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?

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