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.
2. On 23 October 2009, we announced our terms of
of the devolution settlement within the civil service and of the
protocols which are in place in relation to legislation and policy
· 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
· 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".
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
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,
catering, in the words of the Ministry of Justice, "for specific
demands for new democratic institutions in those parts of the
] while maintaining the sovereignty of the UK Parliament
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.
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. 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
9. England and Wales have, in contrast, formed a
single jurisdiction for almost 500 years.
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.
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.
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.
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.
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".
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.
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 bodiesthis Parliament and the Assemblyjust
as Edinburgh enjoys both pleasures of that sort as well; and is
and remains a major educational task.
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
1 Speech to Labour Party Conference, 4 October 1994 Back
The Government of Wales Act c.38, the Scotland Act c.46, and the
Northern Ireland Act, c.47 Back
Fifth Report of the Justice Committee, Session 2008-09, Devolution:
A Decade On, HC 529-I
Royal Commission on the Constitution, 1969-73 Vol I, 3 Back
Act of Union 1536 Back
Q 341 Back
Q 71 Back
Q 446 Back
Q 341 Back
Q 146 Back
Q 341 Back
Q 167 Back