Wednesday, 24 April 2013

The Spirit of Dark and Lonely Law-making

"I am the Spirit of Dark and Lonely Law-making. Ready to trap
the unweary, the show-off, the fool, and this is the kind of place
you would expect to find me."

The Western Mail - and Glyn over at National Left - reported last week on concerns raised by the Electoral Reform Society Wales director, Stephen Brooks, about how legislation was drafted by AMs, as well as confusion surrounding the Assembly's legislative powers.

I've said a few times that – despite what you all might think - I consider constitutional arguments a political turn off.

If we're going to have a devolution settlement, I'd prefer one that has staying power and works, hopefully not requiring another referendum for 20-odd years. What we get instead are muddled compromises, or "gifts" dangled in front of us by Westminster politicians.

I don't think the constitution is a "distraction from issues relevant to ordinary people", as politicians are perfectly capable of dealing with more than one issue at a time. You have to be rather clever to get selected and elected in the first place.

Rather, it impedes the Assembly and Welsh Government's ability to deliver. This will impact public services if AMs and ministers question their ability to draft new laws to improve them.

It all points to another Anglo-Welsh mess, that could've been cleared up in 2006 through having a robust Government of Wales Act - including a reserved powers model once a referendum was won.

Member's Bills : A brief overview

Backbench AMs have an opportunity to introduce their own legislation – Member's Bills. Anyone who wants to do so puts their name into a hat "from time to time", and a "winner"/"winners", gets to introduce their own law. That's dependent upon the Assembly agreeing, and the Bill has to be introduced within 9 months of the Senedd granting approval. There's more detailed info on this from the National Assembly themselves (pdf).

To give you an idea of the laws proposed by AMs, here's a selection of ones proposed during the most recent ballot, held today coincidentally:
Update: Darren Millar AM (Con, Clwyd West) won the ballot and will introduce a Bill on holiday and caravan park regulation.

The two Member's Bills introduced so far this term – The Mobile Home Sites Bill & Asbestos Disease Bill – are quite good bits of legislation on paper. The Asbestos Disease Bill may even been expanded in scope to cover all industrial diseases, which would be quite significant.

The only one you can point to as being a bit silly was Darren Millar AM's previous attempt at a Member's Bill - the Chewing Gum Levy Bill. Having said that, it was well-intentioned and it aimed to address a specific problem, which is what new laws are supposed to do.

So I don't think there's an issue with regard backbench AMs or the Assembly Commission's ability to come up with or draft legislation. They clearly - by and large - know what they're doing and they want to create laws to improve people's lives, presumably address issues close to their hearts too.

It's just that, in terms of the clarity of the legislative waters, they're diving into the equivalent of an abandoned quarry, not off Three Cliffs Bay.

I'll be back-ack-ack-ck-ck-k

This particular row stems from Simon Thomas AM's (Plaid, Mid & West Wales) proposed Member's Bill to change the electoral system at local government level to Single Transferable Vote. It's wasn't up for consideration in today's ballot, so I don't know if he's decided to push it back to a later date because of this.

Simon insists he's been told, in writing, by the Assembly's lawyers that he would be able to legislate for a change in the voting system for local councils.

"The show-offs are easy, but the unwary ones are easier still. The
Welsh devolution settlement and legislation is weak,rotten, 
it'll never take his weight."
Mike Hedges AM (Lab, Swansea East) - who's become Welsh Labour's de facto backbench spokesperson on constitutional affairs recently – disagreed, saying those powers would fall outside the Assembly's devolved competence. Peter Black AM (Lib Dem, South Wales West) joined in too, suggesting there was a "difference of opinion" between the legal teams.

You could say Mike Hedges would be reluctant to see STV in local elections anyway, because Labour holds an ingrained advantage (in many local authorities) by retaining first past the post. However, it appears as though Mike is right. Stephen Brooks also agrees that the local government voting system hasn't been  devolved to Wales.

Assembly powers are devolved on a piece-by-piece, line-by-line basis. So even if local government is one of 20 areas "devolved" to Wales, some individual powers remain outside the scope of the Assembly.
"Only a fool would ignore the signs, but there's one born
every minute. Under the Hain there are traps. Westminster
interference, legalese, old fridges. It's the perfect
place for an accident."
We have to remember that all of us who bothered to vote yes in 2011, voted to abolish the system whereby the Assembly had to ask permission to make laws in devolved areas. It never changed the devolved areas themselves.

I wasted more precious time on this ball of rock going through the sludge and old cars lurking beneath the murky waters of Government of Wales Act 2006, and I found what I believe to be a "smoking gun" :
Schedule 5, Part 1 (listing the devolved powers/"matters")

Field 12 (Local Government) Matter 12.9

Electoral arrangements for elected local government institutions for communities. In this matter “electoral arrangements” does not include

(a) the local government franchise
(b) electoral registration and administration
(c) the voting system for the return of members in an election

That, to me, reads as though electoral arrangements have been devolved (the first sentence), apart from some pretty key components of "electoral arrangements" (exemptions a, b & c). The GoW Act effectively says, in legal terms, "Yes, but no."

If devolved powers were a cake, it's a bit like being forbidden from using butter and eggs in the recipe.

But wait! A big thank you to MH for pointing this out....

When the referendum was won in 2011, Schedule 5 of the GoW Act 2006 no longer applied. Instead, law-making powers are set out under Schedule 7.The list of exemptions in Schedule 7.12 removed the local government electoral system. So, it looks as though Simon Thomas, or the Assembly, would be able to pass a Bill to change the local government voting system after all.

All this isn't confusing at all, is it?
If Schedule 5 no longer applies, then that should be the end of it. But as we saw with the Byelaws Bill, there are so many potholes here, it's open to a massive legal squabble.

So there you have it. Despite local government being a "devolved area", the Assembly can't change basic areas of local government policy like how we elect local councillors. They can't even create directly-elected mayors (Field 12, Matter 12.6).

"Sensible devolution settlements....I have no
power over them."
But - in principle - if local government is devolved, the Assembly should be in charge of it in its entirety, shouldn't it? That would make things clearer for all concerned, and the Assembly would certainly be able to enact more radical and wide-ranging changes if that's what AMs want to do.

Scotland had no problems changing their local electoral system to STV, because their devolution settlement sets out what power Westminster retains, not what's devolved to Scotland (reserved powers).

It's "grey areas" like this, and the existence of piecemeal devolution, that partly-caused the legal row over the Byelaws Bill last year. I'm worried it's going to happen with the Silk Commission too, and some suggestions in Part One certainly look like that.

Instead of having a long overdue, proper debate in the Assembly on the local government electoral system at some point in the future, we'll end up with more articles and blogposts sprouting up – like this one – boring everyone to tears about constitutional trivialities. Everyone else turns off and tunes out.

It's not a surprise that backbench AMs are reluctant to dip their toes in the dark, lonely, sewage-infested water that is the Government of Wales Act 2006.

One more thing....

I don't mean this as a criticism, more an observation, but AMs might not be helping themselves either.

AMs have an opportunity to question the Welsh Government's senior legal adviser – the Counsel General, Theodore Huckle QC – in plenary (roughly) every month. Presumably, he'll be able to clear up concerns over areas like drafting legislation and legislative competence as that's his job. Those answers would also be on the public record for future reference.

It appears only Simon Thomas is interested in asking him questions....any he's been the only one doing so since last November.

Throwing aside any extenuating circumstances and off the record/private correspondence, how many questions did AMs table for the Counsel General last week – written or oral?


Instead, they argue over law-making and legislative competence in public, below the gleaming spires of the University of Twitter's School of Law.

Maybe Carwyn Jones had a point about plenary sessions after all.

"....That was a public information film."


  1. Oh god! I'd forgotten about this safety advert! That's for dragging up those memories. Scared me to death!

  2. There's nothing scarier than the GoW Act 2006 though, surely? :p

  3. Conferred vs reserved power devolution - discuss..... I would urge everyone to comment on the Silk commission website and say that we need to move to the reserved model not the conferred model of devolution.

  4. One of the few things in politics I'm genuinely cynical (ha!) about, Cibwr, are "public consultations". I don't think they pay attention to individual submissions compared to organisations submission. I think individual comments are - by and large - ignored, or simply set up as pins to be knocked over. These things are decided by four parties negotiating a settlement.

    I think a reserved model will eventually be included in Silk, but that could easily mean that Westminster will simply retain powers listed as exemptions in the GoW 2006.

  5. Nice piece, Owen. I'm in the process of writing something on the local election voting system too, but am waiting for a few bits of evidence that might help.

    One thing I can say now is that what you've quoted from Schedule 5 to the GoWA 2006 relates to the situation before the 2011 referendum. Schedule 7 is what now applies.

    Very interestingly, Schedule 7 contains the first two of the exceptions in Schedule 5 ("local government franchise" and "electoral registration and administration") but has dropped "the voting system for the return of members in an election." To my mind this strongly implies that the voting system for local elections is now devolved to the Assembly, but that it wasn't devolved before 2011. That particular smoking gun might be pointing the other way.

  6. Thanks for "clearing that up", MH. If anything involving this jungle of a law can be considered clearing up. I've updated the post to reflect that.

    Schedule 7 - on the whole - looks like a "tidied up" version of Schedule 5. I do wonder though, considering changing the voting system was probably the most significant exemption, whether it's been left out of Schedule 7 "accidentally".

    It now looks to me as though the Assembly would be able to pass a Bill to change the local voting system – as per Schedule 7. My concern now is if there's ambiguity whether the Assembly would have the legal power to enforce that change (as a devolved "matter") as it would contradict Schedule 5.

    Surely Schedule 5 should've been amended to remove the local electoral system exception once the referendum passed? Or even deleted as a whole?

  7. As I understand it, Owen, Schedule 5 is now completely redundant and therefore doesn't need to be amended. It is only useful insofar as it implies that "the voting system for the return of members in an election" is something that would naturally be considered to be part of "electoral arrangements", and therefore had to be specifically excluded.

    Schedule 5 has been replaced by Schedule 7 as the definitive list of what lies within the legislative competence of the Assembly. It's hard to believe that the difference between Schedules 5 and 7 was an "accident", but surely the only way to interpret any piece of legislation is on the basis of what it actually says rather than on the basis of what politicians might or might not have liked it to say if they'd thought about it.

    It's not unusual that Schedule 7 should be more extensive than Schedule 5. To take one example, the Welsh Language Measure was constrained by the list of Matters in Field 20. But following the referendum, the Assembly can now pass a new Language Act which is not bound by those constraints. The only specific thing it would not be able to legislate on is the use of Welsh in courts. However there are general restrictions which mean that the Assembly would probably not be able to pass a law about Welsh in broadcasting, because broadcasting is not devolved.

    As for the voting system in local government, I'm waiting for a copy of a letter from the Assembly's Chief Legal Officer to the Llywydd, which outlines the argument that it is not devolved. I'll be able to say more when I've read it.