Welsh Government
The first two decades of devolution in Wales
The development of the National Assembly as a full legislature, with tax-raising powers, shows that devolution in Wales has grown notably over the past 20 years.
About the author:
Huw Pritchard is a Lecturer in
Law at the Cardiff School of
Law and Politics.
The first two decades of devolution in Wales has been a period for constitutions and constitutional commissions. Reforming a famously unified UK constitution to accommodate new governments and legislatures was never going to be a smooth process. This process of constitutional reform and adaptation is likely to continue to the future. However, devolution will also be of increasing relevance to legal professionals and practice where understanding how the laws between England and Wales differ will be of increasing importance.
Constitutional experimentation
The National Assembly, with marginal public support, famously started with a weak model of devolution ‘on the hem of Scottish kilt’.¹The executive, secondary law-making powers, model was a largely untested form of devolution at a national level. It received powers transferred from the Secretary of State for Wales in the fields of housing, education, and environment, among 15 others. It quickly emerged that this model would not be fit for purpose for an elected national body. A lack of institutional clarity over who led the National Assembly and the limitations of secondary legislation (with Westminster still required to pass primary legislation) meant that this would not be a sustainable settlement.
The Government of Wales Act 2006 established a more recognised form of governance, with the National Assembly as a legislature and the Welsh Assembly Government (later Welsh Government) as the executive. A gradual approach to transferring legislative powers over 20 subjects was introduced so that matters could be transferred to the National Assembly to build up legislative competence. The Legislative Competence Orders were again a novel, and challenging, constitutional mechanism for transferring specified matters for the National Assembly to pass Measures of the Assembly.
A referendum, in 2011, approved the move to full legislative powers over 21 headings within the 2006 Act. However, constitutional challenges remained with three early bills referred to the UK Supreme Court to test the competence of the National Assembly. The significant ruling in Agricultural Sector (Wales) Bill - Reference by the Attorney General for England and Wales [2014] UKSC 43 unearthed unintended flaws in the constitutional design that allowed the National Assembly to legislate on any matter - even if outside the 21 devolved headings – if they were related to a devolved subject. Consequently, The UK government decided to implement some of the recommendations of the Commission on Devolution in Wales (the Silk Commission) and introduce a reserved powers model similar to the model in Scotland.
The Wales Act 2017 is the latest iteration in devolved dispensations for Wales, but is unlikely to be the last. It implements a reserved power model, similar to Scotland, which in theory should provide a more stable settlement. However, the shared England and Wales jurisdiction will be tested by the new arrangements. As discussed elsewhere in this issue, the Welsh Government is advocating for a Welsh legal system and legal jurisdiction that would fit with the new constitutional model and allow control over justice functions to be aligned with devolved public services (see page 37 of this issue).
The unknown consequences of Brexit will also challenge the sustainability of the new devolution model. The recentralisation of powers, even if time-limited through agreement between governments, will have future consequences to the extent of the competence of the National Assembly. This will characterise the next 20 years of devolution as the EU framework within which devolution was created is removed.
Constitutionally, the development of the National Assembly as a full legislature, with tax-raising powers, shows that devolution in Wales has grown significantly over the last two decades. The statutory proposal to rename the Assembly to the Welsh Parliament symbolises that maturity. However, with fundamental constitutional changes on the horizon, continued experimentation with the constitution is likely to remain high on the agenda for the next 20 years as it was for the first.
Landmark legislation
Despite several challenging models of devolution, the National Assembly has passed notable and landmark legislation that differentiates the law from the rest of UK and has been heralded as leading the way for change on specific reforms. Most people would refer to free prescriptions in Wales, plastic bag charges, and the smoking ban as the most high-profile changes in Welsh law over the last two decades.
However, there is a growing substantive framework of laws that are distinct to Wales. For example, Wales is the first part of the UK to move to a deemed consent presumption for organ donation. It has also taken a rights-approach to legislation by being the first to incorporate the UN Convention on the Rights of the Child (UNCRC) through the Rights of Children and Young People (Wales) Measure 2011.
More broadly, the context of public services in Wales is guided by new cross-cutting legislation that has the principle of ‘well-being’ at its centre. For example, the Social Services and Well-being (Wales) Act 2014 provides a new basis for social care services in Wales. Also, on a similar premise, the Well-being of Future Generations (Wales) Act (WFG(W)A) 2015 puts a framework of long-term well-being goals for local authorities to work towards and establishes a Future Generations Commissioner as a champion for those aims.
The full effect of this legislation is still to be seen. They undoubtedly have a positive and sustainable vision at their heart, but some initiatives have been criticised as being aspirational rather than justiciable. For example, ‘due regard’ to the UNCRC, or a duty to ‘take all reasonable steps’ toward wellbeing objectives, may not provide a duty on authorities that is easily challenged. A potential judicial review on a school closure currently under consideration may provide the first challenge to a local authority under the WFG(W)A.² This will give a better idea of the strength and potential impact of the novel legislation passed by the National Assembly.
Law and practice
Law reform is also starting to have a more noticeable impact on everyday matters of law and practice in Wales. Conveyancers will already be aware of the land transaction tax that replaced stamp duty land tax in Wales from April 2018. The Welsh Revenue Authority was established to administer the collection and management of new taxes in Wales. There are also different obligations for landlords in Wales, who are required to register and be licensed under the Housing (Wales) Act 2014. The Renting Homes (Fess etc) Bill, which is currently in the legislative process in the Assembly, is likely to increase the divergence in this area as rules over tenancy agreements and fees change in Wales.
Understanding the difference between the law and practice in England and Wales has become of far more importance for legal professionals over recent years and is likely to be of increasing importance into the future.
Conclusion
On the one hand, devolution over the first 20 years of its life may be viewed as a constitutional experiment where models of devolution never quite aligned with the final implementation, which placed focus on constitutional reform rather than law reform. However, the devolution process in Wales has come a long way since 1999, and differences in law and practice between England and Wales are increasing in more areas as more Welsh legislation is passed. This will make devolution of more relevance to both citizens and legal professionals over the next two decades of devolution in Wales.
1 Professor Sir David Williams, ‘Devolution: The Welsh Perspective’ in The University of Cambridge Centre for Public Law, Constitutional Reform in the United Kingdom: Practice and Principles (Hart 1998) 43
2 See Jenny Johnson, ‘ Villagers' 'landmark' legal bid to save Cymer Afan school’, BBC News, 10 October 2018, available at: https://www.bbc.co.uk/news/uk-wales-45800593