Glyndwr Cennydd Jones is an is an author and commentator on UK constitutional issues and an advocate for a UK-wide Convention. He has written this piece on the future of the UK
It is the case today that the four constituent nations of the United Kingdom exist within a unitary state which is not underpinned by the transparent checks and balances of a formal written constitution. Many are appalled when they realise that the UK’s uncodified constitutional practices can seemingly vary on a fancy, depending on where a clause sits in a Bill and is debated, and whether established conventions are respected or not.
Sadly, this applies to the devolution arrangements of today, whereby the legislative powers delegated to Wales, Scotland and Northern Ireland are openly undermined by Westminster.
Recent Bills for which the Welsh and Scottish Parliaments have withheld legislative consent include the: European Union (Withdrawal) Bill, European Union (Withdrawal Agreement) Bill, European Union (Future Relationship) Bill, United Kingdom Internal Market Bill, Subsidy Control Bill and Professional Qualifications Bill.
The Welsh Government describes the Internal Market Bill as an Act which ‘impermissibly repeals parts of the Government of Wales Act 2006 in a way that diminishes the Senedd’s legislative competence’.
Lord Hain, a past Secretary of State for Wales and Northern Ireland, last Autumn stated that ‘the devolution settlement is being systematically ignored by the UK Government. Their decision to bypass the Welsh Government and directly allocate funding for regional and local development via UK-wide funds is a clear assault on devolution... in an era of aggressive centralisation’.
Westminster must now accept that having effectively transferred sovereignty for prescribed areas of government to the nations it cannot then, on the pretext of absolute sovereignty of the UK Parliament, decide to overrule them. Simply imposing its own policies regardless of the wishes of Wales, Scotland and Northern Ireland on matters devolved is not a sustainable option.
That the nations submit Legislative Consent Motions objecting to bills according to the Sewel Convention, which are then disregarded by Westminster, highlights the parlous state of both devolution safeguards and intergovernmental relations. Such breaches can only result in a weakening of the Union in its current form.
Admittedly, it may be necessary at times to revisit certain devolved powers because of changed circumstances. Where common sense dictates that there should be some pooling of specific functions, either to the UK Government or to a unique mechanism on a defined issue.
However, the system is not working, despite the publication of an intergovernmental review of relations in January 2022. The extent of unease is such that a Government of Wales (Devolved Powers) Bill is progressing from the House of Lords, to ensure that powers devolved to the Senedd cannot be amended or withdrawn by the UK Government without a super-majority vote of elected members in Cardiff.
National devolution extends to just 10 million people in Scotland, Wales and Northern Ireland, with 56 million remaining under the umbrella of a quasi-English Government operating in a UK-wide Cabinet.
England’s domestic policy on health, education, transport, social care, childcare and agriculture was separated from that of the devolved nations some twenty-five years ago. However, these matters remain the responsibility of the UK Government. The limited powers assigned to the mayors and combined local authorities do not begin to compensate for the centralist culture of Westminster and Whitehall.
The fact that the UK Government comprises many Ministers whose responsibilities rest almost exclusively within England, and that the UK Prime Minister effectively doubles as the English First Minister, inevitably introduces conflicts of interest into policy-making.
A change of attitude is required. If you decide to devolve, then you must respect what is decentralised, or accept the need for a federally inspired written-constitution to ensure both stability and transparency in practice.
I would go one step further and, as I have outlined in A League-Union of the Isles, move towards a form of close constitutional confederalism.
In summary, under devolution, Westminster delegates a measure of sovereign authority to the devolved institutions. Confederalism, or its more collaborative manifestation, confederal-federalism, turns this approach on its head, advocating four sovereign nations, of radically different population sizes, delegating some sovereign authority to central bodies in areas of agreed common interest.
In the model I propose a Council of the Isles, whose members are typically elected for a 4-year period, would be responsible for enacting power on aspects involving defence, diplomacy, internal trade, currency, and macro-economics, with a Committee of Member Nations, convening regularly to discuss other issues which may demand a degree of cooperation and harmonisation of laws. The Head of the confederation could continue to be the British monarch, holding frequent audiences with the nations’ First Ministers, thus balancing change with continuity. The National Parliament of each member nation would sit as the legislative and representative body of its people, having every power and right not delegated to joint institutions by constitution or treaty.
The national legislatures would be mirrored by legal structures, with a compelling case now made for introducing a distinct jurisdiction in Wales. The ultimate authority on all questions regarding any laws and rights assigned to the centre would be with the Supreme Court.
This proposal usefully deals with the sovereignty aspirations of the home nations and the need to share some key functions on an isles-wide basis. It also presents the opportunity for federalising the English regions in tandem with new Parliamentary arrangements for England.
Today, Westminster does not have popular mandates from the people of Wales and Scotland to undermine their respective Parliaments. The two electorates have voted in favour of extending devolved powers to their national institutions through referenda, and have consistently, if not overwhelmingly, supported pro-devolution parties. Mostly, their lives are determined domestically by politicians in Cardiff and Edinburgh.
Regretfully, Westminster has ignored the will of both populations by not respecting devolution. Since consent is the foundation of trust in any political system, there is now a compelling case for reform.
Intergovernmental relations across the UK should be redefined on a stronger, formal footing and codified in a new constitutional framework which enhances arrangements for self-government and secures mechanisms for effective isles-wide collaboration.
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