Legislation no answer for under-performing Wales

It is unlikely that Labour’s new team of Assembly Members will be complacent about the challenge that they have inherited. For many months all of the indicators that really matter have been ‘in the red’ for the Labour/Plaid coalition government. The ‘experiment’ of the last four years has not been a success, while the cracks between Labour and Plaid became clear during the election campaign.

The economic health of Wales is acknowledged as both poor and failing. The financial prospects for Wales with a Conservative Liberal Government in Westminster look bleak. The suggestion of the last Assembly that presenting a new begging bowl to Westminster, in search of an even more favourable Barnett settlement than Wales currently enjoys, is the way forward was naive. A plea for more money is unlikely to receive a positive response. Wales must use its cash allocation smarter.

International education attainment assessments show that Welsh children are seriously under-performing. The statistics showed that their education was being under funded compared with England.  NHS waiting lists in Wales are an international embarrassment. The Labour Government in Westminster has delivered access to healthcare intervention times in England that are much shorter than those generally available in Wales.

Welsh strategic infrastructure is little better now than it was in 1999.  There is still no north– south rail link through Wales, no north–south motorway within Wales, and no credible economic development plan for Wales. Meanwhile, the information revolution that is firing the economies of many small countries has left Wales in the slow lane. Hopes for economic growth from the flagship Technium innovation centres did not materialise and there is no high grade broadband network in much of Wales and no direct Welsh internet hub.

Against this background of challenges and difficulties, the promise that if Wales voted ‘Yes’ in the referendum the National Assembly could “get on with the job that we elect our Assembly Members to do: it will have the right tools of the job”, was a rash one.  Having obtained a ‘mandate’ from the electors of Wales, the new Welsh Government now has the task of delivering.

Carwyn Jones’ challenge is to ensure that there are much better outcomes in all the principal public sector activities in Wales than were delivered in the last four years. His first full term as First Minister will last five years, enough time for a well managed government to succeed.  But the  referendum vote in favour of more powers is not a panacea and will not provide the answers.

Many people were given the impression that voting ‘Yes’ in the referendum would rectify all of Wales’s failings.  All that Wales needed was the power to make its own laws and then all would be well. The Yes campaign promised that the Senedd would deliver.

Sadly the reality may be very different. The Assembly’s new powers to make laws are simply legal regulations that are outside and different from the country’s main legal framework. The real statutory powers still remain with Westminster. The limited Welsh legal powers fit the definition of ‘outliers’, that is to say pieces of legislation on fringe topics that give local character to devolved administrations without affecting the decisions of the principal legislative body.

‘Outliers’ are all that the National Assembly is permitted to deliver. It has no power to propose legislation that affects Wales’ economic health such as the ability to set taxation levels. The Assembly cannot determine either the strategy or the investment levels of the resources committed to our nation’s defence. Nor can it influence the policies, or the share of our taxes, that are deployed by our embassies and legations overseas or in aid to overseas countries.

The National Assembly has no effective powers to fight crime. All it can do is give the Home Office agencies some of the Assembly’s devolved funds that could have been deployed in improving healthcare or in our schools, and hope for the best. It has no justice powers and cannot, as Scotland can, develop a Welsh approach to courts, sentencing and prisons.

Despite Wales being capable of being a major exporter of energy, whether green, nuclear or carbon based, the National Assembly has no powers to produce an energy policy or to deliver for Wales the potential financial gain dividend. And the Senedd is strictly warned by Westminster in statute to ignore any thoughts it might have about managing the water that falls as rain in Wales.

The legislative programme that may be adopted by the new Assembly will be truly an ‘outlier’ one. It may interest lawyers practicing in Wales and may justify increases in remuneration for Assembly Members and their staff, but will it be able to address and tackle the key improvements that Wales desperately needs?

The omens are not good. Next October, the best known enacted new Welsh law takes effect. Shoppers in supermarkets, clothes stores, hardware stores , and the rest who receive their goods in a variety of bags will have to pay a small charge to the retailer for the privilege.  Legislators in other countries are baffled as to how this will enhance the Welsh economy or improve Welsh education or healthcare. The official reason given by the Labour/Plaid Government was that it will help address global warming.

A committee of the US Senate and a similar body in China, have already determined that no action that might address global warming will be taken by those countries if such an action would adversely affect the financial wellbeing of its citizens. Checkout bagging in US supermarkets is seen as a way to increase shoppers’ throughput and hence reduce retail produce prices.  The new Welsh law is a  typical gimmick that devolved administrations with ‘Outlier’ legal powers are prone to enact.

Devolved administrations with ‘Outlier’ legal powers are inclined to produce proposals that are vague, expensive or poorly conceived. This is a reason that legislation needs scrutiny and should not go straight from the legislative chamber to the statute books. The population needs to be protected from legislation that is capable of having unexpected consequences. In the case of the National Assembly, its own Counsel General , the Westminster Attorney General and the Secretary of State for Wales all have powers to impede a Welsh legislative proposal from being converted into law.

In particular, the Secretary of State for Wales may make an order prohibiting the Clerk from submitting a Welsh Bill for Royal Assent if s/he has reasonable grounds to believe it contains provisions which would have an adverse effect on the operation of the law as it applies in England, or would be incompatible with any international obligation or the interests of defence or national security.

An early test could be the ‘organ donation bill’, promoted strongly in the Welsh Labour Manifesto, despite a report produced by the Westminster Government that casts severe doubts on the legality, practicability and impact upon England of Wales attempting such an initiative.

Of course, it is far from clear what the Welsh electorate wants over the next five years, apart perhaps from more money in its pocket, more purchasing power to enrich its quality of life, good education and local government services, excellent health and social care for those who need it, and communities that are peaceful and free from crime.

How the new Assembly will use its new legal powers to deliver such aspirations remains a mystery. First Minister Carwyn Jones and his new Cabinet will need to rein back expectations that the new legal powers approved in the referendum can supply the answers.  Much more radical and practical action plans will be required. Freed from the restrictions of the last Assembly’s coalition, the new Welsh Labour Government may be able to deliver.