Constitutional Law: The Big Picture IV — The Territorial Constitution

This is the fourth in a series of posts and accompanying videos on the UK constitution. In earlier pieces in this series, I introduced it and went on to consider judicial review and human rights. The overall aim of this set of posts and videos is to explore the nature of the UK constitution through consideration of the extent to which its famed flexibility enables politicians and lawmakers to remake the constitution at will, and to ask whether the constitution possesses any settled, if not immutable, content that makes it resistant to some forms of change. In this fourth part of the series, I pose those questions with reference to the UK’s territorial constitution, focussing in particular on the implications of the systems of devolution that were introduced in Northern Ireland, Scotland and Wales in the late 1990s.

Viewed from the vantage point of my overarching question about the nature of the UK constitution, devolution, and the territorial constitutional arrangements it has ushered in, is something of a double-edged sword. It might be thought that the very introduction of devolution serves as a powerful illustration of the UK constitution’s malleability. In most countries, such radical rewiring of basic constitutional arrangements would be feasible only through a likely onerous and drawn-out process of amending a written constitution. In contrast, creation of new legislative and administrative institutions of government in three of the UK’s four nations was accomplished through nothing more elaborate than the enactment by the UK Parliament of primary legislation. The question arises, however, whether, having exploited the flexibility of the constitution in order to establish a new set of territorial arrangements, the UK Parliament might have reshaped the constitution in a way that has served to make it less malleable — a view that might be reinforced by the fact the UK Parliament itself now refers in primary legislation to the devolved institutions as ‘permanent’ parts of the constitution.

This issue can also be considered from a different perspective, by noting that parliamentary sovereignty itself may be a double-edged sword. It is the ultimate guarantor of the UK constitution’s malleability, in the sense that it enables Parliament to do as it wishes: to paint, at will, on the ‘blank canvas’ that is, to begin with, a product of parliamentary sovereignty. On a strictly traditional legal analysis, this means that devolution is always at the mercy of a sovereign Parliament that could weaken or even reverse it. Paradoxically, however, the very fixedness (on an orthodox view) of parliamentary sovereignty appears to preclude the establishment of the sort of ‘shared governance’ arrangements for which the Welsh Government has advocated, and which might bring a degree of stability to an increasingly fractious set of territorial arrangements. It follows that while sovereignty is the ultimate guarantor of the constitution’s flexibility, the rigidity of the sovereignty principle itself may stand in the way of necessary change.