Confronting the UK’s constitutional crisis — Part I: the Scottish Question
As Westminster continues to dust itself down after the Brexit fiasco of the past five years, another political wrecking ball threatens to crash into the United Kingdom’s delicate constitutional settlement: the very existence of the Union itself. This is the first in a series of articles which will explore the approaching constitutional crises confronting the United Kingdom.
When British historians reflect on the prevailing constitutional theme of the 2010s in the years to come, they will surely point to Britain’s staggering departure from the European Union; and in the 2020s, the survival (or end) of the Union could well be the main story. Gordon Brown, a passionate Unionist, conceded that “in 10 years’ time the UK could follow the British empire into the history books as an anachronism” unless there was urgent reform of the Britain’s elusive constitution. In Wales, support for independence is growing; meanwhile the Northern Irish Protocol has effectively created a border across the Irish Sea and the likelihood of a reunification poll has grown.
But the foremost risk, according to Alex Salmond, is in Alba (the Gaelic name for Scotland):
“Today, Alba is hoisting a flag in the wind, planting our Saltire on a hill. In the next few weeks, we’ll see how many will rally to our standard.”
This was characteristically hubristic stuff from Mr. Salmond as he attempted to rise, phoenix-like, again from the ashes of political scandal. The former First Minister of Scotland has thrown his hat back into the political ring by launching his new, fiercely pro-independence Alba Party last week. Aside from poetic flag-waving, Mr. Salmond said that his party’s principal aim was to build “a supermajority for independence” at the Holyrood parliamentary elections in May by manipulating Scotland’s proportional representation voting system. By only standing Alba candidates in the “regional list” seats — where SNP have recently struggled to win seats due to their dominance of the constituencies — Mr. Salmond claims he can bolster separatist ranks in the Scottish Parliament at the Unionists’, rather than the SNP’s, expense.
But Alex Salmond has a problem: Alex Salmond. According to the most recent Opinium poll, only 14 per cent. of Scots have a favourable view of him. Nicola Sturgeon’s SNP have already distanced themselves, stating that Scotland’s “interests must come first and should not be obscured by self-interest”. Self-interested he may be, but Mr. Salmond is no fool. He senses an opportunity to help carry Scottish independence over the finishing line when the conditions may be ripe for picking — this is not simply a Salmond fishing expedition.
The Prime Minister may bear the ripest fruit. If tasked with manufacturing a political candidate designed to be as unappealing to the Scottish people as possible, Boris Johnson would score highly. To the meritocratic, straight-talking Scots, Mr. Johnson embodies a particular brand of insufferable English toffishness that doesn’t go down well north of the border. It’s nothing new for a Conservative Prime Minister to be unpopular in Scotland, but the dislike for Mr. Johnson is particularly acute; a recent opinion poll gave him a dismal rating of minus 42 per cent.
Brexit is also important. Ms. Sturgeon insisted on another referendum immediately after the UK voted to leave the EU in 2016, discarding the “once in a generation” rhetoric used during the 2014 Scottish independence referendum campaign. Whilst England and Wales voted to leave the EU, every single local authority area in Scotland voted to remain. For nationalists, this was further proof that Scotland should hold its future in its own hands rather than being tied to the Conservative government at Westminster.
Like Mr. Salmond, Ms. Sturgeon’s government appears ready for a fight with Westminster. Last week, UK ministers accused the Scottish government of unlawfully trying to control and limit Westminster’s powers after new legislation embedded the UN convention on children’s rights into Scottish law, triggering a fresh constitutional battle over Scotland’s powers just weeks before this May’s elections.
But the route to independence is not straightforward. Like in 2014, there is ongoing debate around whether the Scots can hold a referendum without the consent of the UK government. Under the Scotland Act 1998, the Scottish Parliament cannot pass legislation if it “relates to reserved matters” which can only be legislated at Westminster. These reserved matters include, among other things, “the Union of the Kingdoms of Scotland and England”. So the question is, would an Act of the Scottish Parliament providing for a second independence referendum “relate to” the Union of the Kingdoms of Scotland and England? This has never been tested by the courts, and uncertainty looms over whether Holyrood could hold an advisory referendum without consent.
This question was left without an answer ahead of the 2014 referendum. Instead, David Cameron and Mr. Salmond negotiated to grant the Scottish Parliament competence to hold a referendum for a limited period — through what’s known as a “section 30 Order”. Yet Boris Johnson has repeatedly stated that now is not the time for “pointless constitutional wrangling” and the Conservatives aren’t keen on fighting another referendum, so this option seems unlikely.
Either way, if Ms. Sturgeon’s SNP and Mr. Salmond’s Alba Party combine to win a huge majority at Holyrood this May, it will become increasingly difficult to deny the Scottish people a second referendum. Until recently, opinion polling indicated that a majority of Scots would vote “Yes” when asked if they wanted to leave the UK. That lead is waning; signs that the Holyrood inquiry into the Scottish Government’s handling of the accusations against Mr. Salmond is leaving a bad smell. But if the nationalist parties win big in May and Mr. Johnson refuses to grant a referendum, you might expect support for independence to rise again.
If that happens, the Unionists need a plan — meaning tabling an offer for serious constitutional reform. Gordon Brown turned the tide of the 2014 referendum in the Unionists’ favour by arguing that voting “No” to independence did not mean voting for the status quo and promising further powers for the Scottish Parliament. This culminated in the Scotland Act 2016, but many Scots felt this fell short of the proposals outlined by the Smith Commission which followed the 2014 referendum.
The last throw of the dice might be to propose a federal framework for the Union. This would demand a written constitution and would be a radical, but potentially effective, solution to the UK’s asymmetrical devolution. A federal system of government would involve a host of proposals, including the abolition of the House of Lords in favour of a “Senate of Nations” where, like the Senate in the United States, each region would be represented by the upper house equally. Bold reforms such as this could rekindle Scotland’s sense of partnership with England, Wales and Northern Ireland, and help counter the widely perceived Westminster diktat.
Withdrawal from the EU’s constitutional framework gives the UK an opportunity to draw up another in its place. As the Brexit process has demonstrated, radical change to our constitution is possible. If Westminster hopes to preserve the 314 year-old Union with Scotland, further changes will be necessary.
Nick Gill is a solicitor at a City law firm and a politics graduate, with interests in constitutional and public law.
