3. Federalism, Regionalism and Devolution

Question 1

Difference between unitary and decentralised systems

Answer 1

• Unitary system: Only central government has legislative power. e.g. France
• Decentralized system: Sub-national entities also have legislative power

Question 2

Forms of territorial organisation within decentralized system

Answer 2

1. Federalism
2. Regionalism
3. Devolution

=> Vertical separation of powers between central government and sub-national entities - powers are separated differently among gov and sub-state

Question 3

What are the 2 federalising processes?

Answer 3

• Bottom up (more conventional) - have several state entities that decide to group together and create a state, relinquish a certain part of sovereign power and assign a portion of them to the new state which is the federal state. states that relinquish are called Member States. e.g. USA, Germany
• Top down (more recent) - usually shift from absolute to liberal state, implies that the starting point is a unitary state that decides to turn federal. e.g. Belgium

Question 4

Difference between federation and confederation

Answer 4

states within federation cooperate together like confederation but they create a new state. come together and relinquish sovereign power for a federal state

when confederation states group together, no new groups/states are created. e.g. Switzerland

Question 5

Federal systems characteristics (bottom up)

Answer 5

1. Constitution contains a list of subject matters which are of exclusive competence of the central government - distinguishes two types of legisilative competence which are:
   
   • exclusive - consists of a list of specific subject matter which is explicitly expressed in the Constitution
   • residual - belongs to everything that is not explicitly mentioned => not an exclusive competence, automatically residual
   • e.g. if central gov has exclusive => member states have residual => which level is assigned to which state (key question answered by Cons.)
2. The member States have their own judiciary system or separate judiciary (e.g. US has states with death penalty, but not all)
3. The second Chamber of Parliament is a Chamber of sub-national entities -
   
   • if upper house supports the sub-national entities (aka are elected to support that specific state), then it’s a federal state
   • either has equal representation or weighted representation (more population, more weighted, able to elect more senators)
4. Member States take part in the constitutional amendment procedure - parliament to modify Cons., have to look at the extent of which they participate
5. Member States have their own Constitutions ? Only for systems whose federalizing process is a bottom-up process

Question 6

Regional systems characteristics (top down)

Answer 6

1. Constitution contains a list of subject matters which are of exclusive competence of Regions
2. Regions do not have their own judiciary system
3. The second Chamber of Parliament does not represent sub-national entities
4. Regions do not take part in the constitutional amendment procedure

Question 7

What is concurrent legislative competence?

Answer 7

subject matter that neither falls in exclusive nor in residual, both gov are able to legislate in that matter

central level is responsible for providing framework

and regional/member level provide the details

grant a general uniformity

Question 8

Note about integrated judiciary

Answer 8

it can be applied to both federal and regional system, only if it separated that it is clearly federal, otherwise cannot tell

Question 9

The US (e.g. of federal state)

Answer 9

• In the USA, each state has two elected senators which serve in the US Senate.
• amendments to the constitution are proposed by the Congress whenever two-thirds of both houses deem such necessary.
• Congress can also call a convention for proposing constitutional amendments on the application of the legislatures of two-thirds of several states.
• If the bill passes the floor, it needs another three fourths to ratify it, which is why sometimes it takes so long for an amendment to come into practice.

Question 10

Germany (federal)

Answer 10

• In Germany, the Upper House (Bundesrat) is made up of the Land government.
• Here, the governments of each member state appoints the representatives of the house, a government for which the German people vote.
• Each Land can have a minimum of 3 reps and a maximum of 6 based on population of the Land.

Question 11

Italy (regional)

Answer 11

• In Italy, the senate of the republic is elected on a regional basis (but does not represent the regions but the nation as a whole) and they merely correspond to electoral districts.
• While remaining within the boundaries of the Constitution and EU laws, each region has legislative power in all subject matters not expressly covered by State legislation.
• Italy has an integrated judiciary system (a regional element). It is possible, in Italy, to call for a referendum on constitutional amendment law.
• So in Italy, regions play a minor role in constitution amendment process.
• However, Italy remains a regional state.

Question 12

Canada

Answer 12

• In Canada, the Canadian senate consists of four divisions where each divisions receiving an equal number of twenty-four representatives.
• An amendment to the constitution of Canada can be made by proclamation issued by the Governor General and authorized by resolutions of the Senate and House of Commons
• the legislative assemblies of at least two-thirds of provinces which have at least fifty percent of the population of all the provinces.
• Sec 91 sec 92 are two list of exclusive competencies. Sec 92 says the same as sec 91 but about the provinces in Canada.
• The central government (sec 91) and the regions (sec 92) have the same level of legislative authority.

Question 13

Problems of fiscal autonomy

Answer 13

No true federalism without tax-raising powers

Question 14

What is devolution in the UK?

Answer 14

Transfer of central power towards the devolved nations

It’s a delegation of powers:

1. Scotland Act 1998 & 2012 & 2016 (most devolved)
2. Government of Wales Acts 1998 & 2006 (least devolved)
3. Northern Ireland Act 1998

Sovereignty still remains intact in the hands of central parliament (Westminster) => transfer of power, not sovereignty

division of act = flexible, not fixed as Cons.

Question 15

Scotland Act 1998, 2012 and 2016

Answer 15

Residual legislative power is attributed to the Scottish Parliament on the lines of a federal system.

Sec. 29, par. 2:

“A provision is outside that competence so far as any of the following paragraphs apply…”. + list of exclusive competence (of what Scottish cannot exercise) Scottish is given the residual => more devolved

Question 16

Government of Wales Acts 1998 & 2006+ Wales Act 2014 & 2017:

Answer 16

• The welsh assembly, as the most devolved, was awarded administrative functions in 1998 while legislative powers remained with Westminster.
• In 2006, the state was granted some legislative powers in the Scottish style, meaning they now had some legislative authority.
• Later on, unlike Scotland, the state was offered full devolution and referral of exclusive legislative authority.

Question 17

Northern Ireland Act 1998

Answer 17

• Northern Ireland Assembly exercises legislative powers, but on different subject- matters in comparison to Scotland.
• Sec. 6, par. 2: “A provision is outside that competence if any of the following paragraphs apply— ……”.
• As Scotland, is given the residual competence
• Even though NI is given residual and legislative power as Scotland, but elements/subject matter constituting the residual competence are different
• The legislation also might be the residual in one country while being the exclusive in another one.
• To have different residual competence, we must have different exclusive competence => different in each Act

Question 18

Assymetries of UK’s devolution

Answer 18

1. Functional asymmetry
2. Competential asymmetry
3. Structural asymmetry

Question 19

Functional assymetry

Answer 19

Originally Scottish and Northern Ireland Parliaments exerted legislative powers while the Welsh Assembly only exerted administrative or executive powers (but this has now changed).

Question 20

Competential asymmetry

Answer 20

Scottish and Northern Ireland Parliaments exert legislative powers but not on the same subject-matters.

Question 21

Structural asymmetry

Answer 21

Westminster (UK Parliament)

Scottish Parliament

Welsh Assembly

NI Assembly

English Parliament

Question 22

The English question

Answer 22

• The English question addresses the fact that legislation which affects England exclusively can be affected by the votes of every States’ MPs. (Scotland, Wales, NI)
• The answer to this question is introducing English votes for English law - legislation affecting only England would follow a procedure where only English MPs would vote on

However,

• Technical difficulties in identifying pure ‘English’ laws.
• One possible solution is to reduce the number of Scottish, NI and Welsh MPs, thus reflecting the reduced role.
• On the contrary, solution is not easy from political perspectives, controversial

Question 23

Alternative solution

Answer 23

The manner in which purely English legislation is chosen is as follows.

1. The House of Commons conducts a first reading of the legislation which will be followed by a second reading.
2. If the second reading labels the legislation as
   
   • an English and national issue, a Committee Stage reviews it,
   • purely English, then an English MPs Committee Stage does so.
3. Ultimately, a report stage follows where if the legislations was seen as a more expansive national issue, it gets reviewed by the Grand Committee of English MPs who approve its relevant parts.
4. If sections failed to become approved, it goes back to the House of Commons where the process repeats itself.
5. Following the report stage, a third reading ensues, followed by a review of House of Lords. The legislation then moves for Royal Assent, unless the legislation is deemed purely English, in which case a double majority of English MPs and all MPs would be needed prior to Royal Assent.

Question 24

How do you fund devolution?

Answer 24

The Barnett Formula:

• is a mechanism used by the Treasury in the UK to automatically adjust the amounts of public expenditure allocated to Northern Ireland, Scotland and Wales to reflect changes in spending levels allocated to public services in England, England and Wales or Great Britain, as appropriate.
• The formula gives the devolved administrations a proportionate share of spending on ‘comparable’ functions in other parts of the UK, given their populations compared to UK’s.

Question 25

Two main reforms of the Title V of the Constitution of the Italian Regions

Answer 25

1999 Reform

1. the regional form of government
2. in the statutory powers held by the Ordinary Regions

2001 Reform

1. allocation of legislative powers between the State and the Regions

Question 26

Regions of italy

Answer 26

• 5 spatial regions - 2 islands and 3 regions that are situated at the border which contains strong linguistic minorities - following the procedures which is used to approve cons. amendment, have constitutional
• ordinary regions - less autonomous, have statutes approved following a 2 step procedure
  
  1. takes place at a regional level - parliament of the region drafts the statute
  2. takes place at national level - has to be discussed by the national parliament, inconvenience => send back statutes to region
• However by 2001, no need vote from national, possibility for central gov to challenge the statute if according to them, the regional statutes is violating some constitutional elements, if yes has to draft according to procedure. national still sets some limits and boundaries