The Unfinished Constitution
It is well known that the United Kingdom does not have a written and codified constitution but relies heavily on conventions and understandings. This usually works quite well but sometimes, as Sydney Low remarked in 1904, the understandings are not understood.
When it comes to the territorial constitution there have long been two different understandings. Understanding 1 sees the UK as a unitary state based on the principle of the sovereignty of the Monarch-in-Parliament. The doctrine has consistently been upheld by the courts, even though judicial authorities have asked, in their writings of obiter dicta, whether it is still realistic after constitutional developments in recent years, including devolution, transnational human rights law and (before Brexit) membership of the European Union.
Understanding 2 sees the United Kingdom as a plurinational and asymmetrical union. Its foundations lie not in an axiomatic dictum that cannot be questioned but in historic settlements based on the treaties and other acts which brought the constituent nations into union. These allowed the nations to retain various of their pre-union political identities, laws and rights. Some of these were written into the union laws but, with no mechanism to enforce them, respect for them is dependent on convention and political practice.
Arguments about this legacy have raged for over three hundred years but without reaching agreement. From the time of the Scottish Union of 1707, there have been those who argued that it would be logical and desirable for a plurinational state to be organised on federal lines, with legislatures in the three smaller nations. Their opponents (from the late nineteenth century called unionists) argued that this was logically impossible without violating the paramount principle of parliamentary sovereignty. In the twentieth century, the issue of secession became politically salient (and succeeded in the larger part of Ireland) but that is a separate constitutional matter.
At the end of the twentieth century, a newly-elected Labour Government finally brought in provisions for devolution in Scotland, Wales and Northern Ireland but without resolving the basic question of sovereignty. Like the system that preceded it, devolution is subject to very different interpretations. According to the UK government, supported by judicial rulings, it makes no difference to the doctrine of parliamentary sovereignty. Westminster has merely loaned power to the devolved institutions and could take competences back at any time. Another interpretation is that it introduced a form of federalism, endorsed by an act of self-determination in the form of the devolution referendums in the three territories. This makes it a change in the constitution, which should be respected. There are provisions in law (the Sewel Convention) that Westminster should not normally legislate on matters devolved to Scotland or Wales without the consent of the parliaments of those nations and the parliaments themselves cannot be abolished without a referendum. The Northern Ireland settlement is underwritten by an international treaty. Yet these provisions, being enshrined in ordinary laws, could themselves be repealed by a simple majority in the Westminster Parliament. While this provided potential for serious constitutional conflict, the various governments managed to avoid clashing over who had competence for what and to keep the constitutional issue out of the courts. Even when the Scottish National Party won an absolute majority in the Scottish Parliament and proposed an independence referendum, the issue of its legality was side-stepped by the Scottish and UK governments agreeing a one-off special legal provision for a vote in 2014.
UK membership of the European Union was similarly subject to two understandings. Understanding 1 saw it as a strictly intergovernmental body which did not affect parliamentary sovereignty and supremacy. According to Understanding 2, it represented a new source of law and supernational authority. As in the case of the UK Constitution, it rested in practice on both, and successive governments managed to avoid it becoming an issue of principle or legal dispute.
Devolution and EU membership were also linked in more practical ways. Within the framework of the European order, a more extensive devolution settlement was possible. The European single market obviated the need for internal market provisions in the devolution statutes (it is referred to only in the Northern Ireland Act). Nor was there a need for a UK-wide competition law or UK provisions in matters such as the environment or agriculture. Subsidiarity provisions gave the devolved governments the same leeway in applying measures as member states elsewhere.
Brexit delinks these complementary systems and opens issues that had been left in abeyance. The initial response of the Conservative Government to take back control to Whitehall even when devolved competences were at stake, although it later rowed back. The UK Internal Market Act is intended to replace the EU single market provisions, but without the subsidiarity and proportionality provisions or a significant role for the devolved government in creating the rules. The UK Government decided that legislative consent (under the Sewel Convention) was not necessary to trigger Article 50 and start the withdrawal process. The Supreme Court ruled that, while the consent of the Westminster Parliament was necessary, that of the devolved legislatures was not. It could have ruled that was because Brexit was not a devolved matter. Instead, it chose to rule that the Sewel Convention had no constitutional standing, being a mere convention. This effectively destroyed the convention as a constraint on the UK Government, and it was violated several times during the Brexit process.
The incoming Labour Government in 2024 vowed to reset relations both with the EU and the devolved governments. The atmosphere has certainly improved and their aspiration to more regulatory alignment with Europe will help relations with the devolved governments as Northern Ireland (by obligation) and Scotland (by policy choice) are committed to dynamic alignment. Yet the Labour government, like its predecessor, is firmly committed to Understanding 1 of the constitution. Promises to reinforce the Sewel Convention have been dropped while, in their reset with the EU, ministers insist on the three red lines of no single market, no customs union and no freedom of movement.
Instead, in an ironic parallel to EU modes of policy making, the UK has resorted to a strategy of de-politicisation, by defining issues as technical, and comitology, creating a plethora of intergovernmental committees and ‘consent’ provisions which lack binding force. The promise to take back control has given away to disappearance into an intergovernmental jungle, while the fundamental issue of where sovereignty and power lie remains unresolved.
It may be that a return to British muddling through is possible but that seems unlikely. Centrifugal tendencies within the UK are only increasing and are linked to ambitions in the devolved territories to remain close to Europe. Closer relations between the UK and Europe will mean some concessions on supranational rules. There are debates on the need to entrench the devolution settlements after the experience of Brexit. The question of England’s place in the Union is still there. We are not going to get a fully-fledged UK Constitution precisely because there is a lack of foundational agreement. Yet there does need to be a recognition of the question and clearer understandings.
Michael Keating is emeritus professor at the University of Aberdeen and honorary Professor at the University of Edinburgh.
This blog was first posted in the Academy of Social Science Devolution Hub and is reposted here with permission.