The New Model Wales

Published date01 December 1998
Date01 December 1998
AuthorRichard Rawlings
DOIhttp://doi.org/10.1111/1467-6478.00100
The United Kingdom is currently undergoing a rapid process of funda-
mental constitutional change. One of the chief developments is a redistri-
bution of law-making and governmental powers to different territories
of the Union. It is a programme of devolution, as befits an unwritten
constitution characterized by the doctrine of parliamentary sovereignty,
and not federalism. The case of Wales, historically closely integrated
with England,1presents here its own challenges. The aim of this article
is to examine the process of change for Wales, to explicate and critically
assess the Welsh scheme of devolution, and to consider possible future
development in a broad legal and constitutional setting.
Wales has always been now. The Welsh as a people have lived by making and remaking
themselves in generation after generation, usually against the odds, usually within a
British context. Wales is an artefact which the Welsh produce. If they want to. It requires
an act of choice. Gwyn A. Williams2
On 18 September 1997 the people of Wales made a choice by referendum.
In the summer of 1999 the National Assembly for Wales will open for
business. The article develops a series of major themes in this context. The
rst theme concerns the sui generis nature of the Welsh scheme and the way
in which this reflects a distinctive territorial history. The model is primarily
one of executive devolution, which includes the transfer of various subor-
dinate law-making powers. An Assembly, not a Parliament as in Scotland,3
is justified on grounds of less consensus for change and closer integration
© Blackwell Publishers Ltd 1998, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Law Department, London School of Economics and Political Science,
Houghton Street, London WC2A 2AE, England
I am, as ever, grateful to Carol Harlow for advice and encouragement. I would also like to
thank Martin Loughlin for comments on a draft of the article. The usual disclaimer applies.
461
JOURNAL OF LAW AND SOCIETY
VOLUME 25, NUMBER 4, DECEMBER 1998
ISSN: 0263–323X, pp. 461–509
The New Model Wales
RICHARD RAWLINGS*
1Symbolized by the formal incorporation of Wales into England in the so-called Acts of Union
1536, 1543.
2 G.A. Williams, When Was Wales? (1985) 304.
3Scotland’s Parliament (1996; Cm. 3658); Scotland Act 1998.
with England. The scheme is thus seen to present a dual character: transfor-
mative, when read in light of the retarded development of a distinctive Welsh
polity; limited or ‘gentler’ devolution in the context of a reinvented Union.
A second major theme is introduced: the dynamics of devolution and the
way in which these operate at various levels. Implicit in executive devolution
is the ongoing allocation of powers via primary legislation. This alone
ensures that the devolution of today is not the devolution of tomorrow. So
too the architecture of the scheme reflects and reinforces an evolutionary
approach with an in-built capacity for change. Hence a framework is demon-
strated within which the Assembly can develop organically.
Devolution to Wales must also be seen in the light of a programme of
redistribution of powers which is asymmetrical in character. Attention is
here drawn to interplay in the territorial reforms of the two elements of
commonality and diversity. Hence there are parts of the Welsh scheme which
basically reflect the needs and demands of other territories, pre-eminently
Scotland. So too, the overarching process puts in question the durability of
this scheme, as more advanced forms of devolution are seen operating
elsewhere in the Kingdom. Wales is sui generis but it is not an island.
The pragmatic quality of the new construction is another related theme.
Stress is here laid on the strong role in the policy-making of responsive factors.
The clearest example concerns the recent experience of government in Wales
under the Conservatives. Attention is also drawn to the influence on insti-
tutional design of the mode or process of delivery, not least in terms of internal
Labour Party politics. It is to this effect a story of reform suffering from a
poor beginning, which finds tangible expression in the scale of, and limits to,
revision of the scheme in the course of legislative and administrative process.
Legal and administrative complexity is a theme inevitably associated with
executive devolution. A horizontal division of law-making functions is
involved, as distinct from legislative devolution and a vertical division of
primary law-making powers. Technically-speaking, it is the case that doing
less is harder, as regards construction of the framework and modalities of
this form of devolution. Disaggregation of the law-making process both
creates new opportunities and implies costs. Executive devolution under-
scores the potential of an infusion of legal values and techniques, given the
close interaction of different law-making bodies. Attention is thus drawn to
the great importance in the scheme of the political and administrative values
of co-operation and co-ordination.
A further theme is the high degree of innovation and experimentation
found in this scheme. One element is the novel choice of internal architecture.
There is a mixing of executive and secondary legislative functions in the
Assembly, a body corporate,4as well as the pairing of a cabinet-oriented
form of administration with a strong system of committees. A linking
element is the role of the scheme in the Labour government’s constitutional
462
© Blackwell Publishers Ltd 1998
4 Government of Wales Act 1998, s. 1 (hereinafter ‘GWA’).
project of ‘a new kind of politics’. It is an elusive concept which has in this
context been assigned a jumble of meanings: accessibility and permeability
of the political network, consensus and co-operation, an end of tribalism in
local politics. More concretely, the Secretary of State, Ron Davies, has
spoken of an Assembly ‘based on principles of partnership, democracy and
inclusiveness’.5A bold claim, and one which provides relevant criteria to
judge the arrangements.
Wales is also to be reinvented in terms of regional government in Europe.
This is a dimension which points up the major role in current United
Kingdom constitutional reform of considerations of economic development,
as well as the broad influence now exercised in domestic law and politics by
supra-national modes of ordering. Put another way, the arrangements
demonstrate the relevance to internal constitutional design of the broad
currents of transnationalism and globalization, as constituted in the context
of their relationship with the new dynamics of local nationalism.
The final theme concerns the role and interplay of different forms of law
in the new construction. This article demonstrates how fundamental this is
in the design and to proper evaluation of it. A paradox is identified. The
legislation, the Government of Wales Act 1998, is a long and complicated
affair,6yet long silences punctuate the statutory provisions. There is great
reliance, first, on standing orders or the internal law of the Assembly, and,
second, on inter-institutional administrative agreements or ‘concordats’ to
help structure extra-territorial relationships. The explanation involves both
the complexity of executive devolution and the evolutionary approach,
that is, permissive legislation and the benefits associated with informal or
‘bureaucratic law’ of flexibility and the scope for institutional learning. But
further, the choice of soft law techniques like the concordats is seen to express
values of co-ordination, collaboration, and partnership associated with the
general New Labour project of modernization and changed democratic
culture. It involves to this effect a reworking of the informal character of
the British Constitution.
All this goes to make up what I call the new model Wales. It represents
not only a turning point in the history of the territory, but also a fascinating
development in constitutional law and politics, an important moment in the
constitutional and legal history of the United Kingdom. In contrast, the
silence of the public lawyers has been deafening.7It illustrates the narrow
trajectory of so much of the scholarship, not only court-oriented, but also,
463
© Blackwell Publishers Ltd 1998
5 R. Davies, 298 H.C. Debs., col. 757 (22 July 1997).
6At 159 sections and 18 schedules, it is much larger than its Scottish cousin. The voluminous
first Transfer of Functions Order (below, p. 486) must also be counted.
7Save for a few disparaging remarks from Cambridge: D. Williams, ‘Devolution: The Welsh
Perspective’ in Devolution and the British Constitution, ed. A. Tomkins (1998). This is not to
overlook excellent contributions from other quarters. See, especially, Constitution Unit, An
Assembly for Wales (1996); also Institute of Welsh Affairs (IWA), Making the Assembly
Work (1997).

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