We in Wales are beginning to have a serious conversation about devolving police and criminal justice powers to the National Assembly and creating our own separate jurisdiction with a Welsh High Court, Lord Chief Justice, Courts of Appeal and a Welsh prison service. In its evidence to the Silk Commission just over a week ago the Welsh Government put down a marker that it wanted to see all this devolved some time in the next decade or so, just as soon as Welsh civil service capacity can be geared up to cope and a financial settlement agreed with Westminster.
At one level this is not all that remarkable. Scotland, Northern Ireland, the Isle of Man, Jersey and Guernsey, and even Gibraltar (with its population of only 29,000), all have their own legal jurisdictions and control of policing, prisons and the judiciary.
But to Welsh ears this debate, and the evident probability that our Government is being primed to take on these responsibilities, is remarkable testimony to the speed at which devolution is progressing. Ron Davies famously said devolution was a process rather than an event. But very few who voted in the referendum that established the Assembly back in 1997 imagined that creating our own legal system would be on the table is so short a time.
The Welsh Government’s evidence to the Silk Commission (available here) marked a further significant step in Wales’s devolution journey. It was not as far reaching as the 1997 referendum, or the follow-up 2011 referendum, which in effect turned the largely executive Assembly into a legislative Parliament. However, it is on a par with the 2006 Wales Act which enabled the 2011 referendum to happen, and will have consequences at least as profound.
Why is this? Put simply, it is because the statement marks definitively the moment when the Welsh Labour Government finally came to terms with devolution and resolved that it would take a lead in driving it forward. It also demonstrated, yet again, the apparently unstoppable dynamic built into the devolution process.
The Welsh Government is calling for a new Wales Act to create a devolution settlement for Wales based on a ‘reserved powers’ model, as is the case with Scotland and Northern Ireland. At present the Assembly only has the competence that has been conferred on it expressly by Parliament, on those subjects set out in Schedule 7 to the 2006 Wales Act. Moreover these subjects are invariably qualified by ‘Exceptions’, which further limit the Assembly’s discretion and effectiveness.
At a seminar at Cardiff Law School last week Hugh Rawlings, the Welsh Government’s Director of Constitutional Affairs and Intergovernmental Relations, likened the Assembly’s present law-making process to a large legislative field controlled by Westminster, in which stockades were dotted around occupied by the National Assembly. This created a situation where Whitehall, usually represented by the Wales Office, was perpetually looking to see if the Welsh Government was about to jump over one or other of the stockades and encroach on Westminster’s powers.
“It was highly symbolic that the very first Bill passed by the National Assembly, on local government byelaws, was immediately whisked off to the Supreme Court for adjudication,” Rawlings said. He added that the conferred powers arrangement did not just result in frustration for the Welsh Government, which had to deal with questions of powers and competence on a daily basis. It also placed the Wales Office in an awkward position where it was constantly keeping a check on whether Cardiff Bay was exceeding its remit.
The issues were often difficult to unravel. He gave the example of the Agricultural Wages Board, which the Westminster Government wished to abolish and was seeking the consent of the National Assembly to do so. This the Assembly had refused, saying agriculture came within its remit. Westminster answered that the Agricultural Wages Board came under employment, which was not devolved. How could such an issue be resolved? In effect it created a third area of powers beyond those which were conferred and those which were retained – those that were, in effect, in a no-man’s land of neither one nor the other.
Hugh Rawlings drew attention to the Welsh Government’s call for all matters relating to water to be devolved, including licensing and the appointment and regulation of water undertakers, with competence extended to the geographical boundary of Wales. This means Wales would take over a slice of the Severn Trent Water Authority and its reservoirs in the Elan Valley that supply Birmingham. Rawlings said the demand was a hangover from the 1970s devolution legislation in which had been embedded a great deal of power and discretion for the Secretary of State for Wales to interfere with the Assembly proposed at that time.
Indeed, it went even further back in history, to the disputes over the drowning of the Tryweryn valley in Meirionnydd in the 1950s to make way for a reservoir for Liverpool. For many, this had been the beginning of the whole devolution story. As Rawlings put it, “The idea that in a looser UK there should be powers for the UK Government to overrule the Welsh Government in relation to water is anachronistic.”
But what exactly is this “looser UK” that we can look forward to? In a series of speeches over the past year Welsh First Minister Carwyn Jones has fleshed out his ideas for an emerging federal state in the UK, with a new set of relationships between the devolved territories, England and Westminster. This is how he concluded a speech on this theme nearly a year ago in which he called for a constitutional convention:
“I am whole-heartedly in favour of a written constitution for the UK. The incremental piecemeal approach to our constitution is destabilising and distracting. Far better, I believe, to have a comprehensive look at what kind of state we want the UK to be and then move towards a written constitution which commits and binds. Part of that constitution would define the relationship between the Devolved Administrations and UK Institutions. ‘Asymmetric quasi-federalism’ is not the snappiest slogan for a political campaign, but the UK has changed beyond recognition over the past 15 years and it is time that our constitution recognised this.”
Since this speech there has been a wide-ranging discussion in some Welsh circles on the notion of some kind of Britannic federation or confederation – see here and here. However, a fundamental problem with the idea is that the major part of the state, England, is so far simply not engaged, and probably not even interested. After all, federalism is something Eurosceptics bang on about. Moreover, there is no federal character to the way the most important part of devolution relationships are dealt with, the distribution of money. The Treasury would resolutely reject any notion that it is acting according to a federal principle in handing out block grants to Wales, Scotland and Northern Ireland. Instead, it is acting directly on behalf of the UK Government with its interests paramount.
Nonetheless, both these dimensions – England and financial relationships across the UK – will be firmly on the table once Scotland has had its independence referendum in October next year. They will be at the heart of a UK-wide or ‘Rest-of-the-UK’-wide constitutional convention that we can expect to be convened during 2015 to deal with the fall-out. David Cameron himself has said he wants to see one held at that time.
So, as I say, we’ve come an awfully long way in terms of the devolution process since we took that first faltering step in Wales in the 1997 referendum. Then, we registered just 6721 votes in favour, out of the million or so that were cast. Now all the polls indicate a large majority in Wales in favour of the Assembly and want it to have more powers. Not only that, we are heading towards our own distinctive legal set-up at home, and we’re leading a debate on federalism for the UK as well.
Biographical note: John Osmond has been Director of the Institute of Welsh Affairs since April 1996 and is stepping down this year. Born and brought up in Abergavenny, John graduated from Bristol University before starting his career in newspapers with the Yorkshire Post. In the 1970s he became Welsh Affairs Corrrespondent with the Western Mail. During 1980-82 he edited ARCADE - Wales Fortnightly, a cultural and current affairs magazine. He then moved into television, becoming a current affairs journalist and later producer with HTV. He produced a 10-part documentary series The Divided Kingdom for Channel 4 in the mid-1980s. From 1988 to 1990 he was deputy editor with Wales on Sunday, helping to launch the new newspaper. During the early 1990s he worked as a freelance journalist and television producer.