Looking Ahead: The Constitutional Commission

The Independent Commission on the Constitutional Future of Wales is due to produce an interim report by the end of the year and should produce its full report, including recommendations, by the end of 2023. With this in mind, Lara Stace took a broader look at the Commission, its objectives and its place in Wales’ conversation about its position in the UK.

The Counsel General and Minister for the Constitution, Mick Antoniw MS, confirmed in October the details of the Independent Commission on the Constitutional Future of Wales, which the Welsh Government established to investigate Wales’ constitutional future – delivering on its 2021 Senedd Election manifesto promise. The two co-chairs, Professor Laura McAllister and Dr Rowan Williams, were announced first, as well the Commission’s broad objectives.

The objectives are so broad as to include any potential constitutional outcome – and therefore offer a ‘win’ to every political colour, whether in support of independence, further devolution or the return of some powers to Westminster (as unlikely as that conclusion may be). This was sold by the Minister as a genuinely open book from which the Welsh public could lead, although the Welsh Conservatives’ Darren Millar MS raised concern that this could lead to a never-ending and expensive investigation into the plethora of potential constitutional futures for Wales.

The nine Commissioners, announced in November last year, are intended to bring experience and perspectives from across the political spectrum. There are some familiar faces, in former Education Minister Kirsty Williams and former Plaid Cymru leader Leanne Wood, and the Commission has provided two-thirds female representation.

In terms of political leaning, Plaid Cymru is nicely represented – with the aforementioned Leanne Wood and Albert Owen, a former MP. The Welsh Conservatives have cited co-chair Professor Laura McAllister, who stood as a Plaid candidate in 1987 and 1992 but reportedly left the party shortly afterwards, as a further example of the party’s influence within the Commission. Lauren McEvatt was the Welsh Conservatives’ nominee, a Conservative former UK Government Special Adviser to the Wales Office during the Coalition Government.

The Commission realises a Welsh Labour promise made in the 2021 Senedd Election which, although not heavily promoted by the First Minister on the electoral trail, Mick Antoniw has referenced as an electoral mandate for the Commission’s work. However, the Welsh Conservatives have called the purpose and usefulness of the Commission into question, saying that the Welsh Government should first focus its energy on other areas such as economic recovery from the pandemic and the NHS.

When first announced as co-chair, Professor Laura McAllister said that “nothing is off the table”, including independence. The Commission has provided those who support an independent future for Wales with hope for some formal recognition of the potential benefits of independence if the Commission makes such conclusions. But how likely is independence? That’s a big question.

The argument that if Scotland votes to leave the United Kingdom (which itself another, very big question) then Wales may follow, is flawed. The contexts and histories in Scotland and Wales are different. In relation to Brexit, which Scottish First Minister Nicola Sturgeon has hailed as an example of Scotland’s will being ignored because it voted to Remain, Wales voted to Leave. Scotland has a larger devolved settlement and other vestments of an independent state, including its own criminal justice system.

YesCymru saw a rise in interest during the pandemic, gaining around 15,000 extra members between the start of 2020 and last summer – although the group is currently experiencing some troubles with its governance, so it may not be able to engage in the same way as it has done previously. Plaid Cymru, also, led its Senedd Election campaign with an independence referendum pledge and saw its vote share fall come election day (which, although it cannot be drawn across directly, does not suggest a population inspired by the idea of independence).

Looking at the figures in Wales, a poll in March last year for ITV News Tonight showed that 39% of respondents favoured independence from the rest of the UK, with the most prominent reason being different social attitudes compared to the UK, closely followed by a feeling that Wales is a historically separate nation. The pandemic has played a role, not necessarily by increasing support for independence, but by raising awareness of governance in Wales. Among those who said they would vote ‘Yes’ in a referendum on independence, 39% reported they were unhappy with the UK’s pandemic response (prior to the myriad alleged parties).

Following the Senedd Election, the Wales Governance Centre held a webinar to unveil its initial findings from the Scottish and Welsh Election Studies 2021. It found growing support for independence and that up to half of Welsh Labour voters support independence. Even some of the party’s own candidates openly supported the movement, despite Welsh Labour’s unionist stance. Depending on how this trend continues over the coming decade, the Wales Governance Centre expressed interest in how Welsh Labour will shift its position if the majority of its voters come to support independence.

The Commission will be independent from Welsh Government, but it has been asked to develop a programme of inclusive engagement with civic society and the Welsh public to ‘stimulate a national conversation’. Mick Antoniw has repeatedly referred to this “national conversation” when discussing the Commission. However, the Commission may need to overcome a sense of apathy towards devolved politics in Wales if it is to reach beyond the typical pool who get involved in discussions about the constitution.

Turnout in Wales for the Senedd or Assembly elections has never reached half of the electorate, peaking most recently in the May 2021 Senedd Election with 46.6%. However, turnout for devolved elections across the UK nations has been consistently lower than turnout for UK Parliament elections. In the 2019 General Election, 67.3% of those registered voted and although this was the second highest turnout since 1997 (behind 68.8% in the 2017 General Election, as Theresa May sought to defend her corner amidst bitter and intense arguments about Brexit), no General Election has overtaken that 1997 vote.

The Commission comes within the context of “increasing tensions in the wider constitutional landscape of the United Kingdom”, according to the Minister for the Constitution. Addressing an event hosted by the Wales Governance Centre in July, Mick Antoniw said the Welsh Government had repeatedly attempted to explore constitutional reform of the UK but Westminster had failed to engage. The First Minister has also referred to the need for increased engagement from the UK Government and recognition of the devolved governments’ powers.

Most recently, the different relationships between the devolved governments, UK Minister and the UK Treasury were highlighted when the First Minister expressed frustration that the UK Treasury only steps in to provide funding when UK Ministers consider restrictions necessary for England – but not when a devolved government considers this to be the case for its respective nation. Even during the height of the pandemic, Manchester Mayor Andy Burnham MP garnered support in his criticism of the UK Government’s approach to providing funding, when areas were placed under strict measures without support.

The Welsh Government published ‘Brexit and Devolution’ in 2017, followed by ‘Reforming Our Union’ in 2019 and an updated version in 2021. Setting out proposals for the future governance of the UK and most recently reflecting the First Minister’s vision for a “voluntary union of four nations”, these have not initiated action from the UK Government. The First Minister has described an “aggressive unilateralism” and “hostility to devolution” from the UK Government towards Wales and those on Welsh Labour and Plaid’s benches frequently refer to a “muscular unionism”, which includes the use of multiple Legislative Consent Memoranda and alleged breaches of the Sewell Convention – as well as, of course, the UK Internal Market Act.

The maintenance of the Union relies on politicians who value and recognise that it cannot be taken for granted. The 2014 Scottish independence referendum showed supporters of an independent Scotland or Wales that the levers were in place to deliver a referendum on such matters, even if the result then was a steady “No”. Further, the tumultuous national conversation and referendum on the UK’s membership of the EU cemented the idea that membership is not absolute.

The Commission will need to engage with the public in the same way that political parties in Wales have attempted for years: it will need to explain why certain areas of policy work the way they do in Wales and which levers are held in Westminster and Wales. The pandemic became an opportunity to raise awareness about the areas devolved to Welsh Government – particularly health and education – but such crises cannot be the sole means of communicating the devolved settlement to the Welsh public.

Prior to its report at the end of this year, the Commission needs to detail how it will engage with the public and demonstrate that it has reached beyond the oft-involved group of policy wonks and politicos. The Minister has recognised the Commission needs to bring public opinion along with it to spur any action from the UK Government when it reports its findings. Despite admirable aims to draw the public and civic society into a meaningful conversation about Wales’ place in the UK, the Commission must deliver on its (currently very broad) objectives to justify the expense and time spent on the endeavor.