How the UK’s Permanent Institutions can be Modified: Devolution and Brexit

Published: 13 December 2016
Author: Richard Parry
Richard Parry discusses some of the issues around changing parts of the UK constitution that might have been regarded as ‘permanent’, especially where a ‘supermajority’ of elected members has become in some cases a legislative requirement. 
It is a difficult feature of the present Brexit debate that commentators in universities and research institutes are one group for whom the ‘ever-closer union’ of the European project had become a fully-embedded part of their lives, encountered in everyday business and relations with colleagues. It is sometimes hard for us to recall the coherent case that the Brexit majority found compelling: large sums that could be spent elsewhere are paid by the UK to an EU (itself failing and likely to break up) that in turn imposes constraints on UK public action that would not win independent democratic consent; and the logic of trade and mutual advantage suggests that many EU-derived arrangements would in practice roll forward after exit because it would be in no-one’s interest to remove them. 
All parts of this case are contestable and probably misconceived, but we need to keep it in mind while many Remain side commentators are in emotional distress.  In 2005 Vladimir Putin described the breakup of the USSR as a ‘geopolitical disaster’ (or ‘catastrophe’ depending on translation). The striking phrase also embodied a subtle concept of things happening that are not meant to be and can well be applied to Brexit. In the 1960s the UK elite conceded that the UK could no longer operate as a world power by using its history, language, global reach and relations with the US and the Commonwealth. They also recognized that the project that became the European Union was too big and close a beast to be handled from the outside and the only way of, if necessary, subverting and diluting it was to join. These pragmatic considerations did not even get us into issues of peace, civilisation and learning from the wisdom of others. They are still stronger now than 50 years ago. The sense of something bad happening without a will to try to prevent it, the ‘sleepwalking’ mentality of 1914, imparts a note of tragedy to present events, only intensified by the ability of Donald Trump to secure electoral votes where he needed them to win while nationally being 2% behind on the popular vote. 
Part of the tragedy is the inability of the UK to handle constitutional change, even when devolution has set precedents for how authoritative change is to be secured. The Smith Commission proposed without qualification that the Scottish Parliament and Government should be set in law as ‘permanent institutions’; the Scotland Act 2016 does so but make it overridable by ‘a decision of the people of Scotland voting in a referendum’ (s1).  The concept of the super-majority of two-thirds of total legislators was used in the Scotland Act 1998 as a mechanism for premature dissolution of the chamber, was applied to the House of Commons under the Fixed-Term Parliaments Act 2011, and is now specified in the Scotland Act 2016 for changes to the composition of the Scottish Parliament and its electoral system (s11). A similar two-thirds approach to system design is also on offer to Wales.  And yet Brexit as a policy was supported by less than even one-third of MPs. Those with long memories may remember calls within the Conservative Party for a referendum on capital punishment; abolitionist MPs were not required to change their minds, only to concede the concept of ‘a decision of the people’. 
What started out as a political call for Parliament to be involved in the start of the Brexit process – probably through no more than a House of Commons motion approving the government’s activation of article 50 – escalated once judicialised into a requirement for a prior Act of Parliament putting into reverse the European Communities Act 1972. The logic of the decision appealed last week seems surely likely to commend itself to the Supreme Court, unless they start to act like their US colleagues and give a nuanced, politically aware verdict requiring only the Commons motion Theresa May could have had in the first place. The UK claim that Brexit issues do not have any regard to devolved matters is also a long shot. We seem to be heading to a brutal piece of UK primary legislation cutting off any devolved legislature involvement or consent. ‘Normally’ (Scotland Act 2016 sect 2) this is not done but the absence of normality is one thing on which we can all agree.