Addressing a seminar on ‘Politics post-Brexit’ at Cardiff University’s School of Law and Politics, Lord Owen set out proposals for a UK-wide Federal Council drawing comparisons with the German Bundesrat.
The big political question is how to establish a Federal structure for the UK and what is the best approach. A Constitutional Convention in all its different forms or even a Royal Commission are suggested. Whatever the forum, I am convinced it needs a specific, not a general mandate if it is to be capable of attracting full SNP
This pamphlet argues for a focused cross-party investigation of the
German Federal Bundesrat, without any commitment as to the outcome. It is
something which needs to be offered early in the term of office of the new Prime
Minister Theresa May, and is designed to appeal to the many Scottish, English, Welsh
and Irish people spread across the UK who sense post-Brexit we need a new
mechanism to hold the UK together by common consent.
A strictly limited approach to a Federal UK was put forward before Brexit on 16
March 2016 just as the referendum was getting underway by the All Party
Parliamentary Group [APPG] on Reform, Decentralisation and Devolution, sadly
without SNP representation. The Group’s report entitled 'Devolution and the Union'
included the Conservative Constitutional expert, Lord Norton, and a Conservative MP,
Lady Victoria Borwick, and its Chairman was the former head of the Civil Service,
now Crossbencher, Lord Kerslake. It made a broadly sympathetic short reference to
the Bundesrat but only a minimalist recommendation that the UK "Government
embarks upon a nation-wide, citizen based conversation to include the electorate in
matters relating to our constitutional identity." This wording emerged after careful
examination of the biggest problem, namely the asymmetrical structure of the UK.
Post Brexit this approach is too general. A “conversation” does not have the sense of
momentum that Brexit has engendered. The asymmetry of the UK is well recognized
but a design can be found which accommodates it building on the technique of
‘degressive proportionality’1. Running in tandem our exit from the EU with the
creation of a Federal UK Council is both feasible and proper.
There is no overload different people and different issues are involved in the two negotiations, but they fit together. Postponing a Federal UK Council would be an error and risks missing a moment in history.
In January 2015 in a pamphlet 'The Crisis of the Constitution’ Vernon
Bogdanor suggested that before a UK Convention gets under way it "needs to be
preceded in England at least by a learning process". He suggested a Royal
Commission or equivalent body.
But Constitutional Commissions to be effective require an all party consensus. In Scotland I doubt a Royal Commission, without a specific and focused remit, would be seen as anything other than a delaying device which is broadly how Royal Commissions are now viewed since their recommendations have been all too frequently shelved.
Prime Minister Theresa May should embrace a Convention on an all party
basis to examine the Bundesrat model as possibly, with adjustments and specific proposals, the best way of establishing a Federal UK.
If the Prime Minister does not act before the end of 2016 on the issue of a federal UK then the Labour Party and SNP should forge an initial agreement during 2017 to build a cross party Convention capable of involving other UK parties to sit in 2018 and 2019.
The atmosphere is sour in the Westminster Parliament at present for a variety of
reasons, in particular the Boundary Commission remit to reduce the House of
Commons from 650 MPs to 600 members has caused resentment and made
cooperation between Labour and the Conservatives difficult. Also the electoral
success of the SNP has made for controversy between the Labour Party and the SNP.
Some will ask: can the SNP negotiate a federal UK or are they only committed
to separation? The answers lie in a speech Nicola Sturgeon made in 2012 when not
yet leader of the SNP. Her speech in Strathclyde recorded how Neil MacCormick, the son of one of the SNP’s founders and a distinguished academic at Edinburgh
University, had distinguished between “existentialist” and “utilitarian” varieties of
Scottish nationalism, the first demanding independence simply because that is what
nations should have, and the second seeing it as a route to a better society.
In a perceptive article in the Guardian on 23 April 2015 Ian Jack who writes with
sensitivity and respect on Scotland supported this distinction. He returned to the
theme in late September 2016 in the Guardian still seeing its potential despite the
adverse Scottish reaction to Brexit.
Nicola Sturgeon recognized in 2012 that while some (by implication older) SNP
members were existentialists she was a utilitarian; for her, she said,
“the fact of nationhood or Scottish identity is not the motive force for independence ... nor do I believe that independence, however desirable, is essential for the preservation of our distinctive Scottish identity. And I don’t agree at all that feeling British – with all of the shared social, family and cultural heritage that makes up such an identity – is in any way inconsistent with a pragmatic, utilitarian support for political independence.”
Nicola Sturgeon also said that Scotland had to focus on
“the most effective political and economic unit to achieve the economic growth and the social justice that the Scottish people want’’
It is, in many ways, our version of the same question being asked across all mature western democracies: how to build a thriving but sustainable economy that benefits the many, not the few. The Westminster system of government has had its chance – and failed. Today, independence is the pragmatic way forward."
On this basis Sturgeon can, at least, conceive of a progressive alliance in a
Convention establishing a better pragmatic way forward than Scottish separation from the UK. I hope that after discussion and reflection she and the SNP would at least consider a Bundesrat-like mechanism for the UK worth examining in depth with
others from parties in the UK.
Eventual EU membership and membership of the EEA is an illusion for
Scotland as a separate entity even were it to separate from the UK and that reality
needs to be faced. Many of the gas and oil revenue assumptions on which the
SNP campaigned and lost on the referendum on separation in 2014 have been shown to be invalid by movement downwards of the price of oil and gas. Scotland is now running a 9% deficit in GDP, mostly due to the oil price falling, and yet no country is even considered as a new entrant to the EU unless the deficit is below 3%.
There is also a growing recognition in Scotland that as Spain faces a growing demand for independence from Catalonia there is an absolute refusal of any Spanish government to consider establishing a precedent in the EU. It is hard to reach any other practical conclusion that there are other countries too in the EU who will not lift their implicit veto on any separatist country being admitted. Wallonia stood out over the ratification of the trade agreement with Canada (CETA). This was fortunately changed by agreement within Belgium. It, nevertheless, was another recognition that very small countries within an existing EU country are a potentially divisive element which could be potentially even more so if they were granted independence. The option of separate EU membership for Scotland or for Wales does not exist.
At the SNP 2015 party conference Nicola Sturgeon said she was a social
democrat not a flags and anthems nationalist. She had a high profile on UK-wide TV
in the 2015 general election and the 2016 EU referendum and as a result has earned
name recognition and standing. The question of any future Scottish referendum will,
of course, hang over any constitutional dialogue on Brexit between Edinburgh and
While the Article 50 negotiations are proceeding it will probably be shelved.
For most people in England any further referendum which a UK government might
endorse should be linked to a settled will of the Scottish people with no dates fixed.
The present Westminster Parliament will not recognize another Scottish referendum
merely because Scotland voted to stay in the EU in 2016. It is a fact that the
commitment to hold an EU referendum was announced in 2013 by David Cameron
while Prime Minister well before the actual Scottish referendum vote in 2014.
Also there are profound and many-sided dangers and principled objections to the
constitutional integrity of a UK-wide EU referendum carrying within it a threat of
another referendum in a part of the UK who do not agree with the other parts. A
constitutional referendum result needs to be respected everywhere in the UK. The
case for a constitutional referendum on Scottish separation depends, as in the existing commitment in Northern Ireland for potential referenda on joining with the South, on it being exceptional not a running event. There is still merit in referenda being, as SNP leaders indicated before 2014, a “once in a generation” event. It should not be a periodic test of will dependent on opinion polls or on other UK referendum results.
What of Wales, the land of my father and mother? There are lessons to learn
from the way its devolution settlement, which was only carried in a referendum by a
minuscule majority in 1997, with Cardiff and Newport voting against, has developed
and has now achieved wide popular appeal. The devolved National Assembly for
Wales or Senedd has embedded itself into Welsh politics and culture developing a
distinct Welsh political will that has not previously surfaced in Wales since the early
Middle Ages in the days of Hywel Dda and Wales showed its new image in rejecting
Labour’s advice over the UK referendum and, in contrast to Scotland, voted strongly
for Brexit, except in Cardiff, the Vale of Glamorgan and in Y Fro Gymraeg where
most people speak Welsh.
A Constitutional Convention on the Bundesrat cannot carry any commitment to
a positive recommendation. The test is whether this model does or does not not satisfy rigorous scrutiny of its potential. Only within one situation will any UK Federal
Council legislation follow: that is when sufficient MPs are ready to vote for the
reforms in the House of Commons. A Constitutional Convention divorced from party
political manifestoes and formally agreed pre-election alliances will be a mere talking
shop or academic exercise.
What the coalition government of 2010-15 demonstrated is that the postelection
horse trading in forming a coalition government, with no prior manifesto
authority, is not a sufficient, let alone a satisfactory, basis for ensuring Acts of
Parliament. Both AV and Lords Reform put forward by the coalition were rejected:
the first in a referendum, the second in Parliament.
The lesson of all this is that on constitutional reform it is better to start
discussions between the parties before elections. Fixed Term parliaments have like most reforms, disadvantages and advantages but it does ensure that a government is likely to last long enough to legislate manifesto commitments to a Federal UK Council and overcome resistance from the House of Lords since they would lose their existing revising powers on federal legislation.
Prime Minister Theresa May, as Brexit proceeded under Article 50, established
a timetable for a formal procedure involving the Secretary of State for Exiting the EU
having talks with the First Ministers of Scotland, Wales and Northern Ireland, which
because of the power sharing executive includes Martin McGuinness from Sinn Fein.
This is a good start. The Prime Minister could call together this same forum to start an initial dialogue on a Federal UK Council initially chaired by herself and involving
defining terms of reference, participants and the timing for reporting back from a
There are complex questions about what constitutes federal legislation
and the nature of the mediation procedures between a Federal UK Council and the
House of Commons, all much better agreed under a Government-led Convention.
Meanwhile an unprecedented Constitutional dialogue is developing between
the SNP led Scottish Parliament and David Davies’ new Department in Whitehall
about the European Economic Area agreement, EEAA. The evidence that is being
evaluated is not about whether to leave the EU and the Treaty of Lisbon; that is
increasingly being taken as a given, something one might strongly disagree with but a recognition that a referendum cannot be bucked.
What can, however, shape the future is the Scottish belief that the UK’s relationship with the EEA has a lot of subtleties within it which need teasing out before any rational decision can be taken.
The submission to the Scottish Parliament by George Yarrow is attached to this pamphlet as Annex A. It is worth explaining that the EEA Agreement does not cover the following EU policies: CAP; CFP (although it contains limited provisions on trade in agricultural and fish products); the Customs Unions; common trade policy; common foreign and security policy; justice and home affairs. The UK is already opted out of the Schengen area and economic and monetary union. All these will go with the Treaty of Lisbon under an Article 50 exit from the EU before the end of 2019.
What if Theresa May decides not to create such a Convention to assess the
Bundesrat? Would Jeremy Corbyn agree that Labour should play a constructive role
in establishing such a Convention with the SNP in 2017, well before the 2020 General Election?
The first essential question, as for the SNP, is does Labour have the political will?
Can trust be established on such a focused proposition as creating a Bundesrat model for the UK?
I believe Corbyn could agree to a Convention as the UK Labour Party leader more easily now that Labour’s Scottish Party has been given greater freedom. It is obvious that UK constitutional reform has to go wider than a purely inter-Scotland political debate that will remain polarized between the SNP and Labour in Scotland up to and during the 2020 General Election.
Almost every psephologist agrees that the SNP are most likely to remain the
third largest party in the Westminster Parliament after the 2020 General Election.
That may be wrong but it must be an inescapable factor in Labour’s own calculation
of their chances of outright victory in 2020.
Corbyn has shown he has an appeal to the young, he seems to many authentic as a person and interested in extending as, he says, democracy outside Westminster. He could accept the challenge of participating in a Constitutional Convention with the SNP. But will the SNP believe he has a chance of emerging as the Prime Minister?
Many, at this stage in opinion polling, believe he cannot ever be elected Prime
Minister. History, however, often shows it is governments who lose elections rather
than the main opposition party winning General Elections.
Corbyn's unique problems stem from a lack of support as a potential Prime Minister from as many as 170 Labour MPs in the House of Commons who made their criticisms known publicly. That may diminish but it is unlikely to disappear completely by 2020. He has one very distinctive hobby as an allotment holder. In my experience of allotment holders in Plymouth they are independent figures all of a piece content in their own skin.
Corbyn is not someone the right wing press have been able, despite trying, to dismiss out of hand as a Trotskyist. Nor to depict as a hater of his country. In the 2016 annual conference in Liverpool he seemed to be readier to show he is not a pacifist and does see the need for conventional defence. His personal position against nuclear deterrence, however, may mean Labour will not be elected as a government.
Corbyn may, having secured a far more left wing programme for Labour since
1945, be content to step down as leader of the parliamentary party, as distinct from
leader of the party in the country, in the autumn of 2019 before the 2020 General
Election. The risk if Corbyn does not split the two roles is that he might well be
ousted before the 2020 election as was Lansbury in 1935i. Lansbury, the only
declared pacifist leader of the Labour Party, was denounced by Ernest Bevin, then
leader of the T&GWU, only weeks away from the General Election and stood down
as leader. Attlee stepped in as the acting leader when Labour increased its
representation in the House of Commons from 52 to 154 MPs. Attlee was then elected leader defeating Herbert Morrison and Arthur Greenwood.
By remaining just leader of the Party outside Parliament in 2019 Corbyn could
ensure much of the left wing policies he by then will probably have built into
Labour’s manifesto. Other political parties have split these two roles. For example,
when Willy Brandt resigned in May 1974 as German Chancellor over Guillaume, one
of his advisers being involved in spying for East Germany, his successor, Helmut
Schmidt, explicitly asked him to retain the post of party chairman. Later Schmidt
wondered after being forced out as Chancellor in 1982 by Hans-Dietrich Genscher
switching Liberal support to Kohl if he should have taken on both roles. But the SPD
at that time was badly split between left and right factions and one commentator
wrote about Brandt's influence,
“Under no other Chairman would the SPD have followed Government policy so far without rebelling or falling apart”
There are individual MPs in all parties who in 2016 support a federal UK
conceptually but will oppose other reforms like proportional representation to elect
MPs to the House of Commons or an elected second chamber for the House of Lords.
This reality can and should be taken into account in limiting reform initially to
considering the Bundesrat model. Such self discipline will be hard to achieve.
Particularly since proportional representation [PR] for the House of Commons is the
big prize for the Liberal Democrats and the Greens. It is, however, less so for the SNP, Plaid Cymru and the Northern Ireland parties since PR exists for the Scottish
Parliament and the respective Welsh and Northern Ireland Assemblies. Labour MPs
are still divided over introducing PR for the Westminster Parliament. These are the
realities and a reason for starting the dialogue on a federal UK in Labour and the SNP.
What of the term Progressive Alliance? Even that raises questions for a federal
UK reform. The Liberal Democrats, before they join any Labour/SNP progressive
alliance would need to show, after their record in the coalition government of 2010-15, that they are truly back again as a progressive political party in the eyes of SNP and Labour supporters. That means, for example, divorcing themselves from their
continuing support for the marketising of the English NHS as provided for in the
Health and Social Care Act 2012 which during the Liberal Democrats’ time in
coalition was opposed by Labour and even more strongly by the SNP.
No 'progressive alliance' worth the name can be credibly formed under Labour and the SNP if the Liberal Democrat party also goes on keeping their options open on doing a deal with the Conservatives again in 2020. Fortunately one of their eight MPs, John Pugh, is a signed up supporter of the reinstatement of a non marketised NHS but the former health minister in the coalition government of 2010-2015, Norman Lamb, is still equivocal at best and at worst against abandoning market driven NHS changes.
There are many other examples where Tim Farron appears to be returning to the Liberal tactic of splitting the difference between Labour and the Conservatives.
All this means that there is no need for Labour and the SNP to hurry over
opening up any cross party constitutional convention to the Liberal Democrats in
2017. Though the Greens and Plaid Cymru present no such difficulties over being
truly progressive, it would probably make more sense to ask them to participate later
with the Liberal Democrats rather than earlier. But the SNP and/or Labour may prefer to have them involved from the start, along with other parties from Northern Ireland.
Since the SNP and Labour, in coalition with Plaid Cymru, control the Scottish
Parliament and Welsh Assembly respectively they will have some resources, both
financial and in terms of expertise, to help provide key information for a Convention
and so while it will be unfortunate not to have the assistance of Whitehall its effects
can be negated by the use of academics, thereby ensuring the quality of any
A federal UK Council is radical politics such as we have not seen since 1906.
Brexit makes it sensible for the power sharing Executive in Northern Ireland to also
participate in full in a Convention if there has been progress made between Labour
and the SNP. The process must ultimately be as inclusive as possible and at some
stage it would be worth inviting sympathetic individual Conservative MPs to join.
For all these reasons, it may be wiser for the initial Constitutional Convention to be
limited in 2017 to only Labour and the SNP. Then to open up to all the other
opposition parties in late 2018-2019 if there is emerging a basis for agreement, and to encourage individual Conservatives and Unionists to participate.
To start to establish a Convention infrastructure, Labour and the SNP will need
funds and to appoint research workers, and agree on a Chair of the proceedings,
possibly an independent without party political affiliation. A broad based Convention
starting in January 2018 would still give time to absorb the implications of any
recommendations at party conferences in 2019 and make manifesto commitments
well before the General Election in 2020. This means completing the Convention’s
work by the end of 2019.
At the 2020 election party politicians would certainly in Scotland and for the
most part elsewhere in the UK be competing for votes with no electoral pacts while at the same time presenting themselves as ready to fight for UK constitutional change on a cross-party manifesto commitment not subject to a referendum.
Recently talk of constitutional reform has been firstly an academic subject and
then something to be done only by all the parties and through referendums. Yet
constitutional reform has been in the past politically very controversial. We should
remember, for instance, how, on 24 July 1911 during the Parliament Bill, the
Conservatives howled down Asquith as Prime Minister for 30 minutes in partisan
rage while he remained on his feet unable to speak until Foreign Secretary Grey
It is possible, but not certain, that the Conservatives in 2020 will oppose
a Federal UK in which case it will have to be fought for as the great Liberal reforming
government fought to end the powers of the House of Lords from 1906. Those of us
who supported Brexit were doing so as part of a much wider agenda of restoring 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, the quiet unobstrusive
patriotism of Attlee has become recognised for what it was, a proper assertion of an
identity and that national identity, whether it be Scottish, Welsh, Irish or English
deserves to be treasured as a binding force, not divisive one. It all depends on whether we can find the correct balance.
The formula for a blocking mechanism over changing the federal structures is
particularly difficult. My personal wish is for Scotland, Wales and Northern Ireland to
be given a uniquely low threshold of 16% of the UK to be able to block legislative
changes affecting a federal UK Council. But there is a stronger case for that to be
raised to 20% which would involve the need for a further 4% of the population
coming from England which ensures working across all groupings.
In the Bundesrat a built-in blocking vote of a third of the Chamber is required on some constitutional matters. This is a delicate mechanism to devise and will need a lot of discussion but if the correct balance were to be achieved it could become a powerful unifier for the UK as the US Senate has been over the centuries.
At least until a Federal UK Council is established it would be better to retain a
non elected House of Lords to scrutinise the non federal legislation from the House of Commons. But since federal legislation will pass from the Lords to the UK Federal
Council, members of the Lords would have to be very substantially reduced in size,
eventually no more than 200 members and legislation would have to limit age and
length of tenure. The advantage of letting the Lords continue is that with reduced legislative coverage it could be reduced in size by nearly three quarters without generating a huge controversy and not impact on support for a Federal UK Council.
The House of Lords for centuries shared its space with the Law Lords until they were
transformed into a Supreme Court and this dual functionality could continue
particularly if adaptation coincided with the renovation of the Parliament building.
This approach fits with not introducing elections by proportional representation.
Better to focus and to succeed in creating a UK Federal Council.
The Federal Council should, while having its base in Westminster, hold meetings in Belfast, Cardiff and Holyrood and could expect to start its life in the Westminster Conference Centre complex opposite Westminster Abbey in 2023.
It would be wise to use the 2020 party manifestoes as the basis for legislation
and not a referendum. The recent Brexit vote has not increased public enthusiasm for referendums. The capacity for the manipulation of a referendum was seen on the
Alternative Vote referendum conceded by the Conservative Party in the negotiations
with the Liberal Democrats. Every poll in the second half of that year showed AV
being won in a referendum. By February 2011 Ipsos/MORI had "Yes" on 49% and
AV looked certain to be endorsed in ten weeks time much to the chagrin of many
Conservatives and to predictions of adverse electoral consequences despite initial
claims by Cameron that AV would have few consequences. Cameron was forced to
focus on AV by Osborne who is reported to have said
"we have to win this .... thing; who cares what Clegg thinks?"
Cameron true to his character moved fast. Money was found to overpower the "Yes" to Fairer Votes campaign. Also more and more people became aware that AV was neither truly proportional nor fair and could have bizarre results. Some also saw it as yet another manipulation agreed post election inside the coalition by Conservatives and Liberal Democrats with no electoral mandate. The "No" campaign spent the last few weeks exposing the three 'Cs': cost, complexity and Clegg.
The Liberal Democrat leader at the time was ruthlessly lampooned and Cameron now talked of AV being
"bad for democracy"
Not something he ever said while the negotiations were underway. On 5 May the
referendum resulted in the "No" campaign achieving 67.9% support with 30.1%
voting "Yes" to AV. The turnout was a miserable 42.2%.
Cameron then won the Scottish referendum and ‘Project Fear’ emerged as a
Overconfident, he felt he could do the same on the EU referendum but
‘Project Fear’ across the UK backfired as did the visit of President Obama. There is
nothing unusual about this political saga. Tammany Hall politics is not confined to
New York nor to any one political party in the UK. Referenda are a device, part of
the struggle for power in democratic politics. First past the post is also part of a
struggle for retaining power. It is kept by Conservative MPs because it best suits them win and many Labour politicians believe it is better for their Party than proportional representation. The Labour left prefers to wait out of power longer in order to be more certain of being in a position to make radical reforms when in power.
Democracy can benefit from more online petitions, more sophisticated polling
of policy options, more popularly triggered debates in Parliament and elsewhere.
Jeremy Corbyn in his first appearance at Prime Minister’s Questions by asking the
question of a named voter created a more serious dialogue.
Of course, partisan politics will continue; it is the life blood of political debate. But the relentless adversarial, abrasive cockpit in the House of Commons has outlived its time and the ever larger House of Lords is an indefensible combination of patronage and privilege where peerages are seen to have their price.
Labour will need to consider how to win support for a Federal UK legislation
from some of the smaller UK parties, not just the SNP, but Liberal Democrats, Greens, Plaid Cymru, and even on improving their representation in the House of Commons.
A limited seats deal to help the Liberal Democrats and Greens in England and Plaid
Cymru in Wales should be considered by Labour if there was a manifesto agreement
on specific proposals for a Federal UK with those parties by early 2020. The widest
possible grouping of parties will help create a national mood for reform as it did for
the Liberal Party in the 1906 General Election when the Liberals offered seat deals to help Labour. My great grandfather, Alderman William Llewellyn, was then the
Liberal leader of Glamorgan County Council. He was also Chairman of the Ogmore
Vale Liberal Association and interestingly of its Liberal and Labour Association.
They made those ‘seat deals’ in Wales before the large 1906 Liberal victory to
maximize their appeal for the constitutional reform of the power of the Lords.
I have no hesitation in saying that Labour will have to become more open-minded
on the principle of individual seat deals with parties in England within a truly
progressive alliance if they are to stand a chance of becoming the government in 2020.
Pacts or deals do not involve merging of parties or the loss of their identity, but they
could be the means to power for Labour on a commitment to legislate in the House of Commons for a Federal UK.
The number of seats involved are not great but they exist where Labour not having to field a candidate in seats where under all circumstances they cannot expect to win, and where it enhances a smaller party’s chance under the first past the post system of beating the Conservatives. Gaming the system in the absence of proportional representation is a reasonable response to the first past the post distortions and it is high time Labour took a calculated decision to be involved in
this as they were to their benefit in the election of 1906.
Referendums will not be in fashion at Westminster after the 2016 EU
referendum. A Federal UK could become a post-Brexit priority with broader
support than would have been conceivable before 2016. If the Prime Minister
does not form an all party convention to consider a Federal UK Council every
possible step should be taken by Labour to negotiate key elements of a Federal
UK Council with the SNP, first which then must include as many MPs from all
the other parties as possible so as to create legislation for a Federal UK Council
as soon as possible after the 2020 General Election.