A House of Lords report on the Union published last week has gone further than any before in recognising the possibility of Scotland gaining independence. It also criticises the UK Government's “Anglocentric British nationalism”, which it says is undermining the UK’s legitimacy.
The report says the UK Government has “undermined trust” by continually legislating without the consent of the devolved Parliaments. The committee’s recommendations to increase “respect and co-operation”, however, are general and unlikely to have much effect.
Report ignores declining legitimacy of the Lords north of the border
The report does not discuss whether the House of Lords’ legitimacy in Scotland is in decline. Since 2007, a majority of Scottish MPs have been from the SNP and they do not sit in the Lords - or on committees such as this. The committee therefore has just three Scottish members - former Labour MP Tommy McAvoy, former Conservative Andrew Dunlop and law Lord David Hope. The House of Lords is now the world’s second-largest unelected legislative body second-only to China’s - PM Boris Johnson has added around 100 "nobles" since taking office.
The recent ennoblement of Tory donor Malcolm Offord who was appointed to the Scottish Office after failing to win election in Scotland was also ignored by the committee’s report, although it has a strong bearing on the subject under discussion.
Growing support for Scottish independence is echoed in rest of UK
The committee notes that support for Scottish independence has increased significantly since their last report in 2016, now polling at about half or above in all parts of the UK.
The report notes: “In the 2021 Scottish Parliament election, the SNP won 48 percent of the vote... The Scottish Green Party, which also supports independence, won eight seats…The current level of support for Scottish independence and the SNP—which are not necessarily the same thing—has inevitably had a significant impact on discussions about the future of the Union.”
This support for independence is echoed in the rest of the UK. Professor Ailsa Henderson and Professor Richard Wyn Jones detect “a clear sense of ambivalence about the Union, particularly in England, where around 40% of respondents are happy for one or more other parts of the UK to go their own way. If this is added to the proportion who want independence or reunification, in the case of Northern Ireland and the proportion who hold this ambivalent attitude to the Union, then we reach half or more of the electorate in each of the four parts of the UK.
“Professor Wyn Jones went as far as describing this as the “tectonic plates shifting”, saying: “If you look at public attitudes and if you are a Unionist, you have cause for alarm.”
Insistence on Westminster’s absolute sovereignty has undermined trust in devolution
One view of devolution is that “Westminster has merely lent powers to the three devolved territories, which can be reclaimed at any time…. This view has been generally sustained by the courts, including the Supreme Court,” the report says.
But “some witnesses” argue that because the devolved Parliaments - especially Scotland’s where 75% of voters said Yes in 1997 - was established by a referendum with strong popular support, they should be recognised as sharing sovereignty with Westminster.
The Institute for Government warned that: “if the UK government decides to make a habit of legislating without consent in devolved areas, without making serious attempts to secure that consent, then the implications for the stability of the Union could be severe.”
Professor John Denham of Southampton University told the committee that “leadership depends crucially on respecting others within the system who have their own autonomy and their own legitimacy, and leadership becomes one of managing those relationships, not simply of saying that the Union Government decide and that is it.”
Professor Ciaran Martin, Philip Rycroft and Professor Denham referred to the Government’s approach to the UK Internal Market Bill and Northern Ireland Protocol as symptomatic of a predominantly ‘Anglocentric British nationalism’ ”.
First Minister of Wales Mark Drakeford said the Government acted as ‘judge and jury’ on when they wanted to legislate without consent. He said the Government should be required to publish its justification for deciding to legislate without consent, with both Houses then invited to vote on this justification, with the relevant devolved legislature having the right to contribute
However, the report confined its recommendations to asking the UK Government to formally report its reasons for legislating without consent to the House of Commons before doing so.
Internal Markets Act
One example of legislation without consent is the Internal Markets Act - before Brexit, the devolved parliaments had a lot of say over how restructuring money was spent, but the UK Government used this Bill to say it can decide how and when to spend that money.
The report quotes the Scottish Government, which said the UK Government’s approach to the UK Internal Market Bill, demonstrate it is “willing to reshape the devolution settlement, unilaterally and in the most fundamental way, setting aside any rules of the UK constitutional system that it finds inconvenient”
Report Recommends that Boris Johnson should be “the grown-up in the room”
Jim Gallagher (a leading figure in the 2014 No campaign) who is a visiting Professor to Glasgow University, said the SNP and other independence supporting parties are looking to use disputes with the UK Government as a political platform.
The report quotes Gallagher saying: “The obligation of the United Kingdom Government is to be the grown-up in the room. This is the Government of the Union … the Prime Minister of the United Kingdom is the Prime Minister of the Union, not just of Unionists.”
The report concludes: “We believe the Prime Minister has a critical role to play in making the new intergovernmental structures a success and maintaining strong relationships between the four administrations. Given its importance to the working of the Union, we recommend the Prime Minister and Heads of Devolved Governments Council should meet at least twice each year.”
Looking ahead to Scottish independence and Irish reunification
The report calls for more communication between the UK Government and the devolved Government at all levels, and does raise the possibility that these could be useful in the event of independence for Scotland or reunification of Ireland.
It quotes former Clerk to the Committee Paul Evans and former Chair of the Welsh Devolution Commission Paul Silk, who advocate a formal body to replace the InterParliamentary Forum on Brexit.
They said: “Mechanisms established now, while the Union continues, could form the basis of structures that would be needed if the constitutional position of its component nations were to change.”
The report is interesting largely because of its acceptance of the dominance of Anglocentric British nationalism in Westminster’s approach to Scotland and the other devolved nations. Sue Gray is also mentioned - among her other tasks, she is apparently to play a key role in saving the Union.
The objectivity of the report could be criticised because of the narrow range of witnesses it called. It also uses some partisan language - Scottish Cabinet Secretary Angus Roberston “claims” while journalist Alex Massie “urges” or “considers” his statements.
Its recommendations are extremely weak and are likely to be ignored in any case - Boris Johnson is unlikely to meet Nicola Sturgeon as often as twice a year whatever the committee says. The UK Government, having established that it can legislate without consent at will, is unlikely to use “self-restraint”, as the report advises.
There is likely to be a referendum on Scottish independence in 2023 and so this report may be regarded as the committee waking up late only to smell the coffee boiling over.