By Prof Michael Keating
In the last twenty years, the United Kingdom has undertaken a massive programme of constitutional change. It has transformed form a formally unitary state into a plurinational, quasi-federal union associated in complex ways with the neighbouring state of Ireland. This is an evolutionary process, leaving many issues in abeyance and evolving over time. It has happened entirely during UK membership of the European Union and the two constitutional transformations have been deeply entwined.
It is often thought that the European Union, with its principles of supranationality, underpinned by its own system of law and courts, is at odds with the UK constitution, based as it is on unitary authority and parliamentary sovereignty and supremacy. That is perhaps so if we take the ‘Westminster view’ of the constitution, as expounded by Dicey and Blackstone. Certainly, a driving motive of the Leave campaign was to restore parliamentary sovereignty. After the referendum, of course, some Brexiters shifted to a defence of popular sovereignty, if need be against Parliament but this is not germane to the present argument. Popular sovereignty was still based upon the notion of a unitary people.
Taking a different view of our emerging constitution, however, the United Kingdom and the EU are rather a good fit. Both are plurinational unions, lacking both a single and unitary people or demos, and a shared telos, or end point in their development. Both can be understood as being based on post-sovereign principles of shared authority, which cannot be reduced to a single principle that over-rides all others. Neither is a federation in the traditional sense, but both have federal elements.
This is most clearly seen in the Northern Ireland settlement, which suspends Westminster understandings of the state. It introduces creative ideas about sovereignty, multiple identities, borders and citizenship and brings in a neighbouring state into the politics of part of the United Kingdom. There is also an effect in Scotland, where a shared commitment to Europe has opened up a discursive space for post-sovereigntist ideas and attenuated the effects of a possible move to independence. Wales, too, has recognized a European element in its constitutional development towards self-government.
Brexit puts this emerging constitutionalism at risk. Let us look at three examples.
The first is the Supreme Court judgment in the Miller case. Certainly, the Court did stipulate that Parliamentary approval was needed to trigger Article 50, but it summarily dismissed the argument that the devolved legislatures should have a role. That claim was based on the Sewel Convention, to which the UK Government had recommitted after the Scottish independence referendum, to the point of writing it into the Scotland Act (2016) and the Wales Act (2017). In its narrower sense, the Sewel Convention stipulates that Westminster will not normally legislate in devolved matters without the consent of the relevant devolved legislature; its broader sense extends this to changing the powers of the devolved bodies. The Court might have rejected the application of Sewel on narrow grounds, either that the matter concerned foreign affairs or that the circumstances were not ‘normal’. Instead it chose to pronounce an orbiter dictum to the effect that Sewel was only a ‘political’ understanding and not binding in any circumstances. In fact, nobody really expected it to say that Sewel was enforceable by the courts as a matter of hard law, but their dismissal of its relevance betrays a misunderstanding of the role of conventions in general and the spirit and purpose of Sewel in particular. In the absence of written constitution, conventions are really all we have. The contrast with the sophisticated jurisprudence of the Canadian Supreme Court is glaring.
A second issue concerns the possibility of a differentiated settlement for Scotland. Within the United Kingdom, Scotland, Wales and Northern Ireland have highly differentiated settlements. The Scottish Government proposed that this kind of differentiation and flexibility be applied to Brexit. There is no space here to discuss how far these proposals were practical. The point is that they were rejected on principle and not even negotiated politically (although there appear to have been discussions at political level). There is a shared commitment among the UK, Ireland and the EU to avoid creating a hard border across the island of Ireland but, without some differentiation similar to that proposed for Scotland, it difficult to see what this could mean.
The third issue is the repatriation of competences. The EU framework allowed for a more expansive devolution settlement than might otherwise have been possible, by assuring a single market within the UK itself. After Brexit, there is a case for saying that some common frameworks will be needed to deal with externalities, competition, overspills and links between devolved competences and foreign affairs, including trade policy. The issue is not about whether but about how this is done.
The UK Government claims that, were those powers now shared between the devolved governments and the EU to come back to Westminster, this would not represent a loss of decision-making power, as the devolved bodies not make policy in these fields but only administer European policy; indeed any policy-making power they may get would represent an enhancement of devolution. The devolved governments do not agree. They further argue that, as these matters (notably agriculture, fisheries and the environment) are not reserved, they will default to the devolved territories unless the settlement is changed. The Welsh Government has argued for common frameworks negotiated among four nations. The Withdrawal Bill takes the opposite tack, reserving all ‘retained EU competences’, but allowing selective ‘release’ of powers back to the devolveds. There is an issue of constitutional principle at stake here and the Scottish and Welsh Government have stated that they will not recommend legislative consent to the relevant clauses.
In the absence of a written and codified constitution, the politics of Brexit has been marked by claim and counter-claim. This will continue but there will be critical moments at which some claims will prevail and be incorporated into future constitutional understandings. The evidence from the first year is that this will not play to the advantage of the devolved authorities.
Michael Keating is Professor of Politics at the universities of Aberdeen and Edinburgh and Director of the Centre on Constitutional Change. He is currently visiting professor at UCD.