John Osmond says yesterday’s Welsh Government proposals to extend devolution are setting up a confrontation with Whitehall

February 19th, 2013

Yesterday’s evidence from the Welsh Government to the Silk Commission – available here – marked a further significant step in Wales’s devolution journey. It was not as far reaching as the 1997 referendum which created the Assembly, or the 2011 referendum which in effect turned it into a legislative Parliament, now widely acknowledged by the use of the term Senedd. However, yesterday’s declaration was on a par with the 2006 Wales Act which enabled the 2011 referendum to happen, and will have consequences at least as profound.

Why is this? Put simply, it is because the statement marks definitively the moment when the Welsh Labour Government finally came to terms with devolution and resolved that it would take a lead in driving it forward. It also demonstrated, yet again, the apparently unstoppable dynamic built into the devolution process.

Debating devolution’s next steps

Tomorrow: The Counsel General Theodore Huckle QC says a Reserved powers model for the Assembly should also be accompanied by greater authority for Welsh Ministers. On Thursday David Melding, Deputy Presiding Officer in the National Assembly, asks whether Unionism and Nationalism can come together to provide a strong narrative for a federal Britain.

The Welsh Government is calling for a new Wales Act to create a devolution settlement for Wales based on a ‘Reserved powers’ model, as is the case with Scotland. At present the Assembly only has the competence that has been conferred on it expressly by Parliament, on those subjects set out in Schedule 7 to the 2006 Wales Act. Moreover these subjects are invariably qualified by ‘Exceptions’, which further limit the Assembly’s discretion and effectiveness. As the Welsh Government says:

“… the reservation model is a technically superior method of devolving legislative competence on a devolved legislature. In our view, the conferral model is incapable of prescribing with any degree of certainty exactly what the Assembly can legislate about. Many potential subjects of legislation are simply not mentioned at all in Schedule 7, leaving their status, devolved or non-devolved, vague and uncertain. The current Welsh model involves devolved subjects and exceptions to those subjects, but unlike in Scotland there is a potential third category, which is subjects that are not devolved despite there being no mention of them. So in assessing a competence issue consideration is required not only of what is devolved and what is excepted but also of what might be devolved under the conferral model, and hence what may not (yet) be devolved (even though those subjects are not referred to at all).”

As the Welsh Government rightly concludes, this is complex, lacks clarity, democratic transparency, and results in expensive recourse to the courts, as occurred last year over the Welsh Government’s first innocuous piece of primary legislation, on local government bye-laws.

All this was obvious when Peter Hain steered the 2006 Wales Act through Parliament. So why was the argument not accepted then? Simply because the Labour Party, with its key decision-makers still focused on Westminster, was not then ready to accept idea of a full-blown legislature in Cardiff. There was also a widely shared fear that the idea would not carry in a referendum.

We have now been through the 2011 referendum, with the result that de facto the relationship between Wales and England has turned into a federal one. This was alluded to in yesterday’s evidence which says:

“From the Welsh Government’s perspective, devolution is not about how each of Wales, Scotland and Northern Ireland is separately governed. Rather it is about how the UK is governed, not by one but by four administrations, in a relationship which is not hierarchical.”

Tomorrow we shall be publishing an article by the Counsel General, Theodore Huckle QC, in which he underlines the significance of the Reserved powers model for making the Assembly’s legislative process simpler and more democratically accountable. In it he quotes Justice Lady Hale, a member of the Supreme Court, who told the Legal Wales conference in Llandudno last October:

“The important point is that, as long as they keep within the express limits of their powers, the devolved Parliaments are to be respected as democratically elected legislatures and are not to be treated like ordinary public authorities. The United Kingdom has indeed become a federal state with a Constitution regulating the relationships between the federal centre and the component parts.”

Yesterday’s Welsh Government statement flows from the realities of Wales’s new, and little understood, federal relationship with England. So, too, does an acknowledgement that some time in the foreseeable future a Welsh legislative parliament will require its own jurisdiction within which its laws can be developed:

“While it would not be appropriate to establish a separate legal jurisdiction for Wales now, such a development is very likely in the longer term and actions can be taken which would help to ensure a smoother transition to such a jurisdiction in due course. These include achieving a more clearly Welsh identity in the higher courts of England and Wales; new Welsh offices for the Court of Appeal and the High Court; and acceptance of the principle that the legal business of people in Wales should be administered and dealt with in Wales wherever possible.”

Yesterday’s statement also envisages far reaching additions to the devolution of powers from Westminster to Cardiff. It says the Assembly’s powers should be extended in the following areas:

  • Water – the current limits on legislative competence should be removed and competence should extend to the geographical border.
  • Taxation – competence should be extended in line with the recommendations in the Commission on Devolution’s first report published in November 2012.
  • Policing, crime prevention and community safety should be devolved, with wider criminal justice to follow in longer time, without the need for new primary legislation.
  • Transport – there should be new powers for the Assembly in relation to speed limits, bus regulation, taxi regulation and ports. New responsibilities in relation to rail are being discussed separately with the UK Government.
  • There should be enhanced legislative competence in relation to Social Welfare and Families, and Equality.

The existing executive powers of the Welsh Ministers should be retained, and extended in the following areas, to take effect from times agreed between the Welsh and UK Governments:

  • Powers in relation to consenting of large-scale energy generation (other than nuclear power), and civil contingencies should be transferred to Welsh Ministers.
  • Minister of the Crown powers in areas of devolved legislative competence should be exercised by the Welsh Ministers.
  • Welsh Ministers should have executive powers in relation to youth justice.

Some of these new powers would have profound impacts on the Welsh economy. Others touch on neuralgic long-standing disputes between Wales and England. Devolution of responsibility over rail, for instance, will be vitally important if the Welsh Government is to create an integrated public transport system. As for water, which is perhaps the most surprising inclusion in this list, the Welsh Government says:

“There is an important interdependency between Wales and England in terms of water resource management, water supply and water quality. We consider that any concerns about potential adverse impact in England in relation to these matters would be more appropriately addressed through inter-governmental mechanisms that set out the basis for co-operation and joint working between the respective Governments.”

Taken together the statement delineates the most wide-ranging extension to Welsh democratic devolution since it was launched following the 1997 referendum. A difficulty is that it has been sprung on an unsuspecting Welsh Labour Party, although the electorate more generally is likely to see a lot of sense in what is being proposed. As the Welsh Government says they endorsed it in the 2011 referendum. Moreover, it points out that long before the referendum, and indeed since, they have told pollsters they believe the Assembly should have much more influence over the way Wales is run than Westminster. On the referendum the Welsh Government states in terms:

“The referendum in 2011 confirmed the Welsh electorate’s support for the Assembly to be an institution with extensive legislative authority for Wales. In the Welsh Government’s view, the proposals set out in this evidence do not raise any new issues of constitutional principle that would make another referendum necessary or appropriate before they could be implemented.”

A strict reading of this would suggest that the taxation powers recommended by Silk a few months ago do not need a referendum either. But the proposals have not been debated in the Assembly. To be sure its Constitutional Affairs Committee took copious evidence last year on the case for a Welsh jurisdiction, but studiously avoided any firm recommendation. Certainly the package has not been subject to any research effort in Transport House or  subject to any Welsh Labour conference resolution or vote. Instead, it has been driven from within the First Minister’s Office, and specifically by Carwyn Jones’ unit that deals with Constitutional Affairs and Inter-Governmental relations.

To be fair the First Minister has flagged up many of the themes within yesterday’s Silk submission in a series of important speeches during the past year. However, it is interesting to speculate how far Shadow Welsh Secretary Owen Smith was consulted about the package which, if Labour wins in the 2015 general election, he will have the task of piloting through Westminster.

There is no doubt, however, that the statement was kept closely guarded from Whitehall where civil servants, co-ordinated by the Wales Office, have been busy for months collating their own evidence to the Silk Commission. Many, if not most of the Welsh Government’s proposals will be unwelcome in Gwydyr House. Even now Departments across Whitehall will be penning their rebuttals to the latest claims of Cardiff in time to meet Silk’s 1 March deadline for their submission.

Here again, is another message from yesterday’s statement. Devolution is now being firmly driven by Wales and not Whitehall. The Silk Commission, set up and answerable to the Wales Office in London, will be forced to take its cue from Cardiff. In all probability there will be a stand off, with yesterday’s proposals – for and against – being submitted via competing manifestos to the electorate in 2015.

Before then, there will be one intriguing political battle to be fought. The Conservative regime in the Wales Office has sent clear signals that it is minded to change the National Assembly’s electoral system, to allow constituency candidates also to stand on the Regional List. It’ll be recalled that the rule preventing this was a sectarian provision contained in the 2006 Wales Act, which benefited Labour at the expense of the three other parties. If the UK Government’s proposals to reduce the number of Parliamentary constituencies had survived, which included cutting Welsh seats from 40 to 30, they would also have restored dual candidacies in Assembly elections. Now that the legislation has been thrown out will the Wales Office find a way of re-introducing dual candidacy in Cardiff, ahead of the next Assembly election in 2016? I’m sure the thought would appeal to David Jones.

However, yesterday’s Welsh Government statement insists that “changes to the Assembly’s electoral arrangements should only be made with the Assembly’s consent and supported by a clear mandate from a UK General Election.” The Wales Office may be minded to ignore that.

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John Osmond is Director of the IWA

15 Responses to:“Carwyn puts claims of Wales on table”

  1. Owain says:

    Very good analysis of yesterday’s announcement. What I found odd was that when Carwyn Jones is calling for the devolution of responsibility over water, both the BBC and Golwg360 thought the big story was about devolution of policing.

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  2. David says:

    An interesting proposal, especially as it effectively criticises the devolution settlement created by their own party.

    How much chance is there of these recommendations being implemented? Labour were hardly enthusiastic about devolution when in power in Westminster, and the Tories even less so. I hope they aren’t simply politicking, trying to set up a narrative between Welsh Labour, and English Tories, over proposals they don’t want or expect to see implemented.

    Water is the really significant issue here, the UK government will fight hard to keep it as it has economic value, are they using it as a bargaining chip to get other concessions from London? Are they using the crude negotiating tactic of asking for much more than they actually want?

    If they are calling for a reserved powers model, then why the specific list of things they want to see devolved instead of a more clear cut ‘everything apart from X, Y and Z’ as is the case with Scotland.

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  3. Jeff Jones says:

    Most voters in Wales probably don’t even know that the Welsh government has even made a submission to the Silk Commission. Rather than constitutional navel gazing I would have thought that any Welsh politician in touch with the people would be more interested in the fact that 200,000 people in the region have incredibly never worked and on January 30th one Welsh local authority received a report which stated that 40% of 11 year olds in the borough were ‘functionally illiterate’. These are the problems that need solving not pretending that somehow the UK is moving inevitably towards a federal state. No one voted for that in either the 1999 or 2011 referendum. I would have also thought that any more powers would include tax raising powers and that would require a referendum according to the First Minister. Fundamental constitutional change cannot be pushed through on the basis of a small section on page 89 in a UK General Election manifesto I’m afraid. The danger for Wales is that we might wake up one day to find an all singing and dancing Assembly but without the resources to actually make any real difference to the lives of ordinary people. After all Mali is technically an independent country but probably most people would be better off if it was still part of the French West African Empire and Beau Geste still patrolled the desert.

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  4. Dave says:

    The reserved powers model makes far more sense, in terms of better governance. Like David, I wonder why Carwyn Jones prefers to go for the piecemeal approach. Ask for a little, and you’ll get even less.

    Jeff wrote:

    “After all Mali is technically an independent country but probably most people would be better off if it was still part of the French West African Empire and Beau Geste still patrolled the desert.”

    In 1900 there were only 49 sovereign nation states. Many colonies have gained independence since then, to make up the total of 192 UN member states by today. Not one has ever returned, or desired to return, to their previous colonial status. Being “better off” is a value judgement. Most people would prefer freedom, given the choice. Not everything is valued in money.

    Unfortunately Wales has been reduced to the status of a dependency, with an economy which has little hope of improving, ever, whilst it continues to be governed as part of a state which has little interest in developing its economy, and historically has neglected to do so, whichever party or parties have been in power. Personally I’d accept the cut in the so-called ‘subsidy’ from the UK Treasury, and be free of the UK’s nuclear weapons, its gigantic aircraft carriers, the fourth largest military budget in the world, and the illegal and immoral wars in which it has engaged. That is not to mention all the UK’s other failures, which are legion, including the increasing wealth gap between rich and poor.

    I don’t want an “all singing and dancing Assembly” dominated by a Labour party which owes its primary allegiance to its HQ in Brewer’s Green, London, to Miliband, or the likes of Blair and Brown. I want a sovereign legislature elected democratically by the people of Wales, where all our votes count, not just a few in marginal constituencies, and which owes its allegiance to Wales and its people. Only then can we begin to better the lives of the people who live here and have chosen to make this their home.

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  5. Efrogwr says:

    @ Jeff: Welcome back. There are lots of important issues that most voters don’t know much about, which is not an argument for not dealing with these issues. In any case, politicians should be able to deal with more than one subject at once and, as Dave points out, a strong argument can be made that Wales’ sorry economic state and the colonial status you appear to celebrate are to some extent connected.

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  6. Phil Davies says:

    An interesting summary of the Welsh Government’s submission John, particularly your point about the emerging intellectual ‘leadership’ of the devolution process by the inner-core around Carwyn Jones. You can’t imagine that sort of explicit ‘visioning’ (whether you believe it to be insufficiently or overly ambitious or not) coming from Rhodri Morgan’s administrations.

    Having read the document myself, what strikes me most is the total confusion over devolution of the justice system. It clearly positions it as desireable in the long term but ‘too complicated’ or ‘too expensive’ or ‘too something’ in the short term and doesn’t really explain why. I understand in principle why devolution of policing is relatively easy, but the document doesn’t really explain why devolution of the courts system is relatively hard and therefore kicked into the long grass. Personally I’m not against gradualism per se, but I do like to be assured that there are specific benefits to a gradual approach and that it is not just an excuse for avoiding difficult decisions or hard work. I’m not really able to read through the obtuse language of Labour’s submission to get at the bottom line at the moment.

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  7. Howell Morgan says:

    Jeff Jones. Thanks for the above contribution, however facts on the REAL world do not seem to reach our ‘nationalist’ day dreamers, but rather they seem to live in a fantasy world of myths, wrong reading of history, and a general feeling that the UK has had it in for this particular region. In my humble opinion we were sold a pup in 1999, in that the purpose of devolution was to improve services in general, and equip Welsh people to compete in pretty harsh economic world, mainly caused by ‘globalization’. I think that we are splitting into two very defined camps, i.e a) drive for seperation from UK, and most certainly the last FM, and current one seems to be in that camp. b) the vast majority who want to see a happier, more prosperous region, whilst still maintaining its position within the UK. Where in the last 30 years has any one other than the lunatic fringe ever mentioned a FEDERAL UK? The implications for Wales of more and more seperation are dire, as with our poor economy and huge social problems we do not have the resources to improve matters, without English tax payers money. In my view the nationalists are peddling a falsehood, however the Welsh media seem in thrall to them, and eventually the English will get shot of us, and who can blame them.

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  8. Geraint Talfan Davies says:

    Jeff, The whole point of moving to a reserved powers model is to avoid the unnecessary distraction of endless arguments about powers, and getting on with the main job of sorting out our economy. I thought it might appeal to your rational side.

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  9. Jeff Jones says:

    Geraint. Only Nationalists would argue that Wales by itself can’ sort out the economy’. The problem that we have in so many parts of Wales to adapt Dean Acheson’s famous quote is that ‘we have lost an industry and haven’t yet found a role’. The idea that more devolution is part of the solution is based it seems to me on the idea that somehow 60 politicians with a limited civil service are more capable of arriving at innovative solutions when 650 with the Whitehall machine have failed. The danger with this view is that it can lead to various attempts to reinvent the wheel when the answer might be to take a leaf out of the view of Meiji Japan in the 19th century and look at what actually works in the world even it is from England. Look at today’s Western Mail front page. The fact that in the 21st century 40% of young people at the age of 11 can be described as ‘functionally illiterate’ should be a scandal in any society. Blaming this situation on local authorities is far too simplistic. It is also a situation that has developed way before the 2010 UK election. We are all to blame because we have tolerated a political culture that doesn’t challenge vested interests amongst a political elite who too often have been content to support a status quo which they have successfully used. I know that the IWA does its best to stimulate debate and discussion. But too often the world of Welsh politics seem to resemble Anne Applebaum’s recent description of political life behind the Iron Curtain before 1956. Too often the lack of ideas and the blame culture which pervades so much of Welsh political debate suggests that far too many in Legal Wales are too often divorced from the ‘hopes and aspirations’ of Real Wales. Just imagine the reaction of a Keir Hardie or a Nye Bevan to a report which suggests that by the age of 11, 40% of working class children are already condemned to a life of low skilled, low wage employment or even worse no employment at all.

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  10. David lloyd Owen says:

    The water side is fascinating and it is indeed a pity it has been overlooked. It reflects the difference between national boundaries and the fact that in 1974 the then Water Authorities were grouped on river basin lines, with Severn Trent’s (SVT) wedge into Wales reflecting the Elan Scheme.

    As I have observed in a previous post, the revenues from recognising that exported water from Wales to England has a value (as it already has when exported from SVT to Yorkshire Water and Northumbrian Water to Yorkshire Water) is indeed a potential source of revenue, but a relatively limited one.

    Water management needs to be a part of integrated environmental management and in that sense, there is a good case for bringing water into the Welsh Government’s remit, since integrated approaches are vital if issues such as sheep dip polluting rivers and the such-like are to be effectively dealt with.

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  11. Phil Davies says:

    Howell Morgan:

    With representatives ranging from David Melding, Dafydd Elis Thomas, Kirsty Williams and Carwyn Jones, the ‘lunatic fringe’ in Wales, as you call it, that advocates a federal future for the UK (which already exists to any meaningful extent anyway) is looking, well, rather mainstream, rather sane and rather respectable from where I’m sitting (for good or for bad).

    Unless, of course, they have nocturnal moon-gazing habits you alone are aware of. Please enlighten…

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  12. R.Tredwyn says:

    I remain strongly pro-devolution but I must agree that the Welsh government’s bid for more powers would be more credible if they showed more energy and independence of producer interests in tackling our sluggish economy and the decay of our education system. It would also be more credible if they did not show such reluctance to take more responsibility for their own finances. Carwyn Jones wants to run the police but he doesn’t want any say on the level of income tax in Wales.

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  13. Howell Morgan says:

    Phil Davies. I referred to last 30 years, when only the ‘lunatic fringe’ referred to the federalization of UK, however, now, it seems to be the ‘flavour of the month’ for the chattering/political class in Wales. The changes proposed in the UK seem to me to be rushed, with not enough given to the impact on the English who seem forgotten in this matter. I’m 68, and both children gone from Wales, and in all honesty the UK has been good for my family for generations (not perfect but where is?), so any changes will not affect me greatly, however the changes need to be better for ordinary people like myself, and not power hungry politicians of the third rank. In conclusion please show me any material improvements in services provided by public sector since devolution, except having money thrown at problems.

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  14. Martin Jones says:

    “Most voters in Wales probably don’t even know that the Welsh government has even made a submission to the Silk Commission” So? What’s the point of this claim by Jeff Jones? Most voters in Wales don’t know how the transport network functions and which Ministers are responsible. It doesn’t mean it isn’t important. Jeff goes on in another comment to deride people that believe “Wales can ‘by itself’ sort out the economy”. I for one don’t think it’s a case of Wales sorting out the economy by ourselves, without any recourse to the Treasury, the EU, the domestic and foreign markets. But it’s surely becoming increasingly clear that the main economic effort will have to originate in Wales, even if that means better working with the UK Government and EU. The policy agenda will have to begin here. We saw that with rail electrification. If we’d had that same Welsh effort that secured electrification back in the 60s or 70s, across a range of policy and infrastructure areas, I warrant we’d be alot higher up in the UK wealth tables now. And which Welsh Minister first initiated the lobbying for electrification? None other than Ieuan Wyn Jones, who would undoubtedly be dismissed as a “separatist” and “nationalist” by Jeff Jones and others. Welsh nationalism can be a force for reforming the UK state. We can have a Welsh nation taking on various responsibilities within a changing British union and a changing European union.

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  15. Jeff Jones says:

    If you really believe that Ieuan Wyn Jones had any influence on the electrifictaion of the Great Western line then you have to be living in a different world from the rest of us. The credit for electrification has to go to the Labour MPs in South Wales who have lobbied for it for years and the Tories who made the announcement. If Wales had been independent perhaps someone could explain how electrification would even have gone beyond the Severn Tunnel. With an independent Wales we would probably have to rely on a shuttle service to Temple Meads!

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