National Welsh Assembly, Cardiff Bay, Cardiff

The constitutional prospects of the sixth Senedd

Published: 28 April 2021
Author: Greg Davies

The sixth devolved election in Wales is novel in a variety of ways. It is the first Welsh election in which 16-17-year-olds will participate, yet one taking place amid a global pandemic and ongoing public health measures. A newly expanded franchise thus takes form under conditions poorly suited to democratic debate and engagement.

Another novelty of this election is the dizzying range of constitutional choices being presented to Welsh voters. As Laura McAllister has observed, ‘Wales is on the cusp of some dramatic democratic decisions’. By one or several parties, they are promised: continued advocacy for a federal UK, a referendum on independence, a referendum on the abolition of devolved institutions, a Welsh bill of rights, or a decisive pause on constitutional reforms of any kind. So much offered, most with little to no prospect of being realised – at least for now.

For all of the novelty, recent polls point to a rather unremarkable outcome: Welsh Labour winning the most seats in the Senedd, once again, but potentially in need of support to form a government. With the Welsh Conservatives and Plaid Cymru having ruled out a coalition with one another, a post-electoral agreement between Welsh Labour and Plaid is one possible outcome. This post considers four issues which are likely to arise from such a partnership: the ‘mandate’ for constitutional change, electoral reform, the potential shift in approach to constitution-building, and the future of Wales’ place within the Union.

A mandate for constitutional change?

The parties’ core aspirations differ fundamentally: Plaid want independence for Wales; Welsh Labour want a UK state ‘based on the principles of federalism’. They also disagree sharply over the devolution of welfare. Still, there is much common ground. Both claim that the UK is a voluntary union from which Wales can democratically secede. They both pledge to pursue the devolution of justice and policing, in line with the recommendations of the Commission on Justice in Wales, as well as a variety of other powers. They are united in their opposition to the Internal Market Act. Both also plan to revisit electoral reform and initiate a wider conversation over Wales’ constitutional future.

On current projections, it seems unlikely that Plaid will be in a position to demand a referendum on independence. Support for leaving the UK has reached record highs but is yet to become a leading election issue, as it has in Scotland. Nevertheless, the fact that both parties pledge to seek the devolution of various powers adds another dimension to the question of what constitutes a democratic ‘mandate’ for constitutional change in the UK. By and large, there are no legal rules here, only political precedents and competing narratives. Given the two parties’ explicit commitments on further devolution, should they muster a combined majority, it could certainly be argued that they have earned a mandate to demand that those powers are devolved.

In respect of justice and policing, in particular, the case ought to be hard to resist. Wales is virtually alone in having its own parliament but no corresponding justice system. Following the work of the Commission on Justice, the dysfunctionality and failure of that arrangement is now well-established. Electoral backing to pursue change, in a context of popular support for further empowerment of the Senedd, ought to be compelling.

Of course, the UK government has already dismissed the prospect. To do so again, however, would produce further destabilising effects. It would underline that Wales can only obtain the kind of justice system which it requires in one of two ways: either when England elects a government willing to entertain the idea, or via a separate Welsh state. Compared with the UK government’s previous willingness to grant a referendum on Scottish independence, such a move would also confirm what some have long suspected: that the UK is a state more amenable to territorial disintegration than a measure of parity between its constituent parts.

Electoral reform

Even if there is little chance of further powers being devolved under Boris Johnson’s administration, a Labour-Plaid arrangement would still be likely to revisit the mechanics of electoral representation. James Mitchell has recently argued that Scotland needs to look again at its institutions, whatever the outcome of the election there. It is an argument with even greater urgency in the Welsh context. 

As a legislature with tax-raising powers and a broad range of law-making competences, the Senedd is unrecognisable from the ‘body corporate’ established in 1999, yet it still has sixty members, as it did then. Its diminishing capacity to scrutinise effectively the totality of Welsh government decision-making was underlined both by the Expert Panel on Assembly Electoral Reform and more recently by the Committee on Senedd Electoral Reform.

Here Welsh Labour offer a vague commitment to ‘develop proposals to improve the representation of the people of Wales in their Parliament’. Plaid, by contrast, are more explicit: they want the membership of the Senedd expanded and a switch to the Single Transferable Vote, in line with the recommendations of the two reports.

Further electoral reform therefore seems probable, but the nature and extent of it will depend on the relative strength of the two after the election. Just as critical is not merely whether Welsh Labour and Plaid would be able to reach an agreement, but whether they could build the two-thirds ‘super-majority’ required under the Government of Wales Act to implement further electoral changes. If they fail to do so, many will rightly look back on the fifth Senedd term as a wasted opportunity for changes long overdue.

A new approach to constitution-building?

The next Senedd could also herald a shift in approach to constitutional development.  Both Welsh Labour and Plaid have pledged to establish a commission on Wales’ constitutional future, albeit for their preferred ends. This represents a subtle but important turn in Welsh Labour policy. Since 2012, it had called for a UK constitutional convention, while also resisting Plaid’s recent calls for such a convention to be conducted on a Welsh basis. Its manifesto commitment to initiate ‘a national civic conversation about our constitutional future’ thus opens up space for cross-party consensus on the process. Egged on by those within Welsh Labour calling for ‘radical federalism’, that process would be likely to include some form of civic participation, potentially in the form of citizens’ assemblies – something also favoured by Plaid.

This would be a welcome change. Welsh constitution-building, by and large, has been a top-down process – arguably, a passive revolution. Though in many respects innovative, current Welsh government policy, as Richard Rawlings notes, continues to be marked by an ‘elite, official, character’. Wider participation in the process of construction has been minimal, to say the least.

A turn to more participatory mechanisms – without pre-conceived conclusions – may offer a way of reorientating the debate. It would face the enormous, perhaps insurmountable challenge of Wales’ matrix of national identities and constitutional preferences. And yet, it could help to ground discussions about how Wales is governed in basic principles and imbue the outcome with the kind of democratic authority and legitimacy which is essential to securing change in a Union based on realpolitik.  Any such process would also have the benefit of being able to draw lessons from similar exercises in Scotland and elsewhere.

Wales and the Union

Finally, it is perhaps a statement of the obvious that any governing arrangement between Welsh Labour and Plaid is likely to be marked by ongoing confrontation with the Westminster government. Likely flashpoints are the operation of the Internal Market Act, the M4 relief road, rail investment, demands for further devolution, and financial support (or lack of) for Wales both over the coming months and during any future Covid restrictions. It may well be a Senedd term of protracted, irreconcilable conflict, or ‘toxic stasis’ as Richard Wyn Jones has put it.

Wales’ position within the Union may not be decided by this election. Clearly, however, hearts and minds are changing. The dynamics of a Labour-Plaid programme, alongside intensifying debates over Scotland and Northern Ireland, economic fallout from the pandemic, and three further years of a scandal-prone UK administration, may well prompt further reflection about who should govern Wales and how.

For what has been a muted election campaign, this Senedd term will be critical for Wales’ constitutional future.

With thanks to a colleague at the Wales Governance Centre, Cardiff University, for comments on an earlier draft.

Dr Greg Davies is a research associate in the Wales Governance Centre, School of Law and Politics, Cardiff University

Image by Nick Fewings on Unsplash