What do we do about the British constitution?

Gerry Hassan

The Conversation, May 22nd 2015

There can be little doubt that Britain is on the move. This can be seen in the aftermath of the Scottish independence referendum and forthcoming European Union vote.

This is a time of flux and uncertainty. While for some such as the SNP and critics of the British status quo this is a positive, for many elites and experts this produces anxieties and worries. No more is this is so than with benign liberal opinion – which believes that for every problem there should be a solution, and often an over-arching British constitutional solution at that.

This is the spirit of the just released Lord Bingham Centre for the Rule of Law report ‘A Constitutional Crossroads: Ways Forward for the United Kingdom’ which brings together an impressive array of the great and good from John Kay to Linda Colley, Tony Travers and Adam Tomkins.

Britain is at a ‘crossroads’ if not a crisis and at the outset the report invokes the late Lord Bingham who observed that ‘constitutionally speaking, we now find ourselves in a trackless desert without any map or compass.’

Their solution is to codify, formalise and make explicit the arrangements and relationships of Britain’s union state. This would be done via A Charter of the Union setting out the powers between the four nations of the union, instituting a proper needs based formula for funding, addressing the English question, and seeing this as the first step on the road to a formal constitution.

One of the recommendations which has garnered attention has been their call to restrict a Scottish independence referendum to ‘once in a generation’, words used by Alex Salmond and Nicola Sturgeon pre-September vote. The report looks at the experience of Quebec where fifteen years elapsed between their two votes, and that over 40 years have now passed between the first UK-wide European vote and the forthcoming one to be held in 2016-17.

Taking these precedents into account they suggest that at least fifteen years should elapse between any independence votes. This might sound like good commonsense and practice. The problem is in the language and context. For one, the report continually refers to an independence vote as a ‘secession referendum’ which for a report filled with legal bods and hi’ heiduns isn’t strictly accurate, but is telling.

More importantly, it critically lacks a sense of political intelligence and understanding of the dynamics and forces at work in the United Kingdom, Scotland and elsewhere. This sort of enlightened reform would have been possible forty years ago, when the constitutional debate was at an earlier stage, and when people were prepared to be more trusting and deferential towards elites and experts.

The whole tenor of this report is that a few gentle tweaks and bits of fine-tuning will get the United Kingdom project back working. Thus, English votes for English laws is seen as appropriate in the absence of a ‘demand-led’ sentiment for English regionalism and the solution to English governance, for the immediate, as coming nearly entirely, from the Westminster Parliament. Good luck with that one!

Across the eighty pages several factors in Britain’s constitutional crisis are missing and just passed over. The first is the character of the British state which is a fundamental part of the problem. The report focuses on the relationships between the four nations, but is not explicit on what all this means for the centre. Any new constitutionalism has to remake the British political centre, and recognise that as it has devolved to Scotland, Wales and Northern Ireland, it has centralised and become an embodiment of neo-liberalism and a dogmatic interpretation of Britain plc focused on global winners and the corporate class.

Then there are the wider factors which have driven this constitutional debate, namely, the economic and social imbalances of the UK, the kind of society and capitalism we live under, who gains from this and who loses, and what if anything can be done to change this.

In the last three to four decades, constitutional reform has occurred when two factors have been at play: a palpable feeling of a democratic deficit, and a belief that reform could contribute to a wider reinvention of the social compact. This is the story of both Scottish devolution and the independence debate, Northern Ireland and to a lesser extent, Wales. It is also the lessons to be learned from the impact and failure of the Charter 88 campaign for radical constitutional reform.

Over the next decade or so there will be a lot of reports by groups such as this. They are undoubtedly not harmful, and will bring together the great, the good and the civic minded, thinking and believing they are contributing to the great affairs of state.

But actually this is a response to crisis, retreat and the onward march of democracy. And perhaps such enterprises should start with that, acknowledging their own self-interests and understandable human fears and emotions, which only make the people in them more human.

Lastly, constitutional reports have to raise their gaze and address the strange state of Britain beyond the narrow legal. This isn’t just a constitutional moment, but a time when a growing part of the British population realise that the existing state of Britain – economically, socially, culturally and democratically – increasingly doesn’t work for the vast majority of its citizens.

The report, for example, regularly, invokes the principle of ‘solidarity’ across the United Kingdom, but nowhere is this fleshed out or examined in practice. Instead, it is left hanging as constitutional grand rhetoric.

That is one of the key challenges of our time. Not how a Charter of the Union can be drawn up and then aid the holy grail of a written constitution. What kind of Britain do we collectively want? What does economic and social solidarity mean in the disunited kingdom? Is the UK still a union state with all its looseness and hybrid nature, or is a state of unions as we seem to be currently moving too? Or could it be in the future a union of states, whereby Scottish independence sits within some kind of pan-British confederation?

None of this is an arcane legal matter. It is about power, legitimacy and the nature of society. The United Kingdom social compact which bound together elites and citizens has been repeatedly trashed by those with power in recent decades.

That is what drives much of the constitutional debate, and no matter how much worthy exercises like this try to put the Humpty-Dumpty nature of the United Kingdom back together in a tidy, rational manner, that is what shapes the debate for most people.

The United Kingdom is on the move as states always are. The right-wing project of the Conservatives is a regressive ‘Back to the Future’ world taking us ‘Back to the Future’ and the land of a minimal, punitive state far away from solidarity and which decouples itself from Europe – which this report is completely silent on. Challenging and defeating that political vision is one the great tasks on these isles, and the sheer ambition and ideological nature of that fantasyland Britain is something liberal opinion has consistently underestimated and not understood for forty years. And this has cost Britain and British politics dear.

One question you will not find examined here which matters for all of us is whether it is too late to imagine a pan-British progressive vision which challenges the Osborne Conservative economic and social project? That is what think tanks, expert opinion and even the current British and Scottish Labour leadership contests need to begin addressing.