In the past week, the SNP has been trying to recapture the narrative, away from Sturgeon’s criminal investigation, to constitutional issues. Humza Yousaf has proposed that an independent Scotland adopts a ‘written constitution’:
Westminster has already been able to undermine the devolution settlement, override decisions made by an elected Scottish Parliament…In future, Westminster sovereignty could even allow the UK parliament to repeal devolution through nothing other than a simple majority vote.
Meanwhile, Angus Robertson has labelled the UK’s constitution ‘archaic’ and claimed that the lack of a written constitution is failing ‘to protect the key values’ held by Scots. He also claims that the UK’s constitutional arrangements are putting key Scottish values and fundamental rights at risk of erosion. This runs alongside the persistent theme that the UK Government is using Westminster’s sovereignty to undermine Holyrood without its consent.
Once again, the SNP show their contempt, disregard for, and gross ignorance of UK constitutional law. The UK constitution is an organic, living, evolving entity. It is based on precedent (what’s happened previously): the various statutes, conventions, judicial decisions and treaties which, taken together, govern how the UK is run. It is uncodified (not written down in one document), though it is based on some individual documents (such as Magna Carta (1215) and the Bill of Rights of 1689).
This uncodified nature allows it a great flexibility to incorporate the best of the past (precedent) and to adapt to new developments. This is the main reason that the UK has largely avoided the violent upheavals (such as revolutions) and civil unrest that has regularly beset the Continent and other countries in the world. It enabled the UK to evolve into the fully developed, stable democracy it is today, before the introduction of legislative devolution pushed the UK into an ongoing constitutional crisis, that the SNP willingly provokes.
Adopting a codified constitution would just further fracture the UK’s stability as a successful unitary nation, compounding the damage done by legislative devolution. UK constitutional law is clear on the issue of sovereignty, where it lies and where it is applied. The UK Government can draw up, and pass onto the statute book, legislation on any devolved matter if it is necessary for the good governance of the UK as a whole (such an act will be in force across the entire UK).
There are limits: ‘The Sewel Convention’ applies when the UK Parliament wants to legislate on a matter within the devolved competence of the Scottish Parliament, National Assembly for Wales [now the Welsh ‘parliament’] or Northern Ireland Assembly.’ Under the terms of the Convention, the UK Parliament (Westminster) will ‘not normally’ pass a bill on a devolved matter without the relevant devolved institution having passed a legislative consent motion.
The Convention highlights yet another dysfunctional aspect of the legislative devolution system set up by New Labour in the late 1990s, but it is not at the core of how Westminster’s legislative sovereignty works or the House of Commons’ alleged abuse thereof.
Whilst devolved legislatures can’t actually veto legislation from the UK Parliament, they can hold up its implementation for a substantial time, causing disruption and discord between the constituent parts of the UK:
Legislative consent is a fundamental part of the United Kingdom’s territorial constitutional arrangements. The self-denying ordinance of the UK Parliament that it will ‘not normally’ legislate with regard to devolved matters without the consent of the relevant devolved legislature is a non-legal constitutional constraint. (UK Parliament research briefings)
Modern aggressive nationalism (the SNP principally) tries to gain power by causing trouble with Westminster. It produces synthesised problems with proposed legislation in order simply to generate grievance and trouble. Nicola Sturgeon whilst First Minister, weaponised the Sewel Convention by conducting a campaign of conflict between Westminster and Holyrood that involved challenging as many pieces of UK legislation as possible. See, for example, the report by Michael Blackley, Sturgeon ‘dialling up division’ with refusal to approve UK laws.
The Sewel Convention is just a courtesy. Under UK constitutional law, the UK Parliament can legislate on any devolved matter at any time and doesn’t need the consent of the devolved legislatures to do so. That’s why it’s called a ‘convention’ – it’s a ‘gentlemen’s agreement’ that Westminster will seek to consult and work in full cooperation with the devolved administrations before drawing up UK-wide legislation, but it is not compulsory. (The Convention is not a part of the legislation that set up Stormont, but is usually applied when Westminster is considering making legislation on matters that are devolved to Stormont).
The decision of Parliament to include these legislative provisions in relation to Scotland and Wales had no legal effect on the relationship between the UK Parliament and their respective devolved institutions. The UK Supreme Court confirmed in R (Miller) v Secretary of State for Exiting the European Union that Parliament’s decision to put Lord Sewel’s words into statute did not convert the Convention into a judicially enforceable rule.
The Sewel Convention can, however, easily be manipulated by modern aggressive nationalism. This is the case with the SNP particularly, but not exclusively, as the stunt by the Welsh ‘parliament’, where anti-UK nationalists Plaid Cymru (PC), and the Labour Party recently voted against the UK Government’s, Retained EU Law Bill, which aims to scrap EU-era rules and regulations, claiming it ‘undermines devolution’. This is to the detriment of the effective administration of the UK.
It’s the anti-UK nationalists, principally, but not exclusively, the SNP, who have, through either knowingly ignoring, or ignorance of (or a mixture of both) UK constitutional law, abused legislative devolution, not the UK Government at Westminster.
UK constitutional law is completely clear on the issue of sovereignty: The House of Commons is the UK’s sovereign legislative parliament. Across the entire UK, the people (the electorate) hold ultimate political sovereignty. They authorise their representatives (MPs) to carry out a programme of policies that they approve of (laid out in the MPs’ manifesto) by voting for them in a general election. Under constitutional law, the House of Commons (HoC) holds ultimate legislative sovereignty on behalf of and authorised by the electorate (that is, the ability to turn the policies voted for by the electorate into law) and in a unitary country like the UK, therefore, the HoC, and not the devolved legislatures (Holyrood, the Welsh ‘parliament’ and Stormont) is the supreme sovereign legislative body in the UK. Holyrood, the Welsh ‘parliament’ and Stormont (or the London Assembly for that matter) are NOT sovereign bodies and the UK is a single (or unitary) country, not a ‘union of sovereign nations’.
It is also important to note that, in a unitary country such as the UK, as legislative sovereignty ultimately lies with the central political power, such a nation is a single country with constituent parts that pool their resources for the common good and not a ‘union of sovereign nations’ because, as previously stated, ultimate legislative sovereignty lies solely with the central political authority (the HoC in the UK’s case) and remains there, even after powers have been devolved to constituent parts of that country.
In a unitary nation, like the UK, ultimate legislative sovereignty lies with the central power, in our case the HoC. That central authority can devolve any amount of power it chooses to any number of regions of itself, but ultimate legislative sovereignty remains entirely with the central power, which can revoke, in part or full, those powers simply by repealing the Acts of Parliament that set up the devolved powers in the first place. It is essential to note that the act of devolving powers to a part of itself in no way confers or transfers sovereignty to that devolved region (as opposed to federalism, in which sovereignty is transferred to the state level of the union).
The principle of the ultimate legislative sovereignty of the HoC is confirmed even by the Holyrood website, which states:
Under this system of devolution, Scotland is still part of the United Kingdom and the UK Parliament in Westminster is sovereign (has legislative ultimate power).
This may surprise nationalists, who act as though Scotland is a separate country, but we live in a country called the United Kingdom of Great Britain and Northern Ireland. This country is a unitary, or single, nation, not a confederation of sovereign nation states as anti-UK nationalists, and even some of those that want to maintain the Union, assert.
Before the 1706–07 Acts of Union, England and Scotland were completely separate sovereign nations, although they had shared the same king since 1603. After 1707, both Scotland and England ceased to be independent sovereign nations and formed a single composite country, Great Britain, in which ultimate legislative sovereignty and the resources of the two countries were pooled for the mutual benefit of both.
The Scottish Parliament was abolished after a vote by its members, and the HoC became the national parliament of Great Britain in which national legislative sovereignty resided solely. Scotland was now one of four parts of the UK Union (along with England, Wales and Ireland (Northern Ireland after partition in 1921), not an independent sovereign nation. This process was similar to how many European countries evolved, such as Germany, Italy and France.
The HoC can decide to create or remove devolved areas at any time. It can delegate (devolve) power over any number of matters to any other part of the UK at any time. However, whilst power to decide policy on devolved matters to whatever degree within their devolved remit is transferred to the designated member of the Union, national sovereignty remains with the HoC and is not transferred. Holyrood, the Welsh ‘parliament’ and Stormont are not the sovereign national parliaments of their parts of the UK, they are sub-national devolved legislatures with responsibility over the matters that have been delegated to them, within their devolved remit. The Scotland Act, which was set up primarily by Scots for Scots, limits the powers of the Scottish Parliament.
It is no surprise that the constitution is a reserved matter, and so Holyrood, the SNP, the Welsh, and NI devolved legislatures as well as the nationalists in Wales and NI, have no business getting involved in it, irrespective of it being their reason for existing.
Added to this, the leader of the biggest party in the devolved legislatures, is the First Minister of that devolved member of the Union (a civil servant in the executive arm of the UK political executive), NOT the Prime Minister of an independent sovereign nation. They have the responsibility to legislate on, and the authority to speak on, purely the matters devolved to them, not reserved matters, which are for the consideration of the HoC.
The leader of the biggest party at the HoC remains the national Prime Minister of the UK, with responsibility over, and the authority to speak on, national UK matters (in fact, the HoC can consider and pass laws on ANY matter, including all those in the devolved remit of the local executives at any time, but, as mentioned above, due to the Sewel Convention, will endeavour not to get involved in devolved matters.
The fallacious anti-UK nationalist narrative, which is increasingly becoming accepted even by some that want to maintain the Union, that their part of their UK is a sovereign nation that’s in a loose confederation style constitutional arrangement with the rest of the UK, just isn’t supported by either history or constitutional law. It must be very firmly challenged and the real facts laid out at every given opportunity if the constitutional integrity of the UK is to be maintained. Complacency and apathy will just aid the spread of this fallacy, with the consequential effect of boosting anti-UK nationalism in its efforts to break up the UK.
Stephen Bailey is a pro-UK author who has written over 150 articles on the Constitution, especially as it concerns Scotland and the abolition of legislative devolution. His website is here.
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