By Sarah Nason

Senior Lecturer in Administrative Law and Jurisprudence, Prifysgol Bangor University 

Welsh devolution has never been as visible or as popular as it is now, it is part of the furniture of Wales, with impacts starkly accentuated by the Covid-19 pandemic. Support for devolution has increased across almost all identity groups in Wales, and those identifying as “strongly Welsh only” are now the largest group.

Whilst the future of Welsh politics may nevertheless be more fractured than its past, most forces seeking to abolish Welsh devolution have been muted, and 52% of Welsh leave voters (more traditionally devo-sceptic as well as euro-sceptic) now reject the idea of reducing devolved powers to secure promised Brexit benefits. This year Labour will celebrate 100 years of winning every key national election in Wales, and First Minister Mark Drakeford is comfortably the most popular UK leader.  

In November 2021, unionist Welsh Government and pro-independence Plaid Cymru, signed a Co-operation Agreement, recognising shared values of social solidarity, sustainability, and democracy, requiring the parties to work together to deliver policy objectives, alongside committing to Senedd reform. Now a fully-fledged Welsh Parliament, Senedd Cymru has legislated to reduce the voting age, alongside other expansions of voting eligibility, in both Senedd and local elections.

A Special Purpose Committee on Senedd Reform seeks to identity and expand common ground between Welsh political parties on increasing Senedd membership, perhaps up to 90 Members from the current 60, introducing further proportional representation in voting and increasing diversity. The number of Welsh Westminster MPs is likely to reduce following constituency boundary changes, raising the prospect of rebalancing political representation to the advantage of devolved Wales.  

Historically the often meticulous and values-based examination of aspects of devolution performed by a succession of expert conventions, commissions and panels has been necessary to respond to and inform incremental constitutional change in Wales. However, the reactions of Westminster and Whitehall have been mixed.

A new Independent Commission on the Constitutional Future of Wales purports to be different. Commissioners are drawn from the breadth of the political spectrum, and wider public life, from those who understand how Whitehall politics works, including post-Brexit, and those who understand how the Commission’s recommendations might land. But most importantly, the Commission seeks a civic conversation giving everybody in Wales the opportunity to tell it what is important to them.  

The aim is to connect constitutional change with delivery of policy, focusing on people’s day-to-day experiences of devolution. In short, areas where people consider specific devolved policies and laws to have improved or diminished their quality of life, and how the so-called “jagged edges” between devolved and reserved matters might have impacted them.

One example is that criminal justice policy, policing, and prisons remain largely reserved to the UK Parliament and Government, potentially undercutting Welsh social justice approaches to the prevention of crime and to the delivery of public services to offenders and victims. Another example is that areas of Wales are classed as “advice deserts” in key matters of public concern such as social care and homelessness, said to be largely the result of legal aid policies developed at Westminster. Full devolution of justice is high on Welsh Government’s constitutional reform agenda.  

Unique among its predecessors, the Constitutional Commission has a remit to consider all possible constitutional futures for Wales: from no change, to further devolution, to federalism, and to independence. Support for independence is as high as 30% depending on the question asked and how answers are analysed. In seeking to progress whatever the Commission might recommend, the Welsh Labour Government may be in a comparatively advantageous position as the only devolved government fully committed to the UK. Proposals it makes to reform the UK as a Union might have more political traction than those developed by UK Labour’s Constitutional Commission led by former Prime Minister Gordon Brown (unless UK Labour’s electoral fortunes change).  

Presenting both challenge and an opportunity is the difference between the UK Government’s approach to unionism, and a prevalent Welsh perspective. Welsh Government seeks a more federalist constitutional settlement, both for Wales and for local government in the UK. Most strongly it is argued that without reform, at the very least of how the various UK governments work together, if not also of other constitutional matters, the breakdown or break-up of the Union may be inevitable.

The Welsh defence of the Union can be juxtaposed to UK Government’s so-called “muscular” approach seen as a strategic agenda to undermine devolution and reassert a constitutional principle of Westminster parliamentary sovereignty. This contrasts to Welsh Government’s view that the UK is better 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, the views of the voting public, in each constituent part.  

Other constitutional principles then might also need revisiting, for example, a Senedd Committee sees the Sewel Convention, that Westminster will not normally legislate in devolved areas without the consent of the relevant devolved legislature, as potentially obsolete and of little practical effect, at least without further clarification or reform.

Concerns have also been raised about the growth of legislative consent memoranda, the process by which the Welsh Government asks the Senedd to give consent to Westminster Bills covering devolved matters. The striking growth of such memoranda, especially in the context of legislating for the impacts of Brexit, prevents the Senedd from taking ownership of and scrutinising the law in devolved areas.

The fall-out from Brexit continues to impose other significant stresses on Welsh governance. From concerns around the distribution of repatriated powers to devolved or UK level, to a domestic replacement of the EU’s Structural Funds from which Wales benefitted significantly, to the design and operation of a UK internal market (where Whitehall talks up risks of regulatory divergence in contrast to Welsh emphasis on diversity).

Welsh Government has, so far unsuccessfully, challenged certain provisions of the United Kingdom Internal Market Act 2020 for potentially breaching the Government of Wales Act 2006 by impliedly repealing areas of Senedd competence, and for giving UK Government ministers executive powers to amend aspects of the devolution settlement. The UK Supreme Court is, at the time of writing, considering whether to allow Welsh Government permission to appeal.  

The future of Wales is also intimately bound to that of other UK nations. A further Scottish independence referendum is a realistic prospect; what would be the place of Wales in a rump nation of England and Wales? The comparative size of England, practical fusion of the English/UK Parliament, and the strength of the “England and Wales” paradigm, including in professional legal circles, inevitably impacts Welsh constitutional debates. 

Co-Chair of the Constitutional Commission for Wales, Professor Laura McAllister is a former international footballer who once played the position of sweeper. This player is seen as a last line of defence, often against stronger opposing teams, but can also have a role as a playmaker. The Constitutional Commission can be viewed in such terms, a line of defence to protect Welsh interests against impending constitutional chaos, and a playmaker proposing a new constitutional settlement based on what works for the people of Wales.  

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