Wales and Whitehall - Welsh Affairs Committee Contents


1  Introduction

Background

1. Over the past two parliamentary sessions, the Committee has examined a range of subjects, including the cross-border provision of public services (looking specifically at further and higher education; health; and transport); the impact of globalisation on the Welsh economy; the Legal Services Commission's Cardiff office; the potential benefits of the 2012 Olympics and Paralympics for Wales; English language television broadcasting; digital inclusion; and Welsh ports. Evidence we took during our inquiries indicated that decisions were sometimes being made centrally with no apparent awareness of their potential impact on Wales and an inadequate understanding of the devolution settlement. We therefore decided to undertake an inquiry into the relationship between Wales and Whitehall and to examine the extent and nature of the awareness of the Welsh settlement within the Government.

Our Inquiry

2. On 23 October 2009, we announced our terms of reference:

·  Awareness of the devolution settlement within the civil service and of the protocols which are in place in relation to legislation and policy affecting Wales;

·  The role of the Wales Office and the Ministry of Justice;

·  The extent of communication between Whitehall, the Welsh Assembly Government, the National Assembly for Wales and Welsh MPs;

·  The review of Whitehall guidance on devolution, announced by the Ministry of Justice in response to the Committee's report on the Legal Services Commission;

·  Taking forward the findings of the Justice Select Committee in its recent substantial report Devolution: A Decade On.

3. Amongst others, we took oral evidence from the Secretary of State for Wales, Rt Hon Peter Hain MP; Carwyn Jones AM, First Minster for Wales; Rt Hon Rhodri Morgan AM, former First Minster for Wales; Sir Gus O'Donnell KCB, Cabinet Secretary and Head of the Home Civil Service; Sir Jon Shortridge KCB, former Permanent Secretary to the Welsh Assembly Government; and Dame Gillian Morgan DBE, Permanent Secretary to the Welsh Assembly Government. We also took evidence from Gerald Holtham; Sir Emyr Jones Parry; and lawyers and academics. We are grateful to everyone who provided oral and written evidence to our inquiry.

Devolution: a brief history

4. Devolution formed part of the incoming Labour Government's programme of constitutional reform before the 1997 general election. It was described by the then Prime Minister, Rt Hon Tony Blair MP, as "the biggest programme of change to democracy ever proposed".[1] In the United Kingdom, devolved government was agreed to in principle following referendums in Wales and Scotland in September 1997, and in Northern Ireland in 1998. In 1998, Acts were passed to provide for the creation of the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales, with elections to the Scottish Parliament and the National Assembly for Wales following in May 1999, at which point the devolution arrangements were established.

ASYMMETRY

5. The most striking feature of the three devolutionary Acts of Parliament of 1998 was the extent of the differences between the settlements for Scotland, Northern Ireland and Wales,[2] catering, in the words of the Ministry of Justice, "for specific demands for new democratic institutions in those parts of the UK […] while maintaining the sovereignty of the UK Parliament in Westminster".[3] The differing settlements reflected the differences in the political, historical and institutional background of the three nations. Although the Northern Ireland settlement had many features unique to its previously troubled political situation, the settlement for Wales was also quite distinct from the other two. The National Assembly was granted only very limited legislative competence, defined by reference to the pre-existing powers delegated to the Secretary of State for Wales under previous Acts of Parliament. It was also modelled more on local, rather than national government, being established as a "corporate body" in which the Assembly itself governed the country, rather than legitimising and scrutinising a separate government. But the essential difference between the Welsh settlement and those for the other two devolved jurisdictions, which remained even after the settlement was recast in 2006, was that in Scotland and Northern Ireland the powers of the devolved legislatures were defined by exclusion: they had powers over all areas except those that were specified in their founding legislation as reserved to the UK Parliament and Government. In Wales, the scope of devolution was defined (and continues to be after the 2006 changes to the settlement there) by inclusion: the Assembly and Government enjoyed only those powers which have been specifically granted to them by the UK Parliament. We briefly examine the history behind these differences of treatment below.

DIVERGENT HISTORIES

6. In early twentieth century Ireland, "home rule" for the newly created state or "province" of Northern Ireland was a compromise between demands for Irish independence and competing demands for the maintenance of the Union of Great Britain and Ireland, in the context of rebellion and civil war.[4] For fifty years, from 1921 to 1972, Northern Ireland was a separate jurisdiction within the UK, and its government and parliament operated largely independently of the rest of the country. The Northern Ireland Parliament was the legislature until it was suspended in 1972 as a result of the breakdown of law and order, and formally abolished in 1973 under the Northern Ireland (Constitution) Act 1973. This created in its place a body called the Northern Ireland Assembly, which in turn was abolished in 1974. Although Northern Ireland remained a separate jurisdiction in principle, for the next 25 years it was governed directly by the UK Government, despite a brief attempt at a limited form of quasi-devolution with another Assembly between 1982 and 1986.

7. Scotland was a sovereign state until the Acts of Union of 1707 abolished the Scottish and English Parliaments and established a Parliament of Great Britain. The Acts, however, allowed Scotland to retain many of the distinctive features of a separate jurisdiction: the continuing autonomy of the Scottish legal system, its distinct education system, the Scottish established church, and its organisation of local government. Over the subsequent centuries, all legislation relating to Scotland was made at Westminster by the Parliament of Great Britain (after 1801 of the United Kingdom) but it generally dealt with Scotland separately as a distinct jurisdiction. From the turn of the century, campaigns for "Home Rule all around" had been led by the Scottish Socialist and MP for Merthyr and Aberdare, Keir Hardie. A form of "executive devolution" occurred with the establishment of the post of the Secretary of State for Scotland in 1926. Some campaigning for independence, or for some form of devolution, continued throughout the next 50 years, with the Scottish National Party being founded in 1934 and its first MP being elected to Westminster in 1967. There has been continuous representation since that time.

8. In 1978, Parliament passed the Scotland Act, which provided for the creation of a Scottish Assembly with relatively limited powers. The Act triggered a referendum in Scotland held on 1 March 1979. Although there was a majority in favour of devolution, only 32.5% of the electorate voted for it. The Act required 40% of those eligible to vote to have done so in the affirmative (as well as being the majority of those voting) for it to have statutory effect. The 1978 Act was subsequently repealed by Order in July 1979.

9. England and Wales have, in contrast, formed a single jurisdiction for almost 500 years.[5] Executive devolution to Wales of the kind seen in Scotland from the 1920s onwards was only developed in Wales after the Second World War. The Welsh Courts Act of 1942 addressed not only the language issue but, significantly, the running of courts in Wales. Other developments included the disestablishment of the Church and legislation on Sunday closing. The Welsh Office and the Cabinet post of Secretary of State for Wales were established in 1964. Welsh-specific legislation was made at Westminster in only very limited areas: language and local government being the main ones. In the Welsh devolution referendum of 1979, devolution was decisively rejected by a majority of four to one. The voices advocating devolution in Wales were subdued for a period following the referendum defeat.

THE 1998 SETTLEMENTS

10. In September 1997, referendums were held in Scotland and Wales on the proposals from the new Labour Government for devolution to each nation. In Wales the referendum endorsed the new Labour Government's proposals for the creation of a National Assembly for Wales by a majority of only 6,721 votes, by 50.3% to 49.7% on a turnout a shade over 50%. In Scotland, 74.3% of those participating voted in a referendum in favour of the Government's proposals for a Scottish Parliament, with a much wider range of powers than had been proposed in 1978.

11. A referendum affirming the principle of a new democratic devolution settlement was held in Northern Ireland in May 1998. The elections to the transitional "new" Northern Ireland Assembly were held in June 1998 (with devolution of powers under the provisions of the Northern Ireland Act 1998 not occurring until December 1999). The Northern Ireland Act 1998 established a new Northern Ireland Assembly as the devolved legislature for Northern Ireland, subject to complex "power-sharing" rules of procedure. It has been suspended for long periods of its existence, with direct rule being re-imposed in these intervals. The Assembly can make law in those areas of competence "transferred" to it under the provisions of the 1998 Act. It cannot legislate in matters which are "excepted" or "reserved". "Excepted" matters would require primary legislation to hand over. "Reserved" matters may be transferred by Order in Council if there is cross-community consent. The last significant transfer of reserved powers (over policing and criminal justice) has been agreed by the Assembly. Westminster legislation will confirm this.

12. The Government of Wales Act 1998 had created the National Assembly for Wales with secondary law-making powers in areas specifically prescribed in the Act (and in a Transfer of Functions Order). The 1998 settlement did not last long and the corporate body model immediately came under strain. During the second Assembly, the Richard Commission was appointed to consider the devolution settlement in Wales. It made a number of recommendations which encompassed some quite fundamental changes. Many of these were accepted by the UK Government, including those for an extension of the Assembly's competence to making quasi-primary legislation ("Assembly Measures") and mechanisms for enlarging the scope of the Assembly's legislative competence to new fields and matters. The Government also accepted the proposal to separate the Assembly from the government, creating a legislature-executive model on Westminster lines (as in Scotland and Northern Ireland).

13. In 2006, a new Government of Wales Act was passed, which gave effect to these changes. The Act also made provision for the possibility of a future referendum on full law-making powers within the devolved fields of competence specified in the Act (subject to the approval of both Houses of Parliament).

DEALING WITH DIFFERENT DEVOLUTIONS

14. We heard evidence that the different constitutional arrangements for the four home nations have meant that "it is hard for civil servants in Whitehall to understand exactly what the position is" in each of them.[6] We heard concerns that both ministers and civil servants in Whitehall either concentrated too much on Scotland or failed to distinguish between the Scottish and Welsh settlements in dealing with devolution. The Rt Hon Rhodri Morgan AM, former First Minister for Wales, saw it as a cultural question, a matter of colonial thinking:

    Scotland has always been accepted as not a foreign country but another country [...] The problem about Wales is that it is not seen as another country; it is seen as, if you like, the last colony in the Empire problem, because people still have a perception of an England and a Wales set-up.[7]

Carwyn Jones AM, First Minister for Wales, commented on his early experiences as a Welsh Minister working with Whitehall:

    My experience [...] was that Scotland was regarded as something separate and Wales was regarded, as it was suggested to me, as an experiment in devolution and, whilst the situation has improved since then, there is still scope for improvement. It is [...] to do with history in terms of the fact that the Scottish Office goes back to the 19th century, the Wales Office back to 1964, and an understanding that still persists to an extent that Scotland is different.[8]

15. Alan Trench, Honorary Senior Research Fellow from the Constitution Unit at University College London, commented that civil servants often misunderstood the situation in Wales because they "read-across" to the Scottish precedent. As he argued:

    The one thing that can be guaranteed not to work is to apply the principles that govern Scotland to Wales [...] Wales is not Scotland; Scotland is not Wales; if you confuse the two you will get things wrong.[9]

16. Witnesses commented that the different constitutional arrangements over the last century had led to Wales having a different profile in Whitehall from that of other nations within the United Kingdom. Dr Jim Gallagher Director General for Devolution at the Ministry of Justice acknowledged that "It is probably fair to say Scotland, being bigger, has had more of a footprint in Whitehall over the years than Wales has".[10] Alan Trench agreed:

    This is something that goes back to the size and strength of the Scottish Office in the period before devolution, the relative authority and strength of Secretaries of State for Scotland, and their ability to get very good deals; which in turn goes back partly to the constitutional position of Scotland within the UK, and partly to the extent to which the SNP is seen as a political threat. That has always highlighted issues relating to Scotland in a way that has not happened in relation to Wales.[11]

Dr Gallagher commented that there was also the wider difficulty of how Whitehall dealt with devolution:

    ... it continues [...] to regard the devolved administrations as the government departments they used to be [...] This is an issue in relation to Wales, and is an issue in relation to Scotland also; helping both government departments and indeed what you might call the political system in general to realise that Wales now enjoys two Governments; that it enjoys two legislative bodies—this Parliament and the Assembly—just as Edinburgh enjoys both pleasures of that sort as well; and is and remains a major educational task.[12]

17. The way in which the United Kingdom is governed has changed profoundly over the last twelve years, in different ways in different nations of the Union. Whitehall has not fully engaged with the complex nature of the devolution settlements. There is a need for a proper understanding of the devolution settlements to be fully embedded within Whitehall departments. Whitehall must realise that the differences in constitutional arrangements have implications for policy and legislation. The National Assembly for Wales and the Welsh Assembly Government (including both politicians and civil servants) have a major role to play in that learning process which they appear not to have undertaken fully in the last decade.


1   Speech to Labour Party Conference, 4 October 1994 Back

2   The Government of Wales Act c.38, the Scotland Act c.46, and the Northern Ireland Act, c.47 Back

3   Fifth Report of the Justice Committee, Session 2008-09, Devolution: A Decade On, HC 529-I

 Back

4   Royal Commission on the Constitution, 1969-73 Vol I, 3 Back

5   Act of Union 1536 Back

6   Q 341 Back

7   Q 71 Back

8   Q 446 Back

9   Q 341 Back

10   Q 146 Back

11   Q 341 Back

12   Q 167 Back


 
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