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Tuesday, 20 September 2016

The Moral Imperative of a Second EU Referendum


There is no such place or political space as ‘being outside’, or ‘being without’ defined, agreed international relations with other countries, particularly one’s neighbours. You either have them or you are not a functioning state in the world trade, financial, movement of people, energy, security, etc., systems. To that extent, ‘exiting’ or ‘leaving’ the EU is a terribly misleading term. It’s a bit like saying ‘leaving society’. You simply can’t exist as a functioning human being without a substantial amount of co-ordination with the other human beings around you. You can’t ‘leave’ society therefore, you can only renegotiate and perhaps change the way you interact with others within it. Some people might have thought they were voting to ‘leave’ the EU on June 23rd, but what they were actually voting for was an undetermined ‘change’ to the UK's formal relationships with the EU and the rest of the world.

Now, it might have been possible to define in some detail what the UK’s vision for that change was in advance of the referendum. The Scottish Government did it before the Scottish independence referendum for example. The Scottish, Welsh and Northern Irish devolution settlements were all defined in legislation before their respective referenda. The European Economic Community was a living, breathing entity when the UK voted to continue its membership in 1975.

The official ‘leave’ campaign could have done the same in June 2016. It could have defined the UK’s future membership of this organisation here, and its non-membership of that one there; this change to immigration policy here, that change to trading terms there; this co-operation to continue here, that one to end there. It might have been comprehensive, or it might have been illustrative. It would have been ‘draft’ only of course, as all new relationships need to be agreed by all parties, as unilateral, self-interested actions rarely result in long-term stability or success (even the most powerful of super-states understands that). But it might have been a start, and it would have given its supporters a degree of authority to say on June 24th, ‘Brexit means […], and the British people support it’. But that didn’t happen. Nothing was defined, not even informally. The referendum mandate was therefore for ‘change’, but what on earth too?

Were our relationships, arrangements and rules of engagement with the rest of the world of little consequence, it might be reasonable to just allow the UK Government to crack on now, define this brave new world, renegotiate something with all parties, set up new systems, and move on. But they are not inconsequential; no, quite the opposite I’d argue. They are existential, even constitutive perhaps. Our formal international agreements define what it means ‘to be the UK in the world’ just as much as societal rules define what it means to be an individual in society. They will affect everything from how we do business in the world, where we trade and on what terms, the shape and size of our economy, how we educate ourselves at university, conduct research, go on holiday, receive emergency treatment abroad, pick grapes in Italy before going to college, get married to someone from Poland, etc., etc., literally et bloody cetera, ad infinitum. We know how we do all those things now. Brexit means that we don’t know how we will do them in the future.

It could be that the scope of change is quite limited in the end of course (angering hard brexiteers) and our lives remain pretty much as they are now. It could be enormous (angering remainers and soft brexiteers) and our lives change in incalculable ways. It could be that a fair majority of UK citizens believe the change to be acceptable and desirable in the final analysis. It could be that a fair majority think it is not. We just don’t know yet, and can’t know until a proposal is put forward and a negotiated, agreed package arrived at with our international partners. It is fair, I believe, to say that we did agree to reject the current definition of ‘us’, but we have no idea what the new ‘us’ is going to be, and who can put their hand on their heart and say that we’ve agreed ‘to be it’ yet?

When people say there is a mandate for Brexit, what they mean is there is a mandate for change. And as a remainer I’d agree with that. The UK Government is entitled (and even obliged) to set out a new vision for the UK’s place in the world and negotiate its particulars with the international community.* It does not have a mandate to press the start button and put that vision into practice however. In what parallel moral universe, for example, would it be right that a government could claim, ‘you said we could do something, so we’re changing everything’?

It should surely be inconceivable to any democrat, therefore, that unknown changes of such potential enormity could be imposed on the citizens of the UK without a second referendum. Brexiteers within and outside the Government will no doubt dismiss and scoff at the idea, but it will not go away. In the absence of a pre-referendum blueprint for ‘Brexit’, it is morally imperative to seek the British people’s endorsement of the final proposal. If David Davis is so confident of building his new British Shangri-La somewhere in the mid-Atlantic, I would have thought he’d relish the opportunity of celebrating its establishment with the roaring approval of the people, wouldn’t he?



*I respect the different mandate given by the people of Scotland and Northern Ireland and they and their political representatives are entitled to determine their own positions vis-à-vis the EU either within the UK or outside it. The Welsh Government has a permanent and continuous obligation to protect the Welsh national interest within its areas of competence and to lobby and negotiate on its behalf outside of them. I would expect them to do this vigorously in respect of the post-Brexit landscape. The people of Wales have a permanent and continuous right to change the nature of their relationship with the UK (and other countries) should they choose democratically to do so. The EU referendum result in Wales in June does not change that in any way.

Sunday, 28 August 2016

UKIP and the Conservatives open up new front in the pro-Britain/anti-Wales constitutional debate.


So UKIP have finally shown their cards on Welsh devolution with Mark Reckless claiming that the Brexit vote will result in a decrease of support for the National Assembly in the future, followed quickly by the Conservative leader in Wales, Andrew R. T. Davies, who has claimed that the people of Wales would reject devolution if there was a new referendum “tomorrow”.

The argument is a logical absurdity of course; a popular protest against a ‘big’, ‘distant’, ‘unresponsive’, and ‘unaccountable’ polity (if you believe the anti-EU mantra) would more likely lead to a consequential disillusionment with the next ‘distant/unresponsive’ polity, namely ‘London’, rather than the ‘nearer’ and ‘more responsive’ Cardiff; at least initially. But of course in the minds of the British national right, the Brexit vote was a vote in favour of Westminster over and above all other forms and layers of sovereignty in the UK. It was the ‘silent majority’ reaffirming their oath of allegiance to the Queen (of England) and Country (Anglo-Britain) over pernicious Eurocrats and the traitorous nationalist crachach (of the soft and hard variety).

I’ve not seen any empirical evidence to back up that sort of behavioural profiling, and anecdotally I can confirm that (regrettably, in my opinion) many Plaid and Labour, pro-Welsh, supporters voted ‘leave’ in Ynys Môn, apparently as sceptical of the European political project as their pro-British bedfellows. No doubt ‘anti-devolutionism’ was a factor for the UKIP hard-core in Wales (perhaps 10% of the electorate?), but it is quite a leap of faith to suggest that it was a factor for the other 43% of ‘leave’ voters.  Indeed, as Ifan Morgan Jones has pointed out in his blog, the latest empirical evidence suggests, as it has done for many years, that committed anti-devolution sentiment in Wales is extremely rare nowadays.

But UKIP and the Tories haven’t kicked-off this line of argument, or, to look at it in a slightly different way, ‘deposited’ this combination of rhetorical statements in the pool of Welsh public discourse, because they genuinely believe in its accuracy. No, not in the slightest. What they are actually doing is launching a new discursive ‘front’ in the longer-term pro-Britain/anti-Wales constitutional debate.

You see, discourse works like that. In order to effect political change it matters not a jot what people ‘think’ (people largely think what they are told to think by the state apparatus and its agencies), it matters which lines of discursive argument are in the ascendancy at a moment of political ‘crystalisation’ (an election, a referendum, a vote in Parliament, etc.), or which ‘positions’ are hegemonic at any given time. In order for there to be a successful campaign (and perhaps a vote) to reduce, curtail or even end the Welsh political dimension in the future, there needs to be a preceding (and eventually dominant) discourse of dysfunction, irrelevance and discontentment. That discourse of a devolutionary ‘problem’ is mostly marginal at the moment in Wales, but UKIP and the Conservatives have clearly decided to promote it, and as it gains apparent ‘authority’ in the public domain, so too will their ‘solutions’ such ‘reform’, retrenchment or abolition. Be in no doubt, discourse proceeds ‘opinion’, and discourse can be designed and manufactured.

One thing I certainly agree with Mark Reckless and Andrew R. T. Davies about is that there is huge potential for this discourse to grow and to prevail. I don’t say this because I believe in the inherent ineptitude of Welsh Labour ministers or some inherent Welsh scepticism of Welsh institutions as some would argue, but because the range of agencies available to the British nationalist right to initiate and sustain such a discursive shift is enormous, the range of agencies available to the progressive pro-Welsh coalition to counter such an assault so small, and the ‘neutral’ gate-keepers of discursive confrontations so pitifully incompetent and disinterested.

Freed from their thirty-year war of attrition against the European Union, it can’t be long now before the British nationalist faction in Whitehall, Fleet Street and Sky Towers unleash their fighting dogs on the Scottish and Welsh institutions. They are clever, determined and patient, and they are many in number. Reckless and Davies have much to be optimistic about therefore. Whether there is fight in the old Welsh dog remains to be seen. Forewarned is forearmed however...

Tuesday, 23 August 2016

A world-beating Ruritania obsessed with its own survival


I don’t know who has changed most, me or British sport. I used to love watching the Olympics, particularly track and field, although I can remember enjoying the rowing and hockey too. Now I can barely watch 10 or 15 minutes of saccharine BBC coverage before switching over or switching off. OK, so I’ve moved an awful long way from supporting ‘Britishness’ as a default political choice, but that hasn’t prevented me supporting British sportspeople in the past. But I’ve found it almost impossible in the context of these Olympic Games, even more so than in 2012.

Perhaps it’s the cynicism of the new Olympics, that ruthless product management ethos which demands that sport after sport is swallowed up in an imperial ‘brand march’ that Napoleon himself would have been proud of. Golf, tennis, rugby, football; they’re all part of the empire now. But when some of the planet’s richest sportspeople (some of whom just knock a small white ball around a few hectares of American prize real estate for a living) get even more air time and plaudits than usual, I’m afraid it’s too much for me. It just dilutes the tradition of amateurism which I value, and takes well-deserved attention from those who would never get a look-in otherwise.

But there are more sinister forces at play as well. For the IOC, more participating sports means more televised events, means more advertising revenue, means more power and influence at the geo-political-sporting top table of course. But for the British State, which includes its co-opted communication outlets such as the BBC, ITV, Sky, and print media, the Olympics has simply turned into an irresistible free-for-all of gooey pro-British propaganda, rammed down the throats of an otherwise indifferent, increasingly ‘abritish’, people. The more sports you can throw into that pot, the bigger the demographic.

To my eye at least, it has simply become an orgy of Union Jacks (athletes were forbidden from carrying other national flags apparently), God Save the Queen, happy, smiley, contented fans, and epic stories of brave young Brits fighting for Blighty and bringing home the hardware (and so they might with £350m of lottery money going into their elite performance programmes). It’s as if it was all scripted in advance, which – as anyone who understands how the broadcast media works will know – it was. Only the nuances were left to chance (the final colour of the medals, the odd surprise), the story-board itself was written in advance from beginning to end. Starved of the Great British Bake-off, the Great British this and the Great British that over the summer, the public lapped it up of course. It was technicoloured entertainment; and excellent subliminal political propaganda to boot.

State-sponsored exercises like this in the reinforcement of British nationalism used to be self-assured, understated and discerning in the UK. In recent years they have become superficial, awkward and undignified, as if a woefully under-qualified junior PR manager has been left in charge whilst the bosses stuff their pockets and Whitehall burns. And when a bulwark of the English imperial project like Simon Jenkins bemoans a new (Soviet-style) British ‘cultural cringe’, you know something’s awry.

The mandarins and privy councillors at the heart of ‘Project Britain’ know full well that a second Scottish independence referendum is just around the corner, and to that extent you can forgive them their propagandistic exuberance of recent months. But their obsession with red white and blue bunting, Churchillian rhetoric and free cucumber sandwiches is a high-risk strategy. It left me utterly cold, like there really isn’t any hope for a non-Anglocentric union of nations on these islands in the future. And if they lost me, a rather wet, moderate Welsh nationalist, I shudder to think how it left the people of Scotland, who in the next 18-24 months will pass judgement once again on the kind of state they want to be part of : an averagely achieving sporting nation which focuses on the well-being of its people or a world-beating Ruritania obsessed with its own survival?

Saturday, 18 June 2016

Remain


I will be voting to remain in the European Union for the following reasons:

I have no problem whatsoever with immigration, whether from the EU or elsewhere. It is a sign of our prosperity not our impoverishment. What is more, I actually prefer the multi-cultural UK I live in now to the knotted-hanky and knobbly-knees UK I lived in 30 years ago.

Where UK public services are under strain, it is because of tax and spend choices the UK Government has made, not because of a growing population. Change the Government if you want more hospitals, or let them stay in if you want a small state and low taxes. Either way, it’s still your choice.

I am content with the basic vision of a confederal Europe based on sovereign nation states working together and I do not believe in ‘New World Order’ conspiracy theories.

Single markets need common trading rules and I have absolutely no problem with EU Law. Most of it simply regulates what we buy, eat and consume. Get used to it, it’s just called modernity.

The EU has enriched my life and that of my generation immeasurably.

I have not had to go through the horrors of a world war like my grandparents did.

___

My support for the EU is not unconditional however, and I will continue to fight vigorously to ensure that following are protected:

Subsidiarity – that sovereignty is always assumed to rest at the lowest level possible unless a convincing case can be made for pooling it higher up. I hold that to be true for Wales, the UK and the EU. But wanting greater freedom for the individual or one’s nation does not HAVE to mean abandoning cooperation. That is a false dichotomy. As a Welsh nationalist I do not discount mutually beneficial cooperation at a UK level, and I don’t discount it at a European or global level either.

Pluralism – that one size doesn’t fit all; that exceptions and differences are tolerated and celebrated; that uniformity and homogeneity are not pursued for their own sake; that diversity is recognized as one of nature’s greatest riches.

Redistribution – that the main purpose of any government should be to reduce economic inequality not increase it.

Progressivity – that government should be an agent of liberation and justice for disadvantaged and minority groups; that it should promote fairness and equality for all not just the ‘conforming’ majority.

Sustainability – that perpetual growth and untrammelled consumption are intellectually and morally bankrupt ideas; that government must take the lead in changing direction, of finding ways of combining prosperity, happiness and long-term sustainability.

___

It is my judgement that the benefits of being a member of the EU outweigh any dis-benefits at the moment. It is also my view that on balance the EU contributes positively to my 5 key principles above rather than work against them.
I will continue to observe and scrutinise the EU’s activities and development and campaign for those things which I think are important. I WILL let you know if my opinion changes in the future, but at the moment staying in the EU seems the only rational, ethical and intelligent thing to do.

Monday, 14 December 2015

Constitutional and Legislative Affairs Committee report on the draft Wales Bill


I would normally consider writing a summary and appraisal of a new publication such as the Constitutional and Legislative Affairs Committee's report on the draft Wales Bill for Pedryn Drycin, but on this occasion I will decline. The report is relatively short and is written in accessible language, its clarifications on matters of fact and interpretation are precise and accurate, and its arguments are made succinctly and cogently. It suffices, on this occasion, to strongly recommend that Pedryn Drycin's small but hard-core readership read the original report and come to their own conclusions.

My opinion, for what it's worth, is that its analysis is broadly consistent with everything that I have written here over the last few months and its recommendations to the Secretary of State for Wales can be quickly endorsed by all reasonably-minded Welsh democrats: that is, 'start over again, or remove all the mischievous, undemocratic bits'. Further, and taking due account of its measured and diplomatic language, it is still a damning indictment of the process, the draft legislation and the UK Government's underlying motivations.

[The Committee's chairman, David Melding, has also written a short article on Click on Wales today, 'Back to the drawing board for the draft Wales Bill?', explaining the broad findings and recommendations of the report]

I will, however, make particular reference to one section of the report:

"164. It has been suggested that the purpose of the draft Bill is to overturn the decisions of the Supreme Court in relation to the existing settlement and conferred powers model. While that may be the approach from a Whitehall perspective and within Parliament’s prerogative, if that is the intention it should be expressly stated in the interests of openness and transparency."

Whilst it would do my ego no end of good to think that the report's authors avidly read, and are referring specifically to Pedryn Drycin, when they say, "It has been suggested", I rather suspect they are reflecting more widespread grumblings and malcontent in Cardiff Bay. But I am gratified, nonetheless, to see a central pillar of my argument over the last few months find its way into the report: that is, if it is the UK Government's intent to overturn the Supreme Court's decisions and roll-back the legislative competence of the National Assembly for Wales, "it should be expressly stated in the interests of openness and transparency". That is the very least we can expect from a supposedly democratic government, one would have thought.

It is a matter of regret to me, however, that the committee did not go on to 'note' that the Conservative Party made no General Election manifesto commitment whatsoever to take such action, that the Conservative Party has no majority electoral mandate at any level in Wales, that such action would run contrary to the will of the people of Wales as expressed in the 2011 referendum, and that whilst being within Parliament's prerogative, would represent one of the grossest abuses of Whitehall power in the history of 'democratic' UK politics...

Then again, perhaps 'undiplomatic' language of this sort will become more commonplace in the corridors of Welsh power if Stephen Crabb declines the committee's recommendations and persists on his lone charge into historical infamy over the next few months?


Thursday, 26 November 2015

And you expect us to trust the Welsh Constitution to these people?


I have argued for a long time now that the principal motivation of the UK Government in introducing a ‘reserved powers’ model for Wales has always been to roll-back the legislative competence of the National Assembly vis-à-vis the current Government of Wales Act 2006 (GOWA), and that constitutional symmetry, ‘clarity’ and the opportunity to devolve some new areas of competence are convenient, but secondary, considerations for both UK Conservative ministers and mandarins alike. The Supreme Court’s ruling on Local Government Byelaws and Agricultural Wages Bills (and the broad and deep legislative competence that they confirmed) sent shockwaves through Whitehall in 2012 and 2014 and its response was to quickly endorse a move to the reserved powers model so that those rulings could be undone with tighter provisions during the drafting process.

It is very difficult for them to admit that in public of course, as it is a difficult argument to make and win (and keep your credibility and integrity at the same time). You have to explain and justify why Wales should have a significantly less powerful legislature than Scotland, Northern Ireland, Jersey or the Isle of Mann, why Wales should accept a less powerful legislature in the future than the one it has at present, why you believe that Parliament didn’t ‘really’ mean to transfer those powers in 2006, and why you believe that the people of Wales didn’t ‘really’ vote for them in 2011, why perfectly reasonable Acts of the Assembly which already sit on the Statute Book, shouldn’t be there, or shouldn’t have arrived there without UK Government consent, why having a conceptual single ‘England and Wales’ legal jurisdiction is more important than having an effective legislature and government in practice, and why, exactly, you think it is acceptable to take powers away from a country without a Parliamentary or Assembly majority there, a referendum of its people or even an honest commitment in your General Election manifesto. You just look mean, petty, reactionary, undemocratic and obsessed with maintaining London control over Wales at all costs. You might think these things in private of course, but you can’t possibly admit to them in public.

Hence why there has been no mention of your true motivations in your speeches or papers, why you have clouded the debate in spurious arguments and half-truths, erected false totems and predicted woe for sacred cows, and run for rhetorical cover the minute someone raises a genuine concern. It is a truth that can’t be uttered, a truth that must be avoided at all costs, that Wales is more independent than you think it should be and must be reined back in.

It is interesting therefore to note that this truth almost leaked out several times on Tuesday when Stephen Crabb gave oral evidence to the Constitutional and Legal Affairs Committee. He almost said it openly a couple of times, but pulled back at the last minute leaving us with mere suggestions. I quote from the (draft) transcript of the meeting. You be the judge for yourselves…

“[15] William Powell: I welcome very much the tone underlying that answer, Secretary of State. Could I ask you, in terms of the provenance of this Bill, to what extent have the Supreme Court rulings, during the course of the fourth Assembly, actually affected the drafting of this Bill?

[16] Stephen Crabb: That’s a very good question. When I became Secretary of State a year and a half ago, one of the early decisions I took was to move to a reserved-powers model precisely because of some of the Supreme Court judgments. In terms of the specifics of the draft Bill, clearly, when you look at what it says around the fact that we recognise agricultural wages is now a devolved issue, taking account of the Supreme Court decision in that respect, but also taking account of the more recent asbestos decision as well, the boundary, if you like, that the draft Bill sets out, the devolution boundary, I think is fair and realistic, to use the Lord Chief Justice’s phrase—a fair and realistic interpretation of that boundary.”

[The first statement is the important one. The rest is waffle]

“[17] William Powell: What effect did the ruling in the local government byelaws case have on your thinking?

[18] Stephen Crabb: That was all part of the—. I wasn’t Secretary of State at the time, so I wasn’t involved in the decisions around referral to the Supreme Court. I think if I’d been Secretary of State that Bill wouldn’t have gone to the Supreme Court, but that’s history.”

[“That was all part of the” what, Stephen? Thinking? Reasoning? Urgency? Again, the rest of the answer is waffle having realised that he has almost dropped a clanger]

“[125] Lord Elis-Thomas: With respect, Secretary of State, devolution in Wales is not in limbo. It is defined by the Supreme Court and by two of the greatest legal brains known to me, certainly.

[126] Stephen Crabb: We have a devolution settlement that is unstable. Regardless of the Supreme Court decisions, we have a devolution settlement that—

[127] Lord Elis-Thomas: Are you seriously saying the Supreme Court is unstable constitutionally?

[128] Stephen Crabb: Not at all—nor any of the members on it, absolutely not—but we have legislation that doesn’t spell out which body is responsible for which area of policy. We’d also, if we withdrew the Bill, be denying the opportunity for this place, this Assembly, to get greater powers to become the place, when I made my speech down here a few months ago, the kind of place I think it’s destined to be. I want this to be a strong primary lawmaking body for the benefit of the people of Wales. That’s a vision that I share with you."

[The current settlement does spell out what the Assembly is responsible for, but as the Supreme Court confirmed, it also gives the Assembly broad scope to legislate in these areas, and it is this broad scope that Whitehall wants to rein in. It is not ‘unstable’; it is just more autonomous than they wanted]

Throughout the session the underlying motivation for the UK Government was clear. The unified ‘England and Wales’ legal jurisdiction, a common England and Wales approach wherever possible, and continued UK executive control over many devolved areas is sacred. Wales’s current constitutional settlement (the GOWA) transgresses that sacred line and, over a period of time, empowers the National Assembly to substantially erase it. At all costs, these UK controls over Wales must be protected and reinstated. A move to a reserved powers model, and the draft Wales Bill in particular, is the vehicle to do that.

The debate would be a lot simpler if they just admitted that openly.

But to finish off, a revealing insight into the flippant dismissal by Whitehall civil servants of genuine concerns about the bill by a myriad of Welsh academics, politicians, lawyers, and civil society in general. We imagined these sorts of conversations took place but had no evidence to prove it. We do now:

"[116] Stephen Crabb: When I first suggested to officials we could reduce the number of pages of reservations, I think the first suggestion was to reduce the font size by a half."

And you expect us to trust the Welsh constitution to these people?

Monday, 23 November 2015

Stephen Crabb’s written evidence to the CLA Committee: a quick guide to sophistry and rhetorical sleight of hand



Regrettably, the pantomime that is the Wales Office’s defence of the draft Wales Bill continues. Here are some brief reflections on Mr. Crabb’s most recent contribution today.


“The draft Bill also strengthens Welsh devolution by devolving important new powers over energy, transport and local government and Assembly elections that can make a real difference to the lives of people in Wales. For the first time, it will enshrine the National Assembly and Welsh Government as permanent parts of the United Kingdom’s constitutional arrangements. It will enable the National Assembly to call itself a Parliament and to decide how its Members are elected - and whether 16 and 17 year olds should be able to vote in Assembly elections.”

Mr. Crabb starts by asserting that the Bill “strengthens” Welsh devolution because it transfers some new competences to the Welsh Government and to the National Assembly. He does not go on to say that the draft Bill removes significant areas of legislative competence. Whilst giving with one hand, he takes away with the other. On balance, the Bill ‘weakens’ Welsh devolution not strengthens it. That is the truth.

“So there has been a long, well established process which has led to the draft Wales Bill. Some commentators have called for fundamental changes to the draft legislation; for the reserved powers model to include a significant expansion of devolution, based on the principle of subsidiarity. But this draft Bill is not a vehicle for expanding devolution by the back door. It reflects the broad consensus reached in the St David’s Day process. [...] Our General Election manifesto committed to implement the St David’s Day Agreement in full. The Wales Bill, when introduced, will reflect the outcomes of St David’s Day.”

He goes on to claim that the Bill reflects the outcomes of the St. David’s Day process (SDDP) in order to give it cross-party legitimacy, as if it were just a natural follow-on from the talks. This is sophistry. The SDDP agreed a move to the reserved powers model, and some modest additions to devolution. In the subsequent drafting of the reserved powers model, the UK Government has actually reduced the capability of the National Assembly to legislate freely in devolved areas. Nobody agreed to this. It is a deception to suggest that they did. Further, by suggesting that implementing the SDDP in full was a manifesto commitment, he seeks to attribute a fictional General Election mandate to his actions. This is sophistry. Nowhere in his manifesto did he say he would reduce the competency of the National Assembly. Nobody voted for this policy. Quite the opposite, they voted to ‘strengthen’ devolution.

“The new reserved powers model provides the clarity the current model lacks. It lists the subjects which are reserved to the UK level. The Assembly can legislate in all other areas and in relation to subjects that are excepted from those reservations. It provides a clear boundary between reserved and devolved subjects. The Assembly will continue to legislate in devolved areas as it does now. The consent of UK Government Ministers would be needed if the Assembly wished to place functions on reserved bodies.”

Mr. Crabb claims that because there are now 'rules', there is now clarity. This is a purposefully disingenuous argument. There is a clear rule, for example, that Welsh legislation which seeks to change the civil and criminal law needs to be “necessary”, but it is utterly impossible to make a judgement about what is ‘necessary’ in advance, as it is a wholly relative and subjective term. Potentially every piece of Welsh legislation which seeks to change the civil and criminal law will go through the courts, either at the behest of the UK Government or the behest of individuals unhappy with one outcome or another. In effect, the Bill is the antithesis of clarity.

“The Assembly will need the consent of UK Ministers to legislate about reserved bodies. It is surely right that UK Ministers consent when an Assembly Bill imposes functions on reserved bodies, just as Assembly consent is obtained when Parliament legislates in devolved areas.”

Mr. Crabb claims that it is reasonable that the National Assembly should seek the consent of the UK Government to “impose functions on reserved bodies” because the UK Government obtains the consent of the National Assembly to legislate in “devolved areas”. The language is really important here and the deceit is clever and intended. But the two constitutional scenarios he highlights are not the same thing; they are not the same argument. One is about devolved Welsh policy and legislation being properly implemented by bodies (which as a consequence of incomplete devolution in 1999) still technically ‘report into’ UK ministers, and the other is when Westminster seeks to legislate in policy areas that have been duly and properly devolved to Wales. He is conflating ‘executive action’ with ‘policy and legislative ownership’ and is suggesting that there is some established principle here that is currently being transgressed, and needs to be rectified.  This is sophistry.

“Some have argued that the new model rolls back on the result of the 2011 referendum. That referendum gave voice to the vast majority of people in Wales who wanted the Assembly to gain its full law-making powers - legislative competence in all twenty areas devolved to the Assembly under the Government of Wales Act 2006. The Assembly will continue to exercise legislative competence in devolved areas under the new model. I utterly refute the suggestion that the draft Bill somehow cuts across the result of the 2011 referendum.”

He claims that because the Assembly will still be able to legislate in the same 20 areas that the Government of Wales Act provided for, his Bill is not “cutting across” the 2011 referendum. This is a partial argument, in that by withholding other important information you are able, at least on the surface, to make a logical case. However, he fails to mention that the Bill significantly restricts the way in which the Assembly can legislate in those 20 areas, the circumstances, degree and extent that it can take action freely and unhindered. Nobody campaigned in the 2011 referendum for the Assembly to be able to legislate in those 20 areas... **subject to a whole series of invisible conditions that would be imposed on it 5 years later. Of course the Bill cuts across the referendum result of 2011. It slices it into tiny pieces and throws it in the dustbin.

“The Assembly will continue to be able to enforce its legislation by modifying the private law and criminal law, in the same way as it does now. The model recognises that the Assembly has a legitimate need to modify the law in respect of devolved matters in order to give full and proper effect to its legislation. It will continue, for example, to be able to create offences and impose penalties to enforce the laws that it makes. // The Assembly will continue to have the flexibility to be able to make “ancillary” provision in relation to England and to modify the law on reserved matters. The model acknowledges that the Assembly needs the flexibility to legislate outside devolved areas of competence to make laws within devolved competence work effectively. The Bill allows the Assembly to do so by making “ancillary” provision. A provision is ancillary to another provision if it provides for the enforcement of the other provision; is otherwise appropriate for making it effective; or is otherwise incidental to, or consequential on, that provision. // The no greater effect than necessary test is designed to address occasions where the Assembly seeks to enforce its laws by legislating in relation to England, the law on reserved matters and the general principles of private law and criminal law. The model enables the Assembly to modify the general principles of the private law and criminal law if that is needed to give effect to its laws. But we do not want to see those modifications lead to significant divergence in the fundamental legal landscape of England and Wales. Any modification of private law and criminal law should be proportionate to the devolved provision the Assembly is seeking to enforce. It is subject therefore to the no greater effect than necessary test: any modification must have no greater effect on the general application of the private law and criminal law must than is necessary to give effect to the devolved provision.”

These are the most honest statements in the evidence. All of the restrictions are there to ultimately prevent the law in Wales differing ‘too much’ from the law in England, presumably because 1) that makes a single England and Wales legal jurisdiction less tenable in the long-term and 2) (though not openly stated) ‘difference’ in itself is considered a negative thing to be avoided. The lack of honesty in these statements comes from the fact that these political arguments have never been made, no mandate for these policies was ever sought or gained at an Assembly or General Election, and the GOWA 2006 and the referendum campaign was fought and won on entirely the opposite basis (‘laws affecting Wales should be made in Wales’). Conservatives might want to undo this principle and this result, but they have no mandate whatsoever to do it, and they are not even principled enough to admit that that is exactly what they are doing – rolling back the constitutional settlement of Wales to its pre-2006 position and re-writing it in their image.

“The test also applies when the Assembly enforces its laws by legislating in relation to England and where it modifies the law on reserved matters. We believe it is reasonable to set a limit on the extent to which the Assembly can legislate beyond Wales or change the law on reserved matters. The test has operated with no difficulty as part of the reserved powers model in Scotland since the start of devolution.”

Mr. Crabb claims that these tests have worked perfectly well in Scotland, and that by extension, they are legitimate for Wales. This is sophistry of the worst kind. It is actually disgraceful. The test works in Scotland because practically everything is devolved in Scotland and the Scottish Government would rarely need or want to legislate on ‘reserved’ matters. It is a test that has such narrow application in Scotland that it is almost irrelevant. On the basis of Mr. Crabb’s draft Bill, the opposite would be true in Wales. Vast areas of policy and executive action would remain reserved (including the law itself), and so the tests would have extensive application. They would be called upon on almost every occasion. The comparison with Scotland is utterly inappropriate. In fact it is shameful that the Wales Office have even insulted us with its inclusion.

“I want a devolution settlement for Wales that is built to last. The draft Bill provides the foundation for a strong, robust settlement with a clear boundary between the powers that are devolved and those that are reserved. It will make devolution work better and give the Assembly and the Welsh Government a sharper focus on the job they have to do.”

In fairness to Mr. Crabb, there is a tiny glint of honesty in the closing paragraph of his evidence, though I suspect he did not mean to reveal his inner motivations in such a way. He claims that his Bill will bring a “sharper focus” to the job the National Assembly for Wales and the Welsh Government should be doing. Well, yes it will, as currently drafted. Whenever you remove competencies from somebody, you reduce the total amount of things they will be doing. By definition, if they continue to invest the same energy, they will give a sharper focus to the remaining tasks. And therein lies Mr. Crabb’s motivation, policy and legislative proposal: a radical decrease in the powers and responsibilities of Welsh National institutions, displacing power and authority back to London, probably (and this is obviously speculation) because he’d like us all to be much more focused on the little things like attracting tourists to Snowdonia and counting sheep in Carmarthen.

Personally, I have no problem in principle with someone arguing this position, but I do have a major problem with a Minister of the Crown and his civil servants actually implementing this policy against all democratic principle whilst using rhetorical sleight of hand, sophistry and obfuscation to give the impression that they are doing the opposite.