The British constitution has never made sense or been fair. Why expect it to do so now?

11 March 2014

Well, yes, Hamish Macdonell is correct. A coherent devo-max option could win the referendum for Unionists. Some of us, ahem, have been arguing that for years. There were, of course, good reasons for insisting that the referendum vote be a simple Yes/No affair. A single question cuts to the heart of the issue and, notionally, should produce a clear outcome. Nevertheless it also greatly increased the risk – or prospect, if you prefer – of a Yes vote. A multi-option referendum would have killed a Yes vote.

But if Hamish is correct I am not, alas, so sure the same can be said of Comrades Forsyth and Nelson. James writes that:

The lesson of devolution is that we tamper with the constitutional framework of the United Kingdom at our peril. But all the major political parties seem intent on continued tactical constitutional tinkering. It is hard to see how this doesn’t end in disaster. ​

Well, perhaps. Devolution – or, rather, parliamentary as distinct from administrative devolution – has queered the constitutional pitch but let’s not pretend it was flat before the Scottish parliament and Welsh assembly were established. Britain’s constitution has always been a magnificently illogical, Heath Robinson contraption. It remains so today and it is only the precise nature of its anomalies that has changed.

It may well be that if you were designing the United Kingdom’s constitutional arrangements from scratch you might find a way of answering the West Lothian Question more effectively or logically. Bully for that. But you’d probably also ask if Church of England bishops or hereditary peers should really have guaranteed places in the legislature too. You might even ask some questions about the Royal Prerogative.

Of course a fully federal United Kingdom is problematic since, as we all know, more than 80% of citizens – or subjects – live in England. The Union’s asymmetry has long been troublesome; it’s only that people in England, by and large, have been unaware of the problem.


But are the demands from the periphery – geographically speaking – that outrageous? Hardly! Or to put it another way, it is not Scotland’s fault that the people of Yorkshire evince no enthusiasm for a Yorkshire parliament. If England’s provinces wish to remain thirled to a centralised government in London that is their right but it’s no reason to deny the entirely legitimate aspirations of peoples in Scotland, Wales or Northern Ireland.

The essence of conservatism is the recognition that if things are to remain the same they must change. If London – that is, Westminster – wishes to “keep” Scotland it must learn to let go. And what, in any case, is so scary about that? All Scotland wants is the power to do its own thing (even if that may often be a stupid thing). In that it is no different from the Basque Country or Texas. Other countries manage just fine with what one might term a mixed constitution. There is no necessary reason why the United Kingdom cannot do likewise.

In any event, the British state has adapted to changing needs and aspirations in the past. In its present form it is less than 100 years old. I know some English readers tire of the Jocks endlessly banging on about the constitution. Plenty of Scots are fatigued by it too. Nevertheless, the issue cannot be wished away. Perhaps there will be an English backlash – as James suggests – but if there is it seems possible that answering the West Lothian Question is as likely to prod Scotland towards leaving the UK as it is likely to actually solve the matter in a way that is fair or logical.

It’s not fair, of course, is the great complaint of our times. Such is life. Perhaps it isn’t fair that the Scots appear to have their cake and eat it. Perhaps it isn’t fair that minorities – such as the Scots and Welsh and Northern Irish – enjoy certain anomalous privileges apparently unavailable to – or undesired by – their English counterparts. Viewed from the periphery, however, such privileges are a means of countering the unavoidable imbalance of a Union in which the periphery is massively outnumbered. The English don’t have to like this but if they wish the Union retained they may have little choice but to lump it.

Absent a fully federal UK the best answer to the West Lothian Question is to cease asking it. I appreciate this is unsatisfactory but so is life.

I heard it suggested yesterday that devo-max – or anything like it – might require a Royal Commission or something of that sort. Well, perhaps. But, again, if such a commission produced recommendations broadly unacceptable to the Scots it would do more harm than good. Not least because it would represent an insistence that Westminster must dictate terms. That dog doesn’t hunt anymore.

Much more than in the past support for the Union is conditional these days and, in large part, transactional. What have you done for me lately and what will you do in the future? In this respect Scotland is to England rather as England is to the European Union. Think of it in those terms and you begin to gain a sense of the Scottish perspective.

As for Fraser’s suggestion that Gordon Brown’s emergence from his tent is another blow for Unionists? Well, again I am not so sure. The Great Sulker is less unpopular in his native land than in England. There are plenty of folk in Scotland prepared to believe that at least some part of English antipathy to Brown rested on the former Prime Minister’s irreducible Scottishness and this – not altogether unfounded – suspicion wins Brown some sympathy north of the border. He suffered at the hands of John Wilkes’s heirs.

Moreover and whatever one may think of him, Brown is inescapably a heavyweight figure. The SNP’s rise in Scotland has been at the expense of, to put it kindly, Labour’s B-Team. It is long past time for Labour’s A-Team to return to the fray. That means Brown, John Reid, Douglas Alexander, Alistair Darling, George Robertson and others. Given the choice between facing Johann Lamont or Gordon Brown most nationalists, I think and contra Fraser, would prefer to take on Ms Lamont.

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  • Fergus Pickering

    I see we are not allowed to comment on Bob Crow’s death. I wonder why that s.

  • Radford_NG

    `Butcher Cumberland` defeated the Scotish Scots at Culloden in ’46 and saved the Lowlanders from them.At that battle various factions from England,Scotland and Ireland fought on both sides.

    Within a generation the Highland Regiments where at the core of the Hanoverian British Army.

    In the next century, Scotsmen created their great colonies in Canada and New Zealand…… well as exploring Africa (Mungo Park;David Livingstone) and substantially governing the Empire or India.

    • Radford_NG

      Now,it appears, the Highlanders and Islanders are pro British and the ant-British are the largely godless urban lowlandlers,many of whom are not even of Scottish heritage (as it is politely called today).

  • flippit

    No, it’s no good, the Scots need to go. The Government should start encouraging the yes vote. The union’s done with anyway.

  • jonlivesey

    Any time a writer refers to British citizens as “subjects”, I stop reading.

    • Wessex Man

      how ignorant of you.

    • tim5165

      Jon, he wrote “citizens – or subjects”. I often attempt to explain the concept of ‘subject’ to my Spanish friends; to me, probably incorrectly, it is why the UK has civil servants rather than functionaries, and why we can not be forced to carry identity cards (at least in peacetime). Thus British people are simultaneously citizens of the state and subjects of the monarch. Now to my flak-proof bunker.

  • john

    We need a modern, credible constitution.
    As the author says, the current mish-mash doesn’t work. There is a real economic and political cost of a monarchy, House of Lords and Royal Perogative – they tell 99.9% of the population that they are second-class citizens and can only get ahead by emulating their “betters”.

  • allymax bruce

    Devo-Max = Nuclear weapons in Scotland, deeper austerity cuts to Welfare, Public Sector jobs in Scotland, and loss of essential services in local authorities in Scotland, less pocket-money given to Scottish Gov’, less say in EU decisions for Scotland, Scots forced into illegal wars, never getting the government we vote for.
    Devo-Max is basically all the bad-bits of the Westminster controlled Union Scotland has just now, but Maximised; why would Scots & Scotland want this evil of Westminster Maximised ?

    • The_greyhound

      “never getting the government we vote for”

      what is it about nationalists and their tangential relationship with reality? Did Scotland vote Welsh Natural Law Party candidates only to have an a Labour Government 1997-2010 mostly consisting of Scots thrust upon it?

      • ChuckieStane

        Labour Government 1997-2010 mostly consisting of Scots thrust upon it?
        1997-2001 – 7 Scots from 22 cabinet members
        2001-2005 – 5 Scots from 21
        2005-2007 – 6 Scots from 21

        • The_greyhound

          For instance 1997-2001 that included the Prime Minister, the Chancellor and the Foreign secretary. Throughout the whole period the Scots were considerably over-represented on a per capita basis.

          Just another nationalist canard.

          • Jambo25

            His numbers were right though and yours were wrong.

          • ChuckieStane

            Neil, If all Scotland had voted Welsh Natural Law Party in 1997 we would still have had a Labour government. England decides on the Westminster government. Scotland rarely affects the result.

          • ChuckieStane

            1997 PM represented an English constituency, his ethnicity is irrelevant – the voters chose him.

            Do you propose an ethnically pure English Parliament? Scary stuff.

  • dougthedug

    An interesting article Alex. People in Yorkshire aren’t demanding either a parliament or an independent state because Yorkshire is an English region not one of the founding nations of the UK and has no Yorkshire sense of national identity. To equate what’s happening in Scotland with regions like Yorkshire, the Basque region and Texas is to fundamentally misunderstand the nationalism which is driving Scottish politics.

    I’m not sure what anomalous privileges Scots, Welsh and Irish enjoy in relation to English residents. The funding of all the parliaments is based on the Barnett formula which was in place long before devolution and in fact is regarded as being unfair to the Welsh.

    I’d also be interested in what you mean by devo-max because no-one has defined the powers that devo-max will give Scotland. It is used as a catch-all phrase to mean more powers than the devolved parliaments have now but how much more is left hanging in the air. Classic jam-tomorrow.

    Brown a heavy-weight? His only contribution to the independence referendum in Scotland so far has been to set up a rival organisation to Better Together because he’s still in a feud with Alistair Darling and to waffle on in very general terms about how he’d like to see devolution progress from a standpoint of glorious isolation. Brown and the media have always had more regard for his abilities than the rest of us.

    • jimmyt

      Yorkshire has a pretty strong identity, despite seemingly not being as keenly felt as the Scottish identity by Scots. It is certainly stronger than those in many other areas of England – it should have been in Yorkshire, instead of in the north east, that the regional assembly test referendum took place.

      English national devolution, in which London and the south east are even more prominent than they are in a UK setting, may not be as enthusiastically supported as several commentators think.

      • terregles2

        Yorkshire though is not a country. Scotland is.

        • The_greyhound


          It had a brief existence as a fully independent state from the early fourteenth century until the mid sixteenth, then settled back into an entirely comfortable and sensible relationship with the rest of Great Britain.

          • terregles2

            It had a brief existence as a fully independent state.?????
            You are obviously on a wind up.
            Scotland became a country in 843 when the first Scottish King Kenneth MacAlpin united Pictland and Dalriada. Scotland is an ancient nation with our own Church own Legal and educational system.
            We were independent from 843 till 1707. Why did you say such a funny thing about us having a brief existence as an independent country. It is really such a weird statement.

            • The_greyhound

              You clearly know incredibly little about the history of Scotland.

              The statement that Scotland became a country in 843 is meaningless. There was some kind of dynastic alliance between indigeneous and irish chieftains, the details of which, like almost all of early Scottish history, are obscure. There was no Scottish state, and swathes of what we now call Scotland were still ruled by Welsh and Norse kings. Mediaeval Scotland acknowledged the suzerainty of the English kings, just as their predecessors had acknowledged the Wessex dynasty as their overlords.

              There was a very self conscious effort to maintain Scottish independence after the wars with Edward I and Edward II, often in cahoots with France, but the Reformation changed Scottish political alignment permanently – the Scots decided that their future lay with Protestant England. A de facto partnership existed from the fall of Mary; the personal Union in 1603, and the Union of 1654 were every bit as significant as the Act of 1707. For most of the last two thousand years England and Scotland have either been a part of the same polity, or connected in some kind of partnership. The period of the Roman occupation, and the late mediaeval period were periods of unusual and untypical divorce.

              Thus Union has been the normal condition of the north and south of Great Britain – the Braveheart stuff really is as instructive as tinned shortbread and tartan frocks.

              • terregles2

                Your version of Scottish history is about as inaccurate as Braveheart.

  • Daniel Maris

    Vermont and California get the same number of seats in the Senate.

    If you believe in a union, you have to be prepared to offer some parity to the federated states.

    I think we should tinker with the British constitution. Let’s have “devo max” for Wales, Scotland, England and N. Ireland and then have a federal council to settle matters of federal defence, foreign policy, and federal infrastructure.

  • Chris Bond

    “The British constitution has never made sense or been fair”

    Is this the Lisbon treaty?

    Because our uncodified constitution was submerged by this despicable EU constitution, and scum journalist have been covering this fact since 2006.

  • Mike

    He suffered at the hands of John Wilkes’s heirs, perhaps but those of us in England suffered at the hands of Scottish bankers egged on by Brown and his profligate spending. We’re still paying the price of people like Fred the Shred.

    However, cutting through the morass of constitutional confusion and obfuscation, it should be a simple matter whether Scottish people decide on independence and going it alone or remaining part of the Union and retaining fiscal protection from the England. Lets stop muddying the water here as there needs to be clear separation if all parties want to succeed in the new arrangements.

    Predictably, Salmond wants a divorce from England & Wales like some footballers wives who brought nothing to the marriage, hung around for a few years being pampered and then divorced the footballer. Like the wives, he demands to be kept in the manner he became used to by living off the others earnings. Whatever happened to a clean break when Salmond wants exactly the same sort of protracted deal from England to ensure his solvency and extravagant standard of living.

  • Henry Hill

    So the big question is… how did Britishness get hollowed out to the point that support for Britain became transactional, and how can we change that.

  • Wessex Man

    It really stuns me that you Alex Massie are put forward as a serious political journalist.

    You show all that is wrong with the current shambles in the ruling elite by mstake and yet you still get paid.

    Before the Blair/Brown/Dewer establishment of a Scottish Parliament and a Welsh Assembly the entire Uk was in the same boat run by fools but treated mostly equally, now we have a part of the Uk, Scotland, population 5 million demanding all the sweetties and throwing an hissy fit when the UK Government says no!

    England a nation that the Scottish Labour dominated Cabinet of 1997/98 tried to do away with gets nothing! except of course the bill! Have you never heard of the fact that Scottish Independence has a higher level of support in England than in Scotland? even now if the English were included Salmond would win and be guarranteed his Independence, perhaps he doesn’t really want it, who would they then have to throw their chippyness at?

    • ADW

      He’s not put forward as a serious politico journo, he languishes amongst the bloggers, the many offspring of Private Eye’s Phil Space and Polly Filla. He churns out lame and unoriginal ramblings, devoid of references, insight or principle.

  • MichtyMe

    The population asymmetry of the UK is “troublesome” but there was a time in the past when the English were the minority (haven’t they done well for themselves) and sometime this century they will be a minority once again.

  • john

    Are we actually beginning to address the real problem- the idiotic British Constitution? The author casually enquires (1) if Church of England bishops or hereditary peers should really have guaranteed places in the legislature and (2) definitely end the monarchy and Royal Prerogative.
    No they shouldn’t.

    Why can’t we have a serious debate and draft a coherent constitution for the 21st century?

  • kle4

    I know some English readers tire of the Jocks endlessly banging on about the constitution.

    True, and as you say the problem cannot be wished away merely because many English and some Scots and Welsh and Irish are tired of it, but that probably explains at least some of the apathy for the Union in its largest constituent part (and if the most populous part of the Union has little interest in the Union, that has an impact on the debate in the other parts), in that, as you also point out, support for the Union is conditional/transactional, and a large proportion of the English either don’t care to or are sick of continually having to defend the existence of the Union, and so sadly many just give in and feel that it would be better for the Union to fall completely because the other constituent parts either hate it so much, or have enough problems with it in its current form that they will never stop bringing it up, that it ceases to be worth it.

    I hope more in England and eslewhere at least retain enough interest and support for the Union to put up a fight and fight for something acceptable to all – a very difficult task – as the constitutional arguments rage on with or without Scottish independence, but I don’t think it will happen. There are not enough with the energy to keep fighting to maintain a system a significant minority detest, and many others have major concerns or indifference about.

    • Michele Keighley

      The problem being, I think, that even if there were such a fight by the English we all know that it would solve nothing. It would not silence the ‘true believers’ and within a very few years we would be back on the same merry-go-round. Let them go I say, it is their choice to make, and we should be focusing on a real democratic representation for England.

  • asalord

    Unionists have only themselves to blame for the devo-mess in which they now find themselves.
    Cameron took the devo-max option off the referendum ballot paper. Now, in panic, various unionists struggle to find a devolution formula, yet cannot agree amongst themselves what form these “cast-iron” devolution terms should take in the event of a No vote. All the while they recognize that increasing numbers of people in Scotland will never believe unionist promises for the future since experience has told them unionist politicians cannot be trusted on devolution.
    Sooner or later I expect unionist politicians to announce a further referendum will be needed to ratify post-2014 devolution. Another 40% rule?

    • Michael Mckeown

      Should Scotland be an independent country?

      Its a simple yes or no question, if yes no need to discus devolution if no the SNP scuttle back under their rocks and the situation will then be disused by the remaining party’s.

  • Malcolm McCandless

    Polling figures for Gordon Brown as Prime Minister were only marginally better than those for the rest of the UK. Brown in the end was just as unpopular in Scotland as he was south of the border.

    What is important to recognise is that a lot of Scottish Labour MPs are opposed to giving Scotland any more devolved powers because they view that as not a threat to the union but to the unity of the British Labour party.

    Devolution has the power to split the Labour party in two, and not even Gordon Brown and his one-man bandwagon could prevent that.

    • terregles2

      I have never come across anyone in Scotland who liked or likes Gordon Brown.

      • The_greyhound

        Interesting how well Labour did at the Dunfermline and Cowdenbeath by-elections though wasn’t it? SNP support down a massive 13% on both occasions.

        But I suppose you never met anyone in Scotland who voted Labour either. You should try to get up here more often.

        • terregles2

          Did I say that I have never met anyone who voted Labour? No of course I did not. Labour returns a majority of Labour MPs to Westminster which more than irritates many English voters and causes a great deal of resentment.
          I stated that I have never met anyone who likes Gordon Brown an entirely different statement. Most people vote for the policies of a party not the leader. Some people who do not like Alex Salmond still vote SNP.
          I live in the central belt and I do not know anyone who respects Brown. Many disliked him after he supported Blair in the Iraq war.
          I do not vote SNP therefore the position of the SNP in an election does not interest me. I am a YES voter not an SNP voter. There is quite a big difference.

        • ChuckieStane

          Neil, I don’t know why you’re so obsessed with Cowdenbeath. If Labour can’t win there they can’t win anywhere. I’m also surprised that a Daily Mail guy like yourself is so happy to celebrate a victory for Gordon Brown.
          …or do you come from near Lochgelly and do not possess a TV 😉

  • ChuckieStane

    Some good points here and Alex is right to concentrate on the constitutional issues as that is the exam question. The UK’s constitutional arrangements are an outdated mess and the root cause of so much discontent not just in Scotland. Ignoring it, like the WLQ, is not the answer.

    The final paragraph about Labour’s A and B teams, leaves aside the constitutional question and again misrepresents the Indy Referendum in party political terms. The attempted introduction of Brown (for the third time) as a “game changer” insults the electorate. It is a crude dog-whistle to traditional Labour voters to put aside rational thought on the constitutional question and vote tribally because Gordon says so. I do not believe Mr. Brown commands such influence.

    Labour are in a bind in Scotland. For them, Holyrood has always been the “diddy” parliament. All their best talent is earmarked for Westminster. Commons or Lords will always trump Holyrood in the Labour career stakes. The strongest opponents of indy are the Westminster backbenchers, for it is they who stand to lose their cushy number. Indy will sweep away two layers of government from Scotland Lords Reid and Robertson will be plain old “Mr.” again. The Scottish MPs will be scrambling for a new job after a yes vote. For those in rock solid labour seats it will be a shock akin to bereavement.

    Putting forward people who chose London over Edinburgh is not a good starting point in a debate about how Scotland’s interests are best served. The public have seen through them.

    • Michael Mckeown

      Its not a ‘London over Edinburgh’ situation as Scottish MP’s represent Scotland within the UK, do Scottish MEP’s choose Brussels over Scotland?

      • ChuckieStane

        Michael, My point is more about the currency Labour MPs have with the voters. Health and education, for example, are two key areas for Labour voters, yet Labour’s best Scottish talent choose not to go to Holyrood where they can affect such matters. Instead they go to Westminster and do who knows what while English MPs discuss health and education.

        • Michael Mckeown

          Health and education even when run from Westminster was always separate so it seems based on that those interested in health and education would go to Hollyrood and those interested in say defence or foreign affairs would go to Westminster, are the Scottish MEP’s interested in EU matters traitors for going to Brussels?

        • The_greyhound

          “My point is more about the currency”

          First time I’ve seen one of Salmond’s diminishing band of apologists mention the currency for some weeks. How did that one work out for you?

          None the less, the rest of us are interested to hear the answer on that one, as we are about EU membership. If anyone finds out can they let Salmond in the on the secret too?

  • Michael Mckeown

    “Of course a fully federal United Kingdom is problematic since, as we all
    know, more than 80% of citizens – or subjects – live in England.”

    The USA has some very populated state and some very small populated ones but they manage but some better comparisons would be the federal setups of Australia and Canada where there is monarchy and a Prime Minister representing the country as a whole with First Ministers representing the states so its doable in the UK and would just need a bit of willpower.

    • ChuckieStane

      You make a fair point, but unfortunately there are very few with the willpower to change to current arrangement south of the border. A federal strucutre has no chance of happening in the short or medium term. Perhaps if there is a no vote and devo-max becomes an issue it may move up the agenda but realisitically none of the devo-max proposals are at this stage anything other that campaign rhetoric.

      • Michael Mckeown

        There a few things you can bet on with almost certainty, there wont be an independent Scotland, there will be enhanced powers for the devolved governments. All we have to agrea on after that is what we call the setup.

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