After #IndyRef 2: UK’s incohate ‘Constitution’, devolution and the layering of sovereignty

I recall remarking to a friend, who had been a Conservative candidate in the 2010 general election after he’d got confused on Twitter about the nature of electoral system currently in use in Scotland that it might be easier not to lose track of what’s what if someone had written the whole United Kingdom’s constitution down on one piece of paper.

The poetic incoherence of the British constitution used to be considered — as its constitutional monarchy still is — as one of its magical charms. But one of the most important takeaways of the Scottish Independence campaign and the Referendum result is that for many people on both the Yes and the No side that old magic alone is not enough to keep the island together.

Between them the growing nationalisms of England and Scotland have diminished the greater bond of the Union — bought and sold for English gold — of the two base constituent parts of the UK: something its democratic institutions have been slow to notice never mind account for.

We need to distinguish here though between two very different demands which the #IndyRef has released. One is properly constitutional and involves changing the power and status of the law making machine of the UK. This involves only (at this stage) the Scottish Parliament, but Carwyn Jones was also pretty quick out of the trap saying it would also affect Wales.

Northern Ireland is the UK only other internally devolved legislature, and it’s a moot point whether either or both of the main parties can or will cobble together sufficient political will to attain more drop down powers.

To be clear, London is an Assembly, but it has no devolved legislative powers. Nor is it council since it has no executive powers of it’s own. It’s more of a watchdog built to keep an on men with huge egos and little direct power to shape the strategic interests of the city.

If Michael Ashcroft’s poll is to be believed, what’s holding the UK is less habit of mind (though I’m pretty sure that this was a factor in the pre Thatcher generations which voted predominantly No) and more the paucity of the economic case put by the Yes camp:

Only just over a quarter named “a strong attachment to the UK and its shared history, culture and traditions”. Even fewer (25%) said it was that a No vote “would still mean extra powers for the Scottish Parliament together with the security of remaining part of the UK, giving the best of both worlds”.

By far the most important reason was that “the risks of becoming independent looked too great when it came to things like the currency, EU membership, the economy, jobs and prices”. Nearly half (47%) of No voters said this was their biggest consideration.

The problem is that the unattended complexities are already feeding divergence amongst the until last Thursday, coherent Yes team. It is already, as Paul Goodman on Conservative Home notes, reverting to second order business in Westminster’s electoral business as usual, and in the Tories case, there are two dragons lurking in the field, Labour and UKIP.

To counter both on the Tory Party’s immediate electoral grid, Cameron has jumped on English votes for English laws as a cure all for England’s deficit.

Alan Renwick is alarmed by the sheer unthought-through-ness of it:

 David Cameron is proposing the most radical change in the structure of the Union since it was formed in 1707 (yes, I mean that). And he is proposing to do it without serious deliberation. Yes, ‘English votes for English laws’ (EVEL) has been Conservative Party policy for some time. But it has never been seriously debated. Virtually no voter has ever heard of it. Its profound implications have not been thought through.

Yes, but let’s not forget that it is popular. And it is a real problem. Moreover, popularity is what wins elections. [Erm, and loses countries? — Ed]. As the Economist noted yesterday:

According to the British Social Attitudes and Future of England surveys, the proportion of voters “strongly” supporting EVEL rose from 18% in 2000 to 55% in 2012. The imminent transfer of new powers (particularly tax-raising ones) to Holyrood will only accentuate that trend. The Tories (along with the tabloids and UKIP) are having a throughly jolly time insinuating that Labour cares more about Britain’s celtic fringe than it does about its English core. They seem to have hit on a resonant, doorstep-friendly dividing line. Why stop banging on about it?

Having only just called Salmond’s bluff on Scotland (wee Eck, ever the gradualist, wanted Devo Max before having a full on firefight over Independence), Cameron now seems content to level the playing field for England rather than romance the Scots back into the Union or indeed to fix the ill distribution of fiscal and democratic power within its borders.

Meanwhile, former PM, now parliamentary backbencher, Gordon Brown has been adding critical detail to the already road-mapped plan:

This timetable to further Scottish devolution, nothing less than “a modern version of home rule”, was “self-contained and unaffected by anything else happening elsewhere”.

Self contained is right. By ‘a modern version of Home Rule’, Brown is talking about ceding sovereignty to the Scottish Parliament within the United Kingdom, rather than devolution as such. A new model which won’t be shared, at least in the short term, across the UK under the Cameron, Miliband, Clegg (and ‘Enforcer’ Brown) plan. 

The trouble is that whilst all of these things are being discussed, there are rumbles elsewhere in the Kingdom, in particular inside England. And not just Up North.

What the north and the south have in common is the sense of a one way process where power is endlessly devolved from the edge to the centre, fiscally in the sense that council budgets are now controlled more or less absolutely by London, and politically in that service delivery at the end is circumscribed in much the same way:

Paul Goodman again:

…is it too much to ask that such a tactical wheeze should be part of a more serious whole? That Team Cameron should give as much thought to the stability of the constitution and the country as to getting its collective feet back under the Downing Street table next May? How inspiring it would be to see evidence that the main motive for these manoeuvres is a sense of the public good. None is available.

The word they are all avoiding (presumably because it would mean politicians having to concentrate for longer than a single electoral cycle) is federalism. Murdo Fraser writing for Slugger earlier in the year, explains:

…federalism is the belief that sovereignty is entrenched at each layer of government, as opposed to the current UK constitutional position whereby all sovereignty rests with Westminster. Whilst we do have devolution to Scotland, Wales and Northern Ireland, these devolved institutions derive their authority from Westminster, and technically could be abolished at any point by an act of the Westminster parliament. As Enoch Powell famously stated: “Power devolved is power retained”.

For a country whose lawyers were responsible for setting up the German federal system and a constitutional court to patrol the boundaries between one layer of government and another (including its own external dealings with the European Union), the propensity of the British establishment to wing it and muddle through has taken them to the brink of losing the top third of the island of Britain.

Next time round it won’t be Scotland that’s on the brink, but the United Kingdom itself and its own membership of the much less loved European Union.

  • Michael Henry

    ” English votes for English Laws “-

    Nothing wrong with that- keep it local and keep your snouts out of ( Northern ) Ireland –

  • Mister_Joe

    inchoate –

    definition; adjective ( very formal) /ɪnˈkoʊət/
    just beginning to develop or form

  • mickfealty

    Yep, from Magna Carta onwards. You could say that the British Constitution is in a constant state of emergence. It’s inconceivable that many other states would take the possible succession of such a large part of it with such apparent equanimity.

    On the Irish Times podcast last week (http://goo.gl/Q9JjX5) Alex Massie made the important point that British Constitutional history came to a shuddering halt with the passing of a Home Rule Bill a hundred years ago last Thursday which whilst it made into statute was never acted upon.

    Now it has been re-engaged, it is inconceivable that it will stop now. What home rule, as Brown intends, means for Scotland is a stand alone independence within the UK, in particular in fiscal terms. In that respect it is not devolved from Westminster, but let go.

    However, as we know from our own history, even that can at some point in the future be prorogued by the Westminster parliament. There are no actual constitutional protections for any democratic institutions other than Parliament.

    Which is one reason why the long slow centralisation of fiscal powers has been done with very little opposition from those councils that have been summarily stripped of them over the last 30 years or so.

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