Tuesday, 9 October 2012

A farce that shouldn't have happened

Who should have the power to confirm changes to dog shit fines in Wales?
The "noblest court in the land" is debating it.
(Pic : BBC)
This week, the UK Supreme Court start deliberations on the "legality" of the Welsh Government's Local Government Byelaws Bill, which was passed by the Assembly in July this year.

The Bill itself, as I noted when first introduced, isn't a mind-blowing bit of legislation. At heart, all it does, is make creating byelaws a bit easier (and less bureaucratic) for local authorities, and changes arrangements for setting and collecting fines.

It was the first Bill introduced to the Assembly following the March 2011 referendum, and was the first bill passed by the Assembly. So to have it "called in" is immensely embarrassing for all concerned.

Why was it called in?

The Bill, as passed, changed functions of UK Secretaries of State with relation to local byelaws. It cuts them out of the process altogether (Welsh Government ministers too), but pre-Bill, they retained a say in matters.

The problem is, the Assembly doesn't have the power to amend or remove the functions of UK Secretaries of State - even in devolved areas like local government. The UK Attorney General took issue with it, believing it was - in effect - "above the Assembly's pay grade", and blocked the Bill moving to Royal Assent.

The Supreme Court needs to make three determinations:
  • Did the Bill remove/modify Secretary of State Functions in "Clause 6" (byelaws no longer requiring confirmation by Welsh Ministers/SoS)?
  • Did the Bill do the same for "Clause 9" (power to add/remove specific byelaws no longer requiring confirmation)?
  • If the answer's yes to either, is this within the competence of the National Assembly as stipulated in the Government of Wales Act 2006?

You can read a more thorough analysis of the situation by Manon George at Click on Wales, as well as Alan Trench at Devolution Matters.

How did this happen?

The buck, ultimately, has to stop with : the First Minister, the minister in charge – Carl Sargeant (Lab, Alyn & Deeside) - and the Welsh Government's chief legal adviser (Counsel General), Theodore Huckle QC.

The latter has to decide whether a Bill is within the Assembly's competence, and Carwyn Jones would count as a legal expert considering his professional background. As my title suggests, this should never have happened - but not necessarily because of any screw ups in Cardiff.

When this story was first reported back in July, the First Minister was quite right to say that this was a "totally uncontroversial piece of legislation." I mean, don't Welsh Secretaries have better things to do than deal with the minutiae of local byelaws? If the Secretary of State involved had simply consented to the changes, we wouldn't have had this court case.

Since 1999, the power to confirm byelaws has been held jointly between the Welsh Assembly/Ministers and the relevant Secretary of State. However, things have changed quite a bit since then.

In March 2011, those who bothered to vote, gave the National Assembly full law-making powers within 20 areas by a crushing majority. The Welsh Government can legitimately say that they have "a popular will" to be the sole local government legislator for Wales. Obviously, from a nationalist perspective, I'd argue that involving a UK Secretary of State is outdated and perhaps a little insulting.

The Welsh Government have argued that removing Secretary of State powers "was consequential upon, or incidental to, other provisions in the Bill."

I think that means (in English) : We didn't need to ask the Secretary of State's permission, as we were taking the same powers away from both ourselves and the SoS at the same time.

The UK Attorney General argued that just because the Bill removes powers from the Welsh Government, it doesn't mean the same powers can be removed from a UK Secretary of State.

What this means

Because of unnecessarily complex law-making and devolution provisions in Wales, I doubt this is going to be the last case of an Assembly law being "called in" - until we have legal parity with Scotland. This is an inter-governmental squabble that highlights the inherent weaknesses of the Welsh devolution settlement - and you could argue, the childishness of the Tories and Labour.

Despite the 2011 referendum result, this reeks of a belief that Wales still needs hand-holding, even to make soft Bills like this one. It's EnglandandWales' death rattle, and it's an exemplar argument in favour of a Welsh legal jurisdiction (I'll be looking in more detail at that next month).

In my opinion, joint Welsh Government/Secretary of State functions (within devolved areas) should've been removed in the Government of Wales Act 2006 as part of provisions for a referendum yes vote. It would've made things clearer, and might've saved us going through this. Thanks Peter!

How much has all this cost? And to what ends? Does David Jones really need the power to confirm changes to dog mess fines in Torfaen?

On the flipside, a "subordinate" legislature shouldn't be able to change the functions of a superior one as a matter of principle. The Welsh Government could be opening all sorts of doors by "testing the waters" here. They're probably not making friends in London either, which will come back and haunt them when they try to pass more controversial legislation like the Human Transplantation Bill.

The Welsh Government have been cheeky scamps, but they're logically (on paper) "in the right." But being morally right rarely counts for much in court. Obviously, for the sake of devolution's credibility, I hope they win.

Lose, and it'll be the biggest embarrassment for the Welsh Government and Labour since devolution, and would seriously undermine the credibility of the National Assembly as a legislature. If they can't pass a law on local byelaws because of their own errors, or you could say Westminster interference, how can they be trusted to pass laws on something "serious" like organ donation?

Big questions would also need to be asked about Welsh Government legal advice. This borders on gross incompetence. A loss would be "vote of no confidence" territory.

If the Bill is thrown out (that might not happen, even if the Welsh Government lose), it's possible that one, or both, of Theodore Huckle and Carl Sargeant would need to go. That would be harsh, but considering the wider issues, it would hard to see either stay in their posts. However, as I warned in the summer, the opposition parties have wasted that card, so neither need lose any sleep.

Even if the Welsh Government win, it would certainly mean a re-evaluation of law-making in Wales - all because UK Secretaries of State aren't willing to give up a rubber stamp.

Thanks again Peter! Cheers Cheryl!


  1. Of course the real issue here is that if the Scottish Parliament has passed exactly the same Bill, there is absolutely no way in the world anyone in London would have 'called it in.'

    This just emphasises the difference in the devolution settlements conceded to each country and the differing regard with which we are held.

    Even before devolution Scotland has been treated with greater respect than Wales, and it is impossible to attribute this to anything other than racism.

  2. "Racism" is perhaps too strong a word. What this is though, is the patronising paternalism we've come to expect. "Respect agenda" my foot.

    The UK Government side isn't coming out of this very well judging by the early reports from today's Supreme Court session. The judges seem bemused this was even brought to them. If they're bemused, imagine how we feel.

    I'm willing to bet these clauses wouldn't have been in the bill if there were another set of numpties with red rosettes in number 10 too. It's a pretty crap Bill, from a crap government, trapped in a crap constitution and handed a crap devolution settlement.

  3. I think racism is an appropriate word, as it encompasses treating a group (including a nationality) less favourably than another based upon their membership of that group.

    The Welsh, even before devolution, have been treated less favourably than the Scots (let alone the English), and we were given an inferior devolution settlement and a less favourable funding arrangement than Scotland.

    Even before devolution Sctoland was allowed to maintain its own legal system and garunteed representation (by a Scottish MP) in the UK cabinet neither is the case for Wales.

    Even now UK politicians interfere in the internal affairs of Wales, with no one in power objecting, in a way that they wouldn't do in Scotland.

  4. OK so the Welsh Secretary has formal powers of concurrence in this area, how many other areas that we could legislate on do "UK ministers" have concurrent powers? If there are, as I suspect, large areas where powers exist then we are stuffed. This is not devolution. Even if the UK government is correct on this single bill why didn't they simply give consent?

  5. Sorry but I never liked Cheryl Gillan. I don't know her personally but she came across as patronising, out of touch and in recent days has said the Assembly "needs" some kind of "failsafe" mechanism. Well Cheryl, we had LCOs and it didn't exactly work out every well. She could have consented to drop her power at any time on this Bill. It's a power no Secretary of State has ever used.

    But Welsh Agenda is actually right. In Scottish devolution you CAN affect the functions of UK Ministers as long as it is within a devolved area, according to Alan Trench.

    Another effect of the UK Government's complete incompetence is that it is an utter gift to Labour in Wales. A huge part of their popularity is that they're up against complete imbeciles and Tories who are determined to patronise and offend Wales at every single point.

    Even though this dispute is over an obscure issue, this will simply bolster people's support for the Welsh Government.

    A genuinely "respectful" UK Government would have recognised the Assembly's verdict, agreed to give consent, and made a public statement telling people in Wales that they've agreed to give consent (how nice of them). Instead they are acting like dicks.

  6. My prediction that Plaid would suffer electorally, and in terms of morale and public perception, from being in coalition with Labour, has been confirmed. The price paid for the referendum has been too high for the party - and indirectly for Wales and its people.

    It was all too predictable that there would be problems with the legislative model devolved to Wales. I believed at the time that IWJ was making a serious strategic error, and the time and the circumstances were not right for Plaid to participate in government as a very minority partner with Labour, the party it has to defeat electorally if Wales is to make any real progress in the direction of power, self-government, or independence. IWJ's mistake has led to Labour becoming more entrenched in Wales, and Plaid relegated to third place in the Assembly. It's been a largely wasted decade. Unbelievably, there are senior members of Plaid who want to repeat or perpetuate that error.

    True, the Assembly is established, and accepted by a greater percentage of the population, but its powers are veneer thin, even in comparison to Scotland, whose Parliament has relatively few powers as compared to that of an independent legislature.

    Wales has now to await developments elsewhere. Plaid has lost, though poor leadership and lack of vision, the golden opportunity it had in 1999 to tackle Labour head on - the party that has repeatedly failed Wales both at Westminster and in Cardiff, and arguably the party that has an electoral interest in keeping Wales and its people in a state of relative poverty and dependency, which is growing worse by the day.

    IWJ, where do we go from here?

  7. "My prediction that Plaid would suffer electorally, and in terms of morale and public perception, from being in coalition with Labour, has been confirmed."

    Huh? How? I did alot of work in the 2011 election and relatively few voters were aware that Plaid Cymru had been in coalition at all. The main reason Labour picked up more votes (including switchers from Plaid) is because people were worried about the Tories being back in power in London.

    "True, the Assembly is established, and accepted by a greater percentage of the population, but its powers are veneer thin, even in comparison to Scotland, whose Parliament has relatively few powers as compared to that of an independent legislature"

    This is however a fair point. I don't think it's related to IWJ.

    "Wales has now to await developments elsewhere. Plaid has lost, though poor leadership and lack of vision, the golden opportunity it had in 1999 to tackle Labour head on"

    Again, can't argue with this. It doesn't seem like enough was done when Labour was deeply unpopular. There weren't enough gains in 2007 for example.

    I feel Plaid is getting its act together now and especially having Leanne Wood as leader is a great idea, but the best time to have done this was when Labour was unpopular.

    I don't agree with linking that fact to the One Wales coalition. I think winning that referendum was vital. If it hadn't been won, then Labour would still be using it now as a delaying tactic. It had to be gotten out of the way.

    The issue over byelaws is the UK Government's fault and also the fault of Labour originally for drawing up such a weak devolution settlement. It's a bit of a leap to link it to IWJ or One Wales.

  8. This is an issue that directly relates to wranglings between the UK Government and Welsh Government. It is far more significant to examining the Tories and their attitudes to Wales than anything else. There's no real relevance to the One Wales coalition except perhaps to say the referendum shows that morally the UK Government should be backing down on this.

  9. I don't know if anyone else bothers watching the Assembly but the Conservatives are appalling. The quality of their "scrutiny" of the Welsh Government is dire and it is one of the main reasons Labour is doing well. Labour can simply never lose to the Tories in Wales. As i write this Byron Davies is on TV and it is simply worse than Labour, and they're hardly geniuses. But with this said, Plaid Cymru has never really been a viable option for alot of voters in Wales. To alot of people in the south they have seemed like outsiders in the past, if perhaps not now.

  10. Thanks for the comments.

    I think one reason for the confusion, and the continuing existence of concurrence is because Wales was never (in principle) devolved from the UK, but from EnglandandWales. We got the same settlement an English region would have, not as a nation in our own right, like Scotland. Northern Ireland is a half-way house.

    If the GoW Act 2006 had created reserved matters, in line with Scotland, then we might have avoided this piecemeal nonsense.

    Peter Hain never envisaged a referendum under his tenure, probably because he never foresaw that anyone but Labour would hold the Welsh Secretary position. While the Conservatives will be damned if they're going to let the Little Welshies undermine EnglandandWales.

    In both cases, Plaid have been instrumental in fighting Wales' (and devolutions) corner. They got, and helped win, the referendum, and because of that, it's causing a headache for the UK Government - they know EnglandandWales can't last. Like I said, I think we're seeing the death throes of EnglandandWales. It couldn't come sooner.

    As Anon 11:07 says, this might well be a gift to Labour, but if they lose this case (and on specifics alone, they should), it would be the constitutional equivalent of a debagging. A proper humiliation. The Welsh Government and Assembly will be a laughing stock. It could boost and polarise nationalist and abolitionist camps, theoretically. The UK Government are about to do the same with the Official Languages Bill by the looks of it.

    On One Wales, (perhaps ironically) IWJ aside, Plaid ministers did a fair job in government. The two most "successful"/"stable" periods in the Assembly's history so far have been when Labour don't rule alone. You could certainly argue that One Wales was the most successful Welsh Government since devolution - which isn't saying much, true.

    We also have to remember that if the Lib Dems had a spine, we could've had a rainbow coalition. I think, as Anon 11:57 says, Labour's success was more to do with anti-Tory feeling than anything else. Plaid's failure was to provide any serious, credible, concrete alternative. I think that's slowly changing now, but it might be 10 years too late.

    Anon 15:40 - I don't watch Assembly debates, and only scan through Cofnod and committee reports when there's something of note to cover. I only caught the end of the railway debate and thought Simon Thomas in particular did a decent enough job.

    Assembly debates have never made great political theatre, but it's what's said that's more important, not how it's said. All parties can be good on their day, it's just the relevance, timing and framing of questions that's an issue. Labour have more dead-weight than most in that regard.

  11. I agree with Owen, broadly. If Plaid hadn't forced the referendum then the current spats would be masked by the LCO process. Having these spats without the 2011 referendum would not prove any point about devolution being limited at all. The spats only seem ridiculous now because of the referendum victory.

    The real reason Plaid failed to capitalise on Labour's unpopularity in the past was that few people in Wales had any idea what Plaid stood for or what they would do in government. The party itself is still seen as a foreign concept to many Welsh people, though hopefully that number is going down. The best time to choose Leanne Wood as leader would have been 2005 or 2006, when Blair was in power. But perhaps she wasn't the politician then that she has become since 2008, and of course it's not all about leaders. We can't turn back the clock now and Plaid supporters have to patiently build up the party and make it a realistic proposition in all parts of Wales. They also have to keep their existing supporters onside! New Labour could afford to lose millions of core voters by "reaching out" but Plaid Cymru really couldn't.

    Hopefully the spat between the Welsh and UK Governments will demonstrate that Plaid Cymru has the correct ideas to get self-government for Wales, and that we could then use new powers to put good policies in place.

  12. You've got to laugh. At the end of the debate I was criticising yesterday the Tory AMs voted accidentally in favour of a Plaid motion that accused the UK Government of "incompetence" over rail franchising.

  13. Anon 10:39 - I pretty much agree with that, but I'm not 100% sure new powers are always needed for the best policy - at least within the UK. All we need is an ambitious government that isn't so worried about how they are portrayed in the press, and is willing to act as a truly national government.

    Anon 14:04 - I found that story odd, so I checked it for myself. Amendments 1 and 7 removed the "incompetence" bit - both the Tories and the Lib Dems voted for those amendments, but they failed.The Tories did, indeed, vote in favour of the unamended motion which included the bit about the UK Government's incompetence. Only the Lib Dems voted against. D'oh!

    But in all honesty, these motions mean very little as far as I can tell.

  14. Anon 10:57

    "...relatively few voters were aware that Plaid Cymru had been in coalition at all. The main reason Labour picked up more votes (including switchers from Plaid) is because people were worried about the Tories being back in power in London."

    How then do you explain the Labour failure in Scotland, and Salmond's success?

    The only way that I see it is that Plaid had allied itself with Labour, and as you say, many people weren't even aware of the fact, and as a result (of that and poor leadership) the electorate weren't able to see Plaid as a credible alternative to Labour.

    Even worse, the referendum success was not due to Plaid votes, but to Labour ones, because largely, Labour in Wales supported a Yes vote. One could argue that Plaid got the referendum in the first place - big deal. One could also argue that Labour would have gone for a referendum under Carwyn Jones, when the Tories were in power at Westminster, as they are now. Jones would have had the support of Plaid and the LibDems in bringing it forward. Another success for Labour.

    Imho, Plaid's gains in the One Wales Government were minmal, and outweighed by the medium to long term damage done to the party by its associatin with Labour - Vote Plaid Get Labour - why vote for the monkey when you can vote for the organ grinder. It's Labour that Plaid has to defeat, working with it means the death knell of Plaid. Salmond and the SNP were perceptive enough to shun Labour and reaped the rewards for it.

  15. "Lose, and it'll be the biggest embarrassment for the Welsh Government and Labour since devolution, and would seriously undermine the credibility of the National Assembly as a legislature. If they can't pass a law on local byelaws because of their own errors, or you could say Westminster interference, how can they be trusted to pass laws on something "serious" like organ donation?"

    Quite. I suppose the Assembly could remind people of the Social Housing LCO which the House of Lords found to be ultra vires ....if the House of Commons can't pass a law because of their own errors without the 'interference' of the House of Lords... Unfortunately the Assembly was complicit in the changes which led to an ultra vires LCO.

  16. maen_tramgwydd - You certainly have a point. However, I'm willing to bet the SNP were carried as much by Alex Salmond's personal leadership qualities than being an alternative to Labour. Alex Salmond is the best politican of the devolution era by a country mile, and if he were Labour or Conservative would probably be UK Prime Minister by now. The SNP's success could almost be considered a fluke in that respect.

    On Plaid's term in government. I personally think they did quite a bit in government - Jocelyn Davies in particular with regard housing, Elin Jones in rural affairs (badger cull aside) and even IWJ on transport (if not the economy). It should've given people a taster of what Plaid in government would look like, but you're quite right to say that it didn't work like that.

    Hendre - You can probably justify a second chamber for the UK as a whole as the sheer number of bills and regulations that pass through there each year is going to lead to errors. These mistakes shouldnt be being made at a Welsh level though - ideally. Maybe Miserable Old Fart is right about a few of them being deliberate, I don't know.

  17. As I understand it, the problem with the Housing LCO emanated from Conservative members on the Welsh Affairs Select Committee trying to prevent the Assembly gaining powers to do something they disagreed with as a matter of policy - suspension of the right to buy. It's an example of the Conservatives trying to 'game' the Welsh settlement themselves and getting caught out. I suppose it could be brought up in any war of words over who is more incompetent when it comes to legislating under the Welsh settlement (should the Supreme Court decide against the Welsh Government) but I rather doubt whether the Welsh public would be much interested in this sort of minutiae!

    Re the MOF theory, you do wonder whether Carwyn Jones/Theodore Huckle were looking to 'flush out' the powers of the Welsh Secretary and start a public debate about the role. Or maybe they just could bear the thought of having to fo cap in hand and ask Cheryl Gillan's consent for anything?