Federal and Unitary Constitutions
Chapter Ten
Syllabus topic 1, "Constitutionalism, Classification of Constitutions"
Pages 44 to 48 of 676
In one line
A federal constitution gives two levels of government their own powers under the constitution itself; a unitary constitution has one government from which all other authority is derived.
In the wording a student can write in an exam: a constitution is federal where it distributes legislative and executive power between a general government and regional governments, each deriving its authority from the constitution and neither being legally subordinate to the other within its own sphere; it is unitary where all governmental power is vested in a single central authority, any regional power being a delegation revocable by that authority.
Why the distinction exists
Federalism is a solution to a specific problem: how to unite territories that will not accept being governed as one, or how to govern a country too large or too plural for one legislature.
The two motives produce two different federations, and the difference runs through the whole of Module II. The United States and Switzerland federated upwards, from units that were sovereign before the union, and both left the residue with the units: the Tenth Amendment reserves to the States the powers not delegated, and article 3 of the Swiss Constitution declares that the cantons are sovereign except to the extent that their sovereignty is limited by the Federal Constitution.
Canada and India federated downwards, out of an existing colonial administration, and both kept the residue at the centre: the opening words of section 91 of the Constitution Act 1867 give the Parliament of Canada power to make laws for the peace, order and good government of Canada in relation to all matters not assigned exclusively to the provinces, and article 248 of the Indian Constitution read with Entry 97 of List I gives Parliament the residuary power.
The four minimum conditions
A constitution is federal only if all four are present. This is the test to state in an answer.
1. A written constitution. The division must be recorded somewhere both levels can appeal to.
2. A distribution of powers. Each level must have subjects of its own.
3. Supremacy of the constitution. Neither level may alter the division by its own act, which means the constitution must be rigid and must prevail over ordinary law.
4. An umpire. Some authority must decide disputes about the boundary. In India that is the Supreme Court, with original jurisdiction under article 131; in Canada the Supreme Court on a reference; in Germany the Federal Constitutional Court; in the United States the Supreme Court; in Switzerland the Federal Supreme Court under article 189, subject to article 190 for federal Acts.
Where MU's seven fall
Federal: the United States, Switzerland, Canada, Germany, and India with the qualification below.
Federal and Unitary Constitutions
Unitary: Ireland, and the United Kingdom.
India satisfies all four conditions and is nevertheless described by many writers as quasi-federal, because the centre can redraw the States by ordinary law under articles 3 and 4, because the residue is central, because emergency provisions can convert the system into a unitary one, and because the Governor of a State is appointed by the Union. The argument is examined in [Quasi-Federal: the Argument About India]; for classification purposes it is federal, and the Supreme Court has said so repeatedly since State of West Bengal v. Union of India, AIR 1963 SC 1241.
Ireland is the control case, and it is worth being exact. Article 15.2.1 provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas, and no other legislative authority has power to make laws for the State. Article 28A, inserted in 1999, recognises the role of local government and requires local elections at least every five years, but that is guaranteed local government, not a second order of legislature. Ireland is therefore a unitary State with a written, rigid, judicially enforced constitution, which is exactly why it is useful: it separates federalism from the other features it usually travels with.
The United Kingdom is unitary in law and devolved in practice. The Scottish Parliament, the Senedd and the Northern Ireland Assembly exercise power conferred by Acts of the Westminster Parliament, and in strict law those Acts can be repealed. The Sewel convention, that Westminster will not normally legislate on devolved matters without consent, is a convention, and R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5, held that the courts will not enforce it even though it is written into section 28(8) of the Scotland Act 1998.
A worked example
A regional government wishes to legislate on a subject the central government also claims.
In a federation the question is one of competence, decided by the umpire. In India the court asks which List the subject falls in, applies the doctrine of pith and substance, and if both are competent applies article 254 on repugnancy. In Canada it asks whether the matter falls in section 91 or section 92 and applies the same pith-and-substance reasoning, which India took from the Privy Council's Canadian appeals.
In a unitary State the question does not arise in that form. In Ireland the Oireachtas has the sole and exclusive power, so a local authority acts only within powers conferred by statute and an excess is ultra vires. In the United Kingdom a devolved Act outside competence is invalid under the devolution statutes, which is a statutory limit rather than a constitutional division.
Federal and Unitary Constitutions
The cases
Facts. State of West Bengal v. Union of India, AIR 1963 SC 1241, arose when the Union enacted the Coal Bearing Areas (Acquisition and Development) Act 1957 and sought to acquire land vested in the State of West Bengal. The State sued under article 131, arguing that the Constitution was federal and that the Union could not acquire State property.
Held, by the majority. The Indian Constitution is not traditionally federal. The Court pointed to the absence of a separate constitution for each State, the power of Parliament to alter State boundaries under articles 3 and 4, the single citizenship, the unified judiciary and the residuary power at the centre, and held the Act valid.
Why it matters here. It is the origin of the quasi-federal argument in the Supreme Court's own words. It should be read with S.R. Bommai v. Union of India, (1994) 3 SCC 1, where the Court held federalism to be a basic feature, and the two together are the honest answer to the classification question for India.
Facts. Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, decided on 25 March 2021, was a challenge by three provinces to a federal Act setting national minimum standards for greenhouse gas pricing.
Held, by Wagner CJ for a majority of six to three. The Act was valid. Establishing minimum national standards of greenhouse gas price stringency is a matter of national concern falling within Parliament's power to legislate for the peace, order and good government of Canada under the opening words of section 91 of the Constitution Act 1867.
Why it matters here. It shows the residuary clause India deliberately did not copy doing work in the twenty first century, on a problem no framer anticipated, and it is the best modern illustration of how a federal division adapts.
Distinctions
| Federal | Unitary | |
|---|---|---|
| Source of regional power | The constitution | A grant from the centre |
| Can the centre abolish the region? | Not by ordinary law | Yes, by ordinary law |
| Written constitution required | Yes | No |
| Umpire needed | Yes | No |
| MU's seven | USA, Switzerland, Canada, Germany, India | Ireland, United Kingdom |
| Coming together | Holding together | |
|---|---|---|
| Units before the union | Sovereign | Not separately sovereign |
| Residue | With the units | With the centre |
| Examples | United States, Switzerland | India, Canada |
| Provision | Tenth Amendment; Swiss article 3 | Article 248 and Entry 97; section 91 opening words |
What beginners get wrong
"India is not federal because the centre is strong." Strength of the centre is a variable within federalism, not a departure from it. Canada's centre is strong and nobody doubts Canada is federal.
"Devolution makes the United Kingdom federal." It does not, because the devolved legislatures hold statutory power. Federalism requires that the regional power be constitutionally held.
Federal and Unitary Constitutions
"Ireland is federal because it has local government." Article 28A guarantees local government and Article 15.2.1 says the Oireachtas has the sole and exclusive law-making power. Local authorities are not a level of legislature.
Limits and criticism
The classification is binary and reality is a spectrum. Between the American federation and the Irish unitary State lie devolution, regionalism, asymmetric arrangements and treaty-based unions.
It says nothing about how power is actually exercised. Fiscal dependence can hollow out a formal federal division, which is why [Fiscal Federalism and Equalisation] matters more to the working of a federation than the lists do.
The four conditions describe the design, not the practice. A federation whose umpire is not independent is federal on paper only, which returns the argument to [A Constitution Without Constitutionalism].
Quick revision
- Federal: two levels, each holding power under the constitution. Unitary: one level, all else delegated.
- Four conditions: a written constitution, a distribution of powers, supremacy of the constitution, and an umpire.
- Coming together leaves the residue with the units (Tenth Amendment, Swiss article 3); holding together keeps it at the centre (article 248 and Entry 97; section 91 opening words).
- MU's seven: federal are the USA, Switzerland, Canada, Germany and India; unitary are Ireland and the United Kingdom.
- Ireland: Article 15.2.1 sole and exclusive legislative power; Article 28A local government only.
- State of West Bengal v. Union of India, AIR 1963 SC 1241: not traditionally federal. S.R. Bommai v. Union of India, (1994) 3 SCC 1: federalism is a basic feature.
- Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11: national concern under peace, order and good government.
Test yourself
1. State the four conditions of a federal constitution and apply them to India. A written constitution: yes. A distribution of powers: articles 245 and 246 with the Seventh Schedule's three Lists. Supremacy of the constitution: article 13 and the rigidity of article 368 for the proviso matters. An umpire: the Supreme Court, with original jurisdiction under article 131. All four are present, so India is federal, with the qualifications discussed under the quasi-federal argument.
2. Why is Ireland on the syllabus under federalism when it is not a federal State? Because MU lists it there, and because the honest answer is instructive. Article 15.2.1 vests the sole and exclusive law-making power in the Oireachtas and Article 28A guarantees local government only. Ireland's real contribution to the Indian Constitution is Article 45, the directive principles of social policy, and an answer should say so rather than manufacture an Irish federalism.
3. Distinguish coming-together from holding-together federations and give the provision that shows the difference. Coming-together federations are formed by previously sovereign units and leave the residue with them: the Tenth Amendment in the United States, article 3 of the Swiss Constitution. Holding-together federations are formed by devolving power from an existing central authority and keep the residue at the centre: article 248 with Entry 97 of List I in India, and the peace, order and good government words opening section 91 of the Constitution Act 1867.
Federal and Unitary Constitutions
4. Does devolution make a unitary State federal? No. The test is the source of the regional power. A devolved legislature exercises power conferred by an Act of the central legislature, which can in law be amended or repealed; a federal unit holds power under the constitution, which the centre cannot alter unilaterally. The Sewel convention is a political restraint on Westminster and the Supreme Court declined to enforce it in R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.