‘Our Changing Governance Structures: Clarity and Confidence’

By Lord Justice John Thomas
Canolfan Llywodraethiant Cymru
Wales Governance Centre

Darlith Dydd Gŵyl Dewi
St David’s Day Lecture

It is both a great privilege and a pleasure to have been asked to deliver the St David’s
Day Lecture here in Cardiff Bay.

It is not an easy time for a serving judge to give such a lecture.  Constitutional
convention very properly limits what I should say to comments about legal issues and
to technical and practical advice.  In any event, we are at a point in time which is a
maximum of just over three months from a General Election; moreover the National
Assembly for Wales has taken a decision to call for a referendum under the
Government of Wales Act 2006.

On the other hand, we have seen approximately 12 years of very significant change in
our structure of governance and it is a useful moment to pause and see where we
currently are and how the changes that have occurred, set in their historic context,
must, or at least should, dictate future change in relation to Wales.  Observations from
the standpoint of a lawyer on practical and technical issues may be of assistance.

The title itself in its reference to “governance structures” has been chosen to avoid any
controversy.  No lecture on our governance can omit references to the European
Convention on Human Rights and the treaties creating the European Union.  Some
may argue that these have constitutional effect.  Indeed much energy seems to have
been expended on changing what is now the Lisbon Treaty into the form of a treaty
rather than a constitution.  What matters, however, is that both the Human Rights
Convention and the Lisbon Treaty form a central part of our structure of governance.
They necessarily play a significant role.  The question of whether they are
“constitutional” or not is, like the question of whether we have created a “federal state”
in the United Kingdom, essentially a semantic argument.  It is the actuality that

The position before the late 1990s
The Wales and the United Kingdom in which I grew up had a very simple structure of
governance.  It is true that the United Kingdom had subscribed to the United Nations
Charter and to the European Convention on Human Rights, but no-one saw them as
having any essential influence on our structure of governance or the acts of any of
three branches of the state – the executive, legislative or judiciary to adopt the classic
division of Montesquieu.  Indeed it may be doubted if much thought was given to the
separation of powers outside a narrow sphere.  The Lord Chancellor appeared to be
the living embodiment of its denial.  Put simply there was a Government in London and
there were the myriad of local authorities with their different powers.  Although the
powers and boundaries of local government might change, the essential structure of
government was very simple.

In the years that followed we saw the beginning of change.  There was the creation of
the Cabinet post of Secretary of State for Wales in 1964, our accession to what was
the Common Market in 1972 and, in the period immediately before 1997, an increasing
realisation of the significance of our adherence to the European Convention on Human
Rights and to the treaties creating the European Union.  However, in the period from
1998 to the present, we have seen major change in the structures of governance.  We
still have a government in London and local authorities; but we now have a
government in Cardiff and governing institutions in Brussels, and much else besides.

I would therefore like to consider the important changes which are of significance to
Wales under four headings, taking the changes in chronological order.  First there was
the enactment of the Human Rights Act, second there was devolution of powers to
three of the constituent nations of the United Kingdom.  Third, the rebalancing of the
position of the judiciary.  Fourth, the Lisbon Treaty.

1 The Human Rights Act
In the period prior to 1998 citizens of the United Kingdom who thought their rights
under the European Convention on Human Rights had been infringed had been able
to go to Strasbourg to seek redress before either the Commission on Human Rights or
the European Court of Human Rights.  Their complaint would be directed at the United
Kingdom as a state, irrespective of which of the three branches of the state had
infringed their rights.  If the United Kingdom was found to be in breach, then the
executive was required sometimes to pay compensation, but more seriously the State
as a whole was bound under Article 46 of the Treaty to implement the decisions.

There is little talk of this enforcement mechanism under Article 46 which empowers the
Committee of Ministers of the Council of Europe (the 47 nation body) to ensure that
any State whose activities had been found to be in breach of the Convention changes
its laws or its judicial or administrative system that caused it to be in breach.  No doubt
at the time that this mechanism was suggested by the United Kingdom in 1950, it was
thought to be desirable to ensure other States within Europe improved their position on
the fundamental rights set out in the Convention.

Today, however, for a State such as the United Kingdom committed to the rule of law
and adherence to international obligations, the Convention as enforced through Article
46 is a very significant aspect of its governance structure.  That is because the
Convention constrains the ability of any of the branches of the state to act outside the
scope of the Convention as interpreted by the Court in Strasbourg.  This constraint is a
treaty obligation binding on the United Kingdom and not, as is sometimes thought, a
consequence of the Human Rights Act, although that has had other consequences, as
I must now explain.

Prior to the enactment of the Human Rights Act in 1998, although the United Kingdom
State was bound by the Convention, a litigant could not rely upon the Convention in
the courts of the United Kingdom.  The Human Rights Act 1998 was therefore enacted
to remedy the position.

As the Court in Strasbourg had taken the view that the Convention was a “living
instrument” to be developed by judicial interpolation, it was thought right for Parliament
to ensure that it did not pass legislation in breach of the Convention, that the actions of
the executive conformed to the Convention and that the judiciary, in interpreting
legislation or adjudicating upon the acts of the executive and other branches of the
State should apply the Convention.  As the State was in any event bound to the
Convention and its interpretation as a living instrument, it was better that the
development of the Convention was at least shaped by an active engagement by each
of the powers of the State through the direct application of the Convention in the
United Kingdom rather than the treaty mechanism I have described.

The consequence has been that first each piece of legislation put before Parliament
and the devolved Parliaments and Assemblies has to be examined for conformity with
the Convention.  This has not prevented legislation from being found to be in breach of
the Convention, but it is a check in the legislative process and the ability of Parliament
to legislate is more transparently constrained.  Secondly, the executive (at both
central, devolved and local government level) has to take the Convention into account,
although sometimes in a way that has rightly been the subject of ridicule.  Thirdly,
although a detailed analysis of the effect of the Human Rights Act upon the position of
the judiciary would require a lecture in itself, there are powerful views that this has
limited the autonomy of Parliament.1

I will content myself merely by saying that within a domestic context the courts have
had to make decisions on a much broader range of issues, interpreting legislation and
adjudicating upon the acts of the executive in a way that could not have happened
prior to the coming into force of the Human Rights Act.

But there is another complicating factor which I must briefly mention under this
heading.  Much of that decision-making by the Courts of the United Kingdom has been
made, as the Act requires, by taking into account the jurisprudence of the Court in
Strasbourg.  For the Act did not require the courts to follow the jurisprudence of the
Strasbourg Court, merely to take it into account.  This is a curious facet of the new
structure of our governance, for whereas the United Kingdom as a State is bound to
apply a decision made by the Strasbourg Court, the courts of the United Kingdom do
not have to apply the decisions in deciding what our domestic law is.  A number of
decisions of the House of Lords made clear that although the courts of the United
Kingdom would generally follow the decisions of the Court in Strasbourg in interpreting
the Convention, they were not bound to do so.  The Supreme Court has recently
refused to follow a decision of a Chamber of the Court in Strasbourg.  That has settled
the domestic law of the United Kingdom.  But if the Grand Chamber of the Strasbourg
Court affirms the earlier decision of one of its Chambers and disagrees with our
Supreme Court, the United Kingdom, if it does not amend its legislation, may be in
breach of the treaty obligations.

2 Devolution
It would be otiose for me to say much on the subject of the asymmetrical devolution
that followed in the three Acts in 1998.  It has created a governance structure within
the United Kingdom of some complexity.  The broad division of power to be found in
many early constitutions and indeed those contemplated in the Devolution Conference
of 1920 for the United Kingdom, was not adopted.  Instead the devolution of powers to
each of the three nations were different, as embodied in the complex 1998 legislation.
As is well known, the legislation for Wales began with one form of governance
structure being provided for, but ended and finally passed with a different structure.  It
needed amending in 2006.  I do not need to spell out that the structure for Wales is of
immense complexity and very difficult, even for a lawyer, to understand.  Any reader of
the excellent chapter 3 in the Report of the All Wales Convention chaired by Sir Emyr
Jones Parry can see the problems.  We have, in short, a system of devolution in the
United Kingdom which is exceptionally complicated and Wales has the most
complicated part of that system.

See for example Sir Patrick Elias’s Renton Lecture to the Statue Law Society entitled “The rise of the
Strasbourgeoisie: judicial activism and the European Court of Human Rights”.


3 Constitutional Position of the Judiciary
In 2003 a decision was taken to reform the office of Lord Chancellor and change the
structure of the governance of the judiciary.  The reforms were carried through partly in
a Concordat, made between the Lord Chancellor and the Lord Chief Justice of
England and Wales in 2004 and laid before Parliament and partly in the Constitutional
Reform Act of 2005.  Those reforms were carried further by a Framework Agreement
made between the Lord Chief Justice and Lord Chancellor in 2008 creating joint
judicial and executive control over Her Majesty’s Court Service, the entity which
provides the court administration.  Although these changes apply to England and
Wales, the position in Scotland and Northern Ireland has broadly followed the changes
that have occurred in England and Wales.

The judiciary of the United Kingdom had since the constitutional struggles of the 17th
Century, unlike their counterparts of much of continental Europe for much of that time,
seen themselves as independent of the legislative and executive branches of the
State.  Indeed Montesquieu based his classic division of the State into three powers or
branches on the model in the United Kingdom.  Nonetheless the role of the Lord
Chancellor, primarily in his capacity as head of the judiciary and a Cabinet member,
ensured that there was a close and clear link between the two branches of the State.
Although the Constitutional Reform Act of 2005 made the Lord Chief Justice of
England and Wales the head of the judiciary, the provisions of the legislation and the
Concordat underlined the continued need for a sensible working relationship.
Nonetheless the Act has brought about a subtle change in the position of the judiciary.
Although it is clear that prior to 2003 the executive often found the decisions of judges
exasperating at that time (as the Lord Chancellor never thought to influence judicial
decision-making), there is a clear perception that the judiciary is more independent, as
disputes of a wider character are increasingly brought before the courts for decision.

But as in the case of the Human Rights Act there is a complicating factor – the position
of the Tribunals; this is of particular relevance to Wales.  Although it had been
envisaged, at the time the Concordat was agreed in 2004, that the tribunals would be
brought within the same constitutional arrangements as applied to the judiciary (as this
would at least have produced a simpler and more efficient structure), a decision was
made that the tribunals would have their own separate structure. This involved
reforming the existing structure and creating a new structure under the Tribunals,
Courts and Enforcement Act 2007.  The Tribunals Service was created as a mirror
image of the administrative service provided by Her Majesty’s Courts Service in April
2006 but has remained an agency under executive control.  The Senior President,
although a judge within the structure of the governance of the judiciary, has his own
separate obligations and powers over tribunals.  However, unlike the position in
continental Europe, there is no separate Supreme Administrative Court, as at the level
of the Court of Appeal and Supreme Court the systems come together.  I shall return
to the complexity this has created in Wales in a moment.

4 The Lisbon Treaty
I turn finally to the fourth major change – the Lisbon Treaty.  The governance
arrangements for the European Union and the relations between the Member States
have been set out in a series of treaties.  The current series of reforms to the original
Treaty of Rome began with the Maastricht Treaty in 1992.  This created the European
Union, the Euro and what was known as the pillar structure of the European Union.
The first, the European Community pillar originated in the Common Market created by
the Rome Treaty to which we acceded in 1972, the second pillar was Foreign and
Security Policy and the third pillar Justice and Home Affairs.  That treaty was amended
by the Amsterdam Treaty of 1997 and the Nice Treaty of 2001 and then by the Lisbon

It is quite impossible in this talk to deal with the current status of the European Union
at any length following the entry into force of the Lisbon Treaty on 1 December 2009.
In summary it has put in place a more powerful European Parliament, a uniform
structure for binding decision-making and legislation on areas of EU competence, and
removed the need for the pillar structure.  It provides that the EU and Member States
in the application of EU law must act consistently with the Charter of Fundamental
Rights of the European Union which mirrors but does not replicate the European
Convention on Human Rights.  The United Kingdom has secured an extension to its
power to choose whether to opt in to measures to include criminal justice and the dis-
application of the Charter of Fundamental Rights to actions it takes in implementing
EU law.  One of the obvious and I must say one of the most difficult issues in the
operation of the European Union is the inter-relationship of the Charter of
Fundamental Rights and the European Convention on Human Rights, each of which is
interpreted by a separate court.  The former, the Charter, being interpreted in
Luxembourg and the latter being interpreted by the Court at Strasbourg.

Thirty years ago Lord Denning observed:
“The flowing tide of community law is coming in fast.  It has not stopped at the
high water mark.  It has broken the dykes and the banks.  It has submerged the
surrounding land so much so that we have to learn to become amphibious if we
wish to keep our heads above water.”
I have no doubt that 30 years ago Lord Denning was overstating the position, but the
impact of treaties culminating in Lisbon means that what he said then is certainly true
today.  Many may not comprehend the scale of the change or its implications, but no
one who does can fail to appreciate the significance of the role of the institutions in
Brussels in the making of law as it affects us.

This somewhat “whistle stop” tour in the changes in our governance structure will, I
hope, demonstrate that over the last 12 years there has been a step change in the
complexity of our governance structures.  Now is neither the time nor the place to
examine the process for these types of major changes and reform to our structure of
governance; for those interested, it was reviewed from the standpoint of a judge by Mr
Justice Beatson, who has superintendence of the Administrative Court here in Cardiff,
in his very illuminating Blackstone Lecture in 2009.

But it is, I think, important to make three points of particular importance to Wales.

First it is extremely difficult to ensure that an important matter does not fall between
these various changes.  A timely and important example of what can happen is
provided in the report of the committee chaired by Sir Adrian Webb on Tribunals in
Wales.  The position of tribunals in Wales has been affected by at least three of these
changes.  First, a tribunal, in determining rights between the citizen and the State or
between citizen and citizen must comply with the provisions of Article 6 of the
European Convention on Human Rights in being impartial and independent; that
means it must be independent of the executive and legislative branches of the state.
Second, although the courts in Wales are part of the unified judicial structure of the
courts of England and Wales governed by the Constitutional Reform Act 2005 with the
administration provided by Her Majesty’s Court Service under the Framework
Agreement entered into between the Lord Chancellor and the Lord Chief Justice,
some of the tribunals as identified in Sir Adrian’s report are not within the Tribunal
Services which operate under the 2007 Act; that Service, in any event, is not governed
by the revised constitutional arrangements agreed between the Lord Chancellor and
the Lord Chief Justice, but is a straightforward executive agency.  Third, as the
devolution arrangements for Wales in the Government of Wales Act 1998 and 2006
only delegated what are commonly referred to as the powers of the executive and
legislative branches of the State but not the judicial branch of the State, there is not in
Wales any judicial authority, akin to the judiciary of England and Wales which is
responsible for the courts, which has responsibility for the Welsh Tribunals.

It is not, I think, the least surprising that in this very complicated set of governance
arrangements something has fallen between them; the Welsh Tribunals plainly have.
However, it is a stark warning of the dangers that can occur through the creation over
a short period of exceptionally complicated governance arrangements.

Second, it seems to me that when further decisions are made about the scope and
extent of Welsh devolution, they must take into account the already complex
governance arrangements which affect the United Kingdom as a whole.  These
include the need for a clear separation between the judicial and executive and
legislative branches of the State, the effect of the United Kingdom’s adherence by
treaty to the European Convention on Human Rights (a living instrument being
developed by the Court in Strasbourg), the powers of the United Kingdom courts under
the Human Rights Act and the governance structure of the European Union as
embodied in the various treaties culminating in the Lisbon Treaty.  At present these
are a fixed part of our governance structure into which devolution within the United
Kingdom must be fitted.  This is not merely a statement of the necessity for simplicity
in the devolution arrangements and the avoidance of complexity, but a statement that
what is done must be looked at in the wider structure of the governance arrangements
that is now in place.

Third, it is important to have regard to the principles embodied in these changes such
as those which require a much clearer and transparent distinction between the judicial,
legislative and executive branches of the state.

I have moved in my last three observations from the first part of this lecture setting out
a description of the changes to our governance structure, to a plea which any lawyer
or student of governance would seek to make – that is a plea for clarity in the structure
of devolution in Wales.  This plea for clarity is not merely a plea that will help
legislators, the executive and lawyers work within a structure which eliminates
mistakes but, more importantly, is essential for democratic accountability.

It is, I hope permissible for me to observe that it is important that the public can have
some understanding of who is accountable for the decisions made so they can
exercise their democratic choice at the ballot box or seek to hold those who make
decisions for which they are not accountable at the ballot box, accountable in another
way.  For that purpose they need to know who is responsible for what.  Let me
illustrate the position.  It would take me far too long even to list the headings of the
activities over which the EU now has competence and is engaged in activity.  Some
are well known, such as agriculture, employment and social rights, the environment,
regions and local development, transport and travel and many aspects of business
and industry.  But I am not sure how widely appreciated it is that a very substantial part
of our ordinary law is now effectively made in Brussels – much of company law,
employment law, immigration law, environmental law and for the future, if the United
Kingdom decides to opt in, a growing body of criminal law.  However despite the
enormous influence in our governance structure and the obvious prospect of the
incremental increase and the power of the European Parliament, the turn out for the
European Parliamentary elections in 2009 was only 34.7%, down on the 2004 turn out
of 38.5%.  Similarly the devolved legislatures in the 2007 election varied between 63%
in Northern Ireland and 43.5% in Wales.  This would suggest that the significance of
the changes in the powers within our structure of governance have not been

So though the need for clarity may be obvious, what do I mean by clarity?  I do not
mean that I should make any suggestions (nor could I make any suggestion) as to the
powers the Assembly should have.  This is not a matter for me.  What I refer to is the
need for clarity as a long term goal in setting out what is devolved.

(1) Clarity in the structure of governance requires a plain and transparent
designation of areas where the devolved legislature and the devolved
executive have powers.  It must be comprehensible to the electorate and
practical to operate.  This necessarily requires a principled approach.  Although
the approach adopted in proposals put forward by the Speaker’s Conference
on Devolution in 1920 would have to take account of the more complex
functions of modern government, from a practical standpoint, the scheme of
distribution of powers had an elegant structure.  A scheme will necessarily
require the reservation of powers in many areas; again these should be clear
and comprehensible.  Though of course, political expediency has its place, the
lines, wherever practicable, must be drawn on general principle.

(2) The distinction between primary and secondary legislation is one that is very
difficult for many to understand; for example, some United Kingdom secondary
legislation, particularly that implementing legislation from Brussels or filling out
framework powers set out in a statute is more significant than primary
legislation.  As a means of distributing powers between governments, it
necessarily forms an exceptionally complex method.  That complexity is
compounded when the power to make secondary legislation is combined with
specific and often narrowly circumscribed powers to make primary legislation.
Furthermore there is, on analysis, little reason for maintaining the distinction
between primary and secondary legislation in a scheme of devolution for a
small country2 such as Wales overlain with complex governance structures at a
United Kingdom and EU level.

(3) The source and extent of the powers should be clearly set out in one
instrument, so that the legislative draftsman and the legislature know the
parameters within which they can act, the lawyer or administrator interpreting
those laws can find the enabling powers in one convenient place and the public
can have some understanding of the powers of the devolved institutions.

It is essential to remember that on top of or alongside any legislation (whether primary
or secondary) passed by a devolved legislature in Wales, there is inevitably a complex
mass of legislation produced by Brussels, some of which has direct effect, and the
mass of primary and secondary legislation applicable to the United Kingdom as a
whole or in England and Wales as a whole.  It surely cannot be too much to ask that at
the third level, the organisation of the governance arrangements laws are as simple as
possible and set out under a clear and principled scheme.  This is not to advocate, as
it is a political matter, that the National Assembly or Welsh Assembly Government be
given greater powers.  It is simply that whatever powers are conferred, if one stands
back and looks at what has happened, there is a need to simplify the structure of

I feel free to describe it thus given the title of the 2003 St David’s Day Lecture given by the
then First Minister.
devolved powers.  The aim should be to set them out clearly and in a principled way in
a basic law on which the governance of Wales is founded and which the people can

But if clarity can be achieved in this way, as it must, is there sufficient confidence in
Wales itself and by others looking at Wales that the Welsh people can exercise the
devolved powers Wales has or even greater powers?

The answer must be yes, there is sufficient confidence.

It is, I think, easy on this European island to overlook the enormous changes that have
occurred on the continent of Europe within a timescale that is only marginally longer
than the changes I have described in the United Kingdom.  By way of example, it was
only in 1989 that Poland ceased to be a communist state and by 2004 it had joined the
European Union.  As I was reminded in a visit to mark the 20th Anniversary of the
governing body of the judiciary in Poland at the end of February 2010, they were
celebrating the creation of an institution that had been formed in discussion with the
leaders of Solidarity, created shortly after the fall of communism and which formed an
important governing organ of the Polish State.  Similarly Slovenia, a country of some
two million people, became independent of Yugoslavia in 1991 and again joined the
European Union in 2004.  A visit to the governing institutions of either of these two
countries demonstrates how vibrant and mature a governing system each has
developed in a very short time.  Each is confident in its own governance arrangements
and makes a real contribution to European affairs.  For example, Slovenia held the
Presidency of the European Union for the first six months of 2008 and the Presidency
of the Council of Europe in 2009.

I mention these two states to illustrate that confidence in the ability to develop,
administer, legislate and adjudicate in a State subject to the massive changes the ex-
communist States have had to endure, can be achieved within a relatively short
timescale.  But the question then must be asked, “What is it that has created that
confidence that plainly exists in states that have undergone such change?”

Those of you who may have read the outstanding report by the All Wales Convention,
may possibly have noted that in a seminar at which I spoke on 17 April 2009, I spoke
of five Cs.  I have looked at two of these so far, clarity and confidence, and I now wish
to turn to the other three, capability, capacity and career paths, as I believe that within
whatever form of devolved government for Wales the public and the politicians agree
on, internal and external confidence must exist.  But what is it that builds confidence?

I turn first to capability from the only perspective about which I can truly speak, namely
the making of laws and the delivery of justice, where the requirement is obvious.  For
example, as is clear from the former communist states of Eastern Europe, a market
economy must be underpinned by a justice system that can serve the needs of that
market economy.

It is, in my view, essential that there are the broad range of capabilities necessary to
service that system of governance, legislation and administration which our system of
governance and market economies demands.  My father was a solicitor in
Ystradgynlais.  When he was admitted as a solicitor in the 1920, he was examined on
the whole of the laws of England.  When, during the Spanish Civil War, he was
consulted about the effect of the Foreign Enlistment Act, that was something he knew
about.  He was able to combine a very broad range of work and official duties.  That
kind of sole practitioner has long gone.  Indeed over the past decade the pressure for
specialisation has increased enormously and there has been a greater tendency to
seek advice only from the real specialist in the field.  This necessarily presents an
enormous challenge to the smaller city or the smaller country, but it is one which a
vibrant profession and body politic must always have in their sights.

Does that capability exist in Wales?  The answer in my view is plainly, Yes.  However,
there is still a tendency for many to seek advice unnecessarily in London.  This
undoubtedly contributes to the sapping of confidence, distributes resources outside
Wales and discourages further development. Everyone, those in government and in
business, ought to make an effort to appreciate there is the capability in Wales and
use that capability because the use of that capability enhances confidence.

Not only is it necessary to have the broad range of capabilities of which I have spoken
but there must also be the capacity, not only in numerical terms but the ability to
understand the milieu in which they work.  It is self evident, in my experience, that you
cannot be a good commercial lawyer unless you understand that part of commercial
life in which you advise.  Similarly it is essential if you are a government lawyer that
you understand and work within that area of policy and administration for which the
department in which you work is responsible.  You will no doubt have read from time to
time judicial criticism of Westminster legislation for its lack of clarity or impracticability;
it is not perfect.  I believe that is in part due to the lack of capacity of some who
prepare our legislation in the Departments of State or who draft it in failing to acquire
and master the necessary understanding of the area of work in which they are

Does the capacity exist in Wales?  The answer again is that it plainly has the capacity
– for example it is drafting good legislation.  Indeed the legislation that is drafted in
Cardiff is at least the equal of that drafted in Whitehall.

Career paths
When devolution for Wales was considered in 1920, the Permanent Secretary in what
was then the Lord Chancellor’s Department (now the Ministry of Justice) in advising
against devolution (which was then intended to include the judicial system) drew
attention to the fact that the able lawyer would always seek his career in London.
“The chief injury, however, which such a separation would entail would be upon
the individual Welshman. The history of the English and Scottish Bars and
Bench shows that, however strongly national sentiment may operate, there will
always be a tendency for the aspiring lawyer to come where the biggest prices
are offered.  The career of Lords Erskine and Brougham in the past and Lords
Loreburn, Haldane and Finlay in the present are instances of this.  It may
therefore be anticipated that the young Welshman, if he can, will come to
London and that Wales and the Welsh Bench and Bar will be the poorer for his
The centralised system of justice and the ever-increasing demands of specialisation
have made this factor one of greater importance.  If levels of service sufficient to
underpin a modern structure of devolved government are to be maintained, then an
attractive career path must be available.

Does Wales have those career paths?  This is a question, even though the devolution
of the judicial system is not contemplated, to which, as foreshadowed in 1920, we
must give more attention.

May I conclude by saying that I have little doubt that Wales, taking the comparators of
Eastern Europe to which I have referred, can command the outside confidence and
has the internal confidence properly to operate the present system of devolution and
any future system of devolution that is contemplated.

However, as I have endeavoured to explain, our governance structures in the United
Kingdom have a complexity of such proportions that when consideration is being given
to devolution, it is essential to move to a structure based on principle which is as clear
and as simple as possible.   We are bound by the complex governance relations at the
level of the United Kingdom to which I have referred.  It follows that from a practical
standpoint nothing other than a scheme of devolution, whatever powers are devolved,
which is clear and based on based on principle will work in the longer term.

Perhaps, if  the people of Wales can bring about that clarity and adherence to principle
in the system of governance in Wales, it can be demonstrated, beyond contradiction
that there is, a clear confidence, capability and capacity in Wales akin to that shown in
the other nations of Europe.

Lord Justice John Thomas

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