A new Act of Union is needed to save the United Kingdom

Jackson Carlaw’s leadership of the Scottish Conservatives will not be remembered as one of the party’s high points.

But while his personal qualities as a leader, a strategist and a communicator are plainly not beyond reproach, neither do they fully explain why he is stepping down after just six months in the job. Certainly, he contributed to his party’s grim situation — 35 points behind in the polls and Scexit now the majority view after 13 lacklustre years of SNP government — but he is not the sole author of Scottish Tory misfortune. 

Douglas Ross, if he succeeds in his bid to replace Carlaw, will come to learn just how demanding a job Scottish Conservative leader is these days. In reality, it is three jobs in one: head of the party, head of the parliamentary opposition and de facto head of the pro-Union movement. 

This is a near-impossible triumvirate to manage. The Tory leader must hold one government to account while acting as the whipping boy for what another government does. He must set policies philosophically discrete to a political party while attempting to hold together a politically diverse pro-Union coalition. He is fated to erect his every policy, strategy and statement around the constitution, limiting his political horizons but also putting at least half the country beyond his electoral reach. 

Ross could prove to be as tough and tenacious as Ruth Davidson but he will still be at the mercy of the same currents. The problem is an institutional one as much as a matter of personal character or ability. The leader of the Scottish Conservatives will always be on the defensive because the devolution settlement as weaponised by the SNP puts him there. 

Control over Holyrood not only gives the Nationalists power inconsistent with the unity of the United Kingdom, it also furnishes them with a platform to agitate for separation. As long as the SNP remains in charge of an unreformed devolution settlement, the constitution will continue to loom large and as long as it does any scope for better governance of Scotland (and with it political alternatives to the SNP) will be forfeited. If the Tories cannot appreciate the constitutional necessity of remedying the dangerous flaws in devolution, they should be able to grasp the political expediency.

Westminster must do the heavy-lifting of repairing the constitution so that Ross, or whoever succeeds Carlaw, can focus on the day job. Some belated attention from SW1 would be welcome. Successive prime ministers have neglected Scotland and left the defence of the Union to opposition parties at Holyrood. The public are subjected to a daily barrage of grievances about Westminster and spin for separation. From Westminster, they hear only the occasional squeak of objection. 

The problem is structural. Westminster built a devolved parliament to stop nationalism but instead nationalism took control of that parliament and is using it to put a stop to the Union. Devolution was a policy born not only of fear but of arrogance. The Labour establishment that had ruled Scotland for half a century was prompted to action by the prospect of losing its grip on the nation’s politics to the SNP but it failed to contemplate losing in the new system it proposed. Scotland was Labour and devolution would only make it more so. 

There is not much to recommend nationalists if you’re looking for good schools or new hospitals but they understand human nature better than social democrats. The Nationalists told Scotland it was a victim of Westminster. Building a Scottish parliament didn’t dispel this myth, it conceded it. The same dynamic would later destroy Scottish Labour as a force in Westminster politics: if Tory governments did Scotland down, as Labour had thundered for decades, why would Labour stand with the Tories against independence, Scotland’s chance to be free of them forever?

Not everyone in the party was so shortsighted. The late Tam Dalyell, lifetime member of Labour’s awkward squad, called devolution ‘a motorway without exit to a Scottish state’. Today, we are at the final services station before the point of no return. Of the nine polls taken on independence so far in 2020, five showed a majority for separation, two were tied and a further two produced the narrowest of majorities for staying in the UK. 

The Prime Minister has refused to grant a second referendum, but this line can only be held so long. Eventually, the SNP will either call his bluff by holding a consultative referendum or seek the power to hold an official plebiscite via the Supreme Court.

Either of these options carries significant risk for the Nationalists but not for them alone. Public opinion in the rest of the UK would only tolerate a constitutional crisis for so long before concluding that Scottish secession might be in everyone’s best interests. The next Scottish Tory leader should be acutely aware of that danger.  

Before outlining a way forward, let us dispense with some of the easy answers that lie at either fringe of the debate. Some figures in Scottish Labour, with their careers as much as the constitution in mind, say Westminster should not block another referendum on separation.

What is disguised as the argument of a democrat is in fact the groundwork-laying of opportunists who see momentum and instinctively chase it. The Union should not be abandoned simply because it is less popular or because it would be politically advantageous to side with the new Scottish establishment. The United Kingdom is worth fighting for. 

On the other margin are those who want rid of devolution altogether. Scrapping the Scottish Parliament and other devolved assemblies is within Parliament’s prerogative but it would mean disregarding the result of referendums. Parliament may be sovereign but where Parliament has consulted the electorate on constitutional matters — a relatively recent phenomenon which should be allowed to die out — it ought to respect their will.

Devolution was badly designed and introduced for the wrong reasons but the principles of localism and dispersed powers are sound ones. Perhaps legislative devolution and UK unity are intrinsically incompatible, but before tossing out the baby, we should at least try to refreshen the bath water. 

Making devolution work better requires us to recognise its design flaws. Rather than addressing the distinct needs of ordinary Scots, devolution focussed on erecting further political structures for elite actors. Donald Dewar, the Scottish Secretary who oversaw Holyrood’s creation, went directly to serve as First Minister. Unsurprisingly, the system he helped devise consolidated an array of powers in his hands and since Labour would govern Scotland till Judgement Day, there was nothing to worry about. 

On this flawed settlement the SNP has built its empire and turned what was intended as a formal expression of a fiefdom into a rival seat of political authority to Westminster. The leeway that the current arrangements grant the Scottish Government both to act as though it were running an independent state and to use the levers of devolved power to agitate for such a state is extraordinary. 

The UK Parliament could permit this situation to continue and hope the SNP comes up a cropper or that Scots pull back from the brink the clearer the costs of separation become. It should be obvious by now that complacency and drift only help the nationalist cause. The continuing prospect of independence creates for Nicola Sturgeon a built-in level of support approaching, or even surpassing, a majority in Holyrood and Westminster elections.

Equally, Parliament could restrict itself to the sort of limited reforms we are beginning to see on the internal market and the Shared Prosperity Fund. However welcome these measures are, they are attempts to tether mist.

Something more substantial is called for. Spike the football or they will score. 

The problems began with a Scotland Act and were exacerbated by further Scotland Acts. The remedy must begin there, too: a fresh Act of Parliament for a fresh constitutional settlement.

A further Scotland Act might sensibly take the form of a new Act of Union, since the Holyrood experience has demonstrated the potential for devolution arrangements elsewhere to be similarly captured by anti-UK forces . Such legislation has been proposed before and Boris Johnson’s government should take it up for it is the last best chance of not only saving the Union but making it stronger. A great deal of political, legal and constitutional enquiry would have to go into the provisions of the Act but the broad themes can be sketched out. 

A modern Act of Union should be for a truly United Kingdom. It should define the UK as a unitary state in which due deference is accorded to each nation’s distinct history, tradition and legal systems but in which the seat of sovereignty is placed beyond doubt.

Scottish nationalists and the more romantic-minded in Labour and the Liberal Democrats assert the ‘sovereignty of the Scottish people’ as a constitutional principle and the Claim of Right (1989) as its instrumental manifestation. In fact, no such principle is recognised in law and the Claim of Right was a glorified press release with zero constitutional standing. Under the UK constitution, Parliament is sovereign — or, properly, ‘the Crown-in-Parliament under God’. 

It may ring old-fashioned but a 21st century Act of Union should reassert the primacy of Parliament because it is the guarantor of liberty, order and good government but also because it binds Scots, English, Welsh and Northern Irish together, where the devolved assemblies set us apart. 

Which powers should be assigned where is a big question that cannot be exhaustively answered here, but certain principles can be outlined. In each devolved nation, such powers should be devolved as are required to cater for discrete needs or contexts but all powers not specifically devolved should be considered reserved. Practically, there are areas where it makes sense for a devolved body to legislate as well as administer.

Health provision has been discrete to Scotland since long before the NHS, and when that institution came along it did so in the form of a distinct NHS Scotland. History and tradition, in addition to specific health needs in parts of Scotland, mount an overwhelming case for most of health policy to be decided at Holyrood. 

The same principle, it might be argued, should apply in portfolios such as education and skills; large parts of justice and public safety; agriculture, environment, land reform and planning; infrastructure, housing and tourism. 

Even where powers are reserved, the government should give due consideration to any recommendation from the Scottish Affairs Committee for bespoke policies, structures, funding and timescales for Scotland. However, if the UK is to be a unitary state and its Parliament sovereign, any new Act of Union ought to dispense with the convention that Westminster does not generally legislate in devolved areas without Holyrood’s approval. The ‘permanence’ of Holyrood should be dropped and a prohibition placed on expending taxpayers’ money or parliamentary time on reserved matters.

Another myth that an Act of Union could put to bed is the notion that it is possible to obtain a mandate for a constitutional referendum in a Scottish Parliament election. The constitution is reserved. A Scottish Government elected on a manifesto commitment to an independence referendum has no more of a democratic mandate for one that if it had triumphed with a call for a referendum on expelling Trident or recognising an independent state of Catalonia. These powers rest at Westminster and Westminster alone. 

It should hardly need to be said that the coalition against a new Act of Union would be sizeable. Not only the SNP and the Greens, but the wider devocrat industry, including the federalist Lib Dems and even the more hand-wringing Tories. Among the fiercest opponents would be Labour’s devolution-ultras, who have not had a fresh idea about the constitution since 1997 and daren’t have one for fear of conceding just how much damage their experiment has done to the Union. 

The academy, civil society, the third sector, the Kirk and Scotland’s establishmentarian artists and intellectuals would be especially vocal. The sheer scale of this enmity is not a reason to reject an updated Act of Union; in fact, it demonstrates why one is so necessary. These interests represent an independent Scottish state in gestation and would merely be lashing out at losing the power they have spent so long accruing.

A revised devolution settlement would bring with it revised responsibilities. Westminster’s sovereignty would be secure again but its duties to the entire United Kingdom would be clearer than ever. If the UK is to be more politically united, it must be more economically united too. This country is the sixth largest economy in the world but if you live in Greenock or Barlanark or Ferguslie Park, it doesn’t feel like it. 

Alongside any Act of Union Bill there should be plans for a UK Solidarity Fund that funnels resources to the most deprived parts of the country, relocation of most government departments and agencies to the nations and regions, corporation tax holidays for firms that headquarter in Livingston or Llandudno rather than London, and the use of the taxation and welfare systems to lift more people out of poverty and guarantee a minimum standard of living across the UK. 

After politics and economics, the third leg of the unity stool is cultural. You can make laws, you can even hand out free money, but you cannot make people feel British. That requires the building of new institutions and fostering of new identities in place of the old ones that used to bind people together across our four nations.

The UK must be a country where complex and even contradictory ideas of self, belonging, community and nationality can coexist. It is possible to be Scottish, British and European at the same time, but while Scottish and European identities are promoted and reinforced, British identity is increasingly invisible in Scotland. Pass all the Acts of Union you want but until you change that, the fate of the Union will remain in contest. 

This is a towering agenda for any government to adopt but if the Conservatives aren’t prepared to do it while they command a healthy majority in the House of Commons, then it will never get done. The Scottish Conservatives will pay the price for this complacency, as every fresh leader is welcomed with much hope and eventually waved back out with glum resignation.

The fate of the Tory Party is of little concern to me. The greater injury will be to the Union, which will be corroded further until it can no longer be repaired, but if an appeal to the national interest cannot persuade Boris Johnson to act, petitioning his party’s political interests might be the clincher. Nothing the next Tory leader does will be as important as what the Prime Minister decides to do about devolution. He can either concede that independence is inevitable or steel himself for a historic fight for the Union.

Originally published in the Scottish Daily Mail. Letters: scotletters@dailymail.co.uk. Image by Waldo Miguez from Pixabay.