Professor Douglas-Scott’s brilliant lecture for Putney Debates 2021 so clearly captures the many constitutional tensions and uncertainties concerning the union in the UK in the post-Brexit, mid-pandemic era. I have been asked to reflect on this from the UK perspective, and will focus in particular on the relationship between federalism and parliamentary sovereignty.
In her lecture, Professor Douglas-Scott explores whether federalism could be a potential solution to the UK’s current territorial tensions. Her framing of this question as concerning whether we can have ‘self rule’ plus ‘shared rule’ in the UK is extremely useful, and I will borrow this to frame my reflections.
There are a number of challenges to adopting a federal constitutional model in the UK. In my view, this makes federalism in a formal sense an extremely remote prospect. Issues concerning the state of union are in considerable flux – as Professor Douglas-Scott showed so clearly in her lecture, much of this has been driven by Brexit, and the divides between England, Scotland, Wales and Northern Ireland, and the constituent parts with the UK government itself, over the decision to leave the EU, the implementation, and the aftermath.
At this time, disintegration of UK seems more likely than federalism, when the political incentives for any of the nations or territories to tie themselves into a definitive binding legal framework are far from obvious. Wales may be the exception, with a Labour government which is unionist but still keen to extract further power from Westminster. But aside from persuading the SNP to commit to a federal UK, and splitting unionist and nationalist communities in Northern Ireland, there is the major (and perhaps irresolvable) challenge of how to accommodate England (or its regions) within a federal structure, when it represents around 86% of the population.
In addition, there are the long-standing arguments about the adoption of a codified constitution, within which federal political arrangements would probably sit. I am sceptical about both the practicality and desirability of adopting such a constitutional framework, and there are clearly independent barriers to a move to federalism which flow from the wider challenges of a full-scale codification exercise.
If we acknowledge these challenges, the underlying question posed by Professor Douglas-Scott does not disappear, but it may subtly change: can we have ‘self rule plus shared rule’ without a formal division of sovereignty in a codified constitution?
Some may regard this as impossible, with federalism only coherent as part of a codified legal framework. But I’m not sure, and don’t think we need to give up on the possibility of very substantial reform simply because federalism seems unavailable. The binary distinction often made between federal constitutions and those based on parliamentary sovereignty is in my view too stark, and instead we should be exploring the spaces and possibilities in between.
This is especially the case if we reconsider traditional ideas about parliamentary sovereignty, and in particular the idea that an essential corollary of this doctrine is that Parliament ‘can’t bind its successors’. The idea that a sovereign legislature is incapable of placing any limits on itself or its successors is increasingly disputed in theory and in practice, and a ‘manner and form’ understanding of legislative power is in my view now the best available in the UK (both descriptively and normatively).
To illustrate the scope for reform to the constitutional architecture of the union which might be possible without a departure from parliamentary sovereignty, we can break this down further, to think about (i) institutions and (ii) processes.
First, in relation to institutions, much could be done without a formal shift to federalism. A review of the machinery of intergovernmental relations is ongoing, but even if the results are timid, there are a range of other detailed proposals for enhancing the structures for shared decision-making between the UK government and devolved governments in the UK. One major example is the proposal for a UK Council of Ministers from the Welsh government (among others).
But while important, institutional reform will only be significant if the commitment of the relevant political actors is genuine. This also suggests the need for reform not just to intergovernmental relations and greater shared decision-making, but also within the UK government itself, to ensure (as suggested in the Dunlop review) that UK responsibility for the union and devolution is held in a department, by a minister, with appropriately high authority.
Second, in relation to processes, the manner and form theory of parliamentary sovereignty offers possibilities here which haven’t been adequately explored. The ‘permanence clauses’ created by the Scotland Act 2016 and Wales Act 2017 (making the existence of the Scottish Parliament and Senedd Cymru permanent, unless abolished following referendum decisions of the respective peoples) provide a starting point for further exploitation of this conception of sovereignty. But they are just a starting point, and there is no reason in principle that more ambitious changes could not be made to the current devolution architecture.
For example, on the manner and form conception of sovereignty, there is scope for giving devolved legislatures direct involvement in the UK legislative process. This could be by making the Sewel consent requirement a binding statutory obligation as part of the law-making process, in a much more elaborate way than when the convention was half-heartedly ‘recognised’ by the UK Parliament in 2016 and 2017. That the Supreme Court in Miller (No.1) found that this ‘recognition’ focused statutory formulation failed to make the convention legally binding does not mean that it cannot be done if Parliament actually intends that outcome.
Similarly, a manner and form approach suggests that there is also scope for further integration of referendums into the legal structures of the union. This is already the case in the Northern Ireland Act 1998, in relation to a referendum on the reunification of Northern Ireland and the Republic of Ireland. But – in theory at least – making certain decisions (most obviously relating to independence /secession from the UK) available, subject to statutory referendum requirements, could also be extended to Scotland and Wales.
These are simply starting points for consideration, and no doubt their desirability would be hotly debated. But this perspective is important, because it indicates that as a matter of legal principle, the concept of parliamentary sovereignty (once separated out from the attitudes to UK sovereignty of the current government) is not a decisive obstacle to better distribution of power throughout the union.
Parliamentary sovereignty did not prevent EU membership, or substantial devolution to Scotland, Northern Ireland and Wales, or the creation of human rights legislation – instead, this legal concept has been sufficiently malleable to accommodate (and indeed arguably facilitate) major constitutional change where the political will existed. Reform to the constitutional foundations of the union is certainly needed, but we need not, and should not, pin our hopes on the distant prospect of federalism.
(Related topics—Putney Debates 2021：The Unity of a Nation)