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15th March 2017
The set out of a textbook on the ‘British Constitution’ used to be straightforward.
(And yes, the British do have a constitution, it just is not codified. There is a descriptive answer to the question: how is Britain constituted?)
After the various chapters on the executive, legislature, judiciary, local government, nationalised industries, the police, and so on, there would perhaps be a short chapter on Scotland and Northern Ireland.
Wales would have an index entry which said ‘for Wales, see Scotland and Northern Ireland‘.
In other words: the three other component states of the United Kingdom were not taken seriously in constitutional terms. They were, at least for many in England, an afterthought.
This did not stop English politicians invoking ‘British’ as it suited them. English conservative politicians were fond in particular of calling for a ‘British Bill of Rights’ without a second thought as to the word ‘British’ (or indeed to the word ‘rights’).
This was always misconceived. Even in the times of old textbooks, the constitution of the United Kingdom was not just that of a greater England, notwithstanding the unifying constitutional doctrines of the powers of the Crown and the sovereignty of parliament. Scotland, for example, has its own legal system and jurisidiction. As does Northern Ireland.
(There is no such thing as ‘British law’. Some laws cover all the jurisdictions of the United Kingdom, but ultimately there are the laws of England and Wales, of Scotland, and of Northern Ireland. The United Kingdom has always been a form of federation.)
The effect of modern devolution has made the old textbook approach redundant compeletely.
Chapters on Scotland, on Northern Ireland, and even on Wales, need to be towards the start of any constitutional textbook, and not towards the end.
The fact there was never a ‘British Bill of Rights’ (despite ten years of Tory trying) was in large part because it was impossible to repeal the Human Rights Act and enact a replacement in the face of opposition of the devolved powers. (And because in Northern Ireland, the enforceabilty of the ECHR was written into the Good Friday Agreement.)
A fogey may contend that the sovereignty of parliament still prevails, and that the Westminster parliament may legislate as it wishes. But that is constitutional theory and not practice. Such an approach now would not only be arrogant but (as with the aborted ‘British Bill of Rights’) also futile.
Brexit takes place in the constitutional context of modern devolution. This means that there will be checks and balances in effect even if not in neat constitutional principle. I have set out over at the Financial Times how the Scottish First Minister has crafted a check and balance out of constitutional thin air: and it has had areal effect in causing a postponement of the Article 50 announcement which was supposed to have been made yesterday.
A constitution regulates what any government can get away with.
In this way, whether the cause of the disappointment is the legislature, the judiciary, or the devolved administrations, the noise of a ‘disappointed’ minister is the sound of a working constitution.
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