Has UK Labour given up on meaningful constitutional reform before it’s been elected?

Martin Shipton

For those in Wales who harboured the notion that an incoming Labour government would allow major constitutional reform to take place on its watch, Shadow Welsh Secretary Jo Stevens’ dismissive words of a couple of weeks ago must have been devastating.

Days after the Independent Commission on the Constitutional Future of Wales called in its report for policing and criminal justice powers to be devolved, starting with the police, probation and youth justice, Ms Stevens said on BBC One’s Politics Wales programme: “We have said that we will explore the devolution of youth justice and probation. But we will not be looking at devolution of policing and justice.

“We will be focussing in the next election on the things that matter to people in Wales – growing the economy, creating new jobs, getting cheaper bills, building an NHS fit for the future and breaking down barriers for opportunities for children and young people across the country.”

This was a damning put-down to those who have spent decades attending conferences and writing books and academic papers about how our constitution could be improved. Of course there are the ultras who believe any talk of reforming the UK constitution is a futile exercise, as the only desirable change is to an independent Wales. But more pragmatic nationalists see that a step-by-step accrual of more powers for the Senedd is the most practical way forward.

Power grabs

While David Cameron was not averse to ceding more powers to Wales, Brexit has seen the devolution project put into reverse, with a series of spiteful power grabs by the Westminster government showing that the Tories aren’t interested in positive constitutional reform.

Much hope has therefore been invested in the return to power of Labour as a party that would take a serious look at the UK constitution and press ahead with progressive reforms. I’ve even heard it argued that at a time when money is tight and the economic outlook not great, constitutional reform might be a higher priority than expected for an incoming Starmer-led government.

But in three sentences, Ms Stevens has snuffed out the candle of hope. Even the crumbs she offers do not amount to a pledge. Note her choice of words: “We have said that we will explore the devolution of youth justice and devolution.” There are plenty of academics and practitioners who have been exploring such notions for a very long time, but exploration doesn’t necessarily lead to anything tangible, as European explorers seeking the mythical city of gold El Dorado in the jungles of South America learned at the cost of their lives several centuries ago.

Ms Stevens goes on to imply that tinkering with the constitution is something that doesn’t matter to “people in Wales”, as she put it.

Constitutional change

It’s strange that the UK Labour Party, which owes its very existence to constitutional change, should denigrate the process that brought it into being. Without constitutional change that occurred less than 200 years ago for most men and less than 100 years ago for some women, the vast majority of people would have no vote.

It’s a habit of those who hold power to resist change and to take away existing rights they see as an impediment. Right wing Tories who want the UK to withdraw from the European Convention on Human Rights have a broader agenda than stopping “small boats” cross the Channel. It would open up the possibility of diminishing employment and other rights we take for granted or want to improve on.

There’s another element of our constitution in the widest sense that has a direct bearing on how much money comes to Wales: the Barnett formula. Originally an ad hoc arrangement devised more than 45 years ago to decide how much money should be allocated by the Treasury to the three Celtic nations, it’s become a totemic relic of a system that needs to be replaced by one based on need.

And much as they may sneer at the obsession of others with constitutional reform, the Tories aren’t against introducing a disruptive kind of reform themselves when it suits them. Hence the Barnett-busting bribes amounting to billions of pounds given to Northern Ireland, firstly to get the DUP to prop up Theresa May’s minority government in 2017 and now to lure it back to the Stormont Parliament.

Brexit

Another reason why it’s rich for the Conservatives and Labour to play down the significance of constitutional change is their respective roles in the debacle that led to Brexit and its aftermath – the most damaging constitutional change that any of us have seen in our lifetimes, but which mesmerised the majority of UK voters into believing it was good for them. So please, Jo Stevens, don’t pretend that ordinary people aren’t interested in, and won’t be affected by, constitutional reform.

All of us know that there is much that is dysfunctional in the way the UK operates. Putting it right involves changing existing systems for something better. Sometimes that necessitates constitutional change.

In late 2022 Rob Jones and Richard Wyn Jones of Cardiff University’s Wales Governance Centre published a book called The Welsh Criminal Justice System: On The Jagged Edge which demonstrated how despite being a policy area supposedly reserved to Westminster, responsibilities were actually split between Westminster and the Senedd, creating friction and inefficiency.

Following on from a widely praised report published three years before by the Commission on Justice in Wales, chaired by Lord Thomas of Cwmgiedd, the former Lord Chief Justice of England and Wales, the book argued that devolving the justice system made sense from a practical point of view. But the future Welsh Secretary Ms Stevens says No, and once again the work of experts is filed on an (electronic) shelf.

Reformers

Yet despite the setbacks, there is an undaunted crew of would-be constitutional reformers pressing on with their work, which is aimed at improving the way things work. Not all of them are academics working in universities.

Glyndwr Jones is the chief executive of a body that provides representation and advocacy in the performing arts sector. He devotes much of his spare time to writing papers describing his vision of a confederal UK in which the four countries would be self-governing but come together voluntarily and pool some elements of their sovereignty.

Here is an extract from one of his most recent essays: “Confederalism, or its more collaborative manifestation, confederal-federalism advocates four sovereign nations of radically different population sizes, pooling some sovereign authority to central bodies in areas of agreed common interest.

“A Council of the Isles, whose members are typically elected for a five-year period, would be responsible for enacting power on aspects involving defence, diplomacy, internal trade, currency, and macro-economics, with a Committee of Member Nations, convening regularly to discuss other issues which may demand some collaboration and harmonisation of laws.

“The National Parliament of each nation would then assume every power not delegated to joint institutions. The scheme further affords the opportunity to introduce devolved assemblies across the English regions, if desired.

“If we acknowledge that the UK is a genuine union of four nations, each of which has the potential of sovereignty, is there a way of charting a smooth transition from the status quo towards that proposed above? For example, we may wish to transform:

*A future elected House of Lords, comprising representatives from the nations’ regions as recommended by Gordon Brown’s Commission on the UK’s Future, into the Council of the Isles with its associated structures, or to use a different term, a Senate’

* The House of Commons at Westminster into the National Parliament of England once enhanced parliamentary arrangements are in place for Scotland, Wales and Northern Ireland.

* The Joint Ministerial Committee for intergovernmental relations into the Committee of Member Nations.

“The changes could be initiated in an evolutionary way, balancing change with continuity, and promoting diversity and unity simultaneously. This should be achieved by assigning sovereignty to the nations who, in turn, pool some sovereign authority to central bodies in areas of common interest through a confederal-federal arrangement.

“Even while national and regional leaderships may champion different decisions and innovations, we would still elevate isles-wide solidarity and equality through central strategies.”

Constitutional convention

Jones is an advocate for a constitutional convention to look at the future governance of the UK.

One of the questions such a convention could examine is how feasible it would be to devise arrangements that didn’t result in England dictating terms to the other three members of the confederation.

It would be an interesting exercise and could provide a blueprint for reform that would result in positive outcomes for all.

But given the current Shadow Cabinet’s lack of enthusiasm for major and meaningful constitutional reform, it seems a given that we’ll all just muddle on as usual.