An Unequal Union: The British State and Constitution in the 21st Century

Ian Howarth

Professor Richard Rose of the University of Strathclyde’s Centre for the Study of Public Policy argues that the ‘United Kingdom is best visualised as four separate identities, brought together by historical processes, which have maintained their Union through tradition and pragmatism.’ (cited in Reid Mackie, 1997) And that the nature of the state created as a result of the processes behind Britain’s state formation is a union without uniformity, a unitary, but multinational state.UK Flag

The United Kingdom is unique amongst modern states as almost all others have at their heart a written constitution that sets out the nature and the powers of their different institutions and the nature of the relationships between these institutions.  Within the United States the constitution establishes the exact powers of the executive, congress and judiciary.  It establishes a balance of power between these institutions and in doing so creates an institutionalised system of checks and balances between the branches of the federal, state and municipal government.  The United Kingdom does not have a written constitution and as such there is no clearly defined set of rules which govern the relationships of the different branches of the government, executive, parliament, the monarchy and the judiciary.  The British system of government does not contain within its self a system of institutionalised checks and balances as demonstrated in the American system and common in most modern liberal democracies.

This is not to say however that the United Kingdom does not have a constitution, it simply lacks a single document that legally binds its institutions in their relationships with one another.  Within the British system of government there are ‘…. numerous statutes concerning the composition and powers of particular institutions.  Thus, the powers of the monarchy are limited by the Bill of Rights of 1689 and the Act of Settlement of 1701; the powers of the House of Lords are defined by the Parliament Acts of 1911 and 1949; and the modern electoral system is regulated by the Representation of the People Acts of 1948 and 1949’ (Birch, 1998: 21) These different acts of parliament make up what is generally referred to as the unwritten constitution of Britain.  It sets out the various rights of the people, the monarchy, and the judiciary.  However, what is lacking within this constitutional framework is any legislative control over the powers of Parliament, or an overall territorial settlement that defines the powers and competences of the varying levels of government within the British state.

A central principle within the British system of government is the sovereignty of parliament, as such within the British system Parliament ‘possesses, at least in theory, unrivalled and unchallengeable legislative authority.  Parliament can make or unmake any law it wishes; its powers are not checked by a codified or written constitution; there are no rival UK legislatures which can challenge its authority; and its laws outrank all other forms of English and Scottish law.’ (Heywood, 1997:129)  The constitution of the United Kingdom is contained within Acts of Parliament, which means that the constitutional documents of the United Kingdom unlike those of the United States are able to be revoked by a simple majority in the House of Commons.  In the United States such constitutional power would require two thirds of both chambers of congress and of the state legislatures.

The sovereign power of parliament resides within the House of Commons, the House of Lords since the passing of the Parliament Acts has lost the power to block or throw out government legislation and now has a role as a revising chamber.  Although the theory of the British system of government rests in the sovereign power of Parliament, in reality sovereign power lies with the majority party of the House of Commons, and in the person of the Prime Minister and the Secretaries of State.  The absolute power of the Commons means that the leader of the largest party within that chamber, the prime minister and their appointed government; are able to propose and implement any legislation that can gain a majority in the Commons.

The nature of the political party system in Britain is very centralized with a strong leadership commanding at most times the support of its members and elected representatives, as such a majority party in the commons is a guarantee of a majority vote for government legislation.  It is the reality then that sovereign power lies with the Executive, which is drawn from the Commons, but when in possession of a majority in that chamber can act without constraints from either its own backbenchers or the opposition parties.

This situation following the victories of Margaret Thatcher in the 1980s and the three landslide electoral victories of the Labour Party in 1997, 2001 and 2005 attracted accusations of a presidential style of government within Downing Street that was dismissive of parliament.  In the early years of the Blair government ministers would routinely announce new government legislation to the press before going to the chamber, which provided validity to this accusation.  However since the 2010 election and the resulting Hung Parliament, the role and power of this institution has to a great extent be reinvigorated. The rulling Conservative-Liberal Coallition must be mindful at all times of the thoughts and concerns of its backbench members if it is to be certain of passing its legislative agenda.  Rebellions have become more common, and considering the nature of Coalition politics so has their significance.

The accusations of a presidential premiership that were levied at Margaret Thatcher and Tony Blair were not new and not entirely unfounded.  However the concept that Britain at times has been ruled by an elected dictatorship is a recent idea, with its origins in the 1980s.  The British prime minister is amongst the most powerful heads of government of any liberal democracy in the world.  They hold the power through the prerogatives of the crown to declare war, propose legislation, and through their party’s majority pass legislation.

The power that resides within Parliament and the executive has throughout the history of the United Kingdom led to ‘strains within the multinational UK state [which] have led to a recurrent devolution debate…. the growing gulf in the 1980’s and 1990’s between the Conservative-dominated Westminster Parliament and an increasingly Labour-dominated Scotland and Wales revived support for devolution.’ (Heywood, 1997: 132)  The position of the United Kingdom in the period described above left the peripheries of the country being governed by an unpopular and unrepresentative system.  The Conservative Party had no majority to rule in either Wales or Scotland and as such the imposition of what was seen as an English government was deeply resented and led to greater calls by nationalists for independence which throughout the 1990’s gained increasing support.

Critics of devolution argued that it would hasten the break-up of the United Kingdom by allowing the legitimatisation of nationalist claims to political autonomy.  However, the supporters argued that ‘devolution [was] the only solution to the territorial crisis of the UK state, in that it promises to restore legitimate government and to stem the tide of rising nationalism.’ (Heywood, 1997: 132) Initially this later view was borne out within the assemblies of Scotland and Wales, with Labour governments in both extending their majorities during the second batch of elections held in 2003 to the cost of nationalist parties. However, since 2005 in Scotland the SNP has seen growing electoral support to the point that during the 2011 Scottish Elections they won an outright majority following four years of minority SNP Government.  This historic electoral victory means that Scotland is now preparing for a referendum on independence in 2014.

However, despite the potential for a Yes vote in Scotland next year it is worth saying that support for independence remains at around 30% of the population and so it is unlikely to pass (UK Polling Report June 2013). This means that the United Kingdom will continue to operate at least for a short while under the current constitutional settlement.  Devolution has not altered the powerful position of the British Parliament and the Executive, the Scottish Parliament was established through an Act of Parliament, and is in theory beholden to the House of Commons for its authority. Parliament is capable of repealing an Act at any time, and could repeal any of the Acts establishing the devolved institutions, as demonstrated by the suspensions of the Northern Ireland Assembly.

In Northern Ireland the devolved assembly has been suspended twice by the Secretary of State for Northern Ireland.  This is due to the fact that the Act of Parliament establishing the Assembly at Stormont also maintained within it the power for the Secretary of State to suspend the Assembly if it became politically unsustainable due to the intransigence of its members or as in the final case the threat of the Democratic Unionist Party gaining a majority within the assembly and derailing the Good Friday peace process.  The suspension of the Northern Ireland Assembly meant a complete suspension of the entire political structure including elections and the powers of the Assembly Executive.

The powers of the British Parliament to bring the regions under direct control through the person of the Secretary of State for that region lie within the enacting legislation of the devolved assemblies, and is premised on the principle that no parliament holds the authority to bind future parliaments to its will.  Therefore Roses classic view of Britain as a centralised unitary state still holds true, to some extent.  However, a significant development within Roses thesis is the nature of how much less uniform this unitary system has become.  ‘Although the UK government insists that parliamentary sovereignty is unaffected and that devolution could be suspended at any time, the fact that the three assemblies were endorsed by referendum would make it politically very difficult for Westminster to recover its powers.’ (Heywood, Jones & Rhodes 2002: 211) This means that these institutions will probably become entrenched within the British System of government, much like the Bill of Rights and the Act of Settlement, adding to the evolving un-codified nature of the British constitution.

Roses claim that Britain is a Unitary State without Uniformity has grown starker in its meaning.  The power of the Scottish Parliament is far greater than that of the Welsh and Northern Ireland Assemblies, Scotland’s Parliament possesses tax raising powers and control over primary legislation such as Health, Education and Transport.  This is coupled with a distinct Scottish Judiciary and legal system.  Scotland has grown more independent yet within the confines of the United Kingdom, under the overall sovereignty of the Parliament at Westminster. This Parliament still holds control over Scotland’s Security, Defence, Foreign Policy and other areas of national strategic importance.

The Welsh Assembly on the other hand does not possess any tax-raising powers or control over primary legislation, leading to the criticism of some that the Welsh Assembly is nothing more than a glorified County Council. However, this is an unfair remark.  Wales does have control over environmental policy and over aspects of health and transport policy; the difference between Scottish devolution and Welsh devolution lies in the ability to pass primary legislation.  Wales is still beholden to London in its overall Health, Transport, and Education policies, but can make adjustments to these overall plans.  The Welsh Assembly is able to do this through the strategic use of its budget, shifting money from one sector of the Health system to another. An example of this can be seen in the Welsh provision of free prescriptions to all students, and the provision of NHS Dental and Optical care is more generous than within England.

This difference in the distribution of power within devolution has increased the lack of uniformity within the United Kingdom in the relationships of the peripheries with the centre. The aborted plans of the last Labour government to devolve power from London to the English regions would have furthered this pattern.  The system constructed by the constitutional reforms of the Blair government created a system of tiered autonomy within the unitary sovereignty of Parliament with the Executive at the centre.  The Scottish Parliament occupies the most extreme example of devolution, which is in its real world relationship with Westminster essentially federal.  The Welsh and Northern Ireland Assemblies occupy the second tier, with Northern Ireland at a slightly lower level than Wales but at least in theory occupying roughly the same scope of power in its region.  Finally the Greater London Assembly make up the lower tier of devolved government within the United Kingdom, with its powers focused largely on economic coordination and planning.

It is increasingly arguable that there is a fourth tier of government within the United Kingdom that exists above that of Parliament, the European Commission, Court and Parliament. These all have legislative and judicial powers within the United Kingdom that exist outside the remit of the British Parliament.  In the case of the European Court of Justice the decisions made by this body have jure-prudence over British law, and the European Court of Justice has on a number of occasions forced the British government to repeal or re-write legislation in order to bring it into line with the Courts rulings for example in the case of discrimination against homosexuals in the armed forces.  However the powers of European institutions within the United Kingdom like all other political or legal institutions are established within an Act of Parliament and as such in theory can be repealed by Parliament.

The argument that Richard Rose forwards that Britain is a unitary state yet without uniformity is in my view still borne out within the contemporary structure of the United Kingdom; the further statement that Britain is a multinational state is particularly strengthened by the creation of the Scottish parliament.  The de-facto independence of Scotland in most areas of legislation has created between Scotland and the rest of the United Kingdom a quasi-federal solution to the demands of the highly vocal Scottish National Party (SNP) for the complete severance of the relationship between Edinburgh and London.

The devolution settlements implemented by the Blair government further diversified and complicated the structure of the United Kingdom in a manner that has in my view disproportionably favoured the peripheral nations of Britain.  Scotland, Wales and Northern Ireland have all gained powerful local administrative structures that take account of their specific needs and provide their national identities with political legitimacy, whereas England was totally ignored by the process.

Devolution within England has been very limited, The Greater London Assembly is currently the only example, and was established as a remedy to ‘the lack of…. a planning authority for Greater London as a whole [which] made it difficult to make integrated decisions for the whole region.   New Labour set about to remedy this but in a novel way – by having an executive mayor elected directly by the whole area, overseen by a small council.  This ‘presidential’ system is completely different to the Assembly and council dominated systems that operate in Wales and Scotland…’ (Budge, Crewe, McKay & Newton, 2001: 169)  The powerful executive centred system operating in London was a far cry from the attempt at creating regional assemblies for England.

These assemblies would have prepared ‘…region-wide strategies to determine where developers can build new homes and businesses, and [would] decide how to hand out government grants for new social housing, giving them a crucial say in where it should be built.  They [would have funded] tourism programmes, museums and English Heritage sites, help determine how waste should be dealt with, advise the government and local quangos on transport, and have roles in promoting public health and tackling crime…’ (Parker; The Guardian: 2002)  The powers that were proposed for the English regions made them little more than beefed up County Councils.  Their focus reflected only the demands of business for wider economic planning, and development in the regions, and not the unique character and history of England and the English people, which Welsh and Scottish devolution provided.  It came as no surprise when the Coalition Government announced the abolition of the Regional Development agencies and an end to all plans for elected Regional Assemblies in 2010.

The attempt to devolve power to English regional assemblies could be viewed as an attempt by central government to fracture any attempts at the politicisation of English identity.  The current settlement that allows Scottish MP’s to vote on English and Welsh legislation, while Scottish legislation is beyond the remit of the rest of the Unions MP’s is a perversion of democratic representation. A more permanent solution to this situation will need to found, particularly if a reduced majority Labour government were to seek to govern England and Wales on the back of Scottish parliamentary votes on English and Welsh legislation, a reversal of the situation that prevailed in the 1980’s and 1990’s.  This was a situation that presented itself during the vote on Foundation Hospitals in the last Labour Parliament, but surprisingly it did not cause the national outcry you might expect, especially as a Scottish Prime Minister was forcing through legislation that would not affect his own constituents.

This so-called ‘West Lothian’ question put originally by Tam Dayell (MP 1962 – 2005) can only be remedied in my view by the establishment of a strong English Parliament with the same powers as its Scottish sister. This would mean the establishment of a federal system of government within the United Kingdom, which would provide a representative distribution of power within these islands.  The economic might of Britain lies in England, and yet the English are dispossessed of any political voice or institution that recognises its distinct national identity.  Governed by a unitary Parliament containing Welsh, Scottish and Northern Irish MP’s who have in the past and more recently been instrumental in the passing of government legislation that lacks majority support amongst English MP’s.

In conclusion therefore Roses classic model describing the relationships between the United Kingdom’s political structures is still relevant0, and if anything the effects of devolution have strengthened the validity of his view.  In the coming years the unitary British state shall be maintained, despite the introduction of new levels of autonomy within the regions and nations of Britain.  The pragmatic solutions of parliaments past present and future shall ensure the continuation of a multitude of political systems operating within the single overall doctrine of British Parliamentary sovereignty which during periods of strong majority party rule within the House of Commons will in reality mean the power of the land residing in Downing Street, as Enoch Powell once said ‘…power devolved is power retained.’ (cited in Hague & Harrop, 2001: 210)

Bibliography:

Budge, Ian, Crewe, Ivor, McKay, David & Newton, Ken (2001) ‘The New British Politics’ (2nd Ed.) Longman, Harlow, Essex Great Britain, pp169

Birch, Anthony H. (1998) ‘The British System of Government’ Routledge, London pp21

Hague, Rod, Harrop, Martin (2001) ‘Comparative Government and Politics; An Introduction’ (5th Ed.) Palgrave, Basingstoke, Hampshire, Great Britain, pp210

Heywood, Paul, Jones, Erik & Rhodes, Martin (2002) ‘Development in West European Politics 2’ Palgrave, Basingstoke, Hampshire, Great Britain, pp211

Heywood, Andrew (1997) ‘Politics’ Palgrave, London pp132

Parker, Simon, (May 9th 2002) The Guardian ‘Government Offers Devolution for English Regions’ http://society.guardian.co.uk/regionalgovernment/story/0,8150,712827,00.html

Reid Mackie, Claire (1997) ‘Perspectives on British Territorial Politics’ University of Strathclyde pp1

UK Polling Report, Scottish Independence Referendum Voting Intention http://ukpollingreport.co.uk/scottish-independence-referendum

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