The problem with federalism

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Those who wish to perpetuate the union between England, Scotland, Wales and Northern Ireland seem increasingly to be falling into two distinct camps. The group currently in the ascendant seem to believe that the English centre can simply impose its will on the peripheral parts of their kingdom and reinforce a common identity by the prominent display of symbols and the deployment of random royals for the natives to wave flags at. As strategies go, it’s pretty dumb and more than a little tone deaf; more likely to have the opposite effect to that intended. There is, though, a more thoughtful group of unionists who recognise that simply trying to eliminate non-English identity and any desire to express that identity through political institutions is counter-productive. For them, continuation of the union depends on reimagining and repurposing it to make it fit for the twenty-first century instead of attempting to return to the eighteenth. It’s a group which includes the Welsh First Minister, whose twenty point plan was the subject of yesterday’s post.

Quite apart from the fact that they can be and are being ignored by the so-called muscular unionists, and leaving aside that their attempt to envisage a new role and purpose for a union which has outlived its usefulness rather than think more creatively about what would best serve current needs betrays a sense of small-c conservatism, they face a huge legal and constitutional problem: they can’t deliver on their proposals, even if we cast aside enough cynicism to believe for a moment that they really, really want to. Everything they say depends on an assumption that an unwritten constitution based on the principle that absolute sovereignty is vested in the Crown acting through Westminster can be bent so as to allow the existence of the Senedd and the Scottish Parliament to be declared unchangeable, and their powers never overridden, without the consent of those bodies or the people who elect them.

It can’t, and the outcome of a court case in Belfast yesterday underlined the reason why. The court found that the Northern Ireland Protocol did indeed conflict with the 1800 Acts of Union, but that the legislation implementing the protocol overrode the relevant provisions of those Acts, in effect repealing them. Even if new legislation does not explicitly state that any previous legislation to the contrary is repealed, that is legally what happens: new legislation always supplants anything older which is different. A constitution which gives primacy to the idea that no government can ever bind its successors can never provide the sort of guarantees that the Drakefords of this world claim to be offering. Whatever Westminster legislates for it can subsequently reverse and there is no mechanism under current UK law to prevent that happening.

Some might argue that once an Act is passed declaring the existence of the Senedd, and its powers in devolved areas, to be inviolable, it would be political considerations rather than the purely legalistic ones which would be uppermost. The Johnson government, with its willingness to ignore convention, regulation and the rule of law, let alone political opinion in Wales or Scotland, demonstrates comprehensively why that is no defence. And even if it turns out to be a (comparatively) short-lived phenomenon, there can be no guarantee that England will never elect another similar government in the future, even if it does manage to un-elect the current one in the near future.

None of that makes it absolutely impossible to enshrine the existence of the Senedd into the UK’s constitution, but I doubt that there is an irreversible way of doing so without moving to a wholly, or largely, written constitution with safeguards preventing constitutional change through simple parliamentary majority. That is something to which the current governing party of England is unlikely ever to agree, and there is considerable doubt about whether the main opposition party in England is open to the idea either. And who can blame them? What, exactly, is the incentive for a party which has gained absolute power under one system to immediately change that system for one which places constraints on their actions? In any event, it’s a project which would probably take decades to accomplish, with commissions and enquiries galore along the way. However sincere the federalists might be, demanding that we set aside all aspirations for statehood in the short term in exchange for the hope of a highly improbable outcome in the longer term is tantamount to telling us that we must put up indefinitely with the current situation. If we fall for that, we will have only ourselves to blame.