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Common Law Review
 
Domů arrow Články arrow Issue 1 - The British Constitution arrow 10: Miluše Sedláková - Return of the Dragon? The New National Assembly in Wales
10: Miluše Sedláková - Return of the Dragon? The New National Assembly in Wales PDF Tisk E-mail

Return of the Dragon?

 The New National Assembly in Wales

 

Miluše Sedláková

 

Recently we have been witnesses to some very dramatic changes in the constitution of the United Kingdom. As part of the new Labour Government's policy of devolving power to the UK's various nations and regions, a parliament was established in Scotland, while assemblies were established for Wales, Northern Ireland, and the City of London. Although the UK's legislative supremacy has been technically retained and Westminster can at any time abolish these new bodies, few doubt that in reality the changes have been permanent and that the character of the previously highly-centralised British constitution has been changed for ever. The aim of this article is to look at the background to just one of these new institutions: the Welsh Assembly in the context of the history of Anglo-Welsh relations and then to provide an overview of basic features which characterise today's constitutional situation in Wales.

 

The Making of the Union of Wales and England

 

Unlike Scotland, Wales (whose national flag displays a red dragon on a green and white field) has never been a united and independent country. Its people are the successors of the original Celtic-speaking inhabitants of Britain who between the 5th and 7th centuries AD were driven west into the mountainous region which is today called Wales by the invading Anglo-Saxons – the Germanic-speaking ancestors of the modern English. Thus it was geography which saved the Welsh from cultural extinction and settlement by the vastly more numerous English. This physical isolation from England meant among other things that Wales was able to remain a predominantly Welsh-speaking country right down to the beginning of the 20th century (today Welsh is still spoken by 19% of the population). It was also geography, however, which prevented Wales from developing into a united country, the mountains in its centre constituting an almost impenetrable barrier to the various attempts during its long history at national unification. As a result Wales developed into a country of regions, with distinctive local traditions and differing dialects of Welsh, and with each region under the rule of a particular tribal prince. Unfortunately, rivalry and jealousy came to characterise the relations between the different regions, especially between those of the north and south. To a great extent it can be argued that these divisions have survived to the present day. Not surprisingly, this permanently disunited country found itself too weak to resist the inevitable historical drift to political domination by England until finally in 1282 it was entirely conquered by the powerful armies of King Edward I, and its various princes made subject to the English Crown.

 

Yet it should not be doubted that during the long history of Wales there were several moments when the Welsh people attempted to achieve this aim of creating a united and independent state and once or twice even came close to it. The sense of a separate national identity was a constant theme in the literature of the Middle Ages ever waiting to find political expression. Yet the perpetual reality was that any attempts of individual princes to establish a national state were always resisted by the other Welsh princes, thereby allowing the English kings the chance to intervene and try to assert their own authority. During the 9th century a group of Welsh princes allied themselves with King Alfred of England and this alliance is often considered as being the origin of the Welsh dependence upon the English. However, one of these princes, Hywell Dda of Dyfed, who governed in the south of Wales, succeeded in briefly setting himself up as king of all of Wales and is famous for the issue of a series of laws for Wales which bear his name. The 13th century saw determined efforts by the princes of Gwynnedd, the strongest of the princes of northern Wales, to assert their military control over the other princes. Their early success, however, in the process provoked invasion by Edward I. Despite heroic resistance by the last of these princes, Llewelyn ap Gruffydd, Welsh resistance was crushed and in 1282 Llewelyn himself was killed. The beginning of the 15th century saw the last attempt to gain independence for a united Wales when Owain Glyndwr summoned Wales' first and until recently only parliament in its history. The failure of Owain's efforts left Wales forever under England's control.

 

Actual assimilation into the English governmental system was a slower process than the military conquest of Wales, taking place step by step over several centuries. By the Statute of Rhuddlan (1284) Wales was divided into administrative shires (on the English model) some of which were placed under direct royal control, with others given to individual Anglo-Norman barons (the so-called marcher lordships). Welsh criminal law and much civil law was abolished and replaced by English common law. During the reign of Henry VIII (1509-1547), however, assimilation advanced more rapidly. The fact that the English king was a member of the Welsh Tudor dynasty greatly increased his legitimacy to rule in Wales and laid the ground for the final absorption of Wales into England. The Act of Union of 1536 (revised in 1543) formally united Wales with England and further reformed the administrative system along English lines. The marcher lordships were abolished and much of the previously Welsh-speaking territory they had contained was permanently annexed to English shires on the other side of the border. Thus Wales became 20% smaller than before. English was made the official and exclusive language of the courts and was to be used for all official administrative purposes, and the sons of all Welsh landowners were required to learn English even if that meant sending them to England to study there. In return Wales was granted parliamentary representation in Westminster.

 

A second Act of Union in 1543 completed the process of assimilation on the legal front. A system of special Welsh courts - the so-called Courts of the Great Sessions. They were abolished in 1830 when two new circuits operating as a part of the English court system were set up to take their place, which were established to administer English common law. The last remnants of separate Welsh law were eradicated and all Acts of Parliament were now to extend to Wales. The Wales and Berwick Act 1746 marked the final act in the political extinction (and humiliation) of Wales by stating that whenever the term "England" was used in an act of Parliament, it should be read to include Wales too. Only Bishop Morgan's famous translation of the Bible into Welsh made at the end of the 16th century saved the country from cultural extinction as well, by ensuring that at least one official function, the religious one, was left to the language. This helped to slow down the advance of English until well into modern times and explains why that as late as the 1890s a majority of Welsh people still could not speak English.

 

In our century this Wales has gradually re-emerged as a governmental unit. The 18th and 19th centuries saw Wales develop socially and religiously in a different manner from England and required the development of a variety of different administrative institutions for Wales (described below), the most important of which was the establishment of the Welsh Office in 1964. Increasing national feeling, especially relating to the language, led to the passing of the Welsh Language Act 1967 which provided, that references to England in future acts were not to be read to include Wales, thereby restoring the country to legal existence again. If Parliament intended an act to extend to Wales it was necessary for it to state its name separately. Also, official bilingualism was established with the Welsh language given an assured position again in many areas of national life, including education, administration and legal proceedings. A long dispute about the borders between Wales and England was finally resolved by the Local Government Act 1972, which recognised the important border county of Monmouthshire to be within Wales. Wales was back on the map again.

 

Welsh Nationalism and the Process of Devolution

 

Throughout the centuries there have been several eruptions of Welsh national feelings. Unlike with Scottish nationalism, however, these demands have been mostly centred on the promotion of Welsh culture and language and have sought the greater recognition and representation of Welsh interests. In modern times few people were interested in independence for Wales. After the middle of the 19th century increasing national feeling was visible in many areas and a political and educational revival began, e.g. the composition of a national anthem, the establishment of the University of Wales, a national library, or a national museum. Already in the early 1890s, there were proposals to create a devolved Executive for Wales and to appoint a Secretary of State -  a special government minister entrusted with advancing the interests of the country. Lloyd George, a Welshman, who was to become Prime Minister in the time of the First World War, called for devolution, i.e., limited self-government, for Wales as early as 1891. In between 1906 and 1907, the Welsh Department of the Board of Education was formed being the first central government department to administer exclusively Welsh affairs. This was quickly followed by the Welsh Church Act 1914, which disestablished the Church of England in Wales, and, i.e., set it free from English interference. In 1925, Plaid Cymru, a political party seeking independence for Wales was founded, and although until recently it has enjoyed only limited support, it has undoubtedly helped to place the self-government question on the political agenda.

 

It should also be noted, however, that the same period has also seen great changes in Welsh society which have ironically made it harder for Wales to achieve any form of self-government. In particular the country has stopped speaking a single language, leading to the rise of tensions and suspicions between people who speak Welsh, with the largest concentrations living in the rural north and west of the country, and those who do not, especially the urban south of the country, including Cardiff. Likewise the rapid 19th century industrialisation of southern Wales has sharpened differences with the traditional rural areas. The result has been the return of much of the regional division which characterised the Middle Ages and the rise of a perception feeling among many Welsh people that a self-governing Wales might be dominated by a regional, political or language group with which they felt no common identity and which might even constitute a threat to their own particular way of life.

 

Nevertheless, in the 1950s greater sensitivity began to be shown to Wales' separate identity by successive British governments. In 1949 a government-financed body, the Council for Wales and Monmouthshire was created, to advise central government on Wales' special needs. Cardiff, the principality's largest and wealthiest settlement, became a capital city in 1955. It was the first time that Wales had had a capital. The Welsh Office as a department of the UK government and the post of Secretary of State for Wales were finally established in 1964. In 1978 the Labour Government introduced the Wales Act with the purpose of creating an assembly for Wales but the idea was rejected by a four to one vote in the referendum in March 1979. The next referendum on the establishment of the Welsh Assembly was held in Wales on the 18th September 1997, seven days after the referendum in Scotland on the setting up of the Scottish Parliament, but this time the outcome was a narrow yes vote for the Assembly.

 

The Welsh Assembly

 

1. Composition and Functioning: As a result of the Referendum vote the Government of Wales Act 1998 was passed establishing the Welsh Assembly. It is an institution sitting for a fixed term of four years of office and is an administrative body, not a legislative one. Unlike its Scottish counterpart, it is not entitled to dissolve itself earlier. The Assembly has 60 members, 40 of which are elected on a constituency basis using the traditional "first past the post" system and 20 additional members) by proportional representation from a party list. The latter are elected in a way that has never before been used in the United Kingdom. Each voter has two votes - one for the constituency member and the other for the additional member. The elections take place every four years, on the first Thursday in May. Members of the Welsh Assembly can also sit as MPs, MEPs (Members of the European Parliament) or as local government councillors at the same time. The institution is run under a committee system. Its overall political leadership is provided by an Executive Committee, comprised of the leaders of each of its subject committees. The Executive Committee and the subject committees are entitled to propose secondary legislation (Assembly Orders) for submission to the Assembly for debate and approval. There are also regional committees established to assure the needs of each area of Wales, which have advisory, but not decision-making powers. The Assembly meets in Cardiff.

 

2. Responsibilities: While the Scottish Parliament is able to overturn UK legislation and introduce new legislation in areas not reserved to Westminster, the Welsh Assembly can only amend Westminster legislation in the areas devolved to it. These include, generally speaking, the previous responsibilities of the Secretary of State in secondary legislation. The responsibilities relate to these areas:

- economic development

- agriculture, forestry, fisheries and food

- industry

- education and training

- local government, town and country planning

- health and personal social services

- housing

- the environment

- planning

- transport and highways

- arts, culture, the Welsh language

- built heritage

- sports, recreation and tourism

 

The other significant difference from the position of the Scottish Parliament is that the Assembly is fully reliant on funding by central government while the Scottish institution has the power to vary the basic rate of income tax.

 

3. The Role of the Secretary of State for Wales: Even after the transfer of certain powers to the Assembly, the Secretary of State for Wales continues to represent the country in the Cabinet. He or she attends meetings of the Assembly and is obliged to consult the Assembly about the government's legislative programme announced in the Queen's Speech. The Assembly may draft its response. Although the Secretary of State is able to attend the meetings, he or she has no entitlement to vote and is not bound by the Assembly opinions. The Secretary of State should also meet with the Executive Committee at regular intervals to exchange views about government policy.

 

4. Relationship with the European Union and Community: Responsibility for issues arising from  membership of the European Union remains at Westminster. The Welsh Assembly, however, has the ability to scrutinise legislative proposals and other European materials and also has the responsibility for ensuring the implementation and enforcement of EU obligations. It is the Secretary of State for Wales who participates in the relevant meetings of the Council of the EU and the members of the Assembly who represent Wales on the Committee of the Regions. The Wales European Centre in Brussels continues to operate as an advisory institution on European issues.

 

The Welsh Assembly has already become a part of everyday political affairs in Wales. The majority in the Assembly is commanded by the Labour Party (led by Mr Rhodri Morgan) while Plaid Cymru (led by Mr Ieuan Wyn Jones) is the largest opposition party. That the institution is really a lively one could be seen last year when the question of a vote of no confidence in Mr Alun Michael (the First Secretary and leader of the Welsh Labour Party) was tabled by the opposition parties because of his alleged failure to meet the demands over European funding for deprived areas of West Wales and the South Wales Valleys. Mr Michael decided to resign before the vote could take place and Mr Morgan was elected to succeed him in the First Secretary post and as the new leader of the Labour Party in Wales.

 

A Process or an Event?

 

From today's perspective, the establishment of the Welsh Assembly has brought about a revolutionary constitutional change in Wales. The forum is very young and faces all the problems that youth brings, and it is therefore too early to assess its performance. Will the Assembly go on to acquire further powers (e.g. legislative powers like the Scottish Parliament), or even to lead Wales to ultimate independence, or will the Welsh settle for what they now have? In other words, as one Welsh politician has put it, is devolution a process or an event? Will it succeed in uniting Wales at last as one nation in one state or will it simply succeed in exacerbating further the intense historical, cultural and regional differences of the country? Time alone will tell. Nevertheless, the child is born to the red dragon country and the present writer would like to wish to it nothing but well-being and success.         

 

Bibliography:

Barnett, H., Constitutional and Administrative Law, 2nd ed., 1998

Bogdanor, V., Devolution, 1979

Bowen, E.G., Wales: A Study in Geography and History, 1943

Bradley, A.W. & Ewing, K.D., Wade and Bradley Constitutional Law, 1993

Thomas, D. (ed.), Wales: A New Study, 1977

 

 

Miluše Sedláková

Miluše Sedláková is a fourth-year student at Charles University Law Faculty in Prague where she also serves as a student assistant at the Department of Constitutional Law. In 2000/2001 she studied at Cardiff University Law School, Wales as a Socrates/Erasmus student.

 

 
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