In the first of a five-part essay exploring the constitutional future of the UK, Glyndwr Cennydd Jones outlines devolution, federalism and confederalism.
A sovereign Wales in an isle-wide confederation is an essay by Glyndwr Cennydd Jones, presented in five daily parts on the IWA website during the first week of February 2021.
This piece is conceived as a reflection on my constitutional writing over recent years and particularly how I came to settle on a model of a League-Union of the Isles which has gratifyingly attracted some attention.
My first essay, Towards Federalism and Beyond (June 2016), was a swift response to the outcome of the Brexit referendum, highlighting the challenges facing today’s Wales in economic and social terms.
It advocated the immediate need for a campaign to redefine the UK as a federation so that those competences returning from the European Union (EU) could be suitably allocated to the nations, along with other much needed reforms to the arrangements underpinning devolution.
Devolution
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.’
Since then, Wales has experienced executive devolution with secondary law-making powers from 1999 to 2007, executive devolution with enhanced secondary powers between 2007 and 2011, legislative devolution under a conferred powers model from 2011 to 2018, and legislative devolution under a reserved powers model from 2018 to the present day.
During this period there have also been three Scotland Acts, each augmenting powers north of the border. Nevertheless, England continues to be omitted from the devolution reforms without its own discrete national parliament.
Today, Wales and Scotland hold legislative competence over all matters not explicitly reserved to Westminster, which implies a form of federalism, but without the usual sharing of sovereignty across parliaments.
The statutes founding the devolved institutions are analogous to the constitutions regulating federal systems, both providing for and limiting powers of the legislatures and administrations, and dividing responsibilities between the territories and the centre.
“In a federation… agreed practices and rules are confirmed through a written constitution.”
Established by approval through referenda, the parliaments in Cardiff, Edinburgh and Belfast hold a measure of political entrenchment which has legal foundation in the Wales Act 2017, Scotland Act 2016 and Northern Ireland Act 1998, confirming devolution as a permanent component of the UK constitution, and detailing that the UK government will not normally introduce bills in Westminster to legislate on devolved spheres of competence.
Still, Brexit challenges this.
More broadly, as highlighted by Dr. Andrew Blick in his article A United Kingdom Federation: The Prospects (Federal Union 2018), the Human Rights Act 1998 partly reflects the Bill of Rights existing in most federal systems, while the UK Supreme Court operates several roles associated with a similarly titled body in a federal jurisdiction.
The Joint Ministerial Committee, though found wanting in its application, somewhat replicates a federal mechanism for states to participate in important central decision-making.
Despite this constitutional scaffold, the Senedd in Wales remains an institution lacking true influence and power. The customary argument that parliamentary sovereignty should rest solely at Westminster is under question.
The ‘Towards Federalism’ component of the essay’s title was a pragmatic acknowledgement of what could actually be achieved in the short to mid-term. However, it was mostly understood that the ‘and Beyond’ element had more significance than simply echoing the catchphrase of a well-known Hollywood film franchise.
A Constitutional Continuum (December 2016), my second essay, explored the developing momentum for change and reform amongst many academics, politicians and the public at large, specifically investigating potential models of governance based on partnership principles.
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Federalism
In a federation, sovereignty is shared between central and constituent national or state governments. Each level has clearly articulated functions, with some powers pooled between them, but none has absolute authority over the others.
“Questions remain on how England, with approximately 85% of the total population, could be integrated successfully into a federation without causing disputes.”
An individual is a citizen of the central overarching structure and the state within which they reside, participating democratically in electing representatives to the legislative parliaments at both levels of government, usually with a party political system operating across the whole.
Central institutions are in place to implement many taxes. Examples of federations include Germany and the USA.
Agreed practices and rules are confirmed through a written constitution, which articulates the division of responsibilities between the federal and state tiers.
It identifies those powers assigned to the centre which may typically cover: the armed and security forces; border, diplomatic and international affairs; shared public services; cross-recognition of legal jurisdictions; currency and monetary policies; a single market, and select taxation. The remainder rests with the states.
The constitution also apportions powers across two chambers of a central parliament. Representation of the states in the second chamber is desirable, allowing a firm place for them to consider laws on behalf of the whole federation, with decisions such as joining or leaving international bodies, and constitutional changes made subject to its approval.
The constitution and charter of rights, by which public institutions must abide, are enforced by a Supreme Court.
A federation sets out to provide constitutional clarity and stability across the states, with shared mechanisms in place for advancing joint interests and resolving disputes.
It also capitalises on potential for realising some economies of scale in delivering centrally held functions, allowing for a proportional redistribution of the joint prosperity generated by the federal capital to the states.
However, in the UK context, questions remain on how England, with approximately 85% of the total population, could be integrated successfully into a federation without causing disputes between both UK and English levels, and also whether the intended benefits of various functions being exercised closer to the people could be realised in such a large unit.
“The attraction of a confederation, comprising member nations of radically different sizes, is driven by a view that the UK already has more diversity than is often found in federations.”
England’s regions may well be the only practical option for inclusion in a UK-wide federal system.
Confederalism
A confederation is a union of sovereign member nations that for reasons of efficiency and common security have assigned a limited portfolio of functions and powers to a central body.
Confederations are usually established by treaty, in contrast to a federal constitution, addressing crucially shared interests such as internal trade, currencies, defence, and foreign relations.
Returned representatives take part in central decision-making processes more in the nature of trustees acting on behalf of their member nation’s affairs.
National parliaments, not individuals, are formally represented in central institutions, with people first relating to their member nation and next to the confederation.
Collective budgetary funds are raised annually through each member nation’s contributions of a defined proportion of their Gross Domestic Product (GDP). The nations operate distinct tax regimes and are free to act unilaterally in all areas, unless centrally assigned.
The Benelux Union has developed along these kinds of lines.
In the UK context, a confederal treaty typically enables Westminster to continue as the parliament of England, with a Confederal Assembly established to deliver a limited range of central powers.
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Each member nation adopts its own institutions within a broad constitutional framework—protecting the integrity of political processes and ensuring fundamental rights—whilst encountering the advantages and challenges of running a sovereign state within what is best summed up as a loose alliance or partnership.
A treaty on issues of shared concern aims to mitigate any risks and costs associated with fragmenting previously held joint functions, noting that competitive considerations between member nations inevitably complicate relationships in the context of a confederation.
Two of the more pressing challenges of adopting a pure confederal model concern the matters of large-scale economic management and currency controls. Since the central body is relatively weak, decisions made by a Confederal Assembly require subsequent implementation by individual member nations to take effect.
These pronouncements are therefore not laws acting directly upon members, but instead have more the character of agreements between nations, which are always open to challenge and review, creating uncertainty in collective, strategic aims.
However, the attraction of a confederation, comprising member nations of radically different sizes, is driven by a view that the UK already has more diversity than is often found in federations.
It was around this time that I stumbled on Confederal Federalism and Citizen Representation in the European Union (Western European Politics, Volume 22: 1999 Issue 2) by Professor John Kincaid, which took my developing continuum considerations to more nuanced ground.
In a nutshell, the article explains ‘what seems to have developed in the EU is…a confederal order of government that operates in a significantly federal mode within its spheres of competence.’
This find was without doubt a timely piece of good fortune. The realisation had dawned on me that the constitutional choice between federalism and confederalism need not be binary.
All articles published on the welsh agenda are subject to IWA’s disclaimer.
A sovereign Wales in an isle-wide confederation is an essay by Glyndwr Cennydd Jones, presented in five daily parts on the IWA website during the first week of February 2021.
