Henry McLeish: The trouble with UK federalism would be overcoming the absolute sovereignty of Westminster

The 1997 White Paper and three Scotland Acts have given Scotland power over certain policies but no significant power over politics, governance and the constitution, where all roads still lead to Westminster. Power devolved is not power shared. If change is to mean anything then the crucial question becomes: “What would a federal union look like?”

A new debate on federalism would have to face up to Westminster power and authority, to the deep-seated resistance to change in the way we are governed, and to a mind-set shaped by 300 years of political and constitutional history. England, the voice that dominates Westminster and which was responsible for Brexit, is also a significant part of the problem.

Federalism can offer an alternative to independence, but it has to be based on a total reshaping of political and constitutional power and authority within the UK. The devolution of more “powers” on their own, dressed up as federalism lite, where Westminster is unable or unwilling to loosen its grip on political power, is not federalism.

The idea of a federal union has been around for some time. One federal visionary was Winston Churchill, whose speeches on Europe and Scotland in the early part of the 20th century were remarkably prescient.

His Zurich speech in 1946, predating the creation of the EU, predicted a ‘United States of Europe”. Much earlier in his life, in a speech in his Dundee constituency on October 9, 1913, he said: “Another great reason for the settlement of the Irish question in the present Parliament ... is that the ground is thereby cleared for the consideration of claims of self-government for other parts of the United kingdom besides Ireland.

“You will remember how, last year, I addressed a meeting in Dundee on this subject. I made it clear that I was not speaking of the immediate future, but dealing with the subject which lay for the moment outside the sphere of practical politics and raising a question for reflection and discussion rather than for prompt action.

“I spoke of the establishment of a federal system in the United Kingdom, in which Scotland, Ireland and Wales, and, if necessary, parts of England, could have separate legislative and parliamentary institutions, enabling them to develop, in their own way, their own life according to their own ideas and needs in the same way as the great and prosperous States of the American Union and the German Empire.”

Federalism is complex, has many forms, and presents a hard-to-achieve constitutional alternative, especially when it challenges the very basis of the power structure within the Union. No one should be in any doubt that the path to a Federal UK will be strewn with political land mines, massive obstacles and impenetrable constitutional hurdles.

For many, federalism will mean no more than devolution, so a reasonably simple matter then of changing the language but not the substance. For others who want a radical alternative there will be political mountains to climb. This begs the questions of whether it is too late, too little or perhaps impossible.

There is no fixed model of federalism. It is best defined as two levels of government, each of which has independent powers and neither has supreme authority over the other. Devolution doesn’t meet this criteria and this is why we have to be very careful about selling “devo plus” as federalism. The best known and most studied examples are Germany, Canada and the USA.

What are the distinguishing characteristics of federalism, the major political issues to be tackled, and the important tests that have to be passed?

First, it requires a written and accessible constitution, something the UK doesn’t have. Federations in Germany, Canada and the USA have strong constitutions.

In the case of a federation, the national constitution distributes the constitutional powers of government between the two levels. Neither level of government in a federation receives its power from the other. They do not receive their respective powers from legislation enacted by the national legislature. They come from a common source, the national constitution. So, in operation, Scotland would not be completely or virtually independent. It would, though, possess a substantial degree of autonomy and self- government.

Second, England would require a constitutional status similar to the other nations of the UK and in this context would it have a parliament assembly that is not Westminster? The voice of England at Westminster continues to drown out the other nations.

Third, the House of Lords would be abolished in its current form and, if recreated, would host representation from each of the nations – and possibly regions – of the Union. This would breathe new life into a second chamber: reflecting people and politics, not privilege, the establishment or the elite.

Fourth, the absolute sovereignty of Westminster – a doubtful reality anyway – would end. The new constitution would set out the terms of this new political settlement and act as a check on Westminster’s powers and confirmation that federalism was, for the first time, giving power to people and their nations. Devolution gives away or devolves some of its authority whereas under federalism the separation of power is permanent and enshrined in a separate constitution.

Fifth, reform of the electoral system and the scrapping of the discredited first-past-the-post system would boost democracy and provide a fairer representation of the votes and the values of our diverse union and curb political extremes and excesses.

Sixth, more areas of policy – including immigration, welfare and employment – would fall to the four nations or be shared. There would be a recasting of the institutional structure of the union and, like other European countries, certain European and International matters could be agreed through dialogue and joint and binding decision-making.

Seventh, the arguments for and the delivery of this far-reaching alternative would embrace the idea that federalism is about sharing power and cannot be sold as tinkering with UK governance and sovereignty. This would be a deception.

Eighth, a fairer distribution of political and constitutional power in the UK would help strengthen our increasingly fragile democracy.

Finally, setting aside the distinctive features of a federal union and the constitutional and political changes this would require, how is all of this to happen? A Constitutional Convention would be an important first step. Wales, Scotland and Northern Ireland could lead, but England has to be part of the solution and currently remains detached from mainstream “4 nation” thinking.

This is a tough agenda. Failure to move on some or all of these far-reaching reforms could reinforce the view that the politics of Scotland and the rest of the UK are diverging and irreconcilable. The rejection of federalism could mean the last throw of the Westminster dice leading inevitably to a UK that seems to have run out of political options.

Are there any prospects of Westminster and the traditional parties, being able to offer, deliver and share real power with any of the nations of Britain?

As polls continue to show a divided Scotland, have Scots reached a point where federalism could be a way forward?

Federalism deserves a serious airing. Theresa May talks about “strengthening the ties between nations” in the UK while smashing our ties with the EU and ignoring the pleas of Northern Ireland and Scotland over Brexit.

Labour should be less concerned with the timing of a second independence referendum and instead put all its efforts into a federal alternative as the way forward; and as the possible basis of a second question on the next ballot paper – whenever that happens. The status quo is not an option for Scotland’s future. The Tories can’t be trusted with either the future of Britain or Scotland. The PM’s “Britain Alone” future – and her delusions about “Brexit making the UK stronger” – threaten all of us.

Using Churchill’s insight, questions remain. Is federalism inside the “sphere of practical politics”, or is it just a matter for “reflection and discussion rather than for prompt action”? Or, are we speaking “of the immediate future” – or just dreaming of a new political order that can never be?