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.

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