Case for clear-cut Welsh legislative powers goes to Westminster

What do the Government of Wales Acts of 1998 and 2006 together with the current proposed Draft Wales Bill all have in common? The answer is that their contents are all decided in Westminster and the same will go for whatever the Commission on Devolution for Wales recommends in its second report, which is due to be launched this coming Monday.

Westminster still makes the decision on the way Wales’s devolution settlement operates. Any future changes from a ‘conferred powers’ model of devolution to a ‘reserved powers’ model of devolution will require the agreement of both Houses of Parliament.

The arguments for changing Wales’s devolution model have already been articulated expertly by Emyr Lewis in previous ClickonWales articles. There is now widespread support within Wales for a move to a reserved powers model of devolution – you only have to look at the sheer number of submissions of evidence in support to the Silk Commission last year to see this. However, this consensus will be meaningless unless we can get agreement in Westminster.

As Welsh Labour AM, Mike Hedges noted in a speech in the National Assembly in June 2013, the case for a reserved powers model isn’t about asking for more powers, But one that “seeks to bring clarity to the devolution settlement.” It also about ensuring, as Paul Davies, a Welsh Conservative AM, said in his contribution to the same debate, “that there is absolutely no confusion in the Assembly’s competence.”

This emphasis on clarity is all the more prescient when one considers the now almost routine referrals of Welsh Bills to the Supreme Court. Since 2011, Bills affecting fields as diverse as Agricultural Payments, local government by-laws and asbestos compensation have been referred to the Supreme Court, a process which has only highlighted the confusion over the boundaries of the Welsh devolution settlement.  The result is a state of uncertainty that has been recognised by politicians, and public and private organisations in Wales.

The conferred powers system brings more than just questions of legality. We also have to raise questions of efficacy and efficiency. What are the cost and resource implications of the current model of devolution for the Governments either side of the M4 corridor? Is it really an effective use of legislative and governmental time- something that is often at a premium?

Policymakers cannot pretend that these questions and problems have emerged suddenly and unexpectedly. All of the failings and faults within the Welsh devolution settlement are problems that were foreseen by the Scotland Office in 1998 during the creation of the Scottish Parliament in the late 1990s. As the White Paper Scotland’s Parliament put it in 1997:

“It would have required frequent updating and might have given rise to regular legal arguments about whether particular matters were or were not devolved. This approach now seems incompatible with the Government’s objective of ensuring maximum clarity and stability.”

With that judgement the Scottish Office avoided the travails of a conferred powers system for Scotland. Instead, it built the Scottish Parliament on a reserved powers model. Yet the system that was rejected for Scotland has been implemented in Wales. Supporters of this campaign in Wales now believe it’s time to reject the status quo, and push for a change, a push which is taking place in Westminster today.

Today a coalition of civil society organisations will meet in the House of Parliament to persuade Welsh MPs and Peers to support the widespread calls that exist within Wales for the devolution settlement to be based on a reserved powers model. The event, organised by the UK Changing Union Project, brought together by the Wales Governance Centre at Cardiff University, the IWA and Cymru Yfory/Tomorrow’s Wales will be chaired by Professor Laura McAllister and will include contributions from Glyn Davies, Conservative MP for Montgomery; Wayne David, Labour  MP for Caerphilly; Elfyn Llwyd, Plaid MP for Dwyfor Meirionydd; and Mark Williams, Liberal Democrat MP for Ceredigion.

Despite the strengthening of the National Assembly’s law-making powers following the thumping yes vote in the 2011 referendum, there has been no progress in delineating the actual extent of Wales’s powers. Unlike in Scotland and Northern Ireland, ours is a system bedevilled by complexity and ambiguity.

We need to put an end to the constant debate on the constitution, and who has responsibility for what matter and detail, and instead focus in outcomes in Welsh politics. There is a consensus in support of reserved powers among Welsh political and civic society. The question today is where Wales’ Parliamentarians stand.