Tag Archives: Act of Union

Scotland’s place in the Union will not be decided in the courts: only politicians can enable or prevent independence

Posted on by

Whether or not Scotland can legally hold a referendum without the consent of Westminster is a question that has provoked much debate. Ciaran Martin argues that the answer to this question does not really matter: regardless of the legality of any referendum, it is unrealistic to think that Scotland will leave the Union without the consent of Westminster. This makes the key question a political one, which the courts cannot resolve.

In mid-August I spoke at the Edinburgh International Book Festival about Scotland and the future of the United Kingdom. My theme was that when the constitutional debate resumes (which it will) after the post-Holyrood election lull, there could, and in my view should, be a debate not just on what independence means, but on what remaining in the Union means. This is a fundamentally different proposition than it was in 2014, and not just because of Brexit.

In 2014, the three UK-wide unionist parties (which, let’s not forget, at the time held 53 of Scotland’s 59 Westminster seats between them) were all evidently comfortable with devolution. Both the UK government and the broader Better Together campaign spoke of ‘the best of both worlds’ of an autonomous Scotland within a devolved UK. As the polls tightened, the response was ‘the vow’ of more devolution.

Things are different this time. In July, Welsh First Minister Mark Drakeford, leader of the most successful unionist party in any of the devolved territories, warned of ‘a Government that is instinctively hostile’ for the first time in the history of devolution. Sometimes such hostility is just blurted out; sometimes it becomes law, such as the constitutional land grab that is the Internal Market Act. Combined with the unworkability of fully federal models in the UK, this instability within the Union means that when Scotland is debating its constitutional future, the nature of the Union it’s being invited to stay in merits more discussion than last time.

Insofar as I thought any of my arguments would attract attention, it was this one. But instead, coverage emphasised a throwaway restatement of my long-articulated view that the Scottish government is likely (though I did not say certain) to lose any legal case brought against referendum legislation it seeks to pass in Holyrood in the absence of a Section 30 power agreed with Westminster.

Continue reading →

The sovereignty conundrum and the uncertain future of the Union

Posted on by

Brexit has led to numerous clashes between London and the devolved governments, raising fundamental questions about the very nature of the United Kingdom, in a context where the European Union is no longer available as an ‘external support system’. Michael Keating argues that we need to find new constitutional concepts for living together in a world in which traditional ideas of national sovereignty have lost their relevance.

Since the Brexit vote, there have been repeated clashes between the UK and devolved governments. Some of these concern policy differences, notably over the form Brexit should take. Some reflect the inadequacies of mechanisms for intergovernmental relations. There is an inevitable rivalry between political parties at different levels. Beneath all this, however, are fundamental questions about the nature of the United Kingdom as a polity and where ultimate authority lies, especially after 20 years of devolution.

On the one hand, there is the classic or ‘Westminster’ doctrine, according to which sovereignty resides with the Monarch-in-Parliament. In the absence of a written, codified and enforceable constitution, this is the only foundation of authority. In this view, Westminster has merely ‘lent’ competences to the devolved legislatures, which can be taken back at any time, however politically imprudent that might be. Westminster may not often exercise this power but it provides a trump card in any conflict with the devolved authorities.

This is a powerful doctrine but at the same time an empty one since it rests on a tautology. Westminster is sovereign because, by dint of its sovereign authority, it says it is. The point was illustrated in the debates on the 1978 devolution legislation when an alliance of unionists and nationalists defeated a clause asserting that Westminster remained supreme, the nationalists because they did not want it to be true and the unionists because it was redundant. Westminster sovereignty is a myth, that is a story that may be true or false but works as long as people believe it. When the spell is broken, as it has in recent years, its supporters have to fall back on other arguments. There is a historical argument, that parliamentary sovereignty is rooted in constitutional practice; a normative argument, that in an age of universal suffrage, it really amounts to popular sovereignty; and an instrumental argument, that it allows for powerful and effective government. All are open to question. The historical argument is based on English practice and challenged in Scotland. The normative argument assumes that there is a single UK people with one channel for expression, rather than multiple peoples, the smaller nations having more inclusive electoral systems. The instrumental argument needs to be proven empirically rather than asserted.

Continue reading →

The Johnson government’s constitutional reform agenda: prospects and challenges

Posted on by

thumbnail_20190802_092917.jpgThe Conservative Party’s manifesto for the 2019 general election included a commitment to set up a Constitution, Democracy and Rights Commission (as discussed previously on this blog by Meg Russell and Alan Renwick) and engage in a wider programme of constitutional reform. In February, the Unit hosted an event to discuss the new government’s constitutional reform agenda: Sam Anderson summarises the main contributions. 

Page 48 of the Conservative manifesto for the 2019 general election committed to a wide range of constitutional reform proposals – including repeal of the Fixed-term Parliaments Act (FTPA), an ‘update’ of the Human Rights Act (HRA), and the creation of a ‘Constitution Democracy and Rights Commission’ to examine broader aspects of the constitution. On 4 February, the Constitution Unit held an event to discuss the implementation of this agenda, entitled ‘The Johnson government’s constitutional reform agenda: prospects and challenges. The panel consisted of two Conservatives: Lord Andrew Dunlop, a member of the House of Lords Constitution Committee and former Parliamentary Undersecretary of State for Scotland and Northern Ireland; and Chris White, a former Special Adviser to William Hague, Andrew Lansley and Patrick McLoughlin. Professor Meg Russell, Director of the Constitution Unit, chaired the event. The following is a summary of the main contributions. 

Lord Dunlop

Lord Dunlop suggested that the key question for the new government is what ‘taking back control’ means in constitutional terms. The years since the Scottish Independence referendum in 2014 have been incredibly rich for those interested in the constitution. We have seen a deadlocked parliament, an arguably ‘activist’ judiciary, and fracturing Union, whilst foundational concepts like parliamentary sovereignty, the separation of powers, and the rule of law have come under scrutiny. It would be wrong, however, to see the government’s manifesto commitments as simply a direct response to the political and constitutional crisis of last autumn. Brexit placed a number of areas of the constitution under strain, but for Dunlop, it is the long-term context that is key to explaining the proposals in the manifesto. In his opinion, the proposals are not about ‘settling scores’.

For a number of years, EU membership, the devolution settlements and the HRA have all to varying extents limited parliament’s law-making powers. For example, Lord Neuberger, former President of the Supreme Court, has pointed out the profound changes that the HRA has brought to the role of judges in relation to interpretation of statute law, and retired Supreme Court Justice Lord Sumption’s recent Reith Lectures have contributed to a long-running debate about the proper role of judges in a democracy. In Lord Dunlop’s view, the proposals on page 48 of the manifesto reflect the fact that Brexit has put additional pressure on an already strained constitution, and should therefore prompt us to consider whether the constitution is operating as it should.  Continue reading →