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.

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.

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.