The headlines generated by publication of the final report of the Independent Commission on the Constitutional Future of Wales focused on the finding that independence is a viable option for a Welsh democracy. However, what is even more striking than this significant step is that no case at all is made in the unanimous report for the continuation of the current relationship between Wales and the UK.
At the report’s launch, Commission co-chairs Laura McAllister and Rowan Williams emphasised the importance of defending Welsh devolution from “attrition and even collapse” at a time when it’s clear that there is not a constructive relationship with the UK government. The former added that there had been no “coherent or evidenced argument for the status quo”.
A new sense of urgency and self-confidence
The self-confident and urgent tone of the launch and report are in marked contrast to the overly cautious approach of past initiatives to expand Welsh democracy. Where there was hesitation to deviate too far from UK norms, now there is shared recognition that the current constitution is not fit for purpose. First Minister Mark Drakeford, welcoming the report on behalf of the Welsh Government, acknowledged that the devolution settlement has become increasingly fragile and flimsy since 2019.
Hence the report calls for several actions to be taken immediately, regardless of which of its options is followed. These include new legislation to strengthen intergovernmental relations within the UK, and prevent Parliament from passing laws on devolved matters without Senedd consent. It also calls for immediate devolution of powers on justice, policing, and rail infrastructure, and more flexibility for Welsh Government management of finances.
The current Welsh Government no doubt hopes it can rely on an incoming Labour UK government to deliver on these urgent needs. However, the 2022 report of Labour’s Commission on the UK’s Future, chaired by Gordon Brown, proposed “new powers over youth justice and the probation service” to Wales, not full control over justice and policing.
While that report promised that the Sewel Convention – that legislation affecting devolved powers requires consent of the devolved administrations – would be strengthened and protected, the mechanism it set out is a classic fix rather than a new constitutional model. This would expand a provision in the Parliament Act 1911 (allowing the House of Lords to reject a bill to extend the term of parliament) so it could also be used to protect “certain other constitutional statutes” as a form of “entrenchment”. Labour’s report further suggested that the UK Supreme Court should arbitrate on when these constitutionally protective powers could be engaged.
The long-term future of Welsh democracy
There is doubt as to whether those provisions, and reform of the House of Lords in general, will be in the Labour Party manifesto for the coming general election. Either way, we can expect to find out soon whether a change in government will enable the repair of immediate devolution problems.
Even if immediate issues are fixed by an incoming UK Labour government, it’s important to remember that the long-term future of Welsh democracy as set out by the Commission is dependent on choosing one of three possible models it proposes. These are enhanced devolution, Welsh democracy within a federal UK, or an independent Wales. On paper these seem like a series of progressively more radical alternatives. However, as McAllister emphasised at the launch: “All three are viable options, but when you study the report carefully, you will see that each has their own challenge and risk and their own opportunities.”
Enhanced devolution was originally labelled “entrenched devolution” in the Commission’s interim report of 2022, which suggests a degree of alignment at the time with the ideas being discussed by Labour’s Commission under Brown. However, the name was changed because it was found that people didn’t understand what ‘entrenched’ meant in this context.
The advantage of enhanced devolution is that it would not require a referendum. But neither, the report concludes, would it “fundamentally change the fiscal and economic position of Wales in the United Kingdom economy, with the risk of continued relatively poor economic performance, low incomes, and poverty”.
Risks and rewards
The risk attached to enhanced devolution is that, even if it protects and improves the current relationship between the Senedd and Westminster, Wales will remain as a low-income, underperforming country that is economically dependent on England. In contrast, the report finds that an independent Welsh democracy could be successful in the long term but might take 50 years to reach its full economic potential.
At the time of the interim report, the federal option appeared to offer a middle route between these alternatives. But the Commission has since discovered that the citizen’s panels it set up showed support for this option decreasing the more people understood its “difficult implications”. These include the fact that it would be extremely unlikely to attract majority support in any of the other three nations of the UK.
Therefore, as acknowledged by the wording of the concluding paragraphs of the report, Wales faces a choice. Either a “lower-risk strategy, based on whatever reforms of the current system can be realistically achieved”, while accepting that the economic situation will remain the same. Or taking control “over the widest range of policy areas and the opportunity to shape the future of Welsh democracy and change the current economic trajectory”, but with the risk that this might leave people financially worse off over the short- to medium-term future.
Action is required now
In presenting this as a choice between different levels of risk, rather than the usual framing of independence vs remaining in the Union, the report is trying to make it clear that there is no default option. Action is required now to ensure any future for Welsh democracy.
Even the achievement of ‘enhanced devolution’ will require active campaigning and sustained support throughout Welsh civil society. However, even if this goal were achieved with the support of a UK Labour government, other scenarios might affect our constitutional future.
As the report discusses, if both Scotland and Northern Ireland seceded in close succession, it’s not clear that Welsh devolution would survive, as one likely Westminster response would be to centralise powers over its remaining territory. It’s true that under such circumstances “it would be vital for Welsh citizens and elected representatives to be actively engaged in discussions about the implications of potential changes to their country’s governance”.
However, it would be preferable to avoid the possibility of being trapped in an unequal relationship with England in a rump UK, by actively choosing the future we want in advance of any such scenarios. To this end, the report’s immediate “recommendations to strengthen Welsh democracy” are essential.
The Welsh Government needs to enhance democratic and community engagement now, and “lead a project to engage citizens in drafting a statement of constitutional and governance principles for Wales”. Any positive future for Wales and Welsh democracy is dependent on this first step.