Last week the Secretary of State essentially withdrew the Wales Bill that he published with a great fanfare only four months ago. In doing so he demonstrated that neither the Wales Office nor any Whitehall department has the experience or the expertise to understand how devolution works – either in principle or in practice. And this is of profound importance to all of us because it suggests that the UK Government no longer understands the constitution of the UK or appreciates how the UK actually works today. And that’s a pretty serious thing. If not entirely surprising.
Anyway. We are where we are.
The “pause” is only worthwhile if good use is made of this time. And by that I do not simply mean parliamentary draughtsmen working furiously to write a bill which is fit for purpose. The First Minister’s intervention on Monday did that for them. And by publishing a draft bill the FM demonstrated that the Welsh Government has a shared vision of a settlement which is coherent and intelligent and which hardwires stability into the constitution. The sad voices grizzling about process from the sidelines – I heard no real criticism of the substance – need to understand that that the vacuum created by the Secretary of State’s failures has to be filled. And it is absolutely right and proper that the Welsh Government does so. Not to have done so would have been an abrogation of its responsibilities.
But this “pause” must do more than teach the Secretary of State about the basics of the British Constitution. It must also allow us to start having a serious debate about how the new UK, which is currently being created in an haphazard, confused and chaotic way, is actually going to work in practice. In short we need the sort of discussion that we should have had prior to last year’s St Davids Day Announcement and at the same time as the debate on the new powers to Scotland and the so-called “Northern Powerhouse”.
And central to this debate is not only a discussion over the devolution of powers and where those powers should properly rest. It also means a conversation about the future purpose of the United Kingdom and how will it will work in the future.
One of the very welcome suggestions made belatedly by the Secretary of State was that the debate over powers and reservations will now be based upon a principled approach. Hallelujah. All we need now is to find out which principles the Secretary of State will employ. I have commented previously that the only serious analysis of this matter was presented by the Welsh Government to the House of Lords Constitutional Committee. Someone in the Wales Office would do well to google it. It describes the UK as an economic, social and political union based upon the principle of subsidiarity. If we could agree on that then everything else quickly becomes easier and clearer.
Such an agreed vision of the future UK would have profound consequences. It would start the process of settling the over-long debate on devolution and it would begin to create a broad public understanding of the differing roles of different governments and parliaments. It would also enable us to build the new structures that would provide the UK with the constitutional architecture needed to underpin the stability that we all want to see.
Fundamentally, the United Kingdom needs a formal agreement between its constituent parts on how it will operate in the future – placing respect on the statute book. But it also needs the machinery of a federal state. At the moment the UK Government is the only shared institution we have – and all too often it acts as judge and jury on its own decisions and actions. This is neither fair nor reasonable and nor is it acceptable or sustainable.
The First Minister agreed whilst giving evidence to the Assembly’s Constitutional and Legislative Affairs Committee a few weeks ago that there is no structure or process to resolve disputes on either competence or individual pieces of legislation between governments short of reference to the Supreme Court. This cannot be right.
At the same time wherever there is a dispute on financial matters such as the spending on the Olympics or HS2 or the fundamentals of Barnett then the Treasury simply imposes its own views. Again this is not sustainable as we’ve witnessed recently with the negotiations on the Scottish fiscal framework. The First Minister has also made clear that at least part of his rationale for not increasing income tax levels in Wales when that power is devolved is because of the continuing dispute over the Barnett Formula. The dispute has lasted almost as long as the formula.
To date the UK Government has been reluctant to recognise the constitutional reality that its policies and approach is creating. Its approach has been piecemeal and all too often the suspicion that partisan advantage lies too close to the heart of its decision-making. From English votes in the House of Commons to the reduction in the size of the Commons there has been a reticence to engage in the principled debate about the future nature and shape of the Union that Stephen Crabb seemed to indicate that he would now prefer to see.
An inter-governmental and inter-institutional agreement established in law and sustained by UK-wide institutions independent of all our governments are now crucial to underpinning our new constitutional architecture. And will benefit everyone except well-suited constitutional lawyers. At the same time the UK’s parliaments must learn to work together in a formal structure to provide a much richer, wider and deeper scrutiny in an institutional relationship to oversee the work of these governments and this UK-wide scrutiny is an essential part of this jigsaw.
This is not difficult to achieve. In terms of a financial framework for the UK Government and devolved governments, the Australian Commonwealth Grants Commission seems to be a good model and a good starting point. The CGC distributes an equalisation payment to all states in Australia based upon an agreement reached between the states and the federal government. Its independence of the federal government is key to its ability to take rational and fair decisions acting as an independent arbitrator. The last UK Government created the Office of Budget Responsibility to provide external and independent advice for the Chancellor and the present UK Government agreed and accepted that an independent review of the Scottish fiscal framework would be appropriate and so this suggestion or model cannot be a bridge too far in principle. The Treasury would hate it but it would take the heat out of all of our current disputes on money and may even resolve the issues with the Barnett Formula.
In other matters, the Supreme Court is a constitutional court in all but name and I’m sure that within the structures of the Court a constitutional tribunal could be created which would resolve issues of competence before legislating and before any dispute escalates out of control. Far better that than years of arguments between ministers followed by very expensive litigation after a piece of legislation has been enacted.
Sometimes the debate around devolution seems to be about how many powers can be levered out of London and not about a collective vision of a future United Kingdom. Hopefully we can now have a debate about the UK as a whole and not only about what powers we want in Wales.