 Felly, mae'r gydaeth yma yn y cyfathol ymdweithio gyda'r cyllid yn cyd-rhyw pwblik, o ddweud i'r leisio Zedafod Williams. Zedafod Williams amser yn 2001 o'r cyfathodd y cyfathoddau a'r cyfathoddau a'r cyfathoddau a'r cyfathoddau a'r cyfathoddau. Sir David was an imminent public lawyer who specialised in the control of public power and in constitutions. He was very much one of the founders of modern public law in this country. He was a passionate about constitutional government and his energy helped to launch the development of administrative law in this university. From being Rouseball Professor and President of Wolfson College, Sir David moved to be the first full-time Vice-Chancellor of this university. He was energetic in reforming the university but also in promoting the different disciplines within the university, including law. And in his retirement he was energetic in raising funds for the university, for law and for the Squire Law Library. But most of all he was energetic in his support for younger scholars and always had time for younger scholars to listen to what they were doing and to encourage them. We're very pleased today to have with us Lady Sally Williams and members of her family. We're also grateful to Mr Michael Russ and to Mr John Nolan through whose generosity this lecture is funded but who unfortunately cannot be with us this evening. It's a great pleasure to invite Professor Cheryl Saunders to deliver this lecture. She is one of the most preeminent constitutional lawyers in the world. She's an expert on comparative constitutional law as well as on various national constitutional laws. She is a laureate professor at the University of Melbourne and has been a visiting professor at a number of universities, including the University of Cambridge, where she was a good heart professor from 2005 to 2006. Among her notable achievements she has been president of the International Association of Constitutional Law from 2003 to 2007, which is an indication of the international esteem in which she is held. That was a major role in developing constitutionalism across the world at a time when many constitutions were very fragile. She's published numerous books on Australian constitution and on Asia-Pacific constitutions, but more recently she's published also general work of the Rowclitch Handbook of Constitutional Law. Like Sir David, Cheryl Saunders has been giving advice over many years to a range of governments about constitutional matters. Her eminence is widely recognised. She was awarded the Order of Australia in 1994 and although knighthoods are currently a controversial subject in her own country, she has a knighthood from an impeccable source. In July 2012 she was made a chevelier de la légion d'honneur in recognition of her standing as a constitutional lawyer and for her contribution to scholarship in France. More specifically in relation to today's topic, she's written extensively on the division of powers in federal systems across the world, both in relation to economic powers and to the division between legislative, executive and judicial powers. She's eminently placed to present her subject tonight, which is of major importance to this country at the moment. Her title has echoes of the first Sir David Williams lecture given by Sandra Day O'Connor, but her perspective will be very different. It's with very great pleasure that I invite her to talk tonight on the title of devolution federalism constitution from here to where. Lady Williams, members of the Williams family, distinguished guests, colleagues and friends, I'm very honoured in fact to have been invited to deliver this year's Sir David Williams lecture. While I was a long time admirer, I did not get to know Sir David well before my term in Cambridge as the good heart professor. Spending time with David and Sally Williams was a particular pleasure during that most enjoyable year. David was unfailingly supportive, generous with his time and intellectually curious about every aspect of public law including the odd variants that are found in Australia. I very much regret that he's not still here to give us the benefit of his views on some of the more recent developments in public law in both our countries, not least in the field in which he initially made his name, the endless battle between liberty and democratic accountability on the one hand and national security on the other. I owe the general theme for tonight's lecture to Lady Williams. We last met in Cambridge in September, two days before the referendum in Scotland. Devolution was the hottest of hot topics, readily confirmed as the subject for the lecture when Sally reminded me of David's interest in Wales. I didn't need much reminding. Sir David Williams was a proud Welshman who remained engaged in Welsh matters throughout his life including as the first Chancellor of Swansea University in 2007. During my time in Cambridge we talked a lot about both devolution and Wales and he arranged for me to give some lectures in Swansea which I very much enjoyed. Sir David wrote a lot about devolution himself generally from a Welsh perspective informed by deep knowledge of Welsh history. He was caustic about the initial devolution scheme for Wales in the 1998 act describing it as neither fish nor fowl and rightly anticipated further change. He remained critical of the absence of straightforward legislative devolution under the new legislation in 2006 as what he said a recipe for continuing irritation and frustration. I'm sure he would be fascinated by the strides since made in the rollout of devolution in Wales including in the command paper inconveniently released this afternoon that I have skimmed but I have to say not read. Devolution in the United Kingdom is frequently described as a process and not an event. The description doesn't seem to me to be entirely accurate or particularly comforting but it's apt enough for present purposes. My objective tonight is to explore two distinct although related directions in which the process might be heading. One is to establish the United Kingdom as a federation and the other is to adopt for the United Kingdom a written entrenched constitution in which devolution is enshrined. I don't seek to be prescriptive about either. Rather I will try to place devolution in the United Kingdom in comparative perspective both to identify some of the issues that would arise in either case and to draw on the positive experiences of the United Kingdom for other federal type systems. The comparative perspective will include although not be confined to Australia. As it happens however federalism reform currently is under consideration in Australia as well raising at least some of the issues that are relevant here. I don't need for this purpose to come down one way or another on the question of whether the United Kingdom already is a federation of sorts. I'm content to assume that it's not for all the reasons usually given. The asymmetry of the devolution schemes for Scotland, Wales and Northern Ireland the absence of any form of devolution for England the lack of an entrenched constitution and its concomitant assumption of parliamentary sovereignty. But I note that the increasing diversity of acknowledged federations makes it difficult to determine which if any of these features necessarily precludes describing the United Kingdom as a federation particularly if convention effectively constrains parliamentary sovereignty where devolution is concerned. I'm also unable to resist quoting David Williams' observation that legislative devolution is federalism without the courage of its convictions. Nevertheless the definitional question can be avoided because on any view the United Kingdom has enough federal features to be characterised as a federal political system making comparison both defensible and worthwhile. So in what follows I deal separately with the possibilities of federation and constitution. There's an obvious overlap between the two but I conceive them tonight as presenting distinct issues. For federation these include the design of central institutions the division of power for federal purposes and the structure and operation of intergovernmental relations. Under the rubric of constitution I'll consider options for content including the treatment of constitutional arrangements for the devolved jurisdictions and judicial review on constitutional grounds. Most of the lecture is concerned with institutions but first I turn to the question of culture an important, if elusive ingredient in any federal political system. What might be characterised as federal culture has implications for the policies and practices of each jurisdiction their relations with each other the expectations of their people and judicial doctrine. It's a complex notion that follows from the nature of federalism itself. Federalism involves shared and therefore limited power. Jurisdictions may act alone in the exercise of their own allocated authority for which they're accountable to their people. In this case uniformity may be sacrificed to the values of subsidiarity including effectiveness, responsiveness and enhanced potential for innovation. Jurisdictions also may collaborate where this is mutually beneficial but the decision making process may be messy and slow at least by the standards of a unitary state. A truly federal culture requires the downsides of governing in a federal political system to be accepted with equanimity and the advantages to be valued and maximised. Equally importantly it requires trust, fair dealing and mutual respect between the institutions of the jurisdictions that collectively constitute the state. Logically and imperative of any federal type arrangement this requirement is reinforced in a democracy by the respect due to institutions that are chosen by and accountable to their people. In some respects the United Kingdom is well placed to develop and maintain such a culture. National diversity isn't acknowledged along territorial lines. The Union has long since accommodated distinct institutions and differences in laws. The United Kingdom has a refreshingly tolerant theory of the state which places no restrictions on diversity and allowed for a referendum on secession with relative calm in comparison for example to the position in Spain. This may help to explain the extent to which judicial doctrine has responded with some sensitivity to novel questions raised by legislative devolution in the United Kingdom. There's more to be said on this important issue however to which I will return. But powerful factors also militate against a federal culture in the United Kingdom. Cultural adaptation is difficult in any transition from an essentially unitary state to a federalised one requiring the surrender of power by central institutions. In the case of the United Kingdom the difficulty is exacerbated by two of the most distinctive features of the current devolution arrangements. One is the reality that the central institutions are dominated by the representatives of the people of the unfederated segment of the state namely England. These institutions also by default exercise for England powers that are devolved to regional authorities elsewhere. The other is that the parliament at Westminster enjoys absolute legal sovereignty at least in theory from which Whitehall also derives benefits and responsibilities. The consequences that follow range from the superior status of Westminster legislation under for example the Human Rights Act to the continued potential of formal intervention by the United Kingdom government in devolved matters which can never entirely be disavowed. Australian experience suggests that Westminster-style responsible government offers testing terrain for the development of a federal culture. There was a catchcry at the time of Australian Federation that either responsible government will kill federation or federation will kill responsible government. That was driven by consideration of the composition and powers of the Senate but it contains more than a germ of truth in other contexts. The cultural attitudes associated with responsible government in many respects are the antithesis of federalism. Responsible government places a premium on the speed and efficiency of public decision making accepts that the winner takes all, encourages competition and conflict between two powerful sides of politics, assumes an umbilical link between taxing and spending and relegates relations between governments to the realms of executive power where transparency is weak. None of this precludes the development of a workable federal culture but it suggests that the issue needs deliberate attention. Instant cultural change is no easy feat. The efforts of the United Kingdom to lay down new principles and practices from the outset of devolution are interesting for this reason. In evaluating them for comparative purposes two observations might be made. One is to draw attention to the use of constitutional convention to underpin, for example, the undertaking of the United Kingdom government that the parliament will not normally legislate with respect to devolved matters except with the agreement of the devolved legislature. The mechanism of constitutional convention is available elsewhere for this purpose but may be uniquely effective in the United Kingdom where an uncodified constitution gives it prestige and rationale. The second is that the changes may not be as far-reaching as at first appear. The Sewell and related conventions were necessary to give devolution teeth in conditions of parliamentary sovereignty. The volume of Westminster legislation that continues to be enacted in devolved areas, however, in reliance on Sewell-type procedures might reflect successful intergovernmental collaboration but might equally suggest that the reality of legislative devolution is only just beginning to hit home. The remaining practices set out in the MOU and other documents relate to the nuts and bolts of collaboration, communication, consultation, exchange of information, collection of statistics, confidentiality. They're useful as long as they work on a reciprocal basis but they don't clearly represent the shift in the character of the state. In a perceptive article written shortly after the first MOU came into effect, Richard Rawlings bemoaned the failure to clearly articulate what he described as a fundamental constitutional of comity or mutual respect which he then detected as locked in the memorandum of understanding and waiting to escape. Judging by the recent call by Lord Smith for greater respect between governments, the principle remains in confinement still. I now move to examine the three key issues suggested by comparative experience to the United Kingdom as a Federation, the design of central institutions for the purposes of what federal scholars sometimes describe as shared rule, the federal division of powers and the government relations. The participation of the federated regions as regions in central institutions is an element in the design of all federations. It helps to provide the glue for the federated state. In symbolic terms, it acknowledges the shared ownership of the state. For practical purposes, it enables the needs and perspectives of the constituent parts of the state to be fed into decisions made at the centre. The principle mechanism associated with shared rule is a second chamber of the federal legislature representing the constituent regions and contributing at least to decisions that affect them. Not all federations have a second chamber, however, as the very different example of Canada shows. And not all federal second chambers play an effective federal role in practice. The Australian Senate is a case in point. Senators in Australia vote along party lines with little, if any, attention to federal considerations. But, on the other hand, the equal representation of states in the Senate has symbolic importance in the Australian context, gives smaller states a larger voice than they might otherwise have had and has proved to have some doctrinal significance. Federal chambers are the most prominent, but by no means the only mechanism through which federation affects the constitution of central institutions. In some federations, the constituent regions have a guaranteed minimum of seats in the popular legislative chamber. Regional representation is often a factor in the composition of courts and in particular apex courts with final responsibility for adjudicating federal questions. Ministries often are composed with anire to the federal balance. The federal form of the state may affect the organisation of the civil service and the armed forces and so on. Against this background of theory and practice, other federations were somewhat bemused when the examination of House of Lords reform and the first tranches of devolution took place in the United Kingdom, largely in isolation from each other. Once again, however, the distinctive features of the compound state of the United Kingdom are the explanation. Famously, the number and population size of the devolved regions in the United Kingdom vis-a-vis England, make it implausible to reconstitute the House of Lords entirely as a federal chamber, even if, as in Germany, the majority principle is given some weight. It may be as the Labour Party recently has proposed that the House of Lords could be reconceived more generally as a territorially representative chamber in a way that included Scotland, Wales and Northern Ireland, but subdivided England along the lines of regions and perhaps cities. Even in this case, however, questions remain about whether the powers of the new chamber should be federalised as well or whether they should remain as they are. Of course, in the United Kingdom as elsewhere, the functions of shared rule need not depend on the second chamber alone. Albeit in a highly asymmetrical form, various institutional devices that provide a measure of shared rule are already in place or under discussion here. These include the guaranteed minimum seats for Wales in the House of Commons, the somewhat coy provision in the Constitutional Reform Act that presently ensures that Supreme Court includes judges from Scotland and Northern Ireland and a shared civil service that must nevertheless be able to devolved administrations when acting in that capacity. The device of a territorial secretary of state with a seat in cabinet for each of the constituent nations is another interesting innovation from the perspective of federal design, which however tends rather to be an instrument for central control than shared rule, at least as I understand it. In fact, mechanisms to give the three constituent nations in the institutions of the central state have not been a major focus of the devolution debate. Rather, perhaps ironically, concern has centred on excluding representatives of these jurisdictions when central institutions perform their other role of governing for England. These are waters that as an outsider I would prefer not to enter, but let me just paddle at the edges. Clearly there is potential for the so-called English problem to raise concerns about the fairness of democratic representation that also can be exploited politically. From a comparative perspective, however, it may be overstated. The West Lothian phenomenon must occur in any partially or unevenly federalised state. The population size of England and its dominance of the membership of both parliament and government serve to diminish its practical effect. If England wanted devolved institutions moreover, presumably it could have them. Unless and until that occurs, there's no perfect solution to an issue that has the potential to derail devolution more generally. In the circumstances, it's tempting to sympathise with Lord Irvine's view for which I'm indebted to Mark Elliott in his always perceptive analysis of these matters, that the best solution to the West Lothian question is, or at least was, to stop asking it. Now that the journey is out of the bottle, however, it may not be possible to go further than the McCabe Commission and to rely on the familiar constitutional tools of parliamentary processes and convention to ensure that the views of the representatives of English constituencies are known, heard and generally given effect when powers that are devolved elsewhere are exercised in relation to England. Now let me move to power. Federation involves a division of legislative, executive and judicial power in a way that gives each jurisdiction final responsibilities. Comparative experience suggests standard lines along which this occurs. Power may be divided vertically so that each jurisdiction administers its own legislation or horizontally, separating legislative from executive power. The former is more common in common law federations and the latter in Germanic federations, but there's enough contrary practice in each of them to demonstrate that generalisation is fraught. Legislative power that's divided vertically may be assigned to either or both of the two spheres of government exclusively or on a concurrent basis. Concurrency at least requires further provision about which law is to prevail in the case of conflict. Whichever mechanism is chosen, a range of other choices must be made about the delineation of incidental power, the assignment of the residual powers, the treatment of authority to tax and spend and whether and if so how and when central intervention can occur in the affairs of the federated units. The latter, coupled with successive phases of change, makes the United Kingdom a cornucopia of experience with the federal allocation of power. Arguably, there's a default assumption that East jurisdiction administers its own legislation, although at the extent of the devolution of executive authority to administer acts of the Westminster Parliament gives the United Kingdom some characteristics of an integrated federation. Thanks to the operation of Sewell-type conventions, devolved powers effectively are assigned exclusively, albeit with parliamentary sovereignty lurking in the background. Surprisingly, the treatment of residual powers differs between jurisdictions at least at the moment. In relation to Scotland and Ireland, it rests with the national legislatures through the general conferral of power subject to powers retained by Westminster, which also effectively are exclusive. By contrast in Wales, again at the moment, the heads of devolved legislative competence are specified and the residue by implication lies with Westminster, although this is foreshadowed to change under this afternoon's announcement. All three devolution statutes use a broadly familiar formulation to delineate the bounds of incidental power. All are restricted in their revenue raising authority and heavily dependent on revenue redistribution from the state. Both the use of a block grant for this purpose and the still tentative forays into the devolution of tax powers, however, are pro-federal features. They make the United Kingdom an interesting case study for Australia, presently struggling inconclusively with both questions. Even apart from the elephant of parliamentary sovereignty, however, there are other features of the scheme that depart from familiar federal practice. One is its complexity, including the detail in which powers are devolved withheld in some form or both. A second is the degree of surveillance of the exercise of devolved power by institutions representing the central state through requirements for prior approval and provision for retrospective intervention. These run counter to the democratic logic of federation and suggest that the transition from a unitary to a federal mindset is still underway. One final issue for consideration under the rubric of federation is intergovernmental relations. These are a dimension of the operation of all federations, whether so described or not. Governments operating within a single state in relation to the same people necessarily interact in various ways. Intergovernmental relations are used for a variety of purposes, information sharing, harmonisation of the exercise of power, dispute avoidance or resolution, the transfer of funds on conditions acceptable to both Donor and Doni. They rely for these purposes on some standard devices, intergovernmental meetings, agreements and undertakings, joint institutions, pooled legislative power. The precise form of the intergovernmental arrangements in each federation depends on the system of government in which they are embedded, historical context and prevailing political dynamics. Intergovernmental relations in Westminster-style parliamentary systems tend to expand the power of the executive branch in both spheres of government. The explanation for the phenomenon of what is often called executive federalism has been well rehearsed. Intergovernmental meetings and agreements fall entirely within the conception of executive power in common law legal systems. Governments typically exercise considerable control over parliaments in any event, making them compliant when legislative approval is needed. The culture of secrecy that attends cabinet deliberations extends easily to meetings of ministers across jurisdictional lines. Executive federalism presents problems for democratic accountability to both parliaments and the people, and for legal accountability through tribunals and courts with implications for the rule of law. Behind the closed doors of intergovernmental meetings, executive federalism may also lend itself to central dominance and to bureaucratic rather than political control. The potential solutions have been well rehearsed too. They include the formalisation of intergovernmental procedures, whether in statutory or other form, the greater involvement of legislatures in making and scrutinising intergovernmental arrangements, the management of intergovernmental fora by independent secretariats responsible to all participating jurisdictions, mandated transparency for intergovernmental decision making, and the legal enforceability of at least some intergovernmental agreements. A recent comparative study of intergovernmental arrangements in selected federations in which I was involved suggests that principles of this kind are beginning to be given effect across the federated states of the world. Powerful forces arranged against them as well, however. As always, there's a trade off between the flexibility that accompanies informality and the accountability and predictability to which more structured procedures lead. Political players do not necessarily perceive that their interests lie in greater transparency and accountability, although in the context of intergovernmental arrangements, I think they may be wrong. And there's also a version to what one member of the House of Lords Constitution Committee recently described as letting those damn judges in the door through more formalised procedures. Again, the United Kingdom fits into this picture well enough for comparative experience to be relevant here and vice versa. There's a plethora of bilateral and multilateral intergovernmental meetings of ministers and civil servants from the Joint Ministerial Committee down. Memorander of understanding, concordants and agreements of other kinds set out understandings between jurisdictions on procedural and substantive questions. Parliamentary sovereignty obviates the need for complex legislative schemes, but on the other hand, the sole and related conventions that govern the enactment of Westminster legislation for these purposes themselves involve intergovernmental relations of a kind. Judged by standards elsewhere, intergovernmental relations in the United Kingdom have some quite progressive features. The memorandum of understanding and the concordants are publicly available, although they seem to be systematically collated and published only in Scotland and Wales. The Joint Ministerial Committee issues both communicase and an annual report, although in a form that's rather too brief to be useful. Significantly, the three national legislatures that has taken active interest in intergovernmental relations and the doctrine of legitimate expectations offers potential for the soft law of concordants to play a role in the judicial review. But there's plenty of evidence that there's more to be done to improve the effectiveness of intergovernmental relations and their fit with democracy and the rule of law. One of the key recommendations of the Smith Commission concerned reform to the intergovernmental machinery as a matter of urgency. In his forward to the report, Lord Smith referred to the need for a more productive, robust, visible and transparent relationship based on greater respect. Some of the particulars of the problems have recently been explored in evidence to the House of Lords Select Committee on the Constitution. These include the paucity of parliamentary involvement, particularly at Westminster, central state dominance of the intergovernmental decision making machinery, and the generally unhelpful nature of the information publicly available about what is going on. These are familiar concerns, but the government's response so far has been a bit lackluster. The experience of other federations suggests that those interested in such matters should seize the momentum presented by the Smith Commission and press for changes to intergovernmental practices and procedures. Now, finally, the topic of constitution. For some time now, of course, consideration has been given in this country as to whether to adopt a written and in that sense codified constitution. The debate is not necessarily linked to devolution or to federation. While it's customary for federations to have a codified constitution, constitutions need not provide for federalism, and indeed discussion of a written constitution here is often driven by other aspects of the constitutional arrangements of the United Kingdom. Nevertheless, given development since 1998, if the United Kingdom were now to adopt a written constitution, it's unthinkable that devolution would not be included in it. For present purposes, I'm prepared to assume that such a constitution would be entrenched. I acknowledge, but I don't intend to engage with the legal puzzle of how this might occur, in this at least, if there literally is a will, there will be a way. I note, however, that it would be possible to reduce constitutional arrangements to written form without entrenchment, and at least some of the observations that I make on the subject would apply whether the constitution were entrenched or not. It should go without saying, moreover, that a decision for entrenchment says nothing about the degree of difficulty of constitutional change. So, in what follows, I deal with three aspects of a written constitution. Content, the treatment of the constitutions for the constituent parts of the United Kingdom, and the methodology of constitutional review. Federation is more than an add-on to a unitary constitution. Federal features are likely to infuse the institutional arrangements for the central state. Federation may require consideration in designing mechanisms for constitutional rights protection, as the example of Canada shows. Generally, the federal form of the state is reflected in any preamble and affects the design of procedures for constitutional change. Federation itself is a complex arrangement with several dimensions for which a codified constitution normally would provide. I've mentioned three already. The institutional arrangements for shared rule, the distribution of power, and a framework for intergovernmental relations. Others suggested by comparative federal experience include matters for which common standards are sought across the Federation and aspects of unity that are deemed to need protection in a compound state. Parts are a typical example of the former. Protection for unity may be sought in relation to, for example, freedom of movement and the equality of treatment of citizens, each of which may be threatened by the dynamics of competing jurisdictions. Path dependency is inevitable and appropriate in any new constitution. But in drafting a codified constitution for the United Kingdom, some matters necessarily would change. Let me identify five drawing on my earlier observations. First, moving to a written and trench constitution would force decisions on the thorny issues of the constitution and powers of the House of Lords and on the West Lothian question. The latter might be ameliorated by the constitutional provision of a mechanism to allow further federalisation by or in relation to parts of England if the will to do so emerged. Secondly, drafting a written constitution may cause reduction of the asymmetry in the design of institutions and the allocation of powers in relation to Scotland, Wales and Northern Ireland, already dwindling through the release of the command paper this afternoon. It would not necessarily eliminate asymmetry entirely, but it would require departure from symmetry to be justified. Third, on a related point, reflection on the implications of abandoning parliamentary sovereignty might in any event prompt change in the method of the devolution of legislative and executive power in relation to Scotland and Northern Ireland and soon to Wales. Questions that would arise include whether there should be a list of identified powers for the constituent nations as well as the central state, whether residual power should continue to rest with the former and whether some or all powers should be stipulated as concurrent in the sense that they might be exercised by either sphere of government. Fourth, the description of the powers themselves would be likely to change in the course of developing a codified constitution, not least to abandon much of the detail in which they're presently prescribed. And equally, fifth, both the detail and the principle of central powers of intervention in the affairs of devolved jurisdictions may need to be revisited. It's relatively unusual for federations in developed states to make constitutional provision for intervention by the centre and where it occurs, as for example in Germany, safeguards are provided in the form of procedures for approval by the institutions of shared rule coupled with judicial review. A particular aspect of the question of the content of a federal constitution is what, if anything, should be said about the constitutions of the constituent jurisdictions. Federal constitutional practice varies in this regard. In some federations, the constituent jurisdictions have their own constitutions prescribing their own institutional arrangements subject to any overriding constraints in the federal constitution. In others, the constitutional arrangements for the constituent regions are prescribed in the federal constitution, although sometimes in a form that gives the relevant jurisdiction some say in their alteration over time. In a South African variation, the central constitution prescribes the constitutional arrangements for the provinces but authorises the latter to draft their own constitutions if they choose subject to certification by the constitutional court, which has proved to be a very high hurdle. As matters presently stand, the constitutional arrangements for Scotland, Wales and Northern Ireland are prescribed in devolution statutes in an exercise of reserved power following consultation and approval. While satisfying the proprieties of devolution in conditions of parliamentary sovereignty, it's improbable that this particular aspect of the status quo would be maintained under a federal constitution. Change of some kind therefore would seem inevitable. As a generalisation, discreet constitutions for constituent jurisdictions are less usual in federations formed by devolution rather than by aggregation, if only for the pragmatic reason that they didn't exist before. But this is not entirely the case in the United Kingdom if the devolution statutes are treated as proto-constitutions. This consideration may suggest that if the United Kingdom were to constitutionalise a federal form of government, each jurisdiction might be authorised to draw up its own constitution subject to central constitutional constraints, the extent of which would need to be determined. In a codified constitution, the provisions constituting the federation as well as all or most others would trigger, would be able to trigger review by the courts on constitutional grounds. On the assumptions that I've made, constitutional review would apply to legislative as well as executive action even by the Westminster Parliament. In recent years there's been growing comparative interest in the reasoning of courts with a constitutional review jurisdiction. The work done so far suggests that the differences are considerable and that the reasons for the difference lie deep. In relation to federal constitutional review, there are at least two sets of variables. One concerns the mechanisms and principles used by courts to determine the validity of challenged action. A prime example is the techniques to determine whether a law is supported by a constitutional power which involves a search for pith and substance in Canadian terms but only sufficient connection in Australia. The other concerns any underlying assumptions that affect judicial understanding of the task to be performed. These may relate to the nature of federation itself including its purpose and core features. The Australian High Court for example decided long ago is somewhat idiosyncratically that federation involves two spheres of government separately organised to which power is relatively unimportant. This understanding has underpinned a jurisprudence that fiercely protects the institutions of each jurisdiction from attack by the other while dramatically expanding commonwealth power through constitutional review. The United Kingdom already has considerable experience of judicial review of the devolution arrangements. The devolution legislation itself quite unusually prescribes the technique to be applied in determining whether an act relates to a prescribed matter by reference to purpose and having regard to effect. By 2015 enough cases have been decided on devolution questions for some tentative observations about an emerging jurisdiction to be made. The meaning of relates to as the touchstone for determining whether a challenge law is within power has been spelt out in a small handful of decisions from Scotland and Wales that interestingly at least for the moment attach no significance to the differences in the context in which the term is used. Likewise there's now a small body of authority about the scope of the incidental power although variations in the formulations used could prove significant over time. At a more conceptual level the court has accepted that the devolution acts a constitutional statutes, that acts of the legislatures they establish are primary legislation and that the policy assessments of these democratically elected legislatures are entitled to a degree of deference in determining consistency with convention rights. These holdings are important markers in devolution jurisprudence in this country. Even on the basis of the current devolution settlements foundation questions remain to be resolved however. Some flow from the still ambiguous nature of the devolution acts. Should they be interpreted in a way that relies on their constitutional character and if so what might that involve? Alternatively if their statutory nature is emphasised do all the rules of statutory interpretation apply including for example the principle of legality. This later line of inquiry has the potential to further limit the competences of the legislatures of Scotland, Northern Ireland and Wales. These are already vulnerable to treatment as second class legislatures for the purposes of judicial review as some of the reasoning in the recent Welsh case shows. Many although not all of these questions would persist under a codified constitution although the framework of reference for them would differ. The stakes for judicial review would be dramatically changed however. Most obviously questions of competence would become more acute given the greater difficulty of constitutional change. This reality could be expected to feed into the methodology of review in both technique and underlying assumptions. What that would mean in practice would depend on the model adopted. Designation of powers as exclusive or concurrent and the treatment of residual powers makes very different demands on the methodology of constitutional review. So finally by way of conclusion devolution in the United Kingdom has added new dimensions to comparative experience with federal type systems. Much of the devolution settlement is distinctive but five features stand out in particular at least for me. They are the acceptance of asymmetry, the progressive transferal of competence, the effective reliance on self control by the centre to maintain the boundary with devolved competence, the explicit recognition of the democratic rationale for devolution particularly in the courts and the tolerance of the possibility of secession. It's far from clear that any of these can be cloned for use elsewhere. They depend in many ways on local conditions including historically distinct and territorially bounded communities, developed democratic institutions, a long tradition of constitutional pragmatism, a practice of sophisticated discursive reasoning in the judiciary and a generally relaxed approach to the concept of the state. Even if only as an example however, devolution in the United Kingdom offers insights for many countries in transition struggling with the imperative to provide for local self-determination but apprehensive about whether it will work and where it might lead. It holds lessons for many developed federations as well including my own which is much less comfortable with asymmetry, even more jealous of central authority and slow to recognise the democratic advantages that federalism can bring. My intention this evening was to place the United Kingdom in comparative perspective not only to identify what devolution offers but to explore where it might go next. You may think that either full blown federation or an entrenched written constitution is unlikely in this state and that a combination of both is entirely implausible. On present indications I would be inclined to agree. On the other hand there's plenty of evidence including from the United Kingdom that constitutional opportunities sometimes present themselves suddenly as a result of a conjuncture of personalities and events in ways that cannot be foreseen. And on any view it's likely that devolution in the United Kingdom will move a little bit further down each of these paths. On that assumption comparative experience suggests a range of issues that are likely to need attention even from the standpoint of effective devolution. In no necessary order of importance these include the institutions of shared rule the degree of detail with which competence is devolved and withheld, unnecessary asymmetry and the structure and transparency of intergovernmental arrangements with anire to the demands of democracy and the rule of law. Underpinning them all is the imperative for the development of a federal culture to give devolution substance and depth. Many thanks for attending tonight. I'm conscious of my cheek in talking on this topic to such an informed audience. I hope that what I've had to say is of some interest and I also hope, although I'm by no means confident that Sir David would have approved. Thank you.