Recent developments and future prospects in Welsh devolution: part one

By: Hugh Rawlings

Introduction

For well-understood reasons given the history of Northern Ireland and the prevailing political circumstances in Scotland, discussion by journalists and academics of constitutional developments in the UK tends to focus on prospects for those two territories, with little notice taken of what is happening in Wales. The purpose of this two-part blog is therefore, in the first part, to draw to readers’ attention two important developments of current interest in Cardiff Bay, and in the second, to consider two issues with medium-term implications for the political and constitutional circumstances of Wales.

A new Cooperation Agreement

At the Senedd elections in May 2021, the Labour Party secured 30 seats, exactly half of the available 60; the Welsh Conservatives won 16, Plaid Cymru 13 and the Welsh Liberal Democrats 1.  These results maintained Labour’s position as the dominant political party in Wales for a further five years; by 2026, that dominance will have lasted for more than a century, a quite astonishing electoral performance[1]. Nevertheless, the results did not produce an overall majority for Labour and opened up the unattractive prospect of annual budget negotiations with Opposition parties, and a more general vulnerability to defeat on aspects of the Welsh government’s legislative programme. Given that both Labour and Plaid Cymru are broadly left-of-centre parties, and were in formal coalition between 2007 and 2011, it is hardly surprising that approaches were made to Plaid for some sort of arrangement. During the Senedd election campaign, however, Plaid had stated its unwillingness to enter into another coalition unless certain conditions, effectively for parity between the parties, were satisfied; they of course were not. So, following an extended period of private negotiations over the summer and autumn, we have instead a Cooperation Agreement, which came into effect on 1 December.

The Agreement sets out 46 policy areas on which the two parties have agreed to work together, either to bring forward specific policies for implementation or to explore for the future. But for readers of this blog, there may be more interest in the supporting ‘Cooperation Agreement – Mechanisms: How the Welsh Government and Plaid Cymru will work together during the Cooperation Agreement‘, a truly remarkable document for observers more accustomed to the traditional binary Westminster model of governing and opposition parties.

As the document notes, the Agreement does not create a coalition, and there will be no Plaid Ministers or Deputy Ministers. ‘The legal and political accountability arrangements for the exercise of powers and commitment of resources continues to rest entirely with the Welsh Government. However, at the political level, the Welsh Government agrees to take decisions jointly with Plaid Cymru across the agreed range of cooperation’. To achieve this, Plaid will designate named members drawn from its Senedd party group to work with individual Ministers, and ‘Welsh Ministers and Plaid Cymru’s designated members will….jointly agree matters within scope of the agreement, while recognising that formal and legal responsibility for those decisions still rests with the Welsh Ministers’. An Annex to the Mechanisms paper provides a code for designated members to follow when they are participating in activities covered by the Agreement: ‘The intention is that Designated Members agree to be bound by the same standards and expectations as are placed upon Welsh Government Ministers’.

Although Plaid will have no Ministers, two additional Special Advisers will be appointed[2] to help provide day-to-day support for the range of matters covered by the Agreement. There will also be a new civil service-staffed Cooperation Agreement Unit, led by a senior civil servant, which ‘will work even-handedly with the two partners to ensure effective delivery of the agreed work programme’. It is further declared that ‘The Agreement will respect the Civil Service and its obligations, together with the statutory, legal and accountability frameworks within which the civil service is obliged to operate. Subject to that framework, the Welsh Government civil service will work constructively with Plaid Cymru to enable the successful operation of the Agreement’. The operation of the Agreement will be supervised by a Joint Oversight Board (which ‘will be chaired by the First Minister in close consultation with the Leader of Plaid Cymru’), and the Cooperation Agreement Unit will be accountable to the Board (as a whole).

Adam Price, the Leader of Plaid Cymru, has described his party’s new position as one of ‘co-opposition’. Speaking about the Agreement in the Senedd on 7 December, he quoted the noted American political scientist Robert Dahl, who said that in certain circumstances ‘To say where the government leaves off and the opposition begins is an exercise in metaphysics’. This observation may have resonance in, say, Scandinavian multi-party systems, where cooperation between parties in, partly in, or out of, government is routine, but Westminster operates differently, and the Senedd’s founding legislation and its Standing Orders assume that binary model of governing and opposition parties. The Senedd’s Llywydd (Presiding Officer) has sought legal advice on various questions arising out of the Agreement. Lord Pannick’s Opinion provides reassurance that ‘although [the role of the civil service and the participation of Plaid’s Designated Members in decision-making] is unusual, it is not, in its existing formulation, constitutionally improper, far less unlawful…..In principle, there is no reason why a Minister could not direct civil servants to involve a Member of an opposition party in the delivery of the policy commitments of the Cooperation Agreement so long as (a) the decision reached is formally taken by the Welsh Government, and (b) the Welsh Government bears responsibility for it.’ But it is noted that ‘as civil servants are politically impartial and cannot be involved in political compromises between the Welsh Government and Plaid Cymru, any political issues must be agreed as between the groups without impinging on the neutrality of the civil servants’.

Lord Pannick’s Opinion does not address the practical questions as to how the Agreement will impact on the Senedd’s conduct of its business. In a lengthy Written Statement on 15 December, the Llywydd considered the issues arising. Although the leader of Plaid Cymru will continue to be able to question the First Minister, the Llywydd ‘would not expect those questions to be used to promote any policy areas covered by the Agreement. Questions to any Ministers should focus on scrutiny, as such I expect the Leader of Plaid Cymru to frame questions accordingly’. She also (although this is not formally a matter for her) expressed the view that it would not be appropriate for any of Plaid’s Designated Members to chair any committees or be members of committees that cover their area of responsibility under the Agreement, a principle she said should, given the Agreement’s provisions relating to future Welsh government budgets, also apply to the chairing of the Finance Committee. Most interestingly, she expressed an intention to ‘explore further…how to facilitate scrutiny of [Plaid’s] Designated Members and the Leader of Plaid Cymru by the Senedd, possibly in the case of the Leader on a monthly basis…’.

The novelty of the structures created by the Cooperation Agreement will require imaginative solutions if proper scrutiny by the Senedd of all key players in governmental decision-making is to be maintained. This will clearly be a work in progress in coming months.

A larger Senedd?

As noted above, the Senedd currently comprises 60 members. These are elected via the Additional Member System; 40 are elected from constituencies (formerly, the UK Parliamentary constituencies for Wales) and 20 from regional lists. These arrangements have remained unchanged since the first elections to the then (purely executive) National Assembly for Wales in 1999, and were barely adequate even at that time, but today’s Senedd Cymru is a very different animal, with extensive legislative powers. In as early as 2004, the Richard Commission recommended that Assembly membership should be increased to 80, elected via the Single Transferable Vote (STV) system; in 2014 the Silk Commission endorsed the case for a larger Assembly. In 2017, provisions in the Wales Act conferred powers on the Assembly to make new provision for its size and electoral arrangements, subject to a requirement that any such amending legislation should be approved by not fewer than two-thirds of the Assembly’s total membership (ie 40)[3]. In the same year, an Expert Panel appointed by the Llywydd, and chaired by Professor Laura McAllister, recommended that the membership should be of between 80 and 90 members, with an expressed preference for the number to be at the upper end, and that the STV electoral system should be adopted.

Even before the Cooperation Agreement between the Welsh government and Plaid Cymru had been approved, the Senedd had voted to establish an all-party Special Purpose Committee to develop proposals that might be included in a Welsh government bill; the Committee is required to report by 31 May 2022. The Cooperation Agreement builds on this by committing the parties to support the work of the Special Purpose Committee, and envisages a future Senedd of 80-100 Members, who would be elected by a system ‘as proportional – or more – than the current one and have gender quotas in law’. A Senedd Reform Bill to achieve this is to be introduced 12-18 months after the Committee reports i.e. in the period June-November 2023. Crucially, of course, Labour and Plaid can together command 43 votes in the Senedd (44 if the solitary Liberal Democrat also supports the proposals), comfortably above the minimum number of 40 required to achieve a substantial measure of reform, so it is realistic to anticipate that any such Bill will achieve Royal Assent.

That said, the Committee will not have an easy task in identifying a way forward. Assuming that the STV electoral system will finally be agreed for adoption for the next round of Senedd elections in 2026, there will still be difficult questions of exact size, electoral geography and proportionality to resolve, and these are of course all linked. By 2023, the map of UK Parliamentary constituencies in Wales will be radically different, with 32 constituencies replacing the existing 40. What use, if, any, should be made of these in constructing a new set of Senedd electoral arrangements? While any commitment to using the parliamentary boundaries may imply some loss of Senedd control, there clearly are good arguments, both for local political party organisation and in enhancing public understanding, for coterminosity in parliamentary and Senedd constituencies. And in any event, there will not be time before 2026 for a new electoral geography of multi-member constituencies to be constructed.

A possible solution[4] might be to use the new 32-constituency map and provide for three Senedd members to be elected from each (using STV). This would give a 96-member Senedd, something which, given a starting number of 60, might be considered a ‘courageous’ decision in Yes Minister terms. Such a solution might appeal to Plaid, but arrangements of this type could only be as proportional as, but no more than, the current system, which would disappoint that party (but which presumably would enhance its appeal for Labour). The alternative would be to revert to the model favoured by the McAllister Expert Panel, pairing the existing 40 constituencies and having 4 or 5 members elected from each of the 20 to produce a Senedd of 89-90. Plaid Cymru could well favour this (at the expense of a slightly smaller Senedd than ideally it would wish to see), but the significantly increased proportionality implicit in a structure of STV constituencies electing 4 or 5 members would not be an attractive proposition for Labour. And it might seem perverse to have regard to these constituencies for Senedd elections just as they are about to be abolished as parliamentary constituencies.

So, while we can be reasonably confident that Senedd reform will be implemented in time for the next round of elections in 2026, there are significant issues to address on the detail, and the consensual approach to policy-making explicit in the Cooperation Agreement may be tested to the full before solutions are arrived at.

Before his retirement, Dr Hugh Rawlings held numerous senior civil service positions within the Welsh government, most recently as Director of Constitutional Affairs and Inter-Governmental Relations. He is an Honorary Professor at the Wales Governance Centre, and a Fellow of the Learned Society of Wales.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.


[1] For an extremely interesting discussion of academic explanations for this phenomenon, see Professor Richard Wyn Jones’ lecture (24 November 2021) to the Cymmrodorion Society, ‘Nations, Class and Values: Nationalisms in Welsh Politics’, available on the Society’s website.

[2] The absence of Plaid Ministers will not affect this: under the Welsh settlement, all Special Advisers are appointed by the First Minister, see Constitutional Reform and Governance Act 2010, s.15.

[3] Wales Act 2017, s.9.

[4] Another solution would be simply to replicate the existing system and have 64 members elected from the 32 constituencies, and 32 from regional lists; but what would happen to those lists if, at a future boundary review, the number of Welsh constituencies was reduced to, say, 31? In the event of a reduction in the number of constituencies, using STV to return members from each constituency would simply result in the number of Senedd members elected falling, in line with the reduction in number of constituencies; this is how matters are arranged in Northern Ireland.