How Boris Johnson could avoid Britain’s impending constitutional crisis
I
At the beginning of the 21st century, the future of the United Kingdom seemed assured. But, after nearly two decades of the new century, a question mark hangs over it. The current borders of the United Kingdom date only from 1922. Brexit emphasises how contingent they are. Indeed, Brexit could threaten the Union both in Northern Ireland and in Scotland, both of which voted Remain in 2016.
The EU was, in the words of the EU Select Committee of the House of Lords, “in effect, part of the glue holding the United Kingdom together since 1997”. EU law ensured consistency of legal and regulatory standards in all parts of the United Kingdom, including devolved policy areas such as agricultural and fisheries. There was, therefore, a guaranteed UK-wide single market, part of the larger EU internal market. After Brexit, however, it will be for the British government, and not the EU, to uphold the UK single market.
But the British government’s interpretation of what that requires may well not be the same as that of the devolved bodies. The glue could become unstuck, both in Northern Ireland — which has, for the first time in its history, elected more nationalist than unionist MPs — and in Scotland.
II
In the Belfast (or Good Friday) Agreement of 1998, implemented in the Ireland Act, 1998, Northern Ireland was put into a unique position. Its continued membership of the United Kingdom was made conditional upon the continuing consent of a majority of its people. Provision was made for regular referendums to be held in the province to test whether that consent remained, whenever the Secretary of State of Northern Ireland believed that there might be a majority for joining with the Republic. Were a majority to vote for joining with the Republic, with a concurrent majority in the Republic also in favour, the British government placed itself under a duty to facilitate the transfer.
Northern Ireland is also in a unique position in the EU, since if it did decide to join with Ireland, the European Council has agreed that the entire territory of the united Ireland would be part of the EU. Northern Ireland, therefore, is the only part of the UK that could rejoin the European Union without needing to re-negotiate entry.
In May 2018, an opinion poll showed that only 21 per cent in the province, and a minority (46 per cent) of the Catholic population, favoured Irish unity. Part of the reason for this is that survey evidence indicates that since 1998 much of the nationalist community has come to see the power-sharing form of devolution provided for in the Belfast Agreement as its preferred option. But the Northern Ireland Assembly has not been sitting since January 2017, following a squabble between unionists and nationalists. And the Belfast Agreement, for all its virtues, institutionalises the community conflict by requiring all members of the Assembly to register as “Unionist”, “Nationalist” or “Other”. It appears, however, that around half the population of the province no longer identify as either unionist or nationalist. In the recent general election, the cross-community Alliance Party became the third largest party in the province, increasing its vote by nearly 9 per cent. Perhaps voters in Northern Ireland are coming to be less interested in the border issue, and more concerned with substantive policy matters common to the UK as a whole, such as the economy and public services.
But Boris Johnson’s Brexit deal could endanger the Union. It provides that Northern Ireland should leave the EU customs union together with the rest of the UK. But the province will remain within the EU internal market for at least four years after the end of the transition period. This means that, if regulations in the rest of Britain were to diverge from those of the EU — and Brexit would become somewhat pointless if they were to remain the same —then Northern Ireland would remain aligned with Ireland, an EU member state, rather than with the rest of the UK. There would be a regulatory barrier between Northern Ireland and the rest of the United Kingdom. Economically, Northern Ireland would then seem to be a part of the Republic. Why then should it not also become politically a part of the Republic?
However, the Taoiseach, Leo Varadkar, has wisely implied that Irish unification is not on the immediate agenda. Instead, the need is for closer cooperation between the two communities in Northern Ireland, which was “the philosophy underpinning the Good Friday Agreement”. If Northern Ireland is to remain part of the UK, it is vital that the Assembly be reconvened and be seen to be providing practical and effective government for both of the communities in the province.
III
Boris Johnson’s Brexit deal makes special provision for Northern Ireland, the only part of the UK with a land border with an EU member state. No such special provision is made for Scotland, which is being extruded from the European Union against the wishes of a majority of its voters. The Scottish government, moreover, has no statutory role in negotiations with the EU, nor in the repatriation of powers from Brussels which is a consequence of Brexit.
The Sewel convention, which was put into statute in section 2 of the Scotland Act 2016, provides that Westminster will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament. But, in the first Miller case in 2017, the Supreme Court unanimously took the view that, even though embodied in statute, the Sewel convention was not justiciable and not enforceable by the courts, declaring that “these matters are determined within the political world”.
Brexit exposes the conflict between the Westminster view of the sovereignty of the British Parliament and the Holyrood view of the sovereignty of the Scottish people.
From the viewpoint of the British government, devolution was a delegation of power from Westminster, and the Scottish Parliament remains subject to the continuing sovereignty of Parliament. The Scottish conception, by contrast, is that devolution was a response to the sovereign will of the Scottish people, as expressed in the referendum of 1997, a referendum confined to voters in Scotland. This principle of the sovereignty of the Scottish people had been affirmed by the Scottish Constitutional Convention in 1989, which had issued a Claim of Right, declaring: “We, gathered together as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of government suited to their needs.” The independence referendum in 2014 appeared to show that the British government accepted that the Scottish people were in fact sovereign over their future. For that, too, was confined to voters in Scotland.
The 2019 election unavoidably re-opens the Scottish Question, since the SNP won 48 of Scotland’s 59 seats, albeit on a minority (45 per cent) of the Scottish vote. Although the SNP won fewer seats than in 2015, when it won 56, the context is now quite different. Hardly anyone in 2015 suggested a second independence referendum. But by 2019, circumstances had changed because of the conflicting position on EU membership taken by Scottish and English voters in the 2016 referendum.
Some have suggested further devolution as a response to the Scottish Question. But Scotland already has all the powers that it needs to run its domestic affairs, including the power to vary the level of income tax paid in Scotland. The trouble is that, as is shown by poor health and education outcomes in Scotland, her domestic affairs are not being run very effectively. That is not a problem that can be cured by further devolution. Scots should be allowed to escape from interminable constitutional wrangling. Instead, the Scottish government should concentrate on the improvement of her public services. The danger of further devolution is that it would leave Scottish MPs at Westminster with too little to do and thus fuel the separatist cause.
In order to resolve the conflict between the sovereignty of Parliament and the sovereignty of the Scottish people, Westminster should specify in legislation the precise circumstances in which the British government would think it justifiable to proceed with legislation altering the devolution settlement or encroaching without consent on the powers of the devolved bodies. The government should be required to justify its decisions in this respect to Parliament in Westminster; and legislating without consent should become subject to sunset provisions – it should last only for a specific period of time, and be subject to specific renewal should a government wish to extend the period. This would end the unlimited discretion which Parliament now enjoys over the interpretation of the Sewel convention, and help to ensure the protection of Scottish interests during the Brexit process.
Such a reform could also help to weaken the Scottish case for independence, which is far less powerful than is often thought. Brexit will yield powers to Holyrood in areas repatriated from Brussels, such as agriculture and fisheries. Some of these powers are, it is true, being retained by Westminster; still, the bulk of them will return to Holyrood. But an independent Scotland which re-joined the EU would, of course, have to give these newly repatriated powers back to Brussels, something which would hardly please Scottish fishermen.
Scotland would also lose the benefit of the rebate negotiated by Margaret Thatcher at Fontainebleau in 1984. It would further be required to join the euro, which would mean reducing the budget deficit from 7 to 3 per cent — an operation which would make the austerity Chancellor, George Osborne, look like Santa Claus. Moreover, independence after Brexit would require a hard border between England and Scotland. It is a paradox that Scottish nationalists, who favour a soft border in Ireland, are prepared to contemplate a hard border with England. But perhaps these inconsistencies matter little when it comes to stoking grievances against the English. “It is not too difficult,” P.G.Wodehouse once wrote, “to tell the difference between a Scotsman with a grievance and a ray of sunshine.”
IV
In his poem “The Secret People”, GK Chesterton wrote: “Smile at us, pay us, pass us, but do not quite forget; for we are the people of England that never have spoken yet.” But it is difficult for the people of England to speak when England has no constitutional status or voice. For England, by far the largest part of the United Kingdom, is the anomaly in the devolution settlement, the only part of the United Kingdom not to enjoy a representative devolved government and legislature. But devolution in England is badly needed to resolve the imbalance between London and the rest of the country. The fundamental case for devolution is the stimulus it gives to local patriotism, which can lead to real improvements in public services. In a decentralised system of government, each unit strives to ensure that its performance is better than that of its competitors, and such competition is likely to raise public service standards. A centralised system, by contrast, institutionalises grumbling. If those who run the National Health Service declare that its standards are satisfactory, central government will be tempted to respond that in that case it does not need extra resources. Trumpeting success in a centralised service would be letting the side down. The emphasis is always on deficiencies. That cannot be good for morale or pride in performance.
An English parliament, situated perhaps in Wolverhampton or Newcastle, would hardly stimulate local patriotism, for it would be just as remote as the present British Parliament in Westminster. The latter, meanwhile, would be reduced to a mere debating society for foreign affairs and economics. And such an English parliament would lead to a seriously unbalanced quasi-federation. There is no successful federal system in the world in which one of the units represents over 80 per cent of the population. The nearest equivalent is Canada, where 39 per cent of the population live in Ontario. Federal systems in which the largest unit dominates tend to fall apart, as is shown by the history of the former Soviet Union, dominated by Russia; the former Czechoslovakia, dominated by the Czechs; and the former Yugoslavia, dominated by Serbia. Symmetrical federalism with an English parliament is, therefore, not a practical proposition.
Nor is regional devolution. In 2004, voters in the north-east, thought to be the region most sympathetic to devolution, rejected it by four to one in a referendum. It is doubtful if opinion has altered very much since then. In England, by contrast with many countries on the Continent and by contrast with federal states such as the United States and Canada, there is little regional feeling. If one asked someone in Bristol or in Canterbury which region they belonged to, they would probably respond with a blank stare. In England, the regions are ghosts.
Therefore, the only sensible path to devolution in England is to build on existing institutions such as local authorities. In 2014, George Osborne, the first Chancellor to represent a northern constituency since Denis Healey in the 1970s, inaugurated the Northern Powerhouse in Manchester, since extended. It now provides for devolution to 10 city regions, 8 of which are led by directly elected mayors. These city regions represent around 7 million people; and, if one includes the London mayoralty and the local authority mayors, around one-third of the population of England now live under mayoral regimes.
The powers of the various authorities differ from area to area, but in general the metro mayors are responsible for infrastructure issues crossing boundaries such as transport and strategic planning, while the combined authorities are responsible for local skills and employment. Greater Manchester has in addition powers to integrate health and social care, powers which could well be extended to the other regions.
The most important power enjoyed by the new mayors is not, however, on the statute book at all. It is the power to act as spokespersons for their areas, even over matters for which they have no statutory responsibility. With an electoral mandate behind them, metro-mayors can mobilise public opinion and speak for local electors, as the traditional council leaders could not. This provides a clear focus of accountability for voters, personalising local government and so helping to regenerate it. For one of the reasons why local government has been so little valued in Britain and found itself unable to resist centralisation is that there has been so sharp a separation between local and national political roles, with the local role being seen as distinctly subordinate. The metro-mayors — one of whom has just become Prime Minister — may well alter that perception.
The sharp separation of roles in Britain contrasts with politics on the Continent and in the United States, where success at local or provincial level has allowed politicians to gain executive experience and provides a springboard for national political leadership. In the United States, many presidents — such as Franklin Roosevelt, Carter, Clinton and George W. Bush — were state governors before reaching the White House. In Germany, every German Chancellor between Kiesinger in 1966 and Angela Merkel in 2006 had been the leader of a provincial government before moving to Bonn or Berlin. In France, Jacques Chirac was Mayor of Paris before reaching the Elysée, while Nicolas Sarkozy had been President of the General Council of Hauts de Seine in Paris before becoming President. But in Britain, before Boris Johnson, only John Major and Theresa May of postwar prime ministers had executive experience in local government. Boris Johnson has been the first politician since Joseph Chamberlain in the 19th century to use a mayoralty as a springboard for national leadership. His success may well be an augury for the future. The metro-mayors might provide an alternative route for political leaders by making the control of territory rather than backbench and ministerial experience the basis for political power.
V
In September 2018, Theresa May’s government promised to launch a “devolution framework” for England to provide “clarity – on what devolution means for different administrations so all authorities operate in a common framework”. That framework document has not yet appeared. As a result devolution in England and in the other parts of the United Kingdom remains on an ad hoc and unplanned basis, subject to the whims of rapidly changing ministerial incumbents. So we find ourselves, in the words of the late Lord Bingham, regarded by many as the greatest judge of his generation, “constitutionally speaking —– in a trackless desert without any map or compass”. After Brexit, the need for such a “map or compass” becomes even more compelling so as to yield clear ground rules for our revised territorial arrangements.
We need, therefore, as a report by the Bingham Centre for the Rule of Law pointed out in 2015, a “Charter of Union which would lay down the underlying principles of the UK’s territorial constitution and of devolution within it”. The Charter would provide a road-map for the workings of government and the territorial distribution of power appropriate to a multi-national state. It would lay down the rights and duties of Westminster and the devolved bodies, and, although drawn up with the consent of the devolved legislatures, it would establish a principled framework for the United Kingdom as a whole. It would be a Charter of Union, laying out what was needed to retain an economic and social union in the UK as well as a constitutional and political one. The Charter would be enacted by Westminster and could indeed prove a first step towards a codified constitution, although, obviously, such a constitution must, at the present time, appear a distant aspiration.
The accumulation of unresolved constitutional problems in Britain’s territorial constitution, aggravated as they are by Brexit, means that post-Brexit Britain is approaching a constitutional crossroads. To hold the United Kingdom together while transforming our over-centralised system of government will require all the resources of statesmanship of which Boris Johnson’s new government is capable.
