Memorandum submitted by the Institute
of Welsh Affairs
1. OVERVIEW
1.1 At the end of the first decade of Welsh
devolution it is safe to conclude that it is now the settled will
of the people of Wales. Recent polling published by the Institute
of Welsh Politics, Aberystwyth University, found a substantial
fall in opposition to devolution since 1997, from 40% to 17%.[38]
There is growing evidence of an acceptance that arrangements for
Wales should reflect Welsh circumstances and needs. For example,
the Aberystwyth survey found large majority support for the National
Assembly rather than Westminster to have the "greatest influence
over Wales". On a range of matters, Welsh policies and delivery
are now substantively different from those for England. As one
illustration, some 56% of the Assembly's subordinate legislation
is either unique to Wales or substantively different from the
equivalent legislation applying to England.
1.2 Recent reforms and improvements show
a growing confidence, both in Wales and in London, in those responsible
for delivering devolved government. So, for example:
— Improved governmental arrangements
were speedily enacted and implemented under the Government of
Wales Act 2006 with relatively little controversy.
— New fields of competence have been
conferred, and none taken back.
— Devolved executive powers are now
more extensive both in number and scope (though the distinction
between those and reserved powers is still not always clear).
— It is much less common for powers
to be shared with Whitehall or concurrently or jointly exercised.
Rather, greater reliance is placed on consultation and agreement.
— Acts of Parliament more clearly differentiate
Wales-related provisions, which increasingly confer powers in
terms negotiated by Welsh Ministers.
— Whitehall has a better understanding
of the need to accommodate devolution expectations, which is more
thoroughly reflected, for example, in the applicable Guidance
Notes.
— Parliament and its Committees are
giving greater consideration to Welsh devolution issues, and Government
is necessarily paying greater heed to the concerns and recommendations
made by them.
1.3 Despite these achievments, the Welsh
devolution "settlement" remains complex, without precedent
and, in our opinion, not well understood. Those who are called
upon to operate within the system have been faced from the outset
by the need to come to terms with constantly evolving arrangements
that have no counterpart in Scottish or Northern Irish devolution.
2. PROGRESS OF
DEVOLUTION IN
WALES
The Government of Wales Act 1998
2.1 The first two terms were marked by pragmatic
changes to the National Assembly's constitution as originally
set out in the Government of Wales Act 1998. Principal among these
were the de facto separation of its executive functions
(carried out by the Assembly Government) from its deliberative
and scrutiny role and the gradual emergence of an incipient Parliamentary
Service (in the form of the Presiding Office) to support the Assembly
in discharge of that role. These arrangements always sat uncomfortably
with the Assembly's corporate structure, both arms of which had
to be serviced by officials from the civil service under a single
Permanent Secretary.
2.2 Features of the original scheme that
were designed to encourage inclusiveness and cross-party consensus,
such as the Subject Committees, proved less successful than intended.
In part this is attributable to the Committees' inability to bring
sustained depth in their input to policy development and to shortcomings
in scrutinising both the Executive's policy and the performance
of Ministers. The presence of Ministers as full committee members
was widely seen as contributing to confusion as to lines of responsibility
and accountability.
2.3 The original aim underlying the Assembly
structure was one of executive devolution. However, this evolved
to give the Assembly a fuller role in legislative activity, albeit
under secondary legislative powers delegated, often in a piece-meal
way, principally by Act of Parliament and Transfer of Functions
Orders made under the 1998 Act. But acquisition of the additional
powers (both executive and legislative) necessary to enable a
coherent policy to be developed on a specific topic was dependent
upon the goodwill and cooperation of Whitehall departments and
their own priorities. Formal working arrangements between Cardiff
and London were put in place, with the Wales Office playing a
pivotal role. However, these were never tested in circumstances
where different political parties were in government or in unfavourable
economic conditions.
2.4 There can be no question that the trend
throughout the first two terms was an increase in the capacity
of the Assembly to address Welsh issues. Unfortunately, the resulting
picture was a complex of specific, often detailed, powers rather
than the conferment of the necessary authority to tackle policy
issues in a fully integrated and coherent manner.
The Richard Commission
2.5 The Richard Commission on the powers
and electoral arrangements of the Assembly, estblished as a result
of the Partnership Agreement between Labour and the Liberal Democrats
in the first term, constituted a thorough and well-informed examination
up to late 2003. It contained significant and coherent recommendations,
many of which, but by no means all, carried weight with the UK
Government in the preparation of the Government of Wales Act 2006.
Among those recommendations not given current effect in that Act,
the following stand out:
— The conferment of primary legislative
powers in relation to designated subject areas, on the lines of
the Scotland Act 1998, though with a more restricted range of
subjects.
— An increase in the membership from
60 to 80 to strengthen the Assembly's capacity.
— To accommodate such an increase in
numbers while continuing the principle of proportionality, the
replacement of the AMS system by the introduction of STV as the
mode of electing all the Assembly members.
2.6 The case for implementation of these
recommendations remains strong. Political developments and working
experience during the current Assembly term may strengthen the
argument for implementation in time for the next Assembly election.
The mechanism for instituting primary legislative powers is in
the Government of Wales Act 2006, though it is subject to the
support of two-thirds of Assembly Members and approval by a referendum.
As mentioned below, the Assembly may well prove to be handicapped
by the limitation on its number of Members. This could worsen
when primary powers are acquired. At the same time, it is difficult
to see how the size of the Assembly can be increased without replacing
the present AMS system by a different form of proportional representation.
However, both these recommendations require amendment of the 2006
Act.
The Government of Wales Act 2006
2.7 This Act made welcome improvements to
the devolution arrangements in Wales, not least by the abolition
of the corporate structure and by the formal separation of executive
and legislative functions. The former functions are now vested
in the Welsh Ministers by law rather than as previously by delegation.
The Welsh Assembly Government is made formally accountable to
the Assembly. The Assembly's legislative power is now to make
Measures, a new form of subordinate legislation, on specific matters
set out in Schedule 5 of the Act or as are from time to time added
to that Schedule. The Act introduced a new mechanism for conferring
such additional legislative competence by Order in Council at
the behest of the Assembly. The power to make statutory instruments
under delegated powers now rests with the Assembly Government.
Improvements have also been made with respect to financial matters
that are designed to give the Assembly greater capacity to scrutinise
public spending plans and expenditure.
2.8 There can be no question that the Act
is an advance on the original scheme. However, it seems very probable
that it will prove to be one more intermediate step in the evolution
of the Assembly to becoming a full legislative institution. The
Act contains provision for the conferment of primary legislative
powers on the Assembly with respect to specified subject areas,
but only after such a change has been approved by referendum at
some unstated future date. In the meantime, Wales continues to
be subject to a second phase of constitutional arrangements that
are without precedent. It would be a misnomer to describe the
past and present schemes as constituting a devolution settlement.
Public Acceptance of Devolution
2.9 Although there is little evidence that
the Welsh public is embracing devolution enthusiastically, it
appears that there is widespread recognition that it is here to
stay. Indeed, the most recent public opinion surveys indicate
growing support for greater powers for the Assembly. The Institute
of Welsh Politics poll, referred to earlier, found that support
for full legislative powers has grown from 20% in 1997 to 43%
today.
2.10 Turnout at the 2007 election, at some
43%, may suggest limited public interest, though the trend is
upwards. As with many other public institutions in the United
Kingdom, dissatisfaction as to the achievements of devolution
and the performance and delivery of public services is more frequently
articulated than actual successes in giving effect to Welsh needs
and priorities. There remains wide-scale ignorance of what devolution
entails and how it operates. In part this is attributable to the
poor coverage of Assembly and Assembly Government activities in
the public media, especially the national press.
2.11 The implications of the Welsh electoral
arrangements are not well understood. The past dominance of the
Labour Party has inculcated expectations derived from the practice
of single party government. That proportional representation makes
coalition government more probable than not is only just beginning
to be acknowledged, not least in the political parties themselves.
Until this is better recognised, it may be expected that public
impatience will be registered when faced with inevitable inter-party
negotiations.
3. SHORTCOMINGS
OF CURRENT
DEVOLUTION ARRANGEMENTS
Complexity of Powers
Executive Powers
3.1 The arrangements under which Welsh Ministers
currently hold or may acquire executive powers (including secondary
legislative powers) are largely influenced by the initial scheme
for transferring executive functions to the Assembly. The functions
transferred were principally those specified powers that were
at the time exercised by the Secretary of State for Wales in the
limited range of fields set out in the 1998 Act. In many instances
these did not result in the transfer of all the executive powers
relating to the particular field, or subject topic within a field,
some of which remained wholly or jointly with a UK Secretary of
State. The extent to which executive powers created under Acts
subsequent to 1998 were conferred on the Assembly has had to be
negotiated with respect to each Bill. This contrasts with the
Scottish arrangements, which in the main provided Scottish Ministers
with the same executive powers as enjoyed by Ministers in England.
3.2 The 2006 Act continues to make provision
for the transfer of functions from UK Ministers to Welsh Ministers
by Order in Council though in future the usual method for conferring
such functions will be by primary legislation. In principle, such
provisions could be drawn more broadly, rather than in the specific
terms used in the past. The recent undertaking by Government to
have less recourse to the creation of powers exercisable jointly
or concurrently by a Secretary of State and Welsh Ministers is
welcome.
3.3 The elaborate terms in which the powers
of the Assembly Government are expressed, and the uncertainties
arising from their inevitably jagged edges, are not thought to
present significant problems for those called upon to exercise
them. Nonetheless, the lack of clarity and certainty gives rise
to difficulties for those dealing with the Government or who are
required to hold it to account.
Legislative Powers
3.4 The latest Devolution Guidance Note
No 9 spells out the convention that Parliament will not normally
legislate with regard to devolved matters except with the agreement
of the Assembly.[39]
The Government of Wales Act 2006 establishes the Assembly's legislative
competence to enact Measures in 20 Fields. That competence may
be exercised only in relation to such Matters as are specifically
designated in Schedule 5. The Act itself specifies only a small
number of such Matters, all of which relate to the Assembly's
operations. Accordingly, the Assembly's Measure-making power in
relation to substantive policy areas is dependent upon the subsequent
addition of Matters. This can be done by three distinct processes:
— Conversion by Order in Council of
framework powers to make statutory instruments already contained
in Acts of Parliament. This transitional device is being used
only once, in relation to framework powers under the Education
and Inspections Act 2006 and NHS Redress Act 2006.
— Legislative Competence Orders in
Council implementing proposals initiated by the Assembly.
— Directly by provision in Acts of
Parliament, granting permissive powers to the Assembly to determine
the detailed application in Wales of the Westminster Government's
legislative policy. This mode has already been adopted in legislation
in the 2006-07 Session.
3.5 The steps currently being taken under
the first and third processes usefully enabled the Assembly to
embark upon legislative activities early in its life and thereby
to begin to acquire law-making experience. However, these arrangements
perpetuate shortcomings experienced under the 1998 Act as well
as bringing additional complexity in the development of the Assembly
as an authentic legislature. For example:
— Rather than constituting a clearly
understood settlement of devolved authority, the scheme is a constantly
rolling and potentially unpredictable process for transferring
legislative powers.
— With respect to both devolution clauses
in bills and Legislative Competence Orders, outcomes are dependent
upon the cooperation and goodwill of Whitehall and Westminster.
— Framework provisions in bills, which
are likely to remain a major source of substantive powers, carry
forward the UK Government's policy objectives and priorities that
may not coincide with those of the Assembly Government.
— Such provisions will be acceptable
only if they are appropriate for the scope of the bill and if
they do not exceed the executive functions that the Welsh Ministers
already have.
— Only a limited number of LCOs annually
seems likely (said to be in the order of five), given the time
factors to which the elaborate procedures will give rise for the
two Governments and for the Assembly and Parliament.
— A firm convention is yet to emerge
as to the extent to which Parliament may take notice of the Measures
enacted to implement powers conferred by LCOs.
3.6 At the same time, the new LCO process
is already being utilised vigorously. The Assembly is seizing
the opportunities afforded by the new procedures to enhance its
capacity to implement coherent legislative policies. The concern
that the instruments might be drafted in the detailed and restrictive
format used to express framework powers in bill clauses has not
been borne out. However, at the time of writing there was a difference
of opinion between Cardiff and London over the level of generality
with which the new powers should be expressed. This involved the
proposed Legislative Competence Order No 2 relating to environmental
protection and including the collection and disposal of waste.
3.7 The procedures to be followed with respect
to LCOs put considerable emphasis on pre-legislative scrutiny.
Unsurprisingly, concerns were expressed that neither the Assembly
nor Parliamentarians had an opportunity to take a position on
bill clauses until the bill has been published. It is perhaps
unfortunate, as Devolution Guidance Note No 9, para 17
confirms, that there is as yet no Sewel convention that the assent
of the Assembly must be sought in relation to statutory additions
of legislative powers, as is the case for proposals that have
a negative impact on Assembly powers.
3.8 However, Government has recently announced
the intention to provide explanatory memoranda specifically on
these clauses when the bill is introduced and an offer of early
informal briefing sessions for both the Assembly and Parliamentarians.
These procedures do not include any mechanism for formal feedback,
rather they are intended to better inform those participating
in the scrutiny of these bills during their passage through Parliament.
It remains the case that the Assembly has no special standing
to make its views known to Parliament when draft bill clauses
conferring new legislative powers are under consideration. It
also remains to be seen whether the Assembly will seek to take
advantage of the new powers of Parliamentary public bill committees
to take evidence.
Sources of the Law Relating to Wales
3.9 One consequence of the new legislative
arrangements is the emergence of a plethora of sources of the
law that relates specifically to Wales:
| (i) | Acts of Parliament applying to England and Wales as a single jurisdiction.
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(ii) | Wales-only Acts of Parliament.
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(iii) | Provisions in Acts of Parliament that apply to Wales, including framework powers.
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(iv) | Orders in Council approved by Parliament, including Legislative Competence Orders.
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(v) | Measures made by the Assembly modifying or supplementing existing legislation (including Acts of Parliament) or making new provision.
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(vi) | Subordinate legislation made by Welsh Ministers implementing Community law under Designation Orders made under the European Communities Act 1972, s 2(2).
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(vii) | Subordinate legislation made by Whitehall for England and Wales as a single jurisdiction.
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(viii) | Subordinate legislation made by Whitehall specifically for Wales.
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(ix) | Subordinate legislation made by the Assembly under Acts of Parliament or, exceptionally, under Whitehall subordinate legislation, prior to 2007.
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(x) | Subordinate legislation made by the Assembly Government (or jointly with Whitehall) under provisions of Acts of Parliament.
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(xi) | Subordinate legislation made by the Assembly Government under powers delegated by Assembly Measures.
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3.10 It is by no means clear that the necessary steps
are being taken to ensure that Assembly Members, the legal profession
and civil society generally are able to have access to an up-to-date
collation of these sources of the law, as it affects Wales as
distinct from other parts of the United Kingdom. We are strongly
of the view that early consideration must be given to the separate
publication of a collation of current Welsh legislation, a resource
that will become increasing needed as distinct Welsh law is enacted.
Capacity of the Assembly
3.11 The separation of the Assembly from the Assembly
Government necessarily transforms its role into a legislative
and scrutiny body. In particular, the Subject Committees that
dominated the first two terms have been replaced by Scrutiny Committees.
These scrutinise the work of the Welsh Ministers and examine the
expenditure, administration and policy of the Assembly Government
and associated public bodies. Standing Orders also provide for
Assembly Committees to examine proposed Measures, as well as standing
Committees concerned with Finance, Subordinate Legislation, Equal
Opportunities and European and External Affairs.
3.12 These developments make considerable demands upon
Assembly Members. The Richard Commission took the view that their
numbers should be increased to 80, a view long advocated by IWA.[40]
Given that committee membership must reflect the distribution
of seats between the political parties in the Assembly, its present
size inevitably leads to heavy burdens upon those Members, especially
from the smaller parties, who must take on membership of a number
of committees. The present composition of the Assembly (comprising
41 Members from the two Government coalition parties and 19 Opposition
party Members) points up the nature of the task of those responsible
for questioning the activities of the Assembly Government.
3.13 In the past Assembly Members have been criticised
for the indifferent quality of their contribution to Assembly
debates and to the variable quality of their scrutiny activities.
A larger pool of talent would be available if the size were to
be increased. It is noteworthy that the pre-coalition Labour Cabinet
of 2007 comprised the same group of persons as its immediate predecessor,
though with changed portfolios, despite the apparently diminished
confidence shown by the electorate in that Government. It seems
the case that Assembly elections are not yet attracting the calibre
of candidates that its enhanced role will require.
3.14 Assembly Members must necessarily rely upon the
support services provided by officials if they are to be fully
informed and prepared in the performance of their increased functions.
Steps have been taken to create an effective Parliamentary Service,
which will be required to undertake new and more demanding tasks
than its predecessor, notably with respect to LCOs initiated by
Members or Assembly Committees and to Measure-making. In particular,
it remains to be seen whether the Service can recruit specialist
legal support service to assist Members when engaged in law-making
activities.
4. RELATIONS BETWEEN
CARDIFF AND
LONDON
4.1 Co-operation and coordination between the Governments
in Cardiff and London and between the Assembly and Parliament
continue to be central to the smooth workings of the devolution
arrangements. The experience so far is that different Whitehall
Ministries have met the need to deal with Wales related matters
in variable ways, to some extent dependent on whether their functions
are capable of being devolved to Wales or not. So for example,
the Department of Education has been relatively relaxed about
the transfer of framework powers to the Assembly. On the other
hand, the Home Office, before its division, tended not to involve
the Assembly readily in Welsh matters that arose in non-devolved
fields.
4.2 In principle, past relationships fostered through
the pivotal role of the Wales Office should facilitate the development
of new organisational procedures governing the acquisition by
the Assembly of enhanced legislative powers. However, the picture
may change as a result of other possible developments:
— The emergence of coalition government in Wales.
— The restructuring of some Whitehall Ministries
(already the case with respect to Home Affairs and Justice).
— Were the Wales Office to be merged with other
Territorial Offices into another Ministry, there would be a consequential
loss for Wales of direct representation in the UK Cabinet.
4.3 The value of a senior Whitehall Minister and a distinct
Office providing the link between the Governments in Cardiff and
London has been borne out in the first two terms of the Assembly.
There is every reason to believe that such arrangements will continue
to be necessary if Welsh interests are to be safeguarded in the
Whitehall system. Unlike Scotland and Northern Ireland, dependency
of the Welsh institutions on those in London is for the time being
built into the devolution scheme.
4.4 In the early years of devolution, relationships with
Whitehall were negotiated through the medium of a series of Concordats.
It appears that reliance on these in more recent times has diminished
and their relevance has lessened as actual working relationships
have developed. To an extent their relevance may have diminished
with the development of the Devolution Guidance Notes, although
these are more concerned with the mechanisms of UK Government
law-making than with the relationship between particular departments
and the Welsh Ministers. Arguably, there is a case for a renewal
of the existing Concordats to reflect changed circumstances and
acquired experience. In particular, revitalised Concordats would
bring home to Whitehall the altered institutional structure in
Wales, as well as the need to accommodate the declared intention
of the UK Government to support the enhancement of the Assembly's
legislative competence.
4.5 The first terms of the Assembly have seen the evolution
of largely effective working relationships at the governmental
level. It is noteworthy that differences in the past have been
resolved without recourse to formal intergovernmental mechanism
or to the courts. It is reasonable to expect that these will continue
to provide a firm basis for continued cooperative arrangements,
even in the event of political changes in Cardiff or London or
both.
4.6 The relationship between the Assembly and Parliament
is perhaps less satisfactory, as no formalised procedures exist
whereby the Assembly can engage at Westminster. This shortcoming
may become more important in the future now that the Assembly
is a separate institution exercising powers similar to those of
Parliament. Devolution obviously involves the transfer of deliberative
and scrutiny functions as well as executive, and therefore a diminution
of the matters within the remit of MPs. At the same time, the
scheme adopted for Wales leaves important responsibilities with
Parliament and with Whitehall, which remains accountable to Parliament,
not least in relation to the continuing process of transferring
further powers to Wales. Moreover, England and Wales remains a
unitary jurisdiction with which the Assembly and Parliament have
related responsibilities, not found in relation to Scotland and
Northern Ireland.
4.7 The Welsh Affairs Committee and the Welsh Grand Committee
provide fora where such matters can be scrutinised and debated.
Yet there are no formal links whereby the Assembly is given privileged
opportunities to make its position known through these committees
to Parliament. The Welsh Affairs Committee has sought evidence
through Assembly Members and joint meetings have taken place between
that Committee and Assembly Committees, with satisfactory outcomes,
though only on an ad hoc basis. The new procedures relating to
the formulation and debating of Legislative Competence Orders
will provide further opportunities for joint workings, but they
will require Assembly and Parliamentary officials to put in place
more systematic arrangements to enable the Assembly to bring its
position to Parliamentary notice in timely ways. It will be important
that proposed Orders that are initiatives of Assembly committees
or individual members, rather than of Welsh Ministers, are effectively
presented to Parliament.
4.8 In this context, it is of concern that relations
between the Assembly and the House of Lords are even less formalised,
apparently being dependent upon the interest and industry of individual
peers, very few of whom have Welsh connections.
5. DEVOLUTION CONSEQUENCES
5.1 Little discussion has taken place as to the longer
implications of Welsh devolution. Yet profound consequences flow
from likely future developments, for instance when the National
Assembly acquires full legislative powers.
Referendum on Primary Powers
5.2 The emergence of coalition Government has increased
the likelihood that the move to a more Scottish-style legislature,
envisaged in Part 4 of the Government of Wales Act 2006, will
occur sooner rather than later. We support the case for an early
referendum and the initiative of the Coalition Government to set
up an all-Wales Convention to prepare the way. However, we remain
concerned that the Assembly will not be of a size that will be
able to cope with the new demands that will be made on it. Accordingly,
we take the position that the 2006 Act should be amended to increase
the number of AMs to 80 and, necessarily, that the mode of election
should be altered to STV. Such steps should be taken before any
referendum is held so that the people of Wales are enabled to
vote in the full knowledge of the system that will operate in
future. At the same time, consideration should be given to whether
additional Fields of competence should be added.
A Separate Welsh Jurisdiction
5.3 It is sometimes overlooked that legislation emanating
from Cardiff constitutes part of the law of the unitary jurisdiction
of England and Wales and is therefore capable of being applied
or enforced in courts in both England and Wales. In the past,
much of the law made in relation to Wales has affected administration
and organisational activity in Wales. In the main, those persons
or entities affected have been based, resident or employed in
Wales. Accordingly, issues affecting them have been resolved by
bodies or courts in Wales. The law applied was to be found in
Acts of Parliament and subordinate legislation implementing those
Acts. In principle, Acts of Parliament had primacy over any conflicting
subordinate legislation made by the Assembly. Though found in
differently sourced instruments, the law in Welsh statutory instruments
did not differ substantially from that in England in many matters.
5.4 The Government of Wales Act 2006 introduces a significant
change. Measures made by the Assembly may amend, add to, repeal,
replace or reenact any provisions of Acts of Parliament as they
apply in relation to Wales, provided that they meet the terms
of the relevant Legislative Competence Orders and relate to a
Matter specified in Schedule 5 of the Act. Following a successful
referendum, the Assembly will acquire power to make its own Acts,
with similar wide-ranging effect, in relation to broad subject
areas. The scene is set, therefore, for the emergence of primary
legislation from two sources that carry equal legal weight, though
one of which can operate only in relation to Wales. This leads
to a legally unprecedented situation in which, within a single
jurisdiction, there can be two sets of primary law applicable
to the same matter or subject. Both sets of law must be given
effect by the courts of England and Wales, though if the issue
has arisen in connection with a matter or subject on which there
is legislation applying in relation to Wales that law must be
given effect.
5.5 As the areas on which the Assembly can legislate
extend, the divergence between the law in relation to Wales and
the law that affects England will increase. In time this could
well encompass entire subjects that impact on individuals much
more substantially than in the past. Examples include protection
and well-being of children including adoption and fostering; protection
of consumers with respect to food and drink; and environmental
issues. Moreover, the Welsh legislation would have priority for
those individuals or bodies from outside Wales who enter into
transactions in Wales.
5.6 It seems inevitable that the emergence of a separate
body of law will give rise to demands for the separate treatment
of Welsh legal matters from that for English legal matters. These
would become stronger should the case for devolution of the criminal
justice system, soon to be under consideration by the Assembly
Government under the terms of the One Wales coalition agreement,
be accepted. This implies the creation of a Welsh jurisdiction,
entailing, at the minimum, a separate court system, judiciary,
legal profession and statute book, alongside a distinct jurisdiction
for England and parallel to those in Scotland and Northern Ireland.
This possibility has already acknowledged by the Counsel General,
Carwyn Jones.[41]
5.7 If such a separation took place, it is by no means
clear what other institutional arrangements, for example those
undertaking regulatory activities in relation to Wales, may have
to be put on a separate footing from those for England. Our concern
is that the implications of such a development, which seems a
probable long-term consequence of legislative devolution, should
be recognised and not permitted to emerge, in a disconnected way,
by force of circumstance. There is a good case for an examination
of the extent to which full or partial separation of Welsh and
English legal jurisdictions is feasible, practical, affordable
and desirable.
Trend Towards Federation
5.8 Devolution may not be the most beneficial constitutional
solution or even viable for the United Kingdom in the longer term.
The current trend towards a quasi-federal arrangement seems likely
to continue, demanding more active and formal constitutional links
between the parts of the United Kingdom. In future we can envisage
greater autonomy for Scotland, "English laws for England",
a separate jurisdictional status of Wales from England, and closer
relationships between Northern Ireland and the Irish Republic.
All these may require a formalised constitutional structure in
which intergovernmental bodies such as the Joint Ministerial Committee
and the British-Irish Council would play much more substantial
roles than at present.
5.9 In our view, far-reaching and long-term thought concerning
the possible future structure and institutional arrangements of
the United Kingdom, and perhaps the wider British Isles, should
undertaken well before the evolution of events forces changes
that may not be in the best interests of the countries affected.
It is hard to see how any future discussions as to the possibility
of a written constitution can proceed without a fundamental examination
of this issue.
John Osmond
Director
September 2007
38
The statistics, the result of an ESRC-funded academic survey,
were published on 17 September 2007. Back
39
Ministry for Justice, Devolution Guidance Note 9: Post-Devolution
Primary Legislation Affecting Wales, July 2007. Back
40
See for example, Making the Assembly Work, IWA Constitution
Working Party, November 1997. Back
41
Western Mail, 14 September 2007. Back
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