Catching up with the devolution debate

Alan Trench puts First Minister Carwyn Jones’ proposal for a constitutional convention for the UK under the microscope

Carwyn Jones' call for a constitutional convention on the future of the union resembles Cameron's attempt, regarding Scotland, to go straight to the end of the devolution process

Carwyn Jones’s intervention in the constitutional debates has been to decry the extent to which they have focused on Scotland, and to suggest a grand ‘constitutional convention’ to agree a future for the United Kingdom. This is an idea that has been around in Welsh, particularly Welsh Labour, circles for some time (see, for example, this piece on WalesHome by Mick Antoniw AM).

Such a proposal is rather a doubtful one, particularly at this time. A convention would run huge risks of running into the ground, and might well undermine the very goal Jones is trying to achieve.

There are three specific problems with it. The first is the question of who would take part in such a convention. Would it be the devolved and UK Governments? What about AMs, MLAs, MSPs and MPs? How would delegations from the various institutions be chosen? Who would speak for England, as a whole or its various parts?

It’s far from clear how one would constitute such a convention, and what their mandates might be. And, if the purpose of a convention is to keep the UK together (or even widen the debate beyond a bilateral Scottish-UK) as one, how is the SNP to be included in that process? It’s impossible to see how it could or why it should do so in the run-up to an independence referendum, especially if the remit of the convention is to continue to secure the integrity of the UK. After all it was wording of precisely this kind that excluded the SNP from the Calman Commission. Political nationalism in Scotland, Wales and Northern Ireland is as valid a current of politics as any other, and must be included in the process, however uncomfortable that might be for unionist politicians, and however much it complicates already-difficult processes.

The second problem is that it’s premature at this stage to try to address these issues. What are the interests of Wales here? Jones may have a clear sense of the interests of Welsh Labour here (though others in the party may not necessarily share his view). But there’s more to Wales’s interests than those of one party. If there is to be some sort of grand convention, there needs to be much greater, cross-party consensus about what these might be, so that they can be taken into that convention. That of course is a complex matter – there are great differences between the parties (and other actors with an interest) in these questions. Until there’s some clear position, it’s hard to see how any convention can be established.

If those questions are problematic for Scotland or Wales, they’re much more difficult in England. How can one identify the various units to be involved, and the relationship between them? One of the several problems with England is precisely the lack of certainty about that. Again, many currents of opinion within England need to be included, and many of those remain inchoate or developing.

The third problem follows from the second. It’s pretty evident that what might be appropriate for Scotland is not for Wales, and the same for each other part of the UK. That is a long-standing problem, faced very notably by the Kilbrandon Commission in the late 1960s and early 1970s, which in effect came up with three positions on each major issue – the majority position, the minority position, and the Crowther-Hunt/Peacock dissent (see Wikipedia here for more details).

In reality, however, the problem now is even greater. So far as the Union in the 21st Century constitutes a bargain between its various parts, the bargain is different in each case. What is vital for Wales is of much less importance in eastern England. To the extent there is a ‘Scottish’, ‘Welsh’ or ‘north-east English’ interest in the Union, each of these is different.

Trying to set up a convention to resolve these issues without being clear about what the interests of the various groups are, and how they relate to each other, will be impossible. The asymmetric nature of that bargain means that the first step in any process of trying to refound the Union has to be work out the interests of the various parts, in the hope that these can be reconciled.

Jones’s proposal resembles David Cameron’s moves regarding a Scottish independence referendum in one major respect. It’s an attempt to abbreviate a process, and move straight from one of the first moves in the sequence to one of the last. Constitutional politics becomes very dysfunctional if one does that. The process is an important part of the substance; it becomes the means by which areas of agreement and disagreement are identified and resolved. A big-bang approach cannot resolve such complex questions in any sort of stable or lasting way.

If the goal is to ‘refound the Union for the 21st Century’, a better approach would be to start by staging that wider-ranging assessment of Wales’s interests for the foreseeable future, and see where consensus across Wales’s parties, civil society and public at large lies. That would be far from easy, but it’s the unavoidable first step on the path Jones seems keen to tread.

However, that would face two major problems of process. One is the overlap with the work of the Silk Commission, which perhaps could have been the forum for this had the Welsh Government not tried to limit what it can and cannot look at through the terms of reference. The other is the fact that the agenda for that assessment would need to be very open, in contrast to all the reviews that have taken place since devolution.

The terms of reference for the Richard Commission, the All Wales Convention and now the Silk Commission were all tightly constrained. Those were not strictly observed in practice by either the Richard Commission or the Convention, but the restrictions showed an intention and still had some effect. It’s less clear if the Silk Commission feels similarly constrained; Paul Silk said they did not when he gave evidence to the Commons Welsh Affairs Committee last Tuesday. If the goal Jones has set out were to be achieved, there could be no similar limit on a later Welsh commission – problematic though that might be.

The alternative approach – for politicians at UK level, rather than in other places – is to start to emphasise the many dimensions of the UK and its multi-national character. It has so far suited the SNP to depict the relationship as purely a two-way affair, and unionist politicians in Scotland and at Westminster has gone along with that. The lead in that has to come from the UK level, not Wales or Northern Ireland. The Coalition has not been keen to articulate its overall vision for the UK, however.

Alan Trench is a non-practicing solicitor and an academic, associated with the University of Edinburgh and the Constitution Unit at University College London. This article first appeared on his blog Devolution Matters.