St David’s Day and the case for devolution of public holidays

Dr Huw Evans, academic lawyer, Cardiff Metropolitan University

Saint Andrew’s Day, 30 November, is approaching. This is a bank holiday in Scotland but there is no equivalent recognition for Saint David’s Day in Wales.

The law on bank holidays is devolved to Scotland but not to Wales; an example of asymmetrical devolution.

This article discusses that difference and argues that it cannot be justified. Also, although not an intended outcome, because of the Wales Act 2017, it can be argued that the right to designate public holidays in Wales has been devolved, as distinct from the right to designate a bank holiday.

The law

The Banking and Financial Dealings Act 1971 (BFDA) sets out the days for bank holidays in Wales and England, Scotland, and Northern Ireland. In addition, the BDFA permits other days to be designated by royal proclamation; which in accordance with constitutional convention will be on the advice of UK Government ministers.

The first Monday in May and New Year’s Day are examples of designation by proclamation.

Christmas Day and Good Friday, however, are commonly referred to as bank holidays but are neither in the BFDA or a proclamation. In fact, these days are not bank holidays but public holidays deriving their legal basis from the common law. This distinction is important, and we shall return to it.

Devolution

The Scotland Act 1998 established devolution for Scotland, including devolution of bank holidays under the BFDA. That devolved power was subsequently exercised leading to the St Andrew’s Day Bank Holiday (Scotland) Act 2007, under which St Andrew’s Day was designated as a bank holiday.

No equivalent devolved power was in the Government of Wales Act 1998, the Act which established devolution for Wales; despite the best efforts of Plaid MP, Elfyn Llwyd, to include the power.

Reserved and conferred powers models

When devolution was established, another asymmetrical example between Scotland Wales concerned the approach to identification about what was or was not devolved. The approach for Scotland was called the reserved powers model: i.e. something was devolved unless it was specifically reserved. In Wales it was the opposite and referred to as the conferred powers model: i.e. something was only devolved if specifically conferred, so if something wasn’t mentioned it wasn’t devolved.

The Wales Act 2017 replaced the conferred powers model with the reserved powers model. It did so by amending the Government of Wales Act 2006, the current legislation that sets out devolution arrangements. That Act specifically reserves bank holidays under the general subject of ‘time’; there is no similar reservation for public holidays.

We return to the legal distinction between bank holidays and public holidays: Christmas Day and Good Friday are public holidays, not bank holidays.

With the change to reserve powers model and public holidays not being specifically reserved, at face value, it is open for the Senedd to pass legislation designating Saint David’s Day as a public holiday, but not a bank holiday. This assertion needs greater legal interrogation. but it is something that should be explored.

All this would be academic if bank holiday powers were devolved as they are in Scotland. There is no good reason why they should not be. Liberal Democrat peer Baroness Humphreys in 2022 introduced a private members’ bill,  the Bank Holidays (Wales) Bill, which would have achieved this but it did not get beyond its first reading.

Northern Ireland

Bank holidays in Northern Ireland are not devolved but that position is not directly comparable to Wales because of the catholic and protestant traditions and the need to protect them. There are bank holidays for each tradition:  17 March, Saint Patrick’s Day, and 12 July, Orangemen’s  Day, the celebration of the Battle of the Boyne.

Although bank holidays are not devolved in Northern Ireland, the UK Government has designated bank holidays for culturally significant days. Yet it will not do so for Wales.

UK Government

The UK government has consistently rejected designation of Saint David’s day as a bank holiday. In April 2022 the UK government responded to a petition to the UK Parliament to Make St David’s Day a bank holiday in Wales  stating that: The decisions to create bank holidays for St Andrew’s Day, and St Patrick’s Day have been developed against a backdrop of different histories, economic, social, cultural and legal systems. Different factors require separate considerations… [T]he cost to the economy of an additional bank holiday remains considerable.

That sweeping and patronising response does not stand up to even cursory examination: for example, of course each UK nation has a different history but that does not detract from the value of each.

The real objection is economically based, related to the cost to business. But while there would be some cost there would also be benefits with improved well-being and increased economic related benefits rooted in culture, tourism and hospitality.

Integration

Another ground for rejection was in a letter to Gwynedd Council in 2021 from Paul Scully MP, Minister of Small Business, in response to  a request for designation of St David’s Day as a bank holiday. He stated: “More people work across the English/Welsh border than across the English/Scottish border. This closer degree of integration could cause greater business disruption. If we had separate bank holidays in England and Wales, the impact on both employees and businesses is difficult to predict.”

If the logic of this argument is extended, it is an argument against devolution itself because of the separate arrangements created between Wales and England.

The elephant in the room is Saint George’s Day. If the UK Government concedes that St David’s Day should be a bank holiday, it would have difficulty not making a similar concession for England.

But it doesn’t have to be this way. Allowing the devolution of bank holidays to Wales in line with Scotland would enable the choice for Wales to be made in Wales.

UK Government discretion about the choice for England would not then be compromised.