The British constitution, devolution and “doublethink”

Does devolution affect the basic fabric of the British constitution?

I’m speaking at a seminar tomorrow on devolution in the UK and Spain. This post is an attempt to explain – hopefully in an accessible way – what I’ll be arguing. The title of my talk is “The Impact of Devolution on the British Constitution: Two Contrasting Readings”. As that title suggests, I think that there are two ways of looking at how devolution affects – or fits into – the UK’s constitution. And these two ways of looking at devolution reflect some deeper underlying truths about how the constitution works and how we think about it.

On one view, devolution – for all that it is significant in practical and political terms – does not affect the fabric of the constitution in any substantial way. Before the introduction of devolution, Tony Blair tried to reassure sceptics by saying that, constitutionally, devolved governments and legislatures would be no different from parish councils. Blair was making an important point, albeit in an extremely clumsy and insensitive way. Bodies like the Scottish Government and Scottish Parliament are nothing like parish councils in terms of the amount of power they wield; but they are, at the end of the day, legally inferior to the UK (Westminster) Parliament.

That is because the UK Parliament is, in constitutional theory, “sovereign”: as Dicey, an influential Victorian legal commentator, put it, the UK Parliament can “make or unmake any law”. And so, because devolution was brought about by legislation enacted by the UK Parliament, the institutions thereby created are not the constitutional equals of that Parliament. Rather, the devolved institutions owe their existence to – and can therefore have their powers altered, and can even be abolished by – further legislation made by the UK Parliament.

This first “reading” of the British constitution is comforting to some, ridiculously formalistic to others. It is comforting in that it allows us (if we so wish) to pretend that nothing has altered: that the sovereignty of the UK Parliament – long regarded as the axiomatic feature of the British constitution – continues unchanged. But this is a highly formalistic way of looking at things. To say that the UK Parliament is sovereign and can therefore unilaterally interfere with, even rescind, the devolution system is to make a statement that is so theoretical as to be practically meaningless. Political reality – as distinct from constitutional theory – has moved on. Devolution is already an ingrained feature of the British constitution; it is not practically possible for politicians at Westminster to play around with it as they wish.

This presents us, then, with two contrasting readings of the constitution: a theoretical one and a more practical one. And the disjunction between these two readings reveals a gap between how we think about the constitution in theoretical terms and how the constitution actually works today. This might seem odd, but in fact the British constitution is full of this sort of thing. Take the powers of the monarch. In theory, no Bill can become an Act of Parliament without her agreement: but in reality, the monarch assents – and is expected to assent – to legislation as a matter of course. By applying this sort of “doublethink”, it is possible to preserve the dignity of the monarch (by saying that she is legally powerful) while ensuring that democratic principles apply (because in practice the monarch does not exercise her power to veto legislation).

This might be regarded as the best of both worlds: a constitution that holds to its traditions, on the one hand, while working in a way that is fit for modern circumstances, on the other hand. I think, however, that devolution illuminates these issues in a fresh way. On one level, devolution is just another example – along with, say, the position of the monarch – of the gap between constitutional theory and constitutional reality. On another level, however, it is different, and presents an unusually significant challenge to the traditional way of looking at things. That is because devolution is in tension with that traditional approach in not one, but two ways.

First, it institutes a principle – namely, respect for the autonomy of individual nations within the UK – that sits uncomfortably with the idea that the UK Parliament can legislate in any way that it pleases. The principle of devolved autonomy cannot be legally accommodated as a truly fundamental constitutional principle, because no principle, on the traditional view, can restrict the UK Parliament’s power to do what it likes. Instead, the autonomy of devolved nations can be accommodated only as a legally non-binding principle that the UK Parliament is expected – but not, at the end of the day, legally obliged – to respect (just as the Queen is expected, but not legally obliged, to assent to Bills).

Second, however, as well as giving rise to a principle that that is in tension with the traditional view of the constitution, devolution also introduces a model of constitutionalism that is in tension with that view. Unlike the UK Parliament, the devolved legislatures – the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly – are not sovereign. Instead, their powers are limited – both by the UK legislation granting powers to the devolved legislatures and by fundamental constitutional principles. The latter point is especially important.

In the case of AXA General Insurance Ltd v The Lord Advocate, the UK Supreme Court was called upon to decide whether the Scottish Parliament was limited by such principles – and said that it was. Giving one of the leading judgments, Lord Hope pointed out that there was always a risk that a legislature controlled by a powerful government might be tempted to ignore such principles. It was therefore appropriate for courts to have a reserve power to intervene if such a situation came to pass. And although Lord Hope was talking about the Scottish Parliament, his argument is no less applicable to the UK Parliament.

Devolution, then, places the traditional view – according to which the UK Parliament is sovereign – under particular pressure. It introduces a new category of things – namely, interfering with devolved autonomy – that the UK Parliament cannot actually do (whatever the theory tells us). But it also introduces a different sort of constitutional model, under which the powers of the devolved legislatures – unlike their UK counterpart – are limited by law. This does not necessarily, in itself, get rid of the traditional view as it applies to the UK Parliament; but, at the very least, it invites critical scrutiny of that view.

The creation by a sovereign UK Parliament of legally limited devolved legislatures is therefore something of a paradox. It might even be said to be hypocritical. If the devolved legislatures are bound by the rule of law, why shouldn’t the UK Parliament be similarly bound? But if this is hypocrisy, it is nothing new: after all, the UK bequeathed written constitutions with legally limited legislatures to many former colonies. Perhaps legislators in the UK Parliament uniquely lack any need for constitutional law as an ultimate restraint. Or perhaps not.

Image above reproduced under Creative Commons Licence.

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