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Decentralisation, Federalism and Aunion-State Durham E-Theses Divided We Stand: Decentralisation, Federalism and a Union-State KILFORD, NICHOLAS,REX How to cite: KILFORD, NICHOLAS,REX (2019) Divided We Stand: Decentralisation, Federalism and a Union-State, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/13436/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 DIVIDED WE STAND? DECENTRALISATION, FEDERALISM AND A UNION-STATE Nicholas Kilford Abstract This thesis undertakes an analysis of the UK’s territorial constitution, specifically the ways devolution decentralises constitutional authority within the state. It analyses the UK’s territorial history, especially its rejection of federalism, a concept which it suggests has been sorely excluded from its constitutional conscience in preference for incremental, piecemeal development. It suggests that devolution, which itself has changed much in its short life, constitutes a fundamental shift for the UK’s constitution. This fundamentality, however, is not completely recognised in the political realm, even though the judiciary have found normative space to allow it institutional respect. Although mechanisms for self rule, and some mechanisms for shared rule, do exist, neither—especially the latter—can achieve their full benefits so long as a unitary, sovereignty- endorsing perspective prevails at Westminster. This perspective appears to unjustifiably deny the significance of the devolved institutions, preferring to subordinate and disregard them, asserting instead its own institutional hierarchy and proving capable of manipulating the flexible procedures that devolution has put in place. Federalism once properly understood as constitutionally accommodating and encouraging diversity within a community, rather than a prescriptive state- form, will provide for the necessary respect for institutions in order to allow the UK’s shared rule dynamics to prosper. The cooperative opportunities of the constitution can and should be realised once this federal ‘mindset’ is adopted, especially in Westminster. 1 DIVIDED WE STAND? DECENTRALISATION, FEDERALISM AND A UNION-STATE For the Degree of Master of Jurisprudence Nicholas Rex Kilford Durham Law School Durham University 2019 2 TABLE OF CONTENTS ACKNOWLEDGEMENTS ......................................................................................................... 5 INTRODUCTION ‘THE BEGINNING OF SOMETHING’ ........................................................... 7 CHAPTER 1 FROM INTEGRATION TO AUTONOMY? .............................................................. 13 INTRODUCTION ....................................................................................................................................................................... 13 THE IDEA OF FEDERALISM ................................................................................................................................................... 15 CONSTITUTIONAL BEGINNINGS: THE UNITED KINGDOM(S) ........................................................................................ 28 THE IRISH QUESTION AND THE FEDERAL AVERSION ..................................................................................................... 35 DEVOLUTION’S FALSE START ............................................................................................................................................... 42 CONCLUSION: A ‘UNION-STATE’ ......................................................................................................................................... 44 CHAPTER 2 CONTEMPORARY DECENTRALISATION: SELF-RULE ACHIEVED? .................... 47 INTRODUCTION ....................................................................................................................................................................... 47 ORIGINS, PURPOSES AND IMPLEMENTATION .................................................................................................................... 50 Scotland ................................................................................................................................................................................. 57 Wales .................................................................................................................................................................................... 60 Northern Ireland .................................................................................................................................................................... 63 England and ‘the Centre’ ....................................................................................................................................................... 67 DEVOLUTION IN PRACTICE: ‘A PROCESS’ .......................................................................................................................... 72 Interaction, Cooperation and the Persistence of Hierarchy ........................................................................................................ 73 1. Shaping the Settlements ...................................................................................................................................................... 74 2. Legislative Consent and Sovereignty ................................................................................................................................. 76 3. Intergovernmental Relations and Joint Ministerial Committees .................................................................................. 81 Judicial Approaches: Towards Constitutional Significance ....................................................................................................... 85 Cracks Emerge: Withdrawal from the European Union ......................................................................................................... 99 CONCLUSION: TOWARDS A ‘RELEVANT COMMONALITY’ ............................................................................................. 107 CHAPTER 3 FEDERALISM, COOPERATION AND THE PURSUIT OF SHARED-RULE ............. 111 INTRODUCTION ..................................................................................................................................................................... 111 THE LESSON OF SHARED RULE .......................................................................................................................................... 113 MAKING SENSE OF A MULTI-LAYERED CONSTITUTION ............................................................................................... 122 CONCLUSION: WHAT CAN FEDERALISM DO FOR US? ................................................................................................... 130 CONCLUDING THOUGHTS ‘UNCHARTED TERRITORY’? ................................................... 132 BIBLIOGRAPHY .................................................................................................................. 138 3 Statement of Copyright The copyright of this thesis rests with the author. No quotation from it should be published without the author's prior written consent and information derived from it should be acknowledged. 4 ACKNOWLEDGEMENTS A great many thanks are owed to my supervisors, Professor Roger Masterman and Professor Robert Schütze, for their wisdom, kindness and—especially—tolerance throughout the year. Their guidance has been indispensable and working with them has been an immense privilege. Each has been an inspiration and between them they are responsible for my interest and passion for this subject. If anyone asks, it’s their fault. To all those friends and colleagues I have made over my four years at Durham, thank you for making this wonderful place feel like home, I’ll be back. To my family, particularly my parents and brother, I am grateful for their unflinching support and kindness, no matter what I put them through. To Tasha, for everything: ‘even when there is no star in sight, you’ll always be my only guiding light.’* * Mumford and Sons, ‘Guiding Light’ (2018) 5 For James: Friend and brother; lost too soon, never forgotten. 6 INTRODUCTION ‘THE BEGINNING OF SOMETHING’ ‘[T]he question is not only about what the United Kingdom might become, but also about what it already is.’ 1 What is the optimal structure of the modern constitutional state? How can architecture, power structures and systems of interaction between the different levels of the state define—and be defined by—its constitutional vision? There are many possible answers to these questions, and many more possible directions of enquiry beside them. Research on constitutional structures is neither new, nor rare, but it is of fundamental importance: it can help comprehend and prescribe the basic pressures and responses of modern constitutional government; those of state formation, secession,
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