Constitutional reform for beginners

It hasn’t been a good week for Britain.

I wrote earlier in the week to express my disappointment with the latest draft Wales Bill. A disappointment that appears to be widely shared across political parties and the Welsh political community. I am yet to see or hear of any non-Conservative speaking up in support of Crabb’s lasting settlement.

The Conservatives are not natural constitutional reformers and yesterday’s vote on English laws is an example of their intellectual confusion on such things. Yesterday the House of Commons was compelled to vote for constitutional change which is again ill-thought out and will create far more problems that it solves.

I cannot believe that Welsh Conservatives danced happily through the Aye lobby yesterday afternoon, excited at the prospect of losing their votes on whole swaths of legislation which is critical to the success of their government and in some cases will help define this government.

And this creates a real lasting problem for the whole of the UK Parliament and especially its Celtic members. Stephen Crabb has indicated that he would like, one day, to serve in the UK Cabinet in a different role. Which is entirely understandable and in the past a wholly reasonable ambition. But which role could a Welsh MP now fulfil? It would be curious at best to see a Minister taking through legislation upon which they themselves could not vote. And if it becomes impossible for an MP representing a seat outside of England to serve in a number of middle-ranking roles in the UK cabinet then the chances of our MPs reaching the great offices of state become reduced, and the chances of a Welsh MP becoming Prime Minister are reduced even further. And this is not simply an issue for the over-ambitious backbencher. It is a significant problem for the future of the UK as a multi-national state.

And if the location of an MP’s seat is the defining issue in terms of the legislation they consider then why do MPs from England continue to sit on the Welsh Affairs Select Committee and take evidence on issues which affect only Wales? Surely consistency would demand their removal?

The hard reality is that this measure does and will create conflict within the legislature. And that is always a bad thing. And it creates conflict in the process of law-making. Take the Localism Act from the last Parliament. A UK Act where different clauses and different sections applied in different ways to different parts of the UK. Some clauses has a UK application, others a GB application, and then others applied to England and some to Wales and England. In the current Parliament such a bill would now have different MPs voting on different clauses and different sections. Would English MPs have a vote on sections which apply only to Wales?

It’s probably true to suggest that there has been a sense amongst many English Members that the Celts get an easy ride, voting on schools etc in England and then free to complain about the decisions of the devolved institution in their own country over which they have no control and little influence. The real tragedy here is that this is a Westminster fix for an issue which is a UK-wide and goes to heart of the sort of state we want the UK to be in the future.

Now it’s not for people like me to dictate how devolution should work for English communities but it is difficult to escape the conclusion that where the UK Conservative Government has a radical and reforming agenda which is at once exciting and far-reaching is where it speaks of a northern powerhouse and devolving significant powers, budgets and responsibilities to groups of English councils. It is done with consent and without referenda. A lesson there for Wales. It would appear that were this agenda to be pursued across large parts of England then the demand for English votes in the House of Commons would become irrelevant. Here the future House of Commons would have differential responsibilities for different parts of the UK. No-one is advantaged and no-one disadvantaged.

I discovered last week a document that had been buried deep in the background papers for the Assembly’s Constitutional and Legislative Affairs Committee. The document was the Welsh Government’s submission to the House of Lords Constitutional Committee’s enquiry into the Union and Devolution. The reason that I mention it is that it contains almost the only intelligent analysis on the future shape and nature of the UK state that I have seen in the last twenty years or so. It is recommended reading. Honestly.

It is a tragedy that the UK Government has been unable or unwilling to publish a similar document outlining their vision for the future shape of the UK state. The constitutional convention appears further away than ever at a time when it is needed more than ever.

The Wales Bill – is this the best that we can do?

The draft Wales Bill is a timid little thing. It is clear from first reading that it falls far short of the Secretary of State’s rhetoric and promises. Far from creating the basis for a lasting settlement it is in serious danger of being yet another unhappy chapter in the miserable recent history of Welsh devolution whereby successive Wales Acts are passed every few years with each one conceding as little as possible only to be replaced by another within four or five years.

This cycle of failure is not the responsibility of Cardiff Bay but is firmly the responsibility of the Westminster system and of the Wales Office. It’s time for all those MPs who grizzle about the governance of Wales to put their own house in order and to provide the people of Wales with a settlement that reflects and respects the 2011 referendum and which ends the constitutional debate for a generation.

When the Secretary of State spoke at the National Assembly in June he gave a wide-ranging, generous and gracious speech. He reached out to Members, some of whom were suspicious and sometimes distrustful. At the time I felt strongly that we had a responsibility to respond in a positive way and to engage in a serious and far-sighted conversation about the future of Wales and the future of the United Kingdom. Reading the bill today I feel short-changed, let down and I also feel somewhat foolish that I may have been taken in by the rhetoric.

So this is a personal challenge for the Secretary of State as much as it is a political challenge. Is Stephen Crabb a man of vision who can bring people together to agree a comprehensive and sustainable settlement? An agreement which will bring long-term stability and clarity to a settlement which has been plagued by a lack of ambition and any sense of joint endeavour since before 1997? And an agreement which is an agreement and not an imposition? Or is he someone who prefers spin to substance?

We are told that the draft bill will now be subject to consultation and that the UK Government are open to amendments based upon that conversation. I, like many others, will judge the Secretary of State’s work by his own words where he has been clear that he wants to create a lasting settlement – “clearer, stronger and fairer”.

So far the omens are not especially good. The Scottish referendum started a process which was to culminate in an announcement of agreed new powers by St Davids Day. In reality the St Davids Day Agreement was an agreement within the Conservative Party. It reflected the lowest possible common denominator and the furtherest extent of the tolerance of Welsh Tory MPs. And as such it also reflected where power now lies in the Welsh Conservatives. And that is firmly in London with the Westminster Party calling the shots. It is difficult to see anywhere where the influence of the Welsh Assembly Party has driven the vision with the possible exception of issues over the name of the institution and its ability to manage itself. And if the Secretary of State is not willing to listen to his own colleagues what are the chances of him listening to the rest of us?

This draft bill does not form the basis for a lasting settlement. And this is not simply about playing politics ahead of an election. It’s only a few weeks since I sat in the Chamber and listened to Paul Davies telling us that any diminution of the current powers would be unacceptable and it was no surprise to hear of Sir Paul Silk’s disappointment that the findings of yet another commission of the great and the good has been put aside on the basis of what appears to be political expediency.

Most of us are tired of twenty years of sterile debate on the constitution. It’s time for a settlement based upon the principles accepted by the referendum in 2011 and then endorsed by most political parties in subsequent elections. If politicians are unable to deliver this lasting settlement then perhaps its time to create not another commission or committee but a peoples’ constitutional convention led not by politicians but people, representative of the life of the nation, but not tied to individual parties. Either this or perhaps the Welsh political parties should agree a joint statement which will form the basis of a manifesto commitment in next year’s Welsh elections. Either way it is time to put aside the old arguments and create a lasting settlement which reflects the settled will of the Welsh people rather than suffered the consequences of yet another inadequate compromise within a single political party.

Stormy waters in the Bay

It’s been quite a week.

The sacking of Jenny Rathbone as the chair of the All-Wales Programme Monitoring Committee is one of those political issues that from time to time causes significant disruption to politicians and journalists but without ever touching or troubling the wider electorate. These things are usually dismissed by those who wish to dismiss such matters as merely a subject for the chattering classes. Rarely is there a substantive debate on either the issue or what it represents. And this is a shame because quite often wider issues are raised by such things.

Jenny has a long reputation as a hard-working campaigner and as a forthright political figure unafraid to speak her mind on a range of subjects. She certainly challenged me as a minister over many aspects of CAP reform and food policy and it never occurred to me for a moment that she shouldn’t do so.

Her political roots are deep in the same north London Islington party as Jeremy Corbyn and she appears to share the same dissenting voice as our new leader. And this voice is important. The dissenting tradition has been a strong part of the culture and history of the Labour party and the wider Labour movement. There are certainly times when this tradition sits uneasily with the terror of the whipping system in local government, the Assembly or Parliament. Perhaps today the tradition is honoured more in the abstract than in the particular.

My experience of the Bay is that discipline is enforced as much by peer pressure as by an unexpected visit from the chief whip. In a small chamber the pressure from friends and from colleagues is far more powerful than in Westminster where it appears to be possible to avoid meeting a colleague for years on end. And whilst there is much uninformed comment about the power of the whip in the Labour group my experience is again somewhat different. There is no whip applied on matters of scrutiny and I have never been approached by the chief whip for a quiet word after a particularly bruising encounter with a minister. In the privacy of government I witnessed our current chief whip standing up for backbenchers and telling ministers quite clearly that it is job of backbenchers to scrutinise and to hold ministers to account. And to be fair this is something that most ministers understand and recognise without question.

So why was Jenny sacked for saying something on the M4 which is wholly unrelated to her previous role and for expressing concern on an issue where there is considerable disagreement within the Labour group?

It is clear that this has been handled poorly by the government and the advice received by the First Minister has led to far greater difficulties for the government than the original offence. Jenny’s views on the M4 are well-known and she has expressed those same views on many occasions. Ironically the Government has now appointed Mick Antoniw to take Jenny’s place. Mick is well-known for his opposition to the government’s proposals on the M4 and used an interview on Radio Wales to repeat those views on the morning of his appointment.

Jenny’s comments on the wider culture in the Bay and in government are perhaps more interesting. In general most ministers are quite relaxed about backbenchers opposing or questioning their proposals. I have certainly taken full advantage of Leighton’s patience on local government reorganisation and Edwina’s patience on the M4 itself. Neither minister has at any time questioned my right to speak out or to campaign on either issue.

But there does seem to be an increasing tendency of some in government to impose their views in areas where it is not appropriate to do so. I have already expressed my disappointment with the First Minister’s decision on this matter. It has clearly created some difficulty in the Labour group which was unnecessary and created a situation where members are now playing out these divisions in public.

Our democracy in the Assembly is quite young and it occasionally suffers from growing pains. In a more mature democracy such things would probably pass without comment. But our democracy is one where we are still creating a political culture in which dissent is not only tolerated but valued for providing a broader and wider debate. What is the point of backbenchers if it is not to say what they believe to be true?

And this is not limited to Labour. Plaid leader, Leanne Wood, sacked Dafydd Elis Thomas as a committee chair for making comments which in the Labour party would have got him elected as party leader. At the same time Nick Ramsay was sacked as a committee chair by his party leader for disagreeing on an obscure element of taxation policy which was subsequently dropped by the UK Government.

So what to do about this state of affairs? My own view is that the Assembly should adopt the same approach as Westminster where committee chairs are elected by all members rather than remain in the gift of whips and party leaders who use such positions as either reward or punishment as necessary. This would serve to strengthen both the institution and the independence of the scrutiny process.

The Programme Monitoring Committee, from which Jenny was sacked, is of course not an Assembly committee. The rules which establish the committee insist that the chair is a representative of the Welsh Government, although the EU legislation establishing the monitoring framework does not insist upon this. Like many others I was surprised to learn that the Welsh Government insist that the chair accept the doctrine of collective responsibility which is normally only applicable in an executive role. This is not an executive role it is a scrutiny role and that is different. An executive cannot scrutinise itself. The EU legislation is clear that the Committee  “should be able to make observations to managing authorities…and monitor actions taken as a result of its observations” which does seem to imply a certain distance or freedom from the restrictions of government. Perhaps the best approach now would be to amend these rules to remove the collective responsibility demand and allow the Assembly to appoint the chair. This would guarantee the independence of the scrutiny process which oversees the expenditure of many millions of pounds and would bring this committee into line with others in the scrutiny of the government’s actions.