By Professor Brendan Simms
The UK Union, which has historically played an important part in sustaining Britain’s great power position, has been under attack for some time. In Scotland, the Scottish National Party (SNP) has made clear its desire to call another referendum on leaving the Union as soon as possible. Across the Irish Sea, the connection between the six counties of Northern Ireland and the rest of the United Kingdom has been strained by the erection of a post-Brexit customs boundary in the Irish Sea. Outside of England, only Wales remains secure, though undervalued, in the Union. Now a new challenge looms, which has the potential either to unravel or to bolster the connection between Scotland and the rest of the United Kingdom, with all the geopolitical consequences that might flow therefrom.
This is because the contested issue of gender self-identification has intersected with the struggle over the Union. Recently, the devolved administration of Nicola Sturgeon brought in a bill that would make it much easier to change one’s legal sex. Under the legislation, which passed the Scottish parliament, and now awaits Royal Assent, there will no longer be any need for a medical diagnosis of ‘gender dysphoria’ when applying for a gender-recognition certificate, the age at which one can ‘transition’ is reduced from eighteen to sixteen years of age, and the time spent living as a member of the other sex, before transitioning, is cut from two years to three months. Critics of the law argue, among other things, that it is incompatible with the provisions of the UK Equalities Act.
A few days ago, the Scottish Secretary, Allister Jack, announced that the UK government would block the legislation under Section 35 of the Scotland Act, under which certain powers were originally devolved from Westminster to Holyrood, and others reserved to Union level His action is partly driven by concerns that – for reasons of proximity – the proposed Scottish law would render the operation of the Equalities Act ineffective in England, Wales and Northern Ireland, and partly by the fact that the protection of women’s rights under the Equalities Act remains a UK responsibility. The Scottish administration has already indicated that it will mount a legal challenge to Jack’s intervention, but the general consensus is that this is unlikely to succeed.
We are now seeing, or are about to see, where power in Britain really lies. Irrespective of the merits of the issue, the confrontation is full of implications for the future of the Union. Allister Jack’s intervention has already been used to claim that only complete separation from Westminster by means of a fresh referendum will allow for ‘Scottish Democracy’, while others will argue that the protection of single-sex spaces, for example, can only be guaranteed by the maintenance of the Union.
We have been here before. Today’s clash of rights over gender self-identification is in many ways the 21st Century equivalent of the bitter religious disputes which wracked the British Isles in the sixteenth and seventeenth centuries. In England, this was a three-way struggle between Anglicanism, Roman Catholicism and various forms of Independent Protestantism; in Scotland, it was a three-way struggle between Episcopalianism, Roman Catholicism and Presbyterianism. In both countries, Catholicism was associated, fairly or unfairly, with external domination and the alleged ‘Universal Monarchy’ projects of Philip II of Spain and Louis XIV of France in Europe. But there was no consensus on how to address the split within Protestantism, where the irresistible force of Scottish Presbyterianism met the immovable force of the Church of England.
The Act of Union in 1707 was designed to address, and in some cases sidestep these issues. Strategically, it united England and Scotland in economic and geopolitical terms, and thus rallied both nations to defend the balance of power in Europe. ‘Culturally’, though, the two nations agreed to differ. Scotland retained her distinct legal and educational system, and – most importantly at the time, Presbyterianism was confirmed as the official state ‘Church of Scotland’ north of the border, whereas Anglicanism dominated in the rest of the United Kingdom. We were given a powerful reminder of that this autumn when Charles III swore at the Accession Council to protect the ‘security of the Church of Scotland’, the only policy commitment Charles was required to make.
While no British parliament could or can bind her successors, what was decided in 1707 was that the status of the Church of Scotland lay not within the remit of Westminster but was an immovable part of the Union settlement itself. So it has remained, and any move to change its position as Scotland’s National Church would require the dissolution of the current Union, or have to be carried out by the parliament of a Scottish state which had left the Union. In short, cultural issues were historically outside of the Union, because the primary driver for it had been geopolitics and political economy.
After 1707, Scotland, therefore, entered a unique place where its legal, cultural and religious position was in some sense ‘fixed’ – because it was protected from Westminster, but there was no Scottish parliament to win consent for changing it. More recently, Devolution has given Scotland the capacity to reform itself in those old places – think, for example, of the call to abolish the ’not proven’ verdict. But it has also given Westminster the right to overrule where it has reserved powers – which in practice it didn’t really have, or at least exercise, before out of sensitivities for Scottish ‘cultural’ distinctions.
Right now, there is no settled position in support of this bill in Scottish society, and Westminster can therefore probably hold its legal position without significantly increasing support for independence. But finding unity in cultural debates has never been a requirement for Anglo-Scottish Union. If Scotland truly wishes to go down a separate path to England, Wales and Northern Ireland on these questions, there may be a case for incorporating a new cultural settlement into our future Union. This would have to be done in a way that did not conflict with the – surely dynamic – cultural settlement in the rest of the United Kingdom. Like the original union, this would require a once-off negotiation between the Scottish nation and the UK government, ratified by both parliaments. Whatever the outcome, the resulting law (north of the border) could – like the position of the Church of Scotland – not be overturned by either Holyrood or Westminster but would stand or fall with the current Union itself.
One way or the other, how this struggle ends matters well beyond the boundaries of the UK itself. If the Union is thereby strengthened, Britain will be better able to discharge its responsibilities in Europe and around the world. If it leads to the unraveling of the Union, Britain will be seriously weakened by the loss of the energies of the Scottish people and of the naval bases upon which the nuclear deterrent depends. What might once have seemed, to some, a minor skirmish in the culture wars has now a much broader geopolitical significance.
