In every discussion, including now in England, about the union of ‘four nations’ there is an acceptance that to deal with political reality the constitution of the UK needs changed and perhaps some tweaks to fiscal transfer just to sweeten the deal.
But what is always missing in these discussions is an assessment of something which has always been missing in the English then British system, accountability. It’s easy to see why the uncodified mass of medieval convention that the constitution was sufficient for an empire and for international hegemony. It allowed the Whig and Tories, then Labour and Conservative blocks of British politics to shape the state in their own image.
To this end Griffith in 1978 gave a lecture called the “political constitution” recognising rightly that in the UK constitutional debate is framed entirely through party politics. I agree with his assessment, but I don’t agree that this has created stability- far from it. The kind of gridlock our ‘flexible’ system was supposed to avoid came back to haunt us during the Brexit debate when it was clear that without checks and balances nearly half of the population was to be rode roughshod over.
In our law schools the Diceyan principle is still paramount in any discussion of public law. It’s the notion of “sovereignty” coming from the divine power of the crown in parliament. This line of Dicey is central to understanding his jurisprudence and the British establishment:
The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.
This is what hems our court into a corner on nearly every issue of jurisprudence and why (at best) on a matter of human rights law the Supreme court can only declare incompatibility. By convention the minister then changes the law to comply with human rights jurisprudence, however this is not a requirement and even the highest court in the land cannot strike down parliamentary statute.
As pointed out on the Redlines podcast this week (an excellent listen) the only way we can truly federalise with proper checks and balances for the devolved legislatures is to abolish England. This is the template provided by Germany where after the war Prussia was officially abolished and split into separate states under the new federal German state.
But there is no political hunger for this coming from England at all. Much less the only solution offered by many is simply more devolution and more fiscal transfer. But again, this doesn’t address the underlying issue highlighted by seminal decisions such as Brexit; the lack of accountability within the system. A better accountability mechanism underpinning the union would be something like legislating the Sewell convention.
This, like every other convention of our constitution, is not a requirement but merely a political ‘wink and nod’ that Parliament won’t legislature over a devolved assembly without a consent motion from that assembly. If it were to be legislated for as part of a written constitution, then it would be similar to the US constitution which requires 3/4 state ratification (with Federal ratification) of a constitutional amendment.
Without these checks and balances the union will continue to lose its ability to adapt to a changing world. It will continue to alienate groups not supporting the majority decision and disenfranchise millions over vast geographical areas in the interest of pure party politics. This debate isn’t an abstract notion, it plays to the very real feeling that in some parts of the country a vote is worth less as a legal vehicle for change than in others.