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
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.