The manager of Labour’s Scottish branch office has cut a rather forlorn figure recently as she attempts to hoist the flag of federalism as an alternative to independence despite the obvious hostility of her party’s leader at Westminster. In fairness to her, she’s not the only one attracted by the possibility of a federal structure for the UK; and I’ve long wondered whether many independentistas wouldn’t be prepared to settle for a truly federal UK as well. Gordon Brown has been using the word since at least 2014, although it seems that his party is taking about as much notice of him as it does of Kezia Dugdale.
There is a serious problem with federalism, though, which I wonder if they’ve really thought through. And the recent Supreme Court decision on triggering Brexit hasn’t helped. A truly federal state depends on a clear separation of powers between the federal authorities and the individual member states, and stems from a recognition that the states are voluntary and equal members of the union. Without a change to the UK’s unwritten constitution, it seems to me that this is simply unachievable; and the change required is so significant, that I can’t see the UK Parliament ever accepting it.
The whole constitutional settlement in the UK is based on the convenient fiction that god invested power in the monarch who in turn graciously shared it with parliament. The usual phrase for the source of power and sovereignty in the UK is the quaint term “the Crown in Parliament”. All laws stem from this source of authority, not from the people. In historical terms, it’s nonsense, of course; the truth is that parliament gradually stripped the monarch of powers over the centuries. But the fiction is maintained and sustained by a whole lot of meaningless pomp and ceremony, and it has one important consequence, which is that what parliament decides, parliament can subsequently undecide. And that right is absolute.
It’s the underlying problem at the heart of the devolution settlement – power devolved is power retained, and in terms of UK law, all the powers held by the Scottish, Welsh and Northern Ireland parliaments are held only to the extent that, and for as long as, the real source of power permits it to be so. That mindset came through loud and clear during the Supreme Court hearing on triggering Brexit, and it seems to be at the forefront of the Prime Minister’s mind as she approaches the repatriation of powers following Brexit.
Above all, it marks a key difference between devolution and federalism. Devolution is, and always has been, about lending some powers to the new parliaments, but it isn’t about giving them those powers. Even when that split is enshrined in law, it is a law made under the same terms and the UK Parliament has the same right to repeal or revise it. Devolution can work on this basis, after a fashion, provided that there is a modicum of good will all round. Federalism can’t; the powers of the member states belong to those member states and to them alone, and can only be surrendered on a voluntary basis.So, whilst a federal approach for the UK is not without its attractions, it requires, in effect, a change to the UK Constitution to accept that the monarch and the UK Parliament are not the fount of all sovereignty, and that the constituent parts have their own sovereignty, as of right, which cannot be removed by Westminster. To be blunt, I see no chance of the Conservative Party ever accepting that, and very little chance that the Labour Party will do so either. In practice, the individual parts of the UK would need to become independent first, and then agree to a new union based on a different principle. The first part of that sounds like a good idea to me; but I’m really not sure why the second would then look attractive…