Stephen Tierney

Federalism in a Unitary State: a Paradox too Far?

This paper takes the devolution settlements in the UK as a model of accommodation of territorial diversity, with a focus mainly upon devolution to Scotland. It is argued that the Scotland Act 1998, while in many ways a coherent attempt to meet the demands of national diversity, may also, paradoxically, contain elements that in the long run have the potential to destabilize the UK. We address the non-federal model that has been used to manage the plurinational UK, highlighting certain elements of this ad hoc arrangement which seem useful to the management of pluralism and others which seem to exacerbate the risk of secessionism.

Towards a Federal United Kingdom? Lessons from America

As the debate about further devolution deepens, Stephen Tierney looks at the American model of federalism and asks whether the UK is heading in a federal direction.

Can Referendums Foster Citizen Deliberation? The Experience of Canada and the United Kingdom

Both Canada and the United Kingdom have used referendums, albeit sparingly, to resolve constitutional issues, including proposals for the independence of Quebec (1980 and 1995) and Scotland (2014). The procedure was different in each case. In Scotland, the legality and procedure for the referendum was agreed by both the UK and Scottish governments and the question evaluated by an independent body and then accepted by both sides. Both sides promised to respect the result. This was not the case in Quebec. In the UK the principle that a simple majority was sufficient was accepted, which it was not in the Quebec case, partly because Quebec contains national minorities. In both cases, the question put was whether or not to accept the proposition (independence in Scotland and ‘sovereignty’ in Quebec), when opinion polls showed strong support for an intermediate position. The advantage of the Scottish option, of an agreed question, is that attention during the campaign was focused on the merits of the issue, rather than the meaning of the question.

Flexible Accommodation: Another Case of British Exceptionalism?

This paper reviews the devolution arrangements within the United Kingdom in historical perspective. It argues that the ad hoc and contingent nature of decentralisation has been one of the successes of the system, but that the model remains lop-sided in the absence of coherent arrangements for intergovernmental decision-making. It also goes on to address the forthcoming referendum on independence in Scotland.

The Nation as 'The Public': The Resilient Functionalism of Public Law

This paper defends the resilience of the concept of public law in the context of privatization on the one hand and globalization on the other. National identity and its relationship to public law can be situated in the context of each of these processes of change, but the highly particular relationship between the nation and the state which emerged with the modern, classical form of public law is in many ways a discrete concern, not unaffected by privatization or globalization, but sufficiently robust to remain the central dynamic in legitimising democratic rule today. Although the relationship between a people and its polity is inevitably affected by normative developments beyond the state and by the arguably diminishing public space within it, there is also and perhaps paradoxically considerable evidence pointing to the resilience of national identities and the power of states; trends which challenge the early 21st century prognosis that we have entered a post-national era. The primary focus of the paper is upon the ‘resilient functionalism’ of public law in continuing to support the important relationship between the nation and the state. It begins by outlining the functionalism of public law in its broadest sense, tracing its historical development as a discrete subject. Secondly, it explores further how public law’s primary role in the modern era has been to facilitate the relationship between national identity and the state. And thirdly, it offers empirical evidence to defend the ‘resilience thesis’ and the ongoing importance of public law as facilitator of the continuing, albeit changing, relationship, between nation, national identity and state.

The Long Intervention in Kosovo: A Self-Determination Imperative?

This paper argues that in order to understand the willingness of many states to recognise Kosovo as a new state, an act that flies in the face of the post-war consensus on the illegality of secession, we need to return to the 1998-99 Kosovo crisis and address the dynamics that informed foreign intervention at that time. We will argue that this intervention was motivated as much by a self-determination imperative – whereby foreign powers sought a detailed realignment of the Yugoslav constitution – as by humanitarian concerns.