The UK must find constitutional equilibrium to survive


By Mark McNaught
The Edinburgh accords were signed in October 2012, giving legal sanction to the Scottish referendum. The result is that both sides are bound by law to respect the will of the Scottish people and work to enact the result in good faith.
David Cameron promised that in the event of a ‘no’ vote, more powers would be devolved to Scotland, and additional powers to Wales and Northern Ireland. Since then, Westminster has refused to grant further taxing powers to Northern Ireland, and Wales is awaiting news of what further powers could be devolved to their parliament.

According to Cameron, no decision will be made until after the Scottish referendum. The parliaments of Wales and Northern Ireland are waiting with increasing impatience.

At the same time, UKIP were only 2 points behind the Tories in the local elections in England, and the Liberal Democrats were virtually wiped out. Cameron has upped the ante on the in/out euro referendum, promising a vote in the Commons to hold a referendum before 2015, which will fail, before even having attempted to secure the ‘fresh’ settlement with the EU he has no chance of achieving.

The Tories’ short-term fear of losing the next election could spell the end of the UK in its present form. It is conceivable that by 2020 Scotland will be independent and the rUK will have pulled Wales and Northern Ireland out of the EU against their will.

This could engender substantial acrimony and push their devolved parliaments to hold their own independence referenda, so that their relationship to the Continent is not dictated by English europhobia.

If the UK government continues to dither on granting additional powers to Wales and Northern Ireland and fails to specify to Scottish voters before the referendum what additional powers would be granted in the event of a ‘no’ vote, how can any UK government maintain legitimacy?

If Cameron is going to pursue ‘fresh’ settlements, he may want to begin at home. If the UK is to survive over the long term, it must make constitutional arrangements to decouple the domestic policies of the constituent countries, so that the smaller nations are not at the mercy of the unpredictable politics of southeast England. This must happen regardless of the result of the Scottish referendum.

For example, why should Wales, Scotland, and Northern Ireland be subject to the punitive welfare policy currently being enacted if they do not support it? Why shouldn’t Wales be able to formulate its own labour law and collective bargaining rights? Why should Northern Ireland be dragged into London’s neo-liberal economic policies if these do not reflect their social values?

If there is to be an in/out EU referendum, why should the Welsh, Northern Irish, and Scots (if they remain in the UK) not be able to remain in the EU if that is their popular will, even if England votes to leave?

The doctrine of Parliamentary supremacy has been discredited in practice, and should be definitively buried. Representatives from all parliaments should hold a constitutional convention to devise a permanent binding separation of powers between Westminster and the national Parliaments, which will be satisfactory to all parties well into the future. In order to maintain a proper constitutional balance, it will be necessary to create a separate English Parliament.

The Westminster parliament could be charged with defence, monetary policy, and other functions that are best served at the aggregate level. The UK member countries could collect their own taxes, make contributions to Westminster to deal with these aggregate functions, and be free to pursue their own domestic policy consistent with the values of their polities.

Simply put, if the UK is to survive, the member countries must have the authority to put the interests of their citizens at the heart of their politics, rather than the Tory political calamity of the moment.

Scotland voting ‘yes’ in 2014 may be what the UK needs to finally put it on a path towards greater constitutional equilibrium, so that a collective consensus supporting the UK can be maintained, thereby ensuring its legitimacy into the future. Creating an independent, vibrant, prosperous, and democratic Scotland will lead the way.

Mark McNaught is a member of the Constitutional Commission and an Associate Professor of US Civilisation at the University of Rennes 2 France. He also teaches US constitutional law at Sciences-Po Paris.