“If we Brits could write a constitution for the Germans in 1947/8, why can’t we do it for ourselves?”
When it came to discussing our inaugural annual lecture themed around the next 15 years of devolution, it was pretty easy to decide who would be best suited for the task. Rhodri Morgan was First Minister of Wales for the majority of the 15 years of devolution. After a decade in office, his personal approval ratings remained so high among Welsh citizens that one commentator opined that his ratings should be “sent to the Vatican as proof of a miracle”.
The fact that he always promises an entertaining and unique perspective also made him an obvious choice. And so it proved. With quips that the House of Lords is “a convenient ermine-clad dumping ground for has-beens like me” (although this is attire he asserts would not suit him at all), and discursive interludes about the role of the Morgenthau plan in post-war Germany’s constitution building, and historical allusion from Rome to Ethelred the Unready, there was plenty of food for thought. For anyone (ahem!) trying to summarise on Twitter, the speed and nuance were somewhat difficult to capture in 140 characters…
However, this tangential style has always been built on incisive analysis, with the discussion building a wider point. His reference to ermine-clad Lords referred to the first of his key recommendations: reform of the House of Lords. Indeed, he went so far as to say the West Lothian Question is a “minor anomaly left over from devolution” with an elected House of Lords a far more pressing issue. His view was if you are to start to sort out the anomalies of UK constitution, one would put the effort into a plan of where it was needed over the next 5-10 years.
Once one looks at anomalies in the UK they do keep piling up, and in Morgan’s view is that to choose one minor anomaly is to warp the debate and muddle through piecemeal in a way that invites ‘separatism’ in the future. For Morgan, to have two classes of MPs with the Celtic fringes the minor partners and England holding 84% of the population was a recipe for instability and future grievance for short-term electioneering.
Moreover, defining UK, English, Welsh, and English and Welsh law remains extremely difficult. He noted that in terms of England and Wales this was particularly so, noting the need for Wales to have clarity in its devolution settlement as a necessary first step toward achieving even this.
He noted that if one was to address this, the second chamber was key in working out the territorial anomalies. Looking to the USA as a model, he noted that there is a need to work through how the two Houses relate to each other and what their functions should be. In the USA, the Congress and Senate are different in how they are elected and in their functions. He noted that California gets only two senators, just like far less popular states, but gets members of Congress according to its population. Many other countries protect the minority states within their borders, and this is a principle of check and balance that could underpin a second chamber.
However, the upshot of all this is a need for a written constitution. He noted that the point of the constitution was about form and principles, and not detail. So a written constitution puts in principles for decision-making, lays down ground rules, but does not presume in advance what a decision of how to apply the principle will be.
He noted funding for Wales as an example, given the continuing controversies around the Barnett formula. He posited that a written constitution should note:
1. There shall be a resource distribution formula among the nations and regions of the UK
2. This formula shall be based on equality and redistribution
3. There will be a dispute resolution process for problems that occur between the different actors
Morgan noted that Germany and Spain had such provisions in how the funding was allocated. Furthermore, as things stand, the devolved legislatures have no legal protection for their existence and for their funding.
This ‘constitutional vacuum’ has also led to instability in governance. Without clarity on how decisions are made and which actors outside Whitehall should take part, devolved governments have to deal with individual Ministers and individual departments’ direction, pointing to the Treasury as particularly recalcitrant in this regard.
Such legal protection also moves toward popular sovereignty – a theme that was also discussed by Rhodri Morgan’s successor who gave a speech at the same time on a ‘New Union’. With the 4 parties in the Assembly agreeing a motion on the next steps for devolution, and the Wales Office meeting of the party leaders at Westminster, we are perhaps seeing the beginnings of the parties getting behind a plan with a coherent shape, if not a uniform position. If leadership is shown in finding a cross-party consensus in Wales, this will show a genuinely more mature approach to constitution-building than we are currently seeing elsewhere in Westminster.