The author of the Welsh Government’s submission to the Silk Commission on more powers for the Assembly yesterday revealed the essential argument behind its bid for more powers – but one they thought too “strong meat” to use at this stage in the devolution process.
Essentially this is nationhood or “Welsh popular sovereignty”, as Hugh Rawlings, the Welsh Government’s Director of Constitutional Affairs and Intergovernmental Relations, put it. This he said lay behind the “direction of travel” in the Government’s call for eventual devolution of criminal justice powers and the creation of a Welsh jurisdiction.
“We didn’t use that argument in our evidence to the Silk Commission,” he told a seminar at the Cardiff Law School. “It was a bit too strong meat for us at this stage of devolution. But it doesn’t mean it isn’t there, and couldn’t be used.”
The claim of sovereignty was underpinned by Welsh nationhood as directly expressed in the two referendums in 1997 and 2011. It also lay behind the Welsh Government’s call for a ‘reserved powers’ devolution model to be adopted for the National Assembly rather than the current ‘conferred powers’ model.
At present the National Assembly only has the competence that has been conferred on it expressly by the Westminster Parliament. The Welsh Government wants a new Wales Act to be passed to provide for all powers to be devolved save those UK-wide matters, like defence and foreign affairs, that are expressly reserved to Westminster.
Hugh Rawlings likened the present law-making process to a large legislative field controlled by Westminster, in which stockades were dotted around occupied by the National Assembly with law-making powers. This created a situation where Whitehall, usually represented by the Wales Office, was perpetually looking to see if the Welsh Government was about to jump over one or other of the stockades.
“It was highly symbolic that the very first Bill passed by the National Assembly, on local government byelaws, was immediately whisked off to the Supreme Court for adjudication,” he said.
He added that the conferred powers arrangement did not just result in frustration for the Welsh Government, which had to deal with questions of powers and competence on a daily basis. It also placed the Wales Office in an awkward position where it was constantly keeping a check on whether Cardiff Bay was exceeding its remit.
The issues were often difficult to unravel. He gave the example of the Agricultural Wages Board which the Westminster Government wished to abolish and was seeking the consent of the National Assembly to do so. This the Assembly had refused, saying agriculture came within its remit. Westminster answered that the Agricultural Wages Board came under employment, which was not devolved. How could such an issue be resolved? In effect it created a third area of powers beyond those which were conferred and those which were retained – those that were, in effect, in a no-man’s land of neither one nor the other.
Hugh Rawlings drew attention to the Welsh Government’s call for all matters relating to water to be devolved “including licensing and the appointment and regulation of water undertakers, and this this competence extended to the geographical boundary of Wales.” He said the demand was a hangover from the 1970s devolution legislation in which had been embedded a great deal of power and discretion for the Secretary of State for Wales to interfere with the Assembly proposed at that time.
Indeed, it went even further back in history, to the disputes over the drowning of Tryweryn in the 1950s which, for many, had been the beginning of the whole devolution process. As Rawlings put it, “The idea that in a looser UK there should be powers for the UK Government to overrule the Welsh Government in relation to water is anachronistic.”
It was a point that took him back to the question of Welsh sovereignty. In elucidating that he referred to the headline above the Welsh Government’s Press Release on its submission to Silk, currently on its website (here). It reads, “A new constitutional settlement for Wales: matters affecting Wales should be decided in Wales.”
“We are not seeking criminal justice powers or a distinctive jurisdiction for Wales at this time, though they remain an ambition, “ he said. A new Wales Act granting Wales a reserved powers model for the Assembly would probably be enacted in the early 2020s, and a jurisdiction might follow during the decade after that. “We’re giving a sense of direction in all of this,” Huw Rawlings said. “We want to see a Wales in a looser, more diverse UK, and that UK playing a full part in a strong European Union.”
It is the nature of the devolution process to leave the field wide open. Who would have thought, when we went to the polls to vote in the referendum in 1997, that just 15 years later we would be talking about devolving criminal justice, and building a separate structure of Welsh courts and a distinctive devolution? What, exactly, does “matters affecting Wales should be decided in Wales” mean?