Reserved Powers: Wait and See or Full-Frontal Attack?

I don’t know if Welsh TV and newspaper editors read Pedryn Drycin last week, but press attention on the debate over the Wales Bill, ‘reserved powers’ and the possibility of conflict between Whitehall and Cardiff Bay increased significantly yesterday in anticipation of the Constitutional and Legal Affairs Committee’s second evidence-taking session on the question, a session which saw the First Minister and the Presiding Officer questioned by Assembly Members David Melding, Alun Davies, Suzy Davies and Dafydd Elis-Thomas.

The Presiding Officer’s three ‘success criteria’ for the Wales Bill of ‘clarity, practicality and no roll-back’ got some press attention, but it is the session with the First Minister that is of most interest to keen observers of Cardiff Bay/Whitehall manoeuvring. Regarding additional powers for the Assembly, the First Minister said nothing that he has not said already over the last few months. He reiterated that the ‘St. David’s Day Agreement’ was not an agreement at all, and that its modest, lowest-common-denominator, proposals did not represent a “lasting settlement” for Wales. He restated that full implementation of Silk II, along with additional powers that have recently been conceded to Scotland such as Air Passenger Duty, represented the “minimum” that the Wales Bill should be delivering, and that whilst devolution of the Welsh justice system was not necessarily an immediate priority, it was inevitable in the medium term. ‘Steady as she goes’ in that respect really.

What Carwyn Jones did articulate quite explicitly for the first time yesterday was his ‘rejection’ of the specific list of reservations which had been appended to the UK Government’s Command Paper, explaining (as I argued last week) that some of them would render the Assembly less powerful than it had been when it was instituted in 1999. He called it a “wish list” that had probably been put together in a round-robin of Whitehall departments, suggesting (rather generously in my opinion) that the UK Government (and by that I suppose he means David Cameron and senior Cabinet colleagues) did not necessarily agree with their officials. Notwithstanding, proposing to reserve the ‘civil’ and ‘criminal’ law in their entirety to Westminster (which is what the Command Paper does) would be a theoretical, technical and practical absurdity, and the First Minister was rightly dismissive of giving it even passing consideration.

Whilst the First Minister was not as generous as the Presiding Officer in saying that the Command Paper appendix was a “good start”, they both concluded that there was nothing to do but "wait and see" how the Wales Bill is drafted over the summer, and then respond on an inter-governmental basis in the case of the Welsh Government, and in the form of a committee-led report and plenary-backed motion in the case of the Assembly. ‘You show your hand first Mr Crabb’, as it were, ‘and then we’ll show ours’, whilst raising an eyebrow and cocking one’s head to indicate that the Wales Office is probably a long way off the mark at the moment…

But perhaps the most interesting exchange of the session was that of the First Minister with Alun Davies, a Labour member whose personal misfortune at having lost his seat in the Cabinet has, for objective observers, greatly enhanced the quality of debate on the back benches and on Assembly committees. Mr Davies seemed, as he seemed in the previous session, frustrated that ‘we’ (and by ‘we’ I mean that group of cross-party pro-devolution unionists to which Mr Davies belongs) all seem clear on the objective (an enduring system of domestic ‘home rule’ for Wales within some form of UK federation), but cannot simply spell it out, say once and for all what functions, powers and responsibilities should be exclusive to Wales and which should be reserved to the UK.

I can’t be certain, but I suspect that Mr Davies’s frustration is due to the fact that he believes that the intellectual argument for an expansive vision of self-government is very strong and can be won quite easily at the moment, that the UK Government simply needs to be told what the ‘end point’ for unionist Welsh home-rulers is and that they will concede it, given what’s at stake in Scotland and Europe, and how badly they will need allies in the coming years. He gently pressed the First Minister to share that vision with the committee on several occasions. “What are the powers […] that will lead to a lasting settlement?” etc., etc. “Not those on offer” was the First Minister’s reply, as he repeatedly declined to spell out the constitutional specifics of a ‘home-ruled’ Wales.

In fairness to Carwyn Jones, it might just be political hara-kiri to spell out your ultimate objective when you don’t have the power to deliver it (I’m no strategist), and he and his supporters may have already concluded that they are not going to achieve their goal at the first attempt. If ‘full and final’ settlement is at play, and you are not that sure of victory, you don’t attack the enemy with everything that you have got on the first charge.

So it is to be ‘wait and see’ rather than a full frontal attack then, an ambush in the hills rather than a set-piece battle on the plains. All very Welsh of course, but perhaps like Mr Davies, I’d rather hoped we’d moved on from the fear and caution of medieval Wales, that as a modern-day collective we could quietly and calmly agree our objectives, form a powerful coalition of the willing, and go out and achieve victory. Not for the moment it seems.

The full meeting can be viewed here.

Reserved Powers, Constitutional Crisis and the C&LA Committee

When the UK Government published its Command Paper, ‘Powers for a Purpose: Towards a Lasting Devolution Settlement for Wales’, in February this year, I immediately took to social media to voice my suspicions that Whitehall’s new commitment to a ‘reserved powers model’ for Wales was nothing more than a ruse to claw back legislative competence from the Welsh Assembly.

Having studied the UK Government’s original submission to the Silk Commission back in March 2013 where they argued that no fundamental changes were required to the Welsh devolution settlement, it seemed extraordinary to me that they should now be proposing a wholesale change to the entire legal basis of the settlement, essentially along the much more ‘generous’ lines of the Scottish model, and ostensibly in the name of ‘clarity’.

What could have happened in the interim to bring about this Damascene conversion? Had Whitehall suddenly become obsessed with constitutional exactitude? Was Stephen Crabb, the ever-smiling new Secretary of State for Wales, able to charm the socks off gruff old Whitehall mandarins and persuade them that Wales was on the cusp of bloody insurrection if it could not have exactly what Scotland has?

Nothing of the sort. The July 9th 2014 Supreme Court ruling on the Welsh Government’s Agricultural Wages (Wales) Bill is what happened in the interim. This ruling, on a rather dull and peripheral piece of agriculture/employment legislation, essentially interpreted Wales’s current ‘conferred powers’ model at its widest application, ruling vast areas of law to be potentially within competence of the National Assembly for Wales, areas that the UK Government had previously considered to be safely reserved to Westminster, and areas that in some cases are not even devolved to the Scottish Parliament.

Rather than adopting the politically difficult (and highly visible) policy of stripping Wales of competences that it already has by amending the 2006 Government of Wales Act, far easier, is it not, to rip it up, start again and redraft a narrower settlement from the beginning? Since the oiks in Cardiff Bay are already calling for a reserved powers model, and they’re not that bright on the whole, why not just give them what they want whilst dropping in a whole bunch of fail-safe reservations? Nobody will notice, everything will go back to normal, and Wales won’t even have realised that it actually had a proper parliament between 2011 and 2016. Sorted…

I smelt a rat straight away, and so did a few others, though not of course the ‘Welsh’ media who were probably distracted by more important matters at the time such as Kate Middleton’s new dress, Sam Warburton’s view on the latest iPhone or the 25 bumpiest roads in Wales. In fairness to a few AMs, the matter has been raised at FMQs on a number of occasions, and I’ve no doubt that the Welsh Government is privately preparing for a major confrontation (one glance at Annexes B and C of the Command Paper – suggested areas for reservation – shows the extent of the UK Government’s ambition to circumscribe the competence of the National Assembly right back to the real basics). If Whitehall tries it on, and the Assembly refuses to give consent for the Bill, there is the potential for a real constitutional crisis in Wales, and as yet not many people are talking about it.

It is to be welcomed, therefore, that the Assembly’s Constitutional and Legislative Affairs Committee under the chairmanship of David Melding has started gathering evidence on the UK Government’s proposals. Yesterday they took evidence from Professor Thomas Glyn Watkin, Emyr Lewis of Blake Morgan LLP and Professor Adam Tomkins of Glasgow University, all of whom expressed concerns that the process could be hijacked by Whitehall to limit or obfuscate the power of the Assembly rather than enhance it or make it clearer, and that a ‘reserved powers model’ of and in itself was no guarantee of legislative ‘elbow room’ or clarity. “Everything depends on the reservations” was the very strong message emerging from the meeting, and in a fascinating and wide-ranging discussion which also took in considerations of sovereignty, ‘permanence’ and the Sewel Convention, all were of the opinion that the current process represents both an opportunity and a risk to Wales.

The draft Wales Bill that will be published by the UK Government in the autumn has the potential to be a genuinely transformative piece of legislation for Wales, even before considering whether currently ‘out-of-favour’ Silk II proposals such as police and aspects of justice are reintroduced or not. But it also has the potential to trigger a major constitutional crisis of a sort not seen before in Wales if the UK Government tries to manipulate the settlement by sleight of hand. The resolve of the new Welsh polity and its attendant civil society to protect its hard-won ‘freedoms’ has never been tested in anger before, but with Whitehall having bigger European and Scottish fish to fry, I’m not sure that Cardiff has got anything to lose by standing its ground and taking it all the way if necessary.

It is telling, but perhaps not unsurprising, that Professor Tomkins (a scholar on Scottish constitutional matters) made the most insightful comment of yesterday’s session in my opinion. As David Cameron desperately seeks to put an end to the 20-year ‘constitutional question’ and establish his legacy as ‘the Prime Minister who saved the Union and reinvented the UK’, Wales finds itself in a position of tremendous “leverage”. Welsh politicians who choose to help Mr Cameron realise this legacy will get pretty much anything they ask for at the moment in Professor Tomkins’ opinion. Rather than fighting a rear-guard action to cling on to powers that we already have, shouldn’t our leaders be ‘in the faces’ of Messrs Cameron and Osborne demanding much, much more? Silk II in its entirety for example? Home Rule perhaps?

The entire meeting can be watched here

The UK Government’s Command Paper can be read here

Theodore Huckle and “our aspiration for the devolution of justice”

I always listen very carefully to what the Counsel General, Theodore Huckle, has to say. He is by all accounts very close to Carwyn Jones, is at the heart of internal Welsh Government discussions about the evolving Welsh constitutional settlement, and as a law officer, has a refreshingly direct and ‘unspun’ approach to the constitutional issues of the day. He never says anything that goes beyond his brief or the scope of his office, but neither does he evade questions or seek to artificially limit the information he provides to Assembly Members or the public on matters that are within his remit.

Mr Huckle gave a speech to the Law Society Wales Summer Reception last Wednesday. The majority of the speech focused on how the rule of law should be enhanced by ensuring better access to it, and in particular, the duty that ambition places on Welsh lawmakers for clarity, certainty and wide availability of legislation. His stated support for consolidation statutes, codification in general and initiatives such as the one-stop legal commentary ‘Cyfraith Cymru Law Wales’, are to be welcomed by those of us who believe that a separate Welsh legal jurisdiction and justice system are not only inevitable in the medium term but highly desirable in the short. But this support is not new, and he has spoken about it many times in the past.

One paragraph of his speech does, however, hint at a change of rhetorical positioning of the Welsh Government vis-à-vis the devolution of Justice. Early in his speech he states:

“Responsibility for the justice system, including legal aid, currently sits with the UK Government and legislature. The Silk Commission recommended the devolution of justice matters, and we wait to see what will come of that. But whilst I agree fully with Lord Neuberger’s observation in his 2013 Tom Sargent Memorial Lecture that “without justice there is no rule of law” that does not mean we do not have responsibilities towards the rule of law even outwith our aspiration for the devolution of justice.”

This short passage suggests two very important elements of current thinking in the Welsh Government. Firstly, that they have not ruled out that Whitehall may still react positively to Silk II and the devolution of policing and the justice system (“we wait to see what will come of that”), and secondly, that the Welsh Government has now adopted a more a publically assertive position in support of judicial devolution (“our aspiration for the devolution of justice” – my italics).

Theodore Huckle does not speak out of turn, and whilst personal opinion on policy might be expected in a speech by an elected politician like Carwyn Jones, it is much less common in the discourse of a legal officer such as the Counsel General. Is it fair to speculate, therefore, that the Welsh Government now has an official policy of supporting the devolution of justice and that they are pressing that case with Whitehall as part of the new Wales Bill process? Has that support been elevated from the status of a personal opinion of the First Minister to that of Government policy which the Counsel General is now free to discuss on the floor of the Assembly? It’s a question our AMs might wish to pursue at the next CG Questions…

The whole speech is available from the Welsh Government website here in English and here in Welsh.

Waterloo, Whitehall, The One Show and Project (re)Britain(ize)

The British Government has certainly been putting in the overtime over the last few years to eke every last drop of nation-building elixir out of big events like the Olympics, the Jubilee, the Royal Wedding, royal births, WWI anniversaries, WWII anniversaries, the Falklands anniversaries, the Richard III commemorations, etc. You name it, it will have been blanket-covered by the state broadcasters and their stooges in Fleet Street, festooned with Union flags and lashings of Dunkirk spirit, images of smiling people and One Show vox pop platitudes, all carefully choreographed from some Whitehall office with a brass sign on the door saying ‘Project (re)Britain(ize)’.

This is only to be expected of a state apparatus which has known for some time that it is in real danger of imploding under the weight of its own contradictions and historically hard-coded iniquities, in danger of perhaps being reduced to some sort of leviathan London city-state no more significant on the world stage than Singapore or Dubai; just colder and rainier. Seriously, we shouldn’t be surprised and we can’t really blame them for trying to convince us that there really was a ‘great’ Britain once. State apparatuses only exist for one purpose, to protect and perpetuate the state and its apparatus, and since time immemorial they’ve been doing this by fair means or foul.

Now, you can be the judge of whether ‘proactive management’ (state co-opting) of ‘British’ historical anniversaries falls into the ‘fair’ category or ‘foul’. As far as I am concerned, they are an aggressive, cynical and manipulative insult to the intelligence and political maturity of the people they are designed to dupe. They are also, as it happens, effective only in polarising opinion, sending neatly corralled hordes of already convinced loyal Britishers into a frenzy of tearful patriotism whilst sending  otherwise moderate Brito-sceptics like myself (and 50% of Scotland) scrambling even faster for the ejector-seat button. None of this would matter were it not for the fact that occasionally a really interesting and important anniversary does come around such as the Battle of Waterloo (well, the Congress of Vienna really); historical events which really should be reviewed more frequently but which are largely neglected in the annual round of remembrances of more recent British ‘successes’.

To that extent, I’d love to think that Breakfast News, the One Show and the Daily Mail will have a probing discussion of Britain’s role in the restoration of despotic, monarchical rule across Europe in 1815, its collusion in the suppression  of the powerful new forces of radicalism and democracy which the French Revolution had unleashed across the continent (and to which even England would succumb 15 years later), and the unprecedented stampede for British overseas colonies which came about as a direct result of the defeat of her only serious naval rival and the acquisition of key French territories overseas; a stampede that would result in the hundred-year moral obscenity  that was the British Empire of course. Somehow, carefully guided by that pin-stripe-suited Sir Humphrey in Whitehall, I suspect our beloved media will probably lead with that hero of liberty John Bull giving the nasty big-nosed French dictator a good spanking, saving Europe at the same time and showing the world once more how things should be done, how ‘great’ Britain really is. The Union is safe in your hands Sir Humphrey, rest assured.