Brexit, Devolution and Constitution, Long Reads

A constitutional continuum

The UK is a unitary state comprising England, Northern Ireland, Scotland and Wales, all of which are intrinsically linked culturally and historically in modern times through shared industrial, political and international experiences.

Devolution aimed to address a measure of perceptible disenchantment due to unease with over-centralisation whilst retaining sovereignty in the hands of the Westminster parliament.

The extent of divergence in today’s UK is highlighted by the four nations’ differentiated politics, apprehensions about the Brexit negotiations, uncertainties regarding the post-EU Northern Ireland border, debates concerning a second Scottish independence referendum, and broad unease with the Wales Act 2017. The Devolution and Future of the Union report (Constitution Unit: 2015), explains that: ‘the UK is hardly unique in facing challenges to its structure and integrity…though it is unique in seeking to do so without a formal written constitution.’ The report explores three models of increasing devolution as possible solutions.

Recently, many academics and politicians have asserted that the UK should: ‘use the repatriation of powers from the EU to establish a new federal state of equals.’ Lord David Owen advocates a federal structure based on the German model, whilst the UK’s Changing Union report (Wales Governance Centre: 2015) proposes a union state not a unitary state which: ‘consists of four national entities sharing sovereignty…and freely assenting to cooperate in a Union for their common good.’ This signals the end of devolution and a move to a more overtly federal or quasi-federal framework.

Professor Jim Gallagher goes further: ‘people often talk about federalism as if it were a solution. In truth the UK is already moving beyond it to a more confederal solution.’ Reflecting on his Britain after Brexit report (2016), Gallagher envisages: ‘a confederation of nations of radically different sizes, sharing things that matter hugely, like economic management, welfare services and defence.’

Subtler constitutional models may even interest. Professor John Kincaid, in his article on Confederal Federalism (Western European Politics, 1999), explains: ‘what seems to have developed in the EU is…a confederal order of government that operates in a significantly federal mode within its spheres of competence.’ Member nations have delegated, in effect, parts of their sovereignty over time to central bodies which agree laws on their behalf.

The ongoing Brexit process, by nature, involves a strong steer towards centralisation in favour of Westminster. This is due to the parliament’s twin role in expediting the UK government and that for England. In time, currently observed EU-centred regulation must be replaced to advance the development of an isle-wide framework structured to facilitate a single market, conformity with international rules, negotiation of trade accords, use of shared resources and safeguarding of rights. However, as emphasised by Professor Richard Rawlings in his report Brexit and Territorial Constitutions (Constitution Society, October 2017): ‘the tendency to sequencing—the temptation to treat the devolutionary aspects as if they were some kind of second front best frozen while supranational negotiations proceed, rather than to take them forward in tandem in a spirit of cooperation—must be firmly resisted.’

The assorted devolution arrangements have progressed incrementally and asymmetrically since 1997. During this time, the EU has been part of the fabric which holds the UK together. The pre-eminence of EU law, and its interpretation by the EU Court of Justice, has safeguarded the consistency of legal and regulatory norms across copious fields, including devolved areas. The UK internal market has been sustained by the conventions of the EU internal market. Therefore, Brexit presents a risk that these interrelated competences may become increasingly unsound if not addressed by a new constitutional framework.

With many powers returning from Brussels, some should fittingly default to the devolved nations, with other responsibilities demanding consideration alongside much needed wider reform. An enlightened constitutional approach could envisage these very same institutions empowered directly to cooperate with European bodies on matters such as health, research funding, universities, justice and policing.

To paraphrase Bernard of Chartres ‘We stand on the shoulders of giants. Let us make sure that future generations of people can say that of themselves in relation to our efforts in creating a modern Union fit for purpose in the 21st Century.’

This piece is from the newly launched pamphlet ‘Brexit, Devolution and the Changing Union: 2018’ by Lord David Owen, Gwynoro Jones, Lord Elystan Morgan and Glyndwr Cennydd Jones, with an afterword by Martin Shipton. The pamphlet explores the need for a UK-wide Constitutional Convention—with involvement of all political parties and elements of British society—to discuss the future of the Union, particularly in the context of Brexit.

Glyndwr Cennydd Jones is a chief executive officer of a UK-wide charity. He is an advocate for greater cross-party consensus in Wales.

This post represents the views of the author and neither those of the Welsh Brexit blog nor Cardiff University.

Comments

  • Dr Wulf Stratling

    I beg to differ. This does not remotely go far enough. We need no constitutional continuum, but a fundamental constitutional reform of our “pre-democratic”, I e. un-democratic Westminster setting. Proper federalism is, indeed, a central, absolute requirement. The lists, however, goes on and on and on…
    We need a codified constitution with proper checks an balances, defined responsibilities:
    Parliament doesn’t know it’s own job description and needs to seek clarification from courts; its doubling up as chamber for England is a dysfunctional anomaly, government regularly uses undemocratic royal privileges; both are in post on the base of an undemocratic electoral system which disregard c 70%of votes cast and is by now likewise demonstrably a dysfunctional anomaly in the UK; about no other legal system across Europe has so many miscarriages of justice; nowhere else are public organisations allowed to conveniently investigate themselves, our public administration system doesn’t work well either; our sovereign is the crown, not the people; we consider ourselves multicultural, but officially have unity of stat and “the faith” etc etc…
    Big plus now: with this mess, we will nnowadays not even qualify for rejoining the EU, perhaps somewhen in the future…
    This, and the overdue reform here, in the UK, is something to rather look forward to…
    It was the dysfunctionality and intransparency of our own, obsolete system, which empowered deceitful Brexiteers to conveniently blame the EU for everything we messed up ourselves…
    Europe will be well advised not to let us back in, until we ourselves have dealt with these root causes

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