Breaking down Adam Tomkin's plans to curb democracy with new Act of Union

Martin meant that as a warning to the Conservative Government but the former Tory MSP and present Professor of Public Law at the University of Glasgow Adam Tomkins seemingly sees such legal compulsion as an ideal to be pursued rather than avoided, as he makes clear in his April 20 article in The Spectator: Why we need a new Act of Union – and what to put into it.

So it would seem that Tomkins has now completed his personal ideological “long march” from the fundamentalist Scottish Socialist republican nationalist who demonstrated against the Queen’s mere presence at the opening of the new Scots Parliament building in 2004 to today’s fundamentalist British Tory nationalist.

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The “problem” which Tomkins is seeking to solve in the article is how to prevent Scotland from leaving the United Kingdom. The opening paragraph makes it clear that democracy is not part of Tomkins’s solution: “For the last century the United Kingdom has regarded itself as a voluntary union of four home nations. Consent, rather than the force of law, has been the glue that has held us together. This is not normal. Most countries hold themselves together with something rather more robust.”

Firstly, by comparison with other modern states there is nothing “normal” about the British Constitution: it is unwritten and its governing, perhaps only principle, is the unlimited sovereignty of the Westminster Parliament.

Secondly, it is far from clear that the UK has been considered a “voluntary union” held together by “consent, rather than the force of law” for the past century. Indeed, on the contrary, exactly 100 years ago a bloody war for Irish independence was being fought by Irish nationalists against the might of a Britain that was refusing to grant Ireland independence despite the overwhelming victory of Sinn Fein in the December 1918 General Election in Irish Seats.

It is true that the British Government was fought to a stalemate and eventually agreed to a truce in Ireland on July 11, 1921 and that de facto if not de jure independence was “granted” to 28 of the counties of Ireland by the Anglo-Irish Treaty of December 6, 1921.

But consent by Britain to Ireland’s longstanding wishes for home rule had been thwarted throughout the 50 years prior to the Anglo-Irish Treaty, as Prime Minister William Gladstone’s various attempts to grant home rule were prevented both by Unionist opinion from within his own Liberal party and especially from the House of Lords.

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It is a very odd form of consent that is expressed by Britain first ignoring democratic election results and then resorting to armed force to attempt to preserve the Union, and eventually only reluctantly conceding independence in the face of continued armed resistance by the Irish.

In practice, Tomkins seems to see the consent in the Anglo-Scots Union as being asymmetrical: Scotland can ask but only Westminster may grant. The sovereignty of the Westminster Parliament trumps Scots democracy.

SETTING aside Tomkins’s ahistorical views on the role of consent in the continued existence of the UK for the last century it is clear that the learned professor considers that democratic consent is neither necessary nor sufficient for the preservation of the Union, instead he wishes to rely on the brute force of law, citing as desirable exemplars the states of Spain, the USA and Canada, all of which forbid a constitutional right to secede to any of their constituent states or provinces.

“We have no such legal clarity in the United Kingdom. Here, it seems, we can be threatened with referendums that have the potential to break up our country whenever a Nationalist government in a devolved administration says so.”

Tomkins goes on to accept that a SNP victory is likely but argues that Boris Johnson should reject any request for a second referendum on Scots independence although he does recognise this contains political risks.

“If, as the polls predict, Nicola Sturgeon’s SNP win the Scottish parliamentary election in May and demand a second independence referendum, the Prime Minister will of course say no. He will be right to do so — now, as we battle our way out of a pandemic, is not the time for the division and rancour of another plebiscite on secession. But, in Scotland, he will be castigated for doing so.

“ An English Tory denying Scotland her voice, there is a real risk that Boris Johnson just saying no to Nicola will push support for independence up and place the Union in ever deeper trouble. With consent fraying at the edges, what to do?”

So the Tory politician Tomkins recognises the political danger of the “BoJo No” but then the public law Professor Tomkins proposes a legal solution to this essentially political problem. Tomkins’s solution to this Unionist political dilemma is to remove the very option of democratic consent to Scots independence for some lengthy unspecified period by changing the law to that effect.

“As the examples of Spain, the US and Canada show, there is nothing to require the UK to continue to think that it cannot or should not turn to the law as a constitutional safeguard. No state should be expected to have to endure repeat referendums on their very existence whenever it suits a separatist movement to hold one.”

What is striking here is how Tomkins personifies the legal state of the United Kingdom, as being entitled to defend “its” territory against those defined as “separatists”.

It seems that the rights and wishes of the abstract legal state of the United Kingdom should trump the democratic wishes of the actual people living in Scotland. Tomkins solution to the desire for Scots independence is that the UK should defend itself with laws that will limit the ability of Scotland to leave the UK and he attempts to justify this deeply anti-democratic proposal by appealing to an idiosyncratic version of recent constitutional history which is all the stranger as being proffered by an expert in Scots public law.

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“Perhaps we should stop being so squeamish about the law and clear the matter up. Let history be our guide. There were two Scottish devolution referendums, held 18 years apart (1979 and 1997). There were two EU referendums held in the UK, 41 years apart (1975 and 2016).”

With respect, these two examples are poor examplars for Tomkins’s case that there should be a “generation” between referenda and his attempt to derive some general principle of “generational gaps” between referenda from the contingencies of recent constitutional history are entirely unconvincing.

The history of devolution in Scotland from 1979 onwards can be summed up as “the Conservatives say no”. In 1979, Scotland voted for the Devolution provisions created by the Scotland Act 1979 by 51.6%, but because of an amendment sponsored by the anti-devolution Labour MP George Cunningham which required that the referendum had to be carried by 40% of the total electorate, as well as by a majority of those voting and on a turnout of 63% that 51.5% simple majority became only 32.5% of the electorate and so the Assembly did not come into existence. Scotland said Aye in 1979 but was denied.

In the June 1979 General Election the strongly anti-devolution Conservative leader Margaret Thatcher came to power and the Tories won the UK General Elections in 1983, 1987 and 1992 yet in each of those elections the Tories won only a minority of Scots votes and Scots seats in Westminster. There was a gap of 18 years between referenda only because the Conservative governments of Thatcher and John Major refused to accede to the Scots wishes for devolution.

As to the votes on EU membership, the reason there was 41 years between referenda was because there was simply no public demand for one. The issue of UK membership was not an important issue with the British public but only with a certain section of the Tory Party. It was to appease his own party, not in response to some wave of popular opinion, that David Cameron agreed to a referendum on EU membership in 2016.

HOWEVER, Tomkins reluctantly concedes that an independence referendum cannot be prohibited indefinitely.

“Clearly, constitutional referendums can be repeated on the same issue — on this view, no one should say ‘never’ to a second Scottish independence referendum. But giving legal clarity to the ‘not now’ arguments the UK Government will have no choice but to run if the Nationalists win another Holyrood majority next month deserves serious consideration. How much better if it wasn’t just a Tory prime minister telling Scotland that it could not re-run a vote held only a few years ago, but the binding law of the land.”

Tomkins seeks to cloak the decisions of a Tory PM in legal clothing, but that disguise is unconvincing. With a Commons majority of 80 (of whom only six were returned for Scots seats), albeit one elected with only 42.4% of the votes cast, Boris Johnson has almost unfettered power to pass any legislation he wants, but that would not make anti-democratic Westminster legislation any more acceptable to Scots political opinion.

Tomkins proposes a new so-called “Act of Union” with two central anti-independence terms: long gaps between referenda and a duty on Scots government to promote the Union.

“The United Kingdom needs a new Act of Union to set out, authoritatively, the rare circumstances in which one part of the country can seek lawfully to secede. As well as defining how frequently referendums on such a matter may be held, the law could at the same time impose obligations on governments and public bodies throughout the land to act with fidelity towards — and not to undermine — the territorial integrity of the country.”

Such an approach would surely backfire on the Unionists as creating an ever longer list of legitimate Scots grievances.

As for “branding” these anti-Scots independence proposals a new “Act of Union,” this would be to put Unionist lipstick on the English parliamentary pig and would fool no one, least of all the Scots electorate. Any so called Act of Union passed with the votes of only English MP’s it would have zero democratic credibility in Scotland.

To survive the Union must be a partnership not a prison. Consent not coercion is the only way the Union has any hope of surviving. Although Tompkins appears to have given up on democratic consent to preserve the Union, he would do well to heed the warning words of US President John F Kennedy in 1962 when he said, “Those who make peaceful revolution impossible will make violent revolution inevitable”.