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Scottish Devolution: The Answer to the Long Standing Question of Constitutions

Scottish Devolution: The Answer to the Long Standing Question of Constitutions

Monday 15 October 2012 – a significant day for the United Kingdom constitution? This day saw the signing of a document called the Edinburgh Agreement. Signed by the Prime Minister David Cameron and the Scottish First Minister Alex Salmond, this agreement paves the way for a referendum on Scottish independence, expected to go to the polls in autumn 2014.

The significance of this referendum is one of monumental scale as it may now answer the question that has split many philosophers over the years: does the United Kingdom have a constitution?

Constitutions, simply put, are a set of rules that define how an organisation or state is made up and operates. There are different types of constitutions, the two main examples being written or unwritten. A written constitution (or ‘Big C’) is exactly as the name suggests: a written set of rules. Taking the United States Constitution, for example, the rules set out how the government is to be structured, what powers the judiciary should have and lists rights that all American citizens should have (such as the right to bear arms). The key part of a written constitution is that it is difficult to amend. The US Constitution has parts that require a two-thirds majority from both the Senate and the House of Representatives before an amendment can be considered. When a document contains this type of safeguard it is said to be entrenched. A written constitution is therefore seen as a higher form of law, one that is above all other laws and, more importantly, above the government.

Many of the rules that government follow are not actually written down in legislation, they are more like traditions, or conventions.

The United Kingdom does not have a document labelled in this manner. When a new government comes in, they have the power to repeal legislation put in by the previous administration without having to convince other parties to agree first. Every law has the same status as every other law that is in force as there is no higher form of law. Based on this, there is certainly a good argument to say that the United Kingdom has a constitution: it has a set of rules and these rules are in written form. The problem arises where these rules can easily be changed so it does not follow the template of a true written constitution. Many of the rules that government follow are not actually written down in legislation, they are more like traditions, or conventions. This type of administration is more commonly known as an unwritten constitution (or ‘Small C’). For example, any new legislation requires the Royal Assent of the Monarch to be brought into effect. This is simply a tradition as the Monarch will not refuse Royal Assent – the last time Royal Assent was refused was in 1707 by Queen Anne, but this was at the request of the Government. There is also no legislation creating the role of Prime Minister – this, along with the Cabinet, is a product of tradition, created in the eighteenth century to advise the Monarch when making significant policy decisions.

The United Kingdom, in contrast with the United States, has the ability to change any law, at any time. The reasoning behind this is that the United Kingdom Parliament is supreme, meaning that the Parliament, as a body, is the higher power. Parliament can make, amend and repeal any law that it wishes. No parliament can bind another, so provisions cannot be written into legislation to prevent it from being changed or removed. Legislation cannot prevent any future legislation from doing anything. If this was how all of this country’s laws operated, it would be easy to say that there is not a written constitution in the United Kingdom.

The system set up in the United Kingdom provides for a flexible approach. Legislation can be created or amended relatively quickly and easily if there is a requirement due to changing society. Written constitutions such as the United States do not have the same luxury. Should the American administration decide to impose greater restrictions on the sale of firearms, the Government would be required to go through a rigorous procedure, and no doubt much criticism, in order to remove what is seen to be a fundamental right of American citizens – the right to bear arms. In this light, the flexible approach makes a lot of sense.

This was a union intended to last forever, for the benefit of both nations.

There are some exceptions, though, within the United Kingdom’s history, such as the Act of Union. Many regarded the Act of Union 1707 to be a written constitution for the United Kingdom. The Act was created in order to unite England and Scotland together as Great Britain and was written in a way in which it was not intended to be broken. Existing legislation that was inconsistent with the terms of the Act were declared void, currency became the same standard and value and taxes were raised in Scotland to be in line with English rates. This was a union intended to last forever, for the benefit of both nations.

If the present day Government believed the Act to be ever-lasting, or part of a written constitution, there would have been a very short, simple debate on the subject of Scottish devolution. The very short answer would be ‘No, because the Act of Union says so’. As it happens, no such statement was ever made. There was however, a big argument over whether a referendum could, should or ever would be allowed to happen. There has been no mention that it is barred by a constitution, just that it would be bad for both English and Scottish economies to even consider separating. As it happens, the Prime Minister has now sanctioned the referendum, yet there have been no significant changes to say that the time is now right to consider a vote, compared to when it was first suggested.

There are a number of issues that Scotland must consider carefully before deciding to break away from the United Kingdom, particularly negotiating its own membership within the European Union and also what connections and what kind of relationship Scotland intends to keep with the United Kingdom.

The Act of Union, along with the Parliament Act, the European Communities Act and the Human Rights Act, were thought to be a higher form of law, possibly ‘entrenched’. The Edinburgh Agreement certainly proves that this is not the case. These Acts, along with all other legislation, can be repealed at any time by Parliament. However, it seems that the aforementioned Acts would be sent to a referendum if there was to be wholesale changes for political purposes only. In confirming the position of what was thought to be a higher form of law, the Edinburgh Agreement will create a number of other questions; hopefully they won’t go unanswered for quite as long.

Christopher Crawley is a 2nd year LLB student at University of Central Lancashire. He has had previous experience working for the Ministry of Justice, and is a convert from a career in engineering to law, starting in 2009.

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