Will the Scottish referendum (whatever the outcome) lead to a federal constitution for the UK?

Welsh First Minister Carwyn Jones has suggested the UK’s unwritten constitution is no longer able to manage the complexities of devolution, a problem that will need to be addressed regardless of the choice Scotland makes in the independence referendum. Dr Mark Elliott argues this raises important questions not only about the extent of devolution, but its constitutional security.

Alex Salmond and David Cameron sign the historic Edinburgh Agreement. Credit: Scottish Government, CC BY-NC 2.0

The Boxing Day edition of The Independent carried a fascinating interview with Carwyn Jones, the First Minister of Wales. In it, he said:

Whatever happens after the referendum in Scotland there will need to be change because the UK’s constitution has come to the end of its ability to deal with devolution, to embed devolution and clarify what each level of Government does … I think it’s simply a question of putting in place a constitution where it is understood what the different levels of government do. Does that mean the end of Parliamentary sovereignty? Well I’m afraid it does.

The Independent piece suggests that Jones harbours two concerns that, taken together, raise questions about the appropriateness of a sovereign Westminster Parliament to a post-devolution UK constitution. The first concern is specific to the forthcoming Scottish independence referendum, and, in particular, would arise only if Scotland were to vote “yes” to independence. That much is clear from Jones’s suggestion – which he has made before – that:

The UK could not carry on as it is with England, Wales and Northern Ireland. There would have to be a fundamental rethink of the balance of the constitution. You [would] have three nations, one of which had 92 per cent of the population. That would need to be addressed … [If Scotland were to become independent, Wales would] lose an ally and a friend in terms of the balance of the UK and being able to work together on a common path way when we need to.

Put simply, Jones is concerned that a UK consisting only of England, Northern Ireland and Wales would be unreasonably unbalanced to the detriment of the smaller nations, in a way that it is not for as long as Scotland remains part of the Union. Jones appears to see the federalisation of the UK constitution as a means of addressing that concern, by placing the balance of power between the UK and its constituent nations – and between those nations as between themselves – on a different, and more prescriptive, constitutional footing. However, Jones’s argument is not limited to the scenario in which Scotland exits the Union: whether it does or not, suggests Jones, the notion of parliamentary sovereignty – meaning the sovereignty of the Westminster Parliament – needs to be revisited:

We need certainly the understanding that the fact in law that Westminster could abolish the Scottish Parliament or the Welsh Assembly without even a referendum has to go. It’s a theoretical possibility, I know that. That can’t possibly be right …

This argument is a fundamental, and radical, one. It is important to recognise what it is that Jones is advocating. He is not arguing for the revision of devolution, but for its replacement with something else: a constitution in which power is not devolved to regions by a still-all-powerful central legislature, but a system in which power is shared out by a constitution over which no single institution (such as the Westminster Parliament) has unilateral control. That would not be devolution, but a fundamentally different type of constitutional settlement.

By raising this issue, the First Minister of Wales engages with an aspect of the post-devolution constitution that, to date, has been considered relatively little outside the confines of academic constitutional law. Popular debate about the development of devolution typically focuses on questions concerning the extent of devolved power. Less, however, has tended to be said about the distinct (albeit related) question of the constitutional security of devolution.

To date, leaving to one side the nuclear possibility of independence, the basic constitutional architecture of devolution – as opposed to the detailed arrangements biting upon the extent of devolved authority – has tended to be taken as a given. Jones, however, challenges that assumption, arguing that – whatever the outcome of the Scottish referendum in September – the constitutional framework within which power is shared out within the UK may need to be reimagined. On Jones’s view, the “theoretical possibility” that the Westminster Parliament might unilaterally disturb devolution – including by abolishing it entirely – is no longer constitutionally tolerable, meaning that the same goes for the doctrine of legislative supremacy that facilitates should intervention and which is still (generally) taken to apply to the Westminster Parliament.

The logical reduction of Jones’s position appears to be the abandonment of parliamentary sovereignty in favour of an entrenched federal constitution that would hold the balance of power, both between the UK and its (remaining) constituent nations, and as between those nations themselves. When, in 2012, Lady Hale said that the UK had become a ‘federal state with a Constitution regulating the relationships between the federal centre and the component parts’, she was wrong – at least in a technical, legal sense. Analysed on that level, the UK remains a far-from federal constitution in which all legal power emanates from, and ultimately resides at, the UK level, whatever arrangements might presently exist in relation to devolved, local or European tiers of government.

However, Hale was right in the sense that the constitution can be regarded (in some sense) as loosely federal when viewed through a lens that is less pedantically legalistic. The British way has long been to secure a pragmatic reconciliation between legal doctrine and contemporary reality by recognising that non-legal factors, including most obviously political restraint and the norms that invite it, render “theoretical possibilities” unlikely to eventuate. In this way (for example) devolution takes on a more-federal character than strict legalism can accommodate, in that its degree of practical entrenchment exceeds that which it enjoys as a matter of pure constitutional law.

The question that arises as we enter the year in which Scotland – however it votes – will make a momentous decision about the UK’s constitutional future is whether such pragmatism continues to supply a satisfactory answer to “what if?” questions about the way in which a sovereign Parliament can – at least theoretically – wield its legally-unlimited power. Such pragmatism is rooted in a widely-held trust which presupposes that governmental institutions will operate within broadly-recognised parameters even though those limits are not legally prescribed. Viewed in this way, the question that the Welsh First Minister raises is not one that is peculiar to issues emanating from the Scottish independence debate, or about the place of Wales in a future UK devoid of Scotland. Rather, the question is a deeper one still, which invites reflection upon the nature of the UK’s constitution today and whether the trust which facilitates its unusual informality can continue to be taken for granted.

Jones’s view is perhaps too gloomy: if Scotland were to remain in the UK, then a written, federal constitution would not ineluctably follow (although nor should the possibility be discounted). If, however, Scotland does become independent, then the logic – as well as the political realism – of Jones’s analysis becomes more compelling. Scotland’s exit from the UK might, in other words, supply the sort of “constitutional moment” that would make it hard to resist addressing big-picture constitutional questions that generally remain unconfronted in a system that is so heavily reliant upon pragmatism. Ironically, therefore, Scotland’s departure might precipitate precisely the kind of constitutional change – legally cementing the authority of legislatures beyond Westminster and limiting the latter’s authority – that would undercut at least some of the arguments that are advanced by nationalists in favour of independence.

This is not to suggest that a fundamental constitutional redesign should be offered as a knee-jerk reaction to the risk of a pro-independence (or anti-Union) vote in Scotland. It does, however, serve as a reminder that the independence debate does not take place in a constitutional vacuum, and that the present and future architecture of the constitution of the United Kingdom is of profound relevance to that debate.

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Note: This post was originally published on Public law for everyone. It represents the views of the author, and does not give the position of Democratic Audit or the LSE. Please read our comments policy before commenting. Shortlink for this post: buff.ly/1leFvtX

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Dr Mark Elliott is Reader in Public Law at the Faculty of Law, University of Cambridge, and a Fellow of St Catharine’s College, He is also a Fellow of the Bingham Centre for the Rule of Law and co-convenor of a major Public Law Conference being held in Cambridge in 2014. His books include Public Law, Beatson, Matthews & Elliott’s Administrative Law and The Constitutional Foundations of Judicial Review. He tweets at @DrMarkElliott.