Peter Russell argues for a new Act of Union to fix the malaise which has infected devolution in the era of referendums and nationalism, and to improve the politics of the United Kingdom.

This article was first published by the Scottish Fabians.

Why a new Act of Union?

It was of course the expectation of everyone outside the Scottish nationalist community that the referendum of 2014 would draw a line under the claim of independence for Scotland, and therefore be a stabilising influence on the UK constitution. Indeed, even the nationalists signed up to this idea in the 2012 Edinburgh Agreement. They have since used the political momentum which they succeed in generating during the 2014 campaign to further destabilise the post-1997 devolution settlement.

This destabilisation process has continued with the renaming of the Scottish Executive to Scottish Government (implying a false equivalence with Scotland’s UK Government), the misrepresentation of the outcome of the Brexit referendum (presenting it as a poll of different parts of the UK rather than a national vote), and the misrepresentation of the outcome of the 2019 general election (presented as a victory for the SNP despite them only standing in 59 of 650 seats).

It is clear that the current constitutional arrangements are under considerable stress and they may not be fit for purpose under such conditions. It is therefore proposed that a New Act of Union should be presented to form the foundation of a constitutional settlement that is stable and clear, and will allow the governments and assemblies of the UK to operate effectively.

New Act of Union will also offer the opportunity to regulate and limit the powers so far used on an ad hoc basis by Governments, especially the Cameron administration, for their own ends rather than according to any approved formula.

Principles

A codified settlement should be called a New Act of Union precisely because its aim will be to establish a stable constitutional framework for the UK. In the case of Scotland, it also acknowledges the outcome of the 2014 independence referendum, when a majority voted against independence.

The New Act of Union should not exclude the possibility for any part of the union to secede, and should set out the process for doing so.

The New Act of Union should seek to define the UK in terms of shared and mutually respected rights and responsibilities in parts of the UK.

The New Act of Union should also strengthen the role of parliamentary democracy in UK, and should limit the use of referendums and plebiscites.

Nothing in the New Act of Union shall infringe on the provisions of the Good Friday Agreement which has brought peace to Northern Ireland. As these are subject to the provisions of an international Treaty, the presumption should be that these override the New Act of Union. (This applies especially to the articles relating to secession.)

 New Act of Union articles

  1. The United Kingdom comprises the four nations of England, Scotland, Wales and Northern Ireland.
  1. Each of these nations other than England has a devolved assembly or parliament. The powers of these assemblies and parliaments are as set out in existing legislation under the formal and continuing sovereignty of the Crown in the UK Parliament at Westminster. These powers shall not in normal times be changed without their formal consent.
  1. The constituent assemblies and parliaments of UK shall be responsible for their own electoral systems including the UK Parliament at Westminster. However, as the New Act of Union is founded on principles of equality and fairness, it is essential that Westminster moves to a system of proportional representation as soon as possible.
  1. The New Act of Union shall guarantee equal human and civil rights to all subjects of the UK and in doing so should clarify that to be a subject is de facto to be a citizen.
  1. The New Act of Union shall uphold equivalent levels of prosperity in each part to the UK. In doing so, it shall guarantee mechanisms which facilitate equalisation between the most prosperous and the least prosperous regions and nations.
  1. The New Act of Union shall define the UK as a representative parliamentary democracy which seeks to avoid the use of referendums by Westminster except in closely prescribed circumstances. These shall normally be confined to constitutional issues, and will require the approval of two-thirds of MPs. There shall be no referendums on human rights and social policy issues such as abortion, capital punishment and immigration, which are properly the business of parliament.
  1. The New Act of Union shall set out not only the issues which are eligible for an all-UK referendum, but also the regulations governing them. These will include super-majorities and double majorities for major constitutional change. A super-majority will be the support of two-thirds of those voting and a double majority will be the support of a majority of the regions and nations of the UK.
  1. The New Act of Union shall enable all devolved assemblies and parliaments to make their own provisions for referendums except in the case of those relating to secession, which is a shared concern both of the devolved administration in question and of Westminster.
  1. The presumption of the New Act of Union shall by definition be against secession. However, as a democratic principle, it shall allow for secession if that is the proven and settled will of the voters of the nation or region in question. Above all, the idea that part of the UK can secede on the basis of 50%+1 of a vote on a single day shall be rejected. Therefore secession shall be subject to the following process.
  1. There will be referendum in the nation or region only if two successive parliaments or assemblies vote for it with two-thirds of representatives supporting the proposal.
  2. The referendum will require a super-majority i.e., two-thirds support from voters.
  3. The referendum will require a double majority, i.e., to be carried in a majority of internal regions in the nation or region in question.
  1. The New Act of Union shall set out that if a secession referendum fails, it cannot be repeated within 30 years, unless specifically approved by two-thirds of MPs at Westminster as well as in the devolved assembly or parliament in question.
  1. The devolved nature of the UK requires a governance process which is neutral of both the Westminster and devolved assemblies and parliaments. (In Germany, this is provided by the upper parliamentary house the Bundesrat.) The New Act of Union shall set up a neutral body comprising ten nominees from each of the UK’s assemblies and parliaments including Westminster to serve for seven years on a Constitutional Governance Council. These shall usually be suitably qualified either by a judicial/legal background or by other relevant experience. Their appointment should be approved by their ‘home’ assembly or parliament in question.

The politics of the New Act of Union

The New Act of Union is a consolidation not only of the integrity of the UK, but also of the primacy of parliamentary democracy in the UK. Therefore it should be subject to a process of ratification by all of the constituent parliaments and assemblies of the UK, rather than by referendum. In keeping with the spirit and letter of the Act, it should therefore be passed by Westminster and then sent to the Scottish Parliament and the Welsh and Northern Ireland Assemblies for their ratification.

There is no doubt that the New Act of Union would be opposed by nationalist parties, as is their right. In which case, all that would happen if they delay or block the act would be that nothing changes. It should be noted that in Canada, the province of Quebec has failed to formally ratify the ‘new’ Constitution Act 1982 without this causing too much disruption. Moreover, in the case of the New Act of Union, it would offer to the nationalists a unilateral constitutional route to secession (albeit one that requires a high degree of proof that secession is indeed the settled will of its voters) and it is in their direct interest to support ratification for that reason.

However, and above all, the politics of the New Act of Union are such that it can offer a positive and stable alternative to the corrosive and sterile debate over independence in Scotland. It seeks to build a consensual robust framework for devolution which is inclusive of the outcome of Scotland’s referendum of 2014, and to learn the lessons of divisive and destructive referendum campaigns.

For the non-nationalist parties, including Labour, the argument has a number of political advantages. Above all, to argue for its articles is impeccably democratic – it strengthens the concept of representative democracy, defines the ways in which governments can use referendums, and in doing so removes the arguments about “should there not be  a referendum ever again on e.g., independence”.  Moreover, it puts the ball into the nationalists’ court – it is for them to explain why it is not democratic, and why it is wrong to ensure that an outcome for change is the settled will of the people, through the devices of supermajorities (which would have avoided Brexit) and double majorities (likewise, and as proposed by Nicola Sturgeon.)

It is a way to look to the future and not to the past. This will benefit not only the non-nationalist parties, but the UK as a whole – including all of its constituent parts.