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
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