Britain’s problems with Scotland and the EU have a common origin: an ancient constitution ill-adjusted to our democratic age. The solution: federalism at home, intergovernmentalism abroad and, most of all, the manifestation of a national will to effect much-needed change
During last year’s Scottish referendum, a shocking 45 per cent of voters showed themselves in favour of independence from the United Kingdom, whilst during the recent general election Britain’s first-past-the-post system ensured that the Scottish National Party won almost all of Scotland’s seats at Westminster. That is not a sign of a happy, healthy polity.
Abroad, in its relations with Europe during the last sixty years, Britain has vacillated. On the one hand, it has been a largely reluctant participant in the supranational, confederal project of European political integration represented by the European Union (EU) and its forerunners; on the other hand, before finally joining this project it had set up its own intergovernmental institutions focused on free trade rather than political integration, notably in the European Free Trade Association (EFTA), which it subsequently abandoned but has never quite forgotten. This, too, suggests unhappiness, as well as an inability to shape events and uncertainty as to how to proceed.
It has become increasingly clear that these questions are intertwined. Not, as frequently said, because an allegedly pro-EU Scottish population would be more likely to exit the UK if the UK voted to exit the EU, but because many who support Scotland leaving the UK are not in favour of Scotland actually going it alone, but of swapping one union for another. They wish to cut out the UK “middle man”, anchoring an “independent” Scotland to the EU instead. And, contrary to conventional wisdom, pulling this off would be far easier if the UK stayed inside the EU than if it left, since far less would be at stake. Survival of the UK and British membership of the EU are hence likely mutually exclusive in the long run. All of this raises profound questions of identity in a country (or a nation?) consisting of four home nations (or countries?) in which it is still not uncommon to speak of Europe as the Continental Other (as in “Australia, Britain, and Europe”).
This question of identity cannot be separated from pressing constitutional choices, involving domestic and international institutions alike. In a liberal democracy, to avoid permanent minorities and unaccountable government, the nexus between identity, interest and consent should determine who governs, at what level. For Britain, at home this means adjusting the ancient constitution to finally allow for decentralisation on a footing of formal equality. Abroad, it means a choice for intergovernmental co-operation and a restriction of political integration, if any, to polities sharing its identity.
The current United Kingdom of Great Britain and Northern Ireland dates from 1922, when twenty-six of Ireland’s thirty-two counties left the Union which the Kingdom of Ireland had joined in 1801. The Union of the Parliaments between the kingdoms of Scotland and England, first creating the United Kingdom, dates from 1707 and was preceded by a century of personal union. The Principality of Wales had been incorporated into the Kingdom of England much earlier still. Crucially, with the exception of the departure of the southern Irish counties in 1922, all decisions on these institutional arrangements were made during centuries of social and political inequality, when few people (none of them women) had the vote and power was concentrated in the nobility. What has been called “British liberty”—Britain’s glorious tradition of limited governmental centralisation and substantial administrative decentralisation, buttressed by the common law—was a direct product of this social and political inequality, with Magna Carta—signed 800 years ago this year—an important step.
As long as the nobility dominated Parliament (either through the House of Lords or by influencing the House of Commons) it was in the self-interest of the lawmakers to respect local self-government, since local self-government constituted the power base of the nobility and was organised around the nobility. Together with the common law, the aristocratic character of political life ensured that custom, rooted in self-interest, was at the heart of British liberty. Thus the “manners” of Britain’s aristocratic political class functioned as the backbone of a constitution that worked better (because it was more flexible) for not having been written down. This habit of bottom-up decision-making would long remain a marvel to admirers from across the Channel, where accidents of history had seen top-down Roman law and more authoritarian structures of government give dominance to other traditions.
Today’s Britain is very different. The country continues to be obsessed with class, but substantial formal privileges were abolished generations ago. Patrician manners, which retained a residual influence in politics for decades after the removal of substantial privileges and the full extension of the franchise, have been amongst the final traces of aristocracy to go (see Larry Siedentop’s Democracy in Europe). Only the rump of hereditary peers in the House of Lords, little more than a relic, remains. Thus, slowly and imperceptibly, in a little over a century the nobility has gradually been removed from a constitution built around it, without making amends. In a fit of absence of mind, the linchpin of traditional British liberty has been carelessly taken away.
First the weakening of the nobility removed the aristocratic brake on increased governmental and administrative centralisation. Then rising social equality created more demand for centralisation, both because centralisation implies equality and because the weakening of the nobility implied by rising social equality had eroded local support structures. Finally, the increased demand for centralised government also raised the importance of statutory law, to the detriment of ordinary common law. It is a dynamic that bears a striking resemblance to the growth of France’s centralised étatisme during the eighteenth century, bemoaned by Tocqueville. No longer aristocratic but not quite democratic, Britain became oligarchic, with a ruling elite concentrated in London.
That Britain ended up so centralised during the Thatcher years, which were in many ways a democratic social revolution (see Martin Durkin’s documentary film Death of a Revolutionary), is far from surprising therefore—although highly ironic, given Mrs Thatcher’s rhetoric and declared goals. It also means New Labour was right in its intention to decentralise Britain during the 1990s, but clumsy in its execution. Blair drove a lorry through the constitution, administering a cure worse than the ailment (to mix metaphors), but we should realise he could do so only because decades of increasingly rapid social equalisation had left an essentially aristocratic constitution without a centre. The danger of reforming a weak constitution that needs reform because it is weak and therefore easily abused remains a Catch 22.
The decline of aristocratic institutions, as in Britain, does not only tend to produce centralisation (and a concomitant oligarchy), however. Historically in Europe it has also tended to produce nationalism. This is because hierarchical societies (created around unequal rights) tend to produce corporate interests and strong class identities, whereas modern democratic societies (based on equal rights) tend to produce individual autonomy and weak class identities. In a democratic or egalitarian society the similarity in social position of people means they will start to divide politically on the basis of culture (likely influenced by regional quirks of geography, religion, economic interest, and so on), as it makes it easier to get what you want if you exercise political choice with those who share your preferences.
This logic explains why liberalism and nationalism went together in nineteenth-century Europe, and why France’s Revolution of 1789, which overthrew the country’s aristocratic social order, gave birth to its self-consciousness as a nation-state. It is also why the decline of aristocratic institutions in what is now Italy and Germany ran parallel to the formation of Italy and Germany as nation-states (a process beautifully described for Italy in Lampedusa’s The Leopard). Still, active cultural harmonisation by administrative bureaucracies proved necessary to buttress the new nation-states, notably by promoting a standard version of the national language and by harmonising laws across its territory. In fact, to maintain a culturally strong France, even today French state regulations continue to ensure that French film, radio and television are dominated by Francophone productions.
Nothing like this ever happened in Britain. The United Kingdom (the state) and British liberty (Britain’s vaunted liberalism) preceded democratisation. They were aristocratic institutions. Unlike in France, the state was never overthrown in a democratic revolution, driven by abstract, egalitarian ideas of human rights. Unlike in Italy and Germany, the state was not created by a nationalistic impulse. As a result—in further contrast to the Continent—the point of British liberty, produced by aristocratic institutions, has never been an abstract individual autonomy, but a concrete minding your own business (compare Hayek’s essay “Individualism: True and False”). Thus, whereas expressed collectively Continental ideas of autonomy gave rise to the idea of the nation, British liberty encouraged organic local or regional identities, fostering a patriotic rather than a nationalistic attachment to the institutions and mores making it possible. Not coincidentally, dialects and regional accents flourished undiscouraged in nineteenth-century Britain, as can be heard in early audio recordings of leading public figures. Nor was there ever any serious Scottish, Welsh, English or British nationalism.
Indeed, the very borders of Britain and being British were happily unclear. Up until the First World War (and arguably until the 1960s) British liberty and the idea of Britain extended comfortably to Australia, New Zealand and Canada, in the same way as before their rebellion it had extended to the thirteen North American colonies (where Jefferson and Franklin, amongst others, had made a point of being quite clear about this). Within the broader British world a serious form of nationalism developed only in Ireland, the one part of the British Isles where—largely because of religious differences—the nobility and Britain’s aristocratic institutions had failed to create a widely accepted organic, bottom-up culture of government, despite Ireland’s use of the common law. In a real sense, therefore, nationalism—blind attachment to the Volk and its folkways—has simply been un-British.
Today’s Britain, then, is in a state of limbo. Its society has become much more democratic or egalitarian, but its constitution has not been properly adjusted to accommodate this. Rather than democratising British liberty, successive governments have simply removed the ancient constitution’s aristocratic core. But those are two different things! As a result, during the last decades the political landscape has become cluttered by the increasingly hollowed-out structure of the ancient constitution, causing understandable resentment.
Given these problems, continuing the tradition of British liberty in our era of equality would require substantial reform. It would have to ensure that the constitution was somehow able to mimic the parts played formerly by aristocratic elements in circumstances of inequality. But it can no longer neglect those parts. Amongst voters a deep desire exists for a return to bottom-up government, characterised by much reduced centralisation, but organised democratically, on a footing of equality, not in nostalgia for the era of Downton Abbey. It has invited the rise of the Scottish National Party (SNP) and the UK Independence Party (UKIP) alike, as well as clumsy ad hoc repairs, such as Blair’s unbalanced devolution. Ironically, however, these responses are also evidence that Britain does in fact have a powerful shared, national identity: its tradition of British liberty.
How then do we democratise Britain’s denuded aristocratic constitution? Broadly, it must be—to quote Jonathan Freedland—to “Bring home the Revolution”. There is no need to borrow untested, abstract ideas of equality from fashionable philosophers or ill-fitting alien traditions. After all, highly successful, egalitarian versions of British liberty have long existed overseas, starting in North America. Famously, both before and after the American Revolution the rebellious North American colonies reformed the British institutions they had inherited to fit their much more egalitarian colonial societies, which lacked a nobility. “The American,” Tocqueville noted, “is the Englishman left to himself.” In different but similar ways the loyalist colonies in Canada, Australia and New Zealand would later achieve the same goal.
Crucially, in each case these British offshoots created democratic substitutes for the roles played by the nobility in Britain’s ancient constitution; they did not neglect those roles. Thus they did not simply remove the nobility from the equation (as has by and large happened in the UK), since by itself that would have been merely destructive. Instead, they were creative and constructive, finding in federalism in particular an important tool for renewing British liberty for a world of social equality. The Americans did this all by themselves, after London had remained deaf to their pleas, but later the Canadians, Australians and New Zealanders would be guided closely by a highly competent Whitehall keen on avoiding a repetition of 1776. The Americans succeeded by reading Britain’s ancient constitution through Montesquieu’s, Locke’s, and generally Whiggish eyes and then formalising and democratising it; the Canadians, Australians and New Zealanders happily embraced a constitutional monarchy closer to home—more Tory, if you like—in part by being urged to stand on their own two feet before they really wanted to. Incidentally there, too, lurks a lesson. The longer you wait and the less prepared you are, the more radical and uncontrolled the eventual change.
To secure democratic British liberty at home federalism would of course by no means be the only reform the UK could fruitfully borrow from its siblings and cousins overseas. For example, in recent years already the Law Lords have been replaced by a Supreme Court, and Daniel Hannan has written extensively about other suggestions. Still, federalism—defined as wide-ranging formal and equal decentralisation of the entire polity—must count as the most important reform. Implemented correctly, it mimics aristocracy by creating powerful smaller co-equal units of local or regional self-government. This limits the central authority by denying it the power exercised locally, as well as by forming rival centres of authority, each with the potential for creating competing opportunities and attracting talent. It makes it possible to combine the strengths of large polities (such as: a robust defence and a greater stage for talent) with those of small polities (a more humane government, closer to the citizen), whilst avoiding the pitfalls of each (for small republics, parochialism; for large states, distant rule by strangers).
Above all, however, by preventing permanent minorities and majorities—the characteristic ills of too much centralisation—federalism contributes to accountability and consent, as well as to responsible citizenship. In an arrangement imitating the traditional role of the House of Lords, institutionally it would require a Senate elected indirectly by (and perhaps even from) local bodies of representation, creating a structural incentive to respect devolved self-government. For a long time this worked very well in the United States, where only the introduction of the direct election of Senators in 1913 predictably contributed to ushering in an era of rapid centralisation.
Integral to federalism’s success in helping maintain democratic self-government is its ability to harmonise interest, identity and consent. Interest and identity are obviously at least partly mutually constitutive; in turn, a violation of interest likely implies a lack of consent. The relationship between interest, identity and consent should therefore be crucial for a liberal democracy in deciding who governs, at what level. A polity with a permanent minority could be but a liberal democracy in name and should formally divide into two; a polity that produces permanent minorities on some issues but not on others should consider decentralisation of decision-making on those issues; a polity without any permanent minorities on any issues could happily be centralised.
Take the example of a nomadic tribe. Its identity makes it interested in enough space to move about; this interest in moving about in turn shapes its habits and tastes. To add this tribe to a larger urbanised group and then to have its desire to move about outvoted by the new polity as a whole would be obviously unjust; calling such a vote liberal-democratic would be absurd. Thus the existence of overlapping identities and some shared interests points to decentralising decision-making in such a way as to match each level of shared decision-making to the degree of shared interests and identity. This would allow for debate without the danger of unaccountable permanent majorities. In the same logic, shared interests but no or little shared identity would imply the absence of a public sphere. In such a scenario no debate could take place, especially without the danger of a permanent minority, pointing to the need for intergovernmental co-operation to ensure accountability.
The question, then, is to what extent, if at all, the UK represents a shared interest and identity. The Union was built around the empire, with the English and Welsh providing overseas territories, the Scottish disproportionately providing entrepreneurs and administrators, and the Irish disproportionately providing soldiers. Today this shared imperial interest has gone and the wider British world has become fragmented. Despite the growing influence of the idea of the Anglosphere, it remains largely unconscious of itself, sometimes almost comically so. The Irish Republic now shares a currency with Germany, but during the Republic’s recent economic crisis few of the Irish unemployed went to prosperous Germany—many emigrated to Canada. What remains of a shared British interest is the economy, with extensive labour mobility and the vast majority of trade between the different parts of the British Isles being with each other. There is also a shared defence interest, as the British Isles can be defended as a unit only.
But although these shared interests are significant, it is telling that they extend to the twenty-six southern Irish counties that left the UK. This illustrates again that only to the extent that interests and identity are shared is it possible to have a shared politics, with national political parties representing opposite points of view in a public debate. It is not a good sign for the UK, then, that at present no political party has MPs in all constituent parts of the kingdom; indeed, all constituent parts of the UK have at least one MP from a party elected in no other parts. Not since 1868 have all parliamentary constituencies of Britain and Ireland returned either a Conservative or Liberal MP. Logically, this prominence or even dominance of regional parties in national elections indicates either that the electorate’s perception of shared interests and identity has weakened, or that government is so excessively centralised as to make regional concerns a priority for voters; in turn, government that is too centralised may alienate people, encouraging a weakening of perceived shared interests or their importance, thus likely weakening any shared identity. If and when that goes on for too long, identities are fundamentally changed and separate polities form. That is what happened in Ireland and what may be happening in Scotland.
All of this applies equally to Britain’s membership of the EU. There, too, the question is to what extent, if at all, a higher level of government (the EU) represents a shared interest and identity. This is all the more urgent now that the EU has become such a heavily centralised political union. With the aim of homogenisation (euphemistically called “harmonisation”), about 70 per cent of new legislation in member states (a percentage higher still for Eurozone members) in one way or another originates in Brussels. In a liberal democracy such a statistic could be justified only if member states shared interests and identity to the same extent. Not coincidentally, using the language of economics, the EU tries to make it seem as if Europeans do indeed have enough shared interests to share an identity. At the same time, with its regulatory machine it hopes to gradually homogenise Europe’s population into a New Model European, eventually so similar as to be uninterested in disagreement. For the EU, its pretence of shared interests would have to go on until it had become true. Thus, in a curious paradox, the EU has been engaged in a breaking or ignoring of historic bonds because of a denial and fear of culture.
Clearly, however, the amount of shared identity between the citizens of EU member states remains limited. Notoriously, no public sphere exists in which matters of shared interest can be debated (compare Habermas, “Why Europe Needs a Constitution”). Despite the EU’s top-down efforts to create it, there is no European people. The trick of sticking to the language of economics cannot hide the fact that culture counts. Across Europe, preferences, sentiments and habits diverge widely. At best, therefore, the EU is a multicultural polity at large, as such divided by definition. Because of that, the number of genuinely shared interests is in fact strictly limited to inter-state concerns. In a liberal democracy these would be dealt with intergovernmentally, giving national parliaments the ability to hold negotiators to account and allowing national public opinion to hold parliaments to account. Concomitantly, what is purely of national or regional interest (intra-state affairs) would be a matter for national or regional governments only. EU practice, however, could hardly be further from this. Its most important institutions are supranational rather than intergovernmental and the vast majority of its activities affect intra-state and inter-state affairs alike. This renders absurd any claim that the EU respects liberal democracy. It produces legislation on agriculture, fisheries, home and justice affairs, and labour, as well as a vast amount of market regulation going far beyond anything facilitating inter-state trade. Thus it violates interests by disrespecting identities.
Those defending the EU against such charges of illiberalism might point out that Brussels does not have its own armed forces and that member states are allowed to withdraw from the club. But this confuses the questions of sovereignty (final authority) and self-government (decision-making). The EU’s centralised technocracy has become like a permanent guardianship, not less demeaning and emasculating for having been in some sense self-appointed and voluntary. As this prevents better use of local knowledge (a fundamental argument for individual liberty), it has also created inflexibility and inefficiency.
The astounding success and dominance of European civilisation has been due to its history of competition between multiple centres of power, rather than to a Chinese-style bureaucratic centralisation; if the opposite had been true, today the world would speak Chinese rather than English. The future, then, seems to favour the likes of Switzerland, Norway and Australia rather than those aping China—explaining why Iceland (population: 317,351) recently politely withdrew its application for EU membership.
That the EU has been built by deception, promoted as a mere free-trade club rather than as a centralised political union, makes its power all the more outrageous. Like Caesar Augustus, who built an empire behind maintaining the facade of the Roman Republic, the Eurocrats have built an empire behind an increasingly reduced facade of national institutions. As much as in the debate about the future of the UK, therefore, what is at stake in the debate about EU membership is the British tradition of self-government—of concretely minding your own business. It is, in fact, the same debate. To secure democratic British liberty at home and abroad, the recognition of interests and identity should be the criterion for deciding who governs, at what level.
If this is true, the danger ahead lies in a false pragmatism, which is what created the present predicament in the first place. To be sure, a genuine pragmatism—the cautious, conservative outlook that recoils from rationalism in politics, eschewing ideology and abstract principles in favour of prudence—was once a venerable British tradition (compare Oakeshott’s essay “Rationalism in Politics”). It was, in fact, the strength of the unwritten constitution, which grounded the principle of self-government in the self-interest of the nobility. This anchor made it possible to flexibly meet unforeseen new challenges without degenerating into expediency. But when the nobility was removed from the constitution, so was the automatic link with the principle of self-government, leaving a supposedly sophisticated pragmatism indistinguishable from mere drift.
It has been said that in a brief twenty-five post-war years, Britain lost an empire without finding a role. But it has been insufficiently noted that, behind or underneath that development, Britain lost a stable and experienced political class without considering its loss. It is important, therefore, for Britain finally to do so and then to once again constitutionally link decision-making to the principle of self-government—to the idea of concretely minding your business. In a liberal democracy, this is possible on the basis of equality only.
At home, securing democratic British liberty hence implies the formal, equal recognition of interests, probably by a written constitution. It also means that any arrangements for decentralisation would have to be broadly uniform (because: equal) to gain legitimacy. The present arrangement of devolved assemblies for some regions or countries of the UK but not for others, and with different competences for each, has in effect created unequal citizenship—what used to be called privileges. This is bound to cause resentment, as it has done so already in England. Westminster’s current proposals for further unbalanced devolution, seemingly made up on the fly, make the scenario of further resentment leading to a UK break-up even more likely, especially if Britain stays in the EU.
To avoid the encouragement of nationalism it would of course have been wise to have organised equal devolution at a level lower than that of Scotland, Wales, Northern Ireland and England, but it is easy to speak after the fact. As it is unlikely that this mistake can be undone, the future seems to hold either a federal UK with multiple regional English assemblies, or an independent Scotland and eventually another type of balanced (because: equal) devolution in England. As there are signs of English reluctance about regional assemblies, England’s relative size may yet help to kill off the UK in our time, much as it helped to scuttle attempts at imperial federation a hundred years ago.
Still, by leaving the UK, the southern Irish counties lost much influence on decisions equally affecting them, notably on the economy and on defence. Scotland or any other part of the UK contemplating leaving the Union would have to decide whether this would be a price worth paying, although some of the influence that would be lost could undoubtedly be regained through intergovernmental co-operation. For now, the persistence of a shared British identity amongst the majority of Scotland’s population (as shown by the referendum), directly related to the level of shared interests, suggests federalism as the obvious way forward. In fact, the SNP’s rapid centralisation of Scotland in an attempt to homogenise its population into a New Model Scotsman sits ill with the tradition of British liberty. It is bound to cause resentment similar to that caused by excessive centralisation in London and Brussels. This should provide opportunities for reforming and strengthening the Union.
Abroad, democratic British liberty is compatible only with co-operating intergovernmentally rather than supranationally, limited to cross-border interests. This is how, on defence, for more than sixty-five years Britain and its allies have secured peace in Europe, successfully working together in the NATO alliance. To similarly secure its economic interests, the obvious choice for Britain is hence to leave the supranational EU (a political union) and rejoin the intergovernmental EFTA (a free-trade arrangement), immediately putting it in a natural position to lead those countries unhappy with the EU’s close political integration. Indeed, by lending its weight to EFTA Britain might very well swing the European balance towards a more flexible, decentralised Europe, in the medium to long run achieving greater stability and prosperity across the Continent. And, as the Eurozone turns into an open transfer-union demanding all-out federalisation, a British decision to leave the EU might even give some remorseful Eurozone countries the courage to change course and restore self-government.
At the same time, any talk of a future political union would have to be restricted to those Anglophone countries with which Britain shares not only much of its core interests, but also much of its core identity. For example, it is difficult to fathom that it is easier for Poles to live and work in the UK than for Australians. This is true especially as Australia, Canada and New Zealand—“democratic Britains across the oceans”, with which the UK continues to be in personal union—have in important ways remained more British than Britain, now that Britain has become so centralised and dominated by an EU shaped by Continental legal and political traditions.
Thus, participating in two overlapping, bottom-up intergovernmental partnerships, Britain could finally be the link between Europe and the Anglosphere it has long sought; a position membership of the EU promised but in fact prevented. In a breath of fresh air, each partnership would be an example of unity and strength in shared interests and diversity, rather than one of irritation by unwanted interference and forced uniformity (compare Robert Conquest’s essay “A More Fruitful Unity”). Declining the EU’s one-size-fits-all, it would be a choice not for imperial nostalgia but for democratic freedom and dignity. Tellingly, empire is the word former EU Commission President Barroso used to describe the EU.
In sum, Britain’s problems with Scotland and the EU have a common origin: an ancient constitution ill-adjusted to our democratic age, raising profound questions of British identity. In a liberal democracy, who governs, at what level, should be adjusted to reflect the nexus between interest, identity and consent, avoiding permanent minorities to maintain accountability. For Britain that requires federalism at home and intergovernmentalism abroad.
Taking this road of democratic British liberty would not be easy, requiring national debate, vision, statesmanship, and probably a constitutional convention. But it would leave a post-imperial Britain finally at ease with itself, once again a leading force for good in Europe and the world at large. It would be an end to a costly drift.
Melvin Schut is an Anglo-Dutch writer and academic currently teaching in the Netherlands. His main research interests are Tocqueville and Tocqueville-related questions.