Brexit, Wales Act 2017 and the Changing Union

This article first appeared on the Institute of Welsh Affairs' website on 18^th January 2018.

Lord David Owen, Gwynoro Jones, Lord Elystan Morgan and Glyndwr Cennydd Jones discuss the need for a constitutional convention to run alongside the EU withdrawal discussions…

  

Opening, Lord Elystan Morgan states: ‘Despite the devolution of the last two decades, the UK today remains one of the most concentrated systems of parliamentary government in the democratic world. There is a desperate 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.’

Lord David Owen elaborates: ‘In light of the Brexit vote, Theresa May has convened talks involving the leaders of the devolved administrations. The Prime Minister could call together this same forum to start an initial dialogue on the UK constitution, confirming terms of reference, participants and timelines for reporting back from a convention.’

Gwynoro Jones asks: ‘At the heart of this debate is the question of what will Labour do? Any major constitutional reform cannot happen without its serious involvement and active participation.’

Lord David Owen responds: ‘If the Prime Minister does not embrace an all-party convention then the Labour Party and SNP should forge an initial agreement, with the aim of building a cross-party approach capable of involving others. While it would be unfortunate not to have the assistance of Whitehall, the effects of this can be negated by use of academics, thereby ensuring quality of discussions.’

Gwynoro Jones declares: ‘The EU (Withdrawal) Bill, unless radically amended, will have significant implications for the current devolution settlement. An area of particular concern to Belfast, Cardiff and Edinburgh is what will happen to those powers and responsibilities now delegated from Brussels, through Westminster, to the devolved administrations on matters such as agriculture and rural affairs? Will they be taken back up the chain to London in time, thus completely undermining the arrangements in place?’   

Lord Elystan Morgan asserts: ‘I am rapidly coming to the conclusion that Wales is being short changed in regards to devolution. This assertion firstly rests on the willingness of Her Majesty’s Government to contemplate nearly 200 reservations in the Wales Act 2017, most of which are so trivial as to give the lie to any sincerity concerning a reserved constitution. Secondly, is the willingness to pretend that a long-term settlement on the division of authority between Westminster and Cardiff could even be contemplated, whilst the very substantial proportion of that authority was not in the gift of the UK Government, but was ensconced in Brussels.’

‘The Secretary of State for Scotland, David Mundell MP has announced that the UK government will publish changes to clause 11 of the EU (Withdrawal) Bill affecting Scotland when the measure reaches the House of Lords, indicating that in some areas common frameworks will be established.  Such an approach must inevitably be mirrored in Wales.’

Lord David Owen recalls: ‘I have previously proposed that an all-party convention should be held on the establishment of a Federal UK Council, modelled on the German Bundesrat. Running our exit from the EU in tandem with the creation of a federal UK is both feasible and proper. Postponing this discussion risks missing a moment in history when the British people are well aware that our unity is in jeopardy and yet most want it to be maintained.’

Glyndwr Cennydd Jones reinforces: ‘The UK’s Changing Union report (Cardiff University’s Wales Governance Centre and the Institute of Welsh Affairs: 2015) indeed 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.’

Lord David Owen explains: ‘A Federal UK Council could involve not only Scotland, Wales and Northern Ireland but also London and the new city regions with constitutional powers. Provision could also be made separately for those who live in areas covered by county councils and unitary authorities. No doubt some of these may wish to develop a regional identity which could lead to separate representation.’

Glyndwr Cennydd Jones highlights: ‘Professor Jim Gallagher goes further, stating:  ‘people often talk about federalism as if it were a solution for the UK. 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, access to welfare services and defence.’’

Glyndwr clarifies: ‘In a federation, sovereignty is shared between central and constituent nation governments. Each level has clearly articulated functions, with some powers pooled between them, but none has absolute authority over the others. Agreed practices and rules are confirmed through a written constitution with compliance enforced by a Supreme Court. In contrast, a confederation is a union of sovereign member nations that for reasons of efficiency and common security assign a portfolio of functions and powers by treaty to a central body.’

Gwynoro Jones affirms: ‘With the Brexit result, I am convinced that the future lies in a self-governing Wales within a federal UK, but I also increasingly accept that an argument can be made for going further. Wales is near to bottom of the league on several UK socio-economic indicators.’

Glyndwr Cennydd Jones maintains: ‘The constitutional choice may not be purely binary in nature. 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.’

‘Potential collective functions might encompass to varying degrees: the armed and security forces; border, diplomatic and international affairs; cross-recognition of legal jurisdictions; currency and monetary policies; a single market; any shared public services; and select taxation, as appropriate.’

Gwynoro Jones insists: ‘In the modern financial, service and technological age, as opposed to the era of heavy industries and large scale manufacturing, the question of a country’s size is no longer a deciding factor in terms of deliberating governance models. Indeed, seven member countries of the EU have populations either smaller or similar to that of Wales.’

‘For decades, too many politicians have argued that Wales cannot afford to have greater powers, markedly because it would run a significant budget deficit, but so does the UK with a deficit of some £50 billion annually, carrying a debt of £1.83 trillion. Indeed, a proportion of the £14 billion claimed to be Wales’s presently projected deficit is our share of the money spent on large UK projects such as HS2 and defence (e.g. Trident). What is more, revealingly, only about 50 of the world’s 235 nation-states actually run a budget surplus.’

Lord Elystan Morgan concludes: ‘Casting aside the limitations of devolution, it is now highly necessary that we should raise our expectations to be worthy of our position as a mature national entity. As the Brexit date of 29th March 2019 approaches, there is a clear need for a formal constitutional debate to run alongside the EU withdrawal discussions.’

Lord David Owen, Gwynoro Jones, Lord Elystan Morgan and Glyndwr Cennydd Jones are the authors of the booklet ‘Towards Federalism and Beyond…’ which explores  the future of the UK Union generally and Wales’s status within it specifically, including a preface written by Martin Shipton. The booklet was released in September 2017 to coincide with the 20th anniversary of the vote to establish the National Assembly of Wales.