UK constitution and lawyers

And so it came to be. A column in October’s Gazette bore fruit in a March debate in Middle Temple Hall on the future of the constitution in light of the Scottish referendum. The event occurred only with the unprecedented combined support of the bar, Law Society, Middle Temple Hall, the Society of Labour Lawyers, Society of Conservative Lawyers and Liberal Democrat Lawyers Association. Disturbingly, however, it was easier to identify questions than answers.

The legal profession was responding positively and collectively to the idea that it has a particular role in discussion about the future of the constitution. Politicians will make the ultimate decisions but they are compromised by short-term considerations on a long-term matter. Witness the fencing between Labour and Conservatives over the role of Scottish MPs.

Neither party can ignore the fact that these, regardless of nationalist orientation, are likely to be Labour-leaning. So Tory strategists seek to marginalise them; Labour seeks to combat that.

Such manoeuvring is the very stuff of politics, apparent even in sympathetic portrayals of contemporary power such as The West Wing and centre stage in more scathing shows such as House of Cards. The danger is that the political parties are taking positions on unsteady ground. The ‘Scottish question’ remains unanswered, let alone the English one.

The loss of the referendum is being actively promoted by nationalists as but the first step of a campaign. And there is a truly nightmare scenario if Scottish nationalism ever meets head on with English euroscepticism. Scotland would, very likely, want to stay in the EU even if England voted to come out. A combination of independence and different approaches to Europe could result in what would effectively be the rebuilding of a reverse Hadrian’s Wall.

This would be a ‘hard border’ between the countries. The very point of an English exit from Europe – which would be ‘Engex’ not ‘Britex’ if the SNP had anything to do with it – would be protection of England from the scavenging Romanian and east European hordes. These don’t seem to bother the Scots so much.

On the other hand, the core concept of English votes for English laws must, in essence, be right. The Scots vote on the organisation of their health service in the Scottish parliament. Why can Scotland’s MPs in Westminster vote on ours as well? But, as Alex Salmond made clear in the referendum debates, the size of the Scottish budget for health is determined by reference to UK spending as a whole.

So, the concept of English laws is more difficult than it might first appear. Scots have a legitimate interest in the budget as a whole. Similarly, the Labour proposal for a Constitutional Convention to discuss all the difficult matters is fine, but the party that set up the Chilcot Inquiry into the Iraq war might walk with some humility into demanding committees to enlighten difficult matters.

The Tory paper on what to do in relation to Scotland refers to the UK as a ‘quasi-federal’ kingdom. Any lawyer worth their salt is going to be uneasy with that. Surely you can’t be a little bit federal just as, to use an old advocate’s cliche, you can’t be a little bit pregnant. My own heretical view, actually inspired by the SCL paper, is that we should go the whole hog and become an explicit federation with functions like the national budget, defence, foreign policy, international aid, social security as federal; and other issues devolved to the four constituent parts of the nation.

But, the argument was made very coherently at the conference that federations only tend to work when populations of constituent parts are more balanced than in the UK – 53m of the 62m UK population lives in England. Wales adds another 3m. US states contain this level of diversity. California has a population of 39m while Wyoming has 600,000, but that difference is diluted among the larger number of constituent states.

We face a major problem which has a statistically significant chance of destroying our country, damaging our prestige and harming our economy. And there is no clear way forward. In that context, we need, as lawyers, to keep up a lead in puzzling away at constitutional reform through debate which is not politically stage-managed; where all options are on the table; and which has sufficient prestige and necessary urgency.

We must help to engage the whole of the UK in a constitutional debate with the same attention as happened in Scotland. Everything has to be on the table. I have my own candidates for reform: let’s begin with the unelected House of Lords. But, the point would be that the overall process is more important than any individual element – or political interest.

Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice