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(d) Northern Ireland
(e) Devolution: conclusions
3 Local government
(a) Structure of local government
(b) Functions of local authorities
(c) Central-local government relations


1 The United Kingdom as a union state
The United Kingdom is a union of England, Scotland, Wales and Northern
Ireland in a single state. The Channel Islands and the Isle of Man, which are
internally self-governing dependencies of the Crown, are not part of the United
Kingdom.
It used to be generally thought that the United Kingdom has a unitary
constitution, like those of France, Italy, Japan, the Netherlands, Sweden, New
Zealand and South Africa, and unlike the federal constitutions of Germany
(˜The Federal Republic of Germany™), Switzerland, the United States, Australia,
Brazil, Canada, India, Nigeria and the Russian Federation. However, it may be
that the better view is that the United Kingdom has a union constitution, that is
neither straightforwardly unitary nor systematically federal in character (see
Walker, ˜Beyond the unitary conception of the United Kingdom constitution™
[2000] PL 384). This, perhaps, is particularly true since the advent of the current
devolution arrangements in 1998. That said, however, it should not be thought
181 Devolution and the structure of the UK


that all such di¬erences as exist in the government and public law of England,
Scotland, Wales and Northern Ireland were created by devolution. A number of
di¬erences between English and Welsh law, on the one hand, and Scots law, on
the other, are several centuries old. Others, while more recent in origin,
nonetheless have nothing to do with devolution. Examples include di¬erences
in the law pertaining to the Crown, in judicial review proceedings and in the law
of remedies (see generally A McHarg and T Mullen (eds), Public Law in Scotland
(2006), esp chs by McHarg, Tierney and Tomkins).
In this chapter we outline ¬rst some general issues concerning federalism and
devolution. We then examine the various structures of government and public
law as now exist in each of England, Scotland, Wales and Northern Ireland,
including, where relevant, detailed consideration of devolution arrangements.
In the ¬nal section of the chapter we outline the United Kingdom™s scheme of
local government.


(a) Federalism
KC Wheare, Modern Constitutions (2nd edn 1966), p 19
In a federal Constitution the powers of government are divided between a government for
the whole country and governments for parts of the country in such a way that each gov-
ernment is legally independent within its own sphere. The government for the whole
country has its own area of powers and it exercises them without any control from the
governments of the constituent parts of the country, and these latter in their turn exercise
their powers without being controlled by the central government. In particular the legis-
lature of the whole country has limited powers, and the legislatures of the states or
provinces have limited powers. Neither is subordinate to the other; both are coordinate.
In a unitary Constitution, on the other hand, the legislature of the whole country is the
supreme law-making body in the country. It may permit other legislatures to exist and to
exercise their powers, but it has the right, in law, to overrule them; they are subordinate
to it.

From this it appears that the essential features of a federal constitution are that
the central and regional governments have limited powers and that, within
those limits, each government is independent of the other.
Other de¬nitions of federalism have been proposed. Preston King, Feder-
alism and Federation (1982), pp 140“1, sees the distinguishing feature of
a federation as the entrenched role of the regional units in national decision-
making:

a federation may conveniently be defined as a constitutional system which instances a divi-
sion between central and regional governments and where special or entrenched represen-
tation is accorded to the regions in the decision-making procedures of the central
government.
182 British Government and the Constitution


Sawer identi¬es the ˜basic federal principles™ as follows.

Geoffrey Sawer, Modern Federalism (new edn 1976), p 1

(1) A country which, taken as a whole, is a nation state, an independent unit from the
point of view of international relations and law, is provided with a set of institutions required
for the work of government, having authority over the whole of that country. (We shall call
this set of institutions the CENTRE.)
(2) This country is also divided into a number of geographical areas, each of which is also
equipped with a set of institutions required for the work of government in that area. (We
shall call each such set of institutions a REGION.)
(3) The power to govern is distributed between the centre and the regions in such a way
that each set of governmental institutions has a direct impact on the individual citizens and
other legal persons within its area of competence.
(4) The distribution of competence between centre and regions is effected by a consti-
tution (usually written) having a fair degree of rigidity, so that its basic terms are
˜entrenched™ “ that is, cannot be amended at the sole discretion of the centre or of any region
or combination of regions. This implies the inability of a region to secede, unless the terms
of the constitution specifically authorise such a step.
(5) The constitution provides rules to determine any conflict of authority between centre
and regions, where but for the conflict the activity in question would have been within the
competence of each of the conflicting authorities. Theoretically the rule could favour either
regions or centre, and could vary with the subject of power; in all known cases the general
rule is that the centre law prevails.
(6) The distribution of competence between centre and regions is interpreted and policed
by a judicial authority which can make authoritative determinations as to the validity of
governmental acts (including legislation) where these are alleged to be beyond the compe-
tence of the centre or a region, or where the conflict rules referred to under (5) have to be
applied.



This is not to say that all systems commonly regarded as federal will necessarily
possess all these features, and there are considerable variations in the ways in
which they are worked out in di¬erent federal constitutions.
The regions in a federation will sometimes have been independent countries
which agreed to join together in a federal union; but an existing unitary state
may transform itself into a federation, as Belgium has done, by redistributing
sovereign powers between central and regional governments. However created,
a federal system seems to embody a contractual idea in that the central and the
regional governments each hold their powers upon a condition of respect for
the independence of the other. The terms of the ˜contract™ under which power
is distributed are expressed in a written constitution, and are unalterable by
either the central or the regional legislatures acting unilaterally. To that extent
the constitution is supreme.
183 Devolution and the structure of the UK


The formal analysis of federal and unitary constitutions assumes a regularity
which is not always to be found in the shifting and diverse patterns of modern
governmental systems. Wheare observed that a federal constitution might
include elements that diverged from the federal principle as formally de¬ned;
indeed if it had ˜considerable unitary modi¬cations™ it would be better classi¬ed
as ˜quasi-federal™. (KC Wheare, Federal Government (4th edn 1963), p 19.) More-
over when we consider the actual practice of governments it appears that a
country ˜may have a federal constitution, but in practice it may work that consti-
tution in such a way that its government is not federal™, or again that ˜a country
with a non-federal constitution may work it in such a way that it provides an
example of federal government™ (p 20).
History and our own time show us such a variety of systems for the distrib-
ution of power between central and regional governments, and so many excep-
tions, quali¬cations, understandings and compromises in the working of
constitutions, that there is often disagreement about whether a system of gov-
ernment is federal or unitary. The Constitution of the United States is generally
regarded as the paradigm of federal constitutions, yet even there the limits on
the powers of the federal and state governments are blurred by innumerable
arrangements for shared or cooperative governmental activity, and the central
government, with its vast ¬nancial resources, has gained an ascendancy that
transcends its formal powers. A centralising tendency is, indeed, a feature of
most modern federal systems (see eg, R Nagel, The Implosion of American
Federalism (2001), although in Canada, exceptionally, a contrary tendency has
been apparent for some years). No constitution, remarks SE Finer, ˜is an entirely
realistic description of what actually happens™ (Five Constitutions (1979), p 16),
and in federal constitutions the formal distribution of powers is commonly
quali¬ed by networks of consultation, bargaining and joint planning. This
means that the classi¬cation of a governmental system as federal or unitary (if
we can agree upon it) does not tell us much about how the system actually
works. Equally it is open to doubt whether either a federal or a unitary system,
in the abstract, has the advantage in assuring good, e¬cient or strong govern-
ment. S Rufus Davis disposes in the following passage of judgements like that
of Dicey, who concluded (in The Law of the Constitution (1885), pp 171“2) that
˜federal government means weak government™ and that a federation ˜will always
be at a disadvantage in a contest with unitarian states of equal resources™.


S Rufus Davis, The Federal Principle (1978), pp 211“12

The truth of the matter is “ and experience has been the teacher “ that some ˜federal™ systems
fail, some do not; some are able to resist aggression, some are not; some inhibit economic
growth, some do not; some frustrate some kinds of economic planning, some frustrate other
kinds; some develop a great diversity of public services, some do not; some promote a great
measure of civil liberty, some do not; some are highly adaptive, some are not; some are
184 British Government and the Constitution


highly efficient in servicing the needs of a modern state, some are not; some gratify values
that others do not. Indeed, over a long or short span of time, some are always something
(socially, economically, politically, administratively, constitutionally) which other federal
systems are not. But whatever their condition at any one time (eg, adaptive/maladaptive,
conservative/progressive, efficient/inefficient, etc), it is rarely clear that it is so because of
their federalness, or the particular character of their federal institutions, or the special way
they practise federalism, or in spite of their federalness. And further: when at some moment
federal systems resemble or differ from each other in some respect or other (eg, efficiency
or inefficiency in the delivery of public services, tepidity or zealotry in the pursuit of civil lib-
erties), the reasons, though sometimes traceable to similarities or differences in their con-
stitutional structure, flow more often than not from the things they share in common as
societies or the things that distinguish them as societies.
In a word, we are dealing with things that are only partly the same. And if there is . . .
a common ˜logic™ running through all federal systems, it lacks the force to transcend their
different political cultures and impose a common political direction. This is the massive fact
we have come to learn. To expect to give a common explanation for, say, the failure of the
Weimar Federal Republic and the Central African Federation in any other than trivial gener-
alizations, or to expect that political performance will necessarily differ because states are
federal or unitary, is to exaggerate the limited potentialities of contemporary federal theory
and mistake the limited value of the distinction between federal and unitary systems.


This agnosticism is not shared by everyone. Sawer (above, p 125) remarks that:

by contrast with wholly centralised systems a federal one will tend to place checks on speedy
and resolute action by either regions or centre, to discourage rapid social change, and to leave
to Court action the resolution of policy disputes which elsewhere are settled by political action.


Sawer sees federalism as a ˜prudential™ system best suited to the more stable or
conservative societies.
If there are regionally based ethnic communities in a country, federalism can
give them protection against oppression by majoritarian central government. It
is also claimed that in the dismantling of a single, all-embracing sovereign
power in the state, federal systems foster a more vigorous democratic polity,
providing ˜an encouragement to diversity, greater responsiveness of govern-
ment, and an opportunity for broader citizen participation in public a¬airs™.
(C Saunders in J Hesse and V Wright (eds), Federalizing Europe? (1996), p 47;
see too Stephen Breyer™s interesting account of the working of American feder-
alism, ˜Does federalism make a di¬erence?™ [1999] PL 651, esp 661“2.)
The United Kingdom, at all events, is clearly recognisable as a state in which
a supreme central authority is ¬rmly established on the principle of parliamen-
tary sovereignty. When a Government and Parliament of Northern Ireland were
constituted by the Government of Ireland Act 1920, these institutions were sub-
ordinate to the Parliament of the United Kingdom. In practice the United
185 Devolution and the structure of the UK


Kingdom Parliament refrained from exercising its power to legislate on matters
˜transferred™ to the Parliament of Northern Ireland, and it may therefore have
been correct to describe the system of government in Northern Ireland “ at all
events until the period of crisis which began in 1968 “ as ˜quasi-federal™
(V Bogdanor, Devolution (1979), pp 50“1). The overriding sovereignty of the
Parliament at Westminster was, however, demonstrated when the government
of Northern Ireland was suspended and its Parliament prorogued by the
Northern Ireland (Temporary Provisions) Act 1972. Institutions of local gov-
ernment in the United Kingdom owe their existence and powers to Parliament
and can at any time be reorganised, abridged in their powers, or extinguished
by Parliament.
There has never been serious o¬cial consideration of a restructuring of the
United Kingdom on a federal plan. The Kilbrandon Commission, in a rather
sketchy (and, perhaps, now somewhat dated) survey of federalism (Cmnd
5460/1973, paras 501“23), concluded that ˜in the modern world federal coun-
tries are hampered by an in¬‚exible system of government™. The Commission
rejected federalism as inappropriate for the United Kingdom on a number of
grounds. Among these were: the role which in the Commission™s view would be
assumed, in a federal system, by the courts; and the dominant position of
England, which could not be satisfactorily accommodated in a fully federal
United Kingdom.


Report of the Royal Commission on the Constitution, vol 1,
Cmnd 5460/1973

527. We have noted that a federal system of government would require a written consti-
tution, a special procedure for changing it and a constitutional court to interpret it. None of
these features has been present in our constitutional arrangements before, and we doubt
very much whether they would now find general acceptance . . .
529. In a federal system . . . there is more than one legislature and the powers of each are
strictly defined. There may be provision for federal law to override provincial law where the
two conflict, but this rule is designed for those fields in which the federal and provincial gov-
ernments have joint responsibility. It cannot be used by the federal government to encroach
upon legislative territory specifically assigned under the constitution to the provinces. Disputes
about governmental powers which cannot otherwise be resolved go to a constitutional court.
The effect is therefore to place elected bodies in a position subordinate to the judiciary.
Inevitably there are some constitutional questions which have to be decided more as a matter
of individual judgement than in accordance with the rules laid down in the constitution. . . .
The work of the judges therefore tends to become political, and their known political views
are taken into account when they are appointed. This situation, probably unavoidable in a
federal system, is foreign to our own tradition of unitary government based upon the com-
plete sovereignty of Parliament and upon the complete dissociation of the judiciary from
matters of political policy. . . .
186 British Government and the Constitution


The dominant position of England

531. As far as we are aware no advocate of federalism in the United Kingdom has succeeded
in producing a federal scheme satisfactorily tailored to fit the circumstances of England. A fed-
eration consisting of four units “ England, Scotland, Wales and Northern Ireland “ would be so
unbalanced as to be unworkable. It would be dominated by the overwhelming political impor-
tance and wealth of England. The English Parliament would rival the United Kingdom federal
Parliament; and in the federal Parliament itself the representation of England could hardly be

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( 155 .)



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