This article by Stephen Clear, Lecturer in Constitutional and Administrative Law, at Bangor Law School is republished from The Conversation under a Creative Commons license. Read the original article here. Originally published 31st July 2019.
In a move that surprised many, in June 2016, 52.5% of people in Wales voted to leave the European Union. But concerns over Brexit negotiations, and “chaos in UK politics” have mounted since then, and recent polls suggest that support for remain has risen considerablyin Wales.
Now, the Welsh government has announced that it will campaign for the UK to remain in the EU while public attention is turning to the question of whether the Welsh should become independent from a post-Brexit UK.
Welsh independence has long been supported by Plaid Cymru, but it now appears to be becoming more mainstream, with more Welsh citizens now considering the possibility of leaving the union. Marches are being held across the country and recent YouGov polls indicate that support for independence, or at least “indy-curiosity” has grown in Wales in the past two years.
Strictly speaking, constitutional law dictates that Wales cannot run its own referendum nor declare independence unilaterally. The new Schedule 7A to the Government of Wales Act 2006 states that “the union of the nations of Wales and England” is a reserved matter, not for the Assembly. But precedent suggests that an independence referendum is not an impossibility.
If there is momentum for Wales to decide its own future, this would put pressure on the UK government to facilitate a legal solution for a referendum. This opportunity was afforded tothe former Scottish first minister, Alex Salmond, by former prime minister David Cameron, via the Scottish Independence Act 2013.
While not all are in favour of Welsh independence, the political narrative is changing. Welsh first minister Mark Drakeford has stated that “support for the union is not unconditional” and that “independence has risen up the public agenda”.
Concerned by relationships between the UK’s countries, former prime minister Theresa May referred to the electoral success of nationalist parties such as Plaid Cymru as evidence that the union is “more imperilled now than it has ever been”. She also sanctioned the Dunlop review, with a remit to address “how we can secure our union for the future”.
Her comments echo warnings from former Labour prime minister Gordon Brown, who recently remarked that UK unity is “more at risk than at any time in 300 years – and more in danger than when we had to fight for it in 2014 during a bitter Scottish referendum.
So if Wales overcame the legal challenges and gained national political support, would the devolved government and parliament be able to manage the country? As noted above the National Assembly has been making laws for Wales since 1999. Frequently cited achievements include the abolishing of prescription charges and financial support for Welsh university students (via a mix of tuition loans and living cost grants). In addition the Social Services and Well-being Act 2014 changed how peoples’ needs are assessed and services delivered.
More recently its Future Generations Act was celebrated for compelling public bodies to think about the long-term impact of their decisions on communities and the environment – albeit with some criticisms from legal experts for being “toothless” in terms of enforceability.
Alongside these headline-grabbing results, the National Assembly itself has been an achievement in its own right. While its initial establishment was something of a battle – in 1979 Wales voted 4:1 against creating an Assembly and in 1997 just 50.3% voted for it – The Wales Act 2017 actually extended the scope of the Assembly’s powers.
This changed its constitutional structure from a conferred powers model (which limited it to specifically listed areas) to a reserved powers model, which empowers the Assembly to produce a multitude of Welsh laws on all matters that are not reserved to the UK parliament.
But even with its strong history, it must be noted that not everyone is in favour of the Assembly. A small number of UKIP assembly members are currently arguing to reverse devolution while others criticise Wales’ record – particularly in the areas of schooling and the NHS.
The are several other dimensions to the question of whether Wales could become an independent state. Socially and economically, opponents advocate that Wales is too small and too poor to stand alone on the world stage. Yes Cymru, a non-partisan pro-independence campaign group, has sought to debunk these myths, pointing out that there are 18 countries in Europe smaller than Wales, and that the assessment of Wales’ fiscal deficit is flawed in excluding significant assets such as water and electricity.
The constitutional shift in power that will follow Brexit will certainly give rise to the prospects of a divided UK. But the outcome of Brexit, and its impact on Welsh independence, hinges on the new prime minister’s actions.
While Boris Johnson has reiterated that the “union comes first”, if there is significant public support for independence in Wales, it will be hard for Johnson to ignore the people’s right to self-determination and arbitrarily enforce the union at all costs. Should the independence movement gain further wide support in the coming months compromises will have to be reached, with at least more incremental devolution being likely in the medium term.
Ultimately, while it would be a monumental change, the question of whether Wales becomes independent hinges on what the people want for their country. If successive UK governments take the union for granted without more meaningful consideration to the cumulative effects on the people of Wales, calls for independence may become louder. As Welsh ‘indy-curiousity’ grows, it is clear that change is coming to Wales, or “to re-coin a phrase – stop the world, Wales wants to get on.”
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Published on the 31st July 2019