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.

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.

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, 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