The unionist Edward Carson signs the Ulster Covenant in 1912, protesting against Irish home rule. Photo: HULTON ARCHIVE / GETTY IMAGES
Show Hide image

Vernon Bogdanor: The crisis of the constitution

Although the spirit of British democracy is in good health, its mechanisms are under threat. The task now is to transform crisis into opportunity.

We tend to think of single-party majority government as the norm in Britain. And so it has been in the postwar era. But from 1885, when the single-member constituency became standard, until 1945 such governments were rare – indeed, there were just three, one of which lasted for only a year – the 1906-10 Liberal government, the 1922-23 Law/Baldwin Conservative government and the 1924-29 Baldwin government. Every other government was either a minority administration or a coalition.

Until 1914, the prime reason for this was the return of a solid bloc of Irish nationalists to Westminster – at least 80 in every general election from 1885 to 1910. In 1885, 1892 and from January 1910 the Liberals, the leading party of the left, were dependent on the Irish nationalists for their majority.

The Irish nationalists (who formed the Irish Parliamentary Party), unlike the Scottish National Party and unlike Sinn Fein, which supplanted them in 1918, were not explicitly separatist. They claimed they wished to remain within the United Kingdom and sought no more than home rule – large-scale legislative devolution. But as Charles Stewart Parnell, the IPP’s greatest leader, had put it in 1885, while home rule was the most that could be demanded under the British constitution, “No man has the right to fix the boundary to the march of a nation. No man has the right to say to his country, ‘Thus far shalt thou go and no further’ . . .”

Had it been implemented, therefore, home rule might well have evolved into something like dominion status – independence for Ireland within the Commonwealth – but peacefully, without the repression and civil war that marked the birth of the Irish Free State in 1922.

Home rule, however, required the consent of not just the Commons but also the House of Lords, then composed almost entirely of hereditary peers and with a permanent Conservative majority; and before 1911, the powers of the Lords were unlimited by statute. After the House of Lords had rejected Lloyd George’s “People’s Budget” in 1909, the Liberals decided to reform it, but following the sudden death of Edward VII in May 1910 they sought a “truce of God”, a compromise with the Conservatives.

The two parties came together in a constitutional conference, which sat from June to November 1910. This conference attempted to distinguish between different categories of legislation – ordinary, financial and constitutional – proposing different procedures for each and with the powers of each house to be laid out in statute. Use of the referendum was also discussed. The conference was attempting, in fact, nothing less than the production of a written constitution for Britain.

Not surprisingly, perhaps, it broke down, primarily because the parties could not agree to which legislative category home rule belonged and whether special procedures were needed to implement it. Instead of an agreed solution, therefore, the Lib­erals, prodded by the nationalists, decided to replace the absolute veto of the Lords with a suspensory veto of two sessions – reduced to one session in 1949 by the Attlee government.

During the constitutional conference, Lloyd George, the Liberal chancellor of the Exchequer, made a startling proposal – nothing less than a Liberal/Conservative coalition, which would impose on both Irish nationalists and unionists a system of “home rule all round”, a quasi-federal solution for the whole of the United Kingdom. If the Irish demurred, then (so Lloyd George predicted), the Liberals would “wash their hands of the whole affair and leave the Irish to stew in their own juice”. But the coalition proposal got nowhere; nor did home rule all round. It involved pulling up the British constitution by its roots to solve the Irish problem and imposing upon England a form of government it did not want purely to satisfy the Irish nationalists.

Once the Irish left Westminster in 1918, declaring their independence and setting up their own parliament in Dublin, pressures for constitutional reform faded away. “The two supreme services which Ireland has rendered Britain,” Winston Churchill wrote mischievously in 1929, “are her acces­sion to the Allied cause on the outbreak of the Great War, and her withdrawal from the House of Commons at its close.”

The SNP has now resurrected the constitutional debate. The Scottish Nationalists, could well, after next month’s general election, exert a stranglehold over British politics similar to that of the Irish nationalists in 1910. But whatever the outcome, the Scottish Question and the English Question will come to the fore.

A second Conservative/Liberal Democrat coalition or a Conservative majority government will lack, as the 2010 coalition lacked, legitimacy in Scotland. Scotland will once again have a government it did not vote for. A government of the left, by contrast, will almost certainly lack a majority in England, and the issue of “English votes for English laws” will be raised with even greater intensity. Either way the Union will again come under threat.

As in 1910, there are many who suggest a federal solution. But that implies some similarity between the wants and desires of all four parts of the UK and the imposition of a new and probably unwanted system of government in England purely to accommodate the Scots. Plus ça change.

Kenneth Baker, the former Conservative education secretary, has suggested another way out of the deadlock – a grand coalition of the Conservative and Labour Parties that might, as was hoped in 1910, impose a solution to Britain’s constitutional problems. Yet that, too, is an unlikely development.

 

***

 

The 2015 general election, then, is likely to raise a question mark over the very future of the UK. But the difficulty we face in confronting our constitutional problems is that they are interconnected. The Scottish Question is intertwined not only with the English Question but also with the question of whether Britain remains in the EU, and with the electoral system. It would in fact be easier to resolve the Scottish Question, were there to be electoral reform.

In the 2010 election, the Conservatives won just one seat in Scotland. Yet they won one in six of the votes – around 17 per cent; just 3 percentage points fewer than the SNP – while Labour won 41 of Scotland’s 59 constituencies on just 42 per cent of the Scottish vote. A proportional system would have given Labour 24 seats and the Conservatives ten. In May, the SNP could make a clean sweep in Scotland on less than 50 per cent of the vote. First-past-the post makes Britain appear more divided than it really is and exacerbates the West Lothian problem because it exaggerates the imbalance in strength in Scotland between Labour and the Conservatives. First-past-the-post therefore threatens the unity of the country. Proportional representation, by contrast, would alter the dynamics of the conflict between England and Scotland and make it more manageable.

Resolving the English Question is also intertwined with other constitutional questions, and in particular with the status and reform of local government. George Osborne’s commendable attempt at devo-max to Greater Manchester requires, if it is to be successful, the devolution of real taxing powers to local government and of ministerial powers over such matters as health. But above all, a successful policy of devolution and decentralisation requires a clear understanding of what matters are fundamental to the UK as a whole – what are the basic constitutional, social and economic rights that should be enjoyed by every citizen – and what matters are capable of different treatment in different parts of the UK. That understanding is best embodied in a written constitution.

It is indeed because our constitutional problems are so interconnected that there is so strong a case for a constitutional convention. Speaking in Edinburgh in 2013, Douglas Alexander, the shadow foreign secretary, called for a Scottish convention to consider the future of the Scottish constitution, similar to that of the convention of 1989 which paved the way for devolution. But the future of Scotland should not be seen in isolation from that of the rest of the UK; nor can further devolution be considered in isolation from such matters as reform of local government and electoral reform. What is needed is a UK-wide convention, with popular participation, to consider the constitution as a whole.

In 1910, the crisis of the constitution was resolved in an ad hoc manner and the chance for a real constitutional settlement was missed. Will the same happen in 2015? Or are we, on the 800th anniversary of Magna Carta, approaching a genuine constitutional moment?

If we are, as I believe, approaching such a moment, it is because our constitutional problems have not arisen in a vacuum but reflect real pressures of social change – in particular, the end of deference and the breakdown of old class and party loyalties. There is a growing conflict between new social forces and our traditional constitutional forms. It is becoming increasingly clear that these constitutional forms are relics of a past era. Our political system needs to become more congruent with the public philosophy of what David Cameron has called a post-bureaucratic age, whose watchword is fluidity and whose leitmotif is a politics of openness and transparency. This means publicly stated constitutional rules rather than the tacit understandings that have hitherto served us as a substitute for a constitution.

The democratic spirit in Britain is not unhealthy. The Scottish referendum showed that there is a huge reservoir of civic potential that the political parties have largely failed to tap. It is the institutions and the mechanisms which seek to represent the democratic spirit that are at fault. Disenchantment with politics flows from the conflict between a maturing democracy, in which voters are accustomed to wider choices than in the past, and a political system that still bears all too many of the characteristics of a closed shop.

The task now is to funnel the democratic spirit down constructive channels so that crisis can be transformed into opportunity. That is the fundamental case for a constitutional convention and, if it comes about, it will repay a debt of gratitude that we owe to the Scots for voting to stay within the UK.

Vernon Bogdanor is professor of government at King’s College London. His pamphlet “The Crisis of the Constitution” has just been published by the Constitution Society

This article first appeared in the 17 April 2015 issue of the New Statesman, The Election Special

ALEXEI FATEEV/ALAMY
Show Hide image

The Catalan cauldron

The prospect of the break-up of Spain poses yet another challenge to Europe.

As Britain prepares to mark the centenary of the bloodiest battle in the First World War, the Somme, in July, Spain is bracing itself for an even more traumatic anniversary. In July 2016 it will be 80 years since the start of a civil war that tore the country apart and continues to divide it today. In the four decades since the return of democracy in the mid-1970s, Spaniards slowly inched towards rejecting the extreme violence of the Francoist right (and elements of the opposing left) as well as acceptance of various federal arrangements to accommodate the national sentiments of the Basques and Catalans, whose aspirations Franco had so brutally suppressed. In recent years, however, this consensus has been called fundamentally into question, with severe potential consequences not only for the unity of Spain, but the cohesion of the European Union.

On 27 October 2015, after the Catalan elections, the new parliament in Barcelona passed a declaration requesting the start of a formal secession process from Spain, to be in place in 18 months. The immediate reaction of Spain’s prime minister, Mariano Rajoy, was to announce that the state was entitled “to use any available judicial and political mechanism contained in the constitution and in the laws to defend the sovereignty of the Spanish people and of the general interest of Spain”. The preamble to the constitution proclaims the Spanish nation’s desire to “protect all Spaniards and the peoples of Spain in exercising their ­human rights, their cultures and traditions, languages and institutions”. Probably the most disputed articles are 2 and 8, which state, respectively, that “the constitution is based upon the indissoluble unity of the Spanish nation, common and indivisible patria of all Spaniards” and that “the army’s mission is to guarantee the sovereignty and independence of Spain, to defend its territorial integrity and the constitutional set-up”. Rajoy’s implication was clear: the unity of the country would be maintained, if necessary by military means.

It was Madrid, however, that broke with the federal consensus some years ago and thus boosted secessionist sentiment in Catalonia. José María Aznar’s government (1996-2004) failed to respond to demands for greater autonomy for Catalonia, at a time when secession was not even mentioned. This led to an increasing awareness among Catalans that the federal transfer system within Spain left them with an annual deficit of 8 per cent of Catalonia’s GDP because of the financial arrangements established by the Spanish state, an issue aggravated by the effect of the global financial crisis. Catalan nationalism thus became a matter of not only the heart, but also the pocket. Even more important was the Spanish legal challenge to the Statute of Autonomy of Catalonia 2006 and its subsequent dilution, after it had been sanctioned by the Catalan parliament, and by both the Spanish congress of deputies and the senate, not to mention the Catalan people in a legally binding referendum.

According to the Spanish high court of justice, some of the statute’s content did not comply with the Spanish constitution. This outraged many Catalans, who could not understand how the newly approved statute – after following all the procedures and modifications requested by Spain’s political institutions and constitution – could still be challenged. Four years later, the Spanish high court finally delivered its verdict on 28 June 2010. It removed vital points from the Statute of Autonomy 2006 and declared them non-constitutional. All this led to a revival of Catalan nationalism, culminating in a symbolic, non-binding referendum in November 2014, which was boycotted by opponents and produced a majority of 80 per cent in favour of independence.

The roots of this antagonism go deep, to the civil war that broke out on 17-18 July 1936 when some sectors of the army rebelled against the legitimate government of the Second Republic. The rebels rejected democracy, the party system, separation between church and state, and the autonomy of Catalonia, the Basque Country and Galicia. Their primary objective was to re-establish “order” by eliminating all vestiges of communism and anarchism, then quite strong in some parts of Spain.

High on the list of General Franco’s targets was Catalan nationalism, which had been growing since the late 19th century. The industrialisation of Catalonia and the Basque Country left the most economically developed parts of the Spanish state politically subject to the less prosperous Castile. By the end of the 19th century and influenced by German Romanticism, la Renaixença – a movement for national and cultural renaissance – prompted demands for Catalan autonomy, first in the form of regionalism
and later in demands for a federal state.

Catalan nationalism did not emerge as a unified phenomenon. Diverse political ideologies and cultural influences gave rise to various types of nationalism, from the conservative nationalism of Jaime Balmes to the federalism of Francesc Pi i Margall, to the Catholic nationalism of Bishop Torres i Bages and the Catalan Marxism of Andreu Nin, among others. Catalonia enjoyed some autonomy under the administrative government of the Mancomunitat or “commonwealth” from 1913 onwards. This was halted by the 1923 coup d’état of the dictator Miguel Primo de Rivera. Autonomy was granted again during the Second Spanish Republic from 1931-39 – but abolished by Francisco Franco’s decree of 5 April 1938.

Franco’s victory led to the suppression of Catalan political institutions, the banning of the Catalan language and proscription of all the symbolic elements of Catalan identity, from the national flag (the Senyera) to the national anthem (“Els Segadors”). In February 1939, the institutions of the autonomous Generalitat went into exile in France. In 1940 the Gestapo arrested the president of the Generalitat, Lluís Companys, and handed him over to Spanish officials. He was interrogated and tortured in Madrid, then sent to Barcelona, where he was court-martialled and executed at Montjuïc Castle on 15 October 1940. The most important representatives of the democratic parties banned by the regime went into exile, or were imprisoned or executed. The authoritarian state designed by Franco crushed dissent and used brute power to suppress the historical nations included within its territory. The regime’s aim was to annihilate the Catalans and the Basques as nations.

***

After almost 40 years of Franco’s dictatorship, Catalonia recovered its government, the Generalitat, in 1977 – before the drafting of the Spanish constitution in 1978 – and sanctioned a new statute of autonomy in 1979. The 2006 statute was expected, at the time, to update and expand Catalans’ aspiration for further devolution within Spain: never secession.

At present, a renewed nostalgia and enthusiasm for Francoism can be found among some sections of the Spanish right. One of the main challenges of the newly democratic government from the mid-1970s onwards was to get rid of the symbols of Francoism that had divided Spaniards between “winners” and “losers” in the civil war. It was only in 2007 that the then prime minister, José Luis Rodríguez Zapatero, guided the Law of Historic Memory through parliament with the aim of removing hundreds of Fascist symbols reminiscent of the Franco era from public buildings. It also sought to make reparations to victims of the civil war and the ensuing dictatorship.

There still exist hundreds of other references to the Fascist regime, however, with streets, colleges and roads named after Franco and his generals. The most controversial of these is the Valle de los Caídos (“Valley of the Fallen”), near Madrid, commissioned by Franco as his final resting place. It supposedly honours the civil war dead, but is primarily a monument to the general and his regime, housing the graves of Franco and José Antonio Primo de Rivera, the founder of the fascist Falange political party. Roughly 450,000 people visit it every year, and while most of them are foreign tourists, groups of Falangists and supporters of the old regime who come to pay tribute to the dictator have frequented it. Nostalgics for Francoism, though still a small minority within modern Spain, are becoming vociferous. They find common ground with far-right-wing conservatism, particularly in their shared aversion to federalism.

On 3 August last year Artur Mas, the then president of Catalonia, called an extraordinary parliamentary election after all attempts to negotiate and agree on a legally binding referendum with the Spanish government failed. Supporters of independence immediately announced that the forthcoming Catalan elections would be regarded as a plebiscite on independence.

On a turnout of more than three-quarters of the electorate, supporters of outright independence gained 48 per cent of the vote, while those backing a unitary state secured 39 per cent. On 9 November 2015 the Catalan parliament formally declared the start of the process leading to building an independent Catalan state in the form of a republic. It also proclaimed the beginning of a participative, open, integrating and active citizens’ constituent process to lay the foundations for a future Catalan constitution. The Catalan government vowed to move forward with its secession process. Immediately, the Spanish Constitutional Court suspended the Catalan law setting out a path to independence and warned that defiance could lead to criminal charges.

Worse still for Madrid, secessionism is gaining strength not only in Catalonia but also in the Basque Country, whose premier, Iñigo Urkullu, demands a “legal consultation” on the northern region’s future in Spain. He supports a new statute for the Basque Country and defends its status as a nation in the EU. Similarly to Catalonia, the Basque Country has a distinct language and culture, and benefits from the so-called concierto económico, an advantageous financial deal with the Spanish state.

***

The Spanish government’s refusal to engage constructively with Catalan nationalism contrasts markedly with London’s more relaxed and ultimately more successful response to Scottish nationalist aspirations. The “Edinburgh Agreement” between the British Prime Minister and the then first minister of Scotland to allow a binding referendum on Scottish independence stands in sharp contrast to the Spanish government’s outright opposition to a similar vote in Catalonia. Basques and Catalans find deaf ears regarding further devolution and binding referendums on self-determination. This highlights the distance between various conceptions of democracy that coexist inside the European Union, rooted in the diverse political cultures of nations with varying historical backgrounds.

All this matters, not only to Spain but to the EU, because it is part of a broad trend across the continent. In mainland Europe, demands for self-determination are running strong in Flanders as well as parts of Spain. In turn, tensions between Italy and Austria over control of South Tyrol (Trentino Alto Adige, to the Italians) remain high, as do demands advanced by the South Tyrol­ean secessionist movement. Bavarian regionalism is critical of the present German (and European) political order. Further to that, modern Venetian nationalism and its long-standing demands for independence have prompted a renewal of Venetian as a language taught in schools and spoken by almost four million people.

Matters are now coming to a head. Catalonia and Spain are in flux following two inconclusive elections. In January, after a prolonged stand-off, the sitting Catalan president, Artur Mas, made way for a fellow nationalist, Carles Puigdemont. He was the first to take the oath of office without making the traditional oath of loyalty to the Spanish constitution and the king. Felipe VI, in turn, did not congratulate Puigdemont.

The new president has announced that he plans to draw up a constitution, to be voted on in a referendum “to constitute the Catalan Republic” at the end of an 18-month consultation process. Puigdemont’s strategy envisages not a dramatic unilateral declaration
of independence, but a more gradual process of disconnection in constant dialogue with the Spanish government and Catalan political parties. Let no one be deceived by this “softly-softly” approach: it is designed to culminate, in a year and a half, perhaps sooner, in a vote on establishing a separate, sovereign state of Catalonia.

Meanwhile, Spanish politics are in flux. The elections to the Cortes on 20 December 2015 resulted in a victory for Conservatism, but also the most fragmented Spanish parliament ever and, as yet, no government. Almost the only thing the Spanish parties can agree on is opposition to Catalan independence, yet even here there are divisions over whether more autonomy should be granted and what response to make to unilateral moves by the Catalans.

The stakes are high for both sides. By pressing too hard, too early, Catalan nationalists may provoke Madrid. This would be a mistake. Strategy is important and recent events in Catalonia will weaken the Catalans’ democratic, peaceful and legitimate desire to hold a referendum on independence. Likewise, a heavy-handed response from Madrid will not only destroy the residual bonds between centre and periphery in Spain, but put the central government in the dock internationally. A confrontation will also cut across the only possible solution to this and all other national conflicts within the eurozone, which is full continental political union. Full union would render the separation of Catalonia from Spain as irrelevant to the functioning of the EU, and the inhabitants of both areas, as the separation of West Virginia from Virginia proper in the United States today.

In a nightmare scenario, radicalisation and unrest could emerge in Catalonia, with division between Catalans and memories of the Spanish Civil War coming to the fore. In this context, it might become very difficult to prevent violence.

This is the last thing that Brussels wants to hear as it grapples with the euro crisis, Russian territorial revisionism, Islamist terror, the migrant question and the prospect of Brexit. A meltdown in Catalonia will create dilemmas for Europe, starting from problems with Schengen, and raise questions about continued membership of the EU. It will also work against Catalans’ expectations of receiving EU support in their quest for independence, as turmoil in Europe will prompt nation states to close ranks. The EU will not be expected to intervene, because this scenario would – at least initially – be defined as an “internal affair of Spain”. Conflict between Barcelona and Madrid would shatter one of Europe’s biggest member states.

In that event, the peninsula will become the hottest point in an emerging “arc of crisis” across the southern flank of the EU, stretching from Portugal across Spain, an Italy struggling along with everything else to cope with the flow of migrants, the troubled Balkans, to Greece, which is perpetually perturbed. This highlights yet another flaw in the EU. It has no institutional framework for dealing with Catalan demands to become a nation within the Union, or those of other populations. Merely insisting on Spanish state sovereignty will not make the problem go away for Brussels, or for Europe as a whole. This is a potential matter of life and death not only for Spaniards and Catalans, but perhaps for the EU itself.

Brendan Simms is the director of the Forum on Geopolitics at the University of Cambridge and president of the Project for Democratic Union Montserrat Guibernau is a visiting scholar in the Department of Politics and International Studies at Cambridge and a member of the Forum on Geopolitics

This article first appeared in the 21 April 2016 issue of the New Statesman, Shakespeare 400 years Iater