Jim Gallagher reflects on what the Scotland Bill tells us about the Scotland-UK relationship and devolution more broadly. He argues that the Bill presents a challenge to the unwritten constitution, and that now is the time to clarify and codify the territorial aspects to make a statement about how and why the Union hangs together.
The Scotland Bill calls to mind, irresistibly, the aphorism of Lampedusa: if things are to stay the same, they’ve got to change. If it is to sustain itself as a Union, the UK must become a new and different one. The Scotland Bill should be the catalyst for change, but this isn’t only about Scotland. It is about how the UK understands itself as a territorial state. Like Scotland, Wales and Northern Ireland understand the UK as a voluntary association bound together by common interests and shared experience, in many ways like a federal country. But too many at the centre of the UK see a unitary state with some untidy territorial edges. In essence this understanding is based on a half-baked notion of parliamentary sovereignty. If the UK wants to stay together, this has to change.
The Scotland Bill makes the nature of Scotland-UK relationship more explicit, and implies similar things about Wales and Northern Ireland too. The UK is a multinational state, an association whose membership is voluntary, and that is now very explicit for both Northern Ireland and Scotland. Scotland has always had its own institutions, separate from the UK’s. For first three centuries after the union, these were Scottish, but undemocratic. For the last 15 years, Scottish institutions have been accountable through the Scottish Parliament. The Scotland Bill puts it beyond doubt that this is irreversible. Devolution is permanent, and the Scottish Parliament is master in its own house: its power is paramount in devolved matters, and it controls its own composition. That is the point of the constitutional provisions of the Bill: statements of the obvious if you like, but that will be true of many constitutions–if you know how the institutions work in practice, you will find the constitutional legislation almost banal.
The Constitution Unit is pleased to announce the launch of a new reportTo Codify or Not to Codify: Lessons from Consolidating the United Kingdom’s Constitutional Statutes. James Melton, the report’s lead author, offers an overview of the report, which reflects on some lessons learned about the UK Constitution while consolidating the texts of 18 constitutionally relevant statutes. The main conclusion is that further codification is not essential.
I have devoted much of my academic career to studying national constitutional texts. As one of the principle investigators on the Comparative Constitutions Project, a project dedicated to cataloguing the contents of national constitutional texts, I have often found myself defending the power and importance of formal constitutional entrenchment against critics who view constitutional texts as ‘mere parchment barriers’. In doing so, I am, at least implicitly, arguing that codification of a country’s constitutional order is beneficial
However, if codification is so beneficial then the UK is a real puzzle. It is a country whose constitution is famously ‘unwritten’ but that has evolved into a constitutional monarchy that performs well on cross-national measures of democratic performance, economic performance, governance and the rule of law. So, when I moved to the United Kingdom, nearly three years ago, I thought it would be an excellent opportunity to study the UK’s constitution and to understand the problems created by its lack of codification. After all, there must be some benefit from adopting a codified constitution; otherwise, almost every other country in the world would not have adopted one. So the UK, and the handful of other countries without a codified constitution, must be missing out on something.
The Constitution Unit is pleased to announce that a new version of Constitute is now available online. The new version has many new features and includes a number of new constitutions, including that of the UK. This will provide a tool for comparing extant UK constitutional laws with constitutional texts from across the globe.
Back in September of last year, a post appeared on this blog announcing the launch of Constitute, a website for reading, searching and comparing constitutions from across the world. The Constitute site is host to the English language text of almost every national constitution currently in force. It not only provides users with free and easy access to these texts, but by drawing on data collected by the Comparative Constitutions Project (CCP) over the last 9 years, it also facilitates powerful, topic-based searches of over 300 common constitutional themes.
Since the launch of Constitute, we have been accumulating feedback from our users and have now launched a significantly improved site. Among the new features on the site are the ability to compare two constitutions side-by-side, the ability to pin more items, improved sharing of constitutional provisions and, for researchers, better access to the data underlying the site (for a full description of new features, see here).
However, for our users in the UK, none of these changes is probably as significant as the inclusion of the UK’s constitution on the site. Up until now, there has been one glaring omission from the Constitute site: the constitution of the UK. As arguably one of the most influential and historically significant constitutions in existence, any tool for comparing the constitutions of the world was incomplete without the inclusion of the UK. Which is why today, we are pleased to announce that the UK’s written constitution has been added to Constitute.