Let's get it down in black and white

<em>New Statesman Scotland</em> - Renegotiation of the United Kingdom is on the cards and this time

Scotland needs a new constitution. The fact deserves to be stated baldly, even if its interpretation remains difficult - and certain to be contested. A country can't have a real, legislating parliament for long without one. In its absence, the parliamentary machinery will either be driven forward to independence, or backwards into impotence. Into a version of "local government" in fact, not necessarily bad in itself but far below the expectations of people who voted in September 1997.

In 1979, when the Scots said "Hmm . . . maybe", the United Kingdom was stronger and its unwritten constitution less questioned. Neither the political patriciate nor the trade union movement had been savaged by Margaret Thatcher's capitalist counter-revolution. But from that fatal year onwards the wolves gathered openly. One of their main victims was the aged and limping apparatus of state. Still gripped by ruling-party hubris, the Tories of that day thought it would endure for ever. The mistake has condemned them to die alongside it.

For British conservatism, an ice-laden political tundra was to follow 1997. Three years later, little remains of the "system" that it had for so long consecrated. The Crown is a pitiable diversion, the Lords have become placemen, even the Commons is a paltry side-show - and the NHS has just been derailed by a flu epidemic.

The youthful Lear who inherited Mrs Thatcher's upheaval was forced to begin by dividing his kingdom. He gave the economy to the Bank of England, as the top-hatted financiers of caricature had always demanded, and resigned some distant fiefdoms to forms of indirect rule. But at the same time he determined to strengthen what was left without a new state - that is, without the new constitution which was its only hope. New Labour did not renounce Great-British hubris: beneath a show of think-tank "modernisation" it has, if anything, intensified the source of weakness. Each day, new Labour leans more heavily on a 17th-century order, able to adapt only as long as it remains true to itself, and thus to "tradition" in the sense that killed off Toryism. Does it really not occur to the party that, with one more turn of the wheel, it also could end up on the ice, scurrying in different directions?

Half-way through his first term of office Tony Blair appears locked into this same tragedy. Over Europe, his government dithers like the Scots in 1979 and his party stops him accepting even modest electoral reform. A peremptory - even autocratic - populism has come to stand in for the different democratic system that the United Kingdom needed. In Wales, Scotland and London this heady identity has shown its intolerance of initiatives other than its own. "Self-government" can never be self-assertion, in other words: it is permitted to mean only enhanced participation in grandeur.

Whose grandeur? Well, the rejection of a radical written-constitution settlement for Britain has always been ascribed to English reluctance. Middle England (or at least the myth thereof) wishes no such thing. Three-quarters of the electorate are "uninterested in constitutional questions" - there is simply no tradition of that sort. The task of building up such a mentality in Britain may not have been impossible after Thatcherism's fall. But it was difficult, long-term and not immediately vote-catching. Also, it demanded rapid entry to post-Maastricht Europe, alone capable of providing external stability for such a big domestic shift. To a regime on the populist slide (as we now see), these have turned into so many reasons for retreat. The "revolution" so confidently announced in 1997 was first postponed, then despatched to the cold store. Now Middle England is being given "better yesterday" with a vengeance: the Greenwich Dome, Baroness Jay and the Lottery.

But in Scotland a collective objection can be lodged in or around our new parliament. In fact we would be untrue to ourselves if we failed to do so. Nor is this a matter of ancient pseudo-traditions or Auld-Kirk principles. After the 1979 stalemate, the movement that did lead on to home rule was "constitutional" in just this sense, and its high watermark was 1988's Claim of Right - a clear, defiant statement of sovereign difference and departure from Westminster customs. What finally emerged is well below that mark, of course. Alas, the Scotland Act was forced to reproduce at its heart the puir bedraggled auld vessel itself, HM's Treaty of Union (1706-7, Part I, article 37). Since then, however, the parliament has at least formally and unanimously objected to what it had in tow - the 1701 Act of Settlement banning Catholics from the British throne.

It will be objected at once that Scottish constitutionalism would merely be nationalism by the back door. Really? On this point, above all, unionists need to pull themselves together. At the moment they are still (in all parties) revolving in narrowing circles and calling it progress. Yet they know very well that there can be no retreat from Blair's reforms, with all their faults and contradictions. They also know that his preposterous army of gimcrack committees and pseudo-accords ("concordats") is unlikely to hold things together. They may well make things worse. If I can adapt slightly the thoughts of the American constitutional expert Daniel Lazare here, there is as much chance of the Judicial Committee of Her Majesty's Privy Council saving Great Britain as of finding a decent bagel in Helena, Montana.

Unionists want things to "settle down". But what this already means is some kind of renegotiation of the United Kingdom. They say they want to preserve the latter at all costs. But among these new costs is the participation of Edinburgh, Cardiff and Belfast: no new-union deal can simply be dispensed from Westminster. How could such agreements be reached without recognition of some genuine sovereign rights among the participants? And how can that happen without constitutional entitlement and responsibility? We're not talking exotic abstractions here. Every other federative or regional-government system in the world has such provisions built in: but, of course, the United Kingdom had to be an exception.

Any new deal to replace the deplorable old treaties will involve pluralism, rather than the monomaniac commandism that seems to be overtaking new Labour. It seems to me that unionists, confederalists and asymmetric gymnasts should all have a stake in this, as well as the nationalists. I happen to believe that independence is the most responsible option, as well as the most likely result. But there are even more basic matters, such as deciding to stop living in the 20th century. "Devolution" was a flightless bird of that awful age, now best abandoned to its fate. The wolves are not so far behind; they mean business, and clinging blindly to devolution will simply bring them among us.

Tom Nairn's new book, "After Britain: New Labour and the return of Scotland", is reviewed by John Gray on page 53