As part of my ongoing project on ‘Self-reflexivity, class consciousness, culture wars and social change’, I’m going to write an occasional series of long topical dispatches on the culture war in the UK. In this first edition, I look at the latest report from the British Social Attitudes Survey, now in its fortieth year, which came out in September. I also briefly consider an article, ‘The Vanguard Spearheading British National Populism’ by Jon Bloomfield and David Edgar, from the October issue of the Byline Times. I examine the ongoing constitutional crisis in the UK, which like the culture war is driven by a reactionary desire to implement authoritarian rule, and I look at the Scottish Government’s legal challenge to the Secretary of State for Scotland’s use of a Section 35 order to block the Gender Recognition Reform (Scotland) Bill, which was heard at the Court of Session in Edinburgh on 19th and 20th September. I was thinking and writing about this during the time that the Conservative Party Conference was taking place and inevitably a few soundbites from that have filtered through into the mix as well.
The Culture War in the UK is a Political Argument Concerning How the British State Should Function
The 40th British Social Attitudes (BSA) Report was published on 21 September and can be found here, along with past reports. John Curtice’s introduction begins by telling us, ‘In any country, domestically the state plays two key roles.’ The first of these is taxing and spending, both elements of which can be conducted to a greater or lesser extent. The second of these ‘is to act as the country’s moral and cultural compass’. Obviously, both of these roles are subject to political disputation. However, they also represent two intersecting components of society, which can be combined to potent political effect, as for example in the British media’s delight over the last few years in describing people ‘who lean left on spending and public services but are culturally conservative’. I took this particular example from an article by Tim Shipman in The Sunday Times on 13 June 2021, which was headlined ‘How the Tories Weaponised Woke’. While the expressions ‘culture war’ and ‘culture wars’ are used in a variety of ways, and in relation to a variety of contexts, I would suggest that in the UK many of these usages coalesce around an attempt to mobilise politically the section of the population implied by Shipman’s phrase, with the intention of enforcing authoritarian rule and conservative social norms. One of the ways in which this is attempted is by constructing such people as the polar opposite of the ‘new’ ‘liberal elites’, who allegedly support ‘both economic and social liberalism, Thatcherism and Blairism’. According to Jon Bloomfield and David Edgar, writing in the October edition of the Byline Times, this is the central opposition that is now being put forward by thinkers such as David Goodhart, Matthew Goodwin, Maurice Glasman and John Gray, who can be seen collectively as ‘the anti-elite “culture war” special forces’ of ‘National Populism’. Drawing the threads of this paragraph together, it can be suggested that the central ‘culture war’ in the UK is a political argument concerning how the British State should function, in which the national populist side appeal to supporters by drawing on a simplistic class politics of us versus them; them being the so-called liberal elite, who allegedly want to impose a cosmopolitan and progressive worldview on the general populace while at the same time cutting public spending and allowing social inequality to rise.
As Bloomfield and Edgar point out, many of these supposed liberal elites of the 2020s are not in fact supporters of ‘double liberalism’ (Goodhart’s term) but also opposed to Thatcherite neoliberal economics. Proponents of the idea that a formerly silent majority wedded to social provision and cultural conservatism are now rising to confront the liberal elite sometimes depict it as a post-Brexit realignment but, to the extent that anything like this has happened, it seems more like a pre-Brexit phenomenon. The political grouping that most coincides with the idea of a liberal elite supporting both economic and social liberalism was the Conservative-LibDem coalition government of 2010-2015, which on the one hand introduced same-sex marriage and on the other hand pursued an economic policy of hardline austerity and welfare cuts. Before the impact of austerity became fully apparent, the emergence of this coalition government was seen in some quarters as something new and fresh (remember the hype about Nick Clegg ‘winning’ those TV debates), offering a mature politics. In retrospect, it looks like an unsuccessful experiment and there is no significant comparable grouping today. In other words, there is now no ‘liberal elite’ of the type described in the above paragraph, but the idea is still recognisable; once (briefly) popular and now widely unpopular. In this respect, the national-populist politics identified by Bloomfield and Edgar is not a product of our exact current political juncture but a form of nostalgia for the heyday of the period when UKIP were able to boom in opposition to the coalition government – the phenomenon recorded in Revolt on the Right, the 2014 book written by Goodwin and Robert Ford. The success of that movement culminated in the EU referendum vote and the subsequent 2019 Conservative election victory, which enabled the desired hard Brexit to take place. However, while national populism still exists as a ‘structure of feeling’ within UK society (or, at least, as one way of describing a certain structure of feeling), it no longer benefits from having a defined opposition (the liberal elite) or a defined objective (hard Brexit). The resulting dissipation of energy is one of the reasons why there has been an upsurge of writing and theorising on these areas, which is an attempt to keep this particular ‘culture war’ alive even though it is not currently connected to an immediately achievable objective of the kind that leaving the EU was.
The Attack on Liberalism and Liberalisation
However, political attitudes persisting long after the historical circumstances which gave rise to them is nothing new in British history. One of the key points concerning this type of ‘them and us’ divide is that it doesn’t necessarily matter whether the original opposition continues to exist empirically as long as enough people continue to believe in it, such that it remains a bedrock for their political worldview and, therefore, a determining factor on their attitudes and actions. The question is, given that a hard Brexit has been realised and acquiesced to by pretty much the entire British political establishment, what is to be gained by national populist thinkers by continuing to leverage this particular culture war. Another way of interpreting the attack on ‘double liberalism’, rather than as simply a means of trying to create a bogey liberal elite, would be to see it as an attack on liberalism itself. Here, Curtice’s point about the second key role of the state – it’s function as the country’s moral and cultural compass – is important. In this respect, the pursuance of culture war by sections of the right in Britain is not simply to divide people who might otherwise combine in name of common interest, but an attempt to impose an authoritarian state that would enforce culturally conservative values. This might seem counterintuitive given the right’s historical propensity (since 1980, at least) to claim that they want to shrink government and oppose the ‘nanny state’, Notoriously, Margaret Thatcher even argued (in the 1987 interview with Women’s Own) that there is no such thing as society:
I think we have gone through a period when too many children and people have been given to understand ‘I have a problem, it is the Government’s job to cope with it!’ or ‘I have a problem, I will go and get a grant to cope with it!’ ‘I am homeless, the Government must house me!’ and so they are casting their problems on society and who is society? There is no such thing! There are individual men and women and there are families and no government can do anything except through people and people look to themselves first.
However, both people and families seem to have changed since the time that Thatcher was in power according to the story recorded by the 40 years of the BSA survey. So, for example, the website summary of Elizabeth Clery’s chapter of the report, ‘BSA 40: A liberalisation in attitudes?’, notes some changes that are generally indicative of a liberalisation of attitudes, but with some important exceptions that make it clear that liberalisation is not a straightforward across-the-board process but more uneven:
While we are much more accepting of non-traditional family forms and sexual relationships than we were four decades ago, there is no clear consensus regarding the acceptability of various family forms when children are involved.
81% think it is all right for a couple to live together without being married, up from 64% in 1994.
67% think a sexual relationship between two people of the same sex is never wrong, compared with 17% in 1983.
45% disagree that people who want children ought to get married (24% agree) and 50% agree one parent can bring up a child as well as two (31% disagree).
People are more likely to think an abortion should be allowed in a range of circumstances compared with four decades ago, although there is less universal support when there is no health risk involved.
Support for an abortion being allowed in circumstances when the woman decides on her own that she does not want to have a child has risen from 37% in 1983 to 76% now.
Most people think abortion should be allowed when the woman’s health is seriously endangered by the pregnancy (95%) or when there is a strong chance of the baby having a serious health condition (89%); 72% express this view when the couple cannot afford any more children and 68% when the woman does not wish to marry the man.
Attitudes towards people who are transgender have become markedly less liberal over the past three years.
64% describe themselves as not prejudiced at all against people who are transgender, a decline of 18 percentage points since 2019 (82%).
Just 30% think someone should be able to have the sex on their birth certificate altered if they want, down from 53% in 2019.
While women, younger people, the more educated and less religious express more liberal views towards people who are transgender, these views have declined across all demographic groups.
I have written an extended analysis of Clery’s chapter on this blog, which you can find here. A simplified summary would be that liberalisation of attitudes to issues such as pre-marital sex, same-sex relationships and abortion is largely driven by a generational effect (younger, better-educated, less religious generations replacing older more illiberal generations – although in the case of abortion, education per se seems to be the driver of change independent of generational change) but also impacted by societal or ‘period’ effects, in which factors such as legislation or the tenor of the media debate have legitimated and supported rising liberalisation. However, there are particular instances when the societal period effect concerning certain issues has functioned to reverse the liberalisation of public attitudes. The obvious example is attitudes to trans people, which as evident from the figures above, have become significantly less liberal over the three years since 2019. Clery notes that ‘we may be seeing a period effect similar to that which we witnessed in the 1980s for attitudes to homosexual relationships, with the emergence of HIV-AIDS and the introduction of Section 28 [contributing to much more negative attitudes to same-sex relationships than those displayed today]’ (p.42 of the PDF version of her chapter, which is available for download from the link above). This correspondence suggests that the Government of the day can produce period effects that outweigh generational effects and so reverse, for a while at least, the trend of an increasing liberalisation of public attitudes.
Unlike health and safety campaigns around the dangers of smoking or drink driving, we’re not used to the idea of the Government actively trying to change social attitudes against the grain because generally – at least over my adult lifetime – they try to present liberal credentials. For example, taking steps to ensure that the Tories were no longer seen as the ‘nasty party’ was a key element of David Cameron’s success in winning General Elections. However, the Tories originally got that ‘nasty party’ tag in the 1980s due to Thatcher espousing an authoritarian return to Victorian values in a direct attempt to appeal to reactionary sections of the public. Something similar has been reappearing since 2019. With Brexit achieved and the economy decaying, the Tories no longer have a credible policy platform to run on in the General Election that will take place at some point over the next 12 months. It’s not clear that pursuing a reactionary culture war will change that fate but it might save some seats. Moreover, as discussed above, publicly legitimising reactionary positions and thereby counteracting liberalisation is now a direct aim of the right in itself. Hence, even during the period when I have been writing this piece, the current UK Prime Minister, Rishi Sunak, has deliberately leant into the culture war in his leader’s speech at the Tory Party Conference by saying ‘And we shouldn’t get bullied into believing that people can be any sex they want to be. They can’t; a man is a man and a woman is a woman. That’s just common sense’ (Wed 4 October 2023). It hardly needs saying that this is not just displaying prejudice against trans people but explicitly denying that they even exist. As such, it is an open declaration of extremism and the lack of willingness on behalf of the UK media to report it as such is itself indicative of where the ongoing attack on liberalism is taking us.
Importing American Ideology?
In early September, the New York Times opinion columnist Ross Douthat discussed a recent trip to the UK in which he found that: ‘In British conversations, the talk was all about how elections don’t have consequences and how notional conservative rule has done nothing to halt the resilience of progressive biases in government and the advance of American-style wokeness in the culture’. Rather than questioning the various assumptions underpinning such a contention, Douthat instead proceeded to provide historical justifications as to why this might be the case. So, for example, he argued that the UK is more secular than the USA and therefore more susceptible to ‘wokeness’ and that the UK is effectively behaving like a province that goes overboard in adopting the culture of the elites of the imperial centre. Furthermore, as I discussed in this earlier blogpost, Douthat also argued that the devolved administrations of Scotland and Wales are particularly susceptible to the way in which an ascendant ideology such as ‘woke progressivism’ can achieve a kind of full elite ‘capture’. On the contrary, however, I think this argument implies the opposite of what Douthat is claiming, which is that the ideology of American-style culture war is particularly attractive to British nationalists seeking to undermine the popular success of the devolution settlements in the UK since 1999 – a point I will return to further below.
Government Providing Moral and Cultural Compasses?
The significant part of Douthat’s argument that I want to discuss here is the casual acceptance of the idea that governments should be able to shape public values and attitudes; and that their inability to do so might be seen to constitute failure on their behalf. Generally speaking, the public line on this in the UK always used to be that these kinds of values and attitudes are ‘moral issues’, to use the term employed by the BSA Survey, which are best left to people’s conscience, which is not to say that there haven’t always been many people who believed that everyone should adhere to a narrowly prescribed set of social norms (but once upon a time these were thought to speak for themselves). Neither am I saying that there are no ideological effects in British public and social life, because, of course, there are. However, it is not normally part of UK public discourse to judge a political party by their capacity to shift public opinion on cultural and social values; they are normally judged on the economy, the NHS and, maybe, defence. In order for it to become acceptable in the UK in the way that Douthat is implying, it would require something along the lines of a widespread belief in essentialist human nature – for example, along the lines of Sunak’s claim that it is ‘common sense’ that men are men and women are women – and an additional belief that human nature had been subverted and distorted by systematic social engineering on the behalf of the left or liberal elites. If this kind of historical narrative took root among large enough sections of the population, then significant numbers of people might see it as acceptable that the government deliberately intervene and legislate in defence of commonsense essentialist human nature and traditional values etc. While there are clearly people in British public life attempting to engineer this state of affairs, it does not exist at the moment.
It is true that sections of the American right are pushing a narrative that left/liberal elites have used government to change social attitudes deliberately and that therefore it is now not only acceptable for the right to proactively use political power to enforce a return to human nature/classical liberal/traditional (delete as appropriate for exact variety of conservatism) values, but also a moral duty that they do so. However, the underlying conditions in the UK are different – while Clery shows that religious beliefs act as a significant break on liberalisation, there is no political power base in evangelical Christianity. Furthermore, abortion is widely regarded as a medical right within a socialised health care system which is universally popular (indeed, the NHS probably has greater national status than the monarchy even). Moreover, British history is not widely understood as having been driven by liberal elites imposing values on a traditionally minded public and so it is difficult to whip up this kind of resentment, which was visible at times in relation to the specific circumstances of Brexit, on a wider scale. As the BSA Survey reports suggest, while liberalisation of public attitudes has been supported at time by legislation, it has more predominantly been driven either by generational or educational effects. For example, Clery notes that ‘the proportion of people believing that abortion should be allowed if the woman decides on her own that she does not want a child has increased by 36 percentage points among those with a degree since 1985, compared with an increase of just 13 percentage points for those with no qualifications’ (p.33).
Will the Tories Really Campaign on Reducing the Number of Young People Going to University?
While sections of the British right are trying to portray the postwar expansion of education and higher education as itself a deliberate act of social engineering, historical analyses of this phenomenon, such as Peter Mandler’s The Crisis of the Meritocracy: Britain’s Transition to Mass Education Since the Second World War (2020), show that it was led by public demand. Fringe meetings at recent Tory conferences are trying to mobilise on this issue. For example, as Peter Walker reported last year in the Guardian on 4 October 2022 (‘Sunakites to culture warriors: Tory tribes go to war in Birmingham’):
One of the defining features of this year’s conference has been the sheer number of fringe events, debating issues such as free speech and “woke” beliefs, featuring panellists and audience members who appear convinced that progressive politics among younger people marks a threat to the west on a level with the Soviet Union during the cold war.
Some Tory MPs are believers, too. At one fringe meeting, the backbencher Miriam Cates argued that curbing the number of young people going to university – another repeated theme has been “Mickey Mouse degrees” – would not only save money, but prevent more teenagers being indoctrinated into a liberal purgatory. The audience seemed to agree.
It was no surprise to hear similar soundbites at this year’s conference, as the Guardian reported, while noting that there was ‘Little sign of Tory unity as factions jostle on first day of conference’ (1 October 2023):
The New Conservatives, a culture war-friendly collection of right-leaning backbenchers, released polling on Sunday showing, they said, that a majority of voters and an overwhelming proportion of Tory voters support leaving the ECHR.
On Monday, the group will hold a rally, pressing Sunak to adopt five manifesto pledges, covering ECHR withdrawal as well as tax cuts, massive cuts to immigration, a reduction in the numbers of young people attending university and a ban on “gender ideology in schools”.
In a sign of how US-type culture war issues have become increasingly mainstream within the Conservatives, one of the co-founders of the New Conservatives, Tory backbencher Miriam Cates, used a fringe event on Sunday to argue without any evidence that internet pornography was a driving factor in people becoming transgender.
“This is anecdotal, but you see an awful lot of trans women, so men, saying it was trans porn that led them into the trans arena,” she said. “So I have no doubt that this kind of extreme, violent and very disturbing pornographic material on the internet has got a lot to do with it.”
While what Miriam Coates says each year is not in itself necessarily evidence of where the party is going as a whole, the Tory splits are not as great as the Guardian would like to imply. The five pledges advanced by the ‘New Conservatives’ could now be regarded as fairly mainstream within the current Tory party. The use of the term ‘gender ideology’ is usually the signifier of an attack on trans rights, which as we have seen was a line taken up by Sunak in his leader’s speech. The threat to leave the European Court of Human Rights (ECHR) was pushed in interviews by cabinet ministers, Kemi Badenoch and Suella Braverman. In her own conference speech, Braverman warned of a ‘“hurricane” of mass migration coming to UK’ and, echoing the national populist designation of a ‘liberal elite’ that I discuss above in relation to Bloomfield and Edgar’s Byline Times article, specifically aligned herself and the Tories with the ‘hard-working, commonsense majority against the few … the privileged woke minority, with their luxury beliefs’. Tellingly, ‘luxury beliefs’ is a term imported directly from the USA, coined by Rob Henderson, drawing on his experience of privileged students at Yale, and refers to “ideas and opinions that confer status on the rich at very little cost, while taking a toll on the lower class” (quote taken from Pat Kane, ‘The background to Braverman’s ‘luxury beliefs’ language’, The National, 7 October). I have a feeling I will be returning to these so-called ‘luxury beliefs’ on this blog at some not-too-distant point in the future. All I would point out here is that the British educational system is still very different to that of the US, with the vast majority (over 90%) going to the same schools and getting on for 50% of the cohort now attending university, which amounts in practice to the opposite of an elite education system. In other words, the UK has a very popular mass education system. This is exactly the reason why, returning to those New Conservative pledges, the Tories are in practice unlikely to include a direct manifesto commitment on reducing the numbers of young people attending university. Instead they are more likely to try and achieve this indirectly through their oft-pledged plan ‘to cap the numbers of students on “low-value” degrees’, but it is still not clear how they will be able to achieve this in practice (and in the end it might just remain a slogan) .
So What has Changed in the Last 40 Years?
In the introductory chapter to the BSA 40 report, Curtice concludes:
One way of capturing the picture painted in this report is to imagine what might happen if Dr Who’s time machine were to transport a ‘typical’ British citizen from 1983 into the Britain of today. What would their reaction be? In truth, many of the attitudes that they would hear expressed would be decidedly unfamiliar. The celebration of same-sex relationships, references to ‘partners’ rather than ‘husbands’ or ‘wives’, women with young children wanting to work and expecting their (also employed) male partner do his half of the domestic tasks, all of it underpinned by a feeling that family and sexual matters should be a question of personal choice, not social conformity. Our citizen would find their 1980s moral and cultural compass of limited value – and perhaps wonder whether it will ever be of much use again. (p.16)
On the other hand, ‘our citizen of the 1980s might be amazed at how little the debate about the economic role of government has changed’ (p.16) with disagreements about taxation and spending, and the role of welfare oscillating through the same positions as they did back then. I will come back in later posts to what the BSA survey reveals about questions of attitudes on the economic role of the state and how these relate to social class, political affiliation, gender and age. But the huge change in moral and cultural values which Curtice identifies suggests that the motivation underpinning the interventions by proponents of the culture war is not to tap into a popular groundswell of public support (the oft-invoked ‘silent majority’) because it doesn’t actually exist; rather their aim is to pushback against this social change. This possibility is hinted at within the report following Curtice’s discussion of the BSA measurement (since 1986) of ‘where people stand more broadly on the debate about the extent to which society should be requiring its members to follow a particular moral code and set of social norms, or whether individuals should be left to decide such issues for themselves’ (p.8). Classifying the former outlook as ‘authoritarian’ and the latter as ‘libertarian’, the average score for respondents is plotted annually on a scale of 0 (highly libertarian) to 100 (highly authoritarian). The latter perspective has until recently been the more popular on this measure, which as I have noted above is perhaps one reason why hitherto UK governments have not generally been expected to be morally prescriptive as it wasn’t necessary given the level of social conservatism in the public (censorship is perhaps one area where the government was formerly expected to be prescriptive but that was effectively limited following the successful defence of the Penguin edition of D.H. Lawrence’s Lady Chatterley’s Lover against charges of obscenity at the beginning of the 1960s – again, this is another area I will be writing more on in the future). However, change is afoot, and this is probably driving the ‘culture war’:
Nevertheless, as we might expect from what we have reported so far, Britain has now become rather more liberal on this measure, though this trend has largely only been in evidence since the middle of the last decade. As a result, whereas in 1986 the average score on this scale was 69, now it stands at 56 [with the average being 50 for those under the age of 35]. The current debate about ‘culture wars’ is perhaps a symptom of the fact that the role of the state in upholding particular social and cultural values is now more contentious than it once was. (p.8)
Once again this suggests that the aim of proponents of the culture war in the UK is to counter the demonstrable liberalisation of social and cultural attitudes in the UK and try and harness the powers of the British State in order to reverse the direction of social change by enforcing more rigid social norms. At the moment, I think the main motivation behind this is as simple as the desire of traditional elites and patriarchal hierarchies to maintain power. There are, however, also more direct political grounds in the UK. As the BSA chapter on ‘Age Differences in Politics’ (which I will be analysing in detail in a future post) demonstrates, ‘age has now displaced class as the principal demographic dividing line in how people vote’ and given that the average score on the libertarian-authoritarian scale for those over 55 is currently 60 (as opposed to 50 for those under 35), campaigning on prioritising social order over personal autonomy is one obvious way for political parties to try and appeal to older (and more reliably regular) voters. However, as I discussed earlier in this post in the section on ‘Importing American Ideology?’, it has become clear that one attraction to the current UK Government, and British national populism more generally, of employing ‘culture war’ attack lines is the possibilities they seem to give for undermining the popular success of the devolution settlements.
The Threat of Devolution to the UK Governmental Authority Conferred by ‘Parliamentary Sovereignty’
At the recent Tory Conference, Alister Jack, the Secretary of State for Scotland, claimed that the government he is a member of is ‘the most active and effective UK government in Scotland in the devolution era’, and declared that:
We recognised some time ago we had to change the damaging old philosophy of ‘devolve and forget’ – leaving too much in the hands of the devolved administration in Holyrood and allowing the role of the UK government to fade into the background.
Well, today, I can announce the era of ‘devolve and forget’ is well and truly over.
It is dead, It is finished. And I promise you, it is not coming back under my watch.
On scores of projects, we are now working directly with local councils and other responsible delivery partners, and I call that real devolution.
No longer can the failing SNP-Green administration hoard decision-making powers and resources in Holyrood, using it up for their own political purposes, rather than the priorities of most people in Scotland. (1 October 2023; quoted from the Guardian live blog)
Even for a party conference speech, this shows extraordinary contempt for a Scottish government that was democratically elected by the people of the nation that Jack is the Secretary of State for. This policy of attacking the devolved administrations, especially that of Scotland, has become pronounced since the 2019 General Election and is echoed across the mainstream UK media (including by the Guardian). However, this is a significant shift from how the UK Government had treated the devolved administrations previously. While it is true that the Conservatives won the 2015 General Election by highlighting how a prospective Labour government might find itself ‘in the pocket’ of the SNP, and running what was in effect an English nationalist campaign, involving for the first time a specific manifesto for England, once in Government they continued to abide by the Sewel convention, which requires legislative consent from the devolved administrations for Westminster legislation conflicting with devolved powers. It was only after Boris Johnson won the 2019 election by a landslide (and promptly took the UK out of the EU), that the UK government began to ignore the Sewel convention, and the democratic will of the devolved parliaments, in passing legislation such as the 2020 Internal Market Act. It is since that point, that government ministers and the English media have shown increasing contempt for the Scottish government.
The timeline is important here because this contempt is not rooted in anxiety about the immediate prospect of Scotland becoming independent. Once the Tories won their 80-seat majority in the December 2019 General Election, it was clear that there would be no possibility of further development on that issue (rather as the 18 years of Conservative government between 1979 and 1997 held up devolution for over a generation). It looks rather as though the realisation that there was no constitutional block to ignoring the devolved governments when passing UK-wide legislation has led to an intoxicating sense of power on behalf of Tory cabinet members, coupled with an arrogant disdain for the devolved administrations which they perceive to be powerless in these relationships.
This is not to say that the collapse of the Sewel convention has had no constitutional consequences. In effect, it created a constitutional crisis even if the UK government has largely chosen to ignore it. The practical consequence of this has been the establishment of a number of lengthy commissions and reports on the UK constitution. Despite its name, two of the possibilities being explored by The Independent Commission on the Constitutional Future of Wales are the entrenchment of existing devolution in the UK and the possibilities of a federal UK (the third option is the possibility of Wales becoming independent). The final report of that commission is due next year, but the three commissions which have reported since the beginning of 2022 do not really address how the UK’s constitutional crisis might be solved by protecting the devolved administrations from a hostile UK government. Instead, they all treat the constitutional crisis that has arisen since Brexit as threatening not devolution but the doctrine of ‘parliamentary sovereignty’ or ‘parliamentary supremacy’ – the principle that parliament has the right to make or unmake any law whatever –that lays at the heart of the largely unwritten UK constitution and seek to protect that above all else. I have analysed the reports of these commissions in a series of posts on this blog:
Here I write about ‘A New Britain: Renewing our Democracy and Rebuilding our Economy: Report of the Commission on the UK’s Future’ (a.k.a. the report of the Brown Commission on the UK’s future; available here). The following quote bears out the point I’m making: ‘We see this approach as a way of gaining for the UK many of the benefits of a written constitution while continuing to uphold the principle of the supremacy of Parliament, as there is still no law which Parliament cannot change’ (p.142).
Here I write about the report by the House of Lords Select Committee on the Constitution, ‘Respect and Co-operation: Building a Stronger Union for the 21st Century’ (available here). This report expresses concern about the government’s tendency to ‘devolve and forget’, which, as discussed above, was repudiated by Alister Jack at the recent Tory conference. The idea that the devolution settlement represents a ‘substantial constitutional change and requires a modification of our understandings of parliamentary sovereignty and supremacy’ (p.29) is here expressed (in the words of Michael Kenny) in order to be rejected: ‘Any suggestion that Parliament’s legislative supremacy is even open to modification is rare and speculative’ (p.29).
Here I write about the report of the Institute for Government and the Bennett Institute for Public Policy, ‘Review of the UK Constitution: Final Report’ (available here). Published in September 2023, this is the most recent of these reports and it recognises that ‘there is a clear need for action to renew the constitution’ because ‘there is a crisis in trust in politics and political institutions’ (p.95). However, from the beginning it strongly affirms ‘parliamentary sovereignty’ (see p.5) and nails its (red, white and blue) colours fully to the mast with the declaration that:
Ultimately, constitutions of any kind only have authority because they command widespread political acceptance and broad public legitimacy. For this reason, a well-functioning constitution must reflect a country’s values and history and be understandable to its citizenry. Moving away from a system based on parliamentary sovereignty, developed over many centuries, to one based on higher law and judicial enforcement would be a major undertaking, which would require a huge exercise in public engagement and deliberation. (p.23)
The argument that a ‘system’ based on ‘parliamentary sovereignty’ has been established over centuries, which is also explicitly made in the House of Lords Select Committee report, is absolutely bizarre coming from serious constitutional commentators in the twenty-first century. The UK has only had fully equal and universal suffrage since the 1928 Representation of the People Act. The truth of the matter is that it has taken nearly a century to get to the point where the mismatch between the lived reality of actual democracy (in the devolved nations) and the ruling principle of ‘parliamentary sovereignty’ (as wielded by the UK Government) has created an acute crisis. Once the UK government starts ignoring the Sewel Convention, there is no limit to it interfering in devolved matters. The logical solution to this problem would be to draw up a written constitution. However, the reaction has been very much the opposite so that even the compromise idea of give the Sewel Convention a legal basis is rejected out of hand by the HOL Select Committee and Institute for Government reports (the Brown Commission proposes a kind of fudge). Clearly, those involved in drawing up these reports realise that subjecting parliament to any legal control would be the beginning of a de facto constitution. So, rather than have any truck with such a development, the British political establishment has produced a series of reports doubling down on parliamentary sovereignty and thereby implicitly criticising the devolution settlement for being the cause of all the problems. For example, the HOL Select Committee report notes pointedly that ‘since the introduction of the devolution arrangements in the late 1990s, there has been no over-arching assessment of their operation or implications for the Union as a whole’ (p.15). The Institute for Government report suggests that ‘the devolved governments make demands and manufacture grievances for political purposes’ (p.97). Furthermore, the various references to a public ‘backlash’ against constitutional matters being decided outside parliament made throughout this report do nothing so much as evoke the ‘culturally conservative’ masses that play such a role in the thinking of national populists. The implication is that the constitutional crisis is potentially a crisis of social order and needs to be solved to prevent instability and public unrest. While this is presumably not the intention of the bodies responsible for this report, I don’t think it is unreasonable to point out that in different circumstances, such an implication might be interpreted as a threat.
One way of viewing our current situation would be to understand the constitutional crisis of the UK as a crisis of authority. In this context, the activity of most of the British political establishment may be interpreted as rooted in a determination to restore that authority, i.e., their authority, regardless of the wider implications for either democracy or the relationship between the constituent nations of the UK. From this perspective it is therefore no surprise that the ‘culture war’, which is itself driven by the desire for authoritarian government, should be employed as a means of nullifying the threat represented by the liberalising tendencies of the Scottish parliament to traditional authority (as rooted in ‘parliamentary sovereignty’ of Westminster).
The UK Government’s Attempt to Assert Authority by Use of a Section 35 Order to Block the Gender Recognition Reform (Scotland) Bill
On Tuesday 19 and Wednesday 20 September 2023, law officers for the Scottish and UK governments appeared at the Court of Session in Edinburgh before Judge Lady Haldane to present submissions on whether or not the Scottish Secretary was right to use Section 35 of the Scotland Act to stop the Gender Recognition Reform (Scotland) Bill from being given Royal Assent. Before looking at the arguments presented, it is useful to consider the context in more detail.
Aside from ignoring the Sewel Convention when passing legislation such as the 2020 Internal Market Act, the UK Government has also begun to intervene directly in legislation passed by the Scottish Parliament, which has had the consequence of involving the UK Supreme Court (which, remember, was only established in 2009). In October 2021, the UK Government won a case in the Supreme Court ruling that the UN Convention of the Rights of the Child (UNCRC) (Incorporation) (Scotland) Bill, which had been unanimously passed by the Scottish Parliament on 16 March 2021, was beyond the legislative competence of the Scottish Parliament, despite the fact that the UK is a signatory to the convention, because sections of it would contravene Section 28(7) of the Scotland Act, which preserves the unqualified power of the UK Parliament to make laws for Scotland. As the legal commentator Andrew Ticknell pointed out in The National on 10 October 2021:
… last week’s judgment by the Supreme Court on the UN Convention on the Rights of the Child Bill represents a hammer blow for the possibility of incorporating coherent and consistent new rights frameworks into Scots law.
Inspired by the approach taken in the Human Rights Act, the Bill would have allowed Scottish courts to scrutinise any legislation dealing with devolved matters for compatibility with children’s rights, as recognised in international law. It wouldn’t matter if they’d been passed in Edinburgh or London. If the legislation fell within Holyrood’s powers, courts would be empowered to review them for compliance.
At its most basic, the Supreme Court decided that while the Scottish Parliament can give courts the power to mark their own work, Westminster’s “unqualified legislative power” means Holyrood cannot subject any Acts of the UK parliament to children’s rights – even if this Westminster legislation falls smack bang within devolved competence. Essentially: sovereignty roolz.
The point being that there was nothing controversial whatsoever about this legislation nor did it affect areas beyond those of devolved competence. It fell down solely because it would involve a check on the Westminster Parliament’s unqualified legislative authority. Regardless of the ins and outs of this legal judgement, which was I believe a surprise to some at least, there is clearly something wrong when the central constitutional right of a country (the UK) is officially regarded as its complete legislative authority, i.e., absolute power. This is a state of affairs that, despite the endless invocations of ‘centuries of history and tradition’, is generally incompatible with any fundamental belief in human rights or democracy. It should also be noted that this clash between principles is exactly what motivates the Conservative desire that the UK should leave the ECHR. While the immediate pretext for that is immigration and asylum policy, the underlying desire is for the restoration of absolute legislative authority. Anyone who is sickened by the thought of the UK leaving the ECHR, should be retrospectively sickened by the UK Supreme Court ruling on the UN Convention on the Rights of the Child (Scotland) Bill.
On 23 November 2022, the UK Supreme Court ruled, as expected, that the Scottish Parliament does not have the power to legislate for a referendum on Scottish independence, without the permission of the UK Government. The court did however rule that the question was a ‘devolution matter’ and therefore that it was appropriate for it to rule on it – there was speculation beforehand that the court would simply say that the question didn’t fall within its jurisdiction and the representative of UK government did try to argue this. Therefore, the ruling may be seen as an addition to constitutional law and perhaps another step along the (long) road towards a written constitution.
The case over the Gender Recognition Reform (Scotland) Bill is different from both of these previous examples because, following its passing by the Scottish Parliament with cross-parliamentary support on 22 December 2022, the bill was blocked on 17 January 2023 by Scottish Secretary, Alister Jack, not by referral to the courts but by the unprecedented use of section 35 of the Scotland Act, an effective veto that can be used without reference to the courts or the wider framework of reserved and devolved matters. This meant that the argument did not concern whether the Bill related to a reserved matter (i.e., reserved to Westminster by the Scotland Act). Indeed, gender recognition is devolved to Scotland and there was some question before it became known that Jack was going to use the Section 35 order as to whether the Bill could be struck down by the Supreme Court in the same way as the UN Rights of the Child Bill was. Therefore, once the Scottish Government decided they were going to subject the Section 35 order to judicial review, the question became not simply one of devolved competence but of the specific conditions applying to the use of a Section 35 order. Condition 1 relates to issues to international obligations and issues of defence or national security and so clearly did not apply to the Bill (and further explains why this veto exists, which is basically as a safety measure to stop the devolved government from allowing Russia or North Korea to establish a military base on the Orkneys, or some such similar extreme scenario). Instead, the context for this usage of the order was Condition 2, which stipulates that the Bill being blocked must make ‘modifications of the law as it applies to reserved matters’ which the Secretary of State must have ‘reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters’.
So, as I understand it, the key legal issue surrounding the use of the Section 35 order is not only whether the Bill modifies the law as it applies to reserved matters but, regardless of that, whether Jack did actually demonstrate ‘reasonable grounds’ for believing this modification would be adverse. Reasonable here means ‘legally reasonable’ rather than what you or I might consider reasonable in the run of things, but, having said that, I still also want to consider how reasonable Jack’s decision is in terms of the wider authoritarian-liberal framework of the culture war in the UK, as I’ve been defining it in this piece. Irrespective of what the outcome of the September hearing is – we’re still waiting for the judgement (and in all likelihood whatever it is, it will be appealed) – the use of the Section 35 order has itself already become a fact that has been incorporated in to wider narratives as having some sort of unquestionable authority.
For example, Elizabeth Clery’s chapter of the BSA survey report, ‘A liberalisation in attitudes?’, which I write about near the beginning of this piece, discusses the GRR Bill and the use of the Section 35 order against it within the context of the BSA’s finding of support for trans rights to have declined significantly since 2019. She begins by noting the 2018 UK Government public consultation which explored, for England and Wales, the possibility of removing the requirement of someone who wanted to change their gender to have a medical diagnosis of gender dysphoria. The results of that consultation, published in September 2020, suggested wide support for all aspects of reform, with 64% of respondents in favour of removing the requirement for a diagnosis of gender dysphoria and 80% in favour of removing the requirement for a medical report. However, as we know, the UK Government nevertheless abandoned the proposed legislation. Clery goes on to note that ‘policy in Scotland followed a similar direction, but instead of abandoning the idea, the Scottish Government steered legislation through the Scottish Parliament, though its proposals became the subject of considerable controversy’ (p.36). The phrasing here – ‘instead of abandoning the idea’ – is curious because given the positive nature of response to the Scottish consultations (they held not one but two, the first being from November 2017 to March 2018, with 60% of those responding being in favour of introducing a self-declaratory system for legal gender recognition, and the second from December 2019 to March 2020, in which again the majority of respondents supported the proposed reform), legislating with cross-party support was the logical next step. And, as the BSA survey reports and we know, the Bill was passed and then blocked by the use of a Section 35 order. Clery notes that:
the proportion adopting the ‘liberal’ position [on trans rights] has reduced substantially since 2016, with most of this reduction occurring between 2019 and 2022. The proportion characterising themselves as “not at all prejudiced” [against trans people] has fallen by 18 percentage points over the past three years, while the proportion thinking someone who is transgender should be allowed to change the sex on their birth certificate has fallen by 23 percentage points over the same period. These changes in attitudes are substantial, and their direction and timing suggest that they have been largely triggered by the intense political debate and media discussion on both sides of the border regarding the easing of the circumstances in which someone can be diagnosed as transgender (and thus allowed to reflect this on their birth certificate). (p.39)
As I note above, this is direct evidence of a particular instance when the societal period effect concerning a specific issue has functioned to reverse the liberalisation of public attitudes on that particular issue. Clery goes on to compare this period with that in the 1980s when the tenor of the media debate around AIDS and the introduction of Section 28 by the Thatcher Government had a negative effect on public attitudes to same-sex relationships. However, her conclusion to this discussion seems unwarranted:
The substantial impact of this period effect inevitably makes it challenging to predict how views on this matter might evolve in the future. Previous analysis suggests that progressive policymaking may alter people’s views – but it may in fact be the case that policymaking has moved too far beyond the public consensus in the past three years, instead provoking a backlash. (p.42)
This last comment is pure surmise, especially given that the argument until this point is that this recent dip in liberal attitudes towards trans rights is the product of a ‘period effect’ that is comparable to that of the mid-1980s, when we know that the UK Government was actively seeking to drive hostility towards same-sex relationships. Furthermore, the whole logic underpinning the idea of a ‘backlash’ is problematic. The word literally means a sudden violent reaction. In a social context, a backlash is a deliberate attempt to turn the clock back rather than some imaginary ‘correction’ to policy moving too far beyond consensus. As Laurie Penny notes in their book Sexual Revolution (2022), ‘backlash’ and similar terms such as ‘outrage’ are typically used to express outbursts of resentment against any challenge to traditional social norms and power structures, and by implication to the male authority that tends to lie at the centre of these. Trans rights are the exposed tip of a much wider ongoing supersession of the gender binary as a form of social control; the backlash against them is an expression of reactionary authoritarianism rather than of measurable public opinion (or ‘legitimate grievances’ as the national populists might put it). The inability to distinguish between ‘backlash’ and democratic expressions of public opinion – both here in the BSA survey and, as discussed above, in the Institute for Government report on the UK Constitution – is itself a worrying sign of a mistaken understanding of ‘objectivity’ that coincides with the collapse of democracy in the UK.
There is a tendency to depict the UK government’s use of a Section 35 order to block the GRR Bill as in itself an enactment of legitimate backlash: a restitution of the natural commonsense order. As in the BSA survey, this often involves a misunderstanding, or leastways an elision of the issues, to imply that the problem is simply that the ‘Bill was at odds with equality legislation, an area controlled by Westminster’ (p.37). Indeed, the press reports, particularly in the Scottish edition of The Times, have implied that the whole matter is entirely straightforward in that the Scottish Government had obviously exceeded their powers and therefore any attempt to overturn the Section 35 order in court was doomed to fail (and a waste of taxpayer’s money etc.). However, if the case was really that straightforward, the UK Government would not have bothered with the Section 35 order and simply referred it to the Supreme Court in the same manner as they referred the Child Rights Bill. Therefore, despite what the press and the London political establishment might think, the GRR Bill is not inherently beyond the powers of the Scottish Parliament. Moreover, as became apparent from how the evidence was submitted in the Court of Session in September, the case is going to turn on the legal ‘reasonableness’ of the argument that the effect of the GRR Bill would be to ‘adversely modify’ the Equality Act.
Indeed, this was the key point raised by the Scottish Lord Advocate, Dorothy Bain, on day one of the hearing. She argued that the Scottish Secretary’s decision to use a Section 35 order cannot be seen as ‘reasonable or rational’ and was therefore unlawful. As reported by Abbi Garton-Crosbie in The National:
The Lord Advocate told the court no debate or vote was held on the Section 35 order in the House of Commons, rejected the UK Government’s claim the legislation would have had an “adverse effect” on UK wide equality law, and said Jack did not real all the relevant evidence required before coming to a decision to block the bill.
The Lord Advocate said the Scottish Secretary “shut his eyes to one half of the debate” and relied on evidence which was mostly “hostile to the bill”.
“The Secretary of State must form a reasonable view, that is a rational view, that the provision in question would have an adverse effect on the operation of law as it applies to reserved matters,” the Lord Advocate told the court.
“In my submission, the Secretary of State’s decision cannot be said to be reasonable or rational.
“This is therefore unlawful and should be reduced.”
The Lord Advocate also told the court that it would be “inconsistent with the constitutional principle of parliamentary accountability” for the UK Government to be able to veto Scottish legislation due to a “policy disagreement”.
Bain also set out that Jack had multiple opportunities to raise concerns about the legislation during the scrutiny process, and disputed the Advocate General’s claims he only had four weeks’ notice.
“If the Secretary of State had such fundamental concerns, it is striking there was not a whisper of them through the various consultations and the earlier stages of the Bill’s parliamentary process,” she said.
Furthermore, Bain argued that the Secretary of State failed to consider a wide enough range of evidence, consulting largely correspondence that was hostile to the Bill. In particular, the reasons for arguing that the Bill would adversely modify the Equality Act were not rational in terms of how it might affect IT systems. Bain ‘also disputed that the legislation would have “adverse effects” on UK-wide law as a Scottish Gender Recognition Certificate (SGRC) would have the same outcome as a GRC under the UK’s Gender Recognition Act 2004 Act – essentially changing a person’s gender for legal purposes’. In essence, the argument is that all of the reasons given for the use of the Section 35 order are weak and that once they fall, one by one, the case for its use collapses. In response, David Johnston KC, on behalf of the UK Government, argued that only one of these reasons needed to stand up legally for the Section 35 order to stand. On the second day, Johnston argued that it is ‘irrelevant’ if Alister Jack blocked Scotland’s gender reforms due to a policy disagreement and that a Section 35 order is ‘as much part of the constitutional framework as any other provisions in the Scotland Act’. Both of these arguments may be true in the narrow legal sense (I’ll leave that to lady Haldane to adjudicate and to more qualified legal commentators to discuss) but neither are convincing in a wider sense. The Section 35 provision is clearly meant for exceptional situations, as demonstrated by the facts that it has never been used before and that it is partially framed in terms of defence and national security. It is clearly not intended as a means of solving a policy disagreement. This matters because regardless of the legal outcome of this hearing (which, as I’ve noted, will almost certainly be appealed and so it is will be some time before we have a final judgement), if the result appears to endorse the view that the UK government have the automatic right to overrule the Scottish parliament on the basis of policy disagreement, then it will necessarily have the effect of appearing to delegitimise devolution, thus furthering the current constitutional crisis in the UK, and have a real-world effect on public life in the UK with consequences that we cannot really predict at the moment. As Garton-Crosbie reports, Johnston said in court that
“The sole question is whether the Section 35 preconditions are met and whether the discretion was rationally exercised, whether there is or whether there might be a policy disagreement is simply irrelevant.”
Johnston insisted that there is “nothing in the order which refers to any policy disagreement”.
He later told the court that Jack was “justified” in his concerns that the gender reforms legislation would have an adverse effect on the operation of reserved law.
On the latter point in particular (which in my understanding is the key legal issue at stake), ‘Johnston argued that it would only an “unduly narrowly formulistic” view that could consider the proposed legislation did not adversely impact reserved equality laws’. However, while the GRR Bill changes the criteria by which a gender recognition certificate is gained, it is not clear that it alters its meaning, and even if it does, it is not clear that this is an adverse modification. In practice, the law would continue to operate in exactly the same way as it already was. Similarly, Johnston claimed that Bill was capable of having an effect on the operation of IT systems and therefore it was a relevant reason for the Scottish Secretary to give but, again, it is not clear why any such effect would be an adverse modification. There was also an exchange about the value of considering how similar legislation works in international comparators, such as Canada, Spain etc. This is partly an argument about what constitutes best practice in forming legislation and producing a rational analysis of how it might operate in practice. Arguably, the Scottish Secretary should be able to demonstrate consideration of international comparators in order to be able to make a ‘reasoned’ judgement on the likely effects of the GRR Bill. The ultimate legal judgement might turn out to be that he didn’t need to do this but that would give the wider impression that the UK is a singular exception to all international practice and a law entirely to itself (which is the ultimate logic of the constitutional principle of ‘parliamentary sovereignty’). Time will tell.
One interesting side note from the court hearing was that Lady Haldane asked both Bain and Johnston for their input on whether she should wait for the outcome of the For Women Scotland appeal case in the Inner House, which relates to the legal definition of a woman, before publishing her ruling; both told her not to delay. In that particular case, from December 2022, Lady Haldane was the judge who ruled that trans women with a GRC can legally be defined as women when it comes to legislation that aims to ensure gender balance on public boards, leading to For Women Scotland appealing. There is a longer backstory to this case which has already been through one cycle of court rulings, appeals, and revision of the legislation by the Scottish Government. Given that, according to the report in The National on the hearing, Lady Haldane made clear in her judgment that it referred only to the legislative competence of the Scottish Government in this specific case and should not be considered a ruling on the broader rights of trans people, it does seem to be that whatever the outcome of this case it should have no direct bearing on the outcome of the case over the use of the Section 35 order. Time will tell in that respect too. But, inevitably, the two cases have been linked and will continue to be so in the eyes of many because they are both caught up in the entanglement of culture war and devolution settlement that is driving the UK constitutional crisis.
Conclusion: The Hidden Crisis.
When considered together, the handful of events from late September 2023 that I have examined in this piece can be seen collectively as evidence of an ongoing reactionary struggle to restore traditional central authority over both a public who have adopted increasingly liberal social attitudes over the past four decades and the devolved administrations within the UK, who are more closely in tune with those liberalised social attitudes. The resultant constitutional crisis is in its own way just as acute as the political and economic crisis that came explicit at this time last year during the short, disastrous, term of Liz Truss as Prime Minister of the UK. However, the difference is that this crisis is largely hidden, especially from the English majority of the UK population. Nor, is it one that will be easily resolved, given the hostility of the UK political establishment to any alteration to their traditional powerbase rooted in parliamentary sovereignty. One possible fix would be a written, federal constitution for the UK, but very few people other then the Welsh First Minister, Mark Drakeford, and sections of the Welsh Labour Party that support him, endorse that solution. One can readily imagine how public opposition to such a transformation would be driven by a combination of the Westminster establishment, the media, and populist appeals to the public. The realisation that has most alarmed me while writing this piece is the tendency of academic and constitutional experts to write about ‘backlash’ as constituting some sort of legitimate reflection of public opinion. As I noted above, the literal meaning of ‘backlash’ is a sudden violent reaction. The tendency of the culture war in the UK is for the Tory government and national populist thinkers to represent backlash as legitimate grievance in order to drive support for authoritarian measures. This is not a recipe for social stability, but it is exactly the resulting instability which will be used as the excuse to argue for even more authoritarian measures. There is a process of escalation in place – as visible in the UK government’s open contempt for both the devolved assemblies and trans rights in the Section 35 case – that is running out of control. While there will almost certainly be a new government following the General Election that has to take place by January 2025 at the latest, this in itself won’t halt the runaway process and will almost certainly lead to a rise in more extreme political discourse from those in opposition. What’s at stake in the twenty-first century is that it has become possible to see how a different kind of society might flourish in which by moving beyond restrictive social norms and so-called traditional values, people ‘are free to have sex and form relationships and build families in whatever way they choose, so long as they are not hurting or violating anyone else’ (Penny, Sexual Revolution, p.25). What’s driving the populist revolt in the UK, the US and many other countries is a (largely male) ‘backlash’ against such changes in favour of authoritarian hierarchy, which in the UK is enshrined in the idea of ‘parliamentary sovereignty’.
Social Humanities 