In the aftermath of the Scottish independence referendum and in light of the forthcoming European Union vote, there can be little doubt that Britain is on the move. While this flux and uncertainty is a positive for the SNP and critics of the British status quo, for many elites and experts it produces anxieties. None more so than benign liberal opinion – which believes that for every problem there should be a solution, and often an overarching British constitutional solution at that.
This is the spirit of A Constitutional Crossroads: Ways Forward for the United Kingdom, the new report by the Lord Bingham Centre for the Rule of Law. It brings together an impressive array of the great and good, from John Kay to Linda Colley, Tony Travers and Adam Tomkins. At the outset it invokes the late Lord Bingham, who observed that “constitutionally speaking, we now find ourselves in a trackless desert without any map or compass”.
Your charter for ten
The report’s solution is to codify, formalise and make explicit the arrangements and relationships of Britain’s union state. This would be done via a charter of the union, setting out the powers between the four nations as a first step on the road to a formal constitution. Along the way, it would institute a proper needs-based formula for funding and address the English question.
One of the recommendations which has garnered attention has been the call to restrict a Scottish independence referendum to “once in a generation”, words used by Alex Salmond and Nicola Sturgeon pre-referendum. The report looks at the experience of Quebec, where 15 years elapsed between its two independence votes, and the over 40 years that will have passed between the first UK-wide European vote and the forthcoming one to be held in 2016-17. It hence suggests that at least 15 years should elapse between any independence votes.
This might sound like good common sense and practice. The problem is in the language and context. For one, the report continually refers to an independence vote as a “secession referendum”. Despite being stacked with legal experts and top brass, this isn’t strictly accurate. But it is telling.
The missing centre
More importantly, the whole tenor is that a few gentle tweaks and bits of fine-tuning will get the UK project back working. Across the 80 pages, several factors in Britain’s constitutional crisis are missing and just passed over. The first is the character of the British state. The report focuses on the relationships between the four nations, but is not explicit on what all this means for the centre.
Thus “English votes for English laws” is seen as appropriate in the absence of a “demand-led” sentiment for English regionalism, locating the solution to English governance as nearly entirely within Westminster. But any new constitutionalism has to remake the British political centre. It must recognise that as the UK has devolved to Scotland, Wales and Northern Ireland, it has centralised and become an embodiment of neo-liberalism and a dogmatic interpretation of Britain plc focused on global winners and the corporate class.
Also missing is any discussion of the wider factors which have driven this constitutional debate, namely the economic and social imbalances of the UK, the kind of society and capitalism we live under, the winners and losers, and what if anything can be done to change this. Whether you look at devolution in Scotland, Northern Ireland and to a lesser extent Wales, constitutional reform has occurred in recent decades when two factors have been at play: a palpable feeling of a democratic deficit, and a belief that reform could contribute to a wider reinvention of the social compact.
In short, the report critically lacks a sense of political intelligence and understanding of the dynamics and forces at work in the United Kingdom, Scotland and elsewhere. This sort of enlightened reform would have been possible 40 years ago, when the constitutional debate was at an earlier stage, and when people were prepared to be more trusting and deferential towards elites and experts. In the current era, however, it feels out of time.
The solidarity question
Over the next decade or so there will be a lot of reports by groups such as this. They are undoubtedly not harmful, and will bring together the great, the good and the civic-minded, thinking and believing they are contributing to the great affairs of state. Actually they are responding to a crisis, making a call for retreat from the onward march of democracy. If the report started by acknowledging the contributors’ own self-interests and understandable human fears and emotions, they might seem more human.
Such constitutional reports also have to raise their gaze and address the strange state of Britain beyond the narrow legal definition. This isn’t just a constitutional moment, but a time when a growing part of the British population realise that the existing state of Britain – economically, socially, culturally and democratically – increasingly doesn’t work for the vast majority. The report regularly invokes the principle of “solidarity” across the UK, but nowhere is this fleshed out or examined in practice. Instead it is left hanging as constitutional grand rhetoric.
This is about power, legitimacy and the nature of society. The UK social compact which bound together elites and citizens has been repeatedly trashed by those with power in recent decades. That is what drives much of the constitutional debate, no matter how much worthy exercises like this try to put the Humpty-Dumpty nature of the UK back together in a tidy, rational manner. What kind of Britain do we collectively want? What does economic and social solidarity mean in the disunited kingdom? Is the UK still a union state with all its looseness and hybrid nature, or could it become a union of states, where Scottish independence sits within some kind of pan-British confederation?
The project of the Conservatives is towards a regressive “back to the future” world of a minimal, punitive state far away from solidarity and which decouples itself from Europe – another thing this report is completely silent on. Challenging and defeating that political vision is one the great tasks on these isles, and the sheer ambition and ideological nature of that fantasy-land Britain is something liberal opinion has consistently underestimated and not understood for 40 years. This has cost Britain and British politics dear.
One question you will not find examined here, which matters for all of us is whether it is too late to imagine a pan-British progressive vision which challenges the Osborne/Conservative economic and social project. That is what think tanks, expert opinion and even the current British and Scottish Labour leadership contests need to begin addressing.