Geraint Talfan Davies says there has been a tendency to see the UK as a unitary state and not a union of four nations.
On hearing of the pre-Christmas rapprochement between Washington and Havana, sentimental tourists amongst us will have wondered whether Cuba will soon lose one of its more endearing eccentricities – its old American cars kept alive well beyond their normal life by endless improvisation, and a bit of spot welding. A bit like the British constitution. Like Cuba, our constitution has some catching up to do. The penchant for a repair and maintenance approach, rather than renewal, seems increasingly perverse, not to mention dangerous to the occupants. The Cubans, at least, have had the excuse of having no choice.
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In the wake of the Scottish referendum – a near death experience for the union – the UK Government seems, on the surface, to be bent on a degree of expedition wholly unknown in British constitutional development. In Scotland the Smith Commission achieved within a matter of weeks cross-party agreement on ways to give effect to a ‘vow’ to Scotland that had been cobbled in panic at the eleventh hour. A draft Bill has now been published. William Hague’s committee for devolved powers has published options for England, on which there is no consensus at all. On the back of two years’ work by the Commission on Devolution for Wales (the Silk Commission), Stephen Crabb, the Secretary of State for Wales, aims to achieve a cross-party consensus on further powers for Wales by 1st March, with the aim of legislating early in the new Parliament.
Meanwhile the more pessimistic wonder whether unassailable complacency at the centre means it is all too late to save the union, regardless of the drop in oil prices.
Unhelpfully, this is all being done in the partisan atmosphere inevitable with a General Election only a few months away. Consensus, such as it is, cannot but be fragile. None of the above processes go beyond consideration of the devolution issue. What has gone missing is explicit consideration of the very Union that was at stake in the Scottish vote.
This is particularly evident and worrisome from the perspective of Wales, the constituent nation that has the least leverage: the threat of independence for Wales is not perceived as credible, as in Scotland, nor has our existence been contested historically, as in the case of Northern Ireland, both internally and by a neighbouring state. Principles and process are, therefore, rather more important for a part of the realm that cannot rely on the force of realpolitik. As a consequence Wales has a greater interest in the proper working of a union state than either of our ‘Celtic cousins’.
The same may also be true of parts of England – one reason that England’s devolutionists should pay more heed to the Welsh voice than is customary. The regions and city-regions of England have more to learn from the staging posts in Wales’s devolutionary journey than from the Scottish story: administration leading to executive powers (though with limited policy-making capacity), then power over secondary legislation, then qualified legislative powers before taking on primary legislation – the latter stages telescoped into less than 15 years. In contrast, Wales has always needed to heed what is happening next door (without being cowed by it) as it presents England with a long flank in contrast to Scotland’s short neck. The Welsh border is more porous than the Scottish border, the cross-border impacts are greater. We cohabit with an elephant.
It is for these reasons that over the last three years three Welsh organizations have been trying to bridge the rather fragmented debate on the constitution that has been taking place in the different nations of the UK*, sadly, for the most part as if they were entirely unrelated to one another. The project has sought to address the UK’s Changing Union.
It is to counter this fragmentation that Carwyn Jones, the First Minister of Wales, has been arguing for more than two years for a UK Constitutional Convention, as well as for a new focus on the union. Admittedly, constitutional conventions are not without their problems. A recent Constitution Unit seminar discussed convention models drawn from Iceland, Ireland and Scotland, and two from Canada. Issues around membership (getting beyond the political class), agenda and timetable have to be addressed. But it says something about the cavalier nature of the union that there has been no formal discussion, or evaluation, or response to a proposal put forward publicly by the head of one of Britain’s territorial governments.
The UK’s Changing Union project has suggested that, whatever form a convention might take, at the core of the debate must be the values and purposes of the union itself – and that needs at the outset a bedrock of principle. Rather than leave that as an abstraction we set out four possible principles as a starting point.
The first is that the United Kingdom should be defined not as a unitary state but as a union state “consisting of four national entities – England, Scotland, Wales and Northern Ireland – sharing sovereignty, expressing themselves democratically through Parliaments and Assemblies whose continued existence are henceforth guaranteed, and freely assenting to cooperate in a Union for their common good.”
A second principle deals with the distribution of functions between the tiers of government – across the full range from European to local – enshrining the principle of subsidiarity (if that is not too European a concept for British tastes) and applying it not simply at the level of the four nations, but also extending it to local government. Local government has certainly had a raw deal in recent decades in England, but the advent of devolution in Scotland and Wales has not improved matters significantly for local councils in either country.
A third principle should give expression to shared solidarity, without which the Union would be shallow and purely instrumental. That has to include collaboration specifically aimed at enhancing economic and social cohesion and fairness across the UK as a whole, a principle – like subsidiarity – that would be of huge potential benefit to parts of England. This could also be broadened to define the core UK-wide entitlements of UK citizens – free education and health services, state pensions, human rights etc.
Lastly, and perhaps most contentious, would be an acknowledgement of the asymmetry of the UK and the need to temper it. This would require “that the parties of the union acknowledge the dominant role of England within it and that England has its needs and rights, but that England also acknowledges that the asymmetry between it and the other nations is of such a scale as to require tempering, in the interests of fairness, by the introduction of a range of institutional mechanisms”.
These mechanisms would, ideally, involve recasting the role and composition of the Lords as a Second Chamber to reflect the nations and regions of the UK – equivalent to the German Bundesrat. But short of that radical approach it would have to include not only the beefing up of the Joint Ministerial Committee processes, but also a system for resolving disputes and the fair distribution of financial resources that does not involve the UK Treasury (or England) being, in the words of a House of Lords Committee, “judge and jury in its own cause”. This could done by creating an equivalent of Australia’s Commonwealth Grants Commission. A less radical approach would be to ask the OBR to monitor or audit the application of the Barnett formula by which the territorial governments are funded, although this would not eliminate ministerial discretion.
Much attention has been paid to the generous payments to Scotland under this formula, but less well known in England are the significant exclusions from the Barnett baseline – such as the £2billion East London regeneration spend attached to the London Olympics, or the fact that there is still no agreement on whether the eye-watering costs of HS2 (latest estimate £188bn.) will attract Barnett consequentials. All this without taking into account the geographic distribution of non-devolved funding – in which parts of the north of England also have cause for concern – such as on defence research establishments or expenditure by Vince Cable’s Technology Strategy Board.
The Holtham Commission that, in 2010, reported on the finance and funding of the Welsh Government had much to say about the distribution of funding across the UK, but it received scant attention in England, despite the fact that the Treasury was unable to lay a glove on its analysis. The application of needs-based formulae cannot be inoculated from the impact of politics, but transparency would help in identifying premium payments, such as that to Scotland, so that at least they can be properly debated. It could also be of advantage to parts of England. The geographically unbalanced development of England has not been caused by anything done by Welsh or Scottish Governments.
The development of devolved governance within England – whatever form it takes – is a matter of vital interest for Scotland, Wales and Northern Ireland for this reason: the same civil servants cannot operate two different mindsets simultaneously. You cannot enter into the spirit of devolved government in three countries if your instincts in the fourth country are deeply centralist. It is this dissonance that makes the Scots so sceptical of unionist promises.
One of the reasons why discussion of the union has been so poor, even during the Scottish referendum, is that most professed unionists, particularly at the centre of government, do not see the state as a union at all. They have been defending, instead, a unitary state that has agreed to make a variety of constitutional concessions to three of its constituent parts. The difference is crucial, not primarily for reasons of legal form, but because it has behavioural consequences. The next few years will determine whether or not we become and act like a truly union state, whether of four entities or, quite possibly, three.