Unwritten Rule

How to Fix the British Constitution

Stephen Green, Thomas Legg, Martin Donnelly

• Publisher: Haus Publishing
• Year: 2021
• ISBN:
  9781913368319
• Topic: Droit
• Subtopic: Théorie et pratique du droit

A consideration of how to repair the British state. Not since Ireland broke away from the United Kingdom has the British state been so fragile. Northern Ireland now operates under trading rules that are legally separate from the rest of the nation. In Wales, support for independence is running at a historical high, and Scotland is more conscious than ever of its individual identity and has aspirations for a European future. With public trust and confidence in government at record lows, the United Kingdom faces a crisis that can only be repaired by a new constitutional settlement. Unwritten Rule calls for a radical realignment, embracing a federal approach that would accommodate devolution as the best way of bringing about a successful and diverse national life, increasing democratic control over local and national decision-making, and modernizing national political structures.

Part 1: The Need for Radical Reform

The governance of the UK will always have its own distinctive form, shaped by the history of the country. But the assumption that what has worked will continue to work is increasingly dangerous. We believe that now is the time for a clear and honest look in the mirror; and we also believe that there are particular characteristics of a number of comparator democracies which will be relevant as we review the major constitutional issues now facing the UK.

Parliament: the need to adjust to an emerging, more federal settlement

Until the turn of this century, the UK was effectively a unitary state (except for the special circumstances of Northern Ireland) in which all significant political life was centred at Westminster. The national legislatures of Scotland and Wales are only just over twenty years old.

Since then, however, the devolved administrations have gained in power and influence. The three devolved parliamentary institutions now command substantial public support and are responsible for a wide range of social and economic activities. Essentially, the reserved powers of the UK government relate mainly to finance and macroeconomics, defence and security, border control and immigration, and international relations. As a result, an increasing proportion of legislation coming before the Westminster parliament applies only to England, since there is no separate parliament of England. This consequence has been recognised since 2016 by procedures at Westminster that allow only MPs representing English constituencies to vote on legislation that applies only to England.

There are two fundamental problems with this status quo. First, the devolution settlement of 1997 is contested and unstable, seen as based on a set of short-term political compromises rather than clearly understood and agreed principles. Second, devolution within England is at best a work in progress, with the balance between the centre and regions more weighted to the centre than is the case in any other major comparator polity.

For the UK as a whole, the devolution settlement is fraying, especially in Scotland. With the SNP’s rise to power and in the wake of the Brexit vote, the momentum for Scottish independence may now be unstoppable. In the process of leaving the EU, the UK government used Brexit to reassert its control over a range of economic activities that had previously been subject to the rules of the EU Single Market or other EU frameworks – from trading to fishing and financial services. In doing so, the devolved governments argued, it was flying in the face of the Sewel Convention – agreed in 1999 by the UK government at that time – which states that the UK parliament will ‘not normally’ legislate without the consent of the devolved legislatures in cases where the proposed legislation impacts their powers. The Supreme Court ruled in 2017 that the Sewel Convention remains a purely political convention, which is not justiciable. The EU Withdrawal Act and the UK Internal Market Act were thus passed despite their impact on devolved powers and against the strong opposition of the three devolved governments.

Against this background of exacerbated tension between Westminster and the devolved legislatures, the fact that majorities in both Scotland and Northern Ireland voted in the 2016 referendum to remain in the EU has created entirely new complexities. In the case of Scotland, it has created a new momentum for independence that may be impossible to reverse without radical change. It is also possible that, over time, this could lead to agreed changes in the relationship between Northern Ireland and the Republic, an outcome explicitly allowed for in the Good Friday/Belfast Agreement. As a result, the working-out of the new relationship between the UK and the EU could accelerate the eventual, consensual integration of Northern Ireland into the Republic of Ireland. Constitutionally, such an outcome in Northern Ireland would simplify the UK’s position (and it would also simplify the UK’s ongoing relationship with the EU, because the Belfast Agreement and the Northern Ireland Protocol would no longer be needed).

For Scotland, however, a new referendum resulting in a majority for independence would trigger complex negotiations involving the break-up of an integrated polity that is almost 300 years old. The whole process would be at least as difficult and protracted as the Brexit negotiations with the EU. It would also pose serious risks for both Scotland and the remaining UK.

The SNP has made clear its objective to achieve full sovereignty. Were Scotland then to become an EU member state – also a clear goal of the SNP – the UK’s ongoing relationship with Scotland would effectively mirror its relationship with the Republic of Ireland. The transition would create unique issues of defence, security, and foreign policy for the UK, as well as all the pressing questions about trade and investment experienced on the island of Ireland following Brexit. The Irish precedent of unrestricted movement between the countries would presumably be followed, and a new Scottish government would have to decide on highly sensitive questions about national identity qualifications, such as who would have the right to Scottish citizenship (which would give EU residency rights) – an issue likely to be of interest to many millions residing in England with close Scottish family connections.

But this is not just a Scottish crisis. The decision on Scottish independence will certainly also have reverberations in both England and Wales. The demand in Wales for effective home rule will become ever more insistent. And the ‘English question’, already posed starkly by the divisive experience of the pandemic, will be thrust further into the spotlight. Devolution has, in recent decades, led to substantial decentralisation of executive and operational functions for Scotland, Wales, and Northern Ireland. But England remains the most centralised large polity in the whole of the Western democratic world.

Even France – probably, of all our natural comparators, the most like England in its tradition of centralisation – now has strong mayoralties and regional councils. France has gone from Napoleonic centralisation, with préfets and sous-préfets acting as the executive agents of Paris across France, to a much more decentralised system where communes, municipalities, and regions all work together with significant autonomy. England, by contrast, used to be more decentralised than France, with county councils having real financial and executive powers. The two systems changed places in the 1980s, when France decentralised under President Mitterrand and the UK removed fiscal power from local authorities through rate capping and hypothecated grants.

There are, however, serious obstacles to reform. England has been a relatively centralised country since the Norman Conquest in 1066. English governments have always tended to think in centralised terms and have been reluctant to cede real autonomy to regional centres of power. This tendency is part cause and part consequence of relatively weak regional identities, at least in political terms. The only regional polities England has ever had – the ancient kingdoms of Mercia, Northumbria, Wessex etc. – have no continuing relevance even as folk memories, and county loyalties surface mainly in cricket. The only serious attempt since the Second World War to create regional democratic institutions in England – that of the Blair government in the early years of the new millennium – came to an embarrassing halt when the people of the north-east voted overwhelmingly (on a low turnout) against the establishment of a regional assembly in 2004.

Since then, decentralised democratic representation has evolved in a different direction. Over twenty cities and metropolitan areas now have directly elected mayors (some of whom have established national reputations). This is a significant development, driven increasingly firmly by central government ever since the coalition of 2010 to 2015. Yet the powers of these elected mayoralties remain limited, particularly in regard to funding. True federalism implies giving these units significant authority to make their own decisions about how and at what level public services are provided. To do so would require meaningful power to raise and allocate funding, without which electoral accountability becomes one-sided and weak (with elected mayors too easily able to blame central government for their failure to deliver on electoral promises). Such financial powers would in turn require a radical change in the traditional Treasury orthodoxy, which has always sought to avoid or minimise any decentralisation or hypothecation of taxraising other than in very special circumstances, such as those that led to the Barnett formula (dating from the 1970s), which automatically adjusts central government spending allocated to the devolved nations.⁴

All this pressure for devolution has profound implications for the Westminster parliament. Despite the imperfections of the status quo – and notwithstanding occasional outbursts of irritation by central government at the complexities it involves – devolution seems to be a one-way street. The centralising instincts of both West-minster and Whitehall have not entirely faded; indeed, theoretically, all the devolved powers discussed above could be revoked by a single act of the Westminster parliament. Yet this would be plainly impossible, given the political realities of the modern era. Devolution therefore necessarily raises fundamental questions about the role and authority of the Westminster parliament. Furthermore, the competence and efficiency of Westminster have increasingly come under the spotlight in rec...

Table of contents

• Cover Page
• Frontmatter
• Halftitle
• About the Contributors
• Title
• Copyright
• Contents
• Preface
• Introduction: The Emerging Crisis of Governance1
• Part 1: The Need for Radical Reform
• Part 2: A New Constitutional Settlement
• Acknowledgements
• Notes
• Backmatter