Watkin observes how the Welsh have the ability to absorb the new, while retaining values from the past. Through examining the constitutional history of Wales, the national identity of the Welsh, the preservation of values such as the Welsh language, and t

Now that the scene has been set with regards to the recent devolution history of Wales and the current situation in Wales, I can thoroughly discuss areas relevant to the statement made by Watkin. The main points of interest will be: The conception that Wales has always had a national identity despite fragmented government and different governing legal systems; the idea that Wales has an ability to absorb the new whilst retaining values from the past; and finally the belief that Wales will continue to progress in a manner true to its heritage. This discussion will explain how the legal and constitutional history of Wales can explain the nature and distinctiveness of the current devolution settlement in contemporary Wales.

The most appropriate method of describing the current devolution settlement is that it is a compromise between ideas.  Throughout the centuries, Wales has been under the control of many leaders, each with greatly differing views on how the nation should be treated.  When Llywelyn ap Gruffydd controlled Wales, he represented the idea of a self governing autonomous country. He wanted Wales to be responsible for its own affairs to a very large extent, but he also recognised the need to have a sensible relationship with its larger, more economically powerful neighbours. Essentially, Llywelyn had the vision of Wales living and abiding by Welsh laws, and free from too much English interference. In comparison, Edward I took a different view. He saw Wales as part of his dominion. He did not want Wales to be a separate entity; he wanted Wales to become more assimilated into the English realm. The difference in opinion can be described as a tension between nationalism and unionism, which incorporates the fight to retain the autonomy of Wales. At one end of the spectrum, Wales should be eradicated and at the other, Wales should have independence. At present, Wales represents a compromise of competing ideologies, in part because of the influence of the Labour Government in the 20th Century: “The Labour party is therefore most usefully characterised as a division between Welsh nationalism and British unionism, the latter being, of course, in itself a form of British nationalism.” These examples clearly illustrate the pressures that the Welsh have been under in preserving their national identity. The current devolution settlement in Wales is unique. It highlights the fact that the Welsh have held their national identity remarkably well considering fragmented governments and different governing legal systems.  

The Welsh have always been known for their strong patriotism and national consciousness. Davies describes the Welsh in the Middle Ages: “Wales had an identity of its own and so did its people. Outsiders had no doubt about that.” The first Norman Bishop of St. Davids, Benard, had the same opinion: “The Welsh are entirely different in nation, language, laws and habits, judgements and customs.” In recent times, the Welsh are viewed in the same way; Watkin comments on how the Welsh nation has held onto its national identity: “It has constantly managed to hold to the idea of a national identity.” Lord Morris agrees:

“When we speak of a nation we speak of something alive, vigorous and vibrant. Scholars may write learnedly on the topic of what constitutes a nation. Suffice it to say that Welsh people feel that they are a nation.”

Yet despite this, why is it that Wales has only very recently gained devolved powers? If the Welsh have always had such a passionate identity, why has it taken so long for the theory of the Welsh identity to be put into practice? The answer lies in the will of the people. History very often illustrates that politics are about the will of the people and their demands. For example, in 1920, Northern Ireland had the determination to retain their autonomy. Because of this determination, the Government of Ireland Act was enacted; answering the will of the people. Furthering this example, in 1985, the Anglo-Irish agreement was signed because of vast Irish protests. This demonstrates that where there is sufficient willpower; the government will respond.

An interesting perspective is to look at Wales geographically. At present, South Wales is better connected to the Midlands in England, than it is to North Wales. If the whole of Wales has a unique, single, national identity, why are there not stronger routes between South and North Wales? The train journey from Cardiff to London is shorter than Cardiff to Holyhead, despite London being further away.  The fact that these routes have not established themselves through time demonstrates that there is not a need for them, and that there is a lack of willpower for Wales to become an independent nation.

There has evidently been an absence of willpower in Wales. The reason why it has taken Wales so long to progress into a devolved nation is because of an absence of strength of feeling. This is best represented by studying Welsh poll results. In 1979, the first Devolution referendum was held. Only one in four voted in favour of a Welsh assembly; highlighting the lack of concern for Welsh independence. In 1997 a successful referendum was held, however, the result was extremely close with 50.3% agreeing to a Welsh Assembly, and 49.7% disagreeing.  Contrast this with the 1997 Scottish Devolution referendum, 74.3% agreed to a Scottish Parliament while the remainder disagreed. Again this is clear evidence that there is a significant lack of Welsh patriotism, a lack of willpower to change Wales into an individual, unique nation. March 2011 brought a referendum on extending the law making powers of the National Assembly. The results were still not overly enthusiastic for Welsh independence, but it was a promising sign with a successful 63.49% voting ‘yes’. The result does show that strength of feeling for Welsh identity is on the increase. The Economic and Research Council’s research programme on Devolution and Constitutional Change highlight some key points: “Public support for devolution has grown substantially in Wales since 1997” and “There has been a modest change in national identities with more Welsh people claiming a stronger sense of Welsh identity – and a weaker sense of British identity – since devolution.” If the trend continues, the Welsh will regain their strength of feeling and Wales can briskly progress into a unique, independent nation.

Therefore, I do not totally agree with the opinion of Watkin regarding the retention of Welsh national identity. The fact that Wales has only in the last century began to identify itself as a unique nation shows that Welsh identity is lacking amongst the masses. Poll results prove this fact, as well as geographical links. Wales did once have a strong identity, which then appeared to degenerate. Recently however, strength of feeling has started to flare and trends show this is increasing. The Welsh people have always held onto their identity through their language, traditions and culture. However, it is only becoming more independent in recent times. Morgan excellently concludes the position: “But it is an essential facet of modern Welsh history that the idea of nationhood, including the demand for self-government, never disappeared. It was always latent, ready to be rekindled.” 

Watkin argues that the Welsh have the ability to absorb the new, whilst retaining traditional values from the past. Key areas where this can be clearly seen include law making and the Welsh language.

The Welsh are known for their law making traditions, Davies remarks: “The Law is among the most splendid creations of the Welsh. For centuries it was a powerful symbol of their unity and identity.” It is possible to argue that the current devolution settlement signifies the old Welsh law making tradition. In the Middle Ages, Welsh law was the only sovereign body of law in Wales. Law making was a different process, it centred on collecting and proclaiming the ways of the people through royal initiative. Historical studies of the medieval period reveal how there was a battle for sovereignty between the English and Welsh laws for dominance in Wales, and “it was the conflict of laws that precipitated the final breach between Edward I and Llwelyn ap Gruffudd.” In the Middle Ages, there can be no doubt that the native laws of Wales were the laws of the land. However, as centuries unfolded, this diminished and English law triumphed: “The Acts of ‘Union’ of 1536 and 1543 legislated that Wales should be exclusively subject to English law.”

Law making in present day Wales is far more complex. Laws are made for Wales in many places such as Cardiff, Westminster, and Brussels. Before the Government of Wales Act 2006, Wales could only make secondary legislation. Following the act, Wales could make primary legislation but only with permission from Westminster. However, the referendum in March 2011 means that Wales now has a portfolio of legislative competence in the national assembly and can make laws in the 20 devolved subject areas. The national assembly is now a legislator, something which was very tentative in the past.

Present day Wales is vastly different from Wales in the Middle Ages. The law making is more complex and laws are created in different places. We are in the age of multi-level governance. Wales once again has powers to make laws for the nation, just like it did in the Middle Ages. The Welsh have absorbed the new and retained their legal heritage. In 2007, Lord Dafydd Elis-Thomas stated:

“The new Government of Wales Act 2006 shakes the historic relationship between England and Wales to its routes... The new legal situation in Wales means that we can now talk of the Welsh Statute Book, Welsh Law, and redeveloping a body laws which link us historically with the laws of the princes – the law of Hywel – one of culture’s most splendid creations, a powerful symbol of our unity and identity.”

Mr Justice Thomas comments on the law profession:

“There has undoubtedly been an immense strengthening of the profession in Wales over the last 10 year; devolution has increased that strength and will continue to do so.”

It is clear that the Welsh law making tradition has been resurrected in Wales; affirming the statement made by Watkin.

The Welsh language is a symbol of Welsh national identity; it has been active through different forms in Welsh society for over 1400 years. The status of the language has had a turbulent path over the centuries to the present day. Despite this, it still has a heavy presence, highlighting the fact that the Welsh can overcome problems and retain their heritage. The independence of the language started its decline in 1536, when Henry VIII ruled that the laws and government within Wales were to be conducted in English, leading to: “an unjust stigma attached to a Welsh accent and the Welsh language.” Davies comments: “In short, the legal status of the Welsh language in Wales had been relegated to that of a foreign language.” The Welsh language slowly began to regain its independence in the twentieth century. In 1913, a group formed in order to address the preservation of the language. By 1925, the group were labelled as: “an influential body, especially in south Wales.” 1935 brought the first Welsh radio broadcast, illustrating its increased popularity. In 1936, the case of Rex v Saunders Lewis, Lewis Edward Valentine and David John Williams highlighted the inferior status of the Welsh language: “The inferior status of the language in the eyes of government and of the courts was brought home by the trial.” Here, the Welsh were insulted by the treatment of the trial judge and the decision to remove a second trial. This lead to the recommendation that Welsh speaking witnesses should only respond in their native language. Following this, the Welsh Courts Act 1942 was the first step in four centuries to legally change the status of the language by permitting limited use of the language in court. In 1962, Cymdeithas yr Iaith Gymraeg was established, campaigning for official recognition of the Welsh language. Further media demand for the language was demonstrated by the creation of Radio Cymru and Radio Wales in 1977, and Sianel Pedwar Cymru in 1982. The most important legislation came in 1993, with the Welsh Language Act, which Watkin perfectly describes as: “..a landmark enactment.” This act promoted the use of Welsh, enabled the use of the Welsh language in court, and compelled public service organisations to treat Welsh and English equally.

The Welsh language has experienced a unique journey since the Act of Union in 1536. The twentieth century saw demand for the independence of the language to be restored. The language saw a significant change from the start of the twentieth century where groups were quietly campaigning, to the end where the Welsh Language Act was enacted. Davies comments: “The movement can be viewed as a shift from a position of humiliation and reliance on a non-statutory discretion towards a position of pride underpinned by an accretion of statutory rights.” The Welsh people recognised the need for the preservation and independence of their language, and they fought for it. With regards to the language, Watkin is correct in his statement that the Welsh have a tradition of being able to assimilate the new, while retaining the traditions from the past; the twentieth century is evidence.

There are several other distinctive areas which illustrate how the Welsh retain their heritage while assimilating what is valuable in the new, that are worth mentioning. Firstly, the good treatment of women is a unique trait of the Welsh. In the laws of the Middle Ages, the laws regarding the treatment of women were superior to other nations: “The status of women under the Law of Wales was in many ways higher than it was under others of the legal systems of Europe.” This respect for women is reflected in the twentieth century; in 1967 the Merched Y Wawr was founded, which is a national Welsh speaking organisation for women in Wales.

Secondly, native traditions regarding land can be seen in the twentieth century. The native Welsh were known for their strong desire to own a family home. In 1967, the Leasehold Enfranchisement Act reinforced this desire. Also, during the 1980’s, occupiers of council houses were given the option to buy their house; Watkin comments: “this was to prove popular in Wales.”

Finally, the Welsh have a literacy tradition that has been ingrained in the nation’s culture since the Middle Ages, which is still strong in the present day. Davies describes the impact of the literacy custom in the Middle Ages: “Literacy tradition also played its part in forging a sense of common Welsh identity.” In the period of the 1880’s the literacy tradition still existed, but it was hindered: “In literature, as in music, Welsh culture retained a primitive, unsophisticated quality.” Following the Second World War, literature of an exceptional quality was being produced: “It produced much distinguished writing”, however, the future of the Welsh language was a burden: “It was set against a growing desperation about the fate of the language.” In recent times, Welsh literature is thriving, with novelists and poets such as Angharad Tomos and Dic Jones having great success.  The literacy tradition has assimilated what is valuable in the new and retained its heritage; and with the certainty of the existence of the Welsh language, it will continue to flourish.

        

Watkin comments on the promising future of the Welsh nation: “... no reason for doubting that Wales will continue to develop in a manner true to its rich legal heritage while contributing fully to the larger world of which it is not an adjunct but an integral part.” Judging from the recent progress Wales has made, particularly with regards to devolution, the comment by Watkin is absolutely correct. The referendum held in March 2011 was the climax of that progress; giving the Welsh assembly direct law-making powers over devolved policies. The result of the referendum shows that there is increased support for a distinctive Welsh body of law, and judging by the trends in voting from 1979, the support will continue to increase. Williamson agrees, stating:

“The past 10 years have seen the Assembly evolve and mature, and gain the confidence of people throughout Wales. Although the Assembly was born with 30% of the Welsh electorate believing it should be abolished, now over 80% of the people of Wales support the Assembly.”

Due to the extra powers the Welsh Assembly now holds, legislation will be more ambitious and more in tune with Welsh heritage. In the future, Wales will have a distinctive body of law which will differ from England: “The exercise of broader law-making powers in Wales may in time bring into being a distinct Welsh legal system.” Laws from London, Brussels, and other countries will still remain dominant in many areas; however, the fact that Wales can produce its own legislation is very significant.  This distinctive body of law will have an impact on other areas.  Lawyers in Wales will need to become experts on laws produced by the Welsh Assembly, something which is completely new. There may be opportunities for lawyers to specialise in Welsh law. Education and training would need to change to accommodate for the Welsh body of law. As Thomas argues, these areas need to be considered in relation to the Welsh Language: “Now that the National Assembly is passing legislation in a bilingual format, do our universities need to teach legal courses in Welsh?”  The future holds many unanswered questions which are directly affected by the devolution in the present day.

If Wales continues to progress in the manner it has been, questions will arise regarding jurisdiction. For example, if the Welsh Assembly enacted a law which is challenged for being unlawful; would the Welsh legal system be able to effectively deal with it? There would also be a divergence between English and Welsh law.

Law and politics in Wales is changing at a fast pace. If the Welsh are to continue developing in a manner true to its heritage, and while contributing to the wider world, they need to take into account the changing landscape and ensure that they are able to cope. Education, training, jurisdiction and legislation all need to be addressed if Wales is to evolve into its own unique, legal identity and become “a distinctive and successful nation.” 

Examining the legal history of Wales is a tool which explains the current devolution settlement in Wales; essentially, the past helps us make sense of the present. I have thoroughly discussed the statement made by Watkin. 1282 was the date which marked the end of Welsh independence, and it is an explanation of why Wales is currently constitutionally inferior to Scotland.  Wales began to regain their identity in the late nineteenth and twentieth century with the establishment of Welsh institutions and enactment of favourable legislation. Wales reached its peak in the late twentieth and early twenty-first century, with the enactment of the Government of Wales Act in 1998 and 2006, and the successful referendum in 2011. The unique situation in Wales can be attributed to a compromise in ideas. Wales has had many leaders each with their own thoughts on Wales as a nation. Currently, Wales is in the middle ground, it is a compromise. The history of Wales illustrates how the current devolution settlement came into existence, and the progression of the nation over the past century highlights the promising future Wales has in its grasp.

Welsh identity is a complicated area. In the Middle Ages, patriotism was strong. However, only recently through polls have the Welsh people stood up for their identity and gained more independence. Ireland protested in thousands for their voice to be heard, Wales have never done anything similar. The will of the Welsh was clearly absent for a time, the 1979 referendum illustrates this. Geographical links also highlight a lack of identity in Wales; there is a clear divide between parts of Wales. The 2011 referendum was a positive result for Welsh identity and nationalism, and if the trend continues, Wales will hopefully regain a strong patriotic identity. I therefore only partly agree with Watkin with regards to identity. Rather than the Welsh consistently holding on to the idea of national identity, I prefer to agree with Morgan, that despite Welsh identity appearing to be lacking at times, it was always latent, waiting to be rekindled.

There are areas which demonstrate that Wales are able to assimilate the new while retain their heritage. The law-making tradition has been resurrected. In the Middle Ages the Welsh were renowned for their laws, and in the present day, the Welsh have a portfolio of legislative competence. The Welsh language has experienced a unique journey since the Act of Union in 1536. In the twentieth century it managed to overcome its dismissal, most notably with the creation of Welsh institutions and the Welsh Language Act. The high regard for women within the law has continued to exist since the Middle Ages through to the present day. Ownership of land remains central in Welsh culture. Finally, the literacy tradition has continued throughout the ages despite uncertainty, and now thrives in the present day.  Kenneth O. Morgan comments on the survival of the social culture in Wales: “That culture had survived and had been triumphantly renewed, against all the odds: for history was something that had happened to the Welsh in their part of the world.”

In recent times, the Welsh have vastly progressed in terms of their constitution. The 2011 referendum was a major positive step for Welsh independence. This progression will mean that Wales will need to address questions regarding, for example, future jurisdiction and teaching, but there is no reason for the Welsh not to overcome such matters. I therefore agree with Watkin that there is no doubt Wales will continue to develop and become an integral part of the larger world.

I have thoroughly discussed the statement made by Watkin. Regarding how the legal and constitutional history of Wales helps to explain the nature of the current devolution settlement, I conclude by saying that the past helps us make sense of the present, and the present affects the future. The Welsh nation in the present day is in the process of changing history. As Mr Davies stated: “Devolution is a process, not an event.” 

Words: 5,017

Bibliography

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A W Bradley and K D Edwing, Constitutional and Administrative Law (2007) (14th ed)

Gwilym Prys Davies, The Legal Status of the Welsh Language in the Twentieth Century, (2000)

John Davies, A History of Wales (1994)

R. R. Davies, The Age of Conquest (2000)

Kenneth O. Morgan, Rebirth of a Nation Wales 1880-1980 (1981)

Jeffrey Jowell and Dawn Oliver, The Changing Constitution (2007) (6th ed)

Michael Allen & Brian Thompson, Cases and Materials on Constitutional & Administrative Law, (8th Edition)

Thomas Glyn Watkin, The Legal History of Wales (2007)

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The State of the Nations Annual Lecture by Rt Hon Peter Hain MP, Leader of the House of Commons and Secretary of State for Wales, Changing for Good – Devolution: The silent revolution, (2004)

Findings from the Economic and Research Council’s Research Programme on Devolution and Constitutional Change, Devolution Briefings: Devolution in Wales: What does the Public Think?, Briefing No. 7, June 2004

Richard Wyn Jones: On Process, Events and Unintended Consequences: National Identity and the Politics of Welsh Devolution, Scottish Affairs, no. 37, autumn 2001

John William Morris, Jamsard HL Vol 392 col 866 (23 May 1978)

Valerie Price, Welsh Nationalism (Y Blaid), Wales, No. 38, March 1959

Lord Dafydd Elis-Thomas, Address to the Law Society at the National Eisteddfod in Mold, (2007)

Mr Justice Thomas: Lord Morris of Borth Y Gest Lecture: Legal Wales: it’s Modern Origins and its role after devolution, 2000

Welsh Bible and Prayer Book Act 1563: Welsh Studies

Other Materials

Rickard, J. (6 January 2001), Welsh War of Edward I, 1277-1282, http://www.historyofwar.org/articles/wars_welsh.html accessed on 10/03/2011

David Williamson, Why the future of Welsh devolution is in our hands, http://www.walesonline.co.uk/news/wales-news/2010/04/29/why-the-future-of-welsh-devolution-is-in-our-hands-91466-26339225/  accessed 20/03/2011

 BBC News, Wales says Yes in referendum vote, 4 March 2011: http://www.bbc.co.uk/news/uk-wales-politics-12648649, accessed on 20/03/2011

Legal Wales, http://www.clickonwales.org/wp-content/uploads/14_Factfile_Legal%20Wales.pdf, accessed on 21/03/2011

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