CONCLUDING REMARKS: THE REFERENDUM AND THE PROCESS OF CONSTITUTIONAL CHANGE
All these processes highlight how, within an unwritten constitutional structure like that of the United Kingdom, a major change such as devolution for three territories within the state has had significant knock-on effects on the doctrines and practice of the constitution in many areas not envisaged at the time.
Sub-state units have used devolution to build on implicit constitutional space they already occupied. Furthermore, the heavily indigenous process of institutional design, particularly for Scotland and Northern Ireland, has led to radical models of devolution that now challenge traditional understandings even of the very sovereign power of the central Parliament. At the same time further changes flow from these developments; further devolution for Wales is one step, but we might anticipate others.63 I will conclude by reflecting on one change that devolution has brought that may have the most dramatic effect on the United Kingdom’s constitutional future – the use of referendums to effect constitutional change.The devolution settlements have brought into focus the issue of “constitutional amendment” in the United Kingdom. The main point it has illustrated is that the constitution is of course easily changed by mere act of Parliament, leading some to see parliamentary sovereignty as the only real constitutional rule within the United Kingdom polity. But in highlighting the ease with which it can be changed, devolution also brought with it a novel stage in the process: the referendum. It would be wrong to say that there is now a convention whereby referendums are needed to effect significant constitutional change, but it is the case that devolution has further consolidated the practice of using referendums for major constitutional issues. There are of course earlier examples of a referendum being used in the ratification of constitutional change, namely the referendum on continued membership of the EEC in 1975 and in the rejection of earlier attempts at devolution in 1979.
But 1997 and 1998 resulted in three referendums on devolution (plus one on the creation of a mayor and an assembly for London), each of which was successful. It is arguable whether there is now a convention that the powers of these devolved territories cannot be substantially reduced without a referendum. For example, a referendum is widely anticipated in advance of substantial revision of the Welsh devolution settlement.More formal than a convention has been the interpolation of the referendum mechanism into the constitutional structure of Northern Ireland. This has a long and not always happy history with that of 1973 being a particularly unfortunate exercise. But what that did was to create the mentality that the constitutional status of Northern Ireland could not be changed in terms of the reunification of Ireland without a “border poll.” This is provided for in section 1 of the Northern Ireland Act, coupled with a commitment by the United Kingdom Parliament to transfer sovereignty to the Irish Republic should a majority vote for it. Formal change still hangs on ordinary legislation, but it is ordinary legislation deriving political legitimacy from sub-state constituent power that introduces a new and potentially radical step into the United Kingdom’s constitutional amendment process.64
This use of referendums may have made a wider mark in terms of constitutional change within the United Kingdom. Certainly other changes have not been endorsed by a referendum, such as the Human Rights Act, nor is there talk of one for House of Lords reform. But in the area of EU integration things are less clear. There has been pressure from the opposition for a referendum in advance of ratification of the draft Reform Treaty, which the government has resisted. Also the use of referendums on devolution has influenced their use for proposed regional assemblies and has created a broader culture of popular participation in major areas of constitutional reform. This is a final reminder that devolution and the sub-state constitutions it brings with it has had an irreversible impact on the substance of constitutional change at the centre, and most likely, the very process by which such change is likely to be effected.
1 Government of Wales Act 2006.
2 Stephen Haseler, Austin Mitchell, and Ian Taylor, Federal Britain in Federal Europe? Enlightening the Debate on Good Governance (London: Federal Trust 2001). See also John Kendle, Federal Britain: A History (London: Routledge 1997).
3 Bruce Ackerman, We the People: Transformations (Cambridge: Harvard University Press 1998).
4 Shorter Oxford English Dictionary (Oxford: Oxford University Press 1993).
5 27 Hen VIII, c. 26. This is traditionally titled in England, the Laws in Wales Act 1535 and in Wales, the Act of Union 1536.
6 Union with Scotland Act 1706, 6 Anne, c. 11; and the Union with England Act 1707, APS XI, 406, c. 7.
7 Union with Ireland Act 1800.
8 MacCormick v Lord Advocate 1953 Session Cases 396 at 411 and see Faculty of Advocates, Response to the Consultation Paper by the Secretary of State for Constitutional Affairs and Lord Chancellor: Constitutional Reform: A Supreme Court for the United Kingdom (November 2003).
9 The case of Jackson v Attorney General [2005] United Kingdom House of Lords 56 hints at the continuum from Acts of Union to more modern interrogations of the absolute nature of Parliament’s supremacy. See below.
10 Duncan Tanner, Chris Williams, W. P. Griffith, Andrew Edwards, eds., Debating Nationhood and Governance in Britain, 1885–1939 (Manchester: Manchester University Press 2006).
11 For example, the Scottish judge Lord Hope of Craighead has noted that the legal systems of England and Scotland are “as distinct from each other as if they were two foreign countries.” R v Manchester Stipendiary Magistrate, ex parte Granada Television Ltd [2000] 2 Weekly Law Reports 1, 5.
12 Rodney Brazier Ministers of the Crown (Oxford: Oxford University Press 1997), 9.
13 Lindsay Paterson, Autonomy of Modern Scotland (Edinburgh: Edinburgh University Press 1994).
14 This observation was also made by J. D. B. Mitchell, Constitutional Law, 2d ed. (Edinburgh: Greens 1968), 209.
15 In the latter part of the twentieth century the Welsh language won legislative protection: the Welsh Language Act 1967 and the Welsh Language Act 1993.
16 Eventually an Anglo-Irish Treaty was concluded in 1922 whereby the Irish Free State was established in the South with the northern six counties becoming Northern Ireland and remaining part of the United Kingdom. The Free State declared itself a fully sovereign independent state by way of the Irish constitution of 1937 and became the Republic of Ireland in 1949.
17 Government of Ireland Act 1920, section 4 (1).
18 Northern Ireland (Temporary Provisions) Act 1972.
19 Tom M. Devine, The Scottish Nation, 1700–2000 (New York: Viking 1999), 574– 617; Kenneth O. Morgan, Rebirth of a Nation: A History of Modern Wales (Oxford: Oxford University Press 1982).
20 Only 52 percent voted for devolution on a 64 percent turnout, but the Scotland Act 1978 required that at least 40 percent of the total electorate should vote in favour.
21 A Claim of Right for Scotland (1988), 19. Its title was of course intended to echo the radical spirit of the pre-Union Scottish Parliament’s revolutionary Claim of Right of 1689.
22 A Claim of Right for Scotland, ibid.
23 Jean McFadden, “The Scottish Constitutional Convention” Public Law (1995): 215.
24 Scottish Constitutional Convention (Edinburgh: 1995).
25 Referendums (Scotland and Wales) Act 1997.
26 On the first question, “I agree that there should be a Scottish Parliament,” 74 percent voted yes; and on the second, “I agree that a Scottish Parliament should have tax-varying powers,” 63.5 percent voted yes.
27 Albert V. Dicey, An Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan 1924), 38. See also Blackstone: “what the parliament doth, no authority upon earth can undo.” William Blackstone, Commentaries on the Laws of England, Book 1, (1870 edition), 160. A judicial restatement of the doctrine can be found in Madzimabuto v Lardner-Burke [1969] 1 Appeal Cases 645 at 723A per Lord Reid, who confirmed that the Westminster Parliament may even, by way of legislation, do things that are “unconstitutional.” And see also British Railways Board v Pickin [1974] Appeal Cases 765 at 782, again per Lord Reid.
28 Scotland’s Parliament (Cm 3658, 1997), para. 4.2.
29 Thoburn v Sunderland City Council [2003] Queens Bench 151, para. 63.
30 The House of Lords Appellate Committee was replaced by the Supreme Court of the United Kingdom in 2009. Constitutional Reform Act 2005.
31 Jackson and others v. Attorney General [2005] United Kingdom House of Lords 56.
32 Jackson, para. 102 per Lord Steyn.
33 Jackson, para. 104.
34 Jackson, para. 102.
35 Jackson, para. 120 per Lord Hope.
36 R v Secretary of State for Transport, ex parte Factortame Ltd [1990] 2 Appeal Cases 85.
37 R v A [2001] 3 All England Reports 1.
38 Report of the Independent Commission on the Assembly’s Powers and Electoral Arrangements (Richard Commission Report), published on 31 March 2004. Available at http://www.richardcommission.gov.uk/content/template.asp?ID=/content/finalreport/index-e.asp.
39 Northern Ireland Act 1998, s.1 and schedule 1.
40 Plans that have been suspended until after the Scottish Parliament elections in May 2011.
41 As recommended by the Calman Commission report: “Serving Scotland Better: Scotland and the United Kingdom in the 21st Century: Final Report” (Commission on Scottish Devolution, June 2009) (http://www.constitutionalcommission.org/).
42 Scottish Commission for Human Rights Act 2006 (asp 16).
43 Scotland Act, section 30 and schedule 5.
44 The JMC was established under the Memorandum of Understanding, Cm 4806, July 2000.
45 Richard Rawlings, Concordats of the Constitution, Law Quarterly Review 116 (2000): 257.
46 Alan Trench, Central Government’s Responses to Devolution, Economic and Social Research Council Devolution Briefing No. 15, (London: Economic and Social Research Council 2005).
47 Charlie Jeffrey, Devolution: What Difference Has It Made? Interim Findings of the ESRC Devolution and Constitutional Change Programme, (London: Economic and Social Research Council 2004).
48 Freedom of Information Act 2000, c.36; Freedom of Information (Scotland) Act 2002 asp 13.
49 Press releases that have been issued by the JMC have been criticized for their “immense blandness.” Robert Hazell et al., The Constitution: Consolidation and Cautious Advance, Parliamentary Affairs 56 (2003): 157, 160. See also House of Lords Select Committee on the Constitution, Second Report on Devolution: Inter-Institutional Relations in the United Kingdom (HL 28, 2002–3), which calls for the increased use of formal mechanisms in intergovernmental relations and for greater openness.
50 Jonathan Bradbury and Neil McGarvey, “Devolution: Problems, Politics and Prospects,” Parliamentary Affairs 56 (2003): 219, 221.
51 Trench, Central Government’s Responses to Devolution.
52 Michael Keating, Policy Making and Policy Divergence in Scotland after Devolution, Economic and Social Research Council Devolution Briefings, Briefing No. 21 (London: Economic and Social Research Council 2005).
53 Scotland Act, section 86.
54 Scottish Parliament (Constituencies) Act 2004, c. 13.
55 The same issue arose in Canada at the time of debates over asymmetrical reform for Quebec in the late 1980s and early 1990s. Reg Whitaker, The Dog That Never Barked: Who Killed Asymmetrical Federalism? in Kenneth McRoberts and Patrick Monahan, eds., The Charlottetown Accord, the Referendum, and the Future of Canada (Toronto: Toronto University Press 1993), 107.
56 The anomaly was raised in the late 1970s by Tam Dalyell, MP for West Lothian.
57 Examples include the Health and Social Care (Community Health and Standards) Act 2003 c.43, and the Hunting Act 2004, c. 37.
58 Evidence of this can be found in a poll reported in the Sunday Telegraph, 26 November 2006.
59 Simon Jenkins, “There Is an Easy Answer to the West Lothian Question, ’ The Guardian, 17 January 2007.
60 House of Lords Act 1999, c. 34.
61 Named after Lord Sewel, who, speaking for the Government, suggested this process in parliamentary debate on the Scotland Bill. Hansard, H. L. Vol. 592, col. 791 (21 July, 1998).
62 The secessionist Scottish National Party has criticized the use of Sewel motions, arguing that the Scottish Parliament should in all cases pass legislation for Scotland. Scottish Parliament Official Report, vol. 1, no. 11, cc. 694–5, Angus Mackay, MSP See also, Barry Winetrobe, “Counter-Devolution? The Sewel Convention on Devolved Legislation at Westminster,” Scottish Law and Practice Quarterly 6 (2001): 286
63 See for example the Government White Paper that anticipates a raft of further constitutional reforms: The Governance of Britain: Constitutional Renewal, Cm 7342 (London, The Stationery Office 2007). http://www.justice.gov.uk/publications/governance-britain-consultation-analysis.htm. The Calman Report cited above is another that may be implemented in whole or in part by the current UK government.
64 A second UK-wide referendum (the first was on membership of the EC in 1975) will be held in May 2011 on the subject of electoral reform: Parliamentary Voting System and Constituencies Bill 2010–11.