Brexit and the UK’s Federalism Problem

Brendan McKee discusses the merits of a future federal Britain and how its system of government could have avoided the massive debacle of Brexit. Brendan is a graduate of the University of Edinburgh with a particular passion for nationalist politics. His work focuses on unpacking the complexities of current affairs and expand the political conversation

Every day seems to bring a new Brexit related disaster, a fact that is completely unsurprising on close inspection. After all, the Brexit vote was won by a relatively slim margin and those politicians who backed Brexit seem to have been woefully unprepared for victory. This latter point seems to be something which continues to be true to this day, with Westminster’s Brexit antics fixed in the headlines thanks to the many political twists, turns, and setbacks. Mostly setbacks. All the while the European Union has grown increasingly impatient, doing nothing to hide their frustration that a state would stage a vote to leave without preparing any plans for what would happen if that vote succeeded. All of these issues seem easily avoidable as simply planning for all contingencies would likely have helped Britain avoid many of the pitfalls it has since found itself in, yet I would argue that, thanks to the UK’s institutional arrangement, many of the problems were inevitable.

It was never going to be easy

So why was it inevitable? Well, as mentioned before, the Brexit side won on a fairly slim majority, a mere 52% of the vote. Such a majority is likely too small to allow something like Brexit to occur smoothly, as the frustrated 48% who voted to remain represent a large and exploitable political resource for politicians. However, we live in a democracy and so the majority have spoken. Should that not mean that Brexit must happen? Perhaps, but such an adherence to this particular reading of democracy is simply to embrace the tyranny of the majority and all the issues that come with that, particularly those issues related to the question of whether a minority group’s voice should be ignored simply because it is a minority. Moreover, and perhaps more importantly but I will get to that in a bit, Brexit only enjoyed majority support in England and Wales, while it was rejected in both Northern Ireland and Scotland. Now these issues are not necessarily specific to Britain or the Brexit referendum, as it is common for referendums to suffer from similar issues as well as other major problems such as how they reduce complex issues to a binary choice or how it requires non-expert citizens to decide on issues they have no expertise in. A similar referendum occurring virtually anywhere else in the world would certainly encounter similar problems. This does not mean that referendums cannot be ‘saved’ from demagoguery, bipolarity, and the tyranny of the majority; rather it simply means that great care must be taken when setting up a referendum to ensure that the impact of these issues can be minimized. That said, the UK faces a rather special problem, one which has a grave bearing upon both Brexit and UK politics in general, that must be confronted: that it is a unitary state.

A unitary state is a state which is governed as a whole by a single, supreme authority. Though there are devolved parliaments in Northern Ireland, Scotland, and Wales, ultimate authority over the UK nonetheless remains with Westminster and those powers exercised by the devolved parliaments are done so at the continued discretion of Westminster. This begs the question, given the obviously heterogeneous makeup of the UK, as to why precisely has the UK remained a unitary state? I appreciate that there are historic reasons for this centralization of political power, but the very fact that we have seen devolution in recent years seems to point to a growing recognition that federal institutions are at some level compatible with the UK’s legal institutions. However, it should be noted that the devolution that we have seen is not even close to the extent that there could be, and I would also dare say it is not close to the extent that it ought to be. In fact, at least to me, it seems rather self-evident that the UK should be a federal state, which is broadly speaking a state made up of both a central government and a number of regional governments where each has specific and defined powers. I say this is self-evident as the UK’s constitution, despite being unwritten, acknowledges the idea that the UK itself is a union of historically self-governing nations. In fact, those historic nations are so important that if you were to look at the £1 coin you will see the four symbols for each nation: a rose for England, a leek for Wales, a thistle for Scotland, and a shamrock for Northern Ireland. The arguments for devolution stem from this logic, arguing that the fact that the UK is a union obliges it to devolve some powers to the constituent parts that make up that union. I find this logic hard to argue with as to imagine a federal UK made up of these four constituent parts seems like a rather natural continuation of the historical process towards devolution that we have already been seeing.

Of course such thinking is far from unanimous and, obviously, there are those who oppose the idea of a federal UK made up of the nations of England, Northern Ireland, Scotland, and Wales. One of the more potent arguments against UK federalism along the lines I have mentioned above observes that large metropolitan areas, like London or Manchester, are larger than most of these nations (fore example the London metro area’s approximately 14 million people certainly outnumber Wales, Scotland, and Northern Ireland which have populations of around 3 million, 5 million, and 2 million respectively) and therefore giving special constitutional rights to the nations and not to these metro areas is senseless and undemocratic. However, even if we ignore that such a line of thinking leads either to infinite regionalism or none at all, we can rebut this argument with the simple fact that it ignores the historical importance and legal status of the four nations. Indeed, the United Kingdom is, as is apparent in its name, a united kingdom made up of specific constituent parts, those parts portrayed in its aforementioned currency and in its flag (the Union Jack is a composite of St George’s, St Patrick’s, and St Andrew’s crosses, representing England, Ireland, and Scotland respectively). Moreover, the four nations are ascribed a significance in UK law not given to London, Manchester, or any other region. The UK, arguably by its definition, is made up of England, Northern Ireland, Scotland, and Wales (this is why Scotland’s potential departure in 2014 was so damaging a notion to the UK as a whole, as it would effectively mean an end to the United Kingdom’s very unity). Federalising the UK, that is granting devolved powers to the four nations that are comparable to those held by the provinces of Canada or the states of the US, therefore has deep historical and legal roots.

Let’s look west

So how does all this talk of UK federalism relate to Brexit? Simply put, the devolution of powers to the four nations ought to also come with certain special democratic rights for those nations that would allow them to better exercise their independent political wills. To illustrate my point I want to look at Canada. It is a federal state made up of 10 provinces (and 3 territories, though they do not enjoy the same legal or political powers as the provinces and are more comparable to the Isle of Mann or Gibraltar in the UK context ) and though Canada does have a written constitution, it also shares a political and legal history with the UK that should ensure that the comparisons made between the two countries are relatively straightforward ones. So what would happen if the Brexit referendum, or at least something like it, were to occur in Canada? Well, and this point could be debated though it does not necessarily detract from my argument, a referendum of such importance as Brexit would likely require a constitutional amendment (I make this assertion based on the fact that Canada’s entrance into or departure from something similar to the EU would, at the very least, impact many sections of the Canadian Charter that at the moment only apply to Canadian Citizens and therefore require their amendment). If we assume that a ‘Canadian Brexit’ would require a constitutional amendment then we can also assume that it would have to pass through the amendment formula. Set out by section 38 of the Canadian Constitution and known as the 7+50 formula, this procedure requires that 7 provinces, representing at least 50% of the national population, approve any amendment. This means that smaller provinces, such as Prince Edward Island or Newfoundland and Labrador, have some recourse against the will of the larger provinces, such as Ontario and Quebec. In practice this type of formula has its complications, as we saw during the referendums surrounding the Meech Lake Accord, but in its ideal form this means that 50%+1 support for an amendment is enough for that amendment to pass as long as that 50%+1 support is more or less evenly spread throughout all the constituent parts of the state. The majority is heard while the tyranny of the majority is denied. In the UK context, this means that England, with is disproportionately large populations compared to the other nations, could not simply decide the fate of the whole of the UK. In the context of Brexit, this would have meant failure for the Brexit side in the referendum as two of the four nations did not support Brexit.

Now perhaps at this point you are thinking that I am making this argument solely because I oppose Brexit, however my distaste for Brexit is not what motivates me here. Rather, I fundamentally believe that such a proposition better protects the democratic rights of people: allowing small communities to have their voices heard while at the same time not allowing an unfair over-representation of those same communities. Moreover, Britain’s adoption of a similar formula would also protect itself, as one of the by-products of the Brexit referendum has been a sense amongst many Northern Irish and Scottish voters that their voice has been ignored and, as a direct result, a sharp increase in support for secessionism in both of these nations. Such a formula could be expanded beyond state-wide referendums too and could go a long way to legitimizing any referendum by helping to solve many of the issues which I highlighted above. For example, it could be possible to apply a variation of the formula to places such as Quebec or Scotland should a future referendum on independence occur in either as this would both legitimize the results as well as possibly break the deadlock that continues to this day over whether 50%+1 is enough for a region to separate or whether a super-majority, usually understood as being 66% support, is required. There are obvious complications that can occur, such as if a side reached one but not both of these thresholds, but these can be solved through legal mechanisms, such as triggering a second referendum after a predetermined period of time. Moreover, the benefits of such a system are numerous and tangible.

It is of course too late for the UK. The Brexit referendum is in the past and Brexit, in some shape, is almost certain to occur. Nonetheless, the discord that has followed has been entirely preventable and I believe a lot of it could have been prevented if a more representative system was used to conduct the referendum. This is the lesson that we should learn from this, and certainly the lesson that the UK should learn as continuing to ignore its constituent parts could have potentially catastrophic results for its future. It is not too late for the UK to embrace devolution more wholeheartedly than it has until this point. It is not too late, but time is certainly short.