Policy Papers


The Union and the Constitution

Colin Kidd |

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Executive Summary

  • The Scottish National Party's (SNP's) independence referendum raises the importance of the Anglo-Scottish Union underpinning the UK's multi-national state.
  • Traditionally, on both sides of the border, a consensus prevailed in constitutional law that parliament was supreme and untrammelled. However, within Scotland there has been a growing awareness of the neglected significance of the Union agreement of 1707 in the British constitution.
  • The double-layering of the British constitution is under-appreciated. The Union of 1707, a hasty measure devised to confront short-term problems, scarcely dented the well-established contours of the existing English constitution, despite the fact that the Union was supposedly constitutive of a new British state.
  • Devolution has brought into focus the incoherence at the heart of the constitution, one of whose most obvious current defects is popularly referred to as the West Lothian Question.
  • The British constitution is in a state of transition between an unwritten constitution - with a very wide measure of parliamentary discretion- and a more codified kind of constitution. The question of the Anglo-Scottish Union provides another critical wedge into this debate.
  • Thus the current squabble over the nature and timing of the Scottish referendum derives in some measure from two competing notions about the location of sovereignty. Many Scottish intellectuals and politicians - Labour and Liberal, as well as SNP - believe that Scotland has a tradition of popular sovereignty which can be traced back to the Declaration of Arbroath in 1320. The British constitution, by contrast, rests on the idea of the sovereignty of parliament.
  • Regardless of the outcome of the Scottish referendum, it seems likely that the British constitution will need to be reframed to take account of the fact that the UK is already a 'state of unions'. If Scotland remains in the Union then the British constitution will need to be clarified. Alternatively, even if Scotland withdraws from the Union, then the surviving state will be an odd ensemble of England, Wales and Northern Ireland whose underpinning principles of unity will be a succession of Acts of union (and disunion) between the sixteenth century and the present. Either scenario presents a pressing need for constitutional reframing.

Introduction

The SNP won an overall majority at the 2011 general election to the devolved Scottish Parliament, and has claimed a mandate to hold a referendum during its four-year term of office about Scotland's constitutional relationship with the rest of the United Kingdom. 2014 - the seven hundredth anniversary of the Battle of Bannockburn in 1314, when the medieval Scottish kingdom ensured its independence from England - seemed an auspicious date for such an event. The SNP leader and Scotland's First Minister, Alex Salmond, proposed two alternatives to the current form of devolved government, established by the Scotland Act 1998. These options were full independence for Scotland from the British state or - scarcely less drastic, though presented as a modest transition - full fiscal autonomy for Scotland under the umbrella of the British state's diplomatic and military protection, what is colloquially known as 'devo-max'. In January 2012 the UK Prime Minister, David Cameron, insisted that the proposed referendum was ultra vires of the Scottish Parliament's powers according to the terms of the Scotland Act. Nevertheless, Cameron graciously conceded that the UK government would allow a two option referendum (minus devo-max), and that referendum would have to take place in 2013, not 2014. Something of an impasse followed, with Salmond insisting that he would press on with an independence referendum in 2014. Nevertheless, campaigns are being formed to contest the referendum, with the Conservatives, Labour and Liberals seemingly committed to the defence of the Union; and the SNP seemingly committed to independence. However, things are not quite as straightforward as they appear at first sight. The main defenders of the Union in the UK-wide political parties are willing to contemplate enhanced devolution within the Union; and the SNP insist that, although they want to end the political Union of 1707 between Scotland and England, they wish to retain a 'social union', something like the Union of the Crowns of 1603, with, at the very least, a shared monarch, if not also a shared sterling currency area (operating at a distance from the troubles of the eurozone), and hinting at shared welfare standards and other forms of 'social' provision.

Although the Anglo-Scottish Union looms large at present in British politics, as a matter of contention between the Union's defenders and its nationalist opponents, it remains - as the curiously arrayed battlelines between quasi-nationalist unionists and social unionist nationalists would suggest - a somewhat mysterious entity. Linda Colley's influential work Britons served a timely reminder to English audiences during the latter stages of the campaign for Scottish devolution that the British state, properly speaking, dates only from the Union of 1707. Given this obvious fact - the Union of 1707, which created the British state, ought - logically enough - to be the foundation stone of the British constitution. As is well known, of course, Britain does not have a written constitution, or, more precisely, it does not possess a codified constitution that is written down in any single place. So just what is the status of the Anglo-Scottish Treaty of Union of 1707, which ostensibly underwrote the very existence of Britain, within the clutter of law, prerogative and convention which makes up the British constitution? In particular, what is the relationship between the Treaty of 1707 - the constitutive document of the British state and hence, arguably, the fundamental law from which it takes its being - and the doctrine of parliamentary sovereignty, the idea that the British parliament is unconstrained by any kind of fundamental law? Indeed, is the Union - which is now the matter of so much political contention - actually enshrined in the British constitution? Or is the British constitution to all intents and purposes what might be called 'Anglo-British' - an English constitution which long predates 1707 and scarcely acknowledges the fact of the Union? Notwithstanding the reality of an English-dominated polity, the Union perhaps exerts an invisible gravitational influence on the development of the Anglo-British constitution, producing such bizarre effects as the West Lothian Question.

The legacy of 1707

Much of the ambiguity which surrounds the Union stems from the circumstances in which Scotland and England formally united in 1707. Far from being a conscious exercise in state-building, the British state was an unwanted by-product of a political crisis. In 1700 the last surviving child of Princess Anne, the sister-in-law and heir of the ruling, childless monarch, William II of Scotland and III of England, died. In the ensuing succession crisis the English crown (and the dependent crown of Ireland) was entailed by the English Act of Settlement on the Protestant line of the Electress Sophia of Hanover. However, the Scots were upset at the dysfunctional operation of the Union of the Crowns, ever since James VI of Scotland's accession to the English throne in 1603. England and Scotland remained separate kingdoms, each with its own institutions and systems of government, but the monarch habitually resided in London, and favoured the interests of the larger country at the expense of the smaller. Not only had Scotland's foreign and economic policy been subordinated to the English national interest, but this state of affairs had been exposed all too vividly in the late 1690s when English commercial and strategic interests had frustrated Scotland's attempt to establish an overseas mercantile emporium and colony at Darien in central America. However, the need to cajole the Scots into accepting the Hanoverian succession gave the Scots an element of political leverage in London, not least as the alternative seemed to be a dangerous restoration - backed by French power - of the main branch of the Stuart line deposed in the Glorious Revolution of 1688-9.Preservation of the constitutional gains of 1688 and the continued exclusion of the Jacobites seemed to depend on finding a way to win over the Scots to the Hanoverian succession. Scottish recalcitrance had its ironic reward - of sorts - in the Union of 1707. Neither the English nor the Scots wanted the parliamentary incorporating Union of 1707 as such, but it seemed to be the line of least resistance. The Union's Second Article achieved its principal goal, conferring the united British kingdom on the Hanoverian dynasty , while its Fourth Article gave Scots something that that they craved, access to England's trade and empire. These pressing political and economic considerations were the principal motors of union; relatively little thought was given on the other hand to the constitutional machinery of the new British state. Indeed, the new, united parliament met without the need for a general election in England, and there was little sense that the Union was constitutive of a hybrid multi-national state. Rather, English politicians regarded the new state, somewhat cynically but not unreasonably, as the mere accession of a few Scottish members (45 MPs and 16 representative peers) to England's long-established institutions.

In so far as the Union did give rise to constitutional issues, these were for the first two centuries of its existence largely ecclesiastical. The Union was accompanied by separate measures guaranteeing the establishment and autonomy, respectively, of the Presbyterian Kirk and its Anglican counterpart. However, the Patronage Act of 1712 which imposed lay patronage on the Church of Scotland, whereby local landowners, instead of congregations, appointed ministers in parishes, seemed an offensive breach of these provisions. This gave rise to a long-running Scottish critique of the British constitution, and of parliamentary sovereignty in particular, as a usurpation by the state upon the privileges of the Scottish Kirk. The issue resulted in the withdrawal of around two-fifths of Scottish ministers and their congregations from the Kirk in the Disruption of 1843 to form the Free Church of Scotland. This schism was only resolved via the peculiar Church of Scotland Act 1921, a measure which paved the way for the reunion of the United Free Church with the Scottish establishment in 1929. The 1921 Act was, however, a most unusual piece of legislation, for it appeared to be a sort of concordat between state and the Kirk, a phenomenon unheard of in British constitutional practice.

Constitutional theory

The Union of 1707 occupies an anomalous position in British constitutional theory. The overwhelmingly dominant doctrine in British constitutional interpretation is that formulated by A.V. Dicey (1835-1922). Dicey held the view that parliament was supreme and unconfined, and that there was no fundamental law at the foundation of the British constitution. In other words, the British parliament is the supreme decision-making body in the realm, and nothing constrains it, not even the Union agreement itself. Indeed, Dicey was quite specific about the status of the Union, which was just an ordinary statute, as far as he was concerned, and enjoyed no special immunity from repeal and amendment by subsequent parliaments. The Act of Union had exactly the same status as the most humdrum piece of legislation: 'neither the Act of Union with Scotland, nor the Dentists Act, 1878 has more claim than the other to be considered a supreme law.' Diceyan orthodoxy long reigned supreme and unchallenged, as much in Scotland as south of the border. However, cracks in the edifice began to appear from 1953 onwards, with the curious case of MacCormick v Lord Advocate in Scotland's Court of Session. The case was brought by John MacCormick (1904-61), a prominent Scottish Nationalist who,from the mid-1940s, operated outside the SNP. MacCormick brought legal proceedings against the style of the new monarch Elizabeth II, on the grounds that she was the first Queen Elizabeth of the United Kingdom, though the second of England. Although the Court of Session rejected MacCormick's case, on the grounds that the Queen's style was derived from her prerogative powers and therefore not justiciable, the Lord President of the Court, Lord Cooper (1892-1955), an eminent legal historian and former Unionist (i.e. Conservative) politician, delivered a direct challenge to the prevailing Diceyan orthodoxy in his judgment:

The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish constitutional law....Considering that the Union legislation extinguished the parliaments of Scotland and England and replaced them by a new parliament, I have 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.

Cooper's remarks inspired a non-Diceyan reading of the British constitution, which enjoyed considerable influence in Scottish juridical circles. It raised the far from pedantic issue of whether the Union should be referred to as the Act of Union (for it was not simply an Act of the English Parliament) or as the Treaty of Union (an international agreement between sovereign powers, whose monarchs - Queen Anne of Scotland and Queen Anne of England - just happened to be the same person). Although the Union had been negotiated by Treaty, the Scottish jurist, Sir Thomas (T.B.) Smith, noted that the Treaty had immediately lost any standing in international law with the expiry of its two parties, Scotland and England, in 1707. The Union was, perhaps, best described as an ensemble of Acts of Union, passed by two sovereign parliaments, including the Acts for the security of the Churches of Scotland and England. Cooper's interrogation of the doctrine of unlimited parliamentary sovereignty resurfaced on the bench. In Gibson v Lord Advocate (1975), Lord Keith pondered the limits of parliament's competence within the Union : 'Like Lord Cooper, I prefer to reserve my opinion on what the position would be if the United Kingdom parliament passed an Act purporting to abolish the Court of Session or the Church of Scotland or to substitute English law for the whole body of Scots private law.' Indeed, John MacCormick's son, Professor Sir Neil MacCormick (1941-2009), Regius Professor of Public Law at Edinburgh, who was to become an SNP Member of the European Parliament, formulated a subtle revision of the standard formula of parliamentary sovereignty to take into account the status of the Union as a constitutive foundation of the British polity. In MacCormick's formulation the Union was accorded recognition as the basis - however skeletal - of a post-1707 British constitution: 'Whatever the Queen in Parliament enacts, unless in derogation from the justiciable limits set by the Articles of Union, is law'. The old unquestioned standards of Diceyan orthodoxy have been exposed to criticism from various quarters in recent decades, but none has been more sustained than the anti-Diceyan reading of the British Union-state and its constitution inaugurated by Cooper at Elizabeth II's accession.

The West Lothian Question

Few wrinkles in the constitution of Britain's multi-national state have caused as much irritation and anxiety as the West Lothian Question. Named after the long-standing anti-devolutionist Labour MP for West Lothian, Tam Dalyell, who first asked it during the devolution debates of the late-1970s, the West Lothian Question raises the anomalous position of Scottish MPs with regard to domestic English legislation in an asymmetrical, non-federalised constitution with devolved legislatures: why should Scottish MPs at Westminster, who cannot make decisions say, on health and education, for their own constituents, as these would be matters for devolved assemblies or parliaments, nonetheless have decision-making powers with regard to health and education matters for England? Or, to put it another way, as Dalyell did, it's a 'West Lothian-West Bromwich' issue: why should the MP for West Lothian have a legislative voice over domestic matters in West Bromwich but not in his own constituency of West Lothian? In reality, the West Lothian Question is really tantamount to the English Question. If, unlike the Scots, Welsh and Northern Irish, the English people have neither an English parliament of their own, nor devolved assemblies in the English regions, then the UK parliament functions both as a parliament for the whole multi-national state and for the English nation; but the MPs in that body enjoy the same powers and responsibilities whether they sit for an English seat or a constituency in one of the territories with a devolved legislature. How can the West Lothian Question be resolved?

Straightforward federalism does not provide a plausible answer: as 85% of the UK's population is based in England, any federal system in the UK would be vertiginously unbalanced. The Conservatives have, however, proposed various alternative solutions. In 2006 Kenneth Baker, the former Conservative minister, now Lord Baker, introduced a private members bill in the Lords with the effect of altering Commons procedure so that English MPs, alone, would be able to vote on English legislation. However, it was difficult to determine what exactly was exclusively English legislation, even within a single bill. As Labour's Lord Foulkes noted, such was the complexity of most UK legislation, with clauses applying sometimes to England alone, sometimes to England and Wales, sometimes to Great Britain (including Scotland), and sometimes to the whole of the United Kingdom (including Northern Ireland as well), that under Baker's scheme of excluding non-English MPs from voting on English measures, 'Scottish, Welsh and Northern Irish MPs would be in and out like some kind of parliamentary hokey-cokey'. Baker's solution to the West Lothian Question, Foulkes suggested, was 'completely unworkable'. In 2007 Sir Malcolm Rifkind, a leading Scottish Conservative MP representing a London seat, came up with another solution, whereby English-only legislation would be sent at Second Reading to an English Grand Committee, composed according to the proportional strengths of the parties in England alone. The House of Commons as a whole would retain the power to overturn decisions of the English Grand Committee, but by convention would refrain from doing so. Rifkind thought he had found a panacea which did not infringe the voting powers of non-English MPs. All MPs would remain theoretically equal. A further refinement of Rifkind's answer was developed on behalf of the Conservatives by Kenneth Clarke's Democracy Taskforce. Clarke's group formulated a procedure in which exclusively English bills would be handled by English MPs, only, at the Committee and Report stages of legislation. Another pragmatic solution, which has been implemented in a piecemeal fashion so far - to reduce the numbers of Welsh, Scottish and Northern Irish MPs at Westminster - fails to address the constitutional principle involved. The question remains unresolved, though it will now be formally investigated by the Mckay Commission which the government set up in January 2012. Nevertheless, some commentators still believe that the West Lothian Question is a constitutional anomaly best swept under the carpet, all of the proposed solutions being potentially more troublesome than the problem they are devised to remedy. The Scottish Conservative politician, Sir Michael Forsyth, once claimed that the West Lothian Question was the 'Bermuda triangle' of the British constitution. There is an element of truth in this allusion; however, such is the anomalous position of the Union as a whole, that the West Lothian Question brings into focus the broader problem of superimposing an asymmetrical, multi-territorial polity upon the historic constitution of the English nation-state.

Parliamentary sovereignty and popular sovereignty

The growing acceptance in Scotland of the ideas first revived by Lord Cooper means that politicians, jurists and commentators from England and Scotland are finding it difficult to capture the shifting registers and shades of meaning deployed in constitutional idioms on the other side of the border. In particular, the English political classes seem oblivious of a Scottish constitutional tradition - or at least the claim to a distinctive Scottish tradition - which diverges significantly from the dominant Anglo-British understanding of parliamentary sovereignty. Is the British constitution simply the English constitution writ larger, or do Scottish constitutional principles lurk at the margins of a multi-national constitutional order, rarely invoked perhaps but a resource on which Scots might draw at moments of crisis? As the Union was founded upon a Treaty between two sovereign states, so, many Scots contend, there was no compelling reason why the new state should be a mere continuation of England and of England's constitution. In practice, when the two kingdoms of Scotland and England united in 1707 the English political elite which manned the institutions of the new, united state silently adopted the constitutional principles of the larger partner. Thereafter the constitution of Great Britain operated on the basis of the principles of 1688, the doctrine of parliamentary sovereignty enshrined in the Glorious Revolution. It is still unclear what the Scottish understanding of sovereignty was at the time of the Union of 1707, and how far and in what ways it departed from English conceptions of sovereignty. Nonetheless, a distinguished lineage of Scottish jurists, politicians and historians has made the point that the idea of popular sovereignty can be found in Scottish political thought from the Declaration of Arbroath in 1320. A consensus has emerged within the Scots intelligentsia that since 1320 the country's indigenous constitutional tradition has been one of popular, rather than parliamentary, sovereignty. In other words, before 1707, sovereignty resided in the people - and it has never ceased to do so, notwithstanding the assumptions of English Diceyan orthodoxy and the unfortunate fact that popular sovereignty was submerged and largely latent for a long period after 1707 until its modern resuscitation and authoritative restatement by Lord Cooper in the 1950s.

Very occasionally, the subtle theoretical distinction between popular and parliamentary sovereignty surfaces in everyday politics. Behind the aggressive posturing of Cameron and Salmond over the nature and timing of the Scottish referendum lay a clash of substance - of conflicting constitutional principles. When Salmond invoked the right of the Scottish people to decide on the date and the character of a referendum, he was not only challenging the authority of Westminster or invoking a general right to self-determination, he was also espousing the popular sovereignty principles of 1320. Popular sovereignty is not simply a nationalist shibboleth. There are plenty of unionist politicians in Scotland - Labour and Liberal - who subscribe to the idea of Scottish popular sovereignty. Indeed, the idea of popular sovereignty also underpinned the Claim of Right for Scotland in 1989. This document, which was signed by all of Scotland's sitting Labour and Liberal MPs (with the exception of the maverick Labour MP Tam Dalyell) and many of the leaders of Scottish civil society, declared 'the sovereign right of the Scottish people to determine the form of government best suited to their needs'. The popular sovereignty principles of the Claim of Right provided a platform of legitimacy for the deliberations of the Lib-Lab Constitutional Convention which met during the Thatcher-Major era without a formal constitutional mandate. Such invocations of popular sovereignty were far from mere empty exercises in constitutional theorising, for eventually the Constitutional Convention's blueprint for Scottish home rule was adopted in large part by the New Labour government in 1997 as the basis of the current devolution settlement.

Conclusion

Before the 1950s Scottish jurists appear to have accepted the supremacy of parliament in law, except in so far as it concerned the standing of the Church of Scotland. However, since MacCormick v Lord Advocate a distinctive Scottish perspective on the British constitution has emerged - and one not confined, by any means, to nationalists. Scottish commentators have begun to probe the anomalous standing of the Union as well as the curious nonsequiturs and illogicalities which have long passed for wisdom in Anglo-British constitutional discourse. Careful attention to the Union - the forgotten black hole at the centre of the British constitution - serves to direct attention to inconsistencies in British constitutional thought. The terminology used to describe the British state has also undergone a similar process of redescription. Formerly, the United Kingdom was described as a mixed-unitary state, that is a unitary state centred on a single executive and parliament, with some territorial variations in Scottish law and administration, which were nevertheless politically inconsequential. Then, the United Kingdom was parsed as a 'union-state', which the political theorists Stein Rokkan and Derek Unwin, distinguished from a 'unitary state'. Within a union-state there were asymmetries and territorial variations in government which reflected the historic nationhood of the component parts of the union. More recently, James Mitchell has redescribed the complex, post-1997 arrangements for devolved government between the core of the United Kingdom and, respectively, the three non-English peripheries of the state, Scotland, Wales and Northern Ireland, as 'a state of unions.' It is not only devolution which has complicated the British constitution, so, too, has its entanglement in the European Union, while the Human Rights Act of 1998 has given effect in domestic law to the European Convention on Human Rights. The British constitution still rests on a kind of modified Diceyan theory of parliamentary supremacy, but devolution, the nationalist challenge, and the rise of an indigenous tradition of Scottish constitutional theorising have contributed to the destabilising of the old norms of Anglo-British constitutional interpretation. If Scotland remains in the Union - even on the basis of quasi-independence, what is colloquially known as devo-max - then it is imperative that the British constitution is redrawn to take account of this major development. Alternatively, even if an independent Scotland withdraws entirely from the Union, then the surviving United Kingdom state will be an odd ensemble of England, Wales and Northern Ireland, whose underpinning principles of unity will be a succession of Acts of union (and disunion) between the sixteenth century and the present. Either scenario presents a pressing need for constitutional clarification and reframing.


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