A British Bundesrat?

Whatever​ the outcome of the independence referendum in Scotland this September, it will be followed by an extensive inquest into the workings of the British constitution. In some quarters inquiries have already started. The Political and Constitutional Reform Select Committee of the House of Commons issued a report in March last year titled Do We Need a Constitutional Convention for the UK? The Liberal Democrats’ Home Rule and Community Rule Commission has advocated ‘home rule all round’ in a new federal union. A similar call has come from David Melding, the Conservative deputy presiding officer of the Welsh Assembly, in The Reformed Union: The UK as a Federation, published last year; while Conservatives at Westminster, including Kenneth Baker, Malcolm Rifkind and members of the so-called Democracy Taskforce set up by the Tories in opposition and headed by Ken Clarke, have over the past decade proposed various means of ironing out post-devolutionary wrinkles in the British political system. So too has the McKay Commission (2012-13), chaired by a former clerk of the House of Commons. Meanwhile there have been major investigations in Scotland (the Calman Commission of 2007-8) and Wales – the Richard Commission (2002-4), the Holtham Commission (2007-10) and the Silk Commission (2011-14) – into the broader operation of devolution and the funding mechanisms that support it.

Anxiety has focused not only on relations between Westminster and the constituent nations of the United Kingdom, but also on the appropriate remits of devolved and local government. For devolution, it transpires, does not always entail subsidiarity. The Labour Party in Scotland launched its own Devolution Commission, whose interim report in the spring of 2013 plausibly invoked the cause of local government against the centralising tendencies of Scotland’s SNP administration. By the same token, the councils of Orkney, Shetland and the Western Isles last year formed an alliance to consider the implications of constitutional change for the remotest parts of Scotland. The diktat of an uncomprehending Edinburgh three hundred miles away can seem just as distant and threatening as rule from London.

The unintended implication of this raft of commissions, inquiries and initiatives is to reinforce the doubts raised by nationalists of one sort or another about our constitutional arrangements. Is the United Kingdom – as the SNP alleges – a failed state? Alex Salmond’s unavowed southern cousins – Ukip’s English base and the English nationalist wing of the Tory Party – take a similar tack: is the British political system sustainable in its current form, with devolution for all and sundry except the English nation itself, the exploited milch-cow of the Union?

There is a deeper, more enduring irony here. Notwithstanding the current commotion about the prospects for enhanced devolution, federalism and an ill-defined devo-max, the constitution we have remains that of a Greater England. Strangely enough, the Treaty of Union which is constitutive of the British state enjoys no special constitutional standing. Our constitutional experts don’t seem to be much good at parsing what – it should be clear after four decades of debate about the Scottish Question – is manifestly a partnership founded on an international treaty. Yet from England’s enduring solipsism derive many of the constitutional problems which beset the United Kingdom. Everybody knows the canard that the UK has no constitution, because it’s not all written down in one place like the American constitution. Understandably enough, given the jibes the subject attracts, jurists and political scientists have over the years fixated on the question of what makes the British constitution a constitution. Rarely, if ever, have they confronted the less obvious question of what makes the British constitution British.

When did the English state become British? And what at that point became of the English constitution? In what ways was it transformed by the Union of 1707 which created a new British state? Such questions are rarely answered in the literature of British constitutional interpretation. It’s not that the Union is singled out deliberately for disregard but rather, that the impenetrable arcana and demanding idioms of British constitutional scholarship have allowed an instinctive, unreflective and arrogant anglocentricity to obscure the real nature of the constitution. The Union negotiated and ratified in 1706-7, which, one might suppose, gives our constitution being, lies – unnoticed – in its innermost recesses.

This strange pretence originates not from any sinister intent, but from the very looseness of constitutional practice and interpretation. During the devolution debates of the late 1970s the late Lord Wilberforce, then a Lord of Appeal, lamented what he called the ‘present state of constitutional anarchy’. ‘It really is time,’ he urged, ‘that we in this country took our constitution seriously.’ All too often, Wilberforce complained, Britain muddled through in constitutional matters ‘with a fuzzy kind of reliance upon convention’. Devolution, he feared, might throw up issues that were less easily settled, and he called for the establishment of a constitutional council or court to deal with potentially intractable inter-institutional frictions. Since 2009 the United Kingdom has had a Supreme Court (though one whose powers are much more circumscribed than those of its equivalent in the United States); but the fuzziness about which Wilberforce complained remains. Indeed the Union in particular is so blurred that constitutional experts are unable to discern its true lineaments. Here a kind of – initially – wilful obliviousness about what had happened in 1707 has gradually hardened into accepted fact.

At the core of British constitutional law, at least until accession to the European Community in 1973, has been the notion of parliamentary sovereignty: that Parliament is untrammelled by any ulterior power; that when legislation contradicts earlier law then the repeal of the previous legislation is implied; and that no Act of Parliament is superior in status to any other. A.V. Dicey, the most influential of all authorities on the British constitution, famously proclaimed that the Act of Union with Scotland was of no greater authority than the Dentists Act of 1878. However, law forms only a part, if admittedly the largest part, of British constitutional life. The smooth running of the constitution also depends on prerogative powers, most of which now belong not to the monarch herself but to ministers of the crown, and on non-legal rules – in other words on a body of constitutional rules not contained in statutes – known as constitutional conventions. Most conventions are recognised, and occupy a place in the manuals of constitutional interpretation, but the Treaty of Union belongs to a category of convention hitherto unknown to constitutional jurisprudence. The pretence that Scotland was amalgamated with England in 1707 by way of a measure known as the Act of Union is what might be called a convention of non-recognition; more precisely, it is a near universally unacknowledged convention of non-recognition of the Treaty of Union.

The British constitution is what the practice of courts, the behaviour of politicians and a preponderance of constitutional interpreters uphold as constitutional fact. Yet some puzzles linger. Why isn’t the British constitution what it ought to be? Why does hardly anybody notice that England’s ancient constitution expired – like the auld Scottish constitution – in 1707? Why, for example, do pre-1707 English constitutional precedents survive under the post-1707 regime? Few jurists have ever dreamed of asking these questions; though on the very rare occasions they do the answers are startling. Perhaps the strangest book in this field is J.D.B. Mitchell’s Constitutional Law (1964). Mitchell, an Englishman who became a professor of constitutional law at the University of Edinburgh, provides a deliberately defamiliarised account of the British constitution, as viewed from a Scottish perspective. Contrary to the prevailing doctrine of parliamentary sovereignty, Mitchell contended that the British Parliament – a product of the Union, which both gave it life and placed limits on its competence – was ‘born unfree’. Staggering in its own way is the acute perception of Sir William Wade, who held chairs in law at both Oxford and Cambridge, that the Union was originally understood to be the ‘fundamental law’ of the new British state, but ‘the Treaty was made too early, and the argument has been raised too late, for this reasoning to be acceptable to the courts.’ In other words, that the Union is the written constitution of the British state is no more than a highly inconvenient and thus insignificant truth. The Scottish jurist T.B. Smith took the Union at face value and refused to accept the subaltern status of Scots law within what had become by default a Greater English state. Why, Smith asked, did Section 70 of the Army Act of 1955 incorporate the entire criminal law of England? In what way was Scottish criminal law inappropriate for the British Army? Smith became a connoisseur of such evasions and inconsistencies.

Indeed, it is Scottish nationalists who provide a delicious exception to this story of neglect. While most constitutional commentators have largely taken the Union for granted as a mere component within the British constitution, Scottish nationalists have over the years been the staunchest of strict constructionists. They uphold the Union of 1707 – which they otherwise despise – as the binding constitution of the UK and exhibit a terrier-like approach to constitutional anomalies. Robert McIntyre was the SNP’s first MP, elected in the closing stages of the Second World War. It was a custom of the House that MPs could take their seats only after being sponsored by two MPs who presented the newcomer to the Commons, a procedure whose authority depended on a Commons resolution of 23 February 1688. McIntyre refused to accept this cosy Westminster club flummery. The House voted on 17 April 1945 to reject his plea for a dispensation from this requirement. Why, Churchill spluttered, should we give away the ‘customs and traditions of our island which have lasted since 1688’? But what authority – logically at least – inhered in a resolution of the old English Parliament of 23 February 1688, a resolution predating the formation of the new British Parliament in 1707? On 18 April 1945 McIntyre went through the charade of sponsorship, albeit under duress.

‘Whatever the queen in Parliament enacts, unless in derogation from the justiciable limits set by the Articles of Union, is law.’ This pithy restatement of Diceyan orthodoxy to take account of the brute fact of Union was the work of Sir Neil MacCormick, a leading figure in the SNP until his death in 2009. MacCormick sat in the European Parliament, held the Regius Chair of Public Law at the University of Edinburgh, and, unsurprisingly, was a valued counsel in the higher thinking of the SNP. The SNP’s reluctance to make a clean break from the rest of the UK, its desire for a shared currency, monarchy and so-called ‘social union’, become less incomprehensible when set alongside MacCormick’s dispassionate analyses of ‘post-sovereignty’: the prevailing condition of interdependence across the modern world.

Neil MacCormick’s father, John, was the principal begetter of the SNP, from which he became estranged during the Second World War. At the queen’s accession MacCormick senior, still a leading nationalist but operating outside the ranks of the SNP, instigated the legal proceedings – MacCormick v. Lord Advocate – which for the first time drew the attention of the judiciary to the latent anomalies lurking in the British constitution. In what is also known as the royal numerals case, MacCormick complained, naturally enough, that the new queen, Elizabeth II, was the first Queen Elizabeth of the United Kingdom. Although the Court of Session in Edinburgh – the highest civil court within Scotland – rejected MacCormick’s suit, on the grounds that the style of the queen’s title was derived from her prerogative powers and therefore not justiciable, the lord president of the court, Lord Cooper, used the occasion to question the English understandings of 1707. He said he had ‘difficulty seeing why it should have been supposed that the new parliament of Great Britain must inherit all the peculiar characteristics of the English parliament but none of the Scottish parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the parliament of England’. He contended too that the Diceyan doctrine of parliamentary sovereignty was ‘a distinctively English principle which has no counterpart in Scottish constitutional law’.

Cooper’s intervention marked a major turning-point in constitutional interpretation – though only in Scotland. It gave birth to the widespread delusion that from the 14th-century Declaration of Arbroath Scots inherited a distinctive tradition of popular sovereignty, a historical nonsense that has become the new orthodoxy in Scottish political culture, espoused by Labour and Liberals as well as by the SNP. However, English politicians and jurists remained largely unmoved by Cooper’s words. That they have departed from the traditional Diceyan understanding of the constitution owes more to the demands of European integration and to a human rights agenda.

The​ Factortame cases – which concerned the operation of Spanish, but ostensibly British, fishing boats in UK waters – brought into focus the irreconcilability of EU law and British parliamentary sovereignty, including the doctrine of implied repeal. The House of Lords ruled in R. v. Secretary of State for Transport ex parte Factortame Ltd [I] (1990) that the 1988 Merchant Shipping Act, which introduced a licensing system to exclude Spanish-owned or controlled fishing vessels from being registered as UK boats, did not imply the repeal of the relevant portions of the European Communities Act of 1972, which incorporated the UK into the system of EU law. In the so-called metric martyr case, Thoburn v. Sunderland City Council (2003), the High Court ruled that there was indeed a hierarchy of statutes, and that constitutional statutes, such as the European Communities Act, enjoyed a greater degree of entrenchment than common or garden laws. No longer, it seems, is the Act of Union the humble equal of the Dentists Act of 1878.

The UK is, as Vernon Bogdanor and Anthony King have recently argued, halfway along the road to a written constitution. But there is still no special recognition of the Treaty of Union which created the British state; no guarantee respecting the status of the component nationalities of the current United Kingdom or – in the event of Scottish independence – the unbalanced rump ensemble of England, Wales and Northern Ireland. Yet Scotland’s divergence – and gradual alienation – from the core of the UK owed much to the ‘democratic deficit’ of the late 1980s, when the Scots, with only ten Tory MPs out of 72 after the 1987 general election, were made the guinea pigs of Thatcher’s poll tax, introduced in Scotland a year earlier than in England. There were no constitutional protections within the Union-state which might have prevented the imposition of the poll tax on an unwilling Scotland. Unsurprisingly, the SNP’s recent white paper, Scotland’s Future, has promised Scots a written constitution in the event of independence; it also promises to abolish, post-independence, the notorious bedroom tax.

Linda Colley’s new book, Acts of Union and Disunion (based on a Radio 4 series), identifies the lack of a written constitution to bind Britain’s multinational state as a major cause of our present predicament, and wonders whether ‘a new constitutional order might contribute to addressing some of the faultlines in these islands’.* I’m no fan of written constitutions or, to be more precise, of the consequences that often flow from them, such as the politicisation of the higher judiciary and a misplaced concentration on second-order issues of constitutional legitimacy and process at the expense of policy substance. Nevertheless, a potential answer to our current difficulties does lie conveniently to hand, and it’s one that would not involve a major departure from the core principles of parliamentary sovereignty.

Since the Parliament Act of 1911 first checked the powers of the House of Lords, politicians have struggled with the problem of finding an appropriate role for the upper chamber. For all the constitutional tinkering of the Blair years the House of Lords remains a problem shelved. The English regions are lukewarm at best about regional assemblies, not least as few taxpayers want to support an additional layer of costly legislators. However, were the House of Lords to be transformed – without any violence to the coherence of the British constitution – into a German-style Bundesrat, with a membership drawn from the governments of the nations and regions of the United Kingdom, the Parliament Acts of 1911 and 1949 repealed, and a supermajority threshold introduced, then the powers of what is effectively England’s House of Commons might at last be clipped by a reinvigorated second chamber. The overriding problem with any redrawing of the British constitution is the sheer lopsidedness of the United Kingdom: the English comprise about 85 per cent of the current UK population. But the North of England has much in common with Scotland: a similar set of post-industrial problems and a propensity to vote for the left. It’s by no means a panacea, but a new British Bundesrat suggests a modest corrective to the ‘democratic deficit’ which threatens to push a reluctant Scotland – anti-Tory, corporatist, social democratic, assertively nationalist and still unobtrusively unionist – out of a union which, three centuries after its passage, remains largely unacknowledged in our constitution.