate national societies, it may not provide the symbolic recognition that will articulate fully a “plurinational” concept of the state. Following from this, the essay focuses on the tension at the heart of the Scotland Act 1998. In terms of its autonomy provisions and the recognition these imply, the act may be seen as a genuine attempt to redefine the United Kingdom's constitution in a plurinational direction. However, in other ways, the structure of the settlement embodies strong integrative tendencies that sustain the categorical distinction between host state national society, on the one hand, and substate national societies, on the other. Finally, it is observed that the expanding powers of the European Union may restrict efforts to reorient the state in a plurinational direction, since many devolved powers of substate nations and regions are subject to the normative supremacy of parallel levels of EU competence.


[I]t is hard to see any form of successful accommodation of multiple nations within a single state that does not include federalism. …1

This article has two points of focus. First, it addresses the devolution settlement for Scotland as a case study in the constitutional implementation of a “plurinational” model of the state. Second, and more broadly, it reflects upon the ever more sophisticated conceptual challenges to particular constitutional orders, and to constitutionalism in general, that are being mounted by substate national societies. Each subject will be examined in the context of the two prevailing public policies used by states to manage national and other forms of diversity. These policies—accommodation and integration—are distinguished by John McGarry and others in the following way. On the one hand, integrationists aim to ensure the equality of individuals, accepting diversity in the private realm but opposing public recognition of substate group identities; on the other, accommodationists promote “dual and multiple public identities,” implying “equality with full respect for differences” as the best means of managing deep diversity.2

Next, in section 1, the idea of accommodation is specifically scrutinized. It is argued that, while an accommodationist discourse can capture many, if not all, of the constitutional outcomes sought by substate national societies, it seems inadequate for the articulation of a second demand, namely, a conceptual reworking of the very idea of the plurinational state. When accommodation is formulated in terms of “states managing minorities,”3 it implies a categorical distinction between state national societies and substate national societies, and it is this very distinction that is challenged by the more radical manifestations of contemporary substate nationalism.

Following from this theoretical analysis, section 2 of the essay will focus on the tension at the heart of the devolution arrangements for Scotland. In terms of the wide areas of devolved competence it contains and the tenor of recognition that this level of autonomy implies, the Scotland Act4 can be viewed as a genuine attempt to redefine the United Kingdom's constitution in a plurinational direction. In other ways, however, the settlement embodies strong centralizing or integrative tendencies that sustain the categorical distinction between the host state or dominant national society, on the one hand, and the substate national societies, on the other. These assimilationist integrative tendencies (a distinction will be made in section 2 between assimilationist integration and partnership integration) manifest themselves not as self-conscious attempts to undermine cultural differences but, rather, as a network of semiformal and informal patterns of central control in relations with the devolved institutions. This reflects an enduring unitary-state mentality at work, here, apparent in mechanisms that tend to induce conformity by the devolved institutions with central policy initiatives. This inconsistency between the ostensibly plurinational realignment of the state, represented by the autonomy and recognition elements of the settlement, on the one hand, and the assimilationist integrative tendencies, stemming from the informal centralizing of intergovernmental relations, on the other, is a consequence, at least in part, of political design by the U.K. government and Parliament when framing the Scotland Bill,5 and in part the result of the constitutional context, whereby devolution was created in an ad hoc manner rather than as one aspect of a more coherent and systematic process of constitutional reform.

With this ambivalence at its core, the new system was made to fit—in many ways incongruously—within an otherwise highly centralized constitutional structure. Of those elements that tend toward integration in an assimilationist sense, section 2 will spotlight mainly the system of informal and quasi-formal intergovernmental relations at the executive level. Observed in passing will be the related lack of structure in interparliamentary relations that results in various tensions, such as overlapping representation (the West Lothian question) and concerns regarding the presence of ministers representing Scottish constituencies who take seats in the central cabinet. Finally, section 2 will also identify other tensions, for example, those possibly latent in the newly planned Supreme Court for the United Kingdom, which some feel has the potential to assimilate the distinctive characteristics of the Scottish legal system into the larger English system.

Throughout the essay one other circumstance will be kept in mind that also helps establish the context for any process toward enhanced autonomy, representation, and recognition for substate national societies within the U.K.—namely, the procrustean bed created by an integrating Europe and its regulatory structures. The expanding powers of the European Union, of course, limit the political capacity and legal competence of member states to act autonomously. However, these EU powers also have the knock-on effect of restricting efforts to reorient the state in a plurinational way, given that many of the devolved powers of substate nations and regions inevitably fall within—and are subject to the normative supremacy of—parallel levels of EU competence.

1. Plurinational constitutionalism: The conceptual challenge

[E]thnocultural minorities do not go quietly any more; assimilationist nation-building projects tend not merely to be ineffective—they also usually backfire by reinforcing and “nationalizing” minority cultural identities.6

The challenge presented by substate nationalism is both unique and profound: unique, in that it calls into question implicit assumptions concerning the demotic composition of the modern state; profound, in terms of the implications it conveys not only for the structure of existing constitutional orders but also for the very conceptual underpinnings of classical accounts of constitutionalism. In light of this, political philosophers in the last decade have led the way—in advance of constitutional theorists—in demonstrating that the traditional schema used to frame debates regarding multiculturalism must be modified when addressing what is distinctive about substate nationalist constitutional claims. In modifying the interpretive schema, as it bears upon nationalist claims, we must consider in a new light the historiographical resources, normative justifications, and substantive aspirations that are specific to these claims in order to see clearly how the multinationalism debate differs in character from traditional multicultural debates.7 The very structure of the traditional debate concerning the democratic state was based on what we might call a unitary demos thesis—in other words, an assumption that the state embodies a single nation that provides an exclusive societal context for all of its citizens. Within the state, there may be considerable cultural and ethnic diversity, but these minorities comprise a second-order group, categorically different from that of the national society of the state. One of the advances made by contemporary political philosophers is to have demonstrated how this thesis is rendered deeply problematic by the existence of more than one societal demos within the same polity.8 It is only very recently that constitutional theorists have begun to work through in detail some of the implications of these theoretical developments for constitutional praxis.9 From this early work it is apparent that a number of the traditional conceptual devices used by constitutional theorists and practitioners need to be reformulated in light of the radical challenges plurinationalism poses to the very essence of a state's constitutional identity.

Let us begin with the distinction between what may be called, respectively, the plurinational challenge and the multicultural challenge.10 Treatment of the issue will necessarily be brief. It is certainly the case that these two challenges have features in common, but our purpose, here, is simply to identify one important difference. Debates over multiculturalism in a liberal democracy tend to take place in a context of broad acceptance, even among the cultural minorities themselves, of the unitary demos thesis. People are mostly agreed that there is one national society within the state that establishes a dominant set of cultural practices. The issue at stake, therefore, is how minority groups—which, though culturally diverse are, nonetheless, part of the demotic whole—should have their differences accommodated (that is to say, protected, fostered, and/or promoted) by the state in accordance with principles of justice, while bearing in mind the state's need to cultivate societal cohesion for the national demos as a whole. In other words, the essential issue is the tension of reconciling the politics of difference with the politics of nation building and national consolidation. Deep disputes attend the search for such a balance; nevertheless, there is at least consensus on the existence of a single national society within which these contestations take place.11

Substate nationalist arguments for constitutional justice, however, are not about accommodating cultural differences, on the one hand, or facilitating nation building, on the other. Instead they challenge the very conception of the state as a unitary national site within which only one process of nation building can take place. “Accommodation,” when framed as “states managing minorities,” cannot capture such a constitutional challenge, given the categorical distinction the idea of accommodation implies between the entity doing the accommodating or managing (the state) and the entity being accommodated or managed (the minority). Precisely because it embodies the national society of the state, so the dominant society regards itself as entitled—by the implicit assumption of standard liberal democratic accounts—to make decisions about how far to go in accommodating a cultural minority. It must do this while retaining the right, and indeed the duty, to maintain its own nation-building agenda in the name of societal stability.12 But it is just this categorical distinction and this assumption of privilege that is questioned by substate nationalists. They contest the idea that the “state” can be neutral with regard to nationality.13 Instead, the state is shown to be the institutional vehicle for promoting the nation-building agenda of a dominant national society.

The radical claims of substate nationalists are aimed at a conceptual reorientation of the nature of the state. Only by dismissing the possibility of neutrality within existing arrangements can a new conception of the plurinational state be built, based on mutual recognition that the different nations of the state form a partnership of equals. The powerful normative claims to be found in the narratives of substate national societies are rooted, therefore, not in the politics of difference but, rather, in what we might call the politics of similarity. Hence the processes of nation building and consolidation that remain ongoing within substate nations parallel to the equivalent processes at the state level. It will be useful to explore, therefore, how notions of union and equality characterize the self-perception of substate national societies and their conception of relations with other national societies in the host state—in particular the dominant national society of the state. It is in light of these ideas of union and equality that substate national societies call for partnership with the dominant society rather than accommodation by it.14

In presenting a narrative of alternative or multiple nation-building projects within a single state, national societies usually offer alternative historiographies as well; typically, these might concern the origin and nature of the state and its constitution and differ radically from the dominant historical narrative embodied in the orthodox constitutionalism of the state.15 This historically-based critique demands a radical reconfiguration of how the state and its vision of sovereignty is imagined.16 Only through a review of the constitutional historiographies of substate nationalist movements—itself an underdeveloped area of study17—can we appreciate how different are the constitutional claims made by these alternate histories when compared with the demands, framed within the discourse of accommodation, that seek a top-down grant of legal rights to facilitate cultural diversity. Indeed, the nationalist constitutional agenda is not driven primarily (or even, in some cases, significantly) by the notion of cultural differences among national societies. The key feature of any claim for the constitutional recognition of national pluralism is the demand to have extensive control of the decision-making processes within the substate national territory and significant influence within the central organs of the state. This degree of control and influence should be understood in terms of autonomy and representation respectively. It seeks the embodiment of these features not only in the constitution's structure but also in the extent to which the constitution recognizes, symbolically, the state's dual or multiple national composition. Indeed, this multiplicity, or plurinationality, must be seen as a feature of the constitution's very identity.18

The narratives of union and equality show that arguments for plurinational recognition are arguments for recognition of the similar nature of all national societies within the state and of their equal importance as sites of identity and loyalty for their members. We will now turn, briefly, to each of these narratives—union and equality—as they arise in substate nationalist discourse, with an eye to the evolution of Anglo-Scottish relations within the U.K.

The notion that the substate territory entered the state either as a fully formed or, at least, as an incipient national society is often central to the constitutional claims presented by substate nationalists. Such is true, for example, of debates in Canada, Spain, and the U.K., where the vision of a state shaped by the union of more than one nation remains strong, albeit in different ways, in the national stories of Quebec, Canada's numerous Aboriginal peoples, the Basque Country, Catalonia, and Scotland.19 This version of the state's evolution has been reinforced in various ways; first, by memories of the cultural and institutional distinctiveness that these territories enjoyed at the time of their inclusion within the state. A second factor contributing to this vision of the state's origin lies in the affirmation of the central role played by these territories in the process of state formation; the centrality of these substate national societies to this process, as they understand it, is supplemented, in certain cases, by the conviction that the state's nature as a union of nations was either implicitly or explicitly recognized at these important constitutional moments. And, as a final factor, the state's ongoing evolution is also conditioned by the substate nation's retention of societal distinctiveness in the aftermath of union.

Together, these factors have created a tendency among substate national societies to envision the larger polities to which they belong as, in some sense, “union states.”20 This is a very strong narrative in Scotland, where the idea of union, as articulated in the Acts of Union 1707, is central to constitutional understandings of the historical origins of the state.21 By this account, the 1707 acts were a kind of protoconstitution in written form, guaranteeing the survival of the distinctive institutions of Scottish public life and, in particular, of a separate legal system. This view of matters has led to an alternative understanding of the nature of the U.K. as a Rechtstaat, an outlook that competes with the dominant constitutional story, even on the question of fundamental law.22 Some important constitutional actors in Scotland continue to accord a higher constitutional status to the Acts of Union than to the legislative competence of the U.K. Parliament, which is otherwise seen as the U.K.’s receptacle of legal sovereignty.23

Related to the narrative of union, in the constitutional rhetoric of substate nationalism, is that of equality. “Parity of esteem” was an expression often used in the search for dialogue during the negotiations that led to the Belfast Agreement in Northern Ireland, and, in general, it sums up the constitutional aspirations of many substate nationalist actors in plurinational states. Visions of union and equality were combined in the extraparliamentary campaign in the 1980s and early ’90s for constitutional change in Scotland; the effect was to reinvigorate the legalistic “1707” challenge24 to orthodox notions of sovereignty with the modern dynamics of political self-determination. This campaign involved a broad range of political and civic actors and resulted in a declaration that the Scots retained an inherent right to self-government.25 Such an assumption cannot help but question, implicitly, the idea of a unitary constitutional order purportedly founded on a single source of national constituent power. However, rather than an outright rejection of the union constitution, this process can be seen, in fact, as a reaffirmation of that constitution—the constitution of a union state. This campaign aired the grievance that the union pact, stemming from 1707, had been undermined by subsequent U.K. constitutional practice, in particular, by the constitutional centralization in the 1980s; this process, it was argued, went against the foundation of mutual national respect that was believed to have been embodied in the original union.26

These examples highlight the potentially radical nature of the plurinational constitutional challenge. Questions are emerging that bear directly on the normative authority of established patterns of legal supremacy. Such questions create the conditions for a type of Kompetenz-Kompetenz dispute that we typically associate with sovereignty struggles between EU member states and the new legal order that they have created.27 As the constitutional agenda of substate nationalism develops in a number of liberal democracies today, we find that these debates concerning the relationship between union and sovereignty also exist within plurinational states. These developments present radical challenges to the internal manifestations of state sovereignty that are similar in conceptual form to the external challenges with which states are more familiar.28 As substate national societies grow more confident in their developing constitutional competences and in the theoretical underpinnings that are maturing parallel to these changes, it seems we are merely at the beginning of a process that will demand further rethinking of established constitutional orthodoxies. This process is similar to that which normative liberal theory has gone through. With this broader conceptual challenge as context, we now turn to the devolution settlement set out in the Scotland Act, highlighting those elements that go some way toward meeting the plurinational challenge and those that remain wedded to a unitary state mentality.

2. Devolution for Scotland: Plurinational realignment without federalism?

When Labour set about changing Britain's constitution in 1997, it did so with the cavalier abandon of a party giddy with popular support. The result was jerry-built. The structures will not weather a constitutional crisis.29

In 1998, there was a very strong sense that the devolution settlement in the Scotland Act was a genuine—albeit speedily mounted and somewhat ad hoc—attempt by the U.K. government and Parliament to meet the aspirations of a substate national society for meaningful self-government. Although this article's focus is only upon Scotland, it should be noted that both the parallel, and more modest, constitutional settlement for Wales,30 as well as the highly imaginative and constitutionally radical agreement for Northern Ireland contained in the Belfast Agreement,31 also bear testimony to the decentralizing spirit of the time.

The degree to which a state has dispersed power may be gauged—with reference to a standard institutional grid—along a continuum ranging from strong to weak realignment, with federalism at one end and administrative decentralization at the other. It seems, however, that such traditional, institutionally focused approaches to multilevel government provide only a partial insight into the degree to which a plurinational state's constitution and, as significantly, its constitutional culture are, in fact, aligned to reflect its nature. The realm of institutional models, therefore, is another area that becomes problematic as a result of the plurinational challenge. For example, there is an old distinction between multinational models geared toward aligning the constitution with a plurinational vision and other territorial models that make no distinction between discrete national subunits and other territorial regions that are part of the host state national demos.32 It is only recently, however, that theorists have begun to engage seriously with the implications of this distinction for constitutional design.33 One possible approach to this distinction would be to analyze the constituent parts of each model to see where they fall on the scale ranging from federalism to administrative decentralization. This could be done for various vectors, each of which would represent a way of aligning the constitution in a plurinational direction. We will address three of these vectors in the Scottish context. Two—concerning autonomy and representation—are familiar to traditional types of analysis, while a third, which is more symbolic and concerns recognition, tends to be overlooked in more institutionalist approaches. This exercise will help us not only to assess the extent to which a particular model of constitutional realignment is genuinely plurinational—rather than simply heavily decentralized—but also to examine how a particular set of constitutional arrangements may be strongly plurinational, in certain ways, but weakly so in others.

Such an approach is especially appropriate when seeking to understand the curious model that is Scottish devolution (and devolution in the U.K. more generally). It is widely believed that only federalism offers adequate means to achieve a truly multinational constitution. As a general point, this argument, advanced by Simeon and Conway in the epigraph to this article, must be correct; however, it is also the case that other models, such as U.K. devolution or quasi federalism in Spain, while lacking some of the institutional protections federalism provides, nonetheless may provide for a strong plurinational realignment in other ways. Certain elements of the Scottish devolution settlement, such as its very extensive catalogue of devolved powers, its asymmetrical nature, and the explicit and implicit symbolic recognition that this carries, do have a distinctively plurinational flavor. Seen from another perspective, however, the U.K. remains more akin to an institutionally unitary polity that envisages itself as uninational in composition. And, from this angle, it displays integrationist tendencies that are oriented more toward assimilation than partnership. We will now explore this tension as it plays out in the institutional design of Scottish devolution.

2.1. Plurinational elements in the devolution settlement: Autonomy and recognition

The autonomy provisions of the Scotland Act embody a “retaining” model of devolved power, whereby those matters that are reserved to the exclusive competence of Westminster are explicitly articulated within the act, with all other matters devolved.34 The range of devolved matters is extensive;35 since there are few explicitly articulated concurrent or shared powers, the Scottish Parliament has, in effect, exclusive competence in these areas, including the power to repeal existing U.K. legislation.36 Although the act confirms the ongoing power of the U.K. Parliament to legislate in devolved areas,37 there is now a constitutional convention to the effect that the U.K. Parliament will not do so without the consent of the Scottish Parliament.38

At the same time, the limitations imposed on the Scottish Parliament are tightly drawn, with strong procedural blocks in the act preventing the passage of ultra vires legislation.39 Also, in substantive terms, the Scottish Parliament lacks certain notable powers, the most striking of which are tax-varying powers; the only exception to central fiscal control is the power of the Scottish Parliament to vary the basic rate of income tax by 3 pence in the pound.40 This feature combines with other factors—in particular, central control over intergovernmental relations (discussed below in section 2.2)—to create what we might call soft limitations on the devolved competence. As a consequence, the seemingly strong devolved powers should not be taken at face value since, as a matter of practical reality, the Scottish executive often has little room to maneuver when setting its own policy priorities. Finally, when assessing this devolved autonomy, the policy-setting agenda of the EU is an additional and important consideration. The legislative competence of the Scottish Parliament is constrained by a legal hierarchy within Europe whereby any domestic power that is also an area of EU jurisdiction is subordinate to inconsistent treaty provisions or legislation emanating from Brussels.41 In practice, this proves to be a particularly restrictive influence, given that many matters devolved to the Scottish Parliament are also matters of European competence.42

Turning to the issue of symbolic and related forms of recognition, it may appear that the very language of devolution, in contrast to that of federalism, inherently belies any sense of plurinational recognition. The term “devolution” suggests a top-down grant of power from the center,43 and, in this respect, federalism, with its clear implication of divided sovereignty, is a much stronger medium through which to articulate, even at the symbolic level, a plurinational approach.44 In general, this is correct but, again, we should be wary of an overreliance on the traditional rhetoric of decentralization and the concomitant assumption that we can map this taxonomical construction neatly onto models of plurinational realignment. Devolution for Scotland contains elements that, in contrast to the implicitly vertical structure, seem to embody some level of acknowledgment of the state's plurinational nature. These elements are manifested in two ways. The first is implicit in the substantial asymmetry of U.K. devolution, which we see in three respects. First, only territories that can be characterized as substate national societies have achieved devolution (although the status of Northern Ireland as a substate national society, rather than as a territory containing two substate national societies, is, of course, heavily contested). Second, one substate national society—England—does not have devolved government at all. Third, each of the three models of devolution for Scotland, Wales, and Northern Ireland differ considerably inter se,45 which reflects the differing historical trajectories of each territory made various by how they entered the state, the nature and resilience of national sentiment in each, and their differing aspirations for a reshaped union in 1998.

The second element— implicitly acknowledging the state's plurinationality—is recognition through the more unequivocal symbolism of multiple nationhoods. This type of recognition is, of course, embodied in the very name United Kingdom, in the design of its flag, and in the common usage of the term “nation” to describe Scotland, Wales, and England. However, it is also to be found in the tenor of the devolution settlement for Scotland. For example, in the white paper that set out the U.K. government's plan for devolution, former Prime Minister Tony Blair declared: “Scotland is a proud and historic nation in the United Kingdom.”46 There are other ways in which the devolution settlement supplements the symbolic recognition of Scottish nationhood, most prominently, in the usage of “Parliament” to name the devolved legislative assembly. The use of this term—hinting at symbolic if not legal parity with Westminster—can be seen as an acknowledgment of Scotland's historical status as an independent country with its own Parliament until 1707. The emblematic significance of this nomenclature is reflected in the asymmetrical language used in framing the U.K.’s other devolved institutions; in contrast, Wales and Northern Ireland have “assemblies,” setting a different tone for their relationships with Westminster.

The symbolic recognition of nationhood has been less forthcoming in other plurinational states, even where models of autonomy are federal or quasi federal.47 To take Canada as an example, attempts to enshrine references to Quebec's distinctiveness in the Constitution have met with failure.48 However, matters may be changing. Despite strong opposition to the idea of explicitly recognizing Quebec's nationhood, the House of Commons has passed a resolution recognizing that Quebec forms a nation “within a united Canada.”49 Like another decade-old declaration that recognized Quebec as a “distinct society,”50 this resolution does not have entrenched constitutional status, but it is still highly significant. Second, even though Quebec has used the considerable autonomy that belongs to the provinces to carve out different powers from those used by other provinces and, despite some specific references to Quebec in the Constitution, there has also been considerable resistance to any constitutional grant of asymmetrical powers and to the watering down of the constitutional principle of equality among the provinces.51

In Spain, by contrast, the Constitution countenances the development of asymmetrical powers. Both the Basque Country and Catalonia have used this to develop distinctive areas of competence, and, in Catalonia's case, the recently amended Statute of Autonomy extends these.52 In terms of symbolism, the preamble to the Constitution recognizes Spain's cultural plurality and the right to self-government by the nationalities and regions of which it is composed. However, this is hedged with several qualifications.53 The new Catalan Statute of Autonomy uses the word “nation” for the first time, but, in doing so, distinguishes Catalan perceptions of itself as a nation from those of the Spanish Constitution, which still conceives of Catalonia as a “nationality” only.54

The issue of recognition highlights the limitations of an analysis that uses the classical line running from federalism to devolution as a conclusive guide to the degree of plurinational alignment to be found in a particular constitution. With this model we would understand Quebec, which enjoys the prerogatives that come with a heavily decentralized federal constitution, to have the greatest degree of constitutional recognition, followed by Catalonia, and then Scotland. As we have seen, however, the issue is not so clear-cut. Recognition can also be more important than the mere symbolic act it is often assumed to be. Although, by itself, recognition is not equivalent to substantive constitutional powers, it can be important in terms of the self-confidence of citizens within a substate national society and central to their sense of inclusion within a genuinely plurinational host state.55 More significantly, perhaps, it can also have implications at the level of constitutional interpretation. Thus, the difficulty in determining what effect a “distinct society” clause might have when interpreted by an activist Supreme Court made many Canadians wary of its inclusion in the Meech Lake and Charlottetown draft accords.56

Finally, the issue of recognition also reminds us of a related problem with adopting an approach to plurinational alignment that is exclusively focused on institutions. Such a perspective may cause us to overlook the pathways of political practice and constitutional convention that exist at the interstices of legal forms and that facilitate informal or semiformal modes of decentralization, representation, and recognition. This blind spot in constitutional analysis is not exclusive to the plurinational context, but it is the case that the informal, symbolic ways in which a constitutional culture can consolidate the plurinational tenor of the state may easily come in under the radar of excessively formal analyses of decentralization.

2.2. Integrationism within the devolution settlement: Intrastate relations

Any notion that Scottish devolution represents a plurinational realignment of the U.K. constitution requires some substantial qualifications. As already noted, Scotland's powers of autonomy are offset by subtle integrationist tendencies in the operation of reserved powers, particularly in the context of taxation. However, in addition to these constraints, there are far more obvious centralizing dynamics at work within the settlement, partly as a result of self-conscious policy decisions by the U.K. Parliament, and partly because devolution occurred in an inchoate way rather than as part of a broader reworking of the constitutional structure of the British state.

The devolution model for Scotland is very lopsided when compared with a federal system. Although containing a great deal of detail concerning the balance between devolved and reserved matters,57 the Scotland Act is much less explicit with regard to representation at the center—what in federal systems is known as intrastate federalism. There are very few provisions touching upon how intergovernmental and interparliamentary relations should be managed under the devolved arrangements and how these pertain to the creation, structure, and modus operandi of institutions when coordinating policy for the U.K. as a whole. A formal system of intergovernmentalism is widely seen as a crucial component in any credible decentralized model; not only does such a system protect the subunit's degree of involvement in central decision making but it also helps prevent or, at least, resolve conflicts between different levels of government. All this being the case, substate national societies typically seek certain modes of integration—in other words, formal pathways to representation at the center where they can meet with the dominant national society as partners in a joint multinational enterprise. Sujit Choudhry correctly observes how in a decentralized state not all forms of integration are assimilationist;58 we need, therefore, to distinguish between what might be called “partnership integration” and “assimilationist integration.” The former is to be found in a plurinational federal or confederal model that provides for the equal engagement of the state's national societies; the latter is characterized by the subjection of substate national societies to decisions by the center in the making of which the substate units have only minimally or inadequately participated.

In many ways the latter model characterizes the intergovernmental aspects of the devolution settlement for Scotland, and it seems that this is largely the result of the informal or quasi-formal structures that have accompanied devolution. An important body for relations between Scotland and London is the Joint Ministerial Committee (JMC); this establishes a format for cooperation between the ministers in Whitehall and their counterparts in Edinburgh and the other devolved administrations.59 Generally, it operates through meetings between officials or in direct relationships between one London department and its devolved equivalent. Its remit is to deal with reserved matters, insofar as they might affect devolved territories, and devolved matters, where they have an impact on the rest of the U.K. Flowing from this arrangement is a series of memoranda of understanding and supplementary agreements known as “concordats.”60 Such a semiformal model is integrative in an assimilationist sense for various reasons. One is the gatekeeper control exercised by the center—a center that, by virtue of the Westminster system, has long had an extremely powerful executive. Since there is no legal requirement to conduct relations with the Scottish executive in any particular way (or indeed at all), the U.K. government can establish the terms for discussions, table the agenda it wants, and offer greater or lesser degrees of cooperation to the devolved administration or to individual departments within it, all based upon political preference.61 In this way the devolved institutions—in order to gain a role in these discussions—can be persuaded to display greater political compliance.

More importantly, just as there is no legal requirement to enter into negotiations, so there is no obligation on the part of the U.K. government to reach agreement with the devolved institutions on any issue of policy, even where it affects the devolved territory. Intergovernmental cooperation can be, and often is, simply a process of passing on information concerning decisions already taken by the center. Furthermore, such quasi-formal mechanisms as have been established through the JMC have not been utilized systematically, with some departments at U.K. level operating in a significantly more structured way with their Scottish counterparts than others.62 Another difficulty is that the culture of secrecy that continues to pervade British government, despite freedom of information legislation,63 has rendered the operation of intergovernmental relations quite opaque.64

Several factors have helped matters run smoothly thus far. From 1999 until 2007, the Labour Party was in power in both London and Edinburgh (where it was in coalition with the Liberal Democrats) and, since so much within the existing arrangements depends on political agreement, this was a felicitous coincidence.65 A second factor in the easy adaptation of administrative processes—and indeed in the lack of transparency that continues to attend them—is the continuation of a unified British civil service from the predevolution system. A strong culture of integrated government survives among civil servants who operate within one employment and promotion system; this is widely regarded as an integrationist factor of considerable practical importance in the operation of devolution.66

These centripetal tendencies are underpinned by the taxation system, mentioned above. It was anticipated that the territorial financial arrangements would be a source of conflict in the U.K., as they have been in other decentralized states. But central control over taxation has meant that, in fact, this has not been an issue, certainly not in the sense of provoking competence disputes. Actually, central fiscal power complements control over intergovernmental relations and over the civil service, and this creates a strong gravitational system that tends to draw Scotland's devolved administration into compliance with the central government's policy objectives.67

It should also be noted that there are powerful political as well as institutional pressures encouraging convergence. This is not due simply to the role of the Labour Party in both administrations until May 2007. There are also expectations among citizens and political elites alike that common standards, particularly with respect to public services, will be maintained across the U.K.68 Thus, there are areas where well-networked policy communities throughout the U.K. look for and expect to find uniformity—higher education is a particular example.69 This is not uncommon in any decentralized state, plurinational or otherwise, and it speaks to the bonds that unite people. This is yet another instance of how not every integrationist activity is unpopular within substate national societies, given the strong pull among the citizens toward policy integration across a range of areas—when based upon partnership, not assimilation. What seems problematic, however, is the lack of formal mechanisms whereby the nations of the U.K. can debate their different, or indeed their shared, priorities in a systematic and transparent way. The excessively centralized, informal, and secretive devices currently available may well breed dissatisfaction with the process of these deliberations, even when substantive agreement itself is attainable.

One area where convergence with central policy has been a condition of access to decision-making forums is in the U.K.’s policy negotiation with the European Union. Although EU business is reserved to U.K. level, the devolved authorities, inevitably, have demanded a major role in the process by which the U.K. forms its European policy; this is the case simply because so many areas of EU competence are also devolved areas of competence, such as agriculture, structural funds, and the environment. However, with regard to the Scotland Act, where international relations remain a reserved matter,70 a common front on policy must be accepted by Edinburgh if it wants access to Europe through London.71 So far things have been managed amicably; the fairly radical contribution presented by the U.K. government in the debate on regions and Europe, at the European convention on the draft Treaty establishing a Constitution for Europe,72 was largely authored by the Scottish and Welsh governments. However, for devolved institutions, when trying to develop a substate presence in the EU, a possibly more restrictive circumstance is that the EU remains, fundamentally, a state-centered enterprise with little scope open to the regions of Europe to access directly, much less to influence, European decision making.73

As for interparliamentary relations between the Scottish Parliament and Westminster there are two notable issues that highlight the potentially unsatisfactory nature of devolution. These concern, first, the coherent division of competences between legislatures and, second, the protection of the prerogatives of a devolved legislature from central encroachment.

The first issue illustrates, clearly, the distinction between a system of legislative devolution and a federal model. The Scotland Act brought with it little change in Scottish representation at Westminster. Scotland, for historical and political reasons, had enjoyed more seats in the House of Commons for most of the twentieth century than a simple per capita distribution across the U.K. would have provided. The Scotland Act set out to correct this anomaly74—the reasoning being that with increased autonomy there was no longer any justification for such overrepresentation. A reduction from 72 to 59 members of Parliament (MPs) was effected in time for the 2005 general election.75

Nonetheless, an argument persists that Scottish MPs exert too great an influence within the House of Commons. The contention is that since certain matters, which are devolved to the competence of the Scottish Parliament, are dealt with as they pertain to England—and, in certain cases, other parts of the U.K.—by Westminster, it is unfair that MPs who are returned to the House of Commons from Scotland can vote on matters that affect other parts of the United Kingdom but not Scotland.76 This has been called the West Lothian77 question, and it has become particularly controversial in situations where the U.K. government has relied upon Scots MPs to pass legislation that does not affect Scotland but would have failed without their support.78 This is, in reality, an unintended consequence arising from the ad hoc nature of devolution, whereby Scotland achieved autonomy without any similar process for England. The side effect of this somewhat messy arrangement is that it damages the traditional territorial linkage between representatives and voters within a parliamentary democracy. Voters in England might feel justifiably aggrieved that their preferences are not being met. This situation does not promote a partnership-integrationist strategy since it also suggests to Scots that the U.K. Parliament is now, increasingly, an English Parliament and that their interests might be better served by gaining more powers for the Scottish Parliament. This state of affairs also increases the likelihood that English voters, resentful of the way in which their priorities are subject to the voting patterns of Scottish MPs, will favor a reduced role for Scotland at Westminster.79

Another tension resulting from the West Lothian issue concerns the U.K. executive. It is argued by some that just as it is unfair for MPs from Scotland to vote on English or Welsh matters, for the same reason it is inappropriate for ministers who represent constituencies in Scotland to serve in the U.K. government.80 According to this argument, ministers should not be formulating policy for England (and, in some cases, Wales) when they are not elected from within these territories and when ministers from England and Wales are restricted as to the policies they can form for Scotland. Once again, however, this debate detracts from any partnership-integrationist strategy. If a convention had emerged that MPs representing Scottish constituencies could not become UK government ministers, then Gordon Brown would have been unable to succeed Tony Blair as prime minister, despite enjoying the support of the overwhelming majority of Labour MPs. Such a convention would suggest to Scottish nationalists and others that the UK government had become in practice an English government but one that retained competence for many important UK-wide matters.

The West Lothian issue, therefore, highlights how Westminster continues to act with the air of a unitary parliament, vastly different from those federal legislatures that are, in effect, negotiating forums for different territorial interests. Nor is there any sign of a significant change in a plurinational direction. The general lack of territoriality is particularly apparent when we consider the House of Lords, which, unlike the second chamber in a number of federal systems, does not function as a “chamber of the regions,” reviewing the work of the lower house from a territorial perspective. Certainly, there is an ongoing process of reform of the second chamber but so far this has not led to—nor are there any plans that it should lead to—the conversion of the Lords into a territorial chamber with equal representation or even weighted representation for the three devolved territories.81

The second issue, which, according to critics, hints at assimilationist integrationism, has been the centralized coordination of the legislative activity of Westminster and the Scottish Parliament. As mentioned earlier, a convention has developed whereby the U.K. Parliament will not legislate on devolved matters without the consent of the Scottish Parliament. Therefore, the Scottish Parliament has instituted the practice of passing resolutions authorizing the Westminster Parliament to legislate on its behalf. These “Sewel resolutions”82 have been used extensively, largely to ensure U.K.-wide uniformity, to give legislative effect to EU law and other international obligations, and, more controversially, to create time for the Scottish Parliament to pursue other matters. There remains considerable disagreement as to whether this procedure is simply an efficient device in the management of interparliamentary relations, or an instance of Westminster encroaching upon the Scottish Parliament's autonomy.83

From interparliamentary relations we turn, now, to the judicial branch. It is notable that, as yet, competence disputes before the courts between the U.K. government and the Scottish Parliament have not surfaced. However, the potential for such disputes is very real and, should they arise, will play out in the context of multiple legal systems within the U.K. As a consequence, different judicial attitudes regarding the boundaries of devolved competence could develop between jurisdictions. In this context, it is particularly noteworthy that the proposed creation of a Supreme Court for the United Kingdom has been criticized, given the potential of such an institution to promote assimilationist integration, thus compromising the independent and distinctive jurisdiction of the Scottish legal system.

At present, the Scottish legal system interacts with two tribunals in London. The Judicial Committee of the Privy Council (JCPC) settles devolution issues arising under the Scotland Act,84 while the Appellate Committee of the House of Lords hears civil appeals from the Court of Session in Edinburgh (the House of Lords has no jurisdiction to hear appeals in criminal matters from Scotland). The new Supreme Court will assume both of these devolution and civil appellate functions.85 Currently, when the Appellate Committee convenes, it has the jurisdiction of the territory from which the appeal comes; for example, in an appeal from Scotland, the Committee convenes as a Scottish court. Considerable concern was expressed within the Scottish legal profession and judiciary regarding the extremely speedy way in which proposals for the new Supreme Court were drawn up and, in particular, over the lack of clear thinking about whether such a court, which would convene with one unified jurisdiction, would suit a state with a plurality of legal systems, common law and civilian.86

In addition to its proposed jurisdiction, there is concern over the question of the Court's composition, and, specifically, whether there are appropriate guarantees that a sufficient number of Scots judges will be appointed to hear both appeals from Scotland and devolution issues under the Scotland Act. Others have questioned the degree to which the Court will be independent. On the latter point, there are worries that, since it will be overseen by the U.K. Department for Constitutional Affairs, which is also responsible for the English court system, it may be seen as part of that system. It is thought this might endanger the independence of the Scottish legal system as guaranteed by the Acts of Union. In this broad context, prominent Scottish constitutional actors have declared that the establishment of this Court may be both unconstitutional and unlawful, despite its creation through an act of the U.K. Parliament. The Faculty of Advocates, the body representing the senior branch of the Scottish legal profession, argued that “a Supreme Court which is created must be consistent with the Claim of Right 1689 and the Act of Union 1707. These instruments are fundamental parts of the constitution of the United Kingdom of Great Britain and Northern Ireland, and … any proposal for a Supreme Court which contravened any provision of these instruments would be unlawful.”87

To some extent, these fears have been allayed by the Constitutional Reform Act in its finally enacted form.88 However, there remain concerns that the unified court structure could be used as a centralizing device, particularly in the area of human rights law. Despite the fact that human rights is a devolved matter (subject only to the requirement that the devolved institutions not act in a manner contrary to the European Convention on Human Rights),89 there are already signs, well in advance of the creation of the Supreme Court, that a number of Law Lords assume the interpretation and application of human rights law in both England and Scotland should be identical. Additionally, there is a tendency toward taking the English position as the norm.90 It seems, therefore, that the existing system provides stronger safeguards against assimilationist integration than the proposed Supreme Court.

As matters stand now, there is a clear separation between the Appellate Committee as a final court of appeal, which, historically, has not always been sufficiently sensitive to the jurisdictional specifics of Scots law, and the JCPC, which has an explicitly demarcated role involving devolution. This distinction means that constitutional questions arising in the form of devolution issues are dealt with in a context distinct from substantive appeals. One danger in the proposed judicial structure is that the new Supreme Court might be tempted to move beyond the determination of a devolution issue, in a particular case, and address the substance of the case as if it were also an appeal. The Court could also be influenced by what it considers the implications of a devolution issue might be as they pertain to the substantive law in other areas of the U.K.; thus, it might approach certain devolution issues predisposed to achieve uniformity across the U.K. Such an approach, in fact, is hinted at by the Att Gen's Ref. (No.2 of 2001).91 An alternative to the new Supreme Court would have been to retain the JCPC for devolution issues (or to create a constitutional court for this purpose), while terminating all civil and criminal appeals in the Court of Session in Scotland and Courts of Appeal of England and Northern Ireland. Notably, the Scottish Parliament has the competence to withdraw civil appeals from the jurisdiction of the Supreme Court at any point in the future.92 If the Supreme Court does indeed show assimilationist tendencies, the reaction of the Faculty of Advocates to date suggests the Scottish legal profession may well lobby for such a development.

3. Concluding remarks

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