1. Introduction

The most widely publicised event in Britain in 2011 was also in many ways the most irrelevant. This was the royal wedding that April between Prince William and Kate Middleton. It took the form of a celebration of a United Kingdom by the established Church and the mother of parliaments. The elder son of the Prince of Wales was awarded three other titles, one each for Ireland, Scotland and England. He became at a stroke Baron Carrickfergus, Earl of Strathearn and Duke of Cambridge, an embarras de richesses of Unionist distinctions. The ceremony in Westminster Abbey was attended by celebrity icons of Unionism and Empire, by Elton John and David Beckham, by crowned heads and assorted tyrants from across the globe. And yet, in fact, this spectacular pageant was fundamentally misleading. The supposed Union, whose crown William would one day inherit, was marked not by cohesive Unionism but by pluralist territoriality. This was confirmed both by the Welsh referendum in March 2011 and the Scottish assembly elections on 5 May, the Welsh voting for greater legislative authority for their Assembly, the Scots voting in a nationalist government with a remarkable overall majority. This territoriality provides the reality of the law and the constitution of Great Britain today, even though the events of 5 May 2011 also showed that some parts of the kingdom felt a good deal more territorial than others.

Since the end of the Second World War, British politics and constitutional debate had been strongly unionist and centralist. It was the Union, the Crown in Parliament, which had led the nation to victory against totalitarian dictatorships overseas. The widespread post-war reluctance to be absorbed in an external European union confirmed the point. This viewpoint straddled the political divide. Conservatives were historically committed to union and commonwealth/empire, and unsympathetic to separatism. In Scotland, as in Northern Ireland, the Conservatives were officially known as the ‘Unionists’, endorsing the Act of 1707. Labour, after an early sympathy for localism and ‘municipal socialism’ in their pioneer days before 1914, had been since 1945 devoted to centralized planning by "the gentleman from Whitehall" who, in Douglas Jay’s notorious phrase, invariably "knew best". The existence of Scottish Office and (from 1964) a Secretary of State for Wales in British governments did not materially affect the point. There were no long-term nationalist MPs at Westminster until Gwynfor Evans won Carmarthen for Plaid Cymru in 1966 and the Scottish Nationalists captured Hamilton in 1967. The great change in British constitutional arrangements began in the 1970s with the beginning of the break-up of two-party dominance at Westminster, and the associated rise of significant nationalist parties in Scotland and, to a lesser degree, in Wales. The report of the Kilbrandon Commission in 1973 rekindled vigorous debate on what appeared to be a dead issue. The referendums for devolution in March 1979 failed, calamitously so in Wales. But in Scotland the momentum continued, especially after the multi-party Constitutional Convention was held in Edinburgh, and the decisive commitment to devolution of the Labour Party under the lead of Donald Dewar, not to mention leading figures like Gordon Brown. The final achievement of devolution in 1999, under the aegis of the Blair government, was indeed an historic change in the history of the Union as it had existed since the Scottish Act of Union in 1707. This was, especially true in Scotland where over two-thirds of those voting backed the idea. But even though Wales was far less enthusiastic, passing devolution by less than one per cent, the tiniest of margins, a transformation now took place there too.

The full impact of devolution, though, was concealed until 2011. There were Labour or Labour-dominated governments at Westminster, Cardiff and Edinburgh, which implied a kind of political congruence. The civil service provided cohesive integration of the various administrations, with the assistance of a variety of (unpublished) private concordats between them. There was no accepted mechanism set up for possible conflict resolution between the devolved governments and Westminster. An air of spurious transition, almost of ‘business as usual’ prevailed. Devolution was also deliberately kept asymmetrical. In effect it was a distinct settlement of the specific characteristics of each nation. The Welsh Assembly was endowed with far less power in legislative terms than the Scottish Parliament, and was unable to pass primary legislation. Nor did it have any financial powers. The new Northern Ireland Assembly in Belfast was different again, with the need to balance the conflicting views of Unionists and Nationalists in a power-sharing arrangement, and in any case for several years was unable to meet as violent unrest continued to simmer. But the process of change continued. This was dramatically confirmed in 2007 when the Scottish National Party defeated an ailing Scottish Labour Party to take over power at Edinburgh. In Wales Plaid Cymru gained seats and went into coalition with Labour, the largest party. In the interim, the Government of Wales Act of 2006 gave far more potential authority to the Welsh assembly with more ability to pass primary legislation even if granted in a curious and roundabout way through Orders in Council and "legislative competence" provisions.. The greater independent status of Scotland was bizarrely shown in the case of the Lockerbie bombers, when the decision of the Scottish legal authorities to release one of them and return him to Libya directly impinged on the foreign policy of the British government at Westminster, and caused diplomatic difficulties with the United States.

2. 2010 - A Turning Point

The British general election of May 2010 thus came at a sensitive, pivotal time for the issue of devolution. It saw the emergence of a Coalition government under the premiership of David Cameron. Although it brought in the minority Liberal Democrats, it was both a strongly Conservative and strongly English government. No-one exuded a stronger sense of English elitism than the prime minister, Cameron, and his Chancellor, George Osborne, both of them products of Eton and Oxford. After all, the Conservatives had won a mere one seat in Scotland (Clydesdale and Tweedsdale), and only five in Wales. Scotland and Wales, in fact, both showed a swing to Labour: it was southern England which guaranteed that the Tories would end up as the strongest party. This was where political powers clearly lay. In neither Scotland nor Wales was the general election much agitated by devolution and other aspects of constitutional reform, but there were important long-term implications for them too, as the aftermath of the general election was soon to show.

3. The Case of Wales

Prior to the general election, there were three supremely important issues that affected Wales and its relation to the constitution. The first concerned the powers of the Welsh assembly in terms of primary legislation. The Jones-Parry Committee appointed by the Welsh Assembly, pointed out in 2009 how limited and cumbersome were the powers of the Welsh Assembly. There was an aspect of legal absurdity in the legislative competence orders laid before the Westminster parliament when they even included competence powers over policy towards the Welsh language. It was difficult to see which other body could legislate on this of all issues. The Welsh Assembly was hamstrung by its very nature. It enjoyed no primary legislative powers as were enjoyed by the Parliament in Edinburgh and little of the authority that could be claimed by a democratically-elected popular assembly. The Jones-Parry report, therefore, laid down a basis for amending the 2006 Government of Wales Act with a national referendum in which the Welsh people themselves would be able to determine the powers that their national legislature should enjoy.

Secondly, there was the issue of links with Westminster, and indeed with Whitehall. There was the perennial shadow of the famous ‘West Lothian’ question which raised the issue of why Welsh and Scottish MPs should be able to vote on purely English issues when the reverse did not apply. The Conservatives had long flirted with the idea of a purely English parliament and mentioned it in their election manifesto, since attempts to create English regional assemblies had led nowhere with the crushing defeat of such an idea in the North-East. There had now been a reduction in Scottish representation at Westminster, with the prospect of a similar reduction in Welsh seats in the future. Unionists complained how both nations were mathematically over-represented at West minster. There were other issues raised here too. There was the question of the future of the Welsh Office, a weak department whose abolition had been called for by the House of Lords Constitution Committee as long ago as 2002. The new Secretary of State for Wales in May 2010 was a woman Conservative, Cheryl Gillan, born in Llandaff in Cardiff but who represented a southern English constituency in Buckinghamshire. There was also the issue of the relationship of the Scottish Parliament and the Welsh Assembly to the European Union, which had caused debate when agriculture (e.g. the ‘foot and mouth’ disease of 2001) and the catches allowed under fisheries policy had been contentious. There was a modest relationship of the Scottish and Welsh assemblies to Brussels but it was distinctly less robust than that of, say, the German lander or the different linguistic segments of bipolar Belgium. A Europe of regions as prophesied by the Scottish historian (and future SNP parliamentarian) Christopher Harvie seemed far off indeed.

And thirdly there were many difficulties over financial relations with Westminster, especially the much contested role of the Barnett Formula. This was a temporary patched-up solution devised by Labour’s Joel Barnett in 1978, based essentially on financial compensation in public expenditure for the smaller populations of Wales and Scotland. By 2011 there was widespread agreement that it was seriously inadequate. It was fiercely criticised both by a House of Lords Select Committee (including such luminaries as the former Chancellor of the Exchequer, Nigel Lawson) and by the commission headed by the economist Gerald Holtham which was set up by the Welsh Assembly to consider funding arrangements for the Welsh government. Holtham himself, writing in the Bevan Foundation Review of spring 2010, roundly declared that the Barnett formula was ‘unfit for purpose’. Scotland was significantly over-funded with £120 per cap payment for each £100 for England, while Wales (£112 per cap and falling) was seriously under-funded, with no regard taken of the special needs of public services in Wales. The Welsh assembly budget of £15 billion thus fell short by at least £300 million a year. The Barnett formula had turned into "a Barnett squeeze". Barnett was based on an economic convergence of England, Scotland and Wales. This was certainly not happening, especially for Wales whose GDP fell remorselessly below (to around 15 per cent) that of England. Nor was Barnett based on evident need, on such factors as relative health or economic deprivation, the principle adopted for the allocation of funding in different parts of England for local government finance. It was an unfair, inadequate system, and yet it aroused English resentment especially in the north-east of England at the higher level of public expenditure in Scotland.

4. The Situation in Scotland

In 2008 the Calman Commission reported on the funding of Scottish government. The main thrust of its proposals was for the Scottish Parliament to develop its tax powers – powers granted in principle in 1999 but not hitherto used. It called for a Scottish rate of income tax to be set, together with greater powers over the use of taxes levied in Scotland generally. The Holtham Commission had called for very similar powers to be given to the Welsh government. Further it had set out a clear method for identifying Welsh taxes and Welsh needs. The Coalition government, like its Labour predecessor, was highly reluctant to act here, since abolishing Barnett would lead to a cut in public expenditure in Scotland and would be therefore politically highly unpopular. The Tories north of the border would be likely to disappear entirely like the Cheshire Cat in Alice in Wonderland, with not even the cat’s smile left behind. The government spuriously cited the large national debt as a reason for inaction, even though in fact a reform of Barnett would merely mean a redistribution between the different parts of the United Kingdom, not the creation of new sources of funding. Still, the inadequacy of Barnett, and its dangers for Wales particularly, was plain for all to see. New rounds of serious public sector cuts by George Osborne, the Conservative Chancellor, made the issue all the more alarming, with the high proportion of the working population in Wales in public administration (no less than 38.5 per cent in the city of Swansea), in areas such as health, education and social security..

5. Developments since May 2011

5.1 Impacts on Wales

What has happened since the general election on all these issues? First, the powers of the Welsh Assembly have now been decisively revised. The Welsh referendum of March 2011 showed a clear majority (63.53 per cent) in favour of primary legislative powers, on a turn-out of close to 40 per cent. It was an extremely dull campaign, with all parties in favour of a ‘Yes’ vote and the ‘No’ campaign a ragbag of amateurs who refused to accept public money and thereby curbed the publicity accorded to the vote. But the result was conclusive. All areas of Wales save Gwent/Monmouthshire voted for it – and even in this highly anglicised county adjacent to the English border the vote was a very close one (320 votes, 50.6 per cent to 49.4 per cent). An ICM opinion poll just before the result was declared found that the most popular option for Welsh voters was an assembly with law-making powers and some taxing powers, a view endorsed by 35 per cent of those polled. The outcome was seen as a clear stride towards greater authority for the Assembly, now manifestly here to stay despite the narrow majority back in 1999 and, perhaps, a greater political maturity amongst the Welsh as a people. The Conservative Secretary of State, whose party had strongly resisted devolution back in 1979 and in 1997, called it "a good day for Wales". An imbalance in the devolution settlement had been righted. At the same time, the powers of the Welsh Assembly remained still significantly fewer than its counterpart in Scotland, and pressure to go further, especially on financial powers and particularly taxation, was to continue.

The second issue, the links of Wales with Westminster was decisively affected by the Parliamentary Voting Bill of the spring of 2011. It was part of the package worked out between the Conservative and Liberal Democrats through the so-called "coalition agreement". Since, bizarrely, it also included provision for a Britain-wide referendum on an alternative-vote electoral system, the first nationwide attempt ever to break away from the ‘irst past the post voting system. Wales was seriously affected. In provisions swept through the Commons under the guillotine and discussed only in the Lords, partly late at night, Welsh representation at Westminster was cut by a quarter, from 40 to 30. In January 2012 the Welsh boundary commission published highly controversial draft plans for the redrawing of Welsh parliamentary constituencies, much the greatest such change since 1944. Every constituency would be redrawn; some changes, it admitted, would be ‘onsiderable. Two constituencies proposed, Gwynedd and South Powys, would cover more than 1,500 square miles, a challenge indeed for their future representatives. A straggling hybrid like "a North Wales Coast" constituency, extending from Conwy to Abergele, would come into being. In the south Wales valleys, geographical and community links, along with local government boundaries, would be overridden in the interests of mathematical equality. The impact on Wales would be more severe than for any other part of the United Kingdom and would manifestly diminish its political authority. The great era of Welsh parliamentary achievement at Westminster, a motor of national self-expression over a hundred years from the age of Lloyd George to that of Nye Bevan and Neil Kinnock and vital in the modern advance of Welsh national identity, would seem to be coming to an ignominious end. Debate on Welsh issues would henceforth be voiced largely in the Welsh Assembly, not the parliament at Westminster, even though major powers would still rest with the British parliament, especially on the economy and the social services as the swing to Labour in the 2011 Assembly elections, very much reflective of these issues, was to show.

5.2 The Scottish Effect

On the third issue, financial powers, nothing seemed likely to happen about Barnett in the near future. The government’s argument that the deficit prevented the issue being raised meant that the silence that had prevailed for decades past was destined to continue. But Wales would not remain disregarded. As so often in the past, as over a Secretary of State in 1964 and a Welsh Assembly in 1997, events in Scotland would determine the course in Wales. The Scotland Bill began its progress through the Commons and then the Lords in the summer and autumn of 2011. Significantly, it went through the Commons with all-party support, and much the same happened in the Lords on second reading, with only a few die-hard Scottish anti-devolution Conservatives like Lords Forsyth and Laing voicing objections. In effect, the bill largely enacted the proposals of the 2008 Calman Commission. It reflected the view that not only there should be no taxation without representation, as the American colonists had demanded back in 1776, but that there should also be no representation without taxation since a democratically-elected body should be accountable not just for the money it spent but for the money it raised. It should not be dependent on a hand-out from London via the block grant, but exercise its own initiative and authority. Thus the Scottish parliament would henceforth have responsibility for generating 32 per cent of its own revenue, with the block grant being adjusted accordingly in the light of perceived Scottish needs. This would largely come from the Scottish share of income tax, though there would be other small additions such as stamp duty and a landfill tax. On the other hand, the Scottish parliament would have no power to adjust tax bands or make Scottish rates of tax more progressive, which raised a prospect of future bickering with Westminster over the fiscal details. Predictably, Alex Salmond and the SNP government in Edinburgh immediately called for more. There were also proposals in the Scotland Bill for wider legislative powers for the Scottish parliament, and also for underlining the supremacy of the Supreme Court in London over issues of human rights.

The Scotland Bill would clearly impact directly on Welsh funding arrangements. In some ways, Holtham had been more radical than Calman and the government’s Bill. In particular, It visualized the Welsh Assembly having empowerment over the setting of tax rates. Wales would thus have had its own control of tax rates, bands and exemptions, and would determine its own progressivity. Holtham had also proposed a wider range of taxes to come under the aegis of the Welsh assembly, including, controversially, corporation tax, and possible review of council tax allocations. But it was nevertheless clear that, whatever the limitations of the government’s proposed measures, the future of Welsh government under Holtham would be very different in quality. It would have new fiscal tools. It could now look forward to introducing new taxes and possibly wider borrowing powers to finance capital expenditure and to control its capital budget. The Welsh Assembly would not in itself acquire greater legislative powers but it would be equipped to carry its existing powers into legislative action as never before.

6. The Silk Commission

The Coalition government itself recognised that matters could not be left there, with Scotland’s financial powers being radically reformed and nothing being done for Wales. There was appointed, therefore, in the autumn of 2011 a new Commission to look at the Welsh Assembly’s financial arrangements. Popularly called "son of Calman" (or in Wales "ap Calman") it was a seven-person body with four representatives of the main Welsh parties, two non-party members (one a former Vice-Chancellor) and a strong chairman in Paul Silk, former clerk to the National Assembly. Its terms of reference led to a good deal of political haggling. The Commission would look at future provision for taxing and spending powers, but would ensure that any future settlement would be "consistent with the fiscal and constitutional framework of the United Kingdom". Unlike Calman, it would not look at borrowing powers nor the size and determination of the block grant from Westminster. The Barnett formula would remain untouchable, as least for the foreseeable future. On the wider constitutional plane, there would also be scrutiny of the division of powers between the Parliament at Westminster and the Welsh Assembly, a judgement made on what is, or should be, devolved and what is not. No other constitutional aspects would be considered, although the Silk Commission’s terms of reference did not emphasise the importance of retaining Wales within the United Kingdom as Calman Commission’s did in Scotland – no doubt because the remove prospect ot Wales seeking independence from the Union was on no-one’s political radar.

The future direction of Welsh devolution and of British territoriality is now a theme of intense academic and political debate. Nationalists have tended to over-react with claims about national ‘maturity’ (i.e. zeal for separatism) but it is clear nevertheless that there is a qualitative change under way. One striking feature is that the thrust of the referendum campaign in March 2011 and of the Welsh Assembly elections two months later have been somewhat different. The Welsh referendum produced an unambiguous result which meant power flowing inexorably towards the Assembly with its enhanced powers. The United Kingdom would thus show more divergence and diversity than ever before.

The Welsh Assembly elections, by contrast, were more traditional, with an 8 per cent swing towards Labour who won 30 out of 60 Welsh Assembly seats and formed a single-party government under the new leadership of Carwyn Jones. Labour’s election campaign followed traditional Labour lines – social themes such as health, education and investment in jobs. It reflected the unpopularity of the Westminster coalition amongst the Welsh electors. In Scotland, the SNP won a remarkable large overall majority. The charismatic Scottish first minister, Alex Salmond, was the commanding politician north of the border, while Labour there appeared dispirited and demoralized; its uninspiring leader, Ian Gray, was replaced by Labour’s first woman leader, Johann Lamont, who clearly faced a major rebuilding process for her party. In a global economic blizzard, Scottish electors seemed to feel that the most secure defences lay at home. In Wales, by contrast, Plaid Cymru, never very robust in non-Welsh-speaking areas, slipped back significantly. It won only 11 seats, losing four, including a salient industrial seat like Llanelli. Even in Scotland, despite the SNP victory, future independence was far from assured. In Wales, pressure of this kind seemed hardly to exist. Since commentators in universities and think-tanks seem to be drawn disproportionately from Plaid Cymru (though the emergence of the pro-Labour Bevan Foundation as a left-wing think-tank suggests a change), the extent of Plaid Cymru’s influence tends to be greatly inflated. On the AV vote, held in the same month, the Welsh vote (66 per cent against) was broadly identical to that in England. As a result, the future pattern of constitutional transformation in the United Kingdom is far from clear.

7. The United Kingdom's Constitutional Future

There seem to be perhaps four possibilities in the future. There could be an overtly federal Britain. North of the border, there is pressure in that direction but anything so stark seems some way off. In January 2012, Alex Salmond, the SNP leader, called for a Scottish referendum on independence. It was an issue notably absent from the first draft of the Scotland Bill. But it was by no means certain that such a vote could be called for through the fiat of the Scottish Parliament alone. The Supreme Court in London might have to decide whether the approval of the Westminster Parliament was also required, although politically it might be difficult for Westminster to resist a clear demand by the Scottish voters, expressed in a democratic ballot. Salmond called for referendum to be held in 2014, the seven-hundredth anniversary of the legendary defeat of the English armies at the battle of Bannockburn. Significantly, the SNP’s proposed referendum is likely to include two alternative proposals, direct separation from the United Kingdom and the more moderate prospect of "devo-max", a kind of greater Calman involving more fiscal autonomy. This suggests a limited enthusiasm amongst Scottish voters for total separation. Indeed with polls consistently showing that only about 38 per cent of Scottish people favour separation from the Union, it seemed that most SNP voters had voted for greater clout within the framework of the Union, not for independence. In addition, there is always the anomalous position of England, which contains over four-fifths of the British population and shows scant signs of wishing to go it alone, while demands for Welsh independence are so muffled as to be inaudible. Northern Ireland, with its Protestant unionist majority, is also most unlikely to favour separation from the British mainland, an idea seemingly toyed with by James Callaghan in 1981 according to the recently released national archives for that year, but rejected by the Thatcher government. So it is difficult to see Britain, with its powerful parliamentary heritage following the path of separatism visible in, say, bi-cultural Belgium, or even Spain where historic "autonomous communities" like Catalonia and the Basque enjoy such a degree of self-rule.

There could be, secondly, a significantly more territorial Britain, short of separatism from within. The remorseless pressure for further independence coming from the SNP government in Edinburgh is surely a powerful sign of further change along these lines, perhaps chiming in with policies to promote greater decentralization and localism within England and Wales. There is, thirdly, the more general prospect of a codified constitution, currently being examined by the House of Commons constitutional committee, chaired by Graham Allen, a radical reforming Labour MP, in which the relationships of the different legislative bodies will be entrenched in written, statutory form as in France. A group of academics based on King’s College London’s Law and Constitution Unit, is now producing a report on this theme. Significantly, the idea of citizenship, a totally neglected theme in textbooks on the British constitution, is now being ventilated as never before in Britain since the impact of the great revolution in France in 1789. A codified constitution, on the other hand, would take years to work out and a consensus on many key issues is hard to visualize. Or, finally, the empirical British could continue to muddle along with the present patchwork of asymmetrical devolution taking a different form in each of our nations. England would thus continue to be the great anomaly, defying constitutional reform, the "black hole" of the constitution as once described by the London University Constitution Unit, perhaps no more than a "geographical expression" as Metternich described Italy after 1815.

8. Conclusion

The last seems much the most unlikely of outcomes. The status quo is hardly a viable option for evolutionary Great Britain any longer. There is a powerful logic for imposing a new coherence on the devolution settlement cobbled together by the Blair government in 1999, for moving constitutionally from status to contract. The United Kingdom, quite apart from its dire economic difficulties, is now in the course of dynamic and fundamental change. It is fundamentally permeated by the spirit of pluralism, the imperatives of difference. Never has the famous verdict of Ron Davies that devolution is a process and not merely an event been more strongly borne out. One of the main drivers of this change, though not the only one, is territoriality, and its impetus is very far from over.