Theodore Huckle QC considers how to achieve a stable devolution settlement for Wales.
As the fourth Assembly comes to a close, the path of devolution remains one paved with unresolved issues between the Welsh and UK Governments. It seems a natural time to pause and reflect on a period in which legal difficulties have been very prominent.
In 2011 the complexities of the Welsh system of devolution had not fully emerged and were not widely understood. Five years, 28 Assembly Acts and three visits to the Supreme Court later, they have become all too clear.
Devolving power to Wales in modern times has inevitably involved a number of compromises both between and within political parties. These compromises were reflected in the very limited system of devolution proposed in 1997. The powers transferred to the Welsh Office in the 1960s form the foundation upon which our current system of government is built.
Since the creation of the National Assembly for Wales we have had two Commissions, a Convention, three Acts of Parliament and most recently two draft Bills, all seeking to improve the system. We have had three systems of law-making and three names for the government.
My time as Counsel General has shown me how complicated and incoherent the powers conferred by our current system of devolved government can be. There are often tensions between good government and policy making, on the one hand, and what appears sometimes to be an arbitrary line between what is devolved or not, on the other. This experience has proved to me that the time has come for a clear and sustainable devolution settlement for Wales.
The National Assembly and Welsh Government have significant powers and considerable autonomy in many subject areas; education, social services, housing and health being the most obvious examples.
Within such subject areas the National Assembly can legislate effectively, as the comprehensive Legislative Programme of the current Welsh Government demonstrates. This achievement is not to be dismissed. I have often said that the things that are most important in the daily lives of citizens in Wales are now principally governed for Wales, by Wales, in Wales.
However, it is far from a democratic panacea, and it is universally accepted that the complexities of the current system lead to significant problems of proper administration and governance.
For Ministers to take good decisions, for the National Assembly to pass effective laws, for political parties to know that they can deliver what they promise to the electorate, and for business to flourish, a clear and coherent constitutional context is essential.
And this is lacking for the following reasons.
The powers of the National Assembly and Welsh Government are limited in scope, considerably more limited than any similar devolved or federal systems within the UK and, more broadly, in the common law world; and they are lacking in essential fairness and coherence. Interconnections and interdependencies in policy terms between those matters expressly devolved and particularly those that are silent in the Welsh devolution settlement, such as policing, prisons, probation, and family law, make the current system unstable as there is considerable potential for conflict
Even within these limited devolved powers there are further constraints through which the UK Government seeks to exert still greater control. The most obvious and significant example of this is the requirement that Welsh laws require the consent of the UK Government if they modify or remove UK Government functions. The very incremental manner in which Whitehall functions were transferred to Cardiff means that there are an unknown number of such functions in devolved areas, blurring the lines between what is devolved and what is not, and creating further instability in the system.
The system is overly complex and there is a lack of clarity about what is and isn’t devolved, including in relation to legal mechanisms fundamental for a legislature to be able to legislate effectively. Wales is part of a single legal jurisdiction. Scotland and Northern Ireland have their own legal systems within separate jurisdictions. The Welsh devolution settlement is essentially silent on the private and criminal law, which are vital mechanisms through which government policy is often delivered. Again this increases the scope for conflict and further de-stabilises the settlement.
The former Secretary of State for Wales, Stephen Crabb, has spoken of the need for a stable and long lasting devolution settlement for Wales.
But simply ‘flipping’ to a reserved powers model (let alone actually rowing back on the devolved competence) would mean papering over the cracks.
There is widespread consensus – in Wales at least – on a solution. That solution is based on the work of the Silk Commission and the National Assembly’s Constitutional and Legislative Affairs Committee, whose report was unanimously approved. It is consistent also with the excellent analysis of the group of academics, former civil servants and practitioners convened by the Wales Governance Centre and the Constitution Unit at UCL.
The solution is to devolve more power over domestic matters, including policing and the justice system, to a renamed Welsh Parliament; transfer UK Ministers’ powers in devolved areas to the Welsh Ministers so their powers correspond to the powers of the Parliament; and create a distinct Welsh legal jurisdiction and distinct body of Welsh law to make devolution truly effective.
The Welsh Government sets out this solution it its draft Government and Laws in Wales Bill, which outlines our vision for a clear, stable and long-lasting settlement.
It was recently published as a constructive contribution to the development of Welsh devolution, and to assist the Secretary of State and the UK Parliament when they consider how the settlement should be improved. It shows what is possible if the aim is to express the settlement from a starting point of clarity and constitutional principle – as I believe we must.