The sovereignty conundrum and the uncertain future of the Union

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.

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Devolution and the Union: then and now

The COVID-19 pandemic has highlighted some of the flaws of the UK’s uneven devolution arrangements, and the mixed success of intergovernmental forums. Charlotte Kincaid summarises discussions from a Unit webinar in which four experts from across the UK tracked the country’s bumpy journey of devolution, and where it might go in the future. The webinar was the final instalment of the Unit’s series of celebrations to mark its 25th anniversary.

The details and arrangements of devolution have been played out in the public sphere while the UK has attempted to grapple with a pandemic. The public has seen devolution very much in action, with each part of the UK implementing its own lockdown measures and support packages, demonstrating the autonomy and limitations of devolved governments. With devolution in the forefront of the public mind, it was the opportune moment to discuss the journey so far, and where devolution is headed. The summaries below are presented in the order of the speaker’s contributions.

Scotland

Michael Keating, Professor of Politics at the University of Aberdeen and former Director of the Centre on Constitutional Change, described Scottish devolution as an ambivalent project, and noted that there have always been different understandings of what devolution means. For some, it is a modification of the unitary state of the UK, for others the UK is a union of self-governing nations which come together for common purposes, while another group view it as a project in the direction of federalisation. In recent years these foundational issues have grown in relevance due to a number of constitutional confrontations. 

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To devolve or not to devolve? The European Union (Withdrawal) Bill and devolution

The European Union (Withdrawal) Bill, published last week, is likely to have sizable implications for the future of devolution in the UK. In this post Michael Keating considers these, suggesting that the provisions of the bill may move the UK closer to a more hierarchical model of devolution, in which the broad principles are set in London and the details filled in across the nations.

One of the many contentious details of Brexit is what will happen to those competences that are currently both devolved to Scotland, Wales and Northern Ireland and also Europeanised. As the United Kingdom has a ‘reserved powers’ model of devolution, all powers not expressly reserved to Westminster are devolved. This means that in a range of fields including agriculture, fisheries, the environment and parts of justice, powers are shared between Europe and the devolved level, with no UK departments and common UK policies only in so far as there are common EU policies.

After Brexit, if nothing were done, these competences would revert to the devolved level. There is a broad recognition that there will need to be some UK-wide frameworks in the absence of European ones, and a linkage between the UK and devolved levels. Agricultural support and fisheries management are devolved but international agreements in these fields are reserved. If future international trade agreements include agriculture, there will be a need for provisions on permissible levels of support and subsidy. Agreements in fisheries will include the management of stocks. There will need to be arrangements for a level playing field across the UK in industrial aid and agriculture support. Environmental policy spills over the borders of the UK nations, calling for cooperation.

The question is about what form these frameworks will take and who will be responsible for making them. At one end is the position of the Welsh government, which has argued that devolved competences should remain devolved and that common frameworks, where necessary, should be negotiated among the four UK nations. This would be done through a UK Council of Ministers modeled on the EU Council of Ministers. Another suggestion has been that the UK would lay down broad frameworks for policy, while leaving the powers otherwise devolved. The UK government has recently been suggesting that this would merely reproduce the existing arrangements, in which the devolved bodies are bound by EU frameworks. They implement, rather than make, policy and would not, therefore, lose powers.

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