The publication of Silk Part II earlier this week has been analysed over and over, but not always with the strongest of insight. Though some intelligent contributions have been made to the debate – most notably Alan Trench’s blog post on the content which called the exercise “cautious” and described the report in essence as follows.
“The Silk proposals are, in essence, an attempt to make sure the division of powers between Welsh and UK institution catches up with reality. They’re not actually very radical.”
Though I wouldn’t go as far as Trench in pointing to failings in the report, not least because I don’t think the case for devolving the legal system (which was his central criticism) is made convincingly either to or by the Silk Commission, there is an essential truth in that elements of the report could have been more radically framed. And the real missing radicalism is a sense of urgency or opportunity.
What concerns me first is the individual subject areas and if and when they might be devolved. Timescales are set out on these responsibilities in an effective way in the Silk Report but some don’t seem particularly urgent. Everything seems to have been framed post the 2015 General Election, when in fact where consensus occurs some responsibilities might be transferred a great deal sooner.
Look at the example of youth justice. The youth justice system is one of the few key areas of policy relating to children and young people for which the Welsh Government and the National Assembly for Wales do not have exclusive responsibility. The Welsh Government has responsibility for policies in relation to education, housing, substance misuse, health, and social services and all of these policy areas play a role in preventing young people from becoming involved in the youth justice system. However, the administration of youth justice is not devolved. Oversight of the youth justice system remains the responsibility of the Youth Justice Board for England and Wales (YJB).
Further, youth justice is an area where the Welsh Government currently seeks to legislate. A Green Paper consultation on proposals to improve services to better meet the needs of children and young people who are at risk of entering, or are already in, the youth justice system was carried out in autumn 2012; and a White Paper is now out to consultation which focuses on proposals to improve services for young people from Wales who are in the youth justice system, to ensure their effective reintegration and resettlement following a community or custodial sentence.
We can therefore expect legislation this Assembly session. But think how much more intelligent that Welsh Government legislation would be if powers on youth justice had been devolved. Because on this issue there is a strong consensus of evidence and argument to do so, therefore it would benefit from being done quickly.
The usual way additional subject area powers are devolved are through Transfer of Functions Orders between Whitehall and Cardiff Bay, which specify which parts of Acts of Parliament are passed over. A number of Transfer of Functions Orders have been passed to the Assembly since the foundation of devolution in 1999, the most significant of which were related to the fire service and the student funding system. Why not pass one on Youth Justice now?
Or, even more radically, why doesn’t the Wales Office in this UK Government make a priority for its final year to enact one of the most important recommendations in the Silk Part 2 report – to draw up and enact a Reserved Powers model of devolution. Such a move has huge civil society and political support and could form part of the beefing up of the Wales Bill which will be introduced to Parliament in the next session.
Even though the Secretary of State for Wales may not be warm to such an idea – he spoke against a reserved powers model last year and has also indicated in his response to Silk this week his caution on timing:
“We will consider implementing some of the changes the Commission has recommended during this Parliament. But there is insufficient time remaining in this Parliament to implement any changes that require primary legislation.
“These will therefore be a matter for the next Government and Parliament, and for political parties to set out their proposals and intentions to the electorate ahead of the General Election in 2015.”
But let me urge a rethink. If the Secretary of State for Wales really wants to control the devolution process for Wales then adding a Reserved Powers model – and specifying those powers – is amongst the most effective steps he can take. In that way he can redraw the existing boundary between reserved and conferred and cherry pick the elements of Silk most attractive to him.
In that way, not only does the Wales Bill gain more purpose but David Jones will have seized the initiative to draw clearer lines in the sand for devolution than any Secretary of State since Ron Davies. Their motivations in doing so may be very different, but the outcomes in terms of shaping a significant part of the devolution process would be much the same.
And it would have the added advantage of putting pressure on Labour MPs to add or subtract from that reserved powers list when the Bill is presented to Parliament, which would cause them significant difficulties around teachers pay and policing. And would ensure that the enactment of most of both the parts of the Silk report fall to a Conservative Secretary of State who was in the Wales Office when they were commissioned, rather than to another possible party or individual.
Just a thought.