A house of cards? The failure to find a stable devolution settlement in Wales: an audit of Wales' evolving devolution settlement reveals confusion, inconsistency and short-termism at the heart of Labour's policy-making.

Author:Evans, Adam
Position:THE BREAK-UP OF BRITAIN?

Introduction

Launching the 2006 Government of Wales Act the then Welsh Secretary, Peter Hain, confidently predicted that the legislation would 'settle for a generation --if not more--the whole constitutional obsession we have in Wales about the powers and the status of the assembly' (Wales Office, 2005). Emerging as Welsh Labour's compromise response to the 2004 Richard Commission, the 2006 Act's clear aim was to break with the hitherto turbulent nature of Welsh devolution, establishing a stable and enduring settlement. However, it appears that it will prove to be yet another interim dispensation.

Such a prediction is grounded in several factors. First, the failings of the 2006 Act itself. Unlike the 2004 Richard Commission's comprehensive and radical blueprint for reform, the 2006 Act is timid, more concerned with Welsh Labour's internal politics than constitutional effectiveness (Osmond, 2008). This prioritisation can be seen in the Act's proposed two-stage route to legislative devolution, a messy compromise that saw its interim phase abandoned far more rapidly than Hain intended (Mitchell, 2009; Wyn Jones and Scully, 2012). Indeed, even the second stage of primary legislative powers is far less than Richard proposed, retaining the conferred powers model--something which experts are already warning could create considerable uncertainty over the Assembly's actual competence (Wyn Jones and Scully, 2012).

Furthermore, the Act left unanswered questions about a Welsh legal jurisdiction, institutional capacity and the financing of devolution, all of which are increasingly salient with the move to primary powers. Future change thus seems inevitable, particularly as the Silk Commission has been established by the UK Government to consider such reforms. Moreover, both the debates on independence and 'devo-max' in Scotland, and Welsh public appetite for further devolution, are likely to drive further development of Welsh devolution.

From 1998 to the 2006 Government of Wales Act

To understand the 2006 Act properly, we must first consider its context and the forces that led to its development, namely the failings of the 1998 Government of Wales Act and the process of reform these weaknesses initiated. The Government of Wales Act 1998 was not a product of its time, but of history, offering what Rawlings calls a 'back to the future' approach through its roots in the failed devolution legislation of the seventies (Rawlings, 2003). The retention of much of the 1978 legislation in the 1998 Act is testament to the power of path dependency and the internal politics of the Welsh Labour Party (Mitchell, 2009), with the latter leading academics and commentators to describe the 1998 dispensation as much as an exercise in party management as it was in polity-building (Wyn Jones and Scully, 2012; Morgan and Mungham, 2000).

However, the limitations of the 1998 Act can also be explained by the weaker public demand for devolution in Wales, with Mitchell arguing that divergent public attitudes in Scotland and Wales played a key role in underpinning the asymmetrical nature of British devolution (Mitchell, 2009). Equally important was the experience of administrative devolution in Wales, with the Assembly inheriting the pre-1999 executive functions of the Welsh Office and Welsh Secretary. Indeed, the gradual manner with which the Assembly accumulated power appeared to be grounded in the same logic and flow of competence building that had defined administrative devolution (Bogdanor, 1999).

What emerged as a result of these dynamics was a limited and, in comparison to Scotland and (later) Northern Ireland, a quite clearly subordinate devolution dispensation (Mitchell, 2009). Alongside the executive nature of Welsh devolution, a key feature of the 1998 system was the Assembly's body-corporate structure. The lack of separation between executive and Assembly created a fundamental problem of accountability, particularly because Ministers sat as members of the Committees designed to scrutinise them (Rawlings, 2003). Furthermore, with such a limited dispensation and a reliance on framework legislation and orders in council to gain much-needed further competence, the Assembly had to bid for legislative time at Westminster to secure their priorities, something that met with little success due to Wales' low priority status (Bogdanor, 1999).

These flaws, unsurprisingly, built demand for reform and as early as 2002 the Assembly's review of procedure effectively abolished the body-corporate structure with a de facto separation between the Welsh Assembly Government and the Assembly. Furthermore, a key aspect of the Coalition negotiations between Labour and the Liberal Democrats, not even halfway into the first Assembly term, was the establishment of a review into Welsh devolution, reflecting the 'near unanimity' that the status quo was inadequate (Mitchell, 2009).

This review--the Richard Commission--provided the first meaningful cross-party debate on devolution in Welsh history, producing a report which was 'almost revolutionary in its clarity' (Wyn Jones and Scully, 2012, 43-4). With such clear failings, the Commission's report in 2004 provided a 'devastating critique' of the 1998 dispensation (Wyn Jones and Scully, 2012, 43) and proposed a radical overhaul of Welsh devolution:

  1. Primary Legislative Powers under a reserved powers model by 2011. In the interim, Richard proposed extending the use of framework legislation to expand...

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