Monday, 12 December 2016

A Constitutional Continuum...

A guest essay by Glyndwr Cennydd Jones.

This substantial piece leads on from his previous essay titled ‘Towards federalism and beyond published on this website in July 2016. Writing in a personal capacity, Glyndwr is an advocate for greater cross-party consensus in Wales.

Summarising the nature and functions of today’s United Kingdom (UK), the introduction to the report titled Devolution and the Future of the Union (Constitution Unit, University College London: April 2015) explains that the ‘economic union provides the UK with a single market, with a single currency and strong central fiscal regime. The social union provides the social solidarity which binds the UK together, by redistributing revenue, and pooling and sharing risk through welfare benefits and pensions. In the political union, every part of the UK is represented in the Westminster Parliament, which manages the economic and social unions, and as the sovereign parliament can itself reshape the political union.’ However, the report goes on to highlight that ‘Whitehall lacks capacity to think about the Union because it has relegated it to issues of devolution on the fringes’ and that ‘devolution policy making has become rushed to the point of recklessness.’

This observation is mirrored in the Constitutional Convention report (Institute of Welsh Affairs: April 2015) of the same month which asserts that ‘policies around the UK and the union have been dealt with in an ad-hoc and reactive manner and there has been little cohesive thought to address the role of the union as a whole.’ Interestingly, respondents to the convention felt that ‘UK Government policies were often detrimental to Wales and not in keeping with the grain of public opinion’ and that there was a lack of ‘vision about what the union should provide for each person in the UK regardless of whether they live in Belfast or Bangor’.

These challenges have been brought sharply into focus over recent years through the increasingly differentiated politics across the four nations as well as the vigorous debates about English Votes for English Laws, a second independence referendum for Scotland and the Wales Bill 2016-17. For example, a consultation on the design options for an English Parliament is presently in progress at the Constitution Unit, University College London. The outcome of the European Union (EU) referendum in June 2016 has compounded events even further, particularly in relation to determining the correct constitutional process for triggering Article 50 of the Lisbon Treaty.

The UK Supreme Court, last week, heard cases for and against whether Parliament not Government should have the authority to activate the process for exiting the EU. Speaking on behalf of the First Minster of Wales, Carwyn Jones, public law barrister Richard Gordon QC stressed in his written submission that the UK is now ‘a voluntary association of nations which share and redistribute resources and risks between us to our mutual benefit and to advance our common interests.’ He elaborated by explaining that the Assembly exercises a plethora of powers through EU law and that ‘devolution is about how the UK is collectively governed by four administrations which are not in a hierarchical relationship to one to another.’ The tone of this assertion is enlightening as the language alludes to a more quasi-federal framework of relationships between the four nations rather than the devolved and reserved powers model in place within an overarching unitary state.

Pausing for a moment, we should not underestimate the extent to which the UK’s entry to the EU during the 1970s tempered a measure of perceptible disenchantment across the isles at a time when constitutional matters had just been explored in some detail by the Crowther/Kilbrandon Royal Commission, resulting in the devolution referenda of March 1979 in Scotland and Wales. It could be suggested that EU membership was instrumental in promoting respect for the rich cultural diversity of peoples within the UK and the range of languages spoken.

If we are indeed approaching a crossroads of sorts in our island journey, what are the alternative models of governance available? With consideration that we are all intrinsically linked culturally and historically in modern times through shared industrial, political and international experiences—whilst acknowledging the assorted ancient traditions of our roots—this question prompts a range of responses depending on where one places an emphasis on the economic to social measuring scale. An alternative way of posing the problem might be to ask how we could better set about empowering the people of these isles from Lands End to John o’ Groats and Londonderry to Newcastle in improving standards of living and personal fulfilment through a political system and ensuing policies which promote economic success regionally, nationally and globally whilst maintaining internal and external security...

It was Ron Davies, former Secretary of State for Wales, who said before the dawn of the Welsh Assembly in 1999 that ‘devolution is a process not an event’. Though wholly appropriate at the time, it was a statement most likely born of an acknowledgement that the arrangements for Wales would limit the likelihood of progress from the beginning, particularly when compared with the robust powers offered to Scotland. The journey ever since has been one of uncertainty, lacking in strategic direction. Lord Elystan Morgan recently summed up this viewpoint by explaining: ‘when you deal with a long period of transferring small powers, day in day out... you create a situation that almost guarantees some constitutional neurosis on the part of Welsh lawyers’. He further asserts that ‘the Wales Bill 2016-17 is deeply flawed and a blue print for failure and disaster’ particularly because of the ‘fact that there are about two hundred reservationsthe very nature of which makes the matter a nonsense.’

Does a dependency governance structure predictably result in a dependency culture, to which despite eloquent arguments to the contrary, the economic profile of the UK’s constituent parts might uncomfortably attest?  Does a unitary state system with devolution included as an adjunct compare awkwardly to the relationship between a parent/guardian and a young person in terms of developing accountability and responsibility?  Is it only by seeking greater independence that individuals are empowered to make informed decisions and accept the consequences of their actions in time—and to take account of the legitimate concerns and opinions of others for the wider benefit? In national terms, there is indeed a clear distinction between the existentialist and utilitarian views of self-government. The former demands more autonomy simply because of a belief that it is the natural right for nations, and the latter considering it as a path to a better society—to achieve the most effective political unit to secure the economic growth and social justice that people deserve.
So any constitutional settlement for these isles must take account of the economic and social interrelationships between the four nations. Such considerations are critical in a political environment where the EU cannot be relied upon as the mechanism for implementing shared policies and practices in the future. The report titled A Constitutional Crossroads: Ways Forward for the United Kingdom (Bingham Centre for the Rule of Law: May 2015) highlights that the ‘border between England and Wales is crossed about 130,000 times each day’ and that ‘forty-eight per cent of the Welsh population lives within 25 miles of the border with England.’ Many people living in Wales have close family and friends in England as well as vice versa. Human considerations of this kind cannot be ignored in the discussion. The Bingham report recommends that the ‘UK should remain a fully integrated single market with a single currency and common macro-economic framework in which citizens are free to live, to work, to trade and to retire without legal impediment.’

It is therefore essential that the ‘four countries of the Union severally and together commit to the principle of shared solidarity, collaborating for the common good and for economic and social cohesion across the UK as whole.’ This statement is taken from the report titled The UK’s Changing Union: Towards a new Union (Wales Governance Centre, Cardiff University: February 2015) which explores some of the potential core principles underpinning a possible settlement. In particular it goes on to suggest that the ‘parties to the Union acknowledge the dominant role of England within it and that England has its needs and rights, but that England also acknowledges that the asymmetry between it and the other nations is of such a scale as to require tempering, in the interests of fairness, by the introduction of a range of institutional mechanisms.’

What are the specific governance options available to our island community? To continue on the present course is to accept constitutional uncertainty and political vulnerability as illustrated by the recent lively debates on the proposed Wales Bill 2016-17 in both Houses of Parliament and the process for triggering Article 50 in the UK Supreme Court. Devomax may rank as an attractive solution to some, but even this does not address the ambiguity and complexity introduced by the general primacy of Westminster and the inherent challenges presented by the unitary state model—accompanied by the now disconcerting shadow of a potentially hard ‘Brexit’ imposed on all four nations.

It has been broadly suggested that the answer rests somewhere in a ‘system of government in which central and constituent nation authorities are linked in an interdependent political relationship, in which powers and functions are distributed to achieve a substantial degree of autonomy and integrity in the national units. In theory, such a system seeks to maintain a balance such that neither level of government becomes sufficiently dominant to dictate the decision of the other, unlike in a unitary system, in which the central authorities hold primacy to the extent even of redesigning or abolishing constituent nation and local units of government at will’. This is the definition of federalism offered by the New Fontana Dictionary of Modern Thought (HarperCollins 2000), with the word ‘regional’ replaced by the term ‘constituent nation’ as italicised for the contextual purpose of this essay.

A Federation of the Isles could indeed bond the principles of empowerment and responsibility with accountability and authority to provide constitutional clarity and stability across the constituent nations and the whole, especially with established mechanisms in place to progress joint interests and resolve disputes. It would also capitalise on the potential for realising economies of scale in the application of some key centrally-held functions—such as currency, defence, foreign relations and the internal market—as well as a greater projection of political influence to attract investment internationally. Examples of federations include Germany and the USA.

Others hint at a League or Union of the Isles as a solution. This model could be summarised as a form of confederation established by treatyin contrast to a federal constitutionwhich addresses the crucially shared interests of internal trade and currency as well as defence and foreign relations, if so desired. Under a confederation-type arrangement the central body is relatively weak,  compared with a federal parliament, as decisions made by a ‘council’ of member nations would require subsequent implementation by the individual nations to take effect. These pronouncements are therefore not laws acting directly upon individual members, but instead have more the character of agreements between nations.

A League or Union of the Isles presents to each member nation the advantages and challenges of acting as an independent state within an isles-wide alliance. A treaty on issues of joint concern would aim to mitigate the risks associated with fragmenting previously delivered common functions. However, competitive considerations between member nations would have more prominence when negotiating within a confederation-type relationship, balanced against the consensus-built model offered by federalism. In addition, the probable cost savings realised through the operation of officially shared mechanisms in key areas would not be secured. Interestingly, a League or Union of the Isles could invite the participation of the Republic of Ireland if it so wished. The Benelux and European Unions are examples of this kind of understanding.
Wales as a nation state within the EU is worth mentioning as a model for further exploration in time, but would not be realistically workable if England—Wales’s largest social and trading partner—was not also in the EU. A form of League or Union of the Isles would need to be in place to facilitate the necessary economic, political and social relationships. The Welsh public also effectively voted against EU membership in June 2016. It goes without saying that an independent Wales acting on its own outside European or isles-wide agreements would have limited longevity, doing little to improve the population’s standard of living. Some might suggest that Wales’ operational interactions with England could be satisfactorily addressed by a bilateral treaty, but this approach is likely to prove unsustainable over time with uncertainty in collective aims discouraging business investment, accompanied by a general drift of capital and employment prospects towards the larger partner in the east.

Similar could be said of an Atlantic Union comprising treaties between Wales, Scotland, Northern Ireland and potentially the Republic of Ireland—with all participants in the EU too. This model has little economic and geographical traction. For example, Scotland may find access to greater opportunities through participation in a Scandinavian treaty of some description, and the Republic of Ireland is already a long-standing member of the EU on its own accord—does it need to concern itself directly and singularly with Wales at this level of formality? 

So to answer the question posed, there are indeed constitutional alternatives to the present unitary system with devolution tagged on since 1999. In early November 2016, Lord David Owen issued a pamphlet calling for a cross-party convention to consider the creation of a federal council modelled on the German Bundesrat. He writes passionately that such an institution could help unite the UK in the aftermath of the EU referendum and ‘restore our very democracy which had been distorted by the false claim of post-modernism that the days of the nation-state were over. Far from being over‘ Lord Owen insists that ‘national identity, whether it be Scottish, Welsh, Irish or English deserves to be treasured as a binding force, not a divisive one. It all depends on whether we can find the correct balance.’ The pamphlet goes on to explore a federal model which invites participation of the English regions. A similar outlook was expressed simultaneously by Gordon Brown in an article titled A Revolt of the Regions (New Statesman: 3  November 2016). The former Prime Minister’s intervention prompted the following joint statement by London Mayor Sadiq Khan; First Minister of Wales Carwyn Jones, and mayoral candidate for Greater Manchester Andy Burnham: ‘Only by achieving a new, fair settlement for all nations and regions can we be sure of saving the UK from further fracture’ and ‘tackling rising inequality’.

Another report titled Federal Britain: The Case for Decentralisation (Institute of Economic Affairs: 2015) advocates ‘a federal state...with Scotland...England, Wales and Northern Ireland separately, becoming nations within a federal union. The federal government should have a very limited number of powers including defence, foreign affairs and border control and a small parliament and executive.’ It affirms that ‘no other proposed solution to the English question can provide the same stability or beneficial economic outcomes.’  The establishment of a federal UK with England, as one unit, alongside Wales, Scotland and Northern Ireland presents opportunities and challenges in terms of a proposed constitutional settlement for these isles. For Wales, Scotland and Northern Ireland, the real challenge of such a structure is that England’s population equates to over 84 per cent of the whole, approximately accounting for 55 million individuals of an overall 65 million. London’s economic prominence is also a significant consideration.
England, as a nation, is indeed a better counterpart to Wales and Scotland for participation in a federal configuration than the English regions, due to its stronger political and social cohesion. However, a bicameral federal parliament—formed to deliver those responsibilities consigned to a central level as defined by a written constitution—with an upper chamber comprising representatives of London, Edinburgh, Cardiff and Belfast would inescapably raise questions around the number of votes assigned to each constituent nation if influenced by population sizes. This approach is explored by David Melding in his book Will Britain Survive Beyond 2020 (Institute of Welsh Affairs: 2009).  A constitutional court would strive to guard the privileges of all governance levels, but any counter-balancing mechanisms introduced to support the sharing of authority centrally must be easily understood by the civil service, politicians and public to ensure coherence and harmony. An alternative would be a unicameral model.

An English government would, in principle, be supported by the authorities of Greater London and other city regions at the direct level of governance beneath—mitigating the risk of over-centralisation in relation to the sizeable population of England. The historical counties may also aspire to an aspect of autonomy. Quite naturally, the actions and choices of one constituent nation could have negative or positive consequences on others in a federal arrangement as highlighted in the report A Federal Future for the UK: The Options (Federal Trust for Education and Research: July 2010). Various scenarios would need to be deliberated earnestly when designating powers within a constitution, including appropriate instruments for resolving disagreements.  Governments must be discouraged from misusing any possible advantages they possess on specific issues. Areas of potential contention might include, for example, the economy of England, the oil of Scotland and the water of Wales. 

In April 2016, the Wales Governance Centre at Cardiff University issued a report titled Government Expenditure and Revenue: Wales 2016 which identified total public sector revenue in Wales as £23.3 billion for 2014-15, approximately 3.6% of total UK revenues of £648.8 billion. The largest source of Welsh revenue was Value Added Tax followed by Income Tax and National Insurance Contributions. This composition contrasted significantly with the UK as a whole where direct taxes such as Income Tax and Corporation Tax constituted a larger proportion. The report also estimated managed expenditure in Wales for the same period as £38 billion, approximately 5.2% of total UK expenditure of £737.1 billion. Social protection accounted for most of Welsh expenditure, including social security payments and pensions etc, followed by health and education. The Assembly government in Cardiff and local authorities were responsible for 53% of this total spend with the remainder attributed to UK government departments.  Therefore, greater fiscal devolution presents opportunities and risks. In the medium to long term much depends on how a more influential Welsh government and an informed public respond to financial empowerment, whilst questions remain on how the deficit should be supported during transition whether through adjustment of the Welsh block grant and/or borrowing.

A federal parliament, most likely London-based, would need to promote equality in sharing baseline investment, particularly in relation to a redistribution of a proportion of the joint prosperity generated through the federal capital to the constituent nations. To again quote from the report titled UK’s Changing Union: Towards a new Union (Wales Governance Centre, Cardiff University: February 2015) we should explore a ‘system for determining the fair distribution and redistribution of financial resources on a clear statutory basis...designed to be equitable between all parties on the basis of examination of needs and with no expectation that transfers would be continued when needs had been met satisfactorily.’

Despite the comparative scale of England contrasted with Wales, Scotland and Northern Ireland, the benefits of moving towards a federal arrangement significantly outweigh the challenges faced. Gwynoro Jones, an experienced political commentator on matters of Welsh devolution, went on the record in September 2016 as stating ‘I believe that the future lies, at the very least, in a self-governing Wales within a Federal UK. An argument can be made for going further...’  The impetus required to initiate progress from the unitary state model—with devolved and reserved powers allocated variously across the piece—is presently gathering apace. As already highlighted, this momentum is underpinned by the increasingly differentiated politics across the four nations and the spirited deliberations about English Votes for English Laws, a second independence referendum for Scotland, the Wales Bill 2016-17, Brexit and even the Trump phenomenon which, to some degree, has implications beyond the USA.
On balance, the progressively sustainable model rests somewhere between a Federation and, in time, a League or Union of the Isles. In the crudest of terms, the former option has aspects of a safety net deployed with shared mechanisms for core functions and policy portfolios to support the realisation of economies of scale in delivery, and greater projection of joint interests across constituent nations and the world. The latter option allows for consensus building and negotiation between fully empowered member nations, but with some risk of competitive considerations and disputes holding-up relationships. A League or Union-type model might be to England’s advantage more than Wales, Scotland and Northern Ireland due to its larger economy and size of population, but we should not underestimate our shared concerns, as an island community, in defence, social mobility and trade for which an incline towards Federation would provide constitutional clarity, comfort and confidence.

To paraphrase an old Chinese curse which doubles as an expression of the opportunity change presents ‘We live in interesting times’.