Inextricably intertwined

In this post yesterday I set out some of my initial thoughts on the Welsh Government's submission of evidence to Part II of the Silk Commission. I now want to look at some crucial aspects of it in more detail, but I think it's only right to say at the outset that there is much in it that I welcome. Indeed I was rather pleasantly surprised by some of what it said. I didn't think Carwyn Jones, or Labour in Wales generally, had it in them to come out so definitely in favour of wanting devolution of policing and the justice system, or of moving from the "defined powers" model (or a "conferred powers" model, as the submission called it) we currently have to a "reserved powers" model similar to that which operates in Scotland.

Yet I must also admit to having some doubts about it; particularly to what extent it represents the view of, say, Labour MPs in Wales or of the Labour leadership in Westminster. Has Carwyn done the hard work of consulting with the wider Labour Party in Wales and with the leadership of the party in Westminster, or is he just flying a kite? Are Labour's MPs in Wales willing to accept this as Labour Party policy?

About this time last year I had a chat with Owen Smith, and one of the things we talked about was who actually led the Labour Party in Wales; particularly because of Labour saying that its manifesto for the Westminster election in 2010 over-ruled its subsequent manifesto for the Assembly election in 2011 on nuclear power. He said that Carwyn was undisputedly recognized as the leader of the party in Wales, rather than the then Shadow Secretary of State, Peter Hain, who to me seemed to be acting as if he was in charge. Now that Owen himself is doing that job, will he be equally unequivocal in support of Carwyn's leadership on the matter of further devolution for Wales? I hope so.


In this post I want to concentrate on just three aspects of the Welsh Government's position because they are inextricably intertwined: moving to a reserved powers model of devolution, policing and establishing Wales as a separate legal jurisdiction.

The WG wants to move to a reserved powers model, wants policing to be devolved, but does not want to see Wales become a separate legal jurisdiction at this time. I have grave doubts about whether that position is tenable.


Many of the political conversations I have had over the last few years have been over why Wales has such a different model of devolution to that of Scotland, and in particular why Wales has a defined powers model rather than the reserved powers model which Scotland enjoys. Most of the people I've talked to and things I've read suggest that it was not possible for Wales to have a reserved powers model because Wales was not a separate legal jurisdiction. But I must balance this by saying that even though this was the reason given at the time, some people believe it was not a valid reason, but instead was just a pretext put up by politicians who did not want Wales to have a similar devolution settlement to Scotland.

I can't give a definitive answer about which is right, but I can point to what Alan Trench—whose opinion on anything to do with devolution is not to be dismissed lightly—has said about it. These are bullet points from a presentation he gave in Cardiff last year, though the emphasis is mine:

•  As far as legislation is concerned, the key advantage of a Welsh jurisdiction would be to move to a ‘reserved powers’ model of conferring law-making powers on the Assembly – like Scotland and N Ireland

•  There are material advantages to having the ‘reserved powers’ model for making Welsh legislation work, by helping ensure legislation is within devolved legislative competence

•  And you need to have a separate jurisdiction for that, regardless of what substantive new functions might be devolved as part of creating a Welsh legal system

Alan Trench, 8 June 2012

So if the Welsh Government really does want to move from the current defined powers model to a reserved powers model—which is something I fully agree we should have, for all the reasons given by both Alan and the WG, as well as a few more—there must be a very serious question mark over whether it can happen unless Wales also becomes a separate legal jurisdiction.


I must admit to finding the WG's position on establishing Wales as a separate legal jurisdiction rather odd. It was definitely seen as a priority last year when they launched a consultation on it, but they have back-tracked on that and are now of the opinion that this is not something they think appropriate at this stage.

The reason they give for this change of position is in sections 17 and 18 of their evidence:

17.  The case for establishing a separate legal jurisdiction ... needs also to be addressed in the context of the Welsh Government's responsibilities for Policing and Justice. In his lecture to the Society of Legal Scholars in November 2012 previously referred to, the Counsel General said:

"If ... the Welsh Government cannot at present move forward with proposals for taking on Policing and Justice responsibilities, the case for a separate legal jurisdiction may be considerably weakened. It would be of limited or even dubious worth pursuing a Single Legal Jurisdiction "in principle" if Welsh Ministers and the Assembly did not also obtain a reasonably full set of powers in relation to Justice; crucial aspects of the supposedly separate jurisdiction would still be the responsibility of the Ministry of Justice. Thus, arguably, establishing a separate jurisdiction without transferring the relevant responsibilities to Welsh Ministers and the Assembly would simply amount to asking the Ministry of Justice to run two parallel systems, one for England and one (albeit to perhaps lesser extent) for Wales. They would not be likely to agree to this, and even if they did, it is not obvious why the inherent confusion would be of benefit to people in Wales".

18.  As noted above, the Welsh Government has concluded that it cannot now seek powers for the devolved institutions in relation to Criminal Justice and the administration of justice in Wales, although this remains our longer-term ambition. It follows that, for the reasons given by the Counsel General, a move to a separate jurisdiction now would not be likely to be of benefit to the people of Wales.

The reasons for the WG not wanting Criminal Justice to be devolved (although wanting policing to be devolved) seem to be primarily to do with cost rather than principle:

We believe that Policing and Justice (including criminal justice) should in principle be matters of devolved competence. But the potential costs and risks are such that we do not feel able to argue for transfer of criminal justice and administration of justice responsibilities at the present time ...

However the WG does want to "cherry pick" a number of specific responsibilities to do with various aspects of the justice system which are too numerous to describe here.


To me, it all seems rather confused and badly thought through. The conundrum is this:

•  The WG wants a reserved powers model, but (probably) can't have one without Wales being a separate legal jurisdiction

•  Wales (probably) can't be a separate legal jurisdiction unless it takes on policing and justice

•  But the WG is unwilling to take on policing and justice as a whole, because it believes it will (probably) not be accompanied by an adequate transfer of funds to pay for it

•  Therefore Wales (probably) can't become a separate legal jurisdiction

•  Therefore Wales (probably) can't move to a reserved powers model

Maybe there is a way to break this conundrum, but it would surely result in the same sort of dog's breakfast as Peter Hain's 2006 Act proved to be.

The better answer is blindingly obvious: establishing Wales as a separate legal jurisdiction, devolving policing and justice, and moving to a reserved powers model of devolution should all happen at the same time. This would be at the "core" of the new Government of Wales Act, and would be accompanied by an adequate transfer of expenditure from Westminster to Cardiff Bay to cover it ... though of course the Act would include many other things as well.

As I have said before, a substantial increase in responsibility of this sort would justify increasing the number of AMs in the Senedd to 80; but the cost would be more than offset by reducing the over-representation of Wales in the House of Commons from 40 to the same level as the remainder of the UK. This would be about 33 for the current size of the House of Commons; 30 was the figure if the number of MPs in the UK as a whole had been reduced.

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Owen said...

I'm pretty sure it was only a few months ago that Carwyn (or someone else high up in Welsh Labour) ruled out devolution of policing over cost concerns. I welcome this change of heart too, but you have to wonder what the motivation was behind it.

I don't think devolving policing would explicitly require a separate legal jurisdiction. I'd go so far as to say policing could be devolved within weeks if Westminster and the Assembly wanted to. Ultimately it's just an emergency service and is - to the criminal justice system - a little like what the Ambulance Service is to the Welsh NHS.

But why would WG want control of the "ambulances" but not the "hospitals"?

It would just, as I think you state yourself, avoid creating another GoWA2006-style dog's dinner. People might not notice these things when it comes to something like the railways, but they would if it affects something "juicy" like criminal justice.

Funding issues would need to be clarified, but I don't see why WG are so timid. Surely it would just mean simple changes to the block grant? Though admittedly there would almost certainly be big up-front costs in establishing things like a Welsh judiciary.

And I agree that as soon as the Assembly is responsible for things like drafting and passing criminal law, then the number of AMs would need to go up. So the WG may have a point in (effectively) saying "easier said than done."

Ambiorix said...

What percentage of the public support this?

Einon said...

Well as to the MPs position on this, we got an answer today in the form of David Hanson MP, who basically says "No". So we can add that to Energy consents then.

It wouldn't be difficult to draw the conclusion that Carwyn is nothing more than a little dog on a long leash, and that as soon as Labour get back into power in London, this call will be quietly dropped.

As to the change of heart, would it be anything to do with the fact that Plaid have been calling for devolution of policing powers? And can we now look forward to Plaid attacking Labour for their two-faced hypocrisy on the issue? Or is this all a little too negative!

MH said...

I like the ambulance analogy, Owen, and I agree with you about the Welsh Government's timidity. It really shouldn't be such a big deal. Perhaps over the next few weeks we need to remind people of the case for devolving policing and justice.

I would, however, pick you up on drafting criminal law. The Welsh Government is already doing this. For example, using electric shock collars on dogs is a criminal offence in Wales. It's also an offence for a retailer in Wales to give away single-use carrier bags without charge. For these reasons, the law in Wales is different from the Law in England, and those differences will, little by little, increase as both the Welsh Assembly and the Westminster Parliament pass different laws that affect only Wales or only England. I think everybody recognizes that Wales becoming a separate legal jurisdiction is inevitable ... it is only a question of when.

So I'd advise the more unionist of our politicians to think carefully about opposing it. The tide is coming in and there's nothing they can do to stop it. Even from their perspective, it should surely be better to put together one comprehensive package now, rather than than to constantly have to deal with the question of the next step in the devolution process.


There is broad public support for policing to be devolved to Wales, Ambiorix. In this YouGov/Prifysgol Aberystwyth survey in 2009, 50% thought decisions about the police should be made by the Welsh Government, 33% by Westminster, 10% by local authorities, 1% by the EU, and 7% didn't know. So 60% in total thought that decisions about policing Wales should be made in Wales.


I'd hold fire on things for a little while yet, Einon. The "usual suspects" are bound to come out with the "usual responses". They are rather like pawns in a game of chess. The big pieces will probably wait to see the result of these initial skirmishes (or should that be squirmishes? ;-) before taking up their positions.

But yes, if it becomes clear that the Welsh Government has just been flying a kite, and that Carwyn Jones doesn't command broad support from the Labour Party in Wales as a whole, he will of course look like a rather pathetic poodle who will be grateful that shock collars have been banned. But let's not try and stir things up now. I'd rather support Carwyn for what he's getting right than criticize him because a few members of the Labour Party in Wales have been quick to voice their opposition; not least because I want Silk to come up with a clear and coherent package of recommendations which is supported by all parties in Wales.

MH said...

Picking up on Einon's point again, I watched First Minister's questions last night and Carwyn Jones was adamant that what David Hanson had said was not a no.

Carwyn also made a great play about being the leader of the Labour Party in Wales. I hope it was not a case of "methinks the dog doth bark too much".

Video here.

Anonymous said...

I'm not sure I understand the 'unaffordability' argument. Surely there would be a Barnett consequential that would accompany transfer of those powers?
Also there are plenty of Home Office interventions that have either limited or nil application in Wales, yet we're still paying for them. Take this example: - "Communities against guns, knives and gangs" - targets solely 3 police forces in England, ditto for the "Ending gang and youth violence" programme.
Or how about the video the Home Office did on "ensuring a safe World Cup" - along with the costs associated with officers being sent out to South Africa. Funded by taxpayers in Wales as well as England. How many Welsh fans went?
Not to mention the Police Commissioners' elections.
Home Office priorities will always be English priorities. If these are of no practical interest in Wales, we'll still end up paying for them.

Richard said...

On a related topic, I'd be interested to hear your thoughts on the devolution of media policy. The Welsh media are facing serious problems and healthy media are vital for culture and democracy. What does WG say on this?

MH said...

In principle I agree, Penarth. The problem is that the UK government is not answerable to any independent arbitrator over the transfer of funds. On Barnett consequentials, it is entirely up to the UK government to decide what spending is classed as English (therefore generating a consequential) and what is classed as UK or Englandandwales spending (therefore not generating one). So public funds for one major rail infrastructure project entirely within England (Crossrail) are classed as "English spending", but another major rail infrastructure project entirely within England (HS2) is classed as "Englandandwales spending".

But at least the WG is aware of this, and say that (p3):

"All transfers of responsibilities from the UK Government to the Welsh Government should be accompanied by full budgetary transfers, subject to independent scrutiny and with the possibility of independent arbitration to handle unresolved disagreements about the size of appropriate transfers."

As I see it, there will almost invariably be a net financial benefit in devolving anything to Wales. True, there will be an element of duplication in the most senior positions which will cost more; but it is much better for Wales if the money currently spent on employing and rank and file civil servants in England to deal with Welsh matters is instead spent on rank and file civil servants based in Wales, who then will spend their salaries in the Welsh economy rather than the English economy.

MH said...

The Welsh Government does not want broadcasting to be devolved, Richard. This is mentioned on pages 2, 10 and 23 of their evidence.

But there are a couple of points of interest. First, they say that they do not want it, "at least for the present". This hints that they might change their minds, and they later say that this is because the digital environment is changing so rapidly that they don't know what direction it will take in future.

Second, they talk about "the vital role that broadcasting institutions play in creating a common cultural citizenship for people across the UK". This is a Freudian slip. They are saying that broadcasters (and I guess they must primarily be referring to the BBC) create a UK identity rather than reflect what people see themselves as being. As I noted when the Census results were released, the vast majority of people in the UK do not regard their national identity as British. Most people describe their national identity as Welsh or English or Scottish only, but the institutions of the UK keep pushing out an unrelenting stream of UK nationalism.

My own position, as if you hadn't guessed, is that broadcasting should be devolved.

Democritus said...

I would have thought Plaid types would be used to the concept of multiple leaderships in different legislatures! To recap. The directly elected leader of the UK PLP (voted for in a ballot of all members and political levy payers in affiliated unions) is Ed Miliband. The directly elected leader in the Welsh Assembly (elected via an identical process) is Carwyn Jones. Ultimately both have a direct mandate from the entire Party, which clearly marks them out from any other Labour politicians and is the root of their political authority. The (currently shadow) SoS is Ed's (and to a degree the WPLP's) appointed intermediary. S/he is of course bound by (shadow) cabinet collective responsibility and is obliged to ride two horses, which can be tricky on issues such as hospital car parking where diametrically opposite policies are being pursued either side of the Severn, or Dee.

On the legal jurisdiction, I accept MH's point that a body of specifically Welsh law (i.e. laws that only apply in Wales) is developing - but that goes back to pre devolution, e.g. the Welsh Language Act. A separate legal jurisdiction however goes well beyond that. Who will appoint Welsh High Court Justices under such a jurisdiction? The First Minister? the Counsel General? The entire Assembly (by simple majority or should a super majority be required?)? Would some sort of deportation Treaty (or protocol or concordat) be needed, or would the European Arrest Warrant cover things adequately? Presumably Wales would need its own equivalent of SOCA and the SFO (What would be the jurisdiction if the Serious Fraud Office were investigating Admiral for a possible fraud committed in Cardiff against someone in England?) What about Legal Aid?

I am not entirely against the suggestion, but as always the devil lies in the detail - and that's before you start on the financial consequences. I'm not sure anyone can tell me with precision what is spent on policing, prisons and the administration of justice in Wales today once you take account of all the stuff that is currently pan England & Wales. Trying to negotiate this at a time of almost unprecedented austerity and retrenchment across all layers of govt is liable to be difficult to say the least! I think this needs greater consideration - which is after all what Silk et al were appointed for - and debate before it is possible, for those of us who don't take an instinctively autarkistic approach, to say whether it is on balance in Wales' interests.

On broadcasting I fully agree that S4C should be devolved in full asap and I'd support any moves that might help make the TV licence poll tax less unfair in Wales. Otherwise I can see the Welsh Govt's point that this is a rapidly evolving field in which national regulation at any level is increasingly problematic and it is probably unproductive at present to fragment responsibility still further.

MH said...

What it says on paper and how things work in reality are not always the same, Democritus. But I have to say I was encouraged by the positivity of what Wayne David said on Sharp End on Thursday night. The Labour Party in Wales appears to have seen the light and be pointing in the right direction, even though it's not exactly revving-up its engine and raring to go.

I think most of the details of devolving police and justice can be solved by looking at the arrangements for Scotland and the six counties of north-east Ireland. The six counties in particular, because (unlike Scotland) they also operate a common law system that is substantially similar to English law but one that will, little by little, diverge from it. This is more or less what has happened in America, the Republic of Ireland, Canada, Australia, New Zealand and many other places that were once in the British Empire, so we're hardly re-inventing the wheel.

And just to make it clear I'm not (and I don't think anyone is) saying that a separate legal jurisdiction is necessary for devolving the policing on its own. It could be very easily be devolved without the justice system being devolved because of the break-up of the old Home Office and establishment of a separate Ministry of Justice. The lines of demarcation are already defined.

If Silk recommends it (which it almost certainly will now that the Labour Government have come round to wanting it) then whatever legislation is required to devolve policing could easily be enacted within a matter of months.

Finally, who do you agree with about devolving S4C on its own? What would be the point? It would be like devolving nursing without devolving the rest of health service.

Democritus said...

I'm in no position to say, but I think from UK Labour's perspective in forming policy on additional powers for devolved Parliaments & Assemblies it's still v early days. Until Nov 2014 they simply don't want the debate. The Welsh Govt is in the driving seat just now, but rightly doesn't want to be seen as obsessed with the Assembly's powers during such a severe economic crisis.

My best guess is that Scotland will vote no this time, and I don't fancy Labour's chances of winning with more than a razor thin maj in 2015 - and we know from 1977-79 what this implies for devolution efforts. Clearly this is relevant to the question of having a referendum, since this has become an accepted stratagem (esp under Labour govts) for circumventing devo skeptics in Westminster. Assuming Scotland does vote no this time Labour will need to formulate some sort of positive Scotland policy for their 2015 manifesto. It seems that Jon Cruddas may be toying with the English question, but i'm not holding breath for an answer. A bit as per EU referenda, the ball is currently in the govts court, and Labour's position inevitably will have to catch up with any movement from the Tories.

Good point re; the 6 counties providing a model for separate legal jurisdiction. Devolving Policing alone as you say can be straightforward (except for the financial negotiation of course). If it can be done in the 6 counties it can clearly be done here.

Forgive me if i've misunderstood yr position re; S4C I feel it's obvious that this is a Wales specific channel which it's bizarre to park in DCMS (although I gather there are folk in S4C who feel it suits them fine). Is half a loaf better than no bread? It would be wonderful if the Assembly could have the power to legislate that no one in Wales will ever be sent to prison for TV licence fee non payment, but I fear auntie will resist tooth & nail. Again, there may be some putting the cart before the horse here. What does one actually want to achieve with broadcasting policy? On grounds of subsidiarity i'd be rather inclined to devolve powers such as controls on concentration of cross media ownership, advertising standards and charging upward to Brussels - but then my policy objective is to abolish the licence fee, not build a national identity ...

MH said...

If I were a Labour supporter, I would say that not thinking about things until after the Scottish referendum was a problem. For unless the unionist parties come up with a convincing alternative devolution package, the Scots will vote for independence as the only way of securing any constitutional advancement.

The big con—and it's one that some people in Plaid have bought into—is that, whatever happens in the referendum, the Scots will get more autonomy and that some "spirit of greater autonomy in a federal UK" will filter down to Wales. I'd warn against that. It's only an idea being spread to persuade the Scots to vote No.

My prediction is that if the Scots don't vote for independence, the UK will re-think the devolution settlement so that it works in favour of England, for they will no longer tolerate the Scots making decisions which the English public see as being paid for with English taxpayers' money. And by making things fairer for England, they will similarly not tolerate more money being spent per head in Wales than in England.

If Labour are in power, they will seek to introduce devolution to the regions of England ... not particularly because they believe the regions of England should have any greater autonomy, but as a way of "equalling things up" so that Scotland and Wales are not seen as being in a more privileged position than any other part of the UK. It will be a sort of reverse-engineered "café para todos", and the effect will be to re-establish the centrality of the UK state.

The problem for Wales is that they will do this anyway, even if Scotland votes to be independent ... in effect making Wales just another region of England.

I think that Carwyn knows this and doesn't like it. But many others in the Labour Party in Wales will like it, for it means they will no longer be effectively excluded from positions in the UK government that are not devolved.


As for broadcasting; you talk about half a loaf of bread, but S4C is only one of maybe 50 channels broadcasting in Wales. So it's more like half of one slice of bread. How could we address the problem of lack of English language broadcasting on Welsh matters or things which are of interest to Wales if we only had powers over S4C?

I agree with you about abolishing the licence fee. It is disgraceful that a household with a single person on a low income should pay the same as the household of a multi-millionaire in a single mansion large enough for a big family with a live-in butler, cook, two maids, chauffeur, gardener and au pair. The BBC in its present form (which I hope is short-lived anyway) should be funded from general, progressive taxation.


I'll probably surprise you by saying that I'm not at all interested in building a national identity. We already have a national identity to which a very large majority of people in this country describe themselves as belonging. People in Wales overwhelmingly see themselves as Welsh rather than British or "Welsh and British". You appear to have got yourself caught up in the idea that independence for Scotland and Wales is about the politics of identity. It's an idea that used to be fashionable (and is still being actively peddled by out-of-touch unionists) but is wide of the mark. Independence will be achieved not because of national identity—for if it was about that, we'd be independent already—but because we decide that we can do a better job of governing ourselves rather than being governed by England.

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