On the 25th anniversary of the Government of Wales Act, Sir Paul Silk, one of the architects of devolution in Wales, looks back at its history.
On 31 July 1998 I joined a group of exhausted civil servants and exhilarated politicians on the terrace of the Houses of Parliament. We were celebrating the Royal Assent given that day to a Bill ‘to establish and make provision about the National Assembly for Wales and the offices of Auditor General for Wales and Welsh Administration Ombudsman; to reform certain Welsh public bodies and abolish certain other Welsh public bodies; and for connected purposes’ – the Government of Wales Act 1998.
At the time, I was a Commons official and had been the Clerk in charge of the Bill, watching its progress and advising the Chair on procedure and MPs of all parties on their amendments. I had seen how the Bill had been radically altered and much improved as it passed through Parliament, but I also knew very well that the settlement it purported to give to Wales was inherently unstable and would not last.
Getting a foot in the door of self-government for Wales was, however, a massive achievement for which Ron Davies deserves great praise. He was a consummate political operator, negotiating the minefields of a Labour Party where many of his colleagues were sceptical and some positively hostile.
But what he managed to secure in that 1998 Act was never going to work successfully, and so it proved. The powers of the original National Assembly were pitiful and its responsibilities incoherent, while the lack of separation between executive and parliamentary functions was naïve and fatally flawed.
Rhodri Morgan knew this and in 2002 set up the first of several commissions that would move the so-called “settlement” onwards – the Richard Commission, chaired by Ivor Richard. That commission recommended primary legislative powers for the Assembly, a change to the “reserved powers” model enjoyed by the Scots, a separation of the legislature from the executive and the possibility of a tax-varying power.
The UK Labour Government responded with the Government of Wales Act 2006 – designed to give the Assembly enhanced powers “gradually over a number of years” with a complicated process under which the Assembly shared legislative functions with Westminster. The Act also offered the prospect of primary legislative powers, but only after a high referendum hurdle had been jumped. The 2006 Act also separated the executive from the legislature.
Another Commission followed – the All-Wales Convention chaired by Emyr Jones Parry and reporting in 2009. That commission suggested that the devolution settlement was not well understood, but that a referendum on primary powers was winnable.
In 2010, much earlier than had been expected, the referendum process began when 53 AMs voted in favour and none against. The referendum held on 3 March 2011 endorsed primary legislative powers for the Assembly, with 63.5% of the electorate voting in favour (a welcome jump from the tiny majority of the 1997 referendum).
In consequence, in 2011 the Conservative/Lib Dem coalition UK government, backed by all parties in the Assembly, established the Commission that I chaired from 2011 to 2014. We produced reports in 2012 on financial powers for the Assembly and on wider constitutional arrangements in 2014. Many – but certainly not all – of our recommendations were then brought into force by the Wales Act 2014 and the Wales Act 2017 passed by the UK Parliament.
Fiscal powers were given under the 2014 Act, and there is now a modest suite of Welsh taxes – and a rather constrained power to vary income tax in Wales. But one of our recommendations (on devolving justice) was a step too far for Whitehall and Westminster. Even when a further Commission, appointed by the Welsh Government and chaired by John Thomas, the former Lord Chief Justice, reported on the issue in 2019, London was not persuaded to move. This remains unfinished business.
Another flaw in the 1998 arrangements is closer to being ended: in 2017, an Expert Panel commissioned by the Assembly produced a report entitled A Parliament that Works for Wales. This recommended an enlarged parliament elected by a fairer system and, after some acrimonious debate, this will soon come to pass. Meanwhile the Assembly passed the Senedd and Elections Act (Wales) in 2020 to change its name.
In late 2021, the Independent Commission on the Constitutional Future of Wales was set up to look more widely at the way our country is governed. It has wise chairs in Rowan Williams and Laura McAllister, and excellent members. But it is not doing its work in particularly propitious circumstances. That is because any further constitutional change for us in Wales is largely dependent on London.
Mark Drakeford recently characterised the UK Conservative Government as ‘hostile to devolution’ and so damaging the Union, with the Sewel Convention (under which the UK Parliament will not normally legislate in areas that are the Senedd’s responsibility) frequently not being honoured. The Internal Market Act 2020, one of the consequences of Brexit, has been particularly problematic. Meanwhile, the UK Labour Party has shown few signs of urgent ambition for radical constitutional change for Wales.
Perhaps we are stuck in constitutional limbo (limbo was originally a term for the edge of hell). Indeed, the academics Kevin Morgan and Richard Wyn Jones have recently and gloomily prognosticated that we may be looking at a period of stasis where no-one defends the constitutional status quo, but no alternative is possible.
I am more of an optimist. Thinking back to that summer evening 25 years ago, I am struck by how few of us on the Terrace that night could have imagined that we would be where we now are in Wales a quarter of a century later, or at how much change would be achieved. I have learned my lesson. Imagine an ambitious future and doggedly work to achieve it: dyfal donc y dyr y garreg.
But, as a constitutional nerd, I also must remember that constitutional change is not an end in itself. Its purpose is only to ensure that we have better and more accountable government that enhances the life of all our citizens.
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