Wales’ fascination with paternalistic legislation

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.”