John Osmond queries how likely it is that we will reach for a federal answer to the problems thrown up by devolution
The Changing Union project, involving the IWA together with the Wales Governance Centre at Cardiff University and Cymru Yfory/Tomorrow’s Wales (see here) is making a major contribution to the debate over the future of the UK. Our latest intervention has been to hold the first of six UK-wide Forums we are organising between now and the referendum on Scottish independence in the autumn of 2014.
The first Forum, held in Cardiff, debated whether there could be a federal future for the UK. Today we’re publishing the background paper prepared for the Forum here and a report on the proceedings here.
Each Forum brings together, on a Chatham House basis, around 20 key voices and opinion formers from across the UK. Participants include academics, politicians, civil servants and other practitioners. The number is being limited to facilitate genuinely rich and fruitful exchange, with every effort being made to ensure that a full range of opinions and perspectives are voiced.
The aim is to identify and break through the geographical, political and media barriers that typically constrain debates over constitutional relationships within the British Isles. Whatever the ultimate constitutional dispensation that emerges over the next decade, we will all continue live together in these islands, and to share many common interests.
In practice, however, a series of separate debates are taking place across the territories of the UK – one each in Scotland, Northern Ireland, and Wales, and perhaps half a debate in England. A truly striking – and in our view alarming – feature of all four debates is that they seem to be taking place in parallel with each other with very few attempts being made to connect them together.
This is what the Changing Union’s Forums will be addressing. Later this month a second Forum will look at the funding and taxation issues that underpin so much of the devolution debate. Next year we will be examining social protection and the future of the NHS, and also taking a close look at the one territory that, so far, has hardly been a party to discussion in the devolution story at all – England. We’ll be following these debates with an examination of how the institutions we hold in common at the centre, at Westminster and Whitehall, will need to adapt to the way devolution is developing. The final Forum will take stock of where we are soon after the Scottish referendum has been held.
Why begin with the issue of federalism? In the first place, because a federal approach as a solution to the UK’s constitutional dilemmas is being strongly advocated within Wales by First Minister Carwyn Jones (see here). Not only that, many academic commentators and experts agree that devolution is already taking the UK down a federal route. A few years ago, for example, Christopher Bryant, Emeritus Professor of Sociology at the University of Salford, judged that “Britain today is an asymmetrical union state on the threshold of a quasi-federation.” And he added, “A quasi-federation is what in practice I think we are heading towards, but without articulating it as such. It would be a typical British compromise consistent with the make-it-up-as-you-go-along character of Britain’s unwritten constitution.”
Of course, federalism – sometimes referred to as the F word – isn’t an especially popular notion in Britain, and certainly not at Westminster. In considering why we should acknowledge that there is a lot of confusion around what federalism actually means. In relation to the European Union, for instance, it is often opposed by UK politicians as implying some kind of Euro super-state – with powers being centralised in Brussels. However, within the UK itself, federalism tends to be opposed for the opposite reason, because it means a far more radical decentralisation of powers than devolution.
Opposition to federalism as somehow being alien to the British temperament goes back to the constitutional theorist A. V. Dicey in the 19th Century. As he asserted, federalism would revolutionise the constitution of the UK by undermining parliamentary sovereignty. Yet, from the perspective of the 21st Century that sovereignty that Dicey was so keen to defend has long been by breeched by Britain’s entry into the Common Market in the 1970s. And since then it has been breeched again by devolution. Will these breaks in the wall, so to speak, clear a path for a more comprehensive federal solution? That was a central question for our first Forum.
However, the perception that there has already been a revolution in the British constitution tends to be confined to the periphery of the UK. In the background paper I wrote for the inaugural Forum, which we publish today, I quote our First Minister Carwyn Jones:
“The UK has changed beyond recognition over the past 15 years and it is time that our constitution recognised this.”
And, of course, Carwyn is right. Our constitution has changed in fundamental ways. But, to what extent is this really felt, or even acknowledged, in England? On the whole, Westminster and Whitehall, and the London Press and media, simply don’t engage with the issues that Carwyn is trying to get them to take seriously.
And when they do, the note is strangely discordant. Remember during the 1997 general election campaign, John Major getting on his soap box and crying “Wake up! Wake up! The Union is in danger!” No one took any notice. I suspect most English people, if they stopped to think about this urgent warning, thought it simply eccentric.
That still seems very much their attitude today. Most polls for instance, find English people pretty relaxed about the idea of Scottish independence. The attitude seems to be a shrug of the shoulders and, “Well, suppose we’d rather they stayed, but it’s up to them.” All this tends to suggest that the headline of my background paper – referring to ‘federalism, devolution and the breech of British sovereignty’ is perhaps a bit over-excited.
British sovereignty may have been breeched, but what really matters is English sovereignty and that remains securely intact. To be sure, some English politicians, perhaps by now a majority at Westminster, are beginning to get worried by Tam Dalyell’s West Lothian question. Hence, the Mackay Commission, and the injunction that it come up with some version of ‘English votes for English laws’ at Westminster. But as I see it, what they’re looking for is stronger protection to maintain the English position and the status quo, and not some fundamental recasting of the British constitution to create a new federal-style structure.
In all of this, as I say, there is an underlying question: what exactly is federalism anyway? Certainly, there is a lot of confusion about what it means. Alongside my background paper, at the Forum we distributed a recent speech made by Carwyn Jones in July on the case for a constitutional convention for the UK and which we published on ClickonWales (here). In the speech I was struck by the way Carwyn defined federalism, in contradistinction to devolution. This is what he said:
“If we think for a moment about how the various devolution settlements have developed, the policy conversations have tended to take place in a series of bilateral exchanges between the UK Government and the relevant devolved administration, to some degree without reference to how devolution is developing in other parts of the UK.
“Perhaps that is inherent to the nature of devolution, as compared say to a state built on federal principles. If you are creating a federal constitution, it would be natural that representatives of all the states should come together and agree amongst themselves what limited range of powers should be conferred ‘upwards’ on the federal authority; so all states would participate in that discussion. Under devolution, however, power is handed ‘downwards’ from the centre; and there need be no assumption that the extent and scope of power devolved from the centre to one territory should necessarily be the same as that afforded to another. So it is that we have ended up with what I have called the UK’s ‘asymmetric quasi-federalism’, where the powers of the various devolved institutions differ one from another.”
It seems to me that what Carwyn is describing here is more of a confederal arrangement rather than a federal one, with his talk of a limited range of powers being conferred ‘upwards’ on the central authority.
Reference to a confederal rather than a federal approach may be a useful framework for us when we come to consider the various alternatives to Scottish independence currently being put forward by a variery of groups and parties in Scotland, encapsulated by such phrases as ‘devo-max’, ‘devo-plus’, ‘independent-lite’ and so on. To what extent would going down these various roads demand changes to the UK constitution as a whole? And to what extent could this be achieved with minimum interference to the internal constitutional architecture of England? In trying to answer these questions we could well be pushed in a confederal direction.
I shall end on our own, Welsh, dilemma, in all of this. We’re very worried about the money. Undoubtedly, injustices with the Barnet formula notwithstanding, there is a huge fiscal transfer into Wales. Whatever happens it is the Welsh Government’s priority to ensure that that continues so long as it is needed, which will probably be quite a long time.
Evidently our First Minister Carwyn Jones has clocked that some loosening of the ties that bind us across the United Kingdom is inevitable. But he doesn’t want the loosening to go so far as to threaten the financial integrity of the United Kingdom. I guess he judges that a new federal constitution, with equal representation for each of the four countries in a reformed upper chamber, would actually serve to bind us closer together. Indeed he said as much:
“An arrangement like that could help bind together the nations of the United Kingdom.”
But a question that arises is this: is Carwyn Jones being over optimistic in his ambition for a federal solution to the UK’s dilemmas? Whether he is or not he has certainly placed the question on the agenda. And it is noteworthy, too, that his call for a constitutional convention has been taken up by none other than David Cameron. He said the other day that we will need one to consider exactly what we do in the event that Scotland votes No in the 2014 referendum. If not a constitutional convention tomorrow, then we can look forward to one in a couple of years time. I guess that’s some kind of progress.