‘The process of leaving the European Union has illuminated the fault lines within the UK’s territorial constitution’. Discuss — Cambridge Law Exam (2021)
Introduction
The fault lines illuminated by Brexit stem from issues surrounding the existence and permanence of the devolved legislatures in Scotland, Wales and Northern Ireland in the UK constitution. There is the argument that devolved institutions should be the masters of or at least active participants in their own political destiny and the Parliament at Westminster’s (‘Westminster’ for short) handling of Brexit has contravened the spirit of devolution and the constitutional principle of respect for devolved autonomy. Yet this argument is difficult to reconcile with the continuing legislative sovereignty of Westminster and the UK constitution’s traditionally horizontal nature. This essay will argue that orthodox notions of Westminster’s legislative sovereignty and the courts’ narrow conception of its constitutional role in resolving disputes around the nature and scope of conventions have exacerbated these fault lines. Resolution can only come from a self-embracing account of sovereignty.
Respecting devolved autonomy
The first point of contention is whether the constitutional status of devolved legislatures is protected by the political dimension of the constitution, or whether there are also legal protections. This question came into stark relief during the passage of the Scotland Bill 2016. Up to that point, the constitutional status was principally political: the devolution of power was effected through ordinary legislation which preserved the sovereignty of Westminster. However, the political context in which power was devolved gave rise to political conventions protecting the autonomy of the devolved legislatures, most notably the Sewel Convention. In AXA the UKSC held that the Scottish Parliament, while a delegated legislature, had a special status due to its democratic credentials and was thus immune from judicial review on ordinary public law grounds. Commentators also queried whether the devolution legislation had achieved special legal status, at least contingently entrenched, on accounts of the constitutional importance of the legislation. The Scotland Act 2016 enshrined the Sewel Convention in statute, asserted the permanence of the Scottish institutions and introduced a referendum lock for the abolition of these institutions. The question then became whether these statutory provisions had legal force. These questions were considered in the Scottish Continuity Bill and Miller 1.
In the Scottish Continuity Bill case, the UKSC held that even though the Scottish Parliament is a ‘democratically elected legislature with a mandate to make laws for people in Scotland’, ‘the Scotland Act must be interpreted in the same way as any other statute’. This statement reflects the Court’s conception of the constitutional nature of devolution and informed their analysis of the key provisions. The UKSC held that, based on section 28, the Scottish Parliament lacked the legislative competence to enact section 17 of the Bill. Section 17 purported to limit Westminster’s power to legislate for Scotland insofar as it would make Westminster incapable of authorising UK ministers to make relevant secondary legislation without the consent of Scottish ministers. As McHargh argues, the court’s decision that section 17 was inconsistent with section 28(7) is difficult to grasp since the Court accepted that section 17 did not affect the sovereignty of Parliament: Westminster could repeal it, and that the Scottish Parliament could legislate after the event to amend or repeal it.
The courts could have relied on the constitutional provisions contained in the Scotland Act, namely the permanence of devolved institutions by s63A and the statutory recognition of the Sewel Convention in s28(8), to justify requiring Westminster to expressly repeal s17. Such an approach may have reduced — if it not eliminated — the fault lines that have ensued since it would have sent a clear signal to devolved legislatures that the Sewel Convention has legal protection. Instead, these provisions are only mentioned at the beginning of the judgment and thereafter ignored. This resembles the approach taken by the UKSC in Miller 1 where their lordships held that the Sewel convention did not create legally enforceable obligations, nor could the courts give rulings on its operation or scope. Further, according to the Court, the statutory recognition of the convention by s2 of the Scotland Act 2016 (inserting a new section 28(8) into the Scotland Act 1998) had not rendered it any more justiciable. By framing the issue this way, the Court articulated a deliberately narrow view of its constitutional role and drew a sharp distinction between legal and political issues. Ultimately, such an approach contributes to the fault lines within the UK’s territorial constitution as the Sewel Convention’s constitutional significance is undermined and the stated permanence of devolved institutions is impugned, despite the high hopes created in AXA.
Imposing manner and form limits
As the survey of the AXA, Miller 1 and Scottish Continuity Bill cases show, the courts have only recognised the unique constitutional status of the devolved institutions to a limited extent. The most significant issue, however, has yet to be determined. That is whether the courts will give effect to the referendum lock contained in the s63A of the Scotland Act. It is uncertain how the courts will approach this question. On the one hand, there is support in legislation and case law for the idea that Parliament can introduce manner and form constraints. Section 2 of EU Act 2011 states that a treaty amending the European Union Treaties is not to be ratified unless the legislation approving the amending treaty provides that it is not to enter into force until a referendum has been held.
In Jackson, Lord Steyn described the Diceyean doctrine of (absolute) parliamentary sovereignty as ‘out of place’ in a modern democratic constitution like the UK. Further, Lord Steyn and Lady Hale observed that if Westminster could change the conditions upon which legislation is enacted to make it easier in certain circumstances e.g. removing the requirement for House of Lord’s consent, it may be possible for Westminster to make it harder e.g. requiring a supermajority or prior consent of a devolved institution. As the House of Lords Constitution Committee observed in their report on the Scotland Bill 2016, while these statements did not form the binding aspect of the judgement, they suggest that in the light of ‘the Vow’, the Smith Commission and Brexit that demonstrate a trend towards greater devolved autonomy, it is theoretically possible that the courts would feel pressured to adopt an approach which accepts that Westminster is capable of introducing manner and form limits to contingently entrench legislation and enforce a provision like s 63A. Such a consequence would be normatively desirable for those who — like me — prioritise the high-order principles of democracy and respect for devolved autonomy over absolute and outmoded notions of Westminster’s sovereignty.
However, as noted above, the UKSC has tended to adopt a narrow view of its constitutional role when it comes to adjudicating upon devolution matters. Despite the suggestion by some senior judges that there may be certain fundamental constitutional features that transcend legislative abrogation, many of these statements have been made in dicta and the continuing theory of parliamentary sovereignty remains the apex of the UK constitutional order. As such, it is unlikely that devolved autonomy and permanence would be immune from abrogation by a future Parliament. This adherence to orthodoxy may be seen as a failure to uphold the democratic wishes of those who envision a different constitutional future. I argue a more successful approach would be for the Courts and Westminster to espouse Lord Denning’s declaration in Blackburn that ‘Freedom once given cannot be taken away’ and legal theory ought to ‘give way to practical politics’.
Conclusion
The process of leaving the EU has indeed illuminated the fault lines in the UK’s constitution, and the courts have a difficult duty to strike a balance between respect for devolved autonomy and subordination to Westminster. The Continuity Bill case showed the breadth of the legislative powers that devolved assemblies enjoy within the limits of their competence. However, Miller 1 and its wider political backdrop also demonstrate the constitutional vulnerability of devolved institutions which owe their existence and powers to ordinary statutes that are at the mercy of Westminster, which continues to wield absolute legal sovereignty.
