Alexander Phillips explores the impact of Welsh legislation to date and what it tells us about Wales’ attitude to lawmaking.
This week saw the Welsh Government publish results from the first six months of the Human Transplantation (Wales) Act 2013. The Act, which came into force on 1st December, 2015, made Wales the first part of the UK to adopt an “opt-out” system for organ donation. This means that should a Welsh resident over the age of 18 die, they are assumed to have given consent for their organs to be donated unless they have chosen to opt-out, or their family believe the deceased would not wish to donate. This is a subtle but significant change in the process. By shifting from ‘opt-in’ to ‘opt-out’ the Welsh Government is hoping to change the status quo and thus make donation the norm.
The statistics published this week show that since the legislation came into force, of the 31 people donating organs, 10 were because of the new system. The statistics went on to show that only 5% of the population have decided to opt-out. A figure significantly lower than the 14% suggested by pre-implementation surveys. Commenting on the first six months Cabinet Secretary for Health, Well-being and Sport Vaughan Gething AM stated that “Wales needed a transformation in donor and family consent… [The Act] I believe, has delivered that change.”
During its development the legislation attracted criticism for being another aspect of the ‘nanny state’ overexerting its power. This is due to the Welsh Government’s track record of producing paternalistic legislation which attempts to nudge people’s behaviour in a direction which is either for their own, or society’s, benefit. Over the last few years we have seen the Government seek to extend this into areas such as carrier bag charging, e-cigarettes, cycle routes, and even sustainable development. One Assembly Member even wanted to tax chewing gum to fund its subsequent removal from pavements by local authorities.
The Welsh Government like to call such things innovative. In doing so they like to classify what they are doing as ‘world-leading’ or ‘ground-breaking’. Sometimes this is justified. Often they are simply going where some other part of the world have been already – such as Ireland with carrier bag charging. But regardless of how innovative or world-leading legislation might be in reality, nothing will prevent Welsh politicians proclaiming their delight whenever England subsequently decides to introduce something similar.
Wherever you stand on this type of legislation the statistics continue to show these Acts to be highly effective. For example the decision to charge 5p for single-use carrier bags has reduced usage by over 70%. And as we have already seen organ donation rates are increasing following the new Act.
Nevertheless the trend begs the question of why is Wales so fascinated by this kind of law-making. Perhaps it is down to Welsh Labour’s close links to the New Labour movement which drove the ‘nudge’ approach under Tony Blair. Alternatively, it could be down to the very limited set of powers that same New Labour was willing to grant Wales when devolution began. By tightly holding back Wales’ legislative powers, early Assemblies were limited in what they could do. As a result successive governments had to find new ways of creating difference. This naturally made it attractive to develop eye-catching legislation within those tight boundaries which had the potential to make the largest impact.
As the Assembly’s powers have grown more recent governments have felt the same attraction. However, now they are able to extend their reach and start making changes in increasingly larger policy areas. Indeed there is so little sign of changing attitudes that this week also saw The Bevan Foundation propose a range of similar ideas for the new Assembly & Government to consider:
- Sunbed Tax: to make sunbed salon sessions more expensive and thus reduce visitor numbers;
- Takeaway Packaging Tax: this would work in a similar way to the carrier bag charge by attempting to discourage the use of packaging;
- Sugar Tax: this would increase the cost of sugary foods and drinks and replace the UK Government’s sugary drinks levy.
Whether these come to pass remains to be seen. The response from the Cabinet Secretary for Finance and Local Government Mark Drakeford AM was simply that “the power to introduce new Welsh taxes could be used to improve the lives and wellbeing of people across the country.” If you are an opponent of such legislation on the grounds of ‘nanny statism’ you might call that response ominous. To others it may well be taken as a sign of more ‘innovative legislation’ on the horizon.
Whichever side you find yourself on, this kind of legislative attitude presents huge opportunities for external organisations to affect change in areas which require bespoke legislation. This is one of the many reasons why increasing attention – for better or worse – is being given to Wales around the world as a legislative test-bed. As Nikhil Seth, Director of Division for Sustainable Development, Department of Economic and Social Affairs, United Nations said about the new Well-being of Future Generations (Wales) Act 2015: “[The Act] captures the spirit and essence of two decades of United Nations work in the area of sustainable development and serves as a model for other regions and countries… We hope that what Wales is doing today the world will do tomorrow.”
We now have sixty full-time politicians, plus their staffs, doing the work that used to be done by three. They have time on their hands and want to be seen to be doing something to justify their generous salaries, especially since there was never any administrative need for an Assembly at the all-Wales level in the first place. So we, their subjects, get what we always get in such situations, when politicians have nothing better to do – increased interference in our lives.
Although it should be acknowledged that some of the individual measures, such as the carrier bag tax, are by no means bad ideas, their cumulative effect is a considerable heap of additional taxes and regulations that burden the people of Wales but which the people of England seem happy to live without, and the growth of a mentality that is as unpleasant as it is dangerous. We were actually moving away from the attitude that ‘the gentleman in Whitehall really does know better what is good for the people than the people know themselves’ – only to have it replaced with ‘the gentleman in Cardiff Bay knows best’
…or, rather, since gentility is out of fashion, ‘the classless gender-balanced party functionary in Cardiff Bay knows best.’ It seems to be a general rule that the lower the calibre of the politician, the more he appears to feel that he is qualified to tell other people how to live. Meanwhile, those who really are wiser than most are wise enough to be more reluctant than most to interfere in the lives of others.
Alexander states that it is important to know if legislation is effective. I agree but it is also important to realize that there is a bias in the eyes of many observers. Those who oppose legislation will look for evidence of failure and those that support legislation will look for success. The plastic bag legislation is hailed by almost everyone as a success. It has reduced bag use by 70% so that a clear win. But is it? The objective as I recall was to reduce the wasted plastic which might not be the same as the number of bags. Welsh shoppers now use much stronger bags container much more plastic so are we achieving the original goal or not? Another question would be who wants to know and who is happy with assumed success?
The passage of Welsh laws was stymied perhaps by history, just as much as the limitations of the law-making powers granted to Wales in the first place. History casts a long shadow over the process of law making in Wales. Laws passed in Wales disappeared from the statute books with the implementation of the Laws in Wales Acts, 1, 1535-1542 (a.k.a, Acts of Union) according to Wrexham historian Alfred N. Palmer, who expressed the thought a century ago.
The Assembly as a body was also on a steep learning curve in the development and passage of laws. Could the Assembly have done better in terms of the quality of the body of laws that were passed ? Probably yes, if there had been a willingness to look for cues in the law making experience of other jurisdictions in addition to Westminster. I recall the political message of Wales being an “outward looking nation” not that long ago.
A case in point. The Historic Environment Wales Act (2016) may have responded to the need to safeguard and conserve historic sites, but virtually ignores the work undertaken on historic landscapes. Greater acknowledgement of this work would have provided the connection between the “historic environment,” as defined in the bill, and other laws such as the Environment (Wales) Act, 2016. It would also provided local authorities and history groups with the opportunity to enhance visitor and educational experiences, especially in national parks and areas of outstanding natural beauty.
Yet the silence among the historians and local historians of Wales regarding the passage of the bill is palpable. I wonder why?
We now have sixty full-time politicians, plus their staffs, doing the work that used to be done by three.
So we had 3 people looking after Wales before devolution. That explains the abysmal state Wales was in before we had the Assembly. We had more people employed by the public sector than Russia and the only way to get ahead was to get out. But hey, we all got to do what we were told right