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The United Kingdom faces twin constitutional crises. The existence of the Union itself is under stronger challenge than ever before, and many of the conventions which have underpinned the constitutional stability of the United Kingdom have been eroded or overthrown.
Challenges to the Union
In Northern Ireland, demographic and social change has gradually eroded the unionist majority of members elected both to the devolved Assembly at Stormont and to Westminster. The reality today is that the future of the Union in Northern Ireland rests on the continuing consent of sufficient numbers of unaligned and moderate nationalist voters.
In Scotland, the independence referendum of 2014 produced a decisive majority against separation, but by a much narrower margin than expected. Just a year later saw the SNP tsunami at the 2015 general election.
Welsh nationalism, historically centred on language and culture, has in recent years taken on a sharper political edge, with Cardiff Bay keen to claim the same powers as Holyrood. And English nationalism has manifested itself as a growing assertion of English identity and deepening indifference about whether the Union survives.
Convention, tradition, precedent
Historically, the United Kingdom has relied heavily upon strong institutions and on convention, tradition and precedent to temper the power of governments. An independent and impartial civil service helps ministers from making mistakes under pressure. Independent courts constrain governments, however big their majority in Parliament, from arbitrary action and ignoring the need for due process.
But the UK’s constitutional conventions are under growing strain. Covid revealed starkly that in many areas of government activity, ministers at Westminster now exercise powers in effect as the government of England rather than the UK as a whole. The pandemic also saw the executive repeatedly use secondary legislation to impose restrictions without prior parliamentary debate or a vote. This was the most recent example of a trend under successive governments to weaken parliamentary and judicial scrutiny and to accrue greater power to the executive.
Governments have increasingly sought to achieve their policy objectives by using secondary legislation, which unlike an Act of Parliament can be struck down by the courts and is much more likely to lead to legal challenge. Furthermore, the combination of a reliable Commons majority and automatic timetabling tempted Labour and then Conservative governments to introduce poorly drafted legislation, large chunks of which were never debated in the Commons at all.
Alongside these strains have come growing tensions in the relationship between the political and professional arms of the executive and a risk that the complementary, but distinct roles of politician and official become blurred.
Those who advocate a new written constitution as the panacea cannot explain how that would be entrenched, given that such a document could be repealed by a new Act of Parliament. Instead, a series of reforms to the working of Parliament, the Civil Service and to devolution could restore greater balance and stability to our constitution.
Firstly, the House of Commons should exercise greater control over its own timetable. This would make it harder for any government to squeeze out important amendments without debate. Thorough pre-legislative scrutiny makes for better legislation and for its smoother passage into law. This should be written into the Standing Orders of the House of Commons as an obligatory procedure for all government legislation.
Parliamentary select committees, with a culture of working across party lines, could be given greater responsibilities. And some mechanism needs to be found to manage situations where a government has a majority of seats in the UK overall, but not of English constituencies. Otherwise, such a situation could be vigorously exploited by English nationalists to the detriment of public support for the Union.
A new Parliament Act could provide for an upper house to be chosen using a different electoral system and timetable from the House of Commons—necessary to prevent it from being just an echo chamber of the Commons. A new Civil Service Act would establish a statutory framework for the governance and accountability of the professional Civil Service. The law should explicitly protect the right of a civil servant to refuse to follow an instruction from a minister which is contra the law or the Civil Service code, without fear of retribution.
Devolution in England
Today, the UK offers the benefits of an economic, monetary and fiscal union; a social and transfer union; a defence and security union; and a union of values at a moment in history when the rule of law, human rights and democratic institutions are under sustained challenge. To overcome the strains that now threaten the unity of the UK will require a cultural shift in UK politics.
If we are to institutionalise habits of partnership and mutual trust, we need to have a system in which every senior civil servant should have had experience of working with one of the devolved administrations. Similarly, officials from Wales, Scotland and Northern Ireland should spend time working within the UK government to understand that perspective better.
A system of governance in England that was less centralised and sought opportunities for devolution would deliver better outcomes in terms of economic regeneration, but also reduce the sense of alienation that exists in too many places and stimulate civic pride. Institutionalising devolution throughout the UK would make devolution to Scotland, Wales and Northern Ireland seem part of a broader pattern of decentralised, collaborative government in which relationships and dialogues take place.
If we allow the erosion of constitutional conventions and unnecessary friction between institutions to continue, we shall see a yet further alienation of voters from the democratic process and even more harm to our international reputation for constitutional stability and respecting the rule of law.