The unfinished business of Welsh devolution

The story of Welsh devolution since the establishment of the National Assembly for Wales in 1999 is, demonstrably, one of increasing public support for the principle of devolved government. It is also, in our view, a story of increasingly effective practice by both the legislative and executive branches of devolved governance. Paradoxically, this has been achieved despite rather than because of the constitutional arrangements that have underpinned our democratic institutions.

Thus far, all talk of a Welsh devolution ‘settlement’ has been more aspirational rather than accurate. The reality has been anything but stable. The 20^th Century saw the gradual development of administrative and, post 1964, accelerating executive devolution within a unitary British polity. This was fundamentally recast in a devolved democratic mould by the 1997 referendum, the ensuing Government of Wales Act 1998 and the creation of the National Assembly in 1999. In less than a decade even this new Welsh polity was re-shaped by the Government of Wales Act 2006, which half-opened the door to primary legislative powers. The door was more fully opened following the decisive affirmative vote in the 2011 referendum that brought into play Part 4 of the 2006 Act.

This latest move took place far sooner than had been originally envisaged, in part due to the manifest failings of the arrangements that existed under Part 3 of the Act. Despite all the speeches made and ink spilled trying to argue the virtues of the executive model and of Legislative Competence Orders, we would hazard that few if any of their then proponents would wish to return to them, or even be reminded of their previous enthusiastic endorsement.

Although only in effect for less than two years, there are already strong indications that the latest Part 4 arrangement – a ‘conferred powers’ model of legislative devolution – is proving problematic, prolonging many of the faults and flaws that characterised the architecture of devolved government in the period from 1999 to 2011.

Most obviously, the first piece of legislation passed by the National Assembly for Wales using its Act making powers was referred by the UK Government to the Supreme Court. It is widely reported that it was only the intervention of the Attorney General that halted the referral of the second piece of legislation. Even if the decision of the Court to uphold the Local Government Byelaws (Wales) Act 2012 may help to clarify the powers of the National Assembly, it has, nonetheless, been demonstrated that the new dispensation can cause significant problems.

In addition to being based on a constitutional architecture that expert opinion – almost universally – regards as flawed, the new dispensation does not address what might be termed the unfinished business of legislative devolution. Some of this is covered by what are sometimes termed the ‘Richard consequentials’. Having made the case for legislative devolution the Richard Commission argued that a 60-seat National Assembly was not large enough to scrutinise legislation and hold Ministers to account effectively. It recommended a move to 80 members elected by STV. The Richard case for increasing the size of the legislature remains compelling, and in the light of further extensions of competences even conservative. In addition, as pointed out by First Minister Carwyn Jones, the Welsh situation of enjoying legislative devolution without a separate legal jurisdiction is certainly anomalous and, arguably, problematic.

In our view it would be a mistake to judge too harshly the work of the constitutional architects whose efforts have thus far failed to provide Wales with a stable, sustainable devolution dispensation. While all politics may well be the art of the possible, this seems particularly true of the politics of Welsh devolution. Devolution has moved forward only at a pace and in a direction sanctioned by the country’s dominant political force and proponents of democratic reform (in all parties) have shown great skill and sensitivity in ensuring that considerable progress has been made.

It is also the case that doubts about the level of public support for devolution have acted as a constraint on progress. Although the weight of survey evidence amassed after 1997 suggested a very substantial growth in support for what an earlier generation termed ‘home rule’, the narrowness of the 1997 referendum result served to call into question the extent to which devolution was the ‘settled will’ in Wales.

Given this context it would be facile to be overcritical of the actors involved in the process of Welsh constitution making. Indeed, it is more appropriate that we applaud the political commitment, imagination and courage that has underpinned the development of a democratic tier of Welsh government. But neither should we gloss over or minimise the problematic legacy of a development process characterized by constant change and upheaval, and the triumph of pragmatism over constitutional principles.

We hope that the Silk Commission will feel emboldened to focus on mapping out a more comprehensive and stable dispensation, in circumstances that are particularly propitious for doing so, for three reasons.

• The first is the wide-ranging terms of reference the Commission has been given, that allow for consideration of the full range of elements required to create a sustainable and effective system of devolved government.
• The second is the endorsement of the Commission’s terms of reference by all the political parties in Wales as well as by the UK government. This is sure to imbue the Commission’s recommendations with particular authority.
• A third reason is that, following the referendum result in March 2011, the Commission is deliberating in a context in which the question of public consent for devolution has been definitively answered. The Rubicon of legislative devolution has been crossed, irrevocably.