“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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