Level 5 Response – Evaluate the view that Britain is now a Federal State (30 Marks)

Britain has traditionally been a unitary state in which power is located with a central body which must decide whether to delegate or devolve any of its powers. A federal state is one in which powers are split between clearly defined national and regional governments with shared sovereignty, policy divergences are encouraged, and different identities are fostered. Since the Acts of Devolution in 1998 it has been increasingly argued that Britain is now increasingly federal in nature, with Vernon Bogdanor saying Britain now has a ‘quasi-federal’ system. Ultimately, it is clear that Britain is now firmly a ‘quasi-federal’ state as whilst Westminster retains legal sovereignty, political sovereignty lies with devolved institutions and power has been used to make the kind of divergences in policy it would be expected to see in a federal state.

The British constitution operates under the key principle of parliamentary sovereignty. A.V Dicey summed this up as the fact that Parliament can ‘make or unmake any law’. This means that despite the existence of devolution, the British Parliament retains ultimate power over the political process. This fact has come into sharp focus through recent events. Notably, for example, during the absence of the Northern Irish Executive in 2019 the Westminster Parliament controversially legislated to legalise both Abortion and Same-Sex Marriage in Northern Ireland, despite the DUP being firmly opposed to this. Further to this, the British Government recently announced its plans recently to block the Scottish Parliament’s Gender Recognition Act. They plan to do this using the powers given to them under Section 35 of the Scotland Act (1998), powers that have not yet ever been deployed, and are doing so on the basis that the proposed Act will impact equality matters across the whole of the UK. Recently, the UK Supreme Court ruled that the right to hold a second Scottish Independence Referendum fell outside the competency of the Scottish Parliament and must be legislated for by the UK Parliament. These instances clearly show that the British Government retains the ultimate power in the political process and are willing to use this power, even over very controversial devolved matters. Conversely, despite the legal sovereignty of the Westminster Parliament, devolution is now very clearly politically entrenched in the UK and is realistically irreversible. Notably, the Conservative Party who were opposed to devolution in 1998 were in government for the most significant increases in devolution that took place between 2010 and 2017. This is an indication of how strongly devolution has become ingrained in British political culture. The political entrenchment of devolution is shown by the fact that elements of devolution that were traditionally conventions have now been codified. For example, the Sewell Convention that Westminster does not legislate on devolved matters was codified in the Scotland Act (2016) and the Wales Act (2017). In addition, the Scotland Act (2016) also now explicitly states that devolution can only be reversed via an explicit vote of Scots via a referendum. These changes highlight the political respect that Westminster now shows for devolution and that it is an important part of the wider principle of representative democracy. On the issues of the location of sovereignty is undoubtedly clear that whilst Westminster is legally sovereign, in reality, its power is less significant than it might seem. Whilst Westminster has occasionally legislated contrary to the wishes of the devolved regions, this is very much an exception. It is clear that the wishes of devolved institutions are now well respected, making the UK largely, if not completely, quasi-federal.

As part of New Labour’s constitutional reforms in 1998 devolved institutions, were set up across the UK with differing powers after different Acts of Devolution. This has led to the powers of each region being reliant on specific legislation by the Westminster Government, a characterisation of devolution, not Federalism. One the most significant differences was in the relative economic powers of the differing regions. For example, the Scotland Act (1998) allowed the Scottish Parliament to vary income tax rates by 3p in the pound. Conversely, the Government of Wales Act (1998) gave the Senedd no equivalent powers over their income tax. This shows a far more significant range of power across similar issues than would usually be seen in a federal system. In addition, different regions had different starting points as regards their autonomy. For example, Scotland already maintained its own legal system that had been different since the Act of Union (1707), whilst Wales had no policy intervention in that area, and its justice system is still legislated for in Westminster. With an area as important as justice delegated unequally across the UK, it undermines the notion that Britain is a federal state. Finally, a significant differential exists through the West Lothian Question. England does not possess its own Parliament and instead relies on Westminster to legislate for it. However, this allows Welsh, Scottish and Northern Irish MPs to vote on English-Only matters whilst the reverse is not the case. Notably, significant English-Only legislation has passed because of the support of Scottish MPs, such as the introduction of tuition fees in 2004. The fact that a key part of the UK is lacking its own legislative assembly is another indication that Britain cannot be considered a federal state. Conversely, it is important to note that devolution was always meant to be a long-term exercise with the Welsh Secretary saying in 1997 that “devolution is a process and not an event”. As such, devolution has grown through new statutes that have passed more and more devolved power to the regions of the UK. For example, the Scotland Act (2012) gave the Scottish Parliament greater control of income tax through which they introduced new 19% and a top rate of 46%.  Similarly, the Wales Act (2014) devolved more tax to Wales and ensured the option of a referendum to adopt similar income tax powers to Scotland. In the 2019 General Election both major parties committed to improving the constitutional settlements and, most recently, the Brown Commission called for much faster devolution across the whole of the UK. Consequently, whilst devolution is asymmetrical, and always has been, it is consistently moving towards greater symmetry as is usually expected in a federal state. Consequently, whilst the differential in powers indicates that Britain is not a federal state, it is on an increasing journey to become so.

One of the key aims of federalism is to allow for distinct social and political structures to emerge across the state. This is why federalism is usually favoured in geographically large and less homogenous states. In the UK, differing political cultures have been seen in the policy divergences that have taken place. A good example of this can be seen in the fields of education and healthcare. In education, the British Government has legislated for tuition fees in English universities that can reach as high as £9,250, whilst in Scotland, for Scottish students, they are £1,820. This policy choice is a reflection of the more left-leaning governments that have existed in Scotland since 2009. Similarly, there is a divergence on health costs. Prescription charges in England are currently £9.35 whereas in Wales under Labour and in Scotland under the SNP there is no charge for prescriptions. Such significant policy divergences are what would be expected in a federal state and allow the expression of political priorities on a more local level. Similarly, devolution has allowed for the flourishing of distinct national cultures across the UK, whilst maintaining a sense of Britishness. For example, the Welsh Language is growing again and is a core subject in Welsh Schools. Contrastingly, perhaps due to Britain’s smaller and more homogenous nature, policy divergences in the UK have narrowed through time. This has been made more likely by the existence of the notion of legislative laboratories, whereby devolved institutions are able to consider the success of policies in other regions before instituting them. A number of policies have passed in this way, for example smacking was banned in Wales following a study of its successful prohibition in Scotland. Similarly, the Organ Donor Opt Out system was adopted by the UK Government following its success in both Wales and Scotland. This may in fact indicate that the UK is too homogenous to be a true federal state. It may also be argued that national identity has come at the expense of British identity. This has particularly been the case since Brexit where 62% of Scots voted to remain in the UK and in Northern Ireland which has become a pawn with the EU and has not had the same circumstances in Brexit through the existence of the Northern Ireland protocol. Therefore, it may be argued that based on the maintenance of dual-identities, a key facet of federalism, Britain cannot be seen to be a federal state, but is also arguably a troubled unitary one.

Overall, Britain can clearly best be described as a ‘quasi-federal’ state. Whilst power is distributed unevenly, these gaps are diminishing through time and are likely to continue to do so. Whilst Westminster is legally sovereign, it is now very clear that devolution is extremely well politically entrenched and cannot realistically be reversed. One of the biggest question marks over whether Britain is realistically federal is the relative consistency of policy across the UK, however, it is clear that where there are significant policy differences they account for the differing political opinions and identities across the UK. Therefore, whilst the UK is not a federal state, it is clearly ‘quasi federal’ but, tellingly, this might lead to pressure on its existence at all.

Why is this a Level 5 Response?

  • The introduction immediately shows the examiner the candidate understands the topic. It lays out some of the key criteria of a federal state that are used to tackle the question.
  • The introduction finishes with a clear indication of what the argument being made will be.
  • Three body sections are completed each which put forward a clear point and corresponding counter point.
  • Detailed knowledge is deployed throughout the piece, which is often very specific.
  • Analysis is built upon this detailed knowledge, with a consistent focus on answering the question.
  • Clear mini-conclusions are used at the end of the section which consider what the view on the question is as regards the issue that has been discussed.
  • The conclusion is comparative in nature and synthesises the entirety of the arguments made before coming to a clear judgement.
  • Political terminology is deployed throughout the essay.
  • Synoptic links are made to Paper 1 through considering of party policies. (This in only required in Paper 2).

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