John Osmond says a reserved powers model for the National Assembly will hasten the creation of a Welsh jurisdiction
Press and media reports on yesterday’s Silk Commission report on extending the powers of the Assembly inevitably honed in on the devolution of police functions and increasing the numbers of AMs – inevitably because these are ideas easy to grasp and communicate.
However, the Commission’s most significant recommendation by far was its closely argued case for the Assembly’s legislative foundations to be rebuilt in favour of a reserved powers model. This would set out the powers which are to be retained at Westminster – such as defence, foreign affairs, macro-economic policy, pensions and social protection – but devolve everything else to Wales. It would replace the present conferred powers model, which sets out on the face of legislation the precise powers the Assembly, has in 20 fields including health, education, agriculture, and economic development.
As the Commission cogently argues, this change would clarify the Assembly’s responsibilities, allow for more effective and democratic governance, and bring Wales into line with devolution arrangements in Scotland and Northern Ireland.
In the few short years that the Commission has been deliberating this proposition has become so much common sense. That its acceptance has happened so swiftly is a testament to the ongoing dynamic built into the devolution process. Indeed, as the Silk Commission makes clear in its report, it received only one submission arguing that the present, conferred powers model should continue. This was from David Jones, the Secretary of State for Wales, who cuts an increasingly lonely figure in our devolution debates. In a speech to the Wales Governance Centre last July he said he supported the present conferred powers approach, but provided no real argument why, except to say,
“I support the current arrangements for devolution in the UK as providing the constitutional flexibility with which the peoples of all the British nations are comfortable, rather than a one size fits all approach which I believe would satisfy few.
This was an assertion, not an argument. Indeed, it is plain that David Jones and the rest of the UK Government – which in its evidence to Silk blandly said, “The Welsh settlement is satisfactory and works well in practice” – have lost the present devolution argument.
But why is the matter so important? Simply because the change will have profound implications for the Welsh judicial system. Reserved powers will make the eventual emergence of a distinctive Welsh legal personal a certainty. It will make inevitable the creation of a distinctive Welsh jurisdiction. It will be the biggest development in the infrastructure surrounding Welsh identity since the creation of the National Assembly itself in 1999.
To test the validity of these statements you only have to look back at the debate over the case for reserved powers that took place in the run-up to the 2006 Wales Act. In a joint memorandum to the Welsh Affairs Select Committee that was deliberating on the Bill that preceded the Act the then First Minister Rhodri Morgan, together with then Secretary of State for Wales Peter Hain, claimed that moving to a reserved powers model could not be contemplated. The reason they gave was because it would inevitably result in the need for a jurisdiction. This is what they said:
“If the Assembly had the same general power to legislate as the Scottish Parliament then the consequences for the unity of the England and Wales legal jurisdiction would be considerable. The courts would, as time went by, be increasingly called upon to apply fundamentally different basic principles of law and rules of law of general application which were different in Wales from those which applied in England. The practical consequence would be the need for different systems of legal education, different sets of judges and lawyers and different courts. England and Wales would become separate legal jurisdictions.”
In practice, their argument didn’t stand up. This is because as a result of the 2006 Act, followed by the 2011 referendum which endorsed legislative powers, the Assembly has begun to create its own body of Welsh law in any event. Moreover, Welsh divergence is also happening through inertia, as Westminster pursues legislation for England that does not apply in Wales.
Nonetheless, the application of the reserved powers model in Wales will hasten and amplify the extent of the divergence. There will be more distinctive Welsh law, on a greater range of topics, and to a greater depth than otherwise would have been the case. This means that over time there will be more and more need for Welsh lawyers and Welsh judges who are knowledgeable about Welsh law in order to try Welsh cases in Wales. This is how a distinctive Welsh jurisdiction will inevitably be created.
The Silk Commission devotes a good deal of attention to arguments around devolving the administrative of justice and the criminal law, which they concede would mean the creation of a distinctive Welsh judiciary operating within its own jurisdiction. Yet it draws back from coming to any firm conclusion or recommendation on this. Instead the Commission adopts a timid wait and see approach and kicks for touch. As it puts it:
“We are not convinced of the case for devolving the court system or creating a Welsh judiciary and legal profession at present. We also recognize that there seems from our opinion poll to be limited public appetite for devolution in this area. However, given the emergence of a distinct body of Welsh law that will need to be adequately administered, a separate Welsh courts system and a separate Welsh judiciary is something that must be contemplated in future. We recommend that the two Governments review the case for this within the next ten years.”
There is much to commend the work of the Silk Commission. It has produced a unanimous report that immediately drew a positive response from First Minister Carwyn Jones. However, implementation of its recommendation will depend on Westminster and the vagaries of political events in the coming few years – not least the outcome of the Scottish referendum in September and the UK general election in May next year.
The arguments that the Commission has marshalled in favour of the reserved powers model are powerful, and should persuade any objective legislator at Westminster. However, by shying away from firmly grasping and recommending what follows – a distinctive Welsh legal system – the Commission has weakened its case. That is because the very fact that a reserved powers model will inevitably reinforce moves in this direction will incline conservative forces at Westminster like David Jones – and probably other Welsh MPs as well – to oppose it. In this respect the Silk Commission has willed the means for furthering the Welsh devolution cause, but not embraced the consequences. Maybe that was the price of consensus and a unanimous report.
If the Secretary of State ‘cuts an increasingly lonely figure,’ it is only within the Welsh political Establishment – which, like all political Establishments, wants to increase its own power. Outside the Cardiff Bay bubble, public perception of the Assembly seems to have become more critical since 2011, with the PISA figures and the UHW scandal providing crystallising what was previously only a vague feeling that it was not doing a very good job.
That said, Mr Silk was right about one thing in his article here yesterday: “the current settlement is not sustainable”. One suspects the Secretary of State, with one eye on the Liberals in the Coalition, was reading a civil servant’s brief when he said “the Welsh settlement is satisfactory and works well in practice”. With due respect, no one on either side believes that. Mr Jones would attract a significant level of support if he stood up boldly and told the Assembly that it will be stripped of its existing powers if it does not use them well and abolished if it fails to make tangible improvements in the lives of the people of Wales.
It is not too late to revive Unionism if a leading public figure like Mr Jones was willing to take a lead.
Any assessment of the extent of the ambition of Silk findings inevitably requires a clear statement of what we believe their initial objective was. If we believe that their study (and thence proposed new settlement) was intended to be the ‘final word’ on decentralised government vis-à-vis Wales in the UK, then clearly the current report (taking Silk I and II together) is incomplete (very minor tax decentralisation and fiscal responsibility, no competence for the criminal law, justice or broadcasting, etc.). If we believe, however, that Silk was merely another incremental step in an as yet incomplete process, then their findings are significant, bold in some places, and pragmatic in others, albeit with a shelf life of no more than a decade. It’s important but not final.
The standard models of successful decentralised government, whether devolved or federal, are manifest around the world and you only have to be a sentient human being with the ability to turn one page of a text book to the next to understand the essential components. We all know what those components are and we all know that the Wales ‘hybrid’ still lacks many of them (as does Scotland).
Disappointment in Silk only arises for those people who thought the Commission was tasked with producing, and would deliver, a final blueprint for a federalized Wales-UK relationship. It was not tasked with such a charge and it obviously hasn’t delivered it. But it should be commended on delivering (yet) another step towards that model.
One thing that is certain in the concept of legal jurisdiction John, is that there really is a genuine chicken and a genuine egg. The distinct law is the chicken and the system of justice is the egg. One will follow the other as sure as night follows day, even, I’d contend, under the present legislative arrangements.
Whilst Paul Silk was not asked to, and did not try to, accommodate all of the eggs on this occasion, we can be certain that someone else will have to face that task in the years to come.
Staunchly agree with John Winterson Richards, what we need now is assimilation into England….sorry, I mean ‘Unionism’!
The goalposts have moved since the Silk Commission stitch-up started – the strands of failure in provision of front-line services under the WAG’s control have changed from being obvious to the anoraks to being obvious to just about everybody I talk to. Hardly anybody seems to have any confidence that the skills exist in the Bay Bubble to get us out of the mess they have most definitely got us into. The overall budget deficit isn’t just unsustainable it is untenable. More of the same is no longer an option – unless you are one of the thousands sitting happily on the devo payroll doing rather well out of serial failure.
Even if Silk-1 and Silk-2 are left to rot on a shelf somewhere, the status quo is no longer acceptable. Neither is the cosy 4-party consensus operating either pro-actively or by ommission of effective opposition, in conjunction with an equally uncritical 4th estate, in the artificial construct being governed as Wales.
Silk-2 should be a wake-up call to everybody who has been sniping from the sidelines for years to get organised and form a new political party with the main aim of consigning the Welsh Regional Assembly and the Welsh Assembly Government to the dustbin of history.
The consequences of failing to do this now, to make an impact on the 2016 Assembly, could leave Wales ungovernable in just a few years if failure continues at anything like the current rate.
Unionism is alive and well. In Northern Ireland it even goes by the name of unionism – but ulster unionists are happy to have their own devolved Parliament there. As unionists are in Wales. Don’t say unionism when what you mean is centralisation.
Mr Holtham, with due respect, you are being a little disingenuous comparing Unionism in the Welsh and Ulster contexts. Ulster Unionism is a well-organised movement with clearly defined objectives. No equivalent movement exists in Wales.
You seek to define Unionism very broadly, apparently as consent to any affiliation with the UK, even under a devolved government. Would that extend all the way to Home Rule? If so, by your broad definition, even the founders of the Irish Free State are Unionists!
The point I have tried to make in reply to you on another thread is that those of you who imagine you can be pro-devolution Unionists in the Welsh context may indeed be sincere in your beliefs but you are kidding yourselves: devolution in Scotland has increased the possibility of independence and Silk would take Wales another step in the same direction.
Mr Richards. We agree on a number of things but we shall have to agree to disagree on the ‘slippery slope to independence’, which you perceive and I don’t. Wales does not have the rudiments of an independent economy and not more than 10 per cent of Welsh people want independence anyway so why is it a risk? People in Bavaria can cherish a measure of home rule without people seeing it as a threat to the unity of the German republic. Why is Wales different?
John Walker is right to point the finger at the Welsh Assembly in its entirety when it comes to apportioning blame for government failure in Wales. Not only has Labour in power failed to govern in a way that is beneficial to Wales, they have been assisted in failure by the LidDems and Plaid separately and have never been effectively opposed by any of the parties.
The Welsh Media, such as it is, is so in love with the concept of a separate Welsh establishment that they too have failed to bring proper scrutiny to bear on the Bay of mediocrity.
Time and again we have Commissions that look only in one direction. They are not interested in the well-being of ordinary people, only in pleasing the dominant devophile elite in Wales.
Subtle and self serving analysis of the devolution settlement or financial responsibility is no longer what Wales needs. We need to put a halt to further devolution and scrutinise all the areas where political parties in Wales are in happy agreement; when there is political agreement between different parties there is no choice for voters and therefore no democracy.
J.Jones. Politicians usually want to get elected. That means they try and align themselves with public opinion and don’t generally adopt willfully unpopular positions. When Parties agree that is usually taken as a sign of consensus. All UK Parties for example want to keep the monarchy; none argues for abolition. That is normally taken to indicate a consensus, rather than a conspiracy of the elite against a silent republican majority.
Why is Wales different? The unionist parties all reject independence but favour some degree of devolution. Are they really utterly incompetent in assessing the public mood? Or could it be they have their finger on the pulse and it is the anti-devolution views that are unrepresentative?
the usual anti wales mantra from the likes of winterson richards yawn – theres nothing more boring than a stuck record. obviously doesnt know that welsh exports are up a whopping 11 percent, compared to less than one percent. for the uk as a whole
Mr Richards – no relation – what ‘anti wales mantra’ [sic]? Be specific. Quote please.
Of course, there is none. Criticise, by all means, if you disagree, but please have the courtesy to read what you are criticising first.
Incidentally, if you want to quote statistics, please give the previous export per head figures first. Increases from a low base are always disproportionately more impressive – an old politician’s trick.
@ JWR
It is a reference to the tone of the contributions you make which tends to be consistently negative. In the same e-mail you refer to the quoting of export per head figures as an old politician’s trick. Who cares? If the figures represents an increase on the previous year whatever the base then, for those of us living in the present, it is good news by anyone’s standard.
True Gerry; wise politicians need to have a weather eye on majority opinion but all political parties don’t necessarily follow majority opinion do they…I mean, Plaid would be foolish to trumpet their determination to separate Wales from the UK knowing that only 5% in Wales support that position.
Oh, got that wrong.
The situation in Wales is unique though, it’s not that one party is out of step with the majority, it’s all parties. Look at the figures for the BBC St Davids day poll over the last 3 years; there has not been a majority in favour of FURTHER devolution in that time.
So, as I read it, Labour will extend devolution when it returns to government after the next Assembly election. It is inconceivable, no, impossible for there to be any combination of parties in power which doesn’t support further devolution. Nevertheless voting any of those parties into power doesn’t really mean that further devolution is the will of the people.
We are stuck with the will of the elite……all rather Totalitarian.
Currently Welsh exports per head are for 2012 = £4830. For Scotland = £4893. For Northern Ireland = £2871.
It Woou, with respect, if you are satisfied with Wales’ present position you have every right to say so, but not to expect those of us who see Wales could do so much better to pretend to be happy-clappy about the status quo. There is nothing positive in Welsh education and health provision falling behind England, an under-developed private sector, plans for an expensive and unnecessary reorganisation of local government, existing constitutional arrangement with which both sides are dissatisfied, and widespread denial about the direction of future proposals. Worst of all is that too many Welsh people are accepting of the situation, even apologetic about always having the second-best and the second-rate.