Following on from this week’s discussion on Scotland’s constitutional future, Dr Mark Elliott addresses the effects that a written constitution may have on devolution and the “West Lothian Question”.
Whether the United Kingdom should adopt a written constitution is a question that is impossible to answer in the abstract, the content of a constitution being at least as important—indeed, far more important—than its form. In general, therefore, whether the shift to a written constitution would be a good thing can be determined only by means of subjecting a particular draft text to detailed analysis. That said, however, there are certain matters of which a written constitution—assuming that such a text would exist as higher-order law rather than as a glorified Act of Parliament—would likely be determinative. One of them is the nature of the relationship between the UK and (what we now call) devolved tiers of government.
The present devolution schemes exhibit two of the features—messiness and informality, neither of which terms is intended to be necessarily pejorative—that define the prevailing approach to constitutionalism in the UK. Part of devolution’s messiness is designed, its asymmetry being an intended feature that facilitates bespoke responses to local needs and aspirations, rather than a careless accident. Yet other instances of untidiness—the West Lothian Question being a paradigm example—are artefacts resulting from the casualness, even carelessness, with which the UK’s present constitution can be altered. This incentivises the eschewal of fundamental redesign, and instead results in a piecemeal approach to constitutional reform that produces loose ends and results in hard questions often going unaddressed.
Written constitutions are not, of course, a panacea when it comes to the resolution of such questions. Nevertheless, it is difficult to imagine a written constitution being adopted whilst leaving something like the West Lothian Question unanswered. A written text calls—in a way that the present system does not—for the wiring of the constitution to be laid down in a defensibly rational way. In contrast, the relative opaqueness the present system allows much of the constitutional wiring to remain hidden behind a veil of obscurity that diverts attention from its untidiness (at best) or illogicality (at worst).
Meanwhile, devolution instances an informality whose appropriateness a written constitution implicitly repudiates—the very act of adopting a written constitution being an endorsement of a more-formal approach to constitutional design—and which would be unlikely to survive the adoption of such an instrument. That informality is evidenced in part by the network of constitutional concordats—in effect, written conventions—that underpins the devolution schemes and, in particular, the relationship between the devolved and UK tiers of government. At a macro-level, informality is further illustrated by the fact that devolved institutions’ constitutional space is ultimately carved out not by the constraining force of law, but by nothing more prescriptive than the restraining force of politics.
A cardinal feature of the existing devolution schemes is that the UK Parliament has relinquished none of its power. Authority has not been transferred from London to Belfast, Cardiff and Edinburgh. Rather, it is has merely—for the time being, and on such terms as are laid down in Acts of the Westminster Parliament—been shared on a non-exclusive basis. Devolved legislatures enjoy law-making autonomy, free from Westminster’s interference, not because Westminster cannot unilaterally intervene in devolved affairs, but because it does not. More than this, as a matter of strict constitutional law, it is open to the UK Parliament to diminish the powers of devolved institutions and, ultimately, to abolish such institutions altogether by means of unilateral legislative action. The fact that such scenarios are barely imaginable derives not from any legal incapacity on Westminster’s power, but from the restraint demanded by practical political considerations.
I recently commented on suggestions by the First Minister of Wales to the effect that devolution’s reliance upon this sort of political restraint—as opposed to the legal incapacitation of Westminster—was becoming increasingly unacceptable: an argument that points ultimately away from devolution and towards a federal (written) constitution for the UK. The matter can be put the other way, too. If the UK were to adopt a written constitution, then it is difficult to see how the informal characteristics of the devolution settlements could or would survive. On one level, the rationality called for by the process of drafting and adopting a constitutional text would tell against the sort of doublethink—a UK legislature legally capable but politically incapable of unilateral interference—upon which our current arrangements depend. On another level, the adoption of a written constitution would open up the possibility—absent from the current system, at least on an orthodox view of the sovereignty of (the Westminster) Parliament—of a genuine division, as opposed to non-exclusive sharing, of authority. And, on yet another, still deeper, level, the very act of adopting a written constitution would be at odds with the sort of implicit trust which is the reverse side of the informality coin. Written constitutions are adopted precisely because political restraint is judged insufficient to ensure that institutional actors play by unwritten rules of the game that, in the final analysis, spring from nothing more tangible than a shared vision of constitution parameters.
It does not follow that the UK would, or would have to, adopt a rigidly symmetrical federal system of government if a written constitution were embraced. However, the adoption of a written constitution would necessarily involve the reimagining of the constitutional status of what we now called devolved government and its relationship with the centre. This has obvious implications for any future debate about the possible adoption of a written constitution for the UK. But it also has more immediate relevance given the debate presently taking place concerning Scotland’s constitutional future. Just as it is impossible to determine in the abstract whether a written constitution would be a good thing—the devil, for the most part, being in the detail—so the case for independence cannot be judged in isolation from the kind of UK constitution that Scotland might in the future inhabit. For that reason, it is crucial that the debates concerning Scotland’s place within the UK and the future shape of the UK’s constitution do not merely proceed along parallel lines.
Dr Mark Elliott is a Reader in Public Law at the Faculty of Law, University of Cambridge.