Sovereignty lies behind Welsh Government’s bid for powers

John Osmond attends a seminar where a vision for Wales’s constitutional future was explored

The author of the Welsh Government’s submission to the Silk Commission on more powers for the Assembly yesterday revealed the essential argument behind its bid for more powers – but one they thought too “strong meat” to use at this stage in the devolution process.

Essentially this is nationhood or “Welsh popular sovereignty”, as Hugh Rawlings, the Welsh Government’s Director of Constitutional Affairs and Intergovernmental Relations, put it. This he said lay behind the “direction of travel” in the Government’s call for eventual devolution of criminal justice powers and the creation of a Welsh jurisdiction.

“We didn’t use that argument in our evidence to the Silk Commission,” he told a seminar at the Cardiff Law School. “It was a bit too strong meat for us at this stage of devolution. But it doesn’t mean it isn’t there, and couldn’t be used.”

The claim of sovereignty was underpinned by Welsh nationhood as directly expressed in the two referendums in 1997 and 2011. It also lay behind the Welsh Government’s call for a ‘reserved powers’ devolution model to be adopted for the National Assembly rather than the current ‘conferred powers’ model.

At present the National Assembly only has the competence that has been conferred on it expressly by the Westminster Parliament. The Welsh Government wants a new Wales Act to be passed to provide for all powers to be devolved save those UK-wide matters, like defence and foreign affairs, that are expressly reserved to Westminster.

Hugh Rawlings likened the present law-making process to a large legislative field controlled by Westminster, in which stockades were dotted around occupied by the National Assembly with law-making powers. This created a situation where Whitehall, usually represented by the Wales Office, was perpetually looking to see if the Welsh Government was about to jump over one or other of the stockades.

“It was highly symbolic that the very first Bill passed by the National Assembly, on local government byelaws, was immediately whisked off to the Supreme Court for adjudication,” he said.

He added that the conferred powers arrangement did not just result in frustration for the Welsh Government, which had to deal with questions of powers and competence on a daily basis. It also placed the Wales Office in an awkward position where it was constantly keeping a check on whether Cardiff Bay was exceeding its remit.

The issues were often difficult to unravel. He gave the example of the Agricultural Wages Board which the Westminster Government wished to abolish and was seeking the consent of the National Assembly to do so. This the Assembly had refused, saying agriculture came within its remit. Westminster answered that the Agricultural Wages Board came under employment, which was not devolved. How could such an issue be resolved? In effect it created a third area of powers beyond those which were conferred and those which were retained – those that were, in effect, in a no-man’s land of neither one nor the other.

Hugh Rawlings drew attention to the Welsh Government’s call for all matters relating to water to be devolved “including licensing and the appointment and regulation of water undertakers, and this this competence extended to the geographical boundary of Wales.” He said the demand was a hangover from the 1970s devolution legislation in which had been embedded a great deal of power and discretion for the Secretary of State for Wales to interfere with the Assembly proposed at that time.

Indeed, it went even further back in history, to the disputes over the drowning of Tryweryn in the 1950s which, for many, had been the beginning of the whole devolution process. As Rawlings put it, “The idea that in a looser UK there should be powers for the UK Government to overrule the Welsh Government in relation to water is anachronistic.”

It was a point that took him back to the question of Welsh sovereignty. In elucidating that he referred to the headline above the Welsh Government’s Press Release on its submission to Silk, currently on its website (here). It reads, “A new constitutional settlement for Wales: matters affecting Wales should be decided in Wales.”

“We are not seeking criminal justice powers or a distinctive jurisdiction for Wales at this time, though they remain an ambition, “ he said. A new Wales Act granting Wales a reserved powers model for the Assembly would probably be enacted in the early 2020s, and a jurisdiction might follow during the decade after that. “We’re giving a sense of direction in all of this,” Huw Rawlings said. “We want to see a Wales in a looser, more diverse UK, and that UK playing a full part in a strong European Union.”

It is the nature of the devolution process to leave the field wide open. Who would have thought, when we went to the polls to vote in the referendum in 1997, that just 15 years later we would be talking about devolving criminal justice, and building a separate structure of Welsh courts and a distinctive devolution? What, exactly, does “matters affecting Wales should be decided in Wales” mean?

John Osmond is Director of the IWA.

8 thoughts on “Sovereignty lies behind Welsh Government’s bid for powers

  1. You talk glibly about sovereignty – the UK is subject to more than 14,000 international treaties covering everything from the fish we can catch to the right to land aeroplanes in the USA.

    Just as Alex Salmond has barely begun to think about any of this in his mad rush for so-called independence, it seems the talking heads in the Wales bubble are just as far removed from reality.

    And that’s before we even begin to consider how they propose to fund their new-found ‘sovereignty’?

    In many ways the best solution to all this low-grade bubble-speak would be for the UK government to commission independence referenda for Scotland and Wales making it clear that with a yes vote comes the requirement to fund fully and administer fully your own bubbles. Then you would find out what sovereignty really means!

  2. JRW. Quite right and why the real facts of life are not put in front of us Welsh people I really dont know. There seems to have been a seperate world created in Caerdydd with the ‘talking heads’ all speaking to each other about flights of fantasy, whilst the rest of us try and manage, and worry about our children’s/grand children’s futures in an uncertain world. We in Wales cannot continue with this continnual drive for more separation, whilst actual services are going downhill fast, and going to get worse as public finances are brought into balance. The trouble is that the Welsh Government and in partcular our FM seems to perpetually need to blame Westminster for our troubles, when it was his own party in government that left the ’till’ empty as Mr. Liam Byrne stated in his leaving note. Our FM reminds me of children who blame parents for ‘everyhting’, but 10 years in real world and own children then open up freely that life isn’t as easy when you have to confront REALITY and deal with world as it is, rather than some ideal paradise just around the corner.

  3. John Walker – 14,000 treaties … this is some figure plucked out by Willie Rennie the Scottish LibDem Leader to try and make out that independence is too complicated for the thick Scots. The 14,000 includes things like 1877 Treaty with the King of Dahomey, Peace, Commerce, Slave Trade, Human Sacrifices:
    http://www.fco.gov.uk/en/treaties/treaties-landing/records/05600/05684

    Follow @UKTreatyTrivia on twitter for some more obscure and obsolete treaties.

    You’re right, there are many issues to think of but as in any law, the law stands until it’s changed. That is an independent Wales / Scotland / Estonia / USA / Ireland accepts the past laws and treaties until it feels the need to change it or time makes it irrelevant. There’s no need to go back to the King of Dahomey to renegotiate the Slave and Human Sacrifices Treaty!

    Cost? Well, one could also look at independence / sovereignty as the necessary self-regulation which Welsh politicians need to create a stronger economy.

  4. “A new Wales Act granting Wales a reserved powers model for the Assembly would probably be enacted in the early 2020s, and a jurisdiction might follow during the decade after that.”

    What a grand ambition for the Labour party! By then Wales will likely be on a par with Liberia or the DR of Congo.

    As for John R Walker’s comment regarding Scotland, see “http://eutopialaw.com/2011/11/14/685/”
    The treaty obligations are far from insuperable, as Scotland will almost certainly inherit the obligations of the current UK, as will the new state of EWNI, or more appropriately called The Rump.

    Moreover a sovereign Scotland will subsequently be able to re-negotiate treaties and bilateral agreements which it does not see as operating in its favour, and which it is currently unable to do. It will have full membership of the UN, its own representative on the European Commission, and more representation in the European Parliament.

    As I see it, this is a much better deal than the Scots get at present, instead of being governed by a right wing Tory-led coalition in London which was overwhelmingly rejected by them in 2010.

    Btw, John, the UK is currently being ‘fully funded’ by creating money out of thin air to buy UK government debt. Its borrowing is increasing and is predicted to continue to increase, hence the loss of its triple A rating. Worse is the effect it’s having on all of us (with the exception of the wealthy), the value of our wages, salaries, pensions and savings is being slashed through the consequent inflation. We are paying for the serious mistakes of successive UK governments, and are today facing a triple dip recession.

    The Scots should thank their lucky stars that they have a get out of jail card to play in 2014, and I hope enough of them have the good sense to take it. The flack which Salmond, the SNP and the Scottish Government is getting in the British media is testament to the extent that the British establishment in Westminster and Whitehall is really rattled. EWNI is likely to lose its permanent seat on the Security Council if and when the Scots exit, as both new states won’t inherit that!

  5. I think this is a most important position to take. I believe the Welsh people are fully behind the principle that laws and decisions etc which affect Wales should be made, developed and enacted by a Welsh Government. It is the timescale I think people are unsure about. Confidence is growing amongst the Welsh people and this is what is needed to get them behind this idea. The basic principle of Sovereignty for Wales should lie in Wales. It must be right that we demand a reserved model, to place the Welsh people in control of their sovereignty. As for the powers which then would be reserved for Westminster, again as long as the power to change the position of Wales within a Union in the UK lies with the Welsh Parliament and the people and not with Westminster, I can see a very good broad base of support from most political parties and Citizens of Wales developing. For me this has always been the real crux of the matter, not that we have all the powers for Independence now, but that the power lies with our people and our democratically elected Senedd to decide where our country wants to be.

  6. I find no evidence of people coming to the conclusion that all laws need to be enacted in Wales. Rather I see that we are deliberately being lied to about politicians agendas. Remember the ‘yes’ vote campaigners telling us it is “only a tidying up exercise” and no tax raising powers were being sought?

    On top of this we in Wales are engaged in a race ‘to the bottom’ in ALL indicators of Health, Wealth and Social Mobility. If those running Wales were responsible to a Board in the private sector, they would have been sacked long ago.

    Personally I am confident that Alex Salmond will not win his vote in Scotland – this is reflected in recent polls. The Scots are too pragmatic to fall for his rhetoric.

  7. Ian – how are we being lied to, when 66% of the Welsh public wants the tax powers?

  8. Ian Williams is right that the Scots are unlikely to vote for independence, at least if the opinion polls and bookmakers are any guide. He has a point about Welsh politicians too, though he is a bit harsh. The indicators he refers to have been heading down for several decades – at least three and in some cases more. The Welsh politicians are like an inexperienced buy-out team taking over a failing company. You have to give them some time to get to grips with the situation and some more time to turn it around. Admittedly they haven’t turned the corner yet but let’s hope tangible progress appears in the next five years. There is no reason to think the trends would not have continued under the old dispensation when they emerged and, indeed, accelerated.
    As for devolution, well you were warned it was a ‘process not an event’ and as it seems we have to have a referendum before every development there is no chance of it getting away from public opinion.

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