The British Way
H.C.G. Matthew on devolution
This, if I understand it, is one of those golden moments of our history; one of those opportunities which may come and may go, but which rarely return, or, if they return, return at long intervals, and under circumstances which no man can forecast.’ Thus Gladstone, unsuccessfully commending to the Commons the first Home Rule Bill, for Ireland, in 1886, a Bill which set the terms of discussion about major constitutional change in the United Kingdom and established categories which remain remarkably unchanged today, as we face up to Scottish and Welsh devolution. Gladstone captured the initiative from the federalists and the out-and-out separatists, by presenting ‘home rule’ as a beguiling autochthonous solution. Federalism was and is systematic and logical, but it lacks a historical or national base. Home Rule recognises the existence of nationalist groupings which can express a demand for devolved power through their elected representatives at Westminster, and does so without the need for a priori constitutional planning or a constitutional convention. Federalism would need a new constitution, Home Rule devolves within the old one.
The proposals of 1886, 1893 and 1912-14 met with a hostility unmatched in British politics since the Napoleonic Wars. This was only partly because of the Ulster question. Home Rule was felt to be a betrayal of all that England had worked to create over the preceding five centuries: a United Kingdom with a clear and simple sovereignty expressed through the statutory and executive powers that the Crown-in-Parliament represented. This equipped the UK to govern its Empire and to fight its wars. Individual rights were to an extent safeguarded by the Common Law, but by the late 19th century this was fast being eroded as an effective balance to statutory power. The UK at its zenith was an engine of exceptional sovereign power. But because power could shift at general elections, it had to be deployed with caution and restraint.
The Conservative Party’s insistence on the purity of this sovereignty and its willingness to use the House of Lords to block Home Rule Bills passed by the Commons were high-risk strategies: if there was no ‘give’ there might, in time, be a great deal of ‘take’. This, indeed, was what happened in Ireland, where the Home Rulers, despite their frustrations, remained Home Rulers from the 1870s until the outbreak of the First World War; but once war began, with the struggle of 1912-14 still having produced no parliament in Dublin, other, quite different forces gained ascendancy and the demand for Home Rule was soon replaced by republican separatism. Too late, the Conservative Party (the majority party in the Lloyd-George coalition) responded with the Government of Ireland Act 1920, which conceded the principle they had for the previous forty years declared wholly unacceptable.
Unionism continued for much of this century to have a powerful appeal in Britain, and not only within the Conservative Party. The new Labour Party, though it was committed from the start to Home Rule-all-round (the movement which also included Scottish and Welsh Home Rule), found the Constitution as it stood highly convenient, even allowing for the House of Lords, which rarely intruded in practice. The nationalisation programme of the 1945-51 Government would have been highly problematic under any other constitution, especially a federal one. The Crown-in-Parliament system allowed the acquisition of property for the nation by statute – railways, coal mines or hospitals – without the possibility of recourse to law by such property-owners as objected. And it enabled national standards to be quickly established in insurance, health and education (the independent schools could have been nationalised without legal difficulty, had Labour been so inclined). Compared with what faced democratic socialist governments elsewhere, the Unionist Constitution was something of a left-wing paradise.
What factors, then, have led to the present remarkable position, in which a Parliament in Edinburgh will be established almost by consensus? Because each Bill responds to a particular nationality and its expression, each Home Rule episode, the present one included, has its own characteristics. But wider and more fundamental changes mean that the Government of Scotland Bill 1998 is a world away, in political terms, from the Government of Ireland Bills 1886-1914, even though their legislative character is quite similar. Two factors are of special interest.
First, the decline of the ‘theory of decline’. The Unionists originally posited a United Kingdom and Empire which was largely an imagined, unhistorical, even anti-historical invention. The supposedly simple and united ‘Empire’ comprised three main parts: the Colonies of European settlement, India, and the post-1815 acquisitions in Africa and the Pacific. In the 19th century the Colonies received what had been denied to the American colonies in the 18th: representative government through the devolution of power from Westminster. Though this had a powerful Whiggish dynamic, the policy was largely bipartisan and two of the main statutes – that of 1867 for Canada and that of 1900 for Australia – were passed by Conservative governments. India was placed under the direct control of the British Government in 1858, but Liberal governments anticipated eventual devolution, and in a sense India already had devolved power, as its government was to some extent independent. Supported by the Royal Titles Act 1876, the Durbar frolickings of Lytton and Curzon, and by an extensive Imperial ideology, Unionists created an expectation of permanence which India’s history did not support; a significant gap grew between expectation and legislative and executive practice. Thus, much of the literature which argues that Britain has ‘declined’ ignores the contemporary acceptance, or even encouragement, of a change which was natural and was not regretted – a point acknowledged by Macmillan and Macleod in that remarkable and under-written episode of 1959-61, when the Unionist Government not only responded to a ‘wind of change’ but actually turned up the speed of the wind machine.
The idea of decline is linked to an assumption of economic ‘failure’ after the 1880s which has also been strongly contested. That Britain lost its remarkable lead in the world league tables was hardly surprising. What was surprising was its ability to maintain a buoyant economy – and to do so while shouldering heavy defence costs. These were initially high because of Imperial responsibilities, but, even after 1945, Britain was slow to reduce its defence capability despite diminishing worldwide commitments. (Other nations were quick to encourage us in this since it saved them money.) The years of Conservative government from 1979 to 1997 were devoted to combating this sense of decline. With their end has come a marked change: the younger generation is not, on the whole, disturbed by ‘decline’ and is amazed to find that other people are. The naturalness of the scaling-down of British power and expectation is now acknowledged, and this is of major importance for Home Rule: a good deal of the baggage of a century has rather suddenly been thrown out of the window.
The second factor is ‘Europe’. Attempts to find a wider economic grouping in which to flourish have preoccupied the Conservative business élite at various times this century. First, it tried tariff reform and closer Imperial integration, and found them politically unacceptable, either to the British or to the Colonies, except in the modest version forced on the Empire in 1931 as the result of the world depression. Forty years later, business strongly encouraged the Government to sign the Treaty of Rome in 1972, but soon found that the European Economic Community was not the simple market which most of them thought they were joining. The European Union, as it has become, is a body which has carried hybrid sovereignty to its most elastic point. Like the Holy Roman Empire (its closest analogy), it is a series of interlocking sovereignties, none of which can be, or expects to be, absolute in the old Crown-in-Parliament sense. To work, the EU needs a mature political culture, which accepts limitations and trade-offs as normal. Initially, the British, and especially the Conservative Party, found this concept of hybrid sovereignty almost impossible to grasp. They saw everything in terms of the Westminster Parliament being ‘subjected’ to changes decreed in Brussels: there was little sense that by signing the Treaty and participating in the Market/Union we had agreed to take part in a great constitutional experiment. But it became clear during the last Thatcher Government and throughout the Major Governments that we had wandered into an impasse. We lacked the political will to extricate ourselves from the EU, but our constant opt-outs made a nonsense of our membership. This was not lost on those parts of the UK which have most to gain from the EU’s subsidy system.
Membership of the EU bears directly on the Home Rule question. First, the ending of the Crown-in-Parliament as the absolute sovereign body has meant that the appeal of the Westminster Parliament as an engine of change is weakened. The Scottish propertied classes, who had long seen Westminster through Unionist eyes, now saw a body diminished, its laws subject to challenge in a higher court. Moreover, they saw a Parliament whose ability to sustain itself was questioned most by those who most defended the exclusive sovereignty it once represented, and an institution which was corrupt, as shown by the Nolan Report. The Scottish working class meanwhile found itself looking to the European Social Chapter and other such reforms as the means to social and economic progress, and less to a British working-class programme of change of the sort offered by Labour in 1945-51.
The programme offered by New Labour was modest, except for its constitutional aspect: the Scottish Labour Party in a Scottish Parliament might be bold where the Labour Party in England was cautious. Conservatives could no longer argue against Home Rule on the grounds that any constitutional change was in itself dangerous to the UK, for it was they who signed the Treaty of Rome and it was their majority which forced through the Single European Act. They could argue that devolution would diminish British negotiating capacity in Europe – an argument of some force – but were in a weak position to do so given that their role as negotiators had been largely negative. Many of the opt-outs they so strenuously sought were not attractive to the Scots and much of the funding which more positive negotiators might have obtained – and in the future probably will obtain – would have gone to Scotland: one has only to travel in Ireland or the south of Spain to see what European money can do for the transport system of a poor agricultural area. Prospectively, European Monetary Union dents one of the most powerful arguments for Unionism: the participation in sterling and the British fiscal system which was always seen by Scottish property-owners as economically critical.
‘Home Rule’ requires not merely a stalemate in the Union, however, but an active demand from the nation it recognises. The Scottish National Party – in marked contrast to the Irish Home Rulers – made independence its first objective in its 1928 constitution. Almost all Scots were nationalist by temperament, enjoying the distinct judicial, ecclesiastical, educational and administrative systems under which they lived. Almost all British institutions had their own organisations in Scotland, from the Scottish Labour Party to the Royal Scottish Society for the Prevention of Cruelty to Children. But virtually none wanted or even contemplated independence, especially since, after the war, all shared in the national standards of the welfare state and its system of redistributive financing, which powerfully benefited Scotland. In the Edinburgh of my youth Wendy Wood was a bizarre figure as she set up her SNP stall at the bottom of the Mound: the Covenant movement of the late Forties got many signatures but no legislative action followed. Indeed, in pursuing independence, the SNP may well have delayed the onset of Scottish Home Rule, which rests on more centrist foundations. The SNP’s decision to support the Home Rule cause in the recent referendum was late and pragmatic.
Why did devolution come to be supported by a large proportion of Scots, whose nerve had failed in the 1979 referendum? Between 1979 and the present, significant sections of Scottish society underwent a traumatic experience unmatched since the early years of the 19th century, and without being shown any sympathy by the English. By 1979, Scottish industrial decline was apparent, but the Thatcher-Major Governments appeared to hasten it with a relish which astonished the Scottish establishment. Today only the heritage museums show that the Forth-Clyde valley was once the core of Imperial industrialism. The breaking of the working class had an ironic consequence for Unionism. Anti-devolution was usually presented as a middle-class position, but the concept of a British socialist cause had always been as important an integrative factor on the Left as the convenience to Scottish capital of access to the metropolitan financial markets had been on the Right. The British socialist cause had now gone, however, and Labour seemed to want to use the unitary Constitution for one major purpose only – constitutional reform. Similarly, the internationalisation of finance and the abolition of exchange controls meant that the financial class of Edinburgh and Glasgow was much less worried about having a British base. Moreover, North Sea oil, though never quite the vote-winner the SNP hoped it would be, emphasised the lack of control which the Scots had over their own affairs; and the Scottish military tradition, so important an element of Unionism, was undermined by amalgamations among the historic local regiments.
Then there was the poll-tax. It would be hard to imagine a crasser blunder for the Unionist cause. Using the Scots to conduct an experiment in punitive and regressive taxation was an extraordinary manoeuvre – as if Joseph Chamberlain had been allowed to impose food taxes on Scotland in 1903 to see how the English might react. It emphasised that Scotland was separate and reminded the Scots that the Unionist Constitution – in earlier times so convenient – could be used as an efficient means of repression against which there was no redress, short of capturing power at Westminster. Even in the early Nineties, that seemed unlikely. The significant move towards devolution among the influential Scottish institutions took place well before the likelihood of a non-Unionist majority at Westminster became apparent.
Equally telling was the movement of opinion within the Scottish professional class, which had opposed Home Rule vehemently from the 1880s onwards. This class had always been, by its own lights, staunchly patriotic; indeed, the follies and iniquities of its London equivalent were the staple of its gossip. Although it thought of itself as strongly laissez-faire, in fact it worked closely with the many government agencies in Scotland, supplying much of the business and professional labour which ran them. The assault on such bodies by the Tories in the Eighties and early Nineties was not well received. The universities and schools – seen in England as the heart of the problem – were seen in Scotland as the means to the solution. The Scottish professions had always had their own bodies, some of them older than their English equivalents, and these had always been patronised by the South. Scottish governance was fairly thoroughly devolved at an administrative level, but this devolution was only self-sustaining while there was a harmony of interest at the political level. As the advantages of close association with their southern equivalents dwindled, the professional class no longer had any reason to deny the advantage of Home Rule. This is not to say that its members became energetic Home Rulers (though some of them did); but without reliance on their active loyalty, Unionism was certain to be in severe difficulties, and their absence from the Unionist side was perhaps the most striking feature of the referendum debate last summer.
Each Home Rule Bill since 1886 has led to a political crisis – the last one, in 1978-9, occasioned the fall of what many thought might be the last Labour Government. Afterwards, the Labour and Liberal parties in Scotland made preparations designed to gain a high priority for Home Rule should an opportunity recur. In a remarkable political experiment, Labour, Liberal Democrats and others, including the main churches, the Scottish TUC and many local councils – but not the SNP – established in 1979 what became in 1989 the Campaign for a Scottish Parliament which in turn set up the Scottish Constitutional Convention (the word ‘Convention’ having powerful overtones of an anti-English sort in Scottish history). The purpose of this body was to give the concept of devolution specific content, to establish a co-ordinated campaign and to plan for the work of a Scottish Parliament. Previous Home Rule Bills had been concocted almost on the hoof: this one would be thought through. Initially the subject of a good deal of derision, the Campaign established itself as a sort of General Assembly. It risked, of course, staging a Scottish ‘Revolution of the Intellectuals’ – as Namier dismissively called the Continental assemblies of 1848 – for the Campaign was manifestly peaceable, unlikely even to mount the sort of obstruction at Westminster by which the Irish Home Rulers made their presence felt in the 1880s.
The Labour Party realised that the SNP revival might threaten some of its seats if Labour did not outflank independence with a more ‘sensible’ response to the fact that Scotland was clearly anti-Unionist but powerless to act on its beliefs. Labour thus found itself more strongly associated with devolution than it had been in the Seventies. The Labour hierarchy, despite its high Scottish representation, began to be alarmed about England’s reaction. Tony Blair announced that two referendums – one general, one on the taxing powers of the Scottish Parliament – would be held following a White Paper, but before a Bill was introduced into the Commons. This was a bold move, much criticised in Scotland. It implied some alarm about the prospects of a Bill, and the referendums were probably intended as much as a curb on MPs in a Commons with a small Labour majority as an articulation of public opinion. As it turned out, the caution was unnecessary but useful, disciplining the House of Lords rather than the Labour Party, for the new Government’s majority is so large that the Dalyell factor is unlikely to be significant.
We have therefore an unprecedented situation: Home Rule has been strongly supported at a General Election in England, as well as in Scotland and Wales, and subsequently in the two referendums (although the vote was very close in Wales). The White Paper, considerably influenced by the final report of the Scottish Constitutional Convention – in which many Scottish MPs, including Donald Dewar, now Secretary of State, took part – is a cogent document, clearing the way for the straightforward passage of the Bill, whose devolutionary content will be a good deal more thoroughgoing than the 1978 Act. When one surveys the carnage involved in all previous Home Rule legislation this is a remarkable position to have reached.
It is so partly because of the bankruptcy of Unionism. There are arguments against devolution, but the Unionists in 1997 had no equivalent of Dicey’s England’s Case against Home Rule (1886) and their Scottish grandees offered little resistance in the election or referendum campaigns. There was the anticipated squeak from the Scottish branch of the CBI, but it was seen as part of a ritual, not as an effective warning. In 1979, Lord Home’s intervention just before the referendum vote, condemning the Bill, but promising a better version of it from an incoming Tory government, was important. This time round there was only the visit of Lady Thatcher – probably worth several percentage points on the pro-Home Rule turn-out.
In Wales, too, there was a dramatic shift in balance in the 1997 referendum as compared with that of 1979. Though the Welsh Assembly and its area of authority will be much more modest than that of the Scottish Parliament, the shift in opinion since the Seventies, especially in the Labour Party in Wales, is perhaps more striking. The closeness of the Welsh referendum result will no doubt be the excuse for fag-end Unionist resistance, and if there is to be a ‘crisis’ in this round of devolution it is likely to be over the Welsh Bill.
It is not easy to see where these measures will take the British state. So far as formal sovereignty goes, the Parliament and Assembly will be constituted by the Crown-in-Parliament and legislation will therefore be revokable by it. In fact, it would take an exceptional crisis – probably of a military or fiscal character – for this to happen. The Scottish Parliament poses a real challenge to the British polity. Home Rule requires common sense and compromise – just the sort of politics at which we have not been very adept in regard to Europe. Integrating the Scottish MPs at Westminster will not be easy. The Northern Irish MPs have shown what a few people can do to a weak Westminster government with a small majority. There will be too many Scottish MPs not to need a code of conduct to deal with the ‘West Lothian Question’. In the 19th century, one proposed solution was a Speaker’s Ruling on which measures would not be open to all MPs, rather as the Speaker rules on whether a Bill is or is not a financial measure, and this may well be a sensible way forward (since the area of Westminster responsibility will be explicitly reserved, this would be relatively straightforward).
The European dimension is a further challenge, for the Scots will expect a degree of formal representation in European affairs even though foreign and defence policy remain the prerogative of Westminster. It is probably in this area that disruption is most likely, for in its domestic provisions Dewar’s White Paper has one great Unionist element. The maintenance of the ‘Barnett formula’ for differential funding benefiting Scotland may irritate the English (though it will barely register unless Unionists care to make something of it), but it will be a powerful incentive to the Scots to think hard before moving from Home Rule to a call for separation.
England has always been the central problem in thinking about Home Rule. This was exemplified by the Edwardian Unionists, who argued that Irish Home Rule was unacceptable unless it had a majority of English votes, even though the clear majority of all MPs was in favour. For the English, the Parliament in Edinburgh will stand as a challenge at many levels. It will have Standing Orders which abandon the flummery of Westminster. It will show the English regions what they can have if they are so minded. Quasi-proportional representation in Scotland (a mixture of first-past-the-post and a complex additional-member allocation) will be a guide to what a similar system would achieve in England and might hasten its introduction. If enthusiasm for devolution spreads to England and a majority of the population of the UK has a devolved Parliament or Assembly, the Westminster system will begin to topple – devolution works best at a particular not a general level – and a constitutional convention will be necessary to plan a thoroughgoing federal Constitution. This was always the rational way to proceed, but it does not become the practical way in an ancient Constitution until a late stage, as the majority report of the Kilbrandon Royal Commission of 1973 recognised (the minority report by Norman Crowther Hunt and Alan Peacock set out what was in effect a federal alternative, which the English would do well to reread).
As to the Scots, they lead the way. Ulster had its Home Rule settlement from 1920 to 1973, but that was never likely to be a fertile experiment, since, as Kilbrandon remarked, ‘by one of history’s choice ironies’, Ulster had been given ‘a constitution that it did not want and that was designed for another place’. The Scots will be released almost without a struggle, and that may have significant implications for the way their politics develop, since the majority party which has delivered Home Rule is not one primarily dedicated to it, but a party with wider social and economic aims. This should stand Scotland and the Scottish Labour Party in good stead. Home Rule imposes discipline as well as granting freedom and Scottish political parties will take time to get used to being unable to blame the English. It may be that they will continue to do so and, instead of developing what Home Rule gives them, will become obsessed with what Westminster retains. But it may also be that as a Scottish Parliament becomes an accustomed part of the political landscape, the English will conclude that they would be better off alone. We tend to think of the UK being maintained to suit the English, but with arguments for Unionism losing ground in England almost as fast as in Scotland, it could be the Scots and the Welsh who, in twenty years’ time, are campaigning to maintain the Union.
Universities have always been integrally associated with the making and developing of concepts of nationality. The ending of the UK-wide university system – a marked departure from the 1978-79 proposals – passes the Scottish universities into the Scots’ own hands. This is likely to be – in syllabuses, appointments, research and governance – an area of opportunity and of conflict. One of the first moves should be the establishment of a university in Inverness, to associate intellect, teaching and research with the revival of the Highlands and Islands, which must surely be a major priority of the Scottish Parliament. The Parliament will have the power to change the laws of land and inheritance and hence, inferentially, to tackle the extraordinary imbalances of wealth and power in rural Scotland. The Welsh in their Assembly will have less room for manoeuvre, but with a Parliament in Edinburgh, it will be easy for them to expect and request more.
Are we witnessing the ‘Break-up of Britain?’ In a famous essay, Tom Nairn described a Unionism rendered naked by having no more clothes to give away by concession. In this case, Unionism is not conceding devolution, and nasty consequences may flow from that. Gladstone was surely correct in his view that major Constitutional reform in a democracy is most conveniently promoted from the right, as with Ireland in the 1920 Act. It may be that this is the first of a series of steps leading to ‘Eire’ states for the whole of these islands. This, however, seems unlikely. The force of nationalist ideology is at present insufficient, and the attractions of association with Westminster remain considerable. The advantages of scale in bargaining in Europe probably outweigh the ‘small nation’ argument so strongly urged by the SNP. But this cuts both ways: the European experiment both diminishes the importance of single nationalities and eases the role of small nations. A good deal probably rests with the English. If they behave, as they may, as if a single unitary Constitution still exists, and if they change the Barnett funding formula, they will get a swift response. If the English ‘modernise’ – to use the verb of the decade – as they are already doing in London, we may find that in twenty years’ time we have a federal republic. We are at one of those ‘golden moments’ which occur so infrequently and of which we have no experience, except in our role as decolonisers in the Fifties and Sixties. We have grasped the present Constitutional moment with unprecedented resolution, and the first part of the first stage – anticipated for over a hundred years – is almost complete. We are right to proceed by stages – that, rather than Continental systematisation, remains the British way – but doing so means that we have to think about the second stage as we complete the first.