Resisting the Restoration

Sunday National, 18th April 2021.

“The choice is basically this: Does Scotland want to be a small, independent nation, likely back in the EU but with new barriers to trade and travel with the rest of the UK; or does it wish to remain in the UK, with its own powers over some areas but subordinate to the will of the English majority on others?” It’s a good question – you just don’t expect to hear a dyed in the wool civil servant with impeccable British state credentials asking it.

Ciaran Martin was constitution director in the Cabinet Office between 2011 and 2014, responsible for negotiating the rules for what became the Edinburgh Agreement with the Scottish Government, paving the way for the first independence referendum seven years ago. This week – in his new role as Professor of Practice at the University of Oxford’s Blavanik School of Government – Martin offered a startlingly candid account of the state of the union as he sees it and the serious jeopardy the UK government now finds itself in as it attempts to address the little territorial difficulty which has emerged on its northern frontiers.

Martin’s assessment is pessimistic: Boris Johnson’s room for manoeuvre is limited, and the UK government now faces a simple choice: “whether it will try to maintain that Union through force of law, or to win renewed consent for it in people’s hearts and minds. It is one or the other.” If they decide to follow the first course, “a century of union by consent would effectively come to an end: the Union would become an entity sustained by law alone.”

But the materials for winning those hearts and those minds also appears scant. Since 1998, the UK government has attempted to ease constitutional pressure using salami-slicing tactics, adding a power here and a power there to the Scotland Act in the hopes of maintaining the old hegemony by incremental changes, delaying the inevitable confrontation with the more basic question of whether Scotland should govern itself.

But as Martin points out, we’ve reached the end of that road – and if anything, the Tory administration in London seems inclined to put the vehicle into reverse gear. “Viewed from the perspective of 2021, the devolution settlement is unlikely to expand, as it has nowhere further to go. Long term, it is more likely in fact to be rolled back, given the current political mood amongst Conservatives, who are increasingly vocal that the whole enterprise was a mistake.”

Look at the evidence of the last half-decade. The Sewel convention, he argues, is “now effectively gone.” The convention that Westminster won’t legislate on devolved matters without consent is a dead letter in the Scotland Act – beautifully enshrined in law but ignored as a matter of practice, now more routinely honoured in the breach rather than the observance.

Think of the Internal Market Act. Over all of the objections out of Cardiff, Edinburgh and Belfast, it “confirmed the powers of the UK government to act directly in devolved areas,” demonstrating that “there are no limits to the powers of Westminster to curtail the powers of the devolved bodies” – and critically, an increased political willingness to do so.

Holyrood is a “creature existing entirely at Westminster’s pleasure,” a beefed-up regional authority with as much constitutional significance as the Handforth Parish Council. “During the Brexit process, it was treated commensurately,” Martin says. “A 50-plus-one majority in the Commons is all that matters in UK politics, if the government chooses to govern in that way. And it did.” And critically, this UK government – which is currently polling 14 points ahead of Keir Starmer’s Labour Party – shows every intention of continuing to do so for the foreseeable future.

Martin’s account also indirectly highlights a palpable change in the UK government’s appetite for risk in its handling of the devolved institutions and its willingness to use its legal box of tricks to remind devolved parliaments of their proper station in Britain’s constitutional life. Back in 2011, we’re told there was “a real fear in London of the constitutional conundrum ending up in court” and the “spectre of UK law officers arguing in a public court that Scotland cannot decide its own future, even having voted to do so.”

As we saw this week, the current administration in London shares few of those anxieties, brazenly despatching two Holyrood Bills on children’s’ rights and local autonomy to the Supreme Court. Tory MPs chafe and girn about the UK Supreme Court making constitutional decisions when it comes to decisions of the UK government and Parliament – but they’ve shown they’re perfectly happy to subject devolved institutions to the Court’s verdicts.

None of this comes as news to any supporter of Scottish independence with eyes to see and ears to hear – but it is fascinating to hear these reflections and these anxieties articulated by a former functionary rooted so firmly at the heart of the British state. Ciaran Martin wasn’t the only senior civil servant breaking cover this week. Philip Rycroft – formerly Permanent Secretary at the Department for Exiting the European Union – published a savage report entitled “Union at the Crossroads Can the British state handle the challenges of devolution?”

Writing with Professor Michael Kenny, Rycroft presents a picture of a Whitehall which – more than twenty-years after devolution took effect – continues to contemplate the existence and significance of devolution with a stunning level of indifference and arrogance. In recent years, the UK government has attempted to reverse this “devolve and forget” dynamic by trying to stick a union flag up every pole – but the problems Rycroft and his colleagues identify in Whitehall are problems of political worldview – not patriotic branding.

The report describes a “relative ignorance of, and considerable indifference towards, devolution right across Whitehall” observing that “few ministers were inclined to accord the Union political priority even after the
shock of the Scottish referendum.” They identify a “complacent and frequently un-strategic mindset” when it comes to Whitehall’s dealings with any centre of political power outside SW1. Essentially: devolution might as well not have happened for most of these people.

This might strike you as a bizarre state of affairs in a well- ordered democratic country – but it is entirely in keeping with the UK’s dysfunctional constitutional history. You’ve often heard the voice of Tom Nairn often enough in this column. Over forty years ago, Nairn put his finger on the critical fact about the British constitution which continues to destabilise the current regime and explain the indifference identifies in the reports this week. The UK, Nairn argued, has always been “unable to contemplate radical reform of the centre, since its whole modern history has been built on avoiding it.” Today is no different.

For Nairn, “there was no real belief in a new partnership of peoples” in the UK, because making that rhetoric into any kind of political reality “was never conceivable without the most radical reform of the centre itself. To give effective power away meant examining, and changing, the basis of power itself: the Constitution, the myth-source of sovereignty, and all that it depends upon. The whole British political system had to be altered. There has been no serious question of doing this, for the sake of the Scots, the Welsh and the Ulstermen.”

The phenomenon described by Kenny and Rycroft isn’t an accident of chance or happenstance, or some minor folly or oversight. These people aren’t daft. Suggesting Whitehall has simply “failed to adapt to devolution” ignores the fact this tunnel vision is intrinsic to Whitehall’s organisational culture and the political culture it serves.

It also ignores the fact that the current UK government shows a clear ambition to revert to a more traditional mode of UK constitutional governance – and they powerful assistance they’ll receive in this endeavour from civil servants Kenny and Rycroft argue haven’t adapted to a more pluralistic
understanding of how the UK is governed.

Colm O’Cinneide put it well this week: post-Brexit Toryism shows every sign of a wanting to return to the concentration of power in a sovereign UK Parliament dominated by the executive, dismantling other centres of resistance, and restoring a vision of national politics where “Westminster served as the dominant locus of political activity, and the focus of democratic life.”

There’s no comfortable space for devolution in that worldview. The fact they do things differently in Wales, Scotland or Northern Ireland can be ignored – but it cannot be meaningfully accommodated in this new restoration. In contemplating the dangers for devolved politics, and considering their ballots in this elections – Scots should have no illusions.

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