There are two very different views of the UK’s largely unwritten constitution. One, the “Westminster” view, is based on the principle of parliamentary sovereignty and supremacy. This holds that the UK Parliament is the supreme source of law and can do anything except bind itself. Parliament, in turn, is answerable to a unitary British nation. It is this view of the constitution that clashes with the European project, which is based on a philosophy of sharing sovereignty and power.
The other view, widely held in Scotland and the other UK nations, is that the United Kingdom is a union of nations, each of which has its own relationship with the centre. Devolution since 1999 has reinforced this view by providing Scotland, Northern Ireland and Wales with their own elected legislatures and governments.
It is further strengthened by the “Sewel Convention” under which Westminster will not “normally” pass laws in devolved areas without the consent of the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly. The convention was put into law in the Scotland Act (2016) and the Wales Act (2017). The Northern Ireland settlement rejects the idea that there is a unitary British people. Instead, it allows people to define themselves as British, Irish, Northern Irish of any combination of those. It also provides that the people of Northern Ireland can vote to join the Republic of Ireland.
The constitution and the EU
This “devolved” view of the constitution is entirely consistent with the European project. The United Kingdom and the EU are both unions in which different nations share power. Both are open-ended, without a clear end point. Rather they adjust according to the times. The issue of sovereignty is fudged and never absolutely resolved Opinion surveys have repeatedly shown that the people of Scotland and Northern Ireland have no problem with multiple layers of authority. Our work on the Scottish independence referendum showed that, despite being forced to choose between independence and the union, most voters continued to prefer something in between.
In Northern Ireland, the power-sharing settlement has gained cross-community support. The numbers of people in Scotland and Northern Ireland who want to put all the sovereignty in one place is small. The argument for Brexit was to “take back control”, and restore the supremacy of the UK Parliament and people by eliminating the provisions that made UK law subordinate to EU law in fields where the EU is competent. This reflects the Westminster view of the constitution in which sovereignty must be in one place. The majority in Scotland and Northern Ireland, however, voted Remain, wanting to remain in both the UK and European unions. Now they are forced to choose.
From then till now
Brexit therefore presents a severe challenge to the UK’s evolving constitution. We can illustrate this by three developments in the year since the Brexit vote.
The first is the judgment of the Supreme Court in the Miller case, which primarily concerned whether Parliament needed to approve the Government’s triggering of Article 50, giving notice of withdrawal from the EU. The Scottish Government joined the case to argue that it would also need the consent of the devolved legislatures. This is because it would require changes in the devolution acts in various ways.
At the minimum the provisions binding them to act within EU law will have to be removed. The Supreme Court could have ruled that the convention was not applicable because the situation was not “normal”, or because the EU comes under foreign affairs and is not devolved. Instead, at the urging of the UK Government’s Advocate General, it ruled that the convention was a mere political device and not binding in any circumstances.
The second issue concerns the idea that Scotland and Northern Ireland might have a differentiated from of Brexit, allowing them to remain in parts of the EU, including the Single Market, even as the rest of the UK withdraws. A plan was presented by the Scottish Government in December 2016. Nationalists in Northern Ireland have made their own suggestions for a differentiated settlement, although unionists have opposed the idea. The UK Government response is that there must be a “UK approach” in which the whole of the UK must in the future have the same relationship with the EU.
The third issue concerns those powers currently held by the EU which are also devolved within the United Kingdom. The main ones are agriculture, fisheries, the environment and some aspects of justice and home affairs. The UK Government’s position is that all powers will come back to Westminster, which can then decide which ones to pass down to the devolved level. The Scottish and Welsh Governments have argued that these powers constitutionally belong to them. There might need to be UK frameworks to replace European frameworks but these would have to be negotiated voluntarily among the four nations.
What lies ahead?
Brexit exposes very different views of the UK constitution, something that has not had to be addressed since devolution in the late 1990s. The UK Government’s positions have implied a reaffirmation of Westminster supremacy at odds with developments since 1999 and tending to centralisation.
The issue could be resolved by the UK breaking up, with Scotland and Northern Ireland remaining in the EU. Alternatively, it could be resolved by the UK Government imposing its will and leaving the EU on terms set by itself. The result of the General Election suggests that neither the UK Government, with its unitary view of the constitution, nor the Scottish or Irish nationalists, are strong enough to allow either of these to happen. Instead, Brexit will remain entwined in the changing constitutional politics of the UK.
By Michael Keating, Professor of Politics, University of Aberdeen.