Dr Alan Sandry and Dr Huw Evans outline a vision of what the constitution of an independent Wales could look like…
Awareness of, and interest, in Welsh independence is rapidly increasing.
Membership of the cross-party movement Yes Cymru grew from 2,000, at the start of 2020 to over 17,000 at the moment.
In recognition of that development, we have drafted a proposed Welsh Constitution (PWC); something of the type that might have effect in the event of Welsh independence. We are not aware that there has been anything similar attempted.
The PWC is in English; a Welsh version will be published subsequently. The two versions would be construed as a single document in which each language is treated on a basis of equality (art 52).
Rather than write a paper arguing the case for and against specific constitutional content, it was decided to draft the PWC. There were two main reasons.
The first was that it would more obviously indicate how the proposed constitutional arrangements might work in practice.
The second was that it would more effectively identify and justify values and principles underpinning the PWC.
The main purpose of the PWC is to help inform discussion about independence by signposting how an independent Wales might choose to establish itself.
“The PWC would replace a constitutional monarchy with a democratic republic, where the head of state (the Arlywydd) would be directly elected.”
Amid the current pandemic, some have argued that discussion about such matters is irrelevant.
Our response is that discussion about democratic and constitutional arrangements is always relevant; it seems that was also the prevailing view when the 1864 US presidential election took place during the US Civil War.
In preparing the PWC, choices have had to be made concerning underpinning values and principles. Those values and principles build on values and principles underpinning current legislation affecting Wales (such as respect for human rights, promotion of well-being and sustainable development).
But there are new inclusions (such as specific reference to the rule of law, social justice, and equality before the law). This is not to claim that such matters have not been considered before; the claim is that there is a more articulated attempt to place them at the core of Welsh constitutional arrangements.
The draft Scottish Independence Bill of 2014 provided a starting point for our work. While its influence is acknowledged, as the constitutional content of the draft Bill would only have had effect on an interim basis, the PWC is more developed.
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Turning to the content, the PWC would replace a constitutional monarchy with a democratic republic (art 5) where the head of state (the Arlywydd) would be directly elected but independent and politically neutral (arts 14-25).
Sovereignty would rest with the Welsh people and state power and authority would be derived from that sovereign will (art 1).
We argue that if a nation is serious about promoting equality and social justice, institutions such as monarchy and aristocracy are incompatible with those aims. We recognise others will not share this view and this will, no doubt, be a key topic for discussion.
The PWC sets out who may hold Welsh citizenship (art 7) and provides that a person may hold other citizenship at the same time as Welsh citizenship.
There is to be a Welsh court and tribunal system headed by the Supreme Court of Wales; and the Supreme Court’s role would also include that of a constitutional court (arts 36-38).
Welsh Government and Welsh public bodies would be required to pursue social justice for the people of Wales. Social justice is defined; and included in the definition is a requirement for the meeting of fundamental human needs (art 12).
“Senedd membership would increase from 60 to at least 100 members (but this would be offset by the loss of UK Parliament membership).”
There is a proposed Wales Public Service. The model for the service is the civil service model, but unlike the civil service it is proposed that the Wales Public Service is extended to cover all public service workers, including local government workers (art 34).
Under the PWC, public affairs must be conducted in accordance with (what we have termed) the principle of veracity (art 13). Formulation of the principle is, essentially, a response to the development of ‘truth decay’ or ‘fake news’.
There will always be legitimate arguments about ‘truth’ or interpretation of events but unsubstantiated and positive assertions as facts, but which demonstrably are not facts (such as Donald Trump‘s assertions concerning the outcome of the 2020 US presidential election), are dangerous and a threat to democratic values which, if left unchallenged, can provide a platform, for example, to such things as Holocaust denial.
The role and worth of local government is emphasised, especially in pursuit of social justice and ensuring people’s fundamental needs are met (art 35). The Welsh Government is required to observe the principles of subsidiarity and proportionality in its relations with local government.
The PWC builds on existing Welsh ‘constitutional’ legislation such as the Government of Wales Act 2006 (GOWA) and the Well-being of Future Generations (Wales) Act 2014 (WFGA). Provision concerning the Senedd (art 29) and the Welsh Government (arts 30-33) draw directly from the GOWA.
As proposed, Senedd membership would increase from 60 to at least 100 members (but this would be offset by the loss of UK Parliament membership). Voters at Senedd elections would include people aged 16 and 17 (art 28).
“In conducting its foreign policy, Wales would be required to observe, and promote respect for, international law…”
Consistent with what is currently required under the Well-being of Future Generations Act, public authorities would be required to promote sustainable development.
Welsh public bodies would be required to promote individual well-being of people (art 45-45). This is an extension of existing duties to promote well-being in the Social Service and Well-being (Wales) Act 2014.
The Council for Europe Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the United Nations Universal Declaration of Human Rights are heavily influential; under the PWC an Act of the Senedd is not law if not compatible with the ECHR (art 10(3)).
Related to this, the rule of law is to apply in Wales (art 8) and, in accordance with Tom Bingham’s definition, express reference is made to the rule of law including protection of human rights.
Other PWC content relates to the sustainable and beneficial use of natural resources (art 48) and environmental quality (art 47).
PWC content covers international relations (arts 40-43). In conducting its foreign policy, Wales would be required to observe, and promote respect for, international law and, in accordance with the principle of non-aggression, promote international peace, justice and security (art 39).
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As mentioned, publication of the PWC is designed to promote informed discussion about Welsh independence.
But it is also about promoting that discussion in relation to underpinning values and principles which can be drivers in the constitutional arrangements of an independent Wales.
At a broader level, discussion of those values and principles has a more general relevance and is applicable to the current or any other constitutional scheme; for example, independence is not a prerequisite to the pursuit of social justice.
As well as consideration of what a constitution for an independent Wales might contain, a secondary hope is that this process generates wider contemplation about what should be guiding values and principles in Welsh public life.
We hope this contribution is a spark to ignite debate and discussion on what a Welsh constitution could one day be.
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