Former First Minister Lord Jones and Glyndwr Jones interview

Will Barber-Taylor: Hello, and welcome to the Centre Think Tank interview series, In Conversation. I am your host, Will Barber-Taylor, and today I am joined by Carwyn Jones and Glyndwr Jones. Carwyn Jones was the First Minister of Wales between 2009 and 2018 and was a Member of the Senedd for Bridgend between 1999 and 2021. Glyndwr Jones is a Fellow of the Institute of Welsh Affairs and has written extensively about constitutional affairs. Welcome to the interview, both of you.

Carwyn Jones: Thank you.

Will Barber-Taylor: The first question that I would like to ask is how successful you both think the devolution arrangement has been over the past two decades?

Glyndwr Jones: In recent decades, each nation has developed an individual political culture. In Scotland, Scottish independence continues to dominate the constitutional debate. In Wales, there remains some reluctance for the nation to obtain some of the powers taken for granted in Scotland and Northern Ireland, including control over the police and the judicial system. The ongoing commission on the constitutional future of the nation is looking at these issues and possible changes of a more structural nature. Yet England, comprising over 56 million people, still lacks a distinct national institution. An institution through which internal inequities may be addressed with a compelling case for reform.

If we look carefully at the situation in Wales and Scotland, the powers dedicated to those nations have been undermined by Westminster recently. Those for which most parliaments have withheld legislative consent include the European Union withdrawal bill, Future Relationship Bill, the United Kingdom Internal Market Bill and the Subsidy Control and Professional Qualifications Bill. In Wales, we have to contend with the Barnett Formula with the decreasing proportional amount annually since 2011. By 2025, the budget for Wales could be three billion pounds lower than if it had grown in line with GDP since 2011.

In search of solutions, Wales is going to have to look to press Westminster for greater flexibility in managing their budgets: increases to borrowing limits, cash reserves and the automatic ability to carry forward late-in-year block grant changes to the next. In my view, the system is ineffective. Westminster needs to accept that, having delegated a measure of sovereign authority by prescribing areas of government to the nations, it cannot, with the absolute sovereignty of Westminster, decide to overrule Cardiff or Edinburgh. I would be interested to hear what Carwyn has to say.

Carwyn Jones: If we look at the Welsh context, in 1999 the Assembly started with no primary law-making powers and no revenue-raising powers. We were not able to borrow money. All those powers came in time, but it shows how limited the powers of the Assembly actually were. We would spend time debating the Potatoes Originating in Egypt Order, which was entirely uncontroversial. Yet these things ended up in the Assembly because of a lack of topics to discuss.

We have seen Welsh devolution develop from a council to a revenue-raising, law-making parliament. Since 1999, devolution has consisted of allocating powers to various groups of Celts to keep them quiet. Which has been done in a completely disorganised way. I remember the vote in Scotland in 2011, which was done clearly for the reasons of 2014, namely the Scottish referendum. That affected us in Wales negatively, but not much thought was given to what the effect would be in Wales. One of the issues with devolution is that it has been carried out gradually with a lack of proper constitutional change.

Glyndwr Jones is right that parliamentary sovereignty, which may or may not exist, determines that it is for the Westminster Parliament to decide everything. It can overrule Scottish and Welsh parliaments.  It could abolish devolution without any reference to the views of the people of Scotland and Wales. This is the idea that Westminster still holds the reins.

There is a hierarchy of parliaments; however, if parliamentary sovereignty determines that, there is no hierarchy of governments. There are no inherent powers; there is no inherent sovereignty in the United Kingdom Government, in the rest of the United Kingdom parliament. However,  for example, the dispute resolution process recognises the United Kingdom Government as the final judge. This exists in the Joint Ministerial Council, Wales, Scotland, or Northern Ireland, for disputes they want to take up with the United Kingdom Government. This appears to be an objective dispute resolution process. However, that is not what it is.

For example, in a dispute with the Treasury, who have a habit of announcing new spending plans and saying the funds will be found internally, rather than there being a consequence for Wales or Scotland. The billion-pound bundle to Northern Ireland is a prime example of that. HS2 is a prime example of that, where there is no consequence for Wales, even though the railway is not near Wales. However, if you start the dispute resolution process and you take on the Treasury, it is the Treasury that decides the process.

Now that is just one area where the current system has staggered along for the past 25 years, largely due to an acceptance of the situation. That is a system that is now coming under pressure for reasons that Glyndwr has already explained, particularly with some of the newer legislation that has come from the Westminster Parliament, which begins to challenge the powers that Scotland and Wales have.

Will Barber-Taylor: Do you think that the current lack of clear governance for England will lead to more meaningful discussions in Westminster for constitutional reform and change? How should we progress a greater devolution within England?

Glyndwr Jones: England endures as the most highly centralised country in Europe, producing almost 22% of the United Kingdom’s total output. London acts as a strong centripetal force, undermining the position of the English regions generally.

I would say typically, an energised programme of devolution within England would initially involve locally directly elected mayors across their territory. Nationally, having updated parliamentary arrangements in Westminster. This initiative could eventually develop into devolved assemblies for the regions if desired. The law-accompanied package of devolution for England would beneficially ensure that decentralised bodies become focused on island-wide affairs rather than remaining marginal, as at present.

The fundamental issue of our time is this: the administrations in Scotland, Wales and Northern Ireland cover merely 15% of these islands and inhabitants. Consequently, intergovernmental relations across the United Kingdom have become marginal to the affairs of Westminster. Any design must press weight on the relationship between the devolved governments and the government of England, London.  In this dual capacity, governing the whole United Kingdom and making English laws.

I would hope that once executive devolution is in place across England, much of the work of the English Government would be taken away from London. Transferred to local or regional direction, leaving Westminster to focus on more strategic, island-wide objectives. For instance, focusing on the work of Gordon Brown’s commission on the United Kingdom’s future, the composition of the House of Lords should purposefully represent the various regions within all four United Kingdom territories.

Additionally, the Intergovernmental Relations Committee could remain for nations only. Separate from devolution within England and devolution for strong parliaments in Belfast, Cardiff, and Edinburgh. Personally, the United Kingdom Governmental Relations should be redefined in a framework which allows the various governments to plan with confidence and make assured decisions for the various publics in the future.

Carwyn Jones: England is the challenging one due to its size.  There is no other country that I am aware of where there are nations or territories with specifically distinctive identities. Yet one of them is 85% of the entire population of the country, and the US is not like that.

I think for England, the scenario is different. We are seeing increasing devolution in England, but more on the mayoral model rather than the assembly model. I very much agree with what the Brown Commission said. Clearly, I participated in what was there, and it does look to address the issue of what happens in England. If we talk about devolution, we tend to think about Scotland, Wales and Northern Ireland.

England is very much an afterthought, and serious thought has to be given as to how you decentralise within England. You cannot have one size fits all in England. You must ensure that there is sufficient innovative capacity in terms of the mayors across England so that they can be innovative in their areas without having to constantly ask permission from Westminster.

There are very few other countries that have that level of centralisation. Usually, regions are trusted to make their own decisions within an agreed framework to be innovative. For example, the five motor regions of Europe have extensive fiscal powers but minimal legislative powers, alongside being innovative.

The concept of innovation originating from Westminster or being directed from there is outdated in the contemporary political world and the future. Despite the role of mayors in carrying out innovation, which the Brown Commission recognised. 

Will Barber-Taylor: Absolutely. Federalism is something that is often discussed in relation to the state of the United Kingdom and the constitutional arrangement in the United Kingdom. Might a federal United Kingdom be the answer to some existing issues, and have we already discussed the constitution and devolution?

Glyndwr Jones:  Comprehensive decentralisation from Westminster and Whitehall is essential. Firstly, to satisfy the needs and priorities of different communities of these Isles through efficient policy implementation.

Secondly, to identify the local and regional initiatives required to solve the existing economic disparities. It is all about the existing different territorial personalities for national devolution of Scotland, Wales and Northern Ireland. Requiring decentralisation within England itself to influence how constitutional reform is approached on an island-wide basis. 

National devolution recognises that the United Kingdom unitary state is formed of discrete national entities with diverse histories and identities that are acknowledged at an institutional level. Decentralisation within England involves the reorganisation of power within a high-level nation of considerable population size to better align decisions to local democratic concerns and demands. Change, therefore, must take account of these different characteristics and governing personalities.

Focusing on these can address the deeply asymmetric nature of the United Kingdom. This move towards federalism certainly offers opportunities. The debate has moved on substantially in recent years. Views in Wales about the nature of Cardiff’s interactions with Westminster have continued to evolve, especially due to the impact of Brexit, alongside the mood in Scotland becoming fortified.

Considering this, perhaps a traditional model of federalism is a politically difficult proposal. In my opinion, specifically focusing on the Scottish Context, secessionist tendencies are growing. I would suggest exploring broad constitutional compromises, strategically embracing the concerns of both the unionists and nationalists, focusing on upcoming challenges. Alongside, involving other constitutional options in any future conversations. Additionally, I am keen on hearing what thoughts Carwyn Jones has.

Carwyn Jones: If we regard federalism as a nation state being divided into different territories or regions, each with its own equivalent powers, this is unsuitable in the United Kingdom. You need a written constitution for that, to my mind. Secondly, we have always had an asymmetric system of devolution.

Now, for me, there is no reason why Wales and Scotland should not have equivalent powers. This was set out in the Brown Commission, which will hopefully occur soon. Although, for example, focusing on Northern Ireland, there are powers that Northern Ireland has that we would not want in Wales. Northern Ireland, for example, has powers over employment law. Personally aligned employment law is not just crucial across the United Kingdom, but across Europe, to prevent jurisdictions undermining each other.

For example, in Northern Ireland, the welfare system is devolved in executive form, if not in legislative form. Wales benefits as part of the larger Great Britain pot when it comes to the welfare system. A separate Welsh welfare system would not work. Referring to Northern Ireland, there is a separate driver and vehicle licensing system. They have their own number plates that are often seen in other parts of the United Kingdom because people buy them as private plates. Would we want that in Wales? No, since the Driver and Vehicle Licensing Agency is a big employer in Swansea, and it helps us to be part of the larger Great Britain. If we define federalism where each region has their own powers, it would lead to issues such as the West Midlands wanting a tax-raising, law-making parliament as Wales and Scotland have.

I do not think that works. I think there are other models which will be discussed later in this discussion. Critically, speaking of federalism consisting of a federal parliament with different entities and powers as the US has, this would not be effective in the United Kingdom.

Will Barber-Taylor: Do you think confederalism offers opportunities?

Glyndwr Jones: This is something I have explored in writing for some time. Could we not explore a model where we recognise the sovereignty aspirations of the whole nations within a robust social, economic and security partnership? This would be directed by a limited mature political legislature. Confederalism advocates for sovereign nations, in our case, of radically different population sizes, delegating some sovereign authority to central bodies in areas of agreed common interest. I should note that the arrangement I have outlined is just a proposal for discussion. Creating a council of the isles, with elected members for four years, would be responsible for enacting powers on: defence, diplomacy, internal trade, currency and macroeconomics. Alongside, a committee of member nations meets regularly to discuss other issues. It may demand a degree of cooperation and harmonisation of laws. The national parliament of each nation would assume every power that it did not delegate to these joint institutions. As federalism, it would offer as a model: a common currency, bank and market, in support of our economic union, but also our social and cultural union. The model could guarantee individuals’ rights to employment. Residents across all the nations have an agreed basic island-wide level of welfare support. That is important to ensure continued solidarity and equality across the whole population of the Isles. Moreover, the armed forces, defence, and foreign policy could be centrally held. Personally, this resembles constitutional confederalism, a form of ‘confederal federalism’, to quote the term cited by Professor John Kincaid to summarise the state of the European Union itself. The model deals with the sovereignty aspirations of the whole nation, the real need to share some key functions on an island-wide basis, which will always be the case in these Isles. Additionally, presenting the opportunity for federalisation within England itself, if so desired.

We do need to look at some fresh constitutional thinking whilst not undermining basic social cohesion and the principles of equality, which we must always promote across Britain.

Carwyn Jones: Yes, I have heard my friend and former colleague, Mick Antoniw, suggest the idea of confederatism in terms of each of the four constituent parts of the United Kingdom having their own sovereignty.

So instead of sovereignty existing centrally at Westminster, sovereignty will be dispersed in the four territories or countries. Those territories will then decide where and how that sovereignty should be shared. This means the end of parliamentary sovereignty, which is a radical change to the United Kingdom’s constitution. This appears unlikely, considering the current situation; however, I think it could be effective.

It would mean, as Glyndwr has said, that there would be joint agreements on where sovereignty is shared. For example, does Wales want to have a separate army? No, I would argue. Defence would be merged, border and immigration would be shared. The internal market of the United Kingdom would be divided, but in a more democratic manner than the Internal Market Act. It would also mean that there would be social and economic solidarity. We have the Barnett Formula, which is flawed. However, the intrinsic principle is sound, even practised from a Welsh perspective. On the other hand, my Scottish colleagues would argue otherwise, in the sense that money goes where money is most needed. I think that is a hugely important asset as far as the United Kingdom is concerned for fine economic and fiscal, monetary and fiscal union, although it could be improved.

I think confederalism offers England the opportunity to decide how it decentralises within England. If we talk about federalism within England rather than federalism within the United Kingdom. Instead of looking at equivalent entities in the United Kingdom, you focus on England and what England is doing that is so big? It is a matter for England to decide how it runs itself in terms of where power actually lies.

I think it is an attractive model. I think, let us not pretend that it would be very challenging to put such a model in place. Although I suspect that model would only be considered if there was serious pressure on the union in the United Kingdom. Through a proper review rather than operating in a crisis mode at all times. Let us make sure that we head off something worse by offering something that seems better at the moment, which is not the way to manage things. The confederal model is certainly workable, but highly radical. Consequently, I think it would be a difficult effort to persuade any of the parties to adopt it.

Will Barber-Taylor: We have discussed a written constitution. Is that something that could be an option? What are your thoughts on a written constitution?

Glyndwr Jones: There are some challenges involving a written constitution, such as the terms of codifying all our constitutional arrangements in one document. Involving the capturing of our shared, firm ideals and values in a framework which strengthens arrangements for self-government on the one hand. Whilst working within an isle-wide structure typified by tolerance, pluralism, justice, equality, and of course, solidarity. The more centralised the state is in this concept of, referring to parliamentary sovereignty, the less likely it is to be successful in acknowledging certain issues. Such as the partial autonomy, diversity, and the financial challenges facing constituent nations. Parliaments are created to serve the people. Therefore, the concept of Westminster’s unlimited sovereignty is problematic these days. Indeed, it could well be at the heart of the inconsistent practices and the lack of accountability demonstrated by the current United Kingdom government.

So in the written constitution, people as sovereigns establish the binding legal conditions under which their representatives exercise the power entrusted to them. This is the only basis, and within the limits set by it, individuals are elected and appointed to positions of power. The power rests entirely with the voters. Despite this, the most important application is to protect the democratic will of a politically united society about the order that best suits it. Considering today’s arrangements, in today’s United Kingdom, this is structured across four parts. There are four governments through the devolution arrangements.

Since popular consent is the foundation of trust in any political system, we must seriously look at releasing the concept of parliamentary sovereignty from Westminster. This would enable the links between the populations of the four nations and their respective parliaments and governments to be made more accountable. Besides, holding them more clearly politically accountable so that people feel empowered and the politicians feel entrusted to plan and make decisions. I would emphasise this on a longer-term basis than a short-term basis in recent politics. 

Carwyn Jones: Concentrating on the current situation, we have a constitution which is based on two principles. One is the rule of law, and the other is Westminster parliamentary sovereignty, by which we mean the House of Commons, because it is a superior chamber to the House of Lords. Strangely, the United Kingdom Parliament does not have any territorial limits to their jurisdiction. It could technically ban something in Paris, and it could not enforce that; it does not have any territorial jurisdiction, but I think that is too much of an extreme example. 

Parliamentary sovereignty, which may or may not exist in Scotland, is based entirely on the view of one man, Professor Albert Venn Dicey in Oxford in the 19th century. He proposed a theory of parliamentary sovereignty, which Parliament adapted. If somebody said to you, you can do whatever you want without limits, why would you not take that on board? Critically, we are increasingly seeing a movement towards a conflict between the rule of law and parliamentary sovereignty. The ending of what Peter Hennessy called the good chap theory of government, that people have restraints that they impose on themselves, even if the law does not do it.

One of the questions I have often posed is what happens if the House of Commons tries to do something that is clearly against the rule of law? Where do the courts go? If the Supreme Court wanted to, it could modify or ignore parliamentary sovereignty, they are perfectly able to do that because no law says parliamentary sovereignty exists, creating uncertainty. In normal times, you could deal with that, but in days when there might be a possibility that the House of Commons does something so extreme that the court feels it infringes upon what we call natural justice, not quite the same concept. Focusing on the rule of law, what would the courts do then? 

These issues can be resolved by a written constitution, which raises different problems. Sometimes a written constitution can be too rigid, as is evident in the United States. Occasionally, the method of changing a constitution is too inflexible. In Ireland, the constitutional changes are enacted by a civil referendum. In the US, there is a far more complex process involving both the federal houses and the majority of the states, requiring a balance. Again, I would emphasise that a written constitution is important.

People are very fond of saying that others admire the UK system, which is controversial because most have not adopted it. Most of them have written constitutions, with those who do not, such as Israel. One of the reasons for the protests in Israel is the Israeli government proposing that the Israeli Supreme Court should not have jurisdiction over the Israeli Knesset and the laws that it makes, similar to the United Kingdom. In Israel, such a move is seen as the imposition of a dictatorship.

A written constitution would certainly be very much organised and would provide greater clarity, especially when there is a strain on what we have known over the past 150 years. Although, practically, it is an immensely difficult project to take forward.

Will Barber-Taylor: How do you think we should progress to construct a future where we will feel comfortable with our constitutional arrangements going forward? Would this involve consultations or referendums? How would we achieve that?

Glyndwr Jones: It would need to be progressed on a number of levels. As many now assert a multicultural Scottish, Welsh, English, or Northern Irish character before claiming a form of dual nationality, also embracing a British personality. It is legitimate to reconsider our position and to be sovereign in such a way that it more appropriately encompasses authority over a more nuanced select portfolio of isle-wide functions. The pressing issue relates to whether sovereignty as currently understood should be shared across five territorially defined identities, including that of Britain, in a traditional federal arrangement, or instead assigned individually to the four nations. This would lead to delegating a pool of parts of their sovereign authority to common central institutions of a fundamentally British civic character.

Indeed, the United Kingdom’s withdrawal from one union, the European Union, has intensified debates in Scotland and Wales about whether it should lead to the departure of their territories from another union, the United Kingdom. The situation in Northern Ireland is admittedly more complex, but the inevitability of a border and Irish unity at some point, I think, in the future is progressively recognised.

If those forces entrenched in the perpetuation of the current United Kingdom model remain inflexible, then the legitimate sorts of people of these islands, including those of the English regions, whose relationships and constitutional arrangements are at risk of fracture.

It is imperative, Will, to address your question, that an informed debate on what future would get the greatest support across all elements of our society, Scottish, Northern Irish, Welsh, and British, is progressed. The challenge of that time is not so much that exploration of constitutional futures is not being had, but that it is progressing separately within each nation rather than collectively as neighbours. Having debates individually is good in terms of engaging the public and focusing minds within various political parties. Whilst looking at shared functions and what is important to us, not just to us today, but also the future and the long term.

Establishing a new framework with the support of the four parliaments could prove invaluable across the political spectrum. Some would argue for reassurances in articulating a more distinct development of the United Kingdom’s practices in a federal constitution. On the other hand, others would want to cement the sovereignty position of the four parliaments in relation to a common British structure. There are lots of opportunities ahead of us.

I think it is important that we try to get ourselves to a space where unionists and nationalists can speak helpfully and constructively together. With a collaborative sense and fully understand that we share far more than we differ. We also need to focus on the future to 10, 25 years from now, and create a Britain fit for the 21st century.

Carwyn Jones: I think that some of the difficulties that exist in taking this forward, first of all is having a constitutional convention process. That is something that I have talked about in the past. It would need to be an agreed process amongst all the governments. That is going to be difficult, but that would have to be done. It would then have to come up with proposals that would have to be adopted in a referendum, which is a big constitutional change. Then, start with the questions: Does each of the four nations vote separately? What if some vote no and some vote yes? Does everybody have to be in this and vote one way or the other? All these things are problematic; they are not impossible to resolve, right? We have to recognise some of the inherent difficulties in implementing something that may be quite sensible and will take the United Kingdom forward.

I do not think we are on the verge of a seismic change in the Constitution of the United Kingdom. I think we will continue to see incremental changes, although I am concerned about the way in which the current United Kingdom government is working in terms of devolution. I think many in the government instinctively do not like the idea of any power leaking out of Westminster, do not like the idea of Scotland or Wales, and do not tend to think or care about Northern Ireland. Yet regarding Scotland and Wales, why should they? They are mere regions; why should they have their own parliaments? There is that attitude there, and I think if they had a free hand, they would be even more intrusive than they are now. So that is something at least to be grateful for. The very fact that we are having this debate is a sign of how things have changed. Compared to 20 years ago, this would not have been a debate that we would have been talking about: devolution, the various models, how they would work, and that would not have been the extent of the debate.

The fact that we are talking about it shows that a lot of thought is being taken, given rather, to the way in which we address and speak of all these islands.

At the very start of his contribution, Glyndwr mentioned the Council of the Isles; I have attended many of those meetings, and they do not achieve very much. They are great for meeting people and meeting people at the margins of the meetings.

Apart from only on one occasion in the nine years I was First Minister, did I see a United Kingdom Prime Minister there. This was in the aftermath of Brexit when Theresa May came along. Otherwise, the United Kingdom Prime Minister never attended. The Irish Taoiseach would always attend, always arriving late. I suspect that to make a grand entrance, I was always reminded that he was about to arrive, which made us all feel slightly second-rate.

It was a great opportunity for the islands; from their perspective, they loved it, the Isle of Man, Jersey, and Guernsey. It was an opportunity for them to meet with us, which otherwise they perhaps would not have. Although in reality, if we look at the output to the Council of the Isles, there is little to it because it is not actually asked to do anything. It does not have any decision-making capacity. What you need is a body, an intergovernmental body within the United Kingdom that actually can agree on common positions amongst governments, similar to the European Council. That is what we currently lack within the United Kingdom, and there is no mechanism. In my experience, the Joint Ministerial Council tends to be a place where people go to argue and raise grievances with very little agreement. It tends to be a place where there is just endless disagreement, and that is in the interest of no one. If there were a way to agree on a common way forward on various issues, the Joint Ministerial Council would be far better. This would strengthen the United Kingdom.

Will Barber-Taylor: Thank you both for taking the time to speak to me. If people want to find out more about you, follow what you are getting up to, where should they go to find out more about you?

Glyndwr Jones: They can seek out my booklet The Union of the Isles, which, gratefully, Carwyn wrote a lot of the preface for.

Carwyn Jones: I am usually found making comments here, there, and everywhere. I am a professor at Aberystwyth University, a law professor there, but I am not usually quiet in the media. I try not to get involved too much in partisan politics these days. It is surprising how quickly you go from being a partisan politician to being cross-examined to being an elder statesman to being allowed to speak as you want on the radio. I like it very much, but yes, for the two of us, Glyndwr and I, keep an eye out for us on social media; we usually do something there.

Will Barber-Taylor: Fantastic. Thank you both for taking the time to speak to me.

Carwyn Jones and Glyndwr Jones: Thank you.

Note: This interview has been edited for grammar, clarity, and flow. The original recording is the final and definitive version.