Sunday, 20 November 2011

The constitutional status of Wales

This post addresses the legal status of the Principality of Wales and of the Prince of Wales.

1                    The end of Welsh independence

1.1              Prior to Norman times, Wales was mostly divided into separate kingdoms, though some rulers approximated to ruling over a united Welsh state.[1]  The Norman Conquest intruded to a large extent into Wales, but there followed an extended backlash by the Welsh extending through the 12th century.
1.2              This development culminated in the establishment of new and substantially united Welsh states under Llywelyn ab Iorwerth (c.1172-1240) and Llywelyn ap Gruffydd (c.1223-1282).  The Principality of Wales was established by Llywelyn ab Iorwerth in 1216, and it was recognised by England in the Treaty of Worcester (1218).  It can be characterised as an independent entity within the Angevin Empire, though concepts like independence and sovereignty should be worn lightly when describing political relations in a time when the Treaty of Westphalia lay four centuries in the future.
1.3              The independent principality did not last long, and Llywelyn ap Gruffydd is conventionally regarded as the last native Prince of Wales (Tywysog Cymru).  He was stripped of much of his power by the English under the Treaty of Aberconwy (1277), and he was finally vanquished in 1282.  His heir, Dafydd ap Gruffydd, was captured the following year, and Edward I of England “ordered this sovereign prince to be hanged, drawn, and quartered, as a traitor, for defending by arms the liberties of his native country, together with his own hereditary authority”.[2]  In the more sober words of a leading modern constitutional text, “his principality passed by conquest to King Edward I”.[3]  A 2008 Court of Appeal judgment likewise refers to “the conquest of the Principality of Wales by Edward 1 in 1282”.[4]
1.4              By the Statute of Rhuddlan (1284), the Kingdom of England asserted what a later age might describe as colonial mastery over the conquered principality.  The English Crown appointed Justiciars for North Wales and West Wales, and controlled two lordships in Glamorgan and Pembroke.  The law and the administration of the law were conformed to English norms, though some elements of traditional Welsh law remained in use.  This has allowed one contemporary authority on constitutional law to write that “from 1284, Wales was subject to English law”.[5]  The Welsh Marches remained under the control of the Anglo-Norman Marcher Lords.
1.5              Wales was described as a principality at an early date, but other terms were used too.  The Tudor Laws in Wales Acts both refer to Wales as a “Dominion Principality and Country”.  The term “Dominion of Wales recurs in legislation until the 19th century,[6] and the adoption of ‘principality’ over ‘dominion’ as the preferred term appears to have taken place very roughly in the first half of the 18th century.[7]  The Crown Lands Act 1702 mentions both the “Dominion of Wales and the “Principality of Wales,[8] and reference was made in 1672 to “the dominion and principality of Wales, which, so it was rather tendentiously claimed, “is, and always hath been, incorporated to the realm of England.[9]  It may be, then, that the term ‘principality’ does not in principle exhaust the constitutional status of Wales.[10]  The Tudor legislation also refers to the English monarch as the “very Head King Lord and Ruler” of the country.  If taken literally, this would mean that Wales was a kingdom.  However, this point need not be pressed too far.

2                    The Prince of Wales
2.1              In 1301, Edward I of England invested his son Edward (the future Edward II) as Prince of Wales.  It appears that subsequent English and British monarchs have followed the same practice with their own sons, with the notable exception of Edward II himself.  Leaving aside a few sporadic rebellions,[11] there have been no more native Welsh Princes of Wales.
2.2              Blackstone wrote in his Commentaries that “[t]he heir apparent to the crown is usually made prince of Wales... by special creation, and investiture”.[12]  The current legal position is essentially the same.  The heir to the throne is “customarily appointed Prince of Wales… by letters patent, [this title] not being inheritable”.[13]
2.3              Letters patent are a customary method for the monarch to bestow a particular honour or status on their recipient.  Peerages are invariably created by letters patent, and it would appear the analogy between the dignity of Prince of Wales and a life peerage is a tolerably close one.  There is a still nearer analogy to be drawn between the dignity of Prince of Wales and that of Earl of Chester, which is also bestowed upon heirs to the throne.  Hence, for example, the Demise of the Crown Act 1727 repeatedly uses the phrase "the determination of any grant of the principality of Wales, or earldom of Chester...".  More recently, s.6(1) of the House of Lords Act 1999 expressly included the "the principality of Wales and the earldom of Chester" within the ambit of the term ‘hereditary peerage’.
2.4              With regard to the non-inheritable nature of the dignity of Prince of Wales, Sir Edward Coke wrote of Edward I’s investiture of his son:
[I]n this Creation there is a great mystery, for less than an estate of inheritance so great a Prince could not have, and an absolute estate of inheritance in so great a Principality as Wales, the King's meaning was... he should not have: therefore a qualified fee therein he had... that by his decease, or attaining to the Crown this dignity might be extinguished in the Crown, to the end that the King for the time being should ever have the honour and power to create his heir apparent Prince of Wales, as he himself had been by his progenitor.[14]
2.5              It appears from this that the dignity of Prince of Wales is extinguished on the death of its holder or his accession to the throne.  It follows that a reigning monarch does not hold the title of Prince of Wales in concurrence with his or her royal title.  This conclusion is consistent with the decision of the House of Lords in the Buckhurst Peerage case to the effect that the monarch cannot hold any other honour or dignity than the Crown.[15]  The following words were directed to the heir apparent’s position as Duke of Cornwall:
The Duchy of Cornwall is held by the Prince of Wales for the time being — the Prince of Wales becomes the sovereign of the country — becoming the sovereign of the country, it is impossible that he can hold any other dignity.  The fountain and source of all dignities cannot hold a dignity from himself.  The dignity, therefore, as a dignity to be held by the sovereign terminates, not by virtue of any provision in its creation, but from the absolute incapacity of the sovereign to hold a dignity.[16]
2.6              Looking at the matter from the other side, there seems to be little positive evidence that the monarch was ever regarded as being the Prince of Wales.  It is only fair to note, however, that there are a few possible suggestive references to the contrary in the older cases, such as a reference to certain lands being "holden of the Queen as of her principality of Wales" and a reference to "his Majesty's revenue of his principality of Wales".[17]
2.7              It may be observed that the Prince of Wales is virtually invisible in modern statute law.  The most recent reference to him in legislation currently in force appears to come in Schedule 1 to the Imperial War Museum Act 1920, which appointed the then prince as the first president of that museum’s board of trustees.  The Prince’s contemporary functions appear, then, to lie in the symbolic order.  As Prince Charles said following his investiture in 1969:
Yn wir, rwy'n bwriadu cysylltu fy hun o ddifrif mewn gair a gweithred a chymaint o fywyd y Dywysogaeth - a'r fath Dywysogaeth ydy hi! - ag a fydd yn bosibl.[18]

3                    The Laws in Wales Acts
3.1              Following Wales’ loss of her independence, the seminal event in Welsh constitutional history was the passage of the Laws in Wales Acts in 1535 and 1542.[19]
3.2              These statutes are sometimes called the ‘Acts of Union’.  While this term appears to be a 20th century coinage, the analogy with the 1707 and 1800 Acts of Union is not inapt.  The first Act noted that Wales was already “incorporated annexed united and subject to and under the Imperial Crown of [England]”.  It sought to replace this relationship of control and subjection with one of assimilation, providing that Wales “shall be stand and continue for ever from henceforth incorporated united and annexed to and with this... Realm of England.
3.3              Specific reforms brought about by the Acts included the sending of Welsh representatives to the English parliament and the re-establishment of the Council of Wales and the Marches on a statutory basis (see below).  The political role of the Marcher Lords was also ended.
3.4              In a case decided during the Marian restoration, Brook CJ held that the first Act “makes the people of Wales to be as the people of England, and incorporates them therewith, and enables them to have and inherit in Wales the laws used in England”, although at this point it was apparently not thought that English laws automatically extended to Wales.  The learned judge further referred to "the uniting and annexing of Wales to England".[20]
3.5              The Laws in Wales Acts marked the end of the existence of Wales as a distinct and discrete legal entity,[21] as well as the creation of the united jurisdiction known today as England and Wales.  Henceforth, few statutes would be enacted referring specifically to Wales and treating it as a separate legal domain, with a small number of exceptions such as the Welsh Bible and Prayer Book Act 1563.
3.6              In 1747, a statute (20 Geo 2 c.42) was enacted which provided as follows:
And it is hereby further declared and enacted by the Authority aforesaid, That in all Cases where the Kingdom of England, or that Part of Great Britain called England, hath been or shall be mentioned in any Act of Parliament, the same has been and shall from henceforth be deemed and taken to comprehend and include the Dominion of Wales, and Town of Berwick upon Tweed.
3.7              It is submitted that this provision, which appeared in a statue containing several rather obscure and disparate provisions,[22] was in the nature of a legal housekeeping measure.  Its purpose appears to have been to clarify a point of statutory interpretation, or to put an interpretative issue beyond doubt.  It is difficult to regard the Act in question as a constitutional statute, or to compare its significance with that of the Tudor statutes or the modern devolution legislation.  Indeed, since 1707, the question of whether England and Wales were constitutionally united appears to have been overtaken by the establishment of the larger constitutional entity of Great Britain.  It hence appears to have been the convention in contemporary legislation to regard Great Britain as a single united legal entity.[23] 

4                    The Council of Wales and the Marches
4.1              The body known as the Council of Wales and the Marches was first established by Edward IV of England in 1472, before being placed on a statutory basis by the Laws in Wales Acts.
4.2              The Council’s functions appear to have been primarily judicial and administrative in nature.  It is submitted that it would be an abuse of terminology to describe it as a legislative or executive body.  The appropriate comparison is not with the modern National Assembly of Wales but rather with the Council of the North which assisted in administering northern England at various times between 1484 and 1641.  In practice, it may more usefully be seen as an instrument for English governance of Wales than as a manifestation of Welsh autonomy.
4.3              The Council was abolished on 25 July 1689, following the Glorious Revolution of 1688.  From that time until the period after the Second World War, Wales was governed as if it were an integral part of England.  The exceptions to this were few and relatively unimportant.  The Court of Great Sessions in Wales, which had been established by the Tudor legislation, continued in existence but was abolished in 1830.  As before, little legislation relating specifically to Wales was enacted, with some rare exceptions such as the Sunday Closing (Wales) Act 1881.  The Established Church in Wales was part of the Church of England until disestablishment in 1920 under the Welsh Church Act 1914.

5                    Modern administrative and political devolution
5.1              The post of Scottish Secretary was created in 1885, but progress in creating an analogous position for Wales was slow.  The Attlee administration declined to take the step after the Second World War, and a parliamentary Council for Wales and Monmouthshire was set up instead in 1948.
5.2              The practice of drafting British statutes so that they applied to ‘England’ or ‘Scotland’ was reportedly replaced from 1948 with the practice of distinguishing between ‘England and Wales’ and ‘Scotland’.  However, this change was part of a more protracted process.  Statutes began to refer to ‘England and Wales’ from the first half of the 19th century,[24] while on the other hand Wales is deemed to be included in references to ‘England’ in statutes enacted up to the time of the Welsh Language Act 1967.[25]
5.3              Welsh affairs became the responsibility of the Home Secretary from 1951 and of the Department of Housing and Local Government in 1957.  Finally, a Secretary of State for Wales was appointed in 1964.
5.4              In Schedule 1 of the Interpretation Act 1978, Wales was defined by reference to local government legislation as comprising, “subject to any alternation of boundaries made under Part IV of the Local Government Act 1972, the area consisting of the counties established by section 20 of that Act”.
5.5              An abortive attempt to introduce devolution of power to Wales was made in the Wales Act 1978.  The project of Welsh devolution was resumed with more success by the Blair governments, resulting in the enactment of the Government of Wales Acts 1998 and 2006.
5.6              The Blair devolution legislation provided that the National Assembly for Wales (Cynulliad Cenedlaethol Cymru) would act in the name of the Crown, as the Secretary of State for Wales had done, and it appears to make no explicit assertion of separate legal identity for Wales.  The acquisition by the Assembly of the power to make primary legislation following the ‘Yes’ vote in the referendum of 3 March 2011 would seem to weaken this position de facto if not de jure.

6                    Conclusions
6.1              The loss of Wales’s distinctiveness and of her rights was a long, drawn-out process in which three principal milestones can be identified:
(a)        The end of Wales as an independent state - 1283, when she became subject to England through military conquest.  The independence of the principality had, however, not been absolute: a broad analogy might be drawn with the position of the Irish Free State or of Canada prior to 1982.
(b)        The end of Wales as a separate legal entity - 1535-1542, with the Laws in Wales Acts.  The conquest of Wales had already brought this about to a considerable extent.  The assimilated legal entity created by the Tudor legislation continues to exist as a discrete and unified legal jurisdiction (‘England and Wales’).
(c)        The end of Wales as a separate administrative entity - 1689, with the abolition of the Council of Wales and the Marches.
6.2              It is customary for a male heir apparent to the British Crown to be appointed Prince of Wales by the monarch through letters patent.  The dignity is not hereditary.  It is comparable to a peerage, and it appears to be extinguished when the holder dies or accedes to the throne.
6.3              The 20th and 21st centuries have seen a major increase in the political and administrative independence of Wales from the rest of the United Kingdom.  This has culminated in the Blair devolution legislation and the acquisition by the National Assembly for Wales of the right to enact primary legislation.

[1] Notably Rhodri Mawr (c.820-878), Hywel Dda (c.880-950) and Gruffydd ap Llywelyn (c.1007-1063/4).
[2] David Hume, The History of England, vol. 2, ch. 13.
[3] Bradley and Ewing, Constitutional and Administrative Law, 15th ed. (2010), 35.
[4] This is the fascinating case of Roberts v Crown Estate Commissioners [2008] EWCA Civ 98.
[5] Hilaire Barnett, Constitutional and Administrative Law, 5th ed. (2004), 59.
[6] See e.g. the Statute of Monopolies 1623, the Act of Uniformity 1662, the Habeas Corpus Act 1679, the Treason Act 1695, the Union with Scotland Act 1706, the statute 6 Ann 1706 c.8, the Demise of the Crown Act 1727, the Distress for Rent Act 1737 and the Habeas Corpus Act 1816.
[7] ‘Principality’ is used in Witterong v Blany (1674) 1 Freeman 146, Trelawny v Williams (1704) 2 Vernon's Cases in Chancery 483, R v Athos (1722) 8 Modern 135, Anonymus (1728) 1 Barnardiston KB 134, Lewis v Lewis (1728) 1 Barnardiston KB 120, R v Huggins (1728) 2 Comyns 422, R v Cowle (1759) 2 Burrow 834, R v Loveden (1800) 8 Term Reports 615 and Copeland v Lewis (1817) 2 Starkie 33.
[8] The latter in the context of the wording: “…whether the same be or shall be in Right of the Crown of England or as Part of the Principality of Wales or of the Dutchy [sic] or County Palatine of Lancaster or otherwise howsoever…”.  The relevant sections of the Act were quoted again in the Crown Private Estate Act 1800.
[9] Bole v Horton (1672) Vaughan 360. 
[10] As recently as Crown Estate Commissioners v Roberts [2008] EWHC 1302, the defendant pleaded that the Crown's relationship to Wales was one of "dominion", though this is exceptional.
[11] Most famously, that of Owain Glyndwr between 1400 and 1409.
[12] 1 Bl Comm 194.
[13] Halsbury’s Laws of England, 12(1), 30.  Cf. also 8(2), 50: “…usually created Prince of Wales… by the monarch by letters patent”.
[14] 4 Co Inst 243 (language modernised).
[15] The title of Duke of Lancaster is a special case.
[16] (1876-77) LR 2 App Cas 1.
[17] Owen ap David's Case (1574) 3 Dyer 344b; Godolphin v Tudor (1704) I Brown 135.
[18] “It is, indeed, my firm intention to associate myself in word and deed with as much of the life of the Principality as possible - and what a Principality!”.
[19] The formal titles of the statutes were respectively "An Acte for Laws & Justice to be ministred in Wales in like fourme as it is in this Realme" (27 Hen. VIII c. 26) and "An Acte for certaine Ordinaunces in the Kinges Majesties Domynion and Principalitie of Wales" (34 & 35 Hen. VIII c. 26).  They were repealed by John Major’s administration with effect from 21 December 1993 and 3 January 1995 respectively.
[20] Buckley v Rice Thomas (1554) 1 Plowden 118.
[21] This is the view taken by Vernon Bogdanor in The New British Constitution, 1st ed. (2009).
[22] Its full title was: “An Act to enforce the Execution of an Act of this Session of Parliament, for granting to his Majesty several Rates and Duties upon Houses, Windows, or Lights”.  It later became known as the Wales and Berwick Act 1746, a somewhat misleading title.
[23] Cf., for example, the phrase “that Part of Great Britain called England, or the Principality of Wales used in the statute 18 Geo 2 c.18.
[24] Early examples include the Habeas Corpus Act 1816, the Sale of Farming Stock Act 1816, the Ecclesiastical Corporations Act 1832 and the Tithe Act 1836.
[25] Interpretation Act 1978, Sch. 2, 5(a).  This is essentially a continuation of the provisions of the so-called Wales and Berwick Act 1746, which was repealed in its application to Wales by the 1967 Act.