Friday, 25 September 2015

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.