A mish-mash muddle

Eluned Morgan argues that the Wales Act fails to bring clarity to the devolution settlement

Now that Article 50 has been triggered , it is worth pausing again to consider whether we did the right thing in passing the Wales Bill at the start of the year. It was in no way an easy call.  There is no disputing the fact that the Wales Bill, now Wales Act, is a poorly drafted, complex, and rushed piece of legislation which will not, as was promised, settle the issue of the relationship between Westminster and Cardiff Bay for a generation. Whilst we were promised clarity, coherence and stability, many still believe that what we have is a mish-mash muddle which could lead to more, not fewer, referrals to the Supreme Court.

The Act was a missed opportunity. Whilst it kept constitutional experts salivating at the mouth at the prospect of more future Wales Bills, it failed to deliver a stable political framework and distracted the Assembly from doing its more important task of providing Welsh people with jobs and services worthy of the twenty first century. Despite this, many of us made the judgement call that we should grab the opportunity to advance, even by the most meagre steps, the frontier of devolution in Wales, and batten down the constitutional hatches by moving to the Reserved model of governance before Brexit.

In the House of Lords, we took up the challenge of improving the Bill with vigour and drew attention to the many shortcomings in the legislation.  We should not begrudge the UK Government the progressive elements of the Act. It should be noted that the National Assembly for Wales will be permanent, it will have the power to determine the electoral processes and the number of AMs in future National Assembly elections and there will be increased powers in a number of areas including energy, transport and water.

In the Lords, however, we understood that there was a great deal of work to be done, in particular with the move from the current complex Conferred Model of Governance (where there was effectively a list in past Acts of what the Assembly could do) to the Reserved Model (where a list was produced which made clear what areas were reserved to Westminster, like defence and foreign affairs whilst everything that was not on the list could be done by the Assembly). Nevertheless, in that switch from one model to another, there seemed to be a considerable claw back by Whitehall of powers which had already been devolved to Wales. This had to be resisted. We were never really given a comprehensive rationale and justification for why certain areas were reserved and others were not, but we are clear that Wales is nowhere near securing the powers that Scotland enjoys.

To be fair, during the course of our consideration, the Government accepted that it was wrong of them to attempt to claw back some powers already devolved to Wales including areas such as adoption, railway planning and building regulations. They also conceded an increase in powers in some areas where hitherto Wales had not been granted powers. This included areas where it made eminent sense to allow Wales to legislate, including on heating and cooling, fixed-odds betting terminals, the community infrastructure levy and the right to be consulted on issues relating to the Maritime and Coastguard Agency.

There were two areas in particular where we were extremely disappointed with the UK Government’s position. One was on the issue of who could bid to run rail franchises in Wales. The Welsh Government is currently going through a procurement process to determine who should run Wales’ railways. We made it clear that it was ideologically inconsistent to allow three nationalised companies from other EU states to be allowed to bid, but in future the Welsh Government could not bid.

The other issue where we thought the Government should really have moved was on industrial relations with respect to public services. During the passage of the vindictive Trade Union Bill through the House of Lords, we were made aware of a secret document which made clear that the Welsh Government had the right under the Conferred model to determine these matters. The UK Government was determined, in moving to the Reserved Model, to close off this possibility despite the excellent record on partnership working in Wales. In January, the Welsh Government has introduced its own Trade Union Bill, whipping it in under the wire whilst the Conferred Model is still in place. We are on course for yet another constitutional bust up in the Supreme Court even before the ink has dried on this Wales Act.

The issue of the Welsh Government being able to act in ‘silent areas’ under the conferred model has been curtailed. These ‘silent areas’ allowed considerable legislative leeway following the Agricultural Workers Pay judgement for the Assembly to act. That legislative space has now effectively been shut down. Despite the move to the new system, there is still a lack of clarity in terms of when the Assembly can legislate if a matter ‘relates’ to a reserved matter. It is the lack of clarity which potentially could see many referrals to the Supreme Court in the future.

One thing which did strike us during the scrutiny of the Bill is that the Scottish Parliament had signed up to a many areas in the Scotland Bill which Welsh Peers deemed to be unacceptable. Henry VIII clauses and the terms of the transfer of fixed odds betting terminals were just two issues which were nodded through the Lords without any debate in the Scotland Bill. Perhaps it is time for the SNP to reconsider its policy of not sending members to the Lords.  

The issue of a common legal jurisdiction of ‘England and Wales’ was the reason for the UK Government denying Wales parity with Scotland, which has its own. Whilst most accepted that it was premature [with the very low number of Welsh only laws] to be demanding a separate jurisdiction at this point, all understood that since 2011 a body of Welsh law is already being built which is distinct from that of England and Wales. There was an understanding even by the UK Government that in time complexities relating to the training of judges and lawyers, even apart from the crucial issue of accessibility and comprehension for the Welsh public, would mean that there is a need to keep the situation under review. The UK Government eventually accepted that the internal Whitehall working group set up to deliberate on this issue (with almost no input from the Assembly) would not do the trick, and they have accepted that a more equitable system of consideration which will involve experts acceptable to the Assembly should be established.

During the course of the passage of the Bill there was a great fanfare and dancing in the streets, top billing on BBC news and headlines in the newspapers when the UK Government accepted that they would drop their intervention powers in relation to water in Wales. It is not clear whether it was the gullible Welsh media or the Secretary of State who related this to Tryweryn and pronounced that the drowning of a village could never happen again! The Minister later conceded on the floor of the House that the Assembly already through its planning laws could halt any possible reservoir building in Wales.

But on further prodding we discovered that the dropping of the intervention powers was not all it was cracked up to be either! There will now be a protocol between the Welsh Government and the Secretary of State to resolve any issues relating to water, in particular on the border, but there is no clarity at all in terms of what would happen if an understanding cannot be reached between both parties.

The Bill could have been killed off in an instant if the two Governments had failed to agree on the future financing of Wales as a result of the partial devolution of income tax powers, which can now come without a referendum.

Whilst the agreement is far from perfect, there seems to be a consensus emerging that actually Wales did quite well out of this negotiation.  Despite the Act’s continued failings, it was right for the Assembly to support it.  

It would be difficult to imagine anyone other than Lord Bourne, whose credentials on devolution are positive, in the Tory Government managing to persuade Whitehall to loosen up further especially when there has been no indication from Theresa May that she has any empathy towards the devolution project. There was no prospect of an alternative Bill if this one were to fail as Brexit will dominate the political scene for at least the next decade. There are some financial assurances and, more importantly, further borrowing powers which would not be available had we rejected the Bill. Crucially though, in this age of political instability and Brexit, we believed that being anchored to a reserved model, the same model as Scotland and Ireland, we might, just might gain more protection for Welsh devolution in the stormy seas ahead. The next few months will indicate whether that was the correct judgement.



Eluned Morgan AM was Shadow Welsh Minister on the Wales Bill in the House of Lords

7 thoughts on “A mish-mash muddle

  1. Perhaps, given that the Westminster system is audibly creaking at its vellum lined, red ribboned seams (not to mention a hideously expensive and horrible leaky stage set of a building to which they seem pathetically attached) that the right course of action is to start at our feet and ask ourselves, ‘if we were starting with a blank canvas, what would be wish to see?’ Effectively, starting with all powers and responsibilities and then deciding which ones to pool with other UK nations, which with Europe (we won’t be leaving the EU anytime soon in anything but name, by the way) and which with other supranational bodies, so that we can live harmoniously, resolving economic and environmental imbalance and permanently building-in peace by removing the cause of all wars.

    Unwritten constitutions are not worth the paper they’re written on, as Sam might have said, but in order to establish a settlement that works for us and the rest of the world, we’re going to have to raise our game … considerably.

    Either that or to keep on bumbling along without aim or ambition for the foreseeable future, sucking up austerity, low wages, poor social care, low confidence and no voice. ( … none of which we voted for).

    I’m not holding my breath.

  2. The noble Baroness is obviously being sarcastic when she refers to ‘great fanfare and dancing in the streets.’ The fact is that hardly anyone knows what is going on. Compared with the EU Referendum, there is an almost total absence of public discussion of the Act.

    Does no one appreciate the irony that an Act that establishes the principle that there should be no major change in the devolutionary settlement without a referendum is itself a major change in the devolutionary settlement without a referendum?!

    Or that the same Act also abandons the promise, repeated in the Conservative manifesto in 2015, that there should be no devolution of income tax powers without a referendum?

    Did no one in the House of Lords challenge this? It is worth asking how many of the ‘Welsh Peers’ mentioned in the article reflect the values of the Wales that voted to leave the EU and is getting increasingly sceptical of the whole devolution project?

    The reason the political Establishment wishes to avoid a referendum on this Act and on income tax powers is that the result is by no means as certain as it would have been a few years ago.

  3. John states that “the Wales that voted to leave the EU and is getting increasingly sceptical of the whole devolution project”, without any evidence to back up this claim. In fact the recent St David’s Day BBC/ICM polling on attitudes to devolution, found that 44% of respondents wanted to see more powers for the Welsh Assembly. Dwarfing the 13% (the same as last year and 2105) who wanted to see the Assembly scrapped. It does appear that a new tactic of right wing centralisers who are against devolution, is to create an un-evidenced narrative whereby the leave voters were a homogeneous block, who were voting for a wish list of right wing courses all at the same time, including in Wales, to get rid of the Welsh Assembly.

    Reading John’s comment above that “there should be no major change in the devolutionary settlement without a referendum”, then I presume if the UK Government, at the end of the Brexit negotiation process, were attempt to hold onto any powers and laws, presently under the competencies of the WA (which were backed overwhelmingly by the 2011 referendum), this would necessitate a referendum before the UK Gov receives anything.

  4. Llyn, the short answer to your point has already been given: the evidence is the abandonment of the previous commitment to hold a referendum.

    The longer answer – given with the authority of having called every nation and region in the UK correctly last year – is that the lesson of 2016 is to listen to what people are saying, not to the polls.

    Single issue polls are, in any case, a dubious proposition at the best of times. People are asked a question out of the blue about a subject they have not really considered. By contrast, a referendum campaign brings out new information and new points of view, causing them to think more carefully about the issues and possibly to change their minds in the light of these new perspectives.

    There are a number of examples of this happening in practice. In 1997, the Blair government, encouraged by the polls, thought the Welsh devolution referendum little more than a formality, but in the end it was extremely close. The same government also thought regional government in England would be popular, a notion that did not survive the first test. The Liberals forced a referendum on proportional representation, and the polls seemed to favour them for a while. It was only when the idea was debated in detail that the public turned against it. David Cameron allowed a referendum on Scottish independence only because he was confident of victory. Yet, as the debate progressed, the gap between the two sides narrowed and Cameron became very frightened. Despite that experience, he was equally confident when he called the EU Referendum – except this time he did not survive his mistake.

    At the moment, there is no focus for opposition to the Assembly, and the media are not subjecting it to any serious scrutiny – but that could change if there was a referendum with equal funding and equal coverage of both sides

    …which is, of course, why none of those things will be granted.

    You are kidding yourself if you think the Assembly is popular. At the moment the general attitude is more ambivalence than active opposition but that could change very quickly. Despite poor organisation, poor funding, poor coverage, and, with due respect to them, poor strategy, ATWAP, the Abolish the Welsh Assembly Party, scored a consistent 4-5% across Wales in the last Assembly elections. If you have any political experience yourself, you will understand that this is in fact a remarkable result for a paper campaign first time out. UKIP were in a much weaker position only a few years ago.

    A well-funded, well-connected research group exposing the Assembly’s record to the public could turn it into toast in a matter of months.

    Happily for the Assembly, no such group exists in Wales, nor does anyone have the money to establish one.

    Finally, your use of the expression ‘right wing centralisers’ suggests you feel the need to follow a particular narrative – one that is wholly inaccurate. Dissatisfaction with the Assembly comes from across the political spectrum, and is motivated by the desire to decentralise to local authorities, communities, and individuals. It is the Assembly which has shown a definite taste for centralising power in itself.

  5. I thank Eluned Morgan for this clear analysis of the Wales Act. It underlines the shameful denial to Wales of powers conceded to the Scottish Parliament – and in particular the unbelievably supine conduct of Stephen Crabb during his period as Secretary of State. Asking Whitehall Ministries which powers they are willing to concede is no way to advance good government.

  6. John, the corollary of your conviction that there should be another referendum related to the Tory manifesto of 2015 promise, is that you also believe that the Tory government should keep the UK in the European Single Market, which was also promised in the Tory manifesto of 2015. Likewise, if we should “listen to what the what people are saying, not to the polls”, then you would see no reason to revisit the Welsh Assembly competence over all the subject areas, overwhelmingly backed by the people of Wales in the recent 2011 referendum.

    In respect the ATWAP, the Abolish the Welsh Assembly Party, I agree that they did very well in 2015, but I would also suggest that the make-up and the leadership of this group (the party was set up is led by David Bevan ex Chairman of the , even for UKIP very right wing Cardiff branch of UKIP and Treasurer of the UKIP Wales) highlight clearly the umbilical link between the “right wing” and anti-devolutionist centralists in Wales.

  7. Llyn, on the mathematical principle that the greater includes the lesser, a vote to abolish the Assembly would necessarily mean a vote to abolish its powers, just as a vote to leave the EU implies a vote to leave its single market.

    There can be no objection in principle to a subsequent vote on a deal to remain part of the single market after leaving the EU – in the extremely unlikely event of the EU offering such a deal on reasonable terms as part of the negotiations – but there is no advantage to those who want to retain close links with Europe in giving the public a veto on such a deal.

    Not knowing anything about Mr Bevan or his colleagues, it would be presumptuous to offer an opinion of what you say about his positions. However, it should be noted that, on Europe, an organisation branded ‘right wing’ turned out to be speaking for the majority of Welsh people across the spectrum.

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