Tuesday, 28 July 2020

The illusion of devolution

There was a time, a decade or so ago, when I attended a number of meetings of various Communities First groups across Carmarthenshire, in case any of the attendees wanted to use Welsh during the meeting. One such meeting sticks in my mind, when one of the CF workers told the ‘clients’ (or members of the local community group as I prefer to call them) that whilst they might, one day, be able to put together a plan for some scheme or other, they hadn’t reached that point yet, so the team were there to do it for them. I’m certain that the individual concerned was well-intentioned, but it struck me as a good example of one of the things that was going badly wrong with the whole CF project. It came across as patronising and condescending; a project which was supposed to be about empowering communities seemed in this case to be actively disempowering them. I don’t doubt the short term effectiveness of employing people to ‘make things happen’ in communities faster than would otherwise be the case, but I seriously doubt that it had the desired longer term impact. Indeed, I wonder whether the approach didn’t leave some communities less well-equipped to take their own initiatives when the funding stopped than they would have been beforehand.
There’s a parallel, of sorts, with the devolution process in Wales, which came to mind when the UK government decided last week not to allow the Welsh government to dip into its own emergency reserves to deal with the current emergency. Whilst devolution was, allegedly, supposed to empower Wales, in practice it sometimes does more to highlight the limits on that power and the extent of dependence, particularly faced with a UK government keen on centralisation and uniformity and utterly unsympathetic to any alternative views. Power devolved is, and always was, power retained, and it’s a conundrum to which those who support devolution rather than independence have – and can have – no answer. Unless the powers ‘devolved’ are somehow immutably written into law (a concept alien to the UK constitution), they can always be limited or reclaimed by the centre.
Labour’s devolutionists, and the Lib Dems as well, regularly bring the federalism fairy out of its cupboard and give it a good dusting, but, like the fairies at the bottom of the garden, it’s an entirely imaginary creature. Quite apart from the imbalance between England and the other nations, a federal solution would require a formal acknowledgement that the power of the various parliaments stems from the people that they represent, not from the crown-in-parliament. In effect, in one form or another, it requires a formal written constitution. Anyone in ‘Welsh’ Labour, or in the Lib Dems, who believes that any conceivable UK government is going to concede that is, him or herself, already ‘away with the fairies’.
That leaves one – and only one – way in which the rights of the Welsh people and parliament can be enshrined and protected, namely independence. An independent Wales could always, if it wished, agree to pool and share some of its powers with our nearest neighbours, by agreeing international treaties which specify rights, obligations, and oversight of compliance. And it could always remove itself from those treaties if it wished – but, crucially, the countries with which any such treaties were agreed could not unilaterally take to themselves those powers thus shared which is what the UK government is able to do with impunity at present. Independence would allow Wales to establish that sovereignty lies with the people, whilst allowing England to continue to pursue its delusion that God vested sovereignty in the monarch who graciously agreed to share it with parliament.
Devolution can never empower anyone, because the power is always and necessarily illusory. Devolution isn’t some sort of halfway house between centralism and independence, it’s an attempt to delude people. Local management of central policy isn’t empowerment, it’s an attempt to improve administrative efficiency – and it may not even be the best way of achieving that. I accept that some sincere devolutionists really thought that devolution would empower Wales, but Johnson’s government has shown why that doesn’t and can’t work in the long term; the centre can rein in the devolved legislatures at any time of its choosing. Anything other than independence is merely a form of porcine lip decoration.


dafis said...

A succinct yet masterly description of the core issues. Independence itself will bring challenges as to how to go about empowering communities but a lot of those challenges won't break a bank anyway so let communities make mistakes as they learn and grow in confidence. Same principle as delayering of management in business organisations. Too many suits end up getting in the way and f**k**g things up.

Spirit of BME said...

Good post. Hear, Hear.

CapM said...

For support for independence to gain traction boils down to the idea that -we are different to them, which of course includes - we want to do things in a way different to the way they do things.
Although I agree with general point about Devolution deluding it together with Covid has allowed the - we are different - idea to be exposed to a Welsh public that don't usually have to contemplate it.

Jonathan said...

" Anyone in ‘Welsh’ Labour, or in the Lib Dems, who believes that any conceivable UK government is going to concede (a written constitution) is, him or herself, already ‘away with the fairies’. Well, Borthas, I believe that the UK government CAN be made to concede a written constitution. I don't say its easy, but I am not away with the fairies. Here's the sequence
(1) CapM is spot on. It is all based on the idea that "we want to do things in a way different to the way they do things".
(2) We must face the fact that some in Wales don't want to be different from England. Then we need to decide - do I care enough to challenge the status quo? Am I prepared to make some sacrifices, endure some uncertainty, perhaps a stand-up row? Like a lot of older (ex-)Plaidies, I am. Borthlas I know did make many personal sacrifices eg in Carms. Then you have to calculate: Ok how many others also want to push for a written constitution? If you can get to 20-25% you can push for 33% and then you are near a tipping point, because the out and out antis won't be more than 25%.
(3) A written constitution is the touchstone, because it is how most of the rest of the civilised world operates. The issue is not - what will its terms be? They are all much the same. The issue for Wales is - am I prepared to assert the existence of Wales. This is the gut, core issue.
(4) How do you get a written constitution? Well there's a conundrum. London won't want to concede one, true. But once Wales asserts itself, London pretty much has to concede. Just tick off the names among former colonies: 13 US ones, India, Ireland, S.Africa, the list goes on and on. They asserted - they got.
(5) Ok, this is the process. So how long and weary is the road? Nobody said it was easy or immediate. There might be bloodshed (13 x US, Ireland) or there might not (Australia, NZ). But it will take several shots at it. Germany did it with 2 Conventions and no violence after WW2, but that might be unusual. Ireland, or New Zealand, may provide a better template for Wales.
But it all starts with that gut conviction, and the willingnes to challenge. The need to fight for a written constitution can't be dodged. Does that sound like Wales 2020?

John Dixon said...


I wonder if we're talking about the same thing here.

My point is that enshrining the rights of a Welsh legislature within the UK in such a way that they can't simply be removed again if the membership of the Westminster parliament changes requires a written constitution for the whole of the UK. (And that, incidentally, might turn out to be something of a poisoned chalice for independentistas anyway.) Any other approach falls foul of the principle central to the UK that no parliament can bind its successors. Such a written constitution can only come about (under current rules) if a majority in both houses of the Westminster parliament agrees to it. I can't foresee any circumstances in which either Labour or the Conservatives would agree to such a change; they are both utterly wedded to the current definition of sovereignty. Could they be shifted from that position if there was a majority amongst the population at large for a change? I'm not so sure that they could. And whilst I can see a path to gaining majority support for such a proposal in Wales and Scotland (both feeling threatened under current arrangements) I simply don't see what event, or combination of events, is going to give the issue sufficient salience in England. And if it's only an issue in Wales and Scotland, we know from experience that the centre will be quite happy to ignore it, under a government of whatever colour.

A written constitution for an independent Wales, however, is another kettle of fish entirely. Not only is it possible, it seems to me almost inevitable; but having a written constitution after the event doesn't protect the Senedd's powers before the event.

CapM said...

To Jonathon
"...the UK government CAN be made to concede a written constitution.."

Northern Ireland is problematic and would dare I say likely bring troublesome outcomes for any type of written UK constitution.

Scotland - I'd bet they'd vote against any UK Constitution that limited the possibility of independence and if a constitution was imposed it would precipitate independence.

Cymru - if England ever did decide that a written constitution was in their interests I can't see it doing anything other than incorporating Cymru into a perpetual Englandandwales (Global brand ENGLAND). Would we act like Scotland?

A written constitution seems to me to be a holy grail for federalists who it must be remembered are people who want the components of the UK (or at least Britain)to be bound together in perpetuity

Jonathan said...

Borthlas and CapM make the same point, that there is a sticking point when you try to move between a Welsh Constitution that is subject to Westminster, meaning you can't move to a Welsh Constitution that is not subject to San Steffan but free, that of an independent Wales. Yes, there is a sticking point. So what do you do when you hit it? Essentially you continue the "process, not an event" and you continue to assert yourself for the next bit. Look at this list of stages in the path taken by our cousins in the Republic of Ireland, which is independent (and happy in the EU btw). See https://en.wikipedia.org/wiki/List_of_Irish_constitutional_conventions
Ireland had its Third Dail version of a constitution in 1922 (subject to Westminster, Dominion Status, Federalist, exactly what Borthlas and CapM have in mind). And then Ireland got its Eighth Dail constitution 15 years later in 1937, the true Independence one.
You have to picture what Ireland was up to after the 1922 Federal/Dominion stage and working towards the 1937 Independence. In crude terms Ireland was asserting itself further against London by all possible means. Including civil strife. I am not recommending this for Wales. It is not inevitable. But at lease some Irish thought some violence necessary. this was the British Empire after all. In international law terms, the Irish were working towards fulfilling the criteria for recognition by the community of international states, necessary to call yourself independent: de facto self-governance capable for justifying de jure Indy etc. It obviously helped the Irish that the US was favourable. But really what got the Irish their independence was guts, persistence, and their Irish contingent of leaders who had the vision and knowledge of these things to follow the (well-trodden except by Wales) path to Indy. I want to know if Wales has got enough people to do what the Irish (and others) were able to do. Well, do we? Nobody says Indy's easy. But it is possible.

John Dixon said...


I'm not sure that the difference between us is fundamental, and I take the point about the Irish process, but no country is ever going to be an exact parallel, even if we can learn lessons from many. Yes, Ireland wrote and implemented its own constitution, and the Westminster parliament legislated to implement it, but that was effectively a de jure recognition of the de facto position. The de facto position would have stood even without the Westminster legislation, albeit with potentially even more violence. Writing our own constitution and presenting it to Westminster with a demand that they legislate for it is a possible model for Wales to follow. (But it means, in effect, that we have to have already won the argument about independence and have an elected parliament dominated by independentistas, at which point Westminster legislation becomes largely irrelevant, other than as part of a process of gaining international recognition. Important in itself, of course, but it's the recognition which is important, not the words in the act of parliament.)

But the context which I was referring to in my original post is slightly different. Entrenching the powers of the Welsh parliament irretrievably in English law seems to me to be impossible without a formal written constitution for the UK, because of the principle that no parliament can bind its successors. And that means that those demanding 'legislation' to establish a federation or to entrench the Sewell convention, or to protect the Welsh Senedd's powers are making a demand which is dishonest, because it is predicated on something to which no conceivable Westminster majority will ever agree. And my reference to 'poisoned chalice' was basically the point that CapM made more fully - a UK constitution would be likely to start with a declaration about the perpetual indivisibility of the kingdom. That is not a fatal flaw; the will of the people cannot be resisted indefinitely. However, as our Catalan friends are finding, making the aim of independence illegal can be a very significant handicap.

The choice (and I suspect we will agree on this) is ultimately between independence and having a Senedd whose existence and powers can be curtailed at any time on the whim of the PM of the day.

CapM said...

I'm sure that there is at least one example of a "draft" constitution produced by someone/those who desire an independent Cymru in existence.
I can see the benefit of a national debate on such a draft/drafts and presenting the outcome to the people of Cymru. - This is what you want and could have if Cymru was independent.

JD has pointed out how the Spanish constitution traps Catalunya. A majority of Catalans voted for that constitution as even those who wanted Catalan independence thought it was better sign up to it than risk a return to a Madrid fascist dictatorship.
If we were ever presented with the options of - a UK constitution ensuring a ring fenced but shackled devolution or continuing with a London parliamentary dictatorship we could well make a similar choice.

Ultimately independence is possible with or without devolution or constitutions it depends on enough people wanting it. Personally I think that in the very unlikely scenario of a written UK constitution being produced that constitution would include the shackling of Cymru and if we'd voted for being shackled then England would use that as extra justification that Cymru must remain in the UK/Englandandwales.

After all we are not the exceptional ones.

Jonathan said...

Thanks to Borthlas and CapM for their patience. Worth untangling this. Yes, each country follows its own route to Indy. But the ones in this list (13 x US, Ireland AUS, NZ)(in order of Indy purity!) all dealt with the Westminster system and got as much Indy as they wanted. The variation is whether/how they leave a niche for the Monarchy. Indy being a legal process, Wales will have to follow the pattern - it has plenty of wriggle-room.
A written Wales Constitution
Wales can get its own. If we wait for a UK one, we wait for ever. But we don't need to. The choice is whether you go straight for Indy, or use a half-way house. This depends on whether you fancy violence or the threat of it. My point is that going straight for Indy would be like an infant going straight to adulthood without going through adolescence. You might have to if you live in a favela, or a Calcutta backstreet, but noone would recommend this. The British Empire legal version of adolescence is called Dominion Status. When you look at what this means, its fine, as a half-way house. The US Colonies didn't use this route, but most other colonies did. With Dominion Status you are pretty much self governing, you have defined your borders and your control of them (Schengen style is fine, its still control. legally). All you have to do is get recognition. This will either be easy (Czech Republic, Slovenia, Ireland) or downright difficult (Catalunya, Biafra, Taiwan). But noone said nationhood is easy. Which is why I doubt whether the indolent, state-dependent Welsh are are really up for it. But we can hope.
UK Constitution
Written or unwritten? The UK has the unwritten one. From which all those colonies seceded, see above. Will the UK get a written one? The advocates are nearly all academics or lawyers. like Dominic Grieve QC. I happened to agree with him, but look what happened to him! There are't enough buyers. Its not going to happen. But Wales doesn't need it to. When the 13 US Colonies seceded they did actually set up 13 State Constitutions and a Federal one, all meshing together. Talk about 3D chess! But they were very very savvy people. I think Wales is so short of De Valeras, Washingtons, Jan Smuts and other talent that we'd be doing well just to sort out Wales. Don't try to sort out the UK as well.

John Dixon said...


I agree that the route you outline is a plausible legalistic one, leading through dominion status or the twenty-first century equivalent, whatever that may be. Personally, I tend to see 'dominion status' as a means by which the imperial power pretends that it still has the legal control over the process, but typically, by the time things reach that point, the imperial possession is already lost, in all but name. It's important in terms of legal recognition of the new state, but irrelevant in terms of the detail, which the 'dominion' can always change later. But they key thing is that it is a de jure legalisation of a de facto position - the dominion is already 'independent' in effect; dominion status is merely a means of transition. We need to win the argument first, effectively.

However, I'm going to come back to the point of the original post, which was not attempting to say anything about the legal route to independence. It was intended, rather, as a rebuttal to those who argue that 'federalism', or 'greater legal protection' for the Senedd's powers are enough to entrench the existence of said Senedd. They are not. Any legal decision taken by Westminster can always be reversed; that is the nature of the absolute sovereignty which they claim. A federation built from the bottom up by independent states overcomes that problem, but a federation legislated into existence by Westminster statute does not and cannot. A written constitution can work, although it has to cover not merely the dominion but also the power creating that dominion, otherwise it falls foul of the same problem.

I'm not arguing against the route you postulate, nor am I trying to solve the constitutional problems of the UK. My argument is, rather, that it is impossible to permanently and irrevocably entrench the powers of the Senedd within the UK framework (as some opponents of independence attempt to argue) without formally curtailing the powers of Westminster. And that requires a renunciation of the ideas that Westminster's sovereignty is absolute and that no parliament can bind its successors. I don't see how that can be achieved without a formal UK constitution, and any idea of federalism falls at that hurdle. The only real alternative to devolved power being retained power is independence. The legal route to that is important, of course; but winning a majority for the concept ultimately trumps mere legalism.

CapM said...

Jonathon you say
"My point is that going straight for Indy would be like an infant going straight to adulthood without going through adolescence."
"The British Empire legal version of adolescence is called Dominion Status."

In my opinion these sort of ideas merit a - you really should get out more often - type response.
Neither the British Empire or England defines the process by which independence can happen. Check out how Latvians, Estonians, Lithuanians, Slovenians etc have managed to go from what you describe as "infant" leap frogging "adolescence" to get to "adulthood".
In any case the point is that basically those selling the idea that devolution can be enshrined in the UK's unwritten constitution by a little piece of written constitution are being dishonest. Though I suppose they might be honest but rather dim.

Jonathan said...

Its much easier practising law in England. Not because they're more deferential, though they are. Its because they instinctively know "there must be a law or recognised process for what's happening" be it leasing a house, marrying or starting a new country. The usual Welsh reaction can be "what you do looks so easy, I can do it myself, thank you." Here we have 2 other reactions, both very Welsh.
Borthlas - doesn't like "mere legalism". This is fair enough. Yes, it is a problem with written constitutions that the Parliaments get many more lawyers. The US shows this. Not a fatal flaw though. You may need a lawyer to point out the process. How you follow the process is up to you. The lawyer warns "if you don't follow the process you will fail." But the Welsh client often won't take the advice. First time round anyway.
CapM - needs to go an extra step. I don't need to get out more, and am no more than averagely dim. So what it the difference between Lithuania etc getting Indy and Catalunya/Ireland/Wales getting Indy? What, no difference? They are the same in that all had to deal with an Imperial/Federal centre. Lithuania was a colony of the USSR. So Moscow had to be dealt with. Handily for Lithi Moscow bowed out. USSR collapsed and the EU and NATO allowed Lithi and others go direct for Statehood. Lucky Lithi etc. Catalunya has Madrid to deal with and Wales has Westminster. Neither are going to disappear. We are stuck with having to deal with Westminster.Like the rest of the now Independent former colonies of the British Empire.
What I find fascinating is how the Indies in Wales refuse to engage with a simple if hard to do task like asserting themselves and working through a process. We don't need to start a Revolutionary War because Westminster doesn't send gunboats any more. So we can all be Gandhis and do it peacefully. But denying the importance of the process means we never really start it. Or do we Welsh just dislike discipline? Thanks for your time.

CapM said...

To Jonathon
" But denying the importance of the process means we never really start it."
You clearly think that the 'process' you have identified and following the 'process' is the crucial part of Cymru becoming independent.

I think that the popularity of independence for Cymru is the crucial part. Once it is sufficiently popular then maybe the 'process' you identify will unfold.

But maybe not. Other 'processes' are available. And I'm referring to democratic ones here.