At a time when the UK is at a political crossroads, Glyndwr Cennydd Jones explores why a Constitutional Convention is required.
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, in early December, 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 Minister 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.
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 reservations—the 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.
With consideration that we are all intrinsically linked culturally and historically in modern times through shared industrial, political and international experiences, 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.
If we are indeed approaching a crossroads of sorts in our island journey, a thorough discussion of the appropriate alternative models of governance is required through a Constitutional Convention.
The problem with the above piece and previous contributions from GC Jones is his wilful ignorance of Scottish politics and how it fits with his constitutional convention theory. The problem is that it doesn’t so Mr Jones pretends that it isn’t there. It’s for this reason that we cannot take him seriously as a political commentator.
A constitutional convention was held in Edinburgh in 1989 to achieve some consensus prior to the devolution referendum that took place in 1997. Noticeably absent from that gathering were the SNP. In 2007, the SNP became the largest party and formed the first SNP administration. In 2011, they increased their majority to such an extent that they became a majority government with a working majority of 12.
Now does that monumental shift in UK politics fit in with your somewhat twee idea of a constitutional convention?
The worry must be that the monumental shift in UK politics appears to leave Wales rudderless. But in fact Wales can fit in with the “somewhat twee” idea of a constitutional convention. Here’s how:
1. The 1989 “constitutional convention” in Edinburgh was not a proper constitutional convention (CC). It had no legitimacy. No wonder the SNP stayed away.
2. A CC has the function of providing a government of the people by the people for the people. In other words it has to be directly elected. A self- or government-appointed convention is just not legitimate. You get an elected CC in one of 2 ways. Your existing legislature passes an Act providing for direct elections to a CC. The Act must not set a detailed Agenda. The Agenda must (obviously) be set by the CC. The other way, if your existing legislature will not pass such an Act, is to call for a CC of the people. This takes longer and may need several shots at it, and organic growth. But eventually, maybe after a bit of a face-off, a popular CC will acquire legitimacy. After all, the power is coming from the people.
3. The CC produces a draft Constitution. The people are asked to ratify it in a referendum. You have your brand new Constitution, designed by the people for the people and away you go, for a couple of generations or maybe 250 years.
4. This is not “twee”, RhBJ, it is how the USA and the Federal Republic of Germany were born. Both better organised than the UK. And British lawyers and politicians were of course involved in both.
5. Now apply this to Wales. No, not to the UK but to Wales. Exactly the same applies. There is absolutely nothing to stop Wales calling a CC, by Act of the Assembly or by simply holding sufficient and in the end legitimate gatherings, preparing its own Constitution and then ratifying it. We decide together what we want to run, and how to run it.
Two points to close.
The Welsh analogy should be with the CCs etc organised by 50 US States. All US States have genuine (not Wales Bill-style) reserved powers, and powers and rights light years ahead of where Wales is now. Yes, federalism. Surely we can all now grow up and agree on this? We agreed in 1905, didn’t we? Its just that hardly anyone comes out and says it now.
Is this all that revolutionary? 50 States did it without that much fuss, within a US ie Anglo-common-law culture. This process has never happened in the UK because we are not taught basic civics. A CC for Wales would ruffle a fragile unwritten (shambolic) polity based on love of the £, cricket, the Queen, “The Daily Telegraph”, no real constitution and the Sewel Convention. Oh, please! The Labour Party would not like it because they don’t like voters to have actual power, they only want them to have hand-outs from London, “the Welfare Union”. For me, “government of the people by the people for the people” does have a certain ring, don’t you think? Let me see, where have we heard these words before…… any way, I want a Constitutional Convention, directly elected, for Wales. If you know a better way out of our present shambles and £15bn pa deficit, do let me know.
“An alternative way of posing the problem might be to ask how we could better set about empowering the people of these isles …..through a political system ……”
If people want power they get it.
The people of Scotland got more power for their Parliament than the people of Cymru got for their Assembly because they wanted more power and not because they were any more “empowered” than the people of Cymru.
Not long ago the whole of the UK were “empowered” to dump the first past the post system and replace it with a fairer and more representative system. Most people exercised their power by not bothering to vote, while those that did vote, voted by a large majority to keep things as they are.
The people of Scotland are headed towards wanting independence and they are therefore likely to get it. The option most people in Cymru want of being part of the UK will therefore disappear.
Any constitutional report that omits an analysis of the possibility of a future independent Scotand and ENGLANDandwales in my opinion enters a world of denial, delusion and even in some cases deceit.
We in Wales have to deal with this question of whether the people want something better for Wales. I think there are a number of strands to this.
1. We don’t know much about Welsh opinion. I would like to see much more opinion research in Wales on Welsh issues. Difficulty here is cost of focus groups and polls. But we should have a go. Plaid are apparently putting their toe in this water. The IWA should too, no question.
2. Our Welsh leaders including Plaid need to think much more deeply about this because they have to lead opinion. Simply following opinion simply gives you the status quo including the Brexit shambles. Even Plaid seems too inclined to accept “Brexit meads Brexit” as though this was written in stone. One referendum does not a stone tablet make. Loads of EU Countries have voted to reject the EU and then changed their minds
3. The Scottish Constitutional Convention was an appointed one. So lacked legitimacy ie the support of the people. No wonder the SNP stayed away. We are where we are with Scotland in spite of the appointed Constitutional Convention, not really because of it.
Suppose we ask the Welsh people to decide on all the devolution issues: policing, broadcasting, Welsh Crown Estate, Welsh jurisdiction, fishing you name it. We would be releasing them by giving them real control over their lives for the first time. The Brexit vote was a cruel sham this respect.
At some point, when the discussion is well under way, we can ask the Assembly for legislate for an elected Constitutional Convention. Not appointed. No! No! No! As someone once said.
When the Welsh have devised their own draft Constitution, put it to a vote in Wales.
One more thing. This has been done 50 times in the USA not counting the Federal Constitution. Yes, 50 States all much like Wales, which is about the average size amongst US States. They all have reserved powers (residual sovereignty) and all the devolved powers you need, way ahead of Wales. And they all have something else which might suit Wales very well: an elected Governor, and a (bicameral) parliament which sets the Governor’s budget and passes other laws, family law, criminal law, commercial and land law, the lot really. In North Carolina, where I am, their General Assembly meets in year one for a period of months to set the budget (and legislate) and in year 2 for a matter of weeks to tidy up. They do lots of legislation and committee work. This has worked for hundreds of years, since about 1776, in NC. But better and more cheaply than we do in Wales. I personally am not so worried about “cheaply” but I do want “better”!
Yes, it depends on asking the people if they would like this. I suggest we ask them.
Just a short reply to Jonathan Edward’s remark criticising my use of the word ‘twee’ to describe Glyndwr Cennydd Jones’ proposal for a Constitutional Convention.
Anyone who suggests that we hold a Constitutional Convention and ignores the power that the SNP administration holds in Scotland and the strength of SNP representation in Westminster is living in cloud cuckoo land.
Constitutional conventions have a chance of success when there is a degree of political consensus as to which direction politics is facing in. With no clarity on the future of Brexit, with Scotland having voted to remain in the EU and Wales and England having voted to leave although for different reasons, with the First Minister of Scotland talking about a second referendum if a soft Brexit is not forthcoming, with the First Minister of Wales looking to Norway for inspiration, you show me where the political stability lies in all of that, and I’ll discuss the future of the constitution with you any day of the week.
OK Rhobat Bryn, you’re on! (Sorry for sending 2 overlapping comments. Wasn’t sure if the comments got through. Or if the Editor spiked them!)
So, How to find the consensus in Wales? I never said it was easy.
I will never forget attending the Welsh Assembly in February 2011 to witness the Assembly members voting unanimously for more powers for Wales. All of them!. Yes, even Conservatives. In fact, listening to the speeches, a lot of the best pro-Wales speeches did not come from Plaid Cymru AMs, as you would expect, they came from, well, Tories. With Andrew Melding in the mix, I suppose I should not have been surprised. So you can get consensus.
But it will not be easy now, I grant you. Without overdramatising, I think Wales is sinking to a desperate point, at which you, me, we should go right back to constitutional basics. Like Germany after WWII, or Afghanistan after their wars, this is when you have a go at a Constitutional Convention. We haven’t had a war, but we are in free-fall.
Hence my suggestion for more opinion research on Welsh opinion, Rhobat. Look for solid bits of firm ground.
Put a Constitutional Convention for Wales on the Agenda for, well, lets start with the IWA (again) and move on to the Assembly. Surely it would get past a first-scrutiny committee. What would happen to it in the Assembly after that is very uncertain, I grant you. It might stall first time round. So have another go. What finally happens in the Assembly, knowing them, may FOLLOW what happens outside it, not lead it. Because the existing parties are in free-fall too.
American/North Carolina experience has a lot to teach us here. Mr.Melding AM will get this, because he has been there (here, where I am for now) and studied in Virginia, of which NC was a sort of extension.
You did not often get a majority for Statehood. Normally a committee would meet here, then there, all over the State. Once, then more than once, all unofficial. Yes, they were talking shops, but with a glint of steel. Sincere Royalist Loyalist people did not agree with them, who were called Tories. The balance of opinion was about even, but moved to and fro. This happened over at least a decade. But this was all grass-roots politics, a Movement not an event. Eventually it got to a stage where the Tories lost by a narrow margin. Officially. Yes, North Carollna was just like Wales in 1997, it got a narrow win by a tiny margin. Which however stuck and then grew. Then formal Constitutional Conventions happened and the State got its first Constitution. Which lasted 80 years until the American Civil War when they got a new one. And again in the 1960s when the world moved on again. Seamlessly.
We are at the difficult part. Wales is in the primeval soup. I think the ingredients of life are in there. And we will find glints of steel. We need to look. And analyse the findings and where they might lead and what might emerge. A Movement? If it comes down to faith, i have got that faith. IWA – what do you say? I was a founder member, and this sort of thing was what I joined for.
I’ve taken a little time to consider where I should begin my reply given the shortage of space we have to try and conduct a civilised debate on a very complex issue. I hope I go some way to answering the points you raise.
I’m not going to start with constitutional theory, though there is a need for that level of debate in Wales. I will start with the current realpolitic and begin by addressing your points directly.
The first point to make is that political parties and institutions in the British context are not strong on constitutional theory. This is largely due to the historical influence of the tradition of the English unwritten constitution which Wales has largely absorbed. In that sense the constitutional debate has already been won. The people of Wales voted narrowly to establish democracy in their country and voted by a larger majority for that democratic institution to be a legislature. It’s also worth noting at this stage that about half of the Welsh electorate did not participate in either referendum.
Let me briefly outline the current context in which we find ourselves. The biggest issue facing the four nations of the UK is Brexit. We are all currently speculating furiously about what the UK Government’s position is on this and the current consensus appears to be that they don’t have one. This does not prevent the four nations positioning themselves in relation to this vacuum. And here we absolutely no consensus whatsoever. England does not have a Parliament (yet) but if it did, it would most likely be a Conservative one similar in composition to the current Westminster Parliament, without the presence of the SNP bloc.
In terms of positioning, the Conservative Westminster Parliament appears to be coalescing around the position that Brexit means no membership of the single market and no membership of the Customs Union. The upheaval that this will cause will be covered by transitional arrangements but the end destination keeps surfacing as a position around which the Brexiteers in England can settle.
The position in Scotland could hardly be more diametrically opposed. The Scottish electorate voted substantially to remain in the EU and they are represented by the SNP who have no intention of following the lead of the English Tories. Their strength was the size of the majority in favour of membership, their weakness is that they cannot play their trump card of holding an independence referendum since, more than likely, they would lose it. But in terms of positioning, they wish to remain a member of the single market and of the customs union.
In Wales, we voted to leave but Welsh voices calling for leaving the single market, in other words a hard Brexit, seem conspicuous by their silence. The one politician who said we should make the best of the vote and see it all as a wonderful opportunity, Andrew RT Davies, has failed to garner any significant support let alone create any political momentum. This has left Carwyn Jones pondering his option. He is happy to leave the political institutions of the EU, the Parliament, the Council of Europe and the Commission but averse to leaving the economic institutions. This is what led him to take his fact-finding trip to Norway, a country which is not an EU member but which pays to be part of the single market.
I cannot claim any substantive knowledge regarding Northern Ireland politics other than to say that fresh elections look highly imminent.
Given the context and the positioning of the nations in relation to that context, we have to ask what could a Constitutional Convention contribute to that process. Currently, the answer is very little. Most politicians of the different countries and different parties are all waiting to see how Brexit plays out. So not only is the political context unstable but there will be very little movement by the political parties in their positioning until the issues approach their endgame. At that point, it may be that a convention which establishes how the different nations will interact post-Brexit will be appropriate. But it is likely to be a pragmatic affair discussed by the four governments. But it is not assured. Post-Brexit UK may be even more polarised than it is now, particularly between Scotland and England.