In September 2017, the booklet Towards Federalism and Beyond was launched by Lord David Owen, Gwynoro Jones, Lord Elystan Morgan and me. It was released to coincide with the 20th anniversary of the vote to establish the National Assembly of Wales and explored the future of the UK Union generally and Wales’s status within it specifically, including a preface written by Martin Shipton
In February 2018, we followed up with a pamphlet titled Brexit, Devolution and the Changing Union 2018 which highlighted the need for a Constitutional Convention to run alongside the EU withdrawal negotiations, with the salient points of the argument captured below.
The ongoing Brexit process, by nature, involves a strong steer towards centralisation in favour of Westminster. This is due to the parliament’s twin role in expediting the UK government and that for England. In time, currently observed EU-centred regulation must be replaced to advance the development of an isle-wide framework structured to facilitate a single market, conformity with international rules, negotiation of trade accords, use of shared resources and safeguarding of rights. However, as emphasised by Professor Richard Rawlings in his report Brexit and Territorial Constitutions (Constitution Society, October 2017): ‘the tendency to sequencing—the temptation to treat the devolutionary aspects as if they were some kind of second front best frozen while supranational negotiations proceed, rather than to take them forward in tandem in a spirit of cooperation—must be firmly resisted.’
The assorted devolution arrangements have progressed incrementally and asymmetrically since 1997. During this time, the EU has been part of the fabric which holds the UK together. The pre-eminence of EU law, and its interpretation by the EU Court of Justice, has safeguarded the consistency of legal and regulatory norms across copious fields, including devolved areas. The UK internal market has been sustained by the conventions of the EU internal market. Therefore, Brexit presents a risk that these interrelated competences may become increasingly unsound if not addressed by a new constitutional framework.
With many powers returning from Brussels, some should fittingly default to the devolved nations, with other responsibilities demanding consideration alongside much needed wider reform. Constitutionally indifferent approaches to considering new institutional structures for a post-Brexit world must be avoided, particularly when discussing multilateral forms of intergovernmental relations and market strategies for trade. The emerging institutional gap in the UK’s territorial constitution is evident, impacting on the capability to deliver key practical and political objectives. Westminster and the devolved administrations must work collaboratively to develop the necessary frameworks for ensuring consistency in areas of common interest and joint policy.
New arrangements and bodies will be required, leading to a radical redistribution of legislative and governmental powers, in time, and demanding a reshaping of the UK territorial constitution made fit for purpose to the changed context. An enlightened constitutional approach could envisage these very same institutions empowered directly to cooperate with European bodies on matters such as health, research funding, universities, justice and policing.
A compromise, suggested by some, could strategically entail the UK remaining in the Single Market and Customs Union or at the very least rejoining the European Free Trade Area, mitigating many of the economic dangers presented. This concession would demand assenting to some EU membership requirements, without receiving the corresponding benefits, but likely leading to rejection by many on the basis of the referendum result. However, the electorate was not responding to any specific proposals in June 2016. The devolved institutions truly representative of the pro-EU populations of Scotland and Northern Ireland could be empowered constitutionally to pursue their own aims and priorities within a new isle-wide framework, permitting them to develop closer EU relationships than possibly sought by England, and extending to Wales, if so desired.
The economy of Wales is decidedly reliant on membership of the EU single market, especially the agricultural and manufacturing sectors. Wales is a substantial net beneficiary of EU funding through Common Agricultural Policy and EU Structural payments, with two-thirds of its exports and over 30% of services sent to Europe annually. Also, the single market has been a key driver of foreign investment for decades. There is a real risk that matters concerning Wales could be neglected during the EU withdrawal negotiations. Firstly, they do not present such multifaceted constitutional and political challenges to Westminster as those presented by Scotland and Northern Ireland, and secondly Wales, unlike those two nations, voted in favour of leaving the EU. A successful settlement cannot be constructed by the UK government alone, demanding a partnership approach in negotiations with the devolved administrations.
As we move towards 29th March 2019, there is an absolute need for a UK -wide Constitutional Convention, with the involvement of all political parties and elements of British society, to discuss the future of a Union—particularly in the context of Brexit—made modern and fit for purpose in the 21st Century.
As part of the IWA’s commitment to providing a platform for the debate and exchange of ideas, we are pleased to host Towards Federalism and Beyond and Brexit, Devolution and the Changing Union 2018 so they may be accessed and considered by a wide audience.
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