Carwyn puts claims of Wales on table

John Osmond says yesterday’s Welsh Government proposals to extend devolution are setting up a confrontation with Whitehall

Yesterday’s evidence from the Welsh Government to the Silk Commission – available here – marked a further significant step in Wales’s devolution journey. It was not as far reaching as the 1997 referendum which created the Assembly, or the 2011 referendum which in effect turned it into a legislative Parliament, now widely acknowledged by the use of the term Senedd. However, yesterday’s declaration was on a par with the 2006 Wales Act which enabled the 2011 referendum to happen, and will have consequences at least as profound.

Why is this? Put simply, it is because the statement marks definitively the moment when the Welsh Labour Government finally came to terms with devolution and resolved that it would take a lead in driving it forward. It also demonstrated, yet again, the apparently unstoppable dynamic built into the devolution process.

Debating devolution’s next steps

Tomorrow: The Counsel General Theodore Huckle QC says a Reserved powers model for the Assembly should also be accompanied by greater authority for Welsh Ministers. On Thursday David Melding, Deputy Presiding Officer in the National Assembly, asks whether Unionism and Nationalism can come together to provide a strong narrative for a federal Britain.

The Welsh Government is calling for a new Wales Act to create a devolution settlement for Wales based on a ‘Reserved powers’ model, as is the case with Scotland. At present the Assembly only has the competence that has been conferred on it expressly by Parliament, on those subjects set out in Schedule 7 to the 2006 Wales Act. Moreover these subjects are invariably qualified by ‘Exceptions’, which further limit the Assembly’s discretion and effectiveness. As the Welsh Government says:

“… the reservation model is a technically superior method of devolving legislative competence on a devolved legislature. In our view, the conferral model is incapable of prescribing with any degree of certainty exactly what the Assembly can legislate about. Many potential subjects of legislation are simply not mentioned at all in Schedule 7, leaving their status, devolved or non-devolved, vague and uncertain. The current Welsh model involves devolved subjects and exceptions to those subjects, but unlike in Scotland there is a potential third category, which is subjects that are not devolved despite there being no mention of them. So in assessing a competence issue consideration is required not only of what is devolved and what is excepted but also of what might be devolved under the conferral model, and hence what may not (yet) be devolved (even though those subjects are not referred to at all).”

As the Welsh Government rightly concludes, this is complex, lacks clarity, democratic transparency, and results in expensive recourse to the courts, as occurred last year over the Welsh Government’s first innocuous piece of primary legislation, on local government bye-laws.

All this was obvious when Peter Hain steered the 2006 Wales Act through Parliament. So why was the argument not accepted then? Simply because the Labour Party, with its key decision-makers still focused on Westminster, was not then ready to accept idea of a full-blown legislature in Cardiff. There was also a widely shared fear that the idea would not carry in a referendum.

We have now been through the 2011 referendum, with the result that de facto the relationship between Wales and England has turned into a federal one. This was alluded to in yesterday’s evidence which says:

“From the Welsh Government’s perspective, devolution is not about how each of Wales, Scotland and Northern Ireland is separately governed. Rather it is about how the UK is governed, not by one but by four administrations, in a relationship which is not hierarchical.”

Tomorrow we shall be publishing an article by the Counsel General, Theodore Huckle QC, in which he underlines the significance of the Reserved powers model for making the Assembly’s legislative process simpler and more democratically accountable. In it he quotes Justice Lady Hale, a member of the Supreme Court, who told the Legal Wales conference in Llandudno last October:

“The important point is that, as long as they keep within the express limits of their powers, the devolved Parliaments are to be respected as democratically elected legislatures and are not to be treated like ordinary public authorities. The United Kingdom has indeed become a federal state with a Constitution regulating the relationships between the federal centre and the component parts.”

Yesterday’s Welsh Government statement flows from the realities of Wales’s new, and little understood, federal relationship with England. So, too, does an acknowledgement that some time in the foreseeable future a Welsh legislative parliament will require its own jurisdiction within which its laws can be developed:

“While it would not be appropriate to establish a separate legal jurisdiction for Wales now, such a development is very likely in the longer term and actions can be taken which would help to ensure a smoother transition to such a jurisdiction in due course. These include achieving a more clearly Welsh identity in the higher courts of England and Wales; new Welsh offices for the Court of Appeal and the High Court; and acceptance of the principle that the legal business of people in Wales should be administered and dealt with in Wales wherever possible.”

Yesterday’s statement also envisages far reaching additions to the devolution of powers from Westminster to Cardiff. It says the Assembly’s powers should be extended in the following areas:

  • Water – the current limits on legislative competence should be removed and competence should extend to the geographical border.
  • Taxation – competence should be extended in line with the recommendations in the Commission on Devolution’s first report published in November 2012.
  • Policing, crime prevention and community safety should be devolved, with wider criminal justice to follow in longer time, without the need for new primary legislation.
  • Transport – there should be new powers for the Assembly in relation to speed limits, bus regulation, taxi regulation and ports. New responsibilities in relation to rail are being discussed separately with the UK Government.
  • There should be enhanced legislative competence in relation to Social Welfare and Families, and Equality.

The existing executive powers of the Welsh Ministers should be retained, and extended in the following areas, to take effect from times agreed between the Welsh and UK Governments:

  • Powers in relation to consenting of large-scale energy generation (other than nuclear power), and civil contingencies should be transferred to Welsh Ministers.
  • Minister of the Crown powers in areas of devolved legislative competence should be exercised by the Welsh Ministers.
  • Welsh Ministers should have executive powers in relation to youth justice.

Some of these new powers would have profound impacts on the Welsh economy. Others touch on neuralgic long-standing disputes between Wales and England. Devolution of responsibility over rail, for instance, will be vitally important if the Welsh Government is to create an integrated public transport system. As for water, which is perhaps the most surprising inclusion in this list, the Welsh Government says:

“There is an important interdependency between Wales and England in terms of water resource management, water supply and water quality. We consider that any concerns about potential adverse impact in England in relation to these matters would be more appropriately addressed through inter-governmental mechanisms that set out the basis for co-operation and joint working between the respective Governments.”

Taken together the statement delineates the most wide-ranging extension to Welsh democratic devolution since it was launched following the 1997 referendum. A difficulty is that it has been sprung on an unsuspecting Welsh Labour Party, although the electorate more generally is likely to see a lot of sense in what is being proposed. As the Welsh Government says they endorsed it in the 2011 referendum. Moreover, it points out that long before the referendum, and indeed since, they have told pollsters they believe the Assembly should have much more influence over the way Wales is run than Westminster. On the referendum the Welsh Government states in terms:

“The referendum in 2011 confirmed the Welsh electorate’s support for the Assembly to be an institution with extensive legislative authority for Wales. In the Welsh Government’s view, the proposals set out in this evidence do not raise any new issues of constitutional principle that would make another referendum necessary or appropriate before they could be implemented.”

A strict reading of this would suggest that the taxation powers recommended by Silk a few months ago do not need a referendum either. But the proposals have not been debated in the Assembly. To be sure its Constitutional Affairs Committee took copious evidence last year on the case for a Welsh jurisdiction, but studiously avoided any firm recommendation. Certainly the package has not been subject to any research effort in Transport House or  subject to any Welsh Labour conference resolution or vote. Instead, it has been driven from within the First Minister’s Office, and specifically by Carwyn Jones’ unit that deals with Constitutional Affairs and Inter-Governmental relations.

To be fair the First Minister has flagged up many of the themes within yesterday’s Silk submission in a series of important speeches during the past year. However, it is interesting to speculate how far Shadow Welsh Secretary Owen Smith was consulted about the package which, if Labour wins in the 2015 general election, he will have the task of piloting through Westminster.

There is no doubt, however, that the statement was kept closely guarded from Whitehall where civil servants, co-ordinated by the Wales Office, have been busy for months collating their own evidence to the Silk Commission. Many, if not most of the Welsh Government’s proposals will be unwelcome in Gwydyr House. Even now Departments across Whitehall will be penning their rebuttals to the latest claims of Cardiff in time to meet Silk’s 1 March deadline for their submission.

Here again, is another message from yesterday’s statement. Devolution is now being firmly driven by Wales and not Whitehall. The Silk Commission, set up and answerable to the Wales Office in London, will be forced to take its cue from Cardiff. In all probability there will be a stand off, with yesterday’s proposals – for and against – being submitted via competing manifestos to the electorate in 2015.

Before then, there will be one intriguing political battle to be fought. The Conservative regime in the Wales Office has sent clear signals that it is minded to change the National Assembly’s electoral system, to allow constituency candidates also to stand on the Regional List. It’ll be recalled that the rule preventing this was a sectarian provision contained in the 2006 Wales Act, which benefited Labour at the expense of the three other parties. If the UK Government’s proposals to reduce the number of Parliamentary constituencies had survived, which included cutting Welsh seats from 40 to 30, they would also have restored dual candidacies in Assembly elections. Now that the legislation has been thrown out will the Wales Office find a way of re-introducing dual candidacy in Cardiff, ahead of the next Assembly election in 2016? I’m sure the thought would appeal to David Jones.

However, yesterday’s Welsh Government statement insists that “changes to the Assembly’s electoral arrangements should only be made with the Assembly’s consent and supported by a clear mandate from a UK General Election.” The Wales Office may be minded to ignore that.

John Osmond is Director of the IWA

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