Chapter 2: What is the Union?
8.There is no single definition of what constitutes the Union between the four nations of the United Kingdom. Unlike in most other countries, the essential components or elements of this Union have never been set down or codified. As Dr Andrew Blick, Lecturer in Politics and Contemporary History, King’s College London, told us:
“There has never been a specific moment at which the UK has sought decisively to write down the key values and rules of its system. While all constitutions develop over time, the UK constitution stands out for the extent to which it appears to be an accumulation more than a specific planned construction.”4
9.While there have been historic events in the development of the Union, such as the 1689 Bill of Rights and Claim of Rights, and the different Acts of Union, these have evolved and been superseded over time. Consequently, the UK’s constitution relies on custom, practice and a plethora of different statutes in place of a written constitution, such as is found in nearly all other states. Nonetheless, the Union has certain characteristics and key elements that combine to form its whole. In this chapter, we briefly explore the historical evolution of the Union before setting out the characteristics and key elements of the Union today.
The evolution of the Union
The Unions creating the United Kingdom
10.The Union of the four nations making up the United Kingdom has been influenced and shaped by the history of those nations. That history demonstrates an enduring tension between unity, as the nations came together to form the United Kingdom, and diversity, as they developed increasingly separate administrations.5 The United Kingdom has developed through incorporations and Unions between the ancient nations and peoples that occupy the British Isles.6 Its present form as the United Kingdom of Great Britain and Northern Ireland dates from the partition of Ireland and the secession of the Irish Free State (later the Republic of Ireland) in the 1920s.
11.The Union exhibits a long-standing asymmetry between the administrations of each nation in the Union,7 arising from different circumstances, traditions, politics, culture and geography.
12.Wales was incorporated into the governance structure and legal system of England through the so-called Acts of Union of 1536 and 1543, although English conquest and dominance long pre-dated those Acts. Indeed, from 1746 until 1967, the two were so closely entwined that references to England in statute were automatically taken to include Wales.8 By contrast, the Acts that created the Unions with Scotland and Ireland ensured they retained discrete identities, separate from that of England.
13.The 1706–07 Acts of Union that brought Scotland and England (and therefore Wales) together in Great Britain, “expressly reserved certain Scottish institutions as ‘for all time coming’ unalterable”,9 including the continuation of a separate legal system and church in Scotland.10
14.Ireland was subject to English (and later British) rule to varying degrees from at least the Tudor period.11 The 1800 Acts of Union that brought Great Britain and Ireland together as the United Kingdom merged the Church of Ireland with the Church of England, but maintained a separate judicial system in Ireland.12 The administration of Ireland continued to be conducted from Dublin,13 with the Chief Secretary for Ireland effectively the government minister with responsibility for governing Ireland.
15.The Union with Scotland abolished the English and Scottish Parliaments and created a new British Parliament in which MPs and peers representing Scotland sat on equal terms with those from England, as did members from Ireland following the Union of 1801. Beyond that, Professor Colin Kidd, Professor of Modern History, University of St Andrews, told us that the 1707 Union did not change procedure in what was essentially the old English Parliament. Notably, “There was no mechanism built into the Union to allow for the expression of Scottish discontent with the will of an English-dominated Parliament, or for the redress of such grievances through formal institutional channels.”14 It was not until the early 20th century that the House of Commons instituted separate procedures for the passage of Scottish legislation via separate standing committees of Scottish MPs.
Ireland and Northern Ireland in the Union
16.Ireland’s place in the Union was the subject of enormous parliamentary upheaval during the 19th century. Devolution (or ‘Home Rule’) came to the forefront of the political agenda as pro-Home Rule Irish MPs held the balance of power in the House of Commons in 1885, 1892 and 1910. Home Rule Bills introduced by the Government in 1886 and 1893 were defeated. Arguments over another Home Rule Bill (which became the Government of Ireland Act 1914) and the status of pro-Union counties in the north-east of Ireland were among the most pressing issues in the years preceding the First World War.
17.The Government of Ireland Act 1920, which superseded the 1914 Act, provided for Home Rule through parallel parliaments for Southern and Northern Ireland, with the hope that they would later merge. By 1922, however, Southern Ireland had become an independent dominion, which in 1949 became the Republic of Ireland. Northern Ireland remained in the Union, governed by the powerful devolved Government and Parliament established by the 1920 Act.15 Devolved rule in Northern Ireland was suspended in 1972 after civil rights protests developed into violence and the Troubles, and was not successfully re-introduced until after the 1998 Good Friday Agreement.16
Administrative devolution within Great Britain
18.While Irish Home Rule and partition dominated debate during the late-19th and early-20th centuries, there was also increasing recognition of diversity among the other nations of the UK. Consequently, the UK Government gradually developed separate administrative structures for Scotland and Wales.
19.A Scottish Education Department was established in 1839 and Scotland regained its own department of state in 1885, its head being a member of the Cabinet from 1892 and a full Secretary of State from 1926.17 The National Insurance Act 1911, one of the foundation-stones of the modern welfare state, was delivered by separate Insurance Commissioners for Scotland, Ireland and Wales.18 The Second World War saw a distinct strengthening of the Scottish Office and other national institutions. Scotland’s separate welfare administration was further recognised in the 1940s with a separate National Health Service for Scotland created alongside the new NHS for England and Wales.19 The Secretary of State for Scotland was therefore responsible for a considerable amount of the administration of Government in Scotland—what has been termed administrative independence20—as well representing that nation in the UK Government.21
20.Although administrative devolution developed at a slower rate in Wales, an increasing range of powers were administered separately, eventually through a department of state. Education, national insurance and health were again areas where administration was devolved. From 1951 there was a Minister for Welsh Affairs and in 1964 the Welsh Office and Cabinet post were created.22 The Secretary of State for Wales was thus also responsible for administering a range of Government activity in that nation.
21.Pressure for devolution increased slowly and fitfully through the latter half of the 20th Century. A Royal Commission on the Constitution recommended devolution to Scotland and Wales in the 1970s, but referendums in those nations did not provide the required levels of popular support. Support for devolution grew during the 1980s and 1990s.
The creation of the devolved institutions
22.Following their 1997 general election victory, the new Labour Government held referendums in Wales and Scotland on whether to create devolved legislatures. Both resulted in ‘yes’ votes. The new legislatures and executives came into being following elections in May 1999. Following the Belfast or Good Friday Agreement, and a referendum approving its terms, a new Northern Ireland Assembly and power-sharing Executive was also elected in May 1999. The devolved institutions have subsequently evolved and taken on greater powers. The devolution settlements in Wales and Scotland have been the subject of series of Commissions and cross-party agreements, resulting in new legislation that has increased the powers of the devolved institutions.23 Northern Ireland’s arrangements have been more precarious, with devolution suspended several times during the 21st century. The creation of the devolved institutions and their evolution since 1999 are described in greater depth in Annex A.
Ongoing diversity in the Union and devolution
23.The development of the Union has been shaped in each nation by a multitude of factors,24 creating diversity in the UK’s governance arrangements that far pre-dated the creation of the modern devolved institutions in the late 1990s. The devolution Acts that created those institutions reflected that administrative diversity, granting to the new devolved institutions the powers of the Secretaries of State for Wales and Scotland and the old Northern Irish Parliament.25 The subsequent evolution of the devolved institutions reflects further adaptation of the territorial constitution to the needs of each nation.
24.England stands out as both the historically dominant partner in the Union and the only nation without its own devolution settlement. As Table 1 shows, the majority of England has no devolved government. London’s assembly and mayor—in place since 2000—are an exception and are substantially less powerful than the national devolved institutions. While the new ‘devolution deals’ will provide some devolved or decentralised power to a significant proportion of England’s population, focused on large urban areas that make up a considerable portion of England’s economy, the extent and nature of those deals are still evolving. We discuss the governance of England in more detail in Chapter 8.
Table 1: Devolution across the UK
Area |
Type of devolution |
Population (millions) |
|
England |
N/A |
54.3 |
|
Scotland |
Government and directly-elected Parliament |
5.3 |
|
Wales |
Government and directly-elected Assembly |
3.1 |
|
Northern Ireland |
Power-sharing Executive and directly-elected Assembly |
1.8 |
|
Greater London |
Directly-elected Mayor and Greater London Assembly (performing scrutiny function) |
8.6 |
|
10 English ‘devolution deal’ areas |
Proposed combined authorities (nine to have directly-elected mayors from 2017) |
16.1 |
Source: Office for National Statistics, Annual mid-year population estimates: 2014 (England); Mayor of London, Press Release: London population confirmed at record high (2 February 2015); National Audit Office, English Devolution Deals (April 2016) (HC948) (combined authority areas)
Support for the Union
25.The evidence we received shows that the Union is supported by most people in each nation of the Union. The Scottish independence referendum in 2014 and the 1998 referendum in Northern Ireland ratifying the Good Friday Agreement both confirmed the desire of the people of those nations to remain a part of the UK.26 Although recent polling shows opinion in Scotland still sharply divided on the question of independence,27 support in the other nations for their continued membership of the Union is strong. Recent opinion polls show support for independence from the Union at 6% in Wales, 21% in Northern Ireland and 16% in England.28
26.This popular support is a vital element that underpins and supports the continuance of the Union. It is an essential characteristic of what a number of witnesses described as a voluntary union of nations.29 The UK Government and Parliament’s agreement to the holding of the referendum on Scottish independence acknowledged implicitly the right of Scotland to secede from the Union through a popular vote. Section 1 of the Northern Ireland Act 1998 explicitly states the same right for the people of Northern Ireland.30 Although it has not been tested, it can be assumed that the same right exists for the people of Wales.
27.The devolved institutions in Wales, Scotland and Northern Ireland also exist by virtue of public consent, established initially by referendums in 1997 and 1998.31 The ‘permanence’ clauses in the Scotland Act 2016 and the draft Wales Bill reflect the political (if not legal) reality that the Scottish Parliament and the National Assembly for Wales and their Governments will not be abolished without the consent of the people of those nations.32 The approval given in the 1998 referendum in Northern Ireland for devolved rule suggests the same permanence for the institutions there, although tensions in that nation have resulted in the temporary suspension of devolved rule on a number of occasions. Support for the devolved institutions remains strong in all three nations.33
28.The Union has the support of a majority of people in each of its constituent nations.
29.Decision-makers in all four nations have a duty to recognise popular support for the continuance of the Union and to work constructively to ensure that the Union operates as effectively as possible for the benefit of everyone in the United Kingdom.
Defining the Union
30.How individuals identify with the Union varies across the UK depending on each nation’s history, institutions and relationships with the centre and the other nations.34 Conceptions of what the Union is and what it is for vary over time as relationships evolve and new norms emerge.35 Indeed, the idea of thinking seriously about the Union at all in terms of its purpose or benefits would have seemed extraordinary only a few decades ago: the Union was taken for granted.36
31.There is no agreement on how to describe what type of state the Union embodies. Where it may once have been correct to say that it was a unitary system (with power centred in Westminster), that is no longer accurate. At the very least it is “a unitary state with three special-status regions”.37 Other witnesses variously described the UK as a union state,38 a state of unions,39 a multination or multinational state,40 and a plurinational state.41
32.Professor Nicola McEwen, Professor of Territorial Politics, University of Edinburgh, told us that the diversity evident within the UK was not unique: “federal or multilevel systems tend to be based on the principle of wanting simultaneously to recognise diversity and to maintain unity. That idea of balancing unity and diversity is the underlying principle for all of them”.42 Professor Ailsa Henderson, Professor of Political Science, University of Edinburgh, told us that codified constitutions, particularly in federal states, often explicitly seek to link unity and diversity.43
33.These competing concepts of unity and diversity are central to the United Kingdom’s territorial constitution and to understanding how the citizens of the UK identify with the Union.44
British and national identity
34.The combination of diversity and unity in the Union is reflected in the mixture of identities felt by many citizens across the UK. Identity is a complex and “slippery” concept.45 Most people feel a mixture of identities, with their sense of British identity interacting differently with their other identities depending on the nation and the views of the individual.46 Dr David S Moon, Lecturer in Politics, University of Bath, told us that devolution worked because it allowed for the expression of this combination of identities.47
35.National identity is strong in each of the four nations of the UK. How that interacts with British identity varies; individuals can associate strongly with both identities simultaneously, or one identity can dominate at the expense of the other.48 The 2014 Future of England Survey found that:
“Unsurprisingly, British identity is weakest in Scotland and strongest in England. But English identity in England is almost as strong as Scottish identity in Scotland, and significantly stronger than Welsh identity in Wales. Within England, both Englishness and Britishness are strong with a slightly higher average score for Britishness.”
36.This interaction of national identity with people’s British identity varied notably, however:
“Despite the fact that a sizeable portion of the electorate in Scotland and Wales feels an overlapping identity with both Britain and Scotland/Wales, for a significant number of people the relationship has come to feel more of a zero-sum game: one is either more Scottish/Welsh or more British. England has not, for most people, reached that point. Many people in England still feel both strongly English and British.”49
37.Identity in Northern Ireland is different again, with greater polarisation50 and with British identity often interacting with Irish—rather than Northern Irish—identity. The 2014 Northern Ireland Life and Times survey found that 28% felt British and not Irish, and 26% Irish and not British, while 39% identified as a mixture of the two.51
38.We heard that modern Scottish politics, and the Scottish independence referendum in particular, demanded that electors choose between their Scottish and British identities.52 While there were correlations between ‘yes’ voters and those with a strong sense of Scottish identity and between ‘no’ voters and a strong sense of British identity, Professor John Curtice, Professor of Politics, University of Strathclyde, told us that “the truth is that most people in Scotland feel some mix of the two identities”. He observed that, as a consequence, much of the debate in the referendum focused on “the contingent consequences of independence”, rather than purely on the issue of national identity.53
39.Dr Victoria Winckler, Director of the Bevan Foundation, noted that many people also associated themselves with a particular regional identity: “We need to recognise that a lot of people in England see themselves as Cornish, northern, Geordie or whatever, alongside their other identities.”54 Councillor Julian German, Campaign for a Cornish Assembly, stressed the distinctive character of Cornwall as a region or nation with a strong sense of identity,55 while Ed Cox, Director of IPPR North, described people as possessing “nested identities”, such as his own of “Mancunian and English and British”.56 These regional and “nested” identities are not, of course, unique to England: they are also strongly felt in the other nations of the UK.
40.It should also be borne in mind that individuals’ sense of identity may be shaped and influenced by the wide and growing range of social, ethnic, religious and national communities which are characteristic of our society, and which have become sources of political debate in our multi-racial, multi-faith Union.
41.It is not a new observation that attempts to define Britishness are fraught with difficulty. The combination of unity and diversity, itself a key characteristic of the Union, makes attempts to define how people identify with the Union troublesome. Rather than attempt to define what the Union is, or how people understand their connection with the Union, it may therefore be more useful to consider what the Union brings to the nations of the UK.
Key elements of the Union
42.When asked about the key elements of the Union, witnesses often separated them into three distinct categories or ‘unions’: the economic union, the social union and the political union.57 There are two other elements that we believe need separate articulation: what we have called the cultural union; and the security and defence union, which we think it helpful to consider separately from the political union. We consider these elements briefly in turn.
Economic union
43.The United Kingdom is a single market with a single currency and single fiscal and macroeconomic framework.58 This is the economic union.59 Peter Riddell, Director of the Institute for Government, noted that: “Having a single currency and single market are the fundamentals.”60 Professor Adam Tomkins, John Millar Professor of Public Law, University of Glasgow, told us that the Union “gives to Scots a domestic market ten times the size of Scotland to live and work in, to trade with, to retire to, etc., wholly without legal impediment.”61 Similarly, Carwyn Jones AM, the First Minister of Wales, told us that the Union gives his nation “access to a far larger single market than Wales alone would be. We benefit from being part of what is seen as a stable environment for business and investment.”62 The vigorous debates over the extent to which the economic union—and specifically the common currency—could continue if Scotland became independent highlight its practical importance.63 Professor Curtice told us that the relative economic consequences of leaving the Union or staying were the single biggest factor in persuading Scottish electors to vote against independence.64
44.We heard that business also saw the economic union as an important benefit of the Union. Owen Kelly, Chief Executive of Scottish Financial Enterprise, noted that “the single market that currently exists for financial services throughout the UK is seen very much as what makes the UK the market for financial services that it is.”65 Fundamentally, as Stephen Herring, Head of Taxation, Institute of Directors, told us: “It is wrong to look upon each national region as economically distinct from one another, the whole can be better than the sum of the parts for most issues that affect business.”66 Moreover, as noted below of the political union, there is an international element to the benefits of the economic union. Ben Cottam, Head of External Affairs, Federation of Small Businesses Wales, told us that “the Union is a brand … that businesses of all sizes can capitalise on”.67 Businesses can capitalise on the UK’s international standing and its membership and leading role in organisations such as the EU, the G7, the World Trade Organisation, the International Monetary Fund and the Organisation for Economic Co-operation and Development.
45.Crucially, the economic union, in combination with the social union (see below, paragraphs 47-56), helps promote economic stability by providing the four nations with protection against asymmetrical shocks (i.e. events that do not affect the whole UK evenly, but have an impact primarily in particular nations or regions). The economic union provides each nation with the support of a larger and more diverse economy, cushioning the impact that a shock in one region’s industry has on its economy as a whole. This insurance is primarily a benefit for the three smaller nations; as Professor Michael Keating, Professor of Scottish Politics, University of Aberdeen, put it: “if an economic shock affects Scotland or Wales particularly, then there is a big resource base to fall back on. We do not have to deal with that on our own.”68
46.The core features of the economic union are the single market with a single currency and single fiscal and macroeconomic framework. It provides all citizens of the UK with a large and diverse market and international influence and it protects individual nations and regions of the UK against economic shocks.
Social union
47.The term ‘social union’ has been used to refer to different things. In this section we use it to refer to what some of our witnesses instead called a ‘welfare union’, and which has at its heart the pooling and sharing of resources according to need.69 The other way in which the term has been used is to describe what Fiona Hyslop MSP, the Scottish Government Minister for Culture, Europe & External Affairs called “social relations, which means family, language and culture”.70 We have called that the ‘cultural union’. It is discussed in paragraphs 64-68 below.
48.The Calman Commission on Scottish Devolution, in its 2009 report, described the social union. It stated that “the UK has created a system of welfare for all its citizens, which is both comprehensive and substantially uniform. … A basic feature of the welfare state is that, in general, its cost is borne out of general taxation and its services and support are supplied on the basis of need. This implies a relatively high degree of what is sometimes termed social solidarity.”71
49.Andrew RT Davies AM, leader of the Welsh Conservatives, told us that:
“The welfare state is one of the main bonds of the United Kingdom. Where one part of the Union might find itself in difficulties—where the individuals of that part of the United Kingdom might find themselves in difficulty with long-term unemployment, high levels of sickness et cetera—the Union comes together and redistributes support on a collective basis.”72
50.A large number of our witnesses told us that the pooling and sharing of risks and resources across the UK were central to the Union, with many explicitly linking it to social solidarity.73 Professor Robert Hazell, Director of the Constitution Unit, University College London, told us that the social union rested on “principles of fairness and of equal rights between citizens, equal access to the benefit system, and therefore a system of fiscal redistribution in order to be able to ensure that equalisation.”74 The Welsh Government suggested that: “Resource and risk sharing, in the interests of social protection for all UK citizens, are at the heart of [our] understanding of the social union.”75 Witnesses from Wales and Northern Ireland stressed the importance of this pooling and sharing for those nations which are poorer and which receive a net benefit from the transfer of resources.76
51.The social union covers the way in which resources are redistributed across the UK. The UK Government—which makes decisions on taxation and overall government spending—determines how resources are raised and allocated across the UK. This includes spending on welfare, which is one of the significant ways in which wealth is redistributed (since welfare spending is on the basis of need).
52.But the UK Government also provides funding for the devolved administrations by means of the Block Grant. The resources available to any nation or region are apportioned from the UK’s combined Consolidated Fund, which is the combined revenue from taxes raised across all four nations. This means that each nation and region can draw upon the resources of the whole UK to support its public services rather than relying solely on the revenue raised within its borders. The tax base of the whole UK is used to determine total spending on a UK-wide basis, allowing for the wealth of richer areas of the UK to support public spending in less affluent areas. Changes to the allocation of funding through the Block Grant are calculated by the Barnett Formula—we discuss this is more detail in the next Chapter, along with the implications of recent moves to make devolved nations more responsible for raising, as well as spending, revenue (paragraphs 102-117).
53.In combination with the economic union, the redistributive mechanisms of the social union help individual nations deal with the impact of asymmetrical shocks. This is partly through the welfare system. The welfare system disburses funds on the basis of need. Therefore citizens in nations suffering from an economic shock (and therefore with more people in need of state support) will consequently receive more welfare funding, supported by the tax resources of the whole UK.77 In addition, the UK Government can directly support affected regions with resources derived from the UK-wide tax base. For example, if a particular nation or region is hit by extensive flooding, the UK Government can provide funds from the UK-wide Consolidated Fund to help. The nation or region is not forced to rely on its own tax base for support.
54.The British Academy told us that:
“Since the Old Age Pensions and National Insurance Acts of 1908 and 1911, a key principle underlying the Union has become one of social insurance: viz., that tax and benefit rates are uniform throughout the UK, such that people in a territory that has hit hard times, or individuals who have hit hard times, are protected by the funds available to the whole UK, rather than only the part of it where they live.”78
55.At the individual level, citizens pay taxes for “a form of mutual insurance when any of us becomes old, sick or disabled, and needs to draw on the benefit system”.79 When an individual needs support from the state they have, until recently, been funded from the same UK-wide pot into which their taxes have been paid. Their entitlement was then the same, wherever in the UK they lived. The Scotland Act 2016, which devolves some aspects of taxation and welfare, complicates this picture, but individuals still benefit from a core of common benefit provisions paid for from UK funds.
56.The fundamental principle of the social union is the pooling of common funds at a UK level which are then expended on the basis of need, on a UK-wide basis. The social union is a manifestation of the solidarity that sees the people of the Union collectively support each other, no matter where in the UK they reside.
Political union
57.Professor Hazell described the essential role of the political union in relation to the other key elements, and to the evolution of the Union as a whole:
“In the political union, every part of the UK is represented here in the Westminster Parliament, and the UK Parliament manages the economic and the social unions. As the sovereign parliament, it can itself reshape the political union, as it has done quite dramatically through the devolution settlements”.80
58.The political union centres on the UK Parliament, where all parts of the United Kingdom are represented, and on the UK Government and its relationships with the devolved institutions.81 Beyond that, the Calman Commission felt that the political union “created a common UK citizenship that embodies shared fundamental freedoms such as common civil and political rights, valued across the UK.”82 By sharing a political identity, and by together creating the liberal and free state in which we live, the people of the UK have developed and share common fundamental values about democracy, freedom and the rule of law. As we discuss later in this report (paragraphs 79-85), while they are not unique to the UK, a shared understanding and commitment to those common values underpins the governance and political culture of all four nations in the Union.
59.The political union also has an important external element. The Welsh Government told us that: “Our political union is principally manifested in the UK’s external relationships and membership of the European Union and of international organisations”.83 As set out in one of the UK Government’s publications during the Scottish independence referendum: “The UK is one of five permanent members of the UN Security Council, and the only state in the world which is a member of the EU, NATO, G7, G8, G20 and the Commonwealth.”84 The UK is recognised as a single entity internationally; it has, as Professor Jim Gallagher of Nuffield College, Oxford, put it, “an international personality”.85 Speaking with one voice not only delivers what former Director of the Scotland Office Alun Evans described as “international clout”,86 it also gives the constituent nations of the UK a voice on the world stage that they would not have had individually.87
60.The political union is embodied in the sovereign UK Parliament and the UK Government, which represent and act on behalf of the whole United Kingdom. The UK Government provides a single voice for the UK internationally, with more influence than any individual nation in the Union would have. The political union also recognises the importance of accommodating distinctive national identities, manifested by the devolved institutions that represent the citizens of Scotland, Wales and Northern Ireland.
61.There have long been separate legal systems across the UK, with Scotland, Northern Ireland, and England and Wales each having their own separate jurisdiction. The political union is strengthened by a common legislative framework based on laws passed by the UK Parliament affecting all four nations. The UK Supreme Court is, in most cases, the final court of appeal for all three jurisdictions.88 Devolution has led to an increasing divergence in laws across the UK as the Scottish Parliament, the Northern Ireland Assembly and—since 2011—the National Assembly for Wales have passed primary legislation affecting their nations.
62.Wales does not have a separate legal jurisdiction, although it does have distinct law that applies to Wales.89 Some of our witnesses, including the First Minister of Wales, argued that a distinct, though not separate, Welsh jurisdiction would be a logical corollary of the growing law-making power of the National Assembly.90 The Assembly’s Presiding Officer, Dame Rosemary Butler AM, told us that the lack of a Welsh jurisdiction creates unnecessary complexity.91
63.Lord Thomas of Cwmgiedd, the Lord Chief Justice of England and Wales, told us insufficient thought had been given to how the devolution of law-making powers in Wales would develop in the context of a shared legal jurisdiction with England. He noted that “there is no justice function that looks after Wales. By default the courts have put one in place but there is a not a justice function. … [that] is a serious deficiency in an area where you accord very substantial primary legislative powers to an institution”. He concluded that “Wales has a distinct law that applies to it, so it has a jurisdiction in the territorial sense, but not a jurisdiction in the court sense. … if Wales had a separate legal system, that would be a political decision and be perfectly operable, but at the moment we have the training and an understanding that the system can be made to work.”92
Cultural union
64.The Calman Commission provided a useful description of the UK’s ‘cultural union’: “The people and the nations of the United Kingdom have many elements of shared identity, established through history, and expressed in common aspects of culture.”93 The Scottish Government articulated this union during the independence referendum campaign, describing it as a ‘social union’.94 They described a union, “made up of connections of family, history, culture and language”.95 Similarly, former leader of the Scottish Conservatives Baroness Goldie MSP told us that: “You might live in Glasgow, but, if granny lives in Greenwich or cousin Jimmy lives in Grimsby, you want a sense of social union. You want a sense that you could be up here and be Scottish and look after your own domestic issues, but also be part of a whole that had coherence to it.”96
65.Professor Arthur Aughey, Professor of Politics, University of Ulster, noted that “those advocating ‘yes’ in the Scottish Referendum also proposed to maintain other unions which actually assumed cultural affinity throughout the UK … encompassing what was described in the Referendum campaign as all the distinct national and regional communities in the British Isles based on close social, economic and cultural links and symbolised by Scotland retaining the monarchy.”97
66.The cultural union is found in the connections between people across the UK. It includes the bonds of family and kin that ignore national boundaries and that have developed over generations. It is perpetuated by our common language and common institutions—such as the NHS,98 the BBC and the monarchy—and in the shared heritage and history of the country. This history not only includes the shared development of the modern state and society in which we now live, but the shared external-facing history that includes the rise and fall of the British Empire, worldwide trade and centuries of migration across the British Isles and around the world, and the shared experience of two world wars in the 20th century. The cultural union includes the common ties of popular culture such as music, sport, TV and film,99 as well as shared social attitudes towards humour.
67.The cultural union is reflected in different parts of the country in different ways. The impact of Empire and international trade was, for example, very different in rural East Anglia compared to industrial Lancashire or the shipyards of Belfast. Likewise the extent of linguistic commonality is more limited in areas of Wales than elsewhere in the UK. Nonetheless, the cultural union provides a common—or at least widespread and overlapping—set of connections and shared experiences and heritage.
68.A 2015 study placed the UK at the top of its rankings of soft power.100 The cultural union supports the UK’s ‘soft power’. The single voice of the UK’s political union, projected thorough its network of embassies, high commissions and consulates and the British Council, is aided by the global use of English in politics, business and scientific research. The UK’s influence is enhanced by the reputation of its universities, its creative and performing arts, and the global reach of British culture, from the Beatles to Shakespeare and from Robert Burns to Premier League football clubs with fans across the world. Soft power is a quality in which we lead the world.
Security and Defence union
69.Common defence is perhaps the most widely cited core element of the Union.101 The security and defence union is represented by the British Armed Forces—the Army, the Royal Navy and the Royal Air Force—and the UK security services. The UK also has a single borders and immigration policy. Defence is explicitly included in lists of areas where power should be reserved to the UK level if Scotland were to be granted ‘full fiscal autonomy’ (see paragraphs 258-267).102 Professor Charlie Jeffery, Professor of Politics, University of Edinburgh, observed that the Scottish Government’s White Paper describing an independent Scotland envisaged some continued sharing of responsibility for national security.103
Conclusion
70.Professor Tomkins summarised what he saw as the benefits of the Union:
“The Union enriches all four of the nations that are part of it, and if any of the nations of the United Kingdom were to leave the Union it would impoverish not only that nation but all the others as well, not only economically but culturally and spiritually. The purpose of the Union is to make each of the nations of the United Kingdom richer and greater than any of them would be alone.”104
71.We agree. The Union reflects the unity and diversity that makes up the United Kingdom. It is made up of nations, regions and people with a strong shared history and culture, and yet with distinctive local or national identities. The five key elements we have identified—the economic union, the social union, the political union, the cultural union and the security and defence union—collectively provide advantages to the constituent nations of the UK that go beyond what each could achieve on its own and unite the people from all four nations as citizens of one country.
Are all these elements necessary?
72.While there was general, if certainly not unanimous, agreement as to the key elements of the Union at present, witnesses’ views varied more regarding the extent to which these elements were required for the Union to survive as a viable political entity. There were sharply diverging views among our witnesses as to whether the Union was dependent on the key elements listed above, or whether it was possible to envisage a looser Union without the support of all five of these key unions.
73.Professor Neil Walker, Regius Professor of Public Law and the Law of Nature and Nations, University of Edinburgh, for example, recognised the argument that devolving power in relation to the key elements that currently support the Union would lead to a loosening of the ties that bind the UK together: “[there is] a sense that … degeneration of one goes hand in hand with alienation in terms of the other: as we begin to disconnect in policy terms, we also disconnect in cultural terms.” He argued, however, that there was an alternative form that the Union might take:
“there is another argument that says you can imagine a much more loosely coupled state where you do not have social solidarity, necessarily, in policy terms, but the people still continue—at least in some loose sense—to want to be part of the same state. … If the people of the United Kingdom that are Scottish decide that they want something that is far more autonomous than the Welsh or the Northern Irish, or even the English, you can find some negotiated settlement on that basis and people say ‘On that basis, we can still be part of the same state, but on no other basis’, then why should we necessarily discount that possibility? … What I am saying is that we should be a little more adventurous when we think about what the limits of statehood are”.105
74.Likewise, Alun Evans told us that:
“There is a powerful argument that giving people control, particularly over their domestic affairs, and the responsibility that means in raising the money to pay for it, rather than relying on getting disproportionate sums of money from the UK, is a perfectly legitimate discipline to apply to Scotland. But I do not think there is necessarily a corollary that therefore it has to lead to independence.”106
75.Professor Keating noted that the stumbling block might not prove to be Scotland, where the desire for greater autonomy originated, but rather the rest of the UK. He stated that while “Scots could stretch the Union almost indefinitely” he believed that “The English might, at some point, say, ‘Well, enough is enough. Become independent. We would find it more convenient than stretching the Union any further’.”107
76.Professor Matthew Flinders of the University of Sheffield, told us that it was important to reflect on the question of “‘what binds us?’ … Where is the centripetal force that can allow for flexibility or difference? … What still gives us a commonality and goals that allows us to live together?”108 We believe that these five key elements of the Union go a significant way to answering those questions. Sir Kenneth Calman, who chaired the Commission on Scottish Devolution told us that “One thing that we [the Calman Commission] wanted to emphasise was that the social, political and economic unions were fundamental to having a UK. If you took them all away … you would have to ask whether it was worth being part of a Union.”109 We agree.
77.The five elements that we have identified combine to allow the nations of the Union to work together as a single state. They allow for the expression of discrete national identities within the Union, while providing a structure within which all the constituent parts of the United Kingdom can support each other and work towards common objectives and ideals.
78.Whilst the way these elements are expressed has changed, and will undoubtedly continue to change, over time, we consider that ending or substantially weakening the Union in any of these respects would cause grave damage to the Union as a whole.
Core values of the Union
79.A common thread running through many of these elements of the Union is a core set of values shared across the UK. These values include democracy, the rule of law, personal liberty and equality. We asked our witnesses whether articulating a set of common values might help promote a sense of solidarity, or to define a common ‘British’ identity. Some witnesses, notably the Bingham Centre for the Rule of Law, proposed that these common values should be embedded in a constitutional statute. We address that proposal in more detail later in this report (see paragraphs 242-249).
80.The Federal Trust for Education and Research, while sympathetic to including values in a constitutional statute, told us that “it is difficult to identify a coherent set of principles that might command wide assent”.110 We also heard that any set of common British values were likely to be too broad to be of any practical use in helping define a specifically British identity. The problem, as Professor Hazell told us, is that in all likelihood the values identified would be “values of which any self-respecting democracy would say, ‘Those are our values too’. They are democratic values, values of fairness, of equality, of respect for humanity, fundamental human rights and all those things.”111 Professor Henderson was also wary about claims of shared values as specifically British: “it is not always clear what specifically ‘British’ values (rather than Western European or northern European or liberal values) would be.”112
81.Professor Keating shared other witnesses’ scepticism about specifically ‘British’ values. He also told us that those values
“are, moreover, the same values espoused by non-unionists who want to set up their own states. There has not been a divergence of values across the United Kingdom but, if anything, a convergence. The divergence is about the constitutional and national framework in which these values will be expressed.”113
82.This convergence of views across the spectrum of political and constitutional viewpoints suggests a strong set of shared values. In a 2015 speech, former Prime Minister Sir John Major highlighted these values:
“We require and expect our Laws to be fair. Our Courts to be impartial. We take for granted that we can mock and criticise the mightiest in the land without fear of reprisal. We believe we have ancient rights–freedom of speech, the right to own and pass on our assets, protection against the State. We assume all this as an ancient right, whilst acknowledging that such liberties are still not available in many other parts of the world.”114
The cohesive effect of the rule of law is fundamental to a common UK-wide British identity and citizenship.
83.Articulating a common set of values as core ‘British’ values could mean walking a narrow path. The exercise is liable to produce a set of values that are so broad as not to differentiate British from European or universal modern values such as liberty, democracy, the rule of law and social solidarity.115 Meanwhile a more specifically ‘British’ set of values may be challenged as too narrow and exclusive (whether by particular nations or by groups in society). Professor Robert Thomas, Professor of Public Law, University of Manchester, warned that they would be “either so abstract as to be almost meaningless, or so particular as to be controversial.”116
84.Yet Sir Paul Silk, who chaired the Commission on Devolution in Wales, told us that although the values and principles that one might set out could be characterised as “motherhood and apple pie … sometimes it is worth setting out those sorts of principles … so that everybody in future feels that they should abide by them.”117
85.Core values are shared across the United Kingdom. These include democracy, equality, personal liberty and the rule of law. These values are not unique to the UK, but they are intrinsic to the Union, rooted in history, and are widely shared by the people and institutions of all four nations. They contribute to what could be said to be a sixth union—one of attitudes and beliefs, of emotional loyalty and a sense of belonging, especially in troubled times.
8 From the passage of the Wales and Berwick Act 1746 to its repeal by the Welsh Language Act 1967. There were, however, distinct Acts applying to Wales alone, including over licensing, education and the disestablishment of the Church of England in Wales: the Sunday Closing (Wales) Act 1881; Welsh Intermediate Education Act 1889. Disestablishment in 1920 followed the Welsh Church Act 1914 and the Welsh Church (Temporalities) Act 1919. See Kenneth O. Morgan, Wales in British Politics 1868–1922, 1963.
9 Written evidence from the British Academy (UDE0037). The phrase is used repeatedly in the Union with Scotland Act 1706 and the Union with England Act 1707, relating both to the Union itself and the separate Scottish institutions.
10 Written evidence from Professor Adam Tomkins (UDE0021). See articles XIX and XXV of Union with Scotland Act 1706 and Union with England Act 1707.
12 Union with Ireland Act 1800; the Irish Parliament passed a parallel Act of Union 1800. Royal Commission on the Constitution, Report, Cm. 5460, October 1973, (hereafter ‘Kilbrandon Report’), pp 46-47
13 The modern Northern Ireland Civil Service being a descendent of the separate Irish administration, see Q 50 (Alan Trench)
15 Kilbrandon Report, paras 149-160
16 See Annex A
17 Commission on Scottish Devolution (the Calman Commission), Serving Scotland Better: Scotland and the United Kingdom in the 21st Century, Final Report (June 2009) p 30: http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/15_06_09_calman.pdf [accessed 6 May 2016]. There had been an earlier Scottish Office in the years after the Union of 1707.
18 National Insurance Act 1911, sections 80-82
19 Under the National Health Service (Scotland) Act 1947. The Northern Ireland Parliament also established a parallel NHS there in their Health Services (Northern Ireland) Act 1948.
20 See, for example, J.D.B. Mitchell, Constitutional Law, second edition (1968) p 209
21 The Secretary of State for Scotland and the Scottish Law Officers were also responsible for ensuring that legislation was compatible with Scots Law.
22 Kilbrandon Report, paras 121-134
23 The key devolution statutes remain in the Scotland Act 1998, Northern Ireland Act 1998 and Government of Wales Acts 1998 and 2006. The Wales Act 2014 largely amends the 2006 Act, while the Scotland Act 2012 and the Scotland Act 2016 largely amend the 1998 Act.
26 See Q 299 (Professor Derek Birrell), Q 65 (Professor John Curtice), written evidence from the British Academy (UDE0037).The Scottish referendum asked voters “Should Scotland become an independent country?”; the result was 55.3% ‘no’ to 44.7% ‘yes’. The Northern Irish referendum asked voters “Do you support the agreement reached at the multi-party talks on Northern Ireland and set out in Command Paper 3883?” (i.e. the Good Friday or Belfast Agreement); the result was 71.1% ‘yes’ to 28.9% ‘no’.
27 For example, the six opinion polls on this question by various companies reported on the ‘What Scotland Thinks’ website during March and April 2016 show an average of 43% saying they would vote ‘Yes’ to independence, 48% ‘No’ and 9% answering ‘Don’t know’. See http://whatscotlandthinks.org/questions/how-would-you-vote-in-the-in-the-scottish-independence-referendum-if-held-now-a#table [accessed 9 May 2016]
28 See written and oral evidence from Professor John Curtice (UDE0056 and Q 62). The figure for Northern Ireland includes both support for unification with the Republic of Ireland (17% support) and outright independence (4%).
29 Q 242 (Carwyn Jones); written evidence from Justice for Wales (UDE0025), Institute for Government (UDE0048), Campaign for an English Parliament (UDE0012), Society of Conservative Lawyers (UDE0028) and Welsh Government (UDE0024). Similarly, some witnesses stressed ‘consent’, for example Professor Arthur Aughey (UDE0003).
30 Q 299 (Professor Derek Birrell), Q 300 (Professor Arthur Aughey); written evidence from the Institute for Government (UDE0048), Dr Andrew Blick (UDE0029) and the British Academy (UDE0037). Northern Ireland Act 1998, section 1
31 See Annex A for more on devolution in the 1990s and subsequently.
32 See Constitution Committee, Scotland Bill (6th Report, Session 2015–16, HL Paper 59), paras 35-36. The ‘permanence’ clauses are section 1 of the Scotland Act 2016 and clause 1 of the Draft Wales Bill, Cm 9144, October 2015.
33 Written evidence from the Institute for Government (UDE0048). In relation to Wales: Q 244 (Carwyn Jones), Q 266 (Professor Rawlings and Dr Moon). In relation to Scotland: QQ 22 and 25 (Sir Kenneth Calman). While Northern Irish politics remain fragile, support for devolution is strong: the 2014 Northern Ireland Life and Times survey found that 50% of respondents thought that Northern Ireland should remain in the UK with devolved institutions. By comparison, 16% supported direct rule from Westminster and 17% supported reunification with the rest of Ireland, while 4% supported independence. Northern Ireland Life and Times, ‘Political Attitudes’ (2014): http://www.ark.ac.uk/nilt/2014/Political_Attitudes/NIRELND2.html [accessed 3 March 2016]
34 Q 45 (Jim Gallagher), Q 255 (Andrew RT Davies AM), Q 289 (Lord Empey) and Q 83 (Professor Nicola McEwen)
36 Q 1 (Professor Adam Tomkins), Q 45 (Charlie Jeffery), Q 45 (Jim Gallagher), Q 149 (Professor Neil Walker) and Q 274 (Dr Victoria Winckler)
38 Written evidence from Professor Adam Tomkins (UDE0021) and the British Academy (UDE0037); this is the phrase we used in our call for evidence.
40 Written evidence from Dr Andrew Blick (UDE0029), Dr Paolo Dardanelli (UDE0035) and Professor Arthur Aughey (UDE0003)
46 Although Great Britain and the UK are not synonymous, it is unusual for people to express their identity in terms of the UK, instead people (including in Northern Ireland) express this identity as ‘British’. We use the term in this sense.
49 Charlie Jeffery, et al, Taking England Seriously: the New English Politics. The Future of England Survey 2014 (14 October 2014) p 10: http://www.centreonconstitutionalchange.ac.uk/sites/default/files/news/Taking%20England%20Seriously_The%20New%20English%20Politics.pdf [accessed 6 May 2016]
51 Northern Ireland Life and Times Survey, ‘Political Attitudes’ (2014): http://www.ark.ac.uk/nilt/2014/Political_Attitudes/IRBRIT.html [accessed 4 March 2016]
57 See, for example, Calman Commission, Serving Scotland Better, paras 15-21, and Q 10 (Professor Robert Hazell)
58 Although the concept of a single fiscal framework will become more diluted when Scotland gains a greater degree of fiscal autonomy under the Scotland Act 2016.
59 See for example, Q 1 (Professor Adam Tomkins), QQ 10-11 (Professor Robert Hazell), Q 35 (Peter Riddell), Q 45 (Jim Gallagher), Q 135 (Cllr Robert Brown), Q 180 (Stephen Herring), Q 281 (Ben Cottam), written evidence from the Welsh Government (UDE0024)
61 Written evidence from Professor Adam Tomkins (UDE0021). Professor Tomkins was, at the time he gave oral and written evidence to us, a prospective parliamentary candidate for the Conservative Party in Scotland and a constitutional adviser to the Scotland Office. He gave evidence to us in a personal capacity (see Q 1).
63 During the referendum campaign, the Scottish Government stressed continuity in the economic union, advocating the continuation of the Common Travel Area and the use of Sterling by an independent Scotland. Scottish Government, Scotland’s Future, pp 7 and 223
70 Q 128; the Welsh Government used the term ‘social union’ to cover both of what we call the social and cultural unions (written evidence, UDE0024)
71 Calman Commission, Serving Scotland Better, p 35
73 Q 208 (Lord Hain), Q 255 (Kirsty Williams AM), Q 211 (Paul Nowak), Q45 (Professor Jim Gallagher), and written evidence from Professor Sir Jeffrey Jowell (UDE0053)
81 Calman Commission, Serving Scotland Better, paras 15-17; written evidence from the Welsh Government (UDE0024)
82 Calman Commission, The Future of Scottish Devolution within the Union: A First Report (December 2008) para 4.33: http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/02_12_08_calman.pdf [accessed 5 May 2016]
84 UK Government, ‘Europe and international - summary leaflet’ (13 March 2014): https://www.gov.uk/government/publications/europe-and-international-summary-leaflet [accessed 14 April 2016]
88 UK Supreme Court, ‘UK judicial system’: https://www.supremecourt.uk/about/uk-judicial-system.html [accessed 29 April 2016]
90 QQ 244 and 253 (Carwyn Jones AM), Q 261 (Leanne Wood AM) and written evidence from the Society of Conservative Lawyers (UDE0028) and Justice for Wales (UDE0025).On the difference between a ‘distinct’ and a ‘separate’ jurisdiction, see also oral evidence from Professor Richard Rawlings and Professor Robert Thomas (Q 268)
91 Written evidence from Dame Rosemary Butler AM (UDE0038), see also written evidence from Professor Russell Deacon (UDE0020)
93 Calman Commission, A First Report, para 4.49
98 Although responsibility for the NHS is devolved, it is broadly seen as a British institution; see Q 28 (Sir Kenneth Calman). A 2013 survey found that it was a the most popular option when respondents were asked to pick from a list those institutions that made them “most proud to be British”. The next most popular were the armed forces, the British Olympic and Paralympic teams, the Royal Family and the BBC. British Future, State of the Nation: Where is bittersweet Britain heading? (2013) p 26: http://www.britishfuture.org/publication/state-of-the-nation-2013/ [accessed 6 May 2016]
100 The Soft Power 30, ‘Ranking’: http://softpower30.portland-communications.com/ranking [accessed 14 April 2016]
101 See Q 1 (Tomkins), Q 137 (Claire Baker MSP), Q 100 (Professor Philip Booth), Q 121 (Scilla Cullen), Q 59 (Jan Eichhorn), Q 255 (Kirsty Williams AM), Q 95 (Alun Evan), Q 10 Professor Robert Hazell), Q 274 (Jessica Blair), Q 152 (Professor Michael Keating) and Q 264 (Professors Richard Rawlings and Robert Thomas), and written evidence from Professor John Curtice (UDE0056), James Jeavons (UDE0016), Professor Charles Lees (UDE0058), Scotland in Union (UDE0017) and the Constitution Reform Group (UDE0045)
102 Scottish Government, More Powers for the Scottish Parliament (2014) p 3: http://www.gov.scot/Publications/2014/10/2806/0 [accessed 5 May 2016] and Q 214 (Paul Nowak)
112 Written evidence from Professor Ailsa Henderson (UDE0065); see also Q 41 (Peter Riddell), Q 158 (Professor Neil Walker) and written evidence from Mr Paul Scott (UDE0027)
114 Sir John Major, Inaugural Edward Heath Lecture (29 July 2015): http://magnacarta800th.com/tag/rule-of-law/ [accessed 25 April 2016]