A nation comes of age: what next for the Welsh devolution settlement?
By Callum Robertson (University of Essex)
Of the three legislative devolution settlements that currently exist within the United Kingdom, the one concerning Wales is arguably the most interesting in terms of sociological and legal study. Here we have a nation that was practically subsumed by England in the 1500s, taking a comparatively watered-down devolution settlement, and managing to turn govern in such a way that has led to ever increasing powers. It is these ever-increasing powers that form the premise of the question in this article. What next for the constitutional and administrative settlement in Wales?
In order to understand the next steps, we must turn to history in order to understand the context of the Senedd. From its foundation as a result of a positive result in the Welsh Assembly Referendum in 1997, the National Assembly for Wales has undergone a transformation from a glorified County Council, to a legislative chamber that has begun the process of codification, a move unprecedented in English and Welsh Law.
As a result of the Wales Act 2017, the National Assembly moved from a conferred to a reserved model of powers. A far cry from the original settlement in Wales and arguably the most far reaching change in any development of devolution settlements.
Referring to the Institute for Government paper Devolution at 20, it is unarguable that on a comparative basis, Wales has transformed the most out of the three legislative settlements. This undoubtedly stems from the more restrictive model of conferral that was used originally being developed into a reserved model. comparison to the reserved model. In layman’s terms, due to the restricted starting point, there was greater room for growing the scope of the devolution settlement.
Analysing the legislative development
Given the incremental change seen in the successive Wales Acts (1998, 2006. 2011 and 2017) that increased the powers of the National Assembly for Wales, it stands to reason that, public consent willing, the devolution settlement could be reshaped take on currently reserved powers. The question then stands to what areas could be devolved. This is where it seems pertinent to bring in the question of a separate complimentary legal system for Wales.
In terms of logical progression, there has been a somewhat incremental development of Welsh Law as an individual body. This is clearly evidenced by the qualified recognition of development in the Silk II report into devolution powers. Among its 61 recommendations there included the recommendation of the devolution of Youth Justice, Policing and Drink Drive limits, all of these issues, if devolved, point to a more rounded case for separate jurisdiction over Welsh Law.
Crucially, Silk II qualified in recommendation 28 that justice could be devolved if there had been the development of a distinctive Welsh Law in the succeeding 10 years. Though it should be noted that there was not complete consensus on this. A fair interpretation of this would be that the devolved legislature had made full use of its powers to develop a distinctive Welsh Law, thus necessitating the implementation of Silk II’s recommendation.
Arguably, since the release of Silk II in February 2015, significant progress has been made to shape a distinctive Welsh Law showing that the devolved legislature and the Government of Wales is making a sincere commitment to developing a distinctive area of Law for Wales. This in turn adds credibility to the argument for devolution of Justice in Wales. However, an area where there lacks development is the growth of a complimentary regionalisation of the court system to fully cater for the needs of a developed sense of Welsh jurisdiction.
The most notable of the areas of legislative diversion from the English norm, is the move by Jeremy Miles AM to codify existing Welsh Law. This unprecedented development shows a clear branching of Welsh Law away from its English equivalent in a way that is heavily demonstrative of a distinctive flavour of new law. The importance of this move should not be understated as it is a clear breaking from the legal traditions that have dominated English legislative theory for the past 500 years.
Building on the above, it is important to address the issue of s112(1) Attorney General referrals to the UKSC over issues of legislative competence. One can argue that there is a fine line between staying within the legislative competence of the Senedd, and overstepping it. Upon accepting this premise, one can further argue that any Welsh Act that succeeds in being ruled as being within the competence of devolved legislature, despite a referral, is one that reaches to maximising the full use the active competence of the devolved legislature.
This argument is strongly backed by the unsuccessful referral of the Agricultural Sector (Wales) Bill and the threatened referral of the Legislation (Wales) Act 2019. Both of which clearly demonstrate a devolved legislature keen and clear in its ambition to chart a distinctive future legal for Wales. The principle of the latter is strongly defended by Lord Lloyd-Jones in March 2018, stating “[that] If Wales is to succeed in the changed circumstances of devolution, the law of Wales must be made readily accessible to its subjects”.
Analysing the course to redress and the linking development of regionalisation as a complimentary tool
Another crucial but under-discussed development is the slow shaping of a distinctive Welsh tribunal system, this is discussed well in the report and recommendations into the administrative court system in Wales by Sarah Nason and David Gardiner. Their recommendation to establish the ability to refer points of Welsh Law to a Welsh Administrative Court in light of the establishment of a Public Services Ombudsman for Wales, is especially pertinent as it is demonstrative of the acceptance of Welsh Law developing as a distinctive area. A question then arises on how the development of a distinctive Welsh Law drives the necessity for the development of a more regionalised redress procedure for specific points of law applying to Wales only.
Also, it seems appropriate to argue that mere regionalisation of an administrative court does a disservice to the clear and increasing development of Welsh law as a separate entity. This stands true for both the development of Welsh law as an entity, but perhaps more importantly, in terms of the practical element of respecting a truly Welsh legal identity. It is consequently conceivable that a national approach in the form of a High Court for Wales with specific remit on redress of Wales specific points of law could be established to tackle the duel practical and emotional issues with regionalisation.
The analysis of the success of the Welsh Administrative Court by Nasen and Gardiner, brings the need to look at understand the approach of Sunkin and Nasen in arguing for more regionalisation. This argument is one that, if any meaningful development in the establishment of a Welsh Legal system is to be undertaken, has to be meaningfully taken on board. This in turn, raises the additional question of how this is to be done.
The question is somewhat intriguingly addressed by the Miller/Cherry case.
I say intriguingly because of the interesting parallels of the case, as a joint case, the Miller aspect had come through the English and Welsh system, whereas the Cherry case had come through the Scottish Courts, at their initial stages. This is important because, the grievance when settled, demonstrated the ability of the UKSC to meaningfully bring together the viewpoints off various legal jurisdictions. I would argue that this demonstrates that a distinctive Welsh system, if developed in a way that deviated in its core elements from the current English and Welsh system, would not necessarily break the bonds of the UK constitution, but rather enhance its standing. Consequently this could grow the strength of a complete devolution settlement that brings Wales in line with Scotland and Northern Ireland.
We are undoubtably in uncharted constitutional territory for the United Kingdom, with four legislatures, each in varying stages constitutional development, it is almost impossible to say what the constitutional future of the United Kingdom will be.
However, it is important that as we embark on the next constitutional steps, we do so with a view to settling, not derailing our devolution settlements. So where does that leave the nation that former First Minister Carwyn Jones described in the aftermath of the 2011 referendum on having law-making powers, as having come of age.
There has already been significant change in Welsh legislative approaches that have set it apart from England. Additionally, there have been devolved tribunals, with a credible argument from Nason and Gardiner for increasing their scope. This all arguably points towards the natural development of a distinctive Welsh legal system. We clearly see from the exhaustive list of Acts passed by the Senedd, that Wales has a devolved legislature that is keen to utilise its power and foster the development of a Welsh Law.
Where, I believe current thinking falls short in its approach to the ability to redress on Wales specific points of law, is the fact is does not dare dream of a system of genuine legal parity between Wales, Scotland and Ireland. Prior to the encompassing of a reserved model of powers, this thinking made logical sense. However, since then, the Senedd has clear intent to use its full powers and Miles [AM] has spearheaded the reforming, Legislation Act meaning that if the next logical step (legal affairs being devolved) occurs, there will need to be a fresh approach to redress of Wales specific issues.
How Wales should develop a genuinely distinctive redress via judicial review goes to the heart of the development of a Welsh legal system.
Speaking to the first recommendation by Nasen and Gardiner that the Welsh Government and other public bodies should instruct more local counsel, this is welcomed because it would help bolster specialisation in Welsh constitutional matters, enhancing the case for a distinctive redress system.
The third recommendation on the referral power of an administrative court, could be better established by a specific High Court for Wales, entirely distinctive of, and supplementary to the High Court of England and Wales. This would help address both issues of public awareness, and encourage the development of a specialisation in Welsh Law growing out of Wales, not London.
As explored above, the threshold set out in Silk II to revisit the question of further devolution of justice in 10 years, should be the development of a distinctive Welsh legal system. The progress made in developing this by the Senedd, is clear in its path forward.
I would therefore consequently, follow the argument in its logical route to conclude that, if the threshold set out in Silk II has not already been met, it is very close to being so.
If indeed the threshold is met and the establishment of a Welsh legal system occurs, it is imperative that this takes a distinctive shape that compliments not undermines, the devolution settlement. Any such development must also confidently address the potential for a Wales specific system of judicial redress on Wales specific points of law. The logical output of this would be the establishment of a High Court for Wales.
Callum Robertson reads Law at the University of Essex and has a particular interest in legislative devolution settlements and their impact on the constitutional balance of the United Kingdom.