Tag Archives: legislative consent

MPs’ role in the constitution

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MPs play a central role in all democratic systems, but this is particularly true in the UK given its tradition of ‘parliamentary sovereignty’. With judges unable to strike down Acts of Parliament for unconstitutionality, MPs have a key role in constitutional protection. Like MPs elsewhere, they also have responsibilities for upholding the constitution and democracy in many other ways, most obviously through holding the government to account, and representing the public, but also, for example, through maintaining standards of political debate. Meg Russell and Lisa James summarise these various important roles. 

Members of parliament are central political actors in all democratic systems. Legislatures are highly visible institutions, and MPs have key roles representing citizens, debating key policy matters, scrutinising the executive and approving major changes to the law. The legislature is at the heart of any functioning national democracy. 

Hence MPs routinely have important roles within the constitution. But some of their wider roles and responsibilities in upholding and protecting the constitution are less often spoken about. In an age of populism and ‘democratic backsliding’ these deserve reflection. As sadly seen in various countries, MPs are important gatekeepers whose consent can facilitate the dismantling of democratic norms and institutions. But where they stand firm, they can be bulwarks against decline. 

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Devolution in the 2024 party manifestos 

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The parties contesting the general election have now published their manifestos, allowing exploration and comparison of their constitutional proposals. In this fourth post in a series on the manifestos, Patrick Thomas examines the commitments on devolution, and considers what these might mean for the future of the UK. 

It has now been a quarter of a century since the devolved institutions in Northern Ireland, Scotland and Wales were established. Twenty-five years on, devolution remains a live issue in all but one of the 2024 manifestos. But this inclusion of the constitutional questions around devolution is where the commonalities largely stop.  

The 2024 manifestos present four different visions and approaches in the area of devolution. The Conservative Party displays a hesitancy and even hostility towards devolution, and an instinctive desire to assert Westminster power. The Labour Party, on the other hand, clearly likes the system it created in 1998 and so sets out a vision for reasserting the status quo. The Liberal Democrats seek to take devolution much further, by making the UK a federal state. And the Scottish National Party and Plaid Cymru share a vision of ever greater devolution, at least partly in hope that it will further their end goal of independence from the UK. Two other manifestos do not present a vision for devolution, but in very different ways. The Green Party manifesto acknowledges the importance of devolution but seeks to stay out of the debate, while supporting freedom of choice. Reform UK, on the other hand, simply ignores devolution entirely. 

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Are unionists the biggest threat to the Union?

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There has been much debate in recent years (on this blog and elsewhere) on the validity of a second referendum on an independent Scotland. Defence of the Union has often been by reassertion of the unitary nation-state model. Michael Keating argues that this demonstrates a fundamental misconception of what union means, and that the nationalism implied by the nature of a union maintained by law, rather than the consent of its people, represents a threat to the continuing Union of the United Kingdom.

In its 2020 White Paper on the Internal Market, the British government described the United Kingdom as a ‘unitary state’. Although, for many at Westminster, this might sound rather banal, it betrays a serious misunderstanding of what is, and always has been, a plurinational union. Such misunderstandings are pulling the Union apart.

Four dimensions

In my book State and Nation in the United Kingdom, I spell out the difference between a unitary nation-state and a plurinational union by reference to four dimensions: demos; telos; ethos; and sovereignty.

Demos refers to the people and whether they are singular or plural. When prime ministers declare that ‘the British people’ voted for Brexit, they are invoking a unitary demos, but begging the question of what ‘the British people’ actually means. In fact, the peoples of ‘these islands’ have varied national identities, some identifying only as British and others not seeing themselves as British at all. It is not as simple as four separate identities because, within each of the component nations, there are complex forms of belonging and multiple forms of national identification. Some unionists are now arguing that Britishness is a common, overarching identity but that, underneath it, are the local varieties. Yet this does not work either. Britishness itself is experienced and defined very differently from one part of the United Kingdom to another. The fact that the United Kingdom does not even have an adjective for its citizens indicates the difficulty of fitting Northern Ireland in. Britishness is analogous to what the philosopher Wittgenstein called a ‘family resemblance’. Any two members of the family may share a feature in common but there is no feature common to them all.

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Regulating the use of COVID passports in the UK: the need for primary legislation

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Talk of ‘COVID passports’ as a means of proving a person’s vaccination status has increased in recent weeks. Ronan Cormacain argues that rule of law concerns necessitate that COVID passports must be created and regulated by primary legislation, which must be given time for proper parliamentary scrutiny. They should not be brought about by secondary legislation, as has been the case with a significant amount of pandemic-related legislation.

The so-called COVID passport is a way of ‘proving’ a person’s COVID status. This blogpost makes three arguments. Firstly, that the use of COVID passports ought to be regulated, secondly that that regulation ought to be by way of legislation, and thirdly that that legislation needs to be an Act of Parliament.

There are many forms such a passport could take: digital or non-digital, domestic only or international, relating to the presence of COVID antibodies or vaccination status, etc. Furthermore, there are many important questions around the content of such a law: the justification of requiring a passport, scope, international recognition, protections, necessity and proportionality, time limits on regulation, etc. This post does not address any of these questions, focusing not on the detail of any law regulating them, instead simply arguing that there should be a law regulating the matter in the UK.

Autonomous moral actors in an unregulated market, or heteronomous rules imposed upon a regulated market

John Locke’s almost mythical conception of a pre-Commonwealth era was of autonomous individuals perfectly free to make their own moral choices. There were no externally imposed rules, and we were all individuals with complete power to determine our own actions. Or as Locke put it: ‘a state of perfect freedom to order their actions, and dispose of their possessions and persons as they think fit, within the bounds of the law of Nature, without asking leave or depending upon the will of any other [person]’.

At the time of writing, COVID passports, or more specifically, the right to treat a person in a particular way depending upon whether or not they have a COVID passport, occupies a near Lockean regulation-free space. There is no rule that a publican may refuse entry to a person without a passport, but nor is there a law that specifically prohibits him from doing so. There is no rule that a health worker must only be employed if they have a passport, but nor is there a specific protection for those who don’t have one. Aside from the regulation of travellers to England, Scotland, Wales and Northern Ireland (who must be in possession of a negative COVID test result), this is a law-free zone.

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Five years of ‘EVEL’

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In the wake of the devolution settlements of the Blair years, political pressure to answer the ‘West Lothian Question’ persisted. In 2015, the proposed answer was ‘English Votes for English Laws (or EVEL). Today, on its fifth anniversary, Daniel Gover and Michael Kenny assess how EVEL has worked, during one of the most volatile political periods in living memory.

On 23rd October 2015, the ‘English Votes for English Laws’ (or EVEL) procedures came into force in the House of Commons. Introduced by David Cameron in the aftermath of the Scottish independence referendum, these new rules were designed as an answer to the notorious ‘West Lothian Question’ – the late Tam Dalyell’s resonant enquiry about why Scottish, Welsh and Northern Irish MPs should continue to be able to vote on matters that only affected England after devolution, while MPs in England were not able to reciprocate in devolved areas.

When EVEL was introduced, the procedures were sharply criticised by opponents. For some, the reform would not only be logistically difficult to implement – likely to be ‘incomprehensible’ to MPs and the public alike – but would also threaten the UK’s constitutional makeup. In particular, it was argued that EVEL would establish ‘two classes of MP’ at Westminster, undermining the ability of non-English MPs to represent their constituents’ interests. Others, meanwhile, criticised the procedures as too tame, and falling short of providing adequate representation to England.

The five-year anniversary provides an opportune moment to review how this contentious reform has fared in practice. Yet the wider territorial politics of the UK have also undergone significant changes in the intervening period. The questions to which these complicated rules were a response have become ever more pressing, but whether EVEL can provide a sustainable response to the increasingly fraught question of English devolution is increasingly doubtful.

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