Our National Hodgepodge

Colin Kidd and Malcolm Petrie

Despite Theresa May’s calls during the election campaign for national unity, Britons don’t really live in a nation-state but in a multinational composite state, whose lineaments were set in the period between the Glorious Revolution of 1688, which established the principle of parliamentary sovereignty, and the Hanoverian accession in 1714. With the defeat of Catholic supporters of the deposed James II in Ireland – then a subordinate kingdom belonging to England – in 1690, sectarian divisions, which foreshadow the differences between today’s Ulster unionists and Irish nationalists, became more deeply entrenched. Gibraltar was acquired in 1704 during the War of the Spanish Succession, with British possession confirmed in the Peace of Utrecht (1713). In the interim, the Treaty of Union (1707) brought together under a single crown-in-parliament the separate kingdoms of England and Scotland. For 250 years the shared enterprises of empire and warfare tended to obfuscate the fictive character of British ‘nationhood’, though not of course to Irish Catholics. But Brexit has opened up major fissures between the Westminster state and the component parts of this Greater England. Scotland and Northern Ireland both voted decisively against Brexit, and it still seems likely to prove controversial in both territories, despite the Tory revival in Scotland and the success of the anti-EU Democratic Unionist Party (DUP) in Northern Ireland. In Gibraltar – the only British Overseas Territory in the EU – a near unanimous 95.9 per cent of the population supported Remain. Can Gibraltarians – any more than the Scots or Northern Irish – have confidence that an anglocentric, tabloid-tethered UK government will negotiate on behalf of their real interests?

Twenty years ago New Labour thought devolution would reinvigorate Britishness. As George Robertson, one of Blair’s Scottish lieutenants, put it, devolution was meant to ‘kill nationalism stone dead’. It didn’t quite work out like that in Scotland, and south of the border voters proved uninterested in the regional assemblies floated as the English component of this agenda. Devolution also brought to light troubling inconsistencies previously hidden in the recesses of the unreformed state, most obviously the extent to which the Barnett formula, which determines the amount of Treasury funding given to the separate countries of the UK, operated to the seeming benefit of Scotland. On this topic the English nationalist wing of the Tory Party, Ukip and the SNP are in lockstep; the irritation caused by Barnett feeds English resentment of a feather-bedded Scotland, and in turn allows the SNP to feel happily indignant at eruptions of Scotophobia. Now Brexit threatens to shed a similarly unwelcome daylight on other anomalous features of the multinational state.

Here English and Scottish nationalists part company. While Scottish nationalists hope – quite properly – to repatriate Brussels-based powers in devolved matters such as agriculture to Edinburgh, May’s government has – whether out of ignorance or Middle English nationalism or both – signalled an intention to roll back devolution. The 1998 Scotland Act is explicit that all matters – unless expressly reserved to Westminster – belong to the remit of what is, significantly, a Scottish Parliament, not a mere assembly. May, however, has appeared intent on creating a very centralised post-Brexit UK single market, with London replacing Brussels as the regulatory enforcer of common standards.

In her speech to the Scottish Conservative conference in March, May issued what sounded to some Scots like a threat: ‘We must take this opportunity to bring our United Kingdom closer together.’ She stressed the need for measures that would maintain ‘the coherence and integrity’ of the UK. New Labour’s ‘devolution settlements’, she warned, ‘were designed in 1998 without any thought of a potential Brexit’. As EU-level powers were repatriated, it would be important to see that these ‘powers sit at the right level to ensure our United Kingdom can operate effectively in the interests of all of its citizens’. There was no scope, it would appear, for much variation on the devolved fringes.

The Conservative election manifesto continued in the same rhetorical vein, emphasising ‘unity’ and ‘integrity’. It did pledge that ‘no decision-making that has been devolved will be taken back to Westminster.’ But this missed the point: everything is implicitly devolved that is not specifically reserved. The manifesto raised the expectation that Brexit will lead to ‘a significant increase in the decision-making power of each devolved administration’, only to note that ‘as we leave the EU no new barriers to living and doing business within our own union are created. In some areas, this will require common UK frameworks.’ Theoretically, in the absence of requirements to conform to EU law, the devolved legislatures could – barring a London power grab – diverge further from one another and from Westminster. That was precisely the way devolution was sold to the Scots: the scope for legislative divergence on non-reserved matters was said to offer a solution to the ‘democratic deficit’ of the Thatcher-Major era, when Westminster imposed its fiat on Labour-voting Scotland.

The potential vulnerabilities of Scottish devolution were also made clear by the Supreme Court’s Miller judgment in January. Last year’s Scotland Act, the legislative response of the UK government to the 2014 independence referendum, stressed the ‘permanence’ of the Scottish Parliament within the UK’s constitution and professed to place on a statutory footing the so-called Sewel convention: that Westminster would ‘not normally’ legislate on devolved matters without the consent of the Scottish Parliament. However, the Supreme Court’s ruling that the government could not use the royal prerogative to trigger Article 50 without explicit parliamentary sanction also confirmed Sewel as the political bromide cynics always suspected it to be. The Sewel convention is, the court declared, an ‘expectation’ not a guarantee, a political undertaking unenforceable in law, which just happened to work during the cross-border Labour ascendancy of the Blair era. It’s perfectly possible that as powers return from Europe to the UK, the competencies of the Scottish Parliament will be circumscribed without consultation.

In Northern Ireland Brexit compromises the architecture of the peace process erected since the 1980s by successive UK and Irish administrations, a situation compounded by the reckless haste with which May solicited the support of the DUP after her electoral humiliation. As well as requiring the UK and Irish governments to act as impartial arbiters between unionists and nationalists, the 1998 Good Friday Agreement refers explicitly to shared membership of the EU as a source of cross-border stability. The devolved power-sharing regime in Belfast is, like its counterparts in Edinburgh and Cardiff, constrained by both EU law and the European Convention on Human Rights, safeguards that helped reassure the nationalist community that devolution would not degenerate into a vehicle for Protestant domination in the manner of the pre-1972 Stormont parliament. The legal decision that this didn’t present a barrier to Brexit was unsurprising given the importance attached to parliamentary sovereignty in UK constitutional law: arguably the 1998 Northern Ireland Act, which implemented the devolution settlement, has no special constitutional status, and may be amended as Parliament sees fit.

The Good Friday Agreement, and the earlier Anglo-Irish Agreement of 1985, represented an acceptance by Westminster that, if there was to be a lasting peace in Northern Ireland, the legitimacy of the Irish government’s role in the province’s politics had to be acknowledged. In this sense, the agreement encapsulated the most radical aspect of New Labour’s constitutional reform programme: the concession that there were limits within the UK to Parliament’s authority. The government’s recent white paper on Brexit noted that the 1998 agreement was endorsed by Northern Irish voters in a referendum; it neglected to mention the concurrent referendum in the Republic, which endorsed the amendment of Articles 2 and 3 of the Irish constitution, and the renunciation of Dublin’s historic claim to a ‘national territory’ encompassing the whole island. The Republic agreed that there would be no united Ireland until a majority in the north supported it; in return, the UK undertook to uphold the result of any poll on the question. This understanding of Northern Ireland as a site of overlapping, parallel jurisdictions and identities was extended to individuals, with the agreement allowing those born in Northern Ireland to claim either British or Irish citizenship (or both), a right which, the public were assured, would not be affected by any alteration in Northern Ireland’s constitutional status. This measure would allow unionists to retain British citizenship in the event of Irish unification.

Military checkpoints were in place during the Troubles, but the border between north and south has rarely, if ever, functioned as an international frontier. After the establishment of the Free State in the early 1920s, a Common Travel Area (CTA) operated between the UK and Ireland, removing the need for passport checks. Even after Ireland rejected dominion status and left the Commonwealth in 1949, the newly declared Republic was not treated as a foreign country by the UK, and Irish nationals retained privileged status. The entry of both countries to the EEC in 1973 reinforced these provisions, with customs controls disappearing in 1993 on the arrival of the single market.

Brexit as currently envisaged raises the dismal prospect of immigration and customs checks being carried out at a border that, for practical purposes, no longer exists. Before the general election, the government declared its commitment to ensuring the continuation of the CTA, and preventing the emergence of a ‘hard’ border in Ireland; indeed, the Brexit white paper called for a border as ‘seamless and frictionless … as possible’, open to both goods and people, and maintained that the ‘people of Northern Ireland will continue to be able to identify themselves as British or Irish, or both, and to hold citizenship accordingly’. Co-operation with the DUP, which, despite its support for Brexit, wants to avoid customs controls, may lead to a ‘softer’ Brexit, but this is heroic optimism. It is unclear on what basis the UK government feels able to issue guarantees of Irish citizenship, especially as it would, presumably, enable the residents of Northern Ireland to claim rights as EU nationals. In her Lancaster House speech in January outlining the priorities for Brexit, May seemed to say that since the CTA predates UK and Irish membership of the EU it would be possible simply to revert to the pre-EEC status quo. It is true that the CTA is recognised by EU treaties and that the guidelines agreed for the Brexit negotiations by the European Council include an acceptance of the challenges facing Ireland as a result of Brexit, and a willingness to recognise existing arrangements where possible. But the CTA was never intended to operate asymmetrically, and it’s unclear how it will be viewed once the UK has left the single market and assumes third-party status.

The assertion that the CTA will survive unaltered is one example of the credulous nostalgia typical of pro-Brexit rhetoric. The common travel area also includes the Isle of Man and the Channel Islands: the hierarchy in this arrangement between Britain and its closest economic dependencies is clear. To suggest that the difficulties Brexit will create on the island of Ireland can be resolved merely by reverting to the CTA is to believe that the hierarchies of UK-Irish relations have remained unchanged since the 1970s. May’s determination to treat the referendum result as an unequivocal rejection of free movement has meant that the border with Ireland is viewed primarily as a potential weak point in the UK immigration system. One rumoured solution is the transfer of UK immigration controls to ports and airports in the Republic, a suggestion that, as the House of Lords EU committee noted, has been received in the South with a ‘mix of scepticism and incredulity’. The former taoiseach Bertie Ahern told the committee that the idea was ‘frankly unbelievable’ and demonstrated a ‘total lack of understanding of how people think north and south in either tradition’.

Europeans, including the Irish government, have paid more serious attention to such difficulties. Michel Barnier, the EU’s chief Brexit negotiator, addressed the Irish parliament in May, reaffirming the EU’s commitment to the peace process, and to avoiding a hard border. In this context, and given the practical impossibility of enforcing the 300-mile Northern Irish border and the economic damage to the province were it attempted, by far the most likely outcome is that the UK government will be forced to concede free movement between north and south, with immigration checks conducted in Britain for all arrivals from Ireland. This was the solution reached in 1939, the only previous time immigration controls have been implemented; until these lapsed in 1952 Ireland was, in this respect, a united island. If this is the outcome of Brexit for Northern Ireland, it will be a curious, self-inflicted defeat for the unionist community.

Among the province’s political parties, only the DUP supported the Leave campaign. The Tories’ new ‘friends and allies’ gained influence after the Good Friday Agreement, which split the Ulster Unionist Party; many of its members, including its current leader, Arlene Foster, defected to the DUP, which opposed the agreement. A quarter of the DUP’s members today are former UUP members. This changed the character of the DUP. In the mid-1990s 56 per cent of DUP members belonged to the Free Presbyterian Church, set up by Ian Paisley; a decade later this had fallen to about 13 per cent. The DUP’s activists are still God-fearing, Sabbatarian and staunchly Protestant, but are drawn from a less narrow denominational base, and, awkwardly for the Conservatives, are resolutely opposed to cuts in welfare spending. Paisley’s Save Ulster from Sodomy campaign of the late 1970s still has an influence in a party that opposes both gay marriage and abortion. It also has several prominent members who are ‘young earth creationists’, insistent that the truth of the world’s creation in 4004 bc should be made clear to visitors at the Giant’s Causeway, Northern Ireland’s most popular tourist destination, lest they leave with the misleading impression that the basalt columns are around sixty million years old. Known in Ulster (the term is much preferred to Northern Ireland) as ‘Duppers’, the party’s members are stridently and defiantly British, but dislike all the secular trends of the past half-century in the Gomorrah of godless Great Britain itself. A strain of anti-Britishness, a conditional loyalty to Westminster and a fervent commitment to devolution over integration are central to their unionism. Despite all this, the votes of Duppers may indirectly serve to bind north and south closer together, reducing the significance of the land border still further, while putting up new barriers between Ulster and Britain.

The threat of a hard border also confronts Europhile Gibraltar. In 1969 Franco closed the frontier between Spain and Gibraltar and it didn’t fully reopen until the now democratic Spain was deep in negotiations over its admission to the EEC, which took place in 1986. But even liberal Spanish administrations have sometimes succumbed to the temptation to choke traffic at the border as a means of exerting pressure on Gibraltar and the UK on the question of sovereignty. Various rounds of negotiation between Spain and the UK, which the EEC and then the EU have encouraged, have foundered when faced with the unambiguous position of the people of Gibraltar, 98.9 per cent of whom voted against shared sovereignty in a 2002 referendum (a drop from the more solid 99.6 per cent who voted against a transfer of sovereignty to Franco’s Spain in 1967).

After the 1999 ruling of the European Court of Human Rights in Matthews v. United Kingdom that the UK was improperly denying Gibraltarians and EU citizens in Gibraltar the franchise in European elections, the voters of this overseas micro-state were in 2004 absorbed into the South-West England regional Euro-constituency. The recent success of Gibraltar’s service sector, which has ‘passporting’ rights through the UK’s membership of the EU to sell financial services to the rest of Europe, has been a boon both to locals and to ten thousand or so commuters from Andalucia who cross the border daily to work in the colony. Any attempt to impose a squeeze on Gibraltar’s economy will have knock-on effects back in Spain. However, the main long-term dangers Gibraltar faces are, as the House of Lords EU Committee put it, unwitting policy changes by a post-Brexit EU, ‘when the UK is no longer present in working groups and other EU decision-making fora’, and Spain – unchallenged – will be able to frame measures advancing its territorial claim.

Unlike Gibraltar, the Channel Islands and the Isle of Man are outside the EU, although they currently benefit from special status in European treaties. Since UK accession the economies of Jersey and Guernsey, like Gibraltar’s, have become dominated by financial services, which now employ a quarter of the islands’ workforce. The islands are not members of the single market for services and are technically ‘third countries’ from the viewpoint of the EU; although there were moves to grant the islands ‘passporting’ rights, whether these will materialise post-Brexit appears doubtful. Despite this, the principle of ‘equivalence’ – adhering to a regulatory regime comparable to the EU’s – has allowed them to provide financial services both to the UK and on the Continent. It’s unclear whether equivalence is contingent on the UK’s membership of the EU, but of longer-term concern is what happens if UK financial regulations diverge from those in the EU. This provokes two uncertainties: first, that the islands will be forced to choose between retaining access to markets in either the UK or the EU; second, that the government will put into action its occasional threats to turn the post-Brexit UK into a floating tax haven if it can’t agree a free trade deal with the EU. This would bring the UK into direct competition with the low-tax Channel Islands, and raise the question of whether Westminster can continue to represent the international interests of the dependencies.

The absence of English nationalism has been vital to the longevity of the UK. But the English nation has recently begun to speak. The decisive 53 per cent vote in England for Brexit was tinged with Scotophobia. Nigel Farage told Scots that without English subsidies they would be ‘bankrupt’ and ‘starving’. Cameron’s victory in the 2015 election owed something to an exasperation with Alex Salmond’s boast that the SNP would play kingmaker in the event of a hung parliament. May seems to see the multinational state as a kind of English empire; and on this point she is ironically in accord with the SNP and Sinn Féin. After the Brexit referendum the Conservative and Unionist Party morphed almost overnight into an English nationalist party, with the fantastical anti-Thatcherite credo that the will of the nation is sufficient to buck the market.

The re-emergence of the Scottish Tories offers the prospect of a modulated alternative to the Conservatives’ shrill English nationalist echoes of Ukip over the past year. Burnished by the success of her party in Scotland, the ascendant Ruth Davidson has – since the election at least – distanced herself from the harder-edged visions of Mayism, marshalling her newly swollen bloc of 13 MPs in support of what she calls an ‘open’ Brexit. Douce kirk-goers and pragmatic businessmen, with a leavening of old-style corporatists and some classical liberals, the party north of the border has in recent decades become a musty collection of curios, and, by force of circumstance, necessarily more diffident than its southern cousins. The defence of the Union – or Unions – is, however, a game-changer. As Davidson knows very well, in Scotland there are decisive majorities for both Unions, for the UK and the EU, each of which is ignored by, respectively, the governments at Holyrood and Westminster.

Unacknowledged both by Leavers and Remainers, EU membership has served to disguise the messy contradictions of Britain’s multinational state. The uninhibited restoration of parliamentary sovereignty – in this context, the brute expression of English dominance – is no solution. In recent decades, the EU has helped to ease tensions at national borders as well as serving as a safety net for devolution. Some kind of substitute – or, more likely, an array of alternatives – will be required, if Brexit is not to bring about the disintegration of our anomalous early modern hodgepodge.