After twenty years of reform, says Michael Keating, the UK constitution is back where it started.
The British constitution is often praised for its flexibility and capacity to adapt. On the other hand, critics have consistently complained that it gives too much power to the executive and lacks checks and balances In recent years, there has been programme of reform, intended to modernize the constitution and write more of it down. Devolution spread power away from the centre. The Scotland Act of 2016 seemed to entrench it by incorporating the Sewel Convention so that Westminster could not over-ride Holyrood in devolved matters or unilaterally change its powers. Europe limited the power of both Westminster and devolved governments through the European Union and the European Convention on Human Rights. The Fixed Term Parliaments Act removed the Prime Minister’s ability to call an election at a time of his or her choosing. The UK Government was told by the Supreme Court that it could not start the process of Brexit using prerogative powers but had to ask Parliament. Even a referendum on Scottish independence was brought within the veil of the constitution through the Edinburgh Agreement, recognizing the principle of Scottish self-determination, if not the details.
Yet none of this, it seems, has really altered the way we do business. A narrow referendum majority at the UK level is taking all four nations out of the European Union, although Scotland and Northern Ireland voted to remain. This in turn may entail a resetting of the devolution settlement as Westminster takes over powers now currently shared with Europe. The Supreme Court (in the Miller case) has told us that the protection given to Holyrood by the Sewel Convention is no protection at all. Parliament got the right to determine the start of Brexit but then voted it through with no amendment of conditions, effectively giving all bthe power back to the Government. The European Convention on Human Rights is under attack in some quarters of the Conservative Party. The right to hold an independence referendum is up in the air as the UK Government does not deny the principle but insists on controlling the timing. Now the Fixed Term Parliament Act has failed its first test as the parties have agreed to vote through a dissolution even when there is a government in office with a working majority.
The constitution will, nonetheless, be an issue in the coming election campaign. The Conservative Party is seeking a majority allowing it to determine the course of Brexit. This could mean pushing through a hard Brexit, using a more Eurosceptic majority and a weakened opposition. It could equally well allow the Government cover for a soft Brexit, accepting European regulations as the price of access to the EU market and easing up on immigration targets. The outcome will be determined by which faction within the Government gains the upper hand. Parliament will scarcely feature in the debate.
In Scotland, the election gives the Conservatives the opportunity to challenge the SNP in the name of the Union but it would take a drastic swing for them actually to win. For the SNP it provides the chance to demonstrate their continued dominance and thus strengthen the case for another independence referendum. As the UK result will probably point in the opposite directions, we are likely to have a clash of two mandates and two quite different interpretations of what our constitution actually means.
Constitutions are supposed to provide the shared framework within which normal politics is conducted. In this country, the constitution is subordinate to the political game itself. Twenty years of constitutional reform has brought us back to where we started.