Brexit: Britain’s end of empire and Scotland’s constitutional moment
Some supporters of Scottish independence have hailed the Brexit vote as the ‘beginning of the end’ for the United Kingdom. Of course, it is nothing of the sort. The beginning of the end happened long ago. This present crisis is pretty much the end of the end, the culmination of a period of imperial decline and disintegration.
It probably began in 1947, when the retreat of the British Raj from India demonstrated the ultimate futility of military power in the face of a sustained non-violent popular liberation movement. Yet much of the world was still a reassuringly imperial shade of pink. Ceylon and Pakistan were still Dominions. Cultural, institutional and economic links with Canada, Australia, New Zealand and South Africa were still strong. The African, Mediterranean, Caribbean and South Pacific colonies were still some way away from independence and, while elected devolved legislatures had been established almost everywhere, their powers were limited by appointed Governors responsible to the Secretary of State in London.
The Empire was gradually evolving into the Commonwealth, but the values and assumptions of the Empire, and of the British-Imperial ruling class, remained firmly in place. The British-Imperial state had won two world wars through its unique ability to coordinate collective efforts under elitist – but ultimately democratically responsible – leadership. It now turned its attention to running the NHS, the Welfare State, and nationalized industries, confident in the superiority of its historically evolved institutions and in its implicit values of duty and public service.
This was the world into which Theresa May was born in 1956. It is the world to which many Brexiteers look back with fondness and nostalgia – as if, having left the European Union, the United Kingdom could somehow go back to being a global empire. But that ship has not only sailed, it has sunk.
The Suez Crisis proved that the UK, whatever it still was, was no longer an imperial power. By the 1960s, countries were achieving independence in succession almost too brisk to keep count of: Nigeria in 1960; Jamaica in 1962; Kenya in 1963; Malta in 1964; Gambia in 1965, Botswana in 1966. For the most part, it was a peaceful, orderly, process. National elites were co-opted into negotiations. Shiny new Constitutions were drafted, most of them to a Colonial Office template. Independence Acts were passed in Westminster. Across the globe, British flags went down, Royal Marine bands played for one last time, and new national flags went up – fluttering joyfully in the warm ‘Winds of Change’.
Back home, these winds brought a foul backdraft of post-imperial miasma. The British State was formed and forged by empire, for empire. Without an imperial project to unite it, Britain had lost its purpose, ethos and identity. Self-delusion and denial followed. The multi-national British State – with had its origins in a series of ‘Unions’, not unlike those by which ancient Rome had once united Italy under its leadership – was slowly beginning to unravel.
Britain’s Constitutional Crisis
The Scots, of course, had always recognized the multi-national nature of the Union. As seen by Scottish elites, the United Kingdom was not a ‘Unitary state’, but a composite ‘Union-state’, entered into by Treaty for certain common purposes. An appreciation of this distinction marks the crucial difference between Scottish Unionism and an Anglo-centric view of British Nationalism. Scottish nationhood – and even a residual kernel, though obscured, of Scottish statehood – was preserved by the Union, within the wider framework of a global British imperial system.
Darien disasters and handsome bribes aside, Scotland entered into the Union in 1707 primarily in order to share in this emerging imperial system. With poor soil, mountainous terrain and an atrocious climate, Scotland’s elites knew they could not attain prosperity and plenty through agrarian self-sufficiency. During the four centuries of Scotland’s political independence, international trade, especially with the Baltic, Scandinavia and the Low Countries, had been recognised as essential for economic success. By the early 18th century, with England as the rising mercantile and seafaring power, the Union enabled Scotland to participate in the imperial project and thereby avoid geopolitical and economic isolation. The Union allowed Scotland be part of a larger common market, with freedom of trade and travel, with all the opportunities that provided.
English and Anglo-British elites were slower, however, to recognise the multi-national, and essentially conditional, nature of the Union. In response to the unexpected rise of Scottish and Welsh nationalism in the late 1960s, the Kilbrandon Commission offered only some half-baked regionalism. It failed to get to the root of the fact that, without an empire to hold it together, the United Kingdom was a Union which had no purpose or future, only a past.
The problem of post-imperial Britain is, at root, a constitutional one. Every other country in Europe stopped at least once between the eighteenth and twenty-first centuries to have some sort of national conversation, to try to reach consensus about basic rules and principles, and to write these down in a Constitution. The United Kingdom never did. While our governments concerned themselves with the affairs of a global empire, nation-building and state-building efforts within the ‘home nations’ were, at best, partial and sketchy.
The basic institutional founding of the British-Imperial state took place between the Glorious Revolution of 1689 and the Union of 1707. Since then, there has been some incremental reform and an expansion of the franchise, but no fundamental re-constitutionalisation of the State. We did not have a Jacobin revolution in the 1790s, or a liberal-nationalist revolution in 1848 revolution, a collapse of the old order after the First World War, or a social democratic constitutional refoundation after 1945.
So the opportunity never arose for a return to first principles which would have enabled us – perhaps through a specially elected Constituent Assembly – to address such questions as ‘Who are we?’, ‘What do we hold in common? ‘What do we stand for, and what will we not stand for?’, ‘What rights and liberties are of paramount importance?’, ‘How should we govern ourselves?’, ‘How shall we prevent the abuse of power’ and ‘What process should we have for reassessing these things from time to time?’
Instead of addressing these fundamental constitutional issues, the UK muddled through on the twin pillars of parliamentary sovereignty (which means that a government with a majority in Parliament can do whatever it likes) and unwritten convention (which means that all the other rules are made up as we go along, interpreted and enforced by the government of the day, bound only by the constraints of political expediency). A thin and minimal democracy was grudgingly tolerated by the UK’s ruling class, but the principles of constitutionalism and popular sovereignty never were.
For a long time it was argued that, whatever theoretical objections to this absurd system of parliamentary absolutism might be, in practice it worked tolerably well. The rules of the game, although vague, esoteric, implicit and unenforceable, were known and generally respected by a governing class which, for all its other faults, had a sense of public duty, responsibility, and propriety. Where other countries had written Constitutions, supreme courts and checks and balances, the UK had pragmatism rooted in tradition and restrained by a sense of fair play. However loose the written rules might be, some things were simply ‘not cricket’.
The deferential public, used to doffing hats and tugging forelocks since the Norman conquest, was for the most part content go along with this (the few radical agitators not content with it were hanged, transported to Australia, mown-down by the yeomanry, or vilified by the press).
All that, for good or ill, has gone. Whatever validity it might have had during the 18th, 19th and 20th centuries, the ‘Good Chaps’ theory of government no longer holds. It is not just that the rules are flouted with impunity, but that no one really knows what the rules are anymore, or indeed whether they still exist at all. Developed haphazardly in the age of the steam train and the empire, and suited only for gentlemanly politics and a deferential people, the sloppy mess of unwritten rules seem hardly seems fit for the fractured, tense, multi-national UK of today.
The people by whom we are governed today might belong to the same privileged class as their forefathers, but they have all of their vices and none of their virtues. What once could portray itself as a relatively benign aristocracy has yielded to a crass, greedy and shameless oligarchy. The rich and powerful still see politics as a game for schoolboys, but it is more like illicit gambling than cricket. They gamble recklessly with your job prospects and wages, with your parents’ care in old age, and with your children’s education. They play banker and dealer, and they have loaded the dice. These are not the sort of people that you want to be able to make up the rules as they go along. They are not the sort to be trusted with absolute power.
The United Kingdom faces a double constitutional crisis. On the one hand, it cannot recognize its own multinational character and has not been able to reconstitute itself in a way that allows for the equality of the nations within it. On the other, it is stuck with a political system which has become dangerously corrupt, aloof, and undemocratic. Brexit – the decision by England and Wales to isolate themselves, while Scotland wishes to remain in the European Union – is a symptom of the first crisis. The Chilcot report – evidence of bad decisions made by unaccountable and unrestrained power at the centre of the British state – of the second.
These two crises cannot be treated in isolation. The most far-reaching response so far to emerge to this double crisis is a new ‘Act of Union bill’, proposed by a cabal of Westminster worthies led by a Conservative Peer and calling themselves the ‘Constitutional Reform Group’. In so far as this plan for ‘home rule all-round’ would transfer a greater range of powers to the four constituent parts of the UK, it might be cautiously welcomed. However, the bill steadfastly refuse to address the wider and deeper aspects of the UK’s unfolding constitutional crisis: the unrepresentative electoral system, the shadowy and unaccountable crown prerogatives, the fragile protection for human rights, the murky that results from reliance on unwritten rules, and the collapse of both political ethics and public trust. It might have been an adequate patch had it been proposed a decade or more ago, but the time for such partial and piecemeal solutions is over.
A choice between two unions
Indeed, it might well be that the time for any solution to the UK’s constitutional crises has passed. From 19 Sept 2014, when Scotland quite narrowly decided, for the time being, not to become independence, to 24 June 2016, when Scotland decided rather more emphatically to remain in the European Union, I thought it might have at least theoretically possible to come up with a new confederal constitution for the UK, failing that some sort of ‘Home Rule with Full Fiscal Autonomy’ arrangement. This might have provided the sort of life-extending surgical treatment that the 1867 ‘Compromise’ provided for the Austro-Hungarian Empire.
No doubt many Scottish citizens would still prefer to remain part of both the UK and the EU. There are some very innovative proposals in circulation, such as the so-called ‘reverse Greenland’ option, or the plan set forth in the ‘Dalriada Document’ for simply excluding England and Wales (but not Scotland or Northern Ireland) from the European Treaties. These could in theory provide a way of making it possible for Scotland to remain in both the UK and the EU, and the First Minister is right to explore all these options.
However, there are intractable questions of statehood and sovereignty to be resolved and it is hard to envisage any solution that would protect Scotland’s place in the EU while also being acceptable to the UK Government. For example, a reverse Greenland solution would require Scotland and Northern Ireland to jointly take responsibility for making appointments to, and representing the UK in, European institutions, meaning that the UK Government – with responsibility for foreign policy – would have no say in the UK’s European affairs. Given the emphasis placed by English lawyers and Westminster politicians on parliamentary sovereignty, and their in transient aversion to a proper written Constitutions in which powers are shared across the home nations, I do not see how that could be feasible. At most, Scotland’s influence within the UK might be able to secure a ‘soft’ Brexit (an outcome that keeps the UK within the European Economic Area rather than ‘hard’ Brexit that burns all bridges), but that is not likely to be acceptable to the hardline Brexit camp, and is in any case not what Scotland voted for.
So, once all these options have been explored and rejected, we will have to face a straight choice between two Unions. Scotland’s next referendum should be framed in a way that makes that choice explicitly clear. The irony of the situation is that the very same impulses of trade and opportunity, and a desire to avoid isolation, which drove Scotland into the Union with England will drive us out of it.
Reaching and reassuring
The stable cosmopolitan UK that people voted for in 2014 no longer exists. This changes everything. In 2014, those favouring independence could plausibly be portrayed as ‘risky separatists’, while those opposing independence could present themselves both as broad-horizoned internationalists and as cautious pragmatic defenders of the status quo. That is no longer the case.
Scottish independence was then primarily attractive to the social democratic left, who wanted less austerity, a more solidaristic set of domestic policies, and the protection of public services. This package was attractive to the working class, who had been disappointed by the anemic performance of Blair and Brown. But the middle class, if not entirely unsympathetic, remained mostly unconvinced. Scottish independence now has to potential to be become attractive, too, to the Whiggish element of Scotland’s middle and upper classes. It can appeal to the liberal-cosmopolitan Guardian readers, to those who can speak passable French and to those who are more likely to buy jamon iberico from Waitrose than a macaroni pie from Greggs.
Members of this key demographic are now open as never before to being convinced of the case for Scottish independence. But convince them, it will be necessary to provide a series of reassurances – on pensions, on the currency, and on general economic stability. These people do not necessarily want the sort of radical change that the more ambitious Yessers advocated in 2014. They want, above all, to know that things will not get worse, and that independence will save them – and their precious five-bed houses, golf club memberships and holidays in Tuscany – from the carnage of Brexit.
This is where the constitutional question once again becomes relevant. In 2014, it was far too easy for the opponents of independence to portray an independent Scotland as a state of and for nationalists, or as a sort of SNP-only state. The Scottish Government unfortunately and unwittingly colluded in this by setting out a prospectus for the new state which was in essence a manifesto for government. In other words, they created the impression that voting for independence was one and the same as voting for Alex Salmond and the SNP forever.
That mistake must not be made again. If there is to be a Scottish state, it must be a state for all Scottish citizens – rich and poor, male and female, native-born and immigrant, socialist, liberal and conservative. Only a sound constitutional foundation, based on a written constitution that reflects the sovereignty of the whole community of the realm, and cannot easily be amended by the government of the day or the incumbent parliamentary monarchy, can provide this. Only a constitution can establish a common set of ground-rules, principles and institutions that transcend differences of party and of policy.
A broad, inclusive, cross-party constitutional process, including civil society, offers the best hope for creating a new Scottish state in which liberty, justice, stability and good government are extended to all citizens.