Tuesday, 4 March 2014

Silk II : The Wrath of Paul

On Monday, the second and final part of a wide-ranging review into Welsh devolution was published by the Silk Commission – available here (pdf).

The first part looked at fiscal powers, culminating in the current Wales Bill. This second part, however, looked at the National Assembly itself and its devolved powers, as well as other issues like the Welsh civil service and cross-border cooperation.

It was difficult to decide how to approach this, so I decided to split it into one chunk looking at devolved powers, another at key powers taken off the table and another looking at changes to "the machinery of government" (civil service, the Assembly etc).

What further devolved powers does Silk II propose?

The headline proposals are to devolve policing and youth justice, though
without wider criminal justice powers at present.
(Pic : BBC Wales)
Policing – The headline recommendation, which includes crime prevention and community safety. Devolving the police would mean the National Assembly would have legislative competence for the "governance and administration" of the police in Wales – the only emergency service not currently devolved. Things like the National Crime Agency would remain non-devolved. In terms of funding, the current Home Office grant would transfer to Wales, with an estimate £2-3million bill to set up a specialist Welsh Government policing team. Policing should be devolved by 2017.

Youth Justice
- This covers the "treatment and rehabilitation" of those aged 10-17 who commit criminal offences. Many of the factors here are intertwined with devolved and local government services like education, social services, training and health. So it's recommended administration of youth justice services be devolved by 2017, which would cost around £300,000.

Transport – There's a package of powers here, the big ones being devolution of Network Rail funding and the Wales & Borders rail franchise, which is what the Welsh Government and Enterprise and Business Committee have long called for. Also included is ports development, which is important for the economy. Elsewhere in public transport, there are proposals to devolve Traffic Commissioner functions as well as regulation of bus and taxi services. In terms of road transport, there's a recommendation to devolve speed limits and drink-drive limits – in line with what's happened in Scotland.

Energy Project Consent – Because the energy needs of Wales (a net-exporter of electricity) would be out of kilter with wider UK needs, the full devolution of energy consent was rejected – however the limit for the Welsh Government to consent to energy projects would be raised to 350MW from the current 50MW (more from A Welshman's Blog).

Water (Partial) – Powers over sewerage should be devolved, and the boundary for legislative competence should be aligned with the national borders, with a formal inter-government protocol on cross-border water issues.

Local government elections
– Including their administration and rules of conduct. Technically speaking, the local government electoral system is devolved, but I imagine this recommendation includes that too.

Teachers' pay – In line with Scotland and Northern Ireland, however pensions devolution has been rejected as it would discourage cross-border movement of teachers between England and Wales. The Scottish and Northern Irish education systems are a bit more independent than the Welsh system anyway.

What devolved powers did Silk II reject?

The Commission rejected the devolution of broadcasting, but included
measures that will give the National Assembly an enhanced role.
(Pic :outcasting.org)

Criminal Justice (for now) – This includes the court system, prisons, legal aid, sentencing guidelines, public prosecution and probation services. The costs of creating a Welsh judiciary are much, much smaller than I was expecting - £2million – but the additional cost of a Welsh court system would be £10million. The Commission say the Assembly should instead start off with powers that impact the "day to day lives" of people (policing). So it's rejected now, along with prisons, but something that "should be contemplated in future", with a full review into devolution of criminal justice taking place between 2018-2025.

Further economic powers – The report rejects further devolution of economic powers. Amongst those proposed were DWP work programmes, consumer protection, regulation and inward investment. Instead, the report says there should be better cross-border coordination in policies which overlap (like training programmes).

The Crown Estate – Instead of transferring responsibility for the Crown Estate to Wales, its recommended Wales have similar status to Scotland, with an appointed Crown Estate Commissioner and Crown Estate office.

Broadcasting – As expected, and as I predicted back in September last year, devolution of broadcasting has been rejected due to opposition from both Welsh and UK governments. However, the National Assembly "should take an enhanced role in broadcasting" with a devolved governance body (Welsh BBC Trust), public funding for S4C should be devolved (which doesn't matter as it's moving to whole scale licence fee funding) and appointment of S4C Authority members should require Welsh Government approval. Ofcom should also have a board member with "specific responsibilities for Wales".

Social security "Social welfare" is devolved to the National Assembly, that includes things like social services and child protection. Social security – aka. the benefits system – isn't, and isn't even devolved in Scotland or Northern Ireland. 46-51% of people polled believed the National Assembly should control the benefits system, however it's rejected because it's an important part of the social and economic union, and the Welsh Government were concerned about exposure to budgetary risks.

What does Silk II outline for the machinery of government?

In addition to reserved powers, by 2021 will this
be home to an 80-member Welsh Parliament?
(Pic : National Assembly of Wales)

Reserved powers – Arguments in favour of a reserved powers model are :
  • Certainty in what powers the Assembly has, meaning they can "legislate with confidence".
  • Schedule 7 of the Government of Wales Act 2006 is "unclear", because the whole thing has to be consulted before laws are made, while it's obvious in a reserved powers model which powers are explicitly off the table.
  • It would "be more stable over time", meaning no challenges to Welsh laws as we've seen in (currently) three cases. A reserved powers model would also reduce the risk of such litigation.
  • It would "bring greater consistency" with the rest of the UK, as a reserved powers model is used in Scotland and Northern Ireland.
  • It would enable the devolution settlement itself to be redrawn along "clearer and more logical principles" and it would be simpler.

Inter-governmental relations – Welsh and UK governments should share good practice, with a statutory code provided in a new Government of Wales Act. A Welsh-UK Government intergovernmental committee should be established with a new arbitration system for disagreements between the two governments.

The National Assembly itself – Some proposed solutions to the "scrutiny gap" and demands on AMs time have included "smarter working" (which I've covered before) adding co-opted unelected members to Assembly committees (as in local government) or the creation of a second chamber. However, the Commission say it's "convinced the Assembly requires more backbench members....to scrutinise policy and legislation more thoroughly." They therefore propose an increase in the number of AMs from 60 to 80 at a cost of approximately £5.3million. Don't cheer all at once.

Also, the (pseudo-colonial) right for the Welsh Secretary to participate in National Assembly sessions would be removed. The Assembly should also be able to regulate its own financial procedures with the door left open on a possible name change to "Welsh Parliament" – though I don't see the point, personally.

The National Assembly should also be recognised as "permanent" as long as it's the will of the  people of Wales.

The Civil Service & Civil Society – There are no proposals to "devolve" the civil service, and the Commission believe that the Welsh Government should continue to be staffed as part of the "Whitehall" civil service. UK Government departments should also be "clearer about the extent of their responsibilities for the different parts of the UK."

Timescales & The Referendum Question

The proposals will not only mean an increase in responsibilities,
but also an increase in the devolved budget.
(Pic : BBC Wales)

The big thing to note is that the Commission rejects holding a referendum on these extra powers (other than the proposed income tax powers as outlined in the Wales Bill). Instead, it should be a matter left for individual party manifestos in the 2015 UK Election and 2016 Welsh General Election.

I'm not entirely sure I agree with that, for reasons I outlined in Marching out of lockstep.

Some of the proposals can be introduced without legislation, mainly those powers relating to improved inter-governmental working, or things that can be transferred by Orders in Council.

The other powers, and a reserved powers model, would require a new Government of Wales Act. A Bill would be published in autumn 2016 and enacted by summer 2017. If the Bill passes, then the National Assembly would have a reserved powers model following the 2021 Welsh General Election.

Full devolution of rail and policing would result in the devolved budget increasing by £500million, and full devolution of criminal justice would increase that to £800million. If you include the £300million "fair funding" then I guess that takes it to £1.1billion.

Conclusion : A golden mean?

The shelves must be creaking under the weight all these reports...and the dust.

(Pic : Click on Wales)
I'll come back to the political reaction when this is inevitably debated in the Senedd over the next couple of weeks/months.

Silk II has been argued in a logical, pragmatic manner. It's much better than Silk I and undoes a lot of the mess Peter Hain left in 2006. However, at the same time there's also very little on the table. The powers are similar to those devolved to Scotland under the Scotland Act 2012. Copy and paste, almost.

The question there is if Scotland votes no in September, and as a result acquires further devolved powers or devo-max, Wales will be left behind yet again when - based on this report - Wales is tantalisingly close to achieving parity with Scotland (if criminal justice powers were devolved in future).

A lot of the things have been mentioned so many times before – like devolution of the Wales & Borders franchise, policing, youth justice, reserved powers and teachers' pay – that it's a bit of a damp squib, albeit welcome.

It would've been exciting, and really made a difference to the National Assembly's standing, if we got criminal justice powers alongside that, but we'll have to wait until the 2020s if it's to happen. It's sensible for it to be reviewed thoroughly, but it seems like a largely unnecessary delay.

Having control over policing without criminal justice powers is a bit like like having control of the ambulance service without running hospitals.

Returning to the Assembly itself, it'll be hard to justify 80 AMs until after the devolution of criminal justice powers because those powers really will increase the workload for AMs above and beyond what they currently have. The current 60 should be able to cope with these powers (like policing, teachers pay etc.) as long as they find ways to – as the report puts it, and as myself and others have put it before – "work smarter".

So I'd say I'm neither blown away nor disappointed - it's pretty sensible on the whole. However, as history has shown us, the final versions of visions of grand commissions often end up watered-down. This is going to have to remain a whole package, as I don't think there's any room for compromise here that won't undermine its intent.


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