Whitehall abjures more Welsh devolution

John Osmond puts yesterday’s evidence from HM Government to the Silk Commission under the spotlight

All is for the best in the best possible worlds for Wales and devolution according to the Wales Office and the rest of the Whitehall machine. Certainly, that is the impression you get from a quick scan across 113 pages of their exceedingly lengthy, dry, turgid, and largely irrelevant evidence submitted to the Silk Commission yesterday (here).

We learn that the UK Government “is proud of delivering our commitments on devolution in Wales” (mainly setting up the Silk Commission), and that it “does not believe there is a case for radical change in the boundary of the settlement.”

There is no engagement with the core question about the architecture of Welsh devolution. This is the debate around the current ‘conferred powers’ arrangement and the strong case for replacing it with a ‘reserved powers model’, as cogently set out by the Welsh Government in its evidence last week (here) and reiterated even more strongly by the Changing Union project on Monday (here).

Instead, there is an exhaustive examination, undertaken by virtually every department across Whitehall, detailing what is devolved – and more emphatically – what is not devolved in the 20 subjects in Schedule 7 to the Government of Wales Act 2006. There are 22 sections in the evidence (apart from the Introduction), which cover the whole range of conceivable topics, from Ancient Monuments to Highways and Town and Country Planning, to Economic Development, Water and Flood Defence.

You get the impression that a junior civil servant in each of the Whitehall departments has been given the task to work out what their relationship with Wales has been in the past, should be in the future, and why there is no case for any (and heaven forefend, radical) change.

In the case of the Home Office a more senior hand appears to be at work. In the section on Justice a hint of outrage enters the prose at the idea that powers over police and criminal justice might at some stage be devolved to Wales, as proposed by the Welsh Government last week. The notion that Wales could enjoy its own jurisdiction, as is the case with Scotland, Northern Ireland, the Isle of Man, Jersey and Guernsey, is dismissed as upsetting the ‘England and Wales’ identity of the men in Whitehall and Westminster. As this person states:

“Distinct aspects of the coherent justice system in England and Wales cannot easily be considered separately.”

He goes on to warn that setting up a Welsh legal jurisdiction would upset centuries of well worn custom and practice, and would cost rather a lot:

“England and Wales share a single legal jurisdiction, which has continued to evolve over hundreds of years to meet the changing needs of British (sic) society. We support the continuation of the current unified system, which in our view works well whilst offering scope for close working between devolved and non-devolved partners in delivering justice services in Wales. We believe that a separate Welsh legal jurisdiction would offer questionable tangible practical benefits to people living in Wales and could complicate the system unnecessarily for those who need to use it. We note that it would also result in substantial additional cost, which we estimate to be £105-£125 million per annum.”

A footnote to this paragraph says the cost estimate “assumes there would be a need to replicate many existing justice structures (notably prisons) and arrangements which currently apply across the border”. Why? There is a distinct sense that we’re being treated to a worst-case scenario.

There is a similar sense of suppressed outrage about the idea that broadcasting might be devolved, with all that might mean for undermining the ‘nation’:

“… there is no evidence to suggest that devolution of broadcasting policy or a different approach to funding the BBC would benefit licence fee payers. Essentially, the country as a whole benefits from pooling the licence fee, advertising revenue and subscription fees that go to fund the excellent broadcasting output of this country. This pooling of resources allows major investment to be made in a range of programmes that we can all enjoy – whether they are made in Scotland, England, Wales or Northern Ireland. There is a greater net benefit to the nation and all its constituent parts in having broadcasting reserved.”

As for S4C:

“The Public Bodies Act 2011 makes clear that the Secretary of State [for Culture Media and Sport] must ensure S4C has sufficient funding to carry out its public remit. The UK Government considers therefore that S4C’s interests are appropriately safeguarded.”

Short shrift is given to the Welsh Government’s aspirations to have powers over large-scale energy generation projects above the present restrictive limit of 50 MW. The civil servant in the Department of Energy writes in the section on ‘Town and Country Planning’.

“We consider that planning policy and decision making for major infrastructure in Wales should be viewed in a wider context. England, Wales and Scotland collectively benefit from major developments in terms of economic benefits, security of supply and low carbon deployment. Developers welcome consistent planning policy and decision making to give them the confidence they need to make the very large investments required in, for example, new nuclear power stations at Hinkley and Wylfa, new connections with Ireland, and around £18bn of potential onshore network development by 2021. We consider that the current unified planning regime for England and Wales provides a stable platform for investment in major infrastructure both now and in the future.”

The Welsh Government argued that its powers over water supply and regulation should extend to the geographic boundaries of Wales, thereby for example, giving it control of that part of the Severn Trent water authority that supplies water from the Elan Valley to Birmingham. However, the Department of the Environment in Whitehall warns the Silk Commission:

“Any proposal to align the legislative competence of the Assembly and executive competence of the Welsh Ministers in relation to the water and sewerage industries with the geographic boundary of Wales, would have significant implications – including for the management of water resources; the potential impact on the stability of the regulatory regime for the statutory water and sewerage undertakers; investment and asset management; and the inter-dependence of the cross-border water and sewerage industries.”

There are just two areas in the document that I could find where Whitehall concedes there might be a case for allowing some further devolution of powers to Wales – over the railways and teachers pay. On the former the document says it would welcome the Silk Commission’s views about transferring the UK Government’s “residual rail responsibilities” over the Wales and Borders rail franchise which comes up for renewal in 2018.

The UK Government would also “welcome the Commission considering the subject of teachers’ pay and conditions”. However, this is because, contrary to the UK Government’s view, the Welsh Government has argued against moves towards localisation of pay deals and linking pay with performance. As section in the document dealing with ‘Education’ says:

“The school systems in the two countries are diverging at a growing rate, and it could be argued that devolving the pay and conditions of teachers in Wales is a logical consequence of deregulating teachers’ pay and conditions in England and should be explored.”

At the outset of the evidence, on the second paragraph of the first page, the UK Government claims, “We believe in devolution, and have demonstrated a strong commitment to taking devolution forward because it gives people choice and a real say over their own affairs.” Delve a few pages in and you find this sentiment contradicted time and again. Instead of being expansive in their approach, and seeking a stable and equitable constitutional relationship between England and Wales, these English civil servants seek every opportunity to restrict divergence and prevent any further development of devolution.

So much so, in fact, that it underlines the likely irrelevance of these views. Much more important will be the outlook of the next Westminster Government, following the 2015 general election. It looks increasingly likely that this will present a different political hue to the present incumbents. It will be interesting to hear the views of the Shadow Secretary of State for Wales, Owen Smith.

John Osmond is Director of the IWA.

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