In part one of a two-part series, Glyndwr Cennydd Jones balances the values of federalism and confederalism

Since 1999 there have been two broad phases of devolution in Wales:

Executive devolution with secondary law-making powers (1999-2007) and enhanced secondary powers (2007-2011)

Legislative devolution under a ‘conferred’ powers model (2011-2018) and ‘reserved’ powers model (2018- ).

During this time, a greater body of understanding has been fostered in regards to the specific needs of Wales, distinct from that for the UK as a whole. However, today’s National Assembly remains an institution lacking true confidence, influence and power to direct and lead change by inspiring a nation to fulfil its considerable economic and societal potential. The Assembly’s limited managerial, rather than strategically empowering, approach to governance is unable to deliver effective democratic representation of the aspirations, needs and values of Wales within the developing UK context. A context complicated by far-reaching uncertainty over Brexit, a strong voice for Scotland, and a view that successive Westminster governments, in their eagerness to secure votes from more populous areas nearby, have tended to neglect the needs of communities further afield. Constitutional reform is essential to advance responsible governance rooted in a more strategically focused agenda.

To protect the UK’s unity post-Brexit, the Welsh Government has suggested federalism as a possible way forward, mirroring unionist views in Scotland. Federalism, whilst admittedly delivering more powers to Wales, offers restricted opportunities for expanding Scottish autonomy beyond the present status quo and does little to tackle the UK’s future relationship with the EU in a way that is satisfactory to the Scottish Government. Federalism would likely deliver reform of the Barnett formula, as desired by the Welsh Government, but would impact negatively on the Scottish block grant, increasing pressures for a second independence referendum. Some Westminster politicians may even consider it intolerable to restructure the UK along federal principles, having just recently taken back authority through Brexit. This would cast an ever longer shadow over the devolution settlements as the UK economy adapts to functioning separately from the EU. Repatriation to Westminster of EU competences in fields otherwise devolved could also hasten calls for Scottish secession. After the SNP’s 2011 success, the then UK Prime Minister confirmed secession was allowable, something that had previously been only implicit. In the 2014 referendum, almost 45% of Scottish voters supported independence; inconceivable at the dawn of devolution in 1999. In 2016, the Scottish electorate differed further from England and Wales, on the fundamental question of Brexit.

To quote Dr Andrew Blick from his article Four Options for Configuring the British Constitution (London School of Economics: 2015): ‘the UK already has more diversity… than might be found even in a federation, for instance through the existence of three different legal systems… with a fourth possibly coming in Wales.’ Blick highlights that: ‘a practical problem involves how to incorporate England into a federal UK. If England were included as a single unit, since it accounts for more than 80% of the population, federalism might create instability worse than that which it sought to correct. Another approach could be for England to participate in a federation in a series of more managably-sized regions. Yet it is not clear how to demarcate these territories, and whether they would command sufficient popular attachment to make the federal project politically viable.’

The extent to which federalism would support greater constitutional clarity, comfort and confidence should not be underestimated. A further tilt along the continuum towards confederalism, with England established as one unit alongside the other three nations, could also provide a lasting post-Brexit solution that supports a real partnership of equals going forward, also raising opportunities for participation by the Republic of Ireland, if it so wished, and dealing neatly with the knotty issue of the border with the North. Interestingly, Professor John Kincaid, in his article Confederal Federalism and Citizen Representation in the European Union (Western European Politics: 1999) details: ‘what seems to have developed in the EU is… a confederal order of government that operates in a significantly federal mode within its spheres of competence.’ The existence of an EU common currency within what is mainly a confederal treaty illustrates the point. Member nations have delegated or ‘leased’, in effect, parts of their sovereignty over time to central bodies which agree laws on their behalf.

The second part of this article is available here.

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