constitutional possibilities

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Constitutional Possibilities

ANTHONY BARNETT

New Labour entered the election with anambitious programme of constitutionalreforms. Taken together, they couldtransform the way Britain is governed,by breaking open the existing undemo-cratic, secretive and elitist system dom-inated by executive powerÐan executivesystem that today faces virtually nochecks and balances when it controls aclear majority in the House of Commons.Provided they are linked over time in acoherent progression, Labour's reformscould in effect replace the United King-dom's unitary state with a modern plur-alist if not a federal system.

Can Labour introduce its reforms sothat they accumulate to modernise theconstitution as a whole? On 5 March1997, just before the election campaignwas officially launched, Labour and theLiberal Democrats published the Reportof the Joint Consultative Committee onConstitutional Reform. This ponderous-sounding document set out a series ofrecommendations and agreements onhow to reform the British politicalsystem. It was presented to the mediaby Robin Cook MP and Robert Maclen-nan MP, the joint chairs of the committeefor Labour and the Liberal Democratsrespectively. This report gives the mostsuccinct overview, at the time of thewriting, of the Government's hopes andaims. It covered incorporating the Euro-pean Convention on Human Rights intoUK law; freedom of information; an inde-pendent statistical service for moreaccountable government; decentralisa-tion based on popular consent, with sec-tions on Scotland, Wales, English regions,and London; making quangos accounta-

ble; setting up a commission on electoralreform; the reform of both Houses ofParliamentÐmodernising the Commonswhile democratising the Lords; and pas-sing a Civil Service Act to give a statutorystanding to the impartiality of civil ser-vants while clarifying ministerialaccountability. The document did notmention the increased independence ofthe Bank of EnglandÐa significant con-stitutional reform that also diminishesthe myth of parliamentary sovereigntyin a healthy fashionÐwhich wasachieved within four days of the election.By any account this is an extraordinarilyambitious programme.

The final, curt concluding paragraph ofthe Report stated:

The proposals set out in our Report arepresented as distinct measures yet they areclosely related. Through them runs thecommon thread of empowering the people.To make this clear the new Governmentshould make an early declaration setting outthe principles behind its programme of con-stitutional reform and outlining the moreopen and modern democracy it seeks tocreate.

The document's opening paragraphsgive an idea of what these principlesmight be. `A society that is open andfree . . . power accountable to the collec-tive wishes and interests of the people . . .equal rights and responsibilities . . . guar-anteed civil liberty, social cohesion andeconomic opportunity'.

In the election campaign John Majorwarned the country against these far-reaching changes. He was dismissedfrom office by the electorate. At the endof July, after this article goes to press, a

# The Political Quarterly Publishing Co. Ltd. 1997Published by Blackwell Publishers, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA 361

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flurry of measures are due. The WhitePaper on a Parliament for Scotland andan Assembly for Wales will be published.The composition of the promised com-mission on electoral reform should beannounced. A White Paper on Freedomof Information is due, as is a consultativeGreen Paper on a government forLondon, that will apparently propose amayor to be elected by 5 million Lon-doners. The Lord Chancellor has alreadyopened consultations on how incorpora-tion of the European Convention onHuman Rights may take place.

Will Labour deliver?

Before the election many commentators,not to speak of Labour supporters, weredoubtful that the new Governmentwould deliver on its promises of reform.In part this was ingrained scepticism, inpart it was a response to Labour's cau-tion in the face of a highly conservativeelectorate and its abandonment of OldLabour commitments. I was one of thefew independent observers who assessedNew Labour's commitments as beingdeliberate and credible in 1994, soonafter Blair was elected party leader:

A new Labour government can introducesuccessful constitutional reform. Its leadersare young enough not to be awed by thepast. They are alert enough to the country'sinterests to want to proceed democratically.They are determined to try and govern for ageneration rather than Labour's usual four tosix years, which means they must set theterms for the way the country is run, andnot allow the terms to be set for them as hashappened in the past. I am making the judge-ment that Tony Blair means what he says.1

I also emphasised that resistance wouldarise against such changes, and that tosucceed they needed to be treated as aprogrammatic unity.

So far the promise of just such anapproach, as outlined in the last para-graph of the Joint Report, has not beenforthcoming. The Joint Report was

cleared by Tony Blair, as Robin Cookmade plain at its launch. It says thegovernment `should' make an earlydeclaration of principles, not that itmust or that it will. A statement of prin-ciples would transform the constitutionaldebate. It would help the public in Eng-land to comprehend the ambition andpurpose of reform. The Scots already doso for, whatever view they may haveabout a parliament in Edinburgh, thecall for such a parliament unifies theidea of reform for them, rather thanfragmenting it into separate zones.There is a similar understanding inWales, although support for an assemblyis weaker because this is seen as poten-tially divisive owing to the languagequestion. A statement of purpose anddirection would encourage the Englishto see that reforms will mean something,that they will add up. They will then beable to make sense of themÐliterally, tounderstand `what they are all about'.This will make it easier for the Govern-ment to pace the changes, and even takethem more slowly if necessary, withoutcharges of betrayal or sell-out.

Britain's new Labour administration isembarking on a historic programme withsuch care and caution it is hard to judgewhether it will succeed. It has the willand ability to drive through specificchanges but it remains uncertain aboutits overall destination. Doubtless anunderlying reason for this hesitancy isthat the aims and objectives have notbeen argued through and ministers,now that they find themselves in a posi-tion to decide, do not agree. Much scornwill be poured on them for not havingworked everything out. In fact, it is a signof health that they disagree. To demandthat they should know all the answers iseither misconceived or deliberately mal-icious. Reforming an anachronistic, over-centralised sovereignty is bound to raisenew issues that cannot be predicted,because the change is taking place in aneven more rapidly changing interna-

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tional context. The best response is toleave as many issues as possible to beresolved by the new institutions that arebeing established.

This is the best response because it isthe most democratic, given that thereforms will be democratising the struc-tures of government. But the approach isinimical to the culture of both Parliamentand the Civil Service, which pride them-selves on `being God'. I am using short-hand here, but the idea of `the absolutesovereignty of Crown in Parliament' stilllives on in the mentality of Whitehalland Westminster, whatever the realitiesoutside. They believe that they can seeand solve all difficulties, and any thathave been raised must be answered. Thebest way for reforms to succeed, how-ever, is to allow the conflicts that arebound to arise as new powers are dis-tributed to be resolved within the futureframework. The new institutions them-selves must be trusted to identify andresolve the problems that events willthrow at them. What are needed areopen mechanisms for conflict resolution,not preconceived Civil-Service-drivenattempts to resolve issues that maynever arise. To put it bluntly, it is usuallyfatal to second-guess democracy. Whatmay work the first time will fail thesecond. This warning may sound likeold-fashioned empiricism, but it nowhas the blessing of sociological theoryunder the label `reflexivity'. The electo-rate is a corrigible observer of the sameprocess that politicians and administra-tors seek to lead; it learns and changes itsmind. It is therefore foolish to try tocreate an open society by closing itsoptions in advance, especially on thebasis of current opinion.

Can the Union survive?

It is therefore too early to speculate withany degree of assurance on the likelyoutcome of New Labour's programme.But it is important to begin to debate the

possible consequences. I will attempt aninitial view by responding to a soberanalysis of the future of a Scottish parlia-ment made by Tom Nairn, one of Sco-tland's foremost intellectuals.In a sweeping overview written for theSovereignty Seminar at Birkbeck College,London, Nairn argues that `in sover-eignty questions, voice is all'. Somethingspecial is happening in Scotland, in hisview. It is not engaged in a nationalindependence movement of the familiaranti-colonial kind. For Scotland is alreadya nation and has retained its own identityin institutions of church, law and educa-tion. Far from being conquered by adominant England, the Scots helped tocreate the United Kingdom and then,politically, `colonised themselves' asthey willingly subordinated themselvesto Britain. In the process they lostÐor, asNairn puts it, they `occluded'Ðtheir ownnational voice. This, the new Scottishparliament will return to them.2

Opinion polls currently suggest that ifa referendum is held in Scotland in Sep-tember 1997, it will endorse a parliamentand probably support its enjoyment oftax-varying powers as well. We have thusentered a new stage of constitutionaldebate in the UK. After a decade (inScotland two decades) of arguing overwhether we need reform or not, we arenow looking at its likely consequences: atwhether or not it will succeed. There arethree possible outcomes:

1 The reforms will lead to a new settle-mentÐto a new constitution with, atthe very least, clear written principlesof the kind suggested by the JointCommission ReportÐand thus endthe unitary state as Britain has knownit since 1688.

2 The reforms will succeed as adapta-tions to the existing, uncodified infor-mal constitution while renewing it,taking their place with previousreforms such as the extension of thefranchise which, while altering deeply

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the 1688 settlement, nonetheless alsorecognisably preserved its central,institutional architecture and asso-ciated elite control and unitary charac-ter.

3 There will be some kind of overall,constitutional breakdown.

Nairn suggests that a breakdown islikely, specifically the break-up of theUnited Kingdom; and, further, that theemergence of a `frankly sovereign parlia-ment and its eventual accompaniment, aScottish state, are both the most likelyand the best solutions to the emergingdilemma'. Nairn's argument provides asupple and deeply historical caseÐanoverview that is also rooted in his famil-iarity with the national forces at workacross the whole of the UK and Europe.

The plausibility of his case can be moreclearly understood when it is seen to reston twenty years of international scholar-ship showing how nationalism, while itmay have regressive examples, is not ananachronism. It has been a fatal compla-cency among the elites of large, histori-cally early established nations to regardthe nationalism of smaller neighbourswith incomprehension and contempt.For movements of national independencehave taken all before them. They havedone so, contemporary scholarship sug-gests, because the nation is a motor ofdevelopment, of `being modern' to use aNew Labour phrase. In Scotland's casewe need merely note that Old Labourwas a determined opponent of homerule. A comparative overview suggeststhat it is the hostility to national determi-nation of domestic affairs that appears tobe backward, regressive and old-fash-ioned.

To put this argument another way,north of the border the same social,cultural and economic forces that havepropelled New Labour towards a morerelaxed, pro-European, non-monarchicalculture are also propelling Scotlandtowards its own parliament, andÐif

necessaryÐstatehood. So the first thingto say about Nairn's case is that irritateddismissal is utterly misconceived. He isnot discussing the short-term electoralsuccess of the SNP. On the contrary, heargues that `home rule is far too serious amatter to be distracted by independence'.His thesis is more serious. Scottish homerule is likely to lead to the break-up ofBritain because the Westminster state willbe incapable of ceasing to be a unitaryone. It will not be able to transform itscharacter so as to accept decentralisationin its constitution. London will continueto regard Edinburgh as a subordinate,even engorged, `local' body. It will notbe able to accept Scotland's voice as thiswill mean altering its own, and acceptingthe end of its absolute monopoly oversovereignty. Westminster and the Englishelite will fail to recognise that the natureof the Union has now changed and thatthe Union needs to be renegotiated.Instead, it will continue to regard theUnion as a singularity not a partnership;and this will drive the Scots out.

I want to repeat this point because inmy experience many English politiciansand reporters fail to understand it. Scot-tish nationalism is not an old-fashionedform of extremism. It is not, for example,like left-wing demands for `workers' con-trol', that will always attract a fringe butcan be left to wither on the vine. On thecontrary, as Nairn puts it, in Scotland the`Sovereignty party' is an alliance of thosewho want democracy for their country.They have formed an open, dynamicalliance with over 70 per cent supportfor the creation of a parliament withinwhich they will then sort out for them-selves the direction for Scottish demo-cracy. Unless they achieve this withinthe UK they will leave it for the widerEuropean Union. As I say, many Englishauthorities cannot understand the pointand regard such a parliament as a mere`talking shop'. So I hope readers of Poli-tical Quarterly will forgive me if I borrowa device from Virginia WoolfÐeven


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though family analogies are fraughtmetaphors for countries.

Suppose we consider a seventeenth-century marriage. The weaker partnerhad no property rights or right todivorce. Of course, women played animmensely important role in reproduc-tion and in the success of the family, andbenefited from itÐbut they were notequals. In the nineteenth century,woman began to claim their legal equal-ity. It was different women, however,whose marriages benefited from equalstatus. Now suppose one couple hasbeen endowed with perpetual life fromthe accession of James VI of Scotland tothe English throne, just like VirginiaWoolf's Orlando. Finally, at the end ofthe twentieth century, the man is willingto give the woman a public, legal voice intheir historic relationship. She remainsweaker, poorer, smaller, but she wantsthe equality of a modern marriage. Natu-rally she does; what could be moremodern? From her point of view, it doesnot mean that she does not want to staymarried after all the centuries. On thecontrary, she wants to renew the union.The question is whether the husband seesthe marriage any longer as a union, orsimply regards the wife as a subordinate.After twenty years of argument, hemakes an offer that will provide herwith some independent revenue as wellas a public role. She can now join in thefull conversation and her voice is nolonger limited to performances at whichshe wears funny skirts. But what if thereis a disagreement over, let us say,whether he should continue to taketrips to Brussels and other places inEurope on his own? What if she wantsto accompany him and he does not wanther to? As there always have been, thereare bound to be disagreements. In thealtered relationship, who resolves them?Do they remain a matter for him? Mustshe still plead as someone who is influ-ential but ultimately powerless? Whenthere is a disagreement, is resolving it

now to become a matter for mutualagreement?

It is easy to see what is at stake in termsof family dynamics. Either there is a basisof trust in which both partners are com-mitted to a relationship of mutual agree-ment, or there isn't: in which case, thevery fact that the woman now has a voiceand legal standing of some kind will leadher to push for full independence (Ìf youwon't let me come with you to Brussels,then I will go on my own!'). This is acontemporary scenario, not one of `med-ieval benightedness'. Now, suppose thehusband of three centuries starts off thenew relationship saying, Ì earn moremoney than you and you benefit unfairly,therefore if you want more independenceI will cut your allowance.' A guidanceprofessional is likely to predict the rela-tionship will soon come to an end. Forthe husband's statement implies that inhis view she was simply a kept woman ofconvenience all along . . .

One major criticism applied to argu-ments on these lines is that they areexaggerated. The Scottish parliamentwill not be very powerful, it will not beable to do much, it will settle down asànother tier of local government'. Here,Nairn's response is in my view convin-cing. Because the parliament will nothave much direct administrative work,it will be all the more concerned to be thevoice of Scotland. To prove itself, it isbound to seek to carve out a role inBrussels, and the Scottish media willtrack this with an intensity and concernthat will show up the shallowness of theLondon media's coverage of Europeanpolicy. The dynamic behind the creationof the Scottish parliament is a Scottishnational one. It is not being created inorder to overcome administrative diffi-culties or ease the pressures of develop-ment on the centre, as has been usuallythe case with Westminster-style `devolu-tion'. It is being legislated for because ofpolitical pressure from Scotland. It will


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be a real parliament, either within or, ifnot, then without, the UK.

If this is so, then the first and the thirdof the possibilities listed above are theonly possible outcomes for Labour's con-stitutional reforms. The example of Scot-land alone is sufficient for us to concludethat Labour's reforms will not be assimi-lated in the manner of previous changesto the constitution. A Scottish parliamentis not going to prove an adaptation of theexisting, unwritten constitution. It willchange its nature. Either the UK willalter the character of its constitutionalsettlement or it will break up in somefashion: either the unitary state willbecome pluralist or it will lose part ofthe inter-national union. This is thechoice facing the UK over the comingdecade.

`New everything'

Nairn does not foresee Westminsterreconvening its sovereignty so that it istransformed into a democratic settle-ment. He argues that option three is theonly likely one. Against this, I am whathe calls a `new everything' person. I thinkthat it is possible for the British state toembrace a new constitutional approach.It is too early to say that it will do so. Mycase is simply that it is premature forNairn to argue that it won't (he doesnot say in the essay that it can't).

There are three reasons for believingthat it is possible for the new BritishGovernment to embrace an overallapproach to constitutional reform thatrecognises the end of `the absolute sover-eignty of the Crown in Parliament' andthrough its embrace of an open systemenables Scotland to recover its voice.

The `absolute sovereignty of the Crownin Parliament' no longer exists anyway,and it has ceased to exist in two signific-antly different ways. Both, perhaps, havebeen driven by the European process.Some argue that it is possible for Parlia-ment to reverse the 1972 Act and thus re-

establish its univocal sovereignty. Thisview is spurious. No significant body ofpolitical opinion advocates leaving theEU. In the absence of this likelihood,any decent constitutional expert shoulddiagnose actually existing sovereignty assovereignty as it actually exists. If youwant the UK to leave the EU, perhapsyou have a case for clinging to the possi-bility that Parliament has the power tosever relations with Brussels. But if youdon't wish it to do so, then British sover-eignty is what is. Anything else is anabsurd form of constitutional denial,best summed up by PeregrineWorsthorne when he defended lying toParliament in 1995 on the following lines:

Telling the truth about the reasons for Brit-ain's fishing policy, for example, wouldalmost certainly involve telling Parliament amurky story which any self-respecting min-ister would rather not tell; and, if told, wouldcause one hell of a stink . . . in short, the mythof parliamentary sovereignty would not longsurvive if ministers always told the truth. Soperhaps it is a mercy that even the best ofthem do not do so.3

There is still much proud, official talkabout defending parliamentary sover-eignty on the front benches of theHouse of Commons. But it has becomea joke. The conceptual basis for the oldorder is now so threadbare it can nolonger be sustained, intellectually or jour-nalistically. It is said that the English aredeeply conservative and will not be ableto change. In fact they have a historicrecord of frankness and radical adapta-tion. Worsthorne's language reflects this,as does the laughter off stage at the truthof his remarks.

The heart of the old order of sover-eignty is executive power and the rela-tionship between ministers and theirpermanent secretaries. The breakdownhere is obvious enough. Examples arelegion: any summary of the Scott Reportprovides a fistful. More to the point, theexamples keep on coming. Take a recent


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one: the Conservative complaint aboutthe politicisation of staff at DowningStreet. Jonathan Hill, who was JohnMajor's political secretary from 1992 to1994, admits that he too wished at timesto `silence that nagging Whitehall con-science'. But, he argues, `all politiciansneed to have that decent, quiet voicedrawing them back'.

Who in No. 10 is now going to say to Mr Blair,`I'm not sure it would be quite right to do itlike that, Prime Minister'? Who is going tosay, `Convention suggests that we ought toconsult on that, Prime Minister'? . . . Mr Blairwill become cut off from the reality of day today life . . . When that moment comes, thePrime Minister will need that dispassionateWhitehall voice to tell him the truth.4

This passage is a fine summary of thevanity of the permanent Civil Service.They are apparently the ones who,quietly and confidentially, speak truthto power. In this way it is they whocheck possible abuseÐfrom inside. Amore open system of accountability, aFreedom of Information Act, for ex-ample, that made policy advice publicwithin twelve months of its being given,would spoil the privacy of the relation-ship, and would make it harder for thetruth to be whispered. So hush.

Within a few weeks of the Daily Tele-graph publishing Hill's article, we discov-ered how bad the system he lauded couldbe. We now know for sure that when oldEtonian Jonathan Aitken lied to old Har-rovian, Head of the Civil Service andCabinet Secretary, Sir Robin Butler,Aitken was believed. Who was cut offfrom the reality of day to day life? Notthe politicians but, precisely, the all toopowerful `dispassionate Whitehall voice'that is far from dispassionate when itcomes to preserving its own privileges.Far from speaking, or even seeking out,the truth and telling it to power, the oldsystem does the opposite.

This is not an argument against checkson prime ministerial power. It is an argu-

ment for saying the inherited way ofexercising this function has collapsedinto ineffectiveness under the pressureof such contemporary forces as the com-missions generated by Middle East armsdeals. Britain's unitary stateÐthe abso-lute sovereignty of ParliamentÐdoes nothave checks and balances of an openkind, external to executive power.Instead, as Hill's description makesclear, it depends on internal, informalchecks about what is right and wrong.These no longer work. How, then, can asystem which is manifestly in a state ofbreakdown possibly enforce itself?

Nairn's response is that weaknessbreeds intransigence. The old systemmay be a busted flush in London. Itdoes not follow that London will surren-der efforts at control when it comes toScotland. On the contrary, it may meanthat it clings on to it all the more tightly.However, the end of the old order ofparliamentary sovereignty is no longer amatter of total systems failure. We are notwitnessing a repeat of the 1970s when theBritish economy looked to the IMF forsupport and society was in a state ofdemoralisation and frustration underCallaghan. On the contrary, Britain hasbeen modernised through the long yearsof Thatcherism, and British society is farless deferential and much more modernthan it was twenty years ago. The cen-tralised and archaic nature of the Britishpolity is today not just an anachronism inmodern European terms, it is also ana-chronistic in terms of British society itself.It might have been much better if poli-tical democracy had preceded the mar-ket's replacement of the corporate mixedeconomy. This could have lessened theinequality that resulted. But it is nowarguably the case that normalisation hastaken place everywhere in Britain exceptin the political order, and what is neededin terms of sovereignty is for the polity tocatch up. Its weakness is now much lessrepresentative of British society as awhole. Self-confident, decentralising


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forcesÐstrengths in other wordsÐ nowexist in the society and economy capableof pushing for, supporting and makingpopular a pluralist reform of the Britishstate.

This is where Labour's own policiesplay a part. If its constitutional reformprogramme had been limited to Scotlandand Wales, Nairn's pessimism aboutWestminster's ability to `let go' mightbe fully justified. But on one front afteranother, nominally existing parliamen-tary sovereignty is under challenge fromthe reforms Labour itself is committed tointroducing.

The Conservatives resisted a Freedomof Information Act on the grounds that itwould undermine ministerial account-ability to Parliament. We know that infact it will increase the power of MPs vis-aÁ-vis ministers, but it will indeed strike atthe absolute monopoly of the executive.Labour seems likely to introduce a formof incorporation of the European Con-vention on Human Rights so that itlimits the ability of judges to strikedown legislation (unless the judges arein Strasbourg). Nonetheless, the ability ofjudges to rule against the executive, if itabuses its power, will be much increased.Government will be extended to thecourts, as centres of review. This toowill diminish the perception of Parlia-ment's absolute sovereignty. The pro-posed legislation for an elected mayorof London will also create a democraticvoice outside the Palace of Westminster.In this case, the mayor will be directlyelected by numbers unprecedented inBritish historyÐover 5 million may beeligible to select the capital's leader.Perhaps, in the absence of any money-raising power, the mayor will have tofend for him- or herself and be reducedto a joke. But if, before that, he or shemeets with the Prime Minister of theScottish parliament in, say, York andthey agree to make a joint bid forpowers to raise tax for infrastructureinvestment free of Treasury control,

then, provided this proves popular, thejoke may be on Westminster.

While such developments take place,hereditary peers will be abolished politi-cally and a big debate will start on therole and character of the House of Lords,as Burke's most treasured principle ofhereditary wisdom finally bites thedust. At the same time, the electoralsystem will be under intense discussionas the country prepares for a referendumon the matter. Are we really to believethat all this can take place while theconstitutional order as a whole in Eng-land simply sails on?

I am not saying that Labour's reformprogramme as it exists is coherent orbound to succeed. I am saying thatLabour's programme reinforces the pos-sibility of such success as it alters thesurrounding environment. Take, for ex-ample, the prospect of Lords reform. Oneof the most influential factors that hasstifled reform has been the prospect forinfluential figures of a pleasant sinecureand frisson of prestige and public stand-ing offered by the prospect of a lifepeerage. Why have the Tories balked atthe obvious Thatcherite modernisation ofreplacing that stuffy, consensual den ofwets? Because so many of them fancy abit of the red leather themselves. Whydid so many otherwise sensible Labourpoliticians remain loyal to the unitarystate? Because only through central,secretive patronage could they hope tolook forward to an indefinite politicallife, fading quietly among the ghosts ofpast decades who make a trip to have teain our upper chamber like a journeyacross the Styx. Blair has committedLabour to replacing the upper house. Itis no longer fashionable to look forwardto a life peerage, which anyway is un-likely to last more than seven years.Thanks to forward discounting, a vestedinterest in the reproduction of the oldorder and the frustration of reform,entailed by the expectation of its antique


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rewards, is already lifting from ourshoulders.

I have not yet mentioned the LiberalDemocrats. At present they are not in theforefront of the public mind. But theywere signatories of the Joint Report.They have called for a new overallapproach. They have already workedout that only a pluralist system will beable to contain a Scottish parliamentwithin the Union. In effect, Nairn's argu-ment assumes that the Liberal Democratsare as unimportant as the election resultssuggest and that the referendum on PRwill be lost. This could prove to be thecase, obviously. But Blair may need Lib-eral Democrat support to retain highpopularity; he has already shown thathe is capable of implementing an agree-ment with them. Or his standing maystart to slip and they might gain standingand support. There seems to be a Labourassumption that the debate over its con-stitutional policy will unfold withoutsignificant pressure for more principledreform, pressure, for example, from theright or from voters. This could bewrong.

For the first time, the election showedthat voters are ready forÐnot enthusias-tic about, but well prepared to acceptÐconstitutional reform. For the first time ageneration of political leaders are inoffice who are not enamoured of imperialgreatness or in love with the monarchy.Indeed, the Deputy Prime Minister is adeclared republican who takes the viewthat the throne is not a priority for him.This admirably sane attitude does notseem at all out of sorts with the cultureof the Government, certainly not with itsbackbench support. The people are readyfor a modernisation of the state andpoliticians are prepared for it. It could,therefore, happen.

A final argument against its actuallyhappening is that Blair's presidentialismwill get the better of him. Behind hisfacade of democratic talk lies the realityof a controlling and centralising figure

who could not embrace pluralism. But anopen, pluralistic state, and even more afederal one, may still benefit from astrong overall leader. This is not theSwiss model; perhaps it is more like theGerman one. Decentralisation will onlyappear as weakness if the divisions overit are not democratically resolved.

But let us not bank on this. Assumethat absolute power corrupts absolutelyand that Blair follows the path of Mar-garet Thatcher. This, quite clearly, willlead to his downfall eventually becausedictatorship is not a modern or lastingform of ruleÐespecially not in England.What form, then, will the opposition toBlairite absolute rule take? There may beregressive opposition from the Tories;there is bound also to be progressiveopposition from within Labour's parlia-mentary ranks as well as from the LiberalDemocrats. At this point one can foreseea race between the forces of breakdownaccording to Nairn's scenario and thoseof prevention through reform in England.

The historic settlement inherited from1688 is drawing to a close. It was holedbelow the waterline by Thatcherism. Itcannot survive a Scottish parliament, asNairn demonstrates. And such a parlia-ment is now on its way. The question iswhether the English will reform theWestminster state to renew the Unionon a new basis of partnership. Thiswould be most unlikely without reformbeing undertaken right across the exist-ing constitution. Such a programme wasunthinkable under Callaghan, yet it too isnow taking place. The means to demo-cratise the old regimeÐsocial, cultural,psychological and politicalÐare avail-able. It can succeed.

Postscript

As if to demonstrate the difficulty ofwriting on such a fast-moving topic, asthis text was finished the newspapers ranevidently well-sourced stories aboutGovernment disagreement over the


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powers of the Scottish parliament, to beannounced in the forthcoming WhitePaper. It is reported that, under pressurefrom English ministers, it has beendecided that while all other domesticmatters will come under the powers ofthe new parliament as planned, thoserelating to bioethics and medicine willnot. This exception rules out the possibi-lity of Scotland passing different abortionlaws to the rest of the UKÐthe issue thatgained the headlinesÐbut its effect couldbe more far-reaching.

If the reports prove correct, the deci-sion should be reversed. If it is not, thenNairn's prediction is greatly strength-ened. The issue did not exist in June.Now, in July, Scots feel they are havinga legitimate area for their own maturedecision-making taken away from them.Obviously, they will want to `take itback'. That bioethics should become thearea of dispute vindicates the argumentsdeveloped by Ulrich Beck in The RiskSociety and developed in Britain byTony Giddens and David Held. Acrossthe world, we are witnessing the politici-sation of the previously non-political, inthe environment and with respect to thehuman body especially. Biological andmedical ethics are today areas of impor-tant differences and unpredictable out-comes, no longer issues which the publicis willing to abandon to experts. It is a hotzone for voice. To rule it out, beyond thereach of Scotland's parliament, when wewant more discussion in the zone, notless, is follyÐunless the termination ofthe Union is the aim. For such a decisioncompounds under-estimating the force ofnationalism with incomprehension aboutthe explosive drive behind bioethics.Obviously, Scottish nationalists are look-ing for topics to make their own ambitiona modern, forward-looking and progres-sive one. Should the Government banEdinburgh from making its own lawsover bioethics, or contributing to theirresolution in Scotland, it will providethe nationalists with a perfect gift, one

that will enable them to position them-selves on the terrain of the future.

We do not need to return to theOrlando analogy, and a woman's `rightto choose', to see the outcome. FromHume through Ferguson to AdamSmith, Scotland can claim to be thehome of the moral economy. If there isanywhere on the planet where we mighthope that politicians can draw on apolitico-cultural tradition capable of asustained and serious discussion ofpolicy on bioethics, it is in Edinburgh.And in its vicinity, large mammals havejust been cloned for the first time. Here,then, a parliament will gather. SNP can-didates and probably the Liberal Demo-crats will have campaigned on the rightto decide the framework for medicalethics in Scotland. To secure their ownvote, Labour candidates will probablysay that they too will do their best toensure that Westminster lifts its prohibi-tion. As a result, the whole parliamentwill agree that it should discuss theissues involvedÐeven if it cannotdecide on them.

A parliament nearly 50 per cent ofwhose members are women, non-adver-sarial in its style, with perhaps a practiceof insisting that those who speak mustthen attend the rest of the debate, andtherefore with a crowded chamber,highly educated and skilled in reparteeand judgement, will conduct the equiva-lent of an intense teach-in of the issuesposed by medical ethics in today's world.As witnesses they will be able to callupon the world's most experiencedgenetic engineers on their doorstep. Theproceedings will become a referencepoint in the debate that will soonunfold everywhere. To forbid such achamber from then acting on its conclu-sions but instead to insist that it mustbow to the empty benches and vacuousbarking of the House of Commons wouldmake the world shake its head in disbe-lief. The English should want Scotland todebate and legislate in this area. We can


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all benefit, whether the new parliamentestablishes an intellectual example orinstead demonstrates the stupidity ofPresbyterian fundamentalism. Butwhether the English want it or not isbeside the point, should the people ofScotland themselves want it to happen.This is the key question. If they do, it will.For if they do and the English Govern-ment persists in saying that they cannothave the right to decide, they will do sooutside the Union.

Notes

1 Anthony Barnett, The Defining Moment,London, Charter 88, 1994.

2 Nairn's paper will be published in a forth-coming issue of New Left Review.

3 Quoted by Trevor Smith in the openingessay, `Causes, Concerns and Cures', inthe Hansard Society collection edited byF. F. Ridley and Alan Doig, Sleaze, OxfordUniversity Press, 1997, p. 9.

4 Daily Telegraph, 4 June 1997.


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