Federalism, Brexit and the Union

Kezia Dugdale has reopened a discussion as to whether federalism might be the way forward for the UK but, suggests Gareth Evans, in doing so she has left a lot of old questions still needing answers. 
Kezia Dugdale’s call for a reshaping of the UK into a federal state comes at a time of increased constitutional uncertainty. Catalysed by the accelerated forecast of the UK’s departure from the EU, a deal is now predicted to come as early as October 2018. In the wake of what is increasingly becoming a messy divorce, the competences exercised by the EU are being informally reorganised amongst the various constitutional ideas presented for a post-Brexit United Kingdom.  
Dugdale’s proposals aim to provide for a strong and united post-Brexit UK in which Scotland, as one of a number of new ‘states’ within a federal UK, would take control of former EU matters such as agriculture and fisheries. Resultantly, Westminster in its new role as federal parliament would be left to deal with external issues such as foreign affairs, overseas aid and defence, as well as overseeing core fiscal policies. 
Within what is an ever-increasing order of proposals for and against some form of a federation for the UK, and without wanting to saturate an already weighted catalogue of literature on the issue, I put forward three brief criticisms of a federal UK, summarised as follows: -
First, any federal structure would require constitutional certainty, almost certainly enshrined through some form of codified constitution. This holds the capacity to severely impede upon the historic doctrine of parliamentary supremacy. Consequently, the British constitutional order would be turned on its head, undoubtedly leading to yet more instability and economic uncertainty, adding to what are already uninviting forecasts for a post-Brexit UK.    
Second, a federal system would more than likely require a move away from the current model of ad hoc constitutional change seen in the UK. This has the potential to reverse the success of devolution in providing a system of flexibility which, in Scotland and Wales, has resulted in the peaceful operation of nationalist politics. Moreover, in Northern Ireland, the open-ended nature of devolution has been essential in ensuring the effectiveness of the Peace Process, which acknowledges the ability of the region to leave the UK if it so desires. By result, a federal system, if based more on regimented power than ad hoc reform, carries with it the smoking gun of confining nationalism within an essentially unionist orientated federation.
Third, a federal United Kingdom would presumably require a move towards a more symmetrical division of power between its territorial parts, thus, presenting a system in which the varied trajectories of the presently devolved nations could disappear. In its place, the balance of power between the Celtic fringe and the proposed new English regions would still hold the capacity to divide as oppose to unify the UK. In terms of the dispersal of economic power, any new system would likely still be very much weighted in favour of the South of England. Furthermore, any proposals for a system of English regions must first learn from the lessons of devolution, namely the capacity that regionally dispersed power has to reimagine senses of identity. This is not to suggest that the dormant regionalised identities of Anglo-Saxon England would suddenly be re-awoken, but rather that a system of English regions has the capacity to exacerbate the existing north-south divide, creating a system of constitutionally enshrined division.
In conclusion, Dugdale’s proposals, whilst still very much in their infancy - yet not moving far from already discussed federal options - call for constitutional certainty in which the balance of power between Westminster and the constituent nations of the UK is clearly defined. This would, it is predicted, confer upon the regions the autonomy they desire, whilst providing the structure for a strong, outward looking UK. However, such calls fail to acknowledge the success of flexibility as one of the defining characteristics of devolution, or of the British constitution in general.
Foresight presents the view that far from providing for a strong or United Kingdom, a federal system has the potential to lead towards constitutionally enshrined chaos, allowing for less flexibility in appeasing nationalist demands which, in the current Brexit climate, would only result in adding fuel to the fires of economic, constitutional and political uncertainty. 
Instead, it would be better to look beyond the binary tradition of a unitary or federal classicisation, formulating new responses to the unique challenges facing the constitution. Despite the open-ended nature of devolution, its inherent flexibility in an age of increased populism provides for a more welcoming prospect of constitutional flexibility than is assumed by the required formalities of a federation. 
Finally, any formulation of the future of the United Kingdom requires thought beyond the straitjacket of the Anglo-Scottish Union, instead, requiring greater emphasis to be placed on the roles of Wales and Northern Ireland, which are frequently left by the wayside in the political discourse of Westminster and Edinburgh. In order to move towards a United Kingdom after Brexit, there must first be a balanced playing field which realises the unique politics of each of the constituent nations that make up the UK, an understanding of which will generally dissuade from any ideas of a federation.
Gareth Evans is a third year PhD Candidate in Law at Aberystwyth University. His research is in the area of British constitutional history, with a focus on the relationship between nationalism and the constitution.

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