A mish-mash muddle

Now that Article 50 has been triggered , it is worth pausing again to consider whether we did the right thing in passing the Wales Bill at the start of the year. It was in no way an easy call.  There is no disputing the fact that the Wales Bill, now Wales Act, is a poorly drafted, complex, and rushed piece of legislation which will not, as was promised, settle the issue of the relationship between Westminster and Cardiff Bay for a generation. Whilst we were promised clarity, coherence and stability, many still believe that what we have is a mish-mash muddle which could lead to more, not fewer, referrals to the Supreme Court.

The Act was a missed opportunity. Whilst it kept constitutional experts salivating at the mouth at the prospect of more future Wales Bills, it failed to deliver a stable political framework and distracted the Assembly from doing its more important task of providing Welsh people with jobs and services worthy of the twenty first century. Despite this, many of us made the judgement call that we should grab the opportunity to advance, even by the most meagre steps, the frontier of devolution in Wales, and batten down the constitutional hatches by moving to the Reserved model of governance before Brexit.

In the House of Lords, we took up the challenge of improving the Bill with vigour and drew attention to the many shortcomings in the legislation.  We should not begrudge the UK Government the progressive elements of the Act. It should be noted that the National Assembly for Wales will be permanent, it will have the power to determine the electoral processes and the number of AMs in future National Assembly elections and there will be increased powers in a number of areas including energy, transport and water.

In the Lords, however, we understood that there was a great deal of work to be done, in particular with the move from the current complex Conferred Model of Governance (where there was effectively a list in past Acts of what the Assembly could do) to the Reserved Model (where a list was produced which made clear what areas were reserved to Westminster, like defence and foreign affairs whilst everything that was not on the list could be done by the Assembly). Nevertheless, in that switch from one model to another, there seemed to be a considerable claw back by Whitehall of powers which had already been devolved to Wales. This had to be resisted. We were never really given a comprehensive rationale and justification for why certain areas were reserved and others were not, but we are clear that Wales is nowhere near securing the powers that Scotland enjoys.

To be fair, during the course of our consideration, the Government accepted that it was wrong of them to attempt to claw back some powers already devolved to Wales including areas such as adoption, railway planning and building regulations. They also conceded an increase in powers in some areas where hitherto Wales had not been granted powers. This included areas where it made eminent sense to allow Wales to legislate, including on heating and cooling, fixed-odds betting terminals, the community infrastructure levy and the right to be consulted on issues relating to the Maritime and Coastguard Agency.

There were two areas in particular where we were extremely disappointed with the UK Government’s position. One was on the issue of who could bid to run rail franchises in Wales. The Welsh Government is currently going through a procurement process to determine who should run Wales’ railways. We made it clear that it was ideologically inconsistent to allow three nationalised companies from other EU states to be allowed to bid, but in future the Welsh Government could not bid.

The other issue where we thought the Government should really have moved was on industrial relations with respect to public services. During the passage of the vindictive Trade Union Bill through the House of Lords, we were made aware of a secret document which made clear that the Welsh Government had the right under the Conferred model to determine these matters. The UK Government was determined, in moving to the Reserved Model, to close off this possibility despite the excellent record on partnership working in Wales. In January, the Welsh Government has introduced its own Trade Union Bill, whipping it in under the wire whilst the Conferred Model is still in place. We are on course for yet another constitutional bust up in the Supreme Court even before the ink has dried on this Wales Act.

The issue of the Welsh Government being able to act in ‘silent areas’ under the conferred model has been curtailed. These ‘silent areas’ allowed considerable legislative leeway following the Agricultural Workers Pay judgement for the Assembly to act. That legislative space has now effectively been shut down. Despite the move to the new system, there is still a lack of clarity in terms of when the Assembly can legislate if a matter ‘relates’ to a reserved matter. It is the lack of clarity which potentially could see many referrals to the Supreme Court in the future.

One thing which did strike us during the scrutiny of the Bill is that the Scottish Parliament had signed up to a many areas in the Scotland Bill which Welsh Peers deemed to be unacceptable. Henry VIII clauses and the terms of the transfer of fixed odds betting terminals were just two issues which were nodded through the Lords without any debate in the Scotland Bill. Perhaps it is time for the SNP to reconsider its policy of not sending members to the Lords.  

The issue of a common legal jurisdiction of ‘England and Wales’ was the reason for the UK Government denying Wales parity with Scotland, which has its own. Whilst most accepted that it was premature [with the very low number of Welsh only laws] to be demanding a separate jurisdiction at this point, all understood that since 2011 a body of Welsh law is already being built which is distinct from that of England and Wales. There was an understanding even by the UK Government that in time complexities relating to the training of judges and lawyers, even apart from the crucial issue of accessibility and comprehension for the Welsh public, would mean that there is a need to keep the situation under review. The UK Government eventually accepted that the internal Whitehall working group set up to deliberate on this issue (with almost no input from the Assembly) would not do the trick, and they have accepted that a more equitable system of consideration which will involve experts acceptable to the Assembly should be established.

During the course of the passage of the Bill there was a great fanfare and dancing in the streets, top billing on BBC news and headlines in the newspapers when the UK Government accepted that they would drop their intervention powers in relation to water in Wales. It is not clear whether it was the gullible Welsh media or the Secretary of State who related this to Tryweryn and pronounced that the drowning of a village could never happen again! The Minister later conceded on the floor of the House that the Assembly already through its planning laws could halt any possible reservoir building in Wales.

But on further prodding we discovered that the dropping of the intervention powers was not all it was cracked up to be either! There will now be a protocol between the Welsh Government and the Secretary of State to resolve any issues relating to water, in particular on the border, but there is no clarity at all in terms of what would happen if an understanding cannot be reached between both parties.

The Bill could have been killed off in an instant if the two Governments had failed to agree on the future financing of Wales as a result of the partial devolution of income tax powers, which can now come without a referendum.

Whilst the agreement is far from perfect, there seems to be a consensus emerging that actually Wales did quite well out of this negotiation.  Despite the Act’s continued failings, it was right for the Assembly to support it.  

It would be difficult to imagine anyone other than Lord Bourne, whose credentials on devolution are positive, in the Tory Government managing to persuade Whitehall to loosen up further especially when there has been no indication from Theresa May that she has any empathy towards the devolution project. There was no prospect of an alternative Bill if this one were to fail as Brexit will dominate the political scene for at least the next decade. There are some financial assurances and, more importantly, further borrowing powers which would not be available had we rejected the Bill. Crucially though, in this age of political instability and Brexit, we believed that being anchored to a reserved model, the same model as Scotland and Ireland, we might, just might gain more protection for Welsh devolution in the stormy seas ahead. The next few months will indicate whether that was the correct judgement.