Welsh Government’s legal powers must be simplified

Plaid Cymru secured the 2011 referendum on law-making powers as part of the historic One Wales coalition deal four years earlier. The referendum secured an overwhelming ‘Yes’ vote and the rest should have been history.

After all the latest survey of public opinion, by ITV Wales in their excellent feature Who runs Wales? just over a week ago, showed a clear majority who agreed with us that the Welsh Government should have the most influence over life in Wales. This reflects what we saw in the referendum result and in other polling since then.

Little did we think that the new settlement would be called into question so quickly. The UK Government has referred the first two pieces of Welsh legislation to the Supreme Court. The Local Government Byelaws Bill, supported by all four parties, has been interrupted by the Conservative-Lib Dem UK Government on the grounds of a technicality involving a residual power that no Secretary of State has ever used. The Assembly Commission’s legislation on Official Languages has similarly been delayed by a legal issue over whether the Assembly can legislate on the English language. Even more worryingly, the legislation on Organ Donation looks almost certain to be challenged, despite being included in several party manifestos at election time.

Plaid maintains that the current legal disputes were avoidable. In particular, the Local Government Byelaws Bill could have been allowed to pass through by the UK Government, which could have given consent as part of the so-called ‘Respect agenda’, recognising that local government is a devolved policy field. In an equivalent situation in Scotland, the UK Government’s role in byelaws could have simply been altered by Scottish Ministers of their own accord.

Reports on ClickonWales from the Supreme Court are already suggesting that the Judges “seem perplexed as to why the UK and Welsh Governments are appearing in court”, and the no doubt substantial legal costs could have been avoided.

Yet at the same time, the potential for conflict is obvious when you have two governments trying to govern within a devolution settlement that is as unclear and confusing as that which was bestowed upon Wales. It might be assumed that local government is fully devolved. But as the Byelaws case shows, it isn’t. Are there other policy fields that are devolved, but where the UK Government has residual powers that have been left in the original 1999 Transfer of Functions Order and those that followed?

The Party of Wales has a clear proposal to solve this mess, remove the need for costly and distractive legal cases, and put Wales on a footing that matches public opinion. We are calling for a new Government of Wales Act and will be presenting this case as part of our evidence to Part II of the Silk Commission’s inquiry.

The purpose of such an Act would be to bring Welsh devolution into line with public opinion, by clarifying and simplifying the Welsh Government’s legal powers. The basis of the Act should be the Richard Commission recommendations of 2004. This means moving to a ‘ reserved powers’ model – in which everything is devolved, and Westminster retains a number of agreed reserved fields. A clearly defined legal jurisdiction would accompany this.

The Party of Wales will also be proposing bringing new policy fields into the new Government of Wales Act. For example, public opinion consistently supports Welsh control over criminal justice and policing. We would also need to look closely at job creating levers, and at powers equivalent to Scotland over rail infrastructure. We would hold a National Conversation aiming at gauging public opinion and the thoughts of industry, business, trade unions and other groups that have a stake in our emerging Welsh democracy.

The Party of Wales believes that we can achieve better for value for money if the National Assembly acquires more powers over say the railways.  We have a specific transport policy agenda that brings together infrastructure and train operations, and proposals for a not for profit rail franchise. The same can be said on issues to do with housing finance, or if we wanted to administer the Barnett allocation for teachers’ pay in a standardised national way in order to prevent localised pay.

Confusion over legal powers is a constitutional quagmire and is a distraction from policy delivery in Wales. This is because a clear and rigid settlement on the same grounds as Scotland has never been implemented, flying in the face of public opinion. More importantly, the job of delivering on the ‘bread and butter’ issues is made extremely difficult when devolution in Wales is so limited and scaled back. Attempts to improve the situation have only ever been accepted in part, with the pace of progress being dictated by whoever happens to be in power in Westminster. Surely it is time for Wales to take more control over its own future.

As the constitutional writer Alan Trench wrote for the Institute of Welsh Affairs after the referendum in 2011, “Law-making powers are far from the end of the Welsh devolution story… Instead, they are merely the start of a new chapter”. With a new Government of Wales Act we will create a better Welsh democracy, a more competitive political environment, and more opportunities to drive economic prosperity and achieve social justice. More would be at stake in Assembly elections. And importantly, the Wales that exists would reflect more closely how the people of Wales want to be governed.