The United Kingdom has no written (codified) constitution.
Its political structure has evolved through a series of significant events, often marked by legal documents, from Magna Carta in 1215 and the Declaration of Arbroath of 1320 via the Bill of Rights of 1689, the Act of Union between England and Scotland of 1707, the Great Reform Act of 1832 abolishing 60 “rotten boroughs” and the Fourth Reform Act of 1918 giving women the vote through to the 1972 European Communities Act and the 1998 Acts devolving powers to Scotland, Northern Ireland and Wales.
A common thread of this process is the slow, gradual and often reluctant cession of power from the centre, whether absolute monarch or elected government, to the people and its representatives. However, sovereignty is not of the popular variety common in mainland Europe but “the Queen in Parliament.” And, in recent years, the power relations among the three arms of the UK state – executive, legislature and judiciary – have shifted in favour of the ruling cabinet despite popular referendums and devolution.
The government in power is, arguably, less constrained in the exercise of its authority by the 650 MPs than by the Supreme Court and other judges. The current 782 unelected peers in the House of Lords may, as in the series of votes amending the EU Withdrawal Bill in April and May 2018, challenge the government and House of Commons. But, ultimately, they cannot frustrate their will under the Salisbury convention that the Lords cannot oppose a measure set out as an election manifesto pledge by the governing party.
Equally, the devolved parliaments and governments have limited scope for challenging the executive, as we shall see below. Devolution is not federalism. It is about enabling self-government in the three nations/regions. But, under this British form of subsidiarity, the UK Parliament is sovereign in law and the UK government retains “reserved” powers over such vital policy areas as the constitution, defence and security, foreign affairs, macro-economics, immigration and trade. Further, the three devolved legislatures have differing powers over their own policy areas. These reflect, in Scotland, the push for independence; in Wales, the absence of a separate legal system; and, in Northern Ireland, the special peace settlement (Good Friday Agreement) between the unionist and nationalist communities. There is no English devolution as such. This political patchwork provides the context for the unfolding impact of Brexit upon devolution.
Brexit after two decades of devolution
The likelihood that the United Kingdom will leave the European Union formally in late March 2019 after the pro-Brexit vote of 23 June 2016 has put the 20-year-old devolution settlement between the British government (Westminster) and Scotland, Wales and Northern Ireland under severe strain. Scotland and Northern Ireland voted decisively but for different reasons to Remain while Wales voted to Leave in the Brexit referendum. England, without any devolved government, voted substantially to Leave. Indeed, for the three smaller nations that, with her, make up the UK the Brexit vote was essentially and primarily an inchoate expression of Englishness rather than a sustained effort to “take back control.”
The referendum result, indeed, reflected substantial differences of identity within the so-called unitary UK state and, what’s more, underlined significant political clashes among its constituent parts. These have been heightened in the absence of any agreed strategy for dealing with the EU-27 post-Brexit, with a protracted and continuing dispute between the Scottish and Welsh governments and Westminster over the repatriation of powers from Brussels and their subsequent devolution to Edinburgh, Cardiff and Belfast. Political and identity differences are set to deepen in the months and years ahead.
The Brexit vote and pending EU withdrawal have exposed further fissures in the UK’s unwritten constitution and political structures. The UK is, unlike Germany, not a federation/federal union though increasingly politicians and policy experts talk about the desirability or, indeed, feasibility of federalism. Its political system has been rightly described as increasingly messy, informal, strained, and fragmented within an ever-looser union.
Decentralisation or devolution of policy-making/power in the UK has always been a reactive, sometimes panicky response to events and developments such as the rise of the Scottish National Party rather than a concerted process subject to an agreed master-plan. The three devolved governments, accordingly, have different degrees of power. Brexit has already intensified those differences while the Conservative government’s clumsy and insensitive handling of it will make matters worse. Unless the political class puts aside such differences and works upon and to an agreed redistribution of powers within the UK, including for England and its regions, the present unitary state is almost certain to collapse.
In June 2016 a small majority of British voters opted to leave the EU, persuaded thereby that they would “take back control” and the UK would regain its “sovereignty”. But Brexit is already proving to be highly destabilising politically as well as socially and economically. To provide the country with greater political stability, Westminster and the three devolved governments should conclude a new constitutional settlement for pooling sovereignty within the UK, with fresh powers and competences given to Scotland, Wales and Northern Ireland to control their people’s destinies. Otherwise, it will only undermine the current devolution settlement and assume even greater central powers in the name of national sovereignty. The latter course will almost certainly spell the eventual end of the UK – not immediately but within a few years.
Taken from a new Brexit series paper by the author for Social Europe and the Friedrich-Ebert-Stiftung
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