CONVENTION SPECIAL 4: Failure to Lift the Fog

John Osmond argues that Sir Emyr Jones Parry should have been bolder and advocated the Scottish model for devolving Welsh powers

Underlying much of the argument in the All-Wales Convention’s report is an unspoken debate on a fundamental flaw in the National Assembly’s constitutional architecture compared with both Scotland and Northern Ireland. This is on the way powers have been devolved.

In the case of Scotland and Northern Ireland everything has been devolved, with the exception of powers that are clearly defined in the Acts setting them up –  foreign affairs, macro-economic and taxation policy and so on. This means that the lines of demarcation are straightforward and legislators in Scotland and Northern Ireland start from a clear starting point of what they can do.

In Wales it is much more difficult. All the National Assembly’s powers are conferred in a specific and detailed way, in the Transfer of Functions Order appended to the 1998 Wales Act, and with the 2006 Wales Act adding more complexity. As the Convention report puts it:

“Uncertainty arises in terms of law-making powers, where devolved Matters butt up against or overlap with non-devolved Matters, and a judgement has to be made as to whether a proposed law is really about a devolved Matter or about the non-devolved Exception. It is for lawyers and other specialists to consider and advise on these more difficult aspects” (para. 3.10.43).

This difference between the way powers have been devolved to Wales and Scotland and Northern Ireland is the source of what Convention Chair Sir Emyr Jones-Parry described as “the fog of understanding” that envelops Welsh devolution. So why was Wales treated differently.  The answer, in short, is two-fold:

  1. During the 1990s Labour policy-makers saw the Welsh Assembly as a creature of local government rather than a legislative national parliament.
  2. Scotland and Northern Ireland have their own legal jurisdictions, making the separation of laws and legal administration between them and England a straightforward matter. Wales, however, is still bound with England in a single ‘England and Wales’ jurisdiction.

These issues are alluded to in the Convention report, which refers on a number of occasions to the advantages of ‘the Scottish model’. However, Sir Emyr Jones Parry took the view early on that his terms of reference prevented him from exploring how these advantages might be sought ahead of a referendum. He concluded that the 2006 Wales Act put them off limits.  The Convention report states, “We did not set out to consult specifically on the advantages and disadvantages of the Scottish model”. Without exploring what the ‘disadvantages’ might be the report continues:

“However, it was raised by a number of people at our public events, on the online forms submitted through our website, and in the qualitative research we carried in focus groups. As such, we have to acknowledge that is a significant issue for many in Wales, who ask why the model of devolution is different here” (para. 3.10.41).

A great number of the exceptions to the National Assembly’s current powers, many that would still apply following a successful referendum, are contained in Schedule 7 to the 2006 Wales Act. The Convention’s concluding chapter makes specific reference to this in terms that betray a good deal of the behind-the-scenes debate that must have gone on amongst its membership:

“A referendum would offer Part 4 and its contents. That is the choice on the table. We have concluded that this offers substantial advantage. We examined the content and clarity of Schedule 7, and recognised that Schedule 7 could be amended, before or after any referendum. We noted the technical difficulties of making its contents clearer, and we doubt that an effort to clarify it further would have any tangible effect on voting intentions” (para. 6.2.15).

It is indisputable that Sir Emyr and his colleagues are right on this last judgement. However, if they had had the courage to grapple with the issue they might well have prevented trouble being stored up ahead. For sooner or later we are going to have to move to the Scottish model and a Welsh jurisdiction in order to have a stable devolution settlement. As things now stand, we may have to contemplate a further referendum to get there. This is acknowledged by the Convention in the concluding paragraph that immediately follows the one quoted above. Indeed it hints that the legitimacy conferred by a successful referendum on Part 4 might remove the need for a referendum:

“We recommend that, if Part 4 were to be implemented following an affirmative vote in a referendum, any change to the contents of Schedule 7, including the exceptions provided within it, should reflect the legitimacy which the National Assembly for Wales would have been given in that referendum.” (para. 6.2.15).

If there is doubt about whether the Convention was worried that a further referendum might be needed to deliver a Scottish-style devolution of powers, then look at para. 3.10.47:

“Bearing in mind our terms of reference, and the provisions of the GOWA 2006, the choice on the table is whether to proceed to a referendum where an affirmative vote would result in  the implementation of Part 4 as is.  Some have argued to us that this outcome would be clearer, if prior to any referendum, the content of Part 4 had been amended through an Order in Council the content of which would have been agreed by the National Assembly for Wales and both Houses of Parliament. If Part 4 were in operation, its content could still be amended under the same procedure, if this turned out to be desirable. If, however, there were a wish at any stage to move to the Scottish model, then  Parliament would have to legislate through a new UK Act. It would then be for Parliament to decide whether a referendum was relevant.”

Amongst those who made the argument to Sir Emyr was the Institute of Welsh Affairs. If only he had been a bit bolder and given us the conclusion that a successful referendum on Part 4 should also be taken as a green light to move on to the Scottish model life would be simpler. He would have prevented many needless and fruitless arguments that are likely to lie ahead. Of course, he would have had to overcome his instinctive mandarin style of being above the hurly burly of the debate. But he would have listened to the evidence.

John Osmond is Director of the IWA.

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