• 1 In Will Hayward, “Mark Drakeford absolutely blows his top when questioned about the Welsh NHS”, Wal (...)

1“I am sure Aneurin Bevan would be turning in his grave”, these were the words uttered by the daughter of a patient left on the floor after a 15- hour wait in an emergency unit in Wales. It was indeed in Tredegar, South Wales, that an idea was developed that was to determine the quality of life for generations of British people, from the cradle to the grave. Aneurin Bevan, who led the campaign for the setting up of a National Health Service (NHS) in the 1940s, was inspired by the Tredegar Workmen’s Medical Aid Society, created in the late 19^th century in his hometown. The origins of the NHS were thus firmly rooted in Wales and, even to this day, the alignment and commitment to the Bevan principles within health policy in Wales – such as universalism and the emphasis on the citizen – remain firm.

• 2 In 2021, the Gross Domestic Product per capita in Wales amounted to approximately £24,339, against (...)

2And yet, it is an idea that is fought over in bitter and continuing political and ideological battles to this day. As illustrated on 18 October 2022 when Mark Drakeford, the Welsh Labour First Minister, lost his temper during a Senedd exchange with Andrew RT Davies, the Welsh Conservative leader, over the state of the NHS in Wales, after more than two years of Covid-19 pandemic. When a crisis happens, weaknesses are exposed, as in recent years with Brexit and Covid, when a properly functioning system is needed, especially in one of the poorest parts of the United Kingdom (UK)2, is more important than ever. The pandemic has brought issues to the surface, first the weaknesses of NHS Wales, run by the Senedd and the Welsh government since health is a devolved matter. Wales, about the size of Greater Manchester in terms of population, has 22 local authorities and 7 health boards, making it sometimes difficult to coordinate the health and care sector, for instance to simply know how many nurses it has. Covid-19 has also revealed how dysfunctional and incoherent the United Kingdom’s current constitutional system is, with divergences and tensions between the British and the Welsh governments as to the handling of the crisis, as with the financing of the furlough scheme and the management of Covid cases in Welsh prisons, falling under the jurisdiction of the UK government in London.

• 3 See Steve Duffy, “Covid in Wales: what do the stats tell us?”, BBC, 26-11-2022, https://www.bbc.com (...)

4It may be difficult to assess the UK and the Welsh Governments’ handling of Covid, especially to compare their actions and outcomes since Wales and England are interconnected and very different in size, geography, and demographics. Still, it can be said that both Welsh and UK Governments perform very poorly from an international context when it comes to the death rate. Wales had fewer deaths than other parts of the United Kingdom when considering both the excess deaths in percentage – more deaths than might have been expected to be seen on average when compared with several previous years – and the age standardised mortality figures. On 10 January 2023, the number of people who had died when Covid was a contributory factor in Wales had reached 11,247, and there had been, since March 2020, 8,715 excess deaths, including 1,717 in 2022. Statistics published by the Office of National Statistics (ONS) on 25 November 2022 revealed that in Wales there had been 11,070 registered deaths with Covid involved since the outbreak of the pandemic in March 2020, and 8,235 more deaths than might have been expected to be seen on average, including more than 1,200 in 20223.

• 6 UK Government, https://coronavirus.data.gov.uk/details/deaths?areaType=nation&areaName=England, acc (...)

6However, there is no escaping the fact that there were more deaths in numbers in the wave when the Welsh Government had parliamentary control over the pandemic response, after the original common answer. On 27 April 2023, it was clearly indicated on the UK Government’s website on Covid-19 that there had been so far more deaths with Covid-19 on the death certificate in Wales (3,770 per million inhabitants) than England (3,354) or Scotland (3,148)6.

• 7 Will Hayward, Lockdown Wales, How Covid-19 Tested Wales, Bridgend, Severn, 2020, p. 96.

7The Covid-19 pandemic has put even more pressure on a health system already weakened by years of austerity policies, including the sharp reduction in the budget for local authorities, implemented by the British Conservative governments since 2010, which had an impact on preventative health care. Besides, the NHS budget has not increased in line with inflation and is not sufficient to keep up with demand. This is illustrated by the staff issue. The UK has 6.6 Intensive Care Unit (ICU) beds for every 100,000 people, while Germany has 29.2 and the US 29.47. It thus highlighted the shortcomings of the Welsh NHS, as underlined by the Welsh journalist Will Hayward in Lockdown Wales, How Covid-19 Tested Wales in 2020:

• 9 The seven Health Boards are: Aneurin Bevan University Health Board, Betsi Cadwaladr University Heal (...)
• 10 The three NHS Trusts are: the Welsh Ambulance Services Trust, for emergency services, Velindre NHS (...)
• 11 See https://www.nhs.wales/about-us/, accessed in December 2022.
• 12 Edwina Hart, “Written Statement: NHS Reforms”, 08-10-2009, http://www.wales.nhs.uk/news/13330, acce (...)

8First, despite the small size of Wales, the NHS in the country is very fragmented, with a three-tiered system: a national tier made up of Public Health Wales, a regional tier with health boards, and a local tier composed of local authorities, also involved in the health system. This complexity leads to structural issues. Moreover, the NHS has had several service reconfigurations over the last decades. The organisation inherited when devolution was introduced at the end of the 1990s dated back to the National Health Service Act 1977, which set out the powers and duties of the Secretary of State in relation to the NHS in England and Wales, and introduced a revised governance structure, especially the establishment of Area Health Authorities in Wales, and Regional Health Authorities and Area Health Authorities in England. The 1977 Act was then amended in 2002 by the NHS Reform and Health Care Professions Act, leading to the abolition of the five Health Authorities in Wales and the transformation of the 22 local Health Groups into 22 Health Boards, each corresponding to a Welsh Local Authority area. There was a further reorganisation of NHS Wales in October 2009, following the voting of the NHS (Wales) Act 2006, with the setting up of seven local Health Boards9 and three NHS Trusts10 which emerged from the plethora of organisations that had existed until then. The Local Health Boards plan, secure, and deliver healthcare services in their areas, while the Trusts provide specialist service on an all-Wales focus. This organisation is complemented by two Special Health Authorities, Digital Health and Care Wales, “responsible for building and designing digital services for health and care in Wales”, and Health Education and Improvement Wales “dedicated to transforming the workforce for a healthier Wales”11. That was meant to be, in Minister for Health and Social Services Edwina Hart’s words, a “new simplified structure [that] will provide improved collaboration between hospitals, further career opportunities for staff, easier access to a wider range of health professionals.”12

• 13 See Steve Duffy, “Covid in Wales: What do the stats tell us?”, BBC, 27-06-2023, https://www.bbc.com (...)
• 14 Steve Duffy, “NHS Wales waiting times: 75,000 outpatient waits of year”, BBC, 23-02-2023, https://w (...)
• 15 Steve Duffy, “Covid in Wales: What do the stats tell us?”, op. cit.
• 16 NHS England, Statistical Press Notice, 25-05-2023, https://www.england.nhs.uk/statistics/wp-content (...)

9Yet, it turns out that such fragmentation causes some problems, as staffing issues to start with. It has been revealed that it is quite difficult to assess the exact number of nurses in Wales or to move staff from one health board to another despite all being employed by NHS Wales. Furthermore, NHS staff absence puts considerable pressure on the health service in Wales. Total absence stood at 4.8% in June 2023, roughly the same as the usual pre-pandemic figure13. Yet, coupled with chronic staff shortages, it has become a real issue. Finally, the Welsh NHS has been facing ongoing issues, such as waiting times. The post-Covid target, set by the Welsh government in April 2022, was to see no-one waiting more than a year for a first appointment by the end of 2022, but that figure stood at 74,976 in February 202314. Similarly, Wales suffers from a lack of available beds in hospitals since an indication of pressure on the NHS is overall bed occupancy in acute hospitals, which hit a new high of 96.2% on 1 March 202315 – it still exceeded 90% in June 2023 – as opposed to 92.3% in Quarter 4 2022-2023 in England16.

• 18 See https://www.independent.co.uk/news/uk/politics/boris-johnson-speech-lockdown-in-full-text-a9507 (...)
• 19 Dr Peter Saul, in Rod Minchin & Mark Smith, “NHS Wales tells people ‘Don’t leave it too late’ as A (...)
• 20 Before Covid, 2.6 million journeys were made every week across the border on average.

13To start with, the Welsh population was given diverging and confusing messages from the British government, especially Prime Minister Boris Johnson who repeatedly delivered speeches aimed at “British people” that in fact concerned only English people, since health is a devolved matter. That became a source of frustration for politicians in the Senedd in Cardiff Bay, who had to correct him. This was for instance the case in the speech he made on 11 May 2020 to announce the end of the lockdown, in which he used ambiguous expressions as “the country”, “the NHS”, “you” and “we”.18 Dr Peter Saul, a General Practitioner (GP) near Wrexham and Joint Chair of the Royal College of General Practitioners (RCGP), considered in May 2020 that England’s rules on the lockdown were “confusing”: “My practice is on the Welsh border and a lot of my patients will work in England. I think confusion is the only word I can use in that people don’t know what they should be doing.”19 Such confusion raised tensions, especially for the 16 million people living within 50 miles of the 160-mile border between England and Wales20, which became very visible. Daniel Kawczynski, the Conservative MP for Shrewsbury, complained on 12 May 2020 that the differing messages between the UK and Welsh Governments presented problems for people living in border areas and that Welsh restrictions limited his constituents’ freedom:

• 22 The Wales Act 2017 enshrines the National Assembly (becoming the Senedd in 2020), the Welsh Governm (...)

14He concluded that the UK Government should reconsider the very existence of the Senedd by giving Welsh people a fresh referendum on devolution22.

• 23 Will Hayward, op. cit., p. 233.

15The overlapping of prerogatives gave Welsh people the impression that the two governments were competing, such as for the supply and provision of Personal Protective Equipment (PPE) or the setting up of mobile test centres. On 4 April 2020, Mark Drakeford announced the opening of a testing centre at Cardiff City Stadium the following day. For days local residents had watched equipment arriving along with people with high visibility jackets and masks. They did not know exactly what was going on but could guess it was linked with the pandemic, and people posted many messages on Twitter. Yet, what they could not imagine was the fact that the Welsh government had not been informed of the opening of the centre despite health being a completely devolved competency under the devolution settlement. The UK government had totally blindsided the administration at Cardiff Bay. This was all the more problematic since there was a clear difference between the Welsh and English approaches to testing, the first one favouring good quality tests while the second preferred quantity over quality. As underlined by Will Hayward, “the end result of the whole debacle is that the testing system in Wales is now extremely complicated because both English and Welsh models are being run simultaneously.”23 Such examples illustrated the prevailing confusion in the handling of the pandemic.

• 24 Health, Social Care and Sport Committee, Inquiry into the impact of the Covid-19 outbreak and its m (...)
• 25 Ibid., p. 41.

16A confusing picture was also visible within Wales across the seven health boards, as underlined by a report from the Senedd’s Health, Social Care and Sport Committee, with members of the Royal College of Nurses (RCN) and RCGP. The report listed a series of examples of “miscommunication”, such as the letters sent across Wales to people identified as extremely vulnerable advising them on shielding24. The authors of the report kept recommending clear and coherent messaging from the Welsh government, as on page 41: “Recommendation 5. The Welsh Government, working with its partners, must ensure an ongoing campaign of clear, consistent and repeated public messaging – at a national and local level – about when to seek a test for Covid-19 and how to do this”.25 Dr Peter Saul, from the RCGP, told the committee that:

• 27 Statistics for Wales, Welsh Health Survey 2015: Health status, illnesses, and other conditions, Car (...)
• 28 Avoidable deaths are defined as either preventable or treatable for those aged under 75 years old, (...)
• 29 Loc. cit.

18The Covid-19 pandemic revealed the shortcomings of the NHS in a country faced with deprivation and severe socio-economic inequalities, resulting in more health issues in Wales, with 51% of all adults aged 16+ being treated for any illness in 2015.27 Furthermore, Wales has higher avoidable mortality rates28 than England or the UK at large, with a rate of 286.9 for 100,000 people, against 256.6 in England, in 2020. That year was already marked by Covid but the same gap between the two countries could be noticed the previous year: 258.5 for Wales against 220.9 for England.29 Such premature mortality in Wales is due to the social determinants of health, such as general socio-economic, cultural, and environmental factors, to which can be added employment and education opportunities, and the quality of housing. The gap in life expectancy between the least and most deprived population has been generally increasing in recent years for males and females, which is suggestive of growing inequality.

• 30 Public Health Wales, Public Health Outcomes Framework (PHOF) 2023, 28-04-2023, https://phw.nhs.wale (...)
• 31 Scottish Government, The Scottish Health Survey 2021 – Volume 1: Main Report, Edinburgh, Scottish G (...)

19This table highlights the link between deprivation and avoidable deaths. The recent inflation crisis severely affecting the UK has even worsened the living conditions of the most deprived Welsh people. During 2021-2022, 68.2% of adults in the most deprived areas reported being able to afford everyday goods and activities, compared with 93.4% in the least deprived ones. And, over the same period, older people (65+) living in the least deprived areas in Wales reported significantly higher levels of good health (71.5%) than those living in the most deprived areas (43.9%)30 against respectively 87% and 60% in Scotland where 75% of all adults described their general health as “very good” or “good” in 202131. Such higher figures as well as narrower gap between the least and the most deprived areas in Scotland reveal the overall better health of the country’s inhabitants and may partly explain why Scotland, just as England, was eventually less affected by the pandemic.

• 32 Dylan Jones-Evans & Sion Barry, “Wales is no longer the poorest part of the UK”, Business Live, 23- (...)

20In an article published in December 2019, a few weeks before the outbreak of the pandemic in Europe, Dylan Jones-Evans and Sion Barry referred to the latest statistics released by the ONS indicating that, even if Wales had, for the first time, lost its status as the poorest part of the UK – having swapped places with the North East of England – it was at only 75% of the UK economic prosperity levels.32

• 34 The Wales Act 2017 granted to Wales the same devolution system as the one implemented in Scotland a (...)
• 35 David S. Moon & Tomos Evans, “How not to do devolution: Wales and the problem of legislative compet (...)

24The devolution settlement is still very complex, despite the list of 20 devolved areas detailed in the Government of Wales Act (GOWA) 1998 and amended following the reform of the system by the Wales Act 2017 which introduced the reserved model system in Wales34. The British and Welsh administrations regularly disagree on the scope of their respective prerogatives and the Supreme Court of the United Kingdom has had to solve several conflicts in the past. It ruled that there existed “silent subjects”, or “the grey spots of GoWA”, that is to say “policy areas where there is a lack of clarity over who has power over certain broadly defined subject areas”35. The Agricultural Sector (Wales) Bill, for instance, ended up in the Supreme Court because of a disagreement stemming from the abolition of the Agricultural Wages Board of England and Wales in 2013. The Supreme Court ruled that the Welsh legislation fell within the competence of the Assembly since agriculture was a devolved area and agricultural wages were not explicitly outside its powers.

• 36 The government’s Coronavirus Job Retention Scheme (CJRS), commonly called “furlough scheme” was int (...)
• 37 Mark Drakeford, in BBC, “Covid: Furlough backlash amid Welsh firebreak snub claims”, 01-11-2020, ht (...)

25The limits to the Senedd’s economic powers were blatantly illustrated in November 2020 with the furlough scheme, a scheme introduced during the pandemic and at the crossroads of health and economic issues36, which became a bone of contention between the two governments. Indeed, Wales implemented its firebreak, or second lockdown, between 23 October and 9 November 2020, but the UK government made the same decision for England only two weeks later, so that in October the UK government paid up to 60% of furlough pay, but it rose to 80% across the UK in early November as England’s lockdown began. Mark Drakeford regretted such a situation: “When things change in England, they change their minds about the furlough plan. And that’s not fair. When we were asking it was impossible to do it. Now when they have made new decisions in England it is possible.”37 The furlough scheme came to be a very good illustration of the overlapping of responsibilities since the Welsh government was dependent on the British one for that scheme, yet introduced it when people had to stay home for health reasons.

• 38 Robert Jones & Richard Wyn Jones, The Welsh Criminal Justice System. On the Jagged Edge, Cardiff, U (...)
• 39 Source: Ministry of Justice, 2020d, ONS, 2020g.
• 40 Will Hayward, op. cit., p. 92.
• 41 Will Hayward, op. cit., p. 93.

26The handling of Covid in Welsh prisons also highlighted how unclear and dysfunctional the British constitutional system is. To understand this, it is first necessary to quickly present the Welsh prison system. The prison estate in Wales is comprised of five men’s prisons that hold a mixture of convicted, unconvicted, sentenced and unsentenced prisoners, including one private prison, HMP Parc in Bridgend. There is no women’s prison in Wales. The prison population has significantly increased since the 1990s, partly as a result of the desire of successive UK governments to “get tough” on crime38. Now Wales has had the highest imprisonment rate in Western Europe, even higher than England, since 201339 (the first year for which disaggregated data are available). At the end of March 2020, when the pandemic broke out, HMP Swansea was the most overcrowded prison in England and Wales. Besides, as the two countries form a single judiciary and legal jurisdiction, the operational realities of an England and Wales prison system, mean that Welsh prisoners are widely dispersed across both countries and similarly there are significant numbers of English prisoners held in Wales. There were thus favourable conditions for the spreading of Covid in Welsh prisons. On 28 April 2020, despite having only 6% of England and Wales’s prison population, Wales accounted for ¼ of positive Covid-19 cases within prison settings40. That is an example of the problematic constitutional settlement in the UK since health, as seen earlier, is a devolved matter, so that the Welsh government and Public Health Wales are responsible for healthcare in prisons – except HMP Parc – but not justice, meaning that Welsh prisons are run by the British Ministry of Justice (MoJ). The resulting confusion was well illustrated in an MoJ assessment of the coronavirus situation in England and Wales’ prisons which made no reference to the Welsh government in their management of healthcare in Welsh prisons. Some prison managers explained that they had to make their plans on the basis of the latest advice from Public Health England, and not Wales41.

• 42 Helen Whyley, in Mark Smith, “Nurses plan to strike again in 2023 due to ‘lack of engagement’ from (...)
• 43 The Barnett formula is a mechanism used by the Treasury in the United Kingdom to automatically adju (...)

27Finally, members of the Royal College of Nurses (RCN) Wales went on strike for the very first time in history on 15 and 20 December 2022 over poor wages and chronic staff shortages, highlighted during the Covid pandemic. The union was asking for a wage increase of 5% above the Retail Prices Index (RPI) rate of inflation then standing at over 12%, but the Welsh government claimed it could not afford to increase pay without help from the UK government. Helen Whyley, Director of RCN in Wales, regretted the government’s response: “Two days of strike action does not seem to have moved our Welsh government ministers at all who continue to hide behind a funding row rather than focusing on resolving a Welsh dispute impacting on Welsh people.”42 Her words illustrate well the weaknesses of the Welsh constitutional settlement since health is devolved, but not wage policies, so that the Welsh government depends on the Barnett formula43 for its funding. Nurses were joined on strike in January 2023 by teachers, with whom the Welsh government was facing the same issue, as education is also devolved.

• 44 Carl Dahlström, B. Guy Peters & Jon Pierre (eds), Steering from the Centre: Strengthening political (...)
• 45 David S. Moon & Tomos Evans, op. cit.

28The pandemic has shown the extent to which the Welsh devolution settlement is dysfunctional, as indicated by David S. Moon and Tomos Evans, in an article on the 2017 Wales Act published in 2017: “The story of Welsh constitution-building has been an example of how the process should not be done. […] Wales, once again, continues to provide a prime example to policy makers of what not to do.”45

• 46 Michael Keating & Paul Cairney, Policy-making, Learning and Devolution, introduction to a series of (...)
• 47 Ibid., p. 240.
• 48 In an era when Europe dominated the world, Metternick reacted to the seismic changes wracking Europ (...)

29It is not working properly for several reasons. First, the introduction of devolution in 1998 has created “multilevel policy-making”, an expression used by Michael Keating and Paul Cairney in 2012, which, according to them, “might lead to divergence within states, to convergence around negotiated solutions, or to complex patterns of differentiation, cooperation and learning.”46 As seen before, the pandemic has revealed divergences and tensions between the UK government and the devolved administrations in Scotland and Wales, resulting from the problematic relationship between policy-making and policy delivery. The devolution settlement means there are two policy-making loci for devolved matters – as health or education – but, theoretically, only one locus of policy delivery in Wales. Yet, Wales and England, due to their proximity, cannot be governed fully separately, there are necessarily forms of economic, social, and political “spillovers”, or reciprocal influence: “The existence, within states, of a common market, a common security area and a single welfare state created spillovers and externalities such that what one government does has an impact on its neighbours, calling for yet more coordination and uniformity.”47 It means that British and Welsh policies are closely linked. The famous sentence by Klemens von Metternick, the Austrian diplomat and statesman who was at the centre of the European balance of power in the first half of the 19^th century – “When France sneezes, Europe catches a cold.”48 – can also be applied to the relationship between England and Wales. Such a problematic situation led to tensions, as seen before, especially when travel restrictions were applied.

• 49 Michael Keating & Paul Cairney, op. cit., p. 241.
• 50 Martin Smith, “The Paradoxes of Britain’s Strong Centre: Delegating Decisions and Reclaiming Contro (...)

30Next, the transfer of powers to assemblies in Wales and Scotland has entailed a form of “competitive regionalism”49, or the fact that regions, or nations, can compete for different advantages, be they economic in UK-wide, European, and global markets, social or political, so as to impress electorates and attract new voters. Former Prime Minister Boris Johnson encouraged that form of competition when he introduced the Levelling Up programme, meaning that local authorities, and not devolved administrations, could present local schemes to obtain funding. The Conservative government’s Levelling Up policy is a good illustration of the paradox of a recentralised devolution in recent years. Indeed, devolution has been coupled with recentralisation strategies implemented by the British Conservative Government. The devolution settlement seems incompatible with the Westminster model and the principle of parliamentary sovereignty, as highlighted by Martin Smith: “While British governments have supported delegation and fragmentation, they have not managed to shake off the imperatives of the Westminster model, which place responsibility and power, with ministers.”50 The complexities of the constitutional settlement were revealed with the problematic handling of the Covid pandemic in Welsh prisons, as shown earlier.

31To conclude, the Covid-19 pandemic has affected Wales like the other parts of the United Kingdom since March 2020. Since health is a devolved matter, the Welsh government had the possibility of handling the crisis in its own way and applying its own decisions. Nevertheless, the crisis has revealed the shortcomings of NHS Wales, a deeply fragmented and confusing structure, lacking resources and giving, during the pandemic, confusing messages.

• 51 Michael Keating & Paul Cairney, op. cit., p. 239.
• 52 Loc. cit.

33It thus seems that the current British constitutional system, “a laboratory of democracy […] and an opportunity to try out new solutions”51, may have reached its limits and should be reformed to clarify the prerogatives each level of decision has, be it horizontally – between the different branches of power, as sovereign, government and Parliament – or vertically – between the central government in London and the devolved administrations. What could eventually be offered to British citizens might be either independence for the constituent nations or federalism, provided it is “cooperative federalism”52.