Devolution in the UK

James Mitchell

• Publisher: Manchester University Press
• Year: 2013
• ISBN:
  9781847795236
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

This book describes and explains the evolution of devolution. Using previously unpublished primary, as well as a wealth of secondary material, the book offers a comprehensive account of the territorial constitution of the UK from the early twentieth century through to the operation of the new devolved system of government.

1
Constituting the UK

At the hands of its interpreters, the British constitution is an oracle which can only tell you why any and every particular change contemplated will not work. Whereas in some nations the existence of a written constitution means that almost anything can be done (or at least justified), in Britain the unwritten constitution is read to mean that almost nothing can be done. Its principles are ethereal bodies unable to offer any positive guidance but always ready to descend on any change as a violation of their spirit. To summon these Harpies, you need only suggest something different. (Heclo and Wildavsky 1981: 340–341)

What is the UK constitution?

In an article written in 1999, Peter Riddell of the London Times wrote, ‘The British dislike thinking constitutionally. It is somehow alien to our much-valued pragmatism’ (The Times, 18 January 1999). Professor Sir David Edward, former Judge of the European Court of Justice, went further. In a lecture in 2005 he argued, ‘We have become constitutionally illiterate, to the extent that we do not understand our own constitution’ (Edwards 2005: 9). The reason for this constitutional illiteracy is partly that there is no agreement on what constitutes the UK constitution. De Tocqueville is sometimes quoted as saying that England has no constitution. What this is normally taken to mean is that the UK’s constitution is not codified. Conflating two different meanings of constitution – ‘how a country is constituted’ and ‘its constitution’ – is common but, according to a leading defender of the pre-devolution constitutional order, should be guarded against (Johnson 2004: 18; see also King 2001: 3–6). One solution to finding the constitution is offered by Neil MacCormick: ‘If a state has at some time been set up, “constituted” by some deliberate act or acts, can these constituent acts be other than constitutions?’ (MacCormick 1978: 1). Indeed, if a state exists, can it fail to have a constitution, however contested it may be?

In his study of the British constitution, Nevil Johnson distinguished between customary and codified constitutions. Codified constitutions may be open to interpretation but the broad parameters are stated with varying degrees of clarity in some written form. Entrenched constitutions are those which have fixed principles which cannot be changed by normal legislation. The customary constitution ‘lays great store by a capacity to leave principles inexplicit, relying instead on what people feel from past experience, to be appropriate in the circumstances’ (Johnson 2004: 19). Johnson emphasises the role of elites in both ensuring legitimacy with a wider public and negotiating political accommodations (Ibid.). One critical reviewer of Johnson’s work remarked that the ‘customary constitution that Johnson celebrates proves elusive’ (Russell 2005: 457). This elusiveness was what made it attractive to many of its advocates across the main political parties and amongst the political elite until very recently. Indeed, the customary constitution remains very much alive in the UK today, albeit alongside significant institutional change.

The customary constitution, defended on the right by Johnson, also had its support on the left, though with a very different understanding of what was constitutionally permissible. John Griffith’s famous description of the UK constitution as a ‘political constitution’ highlights this elusiveness: ‘The constitution of the United Kingdom lives on, changing from day to day for the constitution is no more and no less than what happens. Everything that happens is constitutional. And if nothing happens that would be constitutional also’ (Griffith 1979: 19). Griffith argued for a strengthening of the House of Commons and that the ‘fundamental objection [to proposals for a written constitution, Bill of Rights, greater power for the Lords, regional assemblies and Supreme Court] is this: that law is not and cannot be a substitute for politics’ (Ibid.: 16). His was an argument for a ‘very positivist view of the constitution; of recognising that Ministers and others in high positions of authority are men and women who happen to exercise political power but without any such right to that power which could give them a superior moral position; that laws made by those in authority derive validity from no other fact or principle, and so impose no moral obligation of obedience on others; that so-called individual or human rights are no more and no less than political claims made by individuals on those in authority; that a society is endemically in a state of conflict between warring interest groups, having no consensus or unifying principles sufficiently precise to be the basis of a theory of legislation’ (Ibid.: 19). This was a classic leftist statement against comprehensive constitutional reform.

Significant change occurred during the 1980s that resulted in support on the left for a range of constitutional reforms, including devolution. Nonetheless, the UK constitution remains rooted in past ideas, institutions and interpretations. No understanding of today’s constitution is complete without an appreciation of these roots. In this sense, the UK constitution is as much a historic constitution as a political constitution.

The unitary state paradigm

At a popular level, people living in the United Kingdom are well aware that it consists of distinct national communities. Yet constitutionally, this diversity often causes confusion. Confusion even surrounds the name of the state itself. Richard Rose noted that it was difficult to name the nation associated with the Government of the UK, stating ‘One thing is for certain: No one speaks of the UKes as a nation’ (Rose 1982: 11). The absence of an adjective associated with the state does not mean the absence of a collective national identity or state nationalism. However, the UK ‘stands apart [from other European states] for its lack of an official nationalist ideology’ (Keating 1988: 56). When the term ‘nationalism’ is used in the UK it is more often assumed to refer to one of the sub-state nationalisms – Scottish, Welsh or Irish nationalism. Indeed, British/UK nationalists – state nationalists – quite often rail against ‘nationalism’ unaware of their own (state) nationalism. UK nationalism operates in a ‘banally mundane way’ (Billig 1995: 6). It is not only liberal Western academics who ‘today find it easier to recognize nationalism in “others” than in themselves’, as Billig maintains (Ibid.: 15), but also a wider public in the UK who rarely question the nationalism of the state itself. National identity is not only defined in terms of the state in relation to its external world but internally too. Recent constitutional change has shaken up the sense of identity amongst at least some sections of the UK’s population.

The absence of an explicit state nationalist discourse and the rise of substate nationalism led to state nationalism in the UK being referred to as ‘unionism’ in the twentieth century. In earlier times, state nationalism was referred to as ‘patriotism’ (Weight 2002: 727). Unionism is a term still commonly used in Scotland and Northern Ireland. In both cases, the ‘union’ originally referred to was the British union with Ireland. The Scottish Tories were known as the Scottish Unionist Party between 1912 and 1965 and for this period the ‘union’ was explicitly that with Ireland; latterly, the focus of attention in Scotland has been on the Anglo-Scottish union. Opponents of Irish home rule styled themselves as ‘unionists’, reflecting their support for the union. They did not style themselves as British nationalists. In part, this may be explained by the sense that the state was not entirely integrated. Ironically, then, the term unionist acknowledges the limited nature of the union.

Britain is often inaccurately used as a synonym for the UK. Official and popular understandings are often quite different. This is not surprising given the history of the state and also ambivalence concerning its official designation. In 1961, Duncan Sandys, the Conservative Secretary of State for Commonwealth Relations, sent a memorandum to the Cabinet arguing that public relations with Commonwealth countries were made more difficult by referring to ‘the United Kingdom’ or ‘the UK’, as this ‘soulless, official designation is totally lacking in popular appeal and inspires no emotions of affection or loyalty’ (TNA C (61) 46, 24 March 1961). He proposed the adoption of the terms ‘Britain’ and ‘British’ in all official correspondence, public statements and information in relations with the Commonwealth. In Commonwealth countries the Government representative would be called the ‘British High Commissioner’. He proposed two exceptions: in treaties and legal documents when the formal designation, ‘United Kingdom of Great Britain and Northern Ireland’ would be necessary and in the definition of citizenship. He rejected the idea of using ‘Great Britain’ as that would be abbreviated to ‘GB’ which he thought would be as ‘unattractive as UK’. The Cabinet accepted the proposal though it was thought preferable to make no formal announcement (TNA CC (61), 28 March 1961).

This concern was not confined to Conservative politicians. Labour Premier Harold Wilson recounted how he had fought a battle with the Foreign and Commonwealth Office to prevent the Government being seated at a Commonwealth conference behind a placard marked ‘United Kingdom’. Wilson insisted that he represented Britain (Rose 1982: 11). What is striking about these episodes is that nobody appears to have considered how this might be construed in Northern Ireland. As Richard Rose later suggested, any description of the UK as the nation of Britain ‘leaves unclear whether Ulstermen are included’ (Ibid.). Sandys maintained that before 1939 it was ‘rightly felt that other member countries [of the Empire] might resent it, if we arrogated to ourselves the term “British”, which was common to them all’ but, he felt, changes in the Commonwealth meant this was no longer the case. Northern Ireland was then a largely forgotten part of the UK.

The creation of the UK, like any other state, came about through the amalgamation of previously autonomous or separate entities. The manner in which these amalgamations occurred and the nature of the new political entities influenced future developments. Significantly, the creation of the UK did not mean the eradication of its constituent elements.

In his study of territory and power in the United Kingdom, Jim Bulpitt argued that it was hard not to conclude that the terms confederation, federation and unitary system ‘should be pensioned off and left to the second oldest profession, the lawyers, to play with’ (Bulpitt 1983: 19). Most text books, even books on Scottish politics, refer to the United Kingdom as a unitary state. The term ‘unitary state’ has been used rather loosely, and rarely defined. The Royal Commission on the Constitution (Kilbrandon) described the UK as a unitary state:

The United Kingdom is a unitary state in economic as well as in political terms. It has, for example, a single currency and a banking system responsible to a single central bank. Its people enjoy a right of freedom of movement of trade, labour and capital and of settlement and establishment anywhere within the Kingdom (though there is an exception in Northern Ireland in a restriction on employment imposed in the interests of Northern Ireland workers). Similarly, all citizens are free to participate in trading and other concessions obtained by the United Kingdom abroad. (Kilbrandon 1973: 19, para. 57)

In this respect, Kilbrandon was heavily influenced by conventional academic opinion at that time. What also makes this definition interesting is its application to debates on the future of the European Union today. The notion that a polity with a single currency, various freedoms of movement, even allowing for exceptions, constitutes a unitary state might suggest that the EU has the hallmarks of such a state. The alternative view, however, is that this is an inadequate definition of a unitary state.

The notion that the UK is something other than a unitary state was suggested by Gaspare Ambrosini, an Italian scholar, in the 1930s (Ambrosini 1946). Ambrosini put forward the possibility of an alternative state type, neither unitary nor federal. The third category he proposed was a state characterised by regional autonomy. He maintained that a number of states at certain times conformed with this type. Amongst the constitutions he felt followed a third way were that of Austria before and after 1918, the Spanish Republican constitution of 1931, the Weimar constitution and the Soviet constitutions of 1924 and 1936. He tentatively included the UK, given the status of Northern Ireland and Scotland. Mackenzie and Chapman later suggested that this was accurate and could best be understood with reference to ‘Continental jurists’ distinction between autarchic and autonomous bodies within the state’ (Mackenzie and Chapman 1951: 186). Each had corporate personality and a measure of discretion. The former drew their powers from the legislatures within the state while the latter drew their powers from the constitution and did not give the central legislature a superior status: the former were polities constituted from laws as distinct from those based on fixed principles. Mackenzie and Chapman noted that regional states are those in which autonomous bodies exist but do not possess any ‘national’ or ‘sovereign’ powers as of right. The essence of this third type (Mackenzie and Chapman rather grandly called it a theory) is that there is ‘ample constitutional experience to justify the substitution of a scale of unity – for the traditional dichotomy between federal and unitary States; and it is only by applying this criterion that one can obtain what might be called a gradation of Statehood’ (Ibid.: 186). Most pertinently, and with prescience, they argued that the UK was a regional state and that

once this is recognised it should be easier to face the issue of Home Rule for Scotland and Wales free from the old bogey of separatism. Regionalism is not a step to separatism, but a safeguard against it. (Ibid.: 198)

For many years, the orthodox view was that the United Kingdom was a unitary state but, as discussed earlier, a new orthodoxy, which viewed the UK as a union state, replaced this. This drew on Rokkan and Urwin’s typology of state formation which distinguished between four models: unitary, union, mechanical and organic federal (Rokkan and Urwin 1982:11). This typology, however, was important for understanding more than state formation and it was argued that it was important in understanding how the state had developed post-union (Mitchell 1997). Even the House of Lords Select Committee on the Constitution identified the UK’s union state nature as one of the five basic principles of the constitution (House of Lords 2001). However, while the practice of the UK’s territorial constitution may have conformed with the union state conception, which acknowledged its diverse components, it operated alongside a dominant unitary state understanding which was often the ‘conceptual lens’ through which constitutional politics was viewed and which informed and constrained thinking on which reforms were possible (Mitchell 1997).

The idea of the union state implies, though this is not explicit, that there were two parties to the union when, in fact, the United Kingdom consisted of a number of unions each with a different legacy. Each of these unions has been significant and requires to be taken into account in any understanding of devolution. The new orthodoxy of the UK as a union state already looks rather ragged in its inability to help us conceive of the United Kingdom after devolution. It is now better to conceive of the UK not as a union state but as a state of unions. Indeed, the logic of devolution has differed in each case. As Morgan and Mungham noted, ‘The rationale for devolving power to the nations and regions of the UK has involved one or more of the following: a political rationale (devolution as a step towards deeper, more pluralistic democracy); an administrative rationale (devolution as a means to more efficient, locally-attuned policy-making); an economic rationale (devolution as a stimulant to regional development); and a cultural rationale (devolution as a means of protecting and promoting civic and ethnic identities’ (Morgan and Mungham 2000: 24). Failure to appreciate the different legacies of these diverse unions results in a failure to appreciate these different rationales and the UK’s asymmetric nature as well as the likely path of each. The key insight of this conceptual lens is that the UK is far more likely to develop an organic federal constitution, even arrangements in which some part attains some measure of independence, than some more mechanical federal constitution.

England as a unitary polity

England was created as a unitary state and this has had considerable implications for the UK. The assumption that the UK is unitary because England was created as a unitary polity has affected devolution debates.

Ignoring England is perverse not only because it is the largest constituent of the state but it is often seen as the state’s core. The medieval historian James Campbell maintains that the history of the United Kingdom cannot be understood without consideration of how ‘some thousand years ago, England became a United Kingdom, but failed to incorporate the far West and the long North of our island’ (Campbell 1995: 47). That legacy remains relevant. Historians may argue over the beginning of England as a political and social entity (Jones 1998) but there is less argument over the importance of the myth of England as an ancient kingdom. Campbell has argued that England was a nation-state by 1066 and that there is ‘no question of there having been anything comparable to the English state in France, Spain or Italy’ (Campbell 1995: 31). He distinguishes between three zones in England around the time when England was unified: ‘first a zone of palaces and councils; second, a zone lacking palaces and royal meeting-places, but having uniform institutions; third, a frontier zone’ (Ibid.: 43). It could be contended that the first is the true heart of the UK, not only England, especially given that the ‘ordinary residences of all the rulers of England until Queen Victoria were within the same southern and western zone’ (Ibid.: 44). More significant is the claim that a ‘system of government which was substantially uniform’ existed in the area surveyed by the Domesday commissioners from south of the Tees and the Ribble (Ibid.: 31). England, it would appear, was the prototypical unitary polity from very early times. Provincial particularism and loyalties existed but these marked the success of the state as they had been created by the central authority and ‘did not so much contradict as reinforce that authority’ (Ibid.: 35).

Of course, this raises questions about the meaning of the state. The state as we know it today is wholly different from that in medieval times. There may well have been a ‘substantially uniform’ system of government but its reach and remit was so limited as to be almost non-existent by today’s standards. Nonetheless, the territorial pattern set by state formation in England lasted. Occasional jocular references to the ancient heptarchy of seven English kingdoms is made by opponents of devolution and federation. This says much about how English history is interpreted in contemporary political discourse. Political regions and regionalism are simply seen as either antediluvian or alien to the English tradition, only relevant in an earlier, more backward period.

The most important legacy of England as the prototypical unitary polity in the context of debates on the territorial constitution in the twentieth century was the myth of parliamentary sovereignty. The idea of parliamentary sovereignty was central to A.V. Dicey’s arguments against Irish home rule and would influence debates on Scotland and Wales later. As far as Dicey and later Diceyans were concerned, Parliament at Westminster was sovereign and no other body could be contemplated which might undermine or threaten that sovereignty. For Diceyans, sovereignty was one and indivisible. Though Dicey had a far more sophisticated understanding of the territorial constitution, his legacy has been to limit the scope of autarchic institutions and rule out autonomous bodies.

Union with Wales

Historically, religion and language, rather than the apparatus of the state, made Wales different. The initial union of England and Wales conformed more to the unitary state model of state formation than the union state model discussed above. The Acts of Union of 1536 and 1543 were assimilationist, quite different from the Treaty of Union of 1707 between England (and Wales) and Scotland. From Tudor times, Welsh counties had been run on English lines, subject to English law, with English as the official language and with Wales given representation in Parliament in return (Kiernan 1993: 6). Nonetheless, Welsh continued to be spoken, even if by a declining minority, partly kept alive by the non-conformist denominations, which ensured that this facet of Welsh distinctiveness never entirely disappeared. One problem, however, was that two parts of Wales emerged after 1945 – Welsh Wales, where Welsh was the main language, and English Wales, where English was the main language. Before that, many areas of Wales were mixed. Wales was more fully absorbed into the English core than Scotland ever was but, according to Robbins, neither was ‘absorbed in any simple fashion’ (Robbins 1988: 11). The intention of the 1536 and 1543 Acts was to introduce ‘uniformity in the legal codes of England and Wales, to have uniformity also in their administration’ (Williams 1950: 38). The Wales and Berwick Act, 1746 provided that references in Acts of Parliament to England should also be taken to refer to Wales.

But assimilation was never complete and Welsh distinctiveness found expression in different forms. In 1588, the Privy Council ordered that a Welsh translation of the Bible should be placed in every church in Wales (Williams 1950: 76). The nineteenth century was important in terms of tensions between Welsh and British nationalism or, as Thomas expressed it, between particularist and assimilationist attitudes, which followed through into the twentieth century (Thomas 1981). Assimilation in the nineteenth century came to be associated with the Conservative Party and the Anglican Church in Wales. The Conservatives opposed disestablishment and disendowment of the Church. Disestablishment eventually occurred in 1920. But the assimilationist tendency ran deeper than this. In words echoing those of a ni...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of boxes and tables
• Preface
• Abbreviations
• 1 Constituting the UK
• 2 Approaching to Arch-angelic: administrative devolution in Scotland
• 3 Staggering forward little by little: administrative devolution in Wales
• 4 Encouraging conformity, not emphasizing differences: Northern Ireland
• 5 A chaos of areas and bodies: the English dimension
• 6 The settled will of the Scottish people
• 7 Devolution is a process: Wales
• 8 In search of legitimacy: Northern Ireland since 1972
• 9 The English Question
• 10 Ever looser union
• Bibliography and sources
• Index