other members, considered bills and other matters relating exclusively to Wales
and could question Welsh Oļ¬ce ministers. In addition a Select Committee on
Welsh Aļ¬airs examined ā˜the expenditure, administration and policy of the
Welsh Oļ¬ce and associated public bodiesā™. Both committees have continued to
function since devolution.
(i) Devolution under the Government of Wales Act 1998
In the 1980s and 1990s Wales, like Scotland, was governed by a Conservative
administration that only a minority of voters in Wales supported. Unlike
Scotland, however, Wales experienced no equivalent of the Scottish Constitu-
tional Convention. There was no Welsh equivalent to the Scottish Claim of
Right (see above, p 189) and, by the time of Labourā™s election victory in 1997
there was no fresh blueprint for Welsh devolution to supersede the discredited
model of the 1970s. Nonetheless, the new Labour Government, conscious of
221 Devolution and the structure of the UK
what it described as Walesā™ distinctive ā˜language and cultural traditionsā™, was
committed to ā˜meet the demand for decentralisation of power to . . . Wales, once
established in [a] referendumā™ (Labour Party manifesto, Because Britain
Deserves Better (1997), p 33). As we saw above (p 190), the referendum pro-
duced a positive result (albeit by only the tightest of margins) and the result was
the Government of Wales Act 1998. Commenting on the diļ¬erences between
Scotland and Wales, Sir David Williams observed as follows (in University of
Cambridge Centre of Public Law, Constitutional Reform in the United Kingdom
(1998), p 44):
There has never been an independent Welsh Parliament on an established basis and hence
no overall executive government. Welsh law ā“ at least in this millennium . . . has been English
law; and, despite the Courts of Great Sessions (finally abolished in 1830) there has been no
separate system of courts for Wales. The ā˜trappingsā™ of legislative devolution are not, as they
are to some extent in Scotland, in place, and the process of administrative decentralisation
has been more recent and less extensive. For many Scots legislative devolution might appear,
especially in the light of three decades of deliberations, to be a small step in constitutional
terms; for many Welsh it might appear to be a giant leap.
The arrangement for Wales, unlike that for Scotland, was to be a scheme of
executive devolution: no powers of primary law-making or of taxation were
devolved. The essential purpose of the Government of Wales Act 1998 was to
place the existing Welsh administration and its non-departmental public bodies
(quangos) under the control of an elected Welsh Assembly, which would have the
power to make delegated or secondary legislation, but not primary legislation.
To this end the Act established an Assembly for Wales, known as the National
Assembly for Wales or Cynulliad Cenedlaethol Cymru. The Assembly was a body
corporate which exercised its functions ā˜on behalf of the Crownā™ (s 1). Like the
Scottish Parliament, it is a unicameral assembly. It comprises sixty members
(known as AMs), forty elected in single member constituencies under the ļ¬rst-
past-the-post system and twenty by the party list system. The functions of the
Welsh Oļ¬ce that were devolved to Wales were transferred to the Assembly by
the Government of Wales Act 1998 itself, by subsequent Acts of Parliament and
by Orders in Council made under section 22 of the 1998 Act. These functions
fell within the eighteen ļ¬elds listed in Schedule 2 to the Act, as follows:
Agriculture, forestry, ļ¬sheries and food.
2. Ancient monuments and historic buildings.
3. Culture (including museums, galleries and libraries).
4. Economic development.
5. Education and training.
6. The environment.
7. Health and health services.
222 British Government and the Constitution
11. Local government.
12. Social services.
13. Sport and recreation.
15. Town and country planning.
Water and ļ¬‚ood defence.
18. The Welsh language.
A considerable devolution of functions and powers (deriving from some
300 statutes) took place, but there remained many functions exercisable in rela-
tion to Wales by Ministers of the Crown which were not transferred. (These
include such matters as are reserved under the Scotland Act, as well as others.)
Unlike the provision made for Scotland, the Government of Wales Act did
not establish a separate executive body for the government of Wales: functions
to be devolved, with corresponding powers and duties, were conferred upon the
Assembly itself as a corporate body. In practice, however, a form of Cabinet gov-
ernment emerged, most of the Assemblyā™s executive powers being delegated
to the Assembly First Secretary and Assembly Secretaries, who, from 2002
onwards, came to be known as Welsh Ministers and collectively, together with
civil servants, as the Welsh Assembly Government.
The Welsh Oļ¬ce (since 1999 the Wales Oļ¬ce) continues to exist as a depart-
ment of central government, headed by the Secretary of State for Wales. The
Secretary of State for Wales is the key government ļ¬gure liaising with the
devolved administration in Wales and represents Walesā™ interests in the Cabinet
and in Parliament.
(ii) Dissatisfaction with the 1998 scheme for Wales
From the beginning there was a marked contrast in the success of devolution in
Scotland compared with Wales. Unlike in Scotland, it was never clear that the
Government of Wales Act 1998 solved the problem it was designed to address.
Perhaps this is because (again, unlike in Scotland) it was not clear what the
problem was in the ļ¬rst place. It was as if Wales was being dragged along in
Scotlandā™s wake, oļ¬ered something of devolution but never as much as was
oļ¬ered to (or demanded by) the Scots. This was nothing new: as Sir David
Williams put it (ā˜Devolution: the Welsh perspectiveā™, in A Tomkins (ed),
Devolution and the British Constitution (1998), pp 21ā“2), ā˜In the 1970s the
dominance of Scotland in the devolution debates largely obscured the Welsh
dimension, and the process has been repeated in the later 1990sā™. Further, he
continued, ā˜there is little or no constitutional framework or context in which
the proposals for executive devolution can properly be assessedā™. What led
Welsh devolution in the late 1990s, it seems, was not an echo of the consistent
and coherent demand for home rule that had been heard so resoundingly in
223 Devolution and the structure of the UK
Scotland, but an inchoate and far from unanimous sense within the Labour
Party that, in the light of developments in Scotland, something ought also to be
oļ¬ered to Wales. Exactly what that something should amount to, it seems, was
determined as much by reference to internal squabbles within the Labour Party
as to any constitutional road map. As Rawlings has written, ā˜the original scheme
suļ¬ered from a lack of constitutional vision, [being the] product of a closed and
elite form of constitution-making grounded in internal party compromiseā™
(ā˜Hastening slowly: the next phase of Welsh devolutionā™  PL 824, 826;
see further R Rawlings, Delineating Wales (2003), pp 1ā“52).
In his masterly survey of the early years of Welsh devolution, Delineating
Wales (2003), Rick Rawlings showed how the ā˜Wales of bits and piecesā™, as he
described it (p 63), was alternately seen in three diļ¬erent lights, which Rawlings
terms the three ā˜facesā™ of Welsh devolution. The ļ¬rst face was ā˜Welsh Oļ¬ce plusā™,
an image of devolution that saw it as little more than a reinvention of the terri-
torial administration experienced between the 1960s and the late 1990s. This was
Alun Michaelā™s rather limited and ultimately self-destructive sense of the project.
(Alun Michael was the ļ¬rst First Secretary, who resigned from the position in
early 2000 under threat from a no conļ¬dence motion in the Assembly. Since that
time the First Secretary/First Minister has been Rhodri Morgan.) The second
face was the ā˜new kind of politicsā™ ushered in with the new kind of Assembly, the
corporate body with no separation of powers between executive and legislature,
that promised collaboration rather than party division and consensus rather
than majoritarianism. The third face was the attempt to recreate in Wales
something of what exists in Scotland and at Westminster: namely, adversarial
parliamentary government with a clear distinction between government and
opposition and a sometimes clear distinction between executive and legislature.
(See R Rawlings, Delineating Wales (2003), chs 3, 4). What frustrated the smooth
operation of Welsh devolution, Rawlings suggests, was the constant turning
from one face to another that characterised it throughout its early years.
In an eļ¬ort to add constitutional clarity and direction to the uncertain start
of Welsh devolution, the Welsh Assembly Government commissioned in 2002
a report on ā˜the powers and the electoral arrangements of the National
Assembly for Walesā™. A commission of ten members, chaired by the Labour peer
Lord Richard, reported in March 2004 (see www.richardcommission.gov.uk).
Report of the Richard Commission (2004), ch 14
[T]here is now in place an evolving legislative relationship based increasingly on the expec-
tation that, in principle, the needs and wishes of the Assembly should be met. For example:
ā¢ it is recognised that the Assembly Government is the initiator of policy on devolved
matters and a major stakeholder on non-devolved issues as well;
ā¢ it is the Welsh Assembly Government that formulates distinctive legislative proposals for
Wales on devolved matters; and proposes them to the UK Government and Parliament for
224 British Government and the Constitution
ā¢ the Assembly Government is consulted on the content of legislation affecting devolved
fields and has opted out of such legislation if it wishes;
ā¢ Assembly Committees, and individual Members, have the opportunity, so far as is practi-
cable, to comment on Bills being considered at Westminster, particularly through pre-
legislative scrutiny . . .
The Assembly has already become the initiator of much legislation for Wales on devolved
matters and this is accepted both in Cardiff and at Westminster as the right relationship . . .
It seems to us, therefore, inaccurate to describe the present situation as one of merely
executive devolution. It already has some features and practical infrastructure of legislative
devolution . . .
New legislation has already conferred upon the Assembly considerable permissive powers
in the key policy areas of health, education and the environment, including powers to amend
by order UK primary legislation . . .
The Assembly has used its powers of secondary legislation to reflect its own policy choices
and priorities. Some of the most popular decisions of the past four years, nationwide free
bus passes for the elderly and disabled, and free prescriptions, have been introduced by
statutory instrument and not primary legislation.
It is this growing and maturing experience which, in our view, should determine the devel-
opment and the pace of the Assemblyā™s legislative activity and future powers. The case for
change does not rest on the limitations of the existing settlement ā“ but also on the legisla-
tive and regulatory experience gained in these first four years.
One of the most encouraging developments over this period has been the growing con-
sensus in favour of devolution not only within Wales but also at Westminster. We hope that
our proposals can build on that consensus, and thus provide the best foundation for a stable
and sustainable settlement . . .
We do not think the status quo is a sustainable basis for future development. Although
there has been significant evolution in the Assemblyā™s powers since 1999, it has been an ad
hoc, piecemeal development, on a case by case basis, not founded upon any agreed general
policy, or informed by any set of devolution principles.
The report of the Richard Commission oļ¬ered two ways forward, one which
could be accommodated within the framework of the Government of Wales Act
1998 and the other of which would require new Westminster legislation. The
former possibility was outlined in chapter 13 of the report:
[A] possibility would be for the powers of the Assembly to develop within the existing
Government of Wales Act framework, but with much broader legislative powers. The objec-
tive would be to enable the Government in the Assembly to deliver its programme, but
through specific powers delegated to it by Parliament.
There are no formal legal or constitutional rules that define what should be the subject of
primary rather than secondary legislation . . . [T]he current settlement depends on what
Parliament decides, on a measure by measure basis, shall be provided through primary
225 Devolution and the structure of the UK
legislation and what through secondary legislation. Accordingly, the Assemblyā™s powers could
be strengthened within the current settlement by including in future primary legislation new
framework provisions designed to allow the Assembly to, for example, make through
secondary legislation any changes it wishes within the field covered by the Act . . .
There are precedents for a more permissive approach to the Assemblyā™s powers: the
Education Act 2002; and the NHS Reform and Healthcare Professions Act 2002 and the Health
(Wales) Act 2003, which confer on the Assembly powers to amend certain primary legisla-
tion. Although the powers granted under these Acts do not give the Assembly the freedom
to do anything it chooses within the scope of the Act, the two Health Acts in particular do
confer some broad powers on the Assembly to shape NHS delivery in Wales.
The second solution recommended by the Richard Commission was to confer
by fresh legislation new powers on the Assembly to make primary legislation.
In the event the United Kingdom Government opted for a combination of the
two schemes, albeit that the ability of the Assembly to make primary legislation
would come in a series of steps, and not immediately: see its White Paper, Better
Governance for Wales (Cm 6582/2005) and the legislation it spawned: the
Government of Wales Act 2006, to which we can now turn.
(iii) Devolution under the Government of Wales Act 2006
The Government of Wales Act 2006 has three main aims: to eļ¬ect a formal sep-
aration of powers between the executive and the legislative branches of the
Assembly, to reform electoral arrangements and to enhance the legislative
powers of the Assembly.
To take each of these in turn, under the Act the Welsh Assembly Government
is established for the ļ¬rst time as an entity separate from, but accountable to,
the National Assembly (ss 45ā“8). Welsh Ministers act on behalf of the Crown
rather than as delegates of the Assembly, but will have to resign from oļ¬ce if
they lose the conļ¬dence of the Assembly. A new oļ¬ce of Counsel General is
created, the post-holder being responsible for providing legal advice to the
Assembly Government on matters relating to their devolved functions (s 49).
Most of the statutory functions which under the 1998 Act were exercised in the
name of the Assembly have under the 2006 Act formally become the responsi-
bility of the Welsh Ministers (ss 56ā“8).
The main change in the electoral arrangements is the new rule that individ-
uals are no longer able to be candidates in constituency elections and at the
same time be eligible for election as regional members from party lists (s 7). In
the 2003 Assembly elections, seventeen of the twenty AMs elected from the
regional party lists were candidates who had stood in, but had lost, constituency
elections. These included the candidates who had come second, third and even
fourth in the Clwyd West constituency. In the Governmentā™s view, this was both
confusing for electors and unfair, making winners out of losers, but in the view
of other parties the change was nothing more than a crude attempt on the part
226 British Government and the Constitution
of the Government to rig future elections in favour of the Labour Party, as it
would be the Liberal Democrats and Plaid Cymru who would be most adversely
aļ¬ected by the new rule. Consequently, the proposed change was a matter of
considerable controversy as the Government of Wales Bill made its progress
through Parliament. Indeed, there was some doubt whether the Bill would be
passed at all, such was the hostility to this provision in the House of Lords. In
the event, however, the Government got its way.
The enhancement of the Assemblyā™s legislative powers is complex, and
is divided into three stages. The ļ¬rst (as recommended by the Richard
Commission, see above) sees the conferral of wider powers on the Assembly
to make subordinate legislation. This change, as explained above, did not
require fresh legislation and has already commenced under the framework of
the Government of Wales Act 1998: see eg, the Commissioner for Older People
(Wales) Act 2006 and the NHS Redress Act 2006 s 17. The second and third