Fred Till reflects on the recent “Wales Said Yes” conference, and the future of Wales’ relationship with devolution
“Good morning, and it is a very good morning in Wales”. Those were the words of then Secretary of State for Wales, Ron Davies, on the 19th September 1997. The previous day Wales had voted in a constitutional plebiscite to establish a National Assembly for Wales, ushering in a new form of multi-scale governance for the United Kingdom. The result was tight, very tight, with just 50.30% voting in favour of Welsh devolution; Carmarthenshire tipping the delicate electoral balance. In the past twenty years there has been a steady expansion of devolved powers and structures in Wales. Notable strides were made in the Government of Wales Act 2006 which separated the Welsh Government (then Welsh Assembly Government) from the Senedd, thus creating the important distinction between the executive and the legislative bodies. A further referendum held in 2011, with 63.49% of voters granting the Assembly full law-making powers within devolved legislative competencies. The Wales Act 2017 confirmed the constitutional permanence of the Welsh Assembly and Government, which recognises as distinct a body of Welsh law and moves Wales from a conferred powers to a reserved powers model meaning that, as in Scotland, only matters explicitly reserved by the UK Government are not within the competence of the Welsh Government.
This potted history is probably well known by many (Click on Wales/Welsh Agenda) readers, but it is a time to reflect on how far we have come since the heady days of the New Labour 1990s, not least because a generation has grown up with little political memory before the dawn of devolution. As a child of this millennial generation I was curious to attend the IWA’s conference, “Wales Said Yes”: 20 years since the Welsh Devolution Referendum”, to hear the perspectives and reflections of the ‘Cardiff Bay bubble’, those who have studied and participated in this still new era of Welsh politics from the beginning.
In the first panel discussion of the morning, IWA Director Auriol Miller discussed the 1997 referendum with Leighton Andrews and BBC Cymru’ Politics Reporter Bethan Lewis. Andrews recalled the planning for the devolution referendum within the Labour Government, the Wales Office White Paper entitled “A Voice for Wales”, the Cabinet Committee convened by Peter Mandelson to establish the principles for the referendum and the critical role Ron Davies played in the Yes campaign. The closeness of the final result took many by surprise at the time, it was noted, with the resurgent sense of ‘Britishness’ caused by the death of Diana, Princess of Wales, credited with narrowing the polls in favour of the No campaign. Andrews considered the affirmative results of the referendum on establishing a Scottish Parliament held the week before the Welsh plebiscite to have been a final boost for the Yes camp in Wales, which benefitted from a perception that the Welsh did not want to get left behind whilst Scotland developed greater political autonomy. This was in the context of a far stronger consensus in favour of devolution across Scottish society following the 1989 constitutional convention. Wales had no comparable process. Scotland has retained a distinct legal system and (as a member of the audience pointed out) a far more recent, modern, historical memory of statehood. For Wales, the modern formation of distinct political institutions and law is only a result of the devolution process, with the last twenty years representing a very new and unprecedented constitutional experience.
That Welsh devolution is very much unfinished business was highlighted by the keynote address from Carwyn Jones. The First Minister listed some of Welsh Labour’s successes in Government, including the opt-out organ donation system for NHS Wales, a coastal path spanning the entire Welsh coastline and the expansion of Welsh as an official language. He also celebrated the raised international profile of a Wales, now able to host major international events such as the Champions League final (surprisingly he didn’t mention the 2014 NATO Summit). Devolution had led to Wales being on the brink of having its own “law-making, tax-raising Parliament.”
Yet he also acknowledged the challenges Brexit posed to the Welsh devolution settlement, reiterating the Welsh Government’s opposition to the UK Government’s EU Withdrawal Bill as it is currently drafted, arguing that it damages the constitutional presumption of reserved powers by transferring competencies from the EU, in areas such as agriculture, to UK ministers rather than to their devolved counterparts. The following day the First Minister and Nicola Sturgeon jointly published thirty-eight proposed amendments to the EU Withdrawal Bill, which included the requirement that the consent of Welsh ministers be given to any provisions made by a UK minister were those provisions to fall within the devolved competence of the Welsh minister. As it stands, Mr Jones and Ms Sturgeon believe the powers conferred on UK ministers by the EU Withdrawal Bill would violate the Sewel Convention whereby amendments to statutes “containing the principles of the devolution settlements” are made by Parliamentary legislation with the consent of the devolved legislatures. In his speech to the conference, the First Minister also noted that equality of recognition between the devolved nations was essential to the future constitutional stability of the United Kingdom post-Brexit, proposing a consultative UK Council of Ministers with parity of esteem.
However, his most significant declaration of constitutional ambition was the announcement that Lord Thomas of Cwmgiedd, outgoing Lord Chief Justice of England and Wales, has agreed to chair a commission to examine the Welsh justice system. The Thomas Commission may explore the devolution of criminal justice and policing to Wales, and even the possibility of a distinct Welsh jurisdiction.
The devolution of political responsibility for policing was recommended by the Silk Commission and the idea has growing support amongst the Welsh population, according to research findings presented to the conference by Prof. Roger Scully. It would be a significant change in British governance and could well be fiercely resisted by the Wales Office and Home Office, even if Lord Thomas were to deem the reforms feasible. The more radical possibility of a wholly or partially separate legal system would be a seismic development for Wales – moving Welsh political autonomy much closer to that enjoyed by Scottish politicians. It would also present an opportunity to resolve some of the confusions thrown up by the situation of the past six years with laws made by two separate legislatures within one jurisdiction. It is not an impossibility, as the First Minister noted, Guernsey has its own jurisdiction. Yes, the practicalities of implementing justice devolution would be complex but, more challenging for the Welsh Government and Senedd than the complexities posed by Brexit? Probably not. Authority of the Welsh Government over criminal justice may also afford a greater level of respect and attention to devolved governance and policy-making, including its challenges and failings, from the rest of the UK. Perhaps the most striking observation to be made about the announcement of the Thomas Commission and Mr Jones speech was that such a contribution to our constitutional debate received such little attention from London-based news media.
The verdict of the Welsh and British electorate in favour of exiting the EU has exposed and exacerbated massive political and social divisions, including within and between the regions and generations of Wales. Many in Wales have expressed alienation from a seemingly distant ‘political class’ and many, especially within my generation, have much to lose from a Westminster-led Brexit. Those like myself who want to see the durability, stability and continuity of the United Kingdom should welcome innovative ideas for future devolution.
One final reflection, Brexit, the likely emergence of a law-making Parliament and the prospect of justice devolution all risk a capacity crisis for our institutions. Wales needs better scrutiny, which should include more civil servants, more AMs, and greater power given to the Assembly Committees. Wales also needs more critique, less consensus and the end of a political culture where, sometimes, as Prof. Kevin Morgan phrased it, “constructive challenge is treated as disloyalty.” For this reason, I hope that the IWA will continue providing a space for constructive challenge and debate for another twenty years.
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