The phrase ‘muscular unionism’ is new but the concept is not.
As Prime Minister, Boris Johnson called Scottish devolution ‘a disaster north of the border’. Liz Truss said while campaigning for the Conservative leadership that she would ‘ignore’ the ‘attention seeker’, First Minister Nicola Sturgeon. She was true to her word, never contacting Sturgeon or Mark Drakeford, First Minister of Wales, during her premiership. Lord (David) Frost, who served as a member of Johnson’s Cabinet, recently wrote:
The Scottish “government” is not the government of a state in confederation with England. It is a subordinate entity within the UK, with powers granted to it by the UK government and Parliament, and ultimately subject to the supremacy of that Parliament.
It does indeed sound muscular, but it ended in tears and self-contradiction last time, and there is no reason to expect differently this time. The UK government would be well advised to become a little weedier than PMs Johnson or Truss. Rishi Sunak contacted Sturgeon and Drakeford on his first full day in office as Prime Minister. Is this a hopeful sign?
Let me make a distinction between plain vanilla unionism and muscular unionism. All unionists believe that preserving the Union of the United Kingdom is a good thing. Plain unionists believe that they should try to carry the people with them, and that guarantees in constitutional documents such as the Acts of Union 1707 and the Northern Ireland Act 1998 should be ‘entrenched’ (protected from instant repeal). The 1707 Act offers protection to the Church of Scotland. The 1998 Act sets out a procedure for a referendum on a united Ireland. Plain unionists think that such provisions should be protected against repeal by an English majority against the wishes of the Scots or the Irish.
Muscular unionists, on the other hand, believe that the Union should be preserved by asserting the supremacy of the UK parliament over everything in the kingdom, including the people and parliaments of Scotland, Wales, and Northern Ireland. Contemporary plain unionists include Welsh First Minister Mark Drakeford, former Prime Minister Gordon Brown, and the former leader of the Scottish Conservatives, Baroness (Ruth) Davidson of Lundin Links. Lord Frost is clearly a muscleman, as regards Northern Ireland as well as Scotland. So were the last two UK Prime Ministers.
The most muscular unionist of all was the jurist A. V. Dicey (1835-1922). In a phrase still much quoted by lawyers, he wrote in 1885:
Parliament means… the King, the House of Lords, and the House of Commons… The principle of Parliamentary sovereignty means… that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever[.]… Should the Dentists Act, 1878, unfortunately contradict the terms of the Act of Union [Union with Scotland Act 1707], the Act of Union would be pro tanto repealed’.(Dicey 1885: 37-8, 133).
According to Dicey, the power of parliament to make or unmake any law means that no statutes, not even the Union with Scotland Act 1707 or the Union with Ireland Act 1800, have any special protection. As 1878 is more recent than 1707, the Dentists Act trumps the Act of Union if there is any conflict. Lawyers call this ‘implied repeal’. Parliament, in a much-used phrase, can do anything except bind its successor.
As Lord Frost notes, parliamentary sovereignty is written into the devolution statutes creating the Scottish Parliament, the Welsh Senedd, and both past and current Northern Ireland Assemblies. For instance, the Scotland Act 1998 states at section 28(7):
This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.
However, Dicey was caught in a contradiction. Prime Minister W E Gladstone, introducing the first Home Rule Bill in 1886, gave this encomium to Dicey (1885):
No work that I have ever read brings out in a more distinct and emphatic manner… the absolute supremacy of Parliament.
Hence, if parliament is supreme, it may amend or repeal the Acts of Union. Dicey wanted Ireland to stay in the Union whatever the Irish thought. The third Home Rule Bill became the Government of Ireland Act 1914. According to Dicey’s legal doctrine, parliament had the unfettered power to do that. Dicey the embattled unionist said that the 1914 Act would:
In the eye of every Unionist, lack moral authority…. [O]bedience [to a Government of Ireland Act] can be due only when a law is the clear and undoubted expression of the will of the nation.(Dicey 1913, cited in McLean 2010: 131).
Dicey believed, without evidence, that he and his unionist friends represented the will of the nation, and that the Liberal government elected three times in a row (in 1906 and twice in 1910) did not.
Muscular unionism, although expressed by Lord Frost and others in terms of parliamentary supremacy, is actually incompatible with it, as Gladstone showed. In old age, Dicey acknowledged that the Scottish Act of Union purports to entrench, among other things, the ‘true Protestant religion’, the presbyterian Church of Scotland. The Scottish treaty negotiators had made this a precondition of recommending the Union, adding that the English parliament could, should it wish, entrench similar protection for its church. It did; hence the final Act of Union purports to entrench two distinct true Protestant religions. King Charles III has already sworn the oath to protect the Church of Scotland required by one of the Scottish Acts of 1707.
The Scottish negotiators ‘clearly believed in the possibility of creating an absolutely sovereign legislature which should yet be bound by unalterable laws’. They were soon disabused. A Tory general election victory in 1710 led to muscular unionism in the form of the Patronage Act 1711, which allowed lay patrons to nominate Scottish parish ministers in violation of the promises embodied in the Treaty and Acts. Parliament did it because parliament could. It imperilled the Union by causing endless trouble in Scotland, including the tectonic Disruption of the Church of Scotland in 1843. The matter was finally settled by the Church of Scotland Act 1921, which grants the Church of Scotland doctrinal autonomy untouchable by parliament. The 1921 settlement protects the Union from the threat of parliamentary supremacy.
The Conservative-led governments of 1886-92, 1895-05, and 2010-16 may properly be called (plain vanilla) unionist. Each of them tried to protect the Union in the face of part of the UK represented in parliament by separatists – the Irish Party from 1886 to 1905, and the SNP since 2010. In the UK’s ‘first-past-the-post’ system, anti-unionists won almost all the seats in these areas. The unionist governments up to 1905 tried ‘killing Home Rule by kindness’, culminating in the Irish Land Act 1903, which expropriated Irish landlords at UK taxpayers’ expense, thus turning tenants into freeholders. In 2012 Prime Minister David Cameron agreed terms with the Scottish Government (‘government’ according to Lord Frost) to hold the 2014 independence referendum. In the last week before the vote, the unionist parties, alarmed that ‘Yes’ might win, agreed on a ‘Vow’ which transferred substantial tax powers to the Scottish Parliament, and also added the following section to the Scotland Act immediately after section 28(7):
28(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.
After 1912 and 2016, unionism took on a more muscular tone. Its leaders encouraged armed rebellion in Protestant Ulster from 1912 to 1914. And the May and Johnson governments swept section 28(8) aside, first by invoking the procedure to leave the EU without the devolved parliaments’ consent, and then through the UK Internal Market Act 2020. The courts have refused to get involved, on the grounds that what is ‘normal’ is for politicians not courts to judge. So section 28(8) is already a dead letter. In Northern Ireland, the majority of the elected (but not yet functioning) Assembly favours retaining the Northern Ireland Protocol, which the Johnson government wished to abolish at any price. Prime Minister Truss signalled a wish to flex similar muscle to her predecessors.
‘Know your place’
The parliaments of Scotland, Wales, and Northern Ireland are all elected by proportional representation. Unionists win seats roughly in proportion to their votes. Not so at Westminster, where the SNP now is as hegemonic as the Irish Party. Sinn Fein members from Northern Ireland refuse to sit. Hence, nationalist voices from Northern Ireland, and unionist voices from Scotland, are hardly heard in Westminster. This may contribute to muscular unionism’s neglect of what the people of Scotland and Northern Ireland actually think. In all three devolved territories, local politicians are much more popular than any Westminster Conservative. Ignoring local people and their elected representatives did not end well for the muscular unionists last time. It led to independence for most of Ireland and periodic sectarian violence in the rest.
To ‘ignore’ the allegedly ‘attention-seeking’, but undoubtedly elected, First Minister of Scotland and the majority of parliamentarians in both Scotland and Northern Ireland is what Ciaran Martin, the former head of devolution policy at the Cabinet Office, has dubbed ‘know your place’ unionism. Not only Conservatives are guilty of this. So are Labour supporters who think that if Labour can form a majority government under first-past-the-post, while winning almost no seats in Scotland, it can ignore nationalist Scotland.
Muscular unionism didn’t work in Ireland in 1921 and there is no reason to expect it to work now. Ignoring the votes, and the people elected, in Scotland, Wales, and Northern Ireland, is not unionism. It’s imperialism. Dicey and other unionists were willing to countenance everything up to a Protestant paramilitary army to resist Home Rule in Ireland. And that didn’t end well either, for Britain, Northern Ireland, or indeed the Free State (now Republic) of Ireland which endured a civil war in 1922-3. Rishi Sunak would be wise to choose vanilla over muscular unionism. He should respect the entrenchment of devolution and bring section 28(8) of the Scotland Act back to life.
First published by the Constitution Unit