The Uk Territorial Constitution Notes

The UK Territorial Constitution

UK= multipolar system with a plurality of parliaments/ assemblies:

• Westminster Parliament

• Edinburgh Parliament

• Cardiff Assembly

• Belfast Assembly.

The territorial constitutional arrangements are still/ constantly evolving. There are many issues i.e.

• Division of powers

• Constitutional

• Fiscal responsibilities

• Multiple identities e.t.c.

The Brexit process is of particular relevance, not least since England and Wales voted ‘leave’ and Northern Ireland and Scotland voted ‘remain’...

CONCEPTUAL FRAMEWORK

Unitary State and Union State

• `The unitary state [is] built up around one unambiguous political centre which enjoys economic dominance and pursues a more or less undeviating policy of administrative standardisation. All areas of the state are treated alike, and all institutions are directly under the control of the centre.’ [strong version]

• ‘The union state [is] not the result of straightforward dynastic union, for example by treaty, marriage or inheritance. Integration is less than perfect. While administrative standardisation prevails over most of the territory, the consequences of personal union entail survival of pre-union rights and institutional infrastructures which preserve some degree of regional autonomy…’

Note the fact of Dicey’s doctrine of Parliamentary Sovereignty as an English (and not Scots) doctrine…

Devolution and Federalism

• Devolution: The transfer of powers at present exercised by ministers and parliament to regional or sub-national bodies which are subordinate… Devolution is thus a process by which parliament transfers its powers without relinquishing its supremacy, at least in legal theory.

• Federalism: as classically defined, a system where the sub-national territorial units of government are within their defined spheres of powers and functions supreme, in the sense that neither the central government nor other sub-national units can override their exercise of legislative and other power. But under the broader rubric of ‘the Federal idea’ of ‘enabling unity while guaranteeing diversity’ there is lots of room for hybrids in terms of ‘self rule’ and ‘shared rule’.

Note the view of the UK as moving in a ‘quasi-federal’ direction….

Forms of devolution

Legislative – powers transferred to the regions/provinces/countries to determine policy on a range of subjects, to enact legislation to give effect to that policy and to provide the administrative machinery for its execution, while reserving to the central (Union) legislature the ultimate power to legislate for the regions on all matters.

• Reserved powers model: governing statute sets out powers retained at the centre and devolves everything else.

• Conferred powers model: governing statute sets out devolved powers (in other words, what is not specified is not devolved).

Executive – Central (Union) legislature and central government … responsible for the framework of legislation and major policy on all matters but … wherever possible, transfer to other directly elected assemblies the responsibility within the framework for devising specific policies for the regions, including through delegated legislation, for the execution of those policies and for general administration.

Administrative (decentralisation) – decision-making in territorial departments (old-style Scottish Office etc) and agencies.

Systems of devolution

• Asymmetrical Devolution: different measures of devolution within the State for different regions/provinces/countries [the original UK model].

• Devolution ‘all round’: whereby all parts of the state are granted substantially similar devolved powers. In a strong version, ‘Home Rule’ all round.

DEEPER CONTESTATION

Competing interpretations of what the United Kingdom actually is:

• a unitary nation-state: based on social and political homogeneity. This in turn draws on modernization theories based on territorial integration and globalisation. This is matched on the constitutional side by the ‘Westminster’ understanding of the UK as a unitary state founded on parliamentary sovereignty.

• a plurinational union: ‘family of nations’ based on contractual membership, territorial differentiation and negotiation and ultimately, based on the recognition of popular sovereignty in each part of the UK, self-determination of its constituent parts. This view is expressed for example by the notably pro-devolution and pro-union Welsh Government.

In this regard, there may be disagreement about the demos, or the existence of a unitary people; telos, or the purpose of union; and ethos, the existence or need for shared a values across the polity.

• Unitary States: All of the constitutional power is allocated to the centre who may then devolve power to the regions. The UK is normally regarded as a unitary state but this is not definite. There is no need for a written constitution, strong judicial review, or a second chamber of national legislature for the regions. The centre could if it wished take the power back from the regions.

The UK is a unitary state but this is more of a spectrum. The UK is moving towards a more federal state. Because in reality it is impossible to see power withdrawn from the devolution settlements.

If the UK became a full federal state there would be a need for a written constitution, the judges to exercise judicial review and a reform of the House of Lords which represent the regions (proposition of Ed Miliband).

Constitutional changes initiated by New Labour

• The Human Rights Act incorporated the European Convention on Human Rights into UK law.

• A Supreme Court was established, with a constitutional remit.

• Devolved legislatures were established for Scotland, Wales and Northern Ireland.

Yet, while the programme may have attracted a broad coalition of support, that did not depend of fundamental agreement on the end point or telos. The approach = an incomplete one, leaving many issues in abeyance.

Could say:

• It was a radical programme of reform, which might have put...

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