Wales Office versus Welsh Government

Daran Hill says David Jones sees his role as policing legislation made in Wales

Since acquiring primary legislative powers in 2011, the National Assembly for Wales has only passed two Bills. In both cases, the UK Government has contemplated referring them to the Supreme Court. Indeed, one is already there. It deals with the ability of Welsh local authorities to make bye laws, and has been challenged on legal competence grounds by the UK Government. This was the first piece of legislation the Assembly passed using its new powers.

The second Bill, which is intended to give equality to the two languages in Assembly proceedings and in the institution’s dealings with the public, was examined in detail too but ultimately the office of Attorney General Dominic Grieve MP decided not to take the Official Languages Bill to the Supreme Court.

From early Supreme Court hearings it is also clear that there is a distinct lack of understanding of the Assembly’s legislative competence by the Supreme Court – the devolution settlement had to be described to them more than once – and perhaps by the UK Government too. These responses to two relatively anodyne pieces of legislation are illustrative of a broader tension in the relationship between the National Assembly/Welsh Government with the UK Government and do not necessarily bode well for the future. Indeed, the outcome of the Supreme Court’s deliberations on the Bye Laws Bill will critically influence how the two governments inter-relate on the output of the Assembly’s new legislative powers for some years to come.

Manon George from the Wales Governance Centre, who wrote on the Supreme Court case here, also addressed the topic at a recent conference on Law, Policy and Politics in Wales, probing the issue of the Assembly’s Legislative Boundaries. She began her analysis by suggesting that the boundaries of legislative competence needed to be examined. She noted that the Government of Wales Act 2006 states clearly that the Counsel General or the Attorney General may refer the question whether a Bill, or any provision of a Bill, is within the Assembly’s legislative competence to the Supreme Court.

She said the question raised by the referral of the Bye Laws Bill to the Supreme Court was one of motive. Was its referral connected to whether the ‘general purpose’ of the Bill, which was to create a more streamlined procedure at the local Government level, should be accepted? Or should the fact that the action was not within the competence of the Welsh Government be the determining factor? Her key point was this: if it is the latter then the Welsh Government has to face the possibility of the competence of every piece of Assembly legislation being sent to the Supreme Court.

There seems to be a problem of approach at the heart of this. It feels increasingly that the Wales Office sees its role as ‘rigorously policing’ legislation made in Wales. It is adopting a sceptical and begrudging tone to the Assembly’s legislative competence rather than being an enabler or supportive friend. Undeniably personalities and predilections are important here, and intergovernmental relations also need to be improved between Wales and Westminster. This is of course more difficult while different parties are in power in the different places, but that is not the only dimension. Whether the arrival of Liberal Democrat and pro-devolutionist Baroness Randerson into the Wales Office has helped with a more pragmatic approach to the Languages Bill is a debatable point. More clear is that new Secretary of State David Jones is going to raise an arched eyebrow at every Assembly Bill.

That the Languages Bill has been cleared after possible Supreme Court referral is some comfort to those looking for a more harmonious relationship between the two governments. But the fact remains that it almost ended up in the Supreme Court too.

The Wales Office needs to realise that things have changed since the start of devolution and have changed again since 2011. In her presentation Dr George suggested that a clear reform of the legislative boundary is the best option, adopting the Scottish model which would set out clearly what is not within the Assembly’s competence rather than specifying what is. To achieve that would require yet another Government of Wales Bill and some of us are more keen to just see people try harder to make the current democratically endorsed system work more effectively before looking for a third Welsh constitution in as many decades. The Supreme Court’s response to the Bye Laws Bill will be critical in determining whether this change of tone happens.

Daran Hill is Managing Director of Positif Politics.

6 thoughts on “Wales Office versus Welsh Government

  1. Contrary to what Daren Hill implies in his article, the Welsh Office would be failing in its duty if it did not examine any new Welsh Assembly legislation relative to the crossover of prior laws applicable to England and Wales.

    Wales does not have a second chamber of any sort that could challenge, modify or oppose any new legislation produced by the Welsh Assembly Government and there must be an independent arbiter.

    As it stands now Wales could well become subject to highly politicised legislation for the benefit of the few and we may see further social engineering and other practices that are aimed to undermine position of Welsh majority and their commonly shared British ethos and values.

    Consider ‘Bilingual Nation Concept’ that has been put in place prior to granting direct legislative powers to Wales and then look at the implications and the damage that has been done and is being done to Welsh education, economy and its infrastructure.

    There are many people in Wales who believe that many of the current legislative measures put in place especially surrounding the ‘Bilingual Laws’ over the last ten years or so may be illegal but no one as yet has challenged the Welsh Assembly Government in the Supreme Court or the High Courts.

    Perhaps time to do so now if we are ever going to see a fair and balanced Welsh society within the British context that majority of Welsh people want to see happen and to have. I for one would welcome any initiative by the Welsh Office to give the Welsh Assembly Government a reality check!

  2. There is no harm in looking over the shoulder, tendering legal advice and facilitating the process. But the notion of policing the development of laws is abhorrent. I understand the need for checks and balances in the system, but perhaps the Welsh Office needs to review its role to take the emerging situation into account.

  3. Interesting article Daran. But I disagree with you on one small point – the inevitability and likely imminence of new statute.

    I agree that the Supreme Court ruling is important as it will set a precedent in the light of which future cases may be judged. But it will only, however, establish firmer case law in the specific matter upon which it is judging. This one decision therefore is not likely to reduce the probability of many more Assembly Bills going before it in my opinion (The Welsh Government is highly unlikely to legislate on this ‘case’ again any time soon, and would, I imagine, be more than happy to have the broader precedent tested in the context of a new cases). I.e. It will continue to legislate freely according to its interpretation of current statute law and the given circumstances (as it has a duty to do) except in a specific area where the Court has already ruled. But the applicability of these rulings will be relatively narrow as the likelihood of the Supreme Court making a wide-ranging ruling in the absence of sound statute is highly unlikely, is it not? If not unconsitutional?

    The problem is intractable for two reasons. 1. The current law (in this case the Welsh constitutional settlement) is an ass (to use a colourful old phrase) – its inner logical contradictions render it unworkable in broad principle and can only be understood and applied on a case by case basis (and that regrettably cannot be wished away). 2. But it is counter-intuitive that either party would ever concede to its non-enforcement (i.e. The UK government (of whatever party) giving a free hand to the Welsh government to legislate how it wishes or conversely the Welsh government artificially limiting its legislative scope in a ‘second-guess’ of what the actual limitations are). The stakes are too high for good will alone. Therefore, broadly speaking, all but the least controversial bills will be sent to the Court to decide (compare this to a ‘healthy’ constitutional settlement where all but the most controversial bills avoid the courts completely).

    This may be acceptable in the short term but it would take a hundred years to ‘rationalise’ the system that way. Sooner or later, the Supreme Court must turn around and say, “look boys and girls, we really do have more important things to do than decipher the underlying objectives and rules of the game of your constitution and articulate it in a legally binding way, that’s your job”. How many cases and how much very expensive Court time will it take before we get to that point? Anyone’s guess. But new statute will come (whether a move to reserved powers only or a greater definition of devolved powers and exclusions) fairly soon, not for the sake of it, but because nature can’t abide a vacuum.

  4. Lets hope there is more scrutiny of what is or isn’t going on down in the Bay of No Hope! A permanent leftwing/nationalist (of the Welsh variety) government has been created, which will not allow public services to be totally transformed, due to pressure from trade unions, and consequent reduction of political opportunities. It is hoped that a Conservative government would look very closely at what is happening, as many of its voters in Wales have less freedom/opportunities than English supporters. The legal technicalities will create work as everybody dances on the top of a pin, however it’s a waste of scarce resources, particularly as it looks like the party has ended as Crossland forecast in the 1970’s. We are the most over-governed people in Europe with paid politicians are four levels, whilst actual services are getting worse.

  5. Jacques Protic writes: “As it stands now Wales could well become subject to highly politicised legislation for the benefit of the few and we may see further social engineering and other practices that are aimed to undermine position of Welsh majority and their commonly shared British ethos and values.”
    And in doing so drives a coach and horses through any argument he might make on appropriate processes…. Is this issue really about legal process or political preference? You are certainly dressing the latter up as the former and cannot resist exposing yourself.
    At least Howell Morgan has the dignity to just present an argument of political complexion without seeking to paint it up as some constitutional or legal point of principle.

    Ken I agree entirely with your view that: “I understand the need for checks and balances in the system, but perhaps the Welsh Office needs to review its role to take the emerging situation into account.”

    Phil, agree with your perspective here. I’m not one of those arguing for a new piece of legislation, though the announcement on Silk today may well make that more compelling.

  6. How can one put this politely? David Jones would make a scarcely adequate mayor of Rhyl in a good year. Heaven forbid that Welsh democracy should depend on his judgement. There is an active betting market on whether he could run a coconut shy. Welsh devolution should be on the same basis as Scotland, Northern Ireland and most other provinces/states in the civilized world – a reserved powers model. Law should tell them what they can’t do and then leave them to do what they can. It is a democracy, you know. If they do things we don’t like we’re supposed to vote ’em out.

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