Continuing my series of posts charting different aspects of the UK’s potential territorial break-up, which began with my thoughts on the Brown Commission, I look here at the January 2022 report of the House of Lords Select Committee on the Constitution (available here), which very much ‘believes in the United Kingdom’ (p.3). In keeping with that earlier post, I am focussing mostly on Wales and Scotland and not Northern Ireland (in part, because the Good Friday Agreement means that the mechanisms of devolution work somewhat differently there). What’s interesting about the report, is that it grasps the relationship between the constituent nations as central to the Union and therefore concentrates its attention on setting out how the relationship between the Westminster Government and the devolved governments should work:
For the Union to flourish, it must enjoy popular support in each nation, based on a recognition of the common benefits accruing to all nations and regions.
We have expressed concern in the past about governments’ tendency to ‘devolve and forget’. There has also been evidence at times of a unilateral approach to strengthening the Union, which has been insufficiently sensitive to its pluralism. We do not believe either approach is an effective means of strengthening it. While we welcome the Government’s stated commitment to the Union, we believe it needs to set out a clearer vision about how it will be shaped in the 21st century. This vision needs to be rooted in the best appreciation we can reach about the fundamental challenges which have been building up over decades and which have led to today’s discernible atmosphere of distrust and uncertainty in popular discussion and debate. (pp.3-4)
In practice, these aspirations lead to extensive discussion of what has been happening so far in the 21st century, including chapters on parliamentary sovereignty, the Sewel Convention, and the governance of England. Paragraphs 8, 9 & 10 of the Introduction make the argument that everything was working well for the UK immediately after the Second World War but that this has since begun to disintegrate, with the consequence that we now need to take significant steps to hold ‘the unique make-up of the UK’ together for the 21st Century:
8.In the early post-war years, the United Kingdom’s uncodified constitution seemed to fit the country comfortably. Recently, however, it has begun to show signs of wear. There are causes for concern. This report captures the Committee’s analysis of current discontents that rustle through nearly every one of the many levels of governance we have lain upon our islands without pattern or plan. The nations have come to know each other less well, which has fed a sense of alienation and mistrust.
9.We seek a United Kingdom where multiple identities have room to breathe, but where we never lose sight of the importance of working together in order to advance our common interests. A Union is about more than a set of economic transactions. It exemplifies deeper ties of family and friendship, and the instinctive empathy flowing from common experiences and shared hopes for the future.
10.The unique make-up of the United Kingdom means there are no easy, ready-made, solutions available to make our Union fully fit for the 21st century. (p.10)
I’m not going to provide a full historical analysis of these claims here, but they are open to contestation as the following synopsis suggests. There was a considerable amount of constitutional upheaval within Britain in the early decades of the 20th century, beyond the foundation of what would become the Republic of Ireland, as an empire disintegrated and was remodelled as a nationalist state. The Second World War did help shape what seemed to be a common British state, which was cemented by the reforming actions of the postwar Labour Government. However, as has been noted, for example by the historian David Edgerton (2019), the 1945 settlement was rather more reactionary in practice than it has come to thought of within the British social imaginary. The governing principle of the UK state that emerged from the collapse of the empire was British nationalism even if it was never explicitly described in those terms, and the ‘actual post-Second World War United Kingdom was in some ways better prefigured in the programme of the Tories and the British Union of Fascists (BUF) than that of the Liberals or the Labour party’ (p.xxxiv). Furthermore, the period of ‘comfortable fit’ between the territorial area of the UK and its ‘uncodified constitution’ didn’t outlast the 1950s. In the 1959 General Election, the Conservative Prime Minister, Harold Macmillan, won a 100-seat majority across the UK but Scotland (and Wales) voted Labour, marking – as Gerry Hassan (2022) has noted – ‘the critical swing year’ (p.52), after which Scotland took the path, via the first 1979 devolution referendum, to the establishment of the Scottish parliament in 1999. In reality, the idea of the UK as embodied by this House of Lords report actually existed, imperfectly, for less than 15 years at most, and therefore its invocation must be seen as largely mythical, especially from the perspective of anyone under the age of 65.
The reference in the above passage of the report which refers to ‘the many levels of governance we have lain upon our islands without pattern or plan’ made me laugh given that this is a report that eschews systematic planning and the idea of a proper written constitution in the name of maintaining the ‘unique’ (i.e., uncodified) nature of the UK. While the report does acknowledge that ‘“union of nations” may be a more accurate description’ than the current government’s claim that the UK is a ‘unitary state’ (ch.1, para 29, p.14), one can’t help feeling that the differences between the nations are seen as a niggling problem rather than representing a fact that inherently problematises the very idea of the existence of a ‘united kingdom’. In places, the attitude to devolution is somewhat equivocal:
Since the introduction of the devolution arrangements in the late 1990s, there has been no over-arching assessment of their operation or implications for the Union as a whole. Instead, 16 ad hoc commissions and talks have taken place (two of which are ongoing in Northern Ireland and Wales), always focused on a single nation and each invariably leading to the further devolution of powers to those nations. (ch.1, para 33, p.15)
In reality, the problems with the UK – not that it was often referred to as the UK in those days – were already apparent early in the postwar period and the various governmental and administrative reorganisations since then have been attempts to solve them. It was already obvious in the 1960s that there would have to be some sort of devolved administrations in Scotland and Wales, hence the establishment of the Kilbrandon Commission in 1969. The Labour Government of the mid-late 1970s wasn’t able to effect the necessary devolution partly because of organised resistance within their own ranks. Then the longevity of the 1979-1997 Conservative Government held up change for another two decades. However, it’s ludicrous to suggest that the devolution legislation introduced by Labour after 1997 was without ‘pattern or plan’ or ‘ad hoc’ in terms of its regard for the wellbeing of the UK. Although, one might argue from a different perspective that what was offered to Wales at the time was insufficient for effective devolution (again due to organised resistance within Labour) and has required successive Wales Acts in 1998, 2006, 2014, and 2017 in order to finally achieve a broadly equivalent ‘reserved matters model’ to that established for Scotland in the Scotland Act 1998 (see also the GOV.UK page on the ‘Devolution Settlement: Wales’). While even these legal settlements are not entirely sufficient for purpose, they would at least be reasonably functional without the imposition of Brexit (which actually is an example of a major constitutional change embarked upon without pattern or plan), which has led to the effective abandonment of the Sewel convention, which ensures consent of the devolved nations to legislation imposed upon them by the UK (Westminster) Government. So, we now have a situation where the current Conservative government is clearly prepared to act in bad faith by using any clause of the existing legislation to thwart acts of the Scottish parliament for narrow political ends.
The question is what is the ultimate cause of the problem. Is it ill thought-out devolution legislation and ad-hoc fixes to that? Is it due to the real unique nature of the UK, which is that it is a relatively new state that emerged in the aftermath of the First World War? Is it due to the British state not being a modern constitutional state but some mystical combination of ancient conventions such as the ‘crown in parliament’ and ‘parliamentary sovereignty’? The latter seems the real problem to me. Chapter 3 of the report is titled ‘Parliamentary Sovereignty’ and the second paragraph notes:
It has remained the accepted view that Parliament has “the right to make or unmake any law whatever”. This is expressly reiterated in the devolution statutes. For example, section 28(7) of the Scotland Act 1998 states: “This section [which provides for the legislative competence of the Scottish Parliament] does not affect the power of the United Kingdom to make laws for Scotland.” Parliament clearly intended that its sovereignty should be unaffected by the devolution statutes. The Scotland’s Parliament White Paper said: “the UK Parliament is, and will remain, sovereign in all matters”, and “Westminster will be choosing to exercise that sovereignty by devolving legislative responsibilities to a Scottish Parliament without in any way diminishing its own powers.” (ch.3, para 78, p.27).
While this paragraph is stating facts in terms of the wording of various acts, it is not the only possible interpretation of the devolution settlement. The report does go on to quote Professor Michael Keating (from evidence he gave to the commission) on this point:
There are two interpretations of the devolution settlement. One is based on the traditional doctrine of parliamentary sovereignty and suggests that Westminster has merely lent powers to the three devolved territories, which can be reclaimed at any time. The other is that devolution represents a substantial constitutional change and requires a modification of our understandings of parliamentary sovereignty and supremacy. The former view has been generally sustained by the courts, including the Supreme Court. The latter has been expressed by many academic commentators as well as by some judges in writings, lectures and obiter dicta. (ch.3, para 83, p.29)
However, the report categorically rejects the suggestion that devolution represents a substantial constitutional change or that it impinges whatsoever on parliamentary sovereignty: ‘The Supreme Court has been at pains to point out no modification of Parliament’s legal supremacy has taken place. Any suggestion that Parliament’s legislative supremacy is even open to modification is rare and speculative’ (ch.3, para 85, p.29). Therefore, among this chapter’s concluding paragraphs in bold are the following two:
96.The UK Parliament has legislated to devolve power and has established in statute the devolved institutions. In theory, it could legislate to abolish them. In reality, it would not do so, and certainly not without the express consent of relevant voters in a referendum, as recognised in the devolution statutes. This is an illustration of the existence of the political constraints which in practice circumscribe the legislative supremacy of the UK Parliament.
97.Parliamentary sovereignty has operated for centuries subject to such constraints. Parliament is also not the only source of law within the constitution: the Royal prerogative and the common law represent distinct areas of lawful authority and set important practical limitations upon Parliament’s legislative reach, as do the United Kingdom’s increasing international obligations. (ch.3, p.32)
I’m not sure that the point about parliamentary sovereignty having operated for centuries is quite the argument in its favour that is intended here. Given that we have only had democracy in the UK since the interwar period, only truly since 1928, it is not clear why centuries-old behaviour should be considered good practice. And behaviour is what it is: the behaviour of a ruling class that brooked no opposition outside of a small set of carefully proscribed limitations.
It is a reasonable argument that the devolution settlement would work better without the UK tradition of parliamentary sovereignty. In 2014, the Smith commission tended in this direction when it recommended that the Sewel convention, the convention that the devolved parliaments need to give their in order for Westminster to legislate in devolved areas, be put on a statutory basis. Sections were accordingly added to the relevant acts of parliament, so that in the case of Scotland, Section 28(8) of the Scotland Act 1998 now reads ‘But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament’ (and the equivalent change has also been made to the Government of Wales Act 2006). However, again, the report is adamant that:
These provisions recognise the existence of the Sewel convention as a non-legal rule of the constitution; they do not give the convention legal effect. This distinction was made clear by the Supreme Court in the first Miller decision on withdrawal from the EU. As we observed in the last chapter, while the court acknowledged the constitutional significance of the Sewel convention, including its application to changes to the devolved institutions, it noted that as a political and not a legal restriction on Parliament, it cannot be enforced by the courts. (ch.4, para 103, pp.33-4).
A little further on, it notes that the First Minister of Wales, Mark Drakeford, when giving evidence to the House of Lords Commission, was unhappy with this decision of the Supreme Court:
Mark Drakeford was disappointed by the Supreme Court’s decision not to give legal effect to the operation of the Sewel convention in the first Miller case. In response he suggested the convention could be reformed by removing the ‘not normally’ exception so the UK Parliament cannot legislate without consent or making the convention justiciable. He hoped that fleshing out the statutory provisions would increase the chances of a court deciding it was justiciable in future. He would prefer fundamental disagreements to be adjudicated by the Supreme Court as they would be able to provide independent oversight rather than the process being concentrated in the hands of one party. (ch.4, para 127, p.40)
But, again, the report is firmly opposed to allowing the Supreme Court to adjudicate on the Sewel convention:
It is an established constitutional principle that conventions are non-legal rules and hence unenforceable by the courts. We therefore do not agree that the approach taken to the Sewel convention by the Supreme Court in Miller 1 was misconceived. As any breach of the convention will have political consequences, we believe that Parliament is the appropriate forum to scrutinise its operation. (ch.4, para 129, p.41)
These points are further emphasised in the concluding paragraphs to this discussion, 139 & 140, in which it is recommended that some form of parliamentary scrutiny is adopted so that the UK Government is required to issue a statement justifying its approach when it decides to introduce legislation affecting the devolved areas but is not seeking consent for this. It is ridiculously optimistic to assume that this solution will help lead to a situation in which ‘if the operation of the Sewel convention is strengthened and mutual respect between the UK Government and devolved administrations restored, this will obviate any need to consider transforming the convention’s status into a legal rule’ (ch.4, para 140, p.44). By now it is clear that the report is strongly against any involvement of the courts in enforcing the Sewel convention, but the final justification it gives here is telling: ‘A rigid approach to the convention could also limit the ability of the UK Parliament to legislate in devolved areas when it would be appropriate to do so and beneficial to all parties’ (ch.4, para 140, p.44). Surely, this is exactly the situation which the Sewel convention is designed to support: legislation for the benefit of the UK as a whole can be introduced even if it overlaps with devolved areas, because there is a mechanism for the devolved parliaments to give their consent (which they will do if the legislation is clearly ‘beneficial to all parties’). A rigid approach to the convention would not therefore limit the UK parliament’s capacity to legislate for the benefit of all but enhance it because the consent of the devolved nations would be clearly visible in this process (which is, after all, one of the reasons for having devolution). To suggest that the UK government should have less hurdles to clear when passing legislation that affects the devolved nations is effectively to undermine the devolution settlement.
The repeated insistence throughout this House of Lords report that the Sewel convention should not become a matter for the courts is in sharp contrast to the implication within the Brown Commission’s report on the UK’s future, which advocates that the Sewel convention should be enforced by ‘a reformed second chamber [in place of the Lords], an Assembly of the Nations and Regions’, but further qualifies this position by stating that if this assembly contemplates using this safeguarding power, the question should be referred to court: ‘most likely directly to the Supreme Court, for an authoritative judgement on whether the constitutional protection powers are engaged’ (p.141). To be clear, this is not because the Brown Commission is any less beholden to the principle of ‘parliamentary sovereignty’ than the House of Lords Select Committee, it is just that it came to the conclusion that the Supreme Court can be relied on to protect it more reliably than purely parliamentary procedures. As I’ve argued in my discussion of the Brown Commission report, there is a sense that all of these reports ostensibly concerned with the constitutional future of the UK, are in fact most preoccupied with defending the principle of ‘[Westminster] parliamentary sovereignty’ rooted in the arcane formula of the ‘crown in parliament’, which is implicitly threatened by the existence of Scottish and Welsh Parliaments predicated on the democratic will respectively of the Scottish and Welsh peoples.
I’m skipping most of the rest of the report, which includes extensive chapters on ‘Whitehall’ and ‘Funding Arrangements’, but it is worth quoting this paragraph from Chapter 7, ‘The Governance of England’:
England’s place in the Union should not be overlooked, but there are no obvious governance changes to provide England with a distinctive voice that command political and public support. Establishing an English parliament would crystallise England’s relative strength—in population and economic terms—vis a vis the existing devolved legislatures. This would destabilise the Union. It would also do little to address the need for greater decentralisation within England, which we believe has the greatest potential to resolve concerns about the governance of England. (ch.7, para 230, p.68)
The argument here seems somewhat disingenuous in its belief that the current arrangement of having the UK Parliament in Westminster somehow masks the relative dominance of England over the devolved nations, which otherwise would have the potential to destabilise the Union! Indeed, an English Parliament might reduce any English resentment towards the Scottish and Welsh parliaments and set up a shared belief in the virtues of devolution that would help pave the way to the adoption of a fully federal, or even confederal, constitutional structure for the UK (or post-UK). An English Parliament (which doesn’t preclude the possibility of simultaneously achieving greater decentralisation within that country) is the logical requirement of devolution, if it is taken seriously. The current situation of devolved parliaments in only three of the four nations within the UK merely emphasises that the dominance of the fourth over the whole is taken as the natural order of things.
Finally, the last chapter of the report, ‘The Union’s Purpose and Potential in the 21st Century’, opens with the following paragraph, which reads ironically as though it is a direct intervention from the 19th Century:
We believe that the strength of the United Kingdom derives from the sum of its interlocking parts—with the different legislatures, executives, mayors and local government comprising a single state, with ultimate authority embodied in the Crown in Parliament. While different democratic mandates will inevitably lead to friction on occasion, the strength of the constitutional arrangements will be demonstrated in how the different parts take opportunities and resolve disagreements through stronger intergovernmental and interparliamentary relations. (ch.10, para 345, p.96)
Here, any earlier ambivalence as to whether the UK is a ‘union of nations’ or a ‘unified state’ is closed down by the pronouncement that it is ‘a single state, with ultimate authority embodied in the Crown in Parliament’. This is not a strong constitutional arrangement, it is rather a statement of religious belief. Therefore, I conclude that in essence, even if not to all practical intents and purposes, this report is essentially anti-devolution; a tacit acknowledgement that the introduction of devolution fundamentally altered the UK constitution and necessarily modified the operation of parliamentary sovereignty. Rather than contemplate such change, the report of the House of Lords Select Committee on the Constitution would leave the current settlement in place, while seeking to ensure that the unruly devolved children remain within the bosom of the British family, firmly under the paternalistic control of the ‘crown in parliament’.
Works Cited
Edgerton, David (2019) The Rise and Fall of the British Nation: A Twentieth-Century History (Penguin)
Hassan, Gerry (2022) Scotland Rising: The Case for Independence (Pluto Press)
Social Humanities 