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Confessions of a Constitutionalist

Updated: Apr 16, 2020

Dafydd Elis-Thomas

The constitution of the United Kingdom holds no mysteries as far as I am concerned, though most of its commentators indulge in mystifications about it. Just as in other developed post-imperial European apparent nation-states or state-nations, it combines elements of limited constitutional reform laced with symbolic historical accretions. As a Welsh Anglican the nearest I get to worshipping at the shrine of the "Union" is if I happen to take holy communion at Westminster Abbey on the Feast Day of St Edward the Confessor, which unfortunately does entail standing a bit too close to the tomb of Edward I.

The constitutional relationship of Wales and England within the United Kingdom was finally established in 1993 as being entirely based on current constitutional law rather than on any notion of a "union". No great fuss was made about Schedule 2 of the Welsh Language Act 1993 during its parliamentary stages, but it did repeal the Laws in Wales Acts 1535 and 1542 as "spent enactments", which might be read as contrary to the Act's intention of giving effect to the principle that in Wales "the English and Welsh Languages should be treated on a basis of equality".

That there never was an established "union" between Wales and England is clearly understood by present-day historians, but it was convenient to extrapolate the concept earlier in the twentieth century to the four nations following the failure to implement the "home rule all round" of Gladstonian Liberalism. The legislation of the Tudor period was more about ensuring the access of the emerging bilingual elite into England and Wales's post-Principality administration following punitive restrictions after the Glyndwr insurgency. But it did provide a new framework for Welsh shire government and constituency parliamentary representation at Westminster, as well as distinct "devolved" institutions such as the Court of Great Sessions, alongside the long "devolved" Council of Wales and the Marches—which thrives yet again in the form of the current Welsh Marches Line.

Late medieval and early modern "devolution" in distinctive institutions was always a feature of Wales's relationship with ardderchog o goron Lundain ("the eminent Crown of London"), as it is described in the Mabinogi text, probably composed in its extant form in Gwynedd during its ascendance as a Principality in the twelfth century. In the same period devolution in the administration of justice in Wales and the Marches, still denied, was achieved by Clause 56 of Magna Carta, which provided that disputes were to be settled according to English law, Welsh law, or the law of the Marches, depending on the location of the disputed property. This will no doubt feature in any celebration of Magna Carta by Welsh lawyers next year!

Two architectural studies, Wenceslaus Hollar, 1647

Another historical legacy of late medieval "devolution" is the boundary of Wales itself. By the Treaty of Montgomery 1267, Llywelyn II was recognised by Henry III as Prince of Wales and overlord of all native rulers who would do homage to him, and the holder of that title alone would do homage to the king for the Principality. His successors would also be recognised as Princes of Wales, so recognising the Principality of Wales as a constitutional entity distinct from the person of an individual prince. This was no doubt the high-water mark of late medieval "devolution", and long-lasting in European terms, since the geographical boundary of political Wales has remained virtually the same to this day.

This short-lived Principality's prospects were damaged by military defeats from the thirteenth century but were revived by the military victory of Henry Tudor (Henry VII) and the coming to power of the Tudor royal house, when the Welsh were seen to be ascending to the Crown of London itself, as heralded by the poetic spin doctors of the time. The climax of the Tudor period saw the making of Welsh an "official language" of religion by the Elizabethan Act for the Translating of the Bible and the Divine Service into the Welsh Tongue 1563, which required that the Bishops of Wales and Hereford place copies of the Bible in Welsh side by side with the English version in every parish church in Wales—the most significant act of cultural devolution up until the implementation of Church disestablishment in 1920.

As Liberal nationalist rhetoric invoked the historic residue of GlynclVvr, so newly devolved Wales invoked a much earlier symbolism. On that historic evening in 1999 in Cardiff Bay, when Shirley Bassey and Tom Jones sang and the queen opened the first Welsh Assembly, adjacent to her royal standard and at the same height on the next flagpole, there flew the standard of the Prince of Wales. In the sovereignty of heraldry at least, the limited historical sovereignty of the Principality in the form of the arms of Llywelyn I was given full and equal recognition. With the coming of law-making powers, the arms reappeared with the queen's approval as the royal badge of Wales on all National Assembly legislation, and were incorporated, along with a representation of the monarch, in the Great Seal of Wales whose keeper is the First Minister. With the opening of the Senedd building in 2006, the National Assembly's original home next door, which now houses Assembly Members and Commission staff along with Welsh ministers during Assembly sessions, was renamed T9 Hywel in recognition of Hywel Dda (Hywel the Good), the king who allied with the kingdom of Wessex to oppose the Viking threat and was the originary lawgiver who gave his name to "Cyfraith Hywel" (Hywel's Law), as medieval Welsh law is often defined.

At the first royal opening of the Senedd building itself, that essential "bauble" (as Oliver Cromwell described it) of Westminster-derived parliamentary traditions—the mace—which had been denied at the earlier opening because of weak legislative powers, was presented to the queen and installed in the Siambr (debating chamber): a gift from the Parliament of new South Wales to an older South Wales. Elected Assembly Members and the judiciary processed; ceremonial guard duties were provided by members of the Welsh armed forces along with a Royal-Navy vessel, appropriately HMS Westminster; and there was an RAF fly-past from Valley on Anglesey, uniting the nation in a matter of minutes. Newly re-devolved Wales had adapted its symbolism to assert itself as a political and cultural nation, albeit one with limited constitutional powers.

Reflected in its own symbolism of the Central Lobby, designed in the mid-nineteenth century in the Gothic Revival style by Sir Charles Barry and Augustus Pugin, the United Kingdom parliament is imagined as a multinational state of four nations, in the space described by no less an authority than Erskine May as "the political centre of the British Empire". This highly symbolic space was blessed in its four majestic arched entrances by which the public gain access to both Houses; these are adorned by highly ornate mosaics of the four patron saints of the four constituent nations of this imagined multinational state. Appropriately, when a member moves from the Commons chamber to the Lords, the patronage of St David is exchanged for that of St George. Perhaps intercessions might be offered to these heavenly patron saints for the future of their nations and the kingdom?

On earth, devolution in Wales has been a helter-skelter pace since 1999 of events and process. A dusted-off Wales Act 1978 from the Welsh Office library in Cathays Park in Cardiff—rejected firmly by four to one in the 1979 referendum—re-emerged as the Government of Wales Act 1998, with all its inherent defects and devoid of rational constitutional principle.

The National Assembly, though having an aura of being a legislative and fiscal democratic body, was in fact still a single-body corporate model, with no separation of powers or accountability between executive and legislature. While Welsh local government was adopting a model where there was a proper separation of cabinet and scrutiny of it, the National Assembly mixed these functions to the extent that government officials unversed in parliamentary practices took it upon themselves to advise on democratic procedure and to refuse to allow independent legal advice to elected members on constitutional and procedural matters. Needless to say, the University Law Schools, individual members of the judiciary, not to mention leading members and senior officials of the UK parliament, provided much valued independent counsel until the situation was remedied.

Within the first two years of the National Assembly's young life, the terms "First Minister" and "Assembly Ministers" had been adopted; and although the constitutionally confused and publicly confusing "Welsh Assembly Government" (Llywodraeth Cynulliad Cymru) was the compromise announced by the First Minister Rhodri Morgan, his democratic intention of "making a distinction between the executive and legislative parts of the Assembly" was absolutely clear. Then, early in 2002, came the irrevocable step, unanimously supported by the Assembly, of adopting the recommendations of the Review of Procedure that "there should be the clearest possible separation between the Government and the Assembly which is achievable under current legislation" adopting the recommendations of the Review of Procedure in February 2002.

This resolution, enjoying all-party support, became a beacon of light to guide the Assembly through an essential agreement within Welsh Labour and across the other parties to move to a second constitution. It led the way out of the executive devolution of the first constitution of 1998, through the transitional "Legislative Competence Orders" of "Assembly Measures" in the second constitution, to a successful referendum in 2011, as a result of which Acts of primary legislation could be made. Under this model full legislative powers were conferred on the Assembly in subjects where it has competence, but with a S schedule full of "exceptions" which—if and when they are removed—would give the Assembly full Act-making competence in all devolved subjects.

The key move was to incorporate within the transitional stage a referendum trigger which would make the shift to fuller competence in one encompassing second constitutional Government of Wales Act 2006. The seminal report on the powers and electoral arrangements of the National Assembly, published in March 2004 and chaired by Lord Ivor Richard, set a far-reaching and constitutionally coherent agenda that has yet to be fully implemented. However, the steps taken by Peter Hain as Secretary of State and Rhodri Morgan's political drive as First Minister to seek broad support within and beyond Welsh Labour, as well as the full-hearted co-operation between all Welsh political parties represented in the Assembly, were all crucial. So too was the subsequent coalition in One Wales Government (2007-11) between Welsh Labour and Plaid Cymru, which was marked by the growing willingness of the Welsh electorate, in both opinion polls and real polls, to give their increasingly self-determining consent.

Where to then? —as we say in Wales —and whither England? To say that this is a matter for the people of Wales and England to decide according to the right of self-determination of peoples and nations as traditionally understood throughout the twentieth century is not to avoid the question. There are certain principles based on our common histories which may be applied; not least among these, we need to make a clear distinction between the United Kingdom as reflecting an "imperial" period of our shared past and the current realities of the national lives of England, Ireland, Scotland, and Wales in Europe. Clearly this implies that a distinction be made between the governance of a devolved England and/ or its historic regions and the remaining "central" government and representational structures of the United Kingdom. The United Kingdom of four nations represented a mere one-hundred-year phase of our common history. However, our geopolitical juxtaposition will always mean that we have to live together "for better, for worse; for richer, for poorer". We also need to reflect that—although some political colleagues like to refer to devolution changes as "settlements"—there can, historically speaking, be no lasting "settlement" of these "questions".

Professor James Mitchell concludes his magisterial volume The Scottish Question (2014) thus:

Whatever happens in the referendum, the Question will remain unanswered definitively not least because it is more than one question but crucially because it includes a series of relationships that need to be addressed anew in each generation. These relationships are, like nations, daily plebiscites. There can be no final resolution to the Scottish Question for that reason.

Nor for the Welsh, nor for the English!

Scottish Question for that reason. Nor for the Welsh, nor for the English!

Queen Elizabeth II on her Coronation Day ,Cecil Beaton, 2 June 1953

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