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?

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