Scottish independence: Federalism is the only way to save the UK

If Salmond loses the independence referendum, there will be an urgent need to hammer out an alternative to Westminster absolutism
May 21, 2014

The Union Jack projected onto Parliament: "In the sub-conscious of English politicians and commentators lurks incomprehension about the UK's non-English". ©London News Pictures/Rex

Lying on the desk in front of me as I type is my passport. The cover is an elegant confection of maroon and gold. “European Union” proclaims the first line, in golden capital letters. Beneath, slightly larger golden capital letters add the words: “United Kingdom of Great Britain and Northern Ireland.” Beneath that, also in gold, are the arms of Her Britannic Majesty, Queen Elizabeth II. At the top of the inside facing page are the words “European Union.” Below them are two lines, translating that term into the two Celtic languages of Great Britain, Welsh and Scottish Gaelic. Then come the words, “United Kingdom of Great Britain and Northern Ireland.” Below them come, once again, their Welsh and Scottish Gaelic equivalents. On the penultimate inside page of the passport, alongside an unflattering photograph and below my full name, are the portentous words, “British Citizen.”

The message is subtly, I almost said slyly, postmodern. It is also remarkably European. I am, my passport tells me, a British citizen. But that is not all I am. I am also a citizen of the European Union, bearing the rights guaranteed to EU citizens by virtue of the European Convention on Human Rights that all EU member states are bound to accept. I am represented in the directly elected European parliament, as well as in the British House of Commons. And thanks to the devolution of important powers to the non-English nations of the United Kingdom, British citizenship itself is a far more complicated matter than it used to be. I am Welsh by origin, and my wife and I have just acquired a flat near Cardiff, my native city. Before long, we shall be entitled to vote in elections to the Welsh assembly or Senedd.

This is typical of modern Europe. All over the continent, ancient ethnicities are emerging from under the carapace of the familiar European “nation state.” For Wales and Scotland read Catalonia, Sardinia, Galicia, Lombardy, Corsica, the Basque country, Andalusia and Flanders. To make sense of this, it is important to remember that the allegedly “national” states of Europe are, in many cases, artificial: products of dynastic marriages and the contingencies of battle rather than Abraham Lincoln’s “mystic chords of memory.” (The mystic chords sounded after the nations came into existence, not before.) But for the marriage between James IV of Scotland and Margaret Tudor, daughter of King Henry VII of England, Margaret’s grandson, James VI of Scotland, would not have inherited the English crown, and the British state might never have come into existence. Had Austria defeated Prussia at the battle of Königgrätz, instead of the other way around, there would have been no German empire, no Third Reich and probably no German Federal Republic. Had the Duke of Burgundy, Charles the Bold, beaten off the depredations of the French crown in the 15th century, a powerful Burgundian state might now dwarf a puny France. Had Ferdinand of Aragon and Isabella of Castile not married, there would have been no Spanish state.

The confusion that now engulfs the UK’s territorial constitution can be understood only against that background. The referendum on Scottish independence called by the Scottish National Party government has provoked extraordinarily vituperative and insensitive attacks on the very idea of an independent Scotland from all and sundry: George Osborne, Danny Alexander, Ed Balls and David Cameron, with Mark Carney and José Manuel Barroso bringing up the rear. They have all warned Scottish voters of the horrors that will engulf Scotland should they have the temerity to vote for secession from the UK. They remind me of King Lear’s famous threat “to do such things, what they are yet I know not, but they shall be terrors of the earth.”

Like Lear’s threat, the warnings delivered by Osborne and company tell us more about the warners than the warned. Deep in the sub-conscious of English politicians and commentators lurks an unspoken, but profound incomprehension about the nature of the non-English peoples of the UK. South of the border and east of Offa’s dyke England represents normality; the non-English are assumed to be would-be English, or even English in disguise. The notion that the Welsh and Scots are not just non-English, but happily and contentedly non-English seems eccentric to the point of perversity. Partly because of this, the terms “British” and “English” have been almost interchangeable for English people. When Kipling asked, “What do they know of England who only England know?” he had Britain in mind. When the Scottish émigré, Thomas Carlyle talked of the “condition of England question” he could equally well have called it the “condition of Britain question.” In his magnificent

1941 polemic, The Lion and the Unicorn, George Orwell called for a “very English revolution,” but it is clear from the context that by “English” he meant “British.”

These deep-seated attitudes help to explain the widespread English failure to understand the logic of the SNP’s search for independence and, on a deeper level, to remember how and why Scotland became part of the UK in the first place. It is a long story, but the central fact is clear. As the Oxford politics professor Iain Maclean has emphasised, the Treaty and subsequent Acts of Union of 1707 flowed from a bargain between the two sovereign and independent Kingdoms of Scotland and England (which then included Wales). The bargain was just that: a bargain. It was not a diktat. It was made because the ruling bodies of the two nations thought it was in their interests. England secured its northern frontier, ruling out any repetition of the “auld alliance” between Scotland and France; the Scots accepted the English law of succession to the throne, ruling out a Jacobite succession; the Scottish and English parliaments were merged; Scotland became a junior, but richly rewarded partner in what was now the British empire. At the same time, the continued existence of Scotland’s separate legal system and established church was guaranteed. These institutions preserved the memory of independent Scottish statehood and provided an enduring focus for a distinct Scottish identity.

Scotland, in other words, voluntarily joined a union with England. I cannot see any reason why it would be ipso facto wicked or shocking or improper for Scotland now to decide that it no longer wishes to remain a member of the union concerned: that the bargain was, in fact, one-sided and has not delivered, or at least no longer delivers, the goods that the negotiators of 1707 thought they were getting.

In sober fact, the guarantees given to Scotland in the Treaty and Acts of Union rested on extremely shaky foundations. English constitutional lawyers could never bring themselves to accept that, in guaranteeing them, the settlement of 1707 had sought to entrench them in the constitution of the new British state. In one of the most resonant sentences ever penned by an English constitutional lawyer, the Oxford jurist Albert Venn Dicey insisted that the “doctrine of the legislative supremacy of parliament,” as he called it, was “the very keystone of the constitution.” None of the “limitations alleged to be imposed by law on the absolute authority of parliament,” he added, had “any real existence.” It followed that no parliament could bind its successor. The Act of Union was no exception; logically there could be no exceptions. Indeed, with joyous glee, Dicey showed that significant provisions of the Act of Union—one laying it down that professors at Scottish universities should subscribe to the Presbyterian Confession of Faith and another prohibiting lay patronage in the Church—were repealed by the sovereign parliament of Great Britain. If Dicey was right (and he was) the guarantees of Scottish exceptionalism given in 1707 were worthless: the Scots had been sold a pup.

But at this point, the story takes a strange twist: Dicey’s doctrine of legislative parliamentary supremacy is not British; it is English, quintessentially English. For Enoch Powell, the great prophet of High Tory English nationalism, it encapsulated the very essence of English nationhood. In a beautifully crafted, if slightly mad St George’s Day speech, he compared it to the “sacred olive tree” of ancient Athens. Like Athenians returning to the ruins of their city after it had been sacked by Xerxes, he declared, the present generation of the English had come home from years of imperial wanderings. Having returned, it had discovered an unexpected affinity with earlier generations whose effigies were to be found in England’s country churches. Suppose they could talk to us, he asked, what would they say? This is his answer:

"One thing they assuredly would not forget, Lancastrian or Yorkist, squire or lord, priest or layman; they would point to the kingship of England... and that sceptred awe in which Saint Edward the Englishman still seemed to sit in his own chair to claim the allegiance of all the English. Symbol yet source of power, person of flesh and blood, yet incarnation of an idea; the kingship would have seemed to them as it seems to us, to embrace and express the quality that is peculiarly England’s: the unity of England, effortless and unconstrained, which accepts the unlimited supremacy of crown in parliament so naturally as not to be aware of it."

Perhaps because he was ethnically Welsh, Powell was laying it on a bit, but he put his finger on an exposed nerve of the British polity. The Dicey-Powell doctrine runs directly counter to the implicit Scottish conception of popular sovereignty set out in the Declaration of Arbroath of 1320. The text of the declaration is worth pondering. If Robert the Bruce “should give up what he has begun, and agree to make us or our kingdom subject to the King of England or the English,” it proclaims, “we should exert ourselves to drive him out as our enemy and a subverter of his own rights and ours.” (Note the “our” and “ours.”) The premise is that the sovereign Scottish people should determine the future of their country. This implicitly democratic conception lingered on in the minds of politically and constitutionally conscious Scots, but as a principle of government it didn’t survive the union.

Constitutionally speaking, the UK is England writ large. The Scots thought certain crucial Scottish demands had been guaranteed in perpetuity, but according to the Dicey doctrine they hadn’t been; in fact, they never could have been. By an extraordinary sleight of hand, the English doctrine of the “unlimited supremacy of the crown in parliament” was imposed on the unconquered Scots, as well as on the conquered Welsh and the partially conquered Irish. In calling the independence referendum, the Salmond government has rejected the Dicey/Powell doctrine of unfettered parliamentary sovereignty in favour of the ancient Scottish doctrine of popular sovereignty.

'The Downsitting of the Scottish Parliament' (cropped) from Châtelain and Gueudeville's 'Atlas Historique', 1720

Against that background, the SNP case for Scottish independence takes on a new colour. The central point concerns EU membership and its implications for Scotland. As the Scottish government points out, under devolution it has—and will continue to have—“no direct influence over EU decisions.” The UK government does not—indeed cannot—pay due regard to distinctively Scottish concerns in the endless round of negotiations and compromises that are the stuff of EU politics and governance. Since Scotland is subsumed in the UK so far as EU politics are concerned, there is no mechanism by which distinctive Scottish concerns can be brought to bear in the EU legislative process. By definition, this is equally true of Wales and Northern Ireland. A Labour victory in the next election would leave matters as they are. The sovereign London government would still control the UK’s negotiating stance; the mere fact that the party composition of it had changed would make no difference to that brute fact.

At this point, enter federalism. In a federal United Kingdom, this would no longer be true. The constituent states of the federation—Scotland, Wales, Northern Ireland and England—could play the role that the German “Länder” play at the moment in the Bundesrepublik. They would be deeply involved in EU policy-making. The UK government’s position would be hammered out in intra-state negotiations and bargaining; the state governments would have a presence in Brussels, making sure that the British government stuck to the compromises made in the intra-state process. And if, as would be logical, the mouldering archaism known as the House of Lords were replaced by an upper house on the lines of the German Bundesrat, which represents the Land governments, the states would be able to block any EU decisions that ignored their concerns.

This is not just abstract theorising. The current UK government is Eurosceptic, not to say Europhobic. Its chief objectives in EU negotiations are to water down the “federalist” element in the EU Constitution in favour of the “confederalist”; and to protect the UK’s overblown and, in parts, criminal financial services sector from EU scrutiny. But none of this is true of Scotland. Scotland would like to be a constructive partner in EU politics. Like most small member states, it knows that the EU offers the best protection that small European nations have ever had from big predators, as well as the best shelter from the upheavals of global markets. And, in present circumstances, the SNP contention that the Scots can play a constructive EU role only in an independent Scotland has compelling force.

Moreover, the Scottish government is—implicitly at least—social-democratic. It seeks independence to protect Scottish social democracy against the market fundamentalism of the London government, both within the UK and in its dealings with the EU. The roots of Scottish social democracy go deep. The political cultures of all the non-English nations of Great Britain are very different from their English counterparts. As a civil servant in the Welsh education department put it in my hearing not long ago, the overarching theme of UK governance can be summed up as “choice, competition, customer.” The Welsh equivalent is: “voice, cooperation, citizen.” Since devolution, the Welsh government has tried to follow the path implied by that splendid trio. Mutatis mutandis the same is true of Scotland.

But, ever since Mrs Thatcher crossed the threshold of No 10 all UK governments, irrespective of party, have been in thrall to the imperatives of what Philip Bobbitt, the legal historian and philosopher, has called the “market state.” These imperatives have not only violated the underlying assumptions of Scotland’s political culture; they have also trampled on the religious traditions with which that culture is intertwined. Scotland’s religious traditions are Roman Catholic and Calvinist. Both reject the Hayekian market individualism of Thatcher and the watered down version of it that prevailed under Blair and Brown. Two particularly egregious Thatcherisms stank in Scottish nostrils: her dictum that no one would remember the Good Samaritan if he hadn’t had the money to give effect to his good intentions; and her notorious “sermon on the mound,” in which she insisted that since Christ chose to lay down his life, freedom of choice was the essence of Christianity.

What if no fundamental change is made in the UK constitution? Probably—but not certainly—Salmond will lose the referendum. However, that won’t be the end of the story. It is worth remembering that champions of independence have only got to win once; opponents have to go on winning every time the question comes onto the political agenda. The political and social forces that made the SNP Scotland’s governing party and lie behind its decision to hold the independence referendum won’t go away. Sooner or later, if the UK constitution remains unchanged, there will be another demand for independence and another referendum. If the choice is once again between independence and the status quo, I find it hard to see how any self-respecting Scot could vote against independence.

For, as my old boss Roy Jenkins might have said, almost all the objections which have been made to independence fall well below the level of events. They breathe the spirit of a pettifogging accountant, lacking in what the first George Bush called “the vision thing.” Only one objection needs to be taken seriously: Barroso’s claim that, if Scotland became independent, it would be difficult, perhaps impossible for her to join the EU. But that is a matter of opinion, not an ex cathedra ruling by a kind of Euro-pope. Barroso is not just President of the European Commission. He is a right-of-centre Portuguese politician. His political position is radically different from the Scottish government’s. By no means all Commission officials share his opinion. As we speak, Scotland belongs to the EU by virtue of her membership of the UK. The question is not whether she should be allowed to join, if and when she becomes independent; it is whether she should be thrown out. That question will be decided by political argument and negotiation, not by unchallengeable legal dicta. Of course, we cannot foresee the results. But it is clear that excluding Scotland from the EU would be an act of gratuitous and self-destructive folly.

The moral is clear. If Salmond loses the independence referendum, there will be an urgent need for a constitutional convention to revise the UK’s territorial constitution, to decide how the nations that make up the union should relate to each other and to the whole and to hammer out an alternative to Westminster absolutism. (Some peers are rumoured to favour such a convention before the referendum takes place, but it is hard to see a suggestion from that quintessentially undemocratic quarter gaining traction.) The important point is that if Scottish voters reject independence in September there will a breathing space to hammer out an agreed solution to the great conundrum of multi-level governance in the UK: how to satisfy the legitimate aspirations both of the non-English nations of the union and of England. But the breathing space will not last for long.

At this point enter Charles Stewart Parnell, and the complex, long drawn-out and eventually tragic story of the struggle over Irish home rule and of the deeper, sometimes agonising struggles within the hearts and minds of those involved. It is rich in drama: William Gladstone’s first home rule bill and his magnificent speech in the debate on it; the Liberal split that ensured its defeat; Parnell’s terrible fall after being successfully cited as a co-respondent in one of the most sensational divorce cases of the 19th century; his premature death; the Asquith government’s bitterly contested home rule legislation before the First World War; the emergence of paramilitary forces both in Ulster and the south of Ireland; the Easter Rising of 1916 and the resulting “terrible beauty” that Yeats hymned in imperishable lines; the savage guerrilla war between the IRA and the British that followed the First World War; and the equally savage civil war between the supporters and opponents of the 1921 treaty that gave the 26 counties of southern Ireland independent statehood.

The story is also rich in passion, and in outsize political leaders. Salmond is a cuddly tabby cat compared with Parnell. Cameron is laughably lightweight in comparison with Lord Salisbury. The wayward genius and vaulting ambition of Joseph Chamberlain, the Liberal Party’s nemesis in the 1880s, and the Conservative Party’s in the early 1900s, have a steely intransigence about them which no present-day political leader can emulate. Lesser members of the cast list—Cardinal Manning, austere Catholic convert and hammer of employer exploitation, Kitty O’Shea the fatal love of Parnell’s life, and even her squalid husband, Captain William O’Shea—all seem larger than life. And Gladstone’s extraordinary combination of oratorical force, single-minded will-power, charismatic inspiration, profound religious faith, capacity for self-deception, institutional and political creativity, high ideals and low cunning has no equivalent today. Colin Matthew, who edited most of Gladstone’s voluminous diaries, wrote that they described Gladstone’s “strivings to harness his will and his passions to the service of God.” It is hard to think of any modern politician—or indeed any other leading politician in the 19th century—of whom that could be said.

The story is extraordinarily convoluted. To tell it in full would need a substantial volume. The most I can do here is to pick out a few central themes. The first and most obvious is the leaden weight of Irish history that shaped the assumptions and behaviour of all the participants. In the 18th century, Ireland was effectively a colony, whose native population—the Catholic Irish—were kept down, ultimately by force, but more immediately by cruel and humiliating penal laws that effectively deprived of them of civil rights. Catholics could not bear arms, then an essential attribute of gentility; they could not practise law; and they could not vote in elections to the Irish parliament. The penal laws had gone by the middle of the 19th century, but the Irish famine of the second half of the 1840s inflicted a demographic catastrophe on the country more terrible than anything in the preceding century. Memories of it festered in the minds of the Irish diaspora in the United States and were revived by the lesser famine of the 1870s.

Not surprisingly, opposition to British rule frequently took violent forms. The IRB—the Irish Revolutionary Brotherhood, the so-called “Fenians”—were part of the context within which constitutional opponents of British rule had to operate. The great question facing the Irish party in the House of Commons was how to reconcile the “Fenian” tradition with the constitutional one; and how to fit in with the mores and atmosphere of the still largely aristocratic House of Commons. As Conor Cruise O’Brien has shown, this apparently unpromising context was tailor-made for Parnell—a Protestant Irish landlord, an alumnus of Cambridge University, a hereditary member of the Protestant Ascendancy, yet at the same time endowed with a rare combination of personal magnetism, political nous, strategic vision, and, until his terrible fall, rock-like fidelity to the Irish cause.

As I suggested above, in the current debate over Scottish independence, federalism is the dog that hasn’t barked in the night. In the debate over Irish home rule in 1880s, it barked quite frequently and fairly loudly. A leading dog handler was Joseph Chamberlain, who saw—or claimed to have seen—that the federation of Canada was a model for the relationship between Ireland and the rest of the UK. People of English stock, Chamberlain declared, had a special gift for “working out the great problem of federal government”: Canada and the US were examples. In the Commons debate following his resignation from Gladstone’s government, he “raised the possibility of federation,” as his latest and most authoritative biographer puts it, as an alternative to home rule. Chamberlain’s political style was harshly rebarbative. He was a confronter, by nature, not a conciliator; a splitter not a unifier. There was a noble grandeur about Gladstone’s Damascene conversion to Irish home rule. It is all too easy to see Chamberlain’s response as spiteful and opportunistic; and Gladstone’s admirers then and since have seen it in just that way.

The truth is more complicated. Chamberlain had won his spurs as a reforming Mayor of Birmingham, immersed in the nitty-gritty of slum-clearance, water supply, road-building and park provision. This “gas and water socialism”—the vigorous and constructive use of public power to improve social conditions on the ground—was Chamberlain’s apprenticeship. He approached national politics with the same impatient energy. His famous “Unauthorised Programme,” designed to “grapple with the mass of misery and destitution in our midst,” as he put it, was avowedly socialistic. All this was anathema to Gladstone. He was viscerally hostile to anything that smacked of socialism. He was for a limited state, not an interventionist one; partly because of this, he gave a higher priority to the national grievances of the Irish than to social grievances in England and Scotland. Temperamentally, politically and philosophically, he and Chamberlain were chalk and cheese.

To me, at least, Gladstone is a much more attractive figure than Chamberlain. But Chamberlain saw—much more clearly than Gladstone did—that the only sure way to bind Ireland into the union was to treat the Irish question as one element in a much wider British question: to reconstruct the British polity on federal lines, making Ireland a state within a British federation alongside Scotland, Wales and England. Chamberlain did not discover federalism during the struggle over Gladstone’s first home rule bill; he had toyed with federalist ideas as far back as the early 1870s. During the crisis over the home rule bill he told a radical colleague that he thought the Westminster parliament should be responsible for foreign affairs, the army, navy, post office and customs; that subordinate legislatures in England, Scotland, Wales, perhaps Ulster and the rest of Ireland should deal with their own internal affairs; that a Supreme Court should adjudicate on conflicts between the centre and the states; and that the House of Lords should be abolished.

In terms of the day-to-day politics of the moment, this was patently not a runner. Gladstone was Prime Minister, in close touch with Parnell. He and his future biographer John Morley were preparing a government bill that, as Colin Matthew put it, turned “a slogan into the fine print of legislation.” He was not about to give way to an insubordinate minister peddling remarkably inchoate and confused new slogans. Gladstone’s ideas developed slowly, through serious reading and long reflection. But once he had reached a conclusion, his mind locked onto it like the jaws of a man-trap. According to his biographer Richard Shannon, a visitor to Gladstone’s home at Hawarden in the winter of 1885-6 found him:

"so excited when he talked about Ireland, it was quite frightening. He ended the conversation by saying, “Well it has come to this, we must give them [the Irish] a great deal or nothing.” And I answered with some warmth “then nothing.” Upon which he pushed back his chair with his eyes glaring at me like a cat’s, he called to his wife that it was time to go out."

Few people could prevail against Gladstone’s glaring cat’s eyes, and an insubordinate Chamberlain was not one of them. But it doesn’t follow that Chamberlainite federalism could never have been a runner in any circumstances. A crucial question is whether Parnell and his party would have been satisfied. Of course, there is no way of telling. But it is worth noting that on the touchstone issue of whether Ireland would continue to be represented directly in the “imperial” parliament at Westminster, Parnell seems to have had an open mind. For Chamberlain this was the crux of the home rule dispute. If there were no Irish MPs at Westminster, if Ireland would be the only part of the UK without representatives in the “imperial” parliament, Chamberlain’s federalist solution to the home rule crisis would be dead in the water. Ireland would follow its own path—a path that would sooner or later lead to Irish secession from the UK. But if Irish MPs remained at Westminster, with a separate Irish legislature in Dublin dealing with domestic Irish affairs, the Irish settlement might pave the way for a federal United Kingdom.

Originally, Gladstone wanted to retain Irish MPs at Westminster, but he blenched at the implications, notably what we know today as the “West Lothian question.” If Irish MPs sat in the House of Commons, and if they were allowed to vote on all the matters that came within its purview, a serious imbalance would result: Irish members would be able to vote on specifically English (and Scottish) matters, though English and Scottish MPs would not be able to vote on the equivalent Irish matters since they would have been devolved to the Irish legislature. But if Irish MPs were allowed to vote only on “imperial” matters and not on English ones, a majority on “imperial” questions might be a minority on English ones. Collective and individual ministerial responsibility to the House of Commons, a fundamental principle of the Westminster model of parliamentary government, would be fatally undermined. The logical answer was federalism, but for Gladstone that was a bridge too far. In the end, the 1886 home rule bill kept Irish MPs out. In doing so, it split the Liberal Party, ensured the defeat of the bill, turned Chamberlain into a bitter and deadly foe of the British liberal tradition, led to 20 years of Conservative hegemony, and thrust hopes of British federalism into a deep freeze in which they still languish. It is time to switch the freezer off.

What would a federal United Kingdom look like? The inspired opening words of the US Constitution—“We the people”—point the way to the answer. The founding fathers of the American republic faced a conundrum: how to marry executive power to republican liberty. Their solution was to locate sovereignty in the whole American people; and to ensure that the people could exercise their sovereignty both on the state and on the federal level. Power would check power and the threat of executive aggrandisement would be held at bay. Last, but not least, the package was codified and transparent. UK federalism would not follow the American example in every respect, but the three great pillars of American federalism—codification, checks and balances and popular sovereignty—would be of its essence.

In one crucial respect, however, the framers of a federal constitution for the UK would face a problem with no American counterpart: the problem of an overmighty (or perhaps just overweight) England. England contains almost 84 per cent of the UK population. Scotland has just under 8.5 per cent, Wales just under 5 per cent and Northern Ireland just under 3 per cent. There are wide variations in the state populations in Germany, and still more in the US, but no German or American state towers over the rest in the way that England does. One possible solution would be to divide England into regions with the same powers as those of the non-English nations. But that solution pays too much heed to symmetry and too little to sensibility and self-understanding. The Scots and Welsh are not the only ancient peoples to emerge from under the carapace of the British state: the English have done so too. The Campaign for an English Parliament, which is now a feature of the landscape, and the proliferation of St George’s flags at appropriate moments in the calendar are signs of that. A federal United Kingdom with four states, one of them much more populous than the other three, would be an oddity. But it would reflect the odd history which has made this country what it is. If the peoples and political classes of the United Kingdom want to make it work, they will. If they don’t, break-up is inevitable.