At 309 years old, the Act of Union is entitled to a perpetual dignified semi-retirement in the pages of history textbooks. So it was disturbing to see such a venerable piece of legislation suffer the indignity of being publicly manhandled last week.
The placeholder for the UK’s foundation document was hauled up before the Supreme Court by the Lord Advocate, who used the Act of Union to argue there were limits to the royal prerogative in Scotland.
It would have been “extraordinary”, Lord Wolffe claimed, if the framers of the Act had meant to bestow sovereign power on the crown rather than parliament. Therefore, under the Sewel Convention set out when the Scottish Parliament was created, giving MSPs a say on any legislation touching on devolved matters, there should be a vote in Holyrood on triggering Brexit by invoking Article 50.
Having been drawn into a very modern political dispute over who has the power to trigger Brexit, the very future of the tricentenarian Act was thrown into doubt by Scots Labour leader Kezia Dugdale, who called for a constitutional convention to draw up a replacement to remake the UK as a federal state.
They had different aims, but the message from both the Scottish Labour leader and lawyers at the Supreme Court was the same: the vote to leave the EU has put unbearable pressure on the structure of the UK’s unwritten constitution.
That would have been the case regardless, given the split in Brexit support along the Border, but some of the strains have been self-inflicted. Presenting the UK government’s case in a Supreme Court appeal some say was unnecessary, Advocate General Lord Keen dashed the illusion of a legal protection for devolution, and the sovereignty of the Scottish Parliament.
Unionists may come to regret Lord Keen’s unsparing legal language. He said the Sewel Convention was no more than a “self-denying ordinance”, and that putting it into legislation in the 2016 Scotland Act made no difference: “the correct legal position is that [Westminster] is sovereign, and may legislate at any time on any matter”.
Nationalist protests were to be expected but winning this constitutional battle could widen the war over Scotland’s future. As the Welsh Government’s lawyer Richard Gordon QC warned, failure to respect that convention could dissolve the “glue” that holds the UK’s unwritten constitution together.
As Ms Dugdale pointed out in her speech on a new Act of Union, the UK’s Brexit divisions are particularly caustic bath. Her solution is a constitutional convention on par with the one that crystallised demands for a Scottish Parliament. Her vision is of a federal state with enough flexibility to withstand Brexit, devolving many of the responsibilities returning from Brussels, but where the Union retains a hold of purse-strings with redistributive powers.
Using the F-word doesn’t have the shock of the new, particularly in Scotland. It is a fairly safe territory for third parties and retired prime ministers, who get the coverage they crave without having to answer too many hard questions or inspiring too many tough critics.
It was telling which details Ms Dugdale was and wasn’t willing to discuss in setting out her vision. By the end of a round of questions from reporters, her convention towered over the landscape of political reform, covered everything from the electoral system to rethinking of local government.
Ms Dugdale said she wanted an end to the House of Lords, replacing it with a chamber of nations and regions akin to the German upper house, the Bundesrat. But asked about the future of the House of Commons – would Scottish MPs still be invited? Would it become an English parliament? She left that particular bear trap for someone else to step in.
The call for a national conversation spanning the political spectrum and civil society wasn’t met with a cross-party embrace. The Tories said “more constitutional upheaval” was the “wrong priority”, while the Greens chastised her for distracting from Brexit with a proposal that was “vanishingly unlikely to happen”.
The SNP issued the cruellest dismissal, with Linda Fabiani MSP saying that “billions of years from now I half expect Labour politicians to be staring into the dying sun calling for a constitutional convention”.
But the real the real problem isn’t that Ms Dugdale’s plan is too grand, too vague, too much of a reheat or –it’s that it’s her plan in the first place.
In her speech, she acknowledged that while Scotland, Wales and Northern Ireland had done well, other areas have been left behind by the UK’s haphazard approach to devolution. Even if she won’t spell it out, it’s obvious that any attempt to reshape the UK constitution must come from England.
There isn’t a total disinterest in the constitution south of the Border. In northern suburbia, the detail of the government’s patchwork of city deals and metro mayors is being closely followed by ordinary voters who will have to pay for it – the issues of health, social care and pot-holed roads are filling the post bags of the evening papers, their correspondents say. Some will be willing devolution there to fail, but some equally will want to see it succeed.
And in London, the most explosive political issue is who gets to run the city’s creaking, filled-to-burst commuter trains. Control has been withheld from mayor Sadiq Khan, with private messages from Transport Secretary Chris Grayling revealing that party politics has more to do with it than making the trains run on time.
There is an audience for a discussion about where power is held, and by whom – but unlike in Scotland, where the 2014 referendum left some wanting more, most English voters think they took back the control they craved from Brussels.
How far Brexit delivers on that belief will shape interest in Ms Dugdale’s conversation.
The Scottish Labour leader is right that UK’s unwritten constitution badly needs to be overhauled if it is to survive the pressures of Brexit. But she can’t do it alone – in fact, she badly needs it to be someone else’s idea if it is to get anywhere at all.