Revisiting the predictions

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A little over two years ago, I noted some comments on the Commission set up by the Welsh Government to consider the constitutional future of Wales, predicting the likely outcome. In the light of the report which the Commission has now produced, it’s worth reflecting how accurate or fair those predictions were. Some have stood the test of time rather better than others, and, on the whole, the report is rather better than I expected. Of the six points I noted at the time, points c, d, and e have been broadly reflected in the report. It’s (pleasantly) surprising to see such a clear rejection of the federal option, contrary to my expectation in point f. Federalism has always been a very silly idea, depending as it does on a completely absent desire for change within England, but it’s a dead horse that has been so well and truly flogged by some in the Labour Party that I assumed that a commission set up by Labour would give it more credibility than it ever deserved. Whilst the data presented certainly does reflect my prediction a, it’s impossible to argue with the data, and it isn’t used as an obstacle to independence in principle. Indeed, in declaring that independence is a viable option (depending on one’s values and priorities) the commission went much further than I expected it to. It is, though, point b of my original predictions (“Wales is, in any event, not strong enough economically to be an independent country”) on which I will concentrate.

It's definitely not what they said, although it’s strongly implied in the idea that there are more risks associated with independence than with other options. But the extent to which that is true is highly debateable. If Wales were to vote for independence tomorrow and become independent on Wednesday, then it is absolutely correct to argue that the risks would be very much higher than the risk of remaining in the status quo – and that would probably be true for some years to come. That isn’t, though, a realistic scenario. There will be no referendum on independence at least until there is a majority in the Senedd in favour of holding such a referendum – and that, sadly, is not looking at all likely for a minimum of two Senedd elections, taking us to an earliest date of 2031. There would probably be another year at least before holding a vote, giving us eight years for parties favouring independence to spell out more clearly the implications as they see them before we get to vote. Given the need to negotiate the details and set up a whole range of institutions and processes in Wales, the full transfer of powers wouldn’t happen for some time after the vote; to achieve a smooth transfer my own expectation would be a period of three to five years, making independence day sometime between 2035 and 2037 at the earliest. None of that does away with the risks of independence – of course there are risks – but it does mean that we need to compare those risks not with the status quo as it is today, but with wherever the status quo leaves us 11 or more years from today.

There is a natural human tendency to believe that the status quo will carry on for ever. It’s an implicit assumption that we all make on a daily basis in deciding what we’re going to do and when, even for planning some years ahead. But Newton’s First Law of Motion tells us that things will only stay the same for as long as no force acts on events, and that is a wholly unrealistic assumption. It’s not just pandemics and wars that change things; even on a more mundane level, who would seriously have predicted that government in the UK would degenerate into utter chaos and incompetence as quickly as it has since 2015, a mere eight years ago? Economic forecasts, like weather forecasts, are rarely correct very far in advance. My basic point is that the undoubted uncertainties and risks associated with independence may not be so quantitatively different from those associated with sticking to the status quo, even if they’re apparently easier to identify. I don’t doubt that opponents of independence will use the commission’s words about risks and uncertainties to justify their stance, but independentistas should not be afraid of highlighting the uncertainties and risks associated with not seeking independence. As the commission points out, ultimately it boils down to a question of values and priorities. And that’s a battlefield on which independentistas should feel very confident in fighting.

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.

Can Wales and Scotland choose the rule of law if England does not?

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The expected announcement later today that the UK will build on its reputation as a rogue state by increasing the number of nuclear warheads it holds highlights one of the problems with all the various proposals for ‘reforming’ the UK as an alternative to Scottish or Welsh independence. Both increasing the number of warheads and developing new types of warheads are directly contrary to international treaty obligations, but we live in a state which regards international treaties as being things which bind other countries, not this one. And all the proposals for reform or federalism start off by assuming that certain issues, always including ‘defence’, are UK-wide issues, not ones for the member states of the ‘federation’.

It means that none of the proposed alternatives would enable Wales and Scotland to sign up to, and comply with, existing international treaties unless England also renounces nuclear weapons. But with both the Tories and Labour committed to the retention and replacement of Trident, there is no realistic prospect of England doing that. Unless defence also becomes a matter for the individual member states of the union, Wales and Scotland are condemned to remain part of a nuclear-armed state and, in Scotland’s case, to host the submarines, missiles, and warheads. On the other hand, if defence were to be a matter for the individual nations, then there is very little left to justify the continuation of the union from the perspective of the authors of the various ‘federation’ type proposals.

Independence is the only way forward which allows the people of Wales and Scotland to choose to opt in to the international community and the rule of law – rejecting independence is a choice to continue as part of a rogue state, with its exceptionalist attitude that only ‘other’ people are bound by any rules. The federalists never spell that out – but that’s because they mostly share both that sense of exceptionalism and a commitment to the continued possession of nuclear weapons.

Constraining England

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Yesterday’s post considered the question of why people might be looking for a federal or confederal structure for the UK. Today’s returns to a consistent theme of this blog, which is that any such solution cannot overcome some fundamental problems. Let me start by saying that I believe the UK in its current form to be doomed. Not, primarily, because of the Scottish question, but because of the Irish one. A combination of demographic change in Northern Ireland (the Irish-identifying population is going to exceed the British-identifying population by a clear margin in the foreseeable future) and the fact that whilst, in pre-EU times, the Republic looked like a very socially conservative place but, post-Brexit, it is the North which looks like the more socially conservative, a factor which will affect the younger generations particularly. That’s not to say that reunification is as imminent as some believe, merely that it will not be indefinitely delayed. That means that any federal system is inevitably concerned only with England, Wales, and Scotland. How can they effectively operate as a federation or confederation?

Yesterday’s post referred to the series of articles by Glyndwr Cennydd Jones on the IWA website. It is clear that Jones has given a lot of thought to the question of how such a confederation can work without England necessarily dominating. And his starting point – that sovereignty lies in the individual nations, not in the centre, and that those individual nations delegate authority over certain shared matters to the ‘Council of the Isles’ which exercises them jointly is a reasonable one in principle (although it’s notable that all proposals for any sort of federal or confederal approach always end up suggesting that Wales and Scotland should directly exercise less control over their own futures than the Republic of Ireland, Malta, or any other member state of the EU). I’m not sure that it solves the problem though, and I’ll illustrate that with three practical and relevant examples, two relating to defence and the third to currency, all of which would be delegated to the centre in the proposed model. I assume that, based on current polling trends, there is a Conservative government in England, a Labour government in Wales and an SNP government in Scotland.

1.    Replacement of Trident. Under the scenario set out above, the governments of England definitely, and Wales probably, would wish to proceed. Does Scotland have a veto? If no, does that mean that Scotland has both to contribute to the cost and host the facility?

2.    The US wants to invade a country in the Middle East and wants the UK to join in. England says yes, Wales probably says no (after a bit of prevarication) and Scotland says no. Are Wales and Scotland bound to contribute both money and young people’s lives to the pursuit of US imperialism?

3.    There is a large deficit as a result of paying for a pandemic, and a programme of austerity is suggested. The English government is wildly enthusiastic, and both Wales and Scotland are deeply opposed, but with a single currency and single central bank, only one side can win the argument.

In all three cases, the issue comes down to the same thing: does England, with 85% of the population and wealth, get to outvote the other two, or can the other two either singly or acting in consort block what England wants? The problem is, in essence, this:

·        If the English majority gets to decide all these issues, on what basis would such a structure ever be attractive to the likely governing party in Scotland? (Wales is different – I can see ‘Welsh’ Labour going along with this in the naïve belief that Labour might one day win a majority in England and the even more naïve belief that an English Labour government would be significantly different from an English Conservative government.) Whilst the range of powers delegated to the centre is more limited than at present, it still replicates precisely one problematic element of the current situation.

·        If, on the other hand, England’s actions can be constrained either by Scotland alone exercising some sort of veto, or else by some sort of weighted voting under which combined Scottish and Welsh votes outweigh England’s voice, why would that ever be attractive to either of the parties likely to be able to form a government in England, without whose agreement such a proposal is dead in the water?

The underlying issue with any sort of confederal system proposed for the UK is that it depends on the governments and/or electorates of all three countries being ready to accept it. Once the principle of sovereignty belonging to the parts not the whole is accepted, a simple overall majority of the UK electorate to ‘delegate’ powers to the central Council is no longer enough. Whilst the proposal put forward in the five articles is a valiant effort, I really don’t see how it addresses the inherent problems. It might, conceivably, have headed off the Scottish independence movement three decades ago, but it’s now far too late.

Why Britain?

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Last week, the IWA website ran a series of five articles by Glyndwr Cennydd Jones on his proposal for a “League-Union of the Isles”, which he also describes as “A sovereign Wales in an isle-wide confederation”. The first part is available here, and it contains links onwards to the other parts. He’s obviously given the question a great deal of thought, and attempted to fill at least some of the gaps in federalist/ confederalist thinking, and he makes a number of points which independentistas should consider carefully. I can’t help but conclude, however, that the series fails to completely overcome what many of us consider to be the fundamental flaws of the federalist/ confederalist approach. This post looks at one of those, and the blog will return to another tomorrow.

The first is that federalists often seem to be starting from an assumption that there is an inherent and necessary need for something at a UK level, and much of their thinking then revolves around what that is and how it can be achieved. In the fifth and final part, Jones asks the question, “If we were offered a hypothetical opportunity to constitute Britain from ‘scratch’ once more today, would we consciously choose the model of a centralised unitary state that we have inherited?” It’s a good question, and most independentistas, at least, would reply in the negative. It doesn’t follow, though, that we would therefore look for some other model which retained a semi-unity based on the existing elements which compose the UK, complete with an international border across that big island off to the west of Wales. For independentistas, the question isn’t what sort of UK, but whether there should even be one. And if there weren’t all that wet stuff between the east of England and the European mainland, would we even think of the British Isles as being separate and apart from the rest of Europe, or would we see it as just another part of the European landmass?

In practice, of course, we cannot start with a blank sheet of paper, we have to start from where we are, and our starting point is defined by a combination of history and geography. It is a truism that most European borders simply mark the points at which different armies were stationed the last time the fighting stopped, and the composition of the UK owes a great deal to the same factor. Nobody drew lines around ‘nations’, ‘countries’, or ‘states’; the entities which are most often referred to by those terms today largely evolved to fit the borders which military action defined, albeit leaving pockets of peoples within, and even across, borders who failed to identify with the emergent ‘nation-states’ and have clung to their own identities over centuries.

Wales didn’t choose to share a common history with the other parts of the British Isles, any more than the British Isles chose to share a history with the rest of Europe, but geography, rivalry and the pursuit of land, power, and wealth made it inevitable that we have ended up with shared elements of history whether we like it or not. Independence wouldn’t change the former any more than Brexit changes the latter, whatever the adherents of other proposition might wish. By the standards of today, parts of that shared history appear good, and other parts appear bad; but past generations would have different views – as will the generations to come.

History and geography, in themselves, are neither good nor bad, they just are what they are. Neither history nor geography dictate how people should choose to self-identify or to govern themselves, what the borders should be nor what we might decide to do acting in consort with others rather than independently. But that is not to say that our interpretation of history, the way we internalise and relate to those bits that we know and understand (which is both a major part of ‘identity’ and also different for every one of us) doesn’t affect our attitude towards the question of structures and borders, and I understand how an internalised folk memory of what the UK is leads many to want to perpetuate it in some form. It might even be fair to characterise that as the essence of ‘Britishness’. Whether federalists are responding to their own feelings of being ‘British’, or simply recognising that others feel that way is an open question. I suspect that there are elements of both involved. Both seem to be looking for a solution which combines greatly increased Welsh autonomy with a way of retaining that sense of Britishness. It’s an irrelevant question though. Whilst both are entirely honourable positions to hold, they still leave federalism, of any flavour, as a concept which first and foremost is attempting to address that problem of identity rather than the problem of two or three nations being dominated by a third. And it is that latter issue to which we shall return tomorrow.

Left hands and right hands

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Whilst some in ‘Welsh’ Labour are trying to start an internal party debate on a federalist future for the UK, their leader in England is allegedly trying to rebrand Labour as an English nationalist party. Even if the leak turns out to be an exaggeration, it’s time for the ‘federalists’ to recognise a lost cause when they see one.

Last week, I found myself in agreement with one small part of federalist Antoniw’s analysis, namely that it’s not for us in Wales to dictate what England should do. That is not, however, the same as saying that what England decides to do is not a relevant factor when Wales thinks about its own future. The problem is that, whilst I may not want to tell England how it should organise its affairs, I can only envision two potential solutions to the English problem which might make a federal solution start to look attractive to Wales. The first of those involves England accepting that a federal parliament/ government gives equal weight and voice to all four partners despite England accounting for 85% of the population, and the second involves England dismembering itself into a number of regions, each of which has a sovereign parliament equivalent to those in the current devolved administrations. One has only to state that clearly to understand why it’s not going to happen (and Matthew Parris has a good take on the problems with the ‘regionalisation’ option here). Unless the federalists have some other secret solution which they’ve thus far failed to articulate, it just ain’t going to happen. Neither the English Conservative and Unionist Party nor the English Labour and Unionist Party are ever going to accept either of the two potential options – and Keir Starmer embracing the union flag and ‘patriotism’ underlines that fact.

Turning the House of Lords into an elected Senate of the Regions and Nations with ‘some’ (i.e. limited) powers to block legislation from a largely unreformed House of Commons (which is what some of Labour’s federalists seem to have in mind - the idea of Commons reform seems to be a step too far for them) just doesn’t cut it. It seems to include an implicit assumption that the elected members of each region or nation will act and vote as a bloc in the Senate, allying themselves with other states in the UK as and when necessary. They won’t. They will be elected as members of one or other political party and will vote as a bloc according to the instructions of their leaders. And if we look at the last few elections, that would mean a Conservative majority for England in the Senate as well as a Conservative majority in the Commons: far from acting as a constraint on English power to dominate the other parts of the UK, it would actually strengthen that ability by putting both houses under the control of government whips.

If we assume that Scotland is going to become independent (although at the moment that’s still a bigger ‘if’ than many are assuming), and that Ireland becomes reunited (that seems more certain because of demographics, although again, the timescale is likely to be longer than some are assuming) then Wales faces a simple choice. We either go our own way or accept final and complete incorporation into England. A ‘federation’ between Wales and England is simply inconceivable. Instead of trying to find some fantastic way of breathing life into a moribund and unworkable proposal to reinvent the UK, which goes against the prevailing flow of English nationalism in both the Conservative and Labour parties, ‘Welsh’ Labour needs to start thinking very seriously about where it will stand in that debate. At the moment, they’re mostly looking clueless.

Flightless pigs

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A couple of weeks ago, I posted about the report on ‘radical federalism’ from a fringe group of Labour Party members. It appeared to me then (and re-reading the report hasn’t changed that view) that the proposal had more to do with finding a way of preserving the union than with addressing the needs of the people of Wales, not least because its assumptions about which powers ‘cannot’ be exercised at a Welsh level were axiomatic – pulled out of thin air with no attempt at explanation or justification.

This week, Nation.Cymru published an article by one of the report’s sponsors, Mick Antoniw MS, which ‘clarified’ his own view on the matter – and which seemed to move considerably further towards a position of acknowledging that ‘independence’ is an option. OK, he’s a member of the Labour Party, and had to get in the statutory dismissive jibe about independence being “a separatist model”. He does make some valid points, though – not least when he says that “…our understanding of independence must be more expansive and inclusive and go beyond mere structural concepts”. It has been a regular theme of this blog that the word ‘independence’ can mean different things in different contexts: for most independentistas, there is nothing at all contradictory about an ‘independent’ country deciding to share sovereignty with other countries on a voluntary basis which recognises the rights of each country. So, when he writes that, “Radical federalism and independence are not mutually exclusive concepts. What radical federalism proposes is an option which guarantees Welsh sovereignty but recognises that in the modern world in which we must share sovereignty where there is common benefit and mutual interest.” (sic), I find it hard to disagree. The devil, though, is in the detail.

Needing to share sovereignty doesn’t predetermine with whom we might decide to share it, yet the assumption that it means ‘with those other nations of these islands which happen to be part of the current UK’ seems to be taken as read. And defining “common benefit and mutual interest” is not at all the same thing as deciding from the outset – as the original paper seemed to do – that certain matters are automatically reserved to Westminster. Nor is it the same thing as saying that even on matters which allegedly lie wholly in the remit of the Senedd, Westminster would set the standards under which the Senedd must operate. Whist federalism and independence may indeed not necessarily be mutually exclusive, such a proposal is neither federalism nor independence. It is simply another form of devolution, where real power remains at the centre, rather than with the people of Wales. And it fails the test which Antoniw himself sets, i.e., “…guarantees Welsh sovereignty”. It does no such thing.

The big unanswered question to which the federalists are unable or unwilling to offer any sort of answer is how any federation can work when one part of it accounts for 85% of the population and votes. I cannot disagree with Antoniw’s statement that “The choices for England are for England and cannot be allowed to determine the choices we must consider in Wales.” However, the viability of any federation which includes both Wales and England depends completely on how – or, rather, on whether – that imbalance can be managed. I’d have a lot more time for the federalists if they came up with some workable and practical solutions which would be acceptable to any of the political parties which has any chance of governing England. Unless and until they can do that, federalism will remain a wingless beast of the porcine species.

Rewording the problem isn't a solution

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Yesterday’s post referred to the report produced by a fringe group of members of the Labour Party on the subject of what they called ‘radical federalism’. The post concentrated in particular on the way that the report failed to address the huge issue of England, and its built-in majority in the current UK parliament. It gets worse than that. The detail of which powers would reside where reveals that this is really a proposal to reverse some aspects of devolution and return key powers to Westminster.

As things currently stand, the Senedd has significant powers in areas such as health, education, and housing to set its own standards and priorities. Under the ‘radical’ proposals put forward in this report, whilst what they refer to as the parliaments of “the historic nations of the UK” would be “responsible for their economies, infrastructure and the health and welfare of their populations”, they could only exercise their powers in the context of minimum standards for “health, social welfare, human rights, education and housing across the UK”. Whilst the devolved parliaments would be allowed to exceed those standards, they would be acting outside their powers if they ever fell below them. This is not the recognition of the sovereignty of those historic nations which they claim it to be so much as the imposition of further constraints on what they can do. It amounts to reclaiming currently devolved powers for the centre. In effect, they are proposing that England sets the standards and the other administrations must follow.

If England (through its majority in the UK Parliament) decides to change any of those standards, why should Wales be obliged to follow, even if the Welsh Government considers that its immediate priority, taking account of Welsh needs, lies elsewhere? That is, surely, a political question and, ultimately, a matter for political debate between the different parties in their campaigns for the Senedd. What they propose is, effectively, devolution of administration rather than policy.

In its introduction, the report quotes, apparently with approval, Gordon Brown saying that “…we have devolution but still a centralist mindset. We have, in theory, a decentralised constitution with supposed local powers of initiative, but a unitary state that won’t let go”. It then goes on to propose a solution which precisely replicates the problem. Calling something ‘radical’ doesn’t make it so.

He's behind you (and behind everyone else as well)

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This time of the year is traditionally panto season. The theatres may be closed, and the professional actors furloughed, ‘resting’, or looking for alternative employment, but as the saying goes, ‘the show must go on’. We just need to look elsewhere for it. One of the more well-known pantomime characters is Wishee-Washee, although many know him less affectionately as Keir Starmer, a knight of the realm and scourge of the Scots. Fresh from his triumphant demand for “strong, clear and decisive leadership” during the pandemic (why he would lay down criteria which so definitively exclude himself as well as Boris Johnson is beyond the scope of this post), he’s ventured into the Neverland of federalism which has seen so many of his Scottish colleagues join the brigade of lost boys.

In evolutionary terms, a dinosaur on auto-repeat in hot pursuit of the federal fairy (aka Tinkerbell) is almost as useful as (or, to use the corollary, marginally less useful than) a crocodile which has swallowed a clock, so step forward Gordon Brown. He has apparently been closely advising Wishee-Washee on what to say, and that advice – given how effective and useful it’s been over the last ten years – has inexplicably been taken by Wishee. The result is that his grand plan to save the union, which Wishee passionately desires for reasons which he can’t adequately explain (but which don’t matter anyway in the magic of Neverland), amounts to a proposal not to have a strong, clear, or decisive policy himself but to set up a commission under the tutelage of the crocodile to tour the realm and find out what other people think before deciding what he may or may not think.

Thereafter, and always providing that the commission comes up with the right answer – the responsibility for ensuring said answer has been devolved to the crocodile, but can be withdrawn at any time as befits a devolved power – he will promise that, in the unlikely event that he wins the next election, he will implement further devolution of powers to Scotland. Wales is largely considered irrelevant because it’s in a different pantomime; and anyway Nobby the Panda Drakeford (a non-speaking role) has managed to ensure that the peasantry still vote for the ‘right’ party here. The probability that any commission advised by either a crocodile or a dinosaur will come up with concrete answers to the key questions about how devolution can be made irreversible whilst characters such as Abanazar Johnson stalk the land, and how any federal or quasi-federal system can deal with the fact that one of the member states has 85% of the population, power, and wealth is low. But it is a fairy-tale, remember. And it’s a fairy tale with a purpose – the prime objective is to provide an apparently rational basis for Wishee to agree with Abanazar that the Scots should be denied a vote on their own future whilst the commission take a few years to come up with a non-answer to the wrong question.

In a good pantomime, the villain always loses in the end, and the hero wins. It’s interesting to note that one of the best-known pantomime heroes, Peter Pan, is usually played by a petite adult woman. I’m sure the Scots can think of someone suitable for the role. And as long as life imitates art (and it usually does), the outcome is assured.

Playing the federal card

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Over the weekend, Labour’s remaining leadership candidates have been competing to see who can come up with the best way of strengthening ‘our precious union’ although none of them managed to articulate what’s so precious about it or why they want to maintain it.  And, as seems inevitable when Labour’s thoughts turn to devolution, one of them has played the federal card.  In this case, it’s Starmer, who has at least recognised that a federal UK with real power for the nations and regions means breaking up England into smaller units.  He didn’t put it that way, of course – but that can only be the outcome of setting up regional parliaments with full powers over all devolved areas.  A federation which leaves England untouched can never be a federation of equals.  In truth, what sounds like a radical plan is little more than an attempt to kick the can down the road by setting up a long-term process which will lead to a written constitution at some unspecified future date after listening to people's opinions (and guess what the reaction in England will be?).  Too little, too late.

Long-Bailey took a trip into an imaginary past where the Scottish Parliament and the Senedd “were meant to be on an equal footing” with Westminster.  (Spoiler: No, they weren’t.  That was never the intention of any part of the Labour Government which set them up.)  She went on to argue that she wants “our Scottish parliament and our Welsh parliament to feel as completely autonomous and independent as they possibly can whilst having that collaborative relationship with Westminster”.  If the relationship with Westminster is collaborative rather than hierarchical, I can see nothing much wrong with that, although it sounds a lot like what I’d call independence.  I hope that an independent Wales would always be willing to collaborate with our neighbours in these islands and beyond.  I rather suspect that “as completely autonomous and independent” as possible has a rather more limited meaning for her than for me, and that her idea of "collaborative" is rather more of a straitjacket.  And the one thing that comes through very clearly is that she somehow thinks that strengthening devolution will regain Scotland for Labour; and I suspect that party political objective is the real aim for all of them.

Nandy doesn’t seem to have had much of import to say in the eyes of whoever wrote this piece, merely talking vaguely about handing power back to the nations and regions.  It’s another version of alternative history, because the regions never had the powers (whatever they are) which she says she wants to give them back.

Thornberry sounds much more like the authentic voice of Labour which we know so well, and whilst she seems to be on course to be knocked out of the contest soon, I rather suspect that her traditional approach is the one that will actually be followed by Labour, whoever wins, after a decent period has elapsed in which to bury all talk of federalism.  Bash the SNP, label them as tartan Tories, and wait for the voters to return sheepishly to the Labour fold.  It’s not exactly been a successful strategy to date, but it does at least show that she understands the problem she’s trying to solve – it’s nothing to do with devolution, independence or the best interests of Wales or Scotland, it’s all about how Labour can win the seats it needs to form a government in London.  The problem isn’t a constitutional one, it’s about those contrary Scots refusing to vote the way they’re told to vote.

The problem with the 'f' word

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The manager of Labour’s Scottish branch office has cut a rather forlorn figure recently as she attempts to hoist the flag of federalism as an alternative to independence despite the obvious hostility of her party’s leader at Westminster.  In fairness to her, she’s not the only one attracted by the possibility of a federal structure for the UK; and I’ve long wondered whether many independentistas wouldn’t be prepared to settle for a truly federal UK as well.  Gordon Brown has been using the word since at least 2014, although it seems that his party is taking about as much notice of him as it does of Kezia Dugdale.

There is a serious problem with federalism, though, which I wonder if they’ve really thought through.  And the recent Supreme Court decision on triggering Brexit hasn’t helped.  A truly federal state depends on a clear separation of powers between the federal authorities and the individual member states, and stems from a recognition that the states are voluntary and equal members of the union.  Without a change to the UK’s unwritten constitution, it seems to me that this is simply unachievable; and the change required is so significant, that I can’t see the UK Parliament ever accepting it.

The whole constitutional settlement in the UK is based on the convenient fiction that god invested power in the monarch who in turn graciously shared it with parliament.  The usual phrase for the source of power and sovereignty in the UK is the quaint term “the Crown in Parliament”.  All laws stem from this source of authority, not from the people.  In historical terms, it’s nonsense, of course; the truth is that parliament gradually stripped the monarch of powers over the centuries.  But the fiction is maintained and sustained by a whole lot of meaningless pomp and ceremony, and it has one important consequence, which is that what parliament decides, parliament can subsequently undecide.  And that right is absolute.  

It’s the underlying problem at the heart of the devolution settlement – power devolved is power retained, and in terms of UK law, all the powers held by the Scottish, Welsh and Northern Ireland parliaments are held only to the extent that, and for as long as, the real source of power permits it to be so.  That mindset came through loud and clear during the Supreme Court hearing on triggering Brexit, and it seems to be at the forefront of the Prime Minister’s mind as she approaches the repatriation of powers following Brexit. 

Above all, it marks a key difference between devolution and federalism.  Devolution is, and always has been, about lending some powers to the new parliaments, but it isn’t about giving them those powers.  Even when that split is enshrined in law, it is a law made under the same terms and the UK Parliament has the same right to repeal or revise it.  Devolution can work on this basis, after a fashion, provided that there is a modicum of good will all round.  Federalism can’t; the powers of the member states belong to those member states and to them alone, and can only be surrendered on a voluntary basis.

So, whilst a federal approach for the UK is not without its attractions, it requires, in effect, a change to the UK Constitution to accept that the monarch and the UK Parliament are not the fount of all sovereignty, and that the constituent parts have their own sovereignty, as of right, which cannot be removed by Westminster.  To be blunt, I see no chance of the Conservative Party ever accepting that, and very little chance that the Labour Party will do so either.  In practice, the individual parts of the UK would need to become independent first, and then agree to a new union based on a different principle.  The first part of that sounds like a good idea to me; but I’m really not sure why the second would then look attractive…

Spain's opposition to Independence is not a given

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A few days ago, Gwynoro Jones published on his blog the text of a speech by Lord Owen at Cardiff University.  It’s rather lengthy, I fear, but in essence he argues that we need to establish a mechanism for moving to a federal structure for the UK.  He’s not alone in seeing that as the way forward, and I suspect that a number of nationalists in Wales, and perhaps even in Scotland, would be content, ultimately, with a truly federal structure.

The devil, though, is in the detail, and particularly, what to do about England.  Whilst England isn’t as homogeneous as some think, neither is regional identity developed to the point where splitting it into regions is a realistic proposition.  And even if it were so split, the English regions collectively would still have a strong common identity, and amount to 85% of the population of the federation, and thus hold overwhelming sway at federal level.

However, my purpose here isn’t really to discuss federalism, but to deal with one of the assertions made by Owen in rejecting other potential alternative futures.  He says, very bluntly, “The option of separate EU membership for Scotland or for Wales does not exist”.  Now, of course, it’s much easier to convince nationalists that the only way forward is federalism if you can simply take the other alternative, of independence within the EU, off the table, so I can understand why he would want to do so.  But his argument leading up to that assertion is, at the very least, open to challenge.

It is based on the assumption that other EU countries – and most especially Spain – will veto any attempt by secessionist states to seek independent entry to the EU for fear of creating a precedent which will merely encourage Catalan nationalists.  Actually, I don’t doubt that both the party currently governing the Spanish central government and the main opposition party would very much prefer that Scotland (or Wales, for that matter) did not become an independent state – it would make things less difficult for them.  However, at present, it’s an open question as to whether Scotland will establish a precedent for Catalunya or whether Catalunya will establish a precedent for Scotland; it’s hard to judge what the pace of events will be in both countries.

Let us assume, however, as Lord Owen seems to, that Scotland win that particular race to independence; how certain is it that Spain would then veto any proposal for enlargement of the EU to include Scotland (I’m leaving open the question of timing, and thus whether than enlargement is internal or external)?  The answer is far from certain – nowhere near as certain as opponents of independence like to assume.

Wee Ginger Dug highlighted a quote from the Spanish foreign minister (a source who might be supposed to know a little more about Spain’s position than Lord Owen) three years ago, prior to the Independence referendum, which read:

“Lo importante es que el derecho a decidir o cualquier otro derecho debe entenderse siempre en el marco de la Constitución y las leyes.”

“The important thing is that the right to decide or any other right ought always to be understood within the framework of the constitution and the laws.”

And actually, that’s entirely consistent with their position on Catalunya, which is a legalistic one as much as a political one.  Under the Spanish constitution, Catalunya simply has no right to seek independence unless the parliament for the whole of Spain first agrees to change the constitution.  It’s a bit like England having a veto over Scottish independence, but given the difference in the constitutions of the two countries, the implication is that Spain would ultimately accept an independent Scotland if it came about by a process which the UK recognised as being lawful.

The same minister has also said, more recently, “I may be wrong, but within four or five years England will return to the frontiers that it had in the sixteenth century.”  Hardly the words of a man who’s expecting to exercise a veto over what Scotland wants to do.  He is, of course, only one man.  As of last month, he’s no longer the Foreign Minister, and it’s possible that even when he was, he spoke for the Government’s policy in the same way that Boris Johnson speaks for the UK Government’s policy.  But whilst I can find a lot of bluster and reticence from other figures in the Spanish Government, I can find no clear statement saying that they would veto Scottish membership of the EU.

But then, I wouldn’t expect to, particularly post-Brexit.  One particular failing of the UK establishment, on which I’ve commented before, is its understanding of the importance of the European project to the other 27 members.  For the 27, it is a political project as much as, if not more than an economic one, not simply the free trade area assumed by UK politicians.  And from that perspective, it’s much more likely that they’d welcome Scotland than reject it.  It’s just that expecting them to say that in advance is unrealistic.

I could be completely wrong, of course; and Lord Owen could turn out to be right.  The point is that we simply don’t know, and can’t know, with any certainty, what the reaction to an independent Scotland would be before it happens.  They key thing here is that, precisely because we cannot know, assuming that the answer will be the one we want is a wholly inadequate way of dismissing that which we don’t want.

It’s easier for Lord Owen to dismiss independence within the EU ‘because Spain won’t allow it’ than it is to enter into debate about the merits of the case; but it’s not a robust argument.

Federalism brings more problems than the obvious one

Tweet It’s clear that an increasing number of people are beginning to see a federal UK as a way out of the constitutional nightmare which has been created by a poorly thought-out and asymmetrical approach to devolution to those parts of the UK where there was a demand.  It’s also been clear to me for many years that not a few of those who sometimes call themselves nationalists would be, on the whole, content with such a proposal.  Like Home Rule, however, it’s a term whose meaning depends on who is using it.

Plenty of others have already drawn attention to the biggest problem with a federal UK – unless England is broken down into ‘regions’, a federation in which one member comprises 85% of the whole is unlikely to pay much regard to the views of the 15% if they happen to differ.  And whilst I instinctively favour a more local approach to government, I feel disinclined to try and insist that England should break itself up into regions with which there seems to be little natural identity or affinity, let alone demand for more local power.

Certainly some of England’s larger cities can see advantages in having more powers, but unless the country is carved up into regions based on those cities and their hinterlands, what happens to the more rural areas in between them?  London could certainly make out a good case for becoming a self-governing city state, and its mayor has already hinted at such a suggestion.  (Although going even further, and removing London from the UK might be more of a blessing to the rest of us than many realise.)

There is another aspect of federalism though which has received rather less attention.  Historically, federation has usually been much more about bringing diverse ‘countries’ or ‘nations’ together than about separating them.  It’s been more to do with convergence than divergence.  And the history of federal states has often been marked by a tendency for the centre to take on more powers whilst the components see their powers reduced.  It’s a danger which is likely to be even more acute in a federation dominated by one part.

It would be interesting to see how it might pan out in practice, and how strong the safeguards for the smaller parts might be.  I don’t think there’s much chance of it actually happening though.  One thing which would have to be absolutely clear in any federal approach is that the federal parliament and government would have to be separate from the English parliament and government.  I see no sign that any of the politicians and parties wedded to Westminster are even understanding that, let alone being ready to contemplate it.

What about East Lothian and Midlothian?

Tweet The West Lothian question has been kicking around for many years as an unresolved issue; but just as there is more to Lothian than the western part, so there is more to this question than is usually asked.

The question generally concentrates on the legislative branch of government, and in that narrow context, it is hard to argue with the claim that it is unfair that MPs from outside England can vote on issues such as health and education which are, in their own areas, devolved to another legislature.  It’s made more complex by the different nature of the devolution settlements in the different parts of the UK, but the principle is quite clear.

The reverse problem applies, however, when it comes to the executive branch of government.  This side receives a lot less attention, because here it is England which gains and Wales, Scotland, and Northern Ireland which lose out.  When the UK cabinet discusses the UK’s finances, or foreign affairs, or defence issues, the English ministers for health, education etc. can and do have a direct input to the discussions, whereas their Scottish, Welsh, and Northern Irish equivalents are shamelessly excluded.  This is just as unfair as the problem with the legislature.

The problem with the simplistic responses which are being suggested by most is that they are overlooking the real cause of the problem, which is that the House of Commons and the Cabinet are trying to do different and incompatible things.  The House of Commons is trying to be both a UK parliament and an English parliament, and the Cabinet is trying to be both a UK cabinet and an English cabinet.

English votes for English laws is a good slogan, and it’s hard to disagree.  It might even be made to work, as long as the party which has a majority in the UK also has a majority in England.  But it doesn’t solve the problem with the cabinet, and the idea that the interests and views of the Scottish, Welsh, and Northern Ireland governments can ever be represented by the respective secretaries of state is complete nonsense.  They seem to spend much of their time telling those other governments that they’re doing the wrong things.

It’s not often that I find myself in agreement with even part of what David Davis says, but in an article in the Sunday Times yesterday, he said that “we have started down a road that will almost certainly lead to an English parliament, an English first minister, and an English cabinet”.  On that, I agree (although whether ‘England’ should be treated as a whole or as a number of regions is an open question.  For anyone wanting to see a stable federal solution, ‘regionalisation’ is likely to be the preferred option, but it’s a matter for the English to decide for themselves.) 

The real question is not what form the English legislature and executive take (they can keep their beloved Westminster for that, and simply elect members only from England) but what form the new federal structure should take.  Whilst the reserved matters – largely defence and foreign affairs – are very important ones, the volume of legislation is hardly enormous.  In their rush to cobble something (and we still don’t know what!) together to head off a yes vote, this is an area they haven’t even begun to think about.

Trailing Scotland

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The momentum behind the SNP’s drive towards Scottish independence shows no sign of flagging any time soon.  Quite the reverse, it seems to be growing.  And the gulf between what is happening in Scotland and what is happening in Wales is large and increasing.

Wales isn’t Scotland of course.  At times in the 60s and 70s it seemed that the progress of the two nations was on parallel paths, but the reality was that Scotland always started ahead, because of the different nature of the relationship with the rest of the UK, and the continued existence of national institutions north of the border where the equivalent institutions in Wales were organised on an EnglandandWales basis.

And whilst it’s important not to overstate the influence of individual personalities on politics, having a leader who not only believes in the aims of his party but also has the confidence and ability to articulate them with conviction has given the SNP a huge advantage over the other parties in Scottish elections.

I don’t know whether the Scots will actually vote for independence at the end of it, although I have a feeling that it will be a two-stage process – devo-max now, and independence at some point down the line.  The drive towards independence is being ably assisted by a divided opposition, which seems unable to put together any coherent positive argument for the union.  And doesn’t even seem to want to try – but believing that your case is so obvious and overwhelming that it doesn’t even need to be put looks to me like a losing strategy.

In that respect – the lack of a coherent argument for continuing the union – there is still a parallel in Wales.  With support for the independence option languishing at a low level, and the case for independence rarely being made, one could excuse the unionists here for thinking that there is no urgency to fill the gap.  That would be a mistake though; although the support for Scottish independence is now in the ascendant, it’s not that long ago that it, too, was at quite a low level.

Today’s letter in the Western Mail (available by scrolling down here) from David Melding shows that one defender of the union, at least, recognises the danger.  Not for the first time, he proposes a formal federal constitution as a means of preserving the idea of a United Kingdom whilst also strengthening the devolved bodies within the union.  I think he’s probably right; if I wanted to put forward the option most likely to preserve the union at this point, federalism is what I’d push, too.

He also, at least – and unusually for a Conservative – recognises that sovereignty belongs to the people, and if they decide to exercise it, then that is their right.  It puts him ahead of some others, who seem to believe that the people of England and Wales have some sort of a right to a veto on what Scotland decides.

But his plan will only work, as he identifies, if those in favour of the union come together and unite around it.  And that’s where his argument falls down.  His letter was in response to an article last week by Mick Antoniw, which Melding describes as ‘thoughtful’.  That wasn’t exactly my take on it.  I thought that it started out with too much stereotyping, more of an attempt to bash political opponents than engage in the more mature type of political discourse which is typical of Melding himself.  And it was more of a rallying call to the Labour Party than anything else.

The idea that the unionist parties can ever come together to agree a common response to developments seems to me to be unlikely for as long as they believe that they can individually gain more electorally by simply being negative.  David Melding seems to be one of the few who believe that politics ought actually to debate substance rather than merely score points and pursue power.  That makes him something of a lone voice on the unionist side; and the fact that he is so unusual hands the potential to the nationalist side to win the argument.

What Alex Salmond and the SNP have shown is that a political movement which seeks and exercises power can still, if it has the will, the ability, the imagination, and the confidence, articulate a wider vision and win people over to supporting that vision.  Vision and pragmatism don’t have to be alternatives; they can co-exist.  It's a lesson we need to relearn in Wales.