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. "26 Watkin argues that the Welsh have the ability to absorb the new, whilst retaining traditional values from the past. 27 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. "28 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. 29 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.
"30 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. "31 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. 32 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. "33 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. "34 It is clear that the Welsh law making tradition has been resurrected in Wales; affirming the statement made by Watkin. 35 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,36 leading to: "an unjust stigma attached to a Welsh accent and the Welsh language. "37 Davies comments: "In short, the legal status of the Welsh language in Wales had been relegated to that of a foreign language. "38 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. "39 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 Williams40 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. "41 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. "42 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. "43 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. "44 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. "45 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. "46 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. "47 Following the Second World War, literature of an exceptional quality was being produced: "It produced much distinguished writing"48, 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 1979,51 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. "52 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.
"53 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? " 54 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. "55
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 leaders56 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. 57 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. 58 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. "59 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. "