Introduction
There was a time when students of government could make a clear distinction between unitary and federal states . Unitary states possessed a single legislature and government, with a monopoly of law-making authority. Municipal or local levels of government could exist below the state, but they were typically creatures of statute without constitutional entrenchment and confined to administrative matters. Federal systems, by contrast, had two orders of government both constitutionally entrenched. There was a clear division of competences between them so that neither could encroach on the powers of the other. Canada and UK seemed to correspond closely to these ideal types. Canada was founded as a federation with its own constitution, although full control of its amending formula was only fully handed over to Canada in 1982. The federal principle runs through politics and shapes political life. In the United Kingdom, there was a unitary parliament at Westminster , with boundless legislative powers, limited only by the inability of any one parliament to bind its successors. Territorial structures of administration and local government could be changed by a stroke of the legislative pen. There was not even a written, codified constitution to constrain Westminster sovereignty. The legacy of A.V. Dicey , who had insisted that federalism was a weak design of government and inconsistent with parliamentary sovereignty, lay heavy. Although there is a British federal tradition (Burgess 1995) from the idea of Imperial Federation in the early twentieth century, to ideas of Home Rule All Round as an answer to the Irish and Scottish questions and to European federation , none has ever formed part of the political mainstream. Instead, federalism has remained the ‘f’ word, a foreign idea unsuited to British conditions.
In the early twenty-first century, the distinction is less clear cut. Many unitary states have decentralized and in Europe an intermediate or ‘meso’ level of government has emerged, with an ambiguous constitutional status. Spain has its ‘state of the autonomies’, while Italy is a regionalized state with a recurrent debate on the merits of federalism . These reforms have been motivated by a combination of considerations of effective government and the management of national diversity . Established federal systems, for their part, have gone through decentralizing and centralizing phases. The expansion of government, and particularly the welfare state, in the twentieth century, often escaped the old divisions of competences, designed for a simpler age. Observers detected a move from coordinate federalism, in which each level has its own competences, to cooperative federalism in which both levels operate across a wide range of responsibilities, requiring them to cooperate (Laforest and Lecours 2016). Systems of fiscal equalization emerged to share resources across the national territory.
More widely, there has been a transformation of the state and a rescaling of both economic and social systems and of government (Keating 2013). The unitary nation state was, in principle, a territorial demarcation that bounded an economic system, a national society based on shared identity and a set of governing institutions. Actors, including business and labour, were locked into the national boundary and so had strong incentives to strike social compromises on economic and social policy. This is no longer true. Economic change is subject to global forces but at the same time it is shaped by local and regional factors below the level of the state. Welfare and social solidarity , often built at the level of the nation-state, are being challenged by the ability of business to relocate, while issues of social justice are often framed at the local and regional level in the form of protests around closures or the local impact of global change. The process of social and economic change increasingly escapes the purview of governments at all levels, hence the search for new spaces for regulation and policy-making, above and below the state. Political movements based on demands for territorial recognition and autonomy have re-emerged, often using social and economic arguments to modernize historic demands for self-government. This is a challenge faced both by federal and unitary states. The outcome is that the relationship between territory and power has become more complex and contested both in unitary and federal systems.
The United Kingdom and Canada provide instructive examples of these processes. Canadian federalism has evolved greatly since 1867 and currently faces institutional and policy challenges, whether to do with Quebec , the West and particularly with regards to the status of Aboriginal peoples . Despite its unitary constitution, the United Kingdom was always concerned with territorial management . Indeed it was never a clearly unitary state, since there were distinct systems of law and administration in Scotland , Northern Ireland and, to a lesser extent, Wales . Since the end of the twentieth century, under the pressure of increased territorial divergence, it has been transformed by devolution into a decentralized polity, with self-governing legislatures and executives in Scotland, Wales and Northern Ireland.
Devolution and Federalism
In the twenty-first century, then, both Canada and the United Kingdom are complex multi-level states. Yet constitutional lawyers have traditionally argued that federalism is fundamentally different from devolution . In a federal state, the division of powers in constitutionally entrenched and legally enforceable. Under devolution as practised in the United Kingdom, the Westminster Parliament remains sovereign in all matters, merely lending devolved powers, which can be taken back by the centre. In practice, the distinction is less clear. Canada has gone through phases of expanding federal power and intrusion into provincial competences , and its constitution is open to interpretation (Gagnon 2009). On the other hand, it has always been politically difficult for Westminster to take back powers against the wishes of the devolved governments in Scotland, Wales and Northern Ireland and it has never done so. These conventions have, over the years, been reinforced and given legislative underpinning. Nor does it normally legislate in devolved spheres, in spite of claiming the right to do so. Under the Sewel Convention , Westminster does not legislate on devolved matters for Scotland, an understanding that has been extended to Northern Ireland and Wales and formally recognized in the Scotland Act (2016) and the Wales Act (2017). The Northern Ireland settlement is underpinned by an international agreement with the Republic of Ireland , deposited at the United Nations . While these conventions have largely held since 1999, their constitutional status is far from clear. The UK Supreme Court, which rules on the competences of the devolved bodies (but not of the centre) has rarely been called on to pronounce on these matters, but in its January 2017 ruling on the need for parliamentary sanction for withdrawing from the European Union, it noted in passing that the Sewel Convention was merely a ‘political’ arrangement with no binding effect.
In one respect, UK devolution even goes further than its Canadian equivalent, in that Scotland and Northern Ireland (and in future Wales) have a ‘reserved powers’ model in which the devolved legislatures have competences in all matters except those expressly reserved for the centre. There are, moreover, no equivalents of those federal departments in Ottawa, which cover provincial competences. In important fields like health, environment and agriculture, there are no UK departments, only departments for the four component nations.
Canadian provinces , unlike the UK devolved territories, have had significant tax powers, giving them a wide scope for setting their own policies. The initial design for UK devolution left almost all tax powers at the centre. Now devolved territories, with Scotland in the lead, are gaining their own independent sources of revenue.
One significant difference does remain, however, in that devolution in the United Kingdom applies only to Scotland, Wales and Northern Ireland, with England, accounting for 85% of the population, ruled directly from the centre. Proposals for the government of England ’s city regions have been called devolution but this is a misnomer as they do not have the same federalizing logic. The result is that federalism is a more significant element in Canadian state-wide politics than in those of the UK, where devolved concerns are easily overlooked in London. If the UK is moving towards federalism, it is of an asymmetric type which Canada, in spite of demands from Quebec, has always rejected, apart some distinct competences in matters like immigration (Paquet 2016).
Federalism and devolution address range of issues in the design of government. The first is the recognition and expression of national diversity in plurinational states, in which more than one national group exists and demands recognition. The United Kingdom is an explicitly multinational union , in which national communities are recognized in England, Scotland and Northern Ireland (formerly all Ireland). Canada has long been seen by some as a bargain among two founding peoples, previously seen as English and French-speaking but latterly between ‘English Canada’ and Quebec. To this duality has been added demands by aboriginal peoples for recognition and self-government, and a sharper focus on multicultural diversity.
The second issue concerns decentralization of power in the interest of balancing and limiting central power. There are two elements of this, which Elazar (1987) called self-rule and shared rule. The former implies a constitutional division of competences to allow the lower level to a degree of autonomy. The latter concerns the need for the lower tier to have a role in policy-making in the central government, which may be achieved in a variety of ways including second chambers or intergovernmental committees.
The third aim is diversity in public policies to allow for local preferences where different populations vote accordingly. This diversity, in a modern welfare state, is balanced by considerations of equity and the equal right of citizens to vial services.
The fourth is allocative efficiency in management of public services. There is a lot written in the federal literature about the optimal allocation of competences in order to achieve efficiency and how this determines governmental structures (Hooghe and Marks 2009; Alesina and Spoloare 2003). Yet in practice these proposals often rely on value judgments and priorities. During the heyday of the welfare state, people on the left often preferred centralization to share resources and enforce national standards. A strand of thinking on the right prefers decentralization so that governments will compete against each other and drive down costs, as practiced by the governments of Stephen Harper between 2006 and 2015. On the other hand, there are people on the left who want more power for Quebec or Scotland on the grounds that they are more likely than Canada or the UK to promote pro-welfare policies and expansion of public services. There is rarely a purely technical answer as balancing powers depends on what people want to do with those powers in a given context; this nearly always politically contested.
Plurinational Federalism
There is a strand in the literature that argues that federalism is appropriate only for mononational states , where there is a unitary people or demos and that it should be symmetrical (Tarlton 1965). Where there is more than one nationally self-conscious people, it is said, then limited self-government will lead inexorably to separation as that people assumes to itself full sovereign rights. This argument has played in different ways in the two countries. Unionists in the United Kingdom, dating back to the late nineteenth century, have rarely disputed that the UK consists of four nations and have been willing to accord them all manner of symbolic recognition. The state flag even incorporates their national crosses, although Wales, for historical reasons, is missing. It was, however, precisely because they recognized that these were nations that unionists, from A.V. Dicey (1886) to Margaret Thatcher (1993) refused their right even to limited self-government. The response of many English Canadian federalists to Quebec has been more like the reverse. Quebec does have internal self-government as a province of Canada, but has struggled to attain recognition as a nation. The doctrine of Canada as a union of two founding peoples has gained little traction outside Quebec; instead Canada is seen as a union of equal provinces and of individual citizens. The recognition of Quebec as a ‘distinct society’ was one of the provisions of the failed Meech Lake agreement that caused most problems in the rest of Canada in the late 1980s. Later on, the Canadian Parliament did recognize Quebec as a nation within Canada, but only once the term has been emptied of much of its meaning. The demand for aboriginal peoples also to be seen as a founding element has met with similar difficulties. The commemorations surrounding the 150th anniversary of the federal founding of Canada in 2017 is putting some of these symbolic and substantial issues back on the agenda.
These arguments, which often seem to revolve around mere symbols and semantics, reveal deep differences in both countries as to the nature of sovereignty. On the one side are the strict constitutionalists, who argue that sovereignty lies and is defined in one place, whether this be the Canadian constitution or (for the United Kingdom) the Monarch in Parliament. On the other are those who see the state as a union of self-determining peoples, which may be renegotiated and modified in each generation (Tully 1995). Understandings of federalism have also evolved and nowadays there is more support for the proposition that federalism can be valuable as a means of managing national diversity and that it can be...