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Artillery Row

Britain’s vanishing constitution

Ignorance is a useful weapon in the war on our constitution

Just what is the British constitution? If one lived in France or America you could go and see the thing in a display case, and leave reassured that there actually is such a thing. It’s not that the British constitution is unwritten (as you’ll see frequently claimed by British journalists) — it’s that our constitution isn’t embodied or codified in one founding document. Rather the British constitution is constituted by thousands of documents — the acts of parliament, the rulings and precedents of judges and courts, the body of common law, and by principles that have emerged and been formalised in laws and institutions over time.

Whereas in other countries the constitution can act as a trump card, a principle of legitimacy that can silence the arguments of an opponent, in Britain no constitutional principle can be said to be absolutely beyond debate, refinement or questioning. 

Just such a debate is currently raging over the status of the Scottish parliament in Holyrood, following the UK government’s announcement that it was invoking section 35 of the Scotland Act to effectively veto the Scottish Gender Recognition Act, which proposed to allow adolescents as young as 16 to legally change their gender. 

The devolution of powers to Wales and Scotland, and their national parliaments, is a very new part of the British constitution, and was instituted only 25 years ago, in 1998. The SNP-led Scottish government under Nicola Sturgeon is proposing to refer the case to the UK Supreme Court, which will rule on the legality of the veto. Ironically the Supreme Court itself is younger even than Holyrood, having only been established in 2009, another legacy of Blair-era constitutional tinkering. 

For all that the British constitution can sometimes feel hard to define, many aspects of it are really quite simple. Sovereignty in Britain is not an abstract claim of collective independence of a population, it is the inherited authority of the very literal sovereign — the King. That sovereignty is vested in parliament, (in a principle known as the “Crown-in-Parliament”) which through a series of reforms has gone from embodying predominantly the rights and interests of the nobility, to being a primarily democratic legislature that acts with the authority of the King in service to the British people who elect MPs. 

Parliamentary sovereignty remains entirely unaltered by Scotland Act, and any powers devolved to Scotland and Wales are done so by the consent of Westminster. Crucially there is no constitutional bar whatsoever against the UK parliament ruling on devolved matters in Scotland, and the only barriers to doing so are the terms of the Scotland Act, and something known as the Sewel convention. 

The convention has no legal weight, and is entirely a political consideration and a normative custom, whereby parliament “will not normally legislate with regard to devolved matters without the consent” of the devolved legislatures. 

Not only is Westminster free to legislate as it chooses in the “devolved” nations, in principle it can un-devolve them whenever it chooses, simply by amending or repealing the Scotland Act. At any time at the stroke of a pen Westminster could dissolve the Welsh, Scottish and Northern Irish governments and legislatures, by the terms of our constitution.

So when Nicola Sturgeon calls the veto a “full-frontal attack on our democratically elected Scottish Parliament and its ability to make its own decisions on devolved matters”, and when Stonewall says it will “unlock constitutional strife”, they are talking nonsense. Constitutionally our democratically-elected UK parliament has the ultimate say in this matter; and indeed whether devolution continues at all. 

Sturgeon is an intelligent woman, and knows all of this — but most British people don’t, and this ignorance can be readily exploited. Once MSPs are housed in a flash new parliament, and Scots filed into the voting booths, it is easy to sell the idea that Holyrood is or at least should be, near-equal to Westminster. 

The ignorance and its weaponisation are not of their making

But in fairness to the SNP, who have always been straightforward in their commitment to an independent, not merely autonomous Scotland, the ignorance and its weaponisation are not of their making. It was Westminster politicians who chose the route of devolution, and who wished to give the appearance of federalism without conceding too many powers. The devolved legislatures are effectively renting their authority to make law from Westminster, but to all outward appearances are sovereign entities representing historic nations. 

This illusion, intended to appease nationalists and give a measure of local democracy to Wales and Scotland, have in fact further empowered nationalist movements and allowed them to script Alice-in-Wonderland tier fantasies about the constitutional legitimacy of their legislatures. 

Part of the problem is that Welsh and Scottish nationhood are ancient — Scotland emerges as a polity soon after England in the 9th century, and the Welsh can reasonably claim to embody a culture that pre-exists the arrival of the English. These are potentially rival claims to sovereignty and identity, and this is especially potent in the case of the Scottish parliament. 

The original Parliament of Scotland, which was like Westminster a centuries-old mediaeval body, dissolved itself in 1707, after it agreed to the Act of Union; uniting England and Scotland into a single nation and forming the United Kingdom. Occurring in the context of financial disaster, a discredited elite, and a financial bailout that many suggested was tantamount to bribery, it was a cause of riots and popular dissent across Scotland. The event was immortalised much later in the words of Burns:

What force or guile could not subdue,

Thro’ many warlike ages,

Is wrought now by a coward few,

For hireling traitor’s wages.

The English steel we could disdain,

Secure in valour’s station;

But English gold has been our bane –

Such a parcel of rogues in a nation!

Scotland as a nation did not truly cease to exist of course — Scottish law continues as a distinct tradition, and there is a separate national Church of Scotland. And when a Scottish parliament again came into existence, it was inevitable that these associations would be present, and that the historic sovereign powers of the old Parliament of Scotland would be spiritually and politically claimed by the increasingly dominant Scottish nationalists.

The proposal for Scottish independence put forward by the SNP in 2014 looked startlingly like a return to the old union of crowns, with Scotland gaining independence from Westminster, but retaining the monarchy. 

The illusion of devolution thus proves supremely dangerous in this context to the very union the compromise was supposed to secure. In a truly federal country like Germany or America, though there are many disputes at the margins, there is no ultimate ambiguity about the role or legitimacy of the national legislature in making national law.

The US Congress or German Bundestag do not have their authority to rule on local affairs seriously challenged, precisely because in a fully federated nation, the national legislature cannot be said to be acting for one part of the union and not another. But because devolution involves national rather than regional legislatures, and involves Celtic nations but not England, it has rendered itself less federal by the bungled half-measure of devolution. 

Claims of British exceptionalism are usually made at this point — we’re a union of historic nations, not regions or colonial states. But plenty of federal systems encompass former nations and states, whether the former Kingdom of Bavaria in Germany, the former Republic of Texas in America, neither of which show much serious appetite for secession. 

Serious regional decentralisation of tax powers and policy, internal to Wales and Scotland, as well as spread across England, would allow Westminster to take a legitimate place as a UK-wide parliament, legislating on issues across England, Wales and Scotland, but giving wide latitude for federal states to set their own policy and spending priorities. 

A new constitutional settlement is possible, but it must work with the grain of the British constitution and also recognise that there is no scope for British sovereignty to be diluted or confused. Where we could and should depart from federal systems such as those of Australia or America is in limiting the scope of states, regions and nations to break the moral and social consensus of the country, as the Scottish parliament is attempting to do with its reckless and immoral proposal that children be allowed to set themselves on the path to life altering surgery and drug regimes. 

Rather than opening more forums for culture war issues and experiments in progressive social engineering, decentralisation should focus on bringing decisions about how policy is implemented and resources distributed to a more local level. By empowering levels of government below that of devolved legislatures, the “one party state” of Scotland under the SNP can be challenged and re-democratised, and the legitimacy of the nationalist cause can be undermined whilst empowering the Scottish people. 

Having made fudged the question of decentralisation, we must attempt to form a far more coherent approach, one which restores the legitimacy of Westminster to make decisions for the whole country, gives local people a say, but which maintains the effectiveness of the central state in an ever more threatening and troubled international context. 

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