Is Britain a Federal State

The question of whether Britain has now become a Federal State has become a subject for debate, primarily since Tony Blair’s government created devolved parliaments and assemblies in Wales, Scotland and Northern Ireland. It has also been further suggested that with the growth of the EU Britain may actually be part of a Federal system itself: a state within a Federal Europe. These theories are however not entirely concrete and more significantly; when one examines the primacy of Parliamentary Sovereignty it is difficult to convincingly argue, at least in theoretical and legal terms, that Britain is a true Federal state or a true part of a Federal Europe. It would however be disingenuous to argue that Britain is not convincingly a “Quasi-Federal” state as Britain does have striking Federal features.

Devolution as a result of the Passing of the Scotland Act, Northern Ireland Act and Government of Wales Act in 1998 has certainly given Scotland, Wales and Northern Ireland significant powers over affairs within their respective jurisdictions which make Britain at least appear Federal. It lead John Barnes to argue “Tony Blair’s Government is destabilising the… constitutional framework of the United Kingdom” and Russel Deacon and Alan Sandry cogitating that “the… ‘British constitution’ has undergone one of its biggest changes in its history” giving an indication of the extent of powers Devolution has removed from Westminster. According to the government website, The Department for Transport has 91.50% of its work devolved to Scotland and the other nations Wales and Northern Ireland have 68.30% and 94.00% respectively. There are also other major areas of devolved policy; The Scottish Parliament may make adjustments to taxation, notably income tax, because of the 2012 Scotland Act, described as “a major extension of the powers of the Scottish Parliament” by the Society of Conservative Lawyers. Further to this the Welsh Assembly since 2011 has direct law making power and has executive power over £18 billion of the £30 billion of public spending in Wales. Very Significantly, all three devolved nations have control of the funding of their National Health services leading to Scotland and Northern Ireland integrating social care with healthcare and Northern Ireland actually has borrowing powers which Finance Minister Simon Hamilton described as “the envy of Scotland and Wales” showing how major a power this is. There are further powers one could easily elaborate on however it is already axiomatic that devolution creates a very Federal like system. It is crucial to examine that each devolved region has clearly powers defined in legislation and that Westminster is unable to normally legislate on devolved powers without consent of the devolved body. This is very much reminiscent of the United States of America, where the States and the Central Government have very clearly defined powers that cannot be encroached upon by either. The extent of devolution and the codified powers within devolution thus make Britain appear Federal.

However, there are some crucial cruxes upon which the devolution argument falls short of being able to persuade that Britain is truly Federal and makes the description “Quasi-Federal” much more applicable. John Barnes succinctly summarises what is the single most significant stating “[Federalism] involves the division of powers… [But a Quasi-Federal system] reserves to the sovereign power the right to strike down what has been granted.” Under the current system, although it would be politically sensitive to do so given the state of Scottish and Welsh Nationalism and the importance of Northern Irish devolution to ending The Troubles, Westminster retains the full right to simply pass an Act which would remove devolved powers. This means that, in the very least at a constitutional level if not a practical level, Britain can never be a fully Federal state unless the primacy of parliamentary sovereignty is removed. Given this is a foundation block of the British constitution, unless there is a revolution of some form, Britain will only ever at most be Quasi-Federal. Therefore one cannot argue Britain, due to devolution, is a federal state.

A less significant but nonetheless major flaw in the devolution argument is the lack of devolution to England, the dilemma known as “The West-Lothian Question” . Professor Michael Kenny has argued that “English nationhood remains unvoiced in mainstream politics”. It is difficult to argue Britain is a Federal state when the most populace state with around 84% of the UK’s population living there has no Federal powers or representative body. Britain as a result is not like a federal state where each constituent state has its own legislative chamber as America does where it is seen as a basic, codified right of each state. Britain is more accurately described as a Westminster Model government system in which certain regions of the country have been granted certain legislative rights from Westminster. As The Federal Trust for Education and Research argued “The powers of [devolved bodies] are defined in a negative sense.” Thus, the devolution argument falls far short of being convincing that Britain is now a fully Federal State.

One may also examine Britain as a “state” from another angle and convincingly suggest that Britain is now a federal state, similar to a US state, within a Federal Europe due to the EU. It is certainly true that the EU has many contingent features of a nation state; The European Parliament website says “Freedom of movement and residence for persons in the EU is the cornerstone of Union citizenship.” Here one can see that the EU has defined borders due to the free movement of people within it, like a state, and even refers to itself as at least a Quasi-Nation as people may have “citizenship”. Further to this EU law overrides national laws passed by national parliaments in areas it has jurisdiction over giving the European executive a pseudo-central governmental role and the EU even goes so far as to have an anthem using Beethoven’s Ode to Joy. Thus, if one interprets this as enough to constitute the EU as a state – the relationship between the UK and the EU seems innately Federal. There are clearly defined powers and jurisdictions and a clearly defined relationship between the UK and the EU outlined in the ratified treaties, the supremacy of EU law gives an impression of a European central government and the UK as a regional local authority and The UK even pays a monetary contribution to the EU. It is facts like these that lead Daniel Kelemen to argue “The EU has the necessary attributes of a federal system”. And Joseph Weiler to state “Europe has charted its own brand of constitutional federalism" . It is therefore possible to view the UK as a federal state within the EU.

There are however some incontrovertible issues that make it impossible to describe The UK’s relationship with the EU anything more than Quasi-Federal; the most significant being that the EU does also not have all the necessary components to make it a state. Thomas Risse and Tanja Börzel argued that “The EU… lacks two significant features of a federation.” In the fact member states are still sovereign and The EU lacks fiscal power to “tax and spend”. We can also argue the EU lacks another fundamental aspect of statehood if we use Max Weber’s realist concept that a state is a “human community… that claims the monopoly of the legitimate use of physical force within a given territory”. As the EU does not have a police force or its own army, it cannot be a state – it is certainly not internationally recognised as one. Therefore at best, the relationship between the EU and the UK is Quasi-Federal. The Fact that parliament can leave the EU is the most significant aspect that undermines calling Britain a Federal State in Europe as, unlike in America where States are constitutionally bound, parliament is not and voluntarily gives powers to Europe through ratifying treaties – it does not have its rights and powers defined by the EU. Thus, the EU’s lack of real statehood and British parliamentary sovereignty means that Britain is not a Federal state within a European state but more a voluntary Quasi-Federal state.

It is therefore evidently clear that Britain cannot accurately be described as a Federal State, whether in the context of internal federalism or being a federal state within the European Union. Devolution is not fully distributed within the UK, the EU does not constitute full statehood and to consider either as federal would be disingenuous on the grounds of parliamentary sovereignty as parliament has the ability to withdraw powers from devolved bodies and withdraw from the EU. This means we can only describe Britain as “Quasi-Federal” as long as parliament chooses for the UK to remain devolved or within the EU.