A Constitutional continuum

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 ‘48% per cent of the Welsh population lives within 25 miles of the border.’ The 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, work and trade without legal impediment.’ Such considerations are critical in an environment where the EU can no longer be relied upon as the mechanism for implementing shared policies and practices.

Another report titled The UK’s Changing Union: Towards a new Union (Wales Governance Centre, Cardiff University: February 2015) counsels that the ‘parties to the Union acknowledge the dominant role of England within it…but that England also acknowledges that the asymmetry between it and the other nations is of such a scale as to require tempering…by the introduction of a range of institutional mechanisms.’

So what governance options are available to Wales within our island community? To continue on the present course is to accept constitutional uncertainty and political vulnerability as illustrated by the recent debates on the Wales Bill 2016-17 in Cardiff and London, as well as 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.

The answer may rest 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 based on the definition of federalism offered by the New Fontana Dictionary of Modern Thought (HarperCollins 2000), with the word ‘regional’ replaced by ‘constituent nation’ for the contextual purpose of this article.

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 a few 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.

An alternative solution may lie in a League or Union of the Isles. This model could be summarised as a form of confederation established by treaty—in contrast to a federal constitution—which addresses the 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 implementation by the individual nations to take effect. The 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. Additionally, the cost savings realised through operating 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 desired and would address the wishes of Scotland should it vote for independence in the future. The Benelux and European Unions are examples of this kind of understanding.

Wales as a nation state within the EU is a model worth 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 would need to be in place to facilitate the necessary economic and political 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 do little to improve the population’s standard of living. This approach is likely to prove unsustainable, with uncertainty in collective aims and practices discouraging business investment, accompanied by a general drift of capital and employment prospects towards the larger partner in the east.

Therefore, to answer the question posed, there are constitutional alternatives to the present model. In November 2016, Lord David Owen wrote that a federal council, modelled on the German Bundesrat, could help ‘restore our very democracy which has 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.’

Another report titled Federal Britain: The Case for Decentralisation (Institute of Economic Affairs: 2015) explores ‘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 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 the advantage of England more than Wales, 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.