Dealing with devolution’s doublethink

Mark Elliott questions how long asymmetrical relationships can survive within the UK

Whether the United Kingdom should adopt a written constitution is a question that is impossible to answer in the abstract, the content of a constitution being at least as important—indeed, far more important—than its form. In general, therefore, whether the shift to a written constitution would be a good thing can be determined only by means of subjecting a particular draft text to detailed analysis. That said, however, there are certain matters of which a written constitution—assuming that such a text would exist as higher-order law rather than as a glorified Act of Parliament—would likely be determinative. One of them is the nature of the relationship between the UK and (what we now call) devolved tiers of government.

The present devolution schemes exhibit two of the features—messiness and informality, neither of which terms is intended to be necessarily pejorative—that define the prevailing approach to constitutionalism in the UK. Part of devolution’s messiness is designed, its asymmetry being an intended feature that facilitates bespoke responses to local needs and aspirations, rather than a careless accident. Yet other instances of untidiness—the West Lothian Question being a paradigm example—are artefacts resulting from the casualness, even carelessness, with which the UK’s present constitution can be altered. This incentivises the eschewal of fundamental redesign, and instead results in a piecemeal approach to constitutional reform that produces loose ends and results in hard questions often going unaddressed.

Written constitutions are not, of course, a panacea when it comes to the resolution of such questions. Nevertheless, it is difficult to imagine a written constitution being adopted whilst leaving something like the West Lothian Question unanswered. A written text calls—in a way that the present system does not—for the wiring of the constitution to be laid down in a defensibly rational way. In contrast, the relative opaqueness the present system allows much of the constitutional wiring to remain hidden behind a veil of obscurity that diverts attention from its untidiness (at best) or illogicality (at worst).

Meanwhile, devolution instances an informality whose appropriateness a written constitution implicitly repudiates—the very act of adopting a written constitution being an endorsement of a more-formal approach to constitutional design—and which would be unlikely to survive the adoption of such an instrument. That informality is evidenced in part by the network of constitutional concordats—in effect, written conventions—that underpins the devolution schemes and, in particular, the relationship between the devolved and UK tiers of government. At a macro-level, informality is further illustrated by the fact that devolved institutions’ constitutional space is ultimately carved out not by the constraining force of law, but by nothing more prescriptive than the restraining force of politics.

A cardinal feature of the existing devolution schemes is that the UK Parliament has relinquished none of its power. Authority has not been transferred from London to Belfast, Cardiff and Edinburgh. Rather, it is has merely—for the time being, and on such terms as are laid down in Acts of the Westminster Parliament—been shared on a non-exclusive basis. Devolved legislatures enjoy law-making autonomy, free from Westminster’s interference, not because Westminster cannot unilaterally intervene in devolved affairs, but because it does not. More than this, as a matter of strict constitutional law, it is open to the UK Parliament to diminish the powers of devolved institutions and, ultimately, to abolish such institutions altogether by means of unilateral legislative action. The fact that such scenarios are barely imaginable derives not from any legal incapacity on Westminster’s power, but from the restraint demanded by practical political considerations.

Yesterday I commented on suggestions by the First Minister of Wales to the effect that devolution’s reliance upon this sort of political restraint—as opposed to the legal incapacitation of Westminster—was becoming increasingly unacceptable. It is an argument that points ultimately away from devolution and towards a federal (written) constitution for the UK. The matter can be put the other way, too. If the UK were to adopt a written constitution, then it is difficult to see how the informal characteristics of the devolution settlements could or would survive.

On one level, the rationality called for by the process of drafting and adopting a constitutional text would tell against the sort of doublethink—a UK legislature legally capable but politically incapable of unilateral interference—upon which our current arrangements depend. On another level, the adoption of a written constitution would open up the possibility—absent from the current system, at least on an orthodox view of the sovereignty of (the Westminster) Parliament—of a genuine division, as opposed to non-exclusive sharing, of authority. And, on yet another, still deeper, level, the very act of adopting a written constitution would be at odds with the sort of implicit trust which is the reverse side of the informality coin. Written constitutions are adopted precisely because political restraint is judged insufficient to ensure that institutional actors play by unwritten rules of the game that, in the final analysis, spring from nothing more tangible than a shared vision of constitution parameters.

It does not follow that the UK would, or would have to, adopt a rigidly symmetrical federal system of government if a written constitution were embraced. However, the adoption of a written constitution would necessarily involve the reimagining of the constitutional status of what we now called devolved government and its relationship with the centre. This has obvious implications for any future debate about the possible adoption of a written constitution for the UK. But it also has more immediate relevance given the debate presently taking place concerning Scotland’s constitutional future.

Just as it is impossible to determine in the abstract whether a written constitution would be a good thing—the devil, for the most part, being in the detail—so the case for independence cannot be judged in isolation from the kind of UK constitution that Scotland might in the future inhabit. For that reason, it is crucial that the debates concerning Scotland’s place within the UK and the future shape of the UK’s constitution do not merely proceed along parallel lines.

Mark Elliott is a Reader in Public Law at the Faculty of Law, University of Cambridge. This post was first published on the ConstitutionUK Blog

5 thoughts on “Dealing with devolution’s doublethink

  1. It is good to read a proper legal expert thinking through the broader implications of devolution – something that should perhaps have been done more publicly before 1997.

    It is only as one gets older that one appreciates the advantages of a so-called ‘unwritten’ constitution.
    As a law student, one longs for the intellectual purity of a written constitution – one may even be attracted to the idea of writing one – but experience teaches that a degree of ambiguity and compromise is essential if large numbers of human beings are to live in close proximity without cutting each other’s throats.

    Sovereignty of Parliament is especially important in a democracy because it makes it clear to the voters where ultimate responsibility lies, and because it places that ultimate responsibility in the same place as ultimate authority. This is vital when hard, fundamental choices have to be made, possibly in a hurry in a crisis situation.

    Federalism undermines that – although, in practice, most federal constitutions, like that of the USA, mask a concentration of power in the centre. Moreover, federalism makes the poor individual subject the victim of two separate sets of laws, regulations, politicians, and bureaucrats. State power is a regrettable necessity, but two governments in the same place are doubly regrettable without being in any way a necessity. Better outright Welsh independence than federalism – but better still would be to have neither.

  2. Another analysis which totally ignores the EU component! The Lisbon Treaty was supposed to be an EU constitution but they drew back judging, rightly, that sovereign people in the member states were not ready to accept that. But they will never give up and the probability as things stand seems to be that the UK will be subject to a written EU constitution before it becomes subject to a written UK constitution. The lack of an existing written UK constitution is a major weakness here.

    Since the EU views London, Scotland, Ulster and Wales as nothing more than NUTS1 EU Regions with elected legislatures then they don’t actually care how the UK tears itself apart… But that is precisely what the current arrangements within the UK are doing, as well as making the UK less competitive than it otherwise could be.

    Ad hoc/piecemeal devolution, or a federal UK of 3 or more parts, are just steps along the way to the Former UK. The EU has shown no appetite for absorbing Scotland as a special case as a new nation – they would rather absorb the whole UK and then they can impose whatever style of Regional administration they choose. Which is precisely what Heath and Monnet discussed before the Treaty of Rome…

    People in the UK are coming ever closer to the day of reckoning – unite and re-assert our independence by leaving the EU or be absorbed into the EU super-state on their terms. By which time a workable exit clause like Article 50 is likely to be a long lost dream.

    It is somewhat ironic that British constitutional lawyers and legal draftsmen have helped numerous countries around the world to draft their own constitutions but the UK has never drafted its own! If the UK government had the UK’s best interest at heart it would do just that, and quickly. But there is little evidence any of the three main parties have any ambition other than assimilation into the European superstate where top-down Regional administration is a given.

  3. Our Queen Elizabeth II is the sovereign embodiment of the State, and she exercises her authority within this Realm as the Crown in Parliament. Unless we are going to completely overturn our constitutional settlement, heaven forfend, it would be difficult for her to effectively exercise that authority through federal legislatures. If Scotland is allowed to become independent, it will become a seperate Realm (again), but unless that should happen, the UK Parliament will always be capable of altering devolution arrangements.

    Canada, though, has shared sovereignity between the Dominion and the Provinces – the British North America Act 1867, as amended, has determined how the State is governed. The provincial legislatures and governments act in Her Majesty’s name through the respective Lieutenant Governors, and their decisions may not be gainsaid by the Parliament or Government of Canada. It is a serious question that deserves full consideration to ask whether we would wish a British Constitution to establish a federation similar to Canada’s.

  4. Aled Jones is totally correct. We need a written British constitution, with Her Majesty placed at the centre. London has to be allowed to regain its rightful power. I think we all now agree that the devolution experiment has been a disaster. As part of the new constitutional settlement, we must fight separatist extremism, and therefore we cannot allow Scotland to smash the successful Union. Finally, British people have to stand up to the socialists of Brussels and take back our sovereignty. There is an alternative; so let us choose it.

  5. I can’t see Westminster committing suicide to adopt a written constitution limiting its own power(s). The Union has failed large parts of this island, and divided Ireland. Like other empires it will fade away. Scotland’s referendum is symptomatic of that failure, regardless of the outcome next September. The end of the Union can only create hope that democracy will finally arrive, in at least some of the nations.

    GCD

    “…we cannot allow Scotland…”

    Fascist tendencies there?

    “…the successful Union”

    Are you kidding?

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