It is common for people from outside the United Kingdom to refer to the UK as “England”, either in English, or using the equivalent word in other languages. English people often do the same, and for many making a consistent, precise distinction between England and the UK can be a challenge - if indeed it is not viewed simply as unnecessary pedantry or “semantics”.
However, if England ≡ the UK, and Englishness ≡ Britishness (≡ means “is equivalent to”), the implication is that a Scot who identifies as British can also just as well be identifying as English. That is manifestly absurd - not because there is anything wrong with being English, but because Scottishness and Englishness are clearly two different things.
For Britishness to make sense for the parts of the UK that aren’t England then, Englishness must be distinct from - and not equivalent to - Britishness. (The alternative is that we accept Englishness and Britishness are effectively synonyms, and therefore that England has essentially colonised the other parts of the UK union.)
The problem is that the UK’s current constitutional arrangements - and, as a result, I would posit, its public discourse - only grudgingly acknowledge the distinction between England and the UK as a whole. This gives rise to three particular, but related, problems.
We might characterize the first problem as the constitutional comprehensibility problem. As already touched upon, very little attention is paid in English public discourse, nor in UK (generally England-emanating) media, to the distinction between England and the whole of the UK.
So, for example, in the recent UK general election campaign, the UK media glided effortlessly between discussing the UK political parties’ positions on UK-wide matters such as Brexit, their policies relating to England only (eg, on nurse numbers) - notwithstanding the low-transparency, low-accountability way in which UK public sector funding is allocated, whereby changes in spending on nurses in England do have an impact on spending in the rest of the UK - and their policies for some other combination of the UK's constituent parts (eg, tax on earned income: England, Northern Ireland and Wales; police numbers: England and Wales; offshore wind: England, Scotland and Wales), as if they all applied to the whole country. Almost no reference was ever made to the territorial extent of each policy - but England was the golden thread running through all of them.
One could argue that we can take as read the fact that ‘UK-advertised’ policies apply to the parts of the UK to which the relevant subject matter is not devolved (except where that is not the case), so there is no need to state the precise territorial scope of policies each time we discuss them. This is problematic in several respects. When the UK media covers areas of public policy outside of England - eg, the public healthcare system in Scotland - the territorial extent is made clear in almost every sentence. This perpetuates the notion that England is the ‘default’ part of the UK, and therefore that Northern Ireland, Scotland and Wales are some kind of constitutional aberration, having a status more like that of colony than integral part of the country.
More importantly, for members of the Northern Irish, Scottish and Welsh electorates who are not constitutional nerds (ie, the majority), it is actually quite difficult to be sure - for example, during a UK election campaign - which ‘UK-advertised’ policy positions relate to their respective parts of the United Kingdom. This tends to particularly be the case when UK politicians take advantage of the fact that they control both English domestic policy and UK-wide policy areas to propose things that are simply impossible for the devolved administrations to replicate. (Whether or not the politicians in question even realise they are doing this is another matter.) These policies can sometimes end up being implemented in a half-baked way - never really publicly discussed or acknowledged - in the parts of the UK not fully under the control of Westminster, a point I will touch on again later.
This is a major issue for democratic accountability. If I as an ordinary voter don’t fully understand which layer of government is responsible for which areas of public policy, I will not be able to cast my vote in the most effective manner. Even if I do possess such a full understanding, I will still be subjected to other suboptimalities of the constitutional status quo - such as TV debates during UK election campaigns featuring lengthy discussions on English domestic policies of no direct relevance to me, but blended in with UK-wide policy which would affect me - which again serve to emphasise the apparently subnormal constitutional status of my part of the United Kingdom.
We turn now to the second problem, which we shall refer to as the institutional representation problem.
There is a territorial mess at the heart of the UK’s constitution and thus of its institutions. This feeds but also goes beyond the problem of constitutional comprehensibility.
By way of example, we have:
You might think: So what? While the above examples highlight issues with nomenclature, the actual legal position is not ambiguous or in doubt.
However, this territorial mess contributes to the first problem (ie, that of the comprehensibility of the constitution). If UK government departments and public bodies have responsibilities which relate both to England and to the UK as a whole, they will - absent great discipline - elide the distinction between the two. For example, the UK home secretary and justice secretary recently announced a strengthened response to terrorism, an issue which is indeed, legislatively speaking, reserved to Westminster under the Northern Irish, Scottish and Welsh devolution statutes. While it is perfectly proper therefore for the UK home secretary to announce UK-wide legislation in the area of counter-terrorism, what is not OK - if you value clear and comprehensible government - is for that announcement to be mixed together with an announcement about increased funding for the police, and prison and probation services - matters which are devolved to both Northern Ireland and Scotland - at the very least not without making explicit the territorial extent of each component of the announcement.
Worse, if public bodies with an English remit use names, website addresses, etc which suggest that their remit is UK-wide, or, conversely, if public bodies which clearly reference England in their name actually have UK-wide responsibilities, the suggestion is made almost explicitly that England and UK are so essentially the same thing as for the distinction to not be worth worrying about - again, implying an exceptional, pseudo-colonial status for Northern Ireland, Scotland and Wales.
As a parallel to the democratic accountability point above, this terminology elision also makes government subtly less accessible. The fact that Public Health England has UK-wide responsibilities adds a degree of ‘comprehensibility friction’ to its role. One might argue that institutional nomenclature isn’t important, but if that were true we could just as easily call Public Health England “Public Body 327”.
The third problem we will call the public policy problem. This problem is perhaps the least obvious but the most insidious.
As already mentioned, it is often the case that UK politicians will propose policy innovations for England (or whichever parts of the UK they have responsibility for given the subject matter), which rely on their also controlling related UK-wide policy levers - or vice versa.
The apprenticeship levy - introduced in 2017 - is a good example of this. The UK government, in its 2015 budget, decided to introduce a tax on UK employers which essentially forces them to spend on apprenticeship training. The levy paid by a particular company is held in a segregated digital account for that company, from which the company can draw to fund apprenticeships which it itself provides.
However, this policy relies on the same government having power over both payroll taxes and education; within the UK, the only government for which this is the case is the UK government with respect to England. The Northern Irish, Scottish and Welsh administrations receive a proportionate share of the apprenticeship levy, so they don’t lose out financially, but it simply forms part of their so-called “block grant” from Westminster. Even if they wanted to, they couldn’t operate the company-specific account model used in England - except perhaps if they literally used the English scheme (ie, “the UK government’s way or the highway”).
Since the UK government isn’t forced to collaborate on cross-cutting policy innovations like the apprenticeship levy in the most populous constituent country of the UK - as would be the case in a symmetric federal system in which every state possessed an identical set of competences - it tends to adopt an approach of, “Well, we’re doing this in England. You can either like it or lump it.” This isn’t fair, nor does it result in elegant UK-wide public policy.
One could counter here with, “Well, you wanted devolution. England didn’t. This is a side effect of asymmetric devolution. Deal with it.” Such a retort may provide a certain degree of visceral satisfaction, but it may not be sufficient if your long-term desire is to keep the UK together.
It is time to conclude.
The three problems described above - the constitutional comprehensibility problem, the institutional representation problem and the public policy problem - are not unique to the United Kingdom. They exist to a greater or lesser extent in any country with an asymmetric constitutional setup (though, as an aside, some of these other jurisdictions can provide useful lessons for the UK - such as the much more transparent horizontal fiscal equalization scheme which operates in Australia). However, what is probably unique to the UK is the elision of the state (in this case, the UK) with a component nationality of the state comprising over four fifths of its population (in this case, England).
The solution to all of the problems described here is, on paper, of course rather straightforward - create a devolved national government for England, give the devolved administrations in all four UK constituent countries identical powers, and, ideally, embed all of this in an entrenched federal constitution under which each constituent state has the unilateral right to secede (perhaps with a limit - à la the seven-year minimum interval between border polls laid down in the Northern Ireland Act 1998 - on how often that state’s population can be consulted about secession). The entrenched constitution part isn’t even strictly necessary - all that’s required is for England to have its own national government with the same powers as Northern Ireland, Scotland and Wales.
However, the stark reality is that the creation of a national government for England within the UK will almost certainly never happen. With no offence intended to the good people of England, most of the population of said part of the United Kingdom do not sufficiently appreciate the distinction between England and the UK, or even the need for or merit in such a distinction, and thus the required political impetus for the creation of English national institutions which would bring that distinction to life doesn’t exist (even if UK politicians were willing to cede control over English domestic policy, which there are also very limited signs that they are); a resounding catch-22 if ever there were one. Therefore, despite the title of this piece, there seems very little point in Scotland’s hanging around patiently awaiting the emergence of federalism in the UK.
The case for a true UK federation, whereby England exists as a polity distinct from that of the wider UK, doesn’t look - despite UK Labour leadership frontrunner Keir Starmer’s comments in recent days - like a case waiting to be made; rather, it looks like a case in futility.
If you value good governance, the problems outlined here cannot be ignored. The current British fudge is not fit for purpose, but there is no serious will to do anything about it amongst the majority of the UK population or their political leaders. The only solution therefore is for Scotland to break apart the fudge.
(Here, in this sad Brexit week, I have not explored the many other factors that could also lead a rational Scottish voter to plump for independence over remaining in the UK, even if a perfect symmetric federation were on offer - such as, to name but one, a wish to reestablish free movement with Scotland's European hinterland).
It is time for Scotland and rUK - should it choose to grasp the opportunity - to start, constitutionally speaking, from scratch, each with new constitutional settlements fit for the 21st century and for the modern era.
However, if England ≡ the UK, and Englishness ≡ Britishness (≡ means “is equivalent to”), the implication is that a Scot who identifies as British can also just as well be identifying as English. That is manifestly absurd - not because there is anything wrong with being English, but because Scottishness and Englishness are clearly two different things.
For Britishness to make sense for the parts of the UK that aren’t England then, Englishness must be distinct from - and not equivalent to - Britishness. (The alternative is that we accept Englishness and Britishness are effectively synonyms, and therefore that England has essentially colonised the other parts of the UK union.)
The problem is that the UK’s current constitutional arrangements - and, as a result, I would posit, its public discourse - only grudgingly acknowledge the distinction between England and the UK as a whole. This gives rise to three particular, but related, problems.
We might characterize the first problem as the constitutional comprehensibility problem. As already touched upon, very little attention is paid in English public discourse, nor in UK (generally England-emanating) media, to the distinction between England and the whole of the UK.
So, for example, in the recent UK general election campaign, the UK media glided effortlessly between discussing the UK political parties’ positions on UK-wide matters such as Brexit, their policies relating to England only (eg, on nurse numbers) - notwithstanding the low-transparency, low-accountability way in which UK public sector funding is allocated, whereby changes in spending on nurses in England do have an impact on spending in the rest of the UK - and their policies for some other combination of the UK's constituent parts (eg, tax on earned income: England, Northern Ireland and Wales; police numbers: England and Wales; offshore wind: England, Scotland and Wales), as if they all applied to the whole country. Almost no reference was ever made to the territorial extent of each policy - but England was the golden thread running through all of them.
One could argue that we can take as read the fact that ‘UK-advertised’ policies apply to the parts of the UK to which the relevant subject matter is not devolved (except where that is not the case), so there is no need to state the precise territorial scope of policies each time we discuss them. This is problematic in several respects. When the UK media covers areas of public policy outside of England - eg, the public healthcare system in Scotland - the territorial extent is made clear in almost every sentence. This perpetuates the notion that England is the ‘default’ part of the UK, and therefore that Northern Ireland, Scotland and Wales are some kind of constitutional aberration, having a status more like that of colony than integral part of the country.
More importantly, for members of the Northern Irish, Scottish and Welsh electorates who are not constitutional nerds (ie, the majority), it is actually quite difficult to be sure - for example, during a UK election campaign - which ‘UK-advertised’ policy positions relate to their respective parts of the United Kingdom. This tends to particularly be the case when UK politicians take advantage of the fact that they control both English domestic policy and UK-wide policy areas to propose things that are simply impossible for the devolved administrations to replicate. (Whether or not the politicians in question even realise they are doing this is another matter.) These policies can sometimes end up being implemented in a half-baked way - never really publicly discussed or acknowledged - in the parts of the UK not fully under the control of Westminster, a point I will touch on again later.
This is a major issue for democratic accountability. If I as an ordinary voter don’t fully understand which layer of government is responsible for which areas of public policy, I will not be able to cast my vote in the most effective manner. Even if I do possess such a full understanding, I will still be subjected to other suboptimalities of the constitutional status quo - such as TV debates during UK election campaigns featuring lengthy discussions on English domestic policies of no direct relevance to me, but blended in with UK-wide policy which would affect me - which again serve to emphasise the apparently subnormal constitutional status of my part of the United Kingdom.
We turn now to the second problem, which we shall refer to as the institutional representation problem.
There is a territorial mess at the heart of the UK’s constitution and thus of its institutions. This feeds but also goes beyond the problem of constitutional comprehensibility.
By way of example, we have:
- Departments of the UK government which have responsibilities relating to only a subset of the UK mixed in with UK-wide matters - like the infamous Home Office, which on its website claims it has “a fundamental role in the security and economic prosperity of the United Kingdom”, while omitting to mention that it is responsible for policing in England and Wales only, and for fire and rescue services solely in England;
- Institutions like the NHS in England (not to be confused with the similarly named public body NHS England) using website addresses which suggest they have a UK-wide remit (in this case, nhs.uk);
- Institutions with “England” in their name having roles which relate to the UK as a whole, such as Public Health England’s role as UK National Screening Committee secretariat provider - which blurs into its operational screening responsibilities for England - and as UK competent authority for certain EU law purposes.
You might think: So what? While the above examples highlight issues with nomenclature, the actual legal position is not ambiguous or in doubt.
However, this territorial mess contributes to the first problem (ie, that of the comprehensibility of the constitution). If UK government departments and public bodies have responsibilities which relate both to England and to the UK as a whole, they will - absent great discipline - elide the distinction between the two. For example, the UK home secretary and justice secretary recently announced a strengthened response to terrorism, an issue which is indeed, legislatively speaking, reserved to Westminster under the Northern Irish, Scottish and Welsh devolution statutes. While it is perfectly proper therefore for the UK home secretary to announce UK-wide legislation in the area of counter-terrorism, what is not OK - if you value clear and comprehensible government - is for that announcement to be mixed together with an announcement about increased funding for the police, and prison and probation services - matters which are devolved to both Northern Ireland and Scotland - at the very least not without making explicit the territorial extent of each component of the announcement.
Worse, if public bodies with an English remit use names, website addresses, etc which suggest that their remit is UK-wide, or, conversely, if public bodies which clearly reference England in their name actually have UK-wide responsibilities, the suggestion is made almost explicitly that England and UK are so essentially the same thing as for the distinction to not be worth worrying about - again, implying an exceptional, pseudo-colonial status for Northern Ireland, Scotland and Wales.
As a parallel to the democratic accountability point above, this terminology elision also makes government subtly less accessible. The fact that Public Health England has UK-wide responsibilities adds a degree of ‘comprehensibility friction’ to its role. One might argue that institutional nomenclature isn’t important, but if that were true we could just as easily call Public Health England “Public Body 327”.
The third problem we will call the public policy problem. This problem is perhaps the least obvious but the most insidious.
As already mentioned, it is often the case that UK politicians will propose policy innovations for England (or whichever parts of the UK they have responsibility for given the subject matter), which rely on their also controlling related UK-wide policy levers - or vice versa.
The apprenticeship levy - introduced in 2017 - is a good example of this. The UK government, in its 2015 budget, decided to introduce a tax on UK employers which essentially forces them to spend on apprenticeship training. The levy paid by a particular company is held in a segregated digital account for that company, from which the company can draw to fund apprenticeships which it itself provides.
However, this policy relies on the same government having power over both payroll taxes and education; within the UK, the only government for which this is the case is the UK government with respect to England. The Northern Irish, Scottish and Welsh administrations receive a proportionate share of the apprenticeship levy, so they don’t lose out financially, but it simply forms part of their so-called “block grant” from Westminster. Even if they wanted to, they couldn’t operate the company-specific account model used in England - except perhaps if they literally used the English scheme (ie, “the UK government’s way or the highway”).
Since the UK government isn’t forced to collaborate on cross-cutting policy innovations like the apprenticeship levy in the most populous constituent country of the UK - as would be the case in a symmetric federal system in which every state possessed an identical set of competences - it tends to adopt an approach of, “Well, we’re doing this in England. You can either like it or lump it.” This isn’t fair, nor does it result in elegant UK-wide public policy.
One could counter here with, “Well, you wanted devolution. England didn’t. This is a side effect of asymmetric devolution. Deal with it.” Such a retort may provide a certain degree of visceral satisfaction, but it may not be sufficient if your long-term desire is to keep the UK together.
It is time to conclude.
The three problems described above - the constitutional comprehensibility problem, the institutional representation problem and the public policy problem - are not unique to the United Kingdom. They exist to a greater or lesser extent in any country with an asymmetric constitutional setup (though, as an aside, some of these other jurisdictions can provide useful lessons for the UK - such as the much more transparent horizontal fiscal equalization scheme which operates in Australia). However, what is probably unique to the UK is the elision of the state (in this case, the UK) with a component nationality of the state comprising over four fifths of its population (in this case, England).
The solution to all of the problems described here is, on paper, of course rather straightforward - create a devolved national government for England, give the devolved administrations in all four UK constituent countries identical powers, and, ideally, embed all of this in an entrenched federal constitution under which each constituent state has the unilateral right to secede (perhaps with a limit - à la the seven-year minimum interval between border polls laid down in the Northern Ireland Act 1998 - on how often that state’s population can be consulted about secession). The entrenched constitution part isn’t even strictly necessary - all that’s required is for England to have its own national government with the same powers as Northern Ireland, Scotland and Wales.
However, the stark reality is that the creation of a national government for England within the UK will almost certainly never happen. With no offence intended to the good people of England, most of the population of said part of the United Kingdom do not sufficiently appreciate the distinction between England and the UK, or even the need for or merit in such a distinction, and thus the required political impetus for the creation of English national institutions which would bring that distinction to life doesn’t exist (even if UK politicians were willing to cede control over English domestic policy, which there are also very limited signs that they are); a resounding catch-22 if ever there were one. Therefore, despite the title of this piece, there seems very little point in Scotland’s hanging around patiently awaiting the emergence of federalism in the UK.
The case for a true UK federation, whereby England exists as a polity distinct from that of the wider UK, doesn’t look - despite UK Labour leadership frontrunner Keir Starmer’s comments in recent days - like a case waiting to be made; rather, it looks like a case in futility.
If you value good governance, the problems outlined here cannot be ignored. The current British fudge is not fit for purpose, but there is no serious will to do anything about it amongst the majority of the UK population or their political leaders. The only solution therefore is for Scotland to break apart the fudge.
(Here, in this sad Brexit week, I have not explored the many other factors that could also lead a rational Scottish voter to plump for independence over remaining in the UK, even if a perfect symmetric federation were on offer - such as, to name but one, a wish to reestablish free movement with Scotland's European hinterland).
It is time for Scotland and rUK - should it choose to grasp the opportunity - to start, constitutionally speaking, from scratch, each with new constitutional settlements fit for the 21st century and for the modern era.
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