As the Brexit process continues, the Conservative Party is finding it hard to reconcile its desire to leave the EU with its longstanding commitment to maintaining the territorial and political union of the United Kingdom. Michael Kenny argues that, far from introducing a destabilising element to an otherwise sound constitutional set-up, Brexit has instead amplified and accelerated the debate about the UK’s territorial constitution.

‘I didn’t know it would break the United Kingdom’. This regretful rumination from columnist Peter Oborne – in a fascinating interview given in the wake of the recanting of his support for Brexit – touches on one of the key developments in the Brexit story. This is the gathering realisation in some Conservative circles that leaving the EU may well be incompatible with one of the foundational values of the Conservative party – the preservation of the integrity of the United Kingdom.

The painful discovery that these two goals are very hard – and maybe impossible – to reconcile is one of the great under-estimated political ironies of Brexit. For it has been those calling for the UK’s departure from the EU who have talked most confidently and directly about the distinctive character of Britain’s model of parliamentary sovereignty and the territorially differentiated unity expressed in in its constitutional arrangements. And whilst anxieties about whether Brexit might reignite the independence cause in Scotland were aired in the campaign leading up to the 2016 referendum, for the most part these remained at its margins.

But Prime Minister Theresa May has sounded a more anxious note ever since she entered office in July 2016. She has repeatedly – and a little mechanically – invoked the importance to her own politics of ‘our precious union’, a mantra that betrays a telling worry about the implications of a vote which accentuates a growing sense of political differences across the different nations and peoples contained with it, and also signals the salience in her own mind of the question of what implementing Brexit means for the domestic union.

And, gradually, the tortuous process of seeking parliamentary support for the Withdrawal Agreement she negotiated with the EU has indeed thrown up the possibility that leaving the external union which the UK joined several decades ago might make impossible the holding together of the much older set of unions forged – through conquest and negotiation – by the English state over several centuries.

In part, this is because the devolution settlement that has developed since 1999 has the EU baked into it, and so leaving is bound to raise difficult legal and political questions which may well deepen territorially rooted tensions (not least between Scotland and the UK). There has already been a sharp, extended conflict over who exactly should take back control of powers returning from Brussels in areas of devolved competency. This resulted in the Scottish parliament’s refusal in 2018 to support the EU Withdrawal Bill, and the UK parliament’s decision to pass it irrespectively, in breach of the previously sacred Sewel convention. The subsequent decision of the Scottish government to publish a Continuity Bill resulted in the UK challenging its legality in the Supreme Court, a harbinger perhaps of disputes that lie ahead as we proceed to the next stage of negotiations with the EU.

But a separate, increasingly important dynamic has also brought the incompatibility of these different union-related political commitments to the fore. This concerns the increasingly central role which Northern Ireland has assumed in the negotiations over the Withdrawal Agreement, and the resonant echoes of the political instability caused by the Irish question in the late nineteenth century.

In the context of Brexit, Northern Ireland has acquired huge importance both because it is the geographical area closest to the UK’s land border with the EU, and due to its deep economic and political interconnections with the Irish Republic. The North became central first in the context of the much debated backstop arrangements that were included within the Withdrawal Agreement, and latterly as attention to the possible consequences of a ‘no deal’ Brexit for the border and the Good Friday Agreement have come into view. In political terms, the DUP’s role as the government’s confidence-and-supply partner in the House of Commons has been elevated significantly during the crisis over the passage of the Agreement by the decision of a large number of Conservative MPs to present their opposition as conditional upon the views of its ten political representatives at Westminster.

This stance has fallen apart with telling speed, and a very different dynamic has emerged around these issues in recent days. Increasingly, the priority that the DUP and some unionists in the Conservative party accord to the domestic union has come up against the assumption of many others that Brexit is the political and moral priority which needs to be pursued. No longer is the DUP presented as the conscience of the Conservative party on the Irish question. Tensions are opening up between Arlene Foster’s party in parliament and the Conservatives, a situation that may well have significant consequences for the prospect of effective government in the coming months.

This shift is demonstrated in the developing thinking of the Prime Minister herself. At the point when there was genuine uncertainty about whether she would keep ‘no deal’ as a serious option for the government, she reportedly announced at the extended Cabinet meeting on 2nd April that she could not countenance it because of the likelihood that it would lead to a return to direct rule in Northern Ireland. At the same time, the DUP’s leadership, to the bemusement of some members of the Tory European Research Group, indicated their own belief that the doctrinaire pursuit of Brexit favoured by some parts of the Tory party, including some of the potential candidates to succeed Theresa May, might well result in the selling-out of Northern Ireland if, for instance, the government returned to the idea of a backstop that applied there, and not to the UK as a whole.

The sundering of the politics of Tory unionism from the pursuit of Brexit, and the re-emergence of an ancestral unionist outlook in the Conservative party, are key developments in the contemporary political landscape, but they appear to have caught many UK politicians and most commentators off guard.

The determined adherence of the Prime Minister and other leading Conservatives to the priority of keeping the domestic union together, and the commitment to treating Northern Ireland as an integral part of the UK, run counter to what most commentary has taken to be the direction of travel in the party’s territorial outlook – in favour of the approach to Northern Ireland which informed the peace process initiated by John Major and the Good Friday Agreement negotiated by Tony Blair. In fact, it appears that significant parts of the Tory party were never fully reconciled to the latter approach, and have moved back towards an older model of thinking about the union which has its origins in the English constitutional tradition propounded by figures like Enoch Powell and some other Thatcherite conservatives.

This way of looking at the UK stresses the indivisible sovereignty of parliamentary government, and depicts this differentiated polity as united under the exercise of legitimate governance at the centre, a vision that points away from the narrowly English-nationalist agenda which many critics accuse the Conservatives of pursuing. But, at the same time, the priority this tradition gives to the integrity of the union in its account of British sovereignty may well have generated a major obstacle to the delivery of Brexit, and has certainly been a key factor in ruling ‘no deal’ out of consideration. Such an outcome will be welcomed by most parliamentarians and many citizens, but it does raise the spectre of a growing number of frustrated Brexiteers becoming frustrated at the implications of the union and Northern Ireland’s place within it.

More broadly still, as I argue here, deepening disagreement in Conservative ranks about which goal is more important – preservation at all costs of the multi-national union or delivering Brexit, even if that goal creates conditions that endanger the former – needs to be understood in the context of a much longer historical process. Specifically, it is the demise of an older model of informal and pragmatic statecraft which enjoyed considerable support across the two main British parties for much of the last century that has made constitutional issues the subject of greater political contestation, both at the centre of the UK and in its constituent parts.

Brexit has not, as is commonly suggested, brought instability into an otherwise stable constitutional environment. It has instead supplied an additional boost to the increasing politicisation of questions relating to the UK’s territorial constitution.

About the author

Michael Kenny is Professor of Public Policy at the University of Cambridge, and co-Investigator on the ESRC-funded project, Between Two Unions; the Constitutional Future of the Islands after Brexit.