Eight hundred years ago Edward the first of England conquered Wales and three hundred years later the Laws in Wales Acts all but abolished Welsh law. It is quite remarkable then that this summer we are celebrating the 20th anniversary of the creation of a National Assembly for Wales which is likely to be elevated soon to the status of a Welsh Parliament or Senedd Cymru.
It has certainly been a seismic 20 years. Although much of the political focus has rightly been on the delivery of public services in areas such as health and education, it is important we do not underestimate the political, social and legislative transformation that went alongside.
For its first few years the Assembly was predominantly an administrative council for Wales, distributing an annual budget of around seven billion pounds. Bureaucratic processes severely restricted the Assembly’s legislative capability, which could only be exercised with Westminster consent. It was with the Government of Wales Act 2006 introduced by then-Labour Secretary of State for Wales Peter Hain, with its subsequent endorsement by a public referendum, that the Assembly was transformed into a parliament with significant primary legislative powers over areas of devolved responsibility.
This meant it could pass its own Welsh laws, by-passing Westminster and going direct to the Crown for Royal Assent. The Wales Act 2014 gave the Assembly its first tax-raising powers for eight centuries and in 2017 yet another Wales Act extended the areas of responsibility still further, albeit by changing its constitutional framework to that of a reserved powers framework similar to the Scottish model.
A Progressive Record
Doubts expressed by some politicians about the ability and competence of the Assembly and its elected members to exercise these powers have largely been dispelled. By any reasonable and objective standard the quality of legislation, the drafting and the scrutiny by committee has been as high as you would expect to see in any of the world’s most established parliaments.
In its first eight years it has passed thirty-eight pieces of primary legislation and several thousand pieces of secondary legislation. They have begun to transform the Welsh legal landscape. Highlights included groundbreaking law to provide employment protection to some 13,000 Welsh agricultural workers, which was challenged by the UK government but upheld by the Supreme Court.
But there were also less high-profile cases. Simple, well-thought out legislation requiring food outlets to display their hygiene ratings has transformed food standards across Wales. The world-leading and pioneering Human Transplantation (Wales) Act 2013 introduced the principle of presumed consent, which has not only saved lives by increasing the number registered donors and organs for transplantation but provided the basis for similar legislation now being copied in England and in parliaments throughout the world.
Wales led the world in other areas too. The internationally-recognised Wellbeing of Future Generations (Wales) Act 2015 uses the model of a European directive to create a framework for public decision-making which requires all public bodies to take account of a number of well-being factors including fair work, equality, community, culture and Welsh language and, importantly, in today’s political climate, global responsibility. Overseen by a Sustainability Commissioner this landmark legislation has been influential even at a United Nations level.
In a climate of severe austerity and budget reductions, the legislative focus of Welsh Government has been markedly different to Westminster, aimed at promoting socio-economic equality. The Trade Union (Wales) Act threw down a challenge to Westminster’s anti-trade union laws by limiting some of their worst effects in the public sector. The Regulation and Inspection of Social Care Wales Act 2016 tackled the challenge of zero hours contracts by providing a legal entitlement to fixed hours after three months in the social care sector.
Other legislation has sought to protect the stock of social housing by abolishing the right-to-buy, increasing the rights of tenants, establishing an Additional Learning Needs and Education Tribunal, promoting public health, minimum pricing of alcohol and safe staffing levels for nurses.
This record looks set to be built upon under First Minister Mark Drakeford, who has committed to introducing in this session a pioneering Social Partnership Act. This will put the existing partnership of business, trade unions and government on a statutory footing and use the leverage of around six billion pounds of public sector procurement each year to establish a framework for encouraging ethical standards of employment and greater collective bargaining, as well as giving workers a greater voice in the delivery of publicly-procured services and investments.
Alongside the implementation of Section 1 of the Equality Act 2010 this will represent the most significant use of legal intervention in socio-economic affairs by any government in the UK since the ‘60s. More law reform is already under consideration with a Legislation Bill to codify Welsh law and increase accessibility, and a Senedd Bill to reform the electoral franchise and reduce the voting age to 16. In addition, the Welsh Government’s Justice Commission, chaired by the former Lord Chief Justice Thomas, and the Welsh Fair Work Commission are both due to complete their reports and recommendations imminently.
This young parliament is rapidly transforming the legal landscape of Wales and creating a new Welsh legal jurisdiction. The past 20 years have been a legislative roller coaster. But what will the next 20 hold?
The Next 20 Years
Let us imagine a scenario. It is 2039 and we are celebrating the 40th anniversary of devolution. The last 20 years have been a period of rapid and unprecedented change. The UK is no more. Scotland has left and joined the EU. The predictions made two decades earlier about the planetary effects of climate change are now an everyday reality for governments, with food and water security the nation’s top concern. The combination of increased life expectancy and a population which has grown to 3.5 million is placing huge pressure on public services, with NHS spending now accounting for two thirds of the Welsh Government’s budget.
It is of course, almost impossible to predict what the Assembly and the UK will look like in 2039, but this is just one of the many alternative scenarios that could play out over the next two decades. What is clear, however, is that as we enter a period of accelerated environmental, technological and societal change a number of destabilising factors are coming together to make 2019 a challenging time in which to build a solid foundation for the next two decades.
The ongoing experience of Brexit in particular has highlighted the volatility and vulnerability of our political institutions and constitution. The Brexit genie cannot be put back in the bottle. It has triggered a process which could potentially lead to a constitutional meltdown.
Across Europe and globally, the growth of far-right nationalism contributes to this political instability and exposes long-standing failures to address the consequences of decades of increasing social inequality.
When Theresa May said that we joined the EU as one nation and that we will leave as one nation, she was manifestly incorrect. We are not the same as we were in 1974. We are now four nations, with devolved government. Whatever the outcome of the current Brexit turmoil, without a new constitutional settlement the UK as we know it is unlikely to survive.
In my view a decentralised or federalised structure is the likely way forward. A new Joint Ministerial Council operating as a UK Council of Ministers currently has the support of nearly all the members of the inter-parliamentary forum of constitutional and legislative committees in the Welsh, Scottish and UK Parliaments. It is an option which offers a solution to the most difficult part of this constitutional conundrum, the lack of any strategic devolution process in England and the inability of Westminster to come to terms with its own need for radical reform.
At the core of any future realignment must be an overhaul of the financial arrangements between Wales and Westminster. The Barnett formula has worked surprisingly well over the years but is now past its sell-by date. We need a new needs-based formula that can reflect the principles of equality and social justice.
As we move toward 2039, Wales’ population will become increasingly older, which will reshape thinking in a range of policy areas including health, housing, transport and social care. The ability of our services and infrastructure to meet these challenges will depend greatly on funding decisions made today. The damaging legacy of UK government austerity is likely to still be felt in twenty years’ time, but action now can at least offer the potential for service recovery.
The Welsh NHS is Wales’ most-loved institution and that isn’t going to change, but failure to properly fund the NHS could undermine its long-term existence and lead to the creation of a two-tier health system. I do not believe the public would ever forgive politicians if that was to happen.
Within the next decade I believe that Welsh legal jurisdiction will be administered within Wales. Initially policing and youth justice will be devolved, followed later by criminal justice. The growth of Welsh law, and the divergence with English law, will contribute to a more federalised legal system with the Supreme Court acting as a constitutional court. There would need to be another Wales Act to make the constitutional reforms necessary.
Further devolved powers will heighten the need for a new, judicially-binding Sewell agreement to clearly define the decision-making processes between Westminster and the devolved institutions, and the creation of a disputes-resolution process. In addition, the increased legislative responsibilities and scrutiny may eventually lead to an increase in the number of Assembly Members, probably to 80.
The most immediate threat to the process of devolution, which most people see as ongoing may come within the next couple of years. A UK government, which already appears to be seeking to recalibrate devolution through international trade agreements, through trade dispute mechanisms and through the management of financial programmes such as an ill-defined ‘shared prosperity fund,’ attempting to replace Brussels with a recentralised Westminster government would undermine devolution and create conflict which might well lead to increased demands for and eventual independence.
We can imagine that year in 2039, celebrating the 40th year of devolution. A new UK constitutional settlement proved to be the precursor to a reformed and fairer funding formula, from which Wales and some English regions have been the main beneficiaries. The eighty members of the National Assembly now have responsibility for policing and Wales has its own justice system as part of the ongoing and evolving devolution process, which has also seen further devolution of powers to local authorities. Visionary decisions made two decades earlier to commit to an integrated transport system, a social partnership model and a twenty-first century housing policy continue to be major factors in increasing social justice in our country.
These are some of my hopes for the Assembly’s future, but ultimately the measure of success over the next 20 years will be whether the Welsh parliament has grown the economy, increased the overall prosperity of the nation and ensured a real redistribution of wealth.