Home > Publications > Governance & law > Values, Principles, and Structures:  the Sub-State Constitution of Wales and the Consequences

Values, Principles, and Structures:  the Sub-State Constitution of Wales and the Consequences

Anti-Brexit protester carries Wales and European Union flags outside Parliament in Westminster
Sarah Nason

Sarah Nason

Senior Lecturer in Administrative Law and Jurisprudence at Bangor University

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The views expressed are solely those of the author (s) and not of Oxford Global Society.

With devolution to Wales famously described as “a process, and not an event” it can be difficult to determine how far back into Welsh history one should reach to make the best sense of recent events. This could be as far back as to the 10th Century King Hywel ap Cadell (known as Hywel Dda), credited with codification of the native laws of Wales. The codification can be seen as progressively principled, especially in terms of recompense for wrongdoing, and for recognising and advancing the rights of women. The Dictionary of Welsh Biography states that Hywel’s law was responsible for the consciousness of national unity prevalent among the Welsh of the Middle Ages; the laws provided an identity and focus, in the absence of a single ruler.

In the present day, Wales is again experimenting with forms of legal codification, and with legislation giving expression to a range of progressive interpretations of principle, particularly around sustainability, the well-being of current and future generations, equality, and human rights. One might ask how this internal activity pertains to the unity of the United Kingdom, my answer is that Wales is developing its own “sub state” constitution, both in terms of seeking to entrench core values, and in the manner and form of legislation. Developments extend not only to values of public administration, equality, and rights, but also to differing interpretations of legal constitutional principles, for instance – sovereignty, subsidiarity, legality, and nationality – as well as matters of constitutional convention, namely the Sewel Convention. Welsh Government maintains that the UK is “best now seen as a voluntary association of nations taking the form of a multi-national state”, and that such an association must be based on recognition of popular sovereignty in each constituent part. It also argues that the concept of parliamentary sovereignty “no longer provides a sound foundation for this evolving constitution”. Welsh Government is clear in its view that current threats to the Union are extensive, and that the status quo cannot continue. Progressive reform is needed, in my view, particularly if the ground-up “sub state” constitution for Wales continues to develop alongside the broader UK constitution.

The Process of Devolution

Following a drip-feed process of executive devolution, the current settlement contained in the Wales Act 2017 moved Wales from a conferred to a reserved powers model. However, this Act has been described as carrying “the seeds of its own destruction”. Professor Thomas Watkin and Daniel Greenberg, in their book Legislating for Wales, note that the reservations in the Act:

“are considerable in number, and there has been much debate over whether the move to a reserved-powers model has enhanced the Assembly’s powers or contracted them, and even greater doubt as to whether the new settlement has delivered the promised clear devolution settlement that would stand the test of time”.

Under the new settlement, on the whole, the advantage has shifted in favour of those who might wish to challenge devolved Welsh competence, albeit the combined effects of Brexit and Covid-19 have impacted the legislative programme such that there has been little post-2017 Act legislation to challenge.

The 2017 Act included provisions that the Senedd and Welsh Government are permanent parts of the UK’s constitutional arrangements not to be abolished without a referendum. It also devolved greater responsibility to Senedd to run its own affairs, including deciding its name: the Senedd and Elections (Wales) Act 2020 then recognised the Assembly as a fully-fledged Welsh Parliament, also extending the voting franchise. At the time the Wales Act 2017 was being drafted, a previous Welsh Government had developed its own Government and Laws in Wales Bill, seen by some as a written constitution for a sub-state polity. Key differences between that Bill and the Wales Act 2017, were that whilst the 2017 Act merely recognises a distinct made in Wales body of law, and merely recognises the Sewel Convention, the Welsh Government Bill provided that Wales and England would become two legal jurisdictions and the Sewel Convention be given statutory force rather than just statutory recognition. On the matter of the Sewel Convention, the 5th Senedd Legislation, Justice and Constitution Committee (in its inquiry into Wales’ Changing Constitution) concluded that, without further clarification, the Sewel Convention would be rendered “obsolete and of little practical value”: a statement echoed by the current Welsh Government Counsel General and Minister for the Constitution.

Another matter of constitutional principle on which the current Welsh and UK Governments differ, is the so-called principle of “legality”. Welsh Government is using judicial review to challenge the United Kingdom Internal Market Act 2020 on grounds that it purports to impliedly repeal areas of Senedd competence, and confers powers that could be used by UK Ministers to substantively amend the Government of Wales Act 2006 cutting down the devolution settlement. Both grounds are based on the constitutional principle of legality; if Parliament intends to legislate contrarily to fundamental constitutional norms, in this case the norms of devolution, it must do so expressly and not impliedly. Welsh Government’s pleading of the principle of legality in a live judicial review case has coincided with UK Government’s criticising judicial development of that very principle, as giving courts a way to go beyond the usual constitutional constraints of their reviewing role.

A third matter of constitutional principle, on which there may be divergence of interpretation, is the principle of subsidiarity. The current Welsh Government sees this as requiring “that legislative and governmental responsibilities should be allocated to the most local level at which they can be performed efficiently and effectively”. Similarly, the House of Commons Housing, Communities and Local Government Committee’s 2021 report of its inquiry into Progress on Devolution in England sees the subsidiarity principle as supporting devolution as a default option for English local government, and recommends exploring a reserved powers model for English devolution. There may well be diverging interpretations between incumbent Governments, particularly as to which responsibilities can be performed efficiently and effectively at local levels, both for English and Welsh devolution, and as to what is meant by effective and efficient performance, as examples from during the Covid-19 pandemic demonstrate. Responses to the pandemic have also increased the profile of devolution among the general public, highlighted that what are seen as UK institutions, most obviously the NHS, are in fact four different services, and also shown the significance and challenges associated with UK-wide initiatives such as the furlough scheme, alongside exposing outdated inter-governmental relations procedures and mechanisms.

Unity and Social and Political Values

Whilst the Welsh Labour Government might take a distinct approach to social and economic equality, and sustainability, often with the support of Plaid Cymru to embed such through law and guidance, the social, and particularly the political values of the nation can appear increasingly fragmented. There are reasons for traditional Welsh Labour dominance going back to matters of class, religion, and language even though these are likely less important today. What baffles many people is the fact that Wales voted to leave the EU despite being so dependent on the single market and European funds. Much of this can be put down to the centrality of national identity. Professors Henderson and Wyn Jones (in their book on Englishness) have found that those who feel strongly Welsh but without feeling the same attachment to Britishness voted heavily to Remain in the EU. However, the substantial minority in Wales who feel both strongly English and strongly British, or strongly English, tended to vote Leave. Another group that voted heavily Leave were the Welsh British – those who feel both strongly Welsh and strongly British. But what might these identity differences mean for views on the UK Union? Here, the Welsh British tend to be Eurosceptic but also supportive of devolution and, indeed, further devolution. The English British in Wales tend to be both Eurosceptic and devo-sceptic. The most hostile to devolution are the ‘British only (not Welsh)’. Those most in favour of more devolution, and indeed those most likely to support independence, are those who see themselves as Welsh only. Further, there are a whole range of divergences of social values within particular identity groups, on the left/right and libertarian/authoritarian scale, leading to other fundamental differences in voting behaviour. All this suggests that the future of Welsh politics is likely to be more fractured than its past. However, at least one political force can be dispensed with swiftly, namely, Abolish the Assembly: whilst well-resourced the party was “absolutely annihilated” in the 2021 Senedd elections.

In terms of internal Welsh political unity, in November 2021, Welsh Government and Plaid Cymru signed a Co-operation Agreement, recognising shared values of social solidarity, sustainability, and democracy. This commits the parties to working together over three years to deliver various policy objectives, alongside a commitment to Senedd reform.

The Land of Commissions, Conventions and Panels

In a recent House of Lords discussion, Conservative Peer Baroness Bloomfield, referred to Wales as a “land of commissions, conventions and panels”. This was in the context of Welsh Government’s autumn 2021 establishment of an Independent Commission on the Constitutional Future of Wales. Its first objective is to “consider and develop options for fundamental reform of the constitutional structures of the United Kingdom, in which Wales remains an integral part”. It’s second objective is to “consider and develop all progressive principal options to strengthen Welsh democracy and deliver improvements for the people of Wales”. The Commission is Co-Chaired by Dr Rowan Williams, former Archbishop of Canterbury, and Professor Laura McAllister, Professor of Public Policy and the Governance of Wales at Cardiff University’s Wales Governance Centre and former international footballer. It is due to report at the end of 2023. The establishment of this Commission comes not long after the conclusion of another, the Commission on Justice in Wales, which reported in October 2019. This previous Commission recommended the full executive and legislative devolution of justice powers, and all attendant financial resources to Wales. UK Government maintains its opposition to devolution of further justice powers to Wales, and its commitment to the single legal jurisdiction of England and Wales. Both Welsh Labour and Plaid Cymru regularly remind that no other decentralised system of government in the common law world contains a primary legislature without a separate legal jurisdiction over which to exercise enforcement powers.

Welsh Government’s approach to the union can be seen as a “progressive”, endorsing the need for a comprehensive review of the UK constitution, including a new more federalist constitutional settlement for local government and reform of the House of Lords. A common view is that without progressive constitutional reform, at the very least of inter-governmental relations if not also of the broader constitutional settlement, the breakdown or break-up of the Union may be inevitable. Yet another Commission, a 2019 Plaid Cymru Commission on how the Party should prepare for holding an independence referendum, favoured a confederal “League of the Isles”. On this approach the four UK nations would form a confederation with aspects of federal-type control established in key policy portfolios, said to reflect principles of equality and solidarity, each nation having a distinct jurisdiction and holding all constitutional powers and rights which are not by treaty delegated to joint institutions. In July 2020 the Senedd rejected Plaid Cymru’s motion calling on Welsh Government to seek authority from Westminster to hold an independence referendum, and instead voted for a Labour amendment: a commitment to Wales’ continuing membership of a reformed UK.

Structures, Values and Unity

As a matter of both structure and values, various Welsh Ministers past and present have favoured codification of the UK constitution, but the current Welsh experiment with codification is primarily about increasing the accessibility of substantive Welsh law to legal professionals, and in turn to the people of Wales. A Welsh code will not be a legal instrument in its own right, it is more presentational and organisational, but Senedd Standing Orders introduce a degree of code discipline. Questions remain about whether this structural difference, in legislative drafting and presentation, will make the law more accessible to lawyers and to the people, with potential to echo the sense of unity through law created by Hywel Dda’s 10th Century codification, or will it also or alternatively introduce more disunity, particularly in terms of the form of Welsh and English law respectively?

On the matter of values, whilst progressive unionism might stem from ground-up Welsh values and principles, for others the degree of extant unity demonstrated in Wales, particularly between Welsh Government and Plaid Cymru, is also a response to so-called “muscular unionism”, seen as a strategic external UK Government agenda to undermine devolution. Against this backdrop, there is much work for the current Constitutional Commission on the Future of Wales to undertake, it will need to help people connect the dots between values, principles, pressing day-to-day concerns about the practical delivery of public services particularly along the border with England, and the suite of governance levers available to Wales across a range of different constitutional structures. As Co-Chair Professor McAllister has stated:

It would be completely absurd to rule out independence as an option…We will consider federalism, strengthened devolution, devo max, a free association, along with any other serious options for radical change. We have a mandate to be both comprehensive and far-sighted in setting out and scrutinising options for a better, more sustainable democracy in our country.