The ongoing Brexit process, by nature, involves a strong steer towards centralisation in favour of Westminster. This is due to the parliament’s twin role in expediting the UK government and that for England. In time, currently observed EU-centred regulation must be replaced to advance the development of an isle-wide framework structured to facilitate a single market, conformity with international rules, negotiation of trade accords, use of shared resources and safeguarding of rights. However, as emphasised by Professor Richard Rawlings in his report Brexit and Territorial Constitutions (Constitution Society): ‘the temptation to treat devolutionary aspects as if they were some kind of second front best frozen while supranational negotiations proceed, rather than to take them forward in tandem in a spirit of cooperation, must be firmly resisted.’
The various devolution arrangements have progressed incrementally and asymmetrically in the last two decades. During this time, the EU has been part of the fabric which holds the UK together. The pre-eminence of EU law, and its interpretation by the EU Court of Justice, has safeguarded the consistency of legal and regulatory norms across copious fields, including devolved areas. The UK internal market has been sustained by the conventions of the EU internal market. Brexit presents a risk that these interrelated competences may become increasingly unsound if not addressed by a new constitutional framework.
To protect the UK's unity post-Brexit, the Welsh Government has suggested federalism as a possible way forward, mirroring unionist views in Scotland. Federalism, whilst admittedly delivering more powers to Wales, offers restricted opportunities for expanding Scottish autonomy beyond the present status quo and does little to tackle the UK's future relationship with the EU in a way that is satisfactory to the Scottish Government. Federalism would likely deliver reform of the Barnett formula, as desired by the Welsh Government, but would impact negatively on the Scottish block grant, strengthening the attraction of a second independence referendum. Some politicians may even consider it intolerable to restructure the UK along federal principles, seeking to expand Westminster’s reach through Brexit. This would cast an ever longer shadow over the devolution settlements as the UK economy adapts to functioning separately from the EU. Repatriation to Westminster of EU competences in fields otherwise devolved could also hasten calls for Scottish secession.
The fact that 45% of Scottish voters would have preferred to end the Union in 2014 might suggest a lessening in appeal of the British identity, despite a majority of the electorate in Scotland being opposed to independence. However, some pause is required before jumping to this conclusion as the dual identity of the Scottish people within the UK has complex roots and meanings. The same is true of the population in Wales. Interestingly, the recognition of multiple identities, highlighted in recent decades by the European dimension of UK politics has created a genuine paradox for some nationalists—in that if it is possible to be Welsh or Scottish and European, is it therefore not possible to be Welsh or Scottish and British too? Admittedly the situation in Northern Ireland is more complicated.
Devolution, as a governance model, leaves Westminster parliamentary sovereignty, that most conceptual of constitutional principles, technically intact, hence its acceptance by most UK politicians. Wales and Scotland today hold legislative competence over all matters not explicitly reserved to Westminster, which implies a form of federalism, but without the usual sharing of sovereignty across parliaments. The House of Commons in London, according to the Sewel convention, also ought not to legislate on devolved matters without consent of the respective parliaments in Cardiff, Edinburgh and Belfast. The customary argument that parliamentary sovereignty should rest solely with Westminster in future years stands challenged.
With many asserting a multicultural Welsh, Scottish, Northern Irish or English character before claiming a form of dual nationality which also embraces a British personality, it is legitimate to reconsider the nature of Westminster’s parliamentary sovereignty such that it more appropriately encompasses authority only over select key isle-wide functions held in mutual interest and regard by the nations. These could include large-scale economic policy, defence, foreign affairs, and aspects of welfare. The consequential and pressing strategic issue going forward relates to whether sovereignty, as currently understood, should be shared across these five territorially defined identities (including that of Britain) in a traditional federal arrangement or instead assigned individually to the four nations—Wales, Scotland, Northern Ireland and England—which in turn would lease parts of their sovereign authority to common central institutions of a fundamentally British civic character.
British ideals and values are partly forged by geographic, historic and cultural influences which usefully bridge the demands of world interdependence and the desire for increased autonomy in the nations. The challenge is to capture these principles in a new constitutional framework which strengthens arrangements for self-government—through emphasising common respect for human dignity, freedom, democracy, equality and rule of law—within an isle-wide civic societal structure typified by pluralism, non-discrimination, tolerance, justice and solidarity.
The most effective modern constitutions articulate the essential framework of governance and are open to appropriate modifications in time, such as the pooling of sovereignty in international treaties and bodies. They also balance the basic principles with current and developing demands which may necessitate an authority or responsibility of government to be reassigned from one level to another. Creating such a written framework for these isles could prove invaluable across the political spectrum, with some finding reassurance in attempting to articulate the more distinctive elements of the UK’s practices in a codified constitution, and with others seeking to cement the sovereignty position of the four nations individually in relation to a common British civic structure.
As globalisation and migration intensify, states around the world are becoming increasingly diverse culturally, ethnically, legally, politically and religiously. All unitary states would be wise to pay attention to the attachments their populations feel towards the constituent nations, especially in cultivating and sustaining a sense of belonging to the larger political body. A widely accepted approach to successfully embracing and managing such variations is to revise and improve the nature and quality of governance. This is as true for the UK as it is for other states. Indeed, the safeguarding of individual liberty within the nations of these isles could serve as a useful counterweight to the inevitable instinct of the institutional centre to aggregate power deep within its core. The fact that written constitutions make the machinery of government more accessible and transparent is one of the most persuasive arguments for their application.
The integral buoyancy of today’s UK is depressed by the four nations’ differentiated politics, apprehensions about the Brexit negotiations, uncertainties regarding the post-EU Northern Ireland border, debates concerning a second Scottish independence referendum, and broad unease with the Wales Act 2017. It is now necessary to progress a UK-wide Constitutional Convention, with the involvement of all political parties and elements of Welsh, Scottish, Northern Irish, English and British society to explore the nature of the Union going forward, so that it can be made modern and fit for purpose for the 21st Century.
Let us ensure that this convocation is not one of Shakespeare’s politic worms...