Westminster regards Assembly as jumped up inferior

Emyr Lewis says that in a vote today AMs have a chance to assert their legislative equality with the Scottish Parliament

Despite the overwhelming Yes vote in the 2011 referendum, there remains lack of clarity about the powers of the National Assembly. This is creating unnecessary complexity, confusion and uncertainty and is one of the main issues the Silk Commission is considering in the second part of its review of devolution.

Most of the debate is focused on what further powers should be devolved to Cardiff, such as policing, criminal justice and broadcasting, and the appropriate level at which Welsh Ministers should have the power to consent to energy generation development.

National Assembly debates ‘reserved powers’ today

At the National Assembly for Wales this afternoon, a motion is being debated proposing that “the National Assembly for Wales believes that the devolution settlement should be based on a reserved powers model for Wales.”

The debate is being tabled by Mike Hedges (Welsh Labour, Swansea East), Peter Black (Welsh Liberal Democrats, South Wales West) and Jocelyn Davies (Plaid Cymru, South Wales East). The motion also has the support of the following Assembly Members:

Julie James, Welsh Labour, Swansea West; Mick Antoniw, Welsh Labour, Pontypridd; Keith Davies, Welsh Labour, Llanelli; Bethan Jenkins, Plaid Cymru, South Wales West; Simon Thomas, Plaid Cymru, Mid and West Wales; Llyr Huws Gruffydd, Plaid Cymru, North Wales; Alun Ffred Jones, Plaid Cymru, Arfon; Julie Morgan, Welsh Labour, Cardiff North; David Rees, Welsh Labour, Aberavon; and Paul Davies, Welsh Conservatives, Preseli Pembrokeshire.


The view from the Wales Office

In reality, much of the discussion is about extra executive powers for the Welsh Government, with the unspoken assumption that legislative powers for the Assembly would follow executive devolution. That is unsurprising, given that the history of Welsh devolution started with Westminster conferring a bewildering array of precise executive powers on the first Assembly in specific subject-areas. These subject-areas in turn became the main foundations of the legislative powers granted to the new Assembly created by the 2006 Government of Wales Act.

The Supreme Court has made it clear (in the case of Axa v. Lord Advocate) that legislation made by the National Assembly is of the same status in law as that of the Scottish Parliament, and is subject to only very limited review by the Courts. Both legislatures owe their legitimacy to the fact that they are democratically elected bodies. It is therefore wrong in principle for Courts to interfere with the laws they make except on very precise grounds.

Nevertheless, the National Assembly has found it difficult to shake the perception that somehow it is not really a legislature belonging to the people, but a jumped-up executive body, which needs to be kept in its place by its betters. That is how it was treated by some members of the Welsh Affairs Committee when they scrutinised legislative consent during the brief interlude between the 2006 Act and the 2011 referendum.

That mind set is also apparent in parts of the UK Government’s evidence to the Silk Commission, for instance, which suggests that the UK Ministry of Justice ought to have a right of approval before criminal offences are made by Acts of the Assembly. The reason given is so that any cost impact on Her Majesty’s Courts and Tribunal Service can be assessed, and that all UK Government Departments must consult with the Ministry of Justice before including offences in Bills.  But the National Assembly is not a UK Government Department, nor any kind of Government Department.

Further evidence that the shape of the Welsh legislative dispensation is based on the division of executive powers between Cardiff and London is found in the rule that the Assembly can’t legislate so as to affect a pre-existing function of a UK minister, even if the subject is one on which the Assembly can make laws.  So, for instance, even though the Assembly has a wide remit in the field of Education, it can’t legislate where UK ministers still have executive power in Wales, so as to transfer that power to Welsh Ministers.

The complexities and frustrations to which this can lead were clearly shown in the Byelaws Act case that went to the Supreme Court last year. In brief, a well-intentioned and rather boring piece of Welsh legislation, aimed at cutting down unnecessary bureaucracy and delay in making local government byelaws, was challenged by the then Secretary of State for Wales because (in her opinion) it trespassed on some obscure and never used (since devolution) UK ministerial powers to approve byelaws made by Welsh local authorities. The Supreme Court found against her, but it could have gone the other way quite easily. Indeed, leading legal experts in England considered it to be an open-and-shut case which the Welsh Government was bound to lose, on the basis that a significant constitutional principle was at stake.  For a fuller discussion of this case by my colleague Manon George – see here.

The Welsh dispensation can be contrasted with those in Scotland and Northern Ireland.  In Wales, the Assembly has no power to legislate except in relation to the specific conferred areas of competence – sometimes called the ‘conferred powers model’. In Scotland and Northern Ireland, the Parliament and Legislative Assembly can make laws about anything at all, except for those areas which are expressly reserved to Westminster – the ‘reserved powers model’.

Furthermore, under the model in Scotland and Northern Ireland, there is no constraint relating to executive powers of UK Ministers.  The Byelaws Act case could not have been brought in relation to an Act of the Scottish Parliament, nor of the Northern Ireland Assembly. Neither of those legislatures could be mistaken for an executive body, nor treated as one.

In those countries, the starting point for a politician or an NGO promoting legislation is to assume legislative competence, and avoid exceptions and reservations. On the other hand, in Wales the first thing to do is to see whether the Assembly has the power in the first place, then consider the express exceptions in the 2006 Act, and then wonder whether any pre-existing UK Ministerial functions might be affected.

The reserved powers model brings with it practical and legal difficulties, such as many “limbo” areas, which are neither expressly inside nor expressly outside the Assembly’s ability to legislate.  This can lead to some surprising (and, for some, possibly alarming) results (for a fuller discussion in this site see here and also the UK Changing Union project’s evidence to the Silk Commission part II here.

The problem is not so much that the Assembly lacks the power to legislate in areas such as policing and criminal justice (it doesn’t lack them – they are limbo areas) or broadcasting, but that the constraints on the Assembly’s ability to legislate create confusion, uncertainty and occasionally paralysis. Politicians are nervous about legislating to do good as they see it (for example, to ban smacking) not because of policy reasons, but because of a lack of clarity about what is inside and what is outside the Assembly’s powers. The Welsh polity appears to lack self-confidence when it comes to legislation, anxiously looking over its shoulder in case London is offended.

Now, whatever system exists for the division of competencies between periphery and centre within a state, there will be grey areas, and the need to tidy things up every so often. The difficulty for Wales, however, is that the conferred powers model gives rise to considerably greater uncertainty than the models in Scotland and Northern Ireland. That uncertainty is psychological as much as legal.

It is interesting to examine the arguments that the UK Government considered on the issue of conferred versus reserved powers when it was preparing the 1998 Scotland Act. In its 1997 White Paper on Scotland, it noted that the 1978 Scotland Act (which would have gone ahead if it had been approved in the 1979 referendum) contained the conferred powers model. Turning to what should be done, this is what it had to say:

“The Government have given careful thought to the best way of building stability into the settlement. The Scotland Act 1978 provided for the transfer of specified areas of legislative and executive competence… It would have required frequent updating and might have given rise to regular legal arguments about whether particular matters were or were not devolved. This approach now seems incompatible with the Government’s objective of ensuring maximum clarity and stability.”

Read in Wales in 2013, these words seem prophetic.

It is hardly surprising therefore that there appears to be a growing consensus around a move to put the National Assembly on the same footing as its counterparts in Scotland and Northern Ireland.  Good evidence for this can be found in the Assembly’s Research Service’s useful and readable summary of the consultation responses to Part II of the Silk Commission (which can be found here. The move to a reserved powers model is explicitly supported by the Welsh Government and several other respondents.  The summary does not mention any respondent who opposed it Significantly, however, it was not expressly mentioned by the Conservative Party.

The UK Government’s position is particularly interesting.  Its evidence to the Silk Commission was not explicit on the issue.  What it said was this:

“The evidence in this document demonstrates that, on the whole, the Welsh settlement is satisfactory and works well in practice. We do not believe there is a case for radical change to the boundary of the settlement. Nevertheless, there are areas in which modifications to the boundary could be made, and we are open to proposals, supported by robust evidence, to modify the settlement to strengthen devolution in Wales.”

So there may be some scope for persuasion here, if the evidence in favour of a reserved powers model stacks up.  All the evidence appears to point in favour.  Is there evidence against?

Those who have expressed opposition so far do not on the whole engage with the arguments in favour – greater clarity, less friction between Cardiff and London, respect for the Assembly as a democratic body. Rather, they seem to adopt three different starting-points, the one ideological, the other two ostensibly pragmatic. All three are familiar arguments which have been used by opponents of Welsh devolution, and they need to be addressed.

  • The first is the ‘slippery slope’ argument.  The reserved powers model, it is claimed, further empowers the Assembly at the expense of the UK Parliament, giving Wales greater political autonomy which is more likely to lead to independence from the UK. The simple answer to this is that the polling evidence overwhelmingly shows support for strengthening the powers of the National Assembly and opposition to independence.
  • The second argument is that the Assembly should not be given any more powers until public service delivery has been sorted out in Wales. We should not be tinkering with the constitution. There are more important things to be done. This is a false opposition. It should not be a choice between one or the other, but both. It is difficult to see how simplifying and clarifying the legislative settlement could hinder better service delivery. Actually, it might help. Moreover, taking democracyand constitution seriously should not be dismissed so lightly.
  • The third is that Wales and England are too closely intertwined to allow for further development (as argued by the Secretary of State for Wales in his Wales Governance Centre lecture on Tuesday). This is the first and original argument against any form of devolution for Wales – “England and Wales are one entity, legally and politically” – adapted for an age where that certainty no longer holds.  The fact of Welsh (and indeed English) political and legal distinctness cannot be denied.  To be fair to the Secretary of State, there may be pragmatic examples to which he can point which support his position and which justify why Wales should be treated differently from Scotland or Northern Ireland in terms of the shape of the dispensation.  It seems to me that most difficulties are resolved by adopting the simple rule that things which should still be legislated for in London should be reserved.
One aspect of this latter argument is nevertheless valid. Wales has spent too much time in constitutional navel-gazing. That, however, is a product of the inadequate settlements it has been given.  Years of valuable time have been lost in ultimately pointless arguments between politicians in Cardiff and London about the minutiae of the devolution settlement in Wales.

It is significant that the UK Government has never seen fit to spend time and money challenging Scottish or Northern Irish legislation of any kind. It is time for Wales to move to a model which gives its legislative arrangements the same stability and its politicians the same robust platform from which to legislate confidently.

Emyr Lewis is a Partner with Morgan Cole LLP and a Senior Fellow at the Wales Governance Centre, Cardiff University.

12 thoughts on “Westminster regards Assembly as jumped up inferior

  1. Is there anybody out there who doesn’t think the current settlement is somewhere between a dog’s dinner and a pig’s ear? So – let’s stop both the navel gazing and this slow-motion train-wreck and offer the people of Wales a referendum on full independence from the UK/England on the basis that Wales receives no further subsidy from the rest of the UK.

    That’s what some people would call the up-side. Their down-side (my up-side!) should be that a NO vote would abolish the GoWA and return Wales to Westminster control with or without, preferably without, some variation on the Wales Office.

    Who could possibly complain about that?

  2. Impressed Emyr with your definition of the ‘OERWHELMIG SUPPORT’ in 2011 for Welsh legislative powers with some 70% of Welsh electorate ABSTAINING! Perhaps the truth is that people of Wales don’t take the Senate seriously, find it irrelevant or even want it?

  3. Actually Jacques, the turnout was bigger than that of the London Assembly election and I do not see the likes of you making any criticisms of Boris & co. John. No serious elected politician wants immediate independence and only a tiny minority like you want the opposite. At least this blog gives you a voice, though.

  4. Absolutely John. Lets get Wales locked into Westminster. Then if Scotland goes, we will have our dream of EnglandWales.

  5. I am not sure what the word ‘overwhelmig’ is meant to mean, let alone why eccentric capitalisation and poor grammar are deemed essential when attacking devolution, but that comes is the standard of argument we have learnt to enjoy here.

    Opinion polls in 2011 found that amongst those who did not vote, support for the ‘Yes’ side was even higher than amongst those who did vote. This is strange, but true. The first posting is worthy of a wry smile, but like the second, it reflects the tepid after-echo of a lost cause that had its day in 1979 and is receding ever further from public relevance.

    The rest of Wales has moved on. More seriously, I do wonder why (as per Northern Ireland) terrorism (from both sides) is explicitly rewarded in their devolution settlement, while this is not the case when devolution arises from a wholly legitimate process.

  6. I take it that the Westminster Parliament is the supreme democratic body in UK and any thing ‘given away’ can be ‘called back’ if needs arise. If the performance of WAG does not improve in next 10 years and our children/work people are being disadvantaged by out dated policies then surely the UK must end this shambles.The problem is that thousands of people will have suffered so that welsh nationalists and their supporters in LLAFUR can benfit in financial terms,and feel better about themselves. If the GOVE initiative in education does work and standards improve the gap between ‘us’ and ‘them’ will further widen!!

  7. Sorry Jacques, but that’s a pathetic argument. One could equally suggest that the 70% who didn’t vote were happy to acquiesce to the emerging devolution consensus. The truth is, we don’t know because those people didn’t vote. The world is run by the people who turn up – and of those who did, there was overwhelming support for extended powers.

    John Walker – what about those of us (and there are probably many) who don’t suppotr full independence but who believe Wales should have a stronger voice on its own domestic affairs? What’s our option in your either/or model?

  8. No man has a right to fix the boundary of the march of a nation; no man has a right to say to his country, “Thus far shalt thou go…”

    Parnell’s words should be ringing in the ears of the Right Honourable Member for Clwyd West right now. Does he really want that epithet in history? Proscribing the recommendations of his own constitutional commission before it has even finished taking evidence? Like so many Canutes before him…

    JRW/Jacques – there is a by-election happening in Ynys Mon shortly. Test your political convictions with your electorate and stand for Ukip*. Will you respect the result?

    * Have to admit I don’t know where Ukip stand on the Assembly nowadays… they used to be abolitionists but I’ve read stuff to the contrary recently. If they’re not abolitionists any more I’m afraid you’ll have to stand on your own ticket as all other political parties seek to develop and improve the devolution settlement, and since turkeys don’t vote Christmas, one assumes they broadly reflect public opinion in that respect. But good luck anyway.

  9. Vincent Kane in last week’s “Week in Week out” program on television reminded us what Oliver Cromwell said and lots of us agree with Vincent and want to repeat it: “In the name of god go, you have set long enough for all the good you have done.”

  10. Barry Phillips. Cromwell’s alternative was military dictatorship, which led eventually to the return of an executive monarchy and the end of the English republic. Not a great precedent. What did you have in mind?

  11. BP. I agree.It was fascinating to see a top class and clearly independent journalist like Vincent Kane on our BBC CYMRU screen again,and we can but hope for more of the same!!.The interview with the Minister out side the Senydd was a classic non event. The worry is that how far back do we have to go in the ‘real world’ before we get another chance to decide whether we REALLY want devolution in its current for or not?. What price a young VK getting a job today with BBC CYMRU?. Theres more chance of me as a 68 year old wining Wimbledon 2103!!

  12. BP

    Cromwell or Parnell? With all his failings I’ll take Parnell. Not sure he was ever responsible for genocide in Ireland or military dictatorship in England, so on balance I’ll stick with the home ruler.


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