The symbolism and practicality of Welsh sovereignty

John Osmond says we need a Welsh jurisdiction to penetrate the pea soup that is preventing devolution from working properly

The publication this week of the Welsh Government’s consultation document A Separate Legal Jurisdiction for Wales is an historic moment in our country’s history. Following on from last year’s decisive referendum vote on primary legislative powers for the National Assembly, it is a signal of a rapidly developing Welsh legal personality.

Why is this so significant? There are two reasons – one symbolic – and never underestimate the importance of symbolism in the life of a nation – and the other much more practical. Consider the symbolism first. What we are witnessing is the steady repatriation of sovereignty to the people of Wales. Sovereignty is bound up with power and who exercises it. And power in civil terms at least – keeping the force of arms out of it – is intimately connected with the rule of law.

The consultation document is clear about this when it summarises the history of the matter, going back to the conquest of Wales. This was when Welsh sovereignty was so brutally removed by the death in battle of Llywelyn ap Gruffydd, our last prince, probably at Aberedw in Powys, on 11 December 1282. The consultation document makes no direct reference to this, but states:

“Prior to the conquest of Wales by Edward I of England in 1282-3, Wales and  England were separate countries with different laws and legal traditions. In 1284 the Statute of Rhuddlan introduced the English common law system to Wales, although some differences remained in civil law, including the Welsh practice of settling debts  by arbitration, and the rules on inheritance whereby a man’s land would be divided  equally amongst his sons after his death, rather than passing to the eldest.

“The legal jurisdictions of England and Wales were merged by the Laws in Wales Acts 1536 and 1542, which created a common legal jurisdiction across Wales that  applied English law exclusively. The surviving Welsh laws were abolished. The Acts provided for Welsh representation in Parliament, and established a new system of courts in Wales, known as the Courts of Great Sessions.”

So in this question of establishing a Welsh jurisdiction we are picking up the reins of our sovereignty from the 12th and 16th Centuries. That is the powerful nature of the symbolism. No doubt it explains the knee-jerk reaction of the Conservative Secretary of State for Wales, Cheryl Gillan, when she so airily dismissed the notion a few days ago, declaring, “The current system for England and Wales has served Wales well for centuries.”

Whether that has been so in the past is arguable, but Cheryl Gillan is certainly wrong now, and here we come to the practical argument. The consultation document sets out the issue in the following terms:

“Devolution works differently in Wales and Scotland. The Scottish Parliament has general legislative competence, which means it can pass laws in relation to any subject, provided the subject is not specifically reserved to the UK Parliament. The Assembly has defined legislative competence, which means it can pass laws only in relation to subjects that have been specifically devolved to it.

“At the time of the passage of the Government of Wales Act 2006, it was suggested that the defined powers model was the most appropriate form of devolution for Wales, because the shared England and Wales legal jurisdiction made a wider ranging settlement like Scotland’s unworkable. It is sometimes said that because of this a separate Welsh jurisdiction would be a necessary part of any new, wider devolution settlement.”

At the time of the 1998 Wales Act, more than 5,000 different functions for the National Assembly were drawn together from existing pieces of legislation and placed in a Transfer of Functions Order. Since then, many more additions and alterations have been made by subsequent Transfer Orders, new legislation and amendments to legislation. The result has been the creation of a quagmire in which it is difficult, even for legal experts, to determine what functions the National Assembly has in any particular field. For the ordinary person, and even for most Assembly Members, it is often impossible to work out precisely what the Assembly’s powers are. As the constitutional expert Professor Keith Patchett put it in his contribution to the IWA’s 2003 collection of essays Birth of Welsh Democracy:

“Keeping track of the instruments used for conferring functions and ascertaining whether or in what form a function exists, as well as any statutory constraints as to its exercise, present real problems for the user.”

In short, the quagmire of the Assembly’s powers contributes most of what Sir Emyr Jones Parry, chairman of the All-Wales Constitutional Convention, called the “fog of understanding” that surrounds devolution.

In fact, the cause of much of the fog is not so much what the Assembly is empowered to do, but discovering what it can’t. The National Assembly’s powers are listed in a number of Schedules to the 2006 Wales Act. At the same time, however, ‘Exceptions’ to these powers are listed in Parts 1 of Schedule 5 and Schedule 7 to the Act. In addition, and even more opaquely, Part 2 of Schedule 7 lists ‘General Restrictions’. It is these that cause the fog to become pea soup. They prevent the National Assembly trespassing, through legislation, on the functions of a Minister of the Crown exercisable in Wales, unless the Minister consents. However, and bizarrely, Welsh legislators cannot even find a list of these ‘Restrictions’. The many and various UK Ministerial functions which have the potential to impact on the Welsh Government’s decision-making simply crop up from time to time, as a kind of bear trap for our legislators.

A good example was when, in the last Assembly, there was an attempt to pass a Legislative Competence Order allowing the Welsh Government to pass into law a Measure requiring seat belts to be fitted to school buses. This had been proposed following a tragic accident in the Vale of Glamorgan. However, it became clear that  it would require the agreement of the Department of Transport, and this was not forthcoming. The requirement to fit seatbelts in buses remained a Ministerial power, albeit one that this was not immediately obvious from a reading of the ‘Exceptions’ under the Highways and Transport Field in Part 1 of Schedule 7 to the 2006 Wales Act.

Issues of this kind have to be dealt with on a case by case basis even though the National Assembly now has primary legislative powers following the referendum. They are a reflection of the disadvantages of the Assembly’s powers being conferred in specific detail, and often subject to specified exceptions, rather than everything being devolved in broad terms, as is the case with the Scottish Parliament. There is a considerable difference between Scotland being able to legislate on everything unless it is specifically prevented from doing so, and Wales not being able to legislate on anything unless it is given the specific power to do so.

While the 2006 Act sets out exceptions to its stated powers, the uncertainty lies in the lack of clarity in knowing what powers UK central Government Ministers retain in devolved areas in relation to Wales. As I say, there is no agreed statement of these powers. The problem was illustrated again by the Assembly’s wish during the last session to legislate to prevent the smacking of children. There would have been a legal sanction imposed against smacking. However, in the absence of an agreed list of UK central Government functions exercisable in Wales, the criminal law was claimed by the Attorney General’s Office in Westminster as a matter entirely for UK Government Ministers in relation to both Wales and England. Yet this overlooked the express powers of the Assembly to create criminal sanctions to underpin its legislation of up to two years imprisonment or up to a £6,000 fine.

What is the relevance of a Welsh jurisdiction to all of this? Put simply, Wales did not follow the simpler Scottish model for devolving powers because we are incorporated in a single England and Wales jurisdiction. This was stated in terms in November 2006 in a Joint Memorandum from the then Secretary of State for Wales, Peter Hain, and then First Minister, Rhodri Morgan, to the Welsh Affairs Committee, which is also cited in the Explanatory notes to the 2006 Government of Wales Act. As they stated:

“If the Assembly had the same general power to legislate as the Scottish Parliament then the consequences for the unity of the England and Wales legal jurisdiction would be considerable. The courts would, as time went by, be increasingly called upon to apply fundamentally different basic principles of law and rules of law of general application which were different in Wales from those which applied in England. The practical consequence would be the need for different systems of legal education, different sets of judges and lawyers and different courts. England and Wales would become separate legal jurisdictions. … In order to avoid this result the simplest solution is to follow the Scotland Act 1978 model, limiting the legislative competence of the Assembly to specified subjects.”

Of course, as a result of the outcome of the March referendum we have taken a major step in the Scottish direction since the National Assembly can now enact primary legislation in its areas of responsibility without first having recourse to the Westminster Parliament. What we need now is the same “general power” to legislate as the Scottish Parliament, without all the encumbrances of the ‘Exceptions’ as laid down in the 2006 Act, and the bear traps of UK Ministerial prerogatives.

In short we need to assert the essential sovereignty of the people of Wales as represented by the National Assembly and its primary powers that were approved in the 3 March referendum. But to achieve that we will first need to establish our own distinctive legal jurisdiction. That is why this week’s launch of the Welsh Government’s consultation on the matter is so important.

John Osmond is Director of the IWA.

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