Speeding up the Silk Road

Daran Hill says that the Wales Office should prioritise a reserved powers model before 2015.

The publication of Silk Part II earlier this week has been analysed over and over, but not always with the strongest of insight. Though some intelligent contributions have been made to the debate – most notably Alan Trench’s blog post on the content which called the exercise “cautious” and described the report in essence as follows.

“The Silk proposals are, in essence, an attempt to make sure the division of powers between Welsh and UK institution catches up with reality.  They’re not actually very radical.”

Though I wouldn’t go as far as Trench in pointing to failings in the report, not least because I don’t think the case for devolving the legal system (which was his central criticism) is made convincingly either to or by the Silk Commission, there is an essential truth in that elements of the report could have been more radically framed. And the real missing radicalism is a sense of urgency or opportunity.

What concerns me first is the individual subject areas and if and when they might be devolved. Timescales are set out on these responsibilities in an effective way in the Silk Report but some don’t seem particularly urgent. Everything seems to have been framed post the 2015 General Election, when in fact where consensus occurs some responsibilities might be transferred a great deal sooner.

Look at the example of youth justice. The youth justice system is one of the few key areas of policy relating to children and young people for which the Welsh Government and the National Assembly for Wales do not have exclusive responsibility. The Welsh Government has responsibility for policies in relation to education, housing, substance misuse, health, and social services and all of these policy areas play a role in preventing young people from becoming involved in the youth justice system. However, the administration of youth justice is not devolved. Oversight of the youth justice system remains the responsibility of the Youth Justice Board for England and Wales (YJB).

Further, youth justice is an area where the Welsh Government currently seeks to legislate. A Green Paper consultation on proposals to improve services to better meet the needs of children and young people who are at risk of entering, or are already in, the youth justice system was carried out in autumn 2012; and a White Paper is now out to consultation which focuses on proposals to improve services for young people from Wales who are in the youth justice system, to ensure their effective reintegration and resettlement following a community or custodial sentence.

We can therefore expect legislation this Assembly session. But think how much more intelligent that Welsh Government legislation would be if powers on youth justice had been devolved. Because on this issue there is a strong consensus of evidence and argument to do so, therefore it would benefit from being done quickly.

The usual way additional subject area powers are devolved are through Transfer of Functions Orders between Whitehall and Cardiff Bay, which specify which parts of Acts of Parliament are passed over. A number of Transfer of Functions Orders have been passed to the Assembly since the foundation of devolution in 1999, the most significant of which were related to the fire service and the student funding system. Why not pass one on Youth Justice now?

Or, even more radically, why doesn’t the Wales Office in this UK Government make a priority for its final year to enact one of the most important recommendations in the Silk Part 2 report – to draw up and enact a Reserved Powers model of devolution. Such a move has huge civil society and political support and could form part of the beefing up of the Wales Bill which will be introduced to Parliament in the next session.

Even though the Secretary of State for Wales may not be warm to such an idea – he spoke against a reserved powers model last year and has also indicated in his response to Silk this week his caution on timing:

“We will consider implementing some of the changes the Commission has recommended during this Parliament. But there is insufficient time remaining in this Parliament to implement any changes that require primary legislation.

“These will therefore be a matter for the next Government and Parliament, and for political parties to set out their proposals and intentions to the electorate ahead of the General Election in 2015.”

But let me urge a rethink. If the Secretary of State for Wales really wants to control the devolution process for Wales then adding a Reserved Powers model – and specifying those powers – is amongst the most effective steps he can take. In that way he can redraw the existing boundary between reserved and conferred and cherry pick the elements of Silk most attractive to him.

In that way, not only does the Wales Bill gain more purpose but David Jones will have seized the initiative to draw clearer lines in the sand for devolution than any Secretary of State since Ron Davies. Their motivations in doing so may be very different, but the outcomes in terms of shaping a significant part of the devolution process would be much the same.

And it would have the added advantage of putting pressure on Labour MPs to add or subtract from that reserved powers list when the Bill is presented to Parliament, which would cause them significant difficulties around teachers pay and policing. And would ensure that the enactment of most of both the parts of the Silk report fall to a Conservative Secretary of State who was in the Wales Office when they were commissioned, rather than to another possible party or individual.

Just a thought.

Daran Hill is the MD of Positif.

11 thoughts on “Speeding up the Silk Road

  1. So much money wasted on so much nonsense.

    Give the people of Wales what they want:

    1. Better standard of living
    2. Shorter working hours; earlier and better retirement conditions
    3. Safe & friendly environment in which to bring children
    4. Best in class National Health Service and education systems
    5. Great sports individuals and sporting teams of which the whole of the UK can be proud

    Note: no mention of language, taxing the rich, Barnett formula’s, independence, culture, religion, Cardiff Bay, the Assembly, reserved powers and all the rest of the crap)

    Time we went back to basics!

  2. I agree that the key issue here is that of the Reserved Powers Model. There are two main advantages here:

    The boundaries of governance between Westminster and Cardiff would be clear, no more wasteful visits to the Supreme Court;

    The Assembly would be free to develop according to the political priorities of the population without outside interference and without being able to pass the buck.

    Welsh Government is still in a period of considerable transition. Only now are the difficult decisions on NHS reform beginning to be tackled together with the inevitable protests that come with it. Mark Drakeford is struggling heroically with the issue and discovering the pitfalls involved. It is possible to make a party political point at this juncture. But in my view, whoever had the responsibility for health would be facing the same difficulties. It is part of the process when we say that it is up to us now as to how the policies are formed and how services are delivered; the buck stops with us. The consequence is that we inherit the hornets’ nest of intractable problems that comes with such responsibility.

    In conclusion, Reserved Powers is the way ahead and the greater the political consensus that can be achieved on this, the better. But it has to be done on the basis of what makes for effective government. We should give short shrift to those MPs who fear for their jobs. Rather they should be doing their homework and become specialists in the Reserved Powers kept at Westminster.

  3. Year by year, Wales is becoming a different country – but is it becoming a better one?
    Misgivings over shortcomings in each of health, education and housing have a wider base than the natural constituency of political opposition to WG.

    The cliche of “not an event, but a process” is true and perhaps subconsciously elevates “process” over “progress” . Most of us are less concerned about process than we are about the timeless twin performance measures of

    1. Are we getting better or worse?

    2. Are we better or worse than others?

  4. I feel liberated to contribute since posts from Mr J.Jones are being accepted again. I assume J.Jones=Jon Jones. The flaw in Daran Hill’s argument is that it supposes the Secretary of State has a coherent view of what should be devolved and what shouldn’t. In fact I think he resents any devolution and opposes anything he can get away with opposing without flouting his own Party’s policy which is to accept devolution in the UK. Nothing consistent or coherent can be expected from such a position. But I really hope he proves me wrong.

  5. Ross Tredwyn said: “The flaw in Daran Hill’s argument is that it supposes the Secretary of State has a coherent view of what should be devolved and what shouldn’t.”
    He does have a view on that, and it is generally not to devolve more without good reason, as he publicly stated in a key speech in Cardiff last year. In the same speech he dismissed the reserved powers model. I am making a case that he be more pragmatic and look to his own caution around devolution, and use a reserved powers model advocated by his opponents as a means of delivering that.

    Yvonne, how kind of you to define for us what the people of Wales want. Neither “2. Shorter working hours; earlier and better retirement conditions” nor “5. Great sports individuals and sporting teams of which the whole of the UK can be proud” are on my wish list. But don’t let that detract you from speaking for us all.

  6. well christopher we are certainly better than the rest of the uk when it comes to exports – welsh exports being up over 11 percent while the figure for the uk as a whole is less than 1 percent. while the ‘reserved powers model’ of devolution for wales is a no brainer – its clearly insane and in no one’s interest that each time the senedd passes an item of legislation it risks being dragged into the supreme court by the british government at westminister.

  7. Daran,

    I’ve re-read your article a couple of times as I’m not quite sure I understood properly your argument the first time around. Following your comment above, I’m still a little unsure.

    Are you advocating that David Jones kick-start the ‘reserved powers’ implementation process now so that he may ‘steal a march’ on the articulation of reserved matters and thereby produce a more ‘conservative’ (centralised) settlement than might otherwise be the case if implemented, say, after 2015 by a Labour/Liberal coalition at Westminster?

    (forgive my presumption to second guess your politics, but I also assume you are saying that you yourself may not agree with whatever configuration he came up with but you’re offering it up as a sort of impartial assessment of his political opportunities)

    However, I guess this approach would only be attractive to David Jones if he could ensure some sort of permanence to that configuration (assuming it reflects the status quo for example), since otherwise its only value to him is the laudable but electorally valueless ‘constitutional clarity’ everyone talks about.

    Under the current UK constitution it is of course impossible for one parliament to bind the decisions of a future one, and to that extent he can expect no permanence other than that provided by the fatigue of returning to devolution legislation at Westminster. I accept that this could provide something of a delay, but it is far from certain, and once the reserved powers model is on the statute book it will be much easier (in terms of parliamentary time) to amend the reservations than it was to set up in the first place.

    I suppose it is possible that he could try to introduce other levers to increase permanence (or at least longevity) – 2/3 rules at the Assembly before any change for example, requirements for referenda or something, but whilst technically possible, that approach is ethically suspect in the context of a broad consensus for at least ‘some’ further devolution, and in any case does not overcome the primacy of Westminster statute issue.

    I guess my question is therefore, are you suggesting that David Jones could use the implementation of reserved powers as some sort of ‘lock down’ on the distribution of devolution competency? If so, how do you think he would achieve this constitutionally? How ethical would it be? Whilst you might offer it up as an impartial suggestion, could you support its ethical implications?

  8. “Are you advocating that David Jones kick-start the ‘reserved powers’ implementation process now so that he may ‘steal a march’ on the articulation of reserved matters and thereby produce a more ‘conservative’ (centralised) settlement than might otherwise be the case if implemented, say, after 2015 by a Labour/Liberal coalition at Westminster?
    (forgive my presumption to second guess your politics, but I also assume you are saying that you yourself may not agree with whatever configuration he came up with but you’re offering it up as a sort of impartial assessment of his political opportunities)”

    That’s exactly what I’m suggesting. The permanence of such a division would be a matter for future UK Governments/Parliaments, as you suggest, but I think if not a “lock down” then he would be able to set the line with a heavier pen then otherwise possible.

    Ethics don’t come into it. Devolution and every change to devolution so far has been done for the political convenience of the Labour Party. i think it’s time the Conservatives adopted the same sort of tactics.

  9. There is no doubt that we need the reserved powers model implemented as soon as possible. There are too many opportunities for the enemies of Welsh governance to subvert the lawmaking process under the present arrangements. Trouble is neither the Tories or Labour in Westminster are happy to transfer powers to Cardiff bay so we all need to push the already open door a lot harder. What Scotland’s example shows us is that you get nothing from Westminster by being meek and mild. To create the kind of society the majority of us want in Wales we need greater powers coupled with basic lessons for the Welsh electorate on how Democracy works best. Maybe then they will stop re-electing failed Labour politicians and get a Welsh Government with the ability and courage to do what needs to be done.

  10. “Ethics don’t come into it”.

    I’m afraid they do Darran if a Westminster government changed the constitution of Wales without the consent of the Welsh Assembly or even a general election manifesto pledge.

    Whether we like it or not, the Labour Party was in government in both Westminster and Wales when it made constitutional changes in 2006 and could command a majority in both.

    The Conservative party has no such mandate and therefore to use a Westminster majority (even if one could be achieved – which is doubtful) to hamstring the Welsh constitution may be lawful but would be highly unethical, particularly (and I stress this) since the consensus position in Wales as reflected by Silk is entirely the opposite to David Jones’s. Politicians who choose to live by the sword generally die by it as well.

    I accept your broader point that the Conservatives (in their own interest) should take a more dynamic role in constitutional development, but I think you are misguided on the ethics of this particular example.

  11. Phil, I don’t see an ethical dimension. The Secretary of State could introduce a reserved powers model which pretty much tidies up what we have now. It would just be the way it was expressed. And then by maybe introducing rules like requiring 2/3 of the Assembly to agree to further subject area devolution it would also ensure consent was present which, on the more contentious issues like policing and criminal justice, would be very difficult to achieve.

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