Click on Wales

Chapter 1
The present is not an ordinary time

On the 5^th May 2011 the Union received an electoral shock greater than any it had experienced since 1918 when republican Sinn Fein defeated the more polite Irish Nationalist Party. Sinn Fein’s victory soon ended the forced Union of 1801; the SNP’s triumph at the polls threatens the more willing Union of 1707. Ireland was always a restless partner, but should Scotland reassert her political independence, the Union would be null and void. The consequences for Wales, Northern Ireland, and of course England, would be profound. Those unionists who casually predict that an independence referendum cannot be won should remember that prior to 2011 few thought the SNP capable of winning a majority in the Scottish Parliament. To date the debate about the future of the Union has focussed almost entirely on Scotland. This has a certain historical elegance because it was in Scotland that unionism as we know it was forged in the early 1700s. Yet it is the constitutional future of Scotland and Britain that will be decided in 2014 when the Scots cast their ballots for or against independence.

It is always salutary to recall that the UK is not an ancient entity, barely being three score years and ten older than the USA. There has always been something dynamic and incomplete about the Union. This has allowed the UK to adapt to some profound challenges such as the loss of Ireland and the end of the Empire, but there is also the latent danger that the Union may one day dissolve. For a while in the late 1960s it seemed that a new Union was imminent, but the cause lacked depth. When it came to fruition in the late 1990s Labour’s devolution scheme was meant to be limited, definitive and above all safe. Despite the expansive talk of a New Britain, it stopped well short of being a settlement and the basis of a New Union. In this respect the UK between 1999 and 2011 resembled the USA in its transitory period between the Articles of Confederation and the Constitutional Convention.

Devolution quickly turned out to be anything but safe and predictable. More than anything else, Labour did not anticipate the new political dynamic that devolution would release. Most observers also expected Labour’s dominance of Scottish and Welsh politics to continue. (Today, some diehard Tories console themselves with the silly notion that if Scotland leaves the Union, England will be forever Conservative.) Rather than view this dynamism as a sign of political vitality, some unionists now lamely predict that the demise of the Union is inevitable because devolution cannot be contained – it is a political explosion that can only end in independence. Such pessimism is no more coherent than the unionist complacency of a generation ago. What’s more likely to fuel support for Scottish independence is the failure of unionism to reform and become a more exhilarating ideology.

Time is short for unionists. Constitutional questions can generate a momentum of their own and what were once fanciful abstractions can be transformed into practical propositions with disarming speed. Independence is no longer a fringe obsession but the policy of the Scottish Government – and who would have thought that possible in 1999? Of course the character of Celtic independence has changed significantly since the 1960s; indeed it would be more coherent to call it neo-independence today. To many Scots this neo-independence seems more cosmopolitan and less isolated than the separatism implicit in the Eurosceptic attitudes within much of unionism. It is surely a pity that unionist ideology has not adapted itself with any such alacrity and finds itself stuck with a rather 19^th century vocabulary. One would have thought that if Britain is worth defending it would be easy to defend. But a new unionist idiom remains elusive.

This is critical because only a reformed unionist ideology can hope to respond to the momentous constitutional events of our times. Reliance on what one critic calls ‘banal unionism’ may have worked in a quieter age, but it will not do so now. The UK is not alone in facing such challenges – they affect nearly all multinational states, and indeed this is why the debate on the future of Britain has such global significance. If the UK dissolves, would any liberal multinational state view the future with equanimity? Those who advocate a reformed Union must exercise a confident political dexterity. During the Irish crisis of a century ago, the most creative unionist proposals came far too late in the day and under visible duress. By the time a consensus was forged in Britain, Ireland had moved irrevocably down the road to independence. What is needed today is a British policy to save the Union, not a Conservative or Labour one.

Throughout Britain until the 1980s, both the Conservatives and Labour had a political reach that facilitated the operation of a unitary state with a distinctly multi-national character. The Conservative Party had been most strongly identified with traditional unionism, although the Labour and Liberal parties also espoused a clear belief in the Union. Political parties are key to the operation and success of democratic systems and this is particularly so in potentially fissiparous states. It was the case that Labour had particular strength in Scotland and Wales (and periodically weakness in England) but this reflected a broad socio-economic pattern rather than deep national preferences. In the last quarter of the 20^th century this unifying pattern changed abruptly as the Conservative Party declined and then collapsed in Scotland, and struggled in Wales. The Conservative Party is consequently less a party of the Union and more an English party favouring Union. The failure of indigenous Conservatism in Scotland, and to a lesser extent in Wales, continues to threaten the viability of that very same Union. We have reached a situation where such a statement is almost insipid in its unexceptionality. Yet it is surely astonishing that a Conservative PM dare not be seen as too conspicuous in the campaign to save the Union.

One of the most remarkable aspects of the constitutional debate in the UK is the widespread acceptance of Celtic independence as a legitimate option. The basic legitimacy of secession is highly disputed in Canada and Spain, and the Americans fought a Civil War on the question. Indeed it is fair to generalise that most multinational states seek to restrict or deny the principle of national self-determination. But the UK does not. This is salient because what is accepted as permissible is more likely to occur.

Historians are prone to explain the UK’s tolerance of secession by referring to the Irish Crisis, when the alternative was seen to be civil war, or to the fact that the Act of Union 1707 was a treaty between two states. But there is a better if more mundane explanation of British tolerance of secession. Until the 1960s there was little chance of Scottish or Welsh independence ever being viewed as a serious likelihood. Even the nationalist parties concentrated on autonomy rather than independence as their key motivating principle. It was also the age of the centralised, welfare state, and in intellectual discourse there was much talk of the crisis of federalism. More profoundly, at a time when supranational organisations like the EU were much weaker, political philosophers tended to condemn as illiberal the very concept that states and nations should be coterminous. Unionist ideology was correspondingly unreflective. As Colin Kidd has written “Between the mid-eighteenth century and the emergence of the Scottish question in the 1970s, there was no credible, sustained or widely supported Scottish critique of the Anglo-Scottish Union, and as such no call for an articulate ideology of Anglo-Scottish unionism”.[1] Against this background, acceptance of secession was almost blurted out by unionists without thought of its ramifications. In its examination of the case for separatism, the Kilbranden Report on the Constitution made no mention of the impermissibility of secession but focused on the general political and economic arguments for independence. It noted, in a manner that accepted the basic notion of national self-determination within the UK, that the “vast majority of people simply do not want it to happen. We believe that the national aspirations of the Scottish and Welsh peoples and their desire for better government are more likely to be satisfied within the UK than outside it”.[2]

The UK was an odd and lumpy unitary state. While the core political institutions were shared, all sorts of national anomalies were permitted. Welsh became a liturgical language after the Acts of Union; Scotland retained its own Church and legal system after 1707; and Ireland had its own executive even after the Act of Union 1801. While the welfare state acted as a centralising force (and provided the basis for a strong British civic identity) the old heterodox pattern was apparent throughout the 20^th century with the strengthening of the Scottish Office, the creation of the Welsh Office, and in Northern Ireland’s Home Rule parliament. While Scotland and Wales were not autonomous regions they existed in a state of what is sometimes called administrative devolution. The problem for unionists was that while these constitutional anomalies did not challenge the efficacy of state-wide institutions, they hinted at the possibility of a more profound re-configuration of the British state.

Broadly speaking, unionists have viewed devolution as an alternative to federalism rather than one of its variations. The great devolutionists of British politics – Gladstone and Blair – were both passionate anti-federalists. While the British state has always contained paradox, Blair left the constitution deeply convoluted and less integrated. Had Gladstone’s prescriptions reached the statute book, he would have done likewise. Both were surely right in believing that the Union as they found it could only be maintained if it became less centralised. While devolution has never been offered as a coherent system and therefore always lacks the character of a definite settlement (largely because England has been entirely excluded) it has had certain pragmatic attractions.

The great conceptual attraction of devolution is that it supposedly leaves parliamentary sovereignty unaffected. Even today, unionist dogma maintains that Parliament could still legislate for Scotland and Wales in devolved matters without the consent of the Scottish Parliament or Welsh Assembly. It is confidently asserted that, because sovereignty has not been divided as it is in federal systems, devolution does not dilute the power of Parliament. No doubt this view would have much merit if devolution had been applied to administrative regions rather than to the Celtic nations of the UK. While current unionist ideology is obdurate in theory on the matter of Parliamentary sovereignty, this is offset in practice by the Sewel convention that Parliament will not legislate for Scotland in devolved matters without the consent of the Scottish Parliament. This sensible convention has been extended to Wales. Yet the muddle remains. Unionism seems to hold that Parliament is absolutely sovereign, but so too are the Home Nations on the ultimate of constitutional questions: secession. If devolution was meant to stop short of divided sovereignty it seems to have failed conspicuously. Perhaps it is the very pragmatism of devolution that prevents its adherents thinking from first principles. This rarely matters in most political activity, but it can have dire consequences in constitutional questions.

That devolution and federalism are close constitutional cousins was demonstrated in the Government of Scotland Act 1998, which itself had clear antecedence in the Government of Ireland Act 1920. The Scottish Parliament has legislative competence over all matters not explicitly reserved to Westminster. This is a strongly federal principle because it accepts the proposition that the Scottish Parliament has the authority to legislate unless positively excluded from doing so. By way of contrast, the Government of Wales Act 2006 followed the opposite principle and allows the Assembly to legislate over prescribed fields only.

Whether our political taxonomy ought to be amended to place devolution in the genus federalism is a fine point. Such confusion on the locus of sovereignty would hardly matter if devolution had done the trick and – from its progenitors point of view – contained nationalism. Nothing of the sort has happened, probably because few see devolution in practice as a clear and stable settlement. As Ron Davies famously observed ‘devolution is a process not an event’. Devolution has shown itself to be a particularly dynamic process and nationalists have enhanced its opportunities to advance demands for greater autonomy. The Scottish Government’s encroachment into defence policy – especially its rejection of nuclear deterrence – is a pungent and dangerous example of this tendency. Without a firm constitutional settlement, where the powers of the British state are set out and enshrined, unionism is destined to fail.

What has made British devolution so dynamic is its national character. In a potentially open-ended process, rather than a clear constitutional event, this has highlighted national cleavages and created incentives for devolved governments to seek greater authority at the expense of Westminster. At first devolution did operate fairly smoothly because there were Labour or Labour-led governments at Westminster, in Edinburgh, and in Cardiff. This reduced the temptation to blame London for the dissonances of political life even when they related to devolved matters, although the nationalist parties felt no such constraint. It should be said that bickering, encroachment, and burden shifting between the spheres of government is  common in federal states too; but they are contained by institutional design. The durability of devolution is likely to be fully tested now that there is a Conservative-led coalition at Westminster, an SNP government in Edinburgh, and a Labour government in Cardiff. Such a scenario was far from the minds of devolution’s architects in the late 1990s.

Many of the challenges of devolution would have been more successfully accommodated if our sense of British national identity was stronger. Just as Scotland and Wales are nations with some of the attributes of statehood, Britain is a state that has required a national dimension. British national identity was probably at its apogee during and just after the Second World War. It also amalgamated itself with a sense of civic identity which grew out of the welfare state and the deep-rooted demand of citizens for universal services and benefits to protect them from the vicissitudes of life. Much of the Labour Party’s unionism was based on the concept of equal and universal services for British citizens. Until the 1970s, the strength of British identity largely subdued the potential of nationalism in the political but not cultural arena.  British identity has weakened along with the memory of the Second World War and its deeply unifying affects, and has been pulled back by the gravitational forces of Celtic and English nationalism. Moreover, since the 1970s, and especially after the end of the Cold War, the British state has been squeezed by demands for national autonomy on the one hand, and international cooperation and the consequent pooling of sovereignty on the other. Some unionists, in their more depressed moments, fear that the people of Scotland are beginning to forget what the Union is for!

We often forget that the challenges facing the British state and the Union that sustains it are not peculiar to Britain. There is a strong international trend among most democratic states to decentralise administrative mechanisms and for multi-national states to embrace some degree of federalism. In existing federal states there has been a tendency for what one Canadian thinker has called the ‘small worlds’ dimension of political life to become more prominent. The crisis of federalism, which so preoccupied political scientists in the decades following the Second World War, has given way to demands for greater local control over political decision making. There is a sense that while central government – massively strengthened in the age of welfare – is not exactly ill-intentioned, it cannot be entirely trusted. Faith in big government solutions can no longer be assumed, and this trend has been aggravated by the international financial crisis. ‘Small worlds’ on the other hand, offer the prospect of limiting political power, increasing accountability, and improving the quality of information in a very complex world.

Britain is not alone, either, in facing something of an identity crisis. States such as Spain, Belgium and Canada face similar existential challenges. Belgium has given voice to its rather divergent national identities but has struggled to maintain a sense of majesty in the Belgian state. In Spain and Canada the notion of a union of nations is still highly disputed, and any sense of multinational identity is correspondingly weaker. Most British citizens also affirm a national identity that is either English, Scottish, Welsh, or Irish (the principal exception is the BME community). What is less clear is whether these identities are accompanied by a sense of dual nationalism where a common British identity is also held as national and not merely civic. Unionism surely needs to encourage a sort of bilingual nationalism. The UK is unlikely to survive as an exclusively civic entity, especially if the national identities of the Home Nations continue to intensify.

While Britain’s ‘theory of mind’ as a state survived the Second World War, it was almost alone in Europe in doing so. Nazi invasion or its threat demonstrated that European states could not fulfil the first and central function of the state which is to defend its citizens. This failure had been intimated many times in the modern era, but the sheer ferocity of Nazi brutality against the most basic of human values meant that Europe would have to be made anew. If anything, the process was rather slow, largely because of the Cold War, with European integration starting in the 1950s but stalling by the mid 1980s, before really advancing after the introduction of the single market. Yet even in the days of stagnation, the European concept of sovereignty was being transformed, just as it had been so profoundly rethought by Hobbes after the English Civil War.

From Hobbes in the 17^th Century until Dicey during the Irish Crisis, the British theory of political sovereignty has been essentially absolutist. As Dicey put it, using a very unBritish example “The sovereignty of Parliament is like the sovereignty of the Czar. It is like all sovereignty at bottom, nothing else but unlimited power”.[3] This pattern of thought was broken, however, when a system of parliamentary federalism was devised in London for Canada and then Australia.

Here the shibboleth of parliamentary sovereignty was overcome, albeit for geographical reasons in large and distant dominions, and the halfway house of devolution avoided. It was a magical and highly innovative development of the Westminster model. At last the magic circle of parliamentary sovereignty appeared to be squared by dividing sovereignty into portions which remained absolute within their sphere of government. The horizontal separation of powers that characterises American federalism was conspicuously absent. The Victorians sought to explain away the apparent paradox of parliamentary federalism by arguing that Canada and Australia were political associations that temporarily lacked the ability to form unitary parliamentary states but were likely to move towards fuller union in time. Furthermore, from the outset central government in Canada and Australia was expected to be dominant, and this further weakened the federal principle – and was thought likely to quicken union. Despite such expectations, both Canada and Australia developed a strong federal culture in the early decades of their constitutional history, and even the arrival of the welfare state did not lead to unitary government. British political practice when decolonising the non-white parts of the Empire again favoured a federal model. This sometimes failed, but when it did so it led not to fuller union in a unitary state, but to fragmentation and the proliferation of smaller states (notably the West Indian and Central African federations).

Experience in Canada and Australia emboldened many Edwardian reformers to promote some form of federalism as a means to modernise the British constitution. While this never materialised, and once Southern Ireland left the Union few continued to advocate federalism, it led to the emergence of nationalist movements in Wales and Scotland that advocated some form of federation for the UK. Autonomy, not independence, was the battle cry of Celtic nationalism in its political infancy.

A number of factors, then, have made the Union fragile and in need of reform. The most important of these is the multinational nature of the UK. Scotland was until 1707 an independent state and there is a sense that ‘once a state always a potential state’. It is not uncommon to hear Scottish nationalists refer to the Act of Union as a treaty and one that could be revoked. Wales was subjugated before a modern theory of the state was formed and her political institutions remained weak even before Conquest in 1282. The Acts of Union (1536 and 1543) can be seen as the consolidation of an existing if somewhat irregular union forced on Wales in the later medieval period. While Scotland and Wales entered the Union through very different doors, they both secured by design and happenstance their most important national attributes: Church and law in Scotland, the language in Wales. By the late 19^th century this model of the Union was still surprisingly serviceable, but the 20^th century brought a much more political world into being. The old formula of common political institutions but distinctive cultural and religious practices, was losing its vitality.

While parliamentary sovereignty brought great power to the British constitution after the Civil War and until the middle of the 19^th century accommodated reform with alacrity, it became something of an intellectual incubus during the protracted Irish Crisis. It at first prevented and then delayed the proper consideration of federal solutions to the UKs constitutional problems. Although many unionists came to favour federalism as a means to retain Ireland in the Union, they did so too late and too feebly. Gladstone developed the concept of devolution – then called Home Rule – as an alternative to federalism and the Blair government did likewise in the 1990s. Of course, Gladstone did not have to cope with the consequences of devolution, while Blair and his acolytes had to live with their creation. There is little evidence that devolution has been more suited to British political experience than parliamentary federalism.

The scope of the state changed profoundly in the 20^th century. Welfarism was first proposed as a serious political goal by the Liberal government that was elected in 1906. Initially its scope was very limited but it grew later during the First World War. In the wake of the Great Depression and the Second World War the promotion of social wellbeing (a hugely ambitious, almost utopian, goal) vastly extended the role of the state in all western democracies. In the UK this tended to subdue the multinational character of the Union as citizens focused on state-wide and uniform rights and entitlements. The once active commitment to Home Rule found in the Labour Party, for instance, quickly evaporated as a British civic identity became prominent.

Since the reawakening of Celtic nationalism in the late 1960s, some of the most poignant functions of the state have been elevated to the international sphere. Britain was often in the vanguard of this process, notably in the construction of the UN’s economic and monetary mechanisms, and in NATO. British influence was also prominent in the development of international law. All these developments required the concept of state sovereignty to be radically adapted. Eventually, Britain also joined the most significant supra-national experiment of the age, the EU. One unanticipated consequence was that intellectual antipathy towards nationalism weakened as it became possible to advance a form of neo-nationalism that subscribed to international political structures.

Yet it would be quite wrong to conclude that these profound historical forces have overwhelmed either the resources of the British state or the capacity of British political experience to generate reform. What is clear, and must be understood by all unionists, is that courage and imagination is now required to adapt the Westminster model of government. A British federation would synthesise the liberal demands of nationalism with those of the Union. The materials are at hand in British political experience, but if not used creatively the Union will surely fail. There is nothing new in this, as the Edwardian unionist FS Oliver wrote in 1906, “For it is the business of the British people today, as it has been for four centuries past, not to follow precedents, but to make them.”[4]

Notes:

1. A.V. Dicey, England’s Case Against Home Rule, London, 1886, p.169
2. Colin Kidd, Union and Unionisms, Cambridge, 2008 p.24
3. The Report of the Royal Commission on The Constitution (Cmnd 5460, 1973), paras 425-497
4. F.S. Oliver, Alexander Hamilton, London, 1906, p.7

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Chapter 2
Parliament, sovereignty and federalism

The manner in which Parliament established itself as the premier political institution in Britain has been a source of great fascination to political theorists. While the Whig theory of history – that Parliament’s progress to hegemony was inevitable – has lost its grip on the British imagination, it is still tempting to view British parliamentary history as the product of some intelligent design. The Tory metaphor of organic growth is, perhaps perversely, more suited to modern thinking as it caters for happenstance. But it is surely no easy task to view events as abrupt as the Glorious Revolution, the Great Reform Act, or universal suffrage as fitting into a process of gentle, organic change. Much of British political history has been brutal and bloody, although ultimately constitutional processes won out. The actual milestones were many and varied on this curious journey, and the events listed below are meant to indicate a direction rather than describe the unerring path to parliamentary government, for the latter certainly did not exist.

The revolt of Owain Glyn Dŵr provides a valuable insight into the vitality of English political institutions in the late medieval period. Wales had no indigenous tradition of holding parliamentary assemblies and, as R.R. Davies observed, only “on two occasions had representatives from Wales sat in an English Parliament, in 1322 and 1327”¹. Glyn Dŵr’s revolt stimulated some impressively advanced political thought which resulted in a putative state of considerable sophistication. One of its essentials was a parliament drawn from every commote of Wales. The model for Glyn Dŵr and his chief advisors was, of course, the English parliament – already becoming one of the most influential non-regal political institutions in Europe. The political arena in late medieval England was a very crowded space indeed, with overlapping jurisdictions and a concept of sovereignty that was thoroughly diffuse. Whatever their pretentions, few kings came close to establishing the Crown as the overwhelming source of sovereignty – perhaps only Edward I succeeded, with bitter consequences for Wales. In the early 15^th Century the English parliament achieved two key breakthroughs which placed new limits on royal power. The Commons won precedence over the Lords on the question of taxation, and in 1414 Henry V accepted that he could not amend a Commons Bill (merely approve or reject it). It would take 250 years for the ramifications of these constitutional innovations to be fully worked out, but it is difficult to overestimate the significance of these events. According to the historian Norman Davies, it was “the very first whisper of a limited monarchy”².

Power over the purse became the most potent of Parliament’s powers and set the parameters for the future battles between the executive and legislative arms of government. These battles were still heavily loaded in favour of the King, but money rather than majesty would be the driving force of constitutional development in Britain. It led Britain to house the authority of the state in institutions rather than personal and autocratic structures. Henry VIII, a renaissance prince of terrible genius, was Britain’s most complete autocrat. His constitutional programme left England and Wales with the first modern state structure of any size in Europe. This he did principally by eliminating the Crown’s main rival, the Church, as a source of independent authority. Sovereignty now became an absolute concept and one embodied in the King. However, the cost to the Crown would prove vast as the most reliable and compliant source of revenue was lost along with the monasteries Henry dissolved. There was a windfall, of course, as the Church’s property was plundered, but much of it went to a gentry destined to become the most reluctant of taxpayers and the most fierce of parliamentarians. It took another 100 years and a brutal civil war to complete a process that set England apart from all other great European powers. Even so, it is Henry who inadvertently ensured that the English state would not sustain an autocratic theory of government. This outcome he would certainly have loathed.

Money was the root of the evils that afflicted Charles I, although the language of the debate between King and Parliament was piously elevated to notions of sovereignty and authority. This is why the rather precious Charles could not compromise in 1646 and settle his differences with Parliament. Had he done so, the constitutional pact agreed between William of Orange and Parliament 43 years later could have been achieved to the great advantage of the House of Stuart. The Civil War destroyed royal absolutionism and created essentially republican concepts of government (which have endured and developed ever since). However, this abrupt ideological shift threatened the very notion of sovereign power. As Thomas Hobbes wrote in one of the most important passages of modern political thought:

If the essential rights of sovereignty … be taken away, the commonwealth is thereby dissolved and every man returns into the condition and calamity of a war with every other man, which is the greatest evil that can happen in this life, it is the office of the sovereign to maintain those rights entire, and consequently against his duty, first, to transfer to another or to lay from himself any of them³.

If the King could not be the source of such authority, then Parliament would have to be the sovereign body. The Earl of Shaftesbury declared in 1689, “The Parliament of England is that supreme and absolute power, which gives life and motion to the English Government”⁴. John Locke stated the case with radical brilliance, “the legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others”⁵. Here are the seeds that brought forth universal suffrage, but no one would have thought so at the time. Constitutional change expands the political imagination.

With the Glorious Revolution a republican monarchy was established, although one with considerable prerogatives for the Crown. Republican because Parliament could not only depose kings but enthrone new ones (William of Orange had no orthodox claim to the throne). To the power of the purse had been added the right to hire and fire the chief magistrate. So strong was this theory from its very conception, that the problem of the Scottish succession dominated the early part of Queen Anne’s reign.

The phrase “as dead as Queen Anne” would enter common speech, only dying out in the middle of the 20^th Century. What Anne’s death threatened was a Stuart restoration in Scotland (and possibly England). The Union of 1707 was the price the English were prepared to pay to prevent this calamity. Having established a republican monarchy, the English ruling class were not going to risk an autocratic Stuart as a neighbour even in a state as weak as Scotland. At last the ground was laid for the Hanoverians who reigned in a splendour that compensated for their evaporating executive prerogatives.

Parliament won its battle with the Crown and became the source of absolute sovereignty within the British state. Polite addendums – the definition of Parliament as constituting Sovereign, Lords and Commons – ensured that the dignity of the Crown was preserved somewhat. But throughout the 18^th Century the people realised the greater truth: the Hanoverians were no Tudors. And the story did not end there. The much reduced Crown could only survive with the assistance of prime ministers. Prime ministers soon became the state’s chief magistrate, although one that could be dismissed by the Crown. Even this prerogative, however, would die with William IV. Sir Robert Walpole demonstrated not the victory of Parliament, but that of the executive over the legislature. Charles I could never dominate Parliament, but Britain’s prime ministers have largely succeeded with alacrity. To this day the doors of the Commons are slammed in the monarch’s face, but in the same chamber the PM sits supreme. This is the essence of our constitution: the hybrid that is Parliament; half government, half legislature.

While in the routine course of political life Parliament struggles to fully scrutinise and modify the actions of government, on a symbolic level Parliament has wielded an influence that on occasions can bring governments down. Inevitably the potency of Parliament’s political influence waxes and wanes in response to how poignantly it can capture the national mood. Sometimes, more rarely, Parliament can persuade the nation to acquiesce in decisions that bring profound and unsettling change. Parliament had a very good 19^th Century although its proceedings were often dull and jejune, and as Dickens observed in the 1830s, frequently very distant from the struggles of the common people. Nevertheless, Parliament retained enough prestige even at its lowest moments to encourage most radicals to agitate for reform not revolution. In the year of revolution, 1848, Britain was spared the chaos which spread across continental Europe. Instead the Chartists marched for universal suffrage and annual parliaments. It was an expansive political arena that Parliament worked, not in the closed and labyrinthian world of government. Like Wagner’s music, Parliament’s minutes were magnificent, but in the long dark hours of government its melody could wane.

The vitality of the British parliamentary tradition, forged in the 18^th and 19^th centuries, is seen in how successfully it has been exported. Known as the Westminster model, it became dominant and remained so throughout the British Empire and Commonwealth. Of all the European colonial powers, Britain was the most successful in establishing constitutional institutions that adapted with considerable alacrity in many diverse cultures. Perhaps this was predictable in countries like Canada and Australia, but surely less so in India, the Caribbean and Africa. It did not always work, but the wonder is that it often did.

Those who hold to the simple belief that Parliament is the sole sovereign authority and should remain so have little sympathy for federalism. The paradox for such traditionalists is that the practical implications of sovereignty have tended to weaken the power of the legislature vis-a-vis the executive. Not only does parliamentary sovereignty require the government to sit in Parliament, it has to dominate most of its business. Parliament has found it difficult to create internal procedures or external institutions that restrain government because this implies the limitation of parliamentary sovereignty. Consequently, Parliament has become a relatively weak legislature that sometimes struggles to be more than the agent of government. Yet there are times when Parliament exercises its absolute authority in lightning strikes that can destroy entire governments or individual ministers. In recent times the resignation speech of Sir Geoffrey Howe fatally wounded Mrs Thatcher; and in spring 1940 Parliament overshadowed and then swiftly replaced a discredited Prime Minister at a time of supreme national crisis. Such utterly decisive moments are harder to engender in less flexible and more rule-based constitutions.

Unlimited sovereignty in the hands of a monarch or president would soon lead to tyranny. Paradoxically, parliamentary sovereignty has not had such disastrous constitutional consequences despite the periodic warnings by great parliamentarians like Lord Hailsham that Britain was in danger of becoming an elected dictatorship. It is also clear that parliamentary sovereignty has allowed the British Constitution to adapt with speed and dexterity. As Hailsham remarked, “There is no doubt that this legislative omnipotence usually dressed up in the complimentary phrase ‘the sovereignty of Parliament’, has been extremely useful in the past and has afforded an extremely valuable element of flexibility in time of need”⁶. To explain how absolute sovereignty became in Britain a constitutional concept we have to go back to Thomas Hobbes, its principal progenitor. In Hobbes’ scheme, the abuse of power amounts to irrational political behaviour because the purpose of sovereign power is “the procuration of the safety of the people”⁷. Furthermore, the “obligation of subjects to the sovereign is understood to last as long and no longer than the power lasts by which he is able to protect them”⁸. To act outside these natural limits is to abrogate the contract by which sovereign power is established. This apart, the sovereign – which for Hobbes was best a monarch but could also be an assembly – can lawfully do and undo anything necessary for the safety of the people. It is therefore a Hobbesian principle that no Act of Parliament can fetter the sovereignty of a future Parliament to repeal legislation. Hobbes also emphasised that in much of human activity the law is silent, in “cases where the sovereign has prescribed no rule, there the subject has the liberty to do or forbear according to his own discretion”⁹. This concept allowed individual liberty to flourish in Britain alongside a theory of absolute sovereignty.

Parliamentary sovereignty is a useful concept and is likely to remain a central principle in any successful but reformed Union. It must now be vested in Britain’s parliaments rather than solely in the British Parliament. Furthermore, it must not close off innovative options for constitutional developments – for example, the pooling of sovereignty. Most of those who have advocated absolute parliamentary sovereignty have readily acknowledged its sometimes fictitious character when pushed to impracticable extremes. Today, could Parliament really dissolve the Scottish Parliament and Welsh Assembly? In theory perhaps, but hardly in practice. To take another example, it surely comes as a relief to citizens to live in a state that acknowledges the force of international law. To believe in parliamentary sovereignty, then, is not to deny the realities of the external world, rather it is to provide a mechanism by which political experience is understood and appropriate responses discerned. As Edmund Burke observed of liberty, it must “be limited in order to be possessed”¹⁰. To move beyond the natural boundaries of sovereignty, as Hobbes warned, is to ask for trouble. Burke realised this when urging Parliament to be generous to the American colonists. He was about a century ahead of his time when he made one of the greatest parliamentary speeches of the 18^th century, speaking on the need to draw on the genius of the British Constitution. Burke’s Speech on Conciliation with America should be read today by all unionists. This is just one of its many sparkling passages:

The Americans will have no interest contrary to the grandeur and glory of England, when they are not oppressed by the weight of it; and they will rather be inclined to respect the acts of a superintending legislature, when they see them the acts of that power which is itself the security, not the rival of their secondary importance¹¹.

Better to allow the American legislatures a degree of independence than force compliance from afar with all the hostility such rigidity entails.

Burke was ignored, the first Empire lost. This fundamental error was repeated during the Irish Crisis. Dicey encapsulated uncompromising unionism when he declared that, “Home Rule is the half-way house to Separation”¹². Now, some may dismiss this example as archaic, but 110 years after Dicey John Major repeated the same fallacy. As he said in his autobiography in 1999,  “Scotland mattered to me. From the moment I became prime minister I could see the danger of it sliding away to independence through the half-way house of devolution”¹³. Here we see the dangers of using parliamentary sovereignty as a block to new and innovative constitutional thought. Interestingly, John Major has developed his own thought considerably and now warns that, “The present quasi-federalist settlement with Scotland is unsustainable” and asks, “Why not devolve all responsibilities except foreign policy, defence and management of the economy?”¹⁴

Such a settlement would seem fully federal. Should the Union be reformed on more coherent federal lines, then Westminster’s sovereignty would be formally divided with Britain’s other parliaments (and those that might one day emerge). To divide sovereignty in such a manner is the first principle of federalism; this does not dilute sovereignty but separates it into different spheres. Over the essential functions of the state – defence, foreign affairs, macro-economic policy and much of social security – Westminster’s sovereignty would be unimpaired and indeed protected against encroachment.

If we dwell on the Irish Crisis for a moment, we see what can really go wrong with intractable unionist thinking inspired by an absolute faith in sovereignty and its indivisibility. Until the passing of the Parliament Act 1911 unionists enthusiastically upheld the concept of absolute parliamentary sovereignty because they held a power of veto in the House of Lords. This ended with the 1911 Act and the way was opened (rather too late) for Irish Home Rule. The Conservative leader Andrew Bonar Law jettisoned his belief in constitutional government overnight, “In our opposition [to Home Rule] we shall not be guided by the considerations or bound by the restraints which would influence us in an ordinary constitutional struggle … I repeat here that there are things stronger than parliamentary majorities”¹⁵. So much for parliamentary sovereignty! Bonar Law’s statement was a flat repudiation of traditional constitutional practice and a call for extra-parliamentary action. That most unparliamentary device, the referendum, came into play and replaced the House of Lords as the unionists’ constitutional watchdog. Unsurprisingly perhaps, once Ireland left the Union in 1921, hard-line unionists rediscovered their faith in unfettered parliamentary sovereignty.

In any analysis of federalism the first point to establish is that it is not foreign to British political experience. Federalism emerged as a practicable theory of government during the 18^th Century. In Scotland the anti-unionist Andrew Fletcher of Saltoun urged a federative solution which would have preserved the Scottish Parliament in 1707. After gaining independence, the Americans eventually solved their constitutional conundrums with the most strongly federal model yet imagined, although it drew extensively on British political experience too. What had been denied the Scots was in large part granted to Ireland’s protestant oligarchs in the 1780s – a parliament with legislative authority over domestic matters, although executive power was entirely reserved to London. Britain could have developed in the 19^th Century in a more federal direction, drawing on such experiences, but chose not to do so. The constitutional path not followed, nevertheless, remained an option through these rather dark woods of political experience.

While British politicians did not apply federal principles at home, by the second half of the 19^th century they were routinely applied abroad when leading the Dominions to fuller political life and responsible government. Parliamentary federalism, an audacious variation of the Westminster model, defined the Canadian (1867), Australian (1900) and a little more ambiguously the South African (1910) constitutions. These developments themselves led some British politicians to urge an Imperial federation as a supra-national concept. The vision of Edwardian imperialists was ambitious and innovative. George Wyndham predicted “the birth of an Organic Empire State”¹⁶. Leo Amery’s federal ambition would have put today’s Euro-federalists to shame:

We mean that all its [the Empire’s] members should remain citizens of a single world state with a duty and a loyalty towards that state, nonetheless the real and intense because of the co-existence with it of a duty and a loyalty towards the particular nation or community within the Empire to which they belong¹⁷.

If some form of federal solution had been found in time to address the Irish Crisis, it is distinctly possible that today we would be living in a Federal Union of Great Britain and Ireland. After the Easter Rebellion many unionists belatedly adopted federalism as the best way to prevent the Union’s impending implosion. The end of the Union of Great Britain and Ireland came quickly once that tempestuous Eastertide was passed and Sinn Fein swept the Irish Parliamentary Party (which was for Home Rule) into oblivion. Even the Speaker’s Conference of 1920, which urged the eventual federation of the four Home Nations, could not check Ireland’s progress to independence. What caused this deadly delay was the fear of federalism as a magic spell that would instantly make parliamentary sovereignty disappear. John Kendle has stated the case well, “The root objection was to the division of sovereignty entailed in a true federal state. To those nurtured on the sanctity of parliamentary sovereignty the concept of separate but co-ordinate sovereignties was mystifying; even frightening”¹⁸.

The wider lesson here is that federalism was a bargain rarely struck prior to the 18^th century, yet thereafter it was often facilitated by the materials found in British political experience. Without this experience of developing constitutional and   responsible government in the British Dominions, it is difficult to see how federalism could have become so pervasive in the 20^th Century. As the political theorist William Riker observed, “there is something in the British political tradition that is especially conducive to the federal form”¹⁹. There is indeed.

It is time to look at what it is that makes for a strong federation, and in particular what would make Britain a strong federation. Before we proceed it is necessary to address the prior question “why federate?” In a useful definition for British advocates of federalism, Jonathan Rodden has distinguished between federations that constitute a “coming-together” and those that are a “holding together”. In either instance, “the original federal bargain is an agreement about the composition and powers of the central government and the ‘rules of the game’ that will structure future interactions between the central government and the units”²⁰. Rodden’s ideas are only partly compatible with those of William Riker who saw federalism as a bold measure forced on participants to meet an external threat. Although Riker moderated his criticism of federalism in his later years, he had little sympathy for the view that federalism was a way to advance wider goals such as the protection of liberty within the federation, indeed he considered federalism an incubus when it came to tackling the race issue in America. For Riker, “the politicians who accept the [federal] bargain, giving up some independence for the sake of union, are willing to do so because of some external military-diplomatic threat or opportunity”²¹. If we synthesise these definitions somewhat and apply them boldly to Britain’s predicament, we come to two important conclusions. First, a federation which seeks to hold an existing state together is a coherent proposition, although success in practice would depend on the many variables generated by the trials and tribulations of political experience. Secondly, federalism is a bargain to secure the existence of a particular state, be it to repel the internal threat of secession or the external threat of coercion by a foreign power or powers. Federalism is weaker conceptually when justified on the grounds of leading to better government. Federal states, just like unitary ones, are more or less efficient, corrupt, free and so forth according to a wide range of cultural and political variables. Federalism is a pragmatic response, and as such a matter of statecraft rather than an idealistic prescription for a more virtuous political association.

Some theorists have argued that the federal bargain has only ever succeeded when it is a “coming together” rather than a “holding together” contract. Obviously it is only if “coming together” federations are practicable that federalism offers any hope for British unionists. Dicey stated bluntly that federalism was a poor bargain and only ever justified as the price necessary for a measure of unity when the alternative would be no unity at all. Alexander Hamilton held precisely this view and advocated it with great force in his contributions to the Federalist Papers. It is one of history’s marvellous oddities that the greatest federalist thinker did not much like federalism but accepted it as the pragmatic response necessary to forge an American nation. If applied to the UK, Dicey argued, federalism would merely mark the start of the Union’s disintegration. Dicey’s rejection of federalism dominated British political thought for much of the 20^th Century. In 1973 the Kilbrandon Report declared with exquisite condescension, “the UK has for centuries been governed in a spirit of unity and co-operation, and even if this unity is now being questioned it would hardly be satisfactory to adopt a legalistic system intended for a much earlier stage of constitutional development”²².

We inhabit a constitutional environment very different from that of either Dicey or Kilbrandon. Dicey believed that Home Rule (what we call devolution) would not be a settlement because it threatened to undermine parliamentary sovereignty. In this respect he was right, but not in his conclusion that the Union should be either accepted unreformed or rejected and annulled. Devolution has made Britain a quasi-federal state and one that requires further reform if it is to endure. It needs a constitutional settlement, and it is difficult to see how such reform can be successful without a fuller application of federal ideals. Chapters three and four of this work will sketch out how such federal ideals may be turned into practical prescriptions for a Reformed Union. But first some thought must be given to what general principles inform successful federations and would need to be replicated in Britain.

In a seminal work, The Robust Federation, Jenna Bednar states, “Unlike its unitary cousins, a federation suffers from structural deficiencies that challenge its robustness: the very features that make a federal structure appealing for a heterogeneous society – decentralisation and regional semi-independence – also build in new opportunities for transgressions”²³. Bednar argues that robust federations require three properties, “compliance, to dissuade transgressions; resilience, an immunity to design flaws and external shocks; and adaptation, an ability to adjust the rules to meet changing needs”²⁴. The current constitutional position in Britain was not designed to be federal but has turned out to be so in practice. It is therefore necessary to briefly apply Bednar’s criteria to an examination of our present arrangements. In regard to compliance, the British Constitution has major problems, and these are most conspicuous in Scotland where the Scottish government has started to encroach into areas that in most federal states would be reserved to the central government. These are seen in calls for full fiscal autonomy, rejection of nuclear deterrence or at least Scotland’s part in it, and a claim that the Scottish Parliament can call an independence referendum. Such powers, if granted to the Scottish government, would start to turn Britain into a loose confederation, not a federal state.

The resilience of current constitutional arrangements also appears weak. Devolution has not been accepted as a settlement free of profound design flaws, and its anomalies do not seem amenable to gentle amendment. One glaring example will suffice for illustration: England was entirely left out of the devolution reforms and this has created that most awkward of constitutional conundrums, the “West Lothian Question” whereby Scottish and Welsh MPs can vote on English domestic policy but English MPs have no equivalent voice in Scottish or Welsh affairs. Three of the UK’s Home Nations have a well-defined and institutional political personality, but the largest – England! – does not. On the third principle of a robust federation, adaptation, Britain is in a much better shape. There has been a willingness to review and adapt constitutional arrangements in the devolution era. This has been most evident in Wales, although in a less than coherent or systematic manner. The Welsh Assembly, for example, started as a body corporate, then internalised a separation of powers between the legislative and executive arms of government, and eventually acquired primary law-making powers. This within twelve years and two pieces of fundamental constitutional law (The Government of Wales Acts, 1998 and 2006). Many households don’t replace their cars as quickly!

Only the most sanguine would conclude that Britain’s current constitutional arrangements are likely to endure without substantial reform. Devolution has usually been viewed as an alternative to federalism, but it is now surely apparent that it is one of its more volatile variations. It is certainly no safe constitutional harbour. This should not surprise us. Even in Wales, but far more in Scotland, devolution created a powerful government. The devolved governments in Scotland and Wales are based on national units – adding greatly to their strength and legitimacy. And there has been no clear settlement with broadly accepted “rules of the game” between the British Parliament and the devolved institutions. Independence for Scotland is now the official goal of the Scottish government (and who would have thought that likely in 1999?).

We end where we started. National parliaments are potent institutions. The British parliamentary tradition is probably the most influential in the world; without much hyperbole Westminster can indeed be considered the mother of parliaments. With the exception of Stormont – which was an anomaly not a precedent – British political experience has been unitary since 1801 and has not had to accommodate a system of co-ordinate parliaments with the challenges such an arrangement inevitably generates. From another angle, nevertheless, it would be just as coherent to welcome the great vitality that both the Scottish Parliament and Welsh Assembly have displayed. It should surprise no-one that in Scotland and Wales the electorate now focus most of their political hopes and aspirations on their own parliamentary institutions. The constitutional conundrums we face today as we grope for a robust settlement would be much greater if devolution had failed to establish such strong national institutions. Like the Americans before 1776, the Scottish and Welsh don’t want less of the British parliamentary tradition but more. However, if these aspirations are frustrated then I fear that the Union will collapse. A simple declaration is needed – perhaps codified in the first clause of a new Act of Union – that Britain is a federation with each of its parliaments indissoluble and sovereign over their apportioned jurisdiction. Truly this would allow the British parliamentary tradition to work its magic and inspire the political imagination for generations to come. Burke would be proud of us, and perhaps Owain Glyn Dŵr would be too!

Notes:

1. R.R. Davies, The Revolt of Owain Glyn Dŵr, Oxford (1995), p165.
2. Norman Davies, The Isles: A History, Macmillan (1999), p383.
3. Thomas Hobbes, Leviathan, Indianapolis (1958), p262.
4. Quoted in Jowell and Oliver (eds.), The Changing Constitution, Oxford (2000), p27.
5. John Locke, The Second Treatise of Government, Indianapolis (1952), p81.
6. Lord Hailsham, The Dilemma of Democracy, London (1978), p136.
7. Hobbes, p262.
8. Ibid, p179.
9. Ibid, p178.
10. Edmund Burke, Letter to the Sheriffs of Bristol (1777).
11. Burke, Speech on Conciliation with America, London (1801), Vol. III, p112.
12. A.V. Dicey, England’s Case Against Home Rule, London (1886), p287.
13. John Major, The Autobiography, London (1999), p415.
14. Daily Telegraph, 9^th July 2011.
15. Quoted in Alan O’Day, Irish Home Rule 1867-1921, Manchester (1998), p240.
16. Quoted in E.H.H. Green, The Crisis of Conservatism, London (1995), p200.
17. Ibid, p199.
18. John Kendle, Federal Britain, London (1997), p62.
19. William H. Riker, Federalism: Origin, Operation, Significance, Boston (1964), p25.
20. Jonathan Rodden, Hamilton’s Paradox, Cambridge (2006), p33.
21. Riker, p12.
22. The Report of the Royal Commission on the Constitution, Cmnd. 5460 (1973), para. 526.
23. Jenner Bednar, The Robust Federation, Cambridge (2007), p2.
24. Ibid, p13.

Published on: Monday, February 20th, 2012
Posted in: Archived.
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