Wales and the changing Union

Further devolution to Wales is necessary but must be considered as part of a shift to a federal UK. A constitutional convention is the way to make this happen.

Hywel Ceri Jones
4 August 2015

The decision of the Blair government to introduce devolution in Wales from 1999 was based essentially on recognition of two complementary considerations about the position of Wales in the Union: an over-centralized and London-centric decision-making apparatus and an increasing distance between the political preferences of the people in Wales and the direction of policy pursued at the UK level; and, second, that Wales led by its own democratic Assembly would be better placed to address directly the accelerating impacts of globalization challenging every corner of the world.

The short story of Welsh devolution over the past 16 years has been a mixture of successes and stuttering starts. In 2004 the Richard Commission pinpointed serious flaws in the founding 1998 Government of Wales Act: the separation of the executive and legislative functions, the downsides of adopting a 'conferred' model of governance which has led to continuing tensions between Westminster and Cardiff, and the inadequate size and capacity of the National Assembly of Wales.

The 2011 referendum in Wales gave clear public support for the Assembly to gain full legislative powers. Over the past two years, the Silk Commission has produced two unanimous reports which set out a package of recommendations for further devolution, including in particular transition from the 'conferred' to a 'reserved' model of governance, as had already been the case in both Scotland and Northern Ireland. The effect of this should be that the default position as to whether to devolve a policy field would be determined in Wales. The exception to this would of course be those areas reserved to the Union (eg, currency and defence).

Most Welsh people readily concur that devolution in Wales has been influenced by the Scottish story of devolution to date. It has been increasingly impossible to avoid Scotland becoming the yardstick for comparison. The referendum in Scotland, its aftermath and especially the recent tsunami of SNP general election results have again underscored the political significance of accompanying further devolution within Wales by constitutional changes at the level of the Union itself. More than a year ago, Carwyn Jones, Welsh First Minister, called for a Constitutional Convention to focus on reshaping the Union. He clearly recognised that Wales must engage with this wider debate and not concentrate in isolation on the transfer of further powers to Wales.

The day after the Scottish referendum Cameron’s public assurances that he would take steps to ensure "that Wales will be at the heart of the debate of the future of the Union" was, of course, welcome in principle.  This assurance can now be read together with the Prime Minister’s post election commitment "to renew our union – showing respect to all four parts of our country whilst recognising that we are stronger together in the UK".

The Queen’s Speech (26 May 2015) claimed that the government would introduce "far reaching" powers for Wales. However, it is widely appreciated, especially in Wales, that the so-called St David’s Day settlement this year emerged from an ultra-cautious behind-the-scenes political compromise resulting in the lowest common denominator of recommendations. These fell well short of the balanced and well informed recommendations of the Silk Commission whose comprehensive implementation had been widely commended.

Moreover, whilst committing to "bringing different parts of our country together," the Queen’s Speech was a missed opportunity for the government to set out how it proposes to implement Cameron’s latest 'vow' -  "to renew our Union".

The continuing fracturing of the Union is confirmed by the contradiction lying at the heart of Cameron’s narrative. The battle cry which preceded the Scottish referendum - and repeated after the recent election - is 'better together'. Yet the moves of the government have been entirely bilateral in their thrust – to Scotland, England and Wales in turn - launched in isolation with no overarching vision of the implications for reforming the Union and for the integrity and cohesion of the Union as a whole.

The 'one nation' label continues to be the banner headline used by both Tory and Labour HQs though we are patently not 'one nation', but four proud nations cohabiting in the UK. The continuing failure of both main parties to confirm that the UK is made up of four constituent nations shows that their narrative will continue to set off on a wrong footing from the word go. If the mobilizing project to which they refer is to work for a more cohesive society, characterized by a commitment to social justice and equity, then it would make sense to desist from misusing Disraeli’s famous phrase and use new vocabulary.

The imminent prospect of Iain Duncan Smith savouring the £12 million cuts in benefits which he is now empowered to introduce will serve to fracture the UK even further and reinforce the growing sense of polarisation felt across it as a whole. Moreover, the ideological war which will soon break out in the run-up to the in/out referendum on EU membership will further exacerbate the divides between the populations of our four nations and their very differing views of what the Union should stand for in the EU and the world today. For Wales in particular, a move to exit from the EU would be profoundly damaging, a massive setback precisely at a time when it benefits from a range of EU 2020 policies and funding which strengthen its ability to handle the challenging economic and social agenda it faces.

The alarm bells from the referendum campaign in Scotland, with widespread panic from being so close to the breakup of the Union and the evident failure to articulate a convincing, forward-looking narrative about the Union, its character and role in the world, seem to have gone unheeded. It is increasingly clear that bilateral agreements or isolated initiatives do not provide the basis for a coherent and lasting reform of the Union as a whole. It is time now for the government to depart from disconnected 'vows', 'concessions' or short term gestures and refashion the governance of the Union, harnessing the talents and energy of the four nations which make up the state in which we live, in the shared interests of all our citizens.

A move towards structural reform of the Union can surely only come if the Prime Minister himself shows decisive leadership to build a cross-party consensus for a new, written constitutional settlement to which all citizens of the Union could be attracted as a renewal of their democratic engagement to a reformed idea of the Union. Establishment of a Constitutional Convention to shape such a settlement, with involvement from civil society drawn from all four nations, as originally proposed by Carwyn Jones, remains the most inclusive formula to preparing the ground democratically.

It is most likely that in Wales there could be such cross-party support for the First Minister’s initiative. A recent speech by Leanne Wood, leader of Plaid Cymru, included a call for a confederal Britain. This represented a significant shift of emphasis from previous pleas for parity with Scotland.

Such a cross-party agreement should be constructed upon a bedrock of common basic principles.  Drawing on the conclusions of the Changing Union project (a partnership between the Wales Governance Centre, the Institute of Welsh Affairs, and Cymru Yfory) over the past three years (see also, I suggest four common basic principles in this perspective.

(1)          A union state not a unitary state

The new constitution of the UK state would confirm that it is composed of four national entities – England, Scotland, Wales and Northern Ireland - which voluntarily share their sovereignty, expressing themselves democratically through their respective parliaments and assemblies, whose continuing existence would be henceforth anchored in such a constitutional settlement.

(2)        Commitment to shared solidarity

The last-minute ad hoc 'vow' made to the Scottish people unwisely included a commitment to apply the outdated Barnett Formula to Scotland, ignoring the negative consequences in Wales and parts of England, as well as the succession of resounding critiques.  This was yet another example of pandering to one part of Britain without considering the implications for the Union as a whole.

What is needed is a one-off settlement with Scotland and the replacement of Barnett by the introduction of a UK wide system for assessing and determining economic and social need, on an objective and statutory basis.  Such a system should be set up independent of the Treasury, applied with fairness and consistency to all parts of the Union and open to regular and transparent review and annual reporting. In effect, this would place the commitment to pull together and the promotion of economic and social cohesion as central objectives of the new Union’s constitution.  A parallel could usefully be drawn with the political and constitutional commitment of the EU to the principle of economic and social cohesion as a counterweight to the internal market: all parts of the EU benefit from its fruits.

(3)         Application of the principle of subsidiarity

The distribution of responsibilities between the different tiers of governance in the Union should be based on the principle of subsidiarity – whereby the Union does not take action (except in its areas of exclusive competence) unless it is more effective than action taken at national, regional or local levels. Precisely the same principle which the UK has argued time and again should be applied to the governance of the European Union and its relations with its member states. In this way, the principle would in the first instance apply to the Union itself within a new federated model of governance.   

It would be for each nation to determine how to apply the subsidiarity principle within its own borders.  It is time for greater trust and action to unleash local and regional energies which have been held back too long by over centralisation and to strengthen the sense of collective endeavour. The recent appeal by the leaders of cities from the centre and north of England point clearly to new forms of rebalancing and reforming governance in England.

In the case of Wales, and in view of the Welsh Government’s impending overhaul of Welsh local authorities, an all Wales ‘pact’ could be established to confirm smarter collaboration and clearer lines of decision making between them and the National Assembly of Wales.  The emergence of the Cardiff and Swansea city regions needs to feature strongly in such a ‘pact’ as, together with the universities of Cardiff and Swansea, they will develop strong hubs for innovation and development in Wales.

(4)         Tempering the asymmetry of the Union

Anchorage of the new constitutional agreement would be best secured in a federated Union, based on mutual esteem and respect between the four nations and their respective legislatures. The stark reality is that England constitutes 82% of the total population of the UK. In view of its size, and the London factor, it is clear that mechanisms are needed both to recognise and temper the disproportionate effects of decisions made in England. This formula of federating the family of nations in the Union would provide the necessary framework to temper its internal asymmetry, given the very different population sizes involved. To promote and safeguard the values and integrity of the Union as a whole, this framework should be underpinned at the level of the Union by the introduction of two important reforms:

(a)       Reform of the present House of Lords as a second chamber, drawing on elected representation from the four nations and other designated regions, with the responsibility to monitor the fair and effective functioning of the Union , both internally and externally in relation to the Union’s role in Europe and the world.

(b)       Revision of the existing intergovernmental machinery between the different legislatures, now widely regarded as inadequate and opaque, with the introduction of a joint Ministerial Council charged to oversee the effective functioning of cooperation between the four national legislatures and identify problems arising from the impact of policy initiatives taken in respect of one jurisdiction on the rest of the Union.

Following the experience of the last general election, the likely recasting of the Tory and Labour highly centralised operations to create a more federated organisational structure, especially in Scotland and Wales, could help connect them  much more persuasively with their populations, help rid themselves of their London-centric tags and avoid confusion in the public mind about their relevance to the different national contexts .

The long term future of Wales and its development is at stake as the government moves to reform the Union and begins to organise its referendum on EU membership. In Wales, we urgently need to raise our game and demonstrate that improvements in governance nationally and at the level of the Union can unleash the creative energies and talents of Welsh people to transform the challenging social and economic situation. The UK government now needs to engage rapidly in constructive dialogue with the Scottish Parliament and the Welsh and Northern Ireland Assemblies to determine cooperatively the ways ahead.

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