Devolution and Constitution, Long Reads

The challenge to Westminster

In September 2017, the booklet Towards Federalism and Beyond was launched by Lord David Owen, Gwynoro Jones, Lord Elystan Morgan and me. In February 2018, we followed up with a pamphlet titled Brexit, Devolution and the Changing Union 2018.

On the 20th anniversary of establishing the National Assembly of Wales, this article explores the need to move the governance model onwards constitutionally beyond that of devolution.

Devolution, as a governance model, leaves Westminster parliamentary sovereignty, that most conceptual of constitutional principles, technically intact, hence its acceptance by most UK politicians. Wales and Scotland today hold legislative competence over all matters not explicitly reserved to Westminster, which implies a form of federalism, but without the usual sharing of sovereignty across parliaments. The House of Commons in London, according to the Sewel convention, also ought not to legislate on devolved matters without consent of the respective parliaments in Cardiff, Edinburgh and Belfast.

The customary argument that parliamentary sovereignty should rest solely with Westminster in future years stands challenged.

With many now asserting a multicultural Welsh, Scottish, Northern Irish or English character before claiming a form of dual nationality which also embraces a British personality, it is legitimate to reconsider the nature of Westminster’s parliamentary sovereignty. The consequential and pressing strategic issue going forward relates to whether sovereignty, as currently understood, should be shared across these five territorially defined identities (including that of Britain) in a traditional federal arrangement or instead assigned individually to the four nations—Wales, Scotland, Northern Ireland and England—which in turn would lease parts of their sovereign authority to common central institutions of a fundamentally British civic character.

Any future constitutional settlement must take account of the economic and social interrelationships between the four nations.

One model for this could be a League or Union of the Isles involving a confederation of Wales, Scotland, Northern Ireland and England with aspects of federal-type control built into key policy areas underpinning the principles of equality and solidarity amid member nations. In such an arrangement, a Council of the Isles could be responsible for enacting legislative power on matters involving defence, foreign affairs, finance, home affairs and mutual cooperation, with a Congress of Member Nations, convening regularly to discuss other relevant considerations which may demand a degree of cooperation and harmonisation of laws. The Head of the Confederation could continue to be Her Majesty and successors, holding frequent audiences with the nations’ First Ministers, possibly accompanied by a reoriented privy council containing Welsh, Scottish, Northern Irish and English divisions.

The National Parliament of each member nation would sit as the legislative and representative body of its people, having every power and right not by treaty or constitution delegated to the joint institutions. The national legislatures should be mirrored by robust legal structures, supporting the continued rule of law as administered by an independent judiciary. Scotland possessed its own judiciary before 1999 whilst the development of a genuine devolved legislature in Wales has led to a compelling case for introducing a distinct Welsh legal jurisdiction. The ultimate authority on all questions regarding the legitimacy of any law or treaty would sit with a Supreme Court of the Isles.

The risk of reframing the UK as a League or Union of the Isles is not so much that an influential and powerful English parliament might dominate Welsh, Scottish and Northern Irish institutions, but that it could destabilise the work of joint isle-wide bodies if the new arrangements were not held with respect. Overrepresentation of the smaller nations in the Council might act as a limited counterbalance to the challenges faced, but there is little escaping the fact that England, with approximately 85% of the population, could potentially cause significant tests to the successful management of the market by common British institutions. Nevertheless, decentralised, federally inspired constitutions, which are better placed to interact nimbly with international economic decision-making and be representative of cultural and ethnic diversity within nations, are more appropriate to the context of the developing 21st Century.

The challenge to both Conservative and Labour parties is to become more formally representative of the nations within their organisational structures.

The make-up of the Liberal Democrats is already federalised and the strength of the nationalist movements in Wales, Scotland and Northern Ireland at a level uncommonly seen in other multinational states globally. The tacit acceptance by Westminster of Scottish, and by some implication Welsh, independence as a legitimate option suggests that sovereignty is ultimately determined by the populations of the nations separately and not by the people of the UK collectively. To argue that it is the British people who are first amongst equals is to wilfully ignore the long established, respected status of the home nations in European history. Further, could Westminster unilaterally dissolve the devolved parliaments in the various capitals even if it so wished?

Nevertheless, Britishness as a concept is much older than the UK and it is unrealistic to argue that the Welsh or Scottish people, in notional independent territories, would start considering the English as fellow Europeans instead of fellow British. Feeling British, whether wholly or partly, does not necessarily denote that a person is committed to supporting political unionism. It could also be based on a pride in past achievements and a continuing awareness of the cultural and social connections forged between the populations of the isles during many centuries.

As discussed in Linda Colley’s book Acts of Union and Disunion (Profile Books 2014), unitary states face ongoing challenges in acknowledging the partial autonomy and diversity of their constituent nations, especially in cultivating and sustaining a sense of belonging to the larger political body.

People have an appreciable human interest in experiencing the treatment of their territorial grouping as valued. This is conducive to promoting a context for living in which individual autonomy can be applied in a meaningful way and where people are prepared to make sacrifices for others through a sense of shared distributive justice. The application of a more deliberative democracy, exercised at the national level rather than that of central institutions, is predicated on the assumption that genuine decision-making demands active participation by the public in society’s debates and developments, over and above that of simply casting votes at elections.

The make-up of individuals’ identities is complex and partly comprises their beliefs, social affiliations, and relationships within national groupings. All unitary states would be wise to pay attention to the emotional and practical attachments their populations feel towards the constituent nations, if they aspire to be the object of similar loyalty. Indeed, the safeguarding of individual liberty within the nations could serve as a useful counterweight to the inevitable instinct of the institutional centre to aggregate power deep within its core, especially at the expense of territories more geographically distant.

The fact that 45% of Scottish voters would have preferred to end the Union in 2014 might suggest a lessening in appeal of the British identity, despite a majority of the electorate in Scotland being opposed to independence. However, some pause is required before jumping to this conclusion as the dual identity of the Scottish people within the UK has complex roots and meanings. The same is true of the population in Wales. Interestingly, the recognition of multiple identities, highlighted in recent decades by the European dimension of UK politics has created a genuine paradox for some nationalists—in that if it is possible to be Welsh or Scottish and European, is it therefore not possible to be Welsh or Scottish and British too? Admittedly the situation in Northern Ireland is more complicated.

British ideals and values are partly forged by geographic, historic and cultural influences which usefully bridge the demands of world interdependence and the desire for increased autonomy in the nations. The challenge is to capture these principles in a new constitutional framework which strengthens arrangements for self-government—through emphasising common respect for human dignity, freedom, democracy, equality and rule of law—within an isle-wide civic societal structure typified by pluralism, non-discrimination, tolerance, justice and solidarity.

In today’s world, nearly two hundred states are underpinned by written constitutions. Surprisingly, the UK is not, but ironically it has involved itself in drafting constitutions for countless others during the last century, particularly the British colonies.

As globalisation and migration intensify, states around the world are becoming increasingly diverse culturally, ethnically, legally, politically and religiously.  A widely accepted approach to successfully embracing and managing such variations is to revise and improve the nature and quality of governance. This is as true for the UK as it is for other states. The fact that written constitutions make the machinery of government more accessible and transparent is one of the most persuasive arguments for their application.

The most effective modern constitutions articulate the essential framework of governance and are open to appropriate modifications in time, such as the pooling of sovereignty in international treaties and bodies. They also balance the basic principles with current and developing demands which may necessitate an authority or responsibility of government to be reassigned from one level to another. Creating such a written framework for these isles could prove invaluable across the political spectrum, with some finding reassurance in attempting to articulate the more distinctive elements of the UK’s practices in a codified constitution, and with others seeking to cement the sovereignty position of the four nations individually in relation to a common British civic structure.

In the early 21st Century, might not the more constructive elements of the political spectrum from nationalism to unionism, which advocate contrasting isle-wide constitutional solutions, from apparent territorial separatism to unitary centralism, find some common ground, if not a strategic compromise, in the broad principles of confederal-federalism?  

Who knows, this approach could well provide some fresh constitutive stories for a new kind of partnership across these isles—one which draws on past and present experiences and narratives in forming an underlying bedrock for the future.

The following sources have inspired this article:

  • David Torrance: ‘A process, not an event’: Devolution in Wales, 1998-2018 (House of Commons, 2018)
  • Lord David Owen, Gwynoro Jones, Lord Elystan Morgan and Glyndwr Cennydd Jones: Brexit, Devolution and the Changing Union (2018) and Towards Federalism and Beyond (2017)
  • Tom M Devine: Independence or Union (Penguin Press, 2016)
  • A Draft Constitution for a Confederal United Kingdom (Scottish Constitutional Commission, 2015)
  • Linda Colley: Acts of Union and Disunion (Profile Books, 2014)
  • David Melding AM: The Reformed Union: The UK as a Federation (Institute of Welsh Affairs, 2013)

Glyndwr Cennydd Jones is an advocate for greater cross-party consensus in Wales and for a UK-wide constitutional convention to run alongside the EU withdrawal process.

This post represents the views of the author and neither those of the Politics & Governance blog nor Cardiff University.

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