On 6 May 2021, the people of Wales went to the polls in the sixth Senedd election. More so than in previous Senedd elections, the focus of the debate centred around a catalogue of distinctly Welsh political issues, including the constitutional future of the Welsh devolution settlement. Among the constitutional possibilities offered to voters at the election were proposals for both the abolition of the Senedd and Welsh independence, together with the more muted options of maintaining the constitutional status quo, or seeking the devolution of additional powers in areas such as justice and policing, transport and broadcasting.
Outside of these considerations, the election also serves as a useful opportunity to reflect on how Welsh devolution has evolved since the last Senedd election in May 2016. On this point, the May 2021 election marked a number of firsts. In terms of the Senedd’s legislative competence, this was the first Senedd election of the new reserved powers era of Welsh devolution, following the changes introduced by the Wales Act 2017. Changes to the name and franchise of the Senedd stemming from the Senedd and Elections (Wales) Act 2020 meant that this was also the first opportunity for many 16 and 17 year olds, together with qualifying foreign nationals, to vote in a Senedd election, and the first election to the renamed Welsh Parliament / Senedd Cymru. Looking to the UK more broadly, the vote also marked the first Senedd election since the 2016 Brexit referendum and the UK’s withdrawal from the European Union.
Interwoven around each of these constitutional considerations was the context of the election taking place during the coronavirus pandemic. This provided a unique set of circumstances for campaigners and voters alike. On the one hand, the Welsh response to the pandemic provided unprecedented visibility for the First Minister and Welsh Government, and showed the relevance and increased public understanding of Welsh devolution. On the other hand, the regulations imposed to control the pandemic in Wales had the effect of limiting the ability for face-to-face campaigning ahead of the election and, during the large increase in coronavirus cases during early-2021, necessitated the Senedd to pass emergency legislation setting out powers to potentially postpone the election by up to six months.
This blog reflects on the election result and the political composition of the Senedd, and sets out some of the constitutional prospects that we may expect during the sixth Senedd.
The Election Result
The election result saw Welsh Labour match its best ever result in a Senedd election and retain its position as the largest party in the Senedd (30 MSs), followed by the Welsh Conservatives (16 MSs), Plaid Cymru (13 MSs) and the Welsh Liberal Democrats (1 MS). In constitutional terms, those parties advocating positions at the two extremes of the constitutional spectrum – independence and abolition – failed to make a significant impact or record notable gains and in the case of those parties campaigning to abolish the Senedd, failed to return any candidates to the Senedd.
Instead, the political composition of the sixth Senedd finds common constitutional ground through those parties who favour further devolution. Indeed, if we dissect the manifesto commitments of those parties who will be returning members to the sixth Senedd, only one – the Welsh Conservatives – stood on a commitment not to seek greater powers for the Senedd. The other three each campaigned on manifesto commitments to, amongst other things, ‘pursue the case for the devolution of policing and justice’ (Welsh Labour), ‘push the envelope on the devolution settlement’ (Welsh Liberal Democrats) and, in the case of Plaid Cymru, seek those powers necessary to make provision for a referendum on Welsh independence.
Turning to the question of the constitutional prospects for Welsh devolution during the sixth Senedd, it is necessary to distinguish between those matters that presently lie within the Senedd’s legislative competence and those that are dependent on the agreement of Westminster.
Beginning with those matters presently within the Senedd’s legislative competence, one area where the incoming Welsh Labour Government may seek to legislate is in relation to those powers set out under section 111A of the Government of Wales Act 2006. This section, inserted into the 2006 Act by the Wales Act 2017, affords the Senedd the power to make law, via a two-thirds majority vote, on certain protected subject-matters relating to its operating procedure and voting system. A recent example of section 111A in practice came through the Senedd and Elections (Wales) Act 2020 which, as mentioned, amended the name of the Senedd and extended the franchise for Senedd elections. For the incoming Welsh Labour Government, an area where it may seek to utilise the powers under section 111A is in relation to increasing the size of the Senedd and/or reforming the voting system used in Senedd elections. These are two areas where Welsh Labour, Plaid Cymru and the Welsh Liberal Democrats share common ground. They have also been areas recommended for reform by numerous Committees on Welsh devolution, beginning with the Richard Commission in 2004 and most recently reiterated in the September 2020 report of the Committee on Senedd Electoral Reform.
Matters are less clear, however, regarding the substance of any reforms in these areas. In regard to increasing the size of the Senedd, past recommendations have included targets of between 80 and 100 MSs. Based on party manifestos, Welsh Labour and Plaid Cymru detail their commitment to work towards implementing the recommendations made by the Committee on Senedd Electoral Reform, but do not include target figures for any increase in the size of the Senedd. The Welsh Liberal Democrat manifesto [page 62] offers some more detail and includes support for an increase up to 80 or 90 MSs. The position is less certain again in regard to reform of the Senedd’s electoral system. One recommendation which has maintained traction alongside proposals for increasing the size of the Senedd, is to elect the majority of the new members through the regional list vote. This would then increase the number of members elected via the proportional element of the Additional Member System (AMS). A more radical option for reform set out by the Committee on Senedd Electoral Reform is to replace the existing hybrid AMS system with the more proportional Single Transferable Vote, as currently used for elections to the Northern Ireland Assembly. This latter option is supported in both the Plaid Cymru and Welsh Liberal Democrat manifestos. Based on this analysis, proposals for reform in this area therefore seem probable during the sixth Senedd, however the exact details remain uncertain.
A matter less directly within the gift of the Senedd, but within the power of the Welsh Government to pursue, is the continuation of its legal challenge to the UK Internal Market Act 2020. In the recent legal challenge to the Act, the Counsel General was unsuccessful in seeking declarations on the Act’s potential to impliedly repeal sections of the Government of Wales Act 2006 and limit the Senedd’s legislative competence. In its judgment –  EWHC 950 (Admin) – the High Court refused the Counsel General’s claim on the basis of prematurity, due to the fact that the ‘relevant legal events have not yet arisen’ [para.30]. Looking to the future, however, the Court left open the possibility of a judicial review, should specific legislative proposals appear via the 2020 Act which apply to the Welsh devolution settlement [para.37]. Should the appropriate context therefore emerge during the course of the sixth Senedd, it is likely that the Welsh Government will begin new legal proceedings. This view is supported by the Welsh Labour manifesto[page 66] for the 2021 election: ‘We will… challenge the UK Internal Market Act and its attack on devolution and champion the rights of the Senedd to legislate without interference in areas devolved to Wales’.
As a final point, we turn to focus on those matters currently outside of the Senedd’s legislative competence but which may be requested by the Welsh Government to be devolved. As mentioned, the political composition of the Senedd makes it likely that a request for additional powers may emerge. This is again an area where Welsh Labour, Plaid Cymru and the Welsh Liberal Democrats share common ground, in particular in reference to the devolution of justice and policing, in line with the recommendations put forward by the Thomas Commission (2019). Any expansion to the Senedd’s legislative competence would, however, require the consent of Westminster. Additional powers may be transferred to the Senedd either through primary legislation passed by the UK Parliament (as seen in the Wales Act 2014 or Wales Act 2017), or via a Section 109 Order amending those matters set out as reserved under Schedule 7A GOWA. Matters of legal procedure aside, however, the success of any request for additional powers remains a contested political issue between the Welsh and UK Governments. Based on comments made by Michael Gove following the Senedd election, the UK Government looks set to maintain its rejection of further devolution to Wales. It therefore seems probable that those arguments on the constitutional future of Welsh devolution that emerged during the fifth Senedd will continue into the sixth Senedd.
In many ways, the 2021 Senedd election was a further example of the evolutionary character of Welsh devolution, and the preference of a majority of Welsh voters for middle-ground strategies on constitutional reform. Going forward, the future of the Welsh devolution settlement is likely to remain a salient issue in Welsh politics and an important consideration for the Welsh Government. Indeed, as shown in this blog, there are a number of areas where the Welsh Government may seek to amend the existing devolution settlement, or request the transfer of additional powers from Westminster. There also remain a number of legal issues, particularly in relation to the UK Internal Market Act, where the Welsh and UK Governments seem likely to remain in disagreement. Thus, while the recent uncertainty created by the coronavirus pandemic may foster a period of initial stability and consolidation for Welsh devolution, the future of the devolution settlement is likely to remain an ongoing consideration in the sixth Senedd.
With thanks to Dr Osian Elias, Professor Michael Gordon and Professor Alison Young for comments on an earlier draft of this blog.
Dr Gareth Evans is a Lecturer in Law at the Hillary Rodham Clinton School of Law, Swansea University.
(Suggested citation: G. Evans, ‘The Senedd Election and the Constitutional Prospects for Welsh Devolution’, U.K. Const. L. Blog (13th May 2021) (available at https://ukconstitutionallaw.org/))