UNITED KINGDOM DEVOLUTION IN HISTORICAL PERSPECTIVE

The starting point for any study of United Kingdom devolution should certainly not be 1998. Instead, the roots of territorially differentiated government go back to the end of the nineteenth century and are possibly to be found, if the story is to be told in full, in the way in which the United Kingdom was formed.

Union

The United Kingdom has an unwritten constitution, which leads some to ask whether it has a constitution at all. But of course constitutional lawyers have long been comfortable with the idea that the United Kingdom constitution, while not codified, does fit the classical definition of a “set of fundamental principles according to which a State is constituted and governed.”⁴ And in fact, even the idea that it is unwritten or uncodified is perhaps not as clear-cut as it may at first seem. It is widely accepted that the principle of legal supremacy in the United Kingdom, since it is not embodied in a foundational document, is instead captured in the principle of parliamentary sovereignty. However, at least within the Scottish legal system, the Acts of Union of 1707 have from time to time been treated as a rival source of constitutional supremacy, an issue we will return to in a moment.

First, it is helpful to recall that, in historical terms, the key characteristic of the United Kingdom constitution is perhaps not so much its unwritten status as its “union” persona. Although not federal, the United Kingdom was founded with some recognition of the national differences of which it was composed, and at least in the case of Scotland there was a constitutional commitment to continue to recognize these differences in the constitutional functioning of the state.

Although these different unions brought with them distinctive points of constitutional distinction, the one with possibly the most enduring constitutional significance, and therefore the one I will focus on, is the Anglo-Scottish union. The feature that is particularly significant here is the retention of an independent legal system within Scotland. This institutional setting has led to a particular understanding of the constitutional status of the union within the Scottish legal system. From time to time it has been suggested that the very authority of the United Kingdom Parliament derives from the Acts of Union of 1707.⁸ This argument is largely now of only historical interest, given that it is extremely unlikely that a Scottish court would seek to strike down an act of the United Kingdom Parliament by invoking these acts. However, the survival of this very possibility has left an important chink of light in the seemingly impenetrable wall of parliamentary sovereignty, and this may in time help provide the philosophical underpinnings for a newer tradition that is prepared to question Parliament’s absolute supremacy in light of more recent constitutional changes involving not only devolution but also membership in the EU and the Human Rights Act 1998, documents that may incrementally be forming part of a new proto-written constitution.⁹ In other words, the union origins of the United Kingdom have left a historical and constitutional legacy that may shape how the constitutional significance of the devolution settlements come in time to be perceived.

The origins of the devolution settlements also find some provenance in the gradual development of administrative devolution from the late nineteenth century onwards.¹⁰ Taking Scotland as our principal case study, although not enjoying legislative autonomy after 1707, other important public institutions did survive through the explicit protection accorded in the union legislation. This included the legal system based on the civilian tradition,¹¹ but also the particular system of local government, which differed in important ways from that in England, thus enabling the distinctive micro-management of institutions such as schools in each country. In civic terms, Scotland retained a separate established church and its own ancient universities. The latter helped the Enlightenment to flourish in the eighteenth and nineteenth centuries. And from this civic and legal context towards the end of the nineteenth century we find the establishment of the governmental apparatus that would in time lead to legislative devolution; the office of Secretary of State for Scotland was founded in 1885, which was followed by the creation of the Scottish Office in 1928.¹²

There are different views as to the significance of this development, but Paterson¹³ argues that Scotland through “administrative independence” enjoyed a level of autonomy in this period similar in many ways to that enjoyed by other small European nations, which, although technically independent, have had to negotiate the political reality of autonomy in relation to major neighbouring powers.¹⁴ What is not in doubt is that through the Scottish Office, although this department was clearly constrained by the need to comply with central United Kingdom government policy, some autonomy was available for distinctive spending priorities to be pursued. This not only allowed discrete civil and administrative patterns to continue to develop, it created a civil service infrastructure within the Scottish Office that was easily adapted to run the new devolved administration after 1998.

Similar developments occurred in Wales. After the completion of the Anglo-Welsh union in 1536 a distinctive Welsh identity survived in cultural terms, characterized most prominently by the continued flourishing of the Welsh language and by a rebirth of Welsh nationalism since the 1960s.¹⁵ It was not until recently, however, that Welsh distinctiveness was reflected in administrative arrangements, but as with Scotland, an important step on the road to devolution was taken with the creation of the Welsh office and the post of secretary of state for Wales in 1964. This was again within the context of the central British government of which the secretary of state was a member and to which he remained answerable, but as with Scotland it paved the way in terms of institutional infrastructure for a fairly smooth transition to devolution in 1998.

Although the relationship between Great Britain and Ireland was formalized in constitutional terms by the Act of Union 1800, a movement for home rule persisted from the establishment of a society of United Irishmen in 1791 that sought an independent Irish state. The movement for Home Rule continued throughout the nineteenth century and seemed to be reaching a successful conclusion until interrupted by the First World War. An armed insurrection in Dublin in 1916 proved to be a turning point in modern Irish history. With growing support for the nationalist movement Sinn Fein, this organization issued a unilateral Declaration of Independence in 1918 resulting in a war with the British that was not peacefully concluded until 1921.

In 1920 in an effort to end the war, the Government of Ireland Act was passed. By this measure, Ireland was partitioned, with six counties of the province of Ulster to be administered separately from the rest of Ireland as part of a provisional arrangement.¹⁶ Northern Ireland, while remaining part of the United Kingdom, was governed separately through a system of devolution by the parliament at Stormont from 1920 until 1972.

Subsequent attempts to reintroduce devolution in the 1970s and to create models of British-Irish co-operation in the 1980s were generally unsuccessful, meeting with opposition from the nationalist and unionist populations respectively in an environment made worse by the proliferation of paramilitary violence. However, the Northern Ireland office retained a level of administrative discretion in many areas of life that make it comparable to the Scottish and Welsh cases. It was not until 1998 that an end to paramilitary violence by the main protagonists was secured and an innovative model of devolution embracing elements of British-Irish shared rule was introduced by way of the Belfast ( “Good Friday”) Agreement of 1998 and the subsequent Northern Ireland Act 1998. But again, as with the other territories that were now set to be devolved, the administrative infrastructure in the form of an experienced territorial civil service was on hand in Northern Ireland to give effect to the new institutional arrangements.

Therefore, we can see that 1998 for all three territories was clearly not year zero. The devolved arrangements that emerged, and the differences among them, have their roots in very different historical trajectories, all of which are the product of separate and often over-lapping relationships with the central state.

This offers a broader lesson for the study of constitutionalism in general. No constitution, even a written one, can be studied simply by reference to formal legal texts or to case law interpreting these texts. Instead we must also be alive to lower-level constitutional activity and to the interface between informal and formal processes of change that can alter constitutional culture and attitudes in incremental, but ultimately fundamental, ways over time. In all three cases within the United Kingdom it is clear that a culture of autonomy was in place that might help explain the relative smoothness of the transition to devolution and the way in which devolution was to a large extent shaped at the sub-state level.

The Organic Emergence of Devolution

Perhaps the most significant cultural shift that has informed the emergence of United Kingdom devolution has been the rise in the developed world since the 1950s of sub-state nationalism affecting federal (Canada, Belgium) and non-federal (the United Kingdom and Spain) states, a process in which the United Kingdom has found itself in the vanguard.¹⁹ This provided the political impetus for bottom-up pressure to secure devolution in Scotland and Wales. The impact on Northern Ireland was clearly more troubled. But in all three cases this political nationalism was able to present constitutional aspirations that already had an institutional base, in the form of administrative devolution, upon which to draw. In other words, these sub-state territories, particularly Scotland and Northern Ireland, have shown from the 1990s onwards that they are prepared to occupy the constitutional ground that the constitutional culture of union and decentralization has opened for them. It also shows that actors in these territories have been able to influence the range of discretion and the degree of constitutional space open to them and therefore that the dynamic of devolution has been in fact multi-directional and not simply a top-down process whereby limited powers have been ceded under the strong grip of central authority.

One consequence of the emergence of sub-state nationalism, particularly as a political force since the 1970s, is that sub-state political actors, to an extent that varies from territory to territory, were influential in shaping the model of devolution for the territory in question, models then endorsed by the sub-state peoples, each acting alone as self-standing demoi, in ratifying referendums in 1997 (Scotland and Wales) and 1998 (Northern Ireland).

In Wales the influence of a civil campaign for devolution, while certainly active, was generally weak, and this is reflected in the top-down and relatively weak model of devolution eventually enacted in the Government of Wales Act 1998. But the story in Scotland was very different. This is in a sense a tale of two referendums – one held in 1979 and the other in 1997, which returned widely different results. In 1979, support for the creation of a Scottish Assembly was lukewarm, and ultimately the proposal failed.²⁰ However, by 1997 there had been a stark change in prevailing political conditions. An extra-parliamentary campaign for constitutional change had emerged that involved a broad range of political and civic actors – many of them political opponents of the Conservative Government – that was initially embodied in the Campaign for a Scottish Assembly (CSA) launched in 1985. This campaign resulted in a document, A Claim of Right for Scotland, issued in 1988 and declaring the inherent right of the Scots to self-government. This document aired the grievance that the “union state” pact stemming from 1707 had been undermined by subsequent United Kingdom constitutional practice.²¹ Furthermore, it asserted that “sovereignty” in Scotland rested with the Scottish people and that as such they had the right to initiate changes to Scotland’s constitutional position.

The Claim of 1988 recommended that a cross-party Scottish Constitutional Convention (SCC) be established that would have the task of drawing up a scheme for home rule, mobilize the people behind it, and “assert the right of the Scottish people to secure the implementation of that scheme.”²² This was inaugurated on 30 March 1989, and over the next seven years it embraced much of Scotland’s political elite, involving inter alia the Labour and Liberal Democratic parties, local authorities, churches, and the Scottish Trades Union Congress.²³ Although not established by any official route, it was composed of fifty-nine of Scotland’s seventy-two Westminster MPs and all six of its members of the European Parliament. This resulted in a series of publications, the most important of which, Scotland’s Claim, Scotland’s Right,²⁴ set out a detailed blueprint for devolution that proved to be very influential, the eventual model of devolution enacted through the Scotland Act 1998 being remarkably similar to it.

The momentum for devolution created by this extra-parliamentary campaign meant that the process by which legislation was passed after Labour came to power in the United Kingdom in 1997 was very speedy. The political climate in 1997–98 was highly conducive to devolution; a Labour administration elected with a large majority in 1997 was committed to devolution, and so, heavily influenced by Scottish Labour MPs, the government drove the devolution settlement through the first session of the new Parliament. The fact that the extra-parliamentary campaign had already developed a sophisticated model that could then be adapted by Parliament quite easily was of considerable assistance in streamlining the route to devolved government.

The process was as follows: shortly after assuming office, and building upon Scotland’s Claim, Scotland’s Right, the government issued a White Paper, Scotland’s Parliament, which contained a fully worked-out model of devolution. This proposal was then put to a referendum in Scotland in November 1997²⁵ in which a large majority voted yes to the principal proposal.²⁶ In this sense the background to the Scotland Act takes on, at least by one construction, a strongly organic and to some extent popular dimension: the former because the devolution model stemmed heavily from a pre-parliamentary political initiative within the Scottish body politic and the latter because of the strong popular endorsement of the devolution settlement in the referendum. Although some minor changes were made by Parliament to the devolution proposal after the referendum, the model finally enacted was in substantive terms the same as that voted for in the referendum.

In Northern Ireland the process was also largely home-grown, and political elites showed a similar level of determination to fill the constitutional space that now became available. The impetus for the devolved settlement was not a plan formed at the centre of the United Kingdom state for the devolution of power from Westminster but rather an attempt to end the conflict between Irish republicans and the British state. Following a historic period of negotiations that took place between 1997 and 1998, in the end agreement was reached involving unionists and nationalists within Northern Ireland. The Belfast Agreement, commonly known as the Good Friday Agreement, signed on 10 April 1998, also involved the British and Irish governments. Although the background to the Belfast Agreement is very different from the background to devolution for Scotland and Wales, the referendum was again the device that was used to approve it. There were in fact two referendums to ratify the Belfast Agreement, one held in the Republic of Ireland and the other in Northern Ireland, both falling on 22 May 1998. Each resulted in an overwhelming endorsement of the agreement.

Therefore, the Scottish and Northern Irish experiences highlight the extent to which constitutional change originated in and was shaped by territorial actors, while the use of referendums for all three settlements also highlights just how much the dynamics of change were shaped at the territorial level. The interplay of these processes also created a culture of ongoing change that was set to affect the United Kingdom’s broader constitutional structure.