Tag Archives: Federalism

Mark Elliott: Scotland has voted “no”. What next for the UK constitution?

MarkAfter a very long — and at times electrifying — campaign, a modest but decisive majority of those who participated in the referendum on Scottish independence have voted “no”. In one sense, this is the end of the process — even if, bearing in mind the main UK parties’ still-to-be-fulfilled promises about further devolution, it is only the beginning of the end. In another sense, however, it might turn out to be only the end of the beginning.

Had Scotland voted “yes”, this would have represented a constitutional shock of seismic proportions, and would quite conceivably have resulted in major constitutional changes in the remainder of the UK. It is less certain that such changes will follow the “no” vote. Nevertheless, it is likely that the “no” vote will leave at least some sort of — and potentially a very significant — constitutional legacy thanks to the conferral upon the Scottish Parliament of the additional powers promised by the main UK parties during the final weeks of the independence campaign.

It is not, however, obvious that the changes provoked by the referendum will — or should — be confined to the beefing up of the existing devolution system. As the debate moves on from the falsely binary form — independence or Union? — it took during the campaign, a more searching and granular debate can and will succeed it. (“Falsely” binary because, as I have argued before, both independence and Union are highly catholic concepts that bear a range of meanings and are capable of shading into one another.) That debate will concern not the apparently extreme options that were on offer to the people of Scotland, but the constitutional smorgasbord of possibilities that arise when we consider what kind of Union should exist, as we move forward, between England, Northern Ireland, Scotland and Wales.

Federalism?

The obvious counterpoint to the present system is a federal one. Some — including Lady Hale JSC — have gone so far as to argue that the UK is already a federal system. This is incorrect as a matter of technical constitutional law, since the principal hallmarks of a federal system are absent from the UK. The system of devolution is asymmetrical, with different parts of the UK having different types and amounts of power (and, in England’s case, none); the relationship between the central government and each of the four home nations is different; and the legal power vested in devolved institutions is insecure in the sense that it flows from UK legislation that remains within the legal control of the Westminster Parliament, as distinct from being enshrined in a written constitution that is immune from unilateral amendment by a single institution.

However, recognising that the UK does not conform to the technical paradigm of the federal model gets us only so far — not least because, like independence and Union, federalism is a concept whose elasticity tells against over-emphasis of technicality. Demonstrating an admirable grasp of such matters, former Prime Minister Gordon Brown, in an article in the New Statesman in June 2014, points out that the UK’s constitutional architecture increasingly tends towards, even though it does not fully conform to, a federal model. For example: in theory, the present system depends upon the Westminster Parliament’s ongoing acquiescence in the autonomy of devolved institutions, because, in theory, Westminster could unilaterally override legislation enacted by — or even unilaterally change, diminish or abolish the powers of — such institutions. However, the theoretical position described by the doctrine of the sovereignty of the Westminster Parliament is radically transformed when viewed through the prism of political reality. From this perspective, the true measure of constitutional security enjoyed by devolved institutions in the UK is comparable to that which is enjoyed by their counterparts operating elsewhere under federal arrangements.

Yet for all that the current arrangements may disclose traces of federalism, they also remain clearly distinguishable from that model. Its adoption would entail major constitutional innovation, bearing in mind that the vast majority of the country — i.e. England — is currently exempt entirely from the devolution scheme. A genuinely federal model would involve the creation of exclusively English institutions sitting — alongside their equivalents in the other three home nations — under the umbrella of pan-UK federal institutions. This would represent an enormous constitutional change; and while the scale of that change is not in itself a good reason for rejecting it, such a fundamental alteration to the constitutional fabric ought not to be undertaken lightly.

Whether a federal system in the UK would be appropriate must be considered holistically. It would be blinkered to advocate its adoption merely because it would be in the perceived interests of one or some — as opposed to all — parts of the country. By definition, a federal model would be all-encompassing, and would change the basis of the relationship between all four home nations, as well as the relationship between those nations and central institutions of the UK state. But in spite — or perhaps because — of such radical implications, talk of federalism is on the rise as we emerge, blinking, from the Scottish independence debate.

This is likely so for two reasons. From the perspective of the devolved nations, federalism offers a degree of lock-in to the decentralisation of power which outstrips that which can be supplied by mere devolution. And although, as noted above, the constitutional security enjoyed by devolved institutions is considerable under the current system, a federal model would (among other things) supply greater and more-formal guarantees concerning both the balance of power and (just as importantly) the process by which any further alterations to that balance would fall be negotiated and secured. Meanwhile, from the perspective of England, federalism offers the prospect of a form of “home rule” that would address concerns about the increasingly anomalistic lopsidedness of the existing constitutional architecture. Viewed in this way, a shift to a federal model might facilitate the containment of English nationalist tendencies, which are certain to be awakened in the aftermath of the Scottish independence debate.

England

The position of England cannot be considered in isolation — any change to its position would necessarily have implications for the situation of the other home nations — but it is increasingly obvious that it must be confronted head-on. England has long remained (as Richard Rawlings pithily puts it) “the spectre at the [devolution] feast” because its sheer political, numerical and economic weight has generally been judged to exempt it from the case in favour of devolution. A very large part of that case has always been that Scotland, Wales and Northern Ireland should be afforded an opportunity to move out of the shadow cast by England by virtue of its size, thereby allowing those parts of the country to live out their distinct political, cultural and economic identities. (There are, it goes without saying, other layers of complexity that apply in the particular case of Northern Ireland.)

On this view, to propose the extension of the devolution settlement to England would be nonsensical: it hardly needs to step away from its own shadow. However, the position is surely more complex than this. Even if the initial impetus for devolution is understood in the way sketched above, it does not follow that — now that there is devolution elsewhere — devolution remains inapposite in England. It is one thing to argue that the arguments forming the initial impetus for devolution had particular purchase in relation to the three smaller home nations; it is another thing to argue that the inapplicability of those arguments to England ought permanently to exclude it from any recognition within the devolution settlement. What, then, might be the positive arguments in favour of revisiting England’s position? Two are particularly pertinent.

The first argument concerns fairness; it is an old one, but it is no less compelling for that. The so-called West Lothian problem — which concerns the capacity of Westminster MPs representing non-English constituencies to legislate on matters affecting only England — is an increasingly pressing one. At its heart lies a basic unfairness stemming from an absence of reciprocity: while English MPs have renounced involvement in whole swathes of devolved matters, MPs representing constituencies located in devolved nations remain capable of influencing, sometimes decisively, the passage of legislation affecting only England.

Moreover, the electoral-college function served by the Westminster Parliament — its political composition determines which party or parties form the UK Government — means that the West Lothian problem is capable of distorting the political make-up of what is, for many purposes, the English government. Indeed, in 2010, the Conservative Party could comfortably have formed a single-party majority government had only English constituencies been taken into account.

It was always only matter of time before this issue is transformed from one that concerns constitutional anoraks into one that impinges significantly upon popular consciousness and stokes resentment. And that time has very likely now arrived. As the competence of devolved institutions expands — resulting in commensurate diminishment of Westminster’s involvement in matters affecting the devolved nations — so the anomalistic nature of the involvement of MPs from outside England in purely English affairs becomes more glaring. Indeed, it is highly unlikely that promises of further powers for Edinburgh will be politically deliverable unless accompanied by a resolution of the West Lothian problem.

The second argument concerns identity. One of the purposes of devolution is to acknowledge and to give institutional life to differential national identities within the UK. Do existing arrangements adequately accommodate this need as it pertains to England? One response to this question is (as mentioned above) to argue that English national identity receives adequate expression thanks to the size of England coupled with its (ambivalent) representation within the pan-UK Parliament and Government. However, whether this is so depends, at least in part, on how well UK institutions are able to perform their secondary function as English institutions (a question that takes us back, at least in part, to the West Lothian problem). A further issue, however, is whether the focus of this debate should be an undifferentiated English identity or multiple English identities — and this, in turn, invites questions about the extent to which we should be concerned with England’s place in the Union, and the extent to which we should instead be concerned with the place of English regions within England.  A complex set of issues — encompassing not only devolution to but also devolution within England — therefore arises.

Big-bang constitutionalism — or a typically British response?

Where, then, does this leave us? A dramatic response would be a form of “big-bang constitutionalism” involving a fundamental rethink about how the constitution works, how the four home nations relate to one another, how they relate to the UK tier of government, and where and how more-local levels of government should fit in.

The upshot might be a genuinely federal model involving the creation of an English Parliament and an English Government invested with powers similar to those wielded in Edinburgh, coupled with confining the Westminster Parliament and the UK Government to matters that need to be dealt with on a pan-UK basis. The adoption of such a system would necessarily entail the enactment of a written constitution enjoying a hierarchically superior legal status, so as to render the balance of power between the different tiers of authority constitutionally secure and impervious to unilateral disturbance — the absence of such characteristics being incompatible with a federal model. But while a “federal” system is increasingly in the contemplation of those arguing the case for Scotland to remain a UK with a reimagined constitution, it is not at all clear that the language of federalism is being used in a technical sense as opposed to being a rhetorical flourish. It is also widely argued that a truly, technically federal system in the UK would be highly problematic given that one of the four sub-federal units, i.e. England, would be so large and dominant, accounting for around 85% of the population. As Professor Vernon Bogdanor recently pointed out in The Times (£):

there is no federal system in the world in which one unit represents more than 80 per cent of the population. The nearest equivalent is Canada, where 35 per cent of the population live in Ontario. Federations in which the largest unit dominated, such as the USSR, Czechoslovakia and Yugoslavia, have not been successful.

A second possibility would be to roll out devolution to England, too. This would stop short of a federal model, since the new English (like the existing devolved) institutions would be creatures of the Westminster Parliament, lacking the constitutional security inherent in federalism. Such a system would also remain distinguishable from federalism because the devolved institutions in each part of the country would continue to wield different types and amounts of authority. As such, a system encompassing devolution in England would — by definition — not amount to full-blooded adoption of a federal system.

It would, however, represent a major constitutional change — and, as such, it would run up against much the same problem as the one cited by Bogdanor above: namely, England would acquire a distinctive institutional machinery that would (on the argument adopted by Bogdanor and others) risk destablishing the Union thanks to England’s relative size. We should not, however, adopt this argument unthinkingly, given the position at which we have arrived today. In its present condition, the Union is hardly in a particularly stable condition. It is therefore at least worth balancing any risk of destablisation against the possibility that creating English institutions might in fact exert a stablising influence, by enabling English nationalist impulses — which, as surely as night follows day, will be ignited by perceptions that Scotland is being accorded preferential treatment through the devolution of additional powers — to be accommodated within the Union.

A third possibility — and by far the most likely one, bearing in mind the Prime Minister’s statement of this morning — is an incremental, as distinct from a big-bang, approach. Such an approach would be of a piece with the incrementalist, pragmatic tradition that is arguably the defining characteristic of British constitutionalism. This tradition treats constitutional reform as an ongoing process — one that addresses challenges as they arise, rather than undertaking holistic reimaginings of the system. If this tradition prevails, then a Scottish “no” vote — and the associated conferral upon Scotland of additional powers — will likely trigger a series of consequences.

First, the possibility of conferring further powers upon devolved institutions elsewhere in the UK will arise. If Scotland is given additional powers in the aftermath of the “no” vote, it is inevitable that Northern Ireland and Wales will agitate for equivalent treatment.

Second, the West Lothian problem will be confronted, whether in the way proposed by the McKay Commission or otherwise, whilst stopping short of the more-radical option of creating wholly distinct (either federal or devolved) English institutions. Of course, as those who have wrestled with the West Lothian problem well know, there are no easy answers to it. Even curtailing the capacity of non-English MPs to influence English law is not a magic bullet, not least because this creates a further problem known as the “shifting majority”, the difficulty being that an administration formed from a party with a pan-UK majority would be unable to secure its English legislative programme if it were to lack a majority of English MPs. Indeed, the shifting-majority problem is a good illustration of the problems invited by piecemeal, as opposed to holistic, constitutional reform: pull at one loose thread, and a wider unravelling may follow.

Once — as, at some point, there inevitably will be — a UK government that commands a majority in the House of Commons thanks only to the ballast accorded by MPs from outside England, this problem will become all to apparent. It will strike at the heart of the Westminster model, according to which the government of the day commands — and must command — a majority in the House. In contrast, once the West Lothian Question is resolved, the possibility arises of a UK  government being incapable of securing a majority in the House of Commons on the vast majority of the — English — legislative business transacted there. While, therefore, the notion of “English votes for English laws” may sound as modest as it is sensible, it opens up a new can of worms that may be hard to contain. In particular, if the resolution of the West Lothian Question results in a de facto English Parliament within the Westminster Parliament, it will be hard to resist some degree of reform on the executive plane. The logic of an (effectively) English Parliament may, in other words, dictate the establishment of (in some form) an English government. A real possibility, therefore, is that tackling the West Lothian Question will — unintentionally — turn out to be the mere precursor to more far-reaching institutional reform, the logical endpoint of which is something more closely akin to English devolution of full federalism.

Third, even if reticence around pan-England institutions closes off discussion about devolution to England, it is likely that greater attention will be given to devolution within England: that is, devolution not to all-England institutions but to regional English institutions. Indeed, Nick Clegg and David Miliband have already said as much. Such proposals fell spectacularly flat when proposed in north-east England a decade ago, but that is not to say that different proposals would also fail. However, whether devolution within (rather than to) England is a fitting response to the challenges arising from the Scottish referendum is another question. The answer to it turns on (among other things) the prevailing sense (or senses) of belonging that operate in England: do those living in England identify with — and wish to be represented by — institutions that reflect an undifferentiated notion of Englishness, or would they identify more readily  with institutions standing for particular sub-strands of English identity?

Fourth, the constitutional position of devolved institutions in Scotland, Wales and Northern Ireland will become increasingly entrenched — not by dint of legal security wrought through the adoption of a technically federal model and the disavowal of Westminster’s sovereignty which that would entail — but thanks to the ongoing solidification of constitutional conventions that render unilateral interference by London in devolved affairs every bit as inconceivable as central incursions into local matters within a federal system.

These incremental steps would not amount to wholesale constitutional reform, but they form part of a narrative that it has been possible to discern for some time: of a system that is moving irrevocably away from the centralist model that was once said to characterise the UK constitution, and towards a system that, while not federal in the classical sense, is manifestly not unitary in nature.

Just as it does not now, so the UK constitution would not, were these things to come to pass, conform to any particular, identifiable model. It would not, for instance, be neatly characterisable as a federal system; nor could it be described as a unitary state. Rather, the constitution would remain — as it has been for centuries — messy and incomparable. But these characteristics are not necessarily negative ones. Untidiness is a price that is arguably worth paying for a system that exhibits a degree of flexibility, albeit that the practically irreversible dispersal of power that devolution is accomplishing inserts brakes upon that flexibility which are novel in this country. Nor is uniqueness necessarily something to be disparaged. That the UK constitution compares to no other should not inevitably be taken to mean that there is something defective about it. Rather, it is testament to the uniqueness of our epic constitutional story. The “no” vote in Scotland means that — at least for the foreseeable future — that story will endure. Nevertheless, it is hard to deny that — in ways that are, in the immediate aftermath of the referendum, difficult to forecast with absolute certainty — the “no” vote will be shown by history to have marked a profound turning-point in that story.

Mark Elliott is a Reader in Public Law at the University of Cambridge. This post was first published on his blog, Public Law for Everyone. Mark can be found on Twitter as @DrMarkElliott.

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Filed under Constitutional reform, Devolution, England, Scotland, UK Parliament

Scott Stephenson: Federalism and Liberty in Australia Through the Lenses of Same-Sex Marriage and Organised Crime

STEPHENSON%20ScottAmerican constitutional scholarship is replete with discussions of the relationship between federalism and liberty. Some argue that a plurality of jurisdictions creates competition, allowing citizens to ‘vote with their feet’ thereby providing a potentially more effective means of resisting oppression—relocation—than attempting to challenge state action at the ballot box or in the courtroom. Federalism can also generate greater sensitivity to local welfare, creating opportunities for national minorities to employ subnational apparatuses to pursue their interests, transforming them from political outsiders to political insiders. Others contest these claims, arguing, for example, that there is no basis for assuming that one level of government will be more protective of rights than another.

With some notable exceptions, this debate plays a less prominent role in Australian constitutional theory. Partly it is because the country’s federal system has not produced the level of policy diversity necessary to substantiate such claims. While some differences exist, Brian Galligan and Cliff Walsh observe that, ‘given the cultural homogeneity of the Australian people and the fiscal dominance of the Commonwealth, there are striking similarities in the policies of the various States’. In recent decades, the tenor of Australian federalism is towards greater policy uniformity and more consistent administration under the banner of cooperative federalism or, more controversially, through unilateral federal takeover where possible. Yet, as I intend to highlight in this post, recent legislative developments in two areas—same-sex marriage and organised crime—illustrate that Australia’s federal system continues to provide a laboratory for policy experimentation and that federalism’s connection to the protection of liberty demands close, critical scrutiny.

Same-sex marriage

As in the United States, there is a prominent federal dimension to Australia’s ongoing moves to secure legal recognition for same-sex relationships. In 2004, Commonwealth Parliament amended federal marriage legislation to define ‘marriage’ as ‘the union of a man and a woman to the exclusion of all others’ and to prohibit same-sex marriages solemnised in foreign countries from being recognised in Australia. In 2006, the Australian Capital Territory (‘the ACT’) sought to provide equal legal protection for same-sex couples with the introduction of civil unions. It was the first jurisdiction in Australia to introduce a law of this kind. The Commonwealth resisted the move, understanding it to be inconsistent with its prohibition against same-sex marriage. Soon after the law’s enactment, the Commonwealth government instructed the Governor-General to disallow the law, effectively repealing it.

It is worth pausing at this point to explain briefly the Commonwealth’s power to override State and Territory legislation. Under the Australian Constitution, the Commonwealth’s legislative power is limited to specified subject areas, one of which is ‘marriage’. Section 109 of the Constitution provides that ‘[w]hen a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’ Territories are in a more precarious constitutional position. Commonwealth Parliament has power to make laws for the Territories. In 1988, the Commonwealth granted the ACT self-government, establishing a Legislative Assembly with the power ‘to make laws for the peace, order and good government of the Territory’. But this power was qualified. The Governor-General, acting on the advice of the Commonwealth government, was empowered to disallow any Legislative Assembly law within six months of enactment. Prompted in part by the controversy of disallowing the ACT’s civil unions legislation and by a change of federal government, Commonwealth Parliament removed its power of disallowance in 2011, placing Territories in a similar position to States—Commonwealth laws prevail over inconsistent Territory laws.

The ACT’s attempt to introduce civil unions helped prompt a national discussion about the law on same-sex relationships. In 2008, the Commonwealth granted de facto same-sex couples the same rights as de facto opposite-sex couples and today some States and Territories allow the registration of same-sex civil unions. Debate has not, however, stopped there. Same-sex marriage is the new battleground and it also has a prominent federal dimension.

On 22 October 2013, the ACT enacted legislation permitting persons who are not eligible to marry under Commonwealth law to marry in the ACT. The Commonwealth government is once again resisting. Stripped of its disallowance power, it is challenging the ACT’s legislation in the High Court. In an expedited hearing, the case will be argued before the High Court on December 3 and 4. The ACT’s argument will be that its law supplements, but does not frustrate, undermine, modify or replace, the right to marry under federal law—the two can coexist. Defeat for the ACT will set back efforts in the States where bills for the recognition of same-sex marriage have been introduced, but not passed, in New South Wales and Tasmania, leaving campaigners to concentrate on the more difficult task of federal reform.

Organised crime

On 28 September 2013, around twenty members from a motorcycle group ‘stormed’ into a restaurant on the Gold Coast in Queensland. Seven people were assaulted, including four police, and eighteen were arrested. Less than three weeks later, Queensland Parliament passed a package of laws, including the Vicious Lawless Association Disestablishment Act 2013. Under these laws, it is now an offence for a person who is a member, associate member or prospective member of a ‘criminal organisation’ (a) to be knowingly present in public with two or more persons who are also participants in criminal organisations, (b) to enter or attempt to enter a ‘prescribed place’ and (c) to attend or attempt to attend a ‘prescribed event’. The minimum penalty for each offence is six months imprisonment. A criminal organisation, a prescribed place and a prescribed event can be declared by regulation. The legislation declares 26 motorcycle clubs to be criminal organisations.

Many other measures are included in the package of laws. There are mandatory custodial sentences of 15 to 25 years (in addition to the original sentence) for persons who commit certain offences in the course of participating in an association that has as its purpose the commission of these offences. Association is defined broadly, including a group of three or more persons ‘by whatever name called, whether associated formally or informally and whether the group is legal or illegal’. There are also mandatory sentences for failing to answer questions in hearings before the Crime and Misconduct Commission. A separate jail for motorcycle group members is created where inmates’ telephone calls are monitored except for those to lawyers, their mail is opened and read, there are no gym or television facilities and visitors’ contact is restricted to one hour per week.

When Queensland’s Premier described the laws as ‘very tough … the toughest in Australia’, he alluded to the issue’s federal dimension. In recent years, an admixture of policy experimentation and competition has characterised relations between the States and Territories as they vie to enact measures for the suppression of organised crime, especially motorcycle groups, that are as restrictive as, if not more restrictive than, each other. It began in South Australia with the Serious and Organised Crime (Control) Act 2008. Following a violent confrontation between two motorcycle groups at Sydney Airport in 2009 that resulted in the murder of one member, several jurisdictions followed suit: New South Wales’ Crimes (Criminal Organisations Control) Act 2009, Queensland’s Criminal Organisation Act 2009 and the Northern Territory’s Serious Crime Control Act 2009. Not to be left behind, Western Australia enacted the Criminal Organisations Control Act 2012. All these laws employ a combination of asset seizures, restrictions on the freedom to associate and mandatory minimum sentences to control the activities of motorcycle groups. After Queensland’s latest round of laws, another wave of emulation may be about to commence.

As with same-sex marriage, the High Court is implicated in policing the boundaries of acceptable policy experimentation—and the nature of its role has a strong federal dimension. Judicial intervention in this area is not directly related to the protection of rights for Australia is without a judicially enforceable bill of rights (except in the ACT and Victoria). However, Australia’s Constitution provides, according to the High Court, for a separation of judicial powers doctrine at the federal level. The doctrine places certain restrictions on Commonwealth Parliament vis-à-vis federal courts, for example, it cannot vest them with non-judicial powers. Australia’s Constitution is a document that establishes and regulates the federal government. Thus, the doctrine does not apply at the state level. However, beginning in 1996, the High Court has held that State legislatures cannot vest State courts with powers that undermine their institutional integrity. The reason is federalism. As Australia’s Constitution permits Commonwealth Parliament to invest State courts with federal jurisdiction and State courts provide the basis for the High Court’s appellate jurisdiction, the High Court has said that State legislatures must maintain State courts that are suitable for these purposes. In 2010 and 2011, the High Court invalidated aspects of South Australia and New South Wales’ organised crime legislation on this basis. Under these laws, judges or courts were tasked with issuing control orders against members of declared criminal organisations in special proceedings. As these proceedings deviated from the regular judicial process, it was held that they undermined the judiciary’s institutional integrity and were, therefore, invalid. It appears that Queensland’s latest laws will soon be challenged in the High Court on this ground.

Federalism and liberty

Placing the issues of same-sex marriage and organised crime side-by-side raises three questions about the complex relationship between federalism and liberty in Australia. First, do multiple jurisdictions promote democratic deliberation about matters of liberty? On the one hand, the States and Territories have helped invigorate public discussion about legal recognition of same-sex relationships, creating multiple sites for popular engagement and preventing government ossification. The ACT’s actions pushed opponents of same-sex marriage to mount an affirmative case for their position rather than relying on silence and obfuscation to protect the status quo. Experiments with different levels and forms of recognition—non-discrimination, unions, partnerships, marriage—provided interlocutors with tangible policies to debate. On the other hand, Australia’s subnational jurisdictions can be exemplars of poor democratic process. Queensland has a unicameral legislature after the upper house was abolished in 1922. Using its majority in Parliament, Queensland’s government enacted its collection of organised crime laws in three days with little or no public consultation and no legislative committee review despite their significant ramifications for rights. Indeed, they were enacted with such haste that Queensland Parliament had to amend the legislation just days later after an important typographical error was detected and it appears that a second grammatical error has been detected that will also require legislative remedy. While such issues can also arise in a unitary system, federalism creates an additional reason for governments to rush the passage of legislation and to ignore dissent: avoidance of spillover effects. After Queensland enacted its legislation, reports emerged that motorcycle groups were migrating to Western Australia, prompting Western Australia to expedite the implementation of its organised crime legislation. Victoria and South Australia may also be preparing to follow Queensland’s lead. The potential for spillover—an influx of criminal organisations—places pressure on jurisdictions to enact similar legislation without delay and to downplay the concerns of dissentients.

Second, does Australia’s current allocation of powers between the two levels of government create incentives to adopt policy positions that negatively implicate liberty? As Commonwealth power has directly and indirectly expanded over the course of the twentieth century, criminal law is one of the few areas where States and Territories retain a significant degree of autonomy. Consequently, as Gabrielle Appleby and John Williams note, ‘state political leaders have sought to maximise political gain from tough law and order policies’. The latest round of laws illustrates how far some politicians will go to appear ‘tough’ on crime, demonstrating a lack of respect for established constitutional principles and resorting to simplistic and potentially misleading appeals to democratic accountability. Queensland’s Premier dismissed criticism from the legal community that the new laws violate the separation of powers, calling the concept ‘more of an American thing’. He resorted to the argument that it is for the majority of voters to decide whether Parliament unduly infringed rights, stating ‘the laws that were passed recently in Parliament were passed by democratically elected people of this State and in 18 months time, the people of this State get a chance to say, “well we didn’t like those laws” and we can get rid of them’.

Third, should we look to judicial or political solutions to safeguard the boundaries of federalism and to prevent unnecessary restrictions on liberty? Next month the High Court will need to decide whether it will impose a judicial prohibition on policy experimentation in relation to same-sex marriage, forcing debate exclusively to the federal level, or whether it will step out of the arena, allowing the two levels of government to debate both (a) the substantive content of policy proposals and (b) the appropriate forum in which it should be resolved. New South Wales’ Premier illustrated the distinction between the two questions when he recently resisted the introduction of same-sex marriage laws in State Parliament, claiming that, although he is personally in favour of same-sex marriage, the issue requires national consistency and thus resolution by the Commonwealth. A further complication in this area is that different issues produce different effects depending on whether the federal dispute has horizontal or vertical dimensions—or perhaps both. Invalidation of the ACT’s legislation would not put an end to efforts to recognise same-sex marriage, but instead convert it into a national debate. Invalidation of Queensland’s legislation, by contrast, may prompt a further round of policy experimentation at the State and Territory level. Indeed, invalidation of aspects of South Australia and New South Wales’ organised crime legislation did not put an end to legislative reform, but instead prompted more creative ways of restricting the freedom of association of certain groups while remaining within constitutional limits. It seems, therefore, that reports of federalism’s death are greatly exaggerated.

Scott Stephenson is a J.S.D. Candidate and Tutor in Law at Yale University

Suggested citation: S. Stephenson, ‘Federalism and Liberty in Australia Through the Lenses of Same-Sex Marriage and Organised Crime’  UK Const. L. Blog (13th November 2013) (available at http://ukconstitutionallaw.org)

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Paul Kildea: Reforming Australia’s federation: The People Lead the Way

As another fractious year in politics comes to an end, Griffith University has released the results of its third biennial survey on how Australians view their federal system. It reveals a public that is losing faith in both the current structure of the federation and the ability of different tiers of government to work together to solve national problems. But the poll also reveals a public appetite for reform to which political leaders should pay close attention.

The survey finds that 38 per cent of Australians believe that the current three-tiered federal system – made up of federal (national), state and local government – does not work well. This is up from 30 per cent of respondents when the poll was first taken in 2008.

State governments are seen to be the worst performers. While their rating has improved slightly since 2010, it is apparent that the recent move to conservative rule in Victoria, New South Wales and Queensland has not altered many people’s dim view of state government. Indeed, a mere 14 per cent of Queensland residents view state government as the most effective level – just months after the Liberal National Party’s landslide victory in the March election.

Local government is now rated as the most effective level. This is in large part due to a massive collapse of faith in the national level of government, which until this year had been rated as the most effective level by a handsome margin. Four years ago it was viewed as the best performer by half of Australians, but fewer than a third of people (29 per cent) now hold this view. The deep unpopularity of both federal leaders – Prime Minister Julia Gillard and Opposition Leader Tony Abbott – and the fierce partisanship of the hung parliament (elected in August 2010) have no doubt played a part here.

But if many Australians are unhappy with individual levels of government, they also feel that the federal system is suffering due to a lack of cooperation between the federal, state and local tiers. Australians overwhelmingly see intergovernmental collaboration as a desirable feature of a federal system – more than 90 per cent have said as much in successive surveys. But fewer and fewer people think that the system actually delivers on this – only a third feel that it does collaboration well, down eight points since 2008. Perhaps more worryingly, two-thirds of Australians feel that the federal and state governments are not working well together. On this measure, Australians are less satisfied with their federal system than their counterparts in the United States, Canada and Germany.

This last finding is concerning because intergovernmental cooperation is arguably more important in the Australian federal system than in these other federations. This is because the division of legislative and financial powers, while favouring the central government, gives rise to a high degree of overlap between the federal and state governments. As a result, some of Australia’s most pressing problems – whether in health, education, water management, disability or Indigenous wellbeing – cannot be addressed in the absence of effective collaboration across different tiers of government.

The last year has seen a number of public spats between Canberra and the states that have no doubt shaped people’s views about the amount of cooperation taking place in the federation. Disagreements about the collection of state mining royalties, the distribution of consumption tax (GST) revenue and the funding of major disability and education initiatives have all escalated over the last several months. These conflicts have been sharpened by partisan divisions – while government at the national level is held by Labor, Australia’s four largest states are now governed by conservative Coalition parties.

But it would be a mistake to dismiss the public’s dissatisfaction with federal-state collaboration as a superficial response to passing quarrels. The better view is that public opinion is responding to very real problems in Australia’s federal system that prevent effective cooperation occurring – and that the time has come to address them.

For some years now there has been a steady stream of reports and commentary pointing to the need to strengthen intergovernmental institutions so that they better foster federal-state collaboration. In particular, there is an emerging consensus on the need to reform the Council of Australian Governments (COAG). Despite being the hub of intergovernmental relations in Australia for over 20 years, COAG still has no formal legal status and remains in the grip of the Prime Minister – meaning that is vulnerable to being ignored when it does not suit the federal government.

Building institutional structures through which different levels of government can cooperate is not only an Australian problem. Similar challenges arise in Canada where its First Ministers’ Conference also lacks a permanent institutional base. Reform ideas floated in both Canada and Australia range from forging political agreements on improved processes, through to constitutional recognition of key intergovernmental bodies. The South African constitution goes some way towards the latter by recognising several principles of ‘cooperative government and intergovernmental relations’. The need for constitutional change along similar lines has been discussed in Australia, particularly in light of a view expressed in the High Court that ‘cooperative federalism’ is no more than a ‘political slogan’ with no part to play in constitutional interpretation.

Giving COAG formal legal status, with improved processes, would go a long way to improving federal-state cooperation. But for many members of the public, the Australian federation needs to undergo more fundamental reform. Indeed, a full two-thirds of Australians would like to see the federal system being structurally different in 20 years’ time, with the strongest preference being for a stronger system of regional government.

With their stomach for major federal reform, Australians are way out of ahead of their political representatives. In recent years governments have shown themselves reluctant to consider minor changes to cooperative arrangements, let alone the much larger task of structural reform.

It is time for the political elites to start taking seriously the views of Australians on the shape of their federation. As the lead researcher on the federalism survey, AJ Brown, wrote last week, national and state leaders need ‘to show more tangible commitment to charting the future of the federal system’. And with a federal election looming next year, there is no better time for them to start.

Dr Paul Kildea is a Lecturer in the Faculty of Law at the University of New South Wales, and Referendums Project Director at the Gilbert + Tobin Centre of Public Law

Suggested citation: P. Kildea, ‘Reforming Australia’s federation: The People Lead the Way’ UK Const. L. Blog (29th November 2012) (available at http://ukconstitutionallaw.org).

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Paul Daly: Clinging to Gun Data

On the afternoon of December 6, 1989, Marc Lépine entered the École Polytechnique in Montréal. Over the course of about 30 minutes, Lépine prowled the corridors, classrooms and cafeteria, rifle in hand. He shot and killed fourteen women before turning his gun on himself. Fourteen others were wounded.

That horrific event still has significant political salience in the province of Québec. It forms something of a backdrop against which to consider a dispute between Québec and Canada’s federal government. The dispute centres on whether information about rifles and other long-guns should be stored in a database which can be accessed by the authorities for law-enforcement purposes.

Nobody seriously questions the requirement that gun owners be licensed. Nor does anybody seriously question the registration – or outright prohibition – of handguns and automatic weapons. The current dispute is about one thing only: the registration of long guns.

Registration of these weapons by the federal authorities began only in the late 1990s, under the Firearms Act. That legislation established an interlocking scheme: both federal and provincial officials contributed to the scheme’s operation. An agreement between the federal and provincial governments regulated how data was collected, used and accessed.

Last year, Stephen Harper’s Conservatives were returned to the federal Parliament with a majority. One of the planks of their platform was the abolition of the long-gun registry. Its critics decried the registry as ineffective in combating crime and effective only at exposing law-abiding citizens to criminal sanctions. Defenders of the registry countered that it is used by police officers on a daily basis. And in Québec the lingering psychic effects of the Polytechnique massacre mean that stringent registration requirements have significant symbolic value.

Earlier this year, Bill C-19 was introduced in the federal Parliament. It received Royal Assent in April. The legislation, entitled An Act to amend the Criminal Code and the Firearms Act, prospectively abolished the requirement to register long guns. More dramatically, section 29 provided for the destruction “as soon as feasible” of all the data that had been collected during the operation of the long-gun registry.

The Québec government sprang into action, attacking the constitutionality of the federal legislation, with the ultimate goal of establishing its own long-gun registry. Shortly after passage of the legislation, it successfully invoked the inherent jurisdiction of the Québec superior court and obtained an injunction preventing the destruction of the data. After a subsequent hearing on the merits, section 29 was held to be unconstitutional, but only as it applied to data from Québec: Québec (Procureur général) c. Canada (Procureur général), 2012 QCCS 1734.

Meanwhile, in Ontario, a charitable organization unsuccessfully sought a more radical injunction compelling the federal government to maintain the long-gun registry: Barbra Schlifer Commemorative Clinic v. HMQ Canada, 2012 ONSC 5271.

My focus here will be on the latter two decisions. Of those, the Québec decision is of greater importance: the federal government has already appealed to the Québec Court of Appeal. Review by the Supreme Court of Canada is a strong possibility.

One final preliminary remark is necessary. Canada is a federation. Jurisdiction is regulated by the provisions of the Constitution Act, 1867, especially sections 91 and 92. Section 91 sets out the powers of the federal government: trade and commerce, creation of criminal laws, and banking are some representative examples. Those of the provinces are set out in section 92: for example, taxation within the province, solemnization of marriage and – broadest of all – property and civil rights in the province.

Guns fall comfortably within the very broad understanding of property and civil rights in the province. From where, then, did the federal government get the authority to establish the long-gun registry in the first place? In 2000, the Supreme Court of Canada upheld the constitutionality of the Firearms Act on the basis that it was a legitimate exercise of the federal government’s power to pass criminal laws. Regulation of firearms was said to have a “double aspect”. Accordingly, it was open to either the federal or provincial authorities to enact legislation, under the criminal law and property and civil rights jurisdictions respectively.

For the Québec and Ontario courts, the questions raised by the data-destroying legislation were novel, revolving around the federal government’s power to decriminalize some types of behavior (i.e., not registering one’s weapon) and to undo unilaterally a registry which had been created, in reliance on the double aspect doctrine, in cooperation with the provinces.

In Québec (Procureur général) c. Canada (Procureur général), Québec claimed that the federal government had no jurisdiction to destroy the long-gun registry data. The federal government’s response was straightforward: just as it could invoke the criminal law power to establish the long-gun registry in the first place, so too could it invoke the criminal law power to repeal the existing law.

Unfortunately for the federal government, Conservative politicians had crowed rather too loudly about the destruction of the long-gun registry. Blanchard J. seized on remarks which suggested that the whole purpose of Bill C-19 was to prevent the provinces from creating their own long-gun registries. Given that gun registration clearly falls within provincial jurisdiction over property and civil rights, these remarks revealed a naked attempt on the part of the federal government to interfere in the governance of the provinces. This rendered the purported exercise of the criminal law power ultra vires the federal government.

Moreover, Blanchard J. held that the unilateral destruction of the long-gun registry data violated the principle of cooperative federalism. This principle aims at harmonious coexistence between the federal and provincial governments, and indeed underpins the double aspect doctrine that allowed the federal government to create the long-gun registry in the first place. For one level of government to deliberately stand in the way of another to prevent it from legislating within its area of competence was to violate the principle of cooperative federalism.

Finally, Blanchard J. considered the question of ownership of the long-gun registry data. Striking down the provision authorizing the destruction of the existing data would have represented merely a symbolic victory for Québec. To establish its own long-gun registry, it needed in addition an order compelling the federal government to transfer the data to it. Blanchard J. concluded that the agreement between the federal government and the provinces did not identify any “owner” of the data. However, he held that because of its contribution to the collection of the data, Québec had as much of an interest in the data as any other entity. Accordingly, Blanchard J. ordered the federal government to transmit them to Québec.

Meanwhile, in Ontario, the Barbra Schlifer Commemorative Clinic, a body set up in memory of an Osgoode Hall law student murdered in the 1980s, did not fare so well in Barbra Schlifer Commemorative Clinic v. HMQ Canada.

With the other provinces shying away from asserting claims to ownership of the long-gun registry data, the Clinic’s claim was inevitably different in nature. It was also weaker.

The Clinic relied on the Canadian Charter of Rights and Freedoms: section 7, which protects life, liberty and security of the person, and section 15, which guarantees equal treatment. The Clinic argued that the abolition of the long-gun registry imperiled bodily integrity, and in a way that would disproportionately impact on women, because long-guns are instruments of domestic violence.

Just as Québec had initially done, the Clinic sought an injunction to prevent the federal government from destroying the data. This fell to be analyzed under the familiar American Cyanamid principles – serious case, irreparable harm and balance of convenience – which apply universally in Canada. The federal government countered with a motion to strike the Clinic’s claim.

The federal government successfully characterized the logical conclusion of the Clinic’s argument as the imposition of a positive obligation to maintain a long-gun registry. This was an entirely novel argument. If the Clinic were to demonstrate that prospective abolition of the long-gun registry breached sections 7 and 15 of the Charter, the federal government would have to legislate for the registration of long guns. At such an early stage of the litigation, Brown J. was reluctant to strike the Clinic’s claim entirely. Nevertheless, the federal government’s characterization of the Clinic’s claim influenced Brown J.’s decision not to grant an injunction.

After a thorough analysis of the Clinic’s arguments and the statistical evidence adduced in support, Brown J. held that the Clinic had raised a serious question to be tried, but only just: the statistical evidence it could muster was weak. Domestic homicides have been, on Brown J.’s reading of the statistics, on a long decline to which the long-gun registry seemed not to have contributed. The weakness of the statistical evidence also tended to suggest that no irreparable harm would be suffered were the injunction to be denied.

Brown J. also noted that, if the Clinic succeeded on the merits in imposing a positive obligation to maintain a long-gun registry, the result would be a financial burden on the taxpayer rather than the infliction of irreparable harm.

Finally, for the purposes of the balance of convenience analysis, the Clinic could not demonstrate any public interest that would be furthered by granting the injunction. This conclusion may seem odd, but Brown J. noted that legislation is presumed to promote the public interest for the purposes of the balance of convenience analysis. Critically, unlike Québec, the Clinic could not demonstrate any ownership interest in the data, and it did not itself have any authority to create or recreate a long-gun registry.

One nuance that can be perceived in Blanchard J.’s judgment does not appear to have influenced his Ontario counterpart, Brown J. There is arguably a distinction between imposing a prospective positive obligation to criminalize acts or omissions and imposing a restriction on destroying existing data. Indeed, a restriction on destroying existing data can stand independently of a prospective positive obligation. The significance of the distinction is that if the present federal government were prevented from destroying the existing data, it would leave the door open for a future federal government of a different ideological bent to repatriate the data to the provinces or to reanimate the long-gun registry. This might have been enough to ground a sufficient ownership interest in the existing data. Since these decisions were handed down, however, the October 1 deadline to commence destruction of the data has passed. The data having been destroyed, the point is now moot.

We have thus reached the anomalous position that all of the long-gun registry data has been deleted, except for that relating to the province of Québec. This data remains in the hands of the federal government. Its ultimate fate will lie in the hands of the Québec Court of Appeal and Supreme Court of Canada.

Paul Daly is a member of the Faculty of Law at the Université de Montréal. He can be reached at paul.daly@umontreal.ca. He blogs at administrativelawmatters.blogspot.com.

Suggested citation: P. Daly, ‘Clinging to Gun Data’, UK Const. L. Blog (22nd November 2012) (available at http://ukconstitutionallaw.org).

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Nicholas Aroney: Federal Models for a U.K. Constitution?

When the referendum really comes, the sovereign Parliament must go.  But whether for good or for evil, the referendum, in principle at least, seems to be coming.

– C. H. McIlwain, The High Court of Parliament and Its Supremacy (1910), xv.

[N]ow we are witnessing something that would have seemed almost impossible a few years ago, a serious discussion taking place in the United Kingdom about the possibility, and the desirability, of the introduction of a federal, or ‘quasi-federal’ system there.

–  M. J. C. Vile, ‘Federal theory and the “New Federalism”’ (1977) 12 Politics 1.

Recent discussion about the possibility of the United Kingdom adopting a written constitution and forming itself into a federal state is not as new as it may seem.  Certainly, the discussion has raised more questions than it has answered.  For present purposes, we may start with the proposition that a federal state exists where there is (1) a binding constitution which (2) provides for representation of the peoples of the regions and localities of the federation within a federal parliament, (3) distributes power among central and regional governments, and (4) cannot itself be altered unilaterally by either the federal or regional parliaments.  As such, there is still a long distance between the present arrangement in the U.K. and a fully-orbed federal state.  Even if the current debate about the grounds, scope and effect of a Scottish independence referendum are resolved, and if popular and political will was to consolidate in favour of some kind of federal state (‘devo-max’ to the nth degree), many more questions about how to create a federal constitution would remain, centred on the four characteristics of a federal state noted above.

The first of these large questions concerns how a binding and legally entrenched constitution could come into being in the U.K., noting that U.K. law still treats the Parliament as the highest authority in the land and the institution that has the most plausible capacity to initiate, if not consummate, a constitutional change of such magnitude.  A second big question concerns precisely how representation of the constituent regions and localities would be instituted, noting among other things the problem of bifurcating the present Parliament at Westminster into two institutions, a federal legislature for the United Kingdom and a regional legislature for England, alongside the existing legislatures of Scotland, Wales and Northern Ireland.  The third question concerns the breadth of power that would to be devolved to the regional legislatures and whether it is feasible for the current asymmetry to be replaced by a more symmetrical devolution of powers.  And, fourthly, there is the very important question about what procedures would be laid down for the amendment of the constitution in the future, a question that cannot be separated from the first one, about how the constitution is to be established as legally binding upon the legislatures.

Just as the constitutional experience of many former British colonies has proven instructive for the analysis of the powers of the Parliament following the European Communities Act, the Human Rights Act and the recent European Union Act, so the experience of former colonies that have formed themselves into federations suggests several different ways in which a federal constitution for the U.K. might be designed and instituted.  In this short comment, I want to suggest that there are at least three basic ways of proceeding, exemplified in the diverse means by which federal constitutions were established in the United States, Canada and Australia respectively.  As it turns out, there are already many interesting parallels between the experiences of these three countries and current developments in the U.K., especially the potentially very significant referendum on Scottish independence presently being proposed (see Grégoire Webber’s recent contribution on the Canadian parallels), not to mention the similarly contentious referendum requirement laid down recently in the European Union Act.

Revolution was the path that the United States took, but in that country there continues a very important but still unresolved debate over whether, when the revolutionary claim to autochthony was effectively made, independence was secured severally by the individual American States or jointly by the States acting together as the Second Continental Congress in 1776 (cf the views of Jack Rakove, Akhil Amar and Henry Monaghan, among many others, on this point).  While many may say that the controversy has been made irrelevant by the outcome of the Civil War, the issue goes very significantly to the nature, design and interpretation of the U.S. Constitution (as US Term Limits v Thornton demonstrated).  The view that I think is best supported by the evidence is that assertions of independence and of constitutive authority were exercised both severally and jointly, but in a way that meant that no State would be bound by either the Articles of Confederation (ratified 1777-81) or the U.S. Constitution (ratified 1787-9) unless it individually ratified the proposed arrangement.  This was clearly the case for the Articles of Confederation, but it was also the case for the Constitution, even though the provision in the Constitution for ratification by only nine States meant repudiating the requirement of unanimity for the amendment of the Articles (see Articles of Confederation, Art. XIII; U.S. Constitution, Art. VII).  This fact of separate ratification by each State was indeed emphasised by James Madison in Federalist No. 39 when he said that the ‘assent and ratification’ of the Constitution, although in the name of ‘the people of America’, was given by the people ‘not as individuals composing one entire nation, but as composing the distinct and independent States’.  Even Chief Justice John Marshall, who is famous for asserting that the American Constitution ‘derives its whole authority’ from ‘the people’, admitted that the people when ratifying the Constitution had ‘assembled in their several States’, noting that ‘[n]o political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass.’

Now, it is indeed quite unforeseeable at the present time that a federal constitution for Britain will emerge on the basis of a series of claims to revolutionary autochthony by the constituent people, or peoples, of the United Kingdom.  But the prospect of a Scottish referendum on independence as the basis upon which a new devo-max settlement might be negotiated, suggests that an analogy to the United States might not be altogether out of place.  And here, the making of the U.S. Constitution remains potentially relevant in at least one important respect, for it illustrates how the design of a federal constitution is related to the authority upon which it is conceived to be based.  As Madison pointed out, although the U.S. Constitution was thoroughly ‘federal’ in its foundation, the representative institutions, distribution of powers, direct effect of federal law, and means of amendment of the Constitution displayed both ‘federal’ and ‘national’ features.  To take the most obvious example, the U.S. Senate was chosen by the legislatures of the States on the basis of equality among the States (it is now directly elected by the voters in each State, but still on the basis of State equality), the House of Representatives was, and still is, elected by voters in a manner that is essentially proportional to each State’s population, and the President was and is elected through an electoral college which allocates to each State a number of votes corresponding to its total representation in both houses of Congress.  Similarly, the U.S. Constitution can only be amended through the consent of special majorities of the State legislatures or in conventions held in each State.  In both ‘representation’ and ‘amendment’, the federal principle is expressed in the special role and status of the States, while the national principle is expressed in the movement from unanimity among the States towards majority rule at a state and national level. Moreover, throughout, democracy is conceived essentially as representative democracy, even at the supreme constitutive moments of ratifying the Constitution and making formal amendments to it.

This much is fairly rudimentary, but it is the logic of the constitutional design that is important, for the prime questions to be addressed in constructing a federal system concern the many different ways in which Madison’s ‘federal’ and ‘national’ principles can be combined.  Other federal countries offer models of different combinations of these principles, but a tendency to move from unanimity among the constituent states to majority rule, and from control by the state governments towards popular involvement of some kind, is consistent across all federal systems that come into being on the basis of a negotiated agreement among several constituent states.  Some integrative systems go further in these directions than others, and all of them express the principles in specifically different ways, but the underlying principles are the same.

This brings us to the Canadian and Australian examples.  These two federal systems did not come into being through revolutionary assertions of autochthony.  Lawmakers in both instances were careful to ensure complete legal continuity with the then accepted authority of the British Parliament to legislate for the colonies.  But the Canadian and Australian ways of coming together and constructing a federation were significantly different.  The Canadian federation was designed in a manner that was consciously intended to avoid the supposed tendencies of the American system to disunity and dissolution, expressed most tragically in the Civil War.  Rather than begin with putatively sovereign states bargaining on the basis of a fundamental constitutive equality, the Canadian system was understood to rest, ultimately, on the authority of a sovereign Imperial Parliament which would through the British North America Act 1867 (BNAA) unite Ontario, Quebec and the Maritime provinces into a suitable form of union, modelled on the British system of parliamentary responsible government.  Accordingly, while political representatives of the Canadian colonies did participate in conferences in 1864 and 1866 at which the terms and structure of a proposed union were agreed in the form of a series of published resolutions, the colonies did not participate as equals (the Maritime provinces were treated, constitutionally, as a unit), and they did not presume to dictate to the Parliament the exact language of the statute under which they would be united.  Unlike the Americans, the Canadians thus wished to create a relatively unified federation, under which the legislative powers of the general government (the Dominion of Canada) would be plenary and the powers of the Provinces would be limited to certain specified topics – a significant departure from the American model, where the original and plenary powers of the constituent States were the very presupposition of the federal system and the powers of the United States Congress were therefore limited and specified.  The Canadian Provinces were thus conceived to be creatures of the BNAA (indeed, most of them still don’t have ‘constitutions’ of their own).  The provincial governments were presided over by Lieutenant Governors and ‘represented’ by Senators appointed by a Governor-General advised by the government of the Dominion of Canada as a whole.  Indeed, the very nomenclature was significant: Provinces, not States; Lieutenant Governors, not State Governors, and so on.  Moreover, the constitutive dependence of Canada on the Imperial Parliament was preserved in the fact that no local power of constitutional amendment was included in the BNAA.  The logic of Parliamentary sovereignty thus shaped the Canadian constitution of 1867 through and through.  In its ‘foundation’, the system was highly unitary, with the exception that the Provinces did negotiate the general nature of the system that would be adopted (but not as equals), and these unitary and unequal foundations shaped the fundamentals of the BNAA in terms of its distribution of powers, representative institutions, and lack of an amending provision.

Now it is of course very true that constitutional politics in Canada has seen the country shift very dramatically in the direction of much greater autonomy for the Provinces.  This due to several factors: most notably, the pressures of linguistic and cultural diversity expressed in Francophone Quebec and calls for secession; the addition of several new Provinces to the federation by way of carefully negotiated agreements between the parties; and the unintended consequence that specifying the legislative powers of the provinces in the BNAA provided the Privy Council and Supreme Court with a textual ground upon which to limit expansionist interpretations of federal power.  But in the 1890s, when the Australian colonies were contemplating federation, the Canadian model appeared much too Imperial and centralist for politicians and a voting public that had become quite accustomed to exercising substantial powers of local self-government and constitutional self-determination (cf Colonial Laws Validity Act 1865).  The Australians wanted to follow the American model, and they did everything they could to reproduce an American-style federation subject only to the dictates of a continuing (but oftentimes grudging) willingness to acknowledge the authority of the British Parliament to legislate for Australia.  And it was in this respect that the referendum proved very significant indeed.

Following the American example, Australian politicians generally refused and resisted British encouragements towards federation until they themselves, as elected representatives of the colonies, thought that it was expedient and right to do so.  Accordingly, federation did not proceed in Australia until the Premiers of each colony supported it.  With this support, secured at a conference held in 1890, Enabling Acts were passed in each of the colonial Parliaments which set up a U.S.-style federal convention at which a draft Constitution Bill was to be debated, drafted and submitted to each of the colonial legislatures for their approval.  Such a convention, at which each colonial Parliament was necessarily equally represented, was duly held in 1891.  And the draft bill that emerged was inspired deeply by the American example.  The existence, powers and mutual independence of the constituent colony-states was taken as a presupposition of the whole system rather than as a product of it, and it was thought quite improper to make any provision at all for the governing institutions of the States within the federal constitution.  It was enough that the State constitutions should ‘continue’ as they had, subject only to the conferral of certain limited powers on the federal institutions of government.  Thus, the limited and specific distribution of legislative powers to the federal Parliament presupposed the original and plenary legislative powers of the colonial Parliaments, and these same Parliaments were also equally represented in the federal Senate.  Moreover, federal executive authority, although formally vested in the Crown, was to be exercised by a Governor-General acting on the advice of a Prime Minister and Cabinet responsible to a Parliament in which the Senate had equal power with the House of Representatives except in relation to financial bills; and even here the power of the Senate to refuse to pass supply was conceded, making the government potentially responsible to both houses (as famously occurred in 1975, leading to the controversial dismissal of the Whitlam government by Governor-General Kerr).  And, finally, again influenced by the American example, but also following the particular federating logic of the Australian system, provision was made for the amendment of the constitution by specially elected conventions held in each constituent state.

As it turned out, the Constitution Bill of 1891 did not secure the support of the colonial governments of the day, and federation languished for another four years, until a second convention was proposed in 1895.  This convention was duly held in 1897-8 and a second Constitution Bill was drafted, approved and finally enacted into law by the British Parliament in 1900.  What distinguished this constitution from the earlier draft was a slightly different federating logic.  This time it was thought important for the federal convention itself to be directly elected by the voters in each colony, and for the draft Constitution Bill prepared by the convention to be submitted to the colonial legislatures for their comments, subsequently revised at a second sitting of the convention, next submitted to the voters in referendums held in each colony and, only to the extent thus approved, finally sent to Westminster for enactment into law.  The principles embodied in this constitutive process dictated in the minds of the Constitution’s drafters that while the principles of unanimity and equality among the colony-states must be preserved, the principle of direct, popular, constituent authority should also be expressed throughout the system, particularly in the direct election of the Senate by the voters in each State, and in the provision for amendment of the Constitution by a referendum at which a majority of the voters in a majority of States would be needed, in addition to the support of a majority of voters in the nation as a whole.

In this, and in numerous other more specific ways, the Australian founders gave effect to a particular form of federating logic, similar to the American (and the Swiss) federations, and somewhat different from the Canadian.  In particular, through the referendum, the constitutional logic of the Australian federal system appealed to a kind of political sovereignty in the plurality of peoples of the constituent States as a means of asserting as much autochthony as was possible without altogether repudiating the authority of the British Parliament to legislate for Australia.  Indeed, one of the powers conferred upon the Australian Parliament, acting (significantly) with the consent of all of the State Parliaments concerned, was a ‘catch-all’ or ‘residuary’ capacity to exercise the legislative powers of the British Parliament with respect to Australia (see Australian Constitution, s.51 (xxxviii)).  As Andrew Inglis Clark, one of Australia’s leading constitutional lawyers, said at the time: ‘[the draftsmen] knew what they were doing.  …  They told the Convention what they were doing, and it agreed with them.  …  They did not hold anything back.  They faced the position that they were going in for absolute legislative independence for Australia as far as it could possibly exist consistent with the power of the Imperial Parliament to legislate for the whole Empire when it chose’.

In the 1980s, the constitutional ties between the British Parliament and Australia and Canada were decisively brought to an end.  But within Australia at least, opinions about precisely when constitutional independence effectively occurred, and what it has amounted to, have turned, in part, on views about the referendum – both as the means by which the federal Constitution was first approved by the voters, and as the only regular means by which it can formally and legitimately be amended in the future.  The statutory confirmation of Australia’s constitutional independence from the U.K. in 1986 was in fact secured in two separate Australia Acts, one enacted by the British Parliament following Australia’s request and consent pursuant to the Statute of Westminster, the other enacted by the Australian Parliament following the consent of the State legislatures pursuant to s. 51(xxxviii) of the Constitution.  Which of these statutes is the actually effective one, and by what authority the Australian Constitution is now binding, have been questions that have intrigued constitutional lawyers in Australia ever since, and in the ensuing discussions, the existence of the referendum has played a central conceptual and normative role.

It is exactly in this sense that the use of referendums in the United Kingdom has the potential to be of very great significance.  The referendum, even if only used as an ‘indicative’ device, has the capacity to be much more than a means by which the popular will is ascertained.  Whether it will in fact do so depends on numerous political and legal factors.  The referenda that have accompanied the current devolution arrangements have not led to such a conclusion, of course, but that is a function of the limited nature of devolution itself.  The proposition asserted by the Scottish Parliament that it has the power to define and hold a referendum of the Scottish people on the question of independence, if it is upheld, has the potential to be interpreted not simply as an appeal to public opinion, but as an appeal to an alternative basis of ‘sovereignty’, in much the same way that the referendum has functioned in the Australian debate.  For, as the Australian experience shows, even if independence (or devo-max, or a federal system) is formally established by an Act of the Parliament, the existence of a referendum initiated by local authority can be interpreted as the basis upon which the whole system rests, permanently limiting, or even displacing, the authority of the Parliament.  To be sure, such a fundamental realignment will only occur if it has fairly general support among the political and legal branches of government, but it can happen.  And the fact that the ultimate grounds of the Australian and Canadian federal systems are still debated shows that these things can take a long time to work themselves out.

In any case, many steps would need to be taken before anything approaching a federal state in the contemporary Australian or Canadian senses could be said to have developed in the U.K.  And yet, there are several respects in which the current scheme of devolution is not all that far removed from the Canadian system as it existed in the second half of the nineteenth century.  While the details of both systems were to an extent negotiated between the parties, each scheme rested (or still rests) on British parliamentary enactment.  The powers of the centre also appear in both instances to be original and plenary, while the powers of the regions are conferred from the ‘centre’, or from ‘above’.  And both systems have been asymmetrical in respect of the powers devolved and/or the degree of regional representation in the central legislature.  Even the development of the Sewel Convention and various constitutional concordats between Westminster and Holyrood recalls the way in which the fundamentals of the Canadian system have evolved through intergovernmental negotiations and constitutional agreements in a way and to extent that simply has not occurred in Australia.  Moreover, the legal capacity to make ‘constitutional’ changes to the scheme in both the U.K. and Canada rests, or once upon a time rested, with the British Parliament.

What nonetheless distinguishes the U.K. from mainstream federal systems is the extent of the powers devolved, the way in which those powers are conferred and the grounds upon which they are conferred.  This is because the logic of devolution is fundamentally different.  Devolution works as a grant from a superior legislature to formally subordinate ones.  The Scotland Act 1998 thus affirms the continuing legal authority of the Parliament at Westminster to legislate for Scotland generally and confers on the Scottish Parliament what are in principle subordinate and limited powers.  However, contrary to the scheme envisaged by the Scotland Act of 1978, the Act of 1998 confers general legislative power subject to a (long) list of specified reservations.  Such a scheme presents questions of interpretation that are intriguingly different from those presented by either the Canadian or Australian federal systems, because in Canada the powers of the Provinces are limited to specific topics in a manner similar to that envisaged for Scotland in 1978, whereas in Australia, like the United States, the powers of the States are treated as original and plenary and the powers of the federation specified and limited.  Interesting, the majority of the U.K. Supreme Court in Martin and Miller v Lord Advocate, following a line of Privy Council decisions arising out of Canada, Ireland, and India, seems to have adopted a ‘pith and substance’ theory of characterisation, an approach which tends to open up consideration of the scope of legislative power distributed to both levels of government, instead of focussing attention on whether, simply and literally, a particular enactment can be characterised as having a minimally sufficient connection with a conferred competence.  This marks the British and Canadian approaches off from those which have shaped Australian and American jurisprudence, where the courts have tended to interpret the specific and formally limited powers conferred upon the federation in the widest terms possible and have found sufficient connections to federal heads of power in a manner quite contrary to the framer’s intentions and expectations.  And yet, even these jurisdictions, there have been strong dissenting voices.  Similarly, the highly complex constitutional structure established by the devolution statutes is capable of radically different interpretations based, ultimately, on competing conceptions of the U.K., as the divergent judgments in Martin and Miller intriguingly demonstrate.  Indeed, whether a purposive, ‘pith and substance’ approach will continue to hold in relation to the Scottish Parliament’s asserted power to define and hold the referendum is an interesting question which approaches a kind of petitio principii.  This is because the requisite connection between a Scottish Act and a reserved matter depends on the purpose and practical effect of the law, and such purpose and effect, it seems from Martin and Miller, must in some sense be ‘legal’ and not merely ‘political’; but a Holyrood enactment which authorised a referendum on Scottish independence would only have the effect of legally authorising the holding of the referendum, and would have no legal effect on the existence or terms of the Union – that is, unless one accepts the theory that such a Holyrood-initiated referendum, if answered in the affirmative, would be the expression of the legally-effective sovereign will of the Scottish people to separate from the U.K.  Thus, absurdly, a Holyrood-initiated referendum is legal if it is of no legal effect, and illegal if it has a legal effect.  This is what happens when we play logical games with Austinian sovereignty!  The established federal systems have had to learn to be very careful with such volatile substances.  Most political scientists today say that sovereignty – of either the states or the union – is simply the wrong way to think about federalism.

This brings us, finally, to the identity of the U.K. Parliament as both ‘central’ legislature and as ‘sovereign’ legislature – a point of profound difference from the Canadian, let alone the Australian and American, systems.  This is not quite the same thing as the ‘West Lothian’ problem, although the fact that non-English representatives vote on matters concerning England within the Westminster Parliament – ie, the corollary of the fact that England has no legislature of its own – is one of the consequences of the dual nature of the Parliament and the asymmetrical structure of the U.K. system.  Interestingly, the two functions fused within the one institution (‘central’ legislature and ‘sovereign’ legislature) makes the U.K. look more like what the Germans are accustomed to calling a zweigliedrig or two-tier system, rather than a dreigliedrig or three-tier system, noting that the former conception entails a highly centralised federal system, in which the ‘states’ are subordinate to the ‘federal’ level of government, rather than both the ‘states’ and the ‘federation’ being equally subject to the order of the ‘federal state’ as a whole, as defined by the constitution.  It is not necessary to buy into the metaphysics of German state-theory to see the point.  For the U.K. to become more like a federal state in the dreigliedrig sense, a way to separate the ‘central’ legislature and ‘sovereignty’ functions would have to be found, and the formation of a written British Constitution, resting on the authority of the peoples of the U.K., is one way in which this might be achieved.

In drawing attention to all of this – about the four large questions that would have to be addressed if the United Kingdom were to become a federal state, with comments along the way about the nature of devolution and the question of the referendum – I am conscious that this is all a matter of very lively political debate, and it is not my intention to take sides (in this short piece, at least!).  But I suggest that the American, Canadian and Australian examples (and many other ‘federal’ models besides) can at least help us think through what U.K. devolution is, what it is not, and what it might become.  And because a similar analysis can be undertaken of the practice of many of the member states of the European Union to make ratification of European treaties subject to referendum approval (including the U.K., especially since the European Union Act), such comparisons may also shed light on what the troubled European Union is and what it also might yet become.

Nicholas Aroney is Professor of Constitutional Law, The University of Queensland and Visitor, Centre for European Legal Studies, Cambridge University.

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