Written constitutions have often been viewed as the bridle for unchecked political majoritarianism, as a restraint on government, and hence as a limiting device rather than a form of democratic political expression. Breaking with that tradition, this article sets out a democratic case for a written constitution and contrasts it with the rights-based and clarity-based cases. It then proceeds to show why the case against written constitutions—which are broadly located in a conservative critique, an anti-rationalist critique and an anti-judicialization critique—are misguided. Nevertheless, a democratic case for a written constitution necessarily raises challenging questions about how the constitution will be enacted, and how rigidly entrenched it should be. Answers to these questions are presented in Parts III and IV of the article. In the former, it is argued for a constituent assembly consisting of party and direct citizen representation. In the latter, defence of a model of entrenchment is discussed that permits amendment through a simple majoritarian parliamentary procedure in conjunction with a referendum, and, most controversially, a provision requiring a new constitutional convention about once in a generation. This is the type of democratic constitution, in the author’s view, that accommodates the need for a liberal egalitarian constitutional order that takes both rights and democracy seriously.
Chapter
15. The Democratic Case for a Written Constitution
Jeff King
Chapter
10. Devolution in Scotland
Aileen McHarg
Scotland’s devolved Parliament and Government were established in 1999 under the Scotland Act 1998. The current devolved arrangements build upon earlier institutional arrangements for the distinctive governance of Scotland, elements of which date back to the Union of 1707. By creating both a distinct legislature and separate institutions of political representation for Scotland, the 1999 reforms were nevertheless of profound constitutional significance. This chapter traces the development of devolved government in Scotland, arguing that the history of Scottish devolution is best understood as a response to nationalist sentiment: the assertion of the right of the people of Scotland to self-governance and self-determination. The historical trajectory has been one of increasing autonomy and constitutional recognition, and this pattern has continued since 1999 (culminating in an—unsuccessful—referendum in 2014 on the question whether Scotland should become wholly independent of the United Kingdom). However, despite the extensive powers enjoyed by, and the political importance of, the Scottish Parliament and Government, the status of devolution within the United Kingdom constitution is ambiguous and contested. The chapter also explores the constitutional status of devolution across two dimensions: the juridical—i.e. how the powers of the Scottish Parliament and Government are understood and interpreted by the courts; and the political—how the devolved Scottish institutions relate to their counterparts at UK level. The chapter ends by exploring how the tensions between Scotland’s powerful political claims for constitutional recognition, yet weak legal protection, have played out in relation to Brexit, and may play out in future in a Scottish political context still dominated by the independence question.
Chapter
11. The Welsh Way/Y Ffordd Gymreig
Richard Rawlings
Welsh constitutional development in recent times is characterized by a convoluted and ongoing set of legislative transformations and by the emergence of a distinct policy approach not only for the sub-state polity itself but also under the banner of a ‘new Union’ for the United Kingdom as a whole. Examination of the design and dynamics of the Wales Act 2017 serves to illuminate the difficulties and rewards of the territorial constitutional journey, especially in terms of central government conservatism in the face of principled argument and of the scope afforded for home-grown democratic renewal. In terms of the extended Brexit process, where competing conceptions of the UK territorial constitution are brought to the fore, the Welsh Labour Government is seen combatting potentials for centralization under the rubric of a ‘UK internal market’, deal-making in the name of mutual benefit, and championing a new brand of shared governance in the UK. Today, the workings of the justice system in Wales are being examined on their own for the first time in two centuries by an independent commission established by the Welsh Government. With a new stage in the Welsh constitutional journey in prospect, a series of foundational questions is raised. This chapter reviews the key elements of the arrangements made for devolving legislative and executive power to Scotland, Wales, and Northern Ireland, explaining how these arrangements have developed over time and are still doing so. Particular attention is paid to the implications of the result of the independence referendum in Scotland in September 2014, not just for Scotland but also for England. Consideration is given to how mechanisms for making devolution work more effectively might be devised and to what the effects might be on devolution if the UK’s membership of the EU or its commitment to the European Convention on Human Rights are seriously called into question.
Chapter
14. Federalism
John McEldowney
Federalism, to date, has proved unattractive to the United Kingdom. The United Kingdom is commonly described as a unitary state, whereby governmental power is primarily exercised through a sovereign Parliament at Westminster. The UK may be distinguished from Federal countries, notably the United States or Germany. In federal systems, sovereign power is shared between the federal government and the states. However, the description of the United Kingdom as a unitary state is an oversimplification as there are many instances of devolved, shared and autonomous powers that do not easily fit under a centralized view of the state. These ‘quasi-federal’ elements of the constitution arise through the UK Parliament delegating to regional and local communities a variety of powers and responsibilities through elected local and municipal authorities as well as devolved ‘deals’. Since 1989, powers have been distributed to the four nations of the United Kingdom: England, Scotland, Wales and Northern Ireland through extensive, and increasing, devolved powers (devolution) including a variety of tax-raising powers. There is also a London Assembly with devolved powers. The future of the UK after Brexit is uncertain and there are deep divisions of opinion. England and Wales voted for Brexit while London, Northern Ireland and Scotland voted to remain within the EU. Different constitutional configurations were suggested for the four nations, during the nineteenth century, including federalism, Irish home rule and independence as well as strengthening local government. No exact definition of federalism emerged from the different variations supported at one time or another during this period. Consequently supporters of federalism have struggled to have a single configuration to make their case. Overall federalism was rejected as inconsistent with the orthodoxy of a unitary state formed from an incorporating union centred around a sovereign Parliament. Has the extent of substantial devolved and delegated powers reached a tipping point that places a form of divisible federalism as a way of addressing current concerns and controversies including Brexit? Any formal adoption of federalism would alter the role of the UK Supreme Court as well as future relations with the EU after Brexit. Federalism might provide a mechanism for a changing unitary state to address 21st-century challenges amidst a perceptible shift to a ‘quasi-federal’ state with devolved governments and many shared or delegated powers.
Chapter
3. The Nature of the British Constitution
Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter outlines the characteristics of the UK constitution, which is not a traditional written constitution and, thus, is defined as an ‘unwritten’ constitution. It is not hierarchically superior to all other law in the country, which means that Acts of Parliament cannot be compared with it by judges and be declared as unconstitutional and invalid. Neither can the UK constitution be enforced against the legislature as a result, nor is it entrenched and protected, because it can always be changed by Act of Parliament. However, it can be legally enforced by the mechanism of judicial review against the executive, meaning that the executive may legally act only within its legal power. The chapter also considers the sources that make up the UK constitution and proposed constitutional reforms.
Chapter
5. The Separation of Powers
Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. The separation of powers is a theory or a doctrine that describes how a state organizes the distribution of power and function between its different branches. It is often used as an umbrella term to denote the extent to which the three ‘powers’ in, or branches of, the state are fused or divided—that is, the legislative, the executive, and the judicial powers. This chapter begins by sketching the history of the separation of powers in the UK. It then discusses the purpose of the separation of powers; the similarities and differences between different theories of the separation of powers; the impact of recent constitutional reform on the operation of the separation of powers in the UK; how courts have interpreted the separation of powers; and the relevance of the separation of powers today, including in the context of the balance of power between the executive and Parliament as regards the UK’s decision to exit the European Union.
Chapter
23. Conclusion
This chapter addresses the question of whether it is legally possible to entrench legislation in a way that safeguards it from repeal by the traditional ‘simple majority in Commons and Lords plus Royal Assent’ formula; and, if so, under what political circumstances it might legitimately be employed. It argues that the Blair government’s commitment to establishing a pluralist political culture is head and shoulders above any of their twentieth-century predecessors. This is most evident in its devolution legislation as well as in its embrace of the European Convention on Human Rights and Fundamental Freedoms and the provisions of the Amsterdam Treaty. The same observation may be made about the Blair government’s promotion of the Constitutional Reform Act 2005. Yet these initiatives, desirable though they may be, can hardly be seen as engineering a constituent reformation of the political system.
