Scotland, independence, wider constitutional implications and bishops in the Lords (again)

The announcement that David Cameron and Alex Salmond have agreed in principle that the Scottish Parliament will hold a referendum on independence in the autumn of 2014 prompts me to wonder about its possible wider implications.

Obviously, if Scotland decides to become an independent state, the constitutional implications for England, Wales and Northern Ireland will be exceedingly complex – not least because of the effects of the enormous disparity in population and political influence between the three remaining members of the UK. But my hunch is that even if Scots choose the status quo, one of the effects of a two-year debate on Scotland’s place in the Union will be to prompt political commentators and politicians of all parties – and not just Scots – to revisit the relationship between the constituent parts of the UK as a whole.

Perhaps that process has already started with the publication by the Scottish Liberal Democrats of Federalism: the best future for Scotland, the report of a commission chaired by former party leader Sir Menzies Campbell. That report recommends, inter alia, that the UK adopt a federal system with a series of regional and national parliaments and assemblies and a federal government and legislature retaining powers over foreign affairs, defence, currency, welfare and pensions  and that the Act of Union be replaced with a “Declaration of Federal Union”.

Though the slogan was coined by Keir Hardie, “Home Rule All Round” – or something very like it – is long-standing Liberal policy: so there is at least an element of “no surprise there, then” in Ming Campbell’s conclusions. That said, however:

  • notwithstanding the fact that the Conservatives opposed Scottish devolution the current Coalition has transferred a limited range of tax-raising powers to the Scottish Parliament;
  • it is highly unlikely that any future Labour Government would refuse a request for further devolution of reserved powers to Scotland;
  • the law-making powers of the National Assembly for Wales have been considerably augmented since the original devolution settlement; and
  • various formerly-reserved areas (such as criminal justice) which would once have been regarded as highly controversial have been transferred to the Northern Ireland Assembly.

So devolution – Scottish independence or no – looks very much like a one-way street.

But what, you might ask, does this have to do with “law and religion”? – to which my answer is this: at some point after autumn 2014 – whichever way the referendum goes – people will start looking again at the overall constitutional settlement. Federalism: the best future for Scotland (whose recommendations are largely predicated on the assumption that the Scots will vote against independence) says this:

“If the referendum on Scotland’s future due in 2014 reinforces the commitment of people in Scotland to the United Kingdom then it will open the door to change across the whole of the UK.”

I am sure that that judgment is correct; and one of the elements in that exercise will be the nature of the relationship between the Westminster Parliament and the devolved assemblies. And I predict when they do look at that relationship, the issue of bishops in the House of Lords (or whatever they end up calling a further-reformed second chamber) will come under scrutiny all over again.

A Scots version of Article XXXVII might have read: “The Bishop of Canterbury hath no jurisdiction in this Realme of Scotland” – and the same considerations apply in Northern Ireland and Wales. As I have observed before in this blog, the reason why English bishops have a voice in matters affecting the other three constituents of the UK is almost entirely historical accident: they were members of the House of Lords long before the Acts and Treaty of Union. But will “historical accident” still provide an adequate basis for their continued membership if and when the UK moves towards a more overtly-federal model?

The foregoing is (obviously) pure speculation; and unless the Scots do vote for independence – at which point almost everything even vaguely “constitutional” will be up for grabs – any change is unlikely to come in my lifetime. But though reform of the House of Lords is an extremely tricky issue (as successive Prime Ministers from Harold Wilson to David Cameron have sometimes found to their cost) it is an issue that is not going to go away – and the place of the bishops in the Lords is an inevitable part of that.

Nor is a federalist solution that devolves power to the English regions any kind of quick fix. Everyone knows where the boundaries of Wales and Northern Ireland are but how many have much idea of the boundaries of the regions of England? My suspicion is, very few. And even if they do know what region they live in, do people who live in Carlisle feel any great common identity with the folk at the other end of the “region” in Birkenhead? I doubt that also.

Moreover, I have not forgotten that in 2004 78 per cent of voters in the North East rejected the proposal for a Northern Regional Assembly, partly because they thought its powers would be so limited that there was little point in setting it up and partly because many of them had had quite enough of politicians and did not want to create jobs for any more of them.

For my own part, I tend to agree with the views of the late, great Adrian Hastings (from whose book of essays, The Shaping of Prophecy, I quoted in my earlier post). In Church and State: The English Experience (Exeter 1991) he concluded that

“Establishment remains adequately but not overwhelmingly defensible on grounds of doing quite a lot of good and very little harm, of being part of a wider symbolic culture of the Nation which we would be fools to dismantle, and of requiring for its termination a quite excessive amount of time and energy” (at p 76).

But even that quote betrays a (no doubt unconscious) identification of the Church of England with a “Nation” whose territorial limits Hastings does not define – a piece of intellectual sloppiness that Hastings himself ridiculed when he wrote in The Shaping of Prophecy about the “unanalysed mirage of … Nation-State, National Church, Established Church”.

But be that as it may, while the fact of Establishment is one thing, the detail of Establishment is quite another. Scotland has a National Church (whether or not it is “Established” is a matter of debate) and so have Denmark, Norway, Iceland and Finland (which has two: the Evangelical-Lutheran Church and the autocephalous Orthodox Church), to name but a few others. But none of those Churches sends representatives to the legislature.

In a prescient interview in The Times in 1994, after the separation of the Prince and Princess of Wales, the then Archbishop of York, John Habgood, told Ruth Gledhill that the intimate link between the Establishment and the position of the Monarch as Supreme Governor of the Church of England meant that Establishment in England was one of the institutions that maintained the stability of the overall constitutional settlement.

“The Act of Union between England and Scotland followed by six years the… Act of Settlement and took place because of the guarantee in England of a Protestant succession. The whole question of unity between England and Scotland therefore comes up”.

Interviewed on the Sunday programme on BBC Radio 4 in November 1995, shortly before his death, Eric Evans, late Dean of St Paul’s, made a similar point about what he regarded as the centrality of Establishment to the constitutional settlement:

“The Constitution is a great tapestry. Once you start unpicking it, you could end up with a great mess on the floor”.

At the time, I thought that Habgood and Evans were protesting too much and that constitutional arrangements do not normally fall apart as a result of random accident – but with hindsight I was probably wrong.

The prospect of a two-year debate on the place of Scotland in the UK has turned the issue on its head, The end of Establishment is not going to unravel the constitutional settlement; instead, the unravelling of the constitutional settlement might well have a serious effect on Establishment – not to kill it off but, very possibly, to change its nature quite significantly.

My prediction is that a combination of increasing secularisation and the march of devolution – let alone Scottish independence were it to happen – is going to make the position of the Lords Spiritual harder than ever to defend. That said, however, whom would you rather have in a second chamber: the likes of Rowan Williams or, from an earlier era, John Habgood or David Jenkins – or some deadbeat former backbench party hack who never made much of a mark in the Commons in the first place?

Answers on a postcard or, preferably, below…

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