A review by Jonathan Sumption, the former UK Supreme Court judge, of the two-volume Cambridge Constitutional History of the United Kingdom (edited by Peter Kane and H. Kumarasingham) in the current Times Literary Supplement, is headlined ‘A Trump-proof constitution: The British system has absorbed any amount of shocks’ [paywall]. This seems somewhat misleading given that Sumption’s argument is that there haven’t been any big shocks since 1660:

Contrary to the oft-repeated trope, Britain does have a constitution, but it lacks the two defining features of almost every other constitution in the world. It is not codified in any document. And it is not what the US Constitution calls the “supreme law of the land”, prevailing over every other source of law. The uniqueness of Britain’s constitution reflects the uniqueness of its historical experience. Almost every other constitution in the world was drawn up in the aftermath of some cataclysmic event that put an end to the previous constitutional order. They were written on a blank sheet of paper. After 1660 Britain never had a clean break in the development of its institutions, and never offered a blank sheet of paper for a latter-day Abbé Sieyès to write on. Even the short-lived republic of the mid-seventeenth century left no legacy to overshadow the restored monarchy. Since the Restoration there has been no true revolution, no coup d’état, no contested invasion, nothing to force a reconstruction of the country’s institutions from the foundations up.

Some might say that the fact that nothing has forced a reconstruction of the country’s institutions is a problem. On the face of it, it seems unlikely that this constitutional ‘system’ as described by Sumption would still be suitable for a twenty-first century democracy. That is one change, of course. We have had universal suffrage since 1928 following the Representation of the People Act of that year, also sometimes known as the Equal Franchise Act. This didn’t require a revolution and was in fact introduced under a Conservative government. So, maybe this does bear out Sumption’s argument that the British constitution has actually functioned effectively and with a minimum of social upheaval to meet the country’s needs through what is often called the principle of parliamentary sovereignty, or, as Sumption puts it, ‘unlimited political and legislative competence’:

In [A.V.] Dicey’s words, endorsed by the Supreme Court in the first Gina Miller case, parliament has ‘the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament’.

However, the very existence of a UK Supreme Court (established in 2009 and only really entering public consciousness due to the Gina Miller cases following the EU referendum in 2016) is itself an indication that parliamentary sovereignty no longer quite cuts it. Even if the court has so far steadfastly upheld that principle when considering constitutional matters, it did for example overrule Boris Johnson’s attempted 5-week prorogation of Parliament in 2019. Gordon Brown’s Commission on the UK’s future (available here) has recommended giving the Court a more explicit role in constitutional matters involving the Welsh and Scottish Parliaments. The underlying issue here is that the establishment of the devolved administrations in 1999 did in effect change the British constitution and generate written constitutional law. It is noticeable, that when Sumption discusses the fact that parliament can cede part of its unlimited political and legal competence to another body, he uses the example of the 48 years when the UK was part of the EU, so that he can confidently state, ‘But the sole basis on which EU law ever applied in Britain was parliamentary authority, which could be revoked as we have seen.’ Well, yes, it was revoked but hardly with entirely happy consequences. Moreover, the example of external delegation to the EU is not relevant to the internal delegation of parliamentary political and legal competence to the Welsh and Scottish parliaments. Does anyone suppose that the Westminster parliament could revoke its authority in this respect with no consequence to the internal stability of the UK state? It is not difficult to imagine political forces wanting to reverse devolution solely by act of parliament, but it is nigh impossible to imagine it happening in accordance with any functional model of democracy. In short, the UK constitution has changed (and this is without even discussing the constitutional situation in Northern Ireland which is dependent on international agreements and treaties). As a consequence, parliamentary sovereignty no longer holds water and therefore there is a constitutional crisis. Hence the number of recent and ongoing constitutional commissions, with different purposes. Aside from the Brown Commission (which I blogged about Here), there is also the Welsh Government’s Independent Commission on the Constitutional Future of Wales, which has yet to publish its final report. While these two commissions are trying to find a new model for the UK constitution to function taking devolution in to account, it seems to me that both the House of Lords Select Committee on the Constitution, ‘Respect and Co-operation: Building a Stronger Union for the 21st Century’ (available here, with my blog analysis of it, Here)  and the report of the Institute for Government and the Bennett Institute for Public Policy, ‘Review of the UK Constitution: Final Report’ (available here, with my blog analysis, Here) were primarily concerned with finding ways to strengthen and uphold parliamentary sovereignty in the face of devolution, which is seen to a greater or lesser extent as an unwelcome intrusion.

The establishment might be closing ranks but what is the case for maintaining the current ‘British constitution’ (as Sumption describes it)?

It has two main advantages. One is that it is good at dispersing power. Presidential systems concentrate too much executive power in the hands of one person, who is practically immovable until the next presidential election. [Sumption here expands on the example of Trump]. By comparison […] [i]n the parliamentary world conventions are more powerful and more difficult to discard, and unsuitable ministers can be unceremoniously removed.

The second notable advantage is the flexibility of a political constitution, which enables it to resist shocks that would have overwhelmed the more rigid models characteristic of written constitutions; the political decline of the monarchy, the onset of a popular democracy, the acquisition then loss of a worldwide empire, the existential crises of two world wars, the arrival of the welfare state, joining and then leaving the European Community. Britain has accommodated these changes with its basic constitutional framework attached [avoiding the various problems that have beset France, Italy and the US.]

It is these two concluding paragraphs that explain the title and subtitle given to Sumption’s review (probably not by him). However, the second of these, with its list of major crises and changes, contradicts the argument of Sumption’s earlier paragraph (the second of his review), which I quoted at the beginning of this post. For there evidently have been a number of cataclysmic events in modern British history. It is not as though our ‘unique’ constitution has prevented this or aided how such crises were handled; it has merely survived despite them. Or, to put it another way, if we enter the mirror world, where the sole criteria for success is for a country not to have to change its centuries-old constitutional order, then Britain remains ‘Great’! The trouble is that, contrary to narcissistic and arrogant beliefs, Britain is not a unique exception. There is no prize for keeping as many of the trappings of your ancient history as possible. On the contrary, some political changes are so fundamental that they require renewal of the implicit social contract with the general public (which in practice often requires some form of constitutional change, or, at least, is most readily achieved in that manner) that maintains the legitimacy of the state.

A different way of thinking about the crises that Sumption lists in the last paragraph quoted above, is to see them mostly as related phenomena surrounding the major reformation of the British State in the mid-twentieth century, a process described at length in David Edgerton’s 2019 history, The Rise and Fall of the British Nation. An empire was replaced over the course of the interwar years by a nationalist British state, which became entrenched and gained popular legitimacy over the course of the Second World War, in a process that was completed by the election of the Attlee Government. What was once known as the ‘1945 political settlement’ was in effect a renewed social contract that underwrote the consensus politics of the next quarter century. There are many reasons why that state of affairs was never going to hold – aspects of it were quite reactionary – but it was a functional society. Before that consensus started to break up from the late 1960s onwards, it would have been much better for the UK if the antediluvian aspects of the British constitution had been reformed at the same time as the liberalising legislation of the 1960s took place. As it was, parliamentary sovereignty underpinned the de facto elective dictatorship of 18 years of reactionary Conservative party rule from 1979 to 1997, which fractured the mid-century social contract. Since then, British society has been breaking apart. Apart from the establishment of the devolved administrations, there has been no meaningful constitutional change (the equally short-lived Fixed Term Parliaments Act and English Votes for English Laws notwithstanding). Brexit wasn’t the cause of social division in the UK, it was the final outcome of that division having become irrevocable. Far from the British Constitution being a source of strength, it is a millstone around the neck of the UK keeping us trapped within a winner-take-all party-political culture that has no hope of generating a meaningful social contract with the public in its entirety. In other words, the current UK state is not politically legitimate in the wider historical sense of how western democracy is understood. There are options with the potential to address that situation (written constitution, federation, separation into to separate national formations) but all of those entail constitutional reform. These would be big steps and it is difficult to assess the various consequences, but against any such uncertainty has to be placed the absolute certainty that there is no future as a functional society for the UK as it is currently constituted.

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’.

Last month saw the publication of the latest set of reports from the British Social Attitudes (BSA) survey which is celebrating its 40^th anniversary. The latest report comes in the form of a series of chapters on various topics. As part of my current research, I need to read through and analyse these chapters and so I’m writing my notes up on some of these chapters as semi-formal analyses (including some of my provisional thoughts and suppositions that are not necessarily fully worked out yet), beginning with ‘A liberalisation in attitudes’ by Elizabeth Clery, which is concerned with ‘moral issues’, by which is meant topics such as abortion, sex outside marriage, same-sex relationships and trans rights. ‘Moral issues’, especially in the narrow sense of the word ‘moral’, seems an old-fashioned term to apply to issues that many would regard as human rights. However, the broader sense of the word moral suggests values that exceed narrow materialistic cost-benefit analysis. This is a topic I will be writing about in detail in the future, but for the moment I’ll just say that in this broader sense, the moral basis of politics is a terrain of struggle (with a history) and the question of whether it is becoming liberalised or not is key to thinking about contemporary politics and ideas of culture wars.

The website summary of ‘BSA 40: A liberalisation in attitudes?’ notes some indicative changes:

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.

Generational Effects, Age Effects, and Period Effects

In ‘A liberalisation in attitudes?’, Elizabeth Clery writes:

A number of developments have been identified to explain the long-term liberalisation in moral attitudes in Britain: changes in the prevalence of certain characteristics associated with more or less liberal views (typically levels of education and religiosity); changes in how wider society deals with specific moral issues (in terms of policy, legislation, and popular discussion and debate); and changes in individual behaviour (that might make it more likely that a person would have direct experience of a particular moral issue). By exploring the nature and timing of shifts in attitudes to each moral issue, the universality of these shifts across society and the evolving views of different generations, we will seek to assess which of these broad sets of factors best explains the liberalisation of attitudes that has occurred in each instance, and whether any broad conclusions can be drawn regarding the process of liberalisation in Britain, or whether change needs to be understood in relation to the nuances of each individual issue. (p.5 of the PDF version available at the link above)

More specifically, measurable social change can be various ascribed to a ‘generational effect’ (in which older more conservative generations die off and are replaced by younger more liberal ones), an ‘age effect’ (with all generations’ views shifting in a consistent direction as they age), or a ‘period effect’ (with a change at the societal level affecting the views of all generations at the same time) (see p.9). In practice, though, the changes that Clery looks like do not turn on an ‘age effect’. I’m not going to summarise all the analysis in the chapter but pick out the conclusions as to what mechanisms are driving which particular social changes.

While the rise in acceptance across society of different family forms over the past three or four decades might suggest a period effect, ‘the liberalisation in attitudes towards people having children outside of marriage has primarily been driven by generational replacement. [The data] clearly shows that the views of individual generations have changed little over the lifecourse, with societal change being largely driven by the replacement of older, less supportive generations, with younger, more supportive, ones’ (p.18):

How might we explain this pattern? We have seen that affiliating with particular religious faiths is strongly associated with views in this area, so we may be witnessing the declining importance of religious ideologies across society as a whole. Alternatively, it may be that, as each generation comes of age, their attitudes to family forms are influenced by those they see around them, and those being adopted by their own peer group (with cohabitation and lone parenthood being increasingly common among younger generations). It may be that attitudes to family forms are determined at this formative stage, and change little throughout the subsequent life-course, as individuals move forward with their own selected family forms. If this is the case and, coupled with a likely continued decline in religiosity, then we might expect to see support for alternative family forms increase in the future, assuming that their prevalence within society continues to increase or, at least, remains stable. (p.20)

In contrast, while support for same-sex relationships also correlates to combinations of religious affiliation, education and age, which means that a generational effect has led to a majority acceptance of same-sex relationships, period effects have also made a significant difference (see pp.26-7). Support has increased as same-sex relationships have become more visible in society and have received greater legislative endorsement, but tended to dip when legislation and public discussion has treated them negatively (as in the 1980s). These entwined causes play out in different ways, as can be seen by first examining attitudes to premarital sex, which follow a similar pattern to that observed in relation to support for different family forms:

In general, the views of individual generations have remained relatively static over time, with the driving force of change being the replacement of older, less supportive, generations, by younger, more supportive ones. However, given the very similar trajectories in attitudes exhibited by generations born in the 1950s and beyond, the power of generational replacement to drive societal change has become much more limited in the last decade or so. (p.27)

In other words, most people born after 1950 don’t have an issue with premarital sex and therefore, there is now a limited scope for further liberalisation of attitudes because once the pre-1950 generation is no longer with us, the ongoing replacement of generations won’t involve any shift in attitudes. While generational replacement is similarly driving support for same-sex relationships (although not uniformly stretching back so far), ‘there is also considerable evidence of a societal effect; with the support of all generations increasing substantially from the 1990s, when the legislative position and public discussion in relation to same-sex relationships became rather more positive than it had been previously’ (p.28). In this case, however, because there is a greater level of acceptance among younger generations, we can expect to see acceptance increasing further in future decades. Clery concludes that ‘it may simply be that generational effects, compared with period effects, take longer to materialise’ (p.28). This suggests that immediate state and media legitimation can swing public opinion faster than the longer term (but still rapid when considered within a wider historical context) generational effect.

In further contrast, increasing liberalisation in attitudes towards abortion does not appear to have been driven directly by generational replacement, but by levels of education (‘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]) and  (lack of) religious affiliation. Although, of course, levels of education and religiosity are themselves related to generation, with each generation known to be more educated and less religious than the one that preceded it. Clery concludes that ‘we cannot simply assume that abortion will continue to become more widely accepted as older generations die off; societal structures and popular discussion and, perhaps, individual behaviour, clearly matter and are likely to continue to have a role to play moving forward’ (p.34).

The Liberalisation of Social Attitudes is Not a Straightforward Across-the-Board Process

All of the above analysis leads to an initial summing up concerning the liberalisation of social attitudes over the past 40 years. There is clearly hard evidence of a liberalisation in attitudes to ‘moral issues’, as Clery terms them. However, this is not a straightforward across-the-board process. One area where attitudes have not shifted at all is in relation to extra-marital sex. Furthermore, as we have seen, ‘While much of the liberalisation in attitudes can simply be explained by generational replacement, we also see strong evidence of period effects, particularly in relation to attitudes to homosexual relationships and to abortion’ (p.35).

Clery completes her analysis by considering ‘attitudes to a more contemporary moral issue – people who are transgender – and how we might understand these – given this broader knowledge base, and without the benefit of a longer time series’ (p.35). At this point, I should note that I am not entirely happy either with using trans people as a kind of case study to demonstrate how this analysis might function or with equating trans people to a moral issue in themselves. This latter is different to discussing attitudes to same-sex relationships: there is a shift to actually considering where people in themselves might be the problem here (or to put it another way, most of this type of analysis takes care to try and separate the ‘issue’ from actual people, but if you make the existence of trans people into an issue in its own right, then it becomes impossible to separate the issue from the people, and so in effect you are polling people on whether they think other people have a right to exist – and, at the very least, there needs to be some acknowledgement and attempted mediation of this. Ideally, there would be a different way of framing this research, perhaps in relation to trans rights rather than trans people themselves). It is clear, however, that it is the apparent rapid reversal of liberal attitudes in this case which is why it is chosen as a point of comparison. Returning again to the website summary of ‘BSA 40: A liberalisation in attitudes?’:

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.

This section of the chapter notes the 2018 UK Government public consultation exploring, for England and Wales, the possibility of removing the requirement for someone who wanted to change their gender of having 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 (although still a Conservative Government, it was in fact abandoned by the very different post-December-2019 administration to the one that initially proposed the legislation). The chapter notes 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 (Scottish Parliament 2022)’ (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 step. As noted, the Gender Recognition Reform Bill was passed by the Scottish Parliament and then blocked by the UK Government’s unprecedented use of a Section 35 order (a legal clause framed strongly in terms of UK national security), a move which has since been challenged in the Courts (I discuss the blocking of the GRR Bill and the legal challenge to that in the penultimate section of my Autumn 2023 Dispatch from the Culture War in the UK).

The BSA found that:

While around two-thirds (64%) describe themselves as “not at all prejudiced” against people who are transgender, almost three in ten describe themselves as being “a little prejudiced” with more than one in twenty describing themselves as “very prejudiced”. Invariably, social desirability may limit the extent to which people are willing to admit to prejudice within the context of social research (although its impact is likely to have reduced with the transition of the survey to an online mode in 2020). We have asked a comparable item about prejudice towards “people of other races” since 1983. It is interesting to note that the proportion describing themselves as not at all prejudiced against people of other races was 83% in 2019, the last occasion on which this question was asked. This implies that more people are prejudiced towards people who are transgender – or at least perceive it to be socially acceptable to admit to this. (p.38)

Overall, the proportion adopting the liberal position has diminished sharply since 2016 and this is clearly due to a period effect: ‘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) However, ‘views towards people who are transgender are not uniform across different sections of society. We see that women, younger age groups, those with higher levels of educational qualifications and those who do not affiliate with a particular religion are more likely to express liberal views towards people who are transgender’ (p.40). In particular, ‘71% of women describe themselves as not at all prejudiced against people who are transgender, compared with 57% of men’ (p.40). Clery concludes this section of the analysis by making the important point 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).

The substantial impact of this period effect makes it difficult to predict how attitudes to trans rights will evolve in the future. Clery adds, somewhat ambiguously, ‘Previous analysis suggests that progressive policymaking may alter people’s views – but it may in fact be the case that policy-making has moved too far beyond the public consensus in the past three years, instead provoking a backlash’ (p.42). It is not clear where this idea of a ‘backlash’ comes from other than the media. Nor is it clear why the threat of a backlash (which by their nature tend to be driven by a few loud voices) is somehow a useful indicator of public opinion or social attitudes. What does appear to be the case is that period effects, resulting from intense political and media pressure, can overcome generational effects and reverse liberalisation in specific instances for at least a short while.

The final section of this chapter develops the idea that characterising the last four decades as involving a ‘liberalisation in moral attitudes’ is something of a simplification:

Two Areas where Attitudes have Not Moved in a Liberal Direction

In this regard, it is worth focusing, in particular, on those two areas where attitudes have not moved in a liberal direction – namely attitudes towards extra-marital sex and towards people who are transgender. To what extent are attitudes in these areas associated with attitudes to other moral issues, and, in the case of extra-marital sex, if there is a substantial association, why then have attitudes not followed the general trend of becoming more liberal over time? (p.43)

Off the top of my head, I would have said the key difference between attitudes to extra-marital sex and, say, premarital sex, would be that many people would see the former as ‘cheating’ and some form of personal betrayal. However, the points made here that ‘almost everyone (99%) who thinks that pre-marital sex is always wrong, also thinks that extra-marital sex is always wrong’ (p.44) and that ‘clearly, disagreement with the idea that sex outside of marriage is acceptable is, to some degree, upholding high levels of disapproval regarding extra-marital sex’ (p.44) also indicate a level of residual belief that sex should within be marriage that doesn’t entirely tally with the notion of increasing liberalism reflected in some of the other statistics. However, these associations are slowly getting weaker over time, even if the headline figures aren’t changing (which makes me wonder if the figures are not entirely rooted in moral aversion but in a more mundane sense of ‘it happens, but we think it’s wrong’ which might be considered a form of acceptance). A similar pattern – i.e., more traditionally minded people are much less liberal – emerges when we look at levels of prejudice against trans people:

43% of people who think that same-sex relationships are always wrong describe themselves as very prejudiced towards people who are transgender, compared with 27% of those who think that they are mostly wrong, and 5%, 1% and 1% of those who think that they are sometimes, rarely or never wrong. Clearly, these data suggest that attitudes to non-traditional sexual relationships are strongly associated with attitudes to non-traditional identities. However, the relationship between attitudes to people who are transgender and attitudes to abortion (two moral issues which are conceptually some way apart) is less marked. In each instance, people who oppose an abortion being allowed are more likely to describe themselves as prejudiced towards people who are transgender, compared with those who think that abortions should be allowed. Most markedly, 26% of those who think an abortion should not be allowed if a woman’s health is seriously endangered by a pregnancy describe themselves as very prejudiced towards people who are transgender, compared with 5% of those who think an abortion should be allowed in these circumstances (with the proportions of each group describing themselves as “not prejudiced at all” standing at 64% and 47% respectively). (p.46)

This correlation suggests to me that the opposition to liberalism is not necessarily entirely down to traditional and religious attitudes but may also lie in people who define themselves against liberalism because they are self-consciously culturally conservative in a modern sense. This would be difficult to unpack because many of these people might also espouse traditional and religious values (this is the kind of area that might require qualitative analysis to suggest what is happening). Overall, though, religiosity is declining, and this is one of the factors that has fed into the liberalisation that has undoubtedly occurred despite the nuances detected in this chapter, including the oscillation between generational and period effects which has led to the situation in which:

while our attitudes have tended to become gradually more liberal when being driven by generational replacement, resulting from declines in religiosity, a rise in education and long-term changes in individual behaviour, our attitudes to homosexual relationships have fluctuated in response to how society has dealt with this issue, with the same trend currently being apparent in relation to people who are transgender. (p.47)

Why Saying ‘Future Trends Are Difficult to Predict’ is Missing the Point

The chapter ends by stating again that future trends are difficult to predict because of this tendency of short-term period effects to create rapid swings in public opinion. The final sentence, however, reveals the limitations of this logic, because it reverts to imputing an inherent resistance in the public to trans rights, which policymakers should take heed of:

Whilst homosexual relationships are now widely accepted and supported legislatively, with little apparent reason for this support to decline, we might conclude that policymakers need to take on board the current divided state of attitudes towards people who are transgender, when developing future policy on this issue, if they wish for it, and public attitudes, to ultimately move in a more liberal direction. (p.48)

This leaves a slightly bad taste at the end of this particular chapter because it denies the period effects of legalisation and policymaking that are elsewhere seen in this chapter as positively reinforcing liberalisation. However, there is also the question of political context to consider here. Let us return to Clery’s point, quoted above, that in the decline of positive attitudes to trans issues since 2019 ‘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). One thing that that the 1980s and post-2019 Conservative Governments have in common was that they were both overtly reactionary and trumpeted their reaction as part of their political appeal to voters. This is not to say that other UK Governments have not enacted reactionary legislation (especially in relation to immigration) but they have generally sought not to be seen as reactionary and attempted to present liberal credentials (e.g., Cameron sought to throw off the mantle of the ‘nasty party’). However, in the 1980s, Thatcher explicitly endorsed Victorian and family values, and notoriously said that there was no such thing as society. Since 2019, the Tory Government has reverted to what are now seen as ‘culture war’ lines. Indeed, 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 the ongoing collapse of democratic norms.   

If we think about this political context clearly, it must raise some questions for the BSA. For most of its existence the BSA has coincided with a period in which liberalisation of social attitudes has generally been seen as a public good. Therefore, sociologists and those conducting social surveys have been able to take a fairly neutral approach in reporting on British social attitudes and assigning changes to generational effects or period effects. However, it is not clear to me that when a government pursues extreme forms of reaction, as the Tories did in the 1980s with family/Victorian values and are again with the post-2019 culture war, that the effect it has on social attitudes can be described as that of a normal period effect. In these cases, we’re not talking about the positive reinforcement and legitimation of liberalising attitudes that were in any case spreading through the population by generational effect. What we are actually seeing in these cases, is the deliberate attempt both to suppress certain forms of behaviour and identity and to reverse the processes of social liberalisation. Objectively, we are talking about oppressive governments and therefore we cannot legitimate them by normalising their effect on social attitudes as just another valid process. It is exactly this question which is at stake in the ‘culture war’. The ‘culture war’ is often discussed as a distraction designed to split people apart and draw their attention away from more direct economic and political forms of struggle in which common cause needs to be made, but this is miss that the ‘culture war’ has a direct aim in itself: the validation of repressive, authoritarian government.

This is why arguing that the tendency of period effects to trump generational effects means that ‘future trends are difficult to predict’ is a cop out. Actually, it is fairly clear from this chapter that a liberalisation of social attitudes has been the general trend in the UK over the past 40 years and that this has been driven by generational effects and sometimes reinforced by period effects. The two counter examples – attitudes to same-sex relationships in the 1980s and post-2019 attitudes to trans rights – were not due to regular period effects but the effect of deliberately oppressive and reactionary government. To be clear, this kind of government is by its nature inherently undemocratic. Democracy is not just majority rule but a pluralistic system that supports minority rights and aims to maximise individual freedoms for its citizens within the operations of that system. If we assume the continuance of democracy in this sense, then I think we can predict that the liberalisation of attitudes seen prior to 2019 will continue due to the effects described in Clery’s chapter. By saying that ‘future trends are difficult to predict’, the implication is that this is a matter that is up in the air. It would be more accurate to state explicitly that a repressive government could reverse some of this liberalisation, which is what we are currently seeing happening to measurable extent in the case of attitudes towards trans rights. The problem with ignoring this explicit political context is that it then leaves a space concerning what is driving this social change that needs to be filled by some plausible-sounding explanation. Hence, we see in this chapter the invocation of public backlash to policy makers and the unfortunate and tellingly syntactically twisted closing line of the chapter, which is quoted above. Public attitudes are split because there has been a sustained and aggressive reactionary culture war fought on the issue. Without acknowledgment of the fact it is impossible to provide a balanced analysis of the liberalisation of social attitudes in Britain.

Continuing my series of posts charting different aspects of the UK’s potential territorial break-up, which began with my thoughts on the Brown Commission report and continued with my discussion of the House of Lords Select Committee on the Constitution’s report on the future of the UK, I look here at the September 2023 report of the Institute for Government and the Bennett Institute for Public Policy, ‘Review of the UK Constitution’ (available here). In contrast to those other two reviews, this one is not primarily geared to ensuring the continued future of the UK as a union but more or less takes that for granted. Therefore, there is not so much content directly concerning the devolution settlement, although I’ve tried to cover what there it is. However, a lot of what is discussed in the report has indirect relevance. For a start, the temporal framing implicitly suggests that the current problems date from the devolution settlement, or at least the election of New Labour:

The quarter century since the Labour Party took power in 1997 has been a period of considerable constitutional change in the UK. As constitutional expert Sir Vernon Bogdanor points out, Labour promoted a brand of constitutional modernisation centred around the establishment of a fixed bill of rights in the form of the Human Rights Act 1998, the devolution of power to Scotland and Wales and the establishment of a Supreme Court. Under subsequent Conservative-led governments, there have been further momentous changes – most notably the UK’s departure from the EU and also the establishment (and subsequent abolition) of fixed-term parliaments and the rules known as English Votes for English Laws (EVEL) in the House of Commons. (p.16)

As I have discussed in my analysis of the report of the House of Lords Select Committee on the Constitution (linked above), the history of these changes is much longer, dating back to at least the 1960s. While there is a constitutional crisis today, it wasn’t caused by the devolution settlement, which was itself an attempt to solve the constitutional crisis that was already apparent in the 1960s. A further section of the report, discussing the system of ‘checks and balances’ forming part of the constitutional system in the UK, summarises the mechanisms in place for intergovernmental relations within the UK:

The devolved governments in Scotland, Wales and Northern Ireland can object to UK government policies in various ways, including through intergovernmental forums, through public comment, by launching a formal dispute or, in certain circumstances, through recourse to the Supreme Court. In theory, a decision of one of the devolved legislatures to refuse legislative consent for a UK bill affecting devolved matters can put pressure on the UK government to address its concerns. Local leaders and metro mayors can also influence the government and parliament through formal and informal channels. A prominent example of subnational governments placing effective political pressure on the executive was in the passage of the European Union (Withdrawal) Bill, when the Welsh government managed to secure the UK government’s commitment to the ‘common frameworks’ process after publicly criticising the initial legislation. (p.18)

Many people would see this as a somewhat rosy-tinted view of the situation, but later in the report, as we shall see below, the analysis is a bit harder-edged

Unlike the Brown and HOL reports, this report does at least ask the question of ‘Should the UK have a written constitution?’ and provide a discussion of this point. However, the discussion is not particularly satisfactory in the sense that it doesn’t amount to a reasoned argument and instead consists of a list of minor quibbles, such as the following: ‘At present, there is little evidence of much public interest in a written constitution. There is no significant campaign for such a documented constitution (although there has been in the recent past) and neither of the two major political parties endorses the idea’ (p.23). Well to start with, the fact that neither of the two major political parties support the idea is not really objective evidence of anything other than that they are very happy with, and generally collude to support, the pretence that there is a binary system in the UK (which there isn’t, unlike in the US). Furthermore, I don’t know how many constitutions have been written in response to spontaneous public demand, but I suspect the answer is not many. Therefore, I don’t think the absence of public demand is in itself proof of anything. I can imagine a situation in which the public might well choose a draft constitution offered to them over continued chaos and evident corruption. The assumption underpinning this section of the report is, that staple of British exceptionalism, that nothing is really going to change. We are told that, ‘Closer to home, recent debates over Brexit and Scottish independence have shown how constitutional contestation can lead to wider paralysis in the legislative agenda’ (p.23). One might argue that it was Brexit itself which created the biggest delay in the legislative agenda rather than some separate imaginary constitutional debate surrounding it. It is also the case that democratic contestation can lead to a paralysis of the legislative agenda, but we usually accept that some things are worth contesting until the right outcome is achieved and, therefore, we have chosen to stick with democratic systems. It is not clear to me why constitutional matters should be treated as a special case in which contestation is somehow problematic. Even weaker as an argument is the claim that ‘a written constitution would not automatically solve many of the weaknesses in the UK’s governing system’ (p.23). No, obviously it wouldn’t; it would depend on what was in the written constitution. The fact that this platitude is trotted out here makes me think that what is being envisioned is a written constitution that simply codifies the existing UK political system. However, most advocates of a written constitution do not simply want the existing structures to be set out in written form; they want significant reforms of the existing system at least and often something more radical than that. However, addressing that possibility would require making this into a proper open discussion of political possibility rather than a box-ticking exercise.

Instead of a serious discussion of what possibilities would be opened up by a constitution, we are told that, ‘Nearly all established democracies are experiencing fairly similar challenges in terms of the erosion of democratic norms and conventions. In this respect, addressing issues of political culture and the behavioural norms of politicians is a priority, and it remains open to question whether systems with written constitutions are more effective in addressing these issues’ (p.23). Saying everything is going to rack and ruin anyway isn’t really an argument. Yes, any system can be abused. However, a well-written constitution supported by a constitutional court has a clear potential to provide a framework for political behaviour. Suggesting that the solution to what should probably be thought of as an ongoing crisis in representative democracy lies in addressing ‘the behavioural norms of politicians’ is either blindly optimistic or deliberately cynical. I tend to think it is the former here, and the misplaced belief of the professional middle classes that things are going to go back to ‘normal’. Maybe ‘belief’ is the wrong word because it is difficult to see how anyone thinking about this in any depth can believe that ‘democratic norms’, which were the product of postwar 20th-century conditions, will be re-established in the very different times we live in now. It is probably more fitting to talk about ‘faith’ in this context, which also explains why this report has departed from the need to provide reasoned arguments for some of its arguments. How else explain the following assertion:

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)

We’ve had proper democracy in the UK for about a century, if we take democracy as a system put in place over the years between the Representation of the People Acts of 1918 and 1928, and therefore it is undemocratic to cite tradition long preceding that point (certainly nothing preceding the 1867 Reform Act is democratic in any meaningful sense). Obviously, various bits of parliamentary legislation, such as the 1911 Parliament Act, are still relevant to constitutional issues. However, once you go beyond such specific precedents and start talking about values forged over centuries-old history, then you are indulging in mystification and myth. It is true that the system of parliamentary sovereignty (at least when considered separately from the idea of the ‘crown in parliament’ which underpins it) is not especially complicated but I see no reason why the public would not also understand how a written constitution worked if given the chance. I’m not sure the current UK constitutional system is the subject of widespread acceptance (in distinction to shrugged indifference). If we wanted widespread understanding and acceptance, we would teach constitutional and democratic systems throughout the school years. It is a crime (‘choice theft’) that we don’t. Yes, moving away from parliamentary sovereignty would be a major undertaking but most people understand that every now and again it is necessary to make the effort of changing to something better rather than continuing to make botched fixes to an inferior and failing system. Instead, this report is arguing that we should continue doing government the way we do it now because we’ve always done it this way, which would be a weak argument even if it were true. The implication is also that the British public have a limited capacity for understanding, which I would fundamentally dispute.

Subsequently, the report sets out to argue that the best route to follow for solving the constitutional crisis would be through parliament rather than the courts:

The Supreme Court has made a series of high-profile judgments over the past decade, including declaring Boris Johnson’s attempt to prorogue parliament unlawful. But such interventions have provoked a backlash about whether the judiciary has too great a role in the governing system. A body that could intervene to help resolve disputes within the political realm could help prevent difficult and contentious constitutional matters ending up in the courts. (p.26)

It is difficult to know on what level this argument should be taken. Has the involvement of the Supreme Court in these decisions really provoked a backlash, or just negative headlines in the loony right-wing press (Mail, Express, Telegraph)? Was there huge public support for the prorogation of parliament? I think not. Most people (whether neutral observers or British citizens) would probably say that you can’t just randomly suspend parliament for five weeks. Regardless of whether there were arcane precedents or constitutional loopholes that made it possible, it was not democratic, and everyone knew it wasn’t democratic. There is a good case for arguing that the Supreme Court saved British democracy when it declared Johnson’s prorogation (it wasn’t an attempt, he did actually do it) unlawful. Whether the Supreme Court in its current formation is the ideal body to adjudicate on constitutional matters is a valid question (in practice, when it does so adjudicate, it has tended to uphold parliamentary sovereignty) but using the example of an imaginary backlash against the prorogation case is really not a promising sign for anyone in the UK with aspirations to live in a fully functional modern democracy.

None of which is to say, that it is not also valid to look at the mechanisms employed in other countries, including those which ‘possess a constitutional body that is independent of government and expresses evidence-based perspectives on constitutional issues that are seen as legitimate’ (p.27). It should be noted that such constitutional bodies, be they parliamentary committees or councils of state or whatever, are often a layer of oversight in countries where the highest court will also have the power of overseeing constitutional law. This report favours the establishment of a new Parliamentary Committee on the Constitution (PCC) on the grounds that an external body would be subject to more backlash:

However, because the key to the success of a new constitutional body would be its perceived legitimacy, and given the significant backlash that has emerged in political life against expert advisory bodies, there is a risk that a non-parliamentary body could be open to political challenge from the outset. (p.30)

This concern about vaguely defined ‘backlash’ implies that Britain has become a country now governed on the Mary Whitehouse principle, whereby provided one makes enough fuss and complaint about anything, one will be appeased by the paternalistic authorities (with the unspoken part of this unholy alliance being that said authorities do not consider any restrictions from such appeasement to actually apply to them).

Alongside the establishment of the PCC, which would bring members from the Commons and the Lords together, this report also recommends the establishment of a category of constitutional acts, which would be different to normal parliamentary acts. The issue here lies in finding a satisfactory definition. The report notes that:

Despite the difficulties of definition, across the political spectrum, some acts are widely agreed to be of great constitutional importance. These include the Parliament Acts 1911 and 1949, the Representation of the People Acts, the Human Rights Act 1998, the devolution statutes and the European Union (Withdrawal) Act 2018. All of these Acts help to define the structure of the UK state, including the relationship between the House of Commons and the House of Lords, the territorial division of power across the UK and the rights of citizens. (p.43)

The report sensibly suggests that a start to this process would be the identification of exactly which past legislation would be defined as constitutional acts. That would be a useful step to take. Following this, the report proposes that the PCC would certificate new prospective legislation as constitutional where appropriate. The next issue addressed is how to embed this constitutional approach within the existing parliamentary system. This, of course, means dealing with the doctrine of parliamentary sovereignty:

As Alison Young has noted, there are two main interpretations of parliamentary sovereignty. While one states that the UK parliament cannot bind any future parliament, the other posits that parliament can only be sovereign if it has the ability to limit the law-making ability of a future parliament. In this second interpretation, parliament could include certain requirements for passing and amending constitutional legislation. (p.49)

Assuming the second interpretation holds, the report recommends that constitutional acts be set up so that they are protected from ‘implied repeal’ (being automatically superseded by a newer act of parliament) and only subject to amendment by primary legislation (and not by ‘Henry VIII powers’). The report then outlines a number of measures designed to support scrutiny of constitutional legislation, such as publishing bills in draft to allow pre-legislative scrutiny, having an additional committee stage in which the PCC could express a view and even amendments, and having a minimum timescale for the passing of a constitutional act. There is a chart on page 60 of the report, which shows the timescale of various past constitutional legislation, and makes it clear how quickly some key constitutional legislation, such as the 2020 Internal Market Act, has been pushed through. There are further recommendations for the Civil Service, for updating the Cabinet Manual, setting out the UK’s core constitutional principles in a similar manner to the Nolan principles of public life, and other such measures.

Chapter 7 considers the role of the public in constitutional change. This includes a section discussing the problems with referendums, before going on to focus on the advantages of deliberative processes. So, while referendums would probably be still involved in key changes, deliberative processes (e.g., citizen’s assemblies etc) would have a number of roles, possibly including the development public information to be disseminated during a referendum campaign.

Where I do entirely agree with the report is in the clear closing statement 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, ‘restoring the UK’s reputation as a stable democracy’ (p.96) depends on what is meant by stable. Are ‘the Scottish government’s continuing efforts to secure a second independence referendum’ a significant cause of ‘uncertainty and instability’ (p.96)? Given that a number of new European nations have emerged over recent decades, I would have said that this was a process that was entirely within the norms of international behaviour. It is Brexit and its legacy, including the UK Government’s obvious willingness to break international law, which has created the uncertainty and the international distrust. The report claims that its ‘recommendations will help renew the devolution settlement in the UK’ by addressing some of the underlying causes of conflict and encouraging collaboration. It is envisaged that the PCC will

mediate between the UK government and devolved governments, finding a middle ground between them on specific issues and wider questions concerning devolution. Where the devolved governments are seeking to challenge the UK government for acting outside established constitutional practice – for example, by passing legislation without legislative consent as normally required by the Sewel Convention – an authoritative judgment from the committee will take a position on the legitimacy of their concerns. Equally, if the devolved governments make demands and manufacture grievances for political purposes, the committee will also be able impartially to assess the grounds for their challenge in a way that is much harder for the UK government to do. (p.97)

This statement is hardly reassuring to those living outside England. The use of the word ‘equally’ is particularly pernicious because there are clear cases in which the UK government has completely disregarded the Sewel convention, such as the 2020 Internal Market Act, whereas there are no clear cases in which the devolved governments have made demands and manufactured grievances for political purposes, only political allegations made that they have done so. Even if one decided that maybe some of the actions of the Scottish Government had a political motivation (given that they are elected on a political manifesto, perhaps they should be expected to have some political motivation), this wouldn’t create an equivalence to the UK Government deliberately ignoring legislative conventions. It’s absurd and biased to suggest so.

In conclusion, I think this report is correct to suggest that there is an urgent constitutional crisis and something needs to be done to rectify it. However, in common with other similar reports, such as those of the Brown Commission and the House of Lords Select Committee on the Constitution, it still reaffirms the principle of ‘parliamentary sovereignty’ (see p.5). I’m not sure whether the ultimate problem here is a lack of imagination or an outlook limited by the narrow parameters of British exceptionalism. Whatever it is, there is an absolute refusal by all of these reports to contemplate alternative constitutional arrangements. Instead, there is a ferocious determination to hang on for dear life to the principle of parliamentary sovereignty, which is a system that is clearly open to abuse. Hence, the determination here to find various fixes by which past constitutional acts can be properly protected and new acts properly scrutinised. Some of these suggestions are eminently sensible, such as the identification of which existing legislation should be considered constitutional in this sense. For example, the report provides a list of the eight categories of constitutional legislation as identified by the legal historian, John Baker, which would include any substantial alteration to the establishment of the Church of England but not the 1928 Representation of the People Act which introduced universal suffrage (see pp.42-3). I should add that the report doesn’t endorse this list but simply uses it as an example to demonstrate that identifying constitutional legislation is not a straightforward matter. However, there is always the problem with parliamentary sovereignty, that if the alternatives/protections of a written constitution and legal oversight are explicitly ruled out (as they are here), then at some point a future UK Government could restrict the current electoral franchise in some way. Clearly, something has to be done because things can’t be left as they are, but I don’t think the fixes outlined here will be sufficient.

Continuing my series of posts charting different aspects of the UK’s potential territorial break-up, which began with my thoughts on the Brown Commission, I look here at the January 2022 report of the House of Lords Select Committee on the Constitution (available here), which very much ‘believes in the United Kingdom’ (p.3). In keeping with that earlier post, I am focussing mostly on Wales and Scotland and not Northern Ireland (in part, because the Good Friday Agreement means that the mechanisms of devolution work somewhat differently there). What’s interesting about the report, is that it grasps the relationship between the constituent nations as central to the Union and therefore concentrates its attention on setting out how the relationship between the Westminster Government and the devolved governments should work:

For the Union to flourish, it must enjoy popular support in each nation, based on a recognition of the common benefits accruing to all nations and regions.

We have expressed concern in the past about governments’ tendency to ‘devolve and forget’. There has also been evidence at times of a unilateral approach to strengthening the Union, which has been insufficiently sensitive to its pluralism. We do not believe either approach is an effective means of strengthening it. While we welcome the Government’s stated commitment to the Union, we believe it needs to set out a clearer vision about how it will be shaped in the 21st century. This vision needs to be rooted in the best appreciation we can reach about the fundamental challenges which have been building up over decades and which have led to today’s discernible atmosphere of distrust and uncertainty in popular discussion and debate. (pp.3-4)

In practice, these aspirations lead to extensive discussion of what has been happening so far in the 21st century, including chapters on parliamentary sovereignty, the Sewel Convention, and the governance of England. Paragraphs 8, 9 & 10 of the Introduction make the argument that everything was working well for the UK immediately after the Second World War but that this has since begun to disintegrate, with the consequence that we now need to take significant steps to hold ‘the unique make-up of the UK’ together for the 21^st Century:

8.In the early post-war years, the United Kingdom’s uncodified constitution seemed to fit the country comfortably. Recently, however, it has begun to show signs of wear. There are causes for concern. This report captures the Committee’s analysis of current discontents that rustle through nearly every one of the many levels of governance we have lain upon our islands without pattern or plan. The nations have come to know each other less well, which has fed a sense of alienation and mistrust.

9.We seek a United Kingdom where multiple identities have room to breathe, but where we never lose sight of the importance of working together in order to advance our common interests. A Union is about more than a set of economic transactions. It exemplifies deeper ties of family and friendship, and the instinctive empathy flowing from common experiences and shared hopes for the future.

10.The unique make-up of the United Kingdom means there are no easy, ready-made, solutions available to make our Union fully fit for the 21st century. (p.10)

I’m not going to provide a full historical analysis of these claims here, but they are open to contestation as the following synopsis suggests. There was a considerable amount of constitutional upheaval within Britain in the early decades of the 20th century, beyond the foundation of what would become the Republic of Ireland, as an empire disintegrated and was remodelled as a nationalist state. The Second World War did help shape what seemed to be a common British state, which was cemented by the reforming actions of the postwar Labour Government. However, as has been noted, for example by the historian David Edgerton (2019), the 1945 settlement was rather more reactionary in practice than it has come to thought of within the British social imaginary. The governing principle of the UK state that emerged from the collapse of the empire was British nationalism even if it was never explicitly described in those terms, and the ‘actual post-Second World War United Kingdom was in some ways better prefigured in the programme of the Tories and the British Union of Fascists (BUF) than that of the Liberals or the Labour party’ (p.xxxiv). Furthermore, the period of ‘comfortable fit’ between the territorial area of the UK and its ‘uncodified constitution’ didn’t outlast the 1950s. In the 1959 General Election, the Conservative Prime Minister, Harold Macmillan, won a 100-seat majority across the UK but Scotland (and Wales) voted Labour, marking – as Gerry Hassan (2022) has noted – ‘the critical swing year’ (p.52), after which Scotland took the path, via the first 1979 devolution referendum, to the establishment of the Scottish parliament in 1999. In reality, the idea of the UK as embodied by this House of Lords report actually existed, imperfectly, for less than 15 years at most, and therefore its invocation must be seen as largely mythical, especially from the perspective of anyone under the age of 65.

The reference in the above passage of the report which refers to ‘the many levels of governance we have lain upon our islands without pattern or plan’ made me laugh given that this is a report that eschews systematic planning and the idea of a proper written constitution in the name of maintaining the ‘unique’ (i.e., uncodified) nature of the UK. While the report does acknowledge that ‘“union of nations” may be a more accurate description’ than the current government’s claim that the UK is a ‘unitary state’ (ch.1, para 29, p.14), one can’t help feeling that the differences between the nations are seen as a niggling problem rather than representing a fact that inherently problematises the very idea of the existence of a ‘united kingdom’. In places, the attitude to devolution is somewhat equivocal:

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. Instead, 16 ad hoc commissions and talks have taken place (two of which are ongoing in Northern Ireland and Wales), always focused on a single nation and each invariably leading to the further devolution of powers to those nations. (ch.1, para 33, p.15)

In reality, the problems with the UK – not that it was often referred to as the UK in those days – were already apparent early in the postwar period and the various governmental and administrative reorganisations since then have been attempts to solve them. It was already obvious in the 1960s that there would have to be some sort of devolved administrations in Scotland and Wales, hence the establishment of the Kilbrandon Commission in 1969. The Labour Government of the mid-late 1970s wasn’t able to effect the necessary devolution partly because of organised resistance within their own ranks. Then the longevity of the 1979-1997 Conservative Government held up change for another two decades. However, it’s ludicrous to suggest that the devolution legislation introduced by Labour after 1997 was without ‘pattern or plan’ or ‘ad hoc’ in terms of its regard for the wellbeing of the UK. Although, one might argue from a different perspective that what was offered to Wales at the time was insufficient for effective devolution (again due to organised resistance within Labour) and has required successive Wales Acts in 1998, 2006, 2014, and 2017 in order to finally achieve a broadly equivalent ‘reserved matters model’ to that established for Scotland in the Scotland Act 1998 (see also the GOV.UK page on the ‘Devolution Settlement: Wales’). While even these legal settlements are not entirely sufficient for purpose, they would at least be reasonably functional without the imposition of Brexit (which actually is an example of a major constitutional change embarked upon without pattern or plan), which has led to the effective abandonment of the Sewel convention, which ensures consent of the devolved nations to legislation imposed upon them by the UK (Westminster) Government. So, we now have a situation where the current Conservative government is clearly prepared to act in bad faith by using any clause of the existing legislation to thwart acts of the Scottish parliament for narrow political ends.

The question is what is the ultimate cause of the problem. Is it ill thought-out devolution legislation and ad-hoc fixes to that? Is it due to the real unique nature of the UK, which is that it is a relatively new state that emerged in the aftermath of the First World War? Is it due to the British state not being a modern constitutional state but some mystical combination of ancient conventions such as the ‘crown in parliament’ and ‘parliamentary sovereignty’? The latter seems the real problem to me. Chapter 3 of the report is titled ‘Parliamentary Sovereignty’ and the second paragraph notes:

It has remained the accepted view that Parliament has “the right to make or unmake any law whatever”. This is expressly reiterated in the devolution statutes. For example, section 28(7) of the Scotland Act 1998 states: “This section [which provides for the legislative competence of the Scottish Parliament] does not affect the power of the United Kingdom to make laws for Scotland.” Parliament clearly intended that its sovereignty should be unaffected by the devolution statutes. The Scotland’s Parliament White Paper said: “the UK Parliament is, and will remain, sovereign in all matters”, and “Westminster will be choosing to exercise that sovereignty by devolving legislative responsibilities to a Scottish Parliament without in any way diminishing its own powers.” (ch.3, para 78, p.27).

While this paragraph is stating facts in terms of the wording of various acts, it is not the only possible interpretation of the devolution settlement. The report does go on to quote Professor Michael Keating (from evidence he gave to the commission) on this point:

There are two interpretations of the devolution settlement. One is based on the traditional doctrine of parliamentary sovereignty and suggests that Westminster has merely lent powers to the three devolved territories, which can be reclaimed at any time. The other is that devolution represents a substantial constitutional change and requires a modification of our understandings of parliamentary sovereignty and supremacy. The former view has been generally sustained by the courts, including the Supreme Court. The latter has been expressed by many academic commentators as well as by some judges in writings, lectures and obiter dicta. (ch.3, para 83, p.29)

However, the report categorically rejects the suggestion that devolution represents a substantial constitutional change or that it impinges whatsoever on parliamentary sovereignty: ‘The Supreme Court has been at pains to point out no modification of Parliament’s legal supremacy has taken place. Any suggestion that Parliament’s legislative supremacy is even open to modification is rare and speculative’ (ch.3, para 85, p.29). Therefore, among this chapter’s concluding paragraphs in bold are the following two:

96.The UK Parliament has legislated to devolve power and has established in statute the devolved institutions. In theory, it could legislate to abolish them. In reality, it would not do so, and certainly not without the express consent of relevant voters in a referendum, as recognised in the devolution statutes. This is an illustration of the existence of the political constraints which in practice circumscribe the legislative supremacy of the UK Parliament.

97.Parliamentary sovereignty has operated for centuries subject to such constraints. Parliament is also not the only source of law within the constitution: the Royal prerogative and the common law represent distinct areas of lawful authority and set important practical limitations upon Parliament’s legislative reach, as do the United Kingdom’s increasing international obligations. (ch.3, p.32)

I’m not sure that the point about parliamentary sovereignty having operated for centuries is quite the argument in its favour that is intended here. Given that we have only had democracy in the UK since the interwar period, only truly since 1928, it is not clear why centuries-old behaviour should be considered good practice. And behaviour is what it is: the behaviour of a ruling class that brooked no opposition outside of a small set of carefully proscribed limitations.

It is a reasonable argument that the devolution settlement would work better without the UK tradition of parliamentary sovereignty. In 2014, the Smith commission tended in this direction when it recommended that the Sewel convention, the convention that the devolved parliaments need to give their in order for Westminster to legislate in devolved areas, be put on a statutory basis. Sections were accordingly added to the relevant acts of parliament, so that in the case of Scotland, Section 28(8) of the Scotland Act 1998 now reads ‘But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament’ (and the equivalent change has also been made to the Government of Wales Act 2006). However, again, the report is adamant that:

These provisions recognise the existence of the Sewel convention as a non-legal rule of the constitution; they do not give the convention legal effect. This distinction was made clear by the Supreme Court in the first Miller decision on withdrawal from the EU. As we observed in the last chapter, while the court acknowledged the constitutional significance of the Sewel convention, including its application to changes to the devolved institutions, it noted that as a political and not a legal restriction on Parliament, it cannot be enforced by the courts. (ch.4, para 103, pp.33-4).

A little further on, it notes that the First Minister of Wales, Mark Drakeford, when giving evidence to the House of Lords Commission, was unhappy with this decision of the Supreme Court:

Mark Drakeford was disappointed by the Supreme Court’s decision not to give legal effect to the operation of the Sewel convention in the first Miller case. In response he suggested the convention could be reformed by removing the ‘not normally’ exception so the UK Parliament cannot legislate without consent or making the convention justiciable. He hoped that fleshing out the statutory provisions would increase the chances of a court deciding it was justiciable in future. He would prefer fundamental disagreements to be adjudicated by the Supreme Court as they would be able to provide independent oversight rather than the process being concentrated in the hands of one party. (ch.4, para 127, p.40)

But, again, the report is firmly opposed to allowing the Supreme Court to adjudicate on the Sewel convention:

It is an established constitutional principle that conventions are non-legal rules and hence unenforceable by the courts. We therefore do not agree that the approach taken to the Sewel convention by the Supreme Court in Miller 1 was misconceived. As any breach of the convention will have political consequences, we believe that Parliament is the appropriate forum to scrutinise its operation. (ch.4, para 129, p.41)

These points are further emphasised in the concluding paragraphs to this discussion, 139 & 140, in which it is recommended that some form of parliamentary scrutiny is adopted so that the UK Government is required to issue a statement justifying its approach when it decides to introduce legislation affecting the devolved areas but is not seeking consent for this. It is ridiculously optimistic to assume that this solution will help lead to a situation in which ‘if the operation of the Sewel convention is strengthened and mutual respect between the UK Government and devolved administrations restored, this will obviate any need to consider transforming the convention’s status into a legal rule’ (ch.4, para 140, p.44). By now it is clear that the report is strongly against any involvement of the courts in enforcing the Sewel convention, but the final justification it gives here is telling: ‘A rigid approach to the convention could also limit the ability of the UK Parliament to legislate in devolved areas when it would be appropriate to do so and beneficial to all parties’ (ch.4, para 140, p.44). Surely, this is exactly the situation which the Sewel convention is designed to support: legislation for the benefit of the UK as a whole can be introduced even if it overlaps with devolved areas, because there is a mechanism for the devolved parliaments to give their consent (which they will do if the legislation is clearly ‘beneficial to all parties’). A rigid approach to the convention would not therefore limit the UK parliament’s capacity to legislate for the benefit of all but enhance it because the consent of the devolved nations would be clearly visible in this process (which is, after all, one of the reasons for having devolution). To suggest that the UK government should have less hurdles to clear when passing legislation that affects the devolved nations is effectively to undermine the devolution settlement.

The repeated insistence throughout this House of Lords report that the Sewel convention should not become a matter for the courts is in sharp contrast to the implication within the Brown Commission’s report on the UK’s future, which advocates that the Sewel convention should be enforced by ‘a reformed second chamber [in place of the Lords], an Assembly of the Nations and Regions’, but further qualifies this position by stating that if this assembly contemplates using this safeguarding power, the question should be referred to court: ‘most likely directly to the Supreme Court, for an authoritative judgement on whether the constitutional protection powers are engaged’ (p.141). To be clear, this is not because the Brown Commission is any less beholden to the principle of ‘parliamentary sovereignty’ than the House of Lords Select Committee, it is just that it came to the conclusion that the Supreme Court can be relied on to protect it more reliably than purely parliamentary procedures. As I’ve argued in my discussion of the Brown Commission report, there is a sense that all of these reports ostensibly concerned with the constitutional future of the UK, are in fact most preoccupied with defending the principle of ‘[Westminster] parliamentary sovereignty’ rooted in the arcane formula of the ‘crown in parliament’, which is implicitly threatened by the existence of Scottish and Welsh Parliaments predicated on the democratic will respectively of the Scottish and Welsh peoples.  

I’m skipping most of the rest of the report, which includes extensive chapters on ‘Whitehall’ and ‘Funding Arrangements’, but it is worth quoting this paragraph from Chapter 7, ‘The Governance of England’:

England’s place in the Union should not be overlooked, but there are no obvious governance changes to provide England with a distinctive voice that command political and public support. Establishing an English parliament would crystallise England’s relative strength—in population and economic terms—vis a vis the existing devolved legislatures. This would destabilise the Union. It would also do little to address the need for greater decentralisation within England, which we believe has the greatest potential to resolve concerns about the governance of England. (ch.7, para 230, p.68)

The argument here seems somewhat disingenuous in its belief that the current arrangement of having the UK Parliament in Westminster somehow masks the relative dominance of England over the devolved nations, which otherwise would have the potential to destabilise the Union! Indeed, an English Parliament might reduce any English resentment towards the Scottish and Welsh parliaments and set up a shared belief in the virtues of devolution that would help pave the way to the adoption of a fully federal, or even confederal, constitutional structure for the UK (or post-UK). An English Parliament (which doesn’t preclude the possibility of simultaneously achieving greater decentralisation within that country) is the logical requirement of devolution, if it is taken seriously. The current situation of devolved parliaments in only three of the four nations within the UK merely emphasises that the dominance of the fourth over the whole is taken as the natural order of things.

Finally, the last chapter of the report, ‘The Union’s Purpose and Potential in the 21st Century’, opens with the following paragraph, which reads ironically as though it is a direct intervention from the 19th Century:

We believe that the strength of the United Kingdom derives from the sum of its interlocking parts—with the different legislatures, executives, mayors and local government comprising a single state, with ultimate authority embodied in the Crown in Parliament. While different democratic mandates will inevitably lead to friction on occasion, the strength of the constitutional arrangements will be demonstrated in how the different parts take opportunities and resolve disagreements through stronger intergovernmental and interparliamentary relations. (ch.10, para 345, p.96)

Here, any earlier ambivalence as to whether the UK is a ‘union of nations’ or a ‘unified state’ is closed down by the pronouncement that it is ‘a single state, with ultimate authority embodied in the Crown in Parliament’. This is not a strong constitutional arrangement, it is rather a statement of religious belief. Therefore, I conclude that in essence, even if not to all practical intents and purposes, this report is essentially anti-devolution; a tacit acknowledgement that the introduction of devolution fundamentally altered the UK constitution and necessarily modified the operation of parliamentary sovereignty. Rather than contemplate such change, the report of the House of Lords Select Committee on the Constitution would leave the current settlement in place, while seeking to ensure that the unruly devolved children remain within the bosom of the British family, firmly under the paternalistic control of the ‘crown in parliament’.

Works Cited

Edgerton, David (2019) The Rise and Fall of the British Nation: A Twentieth-Century History (Penguin)

Hassan, Gerry (2022) Scotland Rising: The Case for Independence (Pluto Press)

As part of a series of posts charting different aspects of the UK’s potential territorial break-up, here are some notes on one recent intervention designed to stop that happening: the report of the Brown Commission (available here). In this discussion, I’m focusing principally on the recommendations for Scotland and Wales (which can be seen in the executive summary), but also on the unconvincing suggestions (buried deep in the report) as to how the devolved settlements will be constitutionally protected from the so-called ‘Parliamentary Supremacy’ of the UK Government in Westminster.

Here’s a short quote to give you a flavour of the introduction:

We start from basic strengths built on the ingenuity of the British people.  Our universities are among the best of the world.  Our inventiveness – from Tim Berners Lee’s development of the World Wide Web, to recent cutting edge advances in vaccines – is world beating. Our research institutions are admired in every continent.  And English is the most used language in more countries than any other. (p.4)

This is not an isolated incidence of British exceptionalism. Further on in the report, there are other examples of jingoism run wild. For instance, on page 54 we are told that ‘Britain contributed to nearly every great technological advance of the last three centuries’ and that ‘our genius for innovation has not dried up’. Fortunately, most people have probably just read the executive summary and been spared this wince-inducing codswallop.

The newspaper headlines following publication of the report focused on the recommendation that the House of Lords should be replaced with ‘a reformed second chamber, an Assembly of the Nations and Regions’. The promise implicit within this democratic step is that there will be something better for Scotland and Wales than either the status quo or independence, but note in the paragraph quoted below that self-government is only to be entrenched in Scotland despite Wales also having its own parliament and government. Conceivably, the second ‘and Wales’ was removed at the stage of haggling/horse-trading over the final draft of the report.

We have accepted the challenge that those who believe in the UK as a positive force have to and will offer a better and more trustworthy prospectus for change than independence. The alternative we put before the people of Scotland and Wales is better than either costly and destructive independence and a stagnating status quo: change within the United Kingdom that can entrench self-government in Scotland whilst improving shared government across Britain and we believe that our recommendations offer not just faster and safer change, but fairer change. (p.13)

Further down the same page an aim, ‘To entrench the constitutional status of self-government across the nations of the UK’ (p.13), is put in a bullet point, which makes the exact composition of the above paragraph even stranger. On the next page, there is a rather ambiguous statement about the Welsh Government’s independent Commission on constitutional issues (still ongoing as I type), which comes close to implying that Welsh Labour can be relied on to ensure that the outcome is not opposed to cooperation across the UK, which on the one hand can be taken as saying that they won’t end up advocating independence but might also be seen as a hint that even existing commitments to a Welsh legal jurisdiction should be dropped (see more on this below).   

In Wales, our proposals strengthen self-government for a new era, but we are mindful that the Welsh Government has set up an independent Commission to make recommendations on constitutional issues. We know that we can rely on the Welsh Labour Government to publish its Plan for Wales that employs to the full the powers of the Senedd and, at the same time, maximises the benefits from co-operation across the United Kingdom. (p.14)

In the executive summary, there is a list of recommendations to strengthen the powers of self-government in the devolved nations, but these are subdivided by separate headings for Scotland and Wales (and also Northern Ireland). There are 6 separate points (numbered 16-21) for Scotland and only four (numbered 22-25) for Wales (and, indeed, only two for Northern Ireland, but one of these notes that devolution has to be consistent with consent and the principles of the Good Friday Agreement, indicating that the context is different from that of Wales and Scotland). There are three pairs of points for Scotland and Wales that are the same for both countries: 16 & 22 promise that the Sewel Convention (the convention that the UK government can only legislate on devolved powers  if the devolved parliaments give their consent) will be strengthened and protected from amendment by the new second chamber; 18 & 23 promise that Scottish MSPs and Welsh ASs will get same legal protections as MPs; 21 & 25 promise that both Scotland and Wales will get increased access to economic resources through the British Regional Investment Bank. The remaining fourth point (24) for Wales promises ‘new powers over youth justice and the probation service’, which while important hardly constitutes a major constitutional change. (The section on this proposal in the main body of the report is brutally condescending especially once you add in the unstated bits: ‘The other substantial difference between the Welsh and Scottish settlements remains the devolution of matters relating to justice and policing.  These have always been devolved in Scotland because of the separate Scottish legal system, and now are devolved in Northern Ireland.  Many in Wales seek the devolution of such powers [in fact, many seek the devolution of separate Welsh legal jurisdiction].  We understand this aspiration [but have no intention of meeting it], and [instead] believe the next UK Labour government should embark upon the devolution of youth justice and the probation service). Scotland is promised (17) ‘enhanced status internationally in devolved areas’ and two further changes which seem more like impositions than extended powers: (19) ‘enhanced local control’, which in practice means elected mayors; and (20) ‘enhanced opportunities for co-operation to mutual benefit’, such as ‘strengthened cooperation with the UK Government to address the challenges Scotland faces today’, which might in practice mean less rather than more devolved action. It’s not clear who exactly these offers are supposed to sway. Constitutionally protecting the Sewell convention, if possible, would have significant consequences – for example, it would have prevented the Johnson Government’s Internal Market Act. However, as discussed below, there is no convincing detail in the commission report as to how the convention could be protected from amendment and so in effect, I would argue, it’s an empty promise.  

In any case, even if readers have already missed the hints that cooperation will be strengthened, recommendations 28-31 hammer this point home with a lack of subtlety:

28. There should be a ‘solidarity clause’, a legal obligation of co-operation between the different levels of Government and institutions across the UK.

29. The UK need a new and powerful institution to drive co-operation between all its governments – a Council of the Nations and Regions.

30. The structures of co-operation and of central government and Parliament should respect and recognise those areas of decision making that are England only.

31. Joint policy initiatives in areas of common interest, from climate change to security, should embed co-operation between different levels of government.

What’s interesting about these objectives is that if you were really invested in achieving them, you would advocate a brand new federal structure for the UK rather than trying to bolt them on to the antediluvian and not inherently democratic existing constitutional structure of the UK. Similarly, the idea of constitutionally protecting the Sewell Convention is a classic fix:

The mechanism which we recommend is based on the existing, seldom acknowledged, protection built into the Parliament Act 1911.  That Act removed the House of Lords’ power to reject legislation, and replaced it by a power to delay, but was subject to one exception.  The House of Lords can still reject a bill to extend the term of a Parliament, so that a government cannot simply keep voting itself into office by postponing a general election.   (The House of Lords can of course agree, as it did during the Second World War.)  Paradoxically enough, therefore, the unelected House of Lords acts as a safeguard for democracy in the United Kingdom.  We recommend that the new chamber retains this power, and that the power should be extended in one area only – to legislation relating to certain other constitutional statutes, which we refer to here as protected constitutional statutes. (p.140)

However, what is the real purpose of this fix? The protections sought could also be included in a new bespoke federal structure but obviously that possibility has been rejected (one assumes the commission did actually consider it!?!). The very next paragraph reveals that the key underlying principal of not just this mechanism but this whole report is to protect ‘Parliamentary Supremacy:

The second chamber would have an explicit power to reject legislation which related to a narrow list of defined constitutional statutes.  The effect of this would be a form of what is called “entrenchment”, that is to say making a particular statutory provision more difficult to amend the ordinary law.  Giving this power to the second chamber of Parliament sustains the principle, at the core of much of the UK constitution, of Parliamentary Supremacy. In the end, it must be Parliament which decides which laws can be passed or not passed.  For certain laws, however, the second chamber of Parliament will have a special role. But this must be carefully defined and hedged round to ensure that it does not simply become a political battleground with the second chamber seeking to usurp the role of the Commons. (p140)

To ensure that the second chamber doesn’t just usurp the role of the Commons, it is proposed that if the second chamber contemplates using this safeguarding power, the question should be referred to court: ‘most likely directly to the Supreme Court, for an authoritative judgement on whether the constitutional protection powers are engaged’ (p.141). We are further told that:

The Supreme Court is already well able to make such judgments; for example it has a well-developed jurisprudence on whether devolved legislation “relates to” a reserved matter.  Involving the courts in this way before the new power could be exercised would be a safeguard against the second chamber adopting an improperly political approach to powers which are constitutional in nature. (p.141)

I’m not sure that in practice these cases over devolved legislation have been entirely satisfactory. For example, it seems to me (in a week in which the UK Government have just presented a particularly threadbare justification in court for using a Section 35 order to overturn the democratic will of the Scottish Parliament) that the process is just as open to the Government taking an improperly political approach to try and circumvent the second chamber by pursuing matters aggressively in the courts. In short, this isn’t actually a constitutional protection as such but a decision to give the Supreme Court a greater role in the political process (which may be unavoidable but it doesn’t seem to me to be an ideal starting place for constitutional reform).

The following paragraphs set out at length how the primacy of the House of Commons will be preserved under these procedures. People can read the passages for themselves but at the end of this section we are told: ‘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). I personally can’t help feeling that the best way of gaining the benefits of a written constitution would be to have a written constitution, which by its nature would mean that parliament does not have supremacy. To suggest we can have both is just ‘cakeism’. We are further told that, ‘It is our view that these recommendations could all be delivered and have impact within a single Parliamentary term, and without recourse to a referendum’ (p.144). My first thought on reading this was that the whole thing has been set up to avoid the need of a referendum. The suggestion is that all the recommendations in the document can be actioned within a single term of parliament and not just those concerning the replacement of the House of Lords with a second chamber that has this ability to protect certain constitutional safeguards. It is simply not clear to me how the latter could be actioned so quickly, given that the exact composition of the second chamber is not even sketched out in this report. Neither is it clear to me, that even if this was achieved under a Labour government, why subsequent governments wouldn’t be able to overturn it. It would be much more difficult to overturn a written constitution legitimated by a referendum. Moreover, it’s not clear how this second chamber/supreme court fix would command public respect and support (beyond disinterested acquiescence). Unless, of course, the net effect of these changes is to give central government more power over the devolved governments, in which case the two main British political parties might want to keep all this in place. To cut to the quick, these are really meant as measures of control rather than genuine offerings to supporters of devolution. Nevertheless, I think there is little chance of these recommendations being implemented even by a Labour Government with a huge majority. This is because such a government would probably have more power from using (or abusing) existing powers. To be fair to Labour, in June they confirmed that they still aim to abolish the House of Lords if elected, but only after appointing new peers. So, we shall see what version of these ideas they put forward in the coming General Election.

Update (15 October 2023): An article in today’s Observer, ‘Labour to omit funding of social care reform from manifesto and scale back Lords plans’ by Toby Helm and Michael Savage, states that Labour are not now intending to replace the House of Lords in its first term:

Several Labour sources have also made clear that previous pledges by Starmer and his team to abolish the House of Lords and replace it with a fully elected second chamber would no longer be a first-term commitment. Instead, in its first years in power, the party would focus on other legislative priorities such as its “new deal” for working people that would ban zero-hours contracts and end qualifying periods for basic rights such as sick pay and parental leave.

Less than a year ago, Starmer and his team appeared committed to moving towards a fully elected second chamber in a first term. Now several shadow cabinet sources said there was a recognition this would cause huge constitutional upheaval and take up too much parliamentary time.

Instead, senior figures say Labour would look at a more limited set of changes, such as capping the number of peers, increasing the powers of the body that oversees appointments to prevent inappropriate people being given peerages, and possibly getting rid of the 90 or so remaining hereditary peers, in a first term. A fully elected second chamber would remain as a longer-term objective.

This article treats the issue as though the only significant element is replacing the unelected Lords with an elected body, rather than that the proposed Lords reform was actually at the centre of a package of constitutional reforms designed to solve the ongoing constitutional crisis and, as discussed above, the problems created by the UK government repeatedly ignoring the Sewel convention and legislating for areas that are devolved. If the people making this decision have even thought about it at all, I’m guessing they are hoping that Labour end up running not only the UK government but the Welsh and Scottish Parliaments too. However, this won’t be the case at least until the next Holyrood election in 2025 and, even then, it’s unlikely for a number of reasons. However, regardless of such considerations, postponing these reforms is a disastrous idea that will lead to crises that they wont be able to control.

In practice, this decision drives a coach and horses through the Brown Commission report, which is now pretty much dead in the water. It might still come back into play in a hypothetical second term for Labour but that’s getting a long way ahead of where we are now. As I discuss above, I don’t think the Brown recommendations would solve the problem in any case. However, it would have been good to see the plan amended because its weaknesses were acknowledged, whereas it looks like what’s happening here is that it is simply being dropped because the people making the decision don’t even understand what the problem is that it’d designed to solve.

Over the course of this Autumn, I’m going to set out some of the areas and arguments that I will be writing about while conducting my Leverhulme Trust funded project, ‘Self-Reflexivity, Class Consciousness, Culture Wars and Social Change in Britain’. One of my aims with the project is to relate the territorial break-up of Britain, as originally outlined by Tom Nairn in the 1970s, with a wider social, cultural and psychological break-up. I will have more to say about this over the coming weeks but a recent opinion column in the New York Times provides a nice opportunity for briefly noting how the devolution settlement within Britain, part of the above-mentioned territorial break-up, has become dragged into the ‘Culture Wars’. The article in question, by conservative columnist Ross Douthat, appeared on 6^th September: ‘How America Made James Bond “Woke”’. The immediate point of reference is the ‘latest Bond book’, On His Majesty’s Secret Service by Charlie Higson, which has attracted some criticism in the right-wing British press. For example, Niall Gooch fulminated in the Spectator about ‘The terribleness of a progressive Bond’, a headline with the added tag that ‘The new Bond book has turned 007 into a Centrist Dad’. Amusing while the discussion of Bond is, Douthat’s wider point is that:

the progressive Bond also usefully illustrates an interesting feature of contemporary politics in the English-speaking world. It isn’t just that American progressivism supplies an ideological lingua franca that extends across the Anglosphere, such that what we call wokeness naturally influences the fictional MI6 no less than the real C.I.A. It’s that forms of progressivism that originated in the United States, under specific American conditions, can seem more potent among our English-speaking friends and neighbors than they do in America itself.

Actually, it is not clear from Douthat’s fleeting description what happens in the Bond novel that shows the influence of American progressivism, unless we assume that the default state of British politics without American influence would be old-school conservativism (the implication being that all progressivism is inherently American?). The point is that, for Douthat, the novel provides a handy peg to illustrate the apparent susceptibility of the English-speaking world to American progressivism, which chimes with his experience on recent visits to Canada and Britain. Of the latter, he notes: ‘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’. One wonders about what kind of people Douthat was talking to, if they believed that the Government should be able to control culture.

Moreover, his article is short of actual examples, apart from the factually inaccurate claim that ‘England’s deeply homogeneous history — well, since 1066, at least’ is being rewritten in schools ‘into an American-style nation-of-immigrants narrative’. But the fun really begins when he starts listing the reasons that he feels explain why the margins are absorbing the centre’s progressive discourse: ‘The first is a general tendency of provincial leaders to go overboard in establishing their solidarity and identification with the elites of the imperial core. Both Ottawa and London can feel like provincial capitals within the American imperium…’ Really!?! The second is that both ‘the British Isles’ (an interesting designation, which allows Ireland to be lumped into the story too) and Canada have lapsed further into secularisation than the Christian centre. While ‘the third point is that smaller countries with smaller elites can find it easier to enforce ideological conformity than countries that are more sprawling and diverse’.

This brings us to the part of the column that is of particular interest to thinking about the break-up of Britain in relation to culture wars. After claiming that the British nations and Canada are more elitist and less meritocratic than the USA (this question of meritocracy and education is one that I will return to later this autumn), Douthat goes on to argue that the elites of small countries (he means the ‘Celtic nations’ rather than Britain or Canada) are particularly susceptible to capture by ascendant ideologies:

A recent essay by the Cardiff academic Thomas Prosser makes a related point about other small Celtic polities, noting that Scotland and Wales, as well as Ireland, have governments that are more progressive than their voters, a pattern he attributes to the way that ascendant ideologies (neoliberalism in the 1990s and woke progressivism now) can sometimes achieve a kind of full elite “capture” more easily in smaller countries.

Prosser’s substack essay, ‘Why are the Celtic nations so progressive?’, begins:

To an unusual degree, governments in Celtic nations (Ireland, Scotland and Wales) are more progressive than Celtic voters. Relevant measures reflect social justice ideology – recently, the Irish hate speech law has been controversial – yet have a wider basis than social justice ideology, the Welsh government regulating speeding and plastic bag use. This phenomenon is fascinating, shedding light on divisions between elites and voters which occur across the West.

So, to be clear, the only specific example given of ‘evidence’ underpinning Douthat’s claims of British elites being captured by American woke ideology is Welsh legislation on ‘speeding and plastic bag use’. In what way is this ‘policy capture’, as both Douthat and Prosser suggest? What is the evidence that governments in ‘Celtic nations’ are more progressive than ‘Celtic voters’? Given that the voters elect the governments, the real problem here seems to be with democracy enabling social change. The only American influence on the UK displayed in any of this is an attempt by the political Right to import the ‘anti-woke’ tactics deployed by those like Trump and De Santis in order to contest the legitimacy of such democratic decisions. Obviously, these types of articles are not worth devoting much energy to rebutting, reliant as they are on innuendo rather than anything approaching reasoned argument. However, their existence testifies to the existence of a terrain of difference which creates an audience for this type of innuendo. My working hypothesis is that the mechanisms of self-reflexivity maintaining that audience of people – who, for example, are prepared to see a reduced speeding limit or the concept of ‘the 15-minute city’ as manifesting the threat of woke ideology – are just as complex as the mechanisms of self-reflexivity that open people to progressive outlooks. Moreover, I think the differentiation in self-reflexivity precedes the ideology, or, in other words, these differences were not directly created by competing ideologies. The ideologies seem to explain the differences, but they don’t. Therefore, a lot of existing political discourse isn’t particularly helpful to us in trying to understand social change in Britain. Over the next few weeks, I intend to try and map out some of that ongoing social change in order to understand how and why it is being framed in terms of culture war, beginning with the questions of devolution, independence and the territorial break-up of Britain.

Part One concerns the reception of May the Twelfth up until the 1990s.

Part Two concerns the ideas involved in the formation of MO and why they were interested in the coronation of George VI.

Part Three concerns MO’s account of the coronation procession in London on 12 May 1937 and the representation strategies they used to prevent their account simply being another part of the media hype.

Part Four concerns internal changes to MO following the publication of May the Twelfth and the relationship they developed with Bronislaw Malinowski.

For the purpose of this fifth and final post in the series, aside from a brief extract from the longer discussion of MO’s analysis of the Lambeth Walk dance craze in my PhD, I had a look at my 2006 book Mass-Observation and Everyday Life to see how I tied up some of the themes discussed in the first four parts of this blog series. In some ways, I did this by connecting the themes to aspects of the thinking of Perry Anderson and Tom Nairn. At the time, I was trying to tie MO in with the New Left, which seems like it should be a good fit because they both occupy similar political places at different times, but in practice doesn’t work because I don’t think the latter really understood the former and got influenced by the false reception history of MO as unscientific dilettantes. At one point I had (vague) ideas of writing an intellectual history which would reconfigure the British left bringing these different groupings together. Elements of that project could be viable, but it would need to be situated with respect to the needs of the twenty-first century rather than as an argument about what really happened in the twentieth century. I still think that the closing sentence of the first edition of the book, which is also the closing sentence of the post below, is correct in its identification of MO as an essential resource of hope that has not yet fully come into its time.

            *          *          *

In his essay ‘Components of the National Culture’ (1968), Perry Anderson argued that Britain never produced a classical sociology, but only two displaced forms in the guise of social anthropology and literary criticism. MO, formed from the influences of the anthropology of Malinowski and Bateson and the literary criticism of Richards and Empson, can be seen as exactly that missing sociology, albeit perhaps not so classical as Anderson would like [!!]. Instead, as Ben Highmore suggests in Everyday Life and Cultural Theory: An Introduction (2002), MO should be considered part of a wider tradition of continental avant-garde sociology following from Simmel’s description of the ambiguous situation of the individual in the modern world. Like Simmel, MO tried to develop an understanding of society from within by using surrealist and documentary techniques to render everyday understanding.

The emphasis on MO as a primary historical source tends to prevent it being seen as a set textual interventions – i.e. the books it published – within 1930s literary politics. This split between text and context can also be seen to contribute to the rise of cultural studies, which in the trajectory running through T.S. Eliot becomes negatively defined against the high modernist poetry that is privileged over it. The later development by cultural studies of its own branch of poetics suggests that poetic perception is somehow constitutive of consciousness so that, for example, life writing can be seen as a continuous act of existential affirmation in a context in which grand narratives are viewed with suspicion. Yet in the process the forms of cultural poetics and poetry have become sundered in such a way that a figure like Madge is doubly excluded from cultural centrality: he is both too poetic to be cultural and too cultural to be canonical. The reason that this is a problem is that life writing on its own is not necessarily a vehicle for social transformation because it does not consistently produce images capable of transforming the symbolic order of society, as poetry does. Such claims have sometimes been considered elitist. Yet this is to miss the central anthropological point that symbolism affects all minds whether consciously or unconsciously. All cinema and advertising employ such means at some level, as do the tabloid newspaper headlines which Madge identified as forms of poetry. The point is not that one has to be ‘cultured’ to appreciate them or even necessarily resist them, but one has to be aware how they work in order to create a different liberated order. This is an awareness that MO tried to encourage in the 1930s by instructing their observers to record the images of the day.

While these images as collected in May the Twelfth could not in the end compete with the media myth of the coronation of George VI, MO did eventually manage to exert some influence on the popular representation of British identity through their 1939 Penguin Special, Britain by Mass-Observation, which revealed how Chamberlain lost public support during the Munich Crisis and advocated the Lambeth Walk dance craze as a genuine form of working-class popular culture and a model for anti-Fascist practice. As we shall see, their specific argument concerning the Lambeth Walk turns on a very similar structural argument to that underlying the idea behind May the Twelfth of using the coronation to show the independence of the masses.  

Madge and Harrisson [the non-alphabetical order in which they were designated co-editors of Britain much to Harrisson’s subsequent oft-repeated indignation] argue: ‘As a symptom of changing social attitudes, the Lambeth Walk points the other way from Football Pools and Daily Horoscope.’ They saw it as a trend originating in the working class and not one foisted upon it. Therefore, it has potential as a model for the new type of intervention they are looking for ‘We may learn something about the future of democracy if we take a closer look at the Lambeth Walk.’^[i] This argument is backed up by one of their longest and most thorough analyses. Early on the chapter is an account of the ‘native cockney culture … still vigorously existing’^[ii] embodied in a darts club attached to a pub, which organises parties after closing time on Sunday nights in members’ houses:

Obs.: ‘What are some of the other dances called?’

A.: ‘We’ve never known the names. We just do’em ourselves. For instance, the chap who’s just gone out to sign on, he wants to be a dog. If he’s half drunk, he wants to be a dog. He wants to bark. . . . Then we has bloomers and blouses, we dresses up in them. . . . The other night we had the women on the floor, fighting over her like two dogs. We don’t do it very legal you know. I come home with a black eye.’^[iii]

Madge and Harrisson are interested in how the Lambeth Walk has spread from such origins to ‘Mayfair ball-rooms, suburban dance-halls … Scotland … New York … Paris … Prague’.^[iv] They identify the immediate source of the popularity of the craze as the December 1937 show, Me and My Girl. This involved the cockney comedian, Lupino Lane, playing a Lambethian who ‘inherits an earldom but cannot unlearn his cockney ways. At a grand dinner party he starts “doin’ the Lambeth Walk” with such effect that duchesses and all join in with him and his Lambeth pals’.^[v] Empson’s analysis of pastoral is invoked to point out that the show is essentially about ‘the contrast between the natural behaviour of the Lambethians and the affectation of the upper class.’^[vi] The show includes a scene mocking the Coronation with Lane in his peer robes, at one point lying on the floor as though to suggest a state funeral. This sounds like the perfect example of Empsonian pastoral with Lane at the third level of comic primness. It is not clear if he is satirising, accepting or simply innocent of the importance of traditions: he has complete freedom of action. However, the dance craze was the result of the managing director of the Locarno Dance Halls seeing Lane’s typical cockney walk – ‘a swagger and roll of the shoulders’ – and getting his ‘ace’ dancing instructress to elaborate it into a dance.^[vii] Tellingly, this became so popular that she had to teach Lane how to do it.^[viii] Madge and Harrisson provide a list of the stages that the Lambeth Walk has gone through, which can be summarised:

1) The native cockney culture and related cockney walk.

2) Lupino Lane and the show.

3) The Dance Hall manager who had the walk developed into a dance.

4) The BBC and press which gave the dance publicity.

5) The masses who took up the dance with enthusiasm.

They conclude:

Of these five factors, 2, 3 and 4 represent the Few who cater for the Many – in this case successfully. Factors 1 and 5 represent the influence of the Many. The cockney world of Lambeth – its humour, its singing and dancing, the way it walks – is a mass-product with a special local character. But this character is strong enough to appeal to a much wider mass of people as soon as it is made known on a wide scale.^[ix]

I wrote much more analysis of this in both PhD and book and there are also excellent discussions of MO’s utilisation of the dance craze by Ben Highmore and of the Lambeth Walk in general by Raphael Samuel. So, I won’t go further here other than to say that, to my mind, MO’s analysis of the Lambeth Walk repeats some of the strengths and weakness of their analysis of the coronation in May the Twelfth. They do very successfully show how the dance craze is an expression of genuine popular agency on behalf of the people but, nonetheless, there is nothing to stop the appropriation of this phenomena to a ‘rival myth’ [to refer to Empson’s anticipation in Some Versions of Pastoral (1935) of Roland Barthes’s postwar analysis of myth]. Although, thankfully, the anti-fascist deployment of this particular myth proved to be more successful than any fascist alternatives, this doesn’t mean that any such process of appropriating popular culture is always going to come out on the side of goodness and light. Indeed, some of their wartime work for the Ministry of Information also demonstrates this ambiguity as does the entire concept of ‘The People’s War’, which MO is often incorporated into – most notably by Angus Calder’s 1969 book, The People’s War (which drew in part on his tracking down of the MO archive). Therefore, one of my conclusions in Mass-Observation and Everyday Life tries to quantify this ambiguity: ‘While M-O ultimately failed in the attempt to convert everyday life itself into a public site of contradiction and contestation on the model of politicised theatre, they certainly subverted the theatrical expression of public politics, which was so characteristic of the 1930s’ (229).

This is a point that I need to come back to, but not in this series of posts. Instead let us fast forward to the heady days of the 1970s, in which we find Tom Harrisson newly installed at the University of Sussex, ostensibly to sort out the MO archive, but instead quickly resuming MO activities such as taking a team of observers to the Bromsgrove byelection – where Labour were to gain the seat on a 10% swing that was seen as an expression of public hostility to the Common Market. Harrisson published the results of his investigation in the New Statesman in 1971 and concluded: ‘More than anything else in the M-O Archive I was reminded of the reactions after the retreat from Dunkirk. There was then an intense relief: relief that we had got back, more or less intact, out of Europe, safely behind the white cliffs of Dover’. He was forthright in denouncing the anti-foreign undertones of this ‘Little England’ as ‘racialist’. It is possible to see Harrisson’s work in the 1970s as a form of late guerrilla war against the Dunkirk spirit [unfortunately he lost]. As he wrote in the New Statesman in 1975, there was much ‘badness’ in the war ‘which it is deadly dangerous to glorify for the unborn’. His untimely death in a road accident the following year left us with his preface to the posthumously published Living Through the Blitz (1976):

It has proved something of an advantage to this writer, co-ordinating and necessarily selecting from a mass of old records, that he had an unusually wide experience of living through the blitz. It has been a greater advantage, however, that he has not been subject to the subsequent three decades of brain-washing.

   …. In the past some critics have tried to discount the whole of M-O as leftist or dilettante. The records of the men and women, active in the work both then and since, refute this fallacy. If any such charge is repeated in the fourth quarter of the twentieth century, it may only be because some Britons, especially responsible ones, cannot face the full facts about their ‘finest hours’.

   …. At no time in World War II generally and in the blitz particularly were British civilians united on anything, though they might be ready to appear so in public on certain issues (13-5).

Although the book discussed the above-mentioned ‘full facts’ in detail, such as ‘trekking’ – the daily refugee cycle of mass-migration from target cities to seek shelter in the countryside (165-8) – its effect came not so much from revelation as from its tone, which debunked both official and popular versions of the war. Therefore, it helped pave the way for a subsequent wave of revisionist history led by Angus Calder’s The Myth of the Blitz (1992), in which ‘myth’ was used in the sense defined by Roland Barthes and the ‘blitz’ as a referent to a whole series of symbolically linked events from the period 1940-1941, including the evacuation of the British Expeditionary Force from Dunkirk and the aerial Battle of Britain as well as the actual German bombing raids. Calder argued that these events have never been seen as part of the wider European and World history of the time, because Britain was never invaded and they happened before the entry of the USSR and USA into the war. They ‘have acquired [an] … aura of absoluteness, uniqueness, definitiveness …. these were events in which the hand of destiny was seen’ (1). In particular, Calder took care to show how his former construction of the People’s War had become complicit with the Myth and to examine how the Left had not captured history in 1940 so much as to allow history to capture them. However, as the Myth was above all a myth of British unity which came to encompass the working-class majority of the population, the Left quickly came to have the biggest stake in it. The net effect remained ‘a juster and friendlier society’ despite the fact that the Myth had subsumed the more radical transformatory dynamic of the People’s War: ‘If a disastrous conflation of state with community produced an excessively bureaucratic welfare state out of control by the People whom it professed to serve, at least the Myth had fostered the notion of the mutual responsibility of all for the welfare of all’ (272). [In retrospect, Calder was still being too optimistic here and Harrisson’s harder position stands up better to subsequent events].

This idea of a poised tension between the People’s war and the Myth of the Blitz neatly captures the sense of MO’s ambiguous position in the war (reflected through their ambiguous cultural politics), caught in a situation where the more they pressed for accelerating the pace of social change, the more their own reports on morale registered everyday resistance. While the models of representation that MO pioneered in the late 1930s, especially in Britain, and which were continued not just by them but by the whole constellation that Stuart hall described in 1972 as ‘The Social Eye of Picture Post’ (1972) were able to incorporate these everyday images into a unified narrative of Britishness, external pressure could always change the direction of that narrative. These internal dynamics of MO have subsequently been played out in the subsequent histories of MO [i.e. the differences between Hinton’s and my history are really just a continuation of the internal arguments that Madge and Harrisson had in 1940 as to what the purpose of MO actually was].

The advent of the archive opened up a new dimension because it suddenly made all of those everyday images of the war available as a primary source for incorporation into new narratives of wartime Britishness, and by extension Britishness per se, designed to respond to new contexts in a manner exemplified by either of Calder’s war books. The launch of the new MO project in 1981 established an ongoing project of ‘Writing Ourselves and Writing Britain’ and suggested that, as an astute reporter concluded in the New Statesman in 1987, ‘the people’s war continues, based in Sussex’.

The origins of the new 1981 project lay in the decision of Philip Ziegler, who was using material from the archive to write Crown and People, for publication in the queen’s silver jubilee year of 1977, to collect new material through friends and former mass-observers. This inspired David Pocock, the Professor of Social Anthropology who had become Director of the Archive following Harrisson’s death, to launch the ‘Mass-Observation in the 1980s’ Project with a directive addressing a number of issues including the forthcoming ‘Royal Wedding’ between Prince Charles and Lady Diana Spencer. This was quickly followed by the announcement of a day-survey for the wedding, reinforcing the extent to which the birth of the new project replicated the original MO’s concern with royal events. Indeed, the concern of reincorporating the founding project into ongoing studies has a long history within MO [a statement which is just as true today as it was over 20 years ago when I first wrote it].

The chapter on ‘Royal Occasions’ in the one-off 1961 MO book Britain Revisited pairs extracts from May the Twelfth with reports from the 1953 coronation to show the similarity of both in terms of ‘official and unofficial behaviour’ (233). Survey results indicate that in both 1956 and 1960, ninety per cent of the population supported the monarchy in preference to a republic (231), leading eventually to the conclusion: ‘it seems unlikely that existing attitudes to royalty will be drastically or lastingly changed’ (251). It was very much in this tradition that Ziegler used material from the MO Archive, and May the Twelfth in particular, for his book studying the attitude of ‘the man in the street’ to the British monarchy, which I discussed in the first post in this series along with his conclusion that ‘the British want the royal family, that their reasons for doing so are sensible, even meritorious, and that our national life would be impoverished if the monarchy were to be eliminated.’ (203).

As I also discussed in the first post in this series, this trend was continued by the1987 republication of May the Twelfth with an afterword by Pocock, who expresses pleasurable surprise at the ‘apparently identical features in the reactions on that Coronation Day and those reported in the Day Diaries written for M-O on 29 July 1981, the wedding day of Their Royal Highnesses, the Prince and Princess of Wales’ (420). The back of this paperback reissue of May the Twelfth announces [absurdly] ‘that in a half-century that has witnessed dramatic changes in our daily lives, underlying attitudes have changed remarkably little.’ Pocock concludes his afterword by analysing why the same reactions are always present:

   Kingship is an institution much older and more complex than constitutional monarchy and more primitive, in the sense that it is an expression of a powerful human need. For evidence of this we have only to contrast the rational demands of constitutional monarchy with the popular insistence on royalty. There is no constitutional requirement for the monarch’s family, other than her immediate successor perhaps, to play any part, let alone be invested with the distinctive glamour of royalty; no presidential figure could evoke the insatiable curiosity about its private life that the Queen evokes – all this is the creation of the public, it is what we wish to be so.

   Sometimes one reads the comment that the British Royal family is to be likened to one or the other of the unending television serials about some wealthy family [Ed: this was before The Crown]. The judgement could not be more superficial: it is rather the reality of royalty and the distinctive complex of emotions which royalty alone can evoke, that accounts for the popularity of coloured shadows (423).

Whereas the original publication of May the Twelfth reveals how the media diluted the formerly unique relationship between the king and the people to just one moment in a chain of differences, Pocock’s argument tries to show that the presence of many media moments highlights the uniqueness of the relationship between king and people. Thus, where anthropology had been used to show the reality of social change, social change was now being used to demonstrate the reality of anthropology.

Therefore, it is hardly surprising that Tom Nairn’s The Enchanted Glass (1988) has taken Crown and People and May the Twelfth as demonstrating M-O’s complicity in constructing what he has called ‘the People’s Monarchy’, a configuration in which the royal family’s status as neither ‘Them’ nor ‘Us’ serves to embody a collectively unconscious Britishness. The ‘glamour’ of this monarchy operates as ‘an interface between two worlds, the mundane one and some vaster national-spiritual sphere associated with mass adulation, the past, the State and familial morality, as well as with Fleet Street larks and comforting daydreams’ (p.27 in the 1994 paperback edition). Yet, Nairn argues, the reality of this glamour is no more than ‘our collective image in the mirror of the State’ (13). This is true, but it is also what MO were trying to show at the time. May the Twelfth tried to liberate this collective image in an unequal battle against the media. Britain combined what had been learnt from that project with what had been learnt from the Worktown project and created a fairy-tale resolution by way of Me and My Girl and the Lambeth Walk, which allowed the working-class majority to embody national identity in an inverse relationship with the monarchy that became part of the wartime myth of Britishness. The saving virtue of the relationship lay in its effectiveness at the time in sustaining the anti-fascist fight, but it has left hostages to fortune as Nairn implies.

Therefore, just as it has remained connected to the linked paradigms of People’s War and Myth of the Blitz, MO remains connected to the linked paradigms of monarchy and media. The dominant collective self-definition of observers participating in the new project is that they are ‘ordinary’. This ordinariness is most typically constructed as a supplement to the media. That is to say, people write for the current project because they feel that ordinary voices are not represented in the media (see James Thomas, Diana’s Mourning: A People’s History,2002: 38; Dorothy Sheridan et al, Writing Ourselves, 2000: 214-9). However, this ordinariness could also be seen as a supplement to the monarchy in the same way as the relationship was constructed by Ziegler and Pocock. The nature of an archive is that it potentially makes those ordinary voices always available for that kind of appropriation, regardless of the fact that the current organisation would not actively support such uses. This is why MO publications and their original emphasis on presentation should be considered as central to the MO legacy as the archive material.

The importance of this was upheld by one of the most recent publications to be based on archive material: James Thomas’s Diana’s Mourning: A People’s History (2002). Although the title suggests another addition to the annals of the People’s Monarchy, this particular organisation of ordinary voices transcends mere ordinariness, to show how the events around the death and funeral of Diana did provide, however temporarily, a public space in which ideas and values were contested. As Thomas observes: ‘Diana’s mourning far from serving as a basis for a new national identity, marked a serious challenge for most people to the idea of “Britishness”’ (3). He cites the concerns of one observer: ‘I hate to think how the whole “Diana death” business will become, has already become, a homogeneous myth, like the ‘chirpy cockney in the blitz’ myth along the lines of “a nation mourns”’ (7). This sets the book up to use observer’s voices to contest exactly such myths and although he ends over-pessimistically on the note that ultimately the media myth did swamp out the real democratic public debate that actually took place, the very existence of his book serves to contest that myth retrospectively. The key point he makes is that the effect of the whole Diana saga has been to ‘negatively reposition’ the royal family as ‘Them’ (47). The consequences of this unbalancing of the People’s Monarchy paradigm have yet to be felt, but they will have huge consequences for British society as a whole and for MO in particular [round about now presents a good opportunity to see how correct I am in this assertion]. The need for MO’s founding vision of a transformed participatory mass society based on a dialectical combination of collective independence and individual agency is now greater than ever.

As Ben Highmore argues, M-O was precisely at its most productive and radically democratic when it blurred – as opposed to either upholding or dissolving – the distinction between ‘native’ informants and participant observers: ‘It is here that Mass-Observation can be seen to fulfil the promise of Surrealist ethnography: the potential for everyone (academic ethnographers, capitalist industrialists, working men and women, and so on) to become “natives”’ (Highmore 2002: 87). It was in this sense that Harrisson argued that ‘one had to be completely ordinary’. Yet this is only fun for those who do not have to remain ‘ordinary’, in the way that the influence of the media forces the current MO diarists to describe themselves. MO’s description of the attraction of the Lambeth Walk was misleading in its suggestion that ‘the working classes like to be Lambethians because Lambethians are like themselves’. The real pleasure came from a carnivalesque liberation similar to that of the coronation. However, the experience of writing up Britain must have been even more enjoyable for Madge because, as was the case with Jennings and the coronation, he was writing partly about his own experiences of participating in the carnival and enjoying the ‘transvestitism and class-conscious songs’. Empson describes a scene from The Beggar’s Opera in which a character is at ‘the first level of comic primness and the author at the third’ (1995 Penguin edition of Some Versions of Pastoral: 175). On this model, one can simultaneously enjoy being the ‘native’ and the ‘ethnographer’ and so combine the everyday pleasures of being ordinary with a philosophical independence which guarantees agency. The technical limitations [i.e. the limitations on who could have access to the texts that MO collected, which at the time were restricted to Jennings, Madge, Harrisson and a few others] which existed until very recently made this impossible, but now it really is possible for new kinds of web-based M-O projects, allowing reports to be pooled and collectively edited into different configurations [or, indeed, as I didn’t anticipate in 2005, for reports to be treated as data and subject to corpus analysis]. In the years between publishing Mass Observation and Everyday Life and assembling these posts, I have sometimes put the period of my original analysis of MO – which in fact was about nine years of my life – down to a ‘youthful’ naïve idealism. However, looking at it all again this week, I find that I’ve come back to the same idea I had then that only (Popular) Poetry can save us, which is to say that we need an activist MO-type movement now more than ever. Therefore, in the words of the final sentence of the first edition of Mass Observation and Everyday Life (2006): ‘In the future M-O, everyone will be both “native” and “ethnographer” and in possession of a poetic kind of thinking powerful enough to change reality in order to meet their collective mass social needs’ (229).

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[i] Madge and Harrisson, Britain by Mass-Observation, Harmondsworth: Penguin, 1939, p.140.

[ii] Ibid., p.143.

[iii] Ibid., p.144.

[iv] Ibid., p.139.

[v] Ibid., p.140.

[vi] Ibid., p.157.

[vii] Ibid., p.141.

[viii] Ibid., p.161.

[ix] Ibid., pp.141-142.

Part One concerns the reception of May the Twelfth up until the 1990s.

Part Two concerns the ideas involved in the formation of MO and why they were interested in the coronation of George VI.

Part Three concerns MO’s account of the coronation procession in London on 12 May 1937 and the representation strategies they used to prevent their account simply being another part of the media hype.

This extract from my PhD might appear to be a bit of a distraction from discussing MO’s book about the coronation but it is indirectly relevant. For a start, it picks up the story from the end of Part Three, when MO were apparently poised on the verge of becoming an activist movement and explains what happened next (spoiler: MO didn’t become an activist movement). It goes on to discuss some of the influence of anthropologist Bronislaw Malinowski on MO and on Charles Madge in particular. At the time of writing the PhD, I saw Malinowski as the bad guy, and I went on to provide a critical account of functionalist anthropology. By the time, I wrote the book version, I’d come round a bit – not so much to Malinowski as to Madge, who becomes the hero of Mass-Observation and Everyday Life. Indeed, I am planning to go back to Madge and look again at his postwar ideas concerning social eidos, which were influenced by the work of the anthropologist Gregory Bateson. As part of that, I want to reassess Madge’s relationship to anthropology in general and so posting this section of the thesis is a useful benchmark for me.

There is also an implicit point to this post, which is that if you just study a phenomenon like a coronation from an ‘objective’ perspective, as Malinowski advocates, then the result is that you end up with a false idea of its role in society. In effect, by appearing to be objective, you uphold and reinforce the ruling order. If you’re not careful, you end up like MO Director David Pocock (who was of course an anthropologist) and start claiming – as we saw in Part One of this blog series – that ‘kingship… [rather than constitutional monarchy] is an expression of a powerful human need’. When I wrote my MA dissertation, I wanted to situate MO as a Benjaminian Surrealist-type project contesting the forces of myth and ritual, as outlined in Adorno and Horkheimer’s Dialectic of Enlightenment. I still think this is a valid exercise (and I might even attempt it at some point, with the benefit of more experience and knowledge than I had in the mid 1990s) but at the time I was partly motivated by a chauvinistic desire to show that England could produce its own theory to match that of the continental Western Marxist tradition. To be fair to myself, I didn’t entertain this idea for any length of time: the very act of trying to set it out in writing made plain that it wasn’t going to wash as a proposition. I found different, more productive ways to talk about MO while still trying to indicate the parallels with a wider continental political struggle. However, rereading my MA dissertation makes me think that the similar ideas could be reworked to different effect in today’s different political context. In other words, the way that Jennings and Madge incorporated continental theory into an English idiom is actually testament to the inadequacy of the supposed native English radical tradition and an argument that the strong radical culture of the 1930s (that was to be aggressively repudiated in the more insular England of the 1950s) was the product of a genuinely international outlook. But this is all an argument for another day. When I wrap up this series in Part Five, I will come back specifically to the relationship between MO and the monarchy.

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In March 1938, Madge wrote to the New Statesman: ‘I want to make it clear that Mass-Observation is not an organised faction. Unlike Buchmanites, Rotarians, Wandervogel and Nudists, Mass-Observers do not hold meetings: in the interests of science they are discouraged from doing so.’^[i] The national conference for Mass-Observers in early 1938, so confidently promised the previous summer, had never taken place. All that remained of the Popular Poetry program was a big red question mark pencilled into the margin of an abandoned draft of First Year’s Work. The published version contains no trace of any commitment to ‘educate [the unconscious masses] into awareness of their own potentialities and so render them less vulnerable to anti-social propaganda’.^[ii] This abrupt transition – an understanding of which is essential for any attempt to make sense of the history of Mass-Observation – was triggered by three vital factors: the commercial and critical failure of May the Twelfth, the subsequent departure of Jennings and the influence of Bronislaw Malinowski.

The announcement in the Mass-Observation ‘Bulletin for September’ did not augur well: ‘On September 23, Faber published Mass-Observation Day-Survey: May 12 at 12/6. The high price was an unfortunate necessity, and we ask all Observers for whom it is too high to make an effort to obtain the book from a library…’^[iii] According to Angus Calder and Dorothy Sheridan, the book only ‘sold a bare 800 copies’.^[iv] It also attracted vitriolic reviews from G.W. Stonier in the New Statesman and Marie Jahoda in Sociological Review.^[v] This has led Jeffery to state ‘Most critics have agreed that the book was something of a failure … Papers of the right found a leftist bias in M-O, while left-wing journals were generally extremely hostile.’^[vi] However, this is inaccurate because there were good reviews in Life and Letters, New English Weekly and Left Review, demonstrating that the world of the literary left journals from which Mass-Observation sprang remained a sympathetic constituency.^[vii] Nor was the book unappreciated in all scientific quarters.^[viii] Nevertheless, within less than two months of publication, the ‘Bulletin for November’ was characterising the ‘May 12th book’ as representing ‘a stage of M-O that has now been left behind.’^[ix] Given that they still conducted day-surveys up until 12 January 1938, it seems reasonable to conclude that the stage being left behind was the tripartite structure of Mass-Observation, outlined in the preface to May the Twelfth, in which Jennings had been responsible for presenting results. For Jennings had left Mass-Observation by this time, holding a one man show of paintings at the London Gallery in October and returning to work for the GPO Film Unit.^[x] As suggested in the first two posts in this series, the departure of Jennings altered the balance of Mass-Observation and shifted it on to the Madge-Harrisson scientific axis as outlined in the second section of Mass-Observation.

The problem now confronting Madge and Harrisson was the need to gain recognition from the scientific community, for which purpose May the Twelfth was – as it has appeared in retrospective attempts to legitimate Mass-Observation as a social scientific organisation – something of a hostage to fortune. Therefore, the advent of Malinowski, as potential saviour, was eagerly awaited in the Bulletins of early 1938. The pending publication of First Year’s Work was delayed in January because Malinowski wanted to write a ‘real contribution’ and then again in February because ‘Professor Malinowski has been working hard on his contribution to the new pamphlet “First Year’s Work” and it was finished at midnight on Feb. 16th, having grown to 16 000 words in length.’^[xi] That the move to a scientific outlook did not simply signify a shift of power towards Harrisson can be seen from the fact that it was Madge who organised this connection with Malinowski and who helped write the essay in ‘long sessions’ at Malinowski’s home.^[xii] Therefore, ‘A Nation-Wide Intelligence Service’ can be read as a public act of recantation on Mass-Observation’s – or at least on Madge’s – behalf. The tone is set in the opening paragraphs, where Malinowski praises the ‘movement’ for ‘humility … in its readiness to co-operate with other scientific workers’ and ‘its ability to reconsider its aims and to reorganise its collective methods of research.’^[xiii] It quickly transpires that Mass-Observation’s former heretical deviations, confusing the relationship between subjectivity and objectivity and thus being insufficiently scientific, are deviations from the true path laid down by Malinowski himself: ‘I feel that in a way I have been responsible to a large extent for the inevitable consequences in the development of the functional method of anthropology: I mean, for its definite move towards Anthropology Begins at Home.’^[xiv] He sees Mass-Observation, once corrected in its errors, as having the potential to realise his own dream of ethnology determining ‘a correct theory of society for the future scientific guidance of human affairs’.^[xv] These necessary corrections are that observers should be properly regarded as informants in the ethnographical sense^[xvi] and that Mass-Observation’s investigations, questions and instructions to observers should always be oriented by function.^[xvii]

The change in meaning entailed by the switch from the original conception of the observer to that of informant is subtle; analogous to the slippage between participatory and representative democracy. Malinowski’s position is that while the more subjective it is the better, the subjective data of the informants has to be subject to objective – disinterested – analysis by somebody outside the grouping in question; as opposed to Mass-Observation’s hitherto position of ‘confusion which would require the observer and the observed to be one and the same person’.^[xviii] However, this was precisely the most radical element within Mass-Observation and the necessary condition for the possibility of collective independence in its practice of proletarian pastoral. From now on, to the extent that Madge and Harrisson accepted Malinowski’s criticism, this possibility of independence was limited to them as ethnographers above and beyond the society whose observations they studied.

Part Five, the last, to follow.

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[i] Madge, letter, New Statesman and Nation, 5 March 1938, p.364.

[ii] Draft of First Year’s Work, M-O: Organisation and History, box 1, file: ‘Early Original Papers’, M-OA, pp.3-4.

[iii] Mass-Observation, ‘Bulletin for September’, 1937, FR A4, M-OA, p.2.

[iv] Angus Calder and Dorothy Sheridan, eds, Speak for Yourself: A Mass-Observation Anthology, 1937-49, London: Jonathan Cape, 1984, p.62.

[v] G.W. Stonier, ‘A Thousand Mass-Observers’, New Statesman and Nation, 9 October 1937, pp.532-534; Marie Jahoda, review of May the Twelfth, Sociological Review, XXX (2), April 1938, pp.208-209.

[vi] Jeffery, ‘Mass-Observation: A Short History’, p.24.

[vii] Various, review of May the Twelfth, Life and Letters To-day, 17 (10), Winter 1937, pp.166-168; E.C. Large, ‘The Coronation Mass-Observed’, New English Weekly, 30 December 1937, pp.231-232; Maurice Richardson, review of May the Twelfth, Left Review, 3 (10), November 1937, pp.625-626.

[viii] See unsigned review, supplement to Nature, 12 March 1938, pp.448-449.

[ix] Mass-Observation, ‘Bulletin for November’, 1937, FR A4, M-OA, p.4.

[x] See M-L Jennings, Humphrey Jennings, p.16; Stansky and Abrahams, London’s Burning, p.85.

[xi] Mass-Observation, ‘Bulletin for January’, 1938; ‘Mass-Observation Special Directive Feb 1938’, Panel Directives 1937-8, box 2, M-OA.

[xii] Madge, ‘Autobiography’, p.76.

[xiii] Bronislaw Malinowski, ‘A Nation-Wide Intelligence Service’ in Madge and Harrisson, eds, First Year’s Work, London: Lindsay Drummond, 1938, p.83.

[xiv] Ibid., p.103.

[xv] Ibid., p.104.

[xvi] Ibid., pp. 96, 118.

[xvii] Ibid., pp. 105-107, 111-112.

[xviii] Ibid., pp.92-98, 99.