Can the Welsh Government’s plan save the Union?

(Title Image: ITV)

I summarised the Welsh Government’s Reforming our Union report earlier today and while it’s probably known I support independence the report is certainly deserving of a more thorough assessment.

To start with, the contents of the report are very similar to proposals put forward by the Constitutional Reform Group for a new Act of Union (which I summarised at State of Wales – Can the Union be salvaged?). It’s not a surprise that Carwyn Jones AM (Lab, Bridgend) was recently announced as one of the group’s newest members as he’s carved out a post-governmental role for himself as Welsh Labour’s de facto senior spokesperson on constitutional affairs.

Many of Reforming our Union’s propositions are reforms the Welsh Government have demanded for some time now and therefore aren’t new: a needs-based funding formula, a formal mechanism to deal with intergovernmental disputes and reform of the House of Lords.

The Good

  • A Voluntary Union – At present, the Union is wholly involuntary and only the Scots can say they had a choice in it (and that’s debatable). The Welsh Government now asserts the right for the UK’s constituent nations to democratically decide to leave if they so wish, reframing the UK as a voluntary union. This is very different to the situation at present, where you need permission from the UK Government to hold a constitutionally-recognised independence referendum (Section 109 in the Government of Wales Act 2006; Section 30 of the Scotland Act 1998 in Scotland). A voluntary union would be consummate with the spirit of a right to self-determination.
  • An end to irrational asymmetrical devolution – While the Welsh Government doesn’t outright support identical devolution settlements, they do believe that powers reserved to Westminster need to be based on a principle that powers should rest with the most local tier of government where they can be exercised effectively (known as the subsidiarity principle). To quote the report: “Welsh devolution appears to be the only constitutional settlement in the world which requires the specific reservation to the central authority of responsibility for hovercraft.” There’s support for a Welsh legal jurisdiction and devolution of criminal justice (we’ll find out more on that when the Thomas Commission recommendations are published).
  • UK Council of Ministers (or alike) – This is long overdue, but it remains to be seen how much clout such a body (which would presumably replace the Joint Ministerial Committee) would have. If it’s done well it could effectively be an unofficial UK Cabinet focused on issues which are devolved and it would make it much easier to develop things like common UK frameworks or new public agencies after Brexit instead of having one imposed on us by the UK Government.

Needs More Work

  • Mutual Respect & The Sewel Convention – In principle this is fine, but in practice the UK Government and UK Parliament have never considered itself the equal of the devolved governments (and they don’t need to due to parliamentary sovereignty). Intergovernmental working often seems a courtesy than a constitutional responsibility and there’ve been several examples of Wales and Scotland challenging decisions made in relation to devolved powers by the UK Government which have come to nothing. The report says the UK Government will have to adopt a “self-denying ordinance in respect of legislation on matters in the devolved sphere”, but you try getting them to do that. Memos of understanding aren’t enough – it has to be a written constitutional clause and/or enshrined in law.
  • Pooled legislative running costs – This was one of the stranger propositions, though not necessarily a bad idea in principle. The Welsh Government justify this by saying that as all of the UK’s legislative responsibilities are carried out by four legislatures the costs should be shared from a top-sliced amount of the UK’s budget, which could – theoretically, but probably not in practice – see the budget for the Senedd’s running costs set at least partially a UK level.
  • Involvement of the devolved administrations in international negotiations – There are some systems whereby stateless nations hold a veto on international agreements (Flanders and Wallonia concerning Belgium, for instance). It’s all well and good the Welsh Government having a say in any UK negotiating stance internationally, but it has to be backed up with a system to ensure that Welsh wishes are actually carried through and not so easily brushed aside; maybe not as a veto of a final negotiated deal, but certainly any negotiating position has to be unanimously agreed by all UK governments and ratified by all legislatures (if it involves devolved matters).
  • “Fair Funding” – Any change to the Barnett Formula to a needs-based on will almost certainly push Scotland towards the exit door; it’s the main reason why it hasn’t been reformed to date. Scotland is over-funded notionally to compensate for oil and gas revenues and Northern Ireland to aid post-Troubles redevelopment. While a needs-based funding formula would, on paper, benefit Wales at the expense of Scotland and Northern Ireland, those benefits are unlikely to be realised if the definition of “relative need” is too narrow; some of the poorest communities in the UK live in Greater London, not Wales.
  • “Spill-over effects” – Like fair funding, this might be hard to define or quantify. One example I can think of would be dealing with veterans affairs, housing and health. The UK Government ultimately employs them, puts them in harm’s way, then discharges them from military service but the Welsh Government are left to fund and provide services for Welsh veterans when they (or veterans from the rest of the UK) move here after discharge. So how would a “spill-over effect” be addressed when it’s directly relating to a reserved matter like defence or immigration policy, where the UK isn’t obligated to do anything to address its impact on the devolved administrations?

The Bad

  • Naivety & Wishful Thinking – Ifan Morgan Jones at Nation.Cymru picked up on this too. The report places a lot of faith in the UK Government and Parliament doing something. In the introduction, the First Minister mentions a Speaker’s Conference 100 years ago to discuss devolution issues which are still unresolved. Meanwhile, reform of the House of Lords has been discussed seemingly for the best part of 300 years. We have hundreds of years of experience that should tell us the UK is largely unreformable from its entrenched position as an inflexible, over-centralised, “make it up as we go along” state. Often the only way to get what you want in the UK is to aggressively agitate to destroy it.
  • Ignoring England – If, under the spirit of a voluntary union, England decided to leave before Wales (via the election of an English nationalist government at Westminster), then surely the Union ends by default? The report claims this is a union of equal partners, but ultimately it backhandedly acknowledges that it’s also an English hegemony and treats the UK Government as the English Government by default. That’s the killer. England deserves a devolution settlement too and conflating the UK with England is one of the core reasons why the UK is creaking at the seams. The question is “how?” The Welsh Government don’t answer it.
  • Rejecting a distinct Welsh Civil Service – One of the reasons the UK Government has a blind spot to devolution is because there’s a single civil service which, outside of Wales, doesn’t understand devolution. There are things we can do to improve the civil service in Wales that we simply can’t carry out at the moment. The Welsh Government don’t explicitly rule out a Welsh civil service, but it would make sense from the outset.
  • The UK’s Second Chamber – The Welsh Government say they want to reform the House of Lords in a manner which reflects the multi-national nature of the UK, but still seem willing to accept English over-representation and haven’t gone into any great detail on what exactly they want. An elected UK Senate? A UK Senate with members appointed by the devolved administrations and UK Government? How many members? How would we elect them? We’ve heard plenty of grand promises from Labour on reforming the House of Lords in the past which have come to little when they’ve been in a position to see it through.

Overall Conclusions

In the spirit of keeping an open mind, the propositions within the report are reasonable enough.

I can live with a federal UK (though it’s not my preference), but this shopping list – however modest it might be on paper – still comes across as being several steps too far for the UK’s Political Establishment to consider.

Given the pace of constitutional reforms in the UK to date, the Welsh Government would be lucky if a third or more of these propositions became reality within the next 50 years.

When the Soviet Union and Yugoslavia dissolved, some of the new nation states left reluctantly or weren’t expecting it. There were attempts to resolve internal disputes or create new federal or confederal systems (by the Croats and Slovenes). The Soviets even voted in favour of a reformed federal system (Union of Sovereign States) in a 1991 referendum (albeit with a mass boycott in secessionist states), but by the end of that year, the USSR was gone.

There comes a point where constitutional compromise becomes unachievable. I don’t believe we’ve quite reached that point yet, but the UK is in 2019 has a sense of being, constitutionally rather than socially or economically, where the Soviet Union and Yugoslavia were in the mid to late 1980s.

The sense of urgency to reform the UK is certainly there in light of Brexit, but it might be a case of too little, too late and the people who should be listening simply aren’t. While it’s right and proper that the Welsh Government considers how to patch the UK together, it’s equally right and proper that they consider laying the groundwork for independence – even if it’s only done behind the scenes reluctantly as a contingency plan for now.

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