Welsh devolution 1999–2021: constitutional instability amidst institutionalized conservatism?

ABSTRACT

Over the past two decades, devolution in Wales has undergone a remarkable transformation. A Welsh Assembly endorsed by a margin of just 6,721 votes in the 1997 referendum, and which was legally fused with the ‘executive’ branch of devolved government and had no primary legislative powers has become a primary law making and tax levying parliament. This article will chart the evolution of Welsh devolution since 1999 and the role that the centre’s grudging and conservative approach to devolution and the conferred powers model has played in the failure to secure a lasting settlement for Wales. It will argue that despite the transformation in Welsh devolution since 1999, and the shift to a reserved powers model in 2017, a ‘conferred powers mindset’ has continued to haunt Welsh devolution as a result of the approach taken by the United Kingdom Government in drafting the extensive set of reserved powers.

KEYWORDS:

• Devolution
• Welsh devolution
• British constitutional history
• Welsh history
• UK politics
• constitutional reform

Disclosure statement

No potential conflict of interest was reported by the author(s).

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Notes

1 For more on the minimalistic approach to devolution after the 1997 General Election, see: A. Evans, 'There will be no shortage of Cabinet ministers taking part in the Scottish referendum campaign. The same is not true in Wales': New Labour, Old Struggles and the Advent of Welsh Devolution, Parliamentary History, 42(2) (2023), pp.255-273

2 For a more detailed study of the 1970s devolution debates, see: A. Evans, 'Far reaching and perhaps destructive'? The 1974-79 Labour Government, devolution and the emergence, and failure, of the Scotland and Wales Bill, Parliaments, Estates and Representation, 41(1) (2021), pp.42-61; A. Evans, 'The Best-Laid Schemes o' Mice an' Men'? Proposals, Planning, Defeat, and Legacy, of Devolution in the 1970s, Parliamentary History, 39(3) (2020), pp.462-480

3 A. Evans, ‘Devolution and Parliamentary Representation: The Case of the Scotland and Wales Bill, 1976–7’, Parliamentary History 27, (2018), p. 275.

4 V. Bogdanor, Devolution in the United Kingdom (Oxford, 1999), p.175

5 V. Bogdanor, (1999). Devolution in the United Kingdom (Oxford, 1999), pp. 175–8.

6 Our Changing Democracy: Devolution to Scotland and Wales (London, 1975)

(Cmnd. 6348)

7 R. Wyn Jones and B. Lewis (1999). ‘The Welsh Devolution Referendum’, Politics 19, (1999), p. 41.

8 J. Mitchell, Devolution in the UK (Manchester, 2009), p. 158.

9 O. Gay, Wales and Devolution, House of Commons Library, Research Paper, 97/60, (19 May 1997), pp. 20–22.

10 Evans, 'There will be no shortage of Cabinet ministers taking part in the Scottish referendum campaign. The same is not true in Wales', p.258

11 The most notable point of departure was the proposed adoption, fiercely opposed by many within the Labour Party in Wales, of the additional member system for Assembly elections (the system would see 40 constituency Assembly Members elected by first past the post topped up by 20 regional list Members elected by the closed list system from the five European Parliament constituencies in Wales) (Wyn Jones and Scully 2012: 40–2).

12 Wyn Jones and Lewis, The Welsh Devolution Referendum’, pp. 37–8.

13 R. Rawlings, ‘The New Model Wales’, Journal of Law and Society 25, (1998), p. 465.

14 There were, of course, points of departure in GoWA 1998 from the 1978 Act. One subtle, yet important difference came in the structure of the executive. While, as with the Wales Act 1978, the Assembly created in GoWA 1998 was a body corporate with no formal separation of powers between the Assembly and the ‘executive’, unlike the 1978 Act the First Secretary was granted the power to appoint the members of the executive committee and to determine their portfolios for the purposes of committee and plenary scrutiny. The Act also allowed for the Assembly to delegate functions to the First Secretary who, in turn, could then delegate functions to Assembly Secretaries. GoWA 1998 also required that the Assembly’s Standing Orders make provision for Assembly Members (AMs) to table oral and written questions of the executive committee and First Secretary. Through those provisions, inserted into GoWA 1998 during its Report stage in the Commons, ‘the Assembly’s government structure takes on a hybrid character’ – blending aspects of the old local government model with features that are more recognisably parliamentary in nature. See R. Rawlings, Delineating Wales: Constitutional, Legal and Administrative Aspects of National Devolution (Cardiff, 2003); p. 7; Rawlings ‘The New Model Wales’, pp. 479–80).

15 Scottish Office, Scotland’s Parliament, Cm 3658 (London, July 1997), para 4.3

16 D. Miers, quoted in Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (Spring 2004), Report of the Richard Commission, p. 86.

17 A. Evans, ‘Birth pangs or a honeymoon from hell? The long annus horribilis for Welsh devolution, 1998-2000,’ Contemporary British History, 37(2) (2023), pp.192-215

18 Rawlings, Delineating Wales, pp. 134–6.

19 National Assembly for Wales, The National Assembly for Wales (The Official Record), 14 February 2002, p. 98.

20 Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (2004), pp. 265–6.

21 R. Wyn Jones and R. Scully, Wales Says Yes: Devolution and the 2011 Welsh Referendum (Cardiff, 2012), pp. 43–4; A. Trench. Old Wine in New Bottles? Relations Between London and Cardiff After the Government of Wales Act 2006 (University College London: London, 2007), p. 40.

22 Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (2004), p. 87.

23 Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (2004), pp. 118–9.

24 In the interim, the Commission proposed extending the use of framework legislation to expand the Assembly’s powers. See the Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (2004), pp. 254–7.

25 Commission on the Powers and Electoral Arrangements of the National Assembly for Wales 2004, pp. 250–7; A. Evans, ‘A House of Cards? The Failure to Find a Stable Devolution Settlement in Wales’, Renewal: A Journal of Social Democracy 22, (2014), p.49.

26 R. Wyn Jones and R. Scully, ‘Welsh Devolution: The End of the Beginning or the Beginning of … ?’ in A. Trench, (ed.), The State of the Nations 2008 (Exeter, 2008), p. 61.

27 A. Trench, ‘The Government of Wales Act 2006: the next steps on devolution for Wales’, Public Law (Winter, 2006), p. 696.

28 Wales Office, Better Governance for Wales (London, 2005), pp. 5–10.

29 A. Trench, Old Wine in New Bottles? Relations Between London and Cardiff After the Government of Wales Act 2006 (London, 2007), p. 9.

30 Better Governance for Wales, p. 6.

31 Wyn Jones and Scully, Wales Says Yes: Devolution and the 2011 Welsh Referendum, pp.50–1

32 GoWA 2006.

33 BBC News (8 December 2005). Boost to assembly powers unveiled, BBC News [online], http://news.bbc.co.uk/1/hi/wales/4508480.stm (accessed date: 20/02/2020).

34 The meeting ended with the Executive tied between supporters and opponents of the deal, no provision existed within the Party’s constitution for such ties to be broken. Instead, an extraordinary party conference had to be convened at short notice.

35 Welsh Assembly Government, One Wales: A progressive agenda for the government of Wales (2007), p. 6.

36 Wyn Jones and Scully, Wales Says Yes: Devolution and the 2011 Welsh Referendum, pp. 80–81.

37 Wyn Jones and Scully, Wales Says Yes: Devolution and the 2011 Welsh Referendum, p. 83; D. Miers, Law Making in Wales: A Measure of Devolution (London, 2011),p.17; Moon, D. and T. Evans (2017). Welsh devolution and the problem of legislative competence, British Politics, 12(3), p.337; R. Rawlings, ‘Riders on the Storm: Wales, the Union and Territorial Constitutional Crisis’, Journal of Law and Society 42, (2015), p. 475.

38 Miers, Law Making in Wales: A Measure of Devolution, pp. 8–9.

39 S. Griffiths and P. Evans, ‘Constitution by Committee? Legislative Competence Orders under the Government of Wales Act (2007–2011)’, Parliamentary Affairs 66, (2013), 485–6.

40 All Wales Convention 2009.

41 Wyn Jones and Scully, Wales Says Yes: Devolution and the 2011 Welsh Referendum, pp. 83–7.

42 In 2008, following a vote in the Scottish Parliament, Sir Kenneth Calman was tasked by the UK Government with chairing an independent commission to examine the experience of Scottish devolution since 1998 and suggest proposals for reform, with a particular emphasis on improving the financial accountability of the devolved institutions. The Commission resulted in the UK Government bringing forward, and Westminster legislating for, the Scotland Act 2012. The Act resulted in the partial devolution of income tax powers (subject to a lockstep which meant that changes in one band of income tax had to be replicated in the other two principal bands), devolution of some minor taxes, and devolved some functions relating to the administration of Scottish elections as well as the regulation of air guns.

43 HM Government, The Coalition: Our Programme for Government (London, 2010), p. 28.

44 Terms of Reference, Commission on Devolution in Wales, https://webarchive.nationalarchives.gov.uk/20140605075122/http://commissionondevolutioninwales.independent.gov.uk/ (accessed 10 May 2021).

45 Commission on Devolution in Wales, Empowerment and Responsibility: Financial Powers to Strengthen Wales (Cardiff, 2012), para 8.6.3.

46 Commission on Devolution in Wales, Empowerment and Responsibility: Financial Powers to Strengthen Wales, paras. 4.7.1 and 4.7.2; rec. 19–21.

47 UKSC 53 [2012].

48 UKSC 43 [2014].

49 UKSC 43 [2014].

50 Wales Governance Centre, Challenge and Opportunity: The Draft Wales Bill 2015 (Cardiff, 2016), p.19.

51 Commission on Devolution in Wales (2014), Empowerment and Responsibility: Legislative Powers to Strengthen Wales, pp. 34–6

52 Commission on Devolution in Wales, Empowerment and Responsibility: Legislative Powers to Strengthen Wales (Cardiff, 2014), pp. 185–92.

53 Commission on Devolution in Wales, Empowerment and Responsibility: Legislative Powers to Strengthen Wales, pp. 34–8.

54 Wales Office, Powers for a Purpose: Towards a lasting devolution settlement in Wales, Cm 9020, p. 14.

55 HM Government (17 November 2014). Secretary of State for Wales sets out long term vision on devolution, Gov.UK [online], https://www.gov.uk/government/speeches/secretary-of-state-stephen-crabb-sets-out-long-term-vision-on-devolution (accessed 25/03/2020).

56 Wales Governance Centre, Challenge and Opportunity: The Draft Wales Bill 2015, pp. 17–18.

57 HM Government (February 2015). Powers for a Purpose: Towards a Lasting Devolution Settlement for Wales, Cm 9020.

58 HM Government, Powers for a Purpose, pp.57-58; Wales Governance Centre, Challenge and Opportunity: The Draft Wales Bill 2015, p. 18.

59 The Conservative Party Manifesto 2015, pp. 70–1.

60 M. George and H. Pritchard, The Draft Wales Bill and the Devil in the Detail, Institute of Welsh Affairs [online], https://www.iwa.wales/agenda/2016/03/the-draft-wales-bill-and-the-devil-in-the-detail/ (2 March 2016).

61 Constitutional and Legislative Affairs Committee (December 2015), Report on the UK Government’s Draft Wales Bill, p. 43.

62 Ibid., p. 45.

63 Wales Governance Centre, Challenge and Opportunity: The Draft Wales Bill 2015, p. 59.

64 Welsh Affairs Committee, Pre-Legislative Scrutiny of the draft Wales Bill, First Report of Session 2015–16, HC 449 (2016).

65 BBC News (29 February 2016), Wales Bill needs significant changes Stephen Crabb says, https://www.bbc.co.uk/news/uk-wales-politics-35685623 (accessed 13 May 2021).

66 A. Thomas, (June 2016). Research Briefing: The Wales Bill 2016, National Assembly for Wales Research Service,(June 2016), pp. 2–3.

67 M. George, and H. Pritchard (9 June 2016). Take 2: The Wales Bill, Centre on Constitutional Change [online], https://centreonconstitutionalchange.ac.uk/opinions/take-2-wales-bill (accessed 25 March 2020)

68 House of Lords Select Committee on the Constitution, Wales Bill, 5th Report of Session 2016–17, HL Paper 59 (2016), para.40, 50.

69 A. Thomas, The Wales Bill passes the Assembly and Parliament, In Brief (Senedd Research) [online], https://seneddresearch.blog/2017/01/27/the-wales-bill-passes-the-assembly-and-parliament/, 27 January 2017, (accessed: 26/03/2020)

Additional information

Notes on contributors

Adam Evans

Adam Evans is an Honorary Research Fellow at the Wales Governance Centre at Cardiff University, Wales. He a Clerk in the Centre of Excellence for Procedural Practice, based in the Journal Office of the House of Commons. He is Course Director for the House of Commons Postgraduate Certificate on Advising MPs in Parliamentary Procedure - the UK Parliament's flagship procedural qualification, accredited by City University, London. He is also the Secretary to the History of Parliament Trust. From November 2019 until May 2022, he was Clerk of the Welsh Affairs Committee in the House of Commons. Previous roles in the House of Commons have included being Second Clerk of the Defence Committee, Secretary to the UK's Delegation to the NATO Parliamentary Assembly, and Committee Specialist (Constitutional Affairs) for the Public Administration and Constitutional Affairs Committee. He has published widely on British constitutional history and aspects of devolution in the United Kingdom, including previously on the party system in Scotland and Wales. His work in the House of Commons has included experience of drafting reports and leading inquiries on English Votes for English Laws, amending the powers of the House of Lords and on the EU Referendum.