JIM GALLAGHER’S REFLECTIONS ON THESE ISLANDS’ NEWCASTLE CONFERENCE

At the fascinating These Islands conference in Newcastle the other week, there was a lively debate about how best to make the case for Scotland's remaining in the UK. This isn't surprising, as those who support the United Kingdom come from different perspectives and backgrounds, and aren't a drilled and disciplined movement like the SNP.

There was a broad consensus on the risks of independence: notably for the Scottish economy, as it struggled to find a way to leave the sterling currency union and trade across what would likely be a hard border with England; and for its public services, such as the NHS and old-age pensions, which would additionally have to cope with the absence of fiscal transfers from the rest of the UK. Similarly, the downsides of independence for security and for the influence which Scotland and the UK exercise in the world were well recognised.

But there was also a strong view that the case staying in the UK was a positive one and not a negative one; it was a matter not just of the risks of leaving but the benefits of remaining, and also, it was argued, of the change and improvement that can come from remaining in the UK rather than leaving it. In this context, some of the debate was on whether further constitutional development should be part of the change offered to the people of Scotland.

The case against

Constitutional change is what the SNP want to talk about. It is their reason for being. Devolution itself, and big increases in the devolved powers after the 2014 referendum have not satisfied them, and never will. If anything, perhaps they encourage nationalist sentiment. Talk of ‘more powers’ can only do the same, and it would be better to concentrate on the risks of leaving and benefits of remaining than to slide further down a slope that looks increasingly slippery. Better to reinforce our British identity and concentrate on the issues nationalists do not want to talk about, such as their poor performance in managing public services, their responsibility for the relative decline in the Scottish economy and the increasing evidence of the arrogance of power in their attitude and decisions.

The changing constitution

On the other hand, the UK's constitution is changing anyway. Now we have left the European Union, we need to replace much of the underpinning which its rules and structures provided, for example in defining what constitutes the UK single market, UK workers’ rights, and the different UK frameworks which will have to replace the EU ones in relation to some devolved matters. We don’t know exactly what this means yet, but we already know it implies greater devolved powers, as EU constraints vanish. 

Moreover, the relationship between the regions of England and the centre is changing, partly because the Brexit vote showed very clearly the sense of alienation and being 'left behind’ in many parts of England, notably the North. As was heard at the Conference, this will be addressed by measures of economic development but also by empowering different regional, city regional or other political structures to give voice to regional demands and aspirations.

Additionally, it's widely recognised that the part of the devolution settlement which does not work well is relations between the UK’s different governments and parliaments. Ministers are already considering a review by Lord Dunlop on this, but it is unlikely to be the final word on the issue. Not only do the devolved administrations press for change (they would, wouldn't they), but there is a clear understanding that the present system is not working for the UK as a whole.

The F word

The UK can never be a fully, formally federal state: the asymmetry between its constituent parts is too great and, as the Royal Commission on the Constitution recognised as long ago as 1974, a simple federation four nations of which one was England with an English Parliament like the devolved legislatures would be unstable. In any event, Westminster is in the view of most English people England's parliament as well as the UK's parliament. Nevertheless, useful lessons can be learned from federal systems, partly because from a devolved perspective the UK has much of the look and feel of a federal state, and the evolution of the territorial constitution is likely to make us more federal in style, if not in full legal formality.

At its simplest, federalism is a system of distributed power and assumes shared sovereignty, something the UK has already accepted, by agreeing that Scotland and Northern Ireland could choose to leave it. It is a mixture of shared rule and self-rule. Shared rule means the UK Parliament and government. They are the 'federal' government. Self-rule today is a reflection of the identity and the potentially different priorities of what we now call the devolved nations. Degrees of self-rule already vary, reflecting the different history of the three devolved nations, notably the particular circumstances of Northern Ireland. The arguments for distributed power are however just as valid as between London and Newcastle as they are between London and Edinburgh or Cardiff, even though its form might be quite different. England is one of the most centralised countries in Western Europe today mainly because of the concentration of both political and economic power in London. What is sought by, for example, city-regions is not however legislative devolution but executive and fiscal power to ensure they are not 'left behind’, but rather enabled and assisted to 'level up' economically and socially. Such power should of course be matched by democratic accountability, whose forms may develop and evolve over time.

This will change the context of devolution to Scotland, Wales and Northern Ireland, and it will also change what is needed to make the centre of British politics better able to manage relationships with the different forms of self-rule across the country. This will be true especially for those devolved responsibilities which were previously constrained by EU law, but are no longer, where the UK may well wish to negotiate and agree frameworks which allow greater freedom and flexibility than the EU did, and also to decentralise within England. Dealing with geographically distributed power is less a matter of shared rule (which is the ‘Federal’ level of government) but of relations between the different levels of government, which are typically a mix of cooperation, competition, and confrontation. That is normal service in any federal country.

It is now widely suggested in different political parties that a replacement for the House of Lords has a role to play in managing these issues. The most radical option (canvassed in the work of the Constitution Reform Group) of making the second chamber a kind of federal Parliament and the House of Commons an English Parliament suffers from the defect identified by the Royal Commission on the Constitution. That would be unwise. But a second chamber which is consciously representative of both the nations and the regions, which takes a particular responsibility for overseeing cooperation between the different levels of government and for ensuring that the territorial nature of the UK state is properly reflected in the actions and decisions of all our governments is potentially a positive way forward. As with all projects to reform the House of Lords, the key is to begin by thinking what the institution is for, rather than how it is made up.

Constitutions, constitutions…

When the UK is grappling with the consequences of Brexit, and facing insistent separatist pressures, some people may think constitutional tinkering irrelevant. But constitutional development is inevitable, and is part (only part) of the solution to these problems. It follows from Brexit, and can address some of the underlying causes of that change; it also follows from the need to manage devolution better, and should create a UK in which the political institutions of Scotland, Wales and Northern Ireland can operate effectively and cooperatively alongside the growing institutions of decentralised power in England

More important, however, is the recognition that constitutions are indeed a means to an end. They are not an end in themselves: that is an error of nationalism. A constitution is the set of rules about how the rules are made. It allocates power to different institutions with different roles, and also to different geographies. Allocating those powers right is necessary to ensure not just freedom and the rule of law but, in a multinational state which has to acknowledge and recognise different, overlapping and competing identities and nationalities, to create a union which can continue to achieve economic, social and political ends – everything from growth promoted by the UK’s internal market, through risk and resource sharing to ensure (for example) old age pensions, and promotion of our common interests in the world. To keep doing that we need to make sure we have a territorial constitution that people all across the UK, in Scotland, Wales Northern Ireland and the regions of England are comfortable with and assent to. To borrow a phrase from John Major, creating 'a country at ease with itself’. We're not quite there yet.
 

Jim Gallagher escaped from the civil service into academia and the private sector nearly 10 years ago. As a public official, he was as the UK government's most senior adviser on devolution, working in the number 10 policy unit under Gordon Brown. Previous to that, his career was in Edinburgh and Whitehall. He was a Gwylim Gibbon fellow in Nuffield College, Oxford and is a visiting and honorary professor at the Universities of Glasgow and St Andrews. He also holds non-executive roles in a number of commercial and non-profit enterprises. Jim’s main academic interest is the territorial constitution of the United Kingdom and how devolution develops, and is financed.

In a response to this piece, Henry Hill offered an alternative perspective on devolution.