Westminster regards Assembly as jumped up inferior

Despite the overwhelming Yes vote in the 2011 referendum, there remains lack of clarity about the powers of the National Assembly. This is creating unnecessary complexity, confusion and uncertainty and is one of the main issues the Silk Commission is considering in the second part of its review of devolution.

Most of the debate is focused on what further powers should be devolved to Cardiff, such as policing, criminal justice and broadcasting, and the appropriate level at which Welsh Ministers should have the power to consent to energy generation development.

In reality, much of the discussion is about extra executive powers for the Welsh Government, with the unspoken assumption that legislative powers for the Assembly would follow executive devolution. That is unsurprising, given that the history of Welsh devolution started with Westminster conferring a bewildering array of precise executive powers on the first Assembly in specific subject-areas. These subject-areas in turn became the main foundations of the legislative powers granted to the new Assembly created by the 2006 Government of Wales Act.

The Supreme Court has made it clear (in the case of Axa v. Lord Advocate) that legislation made by the National Assembly is of the same status in law as that of the Scottish Parliament, and is subject to only very limited review by the Courts. Both legislatures owe their legitimacy to the fact that they are democratically elected bodies. It is therefore wrong in principle for Courts to interfere with the laws they make except on very precise grounds.

Nevertheless, the National Assembly has found it difficult to shake the perception that somehow it is not really a legislature belonging to the people, but a jumped-up executive body, which needs to be kept in its place by its betters. That is how it was treated by some members of the Welsh Affairs Committee when they scrutinised legislative consent during the brief interlude between the 2006 Act and the 2011 referendum.

That mind set is also apparent in parts of the UK Government’s evidence to the Silk Commission, for instance, which suggests that the UK Ministry of Justice ought to have a right of approval before criminal offences are made by Acts of the Assembly. The reason given is so that any cost impact on Her Majesty’s Courts and Tribunal Service can be assessed, and that all UK Government Departments must consult with the Ministry of Justice before including offences in Bills.  But the National Assembly is not a UK Government Department, nor any kind of Government Department.

Further evidence that the shape of the Welsh legislative dispensation is based on the division of executive powers between Cardiff and London is found in the rule that the Assembly can’t legislate so as to affect a pre-existing function of a UK minister, even if the subject is one on which the Assembly can make laws.  So, for instance, even though the Assembly has a wide remit in the field of Education, it can’t legislate where UK ministers still have executive power in Wales, so as to transfer that power to Welsh Ministers.

The complexities and frustrations to which this can lead were clearly shown in the Byelaws Act case that went to the Supreme Court last year. In brief, a well-intentioned and rather boring piece of Welsh legislation, aimed at cutting down unnecessary bureaucracy and delay in making local government byelaws, was challenged by the then Secretary of State for Wales because (in her opinion) it trespassed on some obscure and never used (since devolution) UK ministerial powers to approve byelaws made by Welsh local authorities. The Supreme Court found against her, but it could have gone the other way quite easily. Indeed, leading legal experts in England considered it to be an open-and-shut case which the Welsh Government was bound to lose, on the basis that a significant constitutional principle was at stake.  For a fuller discussion of this case by my colleague Manon George – see here.

The Welsh dispensation can be contrasted with those in Scotland and Northern Ireland.  In Wales, the Assembly has no power to legislate except in relation to the specific conferred areas of competence – sometimes called the ‘conferred powers model’. In Scotland and Northern Ireland, the Parliament and Legislative Assembly can make laws about anything at all, except for those areas which are expressly reserved to Westminster – the ‘reserved powers model’.

Furthermore, under the model in Scotland and Northern Ireland, there is no constraint relating to executive powers of UK Ministers.  The Byelaws Act case could not have been brought in relation to an Act of the Scottish Parliament, nor of the Northern Ireland Assembly. Neither of those legislatures could be mistaken for an executive body, nor treated as one.

In those countries, the starting point for a politician or an NGO promoting legislation is to assume legislative competence, and avoid exceptions and reservations. On the other hand, in Wales the first thing to do is to see whether the Assembly has the power in the first place, then consider the express exceptions in the 2006 Act, and then wonder whether any pre-existing UK Ministerial functions might be affected.

The reserved powers model brings with it practical and legal difficulties, such as many “limbo” areas, which are neither expressly inside nor expressly outside the Assembly’s ability to legislate.  This can lead to some surprising (and, for some, possibly alarming) results (for a fuller discussion in this site see here and also the UK Changing Union project’s evidence to the Silk Commission part II here.

The problem is not so much that the Assembly lacks the power to legislate in areas such as policing and criminal justice (it doesn’t lack them – they are limbo areas) or broadcasting, but that the constraints on the Assembly’s ability to legislate create confusion, uncertainty and occasionally paralysis. Politicians are nervous about legislating to do good as they see it (for example, to ban smacking) not because of policy reasons, but because of a lack of clarity about what is inside and what is outside the Assembly’s powers. The Welsh polity appears to lack self-confidence when it comes to legislation, anxiously looking over its shoulder in case London is offended.

Now, whatever system exists for the division of competencies between periphery and centre within a state, there will be grey areas, and the need to tidy things up every so often. The difficulty for Wales, however, is that the conferred powers model gives rise to considerably greater uncertainty than the models in Scotland and Northern Ireland. That uncertainty is psychological as much as legal.

It is interesting to examine the arguments that the UK Government considered on the issue of conferred versus reserved powers when it was preparing the 1998 Scotland Act. In its 1997 White Paper on Scotland, it noted that the 1978 Scotland Act (which would have gone ahead if it had been approved in the 1979 referendum) contained the conferred powers model. Turning to what should be done, this is what it had to say:

“The Government have given careful thought to the best way of building stability into the settlement. The Scotland Act 1978 provided for the transfer of specified areas of legislative and executive competence… It would have required frequent updating and might have given rise to regular legal arguments about whether particular matters were or were not devolved. This approach now seems incompatible with the Government’s objective of ensuring maximum clarity and stability.”

Read in Wales in 2013, these words seem prophetic.

It is hardly surprising therefore that there appears to be a growing consensus around a move to put the National Assembly on the same footing as its counterparts in Scotland and Northern Ireland.  Good evidence for this can be found in the Assembly’s Research Service’s useful and readable summary of the consultation responses to Part II of the Silk Commission (which can be found here. The move to a reserved powers model is explicitly supported by the Welsh Government and several other respondents.  The summary does not mention any respondent who opposed it Significantly, however, it was not expressly mentioned by the Conservative Party.

The UK Government’s position is particularly interesting.  Its evidence to the Silk Commission was not explicit on the issue.  What it said was this:

“The evidence in this document demonstrates that, on the whole, the Welsh settlement is satisfactory and works well in practice. We do not believe there is a case for radical change to the boundary of the settlement. Nevertheless, there are areas in which modifications to the boundary could be made, and we are open to proposals, supported by robust evidence, to modify the settlement to strengthen devolution in Wales.”

So there may be some scope for persuasion here, if the evidence in favour of a reserved powers model stacks up.  All the evidence appears to point in favour.  Is there evidence against?

Those who have expressed opposition so far do not on the whole engage with the arguments in favour – greater clarity, less friction between Cardiff and London, respect for the Assembly as a democratic body. Rather, they seem to adopt three different starting-points, the one ideological, the other two ostensibly pragmatic. All three are familiar arguments which have been used by opponents of Welsh devolution, and they need to be addressed.

• The first is the ‘slippery slope’ argument.  The reserved powers model, it is claimed, further empowers the Assembly at the expense of the UK Parliament, giving Wales greater political autonomy which is more likely to lead to independence from the UK. The simple answer to this is that the polling evidence overwhelmingly shows support for strengthening the powers of the National Assembly and opposition to independence.
• The second argument is that the Assembly should not be given any more powers until public service delivery has been sorted out in Wales. We should not be tinkering with the constitution. There are more important things to be done. This is a false opposition. It should not be a choice between one or the other, but both. It is difficult to see how simplifying and clarifying the legislative settlement could hinder better service delivery. Actually, it might help. Moreover, taking democracyand constitution seriously should not be dismissed so lightly.
• The third is that Wales and England are too closely intertwined to allow for further development (as argued by the Secretary of State for Wales in his Wales Governance Centre lecture on Tuesday). This is the first and original argument against any form of devolution for Wales – “England and Wales are one entity, legally and politically” – adapted for an age where that certainty no longer holds.  The fact of Welsh (and indeed English) political and legal distinctness cannot be denied.  To be fair to the Secretary of State, there may be pragmatic examples to which he can point which support his position and which justify why Wales should be treated differently from Scotland or Northern Ireland in terms of the shape of the dispensation.  It seems to me that most difficulties are resolved by adopting the simple rule that things which should still be legislated for in London should be reserved.

It is significant that the UK Government has never seen fit to spend time and money challenging Scottish or Northern Irish legislation of any kind. It is time for Wales to move to a model which gives its legislative arrangements the same stability and its politicians the same robust platform from which to legislate confidently.