(Title Image: -JvL- via Flickr under Creative Commons Licence CC-BY-2.0)
Before considering what a Welsh Constitution might look like, the current UK constitution is worth a closer look.
As an unwritten, uncodified constitution the strengths and weaknesses were briefly looked at in Part I.
Key UK Constitutional Concepts
1. The Role of the Crown
Executive power in the UK derives from the Crown (monarch).
Although the monarch plays a largely ceremonial role, in constitutional terms the monarch’s executive (government) powers are exercised on his/her behalf by ministers, parliament, government agencies (like the Crown Prosecution Service) and alike. The monarch is, therefore, a physical embodiment of the state.
A Privy Council – made up of senior politicians from both Houses of Parliament, as well as the devolved parliaments and other selected members – advises the monarch. Regency Acts can also allow the appointment of a Regent in the event a monarch becomes incapacitated.
In practice, the monarch only exercises their prerogative powers on the advice of the government and/or privy council.
The monarchy’s real power – other than as a celebrity or a requirement for deference – is arguably as a landowner and landlord (see also: Independence Minutiae – The Crown Estate), though even then it’s managed on their behalf.
The monarchy is financially supported by the UK Government/taxpayer (Sovereign Support Grant, which replaced the old civil list) and the Crown Estate. In 2019-20, the Sovereign Support Grant was £82.4million.
2. Parliamentary Sovereignty
Parliamentary sovereignty is one of the UK’s most important constitutional principles. In the most basic terms, it means the UK Parliament has the power to do whatever it likes, placing it above the executive and judiciary – though that might be over-simplifying things and I’ll come back to this later.
Under the principle of parliamentary sovereignty, there can never be a federal or confederal UK because the UK Parliament can make or unmake any law it wants, meaning a sub-state within the UK (like Wales, Scotland etc.) can never have full authority over its own laws – more on this later.
Parliamentary sovereignty means the decisions of one parliament can’t bind a future parliament (following an election) – so anything can be undone. It also means no laws properly passed by the UK Parliament can be struck down.
The only thing that binds the hands of Parliament are political, moral and ethical concerns – an unpopular or outdated law, for example, may not be applied in practice.
3. Rule of Law
In short, this means the government and public agencies have to act within the bounds of any laws relevant to them (“legality”). Additionally, it covers the right to due process when accused of a crime and a duty for the law to be upheld and enforced to prevent anarchy (Part VI).
Rule of law also covers the basic rights people and wider society have (Part IX) and a commitment to democracy.
The ultimate dispenser of laws is the UK Parliament (even with devolution), though it’s the job of the courts and police to interpret and apply the laws the UK Parliament has passed.
4. Constitutional Conventions
A convention, in terms of political customs (not the conventions I’ll mention in Part IIIa), is a tradition or unofficial rule that’s expected to be followed but without the same strict requirement that would occur if they were clauses in a written/codified constitution (though some constitutional conventions are backed by the law).
UK Constitutional Law
Here’s a selection (not an exhaustive list) of the most important laws relating to the workings of the UK Constitution – demonstrating why it’s an uncodified constitution (Part I) and not a completely unwritten one.
Act of Union 1707 – Between 1603-1707, Scotland and England shared a monarch but were independent nations. The Act suspended the Scottish Parliament – ending Scottish independence – and created a unified Kingdom of Great Britain (not including Ireland at the time) at least partly motivated by the threat of monarchs using one parliament against the other as well as a financial crisis caused by the failure of Scottish colonial ventures. Amongst the few concessions to Scotland was the retention of their legal system (which has marked differences from EnglandandWales), as well as the establishment of their own church.
Reform Act 1832 – Reformed the House of Commons by scrapping “rotten boroughs/pocket boroughs” (ultra-small constituencies where a landowner/MP controlled the electorate), introducing an element of uniformity amongst constituencies (which were based largely on counties at the time) and started the process of extending voting rights beyond landowners to include men living in properties worth a minimum amount. It also saw the first moves towards official voter registration.
Representation of the People Acts – Fourteen separate laws passed between 1884 and 2000 which eventually granted all people over the age of 18 a right to vote, abolished university constituencies, set rules for election expenses, changed the disqualification criteria for MPs and introduced postal voting.
Parliament Act 1911 – Weakened the role of the House of Lords in law-making by removing their veto over Bills from the House of Commons (they can only delay by up to a year) and putting the convention of Money Bills only coming from the House of Commons (as mentioned above) in law.
Anglo-Irish Treaty 1921 – In 1801, the Irish Parliament (Ireland at the time being largely self-governing but run by a Protestant minority) was abolished following an Act of Union. After more than 100 years of failed attempts by Irish nationalists in the UK Parliament to re-establish “Home Rule”, in 1916 Irish republicans staged a failed uprising. While the uprising was largely dismissed by the Irish public at the time, the aggressive response from the British Government saw sympathy towards the republicans increase and led to a two-year guerrilla campaign. An agreement was reached between the UK Government and the Irish Free State which created Northern Ireland as a rump self-governing province under UK rule (later playing a part kickstarting “The Troubles”) and granting the Free State a high measure of independence as a dominion within the (then) British Empire. The Treaty was opposed by more hardline republicans, leading to a short civil war which pro-Treaty forces won, though the Free State eventually became the Republic of Ireland in 1949.
Statute of Westminster 1931 – Established the (effective) independence of dominions of the British Empire (Canada, Australia, New Zealand, Irish Free State, Newfoundland, South Africa), though the House of Lords retained some remnant judicial roles as the final court of appeal. This would lead to a wider decolonisation programme through the 1940s-1990s (except for Overseas Territories) and the end of the British Empire, which was reshaped as the more fraternal Commonwealth “club”.
Good Friday Agreement 1998 – A landmark agreement between the UK Government, Republic of Ireland and Northern Irish republicans and loyalists which secured a tentative peace through a power-sharing devolved government in Northern Ireland. It included a statement that the future status of Northern Ireland is a matter for the people of Northern Ireland. It also created several cross-border bodies. The Agreement was approved by referendums in Northern Ireland and the Republic – though some elements of Brexit (particularly the introduction of a “hard border”) may see the Agreement collapse.
Constitutional Reform Act 2005 – Abolished the House of Lords’ judicial role (as the final court of appeal) and created the UK Supreme Court. It also created an independent Judicial Appointments Commission to select judges for courts in EnglandandWales.
Fixed-Term Parliament Act 2011 – Ended the royal prerogative by which the UK Parliament can be dissolved by the monarch (on the advice of the Prime Minister) and introduced a fixed 5-year parliamentary term under which an extraordinary UK General Election could only be called via a series of parliamentary votes. It looks set to be repealed before 2024-2025 by the sitting Conservative UK Government which may well put the issue of dissolving parliament back in the hands of the monarch and Prime Minister.
Succession of the Crown Act 2013 – Probably the most significant change to laws relating to the monarchy in centuries by ending male primogeniture, meaning the eldest child of the monarch – regardless of gender – would be considered first-in-line for the throne (in the end it doesn’t matter as the next three people in line to the throne – likely to run into the 22nd Century – are all male). It also revoked the disqualification with regard to ascending to the throne for marrying a Catholic.
EU Withdrawal Agreement Act 2020 – Completed the (start of the) Brexit process by disapplying EU law in UK law by repealing the European Communities Act 1972.
Separation of Powers in the UK Constitution (Part VII)
In most nations, the executive (government), legislative (parliament/elected law-makers) and judicial (courts) branches of government are formally separated and keep each other in check – called the tripartite system.
In nations which use the Westminster System, the judiciary is largely independent and free from political interference, but there’s a blurring between the executive and the legislature because the head of government (Prime Minister/First Minister) is a member of the legislature as well. So what the UK has is a bipartite system.
In the UK, the different branches don’t have a constitutional means to protect and defend their own “patch” and prevent one branch of government from abusing its power. Instead, it’s enforced using the constitutional principles mentioned earlier: rule of law and parliamentary sovereignty.
In nations with a codified written constitution and a presidential system of government – like the United States – the role and functions of the three branches are clearly defined and strict boundaries are set.
Rights in the UK Constitution (Part IX)
I’ll be looking in more detail at this in Part IX, but it’s worth briefly looking at how individual and collective rights are protected in the UK Constitution:
Habeas Corpus Act 1679 – Grants a right to any prisoner to have their imprisonment examined by a court to determine if it’s lawful imprisonment – meaning you can’t be imprisoned for the hell of it.
Bill of Rights 1689 – Introduced following the Glorious Revolution, guaranteeing many civil rights (which still apply) and restricted the ability of the monarch to act without parliament’s consent.
Human Rights Act 1998 – Enshrined the Council of Europe’s (not EU) European Convention of Human Rights (ECHR) in UK law and subsequently allowed human rights cases to be heard in UK courts. There are on-off plans to repeal it and replace it with a “British Bill of Rights” which would be subject to the UK Parliament’s determination of what rights are.
Civil Contingencies Act 2004 – Sets out how emergency powers (Part VII) are to be used by the UK Government and other public authorities (including the devolved governments).
The UK Constitution and Wales
Before England: Cyfraith Hywel
The Laws of Hywel Dda (Cyfraith Hywel) is the closest thing Wales has come to a codified constitution. It developed during the reign of the aforementioned King of Deheubarth (who ruled the majority of what is modern-day Wales) in the 10th Century.
It included references to the role of the King and senior members of the royal court, laws on the succession, established a civil and criminal court system and set out a list of rights including, for the day, relatively progressive women’s rights (with regard to divorce and a compensation system for domestic abuse) and laws on inheritance (which included illegitimate children).
But it’s right and proper to point out that the laws included some less-than-progressive elements, including the legitimisation of slavery and serfdom, as well as a sponsorship system for foreign residents accompanied by a lengthy process for naturalisation (though both may have been considered liberal at the time). A system of weregild/galanas – compensation for crimes – put a price on people’s lives and limbs based on their social standing.
By placing tradition and custom over common sense, the laws on inheritance actively encouraged the younger offspring of a recently-deceased king/prince to rebel to secure their birthright. This built-in weakening of the position of the named successor maintained a divided Wales and perhaps made it easy for the Saxon kingdoms and, eventually, the Normans to take advantage of internal Welsh squabbles to pursue their own interests.
Unlike Scotland (and Ireland), Wales has never been party to a formal “Act of Union” with England and was brought into the UK by forced annexation, as well as a desire by the Welsh gentry for assimilation into the English royal court and high society.
It was a gradual process over several centuries – punctuated by rebellions – which ended with Henry VIII. Of course, there wasn’t a single “Wales”. Wales remained for the most part a loose confederation of minor principalities mixed with lands held directly by the English crown (in and around Carmarthenshire and Ceredigion in the main) and semi-autonomous Anglo-Norman Marcher Lordships with varying ties to England.
Statute of Rhuddlan 1284 – Established how Wales (or, more accurately, the former Principality of Wales which covered the north-west) would be governed following Edward I’s conquest. English law was introduced for most criminal offences, but some elements of Welsh law were retained. This marked the end of Welsh independence and the start of a (mixed-success) colonisation programme on behalf of the English crown through the creation of English-only walled market towns.
Penal Laws 1402 – Passed by the English Parliament during the Glyndwr Uprising, the Penal Laws banned the Welsh from holding senior public office, banned mass gatherings of Welsh people, placed Wales under an arms embargo and banned the Welsh from owning a fortified property. They weren’t repealed until 1624.
Laws in Wales Acts 1535 & 1542 – Before these laws, Wales had a form of devolution (the Council of Wales & The Marches) and retained elements of Welsh law. After the Acts, Wales was formally annexed into England – though the Council was given official standing. The use of the Welsh language in the courts was outlawed and the English justice system was introduced, with the whole of Wales divided into English-style counties following formal annexation into England.
Some may describe this as an act of betrayal (given the Tudor’s Welsh descent), though you could also argue quite strongly that it ended the “othering” of Wales and gave Wales equality in English law – to the point of almost being an emancipation – after generationally unsuccessful and costly (to both sides) rebellions. The Council was abolished in 1689 to little protest, while the Court of Great Sessions – a Wales-specific criminal court system – was abolished in 1830. Although the Acts probably prevented Wales ending up like Ireland did in the 17-19th centuries, we’re still living with the consequences today.
Wales & Berwick Act 1746 – In a conga line of national humiliations, this is right up there. The Act meant any reference to England would automatically include Wales and the town of Berwick-upon-Tweed (which regularly swapped between Scotland and England). You would think that would be the end of Wales, but….
Sunday Closing (Wales) Act 1881 & Church in Wales Act 1914 – Two minor laws of huge significance. The Sunday Closing Act was the first Wales-only law since the Laws in Wales Acts and took into account the rise of nonconformism and the temperance movement which, in turn, led to moves to ban pubs opening on Sundays (which wasn’t completely reversed until 2003). The latter disestablished the Church of England in Wales for largely the same reasons. Politically, Wales was back.
Welsh Language Acts 1967 & 1993 – The Acts reintroduced Welsh as a language of public administration in Wales, including the use of Welsh in the courts and put Welsh on equal footing with English – though it wasn’t until 2011 that Welsh was given official status.
Devolution & Wales
Proposals for some form of self-government for Scotland and Wales (Northern Ireland had been self-governing since its establishment) had been considered for some time before the 1970s, with administrative devolution (via a dedicated UK Cabinet department for Wales) established in 1964.
The 1973 Kilbrandon Commission recommended that Scotland and Wales should have elected assemblies with law-making powers in certain areas, while England would be divided into several regions to advise the UK Government on English affairs.
The proposals were watered down and in 1979 a referendum on a 72-member Welsh Assembly with power to make regulations (law-making powers would have remained in London) in areas such as health, education, planning and culture was rejected, with just under 80% of people voting against.
In 1997, the incoming UK Labour Government revived the idea and the proposal was largely the same as in 1979, except the Assembly was reduced to 60 members. Scotland would have a more powerful law-making and tax-varying parliament from the start. The Welsh devolution referendum was won by a knife-edge 50.3%.
The then Welsh Secretary, Ron Davies, famously described devolution as a “process, not an event”, which could be interpreted as meaning that the Assembly would grow and increase its powers over time without threatening the integrity of the UK – and that’s largely what’s happened.
Government of Wales Act 1998 – The law which established the Assembly as a corporate body of 60 members (20 of whom are elected via proportional representation) with powers to pass secondary legislation (regulations, not laws) in areas specifically devolved to Wales. Also established the office of Auditor General of Wales.
Government of Wales Act 2006 – Formally separated the Welsh Government from the National Assembly, created a Welsh Seal and a Welsh Consolidated Fund (“bank account”) and gave the Assembly highly-restricted powers to make laws (Measures) in areas specifically devolved to Wales. If the Assembly wanted to draft a Measure within a devolved area where specific powers had not yet been granted, it has to “ask permission” from the UK Parliament (Legislative Consent Order). This LCO system could be replaced with full law-making powers in devolved areas via a referendum.
Referendum (Wales) Order 2010 – Legislated for the aforementioned referendum on the Assembly being granted full law-making powers within devolved areas. The powers were approved by 63.5% on 4th March 2011.
Wales Act 2014 – Set out several financial powers for the Assembly, including the power to create new taxes in devolved areas (with the permission of the UK Parliament), powers over stamp duty, landfill tax and business rates. It banned MPs from double-jobbing as AMs and allowed Assembly candidates to stand on the regional lists and in a constituency at the same time (which was banned in 2006).
Wellbeing of Future Generations Act 2015 – A Welsh law requiring public bodies to consider the impact of their decisions on future generations through the use of seven open-ended wellbeing goals covering the economy, health, equality, culture and the environment (Part XI) – more detailed information on the old Oggy Bloggy Ogwr.
Wales Act 2017 – Granted the Assembly the power to vary income tax up or down by a maximum of 10% and allowed the Welsh Government to borrow up to £1billion for capital investment. It also devolved extra transport and natural resources powers, powers over the electoral arrangements for the Assembly (Senedd & Elections Act 2020) and local government (Local Government & Elections Bill) and also established the Assembly as a permanent part of the UK Constitution that could only be abolished via a referendum. It changed how the Assembly’s powers worked by switching to a system where the Assembly can pass laws in any areas except those where power is specifically retained by the UK Parliament (Reserved Powers).
Legislation Act 2019 – Passed by the Senedd, the Legislation Act will create a codified body of Welsh law through the creation of several Consolidation Bills which will lay out the law in devolved policy areas. It also includes provisions to make Welsh law more accessible and sets out how laws should be drafted and interpreted in Wales.