‘Devolution is dead and Wales is entering constitutional limbo’

Martin Shipton

The model of devolution that Wales has grown used to since 1999 is now dead, and we are now in a form of constitutional purgatory with no clear way forward, according to two leading Welsh academics.

In an article for The Political Quarterly, Professors Kevin Morgan and Richard Wyn Jones of Cardiff University argue that developments since Brexit have upended the devolution settlements for all three Celtic nations and sought to reimpose centralised power.

They state: “Following [Theresa] May’s replacement by Boris Johnson in July 2019, any pretence that the UK Government was interested in retaining cordial links with the devolved governments was rapidly abandoned. The whole tenor of the central government’s rhetoric became hostile, not only to the Labour and SNP run administrations in Wales and Scotland, but to the very existence of devolution.

“Decisions made by the central state were presented as being better, by definition, with centralisation and policy uniformity serving to ‘strengthen the Union’. Conversely, the policy differentiation that is the inevitable corollary of devolution was framed as an existential threat … Hostility to devolution remained a constant throughout Johnson’s premiership. If anything, this hostility intensified still further during successor Liz Truss’s brief, tumultuous period as Prime Minister.

“Her now infamous refusal to talk directly to the First Ministers of Scotland and Wales was symbolic of what appears to have been the complete breakdown of the formal mechanisms established to facilitate intergovernmental relations within the UK.

“The resumption of intergovernmental working that followed from her resignation has been a positive development. Yet, it remains too early to form a definitive view as to whether the Sunak administration will attempt to reset relationships with the devolved governments beyond this bare minimum. It is also the case that it doesn’t really matter. The damage, so to speak, has already been done.”

Centralisation

Morgan and Jones go on to analyse the implications of the centralisation imposed by the UK Government: the Internal Market Act has rolled back devolution, depriving the devolved administrations of the ability to decide for themselves which goods should be sold in the territories they control. They state: “The mutual recognition principle for goods means that goods made, or imported into, one part of the UK that comply with relevant legislative requirements in that part, can be sold in the other parts of the UK, without having to comply

with any relevant legislative requirements in those other parts. This principle in effect means that the devolved governments cannot regulate the supply of goods in the Celtic nations if they are deemed to comply with regulations in England, thereby neutering their policies in ostensibly devolved areas.”

The Act also gives the UK Government “wide powers to provide financial assistance to any person for, or in connection with, a wide range of specified purposes. These purposes include promoting economic development, providing infrastructure, supporting cultural activities and events, and supporting educational and training activities and exchanges.

The financial assistance powers extend to funding activities in policy areas devolved to Scotland, Wales and Northern Ireland. It was under these financial powers that the UK Government launched the Community Renewal Fund, the Levelling Up Fund and the Shared Prosperity Fund (SPF).”

These funds aimed at replacing EU regional aid undermined devolution by bypassing the devolved administrations and awarding money directly to local authorities. Morgan and Jones state: “One way of understanding the contested governance of the SPF is as a clash of two different models of devolution. The Welsh Government reference point is the national model of devolution as it has evolved since the establishment of the then National Assembly for Wales in 1999: a model of devolution which provides the devolved level with genuine policy autonomy, including the ability to allocate funding according to its own priorities.

“The UK Government reference point, by contrast, appears to be the subnational model of devolution that it has pioneered in England with the creation of city-regions overseen by metro mayors. In the latter case, policy autonomy is – certainly by comparison – limited, with the relationship between central and devolved government perhaps better understood as being akin to a principal-agent relationship.

“While the UK Government claims that dealing directly with local authorities in order to manage the SPF constitutes ‘an extension of the devolution process’, it might equally well be regarded as an attempt to replace the established national model of devolution with its preferred subnational model.

“Whatever way we characterise the nature of the dispute between central and devolved  governments, the contested governance of post-Brexit regional policy means that the woefully inadequate level of partnership working between the Welsh Government and the UK Government is having profoundly debilitating effects on regional renewal projects in some of the poorest areas of western Europe. While this constitutes a serious failure of economic development policy, it also threatens the political integrity of the UK as a multinational state.”

Hostility

Considering the hostility that has developed between Westminster and the devolved administrations, Morgan and Jones state: “Although untrammelled parliamentary sovereignty is clearly back in vogue, any UK Government seeking to abolish Scottish and Welsh devolved institutions would need to be willing to shoulder enormous, even catastrophic, risks. These are institutions that enjoy significant popular legitimacy and, indeed, have become key markers of national identity.

“A direct assault on their existence would surely generate a backlash, including extensive civil disobedience, such that it’s hard to imagine how any UK Government could restore stability to the governance of the devolved territories in the aftermath.

“Even a ‘death by a thousand cuts’ approach—a more subtle erosion of powers—is risky. In this case, not only because there is a real danger of precipitating an unintended crisis of the kind that would follow from a direct assault, but in addition, the Conservative Party (the only conceivable agent of such a policy) would likely find itself completely marginalised by the Scottish and Welsh electorates, thus further exacerbating centrifugal forces in the state. In short, devo-sceptics have undermined the credibility of the previous model of devolution without any viable alternative to set in its place.

“But, by the same token, neither is it obvious that devolutionists have a politically viable alternative of their own. The Brown Commission [chaired by former Prime Minister Gordon Brown, which recommended reform of the House of Lords] version of entrenchment would involve fundamental institutional reform of Westminster, including the introduction of potentially far-reaching constraints on the power of the House of Commons.

“Even if they were achievable, it is far from clear that these reforms would provide much by way of protection against a Westminster government that had decided (wisely or not) to bring the devolved institutions to heel.

“Meanwhile, producing a written or codified constitution would represent nothing less than a constitutional revolution, at least as far as English tradition is concerned. The resulting upheaval would literally have no precedent in the modern history of the state. Given that England is home to around 85% of the state’s population, even basic considerations of realpolitik must render such a development highly unlikely.

“Given this impasse, some readers may be tempted to regard independence as a possible, even inevitable, way forward. But we should be wary of such ‘constitutional determinism’. Even before the apparent implosion of the SNP, there were many reasons to doubt the existence of a viable route to Scottish, let alone Welsh, independence.

“Thus, even as Brexit has heralded the death of the previous model of devolution, it seems likely that it will be succeeded by an extended period of constitutional purgatory – a period in which this model of devolution persists, not because it has any real supporters, not because it has any continuing vitality, but simply because no alternative is possible.

“Whatever its supposed benefits, in terms of its impact on the UK territorial constitution, it is thus hard to consider the impact of Brexit as being anything other than entirely negative.”