However repugnant one finds the House of Lords; however much Their Lordships may represent the undemocratic power, unearned privilege, and corrupt patronage that makes the British state so abhorrent to thinking persons of good conscience, you have to allow that, just occasionally and often quite incidentally, the upper chamber does us a service. Every once in a while, Their Lordships get it right. This is one such occasion.
They deserve no plaudits for noting that the UK Government’s latest round of constitutional tinkering is an incoherent, incomprehensible, infeasible shambles. It was inevitable that it should be so. For reasons that Lord Lang, chairman of the House of Lords Constitution Committee, only partially acknowledges. He recognises that the Scotland Bill was cobbled together in an effort to appear to be honouring a vacuous political promise made in a state of confused panic as the British establishment awoke to the scale of the threat posed by the wave of democratic dissent that had arisen in Scotland. He even appears to chastise the executive for curtailing debate so as to prevent the disorder of the legislation being exposed.
What Laing does not acknowledge is the fact that any devolution legislation contrived by any of the establishment parties must be fatally flawed due to the imperative that the legislation should, under all circumstances, serve the interests of the ruling elites of the British state rather than any project related to the needs, priorities and aspirations of the people of Scotland.
The current Scotland Bill is the UK Government’s third attempt to create an “enduring” constitutional settlement for Scotland. All previous attempts have, self-evidently, failed. Increasing effort has been put into them, yet they have failed earlier and more spectacularly on each occasion. Every set of proposals emerging from the various talking-shops set up by the UK Government or any of the British parties has initially been hailed as the ultimate solution, only to later be pronounced inadequate and unsatisfactory by the same people who had declared it totally adequate and entirely satisfactory.
Each iteration of devolution legislation has further limited the options open to the Westminster elite in terms of a further show of transferring powers to the Scottish Parliament. The process was always going to hit a wall. A massive, solid, impenetrable wall. The House of Lords Constitution Committee has finally admitted the existence of this wall. In doing so, Their Lordships may have done us all a very big favour indeed.
The anti-independence campaign – or what we should more accurately call the campaign to preserve the British state and its structures of power, privilege and patronage – brought all the considerable might of the British establishment to bear in an effort to make the referendum all about money. In part, this was because, like scripture, economics can be conscripted to serve any argument. If it’s parlous projections and frightening forecasts you want, the dismal science is your best option.
Aided and abetted by the mainstream media, unionists found it distressingly, depressingly easy to subvert the essentially worthy democratic process that the referendum represented, twisting it into nothing more than a tawdry accounting exercise. The whole thing became little more than a crude cost/benefit analysis in which the inputs were carefully selected, or elaborately concocted, in order to ensure the desired negative conclusion.
That much is hardly open to dispute. What is less well recognised is that the fog of economic disputation also served to obscure the fundamental constitutional issue that was the real subject of the referendum. That issue has now been brought into the light by Lord Laing with his almost comically understated reference to the “significant constitutional implications” of further devolution.
The complaint is that even the woefully weak protections for the Scottish Parliament provided by the Scotland Bill are incompatible with the concept of parliamentary sovereignty, which is, in Laing’s words, “a fundamental principle of the United Kingdom’s constitution”. Or, to put it another way, an essential underpinning of the system which serves established power.
At a superficial level, Their Lordships are concerned that the Westminster elite retain the ability to abolish the Scottish Parliament at their convenience. For many British nationalists, the Scottish Parliament represents a real and present threat to the established order. For some, the very existence of the Scottish Parliament is an insufferable affront to the divinely ordained superiority of the British State.
But there is more to it than that. What has now been acknowledged is the constitutional conflict between the principle of parliamentary sovereignty, that the British establishment is concerned to protect, and the principle of popular sovereignty which informs Scotland’s distinctive political culture. These principles are incompatible and irreconcilable. There is no way that they can coexist within the political entity.
With hindsight, we can see that the political union between Scotland and England was doomed from the outset. It could survive only so long as the people of Scotland were meekly content to accept a subordinate status within an asymmetric, anachronistic, dysfunctional union that was contrived in a different age for purposes that were never relevant to us.
Or so long as the people of Scotland lacked a voice by which they might express their discontent.
Now that the people of Scotland have found that voice, the union is exposed as an increasingly intolerable constitutional anomaly which cannot be accommodated and will not be rectified other than by the restoration of Scotland’s rightful constitutional status.
The House of Lords Constitution Committee has come close to accepting the fact that the union is broken beyond repair. We should thank them.