Carwyn's constitutional conundrum

The First Minister has once again gone into some detail on his ideas for
devolution and the impact of the Scottish independence referendum.
(Pic : BBC)

Last week, First Minister Carwyn Jones gave a lecture on devolution and the possible ramifications of the Scottish independence referendum at a conference organised by Cardiff University's Wales Governance Centre and UK Changing Union.

A transcript (and video) of the First Minister's lecture is available on Click on Wales.

This isn't the first time he's made his thoughts known on this. However, for those of you who can't be bothered, here's a condensed version :

Silk Commission Part I

• The Welsh Government seeks full implementation of Silk Part I (borrowing powers, devolution of smaller taxes, income tax variation [subject to a referendum]) and are waiting for a formal response from the UK Government, which has been significantly delayed.
• If any legislation is to be passed this Westminster term, then the response will need to be made "this autumn", quipping that he hopes the UK Government don't claim "autumn" stretches to the winter solstice.
• Silk I shows Scotland that devolution is flexible enough so their aspirations can be met within the Union, implying he would be willing to campaign for the Union in Scotland depending on the UK Government's response to Silk.

Post-referendum negotiations

• Regardless of the outcome of the referendum, there would need to be negotiations between the Scottish Government and the rest of the UK. If there's a yes-vote, it would be on the terms of independence; a no-vote would be on "terms of continued membership".
• The constituent nations should have a say in any negotiations in their own right because of different responsibilities for public services.

The future of the Union

• The Union is in need of reform to make devolution "more of an event than a process", ending ad-hoc tinkering with the constitution.
• Reforms should complement each other, possibly leading to a codified (written) constitution.
• There was nothing fundamentally wrong with the two Welsh laws that have been referred to the Supreme Court (Bylaws Bill & Agricultural Sector Bill). Scotland and Northern Ireland haven't been subject to the same levels of scrutiny because they have reserved powers - and that should apply to Wales too.
• There's justification for different devolution settlements (asymmetrical devolution) due to "our different relationships with England", but they should be underpinned with three key principles for devolution across the UK:
• 1. Respect for the devolved legislatures – A constitutionally-guaranteed right for them to exist. No legislature should "have to rely on the goodwill of another legislature for its existence". Only the devolved legislatures should be able to vote themselves out of existence.
• 2. Parity of structure – A reserved powers model for Wales in line with Scotland and Northern Ireland, defining what the National Assembly cannot do instead of what it can. The powers themselves would be dependent on the individual circumstances in each country.
• 3. A presumption in favour of devolution – "Decisions about Wales should be taken in Wales" unless there's a wider UK interest at stake. It should apply to England too. By calling for more devolved powers he "has public opinion on his side".
• "Cross border issues" aren't a reason to hold back devolution due to the track record of "sensible management arrangements for such issues....and goodwill and good sense on both sides."
• The English shouldn't be lectured on devolution, but he looks forward to the UK Government's response to the the McKay Commission.

What Carwyn said makes some sense. I think he got the key principles of devolution right and that should also be codified in a written constitution, agreed between the UK's legislatures following any negotiations after a no-vote.

The problem with that is the fact the UK constitution isn't set in stone gives it the sort of flexibility it requires in order to be able to function. Changing that for the sake of codifying it could be an administrative nightmare as you have hundreds of years of laws, conventions and statutes to pile through.

There were some other things I'd pick up on too.

Firstly, I don't understand the excitement in Cardiff Bay about Silk I. The the powers are insultingly small time, and a no vote in any future income tax referendum looks tempting because it doesn't go far enough. Silk II – relating to devolved powers - is going to be more interesting (in my opinion).

Secondly, parity of structure should only come with parity of powers. If "cross border issues" shouldn't affect devolution in Carwyn's own words, neither should the "relationship with England."

Asymmetrical devolution doesn't work because it underpins a union of unequals. It could well have played a part in the Supreme Court call-ins because Wales lacks a legal jurisdiction, and an awful lot of things are run on an EnglandandWales basis for the sake of historical convention - like the Agricultural Wages Board.

We'll still be asking, whenever policy outpaces powers, "Why has Scotland/Northern Ireland/Greater London/Isle of Man got powers over X, while Wales only has Y."

Then there's the elephant in the room everyone's keen to ignore : England. It's a well-trodden point, but a union where one member state makes up 85% of the population (and has even greater economic power) isn't a "union", it's a hegemony. Devolution merely prevents the "Celtic fringe" being squashed.

Attempts to address this – like an elected upper chamber with equal representation of the nations – will go down like a lead balloon in Westminster as there's too much vested interest in maintaining the status quo. That's why constitutional changes take forever, or just don't happen full stop at UK level.

The Welsh line of thinking

There are plenty of views on devolution's future, with a  broad
consensus that regardless of the referendum result things
will need to be reformed one way or another.

The First Minister isn't the only person who's had their say. Click on Wales have been mulling over the possible consequences of the independence referendum on Wales on-off since August.

Deputy Llywydd David Melding (Con, South Wales Central) has put a lot of thought into this, writing a book – The Reformed Union – outlining his ideas for a federal United Kingdom, which was serialised over the past year. He's said too much on it for me to go into any detail now, but in his latest piece he argues that the UK has to adopt the "bilingual nationalism" (Welsh & British) that works in Wales.

His problem – which he acknowledges to be fair - is that the majority of people in Wales reject British national identity, whether they're political unionists or not. That doesn't mean the Union is in any danger, but maybe "the ties that bind" aren't as strong as unionists like to think (and the opposite case for nationalists too).

Welsh Lib Dem leader, Kirsty Williams, talks up the Silk I proposals, arguing that regional governments could be better placed to deliver on economic development than central governments (if the right economic levers are devolved), citing a report from Michael Heseltine. She doesn't elaborate on what levers though.

Plaid Cymru leader, Leanne Wood, argued that regardless of the outcome of the independence referendum, the relationships between the UK's constituent nations would change. She agrees with  the First Minister about Wales having a say in any post-referendum negotiations, but expands that to the "British Isles" (presumably including the Republic of Ireland and Crown Dependencies) and proposes something modelled on the Nordic Council (which has both sovereign and non-sovereign members) with high-level co-operation in areas of mutual interest.

That might - on the surface - appear to be a rejection of independence. I don't think it is. It's pretty clever, perhaps necessary, as it would lock the "social union" in as a permanent feature, all former UK nations retaining links that wouldn't disappear regardless of the constitution future of those nations.

Wales : A Mouse in the Room

Despite the desire for Wales to play a role in post-referendum
negotiations, are we still on the fringes of this debate?
(Pic : The Scotsman)

People think there are two strands to Welsh Labour opinion on devolution - for or against - but there are probably at least three.

The first follow Carwyn's lead : more powers for Wales up to a certain point and on the Welsh Government's terms. I'd suspect most, if not all, Labour AMs follow this tract or the First Minister wouldn't be saying the things he's been saying.

The second group are "reluctant converts" to devolution and could be persuaded either way. I suspect a chunk of Welsh Labour's grassroots and supporters would fall into this category (as long as Labour are in power in Cardiff).

The third are ideological unionists who are sceptical about further devolution regardless of what official policy is, or because they aren't impressed with performances so far. Carwyn's problem is that most of Labour's Welsh MPs have historically fallen into this category, and he desperately needs someone in Westminster Labour to make his case there.

That's because the problem any Welsh politician has when mulling over the constitution is that the only politicians more anonymous than them at UK level are the Northern Irish Assembly (unless it involves The Troubles legacy in some way) and Cornish nationalists.

Nobody who can set Carwyn's or David Melding's plans in motion cares what they think. The most they'll get is a patronising pat on the head that any proposals they come up with would be taken under advisement.

Westminster listens to Alex Salmond because he's a threat to the status quo and known UK-wide (for better or for worse). They might even pay more attention to ministers and shadow ministers with Welsh responsibilities. However, those are junior roles at Westminster, while ministers with those briefs have hardly rung the endorsements for further devolution or federalism (even if the likes of David Jones, Peter Hain and Cheryl Gillan are/were walking adverts for independence).

It was telling that Douglas Alexander's recent thoughts on possible no-vote negotiations didn't mention Wales, Northern Ireland or federalism at all – days after Carwyn's lecture - despite the First Minister being only senior Labour personality who's discussed reforms in any detail.

So although the future of the United Kingdom as a nation state will be decided in Scotland for the time being, the aftermath of the likely no-vote will be decided between Holyrood and Westminster too - not the nations.

Wales should by rights have a seat at that negotiating table, but it's probably best the First Minister - and the rest of the "Bay Bubble" - turn their attentions to things they can actually control and influence for now.

It's not their fault, but it's better than the undignified sight of Carwyn, Kirsty, Leanne, David etc. talking to a brick wall.