Question Time, the Wales Bill and Messrs Cairns and Bebb

It will come as no great surprise to report that I am not a Conservative supporter, but it may surprise some that I certainly respect the integrity of many individual Conservative politicians and commentators, particularly here in Wales. It gives me no pleasure to say, therefore, that there is a sort of swaggering arrogance to much of the Conservative Party’s public discourse at the moment, both at a UK level and here in Wales too. It’s as if the General Election result of 2015, the referendum result, the ascent of Saint Theresa, the failure of the centrist Labour coup, the imminent disappearance of UKIP as a serious threat, the guaranteed propaganda support of 90% of Fleet Street and the equally guaranteed lack of proper scrutiny by a woefully compliant BBC, ITV and Sky (with the honourable exception of Channel 4 News), have all coalesced over the last year to embolden Tory MPs and lead them into thinking that they are now invincible, that they can do or say anything without recourse to democratic principle or criticism, that they are unimpeachable.

What is worse, however, is that they genuinely seem to believe their own propaganda. A MAJORITY of the UK population ALL want stricter immigration controls at the expense of free access to the Single Market it seems. EVERYONE who voted to leave the EU did so with a ‘hard’ Brexit alternative in mind. The devaluation of the Pound can have only POSITIVE effects. 36.9% of the vote at a general election is an OVERWHELMING MANDATE for neo-liberal reforms of English public services. A twelve seat majority in Parliament is a LANDSLIDE. And the fact that we have a completely new government that nobody at all has voted for taking the country in a radically different direction is apparently of TRIVIAL IMPORTANCE. It’s been said before, but we really are entering into the era of post-factual politics. If you repeat a lie enough times, people really do start to believe you.

Regrettably, this Westminster arrogance is spilling over into Wales and contaminating Welsh Conservative politics in my opinion. We saw it with Alun Cairns on Question Time on Thursday, making scandalous claims about Plaid Cymru members that even Labour and Liberal Democrat opponents have called “baseless”. But Mr Cairns obviously felt at complete liberty to do this, feels no need to substantiate or explain his accusations after the fact, and feels no need to retract them or apologise. In fact he doesn’t even feel the need to comment at all and just ignores the media’s requests for a statement. He obviously feels ‘untouchable’ at the moment.

Were this just a matter of mischievous behaviour on a television debate programme, I’d be more inclined to just let it pass. But it won’t have escaped the attention of Pedryn Drycin’s readership that Mr Cairns is also responsible for the Wales Bill going through Parliament at the moment, and I’m rather concerned that his new-found ‘confidence’ (if I can put it like that) could end up causing irreparable damage to the constitution of this nation.

As the Constitutional and Legislative Affairs Committee of the National Assembly reported AGAIN this week, following several months of expert evidence gathering and detailed analysis, the Bill as currently drafted REDUCES the legislative competence of the National Assembly and makes the devolution settlement MORE complex. Let us state that again for clarity in a slightly different way: the Bill WEAKENS Welsh devolution not strengthens it; it makes the National Assembly LESS powerful, not more powerful; and it makes it HARDER for the National Assembly to effectively manage the domestic affairs of Wales, not easier. Those are the facts, and there isn’t a single lawyer, academic, or other expert who would (or has) come to a different conclusion. Furthermore, nobody (as in literally nobody) within Welsh civic society has declared any support whatsoever for a constitutional change of this type. Quite the opposite, they have expressed deep concern and disquiet about the Bill. Mr Cairns, his deputy Guto Bebb, and presumably the Whitehall mandarins who drafted the Bill, are the lone voices of support for this retrograde and reactionary piece of legislation.

Ah, but what does that matter if the Conservative Government in Westminster wants to reduce the powers of the National Assembly, has stated clearly in a manifesto that it will do so, and has an electoral mandate from the people of Wales to put that policy into practice? Well, that’s just the problem isn’t it; they don’t have any of those things. They have never stated openly that it is their policy to reduce the powers of the National Assembly (their 2015 manifesto pledge was to ‘strengthen’ Welsh devolution) and even if they had (which they didn’t), they haven’t won an election in Wales since the mid-nineteenth century, let alone the 2015 General Election, the 2016 National Assembly Election, or a specific referendum on the question. They haven’t sought the people of Wales’s opinion, and it hasn’t been given.

Rather like the Westminster Government’s response to scrutiny on Brexit policy, when challenged on the factual inadequacies of the Wales Bill, Mr Cairns and his deputy simply lie, answer a different question or resort to sophistry. They never engage with the substantive issues and they are never honest about their true motivations. So apparently the Wales Bill STRENGTHENS Welsh devolution, is CLEARER, is the result of CROSS-PARTY AGREEMENT, and was MANDATED by the 2015 Conservative Party manifesto. These things are true only in the imagination of Mr Cairns and Mr Bebb. Nobody else believes them. Nobody.

Now, if in the face of such universal criticism, opposition, and contradiction of your factual argument, you simply press on, force the Bill through Parliament unamended by means of your English Conservative majority, and impose a new, inferior, and insulting constitutional settlement on Wales, ...well, there’s no other word for it really, you’d have to be pretty ‘arrogant’ I’d have thought, and pretty dishonourable as well.

If Cairns and Bebb continue along their current path, history will judge them very cruelly indeed I believe, not only for imposing an insulting constitutional settlement on Wales but also for having the hubris and arrogance to do so by deceit and sleight of hand. It will also reflect very badly on those Welsh Conservative politicians who actively supported them or those who sat on their hands and said nothing at such an important juncture. That would be a great pity, and a disappointment for me personally, as the reputations of many people I had previously respected would be tarnished for ever.

Constitutional and Legislative Affairs Committee report on the draft Wales Bill

I would normally consider writing a summary and appraisal of a new publication such as the Constitutional and Legislative Affairs Committee's report on the draft Wales Bill for Pedryn Drycin, but on this occasion I will decline. The report is relatively short and is written in accessible language, its clarifications on matters of fact and interpretation are precise and accurate, and its arguments are made succinctly and cogently. It suffices, on this occasion, to strongly recommend that Pedryn Drycin's small but hard-core readership read the original report and come to their own conclusions.

My opinion, for what it's worth, is that its analysis is broadly consistent with everything that I have written here over the last few months and its recommendations to the Secretary of State for Wales can be quickly endorsed by all reasonably-minded Welsh democrats: that is, 'start over again, or remove all the mischievous, undemocratic bits'. Further, and taking due account of its measured and diplomatic language, it is still a damning indictment of the process, the draft legislation and the UK Government's underlying motivations.

[The Committee's chairman, David Melding, has also written a short article on Click on Wales today, 'Back to the drawing board for the draft Wales Bill?', explaining the broad findings and recommendations of the report]

I will, however, make particular reference to one section of the report:

"164. It has been suggested that the purpose of the draft Bill is to overturn the decisions of the Supreme Court in relation to the existing settlement and conferred powers model. While that may be the approach from a Whitehall perspective and within Parliament’s prerogative, if that is the intention it should be expressly stated in the interests of openness and transparency."

Whilst it would do my ego no end of good to think that the report's authors avidly read, and are referring specifically to Pedryn Drycin, when they say, "It has been suggested", I rather suspect they are reflecting more widespread grumblings and malcontent in Cardiff Bay. But I am gratified, nonetheless, to see a central pillar of my argument over the last few months find its way into the report: that is, if it is the UK Government's intent to overturn the Supreme Court's decisions and roll-back the legislative competence of the National Assembly for Wales, "it should be expressly stated in the interests of openness and transparency". That is the very least we can expect from a supposedly democratic government, one would have thought.

It is a matter of regret to me, however, that the committee did not go on to 'note' that the Conservative Party made no General Election manifesto commitment whatsoever to take such action, that the Conservative Party has no majority electoral mandate at any level in Wales, that such action would run contrary to the will of the people of Wales as expressed in the 2011 referendum, and that whilst being within Parliament's prerogative, would represent one of the grossest abuses of Whitehall power in the history of 'democratic' UK politics...

Then again, perhaps 'undiplomatic' language of this sort will become more commonplace in the corridors of Welsh power if Stephen Crabb declines the committee's recommendations and persists on his lone charge into historical infamy over the next few months?

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?

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.