Silk Commission kicks for touch

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.