Senedd debates draft Wales Bill

Following the stronger words said on the draft Wales Bill over the last
fortnight it was rightly time for more measured discussion on the issues it raises.
(Pic : BBC Wales)

Yesterday, following the suspension of standing orders, the National Assembly held an extraordinary debate on the controversial draft Wales Bill.

For more detail on what the draft Bill actually contains, see Draft Wales Bill (Number Two).

The First Minister described it as "the most important debate in Wales for some time" (clip). Although it's written off as "constitutional wonkery", it goes to the heart of what the Assembly can do. He met the Secretary of State for Wales (SoS) in the last few days, and Stephen Crabb was appraised of what the difficulties were.

The First Minister said that, at heart, the main problem is the failure to create a legal jurisdiction (Creating a Welsh legal jurisdiction), citing comments from the Lord Chief Justice that one can be created without a separate legal system and at little to no cost. If there were a legal jurisdiction, the Wales Bill would be easier to draft and anomalies can be dealt with.

Carwyn highlighted three other problems :

1. What is or isn't devolved – There were some anomalies, citing devolution of ports and harbours which will be based on turnover, so if the Welsh Government improved port income they would lose control of them. He also mentioned the Community Infrastructure Levy, as well as open-cast mining (The Abyss Staring Back at Wales), where regulation and licensing is still controlled by Westminster, but land restoration will be devolved.
2. Minister of the Crown consents – The First Minister described them as "a relic". The Assembly's power to modify Crown Minister functions where consequential or incidental will be removed in the Bill. This would overturn the Supreme Court judgement on the Local Government Bylaws Act 2012. He suggested this could, potentially, prevent the Assembly legislating on anything. The process "works at a snail's pace", citing the Social Services and Wellbeing Act 2014, which needed consent from 7 Whitehall departments in a process that started in 2012. The Welsh Government have also been waiting for crown consents on several current laws for many months.
3. The Necessity Tests – These set "an incredibly high bar" for the Assembly to amend criminal or civil law, meaning the Assembly would be able to pass laws but wouldn't be able to enforce them. In the case of devolved taxes it could potentially make paying stamp duty optional. It could also mean it would be "highly likely" every future Bill would end up in the Supreme Court.

The First Minister called for a Bill that's coherent, clear and respects the 2011 referendum. The SoS has given assurances he'll work to improve the Bill and now understands issues that need to be resolved. He doesn't believe Stephen Crabb wants to create a parliament that can't enforce its own laws.

Leader of the Opposition, Andrew Davies (Con, South Wales Central), said it was a more measured response compared to a fortnight ago (clip). We (AMs) need to use every opportunity to strengthen the devolution settlement so we don't go back and fore to the Supreme Court – meaning it was important to work cross-party.

Unsurprisingly, he said there was "a lot of good in the Bill", citing energy powers, speed limits, bus regulation and powers over the Assembly itself. However, he acknowledged consent issues, and was open-minded on whether a legal jurisdiction will provide clarity – though the Conservatives "will need some persuading".

Plaid Cymru leader, Leanne Wood AM (Plaid, South Wales Central), said attempts to deliver reserved powers without a legal jurisdiction are "complex and restrictive", with the draft Bill complicating things further (clip). There was a need for compromise, but this was an unfair one, being advertised a "lasting solution" but leaving Wales at a disadvantage.

Leanne said the only person escaping blame for the situation was the SoS himself, as he lashed out at critics and told everyone to stop discussing it. She didn't let Labour off the hook, criticising Labour MPs for agreeing that certain policies shouldn't be devolved – like teachers' pay and policing.

The UK Government were trying to "fob Wales off", which isn't friendly and challenges Welsh civil society to accept a Bill that won't work. Leanne called for parity with other devolved nations, and for the Silk Commission recommendations (Silk II : The Wrath of Paul) to be implemented in full, alongside devolution of income tax-varying powers minus a referendum.

Welsh Lib Dem leader, Kirsty Williams AM (Lib Dem, Brecon & Radnor), said the status quo can't stand (clip). The settlement is unclear, and there need to be steps forward to deliver clarity for the Assembly and people of Wales, but she feared the draft Bill risks taking a step backwards.

The reserved powers, as presented, are not as simple as AMs were expecting, verging on unworkable. It was also hard to understand the implications of the necessity tests. She posed the question that, "If we can't enforce out own policies, what are we for?"

Kirsty asked why Scotland and Northern Ireland aren't subject to the same restrictions? And why we were operating on an assumption that all powers rest with Westminster when power rest with the people, meaning Westminster should justify why certain powers - of the 250+ in the draft Bill - need to be reserved. She proposed the Assembly repeat what the Scottish Parliament did with the Scotland Bill and establish a special committee to work on the Wales Bill.

Mike Hedges AM (Lab, Swansea East) described the draft Bill as "a disappointment" (clip). He still believes in a reserved powers model as it was impossible to get clarity without it, but the proposals put Wales in a worse position than community councils and major English cities. Certain powers - like defence currency and foreign affairs (Wales & The World) - need to be reserved otherwise it would result to independence. He suggested that, to create an end point for devolution, a system similar to Northern Ireland should be used where certain powers wouldn't be devolved immediately, but would be on the table for future devolution once finances are assured and a super-majority votes for them.

Simon Thomas AM (Plaid, Mid & West Wales) underlined a need to learn lessons from other parliaments on inappropriate ways to set the constitution (clip). The necessity test needs to be removed, or at least how it would be implemented needs to be made clearer. The Crown consents came about as a result of the Wales Office going to Whitehall departments who are trying to retain as much power as possible. He called for the SoS to do a better job of protecting Wales, and agreed with calls for a special committee, adding that Plaid MPs will "table significant amendments" when appropriate.

John Griffiths AM (Lab, Newport East) repeated calls for a constitutional convention to look at matters across the whole of the UK (clip). There's a need to avoid "defeat being snatched from the jaws of victory" with the draft Bill, and there's a responsibility for the SoS to deal with issues raised by civil society and academics. He supported the devolution of policing (What's all this then?) as it would complement existing devolved powers on substance abuse, domestic violence and community safety.

Gwenda Thomas AM (Lab, Neath) said the draft Bill was "as full of holes as a Swiss cheese" (clip), but wanted to highlight one of the positive aspects. The phrasing of the reservation of tribunals means responsibility for certain tribunals would fall under the Assembly, providing an opportunity to create a Welsh Tribunals Service to deal with issues like social care payments - which was particularly important in light of cuts to legal aid.

Mick Antoniw AM (Lab, Pontypridd) said the SoS's response to concerns created a misunderstanding of what was happening (clip). There was nothing more important than clarity, and the Bill is full of language on conditionality and necessity, with the question being who decides what's necessary? The UK Government will have to vet all Welsh laws, with the possibility of them also holding a veto.

Alun Davies AM (Lab, Blaenau Gwent) said there was a need to ensure the SoS is held to account for the objectives he's set himself (clip). He's set himself at the head of cross-party consensus, but Alun's yet to see anyone agree with that consensus, implying the SoS "has a group of imaginary friends around him" who agree with him.

The SoS gave a gracious speech in June, and told the Assembly he would lead a process that results in a lasting devolution settlement, but leadership meant understanding that you're not quite where you want to be. It was difficult to see how the draft Bill will help either the integrity of the UK or service delivery. There can't be over 200 exceptions as it doesn't provide clairty, while Crown Minister vetoes were undemocratic.

He called for the SoS to work on the substance of what he wants to deliver, not his speeches, adding that having four Wales Bills in 20 years was a sign of Westminster's failure to deliver clarity and permanence.

In response, the First Minister said it was clear there was much work needing to be done (clip). The first part of the draft Bill delivers what was promised, but the main objective was to deliver a basis for devolution that would last a long time – without a jurisdiction we'll be back here again to deal with it, even though it already exists in many ways.

On specific powers, he queried why speed limits are devolved, but drink-driving and road signs (due to bilingualism) are not? Opposition to devolution of policing was because it was wrapped with PCCs and there were concerns Wales would abolish them. He didn't rule out future devolution of criminal justice powers – at some cost – but that wasn't tied to the legal jurisdiction.

Now what?

Now that everyone's let of steam we'll hopefully start to see progress,
but I still think we'll be here again in the 2020s even with a Welsh jurisdiction.
(Pic : Wales Online)

This debate was, essentially, a request for a Welsh legal jurisdiction. The language was certainly more measured compared to when the draft Bill was unveiled, but some of the SoS's rhetoric since the draft Bill was introduced has also been laughable and genuinely unbecoming of someone in his position.

You would think someone like me would be pleased that the constitution has shifted to the forefront of debate - to the point that even The Western Mail are producing articles that could be considered pseudo-nationalist clarion calls. I'm not pleased.

I find these discussions as tiresome as the next person and a distraction from stuff that actually matters. It's just that whenever there's an opportunity to put the issue to bed for a long time, our politicians screw it up.

The combined Richard and Silk Commission proposals would've created an Assembly with enough staying power that the only people discussing the constitution would be nationalists.

Instead, it's provided an opportunity for the otherwise docile First Minister to – as has been described elsewhere – sound like Owain Glyndwr.

Like Glyndwr, Carwyn Jones is a man of the law – though the similarities end there. The rebellion started following a relatively minor land dispute which prompted a disproportionate response from a London-based government, resulting in Penal Laws which asserted English political and social dominance over Wales – a more brutish medieval version of the "tests of necessity" in the draft Bill.

Phil Davies at Pedryn Drycin has rightly said that, although the rhetoric sounds good, the Welsh Secretary hasn't once hailed the virtues of the draft Bill. Stephen can get away with it because of media weaknesses and the fact nobody pays attention to legislative scrutiny - with the Bill's process through Westminster to be punctuated by the 2016 National Assembly elections and the EU referendum.

All he needs is patience to win out in the end, but it'll never pass it without the Assembly's consent. If it were forced on Wales without taking into consideration the opinions of the Assembly - which is, technically-speaking, Westminster's right to do so under parliamentary sovereignty - then that tells you all you need to know about how the UK works and Wales' position within it. Yes sir, massa.

It's reasonable to say that the public don't give a toss. They'll only care if a future Welsh law that large chunks of the public actually care about – for argument's sake, laws on :

• Pay and working conditions in the care sector
• Access to new drug treatments for cancers and rare diseases
• Using wild animals in circuses
• Disposal of hazardous waste
• Restoration, and regulation, of open-cast mines

....ends up blocked by an English Secretary of State under the necessity tests. By then it'll be too late.

That's why this "boring stuff" matters and why constitutional discussions matter generally.