Big Ask is too much

The devolution trends that will emerge from a Yes vote will take us in the direction of a fundamental constitutional realignment, Rachel Banner argues.

Carwyn Jones memorably said in the referendum debate of 9th February last year that the granting of direct law-making power is a ‘big ask’ of the Welsh people. A ‘big ask’ is a lot more than simply the ‘tidying up’ exercise which Yes campaigners claim this referendum is only about. Would it have been better for our Welsh democracy to allow this referendum to proceed with just a Yes case before the people of Wales? How would that have enhanced the reputation of a legislature still uncertain about its status?

Referendum Week

This weeks Wales will decide whether or not to give the National Assembly more powers. Tomorrow Carolyn Hitt will argue that having laws that only apply to Wales should only be made in Wales.

It is not eccentric to challenge a legislative body, whose present law-making power was never consented to in a referendum, as to why it should be given the right to exercise primary law-making. The unanimity of view by the Bay political class should be a matter for proper concern: after all, politicians desire power like bankers crave bonuses.

We have been told that the devolution record is not relevant to the referendum; it is a matter to be decided in the Assembly election in May. That won’t do: the Assembly election is about the record of the 2007-11 One Wales Government.  We are talking about the overall devolution record from 1999 to the present.

We have a curious contradiction before us. Apparently, it is fine for One Wales Government parties to campaign for ‘Yes’ in this referendum on the cuts record of the present UK Government, but it is unacceptable for the ‘No’ side to campaign on the devolution record as a whole.

Yet if the Yes campaign wins the referendum, we are unlikely to hear them hailing it as a victory for ‘tidying up’; it will be lauded as the endorsement of the devolution record to date. As John Osmond put it on the Westminster Hour: “it’ll be about a signal of approval that the people of Wales now accept the dispensation, they approve of what’s happening, and they want to advance its role and power.”

What’s most crucial about what’s ‘been happening’ is the devolution record on building a future for 21st century Wales. There’s no need to go through the grim economic tally which prompted Jeff Jones to describe our country as the ‘basket case of the UK’.  Suffice to say that it is little wonder that in 2007 the Welsh Government quietly ditched its pledge to close the GVA gap to 90% of the UK average by 2010: it is now 74.3%.

In case you missed it, the most recent GVA figure actually showed the gap narrowing by 0.3%. This is clearly a heartening trend: at this rate, we will have reached the UK average by 2101! We have deep-seated problems of poverty in Wales, many the consequences of the 1980s. We have to create a dynamic economy to break out of this mould. We cannot go on hanging around Whitehall with our begging bowls, repeatedly asking for more.

We saw in June 2010 the launch of the new Economic Renewal Programme. It has been hailed as a new dawn for Wales. One hopes it will lay real foundations for a 21st century knowledge economy for our nation; it cannot, however, serve as a fig leaf for a wasted devolution decade of record block grant and EU structural funding.

Rhodri Morgan told us that a very good reason for voting Yes in 1997 was that devolution would equip us to close the wealth gap with the rest of the UK. We say in 2011 that a very good reason for voting No is that the gap has widened to over 25% over the devolution period so far. You cannot proffer devolution on economic grounds, then wave it away when such grounds prove to be baseless.

Such a tendency is absent from the recent series of catastrophes in education. Here it’s all sackcloth and ashes from much of the Welsh establishment who can’t explain away a devolution record of 40% of children leaving primary school with a below average reading age, and standards in lower secondary and GCSE trailing well behind England. The shock moment came when the PISA results were revealed recently: they left ‘the learning country’ reeling from ‘dumb to dumber’, as Professor David Reynolds put it. So much for the virtues of ‘evidence-led’ policy! The thinks tanks are hurrying back to the drawing board in haste.

The irony of the first devolution decade is that we had the funding for building new economic foundations, but failed to invest in our schools. If you fail to do that, how can we create the skills base to make the ERP a success in the second devolution decade? With the latest evidence that the funding gap between Wales and England has widened to £604 per pupil, we cannot apply Welsh Government Elastoplasts with promises to trim bureaucracy to increase funding by 1% above the block grant settlement in any year.

No one can be happy with this record. What kind of ‘signal’ is this to the Welsh public about the devolution dividend? How are we to have a future with devolution bequeathing this kind of economic and educational legacy? How can Yes campaigners look voters in the face on the doorstep and ask for ‘the tools for the job’ when the job to date has been so lamentable in these critical areas?

No amount of dissembling can explain away this devolution disaster: these structural weaknesses in our economy and education system preceded the onset of the double whammy of the recession and the savage UK Coalition cuts. They have left us far less strong to withstand these blows. To suggest, after such a record, that voting Yes is to turn law-making into a shield against economic adversity hitting our nation is absurd. Fig leaves don’t confer strength: they hide embarrassments!

After the doleful record of ‘the’ job’ to date, we also reject the case for direct law-making power because we think scrutiny standards are not fit for purpose.

If the referendum result is a No, we still have a law-making system that has produced a substantial body of good law and binds Welsh MPs into the scrutiny process for the preparation of LCOs. As the Welsh Affairs Select Committee in its last report in the previous Parliament made clear, there need to be improvements, most notably a substantial acceleration in the preparation of draft orders.

The real scrutiny argument isn’t about LCOs: it is about whether we really have the right scrutiny capacity for direct law-making. This cannot be dismissed as scaremongering. As the All Wales Convention report emphasised: “A robust system is a precondition for the entry into force of Part 4, where a unicameral National Assembly for Wales would have the power to pass Acts.”

How can a robust system of high quality scrutiny be possible in a direct law-making legislature of just 60 members, 18 of whom are Ministers and the Presiding Officer? The Richard Commission, widely appreciated for the thoroughness of its report, recommended an increase of 20 members so that Part 4 scrutiny reached exacting standards. So how is it that Richard got it so wrong? That question has not been answered properly; we say until it is, then we should not make a leap in the dark on scrutiny.

The third part of our No case is linked to the last. We consider that an emerging constitutional imbalance is already taking shape: an ever more over-mighty Welsh Government executive with a taste for providing Wales with ‘strong’ government. Ideas of university autonomy are being pushed aside as big scale institutions are prescribed as the only way forward for higher education in our country. Universities are blamed for our lack of progress in developing a knowledge economy. Schools are being singled out  for the dismal education progress of the last decade and are having ‘reforms’ imposed on them without debate.

Local councils are in the dock for wasting scarce resources: this from a Welsh executive system of devolved government which notched up a loss of £1bn in revenue by not noticing council house rent surpluses being repatriated to the Treasury, lost around a billion a year in not bringing in community care early enough, and dissipated around £100 million on the ill-fated Technium project.

Most revealing has been the recent episode when the Welsh Government slipped a late amendment into the local government measure now going through the Assembly. It basically gives the Welsh executive the power to amalgamate councils by Welsh Government fiat. So much for the November 2009 ‘Partnership Agreement’ between the two!

Local government leaders warned the All Wales Convention of this Welsh Government centralising  appetite  expanding  in a climate of austerity. Last November Angela Burns AM complained about the way in which Welsh laws are drafted currently, being seen increasingly by Welsh Government ministers as a ‘Trojan horse’ for ministers to bring in regulations without proper scrutiny.

It is a very clear warning that more power for Cardiff Bay does not mean more democracy for Wales: it can mean the emergence of a growing centralisation and an ever more overbearing Bay Bonapartist style of government. Is this true devolution based on the principle of subsidiarity? Are we really confident about the capability of a unicameral legislature of 42 backbenchers, many new to the Assembly, to act as an effective scrutinising body over a strong Welsh executive?

Our final issue is what Adam Price has described as the devolution ‘journey’. The easy way to dismiss our case is that it is the swivel-eyes engaging in anti-politics nihilistic scaremongering about some fantasy independence. Well let’s not get angry about the caricature. Better to throw up some questions and still hope for answers.

The starting point is to recognise the dynamic that a Yes vote creates for the devolution journey. We have seen some eloquent arguments in favour of a separate legal jurisdiction for Wales arising from a Yes vote, as it will significantly increase the body of Welsh law. First Minister, Carwyn Jones, made the point when Counsel General:

“In a situation where the Assembly is able to exercise primary legislative powers, I think it’s inevitable that the question will surface as to whether it’s sustainable for the single jurisdiction of England and Wales to be retained.”

Let us also remember that the 2007 One Wales coalition agreement contained a commitment to consider the evidence to devolve criminal justice. So why is it not relevant to the referendum debate of 2011? Aren’t the people of Wales entitled to consider such a consequence of a Yes vote?

And now to that dirty little devolution secret wrapped up in a plain brown envelope and stuffed under the Assembly mattress till March 4th: the Holtham Report. We have heard almost nothing about it since Danny Alexander said ‘no’ to an early review of the Barnett formula, but offered a Calman type initiative on tax-varying powers.

But this kind of nervy stunt makes no difference in the longer run. It’s not a matter of the Bay political class agreeing or otherwise to this step: it’s coming anyway from across the border. One of the limitations of the referendum is that the Welsh political and media establishment simply won’t look over the Severn Bridge at a changing England.  Calman accountability is coming to Scotland; it will surely follow for Wales a lot sooner than people think.

Aren’t the people of Wales entitled to hear about the implications of fiscal devolution, especially after Lord German said on ClickonWales: “After a successful referendum next March, the Coalition will turn its attention to the way in which Wales is funded.  Expect a real step forward in the way in which Wales can have a real fiscal influence over its destiny.” You don’t need a degree in Kremlinology to work out the drift of that statement.

We have an interesting narrative emerging on the Welsh economy from the One Wales parties: Wales is being victimized by the UK Government, so direct law making power will allow the new Labour/Plaid nationalist alliance to shield our country from the worst of these ravages and send out a message to the UK coalition that we will not be pushed around any longer. This then leads onto a fruitful path for nationalists to open up: if we are to look after ourselves, we need new economic tools, as the direct law making ones aren’t what the economic job requires.

The most plausible is the power to vary corporation tax, as is the position in Northern Ireland. Thereafter the drumbeat can be intensified: create special economic zones; press for borrowing powers; even start extending fiscal devolution into Holtham’s tax-varying powers once the referendum is safely over. The more sluggish the Welsh economy, the greater the scope for arguing for macro-economic powers. Our economic debilitation is a golden opportunity to make a nationalist economic strategy credible. This ambition is by no means confined to Plaid.

These are inevitable processes arising from a Yes vote. Each represents a separatist approach dressed up as ‘autonomy’. It appeals to a certain mood at the moment, a kind of green mist emanating from Cardiff Bay. There’s no time scale because these developments follow no timetable, but undoubtedly the catalyst will be what is about to happen in England.

Carwyn Jones underlined the point in a recent statement to neutralize the tax headache faced by the Yes alliance: he spoke about resisting attempts to foist tax-varying powers on Wales, following what has happened in Scotland. This reveals how the tectonic plates of devolution are shifting. Public opinion in England simply won’t take kindly any more to any British Government writing block grant cheques to the devolved nations without them reaching into their pockets to pay local taxes. In exchange, expect a serious reappraisal on a UK basis of the Barnett anomalies that the Rhodri Morgan governments stayed so silent about for so long.

One man’s autonomy is another man’s separatism. The devolution trends are taking the UK in the next decade or so to a fundamental constitutional realignment, out of which a federal UK is likely to emerge. The approach to that change will be a fertile period for the independence wing of Welsh nationalism. Those who scoff at such a prospect should reflect that the ideology currently dominating in Cardiff Bay is Plaid’s, as the Assembly parties fight for their place in the new ‘political nation’: how long will it be before we have our own Alex Salmond, carrying an independence referendum bill in his back pocket?

Rachel Banner is a spokesperson for True Wales, the main group campaigning against the transfer of full law-making powers in devolved areas to National Assembly for Wales in Cardiff.

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