affiliated to the International Association of Constitutional Law
It is clear that the UKSC’s observations on the meaning and effect of ss. 1 and 2 of the Scotland Act 2016 in Miller have deep consequences for both the constitutional law and the constitutional politics of the UK’s territorial arrangements, and therefore for the Union itself. In relation to the law, some serious questions have been raised on this blog (Campbell; Velasco and Crummey). I share these concerns fully. Rather than relying so heavily on an English constitutional orthodoxy, it may have been possible to articulate a more imaginative interpretation of these provisions that was more responsive and sensitive to both the historical traditions and the contemporary needs of our multination Union. Whatever one’s views on the Royal Prerogative, moreover, Lord Reed’s dissenting judgment (Endicott) certainly had the incidental advantage of obviating the need for a judicial pronouncement on the legislated Sewel convention or the permanence of the Scottish institutions . But the Court, while acknowledging that “The Sewel Convention has an important role in facilitating harmonious relationships…” in a devolved polity, stated that “…the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary…” .
With this demission of authority to the political branches to devise the appropriate arrangements for the management of a multilevel system, it would, therefore, be in the constitutional politics of our political constitution that the more consequential future bedevilments – as well as the possibilities for their resolution – would lie (Reid). The legitimacy and strength of these arrangements thus become supremely important if the Union is to survive the severe trials of the Brexit process to come. If the political actors are not thoughtful about how this is done, then in Scotland, further political grievances would be added to the legal ones created by Miller in making the case inexorable for another independence referendum (Fry; Massie).
This legitimacy can only be constructed; it cannot be assumed. Pragmatic empiricism – long held to be the genius of the British constitution – is no longer adequate for a plausible defence of the very Union that is at the heart of the constitution. The principles of politico-constitutional morality that must inform the relationship between the centre and the periphery in a sustainable union state have now to be expressly articulated. The House of Lords Constitution Committee contemplated just these issues last year. In HL Paper 149, it set out the principles of solidarity, diversity, consent, responsiveness, subsidiarity, and clarity, as the foundational basis for a modern Union that respects the autonomy of the parts as well as the integrity of the whole (Ch.4). It pointedly rejected Minister Letwin’s preference for pragmatism over principle [159-160].
The normative point here is simple and intuitive: there can be no real Union consistent with democracy unless the minority nations feel they are taken seriously in a genuine partnership. For this not only a respect for their autonomy but also for the recognition and representation of their voices must be ensured. Only then can reciprocal loyalty be generated. It would be unfortunate if the UK government does not appreciate the implications of the sub-state challenge, but it would be a tragedy were Mr Letwin’s insouciance to inform its attitude.
*The quotation in the title is from the views expressed by Oliver Letwin MP, the then UK Government Minister responsible for the constitution, to the House of Lords Constitution Committee (HL Paper 149: ).
Dr Asanga Welikala is Lecturer in Public Law in the University of Edinburgh and the Associate Director of the Edinburgh Centre for Constitutional Law
(Suggested citation: A. Welikala, ‘The Need for a ‘Cartesian Cleaning of the Augean Stables’? Miller and the Territorial Constitution’, U.K. Const. L. Blog (7th Feb 2017) (available at https://ukconstitutionallaw.org/))