Plan B – the Hawaii of the North Atlantic? Dr Richard Cornes

22 May 2015 by Guest Contributor

Constitutional Futures 2015 – 2025 – a vignette, and comment

 January 1, 2025

As the first day of 2025 dawns the people of the Kingdom of England wake looking forward to the arrival of their new passports, issued by the United States of… America. Governor Farage’s message is unusually sober, encouraging, almost apologetic:

While we had hoped to make our future with the Commonwealth, despite our best efforts, and the tireless advocacy of the Royal Family, we must acknowledge that our former friends are content with their lives and more local partners. We thank Her Majesty, and her family, for their service. We wish them well with their continued public service in Scotland, Canada and elsewhere.

While the bargain our NAFTA partners have struck is a bracing one, it is one which I believe we can live with, and indeed thrive under. As the fifty-first state, the first to join since Hawaii in 1959, we rejoin friends older than the New Zealanders, Australians, Canadians; we go back to our shared Mayflower roots.

President Clinton assures me that she expects Baroness Hale to be confirmed to the Supreme Court. I’m sure she will do great work weaving British principles into our new shared constitution.

With representatives in the House, and Senators Cameron and Umuna in the Senate, we can look forward to a prosperous future as a new and vital part of a nation we can claim have been with, in some ways, since it began.

2015 – another significant constitutional pivot

The next two to three years could involve constitutional changes as profound as the last Labour government’s (in particular the devolution statutes, Human Rights Act, and creation of a Supreme Court), with similarly long term implications.

David Cameron though, in comparison to Tony Blair, has a tiny majority and must contend with the constitutional structure created by the Blair/Brown reforms. Further, Cameron contends with a Parliament including 56 Members pledged to the end of the United Kingdom, and the fact that 12.6% of the electorate voted for a party – UKIP – committed to the end of membership of our other essential union: the European Union.

Added to this the Prime Minister, now naked of protection by Lib Dem fig leaves, is exposed to his more hard-line eurosceptic backbench. Antipathy there, to things European, arises on two fronts: the Human Rights Act 1998, and the EU.

May 8 2015 and beyond – Fundamental rights

I suspect debate over Human Rights Act repeal is likely to be “a great deal of sound a fury signifying – nothing.” The Conservative manifesto promises to rid us of the Human Rights Act and replace it with a British Bill of Rights. We will remain though a party to the European Convention: i.e., the rights protected by the 1998 Act will continue in some form (in addition to the continued existence of the common law, carefully preserved in cases like Daly).

Transparently, hard-line eurosceptics view the assault on the ECHR as part of the play to take the UK out of the EU. However, there being no manifesto promise to denounce the Convention entirely and remove us from the Council of Europe it is hard to see the Lords, or for that matter the Commons, passing a British Bill of Rights that were not Convention compliant. Authors of texts on human rights likely need do not too much more than change chapter titles and add a new preface.

Beyond the question of ECHR adherence at the national level there is also the fact that the Convention is written into the operation of the devolved administrations in Scotland, Wales and Northern Ireland. Legal questions aside, the Scottish Government has already made clear it is not prepared to acquiesce in abandoning the Human Rights Act model of Convention compliance. And signs are already apparent that there could be a revolt on the Conservative backbench.

The far greater threat to constitutional (and therefore economic) stability comes from the promised EU referendum.

May 8 2015 and beyond – Future of the two essential unions

Given the hopeless campaign run by London during the Scottish referendum campaign – with honourable, though very late in the piece, exceptions – friends of our two essential unions should be very afraid. See this warning lecture from Essex University’s Regius Professor of Government, David Sanders; and also this from Essex’s Steve Peers.

Internal union – the Union of England, Scotland, Wales and Northern Ireland (and London)

To date, devolution has been progressed on the basis of what has been sought by, and agreed to, by Scotland, Wales, Northern Ireland and, to an extent, London, individually. Each part has bargained with the centre for its own interests. Other aspects of constitutional reform have occurred alongside these developments. As the Bingham Centre points out, there has been no coordination, no coherent plan for the constitutional future of the Union as a whole.

There is a case to be made. It is a case, implicit in the comments of departing Deputy Prime Minister Clegg, for binding civic principles over more tribal nationalisms and identity politics. That case needs to be connected to the debate about the UK’s future relationship with the EU.

Further, devolution needs to become more of a Union-wide event, and less of a process. For the English this means waking up and paying attention to their place within the Union. For all parts of the Union this means standing back from home nationalisms and regional identities, and taking a clear reckoning of how the United Kingdom could better work for its constituent parts, within the context of the EU.

For David Cameron this means speaking from the office of Prime Minister of the United Kingdom, and less from the interests of the leader of the Conservative Party; a voice he found almost too late in the 2014 Scottish referendum, and a voice he has yet to find when responding to his backbench, and UKIP.

Within the UK, further devolution, led to begin with by Manchester and the Northern Powerhouse, could allow for more freedom for innovation and policy experimentation not only in the traditional four nations, but also within England. London elites will find this painful; devolution of power detracts from Whitehall in favour of the nations and regions. The responsibilities and powers of the British Prime Minister may be very different in the future. There could be a de facto English First Minister in the Commons.

We should be as sanguine (though not as naive) about the possibilities as we were in 1997/8. In those years we pretended that the devolution Acts settled the issue of the Union. We know better now than to believe in fairy tales. One certainty I am prepared to stand by is that the current balance is not sustainable, and that those in favour of a continued United Kingdom need to be prepared to embrace radical developments. Alternatives could lead to the break-up of the current domestic union with, I predict, Scotland and Wales remaining with the EU, Northern Ireland looking seriously at joining the Republic, and London unhappily anchored to the English hinterland.

External union – the UK and the EU

The SNP’s position is that a vote to leave the EU should require majority support in each part of the UK (I would add London to that), and further, that the UK leaving the EU would be circumstances justifying holding another independence referendum. They have a persuasive argument on both points.

By chance of historical timing the United Kingdom is not a federal state along the lines of Canada, the USA, or Australia; though it has many similar characteristics. The model of state we have – a union of nations under a single parliament, without an upper chamber representing the union’s constituent parts – predates the work of the Philadelphia Convention. We can though learn from the later federal models. One lesson is that changes to the constitutional position of the federal-whole requires consent of at least a majority – usually a super-majority – of the constituent parts of the federation.

Taking into account population numbers there is a compelling argument that a vote for the UK to leave the EU should require a majority in at least three parts of the UK. Given London’s semi-devolved status, population numbers, and the importance of access to the EU for the City, I would treat London as a fifth constituent member of the UK for the purposes of the EU vote.

What if it all goes awry? – The Great State of England?

Sir John Major and other sceptics of the 1997/8 devolution programme have some reason to say, “I told you so”. Devolution has not staunched nationalisms within the United Kingdom. In Scotland voters have confounded constitutional designers by getting around the PR system to elect a majority SNP government. Voters can be so naughty.

On May 7 the Scottish electorate, aided by the institutional gerrymandering of the First Past the Post electoral system returned 56 SNP of the 59 Scottish MPs, (the other three being one Scottish Tory, and one Scottish Labour MP, and one Liberal Democrat). On a proportional basis, the SNP’s vote share of 4.7% would give them 31 seats; the Liberal Democrats, on 7.9% of the vote would get 51 seats, rather than the 8 they in fact won. UKIP, rather than one seat would have 83; that’s a lot of under-represented voters. Anomalies exist for all the parties.

Perverse though the outcome of the UK electoral system may be, we can give it this: for this parliament it has given us, within the House of Commons, a de facto federal chamber, with Scotland’s MPs present to speak for their nation’s interests. In a very British way there is the potential to use this set of facts to start to map out a new model of the internal union.

This could all end well. A sunny scenario for the next five to ten years sees a reinvigoration of democratic engagement within the UK, and of the UK within the EU, to the benefit of both unions. David Cameron could win enough from the EU to be able to get a yes vote in a referendum. A renegotiation of the internal union could provide all parts of the UK with sufficient autonomy to make the bargain of staying together within the EU worthwhile.

Or it could be otherwise. The Prime Minister could fail in his negotiations with the EU, the EU referendum could be lost. Scotland, followed by Wales and Northern Ireland could re-assess their positions within the Union; referenda could be called, and won, for them to depart. London would sulk on, resenting the wound inflicted by England.

And then England stands alone: a nation in the North Atlantic, not enjoying the climate of Hawaii, but looking to join the USA and NAFTA as a similarly distant state. Farfetched? Yes, as farfetched as an SNP majority government, and the break-up of the UK, seemed in 1997/8.

Things need not fall part, we need not slouch on towards an uncertain future. May 2015 is as an exciting time as the summer and autumn of 1997. It’s time to make the case for our two essential unions: between our four nations (and London), and the EU.

Dr Richard Cornes, @CornesLawNZUK, is a Senior Lecturer at Essex University.