A British Bundesrat?

Colin Kidd on how to balance ‘England’s House of Commons’

Whatever the outcome of the independence referendum in Scotland this September, it will be followed by an extensive inquest into the workings of the British constitution. In some quarters inquiries have already started. The Political and Constitutional Reform Select Committee of the House of Commons issued a report in March last year titled Do We Need a Constitutional Convention for the UK? The Liberal Democrats’ Home Rule and Community Rule Commission has advocated ‘home rule all round’ in a new federal union. A similar call has come from David Melding, the Conservative deputy presiding officer of the Welsh Assembly, in The Reformed Union: The UK as a Federation, published last year; while Conservatives at Westminster, including Kenneth Baker, Malcolm Rifkind and members of the so-called Democracy Taskforce set up by the Tories in opposition and headed by Ken Clarke, have over the past decade proposed various means of ironing out post-devolutionary wrinkles in the British political system. So too has the McKay Commission (2012-13), chaired by a former clerk of the House of Commons. Meanwhile there have been major investigations in Scotland (the Calman Commission of 2007-8) and Wales – the Richard Commission (2002-4), the Holtham Commission (2007-10) and the Silk Commission (2011-14) – into the broader operation of devolution and the funding mechanisms that support it.

Anxiety has focused not only on relations between Westminster and the constituent nations of the United Kingdom, but also on the appropriate remits of devolved and local government. For devolution, it transpires, does not always entail subsidiarity. The Labour Party in Scotland launched its own Devolution Commission, whose interim report in the spring of 2013 plausibly invoked the cause of local government against the centralising tendencies of Scotland’s SNP administration. By the same token, the councils of Orkney, Shetland and the Western Isles last year formed an alliance to consider the implications of constitutional change for the remotest parts of Scotland. The diktat of an uncomprehending Edinburgh three hundred miles away can seem just as distant and threatening as rule from London.

The unintended implication of this raft of commissions, inquiries and initiatives is to reinforce the doubts raised by nationalists of one sort or another about our constitutional arrangements. Is the United Kingdom – as the SNP alleges – a failed state? Alex Salmond’s unavowed southern cousins – Ukip’s English base and the English nationalist wing of the Tory Party – take a similar tack: is the British political system sustainable in its current form, with devolution for all and sundry except the English nation itself, the exploited milch-cow of the Union?

There is a deeper, more enduring irony here. Notwithstanding the current commotion about the prospects for enhanced devolution, federalism and an ill-defined devo-max, the constitution we have remains that of a Greater England. Strangely enough, the Treaty of Union which is constitutive of the British state enjoys no special constitutional standing. Our constitutional experts don’t seem to be much good at parsing what – it should be clear after four decades of debate about the Scottish Question – is manifestly a partnership founded on an international treaty. Yet from England’s enduring solipsism derive many of the constitutional problems which beset the United Kingdom. Everybody knows the canard that the UK has no constitution, because it’s not all written down in one place like the American constitution. Understandably enough, given the jibes the subject attracts, jurists and political scientists have over the years fixated on the question of what makes the British constitution a constitution. Rarely, if ever, have they confronted the less obvious question of what makes the British constitution British.

When did the English state become British? And what at that point became of the English constitution? In what ways was it transformed by the Union of 1707 which created a new British state? Such questions are rarely answered in the literature of British constitutional interpretation. It’s not that the Union is singled out deliberately for disregard but rather, that the impenetrable arcana and demanding idioms of British constitutional scholarship have allowed an instinctive, unreflective and arrogant anglocentricity to obscure the real nature of the constitution. The Union negotiated and ratified in 1706-7, which, one might suppose, gives our constitution being, lies – unnoticed – in its innermost recesses.

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[*] Profile, 192 pp., £8.99, January, 978 1 78125 185 0.