ABSTRACT
The central authorities of a unitary or union state can devolve or decentralize power to one or more regions, and can give different or asymmetric degrees of auto nomy to each region. The amount of self-government devolved can be substantial, and the devolved powers may sometimes exceed the powers of states within some federations, or of some federacies. A funda mental, and defining, feature of decentralization and devolution is that within the rel ev ant polit ical sys tems there is a monistic conception of sover eignty, in which the central authorities retain the right to alter unilaterally the grant of auto nomy or rescind it al to gether. The central authorities are also able to change the bound ar ies of the auto nom ous region, and may retain the right to con tinue legislating for it, even within those jurisdictional respons ibil ities that have been devolved. In 1920, the UK gov ern ment devolved auto nomy to Northern and Southern Ireland through the Government of Ireland Act (1920), known colloquially as the Home Rule Act. This Act was stillborn in Southern Ireland, as it was rejected by Irish nationalists, but it operated in Northern Ireland under the formal ‘supreme authority’ of the United Kingdom Parliament, which ‘remain[ed] unaffected and undi min ished over all persons, mat ters and things in Ireland.’6 The power mattered. Under the authority of the Government of Ireland Act, the UK gov ern ment abol ished Northern Ireland’s regional gov ern ment and par lia ment in 1972, implementing direct rule. In 1998, the United Kingdom’s Westminster Parliament estab lished a par liament in Scotland, and assemblies in Northern Ireland and Wales, after referendums in the respective entities. Scotland and Northern Ireland were given extensive powers of pri mary legis la tion, while the National Assembly of Wales’ powers were restricted to secondary legis la tion. In the Scotland Act Westminster clearly retains sover eignty,7 though some British aca demics believe it would be difficult for Westminster to act unilaterally within the Scottish par lia ment’s sphere of respons ib ility, or to reduce or rescind its auto nomy (Bogdanor 2003: 225-8). Northern Ireland’s Agreement went further, creating, as we argue below, a federacy, but did not prevent the UK gov ern ment (at least within its legal in terpretations) from unilaterally suspending Northern Ireland’s polit ical institutions four times between 2000 and 2007, the fourth suspension lasting for over four years. It did so in response to a perceived polit ical impasse between unionist and Irish repub lican politicians. Its actions were a breach of the Agreement in Ireland’s readings of the rel ev ant treat ies, but reflected the continuing strength of the view within Westminster that par lia ment’s sover eignty cannot be restricted (O’Leary 2001a, 2001c, 2008b). While India is usually con sidered a federation, it does not de scribe itself as such but rather as a ‘union state,’ and its consti tu tion has a number of im port ant features akin to those of devolution in a unitary state. Art. 249 of the Indian consti tu tion allows the Union par lia ment, by a two-thirds vote in the upper house (Rajva Sabha), to make laws in the national inter est with respect to any mat ter enumerated in the ‘States list,’ while Art. 250 allows the federal par lia ment to
make laws on any item included in the States list during an ‘emergency,’ the exist ence of which is determined by the federal gov ern ment under Art. 352. These pro vi sions mean that there are, consti tu tionally, no exclusive state jurisdictions in India. Art. 250 has been used by par lia ment on several occasions to shift powers from the states to the concurrent list and to the ‘Union’ list. Art. 356, ‘President’s Rule,’ allows Delhi to take over the gov ern ment of a state, a pro vi sion that has been used 100 times since 1950 (Mathew 2005: 169). The Indian Union authorities are able, after a consultative pro cess, to redraw state bound ar ies and to estab lish new states, a power that has been used on numerous occasions. While the Canadian consti tu tion also gives Canada’s federal authorities powers sim ilar to those of a unitary state, in Canada’s case, these have fallen into legal abey ance. Canada, how ever, remains akin to a unitary state with respect to the ‘ter rit ories’ of Yukon, the Northwest Territories and Nunavut. In 1999, an act of the federal par lia ment created Nunavut out of part of the Yukon’s territory. The de cision was taken to convert Yukon’s Inuit minor ity into a regional majority in Nunavut. From the per spect ive of pluralist accommodation and polit ical stability, devolution is said to have certain ad vant ages. It gives the state’s central authorities the flex ib il ity to correct experiments that have gone wrong, and to intervene to protect regional minor it ies or to take meas ures to restore order. The UK’s belated de cision to abol ish Northern Ireland’s auto nomy in 1972 was taken after clear evid ence that this had failed spectacularly, giving rise to sustained ethnocratic gov ern ment by the Ulster Unionist Party and, by 1969, pogroms by the majority amid a quasi-insurrection by Northern Ireland’s Irish nationalist minority. Later, after the restoration of a Northern Ireland Assembly, the UK’s suspension of Northern Ireland’s institutions between 2000 and 2007 was seen as neces sary to address a polit ical stalemate, and to protect moderate politicians against rad icals. Both India and Canada have used their unilateralist powers to accommodate newly mobilized regional nationalities who demanded regional auto nomy, while the use of President’s Rule in India has usually been justified as neces sary to restore quiet. These ad vant ages, how ever, are deeply ambiguous. Devolution leaves ultimate power in the hands of the state’s central authorities, which often means its dominant nationality, religious, or linguistic com mun ity. India’s federal authorities have used their power, not just to protect minor it ies within states but to control (larger) minor it ies that possess their own states, including the Sikhs of Punjab and Muslims of Kashmir (Singh 1993, 1995, 2001). Even inter ven tions that are aimed ostens ibly at promoting the rights of small minor it ies within regions may be motiv ated by a desire to rein in the larger minor it ies who control the regions in question. Devolution also suggests a hier archy of authority within the state, with the rel ev ant regional institutions firmly subordinate to the center, a status unlikely to sit well with nationalities that seek a plurinational part ner ship of equals. Thus, Canada’s indi gen ous nations have long insisted that they possess an ‘inherent’ right to self-government, one that cannot be bestowed by anyone. It is also not
difficult to ima gine nationalities, par ticu larly after armed conflicts, being wary of an auto nomy settlement that can be unilaterally altered or rescinded by the state’s central authorities. In such con texts, the most pop ular choice for nondominant nationalities is not devolution but pluralist federation, federacy, or inde pend ence. In Cyprus, even moderate Turkish Cypriots insist on a ‘bi-zonal, bi-communal federation’ to give them both a share in Cyprus’s sover eignty and guaranteed auto nomy. The position of the Kurds in Iraq is ana log ous (McGarry 2007b; O’Leary 2005b). Irish repub licans rejected the Government of Ireland Act of 1920 in part because it maintained Westminster’s ‘undi min ished’ sovereignty, and accepted the 1998 Agreement only because they believed it had quali fied UK sover eignty, rendering the new institutions an act of Irish selfdetermination. There are ways to protect regional minor it ies, who might be abused by nationalities who control auto nom ous territorial gov ern ments, short of granting overriding powers to the state’s central authorities. Constitutionalized agreements can provide for regional-level power sharing; or for a regional level bill of rights, which includes protection for minor it ies and indi viduals; and for cantonization within regions, which results in some level of auto nomy for smaller nationalities. Northern Ireland’s 1998 Agreement sought to prevent a recurrence of the abuses that occurred between 1921 and 1972, not by relying on Westminster, which had not intervened to protect the nationalist minor ity until 1969, but by extending auto nomy with con soci ational guarantees, other equality pro vi sions within Northern Ireland, and a bi-governmental oversight role for the UK and Repub lic of Ireland.
