Three weeks from now, if opinion polls are correct, the Scottish National party will win another term as Scotland’s government. It will do so armed with a mandate to hold a referendum on independence. Elections, of course, retain a glorious capacity to surprise. But it is a mark of the slovenliness of Boris Johnson’s government that its strategy for avoiding the breakup of the United Kingdom is now reduced to two words: fingers crossed.
It absolutely did not have to come to this point. The fact that Johnson’s hope-for-the-best approach to Scottish politics reflects his slap-happy engagement with any serious statecraft may be true: but it is also true that he embodies, in his colourful way, a wider negligence that extends beyond him and that has been highlighted in two important reports this week.
These reports – from Cambridge University’s Bennett Institute for Public Policy, and Oxford’s Blavatnik School of Government – are essential reading for grasping the policy failures that have led the UK to the threshold of breakup. Together they show a succession of bad habits in the way British governments have treated the nations and regions of the UK since the modern devolution process began in 1997.
Underlying this is devolution’s own original sin – the asymmetrical approach of uneven empowerment. Two crucial choices were made at the start: England was ignored and UK parliamentary sovereignty remained unchallenged. That might have been the time to recast the UK as a federal state but that ship has sailed.
Instead, over the years, devolution problems were tackled in ad hoc ways. Entwined with this was the development, in Whitehall and Westminster, of a “devolve and forget” mindset. The Cambridge team argues that “those operating at the political centre became too disengaged from, and perhaps even complacent about” devolution’s continuing implications. One author, the former civil servant Philip Rycroft, says “concern for the territorial state is not in the bloodstream of the UK state”.
Looked at in that light, Johnson’s lack of engagement with the UK union – his absence without leave from the crisis he has helped create in Northern Ireland is the most immediate example – may be part of a shared culture. Johnson and the UK state are like Dickens’ Mr Micawber, always confident that something will turn up.
Although the culture of negligence may be deeply rooted, the Oxford report shows it is now far more destructive than a decade ago. Part of this can be explained, the report says, by David Cameron’s still astonishing misjudgment after the 2014 referendum to immediately argue the case for English votes on English laws – rather than to build bridges with the 45% of Scots who had voted yes. This was compounded by the failure after 2014 to reflect on the changes in rules that might apply in future referendums on the union.
But the principal reason why the stakes are now so much higher is Brexit. It is hardly a new insight that leaving the European Union has made independence much more likely. The Oxford report, though, goes further and deeper. It argues that Brexit “laid waste to a delicate constitutional balance” which, in some readings, had existed since the Act of Union in 1707.
During those centuries, this argument runs, the relationship between England and Scotland remained one of partnership and consent. As such, it differed from the more coercive relationship with Ireland. Nevertheless, since the partial resolution of the Irish question in 1921, the union has been based on an assumption of consent between its four parts. This was still strong enough to enable Cameron to recognise that the SNP’s victory in 2011 meant a referendum was morally unavoidable.
After Brexit, and under this government, that assumption no longer applies. The implications are huge. Brexit has shown the union is no longer based on consent, but on law. The law is made at Westminster, which is sovereign. England dominates Westminster. The English majoritarian restraint that was so marked when governments were more sensitive to the need to accommodate differences is today like an abandoned house on the top of a crumbling cliff.
You can see the consequences in things like the demise of the Sewel convention, which held that devolved powers should not be altered without the consent of devolved governments. Brexit killed that. The Internal Market Act goes even further by enhancing UK government power. This week, the UK began a supreme court challenge against two Scottish bills on the grounds that they exceed Holyrood’s competence. But a decision to refuse a referendum for which Scots had voted would trump that. It would tell Scots there was no lawful way of leaving the UK.
It may be wrong to assume the Holyrood election will usher in a full-scale conflict between London and Edinburgh on all fronts from 7 May. The SNP’s awkward secret is that the time may not be right. Opinion is too evenly divided. Some Tory hawks even want Westminster to trigger an early put-up or shut-up referendum.
If there is no second referendum before 2023, that would at least give time for the cooler and more consensual thinking that has been so absent for so long. But if it is not in the bloodstream, that is not very likely.