(1) Federalism Flashcards
What is federalism?
‘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 government is legally independent in 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 legislature 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.’
Note - resembles devolved systems of government…?
How did Bogdanor distinguish devolution and federalism?
‘Devolution is to be distinguished from federalism, which would divide, not devolve, supreme power between Westminster and various regional or provincial parliaments. In a federal state, the authority of the central or federal government and the provincial governments is co-ordinate and shared, the respective scope of the federal and provincial governments being defined by an enacted constitution as, for example, in the United States or the Federal Republic of Germany. Devolution, by contrast, does not require the introduction of an enacted constitution.’
What prevents the existence of a federalist system in the UK?
The legal sovereignty of the Westminster Parliament – see eg s.28(7) Scotland Act 1998 – therefore prevents the establishment of a strict federal system.
How did Bogdanor suggest the UK system represented a federalist one?
He suggested that the UK system was federalist in all but name and downplayed the distinctions between the federalist and devolved systems - ‘It is in constitutional theory alone that the supremacy of Parliament is preserved. For power devolved, far from being power retained, will be power transferred; and it will not be possible to recover that power except under pathological circumstances … Thus the relationship between Westminster and Edinburgh will be quasi-federal in normal times and unitary only in crisis times’
What is the ‘English’ or ‘West Lothian’ Question?
The lack of general devolved powers to England has resulted in the Westminster Parliament – the Parliament of the United Kingdom – acting as a proxy for an English Parliament. This creates two key difficulties.
What are the two key difficulties with lack of devolved powers to an ‘English’ Parliament?
The two aspects of the problem:
- Scottish MPs help determine the UK Government which governs England; the possibility exists that UK Government could only command a Parliamentary majority in the House of Commons because of Scottish MPs.
- Scottish MPs can vote on legislation which affects only England and Wales whereas English MPs, because of devolution to Scotland, can no longer vote on matters affecting Scotland only.
What acts as something of a solution to the ‘English’ Question?
The English Votes for English Laws proposal saw a change to procedure within the House of Commons made by Standing Order. In essence it involves a veto power for English, or English & Welsh MPs, on Bills, or parts of Bills certified by the Speaker of the Commons as relating only to England or England and Wales, and where comparable areas of policy are devolved elsewhere. In this way it does something to preclude the influence of Scottish MPs on legislation affecting England exclusively.
How far does the English Votes for English Laws change actually resolve the ‘English Question’?
- Is a veto power enough? This is an entirely negative power. What about Bills that English MPs support but are blocked by non-English MPs for example?
- How clear are the rules? How clear are the criteria of “relating” exclusively to England or England and Wales? Is there room for disagreement here?
- Issue of MPs of other parts of the UK becoming “second class MPs” at Westminster on certain issues? Is this a bad thing given the issue it seeks to resolve?
- Concern about the way it was brought into force - not through an Act of Parliament, but by Conservatives changing the Standing Orders with a simple majority, and lack of cross-party support?
