Scotland’s place in the Union will not be decided in the courts: only politicians can enable or prevent independence

Whether or not Scotland can legally hold a referendum without the consent of Westminster is a question that has provoked much debate. Ciaran Martin argues that the answer to this question does not really matter: regardless of the legality of any referendum, it is unrealistic to think that Scotland will leave the Union without the consent of Westminster. This makes the key question a political one, which the courts cannot resolve.

In mid-August I spoke at the Edinburgh International Book Festival about Scotland and the future of the United Kingdom. My theme was that when the constitutional debate resumes (which it will) after the post-Holyrood election lull, there could, and in my view should, be a debate not just on what independence means, but on what remaining in the Union means. This is a fundamentally different proposition than it was in 2014, and not just because of Brexit.

In 2014, the three UK-wide unionist parties (which, let’s not forget, at the time held 53 of Scotland’s 59 Westminster seats between them) were all evidently comfortable with devolution. Both the UK government and the broader Better Together campaign spoke of ‘the best of both worlds’ of an autonomous Scotland within a devolved UK. As the polls tightened, the response was ‘the vow’ of more devolution.

Things are different this time. In July, Welsh First Minister Mark Drakeford, leader of the most successful unionist party in any of the devolved territories, warned of ‘a Government that is instinctively hostile’ for the first time in the history of devolution. Sometimes such hostility is just blurted out; sometimes it becomes law, such as the constitutional land grab that is the Internal Market Act. Combined with the unworkability of fully federal models in the UK, this instability within the Union means that when Scotland is debating its constitutional future, the nature of the Union it’s being invited to stay in merits more discussion than last time.

Insofar as I thought any of my arguments would attract attention, it was this one. But instead, coverage emphasised a throwaway restatement of my long-articulated view that the Scottish government is likely (though I did not say certain) to lose any legal case brought against referendum legislation it seeks to pass in Holyrood in the absence of a Section 30 power agreed with Westminster.

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Renewing and reviving the Belfast/Good Friday Agreement

Alan Whysall, a member of the Working Group on Unification Referendums on the Island of Ireland, discusses the potential longer term constitutional destinies of Northern Ireland. He also analyses how we can ensure a more satisfactory debate, an ultimately more constructive politics, and the possible renewal of the Belfast/Good Friday Agreement. The first part of this blog, which prefigures a discussion paper from the Constitution Unit, was published earlier today.

Destinies

Since the Brexit referendum, the debate on the Union versus Irish unity has stepped up.

Some suggest we are at a tipping point, where change might come quickly, because of Brexit, lack of faith in London, fractures in politics, disappointed expectations of the Belfast/Good Friday Agreement – in Irish terms, perhaps, a period like the second decade of the twentieth century.

These developments may well have changed the political climate so far that reverting to the politics of five or 10 years ago is impossible.

But what we are heading towards is unclear. Fatalism would be a particularly misguided approach: there are no predestined outcomes, and certainly no panaceas.

The chances of things going well are much improved by informed debate, and by making every effort to sustain a constructive political process.

Without those conditions, we may well be on the road to nowhere, or a destination increasingly unwanted either in Britain or the South.

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The public policy challenges facing Northern Ireland

Following the report of its Working Group on Unification Referendums on the Island of Ireland, the Unit will in the coming weeks publish a discussion paper on the wider political options for Northern Ireland. In the first part of this blog, Alan Whysall, the author of the paper, sets it in the current political context, and discusses the public policy challenges facing Northern Ireland. The second part, which will be published later today, considers longer term destinies, and what can be done to encourage more realistic debate, and ultimately constructive politics, in Northern Ireland.

Introduction

Politics will resume in Northern Ireland after the summer in deep conflict. But much of the political debate is totemic, neglecting the realities of public policy in Northern Ireland now.

The unreality of the debate reflects the unwinding of constructive politics, such as was seen in the better days following the Good Friday/Belfast Agreement of 1998.  

And the increasing talk of broader constitutional destinies is cast in vague and general terms, reminiscent of the Brexit debate; on one side, it often obscures serious issues that constitutional change would raise; on the other, it takes little account of the changing nature of Northern Ireland society.

The discussion paper

The discussion paper will aim, in a neutral spirit, to point up pressing immediate issues that need to be analysed and acted on; and key aspects of the debate about potential destinies.

And it will ask how a spirit of constructive political endeavour can be restored.

Is it practical to think of a renewed Agreement?

The paper will offer some tentative answers to the questions it raises, but it really does need to spark a discussion. Political tensions may once again reach breaking point before very long: and answers to the questions may be needed.

Finally, the paper asks who is to drive the effort towards changed debate and politics. The British and Irish governments have often sought to keep the Northern Ireland political system on the rails, and to impart new impetus. But at present their differences may mean they are challenged in doing so.

So the paper also asks whether others in Northern Ireland can help.

Dealing with the here and now

The Northern Ireland Protocol

The Northern Ireland Protocol looms over Northern Ireland politics. Brexit has been profoundly disruptive. It was the first major change in the arrangements established after the Good Friday Agreement that lacked the cross-community support by which the Agreement was reached – indeed Northern Ireland voted Remain. Hard Brexit inevitably meant more borders somewhere in or around Ireland. The Protocol is the outworking.

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Devolution in the UK: the growth of the English variant

John Denham discusses how England is becoming more centralised by a Prime Minister keen on ‘unfettered leadership’, arguing that the model of elected mayors is losing its attraction to central government. This extension of the powers of the Union state over England might well be described as the ‘English variant’. It faces unique and significant policy and political challenges.

In the early months of 2020, there seemed to be a sharp contrast between Conservative policy towards the governance of England and its approach to the devolved nations. Its 2019 manifesto had promised ‘full devolution across England so that every part of our country has the power to shape its own destiny’. Across the Union the government was already setting out its intention to intervene more directly in the affairs of the devolved nations. This so-called ‘assertive unionism’ – an attempt to refashion some form of more unitary UK state – had been foreshadowed when Boris Johnson had declared his intention to be Minister for the Union and in an influential report by Policy Exchange.

The commitment to publish a Devolution and Recovery White Paper for England was set out in July 2020 (in a speech by then local government minister Simon Clarke which has now been removed from government websites). But by the turn of 2021, in the wake of a bruising confrontation with Greater Manchester’s Mayor Andy Burnham, it was clear that ministers were losing interest in English devolution. The Devolution White Paper has been dropped, to be replaced by a ‘Levelling-Up’ White Paper. There is little detail on the new approach, but all the signs are that it will bring an intensification of centralisation that will extend the powers of Whitehall rather than localities. The funds intended to drive ‘levelling up’ have either been centralised at an England level, as with the English Towns Fund, or as part of UK wide funding programmes for ‘Shared Prosperity’ and ‘Community Renewal’ funds.

The early sharp contrast between Conservative plans for England and for the rest of the Union are now being replaced by something that looks much more consistent. Instead of a fundamentally different approach to English governance, England is becoming more, rather than less, centralised and, in many cases, integrated into Union-wide investment programmes. This extension of the powers of the Union state over England might well be described as the ‘English variant’. It has features that are unique to England, but at its core is the same idea of the centralised Union state.

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