THE judgement of the Supreme Court a week ago today was a moment of some constitutional significance. The full significance may not be seen for some years, but the approach taken by the court is one that could allow significant judicial activism in the future – if they choose to use it.
It has to be said that the case being brought by the Scottish Government always looked more like an exercise in politics rather than law. Sure enough, the response to it was not the sort that would normally greet a court judgement.
No sooner had Lord Reed and his colleagues left the court but the nationalist rhetoric went into overdrive. Scotland as a “prisoner of the union” was the opening bid. Before long those who opposed independence were “traitors” or “quislings” or worse. It was depressing to see but also entirely predictable.
For the rest of us, I think the most common response was something of a shrug, before turning back to the many other challenges we are facing. Between the cost of living, NHS challenges and education strikes – to name just a few – we are not short on other priorities than talking about the constitution.
Since then, I am pleased to say, the temperature has dropped again a bit.
Now, I hope, we can find a more productive path between the extremes of the SNP and Conservatives – two parties which, in their own different ways, thrive on culture war and division.
The need to reform the constitution was one of the issues that brought me into politics as a teenager. Demands for a proportional voting system, a reformed and democratically elected second chamber in parliament, for a Human Rights Act, and the creation of a Scottish Parliament as part of a federal United Kingdom were all things that I identified then as being necessary to see Britain grow as a modern democracy.
In some of these things we have made better progress than others. The one that had the most potential to make a difference to people’s lives was the creation of the Scottish Parliament.
A parliament elected by a proportional system and with powers to raise a portion of its own budget was established by the first Blair government in 1999.
Now the time has come to finish the job – not by breaking up the United Kingdom but by completing the federal structure. A Federal UK with a written constitution is needed now more than ever.
It may not have been the aim of those who supported Brexit, but Brexit has made this reform essential. Now that we are no longer part of the EU single market, we need to have frameworks under which things like agricultural support or fisheries are managed.
In areas like that it is simply not acceptable that DEFRA in Whitehall should act as both the UK department and the English one. Logic and fairness both demand a federal solution.
Of course, if there is one thing that nationalists in both the SNP and the Conservatives can agree on, it is that they are hostile to alternative forms of legitimate government, like the rights of our local communities and regions.
It spoke volumes that in a recent parliamentary debate, when the question of whether the Northern Isles had a right to independence from Scotland, an SNP MP called the idea “ridiculous”.
I am no advocate for Shetland or Orkney leaving either the UK or Scotland, but we should at least have some consistency from those who believe in putting up new borders.
Having grown up in an island community and representing the Northern Isles in Parliament I have never quite seen the appeal of centralised national governments, whether they have a Holyrood or Westminster flavour.
If London seems distant to us at times then so does Edinburgh – and while we can work with both, we do not have to be content with being passive observers to their antics.
What we need – in the isles and across the UK – is a solution that neither keeps us on the status quo nor forces yet more disruption and division. That means an end to the asymmetrical devolution we have currently, and a new federal settlement for the whole United Kingdom.
For federalists, the issue now is the “English Question”. In answering it, we must learn from our own past mistakes.
Throughout the 1980s and 1990s those of us who argued for the creation of a Scottish Parliament relied too heavily on the arguments of identity.
Too often we slipped into the rhetoric of nationalism, talking about Scotland’s rights rather than making the case for a better way of governing ourselves.
In my view a single English Parliament would be impractical and undesirable. It would be all too easy to replicate the heavily centralised system where everything is driven from desks in Whitehall.
There is plenty of scope for a collection of regional parliaments – and the roots of that further devolution have already been planted in the creation of regional mayors in the last ten years. What is necessary now is the sort of national conversation that we had thirty years ago in the Constitutional Convention.
Such a regional, non-national approach could and should be an inspiration for our own situation. We know all-too well that the priorities of the Central Belt are not the priorities of the Highlands and Islands, and that the centralising tendencies of Holyrood have not served us well, whether on policing, marine management or ferry services.
As a Liberal, and as an islander, I believe that there are many valid levels of government – local, national, international – but that if in doubt decisions on services should be made as close as possible to those affected.
One way or another the isles need to be able to take back a measure of the powers we once held – and expand them where necessary. It is essential that we move away from the current thinking in which devolution starts and ends in Edinburgh.
There are some who look at these solutions (they are not, of course, exhaustive) and dismiss them as impossible. The current system is broken, irredeemable – so why even try?
This is not a new argument. It is the one advanced by the SNP in the 1990s to justify their refusal to work with other parties and civic Scotland in the Constitutional Convention.
For those whose politics is all about identity rather than ideas then nothing short of the break-up of the UK will ever be enough – but we should not allow them to assert that theirs is the only route to change.
Progressive groups created the consensus for change that led to the Scottish Parliament after the downfall of Conservative rule in 1997. That alone gives the lie to the idea that meaningful change is impossible.
Eight years on from the 2014 referendum we have to be able to do better than rehearsing the same old arguments and opening the same old wounds.
For those who want change and a better way to run our government, delivering better outcomes for our communities, the moment for federalism has arrived.