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The United Kingdom: National Sovereignty and Nationhood in a Post-Brexit World

Professor John F. McEldowney

The paper traces the evolution of the United Kingdom from the 17th century to its imperial ascendancy in the nineteenth century and the growth of Empire. The English nation-state defined the constitutional architecture of the United Kingdom, partly, in attempts to assimilate Celtic nationalities, the Scots and Welsh as well as the Irish. Differences were reconciled through a single juristic concept of sovereignty driven by English dominance. Interconnected with the constitutional architecture, were religious and cultural affiliations, including property rights, that were overpowering. Underlying the success of an all-embracing doctrine of sovereignty, the British Empire managed to export its ideals of nationhood throughout the common law world. The English language and culture, as well as forms of government, law and administration were common features of English imperialism as well as imagination. A single Imperial sovereignty linked to development and nation building applied throughout the world. It did not endure. The loss of Empire and the creation of a Commonwealth consisting of ex-colonial nations, signalled an adaptation of imperial nationhood into a democratic and self-governing form, that helped reinforce UK sovereignty, while granting autonomy to the colonies. The UK’s membership of the European Union and the decision to leave has questioned the extent to which the nation-state can be reborn in a traditional form that is a return to the imperial power of the past. This is a new phase in national sovereignty. The paper highlights the dangers of a return to a form of English nationalistic aspiration that may endanger the rule of law and diversity in society on the pretext of building a nation-state when the reality is more complex.

Introduction

The paper begins by tracing the origins of the English nation, the growth of the United Kingdom in the seventeenth century and the pursuit of Empire. This reveals an emerging English nationalism, defined through national identity and immigration policy that is increasingly “hostile” to outsiders. Brexit and its consequences are considered, as part of a reflection on the future of the United Kingdom after Brexit. Uncertainty over relations between the United Kingdom and the European Union abounds, with domestic party politics struggling to adapt to change, as ancient institutions, struggle to cope with ongoing divisions over the European Union This leaves a bitterly divided nation, fragmented party politics and no certainty that compromises will be found to unify the country.

The origins of the English nation

It is hard to be precise as to when the English nation began, but as A.L. Poole in his magisterial work on the Oxford History of England series suggested:

The hundred and thirty years which separate Domesday Book and Magna Carta witness the growth of a nation.[1]

One surprising suggestion is from the historian Robert Tombs, that Pope Gregory the Great, around 580, copied the idea from “Procopius (c 500-565), who described the people of ‘Brittia’ as the ‘Angiloi’, Pope Gregory noticed that many fair-haired slaves were for sale and was told they were ‘Angles’”.[2] Tombs has traced the historical records for more clues as to a “true” English identity and finding evidence of early Christianity in England. The venerable Bede, a monk from Northamptonshire, in his Ecclesiastical History of the English People, written around 731, defined a distinctive Christian identity of the English people. Their special status of conversion to Christianity came from the time of 597 and Augustine’s arrival in Kent; it also brought the King and several thousand supporters into baptismal unity with the Church. St Augustine founded a Cathedral around 598 and an adjoining King’s School, thus establishing a public school that is one of the oldest institutions of the nation. The Church owned about a quarter of all of the cultivated land, at this time, giving it great economic power and influence, especially in the missionaries sent to Europe, with particular success in northern Germany.

It is less clear that the origins and ethnicity of the English were any more distinctive than any other European nation. The intermingling between Celtic tribes, Roman occupation and an Anglo-Saxon identity are often conflicted by differing accounts – some myth, and some more reliably based on historical records and artefacts. Historical archaeology has become more reliable as technology such as carbon dating has improved. As with many nations, defined by the external world of trade, war and conquest, assimilation and a diaspora of settlements that contain many common elements, it is more likely that archaeological evidence, rather than historical claims of uniqueness or superiority, provides the best evidence of nationhood.[3] Whatever the truth about the “Angles”, it is clear that in the post Roman period, two main versions of the Celtic language were spoken, and it is from these that the “modern Celtic languages of Britain and Ireland were spoken”.[4] It is equally clear that while there were many differences between Britain and Gaul in pre-Roman times, these were perhaps “more of a degree than of kind”.[5]

Defining the distinctive parts of nationhood is not only to do with culture and society; agriculture, towns and villages,[6] but law, also, has a specific and influential role to play. The Middle Ages[7] tells us about how law was conceived but the retention of the monarchy and the failure to establish a system of government beyond the Crown after Cromwell, the restoration of the Monarchy in 1660, left Britain with a distinctive form of constitutional continuity that, uniquely, among long-established nations, remains in place today. Underpinning this development is sovereignty. The philosopher, Thomas Hobbes (1588-1679) encapsulated the essence of sovereignty “a body of men whose commands are laws”, as defining the nation.

It may be questioned why nation-states were formed in the first place and, out of their formation, why nationalism emerged as an integral part of their conception.[8] Nation-states facilitated trade and commerce, created a common identity and allowed cultural development as well as a common language, religion and aspirations. Art and architecture helped contribute to the sense of common belonging and a national consciousness. Education and training as well as sport helped forge the bonds of identity and common causes.[9] Legal structures are also formative of a nation-state, and are fundamental to law and political science. The most distinctive part of the United Kingdom is the common law tradition of judge-made law, rather than the continental model of written codified law under a Constitution.[10]

A nation-state claims legitimacy for its status as well as powers and responsibilities for its activities. This is often bound together in a collective doctrine of self-determination.[11] The doctrine of self-determination is a normative principle that allows states to determine their own affairs. The birth of many older states occurred at a time when the nation-state was at its height. Consequently, strong traditions of independence and authority were bound up with the ideas of statehood. The creation of new boundaries for new states had to be asserted through identity and recognition of their legal status. This self-consciousness, recognising the state’s existence, is combined with self-determination and the right to negotiate the constitutional arrangements of the state itself. At the heart of the construction of the state lies the doctrine of legal sovereignty. Legal scholars often discuss sovereignty in preference to the state. Indeed, the United Kingdom claims a number of personifications of what it meant to be the state or nation. The Crown is often used[12] as the prerogative powers of the Executive to make Treaties, as well as the statement that it is Her Majesty’s Government or official opposition. This extends to her Majesty’s Judges and the Queen in Parliament, as strictly speaking the UK does not have a rigid separation of powers doctrine. Despite this symbolic unity, tensions have arisen between state sovereignty and the capacity of a state to be self-governing and act independently when subject to global forces including alignment such as NATO and global trade, defence, with influence from the World Trade Organisation, the North American Free Trade Area (NAFTA) and the European Union. The latter is the main focus of this paper in the context of Brexit. There are concerns that the state may lack the capacity to make decisions and may eventually lose its own autonomy. Responses vary to the problems of globalised forms of sovereignty. Technically it may be possible to withdraw from international agreements; this is often more complex than it may seem. It might be possible to recognise that sovereignty is no longer indivisible but may be shared and jointly held. There are reactions to these developments such as locating sovereignty[13] in a form of unitary populism that seeks to unite popular forces as a form of demos.

In the case of the United Kingdom, the seventeenth century is the appropriate starting point in tracing the evolution of the United Kingdom, as it is from this period that the state is composed of England, Wales, and Ireland.[14] The starting point is the nation-state, as this is an appropriate and fundamental concept that is recognised in both political science and law. Exact definitions are hard to find. A nation is the “people” or demos that underpins democracy. In some countries, sovereignty rests with the people, for example this is the case in Japan under the 1947 Japanese Constitution. In others authority is to be found in Parliament, such as in the United Kingdom. Thus, for all the exactitude expected of a simple term, there is no exact definition. Indeed, in its social construction the state is often contested. Allied to the nation-state is the highly normative concept of sovereignty with the implication that national governments and parliaments may govern. The Peace of Westphalia is often cited to suggest that national statehood was recognisable, but in fact there was alignment between national secular rule and the ecclesiastical. The French revolution popularised the idea of citizenship and gained popularity in the form of an undivided authority between the citizen and the state. The geography of a nation or state is used to define jurisdiction, authority and law. The Oxford historian Niall Fergusson lists a number of attributes that he ascribes to a British governed state namely, the English language, English forms of land tenure, Scottish and English banking, the common law, Protestantism, team sports, the limited or “night watchman state”, representative assemblies and the idea of liberty.[15]

Achieving Empire

“Pax Britannica” or belief that God conversed in English and the spread of English speaking in the world gave Britain a self-belief of its place in the world. One factor was the evident success of the public life and political culture that defined the United Kingdom and the British Empire. Added to that success was the role of law and constitution. The Cambridge historian David Cannadine places domestic institutions as one of the factors that contributed to Britain’s “greatness”:

The Westminster legislature was, with all its faults, drawbacks and limitations, to which the reformers and radicals often drew attention, a uniquely enduring institution of political authority, government legitimacy, popular sovereignty and national identity – in ways unmatched in Spain or France (where there were absolute monarchs, revolutions and republics), the United States (its democracy ruptured by civil war and attempted Southern secession), Austria-Hungary (both nations Parliaments only established on 1868), Italy or Germany (neither country unified until 1871), Japan (without a constitution before 1889), Russia (without a Dumas until 1905), and China (without a constitution before 1913).[16]

Unquestionably the “Westminster” model of government may be found today in many Commonwealth countries and constitutions that also share some of the attributes of a common law system.[17] Britain’s relative stability compared to other European governments with the continuity of its Parliament and politics, its belief in the rule of law and a sense of “fair play” and independent judiciary were attractive values to help establish the legitimacy of newly independent countries. Cannadine also attributes Britain’s stability and good fortune as due to “avoiding foreign invasion, enemy occupation and forced loss of lands”.[18] However good the institutions may have been, it was the acquisition of Empire that established and maintained Britain’s economic wealth and power. This was achieved during the eighteenth and early nineteenth centuries through a period of unprecedented good fortune and opportunism. In this period economic and military resources combined in the first truly industrialised country when Britain had few major rivals.

In 1750 Patrick Colquhoun’s Treatise of the Wealth, Power and Resources of the British Empire calculated that the population of Britain’s dominions had reached 12.5 million; even with the loss of America it was over 61 million by 1815. An estimated one fifth of the world’s inhabitants came under British authority, largely achieved through a successful use of military forces including the Royal Navy. The fall of Napoleon and the defeat of France removed any real threat to British dominance. The span of the British Empire extended from the northern waters of the Baltic, the North Sea and Atlantic Ocean to the Mediterranean, replacing Spanish, French and Venetian power in the West, and threatening the Ottoman supremacy in the East. The Persian Gulf was also overseen by naval power across the Indian Ocean and into the Red Sea. Pacific Ocean islands were also within Royal Naval reach.

Empire significantly contributed to free trade with global consequences. Niall Ferguson estimates that importance:

There would certainly not have been so much free trade between the 1840s and the 1930s had it not been for the British Empire. Relinquishing Britain’s colonies in the second half of the nineteenth century would have led to higher tariffs in their markets and perhaps other forms of trade discrimination.[19]

Economic order was not the only major contribution. Education and training[20] as well as law and literature gave Britain an important influence that is too often overlooked “soft power”. Reflecting on the legacy of Empire, it is possible to see the impact of Britain’s elite schools, universities, civil service, military and the parliamentary system of government as well as the spread of the English language. Taken together this is nation-state endowed with sovereign rights of its peoples.[21]

Empire was rapidly attained, but its loss was inevitable, as it proved to be unsustainable. Industrialisation and urbanisation of other countries soon challenged British invention and innovation. What kept Empire alive and became a lasting legacy was a form of jingoism, built on the victories of Trafalgar and Waterloo. This fuelled national consciousness and helped both to define the nation and extoll its virtues, both moral and civic. To this day it remains a powerful influence in defining the national polity. The two world wars, culminating in the realignment of power to the United States, created a new world order where Britain had a voice but no more the final say. David Cannadine admits that the surprise was not in the loss of Empire but that it survived for so long:

This meant that for a relatively brief span of time a relatively small European nation came to wield an influence over the affairs and the peoples of the world out of all proportion to its size, population and resources. But once other countries caught up economically, and once aggressive nationalism asserted or reasserted itself in many parts of the world, the writing was on the wall for Britain as a global hegemon.[22]

As we shall see, the influence of nationalism[23] defined relations within the UK and dominated the concept of an indivisible sovereign Parliament at Westminster. This continues to influence the United Kingdom in its present-day configuration. It wrestles with the contradiction of a liberal society and the populism of patriotism. Making a country great is often at the expense of other countries and citizens. Populism may encourage allegiance and patriotic support but it may also erase the rights of minorities and be manipulated for popular causes and ideologies.

Nationalism as a means of articulating sovereignty – the UK example

The United Kingdom[24] has a long history that defines the four nations that it comprises, England, Wales, N. Ireland and Scotland. As a unitary state the United Kingdom opposed federalism because it feared that federalism might dilute allegiance to the state and upset a unitary form of Parliamentary power. This rested on a juridical form of unitary state defined by the Union. Indivisible sovereignty, as it can be called, gained acceptance and avoided any diminution of powers from UK’s Parliament.[25] Defining the Union[26] began when James VI of Scotland became James I of England on the death of Elizabeth in 1603. Unifying the Crown made good practical and economic sense as well as causing a strategic alliance based on the same language with similar religion and culture. The ambition of Union was not as easily realised as first thought and questions over national identity and how power might be best identified were revealed. The Union stood for many things: A unified Parliament that required equal representation; separate Parliaments might be needed to reflect national identity; autonomy within borders might recognise national sovereignty but also distinct legal traditions and rules.

Opposition to any form of federalism[27] or written constitution helped define the union state, which has remained virtually intact. The option of a federal system for the four nations was strongly opposed and this opposition was underpinned by a defence of an indivisible sovereignty. Federal, however, lacked a precise meaning. It was ambiguously worded to suggest a loose covenant or compact between nations and not a legally binding constitutional structure with legal powers.[28] The vagueness of any union might also have been deliberate as pragmatic necessity dominated any theoretical influence. The Cromwellian period did not bring clarity, rather a workable military administration for England, Wales, Scotland and Ireland. The debate between a federal or incorporated union emerged but with divided opinions: Scotland preferred a federal structure and England an incorporated one. The precise detail of each was never clearly articulated. Pamphleteers and propagandists focused on arguments that accentuated their cause. The 1688 settlement of the sovereignty of the English Parliament at Westminster threatened any ambition for Scotland to realise its own destiny through their own autonomous Parliament. The debate on the form the union would take was constrained by issues such as free trade and commerce, largely ignoring national aspirations in Scotland.

The eighteenth century further consolidated the Union. English power was London-based and English regionalism was highly dispersed and lacked economic cohesion so could not forge its own identity to rival London. Wales was successfully incorporated into the English state and from the Act of Union 1707, Scotland’s identity was submerged into the state of the British Isles. The economic and political stability engendered was seen in preference to European instability and uncertainty of the time. At the end of the eighteenth century, strong and independent colonies raised the question of the extent to which a single concept of sovereignty was compatible with what many colonists saw was a divided sovereignty between colony and the sovereign power. What was at stake at the heart of colonialism was not easily reconcilable. However, achieving close contact with the mother country and autonomy at the level of colonial government was attainable. Federalism in different forms began to be debated as an answer to a colonial world. The US constitution in the 1780s showed what was possible – the sovereignty of the people and the division of sovereignty at federal and state level. American federalism became a model for future discussions of federalism, but this was outside Britain’s influence. Perhaps the adoption of a written constitution proved decisive and off-putting to the English pragmatic approach to government. While many commentators such as John Locke had been influential in America, intellectual debate in Britain or even commentary was largely absent. Significantly, there was a strong reaction against the French Revolution and English Jacobinism formed into what Boyd Hilton defined as an age of atonement. This was a period of fusion between religious and economic thinking that formed an intellectual core defined in many evangelical causes. Anglicanism was strong in certain parts of the country notably south of England and the Midlands. Outside these areas, such as the North of England, Scotland and Wales and the Welsh borders, it was weakest. In areas of population growth there had been a spread of nonconformists, predominantly Methodists, persuaded by chapel on Sunday and Sunday Schools. It is estimated that over 2.5 million followed Methodism, that thrived under the intense pressure of industrialisation and urbanisation.[29]

Events in Britain moved rapidly with the Act of Union with Ireland in 1800 favouring strong centralization of the state and a London model of government that formed the basis of British rule in Ireland by Dublin Castle. Many writers in the UK, perfectly aware of the federal nature of constitutional building, were tied to the union and an indivisible form of sovereignty, and did not adopt a federal model for the way forward. In fact, an incorporating union under an indivisible sovereign Parliament proved sustainable; a divided sovereignty under a federal union unattractive. Dicey and Freeman[30] were particularly resistant to any adoption of a federal model for the UK and objected to any form of divided powers and, in their minds, a weakening of unitary sovereignty. Objections to federalism came in detailed polemical treatises from Dicey who became preoccupied with and against Irish Home Rule. Dicey, influenced by the American version of federalism, reasoned that federalism represented a weaker form of government than a unitary state.[31] He devoted an entire chapter in Law of the Constitution[32] to arguing against federalism and was condemnatory of attempts by 1911 to address Irish Home Rule through a federal construction of an Imperial Parliament.[33] He raised problems such as the complexity of arrangements for the division of state powers between the regions, the problems of financial arrangements and also concerns that friction between the different parts of the federal arrangement would generally weaken the United Kingdom. Each region, also, was developing at its own pace so it was difficult to ensure economic alignment.[34] The main response to such difficulties was to argue for a greater centralisation of the state under the banner of a sovereign Parliament so that change might be accommodated but equally more easily controlled or at least risk from nationalistic tendencies.[35]

The long running debate over Irish Home Rule, which divided opinion, tended to distract from any mainstream debate on federalism. Vast amounts of Parliamentary time were spent on the subject of how to govern Ireland. The debates were not helped by the fact that versions of federalism were confused with devolution or local government. The absence of any uniformity in approach to federalism made the arguments in favour hard to discern. Politically federalism had no single party support and this further exacerbated the absence of clarity and coherence.

The Government of Ireland Act 1920 was an attempt to secure the Union but at the same time find a way to manage nationalist expectation. It was not federalism but devolution – a fudge that enabled sovereignty to be preserved but, at the same time, powers granted to the Northern Ireland Parliament enabled a fully functional government. The 1920 Act was modelled on the British North American Act, although little was made of this connection by the politics of the time. Constitutional reality and legal interpretation of the 1920 Act became apparent in making the governing of Northern Ireland a reality. Acknowledgement that Northern Ireland was a subordinate legislature and therefore the sovereignty of the UK Parliament was upheld, left little guidance on how to interpret the width and breadth of powers devolved to the Northern Ireland Parliament. The solution according to Lord Denning was to uphold the legality of government powers unless there was “proof of abuse of power, if not of bad faith”.[36] Following this presumption of legality brought the UK and Northern Ireland courts into close alignment with the case law of Canada and the USA in terms of doctrines and interpretations.[37]

Interest in Federalism emerged from South Africa, and Canada through various study groups and informal organisations. Ironically what was rejected as unsuitable for the United Kingdom was perfectly acceptable for colonial arrangements separated from the geography of Britain. As early as the 1830s and 1840s ideas about federalism were adopted, culminating in the 1860s in the British North America Act. The result was to unite Nova Scotia, New Brunswick, Quebec and Ontario. Additional provinces were added: Manitoba (1870), British Columbia (1871) and Prince Edward Island (1873). This model of federation set the scene for the future. There was support for some form of Imperial Federalism emerging in the UK, illustrated by the commonwealth of Australia 1901, and the four South African colonies in the Union of South Africa in 1910. The Round Table Movement was formed in 1910 out of interested groups throughout the dominions. The Movement was aimed to advance the cause of federalism. The benefits of federalism remained convincing for many wishing to maintain a link with the United Kingdom. The influential members of the group extended their debate through English statesmen.[38] However, the primary aim of the Movement was the maintenance of the organic union of the Empire. This proved to give the movement insufficient cohesion and this left the interpretation of federalism to mean different ideas to different people.

There were so many diverse examples of federalism such as in Brazil and Yugoslavia and the West German Federation. Many African[39] countries found a federal solution attractive as a unitary state was unsuitable to represent different ethnic groups. Its strength was the flexibility it offered of dividing powers and recognising the power of self-government to advance good standards of living, while ensuring appropriate controls that reflected the size of small territories. The formation of a Commonwealth was achievable through the “creation of small political entities, technically independent, but in reality, isolated and feeble” through new principles and methods of association and integration.[40] Federalism in a colonial setting did not advance the cause of federalism within the United Kingdom. The sharing of sovereignty in the colonies helped to reinforce the authority and influence of the UK. In a domestic setting it meant the opposite, a diminution of British authority and a violation of the inviolable nature of legal sovereignty. N. Ireland, the only experience of domestic sharing of powers, became mired in the religious and sectarian conflict that dominated its politics from the 1970s, hardly offered a lesson of quasi-federal power that might be emulated elsewhere. It was also inextricably tied up with competing unionist and nationalist claims over the legitimacy of the state.

National identity and immigration policy

National identity is one of the most prominent influences when it comes to immigration policy and its application. In the case of the UK it is most revealing of how the state defines itself and its relationship with other nations. UK Immigration is partly a reflection of its colonial past and its geographical position, but also of its intense interest in defining “Britishness” and Empire.[41] The latter helps to explain Britain’s historic legacy, ambitions about the future and attitudes to other countries, as well as its self-centred notion of its own superiority. This may be a product of education and travel as much as military ambition and relations with other nations when it governed a “quarter of the world’s population”.[42] In sharp contrast, “alien” expresses the sense of being an outsider as a means of exclusion for people that do not belong. It defines national identity as well as the targeting of the “undesirable”. Ana Aliverti, a legal academic specialising in criminal law and the regulation of immigration,[43] explains the main underlying principles of the immigration system. Aliverti begins her analysis by considering the historical background to immigration controls, including the use of the criminal law. Aliverti’s analysis may be summarised in this section of the paper as follows: One of the first responses to an influx of French emigres from the French revolution and subsequent “terror” was the Aliens Act 1793, allowing executive expulsion of foreigners and their exclusion during peace time. Sanctions were also applied to ensure compliance with the regulation of entry and residence in the country. The 1793 Act was controversial and extended until 1826, when it was repealed, but it enabled the criminalisation of the status of alien in a way that set a pattern for future attitudes to immigration and asylum-seeking that remains today. The justification for such wide use of executive powers, subject to little accountability or scrutiny, was in the national interest and the protection of the state. Linking criminal acts with the protection of nationality helped define nation status as well as relations with outsiders.[44] A series of successive Aliens Acts followed in 1814, 1826 and 1848. The latter included “forced removal” of aliens, if necessary for peace and tranquillity. The nineteenth century was a period where fundamental attitudes as well as laws were being shaped. Not all laws were enforced and at times attitudes to foreigners changed according to economic circumstances. Examples of reacting to foreign policy changes abound. Restrictions on foreign arrival and settlement were introduced under the Aliens Act 1905 with concurrent criminal penalties for unauthorized landing or immigration. Administrative controls operated along a twin track of criminal penalties, including detection and investigation. The rationale for such an approach came from diverse justifications including housing, employment, and competition for scarce skilled jobs.[45] As Aliverti points out, public services and their application to foreigners provided another justification for the jurisdiction of the state. Contravention of landing obligations was set in high moral language under the designation “rogue and vagabond” and the penalty for such infraction was harsh.[46]

Regulatory responses were part of the many administrative devices employed. An Aliens Inspectorate was established and scrutiny of inbound passengers in ships was undertaken, although with mixed effectiveness. Liability extended to the Masters of Ships if they failed to check on passengers, and included the cost of repatriation. The use of permits became common during the First World War under the Aliens Restriction Act 1914. This provided powers to the Home Secretary to control the movements of foreigners and deportation when they were regarded as posing a risk. The justification came from the war time period and the 1914 Act was continually extended to include detention powers for those denied entry. The 1953 Aliens Order introduced work permits for foreigners wishing to work in Britain. The continued use of criminal sanctions was accompanied by tougher controls over immigration status and its regulation. There were limited rights of appeal and refusal of entry and deportation were subject to little oversight. This largely remained the case until the Immigration Act 1971.

Defining what is a citizen or how a citizen should be treated was not easily achieved or understood. British citizenship was not a precise legal category and it often depended on the period of time and the context in which it was used. The 1834 Aliens Act introduced an administrative system of naturalisation overseen by the Home Office. It replaced the use of individual Parliamentary petition and the use of private Acts of Parliament. In 1870 the Naturalisation Act streamlined the application process and attempted to rationalise distinction between naturalised citizens and ordinary citizens. This pragmatic approach mainly reflected employment needs and economic factors.[47] It was largely opportunistic, varying with changes in Europe and attitudes, which ranged from indifference to major moral panics. German immigrants in the period 1905 to 1910 led to anti-German feelings and anguish; about 150,000 Jewish immigrants from 1881-1914 led to similar reactions. Concerns about the residence of foreigners in Britain as well as those who wished to enter were met by a dual-use system of poor law relief based on residence qualifications and immigration controls based on employment through work permits. This approach was typical of an inconsistent approach to nationality, largely determined by economics and political expediency. Attitudes to commonwealth citizens, whose entry was largely uncontrolled, is an example of this in practice. In the 1950s as numbers steadily increased, their status as British subjects had to be modified to take account of the concerns about their entry. This is indicative of a shifting alignment between national self-interest and pre-existing status. Citizens of the British Empire and Great Britain were entitled to British citizenship. As many colonial countries became independent, they sought to identify as citizens of their independent country. The British Nationality Act 1948 created a new category of citizens of the United Kingdom and Colonies, without altering the previous entitlement to British citizenship. The justification for this pragmatic and possible liberal attitude to migration status of many commonwealth citizens was the need, after the Second World War, to find new workers to rebuild Britain. Immigration had also seen many Irish come to Britain to rebuild houses and roads devastated by the war. New Commonwealth countries willingly encouraged migration to Britain. The West Indies, India and the subcontinent became a ready source of employees, ranging from semi-skilled to skilled workers. By 1971 the numbers had tripled from the ten years previously to 1.2 million. The size of immigration as well as the extent to which such newly formed communities harmonised with British society was a cause of concern and dissatisfaction. Party political considerations became uppermost in the 1950s, especially when the rights of Commonwealth citizens could be identified, adjusted and changed to meet new economic and changing political circumstances.

One example that has come to light in recent months is the SS Empire Windrush which arrived over 70 years ago with large numbers of passengers from the Caribbean, often without documentation or accreditation but accepted at that time for the welcome solution to an acute labour shortage. The Immigration Act 1971 gave foreign nationals, ordinarily resident in the UK on 1st January 1973, indefinite leave to remain. Regrettably many Windrush migrants were not given the rights that they were entitled to and under a recent new “hostile environment” policy found themselves subject to deportation and deprived of their rights to work or receive social security benefits.[48] This is subject to a compensation scheme, set up in March 2019, to restore the rights of those that were so wrongly treated and deprived of their right to work or residence in the UK.[49]

Aliverti[50] shows how various proposals were made in the 1960s to tackle the immigration problem. Controlling number became a political game of throwing the dice to see what might work or not. There was little consensus in Parliament and public opinion was often ill informed and easily manipulated by the popular press. Uppermost was the concern that social cohesion would be lost in Britain and racial issues became dominant in housing and employment. Economic problems resulted in a downturn in the job market and this increased the pressure on immigration controls. Immigration, seen as a positive achievement, became an ever-present threat to the stability of the UK. The Commonwealth Immigrants Act 1962 and 1968 introduced immigration controls to British Subjects (except those born in the UK or with UK Passports) and restricted the right to entry and settlement to certain British subjects. This did not alter citizenship; it simply restricted what citizenship might mean for many Commonwealth nationals. This created a two-tier system of citizenship which had dangerous overtones of what was at stake – namely country or origin. Commonwealth citizens were subject to controls over employment and some who were convicted of criminal offences could be deported. Illegal entry was subject to criminal penalties and this extended to those that assisted or harboured illegal entry. Many of the changes masked a disturbing disregard of what it was to be “British” with suspicions raised by the ethnicity of the person rather than any concept of equality or equal treatment.

As Aliverti has explained,[51] once the boundary was passed of rejecting common rights and a single concept of British Citizenship in favour of differential rights, it was inevitable that governments might be persuaded to target certain commonwealth countries where immigration was expected to rise. The Commonwealth Immigrants Act 1968 was passed to address the problems of immigration from Kenya, Uganda and Tanzania. While recognising British citizenship of British Asians from Africa, it qualified their right to settlement and despite the issuing of British passports by authorities in their country of origin, they were no longer exempt from immigration controls. The only exception was that at least one of their parents or grandparents was born, adopted or naturalised as a British citizen in the UK. Miscellaneous offences proliferated such as landing at the port of entry and not being subject to proper examination by an immigration officer. The period of such examination could be up to 28 days – a form of detention pending decision – allowing time to investigate each case. Deterrence was also employed as a means of putting off any immigrant in the first place. It also allowed deportation as a means of control. Immigration authorities enjoyed wide discretion with few judicial checks or balances on their decisions.

Recognising that citizenship and national identity were not the same, the Immigration Act 1971 went further to produce an administrative system for immigration control. Its main aim was to create a single-tier system of control equating non-nationals and Commonwealth citizens as the same. The latter retained their British status, but their immigration rights were highly restricted. Only those with British parents or grandparents and those who had been “ordinarily resident for five years” before the entry into force of the Act could claim the right of abode and thus could be granted indefinite leave to enter and remain. The consequences were clear for all to see; not only were there foreigners but non-white Commonwealth citizens struggled to gain the right to abode given the requirements of the Act. Their position was further undermined as the entry of the UK into the European Community (now European Union), allowed the potential of free entry to EU citizens that was preferential to Commonwealth “British” Citizens. The British Nationality Act 1981 was an inevitable consequence, namely the single concept of British citizenship applied to only those born from British parents, or grandparents or who were naturalised. Thus only this category of British citizen enjoyed the rights of right to remain, live and employment. All non-British citizens were subject to immigration laws and subject to tight regulatory controls and conditions, including visas and potential criminal law sanctions. So for example the Immigration Act 1988 penalised any visa overstayers and any breaches of their conditions of leave were severely penalised.[52]

Setting boundaries on entry through citizenship controls is only one aspect of the discussion on defining sovereignty and territory. One outcome is that controls are moved away from administrative officials to the private sector and individuals. The Immigration (Carrier Liability) Act 1987 imposes liability on ships, aircrafts that transport passengers to check on their travel documents and visas. Such controls applied widely to anyone who assisted any person, including airline officials an illegal immigrant. Ensuring visa conditions and the right to work are handed to employers to check that there is compliance, subject to criminal sanctions where appropriate.

As Aliverti has pointed out,[53] merging categories of wrongdoing also addressed a further concern – namely that the category of illegal immigrants might also be applied to asylum seekers when it was appropriate to do so. The latter was often poorly understood by the public and the number of asylum seekers increased as a proportion of immigrants as a result of the end of the cold war and the movement of people out of the former Communist countries, many who were fearful of remaining. It was convenient to place together the categories of immigrant and asylum seeking in the Asylum and Immigration Appeals Act 1993 and the Asylum and Immigration Act 1996. The latter reduced housing allowances and increased the powers of immigration officers to arrest and search. Criminal powers, having been extended, left little opportunity to disaggregate the economic and social from the political problems of each applicant. In sharp contrast the approach to non-European immigration, immigration within the EU was largely laissez faire, although the UK opted out of the Schengen arrangements,[54] preferring to maintain borders between EU countries and the UK. The operation of criminal controls is remarkable as is the spread of criminal approaches evident in the European Union and in other countries.

The sense of boundaries of the nation are often believed to be a fortress of protection that is reinforced by another factor, namely the use of denaturalization powers, applicable to those that are deemed unsuitable to remain within its borders. The powers to revoke naturalization status were established in the United States under the Naturalization Act 1906 and similar enactments in France in 1915 and 1927. The United Kingdom adopted the Nationality and Status of Aliens Act in 1914 and 1918. The powers of denaturalization have been retained, although they are not frequently used.[55] The Home Secretary may revoke citizenship, often as a response to public concerns about perceived threats to society. It is also aimed at foreign-born residents at times of enhanced concerns about security and public safety. During the 1914 and 1918 war time period, more than 32,000 Germans, Austrian and Hungarians were interned in Britain. Following the end of the war, a large number of deportations took place reducing the German population by a sizeable amount. This was encouraged by newspaper and media campaigns. The operation of the legislation mirrored changes in immigration law and practice, especially as we have seen over the definition of citizenship and the rights that might accrue. One check on the use of such powers was the operation of a Judicial Committee to oversee the working of the legislation. The Judicial Committee was independent of the Government and presided over by a judge who had attained judicial office. The Committee’s recommendations were technically advisory but they proved to be very influential with the Home Secretary of the day. The British Nationality Act 1918 allowed the Committee extended powers of review and oversight with the composition of the Committee of senior judges giving it weight and authority. The British Nationality Act 1948 further entrenched the work of the Committee and allowed it to continue to provide authoritative accounts of the law and its practical application to applicants. Due largely to the Committee’s actions the worst excesses were avoided and despite the breadth of powers of denaturalisation including disloyalty, the use of such powers decreased and was limited. In 1961 Britain signed the United Nations Convention on the reduction of Statelessness and made amendments to the 1948 Act to repeal the provision of a criminal conviction and in 1981 the system was strengthened under section 40 of the British Nationality Act 1981. This brought the various types of British Citizenship under the same category of being capable to being deprived. The Nationality, Immigration and Asylum Act 2002 extended the powers of deprivation to British citizenship by birth. This represented an extension of power, not a reduction, as the Home Secretary’s powers included denaturalisation where there was evidence of fraud or false representation or where there was concealment of material fact. In addition there were grounds where it was shown that the Secretary of State believed there was a determination that the revocation of citizenship was conducive to the public good. The 2002 Act extended such powers to apply to native-born British as well as to nationalised citizens. In 2014 this was further strengthened to include a power to revoke citizenship where “the person has done anything prejudicial to the vital interests of the UK or its overseas territories”. Significantly the old Committee system was replaced by the Special Immigration Appeals Commission, which was given controversial powers to hold hearings in secret and the use of Closed Material Procedures involving only defence lawyers appointed for the purpose and not the accused’s own selected lawyer. The changes have been transformative. Between 2006 and 2016, 81 decisions had been made involving 373 individual Britons, who have had their citizenship removed, with very few successful appeals. One of the largest removals was in 2013 due to British citizens travelling to fight in Syria.

A further consideration, underlying the sovereign role of the State, is the use of the prerogative powers for passport applications and the award of a passport. In April 2013 the government embarked on a policy of removing passports and this was undertaken in part through the use of the Royal Prerogative. There is no right to a passport, and section 147 and Schedule 8 of the Anti-Social Behaviour, Crime and Policing Act 2014 allows the state-wide powers to search and retain passports or other travel documents. The use of such powers is at the discretion of the Home Secretary and not dependant on any state of emergency or anti-terror legislation.[56] There are rights of appeal, but the consequences of having citizenship removed and a passport withdrawn are considerable. There is loss of the right of abode, the possible risk of deportation or exclusion and the possibility of immigration detention. This has implications in the external effect on the interests of other states and also touches on the UK’s international obligations.[57]

Denaturalisation and the removal of passports represent some of the most significant ways to define a state and the rights of those citizens that are entitled to remain within its boundaries. Tensions emerge between protecting rights and popular causes. Invariably, moral panics that escalate into political issues are easily created through public pressure, media attention and high-profile cases. This has dangers for evidence-based policymaking and exerts pressure on ministerial powers to apply legal authority with a broad discretion, largely immune from challenge.

Brexit and the Nation-state[58]

One of the claims made to justify leaving the EU was the need to assert and bring back “control”.[59] The implications are clear that EU membership had put at risk the UK as a nation-state, undermined its sovereignty and impacted on the day-to-day life of many citizens, leaving them less free and able to make decisions on their own behalf. Underpinning these claims was the accusation that the “elite” in society had conspired to exploit the underprivileged and weaker members of society. Underpinning many of the concerns about the EU is the question of immigration and its control. Paradoxically, the perception of “hordes” of EU migrants is not supported by the actual figures, provided by the House of Commons Library. The origin of migrants coming into the UK in 2017 was 13% were British Nationals, 38% nationals of other EU Countries and 50% were nationals of other non-EU countries. More significantly, it means that at least 50% of all migrants were subject to immigration controls.[60] Perceptions appear to matter more than reality and in many crucial areas of the Brexit decision, communities believed that they were being over crowded by unwanted and uncontrollable EU citizens. Job insecurity and poverty relative to the wealth of many southern towns and cities reiterated the sense of being forgotten and overlooked. There are additional reasons for concern about immigrants. The influential Institute for Fiscal Studies has shown that in the UK, between 1981 and 2006, there are gaps between immigrant and native employment. A key finding is that “Immigrants from Africa, Asia and the Middle East, Central and Southern America and the A10 countries in the main suffer larger employment and earnings penalties, which are reduced as their length of stay increases”.[61] Disparities often lead to conflict and economic well being easily encourages animosity from the less well off.

An illustration of some of the forthcoming problems is the impact on the rights of EU residents in Britain after Brexit. In June 2017 the UK government made clear that residence under the existing EU directive 2004/38/EC would have to be adopted to fit into a new category of “settled status”. Providing evidence of what is “settled status” may appear relatively easy for those that can show regular employment over five years. However, complicated employment histories will find it easy to fall though the gaps. Childcare responsibilities for example will be hard to fill and many women will be vulnerable, especially if looking after relatives or disabled members of their family. Part-time or casual workers will also face problems in providing evidence. There are related issues covering record keeping and covering temporary gaps that need to be explained. Applications are online and require a degree of IT skills that may not be easy for the disabled or for those that do not have access to a computer. The poorest and those with a criminal record or a fear of officials or the state will struggle to recognise the system or even wish to be part of an official process. Children have no rights and few economic records of employment to support their claims. The history of the right to reside is riddled with examples where children do not gain any entitlement. There are also problems with parental status and links with parents might not exist or be easily established.

There are also problems of definition over the meaning of work, continuity and self-sufficiency that require to be addressed in the application process. Aside from the technical language, the decision-making process is hard to understand and will be burdened with many cases. This will mean that there are likely to be mistakes and it will be hard for applicants to collate the paperwork and provide an adequate explanation for any inadequacies. Also troubling is the category of EU citizen who has been in the UK for less than five years and is the category of “pre-settled” status. This is unclear in terms of how such citizens may be treated. There are also many uncertainties arising from social security payments and entitlements.[62]

Making sense of the constitutional crisis that the UK is facing over Brexit is not easy.[63] Despite the passage of time, a binary choice of leave or remain offered at the referendum in 2016 has not, to date, resulted in clarifying the kind of relationship the UK might have with the EU after Brexit that will be acceptable to the UK Parliament. It will be remembered that the referendum in 2016 was won by a narrow majority, 51.89% to 48.11%. The differences in preferences in each devolved nation highlight the significance of devolution and the existence of a wide spectrum of opinion across the United Kingdom. The referendum also underpinned the primacy of England, the largest of the four nations, and the UK’s national sovereignty. Brexiters championed their cause as “taking back control”, with echoes of a re-affirmation of an old pre-colonial form of sovereignty. Remainers were branded as an elite and “enemies of the people”. Evidence from economists and lawyers on the technical and legal aspects and economics of EU membership was highly contested, subjected to ridicule and often treated as partisan and unreliable. Conspiracies were rumoured to exist between different “elites” in society against the popular vote of ordinary people. Characterising the debate about EU membership in such terms has not facilitated interpreting the results of the referendum. It has also shown the difficulty for MPs, who serve their own electorate and constituency, to interpret the referendum result and give it effect in the kind of future relationship between the UK and the EU that is legally possible. Currently views are polarised as to the kind of leaving the EU that is in the national interest. The paradox is that membership of the Customs Union and the Single Market is sought by some, even though the UK is leaving the EU. The current Withdrawal Agreement is unpopular and rejected by MPs and there are even some who support leaving the EU with no agreement whatsoever. The rancour and distrust has reached new levels of unedifying behaviour around Westminster. There are serious difficulties of accommodating arrangements with N. Ireland and Ireland in terms of upholding a “frictionless border”, that is an inherent part of the Withdrawal Agreement.

The economic context is important to consider. Many economists warn of the dangers of leaving the EU without a credible withdrawal agreement, at the very least because of the many uncertainties that arise. Calculating the economic and social implications is proving difficult, because the future trading relationship with the EU is uncertain, as will be the ability of the UK to enter into trade agreements within the WTO framework.[64] The context of UK productivity performance being stubbornly weak over the past years further complicates analysis. As Nick Crafts comments: “Areas of concern include underspending on infrastructure, a badly designed tax system, very restrictive land-use planning rules, schools that deliver low-quality education and innovation policies that result in low levels of R and D”.[65] Reforming existing policies was always within the terms of the current EU membership but it is unclear how reform might be accommodated once the UK leaves the EU. This will depend on the future relationship with the EU and at the time of writing this is hard to assess. It is clear that this will be complicated and probably involve the forging of industrial policy through an independent agency rather than for the government of the day to attempt this within the scale of a five-year Parliament.

As The Economist laments before Brexit, “Britain had a reputation not just for pragmatism but for sound administration and a predictably sensible legislature”.[66] This does not appear to be the case anymore. Conflict between the referendum results and elected politicians has the potential to destroy political party unity and also political consensus. The dangers are clearly apparent. The fragility of a long-standing belief in Parliamentary democracy and the rule of law are being exposed for all to see, as both are vulnerable to popular ideology and the strength of media hype and populism. Evidence-based policy making has given way to over-simplistic sound bites and populism. Binary choices made at a single moment in time are not easy to implement when the arguments are so complex and related to a myriad of variables that suggest the necessity of a continuing engagement with policy making and a pragmatic approach for future planning.

Politically there is growing evidence that the party system is in danger of collapse or, at the very least, having to be re-booted to take account of new allegiances and discourse. There are dire warnings that the Conservative Party, as the government of the day, will haemorrhage support and may even decline. The Labour party as the main opposition party is similarly fractured. More worrying still are the signs that the constitutional framework of the UK is not in union with Scotland and N. Ireland (who voted to remain); in particular, they may pull away from union with England as disillusionment over the Brexit process intensifies.

A weak Executive has had, however, to give way to a growing restiveness in Parliament. A number of amendments were made to the EU (Withdrawal) Act 2018, most notably requiring a “meaningful vote” in Parliament on the Withdrawal Agreement. The House of Commons rejected the Withdrawal Agreement on 15th January 2019, the cornerstone of Government policy, by an unprecedented 432 votes to 202, after five days of intense debate. Many MPs in the Government’s own party voted against the Withdrawal Agreement and the vote against curiously united both pro Brexit and remain MPs and left the Prime Minister in considerable difficulties as to how to proceed – not least of how to leave the EU with an acceptable arrangement that will pass Parliamentary scrutiny. The PM did not resign, a normal conventional response to such a defeat. Instead, her government won a vote of confidence the next day when Conservative MPs and Democratic Unionists united to keep the Government in Office. There are a number of constitutional implications that flow from the UK’s Brexit experience, most of them difficult to accept and hard to reconcile with the current debates and assertions over Brexit.

The UK’s unwritten constitution is not adept at handling a referendum victory for one side while the majority of MPs are in favour of the side that lost. Re-running a close referendum result is not unpalatable in written constitutions, such as Switzerland or Ireland and where the government of the day may respond within the constitutional arrangements and re-run a result it is unhappy with. However, in the UK, there is little experience of this. The underlying problem is that leaving the EU is more complex and technical than at first thought and public opinion was easily garnered towards an outcome that was not well explained or understood, as to the potential economic consequences. Simplification of what EU membership entails was not well communicated as was the full consequences of leaving or the procedures that might entail. The process of leaving the EU was represented as a single event and moment, whereas in reality it is a continuous process that will take many years and involve difficult legislation to pass and interpret.

The major problem for MPs is that the tradition of MPs elected by their constituents to make decisions on their behalf is at odds with the referendum outcome where the voters claim strong “democratic” credentials and a higher order of authority over MPs. The reality is more complicated. The UK’s sovereign parliament is vested in the MPs in the Commons and Peers in the Lords. The referendum result is legally only advisory, and at odds with many MPs views. It is possible for MPs and electors to be reconciled, but this has yet to be seriously attempted. The consequences of such a rift are likely to resonate for years to come, even after the Brexit issue is resolved.

There are also some worrying aspects of how the Brexit legislation, the EU (Withdrawal) Act 2018, has resulted in increasing delegated powers to the government of the day. This extension of powers to allow Ministers to amend primary legislation through the use of ministerial powers is alarming because it has the potential to give unfettered powers to the Executive. The House of Lords Select Committee on the Constitution warned about the departure from the normal progression of legislative scrutiny to “lighter-touch processes of secondary legislation, other than in exceptional circumstances”.[67] The Select Committee also identified other trends such as the use of skeleton Bills which contain widely defined delegated power in the absence of any substantive policy. This has a bad effect on the role of Parliamentary scrutiny. More generally there is concern about some short-circuiting the normal way Bills are drafted. Instead of containing the main details and substantive clauses setting out what the Bill hopes to achieve, there is a tendency for the Bill to give only general principles and little detail. This may not facilitate the scrutiny such Bills deserve and may leave the details to be addressed through secondary legislation. The outcome is to give the Executive too much power over the law with little transparency or detail revealed in the actual legislation.

What is the way ahead? Political choices include the option of a general election or a new referendum. There is much unease about the possibility of a no-deal Brexit with considerable uncertainty and market volatility at risk. Delaying Article 50 is another option, but this requires all the Member States to agree and there are pending May elections for MEPs to the EU Parliament that has to be considered. This may mean that the UK has to elect new MEPs, a great irony as it is about to leave the EU. An easier possibility is to revoke Article 50; according to the European Court of Justice this can be done unilaterally by the UK but it would require Parliamentary approval.

Parliamentary options include MPs taking an active and hitherto unprecedented step of controlling the Business of the House of Commons away from the choices determined exclusively by the Government. There is also the possibility of holding free votes on various options that might encourage MPs to select the one that is most likely to command the widest possible support. Negotiating any new Withdrawal Agreement will take time and seems unlikely in the period up to 23rd May 2019, with the need for a longer extension.

The constitutional reform debate has also been re-ignited by Brexit. One possibility is to take the opportunity of dissatisfaction over Brexit to reform Parliamentary procedures and/or to consider the merits of a written constitution. The latter is advanced as a means of clarifying the role and function of each element – the legislature, the executive and the judiciary.[68] This is a highly ambitious project and is likely to excite controversy as the interpretation of a written constitution is likely to require judicial oversight. This is highly problematical for many who see that judicial power is in the form of an unelected verdict on matters that are best resolved by the politics of the day and the choices of an elected Government. It is hard to see how a written constitution will address many of the issues specifically raised by Brexit, that is about policy choices and their implementation.

It is easy to describe the UK as having a “Constitutional moment” or even to characterise events in terms of a “crisis”. It is possible to look historically and see parallels with the Corn Laws, Irish Home Rule, and votes for women. No matter how strong are the historical parallels, there is little doubt that in recent times Brexit has set new boundaries for debate and discussion. In essence, the question is how do MPs serve their constituents and electorate while at the same time take forward the outcome of a referendum? That answer may not be easy to find within the existing UK constitutional arrangements.

There is, however, a more troubling problem. Negotiations to date between the UK and the EU have exposed an underlying problem about British identity. Robin Renwick,[69] a UK retired career diplomat, observes how UK negotiations have not showcased the UK at its best. This may highlight an underlying problem arising from differences between common law and civil law traditions, education and training. It may underline problems when there is a degree of cultural isolation, built on a strong national identity.

Nation and Nationalism: Some current issues and dilemmas

Having knowledge and certainty over ones identity through citizenship is an essential part of allegiance to the State. We have seen that the UK has been astute in defining and at times re-calibrating the status and rights of its citizens. The acquisition of a large Empire in the 18th and 19th centuries gave rise to an almost simultaneous effort to dismantle the Empire and recalibrate recently acquired relationships. Yet the set of immigration and asylum controls in place had elements of racial and ethnic identity that sat uncomfortably with public opinion and community values. Driven by many moral panics about “swarms” and “invasions”, the categorisation of aliens and foreigners as unfriendly and a real and present threat has driven policy making over decades. By the same reasoning responsibility for poor education, overcrowding and insufficiency in employment opportunities as well as crime stigmatised foreigners and made them “enemies” from within who abused hospitality, claimed and defrauded the welfare system, especially when cultural differences were laid bare. Differences in religion and culture were easily exploited to create fear and prejudice. Underpinning much of the immigration and asylum system was the ever-present use of the criminal law that reinforced punishment, retribution and deterrence. Political life in Britain found the art of defining Britishness was often easier in terms of what it was not and who it opposed or what it regarded as unwelcome. This became as an attractive and ultimately convincing narrative and as compelling as any sense of belonging or historical identity, because it attested to the superiority of natural-born British citizens. This remains so today and, if anything, has been reinforced by the referendum on Brexit. Britain’s immigration laws fashioned and directed against outsiders – aliens, immigrants, foreigners – gained purchase as an effective way to define the benefits of membership of the UK rather than as rights to be enjoyed by everyone. The restrictive use of immigration rules and procedures has found it hard to cope with human trafficking, or asylum seekers who may unwittingly be caught up in the single formula of outsiders and therefore be unwelcome. Fairness too easily gives way to the need for efficiency and the continued pressure to “reduce immigration” that is poorly supported by evidenced-based policy making. The shadow of illegality is sufficiently powerful to conceal legitimate claims and rights as with the example of the Windrush generation, wrongly deported in some cases, with little voice and few enforceable rights. None of this would be possible without an over-centralised control system in Whitehall directed by Ministers that transcended any devolution settlement to the other nations of the United Kingdom.

Conclusions

The United Kingdom offers a rich history of a nation that charts the ebbs and flows of Empire, its re-connection through the Commonwealth and the amalgam of four nations into a United Kingdom, vesting primary sovereignty to the UK Parliament. De Gaulle was aware that England had always had a sense of global connectedness which was different from continental nations.[70] As Robert Tombs observes,[71] “there was never any possibility – and not much of an ambition either – of making this maritime empire into a global federation, and it proved ephemeral”. Still further, that the end of Empire helped to weaken the union between England, Scotland and Wales, as well as Ireland. Resistance to English rule in many parts of the Empire, from Ireland to India, found common cause in various forms of nationalism. This did little to ameliorate rivalries from France and Germany. Tombs also observes that at one time in 1956 forming a political union with France was seriously raised but to no outcome!

In the UK, addressing nationalism in Scotland and Wales has resulted in rapidly expanding forms of devolution that have been fitted into the existing status of UK unitary sovereignty. The decision to leave the European Union has proved particularly challenging for N. Ireland and Scotland. There is an abundance of evidence that the indivisible form of sovereignty offered as the guiding principle of a single sovereign union is a political rather than a legal fact. This is surely giving way to a form of constitutional pluralism that may allow greater flexibility and speaks to the future rather than the past. Such flexibility is likely to be a long time in delivering much needed change and it is also likely to be a painful process. Tombs, writing in 2014, notes that “Euroscepticism is certainly one characteristic facet of English consciousness today, even if comparable feelings are now present across Europe”.[72] Even if outside the European Union, it could be suggested that this will remain so for some time to come.

David Cannadine summarised one of the paradoxes of the British experience of nationhood and nationality. Britons believed “and with some good cause that they belonged to the most advanced country and the finest civilization on the globe. And all the while, they were anxious, uncertain, doubting and insecure – about themselves and their society, their economy, their religion, their nation and their empire – and with equally good reason”.[73] Such a paradox remains and in many ways is being underpinned by Brexit with implications for the unity of the United Kingdom as well as external relations with Europe and the rest of the world. If only the British could see themselves as others may see them, much might be achieved. Nevertheless there are some common themes. Nationalism based around an idea of nation-state does not necessarily imply populism. In the British form much of the formation of the state was top down and maintained by the fiction of an indivisible form of sovereignty that ignored historical precedent and rested on assumptions about an imperial past that no longer represented a normality. It is also instructive of how the state (more accurately the Crown) may use nationalism as a means of achieving patriotism, allegiance and citizen engagement. Examples abound as to how nationalism might be productive of collective agreements. In early nationhood it may endow a country with the necessary means to define its constitution and create a new beginning.

The English nation is also the scene for prolonged religious conflict. The Glorious Revolution can be characterised as the pursuit of religious tolerance but this did not settle religious differences. Anglicanism and different forms of non-conformism became a binary choice that took on economic, political and geographical shape to allegiances.

One outcome of religious differences was the intensity of belief in various social causes. Quakers and Unitarian Christians, often the religion of urban and business,[74] helped to campaign for environmental rights, against child labour and for improvements in the social conditions of factories as well as better educational opportunities and the abolition of slavery. Temperance societies campaigned against alcohol. The rule of law was championed as an inherent quality of justice and inseparable from the law itself.[75]

If nations and nation are examined, the United Kingdom offers some interesting lessons. First, the eclectic but also hierarchical approach to what is defined by nationality or citizenship. David Kynaston notes[76] the class structure was fixed; jobs were usually for life and most lives were narrowly confined geographies. The 1960s represented unprecedented change and the beginning of de-industrialisation, the growth of jobs for women and immigration that was on an unprecedented level, as well as a newly professionalised political class. Sinister undertones burst onto public life in April 1968 with Enoch Powell’s “rivers of blood” speech complaining about immigration. Fortunately this was exposed as extremist and civil society managed to re-calibrate and move forward. As economic and political circumstances changed, so did the rights enjoyed by different categories of citizen. The status and rights of citizens changed. Second, the use of the criminal law and sanctions employed in parallel with administrative processes and systems blurred the boundaries between political judgements and policy decisions and resulted in a binary choice between legal or illegal that tends to oversimplify. In its oversimplified form, emigration policy has been taken forward with inadequate discussion and less informed evidenced-based evaluations.

In tracing the United Kingdom as a nation, it is English nationalism that emerges as a dominant outcome. Its survival is remarkable against the trends of consumerism and globalisation. It has eclipsed established religions and become an “article of faith” of the true believers. Brexit has catapulted into public view the private nurturing of many believers in a rekindling of a glorious period of English history, Empire and beyond, that triumphs the English nation over all other and claims endless possibilities outside the European Union. This is far from reality. The uncertainties that pervade the future relationship with the UK and the EU remain unaddressed and are likely to lack clarity and predictability for some time to come. The underlying trends are also concerning. The Hansard Society, an independent English Charity and think-tank, in its annual democratic audit, 2019, notes a public despairing in confidence in the political system, with a majority in favour of a more authoritarian approach to governing as well as lack of faith in the parliamentary system.[77] The combination of scepticism and the rejection of the parliamentary system is dangerous.

Yael Tamir[78] reminds us that nationalism without the constraining power of democracy and liberalism would have turned “nasty” and “morbid”. Modern states, she believes, need to create a form of untidy compromise between liberalism and nationalism. The sense of belonging and being pulled together is an essential quality of nationalism; its more undesirable traits are to create separation and isolationism which can lead to xenophobia.

There is no roadmap for post Brexit Britain, just as there was none for Brexit. There is much uncertainty that is uncomfortably bereft of ideas or new thinking. In contrast to a previous period of crisis in the UK’s Constitution around 1688,[79] when new ideas helped establish Parliament’s supremacy in English government, there are remarkably few suggestions today for improvements in the future. Instead, with religious fervour, a fractured and deeply divided nation ultimately will have to find a formulation for its future.

END NOTES

[1] A.L. Poole, From Domesday Book to Magna Carta 1087-1216 Oxford: Clarendon Press, 1951, p. 1.
[2] Robert Tombs, The English and their History. Allen Lane, Penguin, 2014, p. 24.
[3] See for example: Faith Thompson, Magna Carta. Its role in the making of the English Constitution 1300-1629, London 1968.
[4] Peter Salway, Roman Britain. The Oxford History of England. Oxford: Clarendon Press, 1981, p. 17.
[5] Ibid. p. 19.
[6] H.C. Darby, An Historical Geography of England Before AD 1800. Cambridge: Cambridge University Press, 1936.
[7] Lloyd Laing, The Archaeology of Late Celtic Britain and Ireland. London: Methuen and Company 1975.
[8] John Judis, The Nationalist Revival: Trade, Immigration and the Revolt Against Globalisation. Columbia Global Reports 2019.
[9] Yoram Hazony, The Virtue of Nationalism Basic Books, 2019. Also see: Janet McLean, Searching for the State in British Legal Thought. Cambridge: Cambridge University Press, 2012.
[10] J.F. McEldowney, “Hybridization: A Study in Comparative Constitutional Law” (2010). Penn State International Law Review. Vol 28. pps 327-355.
[11] Michael Keating, “Nationalism after the State” in S. Tierney, ed., Nationalism and Globalisation London: Hart Publishing, 2018, pps 35-51.
[12] Janet McLean, Searching for the State in British Legal Thought. Cambridge: Cambridge University Press, 2012.
[13] A. Osiander, The State System of Europe 1640-1990. Peacemaking and the Conditions of International Sustainability. Oxford: Clarendon 1994. See examples such as the Peace of Westphalia.
[14] J.F. McEldowney, “Federalism” in J. Jowell, D. Oliver and C. O’Cinneide eds., The Changing Constitution. 9th edition, Oxford: Oxford University Press, 2019. Wheare, Modern Constitutions. 2nd edition. Oxford: Oxford University Press, 1966 p. 19. Useful background material is to be found in Michael Burgess, The British Tradition of Federalism London; Leicester University Press, 1995. David Marquand, “Federalism and the British: Anatomy of a Neurosis” (2006), 77 Political Quarterly 175-83. D. Elazar, Federal Systems of the World: A Handbook of Federal, Conferral and Autonomy Arrangements, 2nd ed. Harlow, Longman 1994. The Royal Commission on the Constitution 1969-1973, Vol. 1 Report Cmnd., 5460, vol 1 chapter 13, pps 152-161. See: Robert Schütze and Stephen Tierney, The United Kingdom and the Federal Idea, Hart, Oxford, 2018. See: Michael Gordon, Parliamentary Sovereignty in the UK Constitution, Oxford; Hart 2017, Ming-Sung Kuo, “Administration or Federation? Constitutional Self-Image and the World Political Order in which the EU finds Itself”, Perspectives on Federalism, Vol. 9, issue 2 (2017), pps 216-239. P. Gillespie, Scotland’s Vote on Independence: the Implications for Ireland Dublin: Institute of International and European Affairs, 2014. House of Lords Select Committee on the Constitution, The Union and Devolution, 10th Report of Session 2015-16, HL Paper 149 (25th Many 2016). pps 3-4. B.P. Levack, The Formation of the British State: England, Scotland and the Union 1603-1707, Oxford: Clarendon Press, 1987.
[15] N. Fergusson, Empire: How Britain Made the Modern World, London: Allan Lane, Penguin, 2003. p. xxii. Robert Tombs, The English and their History, Allen Lane, Penguin, 2014.
[16] David Cannadine, Victorious Century: The United Kingdom 1800-1906. London: Allen Lane, Penguin 2017. pps 2-3.
[17] H. Patrick Glenn, Legal Traditions of the World Oxford: Oxford University Press, 2000.
[18] Ibid.
[19] Niall Ferguson, Empire How Britain Made the Modern World. London: Allen Lane, Penguin Press, 2003 p. 359.
[20] Jonathan Gathorne-Hardy, The Public School Phenomenon, 597-1977. London: Hodder and Stroughton, 1977.
[21] Boyd Hamilton, A Mad, Bad and Dangerous People? England 1783-1846. Oxford: Oxford University Press, 2006.
[22] See: David Cannadine, Victorious Century: The United Kingdom 1800-1906. London: Allen Lane, Penguin 2017. p. 526.
[23] John Breuilly, “The Globalisation of Nationalism and the Law” in S. Tierney eds., Nationalism and Globalisation. Oxford Hart Publishing 2015. pps 19-34.
[24] Ibid.
[25] A.V. Dicey, “Federal Government” (1885), 1 Law Quarterly Review 80.
[26] Peter Furtado, Histories of Nations. Thames and Hudson, 2017.
[27] This section is taken from the paper where a fuller analysis is to be found in: J.F. McEldowney, “Federalism” in J. Jowell, D. Oliver and C. O’Cinneide eds., The Changing Constitution. 9th edition, Oxford: Oxford University Press, 2019.
[28] Ibid.
[29] Robert Tombs, The English and their History. Allen Lane, Penguin, 2014, pps 460-61.
[30] J. Kelly, “The origins of the Act of Union: an examination of unionist opinion in Britain and Ireland 1650-1800” (1987). Irish Historical Studies 236.
[31] A.V. Dicey, “Federal Government” (1885). Law Quarterly Review 1, pps 80-99 (January 1885). See: R.A. Cosgrove, The Rule of Law: Albert Venn Dicey, Victorian Jurist, London: Macmillan, 1980, pps 35, 103-4 and 235-6.
[32] A.V. Dicey, Law of the Constitution. London: Macmillan, 1893 chapter 3.
[33] A.V. Dicey, A Leap in the Dark. 2nd edition. London: 1893.
[34]A.V. Dicey and R.S. Rait, Thoughts on the Union between England and Scotland. London: Macmillan, 1920.
[35] See: W. Molyneux, The Case of Ireland being bound by Acts of Parliament in England, Pamphlet Dublin, 1688.
[36] McCann v Attorney general for N. Ireland [1961] N.I. 102 at p. 133.
[37] See: R (Lynn) v Gallagher [1937] 3 All ER 598, O.D. Cars Ltd. V Belfast Corporation [1959] N.I. 62 see Lord Sankey LC in Edwards v Attorney General for Canada [1930] AC 124 at p. 136. Macleod v Attorney General for New South Wales in Lynn v Gallagher above.
[38] See: John Kendle, Federal Britain London: Routledge, 1997 chapter 5, pps 95-6 Herbert Smith, Professor of International Law at the University of London.
[39] Trinidad, Nigeria, British Guiana, Malaya, Southern Rhodesia and East Africa, Eden and South Arabian Protectorate.
[40] Clement Atlee, Minutes of meeting 19th January 1949, Cabinet Commonwealth Affairs Committee Cab (49) 1st meeting Cab. 134/56 PRO.
[41] N. Ferguson, Empire: How Britain Made the Modern World. London: Allan Lane, Penguin, 2003.
[42] Ibid., p. xii.
[43] See Anna Aliverti, Crimes of Mobility: Criminal Law and the Regulation of Immigration London: Routledge 2013, chapter 2, pps 12-36. Hereinafter, Aliverti.
[44] Aliverti, op. cit., pps 12-15.
[45] Aliverti, pps 13-16.
[46] Ibid.
[47] See Rieko Karatani, Defining British Citizenship: Empire, Commonwealth and Modern Britain. London: Frank Cass, 2003.
[48] House of Commons Briefing Papers, Windrush Generation, Debate Pack Number CDP-2018-0111 (1st May 2018) Debate in the Commons Chamber Wednesday 22nd May 2018.
[49] Hansard Urgent Question 3rd April 2019, Apology of the Secretary of State for Home Affairs on Windrush and details of the compensation scheme.
[50] Aliverti, pps 22-26.
[51] Aliverti, op. cit. pps 24-26.
[52] House of Commons Library: Briefing Paper Number CBP0 3186 (21st November 2018) Constituency casework: immigration, nationality and asylum.
[53] Aliverti, op. cit., pps 31-33. See: Gina Clayton, Immigration and Asylum Law Oxford: Oxford University Press, 2016.
[54] The Treaty of Amsterdam 1997.
[55] Patrick Weil and Nicholas Handler, “Revocation of Citizenship and Rule of Law: How Judicial Review Defeated Britain’s First Denaturalization Regime”. May 2018, Law and History Review, Vol. 36 No. 2. pps 295-354.
[56] R (On the application of XH) v Secretary of State for the Home Department [2017] EWCA Civ 41.
[57] House of Commons Library Briefing Paper, Deprivation of British Citizenship and withdrawal of passport facilities. Number 06820 (9th June 2017).
[58] See: The Observer Review, 30th March-1st April 2019. Paths from the Past: Historians make sense of today’s political turmoil.
[59] See: J.F. McEldowney, “The Constitution and the Financial Crisis in the UK: Historical and Contemporary Lessons” in Xenophon Contiades, Constitutions in the Global Financial Crisis. London Ashgate, 2013. pp. 167-194.
[60] House of Commons Library Briefing papers, Migration Statistics SN06077 (11th December 2018).
[61] Sara Lemos, “The Employment and Earnings Gaps between Natives and Immigrants in the UK between 1981 and 2006”, Institute for Fiscal Studies (2018), Vol 39 number 3, pps 455-487.
[62] House of Commons Briefing Papers Number 08397. What if there’s no Brexit deal? (28th December 2018).
[63] See J.F. McEldowney, Brexit: A very English problem: http://blog.juspoliticum.com/2019/02/05/brexit-a-very-english-problem-par-john-mceldowney/
[64] See: IFS, Special Issue On Brexit: New Evidence and Policy Perspectives Fiscal Studies. Vol. 39 number 4 December 2018.
[65] N. Crofts “Industrial Policy in the context of Brexit”, IFS, Special Issue on Brexit: New Evidence and Policy Perspectives Fiscal Studies. Vol. 39, number 4. December 2018, p. 695.
[66] The Economist, 19th January 2019, p. 29.
[67] House of Lords, Select Committee on the Constitution, 16th Report of Session 2017-19. The Legislative Process: The Delegation of Powers. HL Paper 225 para. 2.
[68] Vernon Bogdanor, Beyond Brexit: The British Constitution. London: Hart Publishing, 2019.
[69] Robin Renwick, Not Quite a Diplomat. London: Biteback Publishers, 2019.
[70] Robert Tombs, The English and their History Allen Lane, Penguin, 2014, p. 877.
[71] Ibid., p. 876.
[72] Tombs, op. cit., p. 877.
[73] David Cannadine, Victorious Century: The United Kingdom 1800-1906 London: Allen Lane, Penguin 2017, p. 9.
[74] Many business families were associated such, including well-known names – Barclay, Rowntree, Cadbury – that have become household names.
[75] Tom Bingham, The Rule of Law. Allen Lane, Penguin, 2010.
[76] David Kynaston and Francis Green, Engines of Privilege. London: Bloomsbury, 2019
[77] Hansard Society, Annual Democratic Audit 2019. London: Hansard Society, 2019.
[78] Yael Tamir, Why Nationalism. Princeton Press, 2018
[79] Margaret Judson, The Crisis of the Constitution. Rutgers. University Press, New Brunswick: 1949.

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