Notes on Federalism

A realistic option for a constitutional future for Wales?

Introduction

Following the 2021 Senedd election — and Welsh Labour’s electoral victory — federalism will be high on the political agenda. But at a time when Wales’ constitutional future is at the heart of political debate, with support for independence running at unprecedented levels, and while Westminster is working to roll back the devolution settlement backed by Welsh electors in two referendums, it is far from clear that federalism and how it deals with the constitutional issues facing Wales is understood by the electorate. In some quarters it is regarded as a more entrenched form of devolution; in others as a fundamental constitutional change with implications as far-reaching as independence.

So it seems almost certain we will be hearing a lot about federalism in the months and years ahead, not least because the new Welsh Labour government appears to have started off its term with a display of radical vigour that sets it on a rather different trajectory to its Westminster counterpart. And events in Scotland, which — despite the claims by unionists to the contrary — now has a clear Parliamentary mandate for a second independence referendum, will focus attention in Wales on its own constitutional future.

A key outcome of the 2021 Senedd election was its decisive endorsement of self-government for Wales. For the first time, a party explicitly devoted to the ending of devolution — the Abolish the Assembly Party — stood candidates, with UKIP and Reform taking a similar line. Despite predictions that it would pick up list seats, it was wiped out. The new Senedd is overwhelmingly made up of people who want more self-government for Wales, not less; and Welsh Conservatives, who have in recent times expressed at best equanimity about devolution, now need to decide whether they speak for the electors of Wales or for their party bosses in London.

So what does federalism mean? And in what ways does it provide a realistic answer to the constitutional problems of the United Kingdom, and satisfy the growing demands for self-government in Wales?

What is federalism?

It will help to begin with definitions. The longest-standing advocates of federalism in the UK are the Liberal Democrats; the definition offered by the Welsh Liberal Democrat manifesto in the 2021 Senedd election offers a good starting point:

“Liberal Democrats have long argued for a federal United Kingdom. This means far more than devolution; it means that the constituent parts of the UK have power over their own affairs as a matter of enforceable legal right, as part of a wider written constitution for the UK.

Under such a system there could be no question of Westminster rolling back or circumventing the devolution settlement — as the Conservative Government in Westminster is currently trying to do.

Decisions on the future of Wales within a federal UK would be taken in Wales, with the consent of Welsh people, and with an absolute constitutional veto over any change in the relationship between the reformed United Kingdom and its constituent parts.

We are not defending the status quo. We are the only party that believes in reform both in Wales and the United Kingdom as a whole.

The Liberal Democrat vision is therefore one that creates an autonomous Wales, in which decisions are taken by democratic Welsh institutions; it is also one that avoids creating new barriers.

Since leaving the EU, Wales has seen the problems that arise when new borders are created. We believe in taking down borders, not erecting them; a federal UK is how we achieve aspirations for home rule while ensuring that people are able to continue their lives without facing border controls: after all, tens of thousands of people cross the border between England and Wales every day, in both directions, to work and carry on businesses, or just to visit family and friends on the other side of the border.”

That definition exposes some key points about what federalism is, and, more important, what it is not. The most important of these is that it is not devolution; the source of legitimacy is the federated nation, not Westminster. That of course is precisely the opposite of devolution, in which Westminster is sovereign and delegates powers to the national Parliaments: power that may be repatriated to Westminster at any time.

It’s not obvious that the implications of this are particularly clear. Welsh Labour for example stated in its manifesto that the United Kingdom is founded on the consent of the member nations. That may be its aspiration, but in historical terms it’s just untrue; Wales is part of the United Kingdom as a result of conquest, not consent. It’s true that the current devolution settlement has been backed in two referendums, but in neither case was independence on the agenda. And Westminster can take those powers back at any time it chooses. In fact one could argue more consistently that Scotland has given its consent to be part of the United Kingdom — in the independence referendum of 2014; but the point about Scotland is that the UK Government has enacted decisive constitutional change, namely leaving the EU, against Scotland’s explicit will, to the point where this consent is no longer meaningful.

Moreover, following the passage into law of the Internal Market Act, which effectively undermines significant parts of the devolution settlement, and to which the Senedd explicitly objected, the Welsh Government took Westminster to court — and lost. The fact is that under devolution, Westminster remains sovereign; in a federal United Kingdom, its powers would be constrained, as a matter of enforceable law.

There is another key point about consent — which is that it is only meaningful if there exists the right to withdraw it. The very idea of federalism contains at its heart the paradox that consent implies the principle that a constituent part of that federation has the right to go it alone if it chooses to do so — a point that is missed by those who see federalism in opposition to what they call “nationalism”. Logically, at the very heart of federalism must be a recognition of each constituent part of a federation as an independent entity, capable of making democratic decisions about its future. As a matter of principle, you cannot be a federalist and deny the right to independence. Federalism means the right to choose.

And in practice it means nothing less than the fundamental transformation of the United Kingdom constitution, on a basis that would be acceptable to all its constituent parts. Even if you omit Northern Ireland from that equation — which, despite its effectively having its own constitutional arrangements mandated by the Belfast Agreement, it seems hard to do, as it would be difficult to argue that a fundamental change to the UK would not constitute a change in its own status — it is extraordinarily ambitious. And it inevitably begs questions of deliverability. For example, it implies a degree of unanimity across the different nations of the UK about its the future at a time when there is clear — and, after the elections of 2021, clearly growing — divergence in the political cultures and party systems of those nations.

And it follows from this that no intellectually serious federalist could ever talk in terms of “defending the Union”. On the contrary, true federalism would require the most significant change to the constitutional arrangements of the United Kingdom since 1066. Federalism is about transforming the Union, not defending it; transforming it into something that is utterly unprecedented in the history of these islands. And this is the point at which advocates of federalism sometimes appear not to understand its full radical implications.

Some supporters of Welsh independence criticise federalists of lacking ambition: the reality, whether the federalists realise it or not, is precisely the opposite. For all the issues surrounding independence, alongside federalism it can very easily begin to look like the more achievable option.

Federalism and Independence

So, faced with this background, why should those who back greater autonomy for Wales not go for the simpler option of independence?

A growing number of people in Wales are, of course, opting for independence. It is more popular than ever before, with polls showing up to a third of the electorate willing to vote for it in a referendum (although it is notable that this did not seem to transfer into votes for Plaid Cymru at the 2021 election). The principal non-party pro-independence campaign, Yes Cymru, has seen a surge in membership: from 2000 to 18000 in a little over a year.

And, crucially, the grounds of the debate have shifted. The traditional argument that Wales was too small and too poor to be independent is no longer accepted; it’s obvious that an independent Wales would be a small nation but not unsustainably so — slightly below the median in terms of population — and has a higher per capita GDP and tax take than many independent nations. There is no doubt that Wales has, in the long term, underperformed economically: but the analysis produced by the Wales Governance Centre at Cardiff University, Wales’ Fiscal Future, argued that while a newly independent Wales would face a short-to-medium term economic hit, the current arrangements were a factor in that underperformance and, unless they changed, further decline would occur. One of the salient features of the debate around independence has been the focus on economic thinking.

And many of the arguments around independence are about what the United Kingdom, in the post-Brexit era, is becoming. The fact of Brexit has led to the UK — or, to be more precise, the England that dominates it, and which voted so overwhelmingly for Boris Johnson’s Conservatives in the 2019 General Election — redefining itself politically and culturally, in a way that is profoundly hostile to any interpretation of history and society other than a post-Imperial narrative of English exceptionalism. It is as if the narrow victory for Leave in the June 2016 referendum is being set up as a sort of Year Zero for a new narrative of English sovereignty — one in which the national identities of Wales, Scotland and Northern Ireland only exist insofar as they promote a populist vision of Britishness; in which, for example, the sacrifice of peace in Northern Ireland is deemed to be a price worth paying for the appearance of sovereignty.

In particular, the English Conservatives are engaged on a mission to exclude non-Anglocentric visions of history, under the guise of a “war on wokeness” designed to undermine the legitimacy of — and ultimately eliminate — alternative historical narratives, especially those embracing the narratives of the formerly-colonised; a mission to destroy multiculturalism and replace it with a monolithic, backward-looking idea of Britishness. And it goes hand-in-hand with a concerted effort, following Brexit, to roll back the powers of the devolved institutions of Scotland and Wales — for example, the Single Market Act which dramatically circumscribes the ability of Welsh and Scottish Governments and Parliaments to legislate in areas that are in theory devolved to them.

So, why federalism? What are its potential advantages over independence?

In brief, these come down to the maintaining of links with the rest of the UK. A key issue is that of borders, especially now that the United Kingdom has left the European Union and is outside any of the various European economic blocs. Had the UK remained in the Single Market and Customs Union, borders would not be an issue — there would be the basis for an independent Wales to keep open borders with both England and the rest of Europe. But, outside those institutions, an independent Wales — even if it were able to gain early membership of the EU or free-trade areas like EFTA — would default to a hard border with England. And the consequences of that would be massive — tens of thousands of people cross the border every day between Wales and England, in both directions. So there would need to be an accommodation both with England and, in the West, a means of managing the border with the EU. Politically, that may be extremely difficult if Wales is faced with an England that is hostile to the newly-independent Welsh state; the early history of the Republic of Ireland, against which the UK maintained something close to a trade war which only ended when both acceded to the EU, provides an important precedent, especially while England continues in its current mood of truculent national exceptionalism.

And, at a different level, it is clear that many people in Wales feel a profound connection with aspects of the Union, beyond the political. The monarchy is one; although whether that connection will survive once the present Queen is replaced by her far-less respected eldest son is another matter. Whatever the Government of a future Wales looks like, it will fail if it does not accommodate the concerns of people who still feel British, owe loyalty to British institutions, whether they are are born here or have made their (first) homes in Wales. Proponents of independence argue that they regard everyone who has made their home here as Welsh; and that of course is absolutely right, but loyalties run deep and those who argue for independence need to understand that the new Wales has to carry the emotionally British citizens of Wales with them.

Finally, there are issues of process. A newly independent Wales needs to emerge from legitimate process — it needs to be recognised by the rest of the world, and earn its place in the United Nations, comply with international treaties; in other words, the transition to independence needs to be orderly and conducted within the international legal framework. And for as long as the United Kingdom is a formally-constituted and recognised state, that orderly departure needs the consent of the political institutions of the United Kingdom. It would be immeasurably more difficult — if possible at all — for Wales to take a place on the world stage without that process; a fact that stands in stark contrast to the apparent belief among some pro-independence social media warriors that it would be easy for Wales to go it alone. The obvious and profound democratic deficit at Westminster should not blind us to the fact that Britain is a long way from being the rogue state whose behaviour would mean an easy and quick way into the international community of nations for a Wales that had unilaterally broken away — and even a United Kingdom that has been much diminished by Brexit still carries a great deal of soft power in the world.

Obviously, federalism — as an internal political reform of a recognised state — at a theoretical level avoids all these issues. Its proponents would argue that it provides the benefits of independence without the pain, and that a federal UK may involve no more obligations and restrictions on sovereignty that membership of the EU would bring.

Moreover, the Brexit debacle has demonstrated that theoretical sovereignty and actual power and influence are very different things. It is obvious that the United Kingdom after Brexit has traded actual influence for the trappings of independence; federalists would argue that their approach to Welsh self-government would avoid Wales’ making the same errors.

So federalism, in theory at least, offers a route to self-government that does not lead to the erection of borders; offers reassurance to citizens of Wales who still hold on to their British identification; and is based on an understanding that the path to independence is not straightforward. It is at one level an acknowledgement that national identities are complex and overlap.

But federalism begs two obvious questions.

First, do these problems that federalism claims to solve insoluble necessarily follow from independence? The answer, almost certainly, is no — although the borders issue is certainly difficult, and may well depend on whether the United Kingdom, its economy ravaged by Brexit and facing international pressure over Northern Ireland, finds itself forced back into the Single Market and Customs Union, or a parallel arrangement that eliminates borders.

And, second, is addressing these problems more or less difficult than the fundamental political reform of Westminster, and the consensus across the nations of the United Kingdom, as to what a new system of governance should look like, that federalism would require? Again, neither option is easy, but the reality of the politics of the United Kingdom begs the question of whether the alignment of conditions for the creation of a federal state could ever be created. It might be more realistic to envisage a situation where the political consensus at Westminster is that the English-centric agenda of both Conservatives and Labour is more easily delivered if Wales and Scotland and even Northern Ireland are no longer their problem; in which an ailing post-Brexit English economy no longer bears what is presented as the burden of subsidy that Wales, Scotland and Northern Ireland represent.

Scotland

It is clear that Scotland has elected a Parliament with a clear mandate for a new independence referendum. The road map to independence — or even to that second referendum — is far from clear; but it seems likely that it will be a long one, with profound consequences for the constitutional future of Wales.

If Scotland moves towards independence, the consequences for federalism are profound. Critics of federalism argue that its fatal flaw is that, whatever the theoretical constitutional position of Scotland and Wales, they will inevitably be unable to maintain any real independence in the face of the will of their far larger, more populous and richer neighbour. Supporters of independence, including Plaid Cymru, argue that no federation has ever existed in which one member so substantially outguns its partners in terms of economic power or population. It is undoubtedly true that, independent or federated, Wales will be unable to escape the influence of England; although, as with the relationship between the UK and its former EU partners, you could argue that at least as part of a federation Wales would have some influence. But without Scotland, that influence becomes far less. In a federation of three or even four members, it is possible to envisage a constitution in which the smaller members can outvote the larger; in other words, in which the powers of the largest member is constitutionally constrained. Assume Scotland is moving towards independence and Northern Ireland is not part of the new federation, and it becomes clear that a federation between one very large and one much smaller member, is going to be subject to political stalemate and cannot function. In other words, the departure of Scotland from the Union greatly reduces the feasibility of a federal UK. Again, federalists have to confront the question — how feasible is a federal outcome?

England

England is the elephant in the federalist room. What happens in England determines to a very large degree whether a federal UK can work; and even if Wales were to achieve independence, its soft power — economic, social, cultural — would be immense.

And there is no real appetite for federalism in England (hardly surprising when one considers its effortless domination of British political discourse, even before the rise of the current wave of post-Brexit English exceptionalism that obtains in Westminster). Even within the Liberal Democrats, the political party most closely associated with the federalist ideal, the question of what federalism would look like in England is simply ducked. Should England be a single federal unit, or should the current patchwork quilt of political arrangements be replaced with federal governments for the regions?

There are some who would argue that the latter would avoid the risk of a dominant English partner in a federation, but it misses an essential point. Wales and Scotland are distinct political and historical entities: nations with their own history and culture and, in the case of Wales, a vibrant language which is undergoing a renaissance. Their borders are clear and well-established. In terms of identity and history Wales and Scotland are simply different from English regions; to argue otherwise is simply to misunderstand the political climate in Wales, and to accept an equivalence that simply would not satisfy those nations. And while some parts of England have clear identities — London, for example, which already has significant devolution, or Greater Manchester with its politically distinctive mayoralty — large areas do not (and the process of dividing England into regions is likely to resemble a throwback to that aspect of colonialism that saw functionaries drawing lines on a map). Ultimately, England doesn’t really care: but the concept of federalism depends in part on there being a level of enthusiasm for a new political settlement in England that matches that of Wales or Scotland. And Wales and Scotland are not in the mood to wait for a dominant, complacent England to make that political leap.

Conclusion: means and outcomes

Devolution, federalism or independence? The answer to that question partly depends on what kind of outcomes you want to achieve. Ultimately these are all means to ends: self-government for Wales.

Wales wants and needs self-government: the current situation is simply not sustainable, politically or economically.

Wales is living in a time of paradox. The pandemic has increased awareness of devolution and shown that in its limited way it can make a difference — even in the hobbled version we have now in which the Welsh Government does not have the fiscal autonomy to make the big economic decisions, and even in those areas where it does have powers it often needs to wait for Treasury to grant its blessing. Wales manages its own health policy and has made better decisions in that pandemic, leading to better outcomes, but — especially in its inability to take its own fiscal decisions — in spite of, rather than because of, aspects of the existing devolution settlement.

Yet this is precisely the moment at which, as part of the ideological redefinition of Britishness that Brexit entails, Welsh devolution — confirmed by two referendums — is being brought to heel by an English exceptionalist Government. As the political systems of the nations of the United Kingdom continue to diverge, and as the appetite for real self-government grows in Wales, it is increasingly clear that even a greater measure of devolution does not provide a polity that can accommodate those changes and aspirations. Devolution exists at the legislative whim of Westminster, regulated by conventions — Barnett, Sewell — that a centralising and ideologically nationalist United Kingdom government can eliminate at the stroke of a pen.

It is also the time at which Scotland, with its clear Parliamentary mandate for a second Independence referendum, is facing the realities of moving towards independence — with potentially profound implications for the rest of the United Kingdom. And England, with its patchwork of Metropolitan Mayors, County and District councils and administrative regions, shows no obvious appetite for a new constitutional settlement. Ideologically, England is in the grip of a populist nationalism that regards the national identities and self-governing aspirations of Wales and Scotland with post-imperial contempt.

Federalism — to the extent that it is not just part of an intellectually confused attempt to “defend the Union” — remains a sincere and in some ways attractive way to approach some of the problems raised by both devolution and independence. It potentially offers permanent guaranteed autonomy without borders. But in other respects it is deeply problematic — it requires a degree of consensus that simply may not be available in an increasingly divergent and fissiparous United Kingdom, whose nations are moving further apart. It requires a complete rewriting of a Westminster system whose salient characteristic is its ability to resist change, and whose current dysfunction is such that it is increasingly seen as beyond repair. It struggles to understand that for many people, it is the idea of the United Kingdom itself, and a clearly failing, deeply corrupt Westminster state that is the problem.

And at federalism’s heart is a damaging, and possibly fatal paradox: that it requires the institutions of the United Kingdom to change fundamentally, but the political identity of the United Kingdom is bound up in precisely those institutions that need to change; in Monarchy and the Royal Prerogative, in the sovereignty of the Westminster Parliament which cannot bind its successors, and in the powerful symbolism in which Britain seeks to locate its political model as the Mother of Parliaments, the home of democracy. The mythology is potent, and all the more problematic while an English nationalist Government in Westminster seeks to cancel those narratives of history that do not conform to its mythology of Westminster democracy.

Federalism offers a lot of the right things — things that would need to be at the heart of the new Wales. Guaranteed autonomy; open borders; the ability to develop a relationship with England while looking towards the outside world; and orderly progress towards a political settlement; an understanding that the views of those who see their identity expressed in United Kingdom institutions and history need to be respected.

But the question that federalists must answer is whether their vision, in the political context of the third decade of the twenty-first century, offers an approach that is both deliverable and can satisfy the political, social and economic ambitions of modern Wales. And that means they must ultimately decide whether they are in the business of defending the Union, or creating a new and modern political settlement that leaves a failing Union behind.