Wednesday, 9 September 2020

The power has always been theirs not ours

It’s hard to understand why devolutionists are getting so upset about proposed Westminster legislation ‘undermining’ the devolution settlement by taking back powers from the Senedd and exercising them in London. This is, after all, the nature of devolution. Powers were only ever loaned to Wales; the whole existence of the elected legislature in Cardiff depends not on the will of the people of Wales but on the whim of the parliament in Westminster. This is what supporters of devolution sold us, even if it doesn’t match the label that they placed on the tin. Power devolved is, always was, and always will be power retained. There is one and only one practical way of entrenching the power of the Senedd and that is through independence. An independent Wales could (and should, although that’s an argument for another time) discuss with its neighbours both on this and nearby islands and on the European mainland how and when to pool some of its powers, but the only way of legislating for them not to be simply taken away by someone else is through securing the full formal title to them in the first place. Devolution has never been a legal stepping-stone to independence, it has always been merely a means of securing some rights to divergence and self-rule within the greater whole, and the centre has always had the power to undo it.
Whether that which is legally and constitutionally acceptable is also politically acceptable is ultimately down to the people of Wales. Whilst de jure sovereignty may reside elsewhere, we can make de facto sovereignty reside here any time we want by voting for politicians committed to bringing that about. Spoiler: they won’t be devolutionists.
On the substance of the power grab, it is entirely true, of course, that having a common set of rules is key to the working of the UK’s internal market; the issue is whether the way to ensure that commonality is via discussion or imposition. It is clear that the UK Government is starting from the viewpoint that it is unwilling to discuss anything with the devolved administrations and wishes to simply impose its own view. I really liked the comment by our not-so-beloved Secretary of State, Simon Hart, who said “Our trade takes place overwhelmingly with the rest of the UK and it is vital that it continues to be seamless, safeguarding thousands of Welsh jobs. For all parts of the UK to grow and thrive, products, ideas and investment must continue to flow unhindered”. Well yes, indeed. Substitute the UK for Wales and the EU for the UK and you have the classic argument in favour of the EU single market and customs union. In fairness, though, there is a common thread here, and it’s about that business of seeking agreement. The UK is leaving the EU because the English nationalists in charge are unwilling to be in any way constrained by having to agree common trading rules with other EU states, and it is centralising powers over internal trading rules because the same people are unwilling to be in any way constrained by having to seek agreement with the other nations in the UK. It leaves them having to argue both that the internal UK market cannot work without a common set of rules and that the EU are being unreasonable in not allowing the UK full access to the Single Market whilst reserving the right to set its own rules unilaterally. It’s neither logical not consistent but is the result of an exceptionalist view of the world which assumes the compliance of ‘others’ – a compliance which is simply not going to be forthcoming.


Jonathan said...

The centre doesn't always have the power to undo devolution. You can entrench things. Wales can hold a Wales Convention and can end up with Statehood. Plus the UK could hold a Wales Convention and end up recognising Wales' Statehood. That is the US model. Entrenched - read the 10th Amendment. The beauty of it is that you don't have to say to people "its indy or nothing" which gets so many peoples's backs up. Translated into British English as the Dominion Model, it should keeps most of us happy. When did you last hear of a Constitutional row between the UK and New Zealand? Never? Yet NZ has enough indy to keep me very happy indeed, if Wales had enough guts to seek the same deal. (For a long time. The purist in me might like a complete break ie no Monarchy. But lets just get to Statehood US-Style/Dominion status and go from there.)

John Dixon said...


There's a risk of us going over old ground here, and t's probably unwise to argue the detail with someone who knows more about both the law and the US than I do, but...

1. It seems to me that a key difference between the US and the UK is that in the former, states came together to form a union and in the process agreed what powers remained at state level and what was transferred to federal level, whereas in the latter, we are talking about carving states out of an existing monolithic union. The legal process in the first case was one of agreement, but in the second case what would give Welsh statehood legal effect would be an act of a parliament which always retains the power to reverse laws. US 'devolution' can't be undone because the states' powers weren't 'devolved' in the first place - they were retained.

2. As things stand, the Senedd probably has the power to set up a Convention, but it does not have the power to implement its conclusions; that resides at Westminster. In which case, see 1 above.

3. Whilst you're right in saying that the UK could set up a Convention and then go on to recognize Welsh statehood within the framework of UK law, I cannot conceive of any UK parliament which would actually do that, so the theoretical option isn't a practical one.

4. Arguing that 'dominion status' as in the case of NZ isn't the same as independence is accurate in legal terms, but surely wrong in real world terms. Theoretically, the UK parliament could reverse that 'independence', but if it did so unilaterally, its actions would not be recognised by the international community (and, as you've rightly stressed previously, that international recognition is key). And whilst, in theory, the NZ parliament can't unilaterally renounce the Crown and declare itself wholly independent, if it did so, it would instantly gain recognition as a republic.

5. I too would be happy with gaining the same status as NZ. But let's call it what it is - de facto independence, with a bit of tidying up to do (the monarchy etc) in our own good time.

I think we're probably going to have to agree to disagree on this. We agree (I think!) that there are theoretical models under which the status of the Senedd can be entrenched, but our disagreement is about the realistic probability of any conceivable UK parliament doing that. I simply can't see why Westminster would ever agree to do it.