Several Welsh flags flying.

Several Welsh flags flying.

Changes needed urgently to “make devolution a viable option for the long term”, Commission says

Published 24/01/2024   |   Reading Time minutes

The current devolution settlement is “at risk of gradual attrition” without urgent action to secure it, the Independent Commission on the Constitutional Future of Wales says.

The Commission has proposed recommendations to strengthen Welsh democracy and protect devolution, as well as evaluating options for the future governance of Wales.

This article considers the main findings of the report.

What is the Commission?

The Welsh Government established the Commission in November 2021, as part of the Co-operation Agreement with Plaid Cymru. It had two broad objectives:

  1. To consider and develop options for fundamental reform of the constitutional structures of the United Kingdom, in which Wales remains an integral part.
  2. To consider and develop all progressive principal options to strengthen Welsh democracy and deliver improvements for the people of Wales.

The Commission was co-chaired by Professor Laura McAllister and Dr Rowan Williams, and was made up of a group of commissioners.

How did the Commission engage with the public?

The Commission aimed to hold a “national conversation with the citizens of Wales”, including through oral evidence sessions with key stakeholders and a public consultation.

The report states that one of the strongest messages coming out of its engagement was that “many citizens feel they have no influence on the actions of government”, and that devolution “does not yet enjoy citizens’ full confidence”. To tackle this, it recommends that:

  • The Welsh Government introduces innovative mechanisms for including communities in the democratic process, including through the development of new strategies for civic education.
  • The Welsh Government leads a project to “engage citizens in drafting a statement of constitutional and governance principles for Wales”.
  • Reviews of reforms to the Senedd should be robust and evidence based, and include a consideration of the impacts on democratic accountability.

The current settlement

The Commission argues that since the referendum on EU membership in 2016, the UK Parliament and the UK Government have “overridden the conventions designed to protect devolution several times”. Such actions, it suggests, contribute to a risk of a “gradual attrition” of the devolution settlement. It says that whilst “no change” should be an option for citizens, without urgent action there will be no “viable settlement to protect”.

The report further states that, due to its vulnerability to continued erosion, the current settlement is “not capable of delivering the degree of consistent Welsh control of devolved matters” which it says is essential for the Welsh Government to deliver on its manifesto commitments.

To protect the devolution settlement, the Commission recommends that:

  • The Welsh Government should propose that the UK Parliament legislates for intergovernmental mechanisms to ensure “a duty of co-operation and parity of esteem between the governments of the UK”.
  • The Sewel Convention should be made legally binding except in specific circumstances pre-determined by the governments.
  • The UK Government should “remove constraints” on Welsh Government budget management, except where there are macro-economic implications, to enable the Welsh Government to better manage its budget and plan for the long term.

Devolution of further powers

The report argues that the people of Wales are not currently served well in relation to justice, policing and rail services, and that these powers should be devolved.

It also suggests that broadcasting, energy, employment rights and social security benefits are of “great importance” to Wales, and that consideration is needed to ensure that devolved institutions can provide an “effective voice” in these areas.

As such, it recommends that:

  • The Welsh and UK governments agree a way for Wales to have a stronger voice in the field of broadcasting, with potential routes to future devolution explored.
  • The Welsh and UK governments should consider constitutional reforms to prepare for innovations in energy generation and distribution.
  • Control over the Crown Estate should also be devolved to Wales.
  • Responsibility for justice and policing should be devolved, starting with policing, probation and youth justice.
  • Responsibility for rail services and infrastructure should be devolved.

Options for the constitutional future of Wales

The Commission’s interim report, published in December 2022, argued that there are three viable future constitutional options for Wales: entrenched (now called “enhanced”) devolution, federal structures and independence.

The final report doesn’t set out a preferred option, rather it reiterates that each is viable, but offers different risks and opportunities:

  • Enhanced devolution: the report says this offers advantages in areas such as capacity and cost, economic stability, and public finances, and would avoid the risks (and opportunities) of more radical change. However, this option brings the risk of “continued relatively poor economic performance, low incomes and poverty”.
  • Federalism: the report finds this offers a middle way between independence and continuation in the UK, and could be strong on areas such as accountability, borders, and trade. However, this requires UK-wide constitutional change, with a written constitution.
  • Independence: the report says this is “by far the most uncertain option”, but could offer “potential for long term positive change”. There are potential benefits in terms of agency, accountability, and subsidiarity, but this could leave Wales “significantly worse off” economically in the short to medium term.

Wider context of constitutional change

The Commission’s work is the latest in a series of reports considering reforms to the UK’s constitution.

In December 2022, a UK Labour Party commission led by former Prime Minister, Gordon Brown, put forward recommendations such as replacing the House of Lords with a democratic chamber to represent the UK’s nations and regions. It criticised the “unreformed, over-centralised way of governing” in the UK.

In September 2023, the Institute for Government and the Bennett Institute for Public Policy warned that the UK’s constitution is in “urgent need of reform”. Recommendations include the establishment of a new UK Parliamentary Committee on the Constitution and the creation of a new category of “constitutional acts” to recognise the importance of key pieces of legislation.

The Senedd is also currently considering proposals for reform. In its report on Wales’s constitutional future, the Commission considers these proposals to reform the Senedd in the broader constitutional context. It welcomes measures to “increase proportionality and capacity”, and supports plans to review the new system after the 2026 election. However, it suggests that there is a “good case” for the adoption of an alternative to the Closed List voting system proposed in the Bill. Senedd Committees published their reports on the reform proposals on 19 January 2023.

Continuing the national conversation

The Commission hopes that citizens will continue to engage in constructive debate about the nation’s constitutional future. It notes that not all communities in Wales have been heard, and suggests that a “national conversation needs to be continuous and long term” to build on the start it has made.

The First Minister will deliver an oral statement on the report to the Senedd on 30 January 2024.

Article by Adam Cooke, Senedd Research, Welsh Parliament