{"id":835,"date":"2014-08-12T10:41:14","date_gmt":"2014-08-12T10:41:14","guid":{"rendered":"http:\/\/blogs.sps.ed.ac.uk\/referendum\/?p=835"},"modified":"2018-07-06T14:37:22","modified_gmt":"2018-07-06T14:37:22","slug":"the-uncelebrated-union","status":"publish","type":"post","link":"https:\/\/blogs.sps.ed.ac.uk\/referendum\/the-uncelebrated-union\/","title":{"rendered":"The Uncelebrated Union"},"content":{"rendered":"

Neil Walker responds to last week’s debate, noting that ‘what\u00a0 was\u00a0not\u00a0said was more interesting and more revealing than what was’. This piece was originally published at the Scottish Constitutional Futures Forum<\/a>.<\/em><\/p>\n

Last week’s first televised debate of the referendum campaign revealed few surprises of tone or content, even if the outcome disappointed pro-independence hopes of a momentum-building surge in support.\u00a0 As expected, Alex Salmond concentrated on\u00a0 the core message\u00a0 of political self-determination, and the prospect of the new Scotland embracing a model of social and economic solidarity that London is increasingly unable or unwilling to deliver.\u00a0 With equal predictability, Alistair Darling for\u00a0 ‘Better Together’ insisted upon the precariousness of the pro-independence position on currency, placing this at the suggestive centre of a wider\u00a0 narrative contrasting the vulnerability of a fledgling Scottish polity to the\u00a0 reassuring solidity of the existing British state with its broader institutional shoulders and deeper pockets. It was not, truth be told, a good night for the ‘ vision thing’. Salmond seemed somewhat less energised and less sure-footed than usual in his portrayal of the promised land, perhaps inhibited\u00a0 by the artificial format of the TV duel and by the strong pre-debate expectations that his quick wits and populist style would win the day hands-down. For his part, Darling, true to form, simply chose not to let his political imagination off the leash. He stuck to a narrow brief, defending the status quo, or at least a soft focus version of it, and concentrating his fire on the supposed gaps\u00a0 and shortcomings of the ‘Yes’ case.<\/p>\n

For Better Together, as has so often been the case over\u00a0 30 months of campaigning, what\u00a0 was\u00a0not\u00a0said was more interesting and more revealing than what was. One particularly deafening silence, much commented on in the immediate aftermath, surrounded Darling’s refusal, despite many repeated invitations from his opponent,\u00a0 to offer an explicit endorsement of the proposition\u00a0 that Scotland\u00a0could\u00a0\u00a0be successful as an independent country. In an episode that\u00a0 rapidly descended into Paxmanesque political\u00a0 pantomime, and which hardly flattered either party, Darling’s discomfort was that of someone torn\u00a0 between a desire not to offer a succulent soundbite\u00a0 to the ‘Yes’ campaign\u00a0 (‘Darling makes case for independence’), and an anxiety not to appear dismissive of the potential of his fellow Scots.<\/p>\n

On more than one occasion, Darling referred to Scotland as\u00a0 ‘part of something larger’. Yet when he did so, he omitted to give that larger entity a name.\u00a0<\/p>\n<\/div><\/p>\n

There was, however, another telling silence, less apparent,\u00a0 quite unremarked in\u00a0 post-debate commentary, but ultimately of deeper significance. On more than one occasion, Darling referred to Scotland as\u00a0 ‘part of something larger’. Yet when he did so, he omitted to give that larger entity a name. This might seem trivial. After all, everyone knows where and what he was talking about –\u00a0\u00a0 who the ‘we’ are who, in his view, are and ought to remain\u00a0 Better Together. And so, perhaps, we should read nothing more into his silence than a (reasonable) assumption of the self-evidence of his object of desire. Yet\u00a0 that would be too simple an explanation. For Darling’s reticence\u00a0 can also be seen as a mark of\u00a0 reluctance, even of unease. It\u00a0 betrays a sense that the state we are in is best\u00a0 left\u00a0understated, so to speak; and that it might be to the symbolic disadvantage of the ‘No’ campaign to apply a label to the entity whose preservation\u00a0 they seek.<\/p>\n

\u00a0An appreciation of why this is the case takes us to the heart of the question of Scotland’s constitutional future, not just over the vital final weeks of the referendum contest but also in the years to come.<\/p>\n

What’s in a name?\u00a0<\/strong><\/h4>\n

The awkwardness begins with the sheer range of candidate labels. Was Darling talking about – or rather\u00a0not\u00a0talking about – Britain, or the United Kingdom, or perhaps ‘The Union’? As Aileen McHarg\u00a0 reminds us in a recent\u00a0post<\/a>, these are not interchangeable terms, and the uncertain movement between them is a symptom of Better Together’s indecision over whether and how to present a holistic case for the defence. The terms\u00a0 may refer to ( more or less) the same geographical unit, but each speaks in a somewhat different register. Crudely, we may think of Britain as the cultural entity, the UK as the institutional entity, and the Union as the abstract idea – the constitutional key to what these islands hold in sovereign common. Clearly, those different registers – cultural, institutional and constitutional – overlap, and they also closely interact, but they do nevertheless reveal different levels of understanding of our wider political community. And, as we shall see, Better Together is not entirely comfortable operating at any of these three levels.<\/p>\n

Take first, Britain. The long decline of Britishness as a dominant national identity from the 19th century high water mark of Protestantism and empire is well-known. As recently as 1970, asked to choose a single nationality as many as 39% of Scots identified as British. By 2013 that figure had fallen to 23%. The significance of this cultural fact\u00a0 in framing the referendum debate Is often overlooked\u00a0just because\u00a0it is nowadays so well established. But it can hardly\u00a0 be overestimated.\u00a0 As the Edinburgh Agreement confirms, it is Scotland’s referendum to decide, not Britain’s, and the arguments on both sides – from Better Together every bit as much as the nationalists – always appeal first and foremost, and often enough solely,\u00a0 to the Scottish rather than to the British national interest in making their case.<\/p>\n

Yet that\u00a0 is not to say that a cultural sense of Britishness is irrelevant to the debate. Only around a quarter of contemporary Scots assert an exclusively Scottish identity, the rest admitting at least to a residual sense of British\u00a0 identity, and more than one third regularly claiming their British identity to be as strong if not stronger than their Scottish identity.\u00a0\u00a0 Migratory patterns further complicate cultural identity. Over 800,000 people born in Scotland live elsewhere in the UK, mostly in England; and according to the Scottish Government’s recently published draft interim constitution, those members of that sizeable\u00a0 diaspora who presently qualify as British citizens\u00a0 (i.e., nearly all) would automatically join the vast majority of the\u00a0 5.3\u00a0 million Scottish residents\u00a0 as\u00a0 citizens of\u00a0 a newly independent Scotland, including the half million Scottish residents who were born in England.[1]<\/a>\u00a0Ties of family, friendship and work link many people across the four nations well beyond this considerable population of internal migrants, and together with shared language and heritage, and a wide array of\u00a0 cultural institutions from the BBC\u00a0 to the British Lions, and from the royal family to the Trades Union movement, feed a resiliently self-reinforcing sense of affinity and common sentiment.<\/p>\n

So while it is a dominant identity for relatively few, being British remains an integral part of the cultural self-understanding of most participants in the referendum. It follows that even if it is emphatically the Scottish rather than the British national interest that is at stake in this referendum, some attention must be paid to British values,\u00a0 and\u00a0 to the value of Britishness,\u00a0 as part and parcel of any attractive conception of that Scottish national interest.\u00a0 No-one understands this better than Alex Salmond, and that is why he has been so ready to extol and to endorse\u00a0 the enduring\u00a0 virtues of British culture\u00a0 to audiences both North and South of the border. It is also why he has been at pains to offer reassurance about Scotland’s\u00a0 post-independence commitment to many aspects of ‘social union’, not least the 400 year old monarchical union.\u00a0 For Better Together, however, despite such nationalist concessions, this remains\u00a0 a delicate\u00a0 subject. Indeed, the generosity of the endorsement of a residual Britishness by Scottish nationalists, in particular by the nationalist leadership, can even serve to highlight Better Together’s\u00a0 own difficulty in painting a more robust picture and a more confident sense of the place of British culture in Scottish political life, and so further expose the tension between culture and polity in any vision of a continuing British state.<\/p>\n

What of the United Kingdom? Surely as we move from the cultural software\u00a0 to the institutions that\u00a0 supply the hardware of the modern state the ‘No’ campaign find themselves on firmer ground. For here we are talking about the deeply embedded and closely enmeshed political and economic infrastructure of a 300 year old state; about its common\u00a0 monetary and fiscal framework and financial institutions, its NHS\u00a0 and wider system of social welfare, its dense network of common regulatory agencies,\u00a0 its armed forces, its global diplomatic presence,\u00a0 and its membership of key international institutions from the EU to the UN Security Council, and from NATO to\u00a0 the G8 and G20. And certainly, the kernel of the campaign case for the status quo, as underlined by the formidable sweep and detail of the\u00a0Scotland Analysis\u00a0papers\u00a0 of HM Government and by the tendency\u00a0\u00a0 of\u00a0\u00a0 Better Together spokespersons to disaggregate the case for the UK into its many particular benefits, has been here; in the advantages that accrue from belonging to something tried and tested, bigger and more resourceful, and with a long established international position\u00a0 and global \u00a0reputational\u00a0 capital.<\/p>\n

There is much in all of this, and it may well provide the decisive\u00a0 platform for a ‘No’ vote on September 18th. Yet\u00a0 there is an obvious snag here too. For the stress upon results, what is sometimes called ‘output legitimacy’, leaves the ‘No’ side exposed to counterclaim, and also threatens to cast its overall approach in an unflattering light. To begin with, if it is the record of the British state which\u00a0 supplies the case for the defence, then it is bound to be the\u00a0entire\u00a0record, and, of course, there is much both in the UK’s imperial past and in its long post-imperial decline and\u00a0 repositioning\u00a0 that can be singled out\u00a0 for criticism by those who are inclined\u00a0 to emphasise the downside; and once debate is joined at this level, there can be no copper-bottomed,\u00a0 position-independent way of demonstrating\u00a0 that one side’s assessment\u00a0 of the balance sheet is superior to the other’s.<\/p>\n

In addition, a results-based assessment has a necessarily contingent quality. Success depends upon performance and performance depends upon the presence and maintenance\u00a0 of\u00a0 favourable\u00a0\u00a0\u00a0 preconditions. On the one hand, this leaves the defenders of the British state vulnerable to arguments that these conditions have been eroded and circumstances have changed; that the UK\u00a0\u00a0 as an integrated project\u00a0 in some sense or other has been ‘broken’ or is on the verge of becoming so, whether because of\u00a0 declining financial and diplomatic muscle in a world still suffering the shock waves of the financial crisis. or a congealed neo-liberal consensus at the centre, or the prospect of a UKIP-fuelled marginalisation or exit from Europe.\u00a0 On the other hand, that same preoccupation with successful outputs, and with the conditions of success, also feeds what we might call the tendency towards counterfactual negativism in Better Together’s portrayal of the Yes case. Whether on currency Union, or membership of the EU, or\u00a0 future defence contracts, the No campaign is drawn by its results-orientation to scrutinise closely the basis of the nationalist boast\u00a0 that they could achieve equivalent or better outcomes in another possible world.\u00a0 And while close scrutiny of hypothetical claims is understandable, and perfectly reasonable, it does also help fertilise the view, enthusiastically cultivated by the other side, that the No camp is\u00a0 motivated\u00a0 by narrowly\u00a0 instrumental considerations; that Project Fear\u00a0 and Mission Balance Sheet are its only and small-minded\u00a0 answers to the expansively regenerative politics of nationalism.<\/p>\n

Which brings us third, and finally, to the idea of\u00a0 Union. Can this idea – this most abstract rendition of the state we are in –\u00a0 supply the deep\u00a0 constitutional code that holds the cultural pieces of Britain together, and which makes the institutional framework of the UK and its attendant benefits more than the sum of its parts? In some respects, the idea of Union offers an unlikely candidate for this task. As Colin Kidd has ably demonstrated,[2]<\/a>\u00a0the history of unionism in these islands is not a singular one, but a complex tapestry\u00a0 of sometimes divergent,\u00a0 sometimes interfluent themes. In particular, the banal conception of Union and unionism – especially well-known in Scotland and Ireland –\u00a0 as shorthand for the single, consolidated and\u00a0 historically both largely centralised and imperially expansive British state, is only one part of the story. The other main version of unionism has been generally less prominent over the modern era,\u00a0 yet\u00a0 it is both etymologically persuasive and\u00a0 more consonant with the everyday meaning of the term. It begins with a much earlier pre-1707\u00a0 Scottish impulse to address relations with the large English neighbour on the basis of\u00a0 presumptive equality, continues through various iterations over the centuries of legal Union, and has acquired renewed resonance in very recent times. On this alternative view, unionism is counterposed not to nationalism and to the independence of the component parts, but to an idea of English empire over the territory of the British Isles and beyond. The two\u00a0 versions of unionism, then, do\u00a0 have in common the preservation of the British state, but while in the first version the state prevails by denying or disdaining nationalist sympathies, in the second and more progressive version it prospers by accommodating and in significant measure embracing such sympathies.<\/p>\n

Arguably, it is the second version of unionism that supplies a more persuasive, if still only partial, reading of recent British constitutional history.\u00a0Unarguably, it is the second version that must be deepened and amplified if the Union is to prevail in the longer term. The distinctive components of this progressive unionism are\u00a0 both structural and ethical. In structural terms, the Union offers a very special model of constitutional design, incorporating a rare\u00a0 idea of constitutional authority. The Union state is understood \u2013 at least ideally if not always strictly as a matter of historical record\u00a0 – as a conditional compact between sub-state national authorities, each of which retains or (in the less idealised version) rescues and regains\u00a0 some core of constituent power \u2013 some claim of national right \u2013 to revisit the terms and the very existence of Union.\u00a0 The Union state, then, emerges and matures through a process\u00a0 of evolution and according to the shifting balance of constitutional forces, rather the unfolding of a single master project. Equally, its form always remains provisional, open to further development rather than a matter of finality. And its shape is inevitably asymmetrical, reflecting the different composition and aspirations of its national parts \u2013 what Michael Keating calls its \u2018plurinational\u2019 rather than its \u2018multinational\u2019 pedigree[3]<\/a>\u00a0\u2013 rather than the careful symmetry of the units we find in\u00a0 classical federalism. Last, and most fundamentally, the Union state, progressively understood,\u00a0 must\u00a0 draw a distinction between constituent power and constituted authority \u2013 or between (plural) political sovereignty and (singular) legal sovereignty. The coherence of the polity requires\u00a0 that a particular settlement of legal authority hold firm at any particular time and cannot lightly be overturned, but the need to respect the equality of the national parts also requires \u2013 whether or not as part of a formal\u00a0 constitutional amendment procedure –\u00a0 that this settlement remain open to revision in a way that allows and respects the renewable\u00a0 expression of popular sovereignty (normally indicated\u00a0 through referenda)\u00a0by\u00a0these national parts.<\/p>\n

The ethical dimension of a progressive unionism is perhaps even more under-articulated, but it has recently been given thoughtful articulation by Gordon Brown.[4]<\/a>\u00a0 Brown insists that it is a necessary rather than a contingent feature of the British state, as well as a distinct advantage over an independent Scotland,\u00a0 that it be a \u2018Union of social justice.\u2019 That is to say, there should be and should remain an \u2018insurance policy\u2019 between the national parts enabling, through common fiscal instruments, whatever redistribution is necessary to guarantee common standards of welfare across the UK as a whole wherever and whenever resources and risks are otherwise unequally divided. Clearly, this inclusive commitment to a basic threshold of social justice requires some measure of common investment in values such as egalitarianism, community spirit and social responsibility – social democratic standards\u00a0 that Brown reminds us are, by any historical measure,\u00a0 as much English as they are Scottish, Welsh or Irish – but it also requires this to be matched by the\u00a0 deep political tolerance of diversity necessary to give effect to the structural dimension of Union. That is to say, a progressive unionism must find a way of reconciling solidarity with respect for different forms of cultural life and their political expression. And in\u00a0 so doing it must recognise and manage the following difficulty;\u00a0 that\u00a0 each cluster of values is both the condition of and a constraint upon the other. Solidarity is required for a settled\u00a0 order of political pluralism to prevail, but the more pluralistic \u2013 the more diversely accommodating \u2013 the polity, the greater the challenge there is\u00a0 to generate such\u00a0 solidarity. Equally, without robust recognition of national diversity in today\u2019s Britain, the trust and respect necessary to sustain cross-national solidarity will not be forthcoming, yet\u00a0 the political arrangements necessary to deliver the solidarity dividend themselves set limits on how far political diversity can be accommodated.<\/p>\n

The case for the\u00a0 Union state as an answer, however complex, to the internal pluralism of the British state is strengthened by it suitability to the wider political environment. The Union\u00a0 idea may represent a departure from\u00a0 the constitutional orthodoxy of the modern state, but its more decentred and negotiated understanding of\u00a0 sovereignty and its provisional and iterative approach to constitutional agreement\u00a0 reflects and adapts to recent developments in\u00a0 geopolitical circumstances. For the broader constitutional picture in a globalising age\u00a0 is not simply of a two-level power system, but of a multipolar pattern. Constitutional\u00a0 authority\u00a0 in and for the Union today is in fact balanced precariously not just amongst\u00a0 London, Edinburgh, Cardiff and Belfast, but also between these sites and Dublin, Brussels ( EU political institutions), Luxembourg (EU Court of Justice) and Strasbourg ( European Court of Human Rights). Legal\u00a0 jurisdiction\u00a0 in this densely interconnected environment, therefore,\u00a0 comes not in organically compact blocks but\u00a0 is salami-sliced across a range of political settings. In turn, that multipolar authority system has encouraged a more general\u00a0 underlying\u00a0\u00a0 condition of\u00a0\u00a0 ‘constitutional unsettlement’.[5]<\/a>\u00a0With so many constitutional sites co-implicated, and with no undisputed ‘authority of\u00a0 authorities’\u00a0 to plan or co-ordinate their interaction, the course of constitutional change becomes unpredictable, with the resolution of each arena of negotiation and disputation heavily dependent upon similarly unresolved questions in other arenas. So, as we have seen, uncertainty about Britain’s future in the EU, and to a lesser extent\u00a0 the ECHR, and similar doubts about an independent Scotland’s European prospects, have become\u00a0 staples of the referendum debate, just as, reciprocally, the referendum result will significantly affect the stakes and influence constitutional (re)negotiation in all these other areas.<\/p>\n

All in all, the idea of the Union state, especially under the\u00a0 flexible arrangement of the unwritten constitution, seems\u00a0 a good fit for this fluid scenario. In particular, with its\u00a0\u00a0 recognition of the inevitably of power-sharing, and in its emphasis upon the open-ended political treatment\u00a0 rather than the definitive\u00a0 legal resolution of diverse constitutional claims, the Union state can speak a language of\u00a0 relative rather than absolute authority, of shifting rather than final settlement, that is appropriate to our time and place.<\/p>\n

The Union’s new vows\u00a0<\/strong><\/h4>\n

There remains, of course, a gap between such a progressive unionism in theory and the Union in practice. The Union today remains largely uncelebrated, as double-edged\u00a0 a source of comfort and inspiration for the defenders of the state we are in as are the ideas of Britain and the United Kingdom. In part this is because of the legacy of traditional unionism –\u00a0 the banal, knee-jerk\u00a0 version that rejects rather than encourages accommodation of political and cultural nationalism below the state. In part, too, it is because the difficult work of rethinking the Union in a more rounded fashion requires a kind of cross-party engagement and reasoned, inclusive dialogue that has not found an easy place in the referendum campaign. Significant progress has been made. The Scotland Act 2012, negotiated between Westminster and an SNP-led Holyrood, is gradually rolling out more fiscal powers and new fields of competence to the Scottish Parliament, while the three main pro-Union parties have all published plans for further constitutional reform, and have agreed to develop these under a joint platform post-referendum. But much of this activity has been reactive, a second agenda behind the main priority of fighting the referendum in more critical and defensive mode.<\/p>\n

Yet if the new progressive unionism outlined\u00a0 above is to be taken seriously as a long-term solution to Scotland’s constitutional question,\u00a0 then it must do more. The structural and ethical questions it asks\u00a0 offer new opportunities to the political imagination, but they also pose significant challenges. More work is needed not just to convince sceptical nationalists that their aspirations can be accommodated, but also to commit effectively\u00a0 to the procedures of ‘joined up’ constitutional reform the Union needs if it is to integrate concern for the Scottish question and for the sub-state national question more generally, with all the other aspects of the multipolar constitution.<\/p>\n

The task of achieving and sustaining a long-term commitment among Unionists to progressive unionism should not be underestimated. Nor should anyone understate the difficulty of selling to a wider audience such a project, whose core message is a rejection of the false clarity of some versions both of nationalism and of traditional unionism, in a manner that is itself sufficiently clear and appealing. One thing is certain, however. If the British\/UK\/Union state is to succeed in promoting a grown-up and sustainable constitutional model for the 21st century, it has to get used to declaring its own name and aim in public.<\/p>\n

Neil Walker is\u00a0Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh.<\/em><\/p>\n

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[1]<\/a>\u00a0See further, N. Barber,\u00a0‘After the Vote: The Citizenship Question’<\/a>; J. Shaw, ‘Citizenship in an Independent Scotland: Legal Status and Political Implications’ CITSEE Working Paper 2013\/34.<\/p>\n<\/div>\n

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[2]<\/a>\u00a0 Colin Kidd,\u00a0Union and Unionisms\u00a0(2008)<\/p>\n<\/div>\n

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[3]<\/a>\u00a0Michael Keating\u00a0Plurinational Democracy; stateless nation in a post-sovereign era\u00a0(2001)<\/p>\n<\/div>\n

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[4]<\/a>\u00a0Gordon Brown,\u00a0My Scotland, Our Britain\u00a0(2014)<\/p>\n<\/div>\n

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[5]<\/a>\u00a0N. Walker, “Our Constitutional Unsettlement” [2014]\u00a0Public Law\u00a0529-548.<\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Neil Walker responds to last week’s debate, noting that ‘what\u00a0 was\u00a0not\u00a0said was more interesting and more revealing than what was’. This piece was originally published at the Scottish Constitutional Futures Forum. Last week’s first televised debate of the referendum campaign … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":18,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[15],"tags":[],"acf":[],"_links":{"self":[{"href":"https:\/\/blogs.sps.ed.ac.uk\/referendum\/wp-json\/wp\/v2\/posts\/835"}],"collection":[{"href":"https:\/\/blogs.sps.ed.ac.uk\/referendum\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.sps.ed.ac.uk\/referendum\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.sps.ed.ac.uk\/referendum\/wp-json\/wp\/v2\/users\/18"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.sps.ed.ac.uk\/referendum\/wp-json\/wp\/v2\/comments?post=835"}],"version-history":[{"count":3,"href":"https:\/\/blogs.sps.ed.ac.uk\/referendum\/wp-json\/wp\/v2\/posts\/835\/revisions"}],"predecessor-version":[{"id":838,"href":"https:\/\/blogs.sps.ed.ac.uk\/referendum\/wp-json\/wp\/v2\/posts\/835\/revisions\/838"}],"wp:attachment":[{"href":"https:\/\/blogs.sps.ed.ac.uk\/referendum\/wp-json\/wp\/v2\/media?parent=835"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.sps.ed.ac.uk\/referendum\/wp-json\/wp\/v2\/categories?post=835"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.sps.ed.ac.uk\/referendum\/wp-json\/wp\/v2\/tags?post=835"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}