By Alison L Young
Sir David Williams Professor of Public Law, University of Cambridge
The process of devolution to Wales started in 1998. However, it has been a much more gradual process than devolution to Scotland, culminating most recently with the provisions of the Wales Act 2017. Unlike Scotland, there have been no recent independence referendums and, although there is some support for an independent Wales, this is not as strong as the support in Scotland for Scottish independence. Nevertheless, devolution plays an important role in Wales, and a new Commission is investigating Wales’s constitutional future.
A gradual process of devolution
Although a majority in Wales voted in favour of the creation of a Welsh Assembly in the 1997 referendum, this was a very narrow majority, where the vote was almost split evenly between those in favour of, and those who voted against, devolution. Consequently, the first phase of devolution to Wales focused on executive devolution. A Welsh Assembly was created, tasked with deciding issues that would previously have been performed by the UK Government’s Minister for Wales.
In 2006, a new devolution settlement was reached. This provided greater powers to the Welsh Assembly. It also provided for a clearer separation in the Welsh Assembly between a Welsh Government and a Welsh Parliament. More powers were conferred on the Welsh Assembly using a conferred powers model – i.e. Wales could only enact legislation if it could show that this specific power had been conferred upon it by the Westminster Parliament. The 2006 Act also provided a model for more powers to be conferred on the Welsh Assembly. This included a power to enable the Welsh Assembly to enact Assembly Acts – to enact primary legislation for Wales as opposed to merely enacting secondary legislation for Wales. The transfer of this power required a referendum. In 2011, Wales voted in favour of granting the Welsh Assembly the power to enact primary legislation.
Although Wales now had the power to enact primary legislation, this was still achieved through a conferred powers model. Difficulties sometimes arose as it could be problematic to determine whether a specific power had been conferred on Wales. Also, as the Welsh Assembly’s legal powers grew to include the enactment of primary legislation, there were calls for more powers over a wider range of issues to be devolved to Wales. Following the enactment of the Wales Act 2014 and, more importantly, the Wales Act 2017, Wales now operates under a reserved powers as opposed to a conferred powers model. This means that it can enact legislation on any matter that has not been reserved to the Westminster Parliament.
Devolution in Wales is now a lot closer to devolution in Scotland. However, there are still some differences between the two. For example, unlike Scotland, Wales did not, historically, have a distinct legal system from that of England. So, whereas Scotland has a general power to modify private law rights and criminal law, this is not the case in Wales.
Like Scotland, Wales has the power to vary income tax rates and can modify the electoral system for Wales if two thirds of the members of the Senedd Cymru vote to do so. Also, in a similar manner to Scotland, legislation recognises the permanence of devolution to Wales, unless and until the people of Wales wish to change this.
The Senedd Cymru has 60 members, of whom 40 are elected through first past the post (i.e. the candidate with the most votes wins the seat) and 20 regional members are elected through the additional member system (a form of proportional representation). Following the election in 2021, the Labour party gained 30 seats. This was enough to make the party the dominant party in the Senedd Cymru but did not give the Labour Party a majority. Following the election, the Welsh Labour Party and Plaid Cymru entered into a Co-operation Agreement. Unlike in a coalition agreement, Plaid Cymru will not provide any ministers and is not officially part of the Welsh government.
All government ministers will come from the Labour Party. They alone will bear ministerial responsibility for their decisions and actions. However, members of Plaid Cymru can work with individual Ministers and jointly agree decisions and actions together in certain policy areas. This form of government aims to facilitate co-operation and compromise. This is different from the style of government in the Westminster Parliament where there is a clear divide between the Government and the opposition. The Co-operation Agreement also contains a commitment to enlarging the Senedd Cymru – to either 80 or 100 members.
The Labour government in Wales included a commitment to constitutional reform in its manifesto. It has established an Independent Commission on the Future of Wales. The Commission has two main objectives. First, to develop options for constitutional reform of the United Kingdom, with Wales continuing to play an integral part in those constitutional structures. Second, to consider aspects of constitutional reform to strengthen democracy in Wales. The reports of this Commission may lead to further constitutional change – though, if this is to lead to changes to the constitutional structures of the UK, this would have to be implemented by the Westminster Parliament.