By stewartb – a long read

This is the third (and final for now) blog post on the findings of an ongoing Review of the UK Constitution by the Institute for Government (IfG) and Bennett Institute for Public Policy’s (University of Cambridge)

Source: Jack et al (2022) A framework for reviewing the UK constitution. Institute for Government report 50pp. (https://www.instituteforgovernment.org.uk/sites/default/files/publications/framework-reviewing-uk-constitution.pdf )

The aim of the Review is to examine the purpose of constitutions; to assess how the UK constitution fulfils that purpose; to highlight problems with the UK’s constitution that are now being revealed; and to offer views on whether and how it needs to be reformed.

The first contribution for TuS considered some of the characteristics of the UK constitution and their origins – created in England; operated by England’s institutions; and if, how and when to be reformed in future determined by England’s choices.  The second part focused on the nature and location of power in the UK – its concentration within the Westminster parliament and more so, in the governing executive.  Here attention turns to what is referred to as the ‘UK’s territorial constitution’.

The nature of the nation-state

The IfG/Bennett Institute report, not for the first time, points to quirks in the UK constitution:

Page 31: ‘States are usually described as either unitary, with a single central government, or federal, with both a federal government and constitutionally protected sub-national governments. The UK does not neatly fit into either category. The three devolved parts of the UK – Scotland, Wales and Northern Ireland – have autonomy over a wide range of devolved policy areas, such as health, education and the environment. However, the principle of parliamentary sovereignty means that this autonomy is at the gift of the UK parliament. The devolved administrations do not have the same legal rights and protections that sub-national governments do under traditional federal constitutions.’  (my emphasis)

Core to this is a fundamental issues: ’The question of whether the UK should be seen as a union of nations or a unitary state – and therefore the nature of the relationship between the constituent parts – remains a recurring source of debate. Perhaps most significantly, opinion is now divided between the four governments. The Scottish and Welsh governments take a union view, the UK government a unitary one, and the Northern Ireland executive is internally divided. This has contributed to different views on the appropriate relationship between the four governments.’ 

It seems to me that UK governments’ position on this matter has varied in recent times – by whim or political calculation rather than principle perhaps! And given recent pronouncements from leading British Labour politicians, it seems that Labour – at least outside of its leadership in Wales – is opting to ape the present Conservative and Unionist Party by firmly holding to the ‘unitary state’ model – but with the exception of Northern Ireland where the Union is acknowledged to be sustained by popular consent democratically expressed!

The IfG/Bennett Institute report acknowledges the lack of constitutional protection for devolution:

P31: The principle of parliamentary sovereignty means that the devolution statutes could, at least in theory, be repealed by a simple majority. The Scotland Act 2016 and Wales Act 2017 attempted to entrench the permanence of the Scottish and Welsh governments and parliaments, stating that the institutions may only be abolished on the basis of a decision of the Scottish or Welsh people in a referendum. But while it creates additional barriers to abolishing the institutions, and entrenches a convention that the consent of the people is required, in theory even this requirement could easily be repealed by Westminster.’

And the authors of the report point to recent shifts in the behaviour of the executive in Westminster: ’The abolition of the devolved institutions is highly unlikely; like many aspects of the UK constitution, it is political barriers not legal ones that place constraints on government actions. However, as noted above the UK government has in recent years shown an increasing willingness to push the limits of the norms and conventions that are central to the relationship between the four political institutions of the UK and override the devolved institutions in areas of their own responsibility.’

The report goes on to quote the example of the Sewell Convention:

P32: ‘.. while the UK parliament retains the ability to legislate in all areas, in accordance with the Sewell convention it will “not normally” legislate on devolved matters without the consent of the relevant legislature (usually expressed through a legislative consent motion). Since 2016, however, the UK government has repeatedly legislated without consent, most notably passing the European Union (Withdrawal Agreement) Act 2020 and the UK Internal Market Act 2020 without the consent of all of the devolved legislatures. While in the case of the former, the devolved legislature were arguably pushing the limits of the convention by registering their objection to the Withdrawal Agreement itself rather than the powers the Act gave to devolved ministers, the latter cut across a range of devolved policy areas, and every clause of the bill was subject to the convention.’

‘.. the urgency and necessity of the UK Internal Market Act – which set the arrangements for regulating post-Brexit intra-UK trade – was less obvious, and the justification for breaching the convention, rather than trying to reach agreement with the devolved governments, was much weaker.’

The authors point to a state of powerlessness: ’Despite opposition from the leaders of the devolved administrations, the UK parliament’s constitutional right to act without limitation meant that there were few opportunities for them to challenge the UK government’s action and seek redress.’

And the choice of words by the report’s authors in this next extract is notable: ‘The vulnerability of devolution to the whim of Westminster has created a sense of insecurity in the devolved nations that they could be overridden even in devolved areas, and risks precipitating the break-up of the UK itself.’ A constitutional settlement vulnerable to ‘whim’ of the executive of a government in Westminster that Scotland, by majority, has rejected.

The report’s authors also acknowledge the tensions created in the ‘territorial constitution’ where the electorate in the different nations of the UK make different party political choices:

P33: ‘.. since 2010 there have been different parties in power in each part of the UK – including those with opposing constitutional positions – which makes working on a consensus-based or co-operative basis much more difficult. Successful intergovernmental working relies heavily on good relationships between ministers in different parts of the UK and a willingness to compromise and reach agreement. These conditions are not always present. In recent years the UK government has taken a more confrontational approach to its devolved counterparts, and the nationalist government in Scotland has had the incentive to criticise the UK government and argue that the union is not working.’

Candidly, that last sentence is a ‘bit rich’.  Having written a 50 page report that identifies a long list and wide range of ‘key problems of the UK constitution’, it is more than a little ironic for these authors to write ‘the nationalist government in Scotland has had the incentive to criticise the UK government …’!

Brexit – England’s choice holds sway

P33: ‘Despite an initial commitment to seek UK-wide agreement on the UK’s negotiating position, the UK government went on to pursue a distant trading relationship with the EU, despite strong objections from the Scottish and Welsh governments. The first Brexit deal – Theresa May’s Withdrawal Agreement – was approved by the UK parliament, but all three devolved legislatures refused to give consent … This has highlighted the difficulties when majority opinion in the UK’s political institutions conflicts with that of the devolved institutions on matters of fundamental importance.’ 

Brexit is yet another and quite particular example of course of the tenuous nature of the practice of democracy in Scotland, of its remoteness and fragility of links to the concentrated centre of political and constitutional power in Westminster. With no grassroots or strong activist demand in Scotland wanting to test electoral opinion on EU membership, a Westminster government rejected by a majority in Scotland pressed matters to a referendum which resulted in England deciding for us in Scotland. And if that wasn’t sufficient, successive Westminster governments – chosen by England but again rejected by majorities in Scotland – decided on a Brexit almost as far from the status quo ante regarding EU relations as possible.

Democratic deficit

There is a notable if obvious acknowledgement in the IfG/Bennett Institute report:

P33: ‘The problem is exacerbated by the fact that the UK government can increasingly be said to primarily represent England. This is due to the UK’s majoritarian voting system and the divergent political trends in each part of the UK. Ministers are mostly drawn from the governing party’s pool of MPs and the two largest parties have few MPs in Scotland, and none in Northern Ireland, …. It has become increasingly difficult for devolved representatives to be present in the UK government, and for the UK government to be perceived as an independent adjudicator of the interests of the whole of the UK. This is further complicated by the fact that in areas that are devolved to Scotland, Wales and Northern Ireland, the UK government acts for England only.’

P34: ‘.. England remains highly centralised compared to many other countries, with most decisions still taken by central government. Even where decisions are devolved, tight central control of local budgets restricts the ability of regional governments to do things differently.’

While identifying problems and a need for reform, the report notes: ’There appears to be political consensus that further devolution within England is desirable, but no clear idea of what form it should take.’

Why make reference to devolution in England in this post? The report’s authors point to an inter-dependency (P35): ‘The English question is not only important to resolve the devolution gap within England, but it is also central to questions about how the union as a whole works.’  Seems like we’re back to Scotland’s future in England’s hands’!

The imposition of English government choices post-Brexit

As part of the IfG/Bennett Institute review process it has published additional ‘guest papers’ that provide further valuable insights. Here is a just a flavour:

Source: McHarg, A (15 May 2023) The contested boundaries of devolved legislative competence – securing better devolution settlements. IfG/Bennet Institute Review of the UK Constitution, guest paper  (https://www.instituteforgovernment.org.uk/sites/default/files/2023-05/contested-boundaries-devolved-legislative-consent.pdf  )

In recognising the increasingly contested nature of the devolution settlements due in large part to Brexit. Professor McHarg (professor of public law and human rights, Durham Law School) states: ‘In contrast to the early years of devolution, recent developments in both the political and judicial spheres have tended to constrain devolved legislative competences in new and problematic ways.

McHarg then makes this serious claim regarding Scotland’s democracy and system of government: ’The net effect of these changes, as I will argue in this paper, has been to threaten the ability of the devolved legislatures to discharge their central constitutional purposes effectively: to give effect to local democratic choices and to improve the quality of decision making in devolved policy areas by bringing it closer to the people it affects. A range of other constitutional values relevant to devolved law making have also been undermined, particularly process values such as transparency and accountability, intelligibility and legal certainty.’ These views imply that the status quo post-Brexit is highly problematic.

This author also confirms: ‘.. devolved competences are not legally entrenched. Because of the preservation of the sovereignty of the UK parliament, the devolution statutes can be freely amended to reduce as well as expand devolved autonomy, or they can simply be overridden by UK legislation on an ad hoc basis.’

And crucially in what is a very unequal constitutional arrangement when it comes to the balance of power: ‘… non-entrenchment also means that the boundaries of devolved competences are legally enforceable only against the devolved level. Devolved legislation which breaches competence limits is “not law” and the devolution statutes create extensive opportunities for judicial intervention to enforce competence limits, as well as conferring powers in more limited (but varying) circumstances for UK ministers to block the enactment of devolved bills where these have adverse effects in reserved areas. But there are no equivalent legal mechanisms to prevent UK level intrusion into devolved competences, nor even to test whether the boundary has been breached.’

On post-Brexit arrangements, Professor McHarg refers to: ‘The key elements of this new framework are the United Kingdom Internal Market Act 2020 (UKIMA) and the Subsidy Control Act 2022,’ She goes on to note: ‘The cumulative effect of these new arrangements is to create a “shared regulatory space that cuts across the respective competences of the UK and devolved administrations”, and one in which the regulatory choices made by the UK level institutions are systematically privileged, even when they are formally acting only in respect of England.’ In short, what England’s government wants for the whole UK, England’s government can get!

She adds: ‘The only direct effect on the devolution statutes is that UKIMA has become a protected/entrenched statute, which the devolved legislatures may not modify (but which the UK parliament is still free to override when legislating for England).

‘The consequence is that challenges to devolved legislation under UKIMA will take place outside the standard procedures for raising devolution issues, and on principles that are not yet clear. It also disguises the serious effect that the Act has on devolved law making freedom, as it leaves devolved competence legally intact but in practice severely limited as to the ways in which it can be exercised.’

And on the demise of the Sewell Convention: ’.. until 2018, there was no instance – where the UK government accepted that the Sewel Convention was engaged – of Westminster legislating without devolved consent. Beginning with the European Union (Withdrawal) Act 2018, however, six pieces of Brexit-related legislation have been passed in the face of the absence or refusal of consent from one or more devolved legislatures, which either change the law in currently devolved policy areas, or alter the scope of devolved legislative competences, or both.’

On the legislation passed without consent, the author notes: ‘.. while all the relevant bills so far related to the admittedly abnormal circumstances of Brexit, they are all notable for the scant attempt made to justify the decision to override the lack of devolved consent in constitutional terms.’ Note that characterisation of Westminster government behaviour: ‘scant attempt made to justify’!

The broader significance of post-Brexit changes is highlighted: ‘Of particular concern is the new practice of conferring powers on UK ministers to make delegated legislation in devolved areas – again, arising initially in Brexit-related legislation, but now becoming increasingly routine. Such powers are subject to ad hoc and patchy requirements to consult with or seek the consent of devolved ministers, and are especially difficult to subject to meaningful democratic scrutiny in either the devolved or the UK parliaments.

Once again, and in diverse ways, England’s choices over-ride Scotland’s – and it seems there is no constitutional protection.

Looking through her paper for a solution to Professor McHarg’s catalogue of constitutional ills, we find this: ‘The root of many of these problems lies in the constitutionally subordinate status of the devolved legislatures, subject to the continued sovereignty of the UK parliament. They cannot therefore be fully resolved without replacing parliamentary sovereignty with a constitutionally entrenched division of power. Such a constitutional revolution is not realistically in prospect, and might in any case bring problems of its own – not least the risk of excessively rigid legislative boundaries.’

A set of ‘modest reforms’ are proposed as a means of improving the working of the ‘territorial constitution’ of the UK but even with these the author cautions: ‘urgent action is required to ensure that devolution can fulfil its constitutional purposes. Even the modest reforms proposed here will not be easy to achieve. They go against the grain of the path dependency, asymmetry and lack of joined up thinking which has characterised the development of devolution to date. Legal and political precedents, once set, are not easy to overturn. The peripheral nature of devolution in the governance of the UK as a whole makes both political and judicial protections uncertain and precarious. And lack of entrenchment also means that even statutory reforms would be vulnerable to future reversal.’

End note

What is notable about the IfG/Bennett Institute review process is the provenance of the views being expressed. They come, arguably, from authoritative sources steeped in the British/English, Westminster- and Whitehall-centric establishment. These sources cannot be dismissed as ‘the usual grievance-mongers’, the typical charge levelled by Unionists at supporters of Scottish self-determination. And what is remarkable is how closely many of the findings to emerge are aligning with the flaws, threats and disadvantages of the UK constitution already identified from a Scotland perspective.

Throughout the series of recent TuS blog posts on the UK constitution, there is a recurring theme: the lack of effective agency available to Scotland’s residents and voters during the evolution, the present operation, and over any prospective reform of the UK constitution under which they live and are governed.

And even when the need for substantive change due to the flaws evident in the ‘territorial’ constitution is articulated by more enlightened commentators, we have Professor McHarg observing: ‘They cannot therefore be fully resolved without replacing parliamentary sovereignty with a constitutionally entrenched division of power. Such a constitutional revolution is not realistically in prospect’. And also concluding that there is ‘no clear idea’ of what form devolution in England should take and yet a resolution of the form of devolution for England is ‘central to questions about how the union as a whole works’.

I interpret all such matters from a Scotland perspective in this way: Scotland’s constitutional future whilst within this Union must await – and will be wholly dependent upon – England’s choices. It has always been so: it will always

Reference to the earlier blog posts:

The UK constitution – it’s England’s creation and England will decide if, how and when it is reformed! (https://talkingupscotlandtwo.com/2023/07/02/the-uk-constitution-its-englands-creation-and-england-will-decide-if-how-and-when-it-is-reformed/ )

The UK constitution – England and the concentration of ‘virtually unlimited’ power!

(https://talkingupscotlandtwo.com/2023/07/03/the-uk-constitution-england-and-the-concentration-of-virtually-unlimited-power/ )