A Westminster free-for-all and the federalist’s conundrum: is a federal Wales constitutionally possible without legal independence?
Carwyn Jones, in the National, describes how Westminster acts as a political free-for-all. What are the implications for a federal Wales?
In a powerful piece in National Wales today, former First Minister Carwyn Jones describes how Westminster exemplifies the idea of elective dictatorship . He writes:
Westminster is in effect a free-for-all. If the UK Parliament wanted to abolish the Scottish Parliament it could do so without even asking the people of Scotland. If it wanted to make it illegal to travel around the UK without permission, it could do so. It could even remove the entire court system and reintroduce trial by combat if it wished.
Perhaps the last example is a bit extreme, but the point is that Westminster can do anything it wants during the course of a parliamentary term. Nothing can restrain it and no laws apply to it. In that sense it is indeed an elective dictatorship because no citizen can challenge what the UK Parliament does. Once a Parliament is elected, the electors are removed from the picture.
It’s a situation that is particularly pertinent for the devolved nations of the UK. Westminster has used that free-for-all to launch an undisguised power grab, on the pretext of Brexit. The Single Market Act means that devolved governments will be required to defer to Westminster in nominally-deferred areas in pursuit of a single UK market; a move that has fundamentally altered a devolution settlement twice approved by referendums in Wales, without the consent of Welsh institutions or the Welsh people.
Jones writes that there is, in theory, a written Constitution for Wales:
In theory, Wales has a written constitution, as the structure and powers of the Senedd and Welsh Government are laid down in a series of UK Acts of Parliament and which form a kind of constitution which is subject to the oversight of the courts.
But the point, of course, is that all of those Acts could be repealed by Westminster, without consultation with Wales or its democratic institutions.
Moreover, key parts of the devolution settlement are not even set out in statute: the Sewell and Barnett conventions, governing Welsh approval for laws affecting Wales and public finances in Wales respectively, are precisely that: conventions. They have no force in law and could be removed at the stroke of a pen.
For all these reasons, federalists and increasingly defenders of devolution argue that there is a need for a written UK constitution, in which the boundaries of jurisdiction are enforceable in law. The Johnson government’s cavalier attitude towards the devolution settlement has lent urgency to that case.
But can it be done under the current Westminster rules, in which a fundamental principle is that Parliament cannot bind its successors? Of course, a key part of the federalist case is that the institutions of Westminster require fundamental reform, and the UK must have a written constitution.
But, in legal and constitutional terms, can Westminster actually vote to constrain its own future powers? Can a Parliament whose guiding principle is that everything it does is reversible ever constrain itself?
One could argue that the fact that the UK was able to give its colonies independence shows that it can. But even here the argument may not be clear-cut. The history of the relationship between Britain and its former colonies is one steeped in both law — the Statute of Westminster of 1931 — and in subsequent case law and practice, with there being some doubt that the Crown ever lost de jure rights to legislate (a decision by the Court of Appeal in 1982 implies that it didn’t) although to have attempted to do so would clearly have been absurd.
Leaving aside the questions of the balance of power at Westminster — which lies in the hands of an England that dominates the Union and has no inclination to give that power away — imagine the situation where the future relationships within a federal UK are set, not by democratic process, but in a decision of the Supreme Court in response to a challenge by Unionist ultras. Is that really the basis on which to create a future constitutional settlement for the UK?
The arguments for a federal UK are essentially practical rather than legal; they are about whether, for example, there are open borders, or a single market in which things like the operation of excise duties are harmonised. They are about people’s ability to live out their own identities. And the question remains — with both Scotland and Wales clearly large enough and wealthy enough to operate as independent states — of what needs to be done across the UK by actual political union, as distinct from a voluntary association of independent states.
But whatever one’s views on those issues, the fact remains that there is a real risk that, unless the constituent nations of the UK have de jure independence, there can be no constitutional guarantees and no written constitution enforceable in law that cannot be overturned by an English-dominated Parliament.
Clearly, this is a question for constitutional lawyers (of which I am not one). But it needs to be asked. Can the constitutional guarantees that a federal Wales — or even a properly devolved Wales — would need be granted within the existing constitutional arrangements of the UK. Or, legally and constitutionally, could a federal UK only be delivered though a confederation of sovereign independent states entering into a voluntary, EU-like agreement in which their sovereignty is pooled?
Or, in other words, do we need legal independence for Scotland and Wales before we can have a devolution or a federalism that works?
