The Approach to Laws for a Nation
Before attempting to explain what appears to be the vast and hugely complex subject of the laws that a nation needs that are best for that nation and national in their application as distinct from law that is best for commerce that operates transnationally, it may be helpful to signpost the scope of this first chapter by identifying at the outset the questions to be addressed in turn, using Wales as a case study:
1. Why does a nation need its own law? What are the principles that should govern the scope and extent of that law (omitting at this stage the principle applicable to the position of a nation within a Union)?
2. How was Welsh law developed and then abolished? How in 1999 was law-making restored to the Welsh nation?
3. What assessment can be made twenty-five years after the restoration of law-making to the Welsh nation, given the incredibly complex way it was restored and the changes that have since occurred?
4. What principles should apply to the law-making position of a nation within a Union?
5. What role should the principles play?
6. What are the options for law-making powers for the Welsh nation based on the principles?
1.1 Why Does a Nation Such as Wales Need Its Own Laws? What Are the Principles That Should Govern the Scope and Extent of That Law?
1.1.1 Why Is Law So Important to a Nation?
It may seem superfluous to begin by explaining the centrality to a nationFootnote 1 of law and its justice system. However, experience has shown that most take law for granted and do not think about its centrality. Most people, for example, accept the rule of law as if this was something that was clearly understood by all, but which few in reality do.
Law is in fact the foundation necessary for all nations.Footnote 2 It establishes and defines the powers of the nation’s governance; it regulates the relations between citizens and the state and relations between citizens and other citizens. The last is essential for the resolution of disputes and the underpinning of commerce.
Again, some understand a justice system as providing a dispute resolution service. That is a misconception. It is a pillar of a nation’s democratic government because the justice system safeguards the rule of law, maintains the certainty of the law, while allowing for its development, provides public access to the law, provides openness and accountability, and ensures that decisions are made independent of interests.Footnote 3
1.1.2 The Needs of a Nation for Its Own and Distinctive Laws
Why then does a nation seek its own and distinctive laws? There is a general consensus that a nation great or small should be free to maintain and develop its distinctive character.Footnote 4 That distinctive character and the nation’s common values are expressed most clearly though the nation’s law. In doing so, it gives the clearest expression to the spirit of a nation.
However, there are laws that are either universal or transnational in their application and from which nations do not and should not diverge. Piracy iure gentium (by the law of nations) was amongst the first subjects of such universal law. Today the principal fields of such law are those that relate to individual liberty such as laws that prohibit slavery, arbitrary arrest and punishment and other principles that are embodied in the Universal Charter of Human Rights and regional conventions such as the European Convention on Human Rights. Although there are fundamental laws about which there is, at least in theory, no dispute, the extent and scope of the laws that can be categorised in this way can depend on the nature of the form of government. For example, the extent and scope in liberal democracies is generally much greater than in nations that have more restrictive forms of government.Footnote 5
Transnational law has developed to meet the practical needs of nations, particularly laws that govern trade, finance and commerce, as their needs are best served by laws that are not national but transnational in their application.Footnote 6 Although the way this developed is explained in Chapter 2,Footnote 7 some examples are necessary. The law of general average, emerging as it did in Rhodes in the third to fourth century BCE is a good example of early and generally applicable transnational commercial law. In the early middle ages, the special characteristics of a bill of lading and of a policy of marine insurance were developed in medieval Europe. It was the genius of English law that developed these further.
However, there are very many areas of law where the needs of a nation’s people are best served by that nation being in a position to make its own laws and making them. The question to address by reference to Wales as a case study are what principles should influence the decision on where that line should be best drawn to benefit the people of a nation.
1.1.3 Wales as a Nation?
If Wales is to serve as a case study for nations needing their own distinctive laws, then it is necessary to refer to the question sometimes still raised as to whether Wales truly is a nation.Footnote 8 I do not think today anyone doubts that Wales is a nation. However, there have been suggestions that it is not really a nation: a good example is provided by Lord Simon of Glaisdale:Footnote 9
The Welsh are a nation –in the popular, though not in the legal, sense – by reason of Offa’s Dyke, by recollection of battles long ago and pride in the present valour of their regiments, because of musical gifts and religious dissent, because of fortitude in the face of economic adversity, because of the satisfaction of all Wales that Lloyd George became an architect of the welfare state and prime minister of victory.
More surprisingly have been contentions that it is not,Footnote 10 where reliance has been placed on matters such as the absence of any distinct legal system, lack of a capital city until Cardiff was designated as the capital in 1955 (some had mischievously referred to Liverpool as it was said to have more Welsh people than any other city), its historically indistinct border (highlighted by the ambivalent status of Monmouthshire) and the formidable geographical obstacles to unity.
Although the Aberdare Commission on education in Wales had in 1880 made clear that Wales had a distinct nationality of its own,Footnote 11 just under a century later the Kilbrandon Commission had to justify the reason it considered Wales should be treated in the same way as Scotland and given legislative powers. It did so in these terms:
There remain a strong sense of Welsh identity, a different way of looking at things and a distinct feeling that the needs and interests of people in Wales must be considered separately from those of people elsewhere in the United Kingdom.Footnote 12
Welsh identity was also often characterised as linguistic and cultural (sometimes itself debunked as spurious) rather than political and legal. Although this was based on ignorance of the major events in the history of Wales, the laws and justice system Wales had enjoyed and the contribution Wales had made to legal development and the absence (in modern times) of its own law and legal system was a principal reason used to justify the different treatment of Wales to Scotland at the end of the twentieth century.Footnote 13
Thus, a nation’s ability to make its own laws through its own legislature and to develop and interpret those laws through its own judiciary is a significant factor in differentiating a nation and in strengthening it. The scope of the laws a nation should be able to make must, however, be based on principles.
1.1.4 Principles That Govern Choice of Law for a Nation
1.1.4.1 First Principle: The Values and Ambitions of a Nation
The first principle is that a nation should be able to make laws that will foster and support the kind of society that it aspires to establish, its tolerance of views and conduct that are permitted, the family or other unit it wishes to strengthen, the nature of its education system, the extent of the health care it provides or the extent to which it wishes to enhance privacy. Although across most nations certain types of conduct are generally criminalised, a nation is entitled to determine whether there is conduct that should be permitted such as assisted dying or the extent of the criminalisation of drugs. The type and severity of punishment of criminals is again a matter that is for a nation to decide in the same way as it should decide on the type of policing it considers best meets its needs.Footnote 14
The laws will also set the criteria for social and economic support, economic development and the transmission of wealth between generations. It will set the degree of protection consumers require, the circumstances in which compensation must be paid and the nature of the remedies available.
The values will change over time. For example, if (as I will outline) the ambitions of those who at the turn of the nineteenth and twentieth centuries sought for Wales its own executive government, legislature and judiciary had succeeded, there is no doubt that the relationship of the church and chapels and the rights in respect of land would have been considered so important that Wales would have ensured laws in respect of these were made as a matter of priority.
1.1.4.2 Second Principle: The Distinct Culture and Language of a Nation
A second principle is law that is needed to protect or strengthen the culture of the people of the nation. In relation to Wales, of primary importance has been law that protects and promotes the Welsh language, education, its cultural heritage and its modern culture. It can, if it wishes, as Wales has done, protect Welsh by legislating in Welsh and giving it an equal status to English.
This was seen by the six members of the Kilbrandon Commission who in 1973 favoured ‘a generous measure of devolution’Footnote 15 as required for Wales as a nation:
A distinctive community with its own needs and interests and with a culture and language to preserve and foster, and there is scope for a substantial volume of separate legislation devised by the Welsh people to meet those special needs. Those of us who take this view believe that a generous measure of devolution, in recognition of the national identity of Wales and as a counter to the growing scale of government and spread of uniformity, would be more likely to strengthen than to weaken the unity of the United Kingdom.
1.1.4.3 Third Principle: The Capacity, Resources and Experience to Make and Develop Law
A third principle is the capacity and resources available to make law and develop that law. Sometimes it is asserted a nation should only have limited powers to make and develop law on the basis that the nation or the state does not have the experience to make its own law and to govern. This is the usual argument of nations who wish to exercise dominance over other nations or those who do not wish to see a nation have more than the minimum of its own distinct law.
It is, however, not a principle that should be determinative of the scope of the law that a nation should be entitled to make. Making any law entails costs, skills and resources, and a nation must be capable of achieving these. However, there are two courses that can be adopted while capacity and resources are developed. First, when a nation obtains its own powers of government, it is usual for the nation at first to adopt the law that had hitherto applied in the nation and make changes to that adopted law as experience and capacity develop. The choice as to what to keep or what to change is for the nation. Second, a small nation may need to prioritise work on certain areas of the law; if it does not have sufficient resource or skills available to craft its own distinct law, it may borrow the text of some laws from other states. Therefore, although capacity and resources are essential, these can be developed and should not be used to deny a nation its own choice of law.
The further development and interpretation of the nation’s law should be made by those who live in and actively participate in the life of the nation. This is not something that can be outsourced to a judiciary that is not an integral part of the three branches of government within the nation; that is because such interpretation and development requires an understanding of the nation, its own distinctive characteristics, its governance, its polity and the circumstances in which the laws have been made. Such capacity has to be fostered as does the necessary support from a legal profession, which, though practising as widely as other jurisdictions permit, sees as its primary objective serving the needs and developing the laws of the nation.
1.1.4.4 Fourth Principle: The Making and Administration of Simpler and Accessible laws
A fourth principle is the vision and will of a nation to make law as simple and as accessible as possible and as well as being as straightforward as possible to administer. This is essential if law is to play its proper role for a nation in meeting the needs of that nation.
The simplicity of law depends largely on:
a. The skill of the makers of the law, whether the maker is a legislator or a judge, in expressing it shortly and clearly.
b. The willingness of the maker of the law to trust the person who is going to carry it out or administer it. Detailed and complex codes or regulations in such diverse fields as police conduct, the administration of social security and sentencing of offenders often reflect the need to control the application of the law and to try and achieve its consistent application. In a small nation, it is often sufficient to rely on knowledge of and trust in those who are to administer the law rather than imposing constraints on discretion.
c. The willingness of the maker of the law to systematise or codify it. UK legislation is an example of unsystematised legislation and of a reluctance to codify or restate the law, an issue relevant to English commercial law addressed in Chapter 3.Footnote 16 Wales is taking a different course as I will shortly explain.Footnote 17
d. The method of drafting and interpreting. Some speak of the difference between the common law method of interpreting law by an examination of the language employed and of the civilian method of interpreting by reference to general principles and guidance. Each nation should have a choice, which often relates to the legislature’s trust in the independence, ability and understanding of its judiciary.
If a nation is to make its own distinctive law, then it must have the capacity to make that law accessible. This has been recognised to be a constraining factor in many nations as assistance is often required in understanding and using legal rights.
Relevant to ease and effectiveness of administration of law and to responsibility and accountability is the coherence and size of the nation. It is well recognised that it is often simpler to achieve effective administration of law in a small nation and to hold to account those who have the responsibility for the governance of the nation.Footnote 18
1.1.4.5 Fifth Principle: The Ability to Address the Concerns of Its People
A fifth principle is the ability to address through law the concerns of its people. The failure by those who govern or who make or interpret the law to understand the concerns of the people (or the perception of such failure) inevitably leads to discontent and unrest. It is much easier to understand and address such concerns if the people of a nation has its own government and its own law-making powers. The laws can then be drafted and interpreted in such a way as to meet those concerns.
1.1.4.6 Sixth Principle for a Nation within a Union
There is a sixth and key principle for a nation that is part of a Union, namely, achieving the right balance between the respective powers of the Union to make law for the Union and the powers of the nation within the Union to make law for the nation. To address that balance, context is essential.Footnote 19 In Wales that context includes the long history of its law and the way in which law-making was restored in 1999 and thereafter. Furthermore, as a lack of an understanding of the past was an important factor in the minimalist law-making powers granted to Wales and the Welsh nation in 1998,Footnote 20 that has to be corrected if Wales is to be treated in the same way as other nations; there is no basis for what is described as Welsh exceptionalism. I will consider this sixth principle under the fourth of my questions but only after I have explained the context of Wales and the Welsh nation as a case study.
1.2 Wales as a Case Study: How Was Welsh Law Developed and Then Abolished? How in 1999 Was Law-making Restored to the Welsh Nation?
1.2.1 The Background to the Use of the Welsh Nation as a Case Study
Although the events before 1999 are fairly straightforward, the events thereafter are complex and involve highly technical issues. A word about the approach taken to using Wales and the Welsh nation is therefore necessary:
1. Since the initial restoration of law-making powers to Wales, there has been much concentration on the practical. The Commission on Justice for Wales, for example, examined the question of whether Wales should have control of its own justice system by approaching the issue with an emphasis on the practical and pragmatic. It concluded after a detailed review set out in a report of some five hundred pages that there was a strong case that Wales should have its own justice system.Footnote 21
2. Although this chapter encompasses practicalities, including those in relation to justice, its focus is on the principles applicable to the much wider question of the needs of a nation and its spirit. Those needs can only be met if the nation has a governmental structure to make such laws. In modern times, the governmental structure of a nation is best examined through the generally accepted principle that the powers and responsibilities of a nation are shared between three branches of government – the executive (commonly called the government), the legislative (the parliament) and the judicial (the courts), each being independent of the other but also being interdependent on each other.Footnote 22 In taking Wales as a case study, the way Wales gradually acquired powers of government over the last twenty-five years is central to consideration of the issue as to the laws Wales as a nation ought to be able to make. To make this highly complex subject more ‘digestible’, this chapter focuses on these universally accepted core components of government and law-making. That is an easier course than examining the minutiae of the evolution of governmental powers over twenty-five years or reviewing the enormous volume of materialFootnote 23 that exists on the issue, even if this is confined to Wales alone.
3. Where a nation is part of a Union, as Wales is, the extent of the laws it should make for itself also depends on the laws that the Union should make – itself a question that involves consideration of the purpose and nature of the Union and the powers allocated to it.
4. The position of the Union can be examined either by considering what should be conferred (or in the terminology commonly employed in the UK ‘devolved’) by the Union on its constituent nations or by considering what laws the nations of the Union ought to be able to make and those which it is for the Union to make. Looked on in the second way, the key considerations are (1) the purpose of the Union and (2) the governmental arrangements of the Union for the joint exercise of powers where joint exercise is necessary. Greater focus is therefore needed on the laws a nation needs and the extent to which it should pool some laws with the Union or accept that some laws should be transnational.
5. As it is important to draw a distinction between a nation and other entities within a nation such as a region or cities (such as London or Manchester), the application of the term ‘devolution’ to both the allocation of powers to Scotland, Wales and Northern Ireland and the allocation of powers to entities within England (as is done in the Levelling Up and Regeneration Act 2023) can add confusion. ‘Devolution’ is an appropriate word where it is used historically, but it is better now to speak of the allocation of the powers of the executive, legislative and judicial branches of government to nations and to a Union rather than to use the term devolution.
1.2.2 The Development, Life and Abolition of Laws for the Welsh Nation
The history of the law that developed and prospered for the Welsh nation culminating in about 945 with the Code of Hywel Dda is today much better known in Wales from its coverage in mainstream works.Footnote 24 It is only therefore necessary to mention seven points about early Welsh law to provide the relevant historical context:
First, the law was Welsh law and administered by Welsh judges. The law was significantly different from the law in England of that time but at least on a par with it and the law of the other nations of Europe.
Second, It was a well-developed and sophisticated system, covering law, procedure, judgesFootnote 25 and administration.Footnote 26
Third, it was codified.
Fourth, Welsh was the language of the law and Welsh developed its own legal terminology as a natural part of its language.
Fifth, the laws of Wales adapted over the centuries by applying its principles to meet new situations.
Sixth, it can be rightly said that the law provided an identity and focus of unity for the people of Wales and defined its people as a nation.Footnote 27 Indeed, from that perspective it could be seen as a golden age to which the people of Wales could look back.Footnote 28
Seventh, in those parts of Wales later conquered by the Normans and the English, the law adapted in more complex ways.Footnote 29 For example, certain aspects of the law relating to the family and inheritance depended on the nationality of the person – English law applying to the English and Welsh law to the Welsh – a system similar to that which today applies in some states. In boroughs, trading customs were adopted from communities with which they were directly or indirectly associated, giving it a rudimentary transnational aspect.
The Acts of Union of 1535 and 1542 unified England and Wales and applied English law to the whole of Wales. Welsh law and customs (particularly the laws of inheritance)Footnote 30 ceased to have effect and English law took its place.Footnote 31 English was made the language of the courts and it came to be believed that the use of Welsh was not permitted. A new court system and in particular the Courts of Great Sessions was created for Wales. This system lasted nearly 300 years until 1830 when its abolition completed the absorption of Wales into the legal system of England. Just as Wales became a centre of the industrial revolution, Wales ceased to be a nation that had its own law as a defining characteristic; there was nothing that differentiated it from the law of England.
The abolition of the Welsh courts by the UK Parliament occurred despite the strong revival of Welsh nationhood in the eighteenth and nineteenth centuries particularly characterised in education (such as the eighteenth-century circulating schools), religion (with non-conformity), Welsh culture, and literature. Nonetheless, the completion of the extinction of Wales’ legal identity coincided with some English nineteenth-century views of Wales, characterised in terms of the Encyclopaedia Britannica entry ‘Wales see England’Footnote 32 and the attempts to supress the Welsh language, justified in one report on the basis that:Footnote 33
The evil of the Welsh language is obviously and fearfully great …. It distorts the truth, favours fraud and abets perjury.Footnote 34
1.2.3 The Changes and Ambitions in the Nineteenth and Early Twentieth Century
However, this total extinction by the first part of the nineteenth century of Welsh law and Welsh courts as a defining characteristic of Wales was only for a very short period, as the later part of that century and the beginning of the next saw marked change.
First, there was the passing by the UK Parliament of three pieces of distinct general legislation that applied solely to Wales,Footnote 35 thereby beginning to acknowledge that Wales as a nation needed its own laws. Prior to that the only major distinct piece of legislation was the 1563 Act, which provided for the translation of the Bible and Divine Service into Welsh.Footnote 36
Second were the attempts to establish Welsh institutions of government, including a legislature that would make law and courts that would interpret and administer that law for Wales.Footnote 37 The aspiration, although attracting only very small support, was considerable as manifested in ‘the home rule all round’ theme of some of the political demands and accompanied by books by eminent professors and lawyers that sought to give a popular history of Wales as a nation.Footnote 38 There was a particular wish to reform law relating to land in Wales,Footnote 39 to reform the law that made the Church of England the established church, to amend the law so as to permit Welsh to be used in the courtsFootnote 40 and to create a distinct system of courts for Wales. These changes coincided with and reflected the strengthening of the revival of cultural and other interests in Wales as a distinct nation.
In the speeches, actions and writings of those who sought the rebirth of Welsh law and Welsh courts, the history of Welsh law was important. It was the base of an ambitious vision driven by the existence of the native Welsh laws but also by memories (through rose-tinted glass) of the Courts of Great Session as W. Llewellyn Williams KCFootnote 41 pointed out:Footnote 42
When the old system of the Welsh courts, so cheap and expeditious, is remembered it may be doubted if Wales would not have fared better if our historical judicature had been reformed of its defects instead of being abolished in order that a more cumbrous, costly and technical system might take its place. The simplification of pleadings and procedure during the last 42 years has been a notable feature of legal reform, but the attempt made in 1873 to amalgamate law and equity is largely failed and even the procedure in our commercial courts, direct and non-technical as it is, fall short of the simplicity of the old conecesse solvere.
Important also was the emphasis on the use of Welsh in the courts in Wales. Indeed, it is hard to underestimate the profound importance of the survival of the Welsh language to the maintenance of the distinctive identity of Wales. The contrast with Brittany is instructive as Brittany was amalgamated with France in 1529–1535 after the marriage of King Francois I of France and Claude Duchess of Brittany. Its distinctive identity has very largely diminished.Footnote 43
Ambitious and far-sighted though this vision for Wales was, it is important to contrast it with the attitude taken to commercial law at a time when Cardiff was one of the greatest ports of the world, Wales a significant industrial economy and there was much legal business in Cardiff. Although in common with the great English cities of Liverpool, Birmingham and Manchester much commercial litigation was heard on Assize in Cardiff,Footnote 44 nothing was sought in relation to the establishment of a court for commercial cases in Cardiff.
With the establishment of the Commercial Court in London in 1895, all the commercial litigation moved to London.Footnote 45 If there had been a separate jurisdiction with Welsh courts, it is likely that Cardiff would have developed as a venue for the hearing of disputes given the concentration of the shipping and coal industries. After all, the magnificent civic court building has on its pediment ‘Commerce and Industry’ reflecting the vision of the early twentieth century for disputes to be heard there.Footnote 46 However, there can be little doubt that the disputes would have been determined under English commercial law as that would have been in the interests of Wales to use – the theme of Chapters 2 and 3 in relation to transnational commercial law.
1.2.4 The Stages of Rebirth in the Twentieth Century
The ambitious vision for the restoration of law-making powers to Wales was that of a small minority.Footnote 47 It died shortly after the end of the First World War.Footnote 48 The restoration of some of the powers of government to Wales over seventy-five years later occurred in very different circumstances.
There are three salient events to note about that restoration – the creation of an executive for Wales as part of the UK government in 1964, the transfer of executive power to the National Assembly for Wales in 1999 and the transfer of legislative powers in 2007 and 2011.
1.2.4.1 The Creation of an Executive for Wales as Part of the UK Government
Although during the remainder of the twentieth century there were renewed campaigns for Welsh institutions, it was the creation of the post of Secretary of State in 1964 that recognised Wales as a distinct nation in terms of the executive branch of government. This was a battle fought against the political and civil service establishment in London by Jim Griffiths MP, who became the first Secretary of State for Wales.Footnote 49 Lord Morris of Aberavon, one of the progenitors of the restoration of government to Wales, rightly saw this as a key development.Footnote 50
The setting up of the Welsh office with executive powers, all be it limited … was, in my view the keystone to the modern development of Welsh political institutions. The Whitehall mandarins were determined to crib, cabin, and confine him. The Permanent Secretary at the Ministry of Housing and Local Government offered him an office in that department …. It was not to be a functional ministry. Jim Griffiths rejected this …. He assumed responsibility for housing and local government road transport and certain aspects of local planning. By insisting on being, albeit in a minimal way, a functional minister, he paved the path for the future. Had he not done so, and his successors of both major parties added to the powers of the Welsh Office over the years, there would have been no parcels of power to devolve from the Welsh office to a National Assembly for Wales.
1.2.4.2 The Transfer of the Executive Power to the National Assembly for Wales in 1999
In 1973 the Report of the Royal Commission on the Constitution chaired by Lord KilbrandonFootnote 51 put forward separate schemes for the government of Wales, Scotland, Northern Ireland and the English regions. The types of possible schemes considered ranged from what was termed ‘Legislative Devolution’ (with powers to legislate granted in specific fields to a directly elected Assembly) to a Council, which was merely advisory.Footnote 52 Legislative Devolution would have given the law-making power of the UK Parliament in various fields to a Welsh Assembly with Welsh ministers and a Welsh civil service.
In recommending the same Legislative Devolution for Wales and Scotland, but not for the English regions, six of the thirteen members of the Commission thought that in the case of Wales Legislative Devolution was justified as it recognised the national identity of Wales,Footnote 53 even though it did not then have a separate legal system.
However, in 1975, the Labour Government chose one of the different options, which the Kilbrandon Commission had considered among the possible schemes, namely ‘Executive Devolution’.Footnote 54 Under this scheme, the executive powers that the Secretary of State for WalesFootnote 55 had accumulated since 1964Footnote 56 would be transferred to a directly elected Assembly but it would not be given any of the legislative powers of the UK Parliament. The essence of Executive Devolution was that the powers transferred would be those the Secretary of State held as a minister in the executive government of the UK. The powers were principally administrative – implementing in Wales decisions taken in Westminster or Whitehall. The different treatment of Wales to Scotland (which was to be given Legislative Devolution) was justified by the fact Scotland has its own legal system:Footnote 57
Taking account of the different structures of law in Scotland and Wales but with the same principles in mind the Government intend that the Welsh assembly should parallel the Scottish counterpart in assuming certain powers of the Secretary of State in respect of delegated legislation.
The limited law-making power to make what is called ‘delegated’, or ‘secondary’ or ‘subordinate’ legislation was simply an aspect of executive power, as ministers in the UK government are given this power by Parliament to make such subordinate legislation within limits set by Parliament in the legislation conferring the power.
Legislation was enacted in 1978 to provide Wales with Executive Devolution. It was made dependent on a referendum in which it was rejected.Footnote 58 Although there was considerable discussion about devolution to Scotland in the years between 1978 and 1997, little was done to examine what Wales needed in terms of the three branches of government.Footnote 59 In 1997, when devolution was offered to Wales, it was the power of the executive branch of government that was offered – Executive Devolution of same type as offered in 1978.Footnote 60 Over the years that had elapsed since 1978, the Secretary of State for Wales had accumulated more powers, success depending to a considerable extent on the influence and views of the Secretary of State for WalesFootnote 61 and the willingness of Whitehall departments to transfer – the two most determinedly opposed being the Home Office and the Lord Chancellor’s Department – now the Ministry of Justice. By 1997, this accumulation had given the Secretary of State for Wales powers over housing, local government, planning, education and training, health, industrial development, roads, tourism, the environment, and agriculture and fisheries. It is hardly surprising, in the light of what had happened in 1978 and the continuing divergent views of the politicians in London and Wales, that ‘Executive Devolution’ was taken forward (after a referendum where the ‘yes’ vote was only 50.3 per cent) through a complex set of arrangements.Footnote 62 The arrangements for transfer of the executive power had three important features:
As the powers of the Secretary of State that were transferred to the National Assembly were those a member of the executive government had accumulated, they were powers that were intended to be exercised as part of the executive branch of government in cooperation with the cabinet colleagues of the Secretary of State and under the principle of cabinet responsibility. As Professor Richard Rawlings memorably said, ‘Wales has a form of government which may safely be described as like nothing else on Earth.’Footnote 63
These executive powers had been accumulated for the most part at a time of the UK’s membership of the EU and therefore large swathes of certain fields were the province of the EU and not the UK government. There was therefore an EU framework, not a UK framework, in which many of the powers could be exercised, particularly in respect of the environment, industrial subsidies and agriculture.
Although there was no transfer of the powers of the judicial branch of government, there was a tiny transfer of part of what is now seen, but not then seen, as the judicial branch of government. As departmental ministers in the course of their executive functions sponsored the tribunals that were responsible for independent review of administrative decisions by their departments, the Secretary of State for Wales had responsibility for sponsorship of some tribunals that were applicable to the powers he had accumulated. Thus a tiny part of what is now regarded as the judicial branch of the government was transferred.
1.2.4.3 The Transfer of Legislative Power in 2011
It was soon apparent change was neededFootnote 64 and change there has been. The initial ‘Executive Devolution’ has been called ‘Phase 1 of Devolution’.Footnote 65 In the period to 2017, there were three further phases:
Phase 2 created a legislative branch of government in Wales distinct from the executive and gave it a small degree of power to legislate on matters outside the powers of the executive and within the powers of the UK Parliament, but it could exercise this legislative power only with the consent of the UK Parliament in relation to the matter specified.Footnote 66
Phase 3Footnote 67 gave the National Assembly, as the legislative branch of government, more power to make law without having to seek the assent of the UK Parliament, and broadly within the framework of fields that had been transferred as part of the transfer of executive power. The fields on which powers were conferred were listed and the legislative powers confined to what was listed under what is called a ‘conferred powers model’.Footnote 68
Phase 4 saw the conferment of powers to raise tax,Footnote 69 powers in other fields and a change to the basis on which the National Assembly had legislative powersFootnote 70 from a conferred powers model to a ‘reserved powers model’. This change appeared to give more powers and brought the basis of Legislative Devolution into line with Scotland and Northern Ireland. However, the legislation was drafted in a way that made it open to the interpretation that it actually rolled back the scope of the legislative powers of the National Assembly, though that purpose was strenuously denied by UK ministers.Footnote 71
Since 2017, there has been no single stage of change that could be called Phase 5. Changes have been made in different pieces of legislation, mostly to impose restrictions on the powers held by the Welsh legislature (the Welsh Parliament, which has become known officially as Senedd Cymru [or the Senedd] since 2020) and the Welsh government and the equivalent institutions in Scotland and Northern Ireland, justified as being necessary as consequent on the withdrawal from the EU.
Having outlined these events, I can now turn to the next question – an assessment of the position.
1.3 What Assessment Can Be Made Twenty-five Years after the Restoration of Law-making, Given the Incredibly Complex Way It Was Restored and the Changes That Have since Occurred?
In making an assessment twenty-five years after the initial decision to transfer executive powers and the subsequent conferral of legislative powers, it is essential first to emphasise how much has been achieved in the making of law for Wales in those twenty-five years. That achievement was comprehensively reviewed by Lord Lloyd-Jones in his magisterial Cymmrodorion lecture in November 2022Footnote 72 but in summary:
There are extensive areas in which the Senedd can exercise legislative power to make law.
Its powers are recognised to be plenary and as generally, but not always, needing no justification other than the legislation is the will of the legislature.Footnote 73
Codification (building on a consolidation of legislation) has commenced through the work of the Law Commission and the Welsh government’sFootnote 74 long-term plans to organise and codify Welsh law.Footnote 75 In September 2021, the Welsh government set out its programme to improve Welsh law by consolidation and codification prefaced by a quotation from the Book of Iorwerth:
And by the common counsel and agreement … they examined the old laws, and some of them they allowed to continue, others they amended, others they wholly deleted, and others they laid down anew.
The equality of the English and Welsh languages in legislative drafting is established and implemented through the work of the Office of the Legislative Counsel and systems for agreeing terminology appropriate for the context.Footnote 76
A significant number of important laws have been passed that reflect the values that the Welsh nation regards as distinctive. Amongst the more important are:
the Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015,
the Children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020,
the Social Partnership and Public Procurement (Wales) Act 2021,
the Agriculture (Wales) Act 2023 and other legislation taken in respect of the environment (such as a prohibition on single-use plastics) and procurement.
the Senedd Cymru (Members and Elections) Act 2024
Given the magnitude of the achievement in securing the restoration to Wales of some of its own law-making powers and the immense length of time it took, it was tempting sometimes in the period in and after 1999 to talk up what Wales had obtained. I count myself amongst those who did so,Footnote 77 though doing so had some advantages, as the creation of Legal WalesFootnote 78 has demonstrated. Moreover, it provided a basis on which it was possible to begin the realisation of the broader ambition to restore law-making through its own proper legislature and a judiciary. It was then neither opportune nor necessary to ask the difficult questions.
However, in noting the achievement, it is necessary to pause and return to the question posed as to whether Wales has achieved the structure of government that enables it to make the laws a nation should have and the ability to enact those distinctive laws. That basic question is best addressed by asking in turn five difficult questions.
1.3.1 Does the Nature of the Powers of the Executive and Legislative Branches of Government Provided to Wales Measure up to What a Nation Needs?
Answer: No.
The Government of Wales Act 2006 (in what is described as phase 2 of Welsh devolution) effected a fundamental change. It paved the way for the conferral of real legislative powers that took place after the 2011 referendum. There was, however, no re-examination or principles-based analysis of the question whether the subject matter of the range of powers inherited from the Secretary of State as a member of the executive branch of government was the right starting point for conferring full and real legislative powers. The provisions of the Bill dealing with the subjects in which the Senedd was to be given competence (and the exceptions within those subject areas) were drafted at a late stage and in anticipation of further revision before they took effect. As one of the drafters commented on the draft schedule,Footnote 79 in which the subjects were set out:
Unusually, however, the main function of Part I [of Schedule 7] at the time when the legislation is being considered by Parliament is political rather than legal. It is extremely unlikely that, by the time of the referendum, whatever we say here will be accurate. If the provisions require to be amended and finessed by Order in Council at that time, there seems little point in dotting every ‘I’ and crossing every ‘t’ at this stage …. What the provisions need to do at this point is to describe in pretty general (though hopefully largely accurate) terms the subjects that would be devolved if Bill-making competence were to be conferred on the Assembly and Royal Assent and to point up exceptions which are substantial or potentially politically controversial. So I think that brevity is very desirable.
Nor was there any public debate or any public scrutiny as to whether the limited powers were in any way justifiable for a nation. The public were simply asked to vote on the question of whether the legislature should be able to make laws on the matters for which it already had powers. Nor, once it was accepted that there be legislative devolution, was the question answered as to why there remained any basis for the different treatment of Wales to Scotland.
In short, the creation of a legislative branch of government was a fundamental change. Its impact was not subject to a principles-based analysis and was not publicly scrutinised in relation to the scope of the powers that a nation’s legislature should be able to exercise,Footnote 80 even when there was a further change to the constitutional position in phase 4.Footnote 81 It appears that this was due to the need to achieve political compromise.Footnote 82
It is therefore safe to conclude that the legislative powers of the Senedd rest on a basis that is historic and which was no longer relevant after 2011 when Wales moved away from Executive Devolution. The powers provided for in the 2006 Act should have been based on a rational, logical, coherent and stable scheme – a scheme that a nation should have, if it is to be in a position to make and delineate its own laws in line with the principles set out earlier and the principle in relation to the Union to be considered later.
1.3.2 Is There Undue Complexity?
A summary of the areas of law in which the Senedd will generally make lawFootnote 83 shows at first sight a seemingly wide scope of the matters in which it can make law, but it can immediately be seen that large areas of law are missing:
1. Agriculture, animals and plants
2. Food
3. Environment and natural resources
4. Planning, building and land
5. Culture, sport and historic environment
6. Economic development and tourism
7. Education and skills
8. Fire and rescue
9. Health and social care
10. Housing
11. Transport
12. Local government
13. Public administration
14. Senedd and legislation
15. Taxation (limited)
16. Welsh language
However, the legal position is very much more complex than appears from this simple summary. Although the Senedd has a general power to legislate on any matter (as devolution is on a ‘reserved powers model’), that legislative power is very substantially constrained by the reservations set out in two schedules.Footnote 84 The schedules run to over forty pages compared to the seventeen pages that suffice to restrict the law-making powers of the Scottish Parliament.
The detail in the schedules underlines further the unnecessary complexity:
The first of the schedules comprises 3 parts, one setting out 8 General Reservations, one setting out 179 Specific Reservations and a third part setting out General Provisions, which in effect provide exceptions to the Reservations.
The second of the schedules comprises 2 parts, one setting out General Restrictions and a second part that provides for exceptions to the General Restrictions. ‘General Restrictions’ is not entirely an apt title for, although it imposes wide ranging restrictions on the powers of the Senedd to legislate, it does so in a manner that is remarkable for its detail and complexity.
If a subject matter is reserved by the schedules, then the Senedd cannot make law if it ‘relates to’Footnote 85 that matter, a phrase that adds to the complexity and which may be argued to be wide-ranging in its effect.
The scope of the reservations and the exceptions are so complex that it makes operation and understanding of the Senedd’s powers very difficult,Footnote 86 even for those who are highly specialised in their knowledge of the legislation.Footnote 87 As there has been no transfer of general criminal or civil law-making powers or of the judicial branch of government, there are further provisions that give the Senedd power to enforce the laws it passes, but again drafted in uncertain and complex terms.
There can be no doubt that this complexity also produces a severe democratic and accountability deficit, as the division of responsibility between Wales and the Union is so defectively structured. To add to the democratic and accountability deficit and to enhance the complexity, the schedule is subject to change by that UK Parliament. A glance at the schedules will show the revision that takes place as the law made by the UK Parliament changes.
This complexity and the nature of the reservations and the restrictions are not compatible with the principles I have set out.
1.3.3 What Is the Significance of the Absence of the Judicial Branch of Government and the Lack of a Separate or Distinct Jurisdiction?
Answer: Considerable. Wales’ position in respect of the judiciary and the jurisdiction is unique.
1.3.3.1 The Judiciary
It is first right to emphasise that various significant steps have been taken by the judiciary of England and Wales to signify the separate identity of Wales within the judicial system of England and Wales. The steps include:
The giving of directions for the hearing of administrative law cases in Wales on 30 June 1999 (following on from a commitment made at the first conference of UK judges convened by Lord Irvine in London on 9 April 1999)Footnote 88 and the subsequent creation of an Administrative Court for Wales in August 2000.
The Court of Appeal has sat regularly in Cardiff from October 1999.
The Supreme Court sat in Cardiff in July 2019.
A Mercantile Court for Wales was established and opened by Lord Bingham in May 2000.
The Lord Chancellor’s Standing Committee on the Welsh Language was established in 1999 to strengthen the use of Welsh in the Courts.Footnote 89
The Association of the Judges of Wales was founded on 11 October 2008Footnote 90 and a Committee for Wales of the Judges’ Council was set up in 2011.
The judiciary was also instrumental in arranging seminars with the Richard Commission on 7 February 2003, the All Wales Convention (chaired by Sir Emyr Jones Parry) in April 2009 and the Commission on Devolution in Wales (chaired by Sir Paul Silk) 17 May 2013.
The judiciary has strongly supported the Legal Wales annual conferences begun in 2003 at the initiative of Legal Wales.
However, in addition to the deficiencies in the powers of the executive and legislative branches of government, there is a total absence of the Welsh nation’s own judicial branch of government, beyond the tiny transfer in 1998 referred to earlierFootnote 91 and a small increment in 2017 through the creation of the office of President of Welsh Tribunals and associated provisions.Footnote 92
Wales is unique in the world in not having its own judicial branch of government, for unlike any other nation with a legislature, Wales has not been put in a position to interpret or develop its own laws through its own judiciary. That would ordinarily be achieved for a nation, as it is in Scotland, by judges who live in the nation and understand the way in which the law enacted by its legislature is to be interpreted and developed in the context of its polity and nationhood. Moreover, there is the important constitutional expectation of interdependency between the executive, legislative and judicial branches of government. In practice it has been my experience that good governance and good law-making requires a close working relationship between the leadership of the judiciary and the executive and legislature.
Moreover, although many of the laws made by the Senedd are drafted and debated by those whose language is Welsh as well as English,Footnote 93 and despite this being implicit in the legislative provisions for equal status of both languages for ‘all purposes’,Footnote 94 there is no express right to have the laws considered by judges who understand Welsh as one of their own languages.Footnote 95 This is in striking contrast to Canada where it is considered a fundamental right to have a judge on the court who understands the language and does not have to rely on translation or expert evidence.Footnote 96 My experience of sitting in Qatar reinforces the absolute necessity of this.
There have been many calls for Wales to have its own judicial branch of government,Footnote 97 but despite the steps taken, this fundamental issue remains unaddressed.
1.3.3.2 Jurisdiction
In addition, Wales does not have its own legal jurisdiction.Footnote 98 It is included within the jurisdiction of ‘England and Wales’ and in a way that is inevitably subordinate. The single jurisdiction for England and Wales continues because a Welsh jurisdiction was not created on the transfer of legislative power to the Senedd. This created a unique situation as, Wales apart, each legislature has its own jurisdiction, not least because one of the purposes of a jurisdiction is to demarcate difference in law.Footnote 99 In a real sense, the effect is that there is no ‘Welsh law’ as such: the laws passed by the Senedd ‘extend’ to the jurisdiction of England and Wales and therefore are part of the ‘law of England and Wales’.Footnote 100 Similarly, all laws passed by the UK Parliament in respect of England ‘extend’ to England and Wales. This means that laws are English law or Welsh law in a separate sense only if specifically made ‘applicable’ to England or Wales respectively.
In what might be termed ‘a neat legislative provision’, the Wales Act 2017 has recognised that there is ‘Welsh law’ by its reference to ‘the law that applies in Wales includes a body of Welsh law made by the Assembly and Welsh Ministers’.Footnote 101 However, the explanatory notes underline the fact that this is in reality little more than a gestureFootnote 102 and changed nothing. This issue should have been addressed like the question of the creation of a judicial branch of government, when the legislative powers were transferred, but it was not.
Much has been said about the supposed practical difficulties of establishing a separate jurisdiction.Footnote 103 There are none as is shown by the fact that both Scotland and Northern Ireland have separate jurisdictions within the UK.
1.3.4 What Has Been the Effect of Brexit?
Answer: Considerable, as there has been a failure to provide a proper governance structure to replace what was provided when the UK was a member of the EU.
As mentioned, the context for the original grant to and exercise of many executive and legislative powers in Wales was the UK’s membership of the EU. That membership had a profound effect on the nature and extent of transfers, the way many of the powers were exercised by the Welsh government within the framework of detailed EU legislation in relation to the functioning of the EU internal market and on the way the Union functioned, given the role of the EU Commission in so many matters. As was observed in 2017 by the House of Lords European Committee:Footnote 104
EU law is interwoven with the devolution settlements, and throughout this period, the supremacy of that EU law, and its interpretation by the Court of Justice of the EU, have helped to hold the UK together and maintain the integrity of its internal market.
The Committee concluded:
The European Union has been, in effect, part of the glue holding the United Kingdom together since 1997.
Although assurances were given that leaving the EU would make no change to the powers that had been conferred on the Welsh legislature and executive, there was no proper examination of the adjustments that were necessary to the Union that is the UK. It should have been clear that mechanisms had to be created to replace the role of the EU, particularly in relation to the common standards and other rules. These were required for a common approach to the UK internal market (the market between England, Northern Ireland, Scotland and Wales) when that market took the place of the EU internal market, which encompassed the then twenty-eight Member States including the UK.
It was envisaged that in place of the detailed legal framework established by the EU through its institutions, the policy, rules and standards for the UK internal market would be set by a system of Common FrameworksFootnote 105 – agreements between the four governments of varying lengths and complexity covering many aspects of the internal market. Progress on putting these in place was delayed by the pandemic and then considerably undermined by the unilateral decision of the UK government to proceed with what became the UK Internal Market Act 2020. The UK government published in July 2020 a White PaperFootnote 106 outlining its intention to create a legislative underpinning for the UK internal market, replacing what had previously been provided by EU law, on the basis that Common Frameworks could not on their own guarantee the integrity of the UK internal market. There was no consultation with the Welsh or Scottish governments about this change in approach; nor was there any before the UK Internal Market Bill was published in September 2020Footnote 107.
Common Frameworks apart, there is no other effective mechanism in place for the cooperative exercise of powers on a joint basis for the UK internal market. The Joint Ministerial CommitteeFootnote 108 proved ineffective after Brexit and the successor arrangements established in 2022Footnote 109 with the Prime Minister and Devolved Heads of Government Council at its apex and the Inter-ministerial Standing Committees, Inter-ministerial Groups and different levels of mechanism for dispute resolution beneath have yet to show there has been a material change.Footnote 110 Other necessary adjustments consequent on Brexit have not been made.
1.3.5 Should There Be Concern about the Operation and Nature of the Union?
Answer: Yes
One of the strengths of the way constitutions have operated historically, particularly the UK constitution, is that those involved in governance have abided by understandings of the way constitutions should operate through constitutional conventions. A central part of the constitutional arrangements for the Union made in 1997–1998 was the development of a constitutional convention – the Sewel ConventionFootnote 111 – which provided that the UK Parliament would not normally legislate in matters within the competence of the Northern Ireland, Scottish and Welsh legislatures without the consent of those legislatures. The convention worked reasonably well until the legislation consequent on Brexit. Since Brexit consent has been refused on far too many occasions; changes have been imposed rather than agreed. The process began with the EU (Withdrawal Agreement) Act 2020 and the UK Internal Market Act and continued until the General Election of July 2024.Footnote 112 Undermining this convention has serious long-term implications.Footnote 113
The breakdown of the Sewel Convention has been exacerbated by the emergence of a lack of political consensus on the nature of the Union. In 2014 Carwyn Jones as First Minister, explained Wales’ perspective of the Union at the Institute of Government;Footnote 114 the position was set out more formally by the Welsh Government in 2021:Footnote 115
Whatever its historical origins, the United Kingdom is best seen now as a voluntary association of nations taking the form of a multi-national state, whose members share and redistribute resources and risks amongst themselves to advance their common interests. Wales is committed to this association, which must be based on the recognition of popular sovereignty in each part of the UK; Parliamentary sovereignty as traditionally understood no longer provides a sound foundation for this evolving constitution.
1.4 What Principles Should Apply to the Law-making Position of a Nation within a Union?
Having outlined the history of Welsh law and the restoration of law-making powers, and having provided an assessment based on the answers to five difficult questions, I can complete the consideration of the six principles that should govern the choice of laws for a nation on a principled and pragmatic basis.Footnote 116 I do so by addressing the sixth principle – the principle applicable to a nation within a Union.
As I have already set out, the system of government for Wales has emerged from compromise and incremental change based on what had gone before. Little emphasis has been put on points of principle. It is time to think again and consider what powers a nation needs and how that should be determined in circumstances in which the nation is part of a Union.
It should be obvious that consideration must be given to the nature and purpose of the Union when considering the law-making powers needed for nations within a Union, as the nature and purpose of the Union are essential in delineating the distribution of law-making power within the Union. This point must be particularly stressed in relation to the UK, as although many speak of strengthening the Union which is the UK, insufficient thought is given to the nature and purpose of such a Union. As has been remarked ‘A policy of drift will never result in united strength’.Footnote 117
1.4.1 What Is Needed for a Nation within a Union
In explaining this sixth principle as to the laws appropriate for a nation within a Union, what is central is the nature and purpose of the Union and certainty as to the complex questions that arise as to the distribution and exercise of powers of the three branches of government across a Union of nations.
As mentioned already, although various approaches are possible within a Union, there are two main approaches. One is the top-down approach where consideration is given to the fields of law and policy where powers are to be granted to the nation to facilitate the adoption of laws and policies best suited to the needs or wishes of the nations of the Union, which provide for better accountability and participation in government and which lighten the load of the central government.Footnote 118 The other, a bottom-up approach, is that the nations or states comprising the Union should determine those areas of law that they should pool but retain for the nations what the nations consider it is best for them to retain.
While it may not be necessary to choose one or the other of these approaches, the purpose of the Union is the central determinant of the scope and exercise of power respectively by the Union government and the governments of the constituent nations or states. For example, where a Union has as its purpose a single internal market or a wide economic union, then very difficult questions arise, as experience has shown, as to the extent of issues that are said to involve economic matters, as so much can be argued to involve an economic matter. In other areas where the purpose of the Union either includes or excludes a specific purpose, then the difficulties can be few. For example, defence and the maintenance of armed forces were never powers allocated to the EU; and it has not been argued that defence and foreign affairs are other than matters for the Union government in the UK and not for its constituent nations. These are defined subject areas and not areas that give rise to argument.
After determining the purpose of the Union and the needs of the nation based on the five principles I have set out, then there are a number of further factors:
First, there will be some powers that need to be exercised in co-operation under a stable legal, political and administrative framework and mechanism. A good example is the KBF (the Industrial development Bank) in Germany where the Lande (the states that comprise the Federal Republic of Germany) have an institutional membership. This contrasts with the creation of the UK Infrastructure Bank (a British replacement for the European Investment Bank) where no stake or direct interest was given to Northern Ireland, Scotland or Wales. The Treasury can, under the Infrastructure Bank Act 2023, even make regulations in relation to matters within the powers of the national legislatures after consultation with the national legislatures.Footnote 119
Second, there must be coherence.
Third, the result must be practical and a division of powers that is too complex avoided, as there is a need for ease of understanding and accountability.
Fourth, the comparative size and economic power of the entities that comprise the Union will be relevant.
Fifth, in the Union that is the UK, there is the complicating factor that England is by far the biggest and wealthiest nation and that the Union government is also the government of England, often making it difficult to determine in which capacity it is acting.
Sixth, there must also be a fair and equal dispute resolution mechanism.
1.4.2 The Question of Sovereignty and Federalisation
In resolving these questions, it is not in my view helpful to conduct the debate through the lens of ‘sovereignty’. Some regard the traditional nineteenth-century view of sovereignty best expressed by Dicey as central to the issues.Footnote 120 Others starting with Carwyn Jones when First Minister of Wales and then more formally the Welsh Government, as just mentioned, have put forward a different view of sovereignty to that of Dicey. Some discussion is necessary, if for no other reason than to dispel myths and deal with practical issues.Footnote 121 This can be illustrated by the provisions of Schedule 3 to the Subsidy Control Act 2022, which enables legislation of the Senedd in respect of subsidies in Wales to be challenged in the High Court of England and Wales (rather than the Supreme Court, which has sole jurisdiction over its legislative competence), even though no such challenge can be made to legislation made for England by the UK Parliament. The reason given for the inability to challenge legislation of the UK Parliament was the sovereignty of Parliament and the first Article of the Bill of Rights 1688, which prohibits the courts questioning proceedings in Parliament – that is to say, the UK Parliament, not the National Parliaments.
Although some discussion of sovereignty is necessary, if the debates focus on sovereignty, there is a real danger for four principal reasons:
Although in pure legal theory a nation-state that is not part of a Union is traditionally treated as ‘sovereign’ or called a ‘sovereign state’, as it has an unconstrained ability to make any law it wants, there are in fact real practical constraints arising from multilateral treaties it enters into or bilateral treaties made with specific states.
The use of the term ‘sovereignty’ has given rise to a confusion between what has been termed a pragmatic definition of sovereignty and an ideological one, as pointed out by Dr Rowan Williams in May 2023.Footnote 122
Sovereignty has become a populist term, as was evident in the arguments over Brexit and particularly in relation to the special arrangements for Northern Ireland.
The issues are better addressed by concentrating on the pragmatic. For example, the Trade and Cooperation Agreement between the UK and the EU made in 2021 places considerable limits on the power of the UK Parliament to legislate in areas such as state subsidies as is evident from the terms of the Subsidy Control Act 2022. However, that Agreement was made on a pragmatic basis and no issue was raised as to its effect on sovereignty.
Nor is it necessary to expend energy on terms such as ‘Federal’, ‘Semi-Federal’ or ‘Quasi Federal’.Footnote 123 These again have emotive connotation as they raise the argument as to the need for a written constitution and over sovereignty. In the debates on ‘home rule all round’ in 1920, federalism was seen as being fundamental to the issues, but one so problematic in resolution that it was better not to address it and for the UK simply to muddle along as had been done for ten centuries.Footnote 124 I have therefore not entered into the issue of federalisation. although it has been discussed by the McAllister/Williams Commission.Footnote 125 The issues can be addressed pragmatically without reference to the federal question.
1.5 What Role Should the Principles Play?
Having explained the position of a nation within a Union, it is now possible to draw some general conclusions about the law a nation needs.
1.5.1 The Practicalities
Wales was, as explained, allocated some powers of executive government, including the power to make regulations, at a time when there was no realistic alternative but to take what was on offer. Since then, as is more usually the position in similar circumstances, argument has been centred on relative strength and political wrangling between those interested in acquiring or retaining powers.
Accidents of history, relative political strength and political wrangling will often determine the powers of government given to a nation to make laws. However, if a nation or the Union of nations is to achieve the stability necessary to benefit the nation and the Union, then the question as to the laws a nation needs and the powers to make them must be addressed with rationality, logic and coherence based on the principles I have set out. It should not be based on political wrangling between those interested in acquiring or retaining powers.
1.5.2 The Value of Principles in Enabling the Peoples of a Nation to Secure Their Ambitions and Their Identity
The first of the questions I posed in this chapter was why a nation needed its own laws. The five principles identified in answer to that question were (1) the promotion of the nation’s ambitions and values, (2) the promotion and strengthening of its distinct language and culture, (3) its capacity to make and develop the law, (4) its ability to create and administer simpler and more accessible laws and (5) its ability to address the concerns of the people of the nation. These are the principles that should primarily govern the question as to laws needed for a nation. Where a nation is part of a Union, the purpose of the Union is a sixth principle as it is determinative of the powers that the Union needs and powers that should be shared with the nations of the Union. These are certainly the principles that determine the distinct laws Wales, as a nation, should be able to make, with the branches of government and powers necessary to enact and develop them.
1.6 What Are the Options for Law-making Powers for the Welsh Nation Based on the Principles?
It is now possible to test the principles through using Wales as a case study by asking the question as to how Wales as a nation can achieve a rational, logical, coherent and stable system of law governed by the principles I have enumerated? This question is best answered through the examination of the realistic options for the law-making powers Wales as a nation should have in the context of the Union, as the extent of the powers depends on what is required to meets the needs of Wales as a nation within a Union.
1.6.1 Option 1: The Existing System
The opportunity to restore to Wales as a nation its own laws was achieved through the acceptance of the very limited offer made by the UK government in 1997 to the transfer of the powers of the executive branch of government (with its subordinate law-making powers) from the Secretary of State to the National Assembly. When powers of the legislative branch of government were transferred in 2011, there was no offer to reconsider the scope of what laws could be made in Wales for Wales once it had a legislature. In the further change in 2017 to the reserved powers model, there was no justification for the extensive reservations, despite the then Welsh government’s strenuous efforts exemplified by the publication of its own Government and Laws in Wales Bill.Footnote 126 Nor on either occasion in 2011 or 2017 was the different treatment of the Scottish and Welsh nations justified.
I do not think it possible to dispute the fact that the way in which the current powers have been defined does not permit laws to be made in a rational, logical, coherent and stable way. Two examples must suffice:
It does not permit laws to be made to deal with basic interlocking problems. For example, as the Report of the Commission on Justice in Wales demonstrates, the government of Wales has no power to develop more effective and coherent laws and policies for dealing with crime relating to or fuelled by drugs, or addressing youth crime, or dealing with prisoners on release or determining how there is a coordination of law and long-term policy on issues in health, education and criminal justice, which are plainly interrelated. The people of England, Scotland and Northern Ireland have the benefits of such coordination. The Welsh nation is denied it for no conceivable justification.
Although health, education, ambulance and fire services in Wales are entirely within the responsibility of the Senedd, the Strikes (Minimum Service Level) Act 2023 enabled the UK government to set minimum service levels in Wales for these services, even though it has no responsibility for these services and therefore lacks much of the necessary knowledge to set minimum standards. It asserted it had the right to do this as it ‘related to’ the power of the UK government in respect of employment rights and industrial relations.Footnote 127 Although this was disputed by the Senedd, the fact that the Senedd was right did not matter, as the UK government was able to make that the law for Wales through the use of its majority in the UK Parliament. It was notable that when standards were set for ambulance services in December 2023,Footnote 128 these were not applied to Wales. The Employment Rights Bill 2025 repeals the Act.
Maintaining the existing system is an option. However, taking together the absence of Wales’ own judicial branch of government, the deficiencies in the powers of the Senedd and their interrelationship to the Union powers and the way in which the UK government exercises the powers of the Union, it follows from the principles I have set out that the current system as a system does not meet those principles. In short, Wales is denied what a nation should have.
1.6.2 Option 2: Transfer of the Powers of the Judicial Branch of Government and Widening Specific Legislative Power
A second option is to transfer the powers of the judicial branch of government, to add more powers of the legislative branch of government and to create a simpler structure, so that the principal deficiencies are cured.
It follows from the principles I have set out that a much wider range of laws is needed. The restrictions on the law-making powers need to be narrowed. If that were the option pursued then I would anticipate that the following would be examples of the laws the Senedd could enact.
Criminal law and policing:Footnote 129 The reasons for transferring responsibility for criminal justice are set out at length in the report of the Commission, Justice in Wales for the People of Wales. The report is premised purely on the practical and pragmatic, not the wider issues canvassed in this chapter. There has been no reasoned answer to it. One illustration of why the present position is untenable is demonstrated by the fact that Wales cannot make its own dangerous dogs legislation, although Wales has a very different economy, demography, geography and traditions to England.
Family law: The Commission also set out the reasons why family justice should be transferred. However, its remit was not interpreted as extending to broader aspects of family law. There are, however, cogent reasons why family law should be law a nation can make, as the nature of the family is so fundamental to society.Footnote 130 In many societies, the law relating to the family was regarded as personal to the family and many states have recognised different systems as operating concurrently. Family law today extends to the recognition of partnerships and the rights that arise on dissolution. Here is a real need to reform financial provisions on divorce and the ending of other relationships.Footnote 131
Succession and inheritance: Again, these laws are integral to a nation as quite apart from taxation, the methods by which assets can be held or transferred or the restrictions that can be imposed are an important part of the way in which transmitted wealth can be protected or the inequalities arising from it minimised.
Civil and private law: Numerous examples can be taken from civil or private law – remedies and privacy. Although some aspects of privacy are the subject of human rights protection, there is a margin within which a nation should be able to determine the extent of the privacy to which people are entitled.
Making these changes would not be difficult and would have the benefit of simplifying the complexity of the current system. Nor should it be difficult to transfer the judicial branch of government and create a Welsh jurisdiction as recommended by the Commission on Justice in Wales. No reason for denying the Welsh nation its own missing branch of government has been given. It is always possible that it is believed that Wales is not capable of exercising judicial power; but this is irrational as it ignores the contribution Welsh judges have made and their originality. It is not just a contribution to English lawFootnote 132 but to the law of the United StatesFootnote 133 (Thomas Jefferson, John Marshall and Charles Evans Hughes) and Australia (Sir Samuel Griffith). As no explanation has been given, it is possible that it is thought that giving Wales the powers of the judicial branch of government might make it too much like Scotland and therefore have to be treated in the same way. As no explanation has been given, it is probable that there is no rational explanation but impossible to provide an answer without the explanation for the denial.
However, I do not consider that this option meets the principles I have set out. Although the transfer of the judicial branch of government and the provision of a separate jurisdiction is essential for the reasons I have explained, there are two principal deficiencies. First, the powers of the Senedd and the executive would not rest on a basis that is rational, logical, coherent and stable; it is still too complex and premised on a piecemeal rather than a principled and strategic approach. Second, it would not address the fundamental issues relating to the Union or of the machinery necessary for a workable interrelationship of the branches of government within the Union.
1.6.3 Option 3: The General Ability to Make Law Save Where Specified Powers Are Reserved for the Purposes of the Union
The easiest and simplest option is one that meets the principles I have set out and one that is likely to produce a stable system. That is achieved in the most straightforward way by starting from the premise that all powers are allocated to a nation save those that are needed for the purposes of the Union government. Testing the allocation against the other criteria I have set out, the bottom-up approach appears to be preferable, but it is also possible to take the top-down approach. What is essential is that the powers that vest in the Union are the powers needed for the purpose of the Union.
This is again not the place for a detailed consideration of the functions that are required for a Union. One of the schedules to the Government of Wales Act sets out some of the core functions of the Union such as defence and foreign affairs, but its complex and detailed structure is not the best starting point. A better one is the Act of Union BillFootnote 134 introduced into the House of Lords by Lord Lisvane in October 2018. It has twenty-six paragraphs over four pages, which set out the functions of the Union. It is well drafted, concise and provides an excellent starting point for a scheme of central functions that is logical and shows that there are clear matters for the Union such as the currency, monetary policy, defence and foreign affairs.
Resolving the Union function is but part of the need. It is clear from experience that although functions such as defence and foreign policy can be clearly defined areas for a Union, there are difficult areas such as those relating to the economy which are a function of the Union and a function of the nations. It is hard to see how this can be managed without a stable legal structure of which the Union and the national governments are part. This is exemplified by issues that have arisen such as (a) provisions and machinery to ensure coordination of Welsh Government Funding and UK Government Funding from the shared prosperity fund or its successor funds or (b) the need for adequate powers not only for the UK government but also for the national governments in relation to the control of subsidiesFootnote 135 or (c) the future of the steel industry in Wales.
We have reached the stage where in my view it is clear that the law relating to the purpose and functions of the Union needs to be reconsidered before there can be the necessary clarity and stability in relation to the scope of the laws the nations should make.
These are difficult problems as was illustrated by the Mission Statements provided for in Part 1 of the Levelling Up and Regeneration Act 2023. Mission statements are intended to provide targets in a range of subjects from education and health to happiness. There is force in the argument that these need to be UK wide to ensure that resources of the UK are distributed so that funds are given to the parts of the Union that need the greatest help in achieving the targets. However, as at the core of the laws a nation makes are laws such as those relating to education and policies consequent upon them, the Union and the nations must set laws and machinery that provide clearly for Union functions and the relationship with national functions. It is a difficult issue, particularly given the dominant position of England.
It is therefore for this primary reason, option 3 is the option that needs the most careful consideration going forward.
Conclusion
At the beginning I asked what laws a nation needs and later asked if Wales is truly a nation? Wales is without doubt a nation, but Wales cannot make the laws that reflects its nationhood and its spirit until it is has the powers to make them and until it has its own judiciary to interpret and develop those laws and as part of the governance of the nation. No stability will be achieved until those issues and the purpose and function of the Union are addressed by consideration of the principles I have set out. The debate must centre on principle, not political wrangling and expediency. This is what is required if the Union that is the UK is to be strengthened and if Wales is to have restored to it proper law-making-powers to which it is entitled as a nation equal to other nations.
