Riders on the Storm: Wales, the Union, and Territorial Constitutional Crisis

DOIhttp://doi.org/10.1111/j.1467-6478.2015.00722.x
Date01 December 2015
Published date01 December 2015
JOURNAL OF LAW AND SOCIETY
VOLUME 42, NUMBER 4, DECEMBER 2015
ISSN: 0263-323X, pp. 471±98
Riders on the Storm: Wales, the Union, and Territorial
Constitutional Crisis
Richard Rawlings*
The United Kingdom continues to undergo a rapid process of con-
stitutional change, with an ongoing redistribution of law-making and
governmental powers to different parts of the Union under an
expanded rubric of `devolution'. This article illuminates a pervasive
sense of territorial constitutional crisis and opportunity in the most
recent period, familiarly associated with, but not confined to, Scotland.
Constructive and flexible federal-type responses inside a famously
uncodified constitution are championed. Wales, commonly treated as a
junior partner in the United Kingdom, presents special challenges for
constitutional and legal analysis and distinctive perspectives on the
Union which have not received the attention they deserve. In tackling
this deficiency, the article elaborates a `new Union' concept of a
looser and less hierarchical set of constitutional arrangements in
which several systems of parliamentary government are grounded in
popular sovereignty and cooperate for mutual benefit.
TIME TRIP
The music of `Riders on the Storm' takes us back over forty years in British
public life, to the Royal Commission on the Constitution (`Kilbrandon').
1
The Commission had been established in the light of an early surge of
nationalist sentiment in Scotland and Wales, as well as generalized
471
*Faculty of Laws, UCL, Bidborough House, 38±50 Bidborough Street,
London WC1H 9BT, England
r.rawlings@ucl.ac.uk
This article is a revised version of the Wales Governance Centre Annual Lecture
delivered on 16 June 2015. I am grateful to Richard Wyn Jones and Adam Tomkins for
their help; the usual disclaimer applies.
1 Royal Commission on the Constitution 1969±1973, Vol. 1: Report (1973; Cmnd.
5460) (the Kilbrandon Commission). `Riders on the Storm', recorded by Jim
Morrison and the Doors in 1970, features on the album L.A. Woman.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
complaint of too much centralization in London. `There was obviously', the
Report solemnly intoned, `some discontent with the workings of govern-
ment'.
2
Even though it largely sidestepped the Northern Ireland conflict, the
Commission had a hard time. The instructions were vague, the inquiry
seemingly endless, and, as shown in a comprehensive memorandum of
dissent, the members fell out. The main question of devolution of powers
from central government saw various schemes analysed for different parts of
the United Kingdom and then disagreed about. And of course another
generation would pass, and a certain Margaret Thatcher come and go, before
Tony Blair's fresh-faced New Labour government introduced devolution
statutes for Scotland, Wales, and Northern Ireland (again) at the turn of the
century.
3
1. Legacy issues
Nonetheless, looking at the `Union' through contemporary eyes as the
United Kingdom's voluntary association of four home countries,
4
the legacy
of Kilbrandon should not be discounted. Providing at one and the same time
a mine of historical information and analysis, a source of constitutional
inspiration, and a political and bureaucratic cautionary tale, the Com-
mission's Report remains the last serious attempt by official sources to
grapple with the overarching territorial architecture of this democratic multi/
plural-national state
5
in a joined-up way.
Particularly striking from the comparative standpoint is the firm rejection
of `federalism' as a possible solution for the United Kingdom's apparent
constitutional woes. `Few of our witnesses advocated it, and people who
know the system well tend to advise against it.'
6
A slightly surprising con-
clusion, one might think, given that the rise of the Dominions and retreat
from Empire had seen Britain conjuring federalism for many other peoples.
For the avoidance of doubt, in rendering the federal idea in the United
Kingdom dormant for several decades, Kilbrandon applied the strict con-
ception of a full, formal `federal system': `sovereignty . . . divided between
two levels of government . . . a written constitution . . . basic terms . . .
``entrenched''.'
7
472
2 id., para. 1.
3 Scotland Act 1998; Government of Wales Act 1998; and, a main ingredient in the
ongoing peace process, Northern Ireland Act 1998.
4 Or alternatively, avoiding association of the term `Union state' with (the joining of)
England and Scotland, as `a state of unions': J. Mitchell, Devolution in the UK
(2009). Par for the period, the Royal Commission visualized the United Kingdom in
terms of a `unitary state': Kilbrandon, op. cit., n. 1, para. 57.
5 H. Kearney, The British Isles: A History of Four Nations (1989); Multinational
Democracies, eds. A.-G. Gagnon and J. Tully (2001); M. Keating, Plurinational
Democracy (2004).
6 Kilbrandon, op. cit., n. 1, para. 498.
7 id., paras. 502, 505±506.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School

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