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Jonathan Davies is the head of the Law Society in Wales. ‘One of my bugbears,’ he tells the Gazette, ‘is how easy it is for people in London to refer to the government, but I have to keep on telling them that there are four governments in the UK.’ Two are in the shared England and Wales legal jurisdiction. ‘They need to be corrected,’ says Davies, a former special adviser to the Welsh government.

Covid-19 has helped, raising the profile of devolution and the leaders of devolved administrations in an unprecedented fashion. Professor Daniel Wincott, Blackwell ‘law and society’ chair at Cardiff University School of Law and Politics, says that at the beginning of the coronavirus crisis, ‘lots of people did not recognise the name of the first minister’ – even in Wales.

It is easy for people in London to refer to the government, but I have to keep on telling them that there are four governments in the UK

Jonathan Davies, head of the Law Society in Wales

But that has since changed. Mark Drakeford may have not achieved the same profile as his Scottish counterpart, Nicola Sturgeon, but ‘you certainly hear him on UK-wide media a lot more than you used to’, says Wincott, who works in the school’s Wales Governance Centre.

Covid-19 has brought to the fore the fact that the UK devolution settlement gives Scotland, Wales and Northern Ireland control of health policy. The power to make public health regulations therefore sits with the four nations of the UK.

Eve Piffaretti, a partner at Blake Morgan in Cardiff, says the past year has made people in England and Wales ‘realise what the actual reality of devolution is. For the first time, they have woken up to the fact that there is divergence and that Wales can make its own decisions in relation to health’.

At the same time, the Covid response and Brexit have highlighted the tensions between central government and the devolved nations.

Wincott says that in the early stages, ‘what was remarkable was the extent to which the governments worked well together’, although this was mainly through ‘emergency structures’ such as the Civil Contingencies Committee or Cobra, rather than the ‘standard’ political and institutional structures that underpin intergovernmental relations.

But even then, cracks had begun to show, with UK government ministers ‘really demonstrating that they didn’t understand devolution or actually [being] deliberately provocative’, Wincott says.

In an article for Wales Online on 19 April, health secretary Matt Hancock wrote: ‘In the end, it’s not a Welsh Health Service or an English Health Service but a National Health Service. We are all on the same team and we will all get through this together, as one United Kingdom.’

‘At some kind of abstract symbolic level that might be true,’ says Wincott, ‘but in terms of the practical operation of health policy, that’s just not true and you could argue that it wasn’t the responsible thing to say because effectively he was on Welsh media, and he was talking to the Welsh public, and so he was effectively… suggesting that the [UK] government was responsible for their health care [when it] wasn’t actually responsible for it.’

The devolution to Wales of justice and policing would be the right and sensible thing to do

Vernon Bogdanor, King’s College London

Akash Paun, senior fellow at the Institute for Government, says: ‘There was an early period in the spring [of 2020] when there was tight co-ordination and things seemed to be working well.’ An example is the Coronavirus Act 2020, which conferred additional powers on devolved ministers to tackle the crisis, and was passed with the consent of the Senedd, the Scottish Parliament and the Northern Ireland Assembly.

But there followed ‘a divergence between nations’ and ‘a deterioration in communication between the governments’, says Paun, pointing to decisions made in Whitehall without consulting the Welsh government. These included the change in messaging from ‘stay at home’ to ‘stay alert’, the lists of travel corridors and the rules on face masks.

A different trajectory

Devolution has followed a different trajectory in Wales compared with other devolved nations. ‘What we have seen over 20 years is a permanent process of constitutional change in Wales,’ says Wincott, noting that this has been ‘enormously distracting’. He adds: ‘In a sense, to have politics always focused at this constitutional level has distracted energy and attention from the ordinary business of government.’

Since 1998, there have been two Government of Wales acts; two Wales acts, a number of investigations into devolution, including the Holtham Commission on Funding and Finance for Wales, the Silk Commission on Devolution in Wales, and, most recently, the Commission on Justice in Wales, which was chaired by former lord chief justice Lord Thomas of Cwmgiedd.

Over this period, ‘Wales has moved from a local government-style, conferred-powers model making secondary legislation and funded through a block grant, to a reserved-powers, full legislative model with significant authority to raise taxes’, Wincott notes.

Following the referendum in 1997, the UK parliament passed the Government of Wales Act 1998 establishing the National Assembly as a ‘corporate body’, with the executive and the legislature operating as one. The assembly was limited to making secondary legislation in areas such as agriculture, fisheries and education.

However, the Government of Wales Act 2006 separated the Welsh executive and legislature. The referendum of 2011 then gave the assembly primary law-making powers.

In 2018, under the Wales Act 2017, Wales switched to the ‘reserved powers model’, in line with the other devolved nations, meaning that the assembly (renamed Senedd Cymru in May 2020) can now pass laws on any subject – from health, housing and education to town and country planning and the environment – unless specifically reserved to Westminster. The Welsh government and Senedd also became responsible for some of the taxes paid in Wales. Then, in 2019, powers to vary income tax were introduced.

Despite this, Wincott says there has been ‘a grudging reluctance to hand over additional powers’ to Wales. ‘Because of the single legal jurisdiction of England and Wales, there are policy issues that connect to the jurisdiction that are reserved, although they overlap with devolved policies in important areas. That’s what the Thomas Commission addressed.’

In contrast to Scotland and Northern Ireland, the criminal justice system – comprising the police, Crown Prosecution Service, courts, prisons and probation services – is not devolved to Wales.

For the first time in more than 200 years, the commission reviewed the operation of the justice system in Wales, while setting a long-term view for its future. In its 456-page report, published in October 2019, the commission ‘unanimously concluded that the people of Wales are being let down by the system in its current state. Major reform is needed to the justice system and to the current scheme of devolution’.

The commission produced a list of 78 recommendations – including the devolution of justice (accompanied by a full transfer of financial resources) whereby ‘any restrictions and reservations governing the Assembly’s power to legislate on all forms of justice, including policing and offender management and rehabilitation, should be removed, so that it corresponds more closely with the position of the Northern Ireland Assembly and the Scottish Parliament’.

It also recommended that ‘the law applicable in Wales should be formally identified as the law of Wales, distinct from the law of England’, although the present system, whereby legal practitioners can practise in England and Wales and the legal professions are jointly regulated, should be preserved.

The commission also advocated the creation of a new Justice Department in the Welsh government led by a cabinet minister and a Justice Committee in the Senedd; the Senedd should also establish a High Court and a Court of Appeal of Wales, while Wales should be in a similar position to Scotland and Northern Ireland regarding the appointment of judges to the Supreme Court. Separately, in December the Law Commission launched a three-month consultation on proposals to reform the devolved Welsh tribunals that are the responsibility of the Welsh government.

The findings of the commission, appointed in autumn 2017 by the then First Minister of Wales, Carwyn Jones, ‘raise questions about the logic of the shared legal jurisdiction in England and Wales. England and Wales is the only shared legal jurisdiction that has two primary legislative organs – Westminster and the Senedd,’ Wincott observes.

Vernon Bogdanor, professor of government at King’s College London, believes ‘the devolution to Wales of justice and policing would be the right and sensible thing to do’.

‘Wales is in the anomalous position of having a separate legislature and executive, but not a separate judiciary,’ he adds. These and other ‘anomalies’ reflect ‘a mistaken approach. We have devolved in an unplanned and ad hoc way without thinking about the principles. We should have a charter laying down what is needed to be central and what can be devolved.’

Devolved justice

Davies says the Law Society has given its support in principle to the commission’s key recommendation that justice be devolved to Wales – subject to ‘red lines’: any change has ‘provably’ to be of benefit to solicitors in Wales; the ‘England and Wales jurisdiction should remain’ (meaning lawyers in England and Wales should continue to practise in each other’s jurisdiction and to share a regulator, allowing them to gain experience and grow their careers in both nations); ‘cross-border interoperability has to be as easy and as transparent as it is now’; and, most importantly, ‘the full associated monies have to come down from the Treasury’.

But Davies warns of ‘the many, many, many hoops to jump through, the UK government being a big barrier’.

The plan would mean devolving powers from the Ministry of Justice. ‘It is our belief that a single jurisdiction is the most effective way to deliver justice across England and Wales,’ a spokesperson says.

The timing of the report was inauspicious. ‘The focus has been much more on Brexit and Covid,’ says Davies, adding: ‘The UK government just hasn’t had the bandwidth, really, to address these things even if it was minded to do so.’

Yet Bogdanor believes that ‘despite Covid-19 there is an impetus in the present government, and I think there would be in a Labour government, for more devolution’. He refers to the forthcoming white paper on English devolution and local recovery when he says: ‘I see no reason why that shouldn’t be combined with more devolution to Wales. There is also some talk of further devolution to Scotland to conciliate, I suppose, the SNP, which I wouldn’t be in favour of, but Wales is a different proposition – Scotland already has its own judiciary.’

He adds: ‘There is a general, growing feeling that Britain is too centralised and more devolution would be a sensible thing. I don’t think that devolving the judiciary to Wales raises any particular sensitive political issue.’

Bogdanor believes there isn’t the same danger of separatism in Wales as in Scotland because ‘Welsh nationalism is primarily based on language’. Welsh is spoken by around 20% of people in Wales. ‘And, of course you don’t have the community problem that you have in Northern Ireland, so Welsh devolution is a different animal.’

The basic impetus, he argues, ‘is not so much nationalism as decentralisation, [which is] the same impetus you have got in England. There is obviously a Welsh national feeling, but I would say the main impetus for devolution was to be able to make decisions closer to people in Wales.’

The commission’s report highlighted ‘a growing divergence between English law and Welsh law particularly in planning, social welfare, renting of housing, family justice and the approach to sustainability, future generations and international standards for fundamental rights’.

But it also reported ‘increasing difficulties in identifying the law applicable in Wales’. Welsh law is difficult to access and the Law Commission recommended in 2016 that it be codified.

Under the Legislation (Wales) Act 2019, Welsh government now has a legal obligation to make Welsh law accessible and clear, and to promote its awareness and understanding; the act also makes provision for codification. In October last year, the Welsh government launched a three-month consultation on proposals for the future classification, consolidation and codification of Welsh law.

‘It is confusing that Welsh law and English law are held to be part of a single legal system, in contrast with Scottish law and Northern Irish law,’ the commission said, citing this as one reason for recommending that Welsh law be ‘formally identified’ as ‘distinct from the law of England’.

It is, though, unclear how this will be achieved. In 2016, the Welsh government published the draft Government and Laws in Wales Bill (as an alternative to the Wales Bill, which became the Wales Act 2017), which proposed recognising Wales as a legally distinct territory and separating the laws of England from the laws of Wales. The UK government did not adopt the alternative bill.

Piffaretti says: ‘There is a growing body of Welsh law and it is important to ensure that it is understood by clients, but also by professionals who are practising in those areas, and obviously universities need to make sure that they are factoring that into their courses, too.’

Opting out

While it is not always easy to know which law applies to which jurisdiction, notably in planning, Piffaretti notes that this is ‘creating an opportunity for lawyers based in Wales to develop their practices and  attract work from either side [of the border] based on the knowledge of the law in Wales’.

‘The laws in Wales have been quite progressive, particularly around issues of social justice,’ Piffaretti notes. Indeed, this is another reason why the commission said the laws in Wales should be formally separate from those in England: ‘The assembly has passed distinctive legislation, which has incorporated international principles of human rights and sustainable development and established new public roles to promote those rights, including the rights of children, older people and future generations.’

For example, on 1 December 2015 Wales became the first UK country to introduce a ‘soft opt-out’ system for organ donation via the Human Transplantation (Wales) Act 2013. It has also led the way in promoting children’s rights – in 2004, the Welsh government formally adopted the UN Convention on the Rights of the Child as the basis of policymaking relating to children and young people. This is reflected in the Rights of Children and Young Persons (Wales) Measure 2011, which requires ministers to have due regard to the UNCRC when developing or reviewing legislation.

Wales also diverges in other areas: it has established a strategy for older people and the world’s first older people’s commissioner, both of which reflect the UN ‘principles for older persons’. The Well-being of Future Generations (Wales) Act 2015 is the only legislation of its kind in the world and the UN points to it as a role model for other countries.

Brexit, meanwhile, and its impact on devolution has been a long-running source of tension between Cardiff and Westminster.

In December, Senedd members voted 36 to 15 against the UK government’s Internal Market Bill, which received royal assent on 17 December and came into force on 1 January. Jeremy Miles MS, counsel general and minister for European transition, said at the time that the bill ‘neuters’ the Senedd’s ability to make laws.

The act establishes two UK market access principles – mutual recognition and non-discrimination. The first is particularly controversial because it means that goods that are acceptable in one part of the UK are automatically acceptable in the other parts of the union, potentially leading the UK government to set food and environmental standards for Scotland and Wales.

Wincott, who directs the Economic and Social Research Council’s Governance after Brexit Programme, says: ‘The form of mutual recognition that the [Westminster] government is proposing is viewed by the devolved governments as cutting very deep into their capacity to regulate. If you look at how mutual recognition works in the EU context, there is a whole series of public policy justifications for exemptions from the market access principles that are absent from the UK bill.’ He cites as an example promoting social and environmental protection policy objectives.  

The new legislation could ‘render legal decisions of the Welsh Parliament pretty much meaningless by the back door’, says Davies, adding: ‘I can see a massive fight coming in the future over laws being passed in Wales that are then being completely subverted by the UK Internal Market [Act].’

In addition to removing the controversial Brexit clauses on the Northern Ireland Protocol, the UK government recognised that through the common frameworks process, regulatory divergence could be agreed between the four governments.

Nevertheless, the Scottish and Welsh governments have threatened to challenge the validity of the act by way of judicial review. On 16 December, the Welsh government said that it had formally notified the UK government that should the UK parliament enact the bill ‘in its present form’, it intended to take ‘immediate action to seek a declaration from the Administrative Court that the ambit of constitutional legislation cannot lawfully be cut down in this way and that the ensuing act cannot be interpreted so as to have that effect’.

Miles says: ‘Regulation-making powers in the bill would open the Government of Wales Act 2006 to very wide substantive future amendment, and the powers of the Senedd and Welsh government to serious diminution, at the hands of the UK government.’

There remains great uncertainty. ‘The next parliamentary term in Wales is going to be a crucial one for devolution,’ says Davies, who describes the devolution project so far as ‘a curate’s egg’. A Welsh Labour-Plaid Cymru nationalist party coalition is thought likely to emerge after the Senedd elections, due to take place on 6 May this year. What that would bring remains uncertain – like so much else.

 

Marialuisa Taddia is a freelance journalist