Mr Crabb, his Wales Bill and dodging the real questions

It is fascinating, and rather telling, that since launching his draft Wales Bill last week (‘a final constitutional settlement for Wales’), Stephen Crabb has not once taken the opportunity, whether in press releases or in speeches, to passionately outline its virtues in detail, highlight where it transfers the all-important new powers to the Welsh Assembly which will conclusively reverse economic decline or improve public services, spell out how its structure and provisions bring much needed clarity and simplicity to the legislative system, systematically demonstrate (counter to all contrary accusations) that it does not reduce the competence of the Assembly but actually increases it, and conclude (in a flourish) with a clarion call to the faithful that this is indeed the Wales Bill to end “constitutional obsession” for a generation.

No, he has done none of these things. The bill, its specific provisions, its envisioned processes and systems, its long-term implications, its vision for a well-functioning Welsh democracy, have hardly been mentioned at all. It has neither been aggressively promoted nor aggressively defended. It has simply been shoved into the darker recesses of the Wales Office press team’s ‘U-drive’ (they’re always U-drives aren’t they?). That is, of course, because the more attention the actual provisions of the bill get, the more obvious it becomes that it is an exercise in deceitful regression, a bill designed (pre-meditatively) to reverse Welsh devolution at the same time as being presented as deepening, clarifying and finalising it. That’s too much for even the brass-richest of un-reformed Conservative centralist necks to defend in the (admittedly tame) cockpit of Welsh political debate.

Credit where it’s due though, Mr Crabb and his advisors are smart enough to know that you can’t have your cake and eat it. You can’t launch a completely new constitution for Wales and simply not talk about it; whistle, as it were, and hope that the public and media will buy a pig in a poke on face value. So what do you do? You don’t want to talk about the bill itself and you don’t want to answer specific, authoritative criticisms and questions directly. You know you will lose. You also know you will look sly or stupid.

So you turn to that age-old rhetorical strategy of pre-emptive, aggressive diversion. You will aggressively ‘occupy’ the public forum on your own terms for as long as is needed, at least until the opposition tires or neutrals and the uninformed credit you by default with ‘authority to conclude’. Hence, you accuse your critics of displaying unreasonable, irrational and emotional reactions whether they do or they don’t (it’s impossible to prove or disprove). You falsely, but subtly, conflate non-related arguments with the one you want to put forward (it takes a long time to untangle conflated arguments). You exaggerate unproven or minor consequences of ‘not agreeing with me’ and present them as important or even existential (material/financial ‘risks’ always command disproportionate attention until they are proven or disproven). You make claims of reasoned truth whilst knowingly omitting key facts that would actually undermine your own argument (calculus provides answers based on the factors used not on the factors available).

If you are bright, have a lot of stamina, and the media and your opposition is either weak or disinterested, you can sustain this diversion for as long as you want. You may never have to openly or honestly answer the questions you were originally presented with, questions, in this case (and I take the liberty of paraphrasing a myriad of critical sources), such as: ‘If the Silk Commission presented a potentially enduring ‘devolved’ constitutional settlement for Wales, in what way does this bill realise that vision?’ ‘If it doesn’t realise that vision, why, and what is the alternative vision?’ ‘Legal and academic authorities claim that this Wales Bill reverses devolution in Wales vis-à-vis the GoWA 2006. Does it, and if so why?’ ‘What referendum, manifesto or electoral mandate entitles you to reverse the constitutional settlement established by the referendum of 2011?’ ‘If you believe it doesn’t reverse that settlement, what legal advice has been provided to defend that claim?’

These are just some of the very basic but crucial questions Mr Crabb has been successfully avoiding for a week with elementary rhetorical diversion and obfuscation techniques about “nationalist lawyers and academics”, “emotional reactions” and “economic impacts”. But as I said, if the media or your opposition is either weak or disinterested…

Sleight of Hand and Welsh Resistance: the WGC/ICCU Report and the draft Wales Bill

The publication of the Wales Governance Centre (WGC) and the Constitution Unit at University College London (ICCU)'s report into the UK Government's initial proposals for a reserved powers model for Wales was an important event yesterday. Whilst casual observers, bloggers and political actors have voiced concerns over the last few months, the report's specialist authors explained line by line, and legal concept by legal concept, just how regressive and complicated the Command Paper proposals are. The panel of experts were clear: the current proposals take Welsh devolution backwards, and they make it more confusing not less.


John Dixon has written intelligently on the issue this morning in Borthlas, and I generally endorse his overall reading of the situation. It is clear to me that the proposed Wales Bill has nothing to do with 'clarifying', 'improving' or 'deepening' Welsh devolution at all, and it never did. Whitehall and centralists in the Conservative Party had a Damascene conversion to a 'reserved powers' model the minute the Supreme Court ruled on the Agricultural Sector (Wales) Bill and the full extent of the National Assembly's conferred legislative competence under the Government of Wales Act 2006 (GWA) was confirmed (particularly in relation to Civil and Criminal Law). Going forward, the only way to limit that quite extensive competence would be to amend the GWA regressively (a very public and contentious process) or introduce an entirely new legislative vehicle which was more restrictive from the outset but expressed in a different way. Since this could be done under the rhetorical umbrella of reform and improvement spearheaded by Silk, and since it would take specialist lawyers (and not lay people or even politicians) to understand the nuances of the differences between the old and the new systems, the latter was seen as the most politically expedient option.


There is no way to gild the lily about this I'm afraid: the legislative competence of the National Assembly for Wales was to be delimited by sleight of hand. The Command Paper simply revealed the miscreants’ plans, and the Wales Office's refusal to even engage with the arguments of the WGC/ICCU's paper yesterday, saw them bolt for the hills in fear of arrest.


The one thing I disagree with John Dixon about, however, is his belief that there will be little resistance to this attempted ruse in the Welsh political game. Firstly, I find it inconceivable that the Welsh Government and the new Welsh polity (in the widest sense of the word) will be content to cede the competence, power and influence that it has accrued over the last 16 years. Polities can certainly be nervous and reluctant to take on new responsibilities, but they are rarely keen on losing existing ones. This extends beyond elected politicians and civil servants to the web of interests that have access to decision-makers through civil society, business representation, local government, and others. A network of several thousand movers and shakers in Wales have seen their power and influence increase substantially over the last 4 years as a result of extensive legislative competence, and a diminution in the power of the Assembly will simply result in a diminution of power for these individuals. Turkeys don't vote for Christmas in politics and economics.


Secondly, it is hard to conceive that Stephen Crabb could carry (say) two thirds of his Conservative Assembly Members in support of such a regressive move, never mind a majority in the Assembly as a whole. Even in their wildest dreams, the Tories do not expect to win a majority in the Assembly elections next May (even with UKIP support) and the rest of the Assembly will simply not consent to the Wales Bill if it degrades its competence rather than increases it or legitimately recasts the status quo in a different form.


In those circumstances, and bearing in mind that the GWA 2006 settlement was instituted following a convincing referendum victory only 4 years ago, and that the Conservative Party had no manifesto commitment whatsoever to REDUCE the competency of the Welsh Assembly at this year’s general election, it is inconceivable that the House of Lords would pass the Bill at Second Reading (even accepting that the Tories could carry a Common's majority). The UK Government would then be faced with a constitutional crisis that, frankly, was unnecessary and rather capricious in the context of Scotland, the European Union referendum, potential military action in Syria, and any number of domestic mid-term distractions involving initiation ceremonies and not-so private 'cocktail' parties. Some mandarins and Conservative unitarians may be in denial about the realities of GWA 2006, and they may wish to undo history and turn the devolution clock back, but do they want to add to their already substantial 'to fire-fight' list in the process?


For all of these reasons I find it hard to believe that Mr Crabb will bring forward a draft Wales Bill on the lines of the Command Paper. It was a sloppy attempt at under-hand political gamesmanship and it has been outed and thoroughly discredited by partisan and objective commentator alike. He may still attempt to reduce the power of the Assembly in a less brazen way, and I have no doubt that large areas of competence which are perhaps more 'contended' within the GWA 2006 settlement (in the abstract), will be reserved by default. Likewise, no substantive move will be conceded on legal jurisdiction, the Criminal Justice System in general or other elements of Silk that the Conservatives have simply rejected on policy terms.


This will be a proposed reserved powers model full to the brim of reservations and restrictions, and it will only be the beginning of the debate not the end of it. If Whitehall can temper its hubris, and heed some of the WGC/ICCU’s guidance, it is conceivable that the proposed new model will be 'clearer' than the current one, but it is highly unlikely to be effective or 'full and final' as defined by moderate consensus in Wales, and it may even be regressive at the margins if the UK Government simply refuses to apply the principle of subsidiarity, implicit in the Scottish and Northern Irish settlements, in Wales.


What is clear is that the further along the competency continuum from the Command Paper (reduction) to the Silk Report (increase) that Mr Crabb is prepared to travel, the greater the likelihood of support from devolutionists in his own party will be, the more likely he will be to secure the formal consent of the Welsh Government and National Assembly via an LCO motion, the wider the support in civil society and the legal community in particular will be, the greater the prospect of a trouble-free passage through the House of Lords will be, and the more plausible his hopes of a legacy of bringing 'clarity' and 'finality' to the devolution process in Wales will be. If he is intransigent or mischievous, any one of these interest groups, or all of them in concert, could de-rail the process, resulting in a damp squib (at best) or a constitutional crisis the likes of which Wales has not seen before.


The tone of the Wales Office’s rhetoric yesterday did not bode well, and perhaps they simply disagree with my forecast of widespread Welsh resistance or dismiss the influence of academics and lawyers such as the WGC/ICCU panel. Only time will tell who is right.

The ‘Racist Nationalist’ in Wales as Bogeyman, Simon Brooks (2006)

[Originally published on 'Ffawtliniau Disgyrsiol']

This morning I have been re-reading Simon Brooks 2006 article, ‘The Idioms of Race: The ‘Racist Nationalist’ in Wales as Bogeyman’ in The Idiom of Dissent: protest and propaganda in Wales (R. Chapman, ed.). In this extremely interesting article Brooks describes how the idiom ‘racist nationalist/language activist’ was created and sustained within Welsh political discourse in the period 1999-2003. There isn’t an awful lot of evidence that such a person ever existed in the language and national movements, according to Brooks, and the idiom was, ultimately, a political strategem of the Labour Party and a rhetorical ruse by the tabloid press. Furthermore, the roots of this phenomenon can be traced to the 1940s and Labour accusations that Plaid Cymru had Nazi sympathies and the anti-devolution campaigns by some Unionist Labour Party members in the 1970s. What we see here is a discursive invention, according to Brooks, an invention which can survive and flourish because of an anti-Welsh (language) and anti-nationalist press, together with an academy (particularly within the political sciences and sociology) which does not sufficiently consult original Welsh-language sources. The whole article is worth a read, but here’s the finale to be going with:

“It is more sensible to view the ‘racist-nationalist’ bogeyman as a preconceived idiom, constructed in response to a perceived political crisis in Unionist ranks – that of the nationalist breakthrough in the South Wales valleys in the 1999 first Assembly elections. In January 2001, Seimon Glyn strayed into the Labour Party’s field of vision, and became the dubious example on whom that party would build its case. Electorally, the Labour Party’s strategy was successful. The second Assembly elections of 2003 saw a significant fall off in support for Plaid Cymru. There was rancour within the national movement between those who wished to respond to the Seimon Glyn affair by passing by, and those, like Cymuned, who wished to challenge the ‘racist-nationalist’ narrative and expose it as myth.


To be branded as racist is to have one’s discourse delegitimized. It is to be silenced, indeed to be denied the right to speak. For any community such a situation is intolerable; for a minority community, it is particularly so. To leave the ‘racist-nationalist’ idiom intact and unchallenged is to handicap, perhaps fatally, language activism as a serious lobby in Welsh politics. If the advocates of a minority-language community are judged to be racist, their opinions will be removed from public discourse and their cause dismissed from the political agenda.


A preliminary task for those who wish to reverse the situation is to understand better how the ‘racist-nationalist’ bogeyman myth was constructed. This idiom has been with us since the 1930s, poisoning Welsh political and cultural life. It is hard to see how the future of the Welsh language can be constructively and openly debated until its bluff is called.”


Brooks, Simon, ‘The Idioms of Race: the ‘Racist Nationalist’ in Wales as Bogeyman’, yn Chapman, R. (gol.), The Idiom of Dissent: protest and propaganda in Wales (Llandysul: Gomer, 2006), 139-165

Protecting Welsh Place-Names: Discursive, Ethical and Regulatory Norms

National Assembly committees rarely get to consider questions of philosophical or theoretical interest while scrutinizing legislation, but the Communities, Equality and Local Government Committee had such an opportunity on Thursday last week.  

They were taking evidence on the Historic Environment (Wales) Bill currently going through the National Assembly under the sponsorship of Deputy Minister, Ken Skates. I am not particularly well acquainted with the finer details of the bill, but as far as I am aware it seeks to strengthen and reform the protection regime for historic buildings and monuments in Wales, and by all accounts it has broad support from the heritage sector and other interested parties: ‘fine insofar as it goes’ was the conclusion of the first witness, Dr Charles Mynors, a barrister specialising in the field.

But it was the second session which was of much greater interest to this saloon-bar philosopher as Dr Rhian Parry of Cymdeithas Enwau Lleoedd Cymru (the Welsh Place-Name Society) pressed the case for Welsh place-names (of farms, cottages, fields, landmarks, etc.) to be included within the provisions of the Bill and thereby gain the same protection as standing stones, medieval field systems or Victorian pitheads.

She carefully articulated the argument that place-names provide unique insights into our human and natural history, insights that are often not available in the archaeology or in manuscripts. She drew the committee’s attention to their intrinsic beauty, their ‘naturally’ derived communal and collective meaning, and their linguistic variety, citing examples of ancient Welsh, English, Scandinavian and Norman-French names. She also reminded the committee that place-names currently enjoy no protection in law and are under continued attack as an increasing number of new owners choose to give their properties new names.

Questioned by Alun Davies on the scale of the problem, she reeled off a litany of recent changes to farms and cottages in Ceredigion and Carmarthenshire:  ‘Happy Donkey Hill’ for ‘Faerdre’, ‘Stallion Valley’ for ‘Cwm March’ and ‘Emerald Valley’ for ‘Cefn Bryn Sarth’. She had hundreds of examples if the committee wanted them.

Committee members were largely sympathetic towards Dr Parry’s argument, perhaps unsurprisingly, as it would take a particularly insensitive kind of philistine not to be moved by the loss of a thousand year-old name referring to the demesne holding of the local lord’s ‘maer biswail’, or ‘dung bailiff’ (Faerdre < Maerdref) and its replacement by a name referring to a bunch of Shrek-like, grinning, asses.

But what to do about it in law they questioned? To what extent can the state intervene to protect not only the ‘physical’ artefacts of our history but also the ‘intangible’, cultural artefacts too? To what extent can the state intervene over the names of ‘public’ spaces such as housing developments, streets and shopping centres, but also over the name of an individual’s home or business?

“What right do we have?”, “How should we legislate?” beseeched member after member, rather forlornly, as they struggled with the age-old dilemma of whether to retreat into a deterministic view of society where the material world inevitably changes over time and the state has no place intervening, or taking an idealised notion of society where social, religious, linguistic or cultural constructs are ‘real’, can have intrinsic value, and the state can have a legitimate duty to preserve or protect them. But even if members had rejected a wholly deterministic view of the world (as most politicians do), should they privilege one cultural construct (the value of a living language for example) over another (the idea of ‘liberty’)?

I sympathised with our legislators as they tried to tackle these perennial questions as it is inevitable that as one ventures beyond the bounds of an empirically determined world-view and crosses into an idealised one, it becomes increasingly difficult  to ‘calculate’ an objectively ‘true’ answer every time. ‘In for an idealized penny, in for an idealized pound’, so to speak. Once you accept that the antiquity of an earthen mound is in itself sufficient grounds for the state to curtail the liberty of a farmer to bulldoze it, you have to at least recognize the intellectual argument that the antiquity of a name is equally deserving of protection. All is relative, all is cultural, in the difficult world of ideas.

But I would offer them one crumb of comfort if they cannot reconcile the apparent ‘weight’ of such entrenched ideas as ‘liberty’ with the apparent ‘lightness’ of others such as the protection of a Welsh place-name. The discursive framework within which they think and speak, and which regulates the importance of one category over another and which gives the ‘heavy/light’ differentiation above its apparent ‘authority’, is in itself a cultural construct. It happens to be the Brito-Welsh, English-language, liberal-utilitarian, largely secular political discourse of the Westminster tradition, but it is very definitely cultural (that is specific to a time and place) and a construct (achieving coherence only in the minds of the men and women who share it and is not prior to, or external to, the individual).  

Our instinctive nervousness about curtailing the liberty of a small group of people in the interests of an ‘intangible’ language is not, therefore, a nervousness about contravening some sacred universal right (‘everyone should be able to call their house anything they like, at any time, in any place’ – a right which can be disproved very quickly), it is a nervousness about contravening a long-established Brito-Welsh discursive norm (‘the Welsh language is not normally important enough to curtail the liberty of an individual in Wales – you better have a bloody good reason’).

In a different cultural context and under different discursive rules, it may be perfectly acceptable to say that a language is important enough to curtail the liberty of an individual of course. In Catalonia perhaps? In the Basque Country? In a school classroom in Bradford? In the Palace of Westminster maybe, where even now members are prohibited from speaking any other language except English and Norman French? The ‘you better have a bloody good reason’ Brito-Welsh norm is not intrinsically ‘right’ therefore, it is just the currently ‘authorised’ norm.

But of course, our Brito-Welsh discourse authorises the state to intervene in the affairs of an individual across a whole range of other matters from what we build on our properties and how we build it, how we look after our animals, how we manage our money, whether we choose to keep firearms or explosives or chemicals in our homes, what we can say on blogs about other people, what we can ‘think’ in relation to certain emerging theocracies in the Middle East, even when we can take our own lives or not. It is not a question of whether the state curtails liberty or not, it is a question of in whose or in what’s interest it is done. It is currently acceptable to curtail an individual’s liberty to protect a rare Welsh flower, for example, but not a rare Welsh place-name.

If our Assembly Members are at least tempted to explore some sort of protection regime they can take some comfort from the fact that the state usually curtails liberty in a proportionate and moderate way, with checks and balances to ensure that the ‘good’ which is being achieved is not at the expense of patent (or widespread) injustice or cruelty. And in any case, we normally internalise and normalize a curtailment of our freedoms very quickly and become largely complicit in our own ‘enslavement’ as Gramsci would argue. Indeed, a shift in the discursive norm is not actually that unusual (remember the golden years before seatbelt laws?), and what was yesterday’s freedom can very quickly become today’s social faux pas.

To that extent, if the members of the Communities, Equality and Local Government Committee are currently troubled by the prospect of introducing legislation that prohibits an individual changing the ancient Welsh name of their farm, cottage or field without consent, they might profit from considering the following simple questions:

Why preserve anything at all? Why not let the material world follow its deterministic path subject only to the natural law?

If we are to preserve things, why is a 1960s bus terminal in Merthyr worthy of more protection than an ancient Welsh place-name in Ceredigion?

If we are to protect place-names, why would a protection regime be any less proportionate, transparent and fair than a protection regime for buildings, wild flowers or endangered animals?

If we were to have a protection regime, why would Welsh citizens be less accepting of its rationale and provisions after the usual period of normalization?

If members still struggle after considering these questions, but are still keen to understand why they can’t take the final step, then I’m afraid they’ll have to look deeper into their own discursive make-up and think about which locus of authority constituted their political values and in whose interest. Most importantly of all, they need to ask if that authority is still relevant in a 21^st-century Wales capable of authorising its own discursive, ethical and regulatory norms.

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.