As the UK withdraws from the EU, is this the opportune moment for a restructuring of the Union along (con)federal lines? On 13 February, the Constitution Unit hosted a panel discussion on ‘Brexit, Federalism, and Scottish Independence’, to explore this question further. The panel, chaired by Kenny Farquharson, consisted of Professor Jim Gallagher, Kezia Dugdale and Baroness (Jenny) Randerson. Seema Syeda reports.

Opening the Constitution Unit’s seminar on ‘Brexit, federalism and Scottish Independence’ on 13 February, Kenny Farquharson declared that ‘Brexit is a painting that has not yet dried’. After the EU referendum result exposed a nation fractured along the lines of geography, age, wealth, and education the full consequences are yet to become apparent. The divisions now manifest in UK society are troubling enough to satisfy the worst of cynics – yet, in the greatest constitutional upheaval the UK has seen in decades, some have spied an opportunity.

Might the transfer of wide-ranging powers from Brussels, not only to Whitehall but also to the devolved administrations, provide an opportunity to revitalise our democracy through a newly federal UK? Important competencies relating to agriculture, fisheries and the environment will, unless the UK government legislates otherwise, return to the Scottish Parliament and to the Welsh and Northern Ireland Assemblies. Both the devolved and central governments will therefore see a dramatic increase in their powers. Brexit, as ‘wet paint on canvas’, in a continuation of Farquharson’s vividly imagined metaphor, might be an opportunity to restructure the relationship between the UK’s four constituent nations.

These possibilities were discussed by a panel which consisted of Professor Jim Gallagher, Scottish Labour leader Kezia Dugdale and former Liberal Democrat Welsh Assembly member and Wales Office minister Baroness (Jenny) Randerson. Kenny Macaskill, Cabinet Secretary for Justice in the Scottish government under Alex Salmond, was also due to attend but unfortunately could not make it due to unavoidable business in Scotland.

Jim Gallagher

Writing for this blog in October 2016, Jim Gallagher suggested creating a confederal system as a means of healing the fraught UK-Scottish relations of recent years – relations exacerbated by the results of the EU referendum. At our event, Gallagher elaborated upon this, identifying two key problems for Scotland and the UK respectively. Scotland’s dilemma is that it is ‘utterly divided on the question of independence’. The threat of a second independence referendum looms, but whilst polls show a roughly equal divide between Unionists and separatists – with a victory for either side likely to be marginal – neither a continuation of the status quo nor total Scottish independence would be enough to satisfy a substantial majority of the population. The UK’s problem is that Scotland and Northern Ireland voted to remain in the EU, at stark odds with England and Wales. Yet the approach of the present UK government has been to satisfy those who voted to leave, giving little accommodation to those who wish to remain – something Gallagher sees as a ‘partisan rather than a national strategy’.

To breakout of this political straitjacket Gallagher advocates a ‘strategic compromise’ embodied in a ‘confederal solution’, avoiding the ‘winner-takes-all’ approach promoted by last year’s binary referendum choice. It would allow Scotland, Wales, and Northern Ireland to markedly increase their powers. For instance, they could acquire the authority to issue work permits granting the right to work in devolved territories, but not elsewhere in the UK. Such a solution would require substantial new intergovernmental arrangements for the UK, including a new role for an integrating mechanism to oversee the territorial constitutional arrangement, perhaps based around the House of Lords.

But is such a solution feasible? At present, Gallagher admits, it does not look likely, as both the UK and Scottish governments have bunkered down; one largely ignoring the devolved administrations, the other calling for independence. The problems facing Northern Ireland seem pretty insoluble. Yet all is not lost – if the UK and devolved administrations break away from their entrenched positions and demonstrate a willingness to compromise for the national rather than a partisan interest, there may be some scope for a confederal solution.

Kezia Dugdale

Kezia Dugdale, Leader of the Scottish Labour Party, called for a federal solution in December. At last week’s event she confirmed that propositions for a federal state would be debated at this weekend’s party conference. She argued that federalism is needed to address the ‘failure of politics’ precipitated by the financial crisis of 2008, which left the UK not just fractured economically, but also along political and social lines. The mainstream ‘non-nationalist left’, she admits, failed to address the ensuing fallout of the crash, and the recent global rise in populism and authoritarianism – epitomised by the election of Donald Trump – is the inevitable consequence of this failure. Now, radical solutions are needed to address the rising anti-establishment sentiment that threatens to overturn liberal democratic values.

In the 2014 Scottish independence referendum the Scots voted emphatically to remain in the UK. Dugdale argues that last year’s EU referendum does not override this decision. The Scottish Labour Party, as a unionist party, has a vested interest in making the UK work, and by suggesting a federal solution, she seeks to heal the stark divisions precipitated by the referendum’s binary, polarising nature, instead pushing for a solution that appeals to those who voted ‘Yes’ and ‘No’. In doing so, she is in accord with Gallagher’s call for a move away from the ‘winner-takes-all’ mentality that has pervaded current UK politics.

As the chasm between the government and the governed widens, federalism is the vital means of bridging the gap. ‘Power’, Dugdale argues, must be brought ‘closer to the people’. With Scotland at a ‘turning point’, the fierce and bitter debates surrounding independence now transcend any political party. Collective responsibility, cooperation, and openness are needed to save liberal democratic values. Calling for a ‘People’s Constitutional Convention’ to deliberate on sorely needed changes for the UK governing system, she advocates that a ‘new Act of Union’ would ‘renew the UK in our new age’. She believes the majority of the Scottish population desire this, with a federal solution creating a ‘strong Scotland’ and a ‘strong Scottish parliament’, inside the United Kingdom.

Whilst the key details of the policy have not yet been fleshed out, the suggestion is likely to be a lively topic of debate at this weekend’s Scottish Labour party conference.

Baroness (Jenny) Randerson

Openly agreeing with Dugdale, Baroness Randerson also came out in favour of federalism as a solution to the UK’s governing crisis. Federalism has been a long standing Liberal Democrat aim. In 1886, the Liberal Unionist Joseph Chamberlain called for ‘home rule all round’, whilst the 2006 Steel Commission, spearheaded by the Scottish Liberal Democrats, advocated ‘fiscal federalism’. With Dugdale’s confirmation that the Scottish Labour Party have now too joined the chorus calling for federalism, Randerson sees an opportunity for a ‘fresh debate’ on the issue.

Reflecting on the Welsh Conservative David Melding’s 2009 work, Will Britain Survive Beyond 2020?, she reminded us of Melding’s proposition that though the home nations currently choose to be part of the British state, their continuing to do so is not inevitable. Today’s new political awareness means that the UK can no longer be based on the tacit consent of its constituent nations. The majority of the Welsh population, for instance, voted to leave the EU, yet Wales is led by an Assembly whose members wish to remain.

This is a sign of deeper discontent. Following the Wales Act 2017, Welsh devolution is inching forward, but the Welsh, comparing themselves to Scotland, still harbour a ‘national sense of inferiority’. Welsh devolution is characterised by ‘unsatisfactory compromises’ against a dominant UK government. In an ‘increasingly tense and unhappy Union’, Randerson argues that centralised solutions are no longer the answer. Powers need to be devolved to communities instead, demonstrating a ‘renewed and real trust in the people’.

Speaking as a former government spokesperson on Northern Ireland in the House of Lords, Randerson also addressed the highly significant issue of the Irish border. Whilst there is no way of creating a border to police EU immigration without introducing a sense of formality, an open border is of huge importance to maintaining peace in the region. Stressing the immense symbolism of being able to cross it without thinking, she warned that current street demonstrations could lead to violence if a hard border was built. Perhaps a federal solution, then, would allow Northern Ireland to maintain a looser immigration policy, alleviating the necessity of a border between Northern Ireland and the Republic, and introducing an English/Irish border instead.

Conclusion

Federalism appears to be a way out of the intractable, binary divisions that are fracturing the UK and its constituent nations. The panel seemed to be united on the need to shift away from a ‘winner-takes-all’ mentality and to focus instead on healing divides through strategic compromise. A federal or confederal solution that works for the overwhelming majority, rather than a marginal one, seems to be an effective way to achieve this. It is up to the UK government and its constituent nations to gather the will to work for such a compromise; though with the current deeply entrenched positions of the parties involved, such magnanimity seems unlikely.

About the author

Seema Syeda is a Research Volunteer at the Constitution Unit.