Depending on character rather than formal rules could be even worse

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Perhaps it was, as some around Trump like to believe, an act of deliberate sabotage when that escalator ground to a halt; perhaps it was an accident – an aide or a member of the press corps running on ahead and accidentally triggering the emergency stop. My own alternative theory is that Trump was feeling thirsty, saw a big red button, and thought that if he pressed it, someone would bring him a diet coke. Stupidity usually beats both accident and conspiracy.

Trump’s Press Secretary’s response to the incident was to say that “If someone at the U.N. intentionally stopped the escalator … they need to be fired and investigated immediately.” The order of events there is important: start with assumed guilt, implement the punishment, and then investigate to determine the facts. It’s very much a Queen of Hearts approach to justice. It’s certainly an approach that Trump has adopted elsewhere. He’s regularly declaring the guilt of people without having a shred of evidence, and demanding that they be punished immediately and then prosecuted. And if the prosecutors can’t find any evidence, then they should be fired and replaced with people who can. The evidence is probably hiding in the same place as those 11,780 votes that Trump demanded that Georgia’s Secretary of State should ‘find’ after he lost the 2020 election. When you ‘know’ that someone is guilty of breaking a law that you’ve just invented, it surely can’t be that hard to prove it.

The Queen of Hearts was, of course an absolute monarch. ‘Off with their heads’ was an instinctive response to just about anything. To date, the formal written constitution of the US has not proved to be the barrier which I had naively expected that it would be. Partly, that’s because Trump has managed to capture all three branches of government power; and partly because the US system of law grinds exceedingly slowly and no legal ruling ever seems to be final until an overwhelmed supreme court, tilted heavily in one political direction, eventually gets round to ruling. Maybe a written constitution doesn’t provide the protection that some of us might have imagined. On the other hand, just imagine how much more freedom a Trump might have in the UK where so many of the ’rules’ depend simply on precedent, the assumed good character of the incumbent, and the royal prerogative. The same applies, of course, to any Trump surrogate who might happen to come along.

"Make it so"

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It is a cornerstone of the English constitution that Parliament has absolute sovereignty over all things, and was granted that sovereignty by the monarch acting in the name of god. The unshakeable belief in the truth of that proposition can lead feeble-minded MPs into a mindset where parliament merely has to declare something to be so for it to become so. As an example of that, the last-but-one Prime Minister has come up with what he clearly thinks is a wizard wheeze to unblock the route to deporting people to Rwanda. He’s suggested that parliament should simply deem Rwanda to be a safe place, and that the judges will then be obliged to agree. The relevant legislation already contains a list of countries deemed to be safe, and adding Rwanda to the list will suffice, in his view, to over-rule those judges who keep insisting that the government should abide by the law requiring the UK to ensure the safety of any deported asylum-seeker.

If he’d given it a moment’s thought (admittedly, not one of his known strengths), he’d have realised that that will never satisfy the judges. All the countries on the list currently have had some sort of assessment before reaching the conclusion that they are safe, and it’s at least probable that judges would expect to see evidence of a similar process (rather than simply parliamentary arbitrariness) for any additions. Most people would understand that adding, say, North Korea or Belarus to the list wouldn’t magically make them safe countries, whatever parliament says; Rwanda may be slightly more arguable, but the principle is the same. And being safe at the time that a country is added to the list cannot, in any event, absolve the judges from making an assessment as to safety as and when they consider an individual case – it’s why we have judges and courts to consider individual cases rather than mechanistic rules. Still, oversimplistic solutions to complex issues and a detached-from-reality belief in the exceptional nature of the UK are not exactly unknown when it comes to Johnson (see, for example, Brexit). And it’s another stick with which his acolytes could beat the judiciary.

More words, not action, from Labour?

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Looking back over successive elections since the time of Harold Wilson, I can’t remember a point during the lifetime of a Conservative government when the Labour Party was not promising, or at least talking about, either abolition or else major reform of the House of Lords. Nor can I remember a time when they’ve ever delivered on the fine words once elected. When push comes to shove, there are always other priorities and too many vested interests. And Labour PMs have usually ended up finding that the House of Lords is useful to them as a means of rewarding donors and supporters – or even just getting rid of troublesome MPs.

Today’s Great Announcement of the results of a Commission led by Gordon Brown can only sensibly be read in that historical context; the rhetoric is fine, but will they deliver this time? Some Labour voices in the Lords are already suggesting that the proposals should be watered down or delayed. There are, they argue, more important so-called ‘bread-and-butter’ issues which need addressing first, as though governments can only focus on one issue at a time. The words coming from Starmer and Brown today suggest that they realise that constitutional reform is not as divorced from the immediate economic reality as many seem to suggest: empowering the regions and nations of the UK can also help government to be more responsive, if done properly. That caveat (‘if done properly’) is an enormous one, though. The whole history of devolution tells us that the centre only ever cedes power reluctantly, always seeks to control tightly how it can be used, and always retains the right to ungrant what it previously granted. And whilst the idea that Starmer's Labour will be any different from the Tories on those questions has yet to be either disproven or demonstrated, the history of Labour attitudes to reform once they get elected is not exactly encouraging.

Some of the answers that Starmer and Brown have been giving today already look evasive, and there is a marked lack of detail on how the grand principles will actually work. What do they mean, for instance, when they claim that the replacement for the House of Lords (the council for regions and the nations) will represent the nations and regions? How will that work? How will they be elected? If elections are fought by the same parties as fight elections for the House of Commons, the new ‘council’ will end up being defined more in terms of its party balance (between ‘government’ members and ‘opposition’ members); the idea that, for instance, the Welsh members will vote and act as a bloc fighting for Welsh interests instead of splitting between the government and the opposition is one for the fairies. None of this is answered by today’s announcement – these are, apparently, all matters for ‘consultation’ and debate (which the more naïve might have thought was what the commission was supposed to be doing).

They are also promising legislation to ‘protect’ the powers of the Senedd and the other devolved administrations, but the ‘how’ is again missing. Unless they are proposing constitutional changes which will abolish the idea that no legislation passed by one government can tie the hands of any future government (and they certainly do not seem to be proposing that), then all they can really promise is that the next Labour government will offer such protection for the duration of a single term. It’s not much of a promise in reality. The real underlying problem, the one that they have completely ignored, is the supposition that ‘sovereignty’ is invested in the monarch by God and exercised by Westminster by the grace of the monarch. It’s the inevitable result of a monarchical constitution. Without moving to a position where ‘sovereignty’ is expressly recognised as belonging to the people in each nation or region, on whose behalf it is exercised through the various parliaments, it’s hard to see how they can deliver the long term changes needed. The founders of the Labour Party would have had little problem with understanding that, but the timid creatures currently inhabiting the party will continue to run a mile from the idea of real empowerment.

Lexicographical crime

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Yesterday, the new empathy-challenged Home Secretary, chosen for the job on the basis that her predecessor, Priti Patel, was simply not nasty enough, claimed that those Tory MPs who had ‘forced’ the government to abandon part of its proposed largesse towards the richest, had staged some sort of ‘coup’ against the elected government of the UK. Her definition of a ‘coup’, which is that MPs had threatened not to vote for a policy which they did not support and which formed no part of their manifesto at the last election probably constitutes some sort of crime against lexicography, but using a different dictionary than the rest of us, and defining words to mean exactly what they want them to mean (well, perhaps not exactly; exactitude is another missing attribute amongst the current government) is far from being the biggest problem with her statement. Within the normal meaning of the word coup, the overthrow of one government and its replacement by another, there has indeed been a coup, but it’s the one which took place a few months ago under which the Tory Party deposed one clueless leader in order to give itself free rein to find someone even more clueless, which is, I suppose, at least one task they’ve managed to complete successfully.

The bigger problem is that, under the UK’s unwritten constitution, and despite the way the media cover and present elections, we do not elect (and never have elected) governments, parties, or Prime Ministers. The only thing we are allowed to elect is a member of parliament for the constituency in which we live; once elected, he or she is free to support whatever policies, parties, or leaders he or she might choose, regardless of any pledges which might have mistakenly appeared on his or her election material. The result is that we now have a government whose leader was chosen by a vanishingly small proportion of the electorate as a whole which is following a programme which is significantly different from what the same people promised in 2019. And it’s all entirely legal and above board. There may be a few deranged members of the governing party who inexplicably consider that they might have some sort of duty to stand by what they said only three years ago – the ones who Braverman accuses of being coupists – but seen from the bunker in Downing Street, these people are little better than traitors, reneging on the only responsibility they have, which is to do as they are told.

What the rest of us need to remember is that this ability to replace a government with a wholly different one, committed to a completely different political direction, isn’t a bug in the UK’s constitution, it’s a feature of it. There has been an entirely legal coup; this is the way things are supposed to work. The PM is appointed by the monarch, not elected by the people, and once appointed is free to do almost anything he or she wishes, subject only to having a sufficiently servile bunch of MPs for those changes which require legislation, which is far from being all of them. The ‘solution’ is not just to hold a new election. That might defer the problem until halfway through the next parliament, or the one after that, but it doesn’t solve it. And since the only solution for the UK as a whole involves persuading turkeys to vote for Christmas, the only way out is to escape from the turkey farm and ensure that independent states in Wales and Scotland start life with proper written constitutions, fair electoral systems, and a recognition that sovereignty belongs to the people not the monarch. We could call it something novel and exciting, like perhaps ‘democracy’.

It's not just about an individual

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The usual argument against the sort of constitutional reform which would lead to a written constitution which formally acknowledges rights, duties and responsibilities – and limits thereon – is that what we have ‘works’. And so it does, after a fashion, although it’s not too difficult to find examples of where it doesn’t really work at all. But what a crisis of the sort we are currently enduring shows is that a whole system which depends entirely on a mixture of convention and ‘doing the decent thing’ provides no protection if those charged with operating it are without decency, and regard following convention as being optional.

For all the talk of Tory MPs holding a new vote to remove the PM, they can’t. They can hold a vote to remove the leader of their party, but it’s only convention which decrees that that person should be PM. There is nothing at all to stop Johnson carrying on as PM even after he is sacked as party leader. Only the monarch can sack the PM – and because she (unlike him) is likely to feel bound by convention, she is unlikely to do that unless the House of Commons formally passes a vote of no confidence in the government. Any Tory MPs continuing to cower behind the anonymity of a secret ballot might yet be forced to vote openly against their own PM, and in the process trigger an election which will lose many of them their seats.

The PM is apparently struggling to find MPs who are willing to fill all the posts in his government. But it’s only convention which requires the government to have so many ministers. There’s nothing to stop the PM from merging ministries into a much smaller number – even as small as one, perhaps – and appointing himself to all the posts. As an alternative, it’s only convention which requires ministers to be members of the House of Commons – there are no formal rules which prevent the PM ennobling a hundred friends and sycophants and appointing them to government posts.

Theoretically, a government needs to get its legislative programme through the House of Commons – but it’s only convention which requires it to have such a programme at all. The executive branch of government has long wielded most of the power, and recent legislation, such as that following Brexit, has increased that imbalance – there is an awful lot that a government can do and change without ever needing to pass a single bill. The one obvious exception is the Finance Bill implementing the budget, but that’s some way off. There's plenty of time to find a way around that as well. A determined PM could govern for months, at the least, without requiring any consent from parliament. And governments of both parties have acquiesced over the years in a process of gradually neutering parliament’s own ability to act, or even to debate, without the consent of the government.

Perhaps Johnson is weighing up all these factors; perhaps he will opt for an immediate dissolution and a new election as some are suggesting. That doing so might embarrass the monarch is simply a breach with convention, not a breach of any rules. He certainly still seems to believe, despite all the evidence to the contrary, that he is immensely popular amongst the electorate and that an election would see him triumph rather than destroy what’s left of his party. Perhaps he will, after all, resign, however unlikely that currently looks. Even if he does, it would be a mistake to breathe a sigh of relief and believe that ‘the system’ has stood up to his delusions. He has exposed the weaknesses and deficiencies of informal rules and conventions and the change needed is more than the replacement of an individual.

Smart thinking?

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For as long as I can remember, the Labour Party has been promising either abolition or reform of the House of Lords. Under Blair, they actually took a few baby steps, and managed to reduce the number of seats occupied by hereditary peers to a ‘mere’ 92, but then progress stalled, partly because it was too hard and partly because they’ve never been able to agree with each other on exactly what reform is needed. They’re at it again today – the current temporary manager of their Scottish branch office has said that Labour will replace the House of Lords with an elected Senate, in which the members have “…a mandate to represent their nation or region”, and in which “Scotland and other parts of the UK [will be given] a greater say in UK-wide legislation”. It’s meaningless waffle, announced before the work has been done to flesh out how such a mandate would work in practice (spoiler: it can’t and won’t), let alone how ‘Scotland and other parts of the UK’ can avoid simply being outvoted in a whipped vote (spoiler: they will be outvoted).

This is, apparently, one prong of Labour’s three-pronged ‘big idea’ “as an alternative to Nicola Sturgeon’s plan for a second referendum”. Another of the prongs is “a legal duty to cooperate between the UK Government and the Scottish Government”. Well, yes. The chances of English politicians – even Labour ones – accepting that England, Scotland, Wales, and Northern Ireland should be represented as and treated as equals has a probability close to zero. And what exactly does it mean if the different governments have very different views on what needs to be done? It sounds more like a demand that devolved administrations do as they are told than a means of guaranteeing no interference in devolved issues. His third prong is “joint governance councils to replace the Joint Ministerial Committees [which] would have a statutory footing”. And how exactly does that future-proof devolution against the next Tory government which can simply repeal the legislation or, if it follows the current example, just ignore it? This master plan is supposed to persuade Scots, in particular, that they should forget any idea of taking control of their own affairs and depend on Labour instead. It’s embarrassing that Labour should be reduced to such half-witted sloganizing.

The problem with devolution is, and always has been, that devolving power within a unitary state whose constitution is based on the belief that God invested all power in the monarch who merely allows parliament to exercise it on a temporary basis means that power is only ever loaned and can always be taken back, something which the Johnson government is doing ever more frequently. No form of words in any Act of Parliament can ever be depended on as long as such Acts are based on the absolute right of the legislature to reverse them and the sacred doctrine that no parliament can ever bind its successors. It’s a constitutional principle in which Labour are as heavily invested as the Tories. The UK could be saved (leaving aside whether that is desirable or not) as a political entity, but it depends on reform on a scale which Labour are incapable of even imagining, let alone implementing. A written constitution, an acknowledgement that it is the people not the monarch who are sovereign, switching to full proportional representation – these are the minimum guarantees which can allow the degree of effective autonomy which might be enough to deter some from seeking independence.

Labour is not only offering none of those things, it is instead declaring that it will form a minority government and dare the SNP and other non-Tory parties to bring it down by opposing any of its policies. And that’s another half-baked plan in itself. Whilst it’s true that voters in England might be mightily annoyed if the SNP brought down a Labour government in a way which led to a return of the Tories, the assumption that the same would be true in Scotland is a very shaky one. It assumes that SNP voters will accept a Labour government for which they did not vote imposing its will on them because the alternative is a Tory government for which they also didn’t vote imposing its will upon them. Threatening to be as dictatorial as the Tories they hope to replace doesn’t immediately strike me as the smartest of moves. But then, it wasn’t being smart which led to Labour losing almost all its support in Scotland. At least they’re consistent.

It's not just Johnson, it's the system

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It's a long-standing flaw in the UK Constitution, such as it is, that so much of it is based on precedent, understanding, and an assumption that the country is run by ‘decent’ people. One particular example of that is the code of conduct which binds Ministers of the Crown to certain standards of behaviour. The code has absolutely no statutory basis and can be changed or torn up on the whim of the PM of the day, as we discovered yesterday. The interpretation and application of the Code is entirely down to one person, and even without tearing it up, the findings of any investigation under its terms can be overturned by its sole custodian, as we learnt when Priti Patel was excused for bullying.

Johnson’s decision to remove “all references to honesty, integrity, transparency and accountability” as required attributes for ministers has attracted some criticism, but it merely formalises the status quo. Such attributes are not only not required from ministers in the current government, they are positively frowned upon. The more significant change is the one which says that breaches of the ministerial code will no longer be expected automatically to lead to ministerial resignations. In one sense, there is something not entirely unreasonable about the idea that ‘minor’ breaches should be treated differently from ‘major’ breaches; after all, the penalty for parking on yellow lines isn’t the same as the penalty for murder. There is a key difference, though: someone deliberately deciding whether to park illegally or murder someone knows in advance that one is a ‘minor’ offence whilst the other is a ‘major’ offence, and also knows that different penalties apply. In Johnsonland, whether a breach of the code is minor or major, and what the punishment will be, are not defined in advance, only after the event; and he is the sole person who will make that determination.

It reminds me of the old story about the husband and wife who, prior to marriage, decided that he’d make all the major decisions and she the minor ones. After 20 years of marriage, he was asked how this arrangement had worked. “Great! in all these years I’ve never had to make a major decision.” One suspects that for Johnson, like the wife in the case of that story, there is nothing that any cabinet minister could do which would ever be considered a ‘major’ breach of the code. Nothing that he does could ever be considered a resigning matter, and holding any of his subordinates to a higher standard will only expose his own failings.

The issue is being highlighted by the fact that no-one would, with any credibility, describe Johnson as a ‘decent chap’ of the sort upon which the smooth operation of the UK constitution depends. And, whilst it might be a particularly undecent chap exposing the problem, he isn’t the real problem. The real problem is that the lack of statutory definition and effective checks and balances allows this to happen. If Johnson helps people to understand why a country needs a proper written set of rules with legal force, he might – wholly unwittingly (although that’s the way he seems to do most things) – have done us all a favour, even if it takes time to implement the necessary changes once he’s gone. I suspect, though, that his eventual departure will simply be marked by a huge sigh of relief (not least on his own side), and ‘normal’ service will be resumed. The sooner Wales opts for becoming an independent state, with a written constitution, the better.

Predictable Commission outcomes

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The Welsh Labour and Unionist Party must be truly delighted with the way that the two Welsh opposition parties, Plaid and the Tories, have responded to the setting up of a constitutional commission in Wales. They could hardly have hoped for more. Whilst we don’t yet know who all the members of the commission will be, we can be absolutely certain that it will not contain a majority of supporters of independence, whatever the more swivel-eyed faction of the Tory Party might say. A unionist government is simply not, ever, going to appoint a commission full of independentistas to advise it on the best constitutional future for Wales. However, the statement that it will be allowed to ‘consider’ independence as an option seems to have been enough to gain the support of Plaid as well as the entirely predictable condemnation of the Tories. Perfect. For Labour.

For some independentistas, the arguments for independence are so overwhelming that they have a tendency to believe that all they need to do is to present those arguments to impartial observers drawn from those whom the Labour and Unionist Party believe to be the great and the good of Wales, and the argument will have been won. Naïve is an inadequate word to describe that belief, not least because the panel will not be one of impartial observers who have no preconceived notions of the ‘correct’ answer. Whilst including a sprinkling of people who may* be independentistas as members of the panel lends its work a degree of credibility amongst independentistas, there is a danger in transferring that credibility to the entire membership of a panel whose collective conclusions could probably be written in advance, especially considering their remit to consult widely and ascertain Welsh opinion on the matter.

I predict that they will conclude that:

a)   There is only minority support for independence in Wales,

b)   Wales is, in any event, not strong enough economically to be an independent country,

c)    Most people in Wales want devolution to succeed,

d)   The devolution settlement should be tidied up with a few extra powers devolved,

e)   Existing powers should somehow be set into concrete so that they can’t be withdrawn by London on a whim,

f)     Federalism would be a really good way forward, and

g)   All Tories are evil.

OK, the last one won’t appear in the printed report; it will merely be an unstated sub-text. And maybe there will be a minority report distancing itself from the formal conclusions, although I would expect that, in appointing members, the government will be looking for people who will be able to come to a consensus. After its publication, the report will be ignored in London by both the Conservative and Unionist Party and the British Labour and Unionist Party, but the Welsh Labour and Unionist Party will use it to justify continuing to flog its dead federalist horse, and other unionists will join them in emphasising that part of the report’s conclusions which sets out why independence any time soon is a very bad idea.

The point is not that setting up a commission is an inherently bad idea, but that any ‘official’ commission will inevitably be set up by those in power at the time – and the membership will reflect that. A consultant, it is said, is a person you call in to borrow your watch to tell you the time, and that is what this commission will do. What independentistas need to remember is that there are no short-cuts to independence; the only route is by winning the support of the people of Wales. Weighty evidence given to commissions might help them to clarify things in their own minds but it does little in itself to win the support of the mass of the people. A pro-independence government could set up a similar commission composed of different members who would come to a very different set of conclusions, but that government does not yet exist, and more importantly neither does the majority opinion in Wales which would allow such a government to be formed. Until it does, independentistas should be very wary about placing their faith in a process designed from the outset to provide credibility and support for the unionist position, let alone one recommending an impractical and unimplementable form of federalism devised solely to sustain the position of the Labour Party.

*Or may not – whilst I know Laura McAllister, one of the co-chairs, and respect her academic knowledge and experience, it’s a few years since I last bumped into her, and I have no idea of her current stance on the issue of independence; having been a Plaid candidate in the fairly distant past by no means makes someone automatically a supporter of independence today.

Accidentally leading Wales to independence?

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If any group of independentistas had produced anything remotely similar to Mark Drakeford’s 20 point plan, there can be little doubt that the Welsh branch office of the British Labour Party (to say nothing of their close friends in the Welsh branch office of the Conservative and Unionist Party) would have rushed to condemn it, claiming that by setting conditions which it would be impossible for the British state to concede, the plan was a deliberate attempt to create a situation where failure was inevitable and where independence was the only viable option. Asking Westminster to accept that they should irreversibly relinquish all right to legislate in devolved areas and that the Senedd and Scottish Parliament have their own sovereign democratic mandate in those areas is asking them to abandon some core tenets of the unwritten UK constitution. And demanding to be treated as some sort of ‘equal’ – the response might not be put in these terms, but would be based on the belief that these people just don’t understand their place.

It would be comforting to believe that this was really Drakeford’s master plan – setting out conditions for the continuation of the union which no UK government will ever accept and thus turning the debate towards independence. However, Drakeford is too much of a dyed-in-the-wool unionist to plan to go down that route. That doesn’t necessarily mean, though, that we must conclude that he really does believe that there are circumstances where the Westminster parliament will legislate along the lines he suggests. I don’t think that he’s naïve enough to believe that the Tories will ever do it, but I also struggle to understand that anyone who has been part of the British Labour Party for as long as he has believes that that party will do so either. Even if there were any currently conceivable possibility of that party getting anywhere near power in the next decade or so.

All of which can only suggest that it is little more than a tactic: an attempt to outline a possible future for the union in which Wales is not completely sidelined to try and stem the rise in support for independence and keep Labour in a leading position in Wales. Words, rather than action. There is, though, just a possibility that the unionist parties would have been right to condemn any such plan by independentistas as designed to fail. When it is shown clearly that his plan cannot and will not be implemented, could the leader of the Labour Party in Wales end up in a position where he has accidentally set up the conditions in which independence happens?

When winning and losing look the same

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The Prime Minster won a victory, of sorts, yesterday in the House of Commons, although there were probably few people as surprised as her.  It’s a curious sort of victory though which is achieved by voting against her own proposal, and demanding that her own supporters do likewise in order to support instead a position that she herself said was “impossible” just a few weeks ago, and which, apparently, the EU’s leaders had told her just hours before she encouraged MPs to vote for it was not going to be on the table.  Still, believing six impossible things before Brexit is the new norm in the Tory Party.  When she previously said that there was “no alternative” to her deal, it now seems that what she meant to say was that there was “no alternative other than the undefined one that is now the new one to which there is no alternative”.

She’s trapped in a parallel universe entirely of her own manufacture where every escape route back to normality is blocked by the inherent contradictions of her own party, reinforced by the results of her consistent inconsistency and refusal to accept fact.  She has given herself up as a hostage to a gang of zealots for the sole reason that her biggest red line is that she is determined to do the one thing that most of those zealots don’t actually give a damn about anyway, namely to control immigration from the EU, in the apparent belief that all those who voted for Brexit to stop immigration were really saying that they wanted more Indians instead of Poles. Some people feel almost sorry for her – that’s entirely misplaced.  The people I feel sorry for are the negotiators of the EU who are vainly trying to comprehend the apparent determination of the leaders of a soon-to-be ex-member to press the self-destruction button. 

Yet still the zealots persist with the fantasy that the EU will “blink and offer us better terms”, roll over, and give the UK what it wants despite the fact that that would mean abandoning the interests of a member state in favour of a non-member and risking the integrity of the single market which the UK itself did so much to help them create. 

There is a yawning gap in ideology and world view between the UK and the EU, and the hall-mark of any successful negotiation – recognising what the other side wants – has been completely absent from the UK’s approach from the outset.  The world view driving the extreme Brexiteers is based on competition and the notion that size and power determine outcomes and that the weak and small should be bulldozed aside in pursuit of that.  It’s compounded, of course, by a self-estimate of the size and power of the UK in the modern world which owes more to the 18^th Century than the 21^st; but they really can’t understand why the EU isn’t playing by the same rules.  From this perspective, Ireland is peripheral, just a bit of collateral damage as the big boys carve up the spoils.  The founding principle of the EU, on the other hand, was economic integration, driven by a determination that Europe – and most especially, France and Germany – could never tear the continent apart in another war if their industries were sufficiently interdependent.  The Single Market may well have been a UK-inspired idea, but it fits perfectly with that perspective.  And the idea that European states stand or fall together is an underlying driver of the determination to protect Ireland from the folly of its nearest neighbour.

There is no meeting of minds between these perspectives, although I suspect that the EU understand the UK perspective very well – probably better than the current UK government does.  The unicorn analogy to Brexit has been overdone – including by me – but the Independent came out with another interesting analogy yesterday, asking us to “imagine for a moment that the House of Commons passed a bill to repeal the laws of gravity, and ordered the prime minister to go away and implement it”.  In some ways it’s no sillier than what the House of Commons actually did yesterday, but the idea that they can do such a thing highlights the effect of a belief that sovereignty is absolute and indivisible and vested by God in one place.  This is the fiction at the heart of the UK’s unwritten constitution; Brexit has brought home to some of us the scale of the problems posed by a constitution founded on a fiction. Unfortunately, the opposition party in Westminster is as wedded to the fiction as the governing party, severely limiting the opportunity for reform whilst we remain hitched to Westminster.

By accident, not design

Tweet In the wake of the UK Government’s defeat in the House of Lords last week, there has been plenty of comment as to whether the behaviour of the lords is or is not in line with what the lords are ‘meant’ to do.  The implication is that the second chamber has a clearly defined role and purpose as a revising chamber.  That is, of course, complete nonsense; its current role was never ‘designed’ by anyone.

The original intention was that the chamber was there to represent a particular class interest, and to have at least equal power with the chamber representing the rest of society.  Indeed, at the outset, it was the more powerful of the two houses – it isn’t referred to as the ‘upper’ house for nothing.  Over a period, that power has been whittled away, piece by piece, as the elected chamber asserted its authority, and placed ever more restrictions on what the unelected lords could do.

It now has a role as a revising chamber not because anyone ever sat down and thought about whether we really need a second chamber or what its role should be, but simply because revising and delaying are the only powers which haven’t yet been stripped from it.  I’m far from convinced that any rational process for designing a parliamentary system would ever produce anything remotely resembling the House of Lords, nor assign to it the curious vestige of powers which it exercises.

The problem with all proposals for reform is that they never start from first principles; the innate conservatism of the UK state means that they all start from what is and try to propose different combinations of roles, responsibilities and methods of selection.  The very existence of the second chamber is rarely challenged.

It should be.  The most rational way of dealing with the House of Lords is to strip it of all its remaining powers.  Plenty of countries manage with unicameral parliaments, and there’s absolutely no reason why the UK couldn’t do the same. 

On bended knee

Tweet When I read last week that it was a requirement of membership of the Privy Council that members kneel before the monarch in order to pledge their undying loyalty, the first question that crossed my mind was why on earth such a requirement still exists in 2015.  And the second was – given that I know or have met several members of the Privy Council over the years – did all these people really do that?

It says a lot about the prevailing norms in UK politics that the first question which seems to have occurred to journalists was neither of those, but “Will Corbyn do it?”, with the implicit threat that he’ll be branded a hypocrite if he does and some sort of beyond-the-pale traitor if he doesn’t.  It’s not a very grown-up response.

It illustrates the way in which the media, as part of the establishment, perpetuate what is rather than ask what might be.  The existence of this arcane remnant of a bygone age is taken as a given, as is the requirement for compliance.  I don’t know whether Corbyn will be brave enough to have the courage of his convictions and refuse.  I’d think the better of him if he did, but I’m fully expecting to be disappointed.  And I’ll admit to more than a little disappointment that others have not refused in the past.

The existence of this body is a relic, of course.  It has some formal functions, but largely because parliament has never fully asserted its authority and taken these vestigial responsibilities away from the sovereign.  The argument for Corbyn – or the leader of any opposition party – becoming a member is that it enables him to be briefed confidentially “on privy council terms”.  The truth of that is open to challenge in the light of briefings coming from a hopelessly out-of-control intelligence service that they wouldn’t tell him anything anyway, even if he became their boss.  But even if it were true, it’s based on an assumption that someone who has kneeled before the monarch and sworn a solemn oath can then be trusted more than someone who hasn’t.

Such touching faith in the value of a promise may be another of those great British values which Cameron keeps banging on about.  Or maybe just another example of the total inability of those who rule the UK to let go of the past.

Banging on about the constitution

Tweet There are those who consider that achieving independence for Wales is really not the most important thing right now; that the immediate problems such as jobs, housing, and education are much more important to people in their daily lives.  So why do I keep banging on about the constitution?

My answer depends partly on whether one sees independence as an end in itself or as just a means to an end, and partly on the importance of process as well as outcomes.  Those two factors together help to explain why I’ve sometimes referred to myself as an accidental nationalist.

There are certainly many nationalists who see independence as an end in itself, which simply involves transferring power from one set of institutions and politicians to another set of institutions and politicians, based on a different set of territorial boundaries.  The basic processes remain the same; power is exercised at the centre by an elected government.  Cardiff is Westminster writ small. 

It’s a conventional and unimaginative approach, which simply replicates the same resistance and obstacles to change in a different place.  And if that is all that there is to independence, then I’d find it impossible to argue that it should be any sort of priority over the bread-and-butter issues which I referred to above.

But some of us believe that the Westminster model is an irreparably broken system; it’s unamenable to reform, it works for the interests of the few rather than the many – economically, socially, and geographically – and is a barrier to the sort of change which would fully address those bread-and-butter issues.  It’s also an inherent barrier to participation rather than a means of facilitating it.  It’s part of a world order which sees big as being good, and power as theirs to exercise.  In that context, independence isn’t just about institutions; it’s about establishing a process which can facilitate more fundamental change.

My purpose in advocating independence is not simply to replace one bunch of politicians with another, but to change the way things work much more fundamentally; to put power back in the hands of the people where it belongs and for people to be more directly involved in the process of running their society.  Self-government means more than transferring power from one institution to another; it’s about ‘self’ government in a much wider sense for people and communities.

And that’s where my second emphasis comes into play.  Process is important.  The sort of independence that I want to see won’t come about by electing politicians to make laws; it will come about because people are convinced that it’s the right thing for their future.  It will be achieved by people rather than done to them. 

One of the most exhilarating aspects of the Scottish campaign leading up to September’s referendum was the increasing level of direct involvement of people who had never engaged in political activity before, largely outside the party political system.  Whilst I’m delighted with the subsequent electoral success of the SNP, I know that I’m not alone in worrying about the danger that all that new energy ends up being channelled back into a more conventional type of party-based politics for the long term, rather than simply using conventional politics as a short term instrument. 

In Wales, we can only dream about the sort of movement which built up so much steam in Scotland last year – seeing the Welsh equivalent being put back in the box is the least of our worries.  And my underlying point in a series of recent posts has been that telling people that even the replacement of one institution with another – let alone changing the nature of the institution – is impossible for the foreseeable future is a remarkably ineffective way of laying the groundwork for that much wider programme of change.

The process of getting from where we are to where we want to be is not the property of any politician or party; it belongs to all of us.  The mere election of people to an institution is an abdication, rather than an exercise, of people power.  The job of any politician who really wants meaningful change is to lead and inspire the people to demand it, not just to seek election to office which they can use to impose rather more limited change by passing laws.

As we saw in Scotland last year, a real campaign for independence is as much about process as outcome – actually, maybe even more so.  That point needs to be better understood in Wales.

An outbreak of reality

Tweet There is, of course, still enough time before the election in May for the SNP surge to falter, or for the Tories to benefit from the ‘traditional’ recovery of government parties in the final period of a campaign.  But as poll after poll shows little or no movement, it is looking increasingly unlikely.  As things stand, the likeliest outcome is a very close result between Labour and the Tories, a large block of SNP MPs (with a few friends from Plaid and the Green Party) and a rump of Lib Dems licking their wounds.

In those circumstances, the SNP-led bloc has a choice of strategies which it can follow; the two most obvious being that it an either take a principled and uncompromising stand in favour of a radical alternative or else it can try to influence government policy in exchange for support in a few key votes.  There are pros and cons to both – neither is entirely without its problems.

Until this week, though, it has sometimes seemed that they were trying to do both.  The idea that a group of 50-odd MPs could ‘force’ a Labour government to abandon Trident was always just plain unrealistic.  On any foreseeable election result, there will be 500+ MPs committed to retaining Trident.  Making it a ‘red line’ issue would simply exclude the SNP-led bloc from any influence over the next government.  I very much wish that it were otherwise, but with Labour as committed to nuclear weapons as the Tories, it was never going to happen.  We’re stuck with overwhelming parliamentary support for Trident; our best hope for scrapping Trident at the moment is the second independence referendum in Scotland.

So the announcements this week by Nicola Sturgeon and Leanne Wood that Trident would not be a red line issue for their parties in negotiating with Labour is nothing more than an acceptance of the sad reality.  And it shows that both parties have now come down firmly on the side of seeking to negotiate the best deal possible rather than taking an uncompromising stance after the election.

Whether it’s the ‘right’ decision is another question.  There are certainly those in the Green Party who are publicly questioning it.  And I suspect that there will be those inside both Plaid and the SNP who will be having less public doubts as well.  Personally, I believe that the influence that the parties will have on the policies of any future Labour government is rather less than they are claiming, and a good deal less than many of us might like.  And at the risk of repeating myself, the decision to negotiate with only one party is itself likely to reduce the extent to which that party feels the need to make concessions.

Given the very limited nature of what’s likely to be achievable, I’m more concerned about whether they’re asking for the ‘right’ things.  The agenda is inevitably being set by events in Scotland, and whilst I wish the SNP every success, I can’t help feeling that the needs of Wales are very much a secondary consideration.  Indeed, at times it seems as though changing economic policy at UK level is being given a higher priority than progressing the national project in Wales.

The SNP-led bloc is no more likely to ‘stop’ austerity than it was to stop Trident; all it can achieve is to add a little water to dilute the mix ever so slightly.  The test of ‘success’ from a Welsh perspective in those circumstances is about the more long term changes which are put in place.  And at the moment, it’s not at all clear to me that there’s a thought-out position on that.

The roots of permanence

Tweet One of the recommendations of the Smith Commission in Scotland was that the existence of the Scottish Parliament should be enshrined in law in such a way that it can never be abolished by Westminster.  Similar suggestions have been made in the past in respect of the Assembly.  It’s a suggestion with which it’s easy to agree, but rather more difficult to implement.

Whilst there is nothing to prevent Westminster passing laws which apply “henceforth and for ever” – they have, after all, had a few centuries of practice at it – making even such a sweeping phrase stick is another matter entirely, given the constitutional convention that no parliament can ever bind its successor.  Whatever can be done by a parliament which believes itself to have absolute sovereignty can always be undone on the same basis.  I wouldn’t be at all surprised to find that, in legal terms, the UK Parliament has the theoretical power to revoke Australian independence (although such a move might be rejected on the minor issue of being utterly impossible to enforce).

Would it be different if the UK had a formal written constitution?  At one level, maybe not; a constitution brought into existence by a parliament which believes that it has absolute sovereignty can be abolished or changed by the same route, although it might be a little harder politically.  They key element which needs to be changed is that core belief, that underlying principle, that the UK Parliament has absolute sovereignty.  Changing that element demands that we get rid of the constitutional fiction that power is something which comes from the top – in the case of the UK, from God via the monarch to parliament.

For most practical political purposes in terms of the sort of legislation passed by political parties which have chosen to limit their ambition largely to what is achievable by minor incremental change, the question of the fundamental underpinnings of the power structures in the UK is irrelevant.  A constitutional monarch does as (s)he is told, and there are more important priorities than abolition.  But when it comes to some constitutional issues, challenging the basis on which that power exists is an essential pre-requisite.  And the ‘permanence’ of the Scottish Parliament or Welsh Assembly is such an issue.

Only in a state where power is formally recognised as belonging to the people, on a bottom-up rather than top-down basis, can the rights of parliament to legislate be properly and fully limited.  It’s hard to see how that can really be done without abolishing the rights of kings – something which the establishment parties are unlikely to tackle.  And that, I suspect, is at the heart of the reason why the UK doesn’t have, and is unlikely to have any time soon, a written constitution.  It raises too many difficult questions which they’d have to answer.

Back to Smith, and I expect that the parties will find some convenient form of words to pretend that they’re making it impossible to abolish the parliament.  But the only real guarantee that the Scots (or the Welsh) can have is by making it impossible in practical terms rather than in legal terms.  And I’m fairly certain that we’ve already reached that point, even if Westminster hasn’t yet fully realised that fact.

Promises, promises

Tweet I don’t know when the Labour Party first adopted a policy of reforming the House of Lords, but it sounds like one of those things that has ‘always’ been policy.  I can certainly remember many Labour leaders talking about it when in opposition, even if ‘it’ hasn’t always meant exactly the same thing.  But they’ve never got around to actually doing anything about it when in government.  It’s one of those things that are just ‘too difficult’, although the euphemism usually adopted is that ‘there are more important priorities’.

So Ed Miliband’s statement that a Labour government led by him would actually do something needs to be read in the historical context, and is probably not worth a great deal as promises go.  Besides, at this stage his suggestion of it becoming some sort of Senate with regionally-elected representatives has not been thought through a great deal – apparently that’s to be left to the constitutional convention that he plans to establish.  Giving them a few years – perhaps the whole term of a parliament – is enough to sound like a commitment to radical reform whilst leaving Miliband with a cunning ruse to kick the issue immediately into the long grass.

It raises a question, though, about the purpose of the constitutional convention itself.  Slowly but surely, he’s announcing all the decisions in principle before it’s even established – the second chamber will be retained with similar functions, but with the method of election to be determined; there will be more power delegated to cities; there will not be two or more different classes of MP; the list grows.

Setting up a convention to carry out a thorough review of the constitution sounds like a radical idea, but it increasingly looks like it’s going to be little more than a means of getting someone else to put the flesh on the bones of an already determined Labour policy.

Still, sounding radical whilst delaying action is a familiar approach.  It’s been successfully deployed by many of his predecessors, so why wouldn’t it work for him too?  I suspect that their lordships will still be around for a few more decades yet, sadly.

I'll take more than a few rules

Tweet In his Western Mail column last Saturday, Rhodri Morgan touched on the differences between independence movements in different countries.  He talked specifically about the “holding hands” demonstration in Catalunya when one and a half million people linked hands all the way from the French border to Valencia, a distance of 300 miles.

“That”, said Rhodri, “is what a mass movement in support of an independence referendum ought to look like.”  In comparison, we in Wales can only dream of the time when we might have mass support for the concept of independence along with a political movement committed to achieving it.

I suspect that part of what makes the Catalan movement so strong is precisely the way that they been told that they 'cannot' have independence.  The establishment in the UK (in modern times, at least) has never been so blunt and obstinate in its refusal – tolerance is sometimes more effective than oppression.

In the mid-1970s I was the Plaid Cymru guest speaker at an SNP rally.  One of my fellow speakers was Jordi Pujol (who later became president of the Generalitat of Catalunya, a post he held for 23 years).  At the time, he wasn’t arguing for independence.  Not necessarily because he didn’t want to, but because it was a crime against the state in Franco’s Spain to even put the case, and he had served a couple of years in prison already for his political activity.  He argued instead for much more autonomy within a federal state.

With the dawning of a more democratic Spain, people have been freer and more confident in putting the arguments; arbitrary imprisonment is no longer something that they have to fear.  But one major remnant of the Franco regime remains, in this context – the legal fiction that independence is impossible because the constitution forbids it.

Laws, processes, and even constitutions put in place by people can survive only as long as the people allow them to.  The Spanish central authorities will, no doubt, continue to say “no”; but faced with a movement for independence which can mobilise 1½ million people – 20% of the entire population – in a single demonstration, they’ll need a better argument than the wording of the constitution.