It is an expression of how far we have travelled in Wales since the creation of the National Assembly in 1999 that the most developed thinking on how we should grapple with the next phase of our constitutional journey is coming from within the Welsh Conservative Party.
To be sure, David Melding, Conservative AM for South Wales Central and author of the IWA’s new book Will Britain Survive Beyond 2020?, is hardly representative of mainstream Conservative thinking. Although his approach is characterised by a deep attachment to sustaining British unity and values, he is decidedly moderate on social issues and strikingly radical in his constitutional ideas. On the constitution he argues that if Britain is to have a secure future then the identity of what he calls the ‘Home Nations’ must be acknowledged and supported in a way that allows them to share sovereignty with the British level.
In short, he makes a powerful case for a British federation:
“For Britishness to remain coherent it must now accommodate the explicit political character of Wales, Scotland, Northern Ireland and perhaps sooner than we think, England. A great but dormant truth is reasserting itself. The Home Nations are sovereign entities. At the moment they choose to be part of the British state. Long may it continue. But let no one be fooled that this allegiance is inevitable. Britain might not survive beyond 2020. The best way to preserve Britain as a multinational state is to accept that the UK can no longer be based on tacit consent but requires a new settlement. That settlement will need to be federal in character so that the sovereignties of the Home Nations and the UK state can be recognised in their respective jurisdictions.”
He then proceeds to deal systematically with the various objections that can be made to federalism, especially in the British context. The most obvious is the relative dominance of England which, as he points out, has a share of population and wealth about six times as large as Scotland, Wales and Northern Ireland combined. He addresses this problem by appealing to the essentially national character of the units involved:
“Somewhat paradoxically, it is Britain’s multinational nature that makes an asymmetrical federation possible. While England, Scotland and Wales are significantly different in size, they are very similar in terms of their national coherence. Nations may be ‘imagined’ but some are projected more vividly than others. The Home Nations of Britain are almost Biblical in their intensity. Such nationalism would provide strong cultural defences in a federal UK. More formally, a range of constitutional safeguards could also reduce the risk of the domestic jurisdiction of Wales and Scotland being encroached by a UK government. A constitutional court could act as the guardian of national rights. And a reformed House of Lords could contain a disproportionately large number of Celtic members, following the principle established by the American Senate. The strongest safeguard would be a constitutionally enshrined right to secede which would moderate the behaviour of the most diehard centralists intent on assimilation.”
Melding acknowledges that a federal Britain along these lines would break new ground precisely because, unlike nearly all federations elsewhere, it would be made up entirely of national units. Consequently, it would have built-in, as it were, the potential for an eventual break-up of the state. Here he cites the Canadian federation which has Quebec as a major component but yet has still not fractured. He also insists that a continuing emotional attachment to Britishness will itself be a factor in sustaining its integrity.
He acknowledges, too, that it could be argued that federalism would be an artificial imposition and against the traditional, organic, and generally unplanned evolution of British constitutional arrangements. In fact, in this sense it would be distinctly ‘un-British’. However, against this he argues that Britain is developing in a quasi-federal direction in any event:
“It is becoming increasingly clear that what starts in theory as devolution – with an assertion of centrally retained sovereignty – quickly becomes quasi-federalism. The Scotland Act 1998 devolved all legislative power to the Scottish Parliament other than those items listed for exemption, and this firmly established the Scottish Parliament as a quasi-federal institution rather than a grand unit of local government to be altered or overridden at will by Westminster. That Britain’s quasi-federal devolution is not buttressed by a written federal constitution weakens the British state. It is sheer wishful thinking to call this constitutional muddle pragmatic flexibility. There are too many grey areas where devolved administrations can compete for jurisdiction with Westminster – the SNP’s anti-nuclear stance on defence illustrates the danger. To some extent this jostling is found in all federal states; but without a clear constitutional settlement, Britain risks losing the benefits of a more formal federalism with an agreed set of rules and clear boundaries, while retaining none of the certainties of the former unitary state.”
There is undoubtedly an elegance to David Melding’s case for a federal solution to Britain’s devolution dilemmas and, certainly in terms of Welsh political thinking, he breaks new ground. At the same time, in making his case he also makes some heroic assumptions about English attitudes. In essence, he seems to require a separation of civic attachment between the British federal level on the one hand, and the ‘Home Nations’ on the other. Could this be achieved when, as he himself concedes, the components of the federation would comprise such intensely aware national entities?
It can be argued that, to varying degrees, the people of the United Kingdom feel at one and the same time Welsh/Scottish/Northern Irish/English and also British, but it is not clear how these break down in terms of national or civic allegiances. To separate them in relation to parallel political jurisdictions, as is required in Melding’s vision of a federal Britain, would be a novel step, and especially for the English mind. It is not at all clear, for instance, that the English do feel a straightforward duality of identity between feeling at one and the same time both English and British. For the most part is it not the case that the English simply feel English? For them being British may simply be an expression of their essential English identity but in the wider world – as with carrying a British passport, and in relation to institutions such as the British armed services, the BBC, the British Council, and perhaps the ‘British’ monarchy.
Underlying all of this is the absence of any significant ‘independence’ movement in England, for example for an English Parliament. Certainly, in recent times a more salient sense of Englishness has developed, and especially since the advent of devolution in the late 1990s, finding expression for instance in the widespread replacement of the Union Jack by the St George’s Cross in the football stadium. However, this has not been accompanied by any clearly articulated constitutional ambition to establish distinctive English institutions. The Conservative call for ‘English votes for English laws’ in the House of Commons seem driven more by a search for party advantage than any aspiration for fundamental constitutional change.
As to a British federation, where is the evidence that there is a political will amongst the English to federate? The Welsh and, less likely, the Scots may demand it, but the English, and certainly the Engli
sh political class just do not engage with the discussion, or even the language of the debate. Two examples stand out. One was the fall at the first referendum hurdle of the attempt at devolution within England to create an elected Assembly for the North-East. This was envisaged as the starting point for a rolling programme of devolution throughout England. Had it been successful it might have provided the basis for a British federal structure involving the English regions, although of course it would have entailed the political dismantling of the English nation.
The other example is the on-going debate on reform of the House of Lords. Melding seems to assume that it could somehow be used at least in part as a chamber to represent the federal components of the state in the way that is generally common in federal systems, such as Germany, Australia, and the United States. Yet in all the debates there has been no serious proposal for the House of Lords to evolve as a regional chamber. Indeed, the only case in modern times for a reform of the House of Lords along these lines was been made by the myself, in 1998, in a Fabian pamphlet Reforming the Lords and changing Britain. It was significant that this failed to provoke any debate and sank without trace.
A further constraint on a federal solution is that, ultimately, it would not satisfy Scottish or Welsh nationalist aspirations, which seek international representation, at a minimum within the EU. Yet for a nation to be represented within the EU it has to be independent. Flanders is without doubt the most devolved, regionalised, or federated ‘region/nation’ within a EU member state. But it simply has no voice in the EU institutions. The position in Belgium is that all three jurisdictions – Flanders, Wallonia, and Brussels – have to agree on a common position for Belgium within the Council of Ministers. If they don’t then Belgium simply fails to have a position, which is increasingly the case.
Can it be imagined that a similar restriction could be applied to the representation of a British federation within the EU? That is to say, could a situation be envisaged where Wales, Scotland and England (and perhaps Northern Ireland) would all have to agree before a position was adopted in the Council of Ministers? Even more improbably, could Wales have a veto on a British federation declaring war (which it would certainly have wished for in relation to the Iraq adventure, for instance)? To ask the question provides the answer.
Aside from Scottish or Welsh aspirations, a fundamental question for those who advocate a British federal solution is simply this: are the English ready to face the existential choice of adding British to their English identity in a meaningful, political way, in order to embrace the Celtic periphery in a shared federal constitution? Again, on the face of it, to ask the question provides the answer.
At the same time, two current issues may work in favour of the English acceding to this. One is the apparent Conservative determination to deal with the so-called West Lothian question, in which because of devolution Scottish and Welsh MPs can vote on English domestic matters at Westminster while English MPs cannot vote on Scottish or Welsh domestic policies. The other is if there is an initiative to dismantle the Barnett formula, which distributes funds to the devolved nations. The first might destabilise the Westminster Parliament and the second would raise the question of the distribution of public expenditure within England. Both might lead to an increasing appetite for a federal answer. Yet both remain relatively technical issues and hardly ones calculated to prompt the kind of emotional engagement that would justify such a large-scale constitutional response.
It is one thing to point out the political or existential realities facing those who advocate a federal solution to the constitutional conundrums facing Britain, but quite another to suggest a more plausible approach. The likelihood is that the project will continue for a good while yet along the course already adopted, with gradual, pragmatic and unsystematic adjustments. Wales is likely to follow Scotland in acquiring more fully-fledged legislative powers. Scotland is likely to acquire greater fiscal autonomy. Both developments will nudge Britain more in a quasi-federal direction. But it will be a while, perhaps five to ten years or more, before the British system as a whole is materially affected.
Meanwhile, the essential break in the British system has already been made, simply by the creation of the National Assembly for Wales and the Scottish Parliament, consequent upon the referendums held in September 1997, and also devolution following a referendum in Northern Ireland. These were an explicit acknowledgement of the sovereignty of the people of the entities involved. How that essential sovereignty will be deployed in the different parts of the still United Kingdom in the coming years will be a determining part of the answer to David Melding’s intriguing question, Will Britain Survive Beyond 2020?
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