Five Steps to Independence

(Title Image: via snopes.com)

I’ve said previously that the independence movement is making strides in terms of winning hearts, but when it comes up against the head arguments it’s often left wanting. Heart arguments are great motivators, but are often fleeting while the eternal grievance stuff is often a source of embarrassment and nothing more than a worn-out comfort blanket.

No matter how well researched or argued something on State of Wales might be considered to be, it’s no substitute for the resources and expertise available to political parties, academic departments or the civil service. So the first problem is that: developing a clear “head” argument for independence, with watertight arguments drafted and backed up by people who know what they’re talking about.

What I’ve often found is that things that might seem simple in your head become a hell of a lot more complicated once you sit down and try to work it out. The easiest thing to say about defence, for example, is that Wales wouldn’t spend as much, would probably have a smaller military and would be less likely to be involved in military conflicts.

But then you have to consider how the military will be organised, what its personnel strength would be and how they would be organised, the size of the budget, how it fits with a Welsh foreign policy (so you have to consider foreign policy before considering defence), how issues like national security would be handled (and I’ve only given that a glance to date) and our obligations under international law.

“Wales wouldn’t spend as much” is a good soundbite for Twitter, but a shallow statement that would be picked apart easily if you don’t know the answers to everything else. That goes for a number of other subjects as well.

The next biggest obstacle is getting the message out there because of the lack of a strong Welsh media and a relatively weak civil sphere. The AUOB marches have been absolutely vital in this regard because it’s a visual demonstration of the relative support for independence – so in that respect, it’s been a game-changer.

But once the marches have passed, you’ll be lucky to see independence mentioned outside online echo chambers or Yes Cymru street stalls – in the case of the former, often reduced to preaching to the converted. So we all have to be willing to have reasonable, civil discussions with people who are sceptical about independence or even outright hostile. It’s their country too and we can’t afford to end up with a Brexit-style divide no matter how convinced we might be that the curtain has to come down on the UK.

Some may also argue, with good reason, that Wales should be expected to hit certain socio-economic benchmarks before seriously seeking independence from the UK – for example, setting a benchmark for economic productivity to hit 85-90% of the UK average and a lower dependent-to-workers ratio.

Doing so would be a mistake because chasing growth for its own sake is doomed to fail and we could end up causing more long-term damage for the sake of short-term gain (like the Republic of Ireland’s housing and financial services bubble before 2007).

There’s also no arbitrary figure (in terms of tax revenues, economics or demographics) where independence suddenly “works”. It always works – no nation that’s achieved independence from the UK has ever asked to be taken back – it’s just a case as to how it’s managed and how it compares to the status quo.

In the most basic terms, this means having a Welsh Government in place that supports independence, whether outright or in principle. Notionally, that means a Plaid Cymru government or Plaid-led coalition with a manifesto commitment or joint agreement to put independence on the agenda.

There are arguments over whether the priority should be securing as many seats in the Senedd as possible or at Westminster. I’d argue the former, as any mandate for secession is going to come from the territory that’s trying to secede (the SNP only had 12 MPs in 2014).

Having fewer MPs may also, tactically, give the impression of less support for independence. This could lull the UK Government into a false sense of security so they may look more favourably towards granting the necessary powers to hold a referendum because the odds would appear to be in their favour – which the UK Government very nearly miscalculated concerning Scotland in 2014 and definitely did so regarding UKIP’s threat prior to the Brexit referendum.

Electing a Plaid Cymru or Plaid-led government wouldn’t, in itself, set Wales on a path to independence. It’s just another step.

It’s a good idea for any parties supporting independence to prove that they have what it takes to deal with the bread-and-butter stuff of health, the economy, education etc. first. In our case, Plaid would have to be seen to be a competent government in which we can have confidence would be able to deal with some of the incredibly difficult and complex issues independence would raise, as well as being able to concentrate on the day job.

While the SNP consulted upon and published a draft referendum bill in their first term of office (2007-2011), they couldn’t get it passed until they secured a second term with a greater number of MSPs.

To outline the electoral challenge facing Plaid Cymru, in 2007 the SNP achieved the equivalent of Plaid winning 22 seats in the Senedd, 32 seats in 2011 and 29 seats in 2016. Where are all of these Plaid Cymru gains going to come from?

22 seats is possible for Plaid if they have a completely faultless campaign in 2021 and a few other things go their way too, but current projections put Plaid on course to win 12-15 seats. That’s still far short of their best-ever election in the Senedd (1999) where they won 17 seats off the back of a poor turnout.

Based on the assumption that Plaid (or a Plaid-led coalition) would need two terms in government to put independence on the table like the SNP, they’ll need an electoral miracle over the next 18 months to guarantee it this side of 2031.

The best solution to shaking up the political status quo is comprehensive electoral reform which, paradoxically, perhaps makes the chances of electoral reform happening at the Senedd less likely.

There’s the outside chance that Labour or the Conservatives could make a strategic decision to call Plaid’s bluff and, in an attempt to put the issue to bed for a generation or longer, ask that an independence referendum be held “before we’re ready” in order to get a 1979-style result (80% against). That could backfire, but it probably wouldn’t.

Labour could even, internally, shift opinions on independence if: they don’t think the UK Government is taking their ideas on constitutional reform seriously enough (which is a given), Scotland secedes and Ireland reunites in the medium-term, we have an extended period of Tory rule worse than the Thatcher years or Brexit turns out to be an economic disaster. So it’s not entirely beyond the realms of possibility that Labour could directly or indirectly (even reluctantly) deliver a political mandate for independence.

Once the political mandate for independence is secure, the next step – probably the most crucial one – is securing constitutional legitimacy for independence itself.

While self-determination is recognised in international law, there’s no agreement on whether that extends to independence – as opposed to other forms of self-government or even basic self-identification as a distinct nationality.

Under the 1975 Helsinki Accords (pdf), there’s no contradiction between protecting the territorial integrity of a nation-state (in our case the UK) and the principle of self-determination. This means there’s no automatic right to independence, but it’s generally accepted that a nation-state only exists with the consent of its citizens.

Under the UK’s uncodified constitution (Section 109 of the Government of Wales Act 2006), Wales would need to ask permission from the UK Government for the necessary powers to seek a mandate for independence.

The obvious option to secure that mandate would be a referendum and that’s probably the only legitimate way of doing it. Big constitutional changes (which essentially change how the country works) can only come about with the people’s explicit consent – but it does occasionally happen peacefully without it, as was the case with the “Velvet Divorce” of Czechoslovakia in 1993.

A referendum would require an Act in the Senedd and the question itself would likely be set by the Electoral Commission. There would, therefore, be plenty of opportunities for politicians to debate the process itself (even vote it down).

Based on Scotland’s example, the time from requesting the necessary powers to holding a referendum could be at least 18 months with a 16-week regulated period of campaigning. There would be campaign spending limits and organisations like Yes Cymru (perhaps even myself) would have to register as official campaign groups.

By the point upon which a referendum can take place, the big questions should have been answered by the civil service, economists and other legal and constitutional experts. We should all have a very clear idea of what independence should look like at day one, the potential positive and negative impacts of independence and all other types of contingency planning that would be put in place for negotiations and transition.

Dr Hefin David AM (Lab, Caerphilly) has argued that all that would be required is a majority in the Senedd that supports independence in order to avoid another divisive, absolutist referendum campaign (and based on what’s happened with regard to Brexit he has a point) – but under the UK Constitution that wouldn’t be possible and it would mean that, by his definition, the SNP (and Scottish Greens) could’ve sought independence in 2011 and 2016 without a referendum.

There’s also the option of a unilateral declaration (UDI), but that really only ought to be considered under a limited number of extreme conditions including, but not limited to, active Spanish-style repression of Wales by the British Government, abolishing the Senedd without the consent of the people of Wales or more worrying developments such as the election of an extremist UK Government. While UDIs aren’t illegal in international law, it’s highly unlikely that Welsh independence would be recognised internationally without the consent of the people-at-large and the agreement of the state we’re seceding from.

Once a constitutional mandate for independence has been secured, the next stage would be to negotiate the “divorce settlement”.

Based on Scotland’s Future, the negotiation period could last anything up to two years, but it’s unlikely to be as complicated as Brexit negotiations as under “Continuity of Effect” principles any decisions the UK has made (including legislation, regulations etc.) would be carried over to Wales upon independence as part of Welsh law. Most of the Brexit hold-ups have been over regulatory issues relating specifically to Northern Ireland and disentangling EU institutions and rules from UK ones.

So criminal and civil laws would continue to apply (under the principle of a common law system), secondary legislation would continue to apply, regulatory systems would likely still apply – though responsibility for enforcement would shift (in many but not all cases as some are already devolved) from London to Cardiff.

The negotiation period would be more about addressing material concerns including issues around currency, apportionment of national debt, cross-border public service delivery, immigration and border issues, public and state pensions, the civil service and negotiating a fair and proportionate share of movable and immovable UK assets (i.e. military equipment, foreign currency reserves if applicable, overseas properties).

The UK isn’t a signatory to the Vienna Convention on Succession of States in respect to State Property, Archives & Debts (pdf), but it would likely form the legal starting point for how assets would be divided. England would almost certainly be the successor state to the UK and would likely retain the UK’s seat at the UN (including the UN Security Council), would probably be the “parent state” for the UK’s overseas territories and would also retain the UK’s nuclear weapons.

I’d argue that a (Welsh) National/Cross-Party Government should be formed within weeks of any constitutional mandate for independence being secured, fully involving the losing side but without changing or overturning the mandate itself; another lesson we need to learn from Brexit is to always seek “loser’s consent”.

General responsibility for negotiations could be overseen by a senior cross-party negotiating team (led by the Welsh First Minister and including the leaders or appointed individuals from the Senedd’s party groups) with cross-party sub-committees – including experts from academia and civil society – focusing on detailed line-by-line negotiations in specific areas. Updates should be provided regularly during a negotiating period – at least once every 3 months.

Work in the Senedd wouldn’t necessarily grind to a halt, but would be overshadowed by independence negotiations. One of the reasons I suggested a National Government is to maintain “business as usual”. No controversial bits of legislation would be introduced, while the Senedd’s committees can focus on relevant inquiries on independence concerning their respective committee remits alongside the usual inquiries (much like Brexit).

A temporary written Constitution may also need to be drafted (by an expert panel), which would generally be restricted to the absolute basics: basic list of rights (perhaps copy and pasted from the ECHR or Human Rights Act), basic pointers for how the Senedd functions (based on current Standing Orders), division of powers (local government), basic outline of the judiciary, arrangements for the Head of State etc.

Any final arrangement is likely to be drafted as a treaty, with an agreed date for its provisions to come into force (“Independence Day”). You would assume both the English Parliament and Senedd would have to pass majority votes in favour which, assuming the negotiations are successful with no outstanding areas of controversy, ought to be a formality – though this could well be the last point upon which independence can be stalled for further negotiations, if not completely halted.

There could be a short buffer period of 12-18 months between the ratification of the treaty and it coming into effect to ensure all formal arrangements for independence (establishing new government departments, public information campaigns, cross-border arrangements etc.) are in place well ahead of time and with the appropriate budgets. Wales would be, during this transition period, de facto independent – but powers could be sensibly transferred in phases rather than in one go.

While Wales would likely become fully fiscally and constitutionally autonomous almost straight away (with the Welsh Revenue Authority taking over HMRC assets and staff, for example), a single military and a single seat at the UN could still be in place until they’re gradually phased out as Wales takes on the responsibility ourselves.

Once an agreed Independence Day arrives – that’s it. The UK is assigned to the history books. By that point though, you probably wouldn’t notice as the arrangements for independence would’ve been gradually put in place during any transition period. Issues regarding currency and the need for a Welsh central bank, for example, would likely have been long resolved by this point.

The first task after independence would be to replace any temporary constitution with a permanent one – probably via a constitutional convention and/or citizens’ assemblies.

I’ve said previously that it could take up to a decade for a Welsh military to be ready for active/full service and some other things might take several years to be fully up and running – though without causing any great disruption.

The National Government could remain in place until the text of a permanent Constitution is finalised and ratified by the Senedd, then a new election under that Constitution could take place within months – perhaps with brand new parties having been formed in the intervening period.

Where’s Wales now?

To put things in a much-needed sense of perspective, we’ve barely started Step 1 and you could argue that we only seriously started this journey following the first AUOB independence march in May 2019, which proved (to a limited extent) in the most public way possible that people are serious about it.

Devolution, the formation of Plaid Cymru and Yes Cymru, the publication of Independence in your Pocket and Brexit were all precursors needed for Step 1 to happen (“Step 0”) – so this has been a very long, slow process.

Scotland got as far as Step 3, but following the 2014 “No vote”, dropped back to Step 2. If the SNP lost control of the Scottish Parliament in the future, it’s back to Step 1 for them as well.

It’s now a question as to how fast things will move from one step to another.

In an accelerated scenario where all events align perfectly (Plaid win big in 2021, Brexit shifts opinions in favour of independence, Scotland votes for independence), it could all happen as early as 2026-2030 but it would be intellectually dishonest to think we’re anywhere near that as things stand.

In terms of nation-building, we’re still 30-40 years behind Scotland. Plaid Cymru is now arguably where the SNP were in the early-80s – starting to take independence more seriously, but electorally under-performing and negatively impacted by internal personality and factional-based disputes.

It’s a bit of a chicken and egg situation.  There’s a clear need for a broad-based citizen-driven independence campaign, but realistically independence can’t happen without an electorally successful Plaid Cymru in the same way as it couldn’t happen in Scotland without the SNP controlling the Scottish Government. There’s no point splitting the nationalist vote while we’re so far away from Step 2. If you’re serious about independence this side of 2030 – and until the argument is won in other parties – you’re going to have to hold your nose and vote for Plaid candidates come hell or high water in 2021.

However, that aforementioned success has always eluded Plaid and through no fault of their own they (and Wales generally) have to deal with issues the SNP have never had to (weak economy/no oil and gas exploitation, weak Welsh media, post-political landscape, Welsh language culture war, cross-border integration – particularly criminal justice).

Do I wish things were different? Yes, obviously – but wishing for something doesn’t make it so and would be an exercise in self-delusion. The Scots only have a steep hill to climb, we have The Alps. To end on an optimistic note though, all it means is the sense of achievement will be much greater when we reach the top.

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