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.
More important, the Scotland Bill reminds us what devolution is for: it means Scotland can run a different social model from the rest of the UK. Under the Bill, that can be a very different social model, with a different balance between tax-and-spend and a different package of welfare. Scotland doesn’t have to leave the UK to make those choices. Holyrood can offer a different tax and welfare package from England if it wants to, and is willing to pay for it. That’s the significance of the big tax and welfare powers in the Bill, and it’s right to say that makes the Scottish Parliament as powerful a sub-state institution as you’ll find anywhere.
The Bill does need some amendments. It will fail to meet its purpose if it is not absolutely clear that the devolved welfare powers are wide enough to meet any need, and that there is no scope for claims (however misleading) that devolved welfare choices are constrained by UK political decisions. Social security becomes a shared responsibility and unlike other policy areas the 2 governments and parliaments will have to work closely in what will become a very entangled welfare setup. Not necessarily a bad thing, but subtly different from their experience hitherto.
But the big issues are not what is in the Bill, rather what is not, in particular the challenge it presents for the UK’s famously unwritten constitution.
It’s time to dispel a myth: that the beginning and end of the British constitution is the notion of parliamentary sovereignty. The UK now has four legislatures, and four democratically legitimate governments. This set up has been entrenched by referendums, and is a permanent part of the constitution. We need to write that down, to codify it, and the principles on which it is based.
The crude notion of parliamentary sovereignty has long been displaced as the organising principle of the British constitution, probably (as Vernon Bogdanor has said in his New British Constitution) by the principle of the rule of law. It still has a place: as a rule of recognition, telling us which laws the courts will enforce, and as a reminder that the democratic parliament is ultimately sovereign over the executive. But it is in other respects a method which has a pernicious effect over those in power who think it makes them sovereign.
This territorial constitution is a statement of both why and how the UK hangs together. It is, if you like, a new statement of the Union, and needs to cover a lot. Not just the allocation of powers and responsibilities, but the reasons why some things are shared and others separate. Not just the legal framework, but the fiscal framework too. Not just the safeguards for the smaller nations of the Union, but what the Union means for England, its dominant partner.
Much of this is becoming or can be made clearer. The Union is a joint project to promote both opportunity and security. So economic integration is matched with resource pooling, to guarantee at least common standards of welfare such as pensions and healthcare. The smaller nations risk being submerged in a much larger England, so the constitution guarantees them scope to be different.
There’s much loose talk of federalism. The UK can never be fully, formally, federal: England is just too big for that, but England does need formal recognition. Westminster is England’s Parliament and the UK government England’s government. But that doesn’t mean England is indistinguishable from the UK. It need safeguards for its interest too: English votes for English laws, maybe, though not as in the present Conservative plans, which would undermine the UK Parliament and government.
Perhaps most of all the UK needs institutions whose job it is to bind the country together as well as preserve its diversity – certainly a department of government and probably a chamber of Parliament.
So its time to clarify and codify this aspect of the constitution. And maybe not just these bits. The present government has a formidable list of constitutional projects – devolution, EU membership, human rights changes and more – but nothing resembling a constitutional strategy. Others have argued for a wide-ranging constitutional convention, as things need to be looked at in the round. So change is in the air: the territorial constitution is where it should start, but not where it need end.
Note: This article was originally published on the Constitution Unit blog. Jim Gallagher’s Working Paper All aboard the Constitutional Express? Where is the Scotland Bill taking the UK? is now available on the Nuffield website here. Featured image credit: Chris Combe CC BY 2.0
Jim Gallagher is an Associate Member of Nuffield College, Oxford, and visiting Professor of Government at Glasgow University.