Sometimes we need a little more UK and not less…

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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.

The elephant is back…

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The Secretary of State’s news conference this morning was probably the most wretched affair since John Morris unhappily faced the cameras almost exactly 37 years ago. It’s difficult to think of a Secretary of State in the intervening decades whose proposals for change have been so comprehensively rejected. In rejection both men were characteristically forthright. John Morris had little alternative and in truth neither did Stephen Crabb. Both had seen their proposals for devolved government roundly rejected. By the electorate in the first instance and by everyone else in the second. If Crabb couldn’t muster a majority in the Welsh Affairs Committee with it’s drafted-in majority then the unanimous rejection in the National Assembly must have been little surprise.

But let’s not be too churlish.

Crabb’s proposals were poorly thought-out, had little coherence and convinced no-one. His only achievement was to unite True Wales and Plaid Cymru. But his belated recognition of this is to be welcomed. I assume his announcement on the reductions in reservations, the abolition of the necessity test, his commitment to look again at ministerial consents and the establishment of a group to look at the issue of the legal jurisdiction along with his enforced “pause” for further thought will all receive a widespread welcome. And we must all recognise that this retreat is one which will allow further debate and discussion. And that is also a good thing.

However this is only half the story.

We are in this unsatisfactory situation because the Secretary of State made grandiose statements which he did not follow up with a robust and open process. Had he involved both the Welsh Government and the National Assembly as well as a broad section of Welsh society then he would not have been in this sad position today.

The new bill must be made-in-Wales and not simply presented to Wales.

The Secretary of State would now be well-advised to create a convention (on which he has been pressed for some time) or at least a joint Assembly-Parliamentary body to review and agree a new bill before its introduction. The Welsh Affairs Select Committee and the Assembly’s Constitutional and legislative Affairs Committee have both examined the bill and held a successful joint meeting. That model may be a good model to keep in mind either for a meeting before dissolution or to be revived once the new Assembly is elected on May 5th. By doing so and achieving a broad cross-party consensus the new bill would have a degree of legitimacy that the draft bill has failed to command. And it would at least help keep the trouble-makers quiet.

By creating this new consensus – and there is a broad consensus over many matters – then the Secretary of State will be able to proceed to legislate in good time and with goodwill restored. But he must also recognise that demanding a referendum over the somewhat obscure matter of the jurisdiction whilst at the same time rejecting the need for a referendum on tax powers is not something which has any credibility or intellectual coherence. Best put in the same bin as the necessity test.

And neither is it acceptable that the provisions of this bill will sit on the Statute Book for two or three or four years until 2021 before being commenced. All provisions should be enacted and commenced with no such delay. In Scotland there is an election taking place with powers that were announced, debated, enacted and commenced in less than two years. It is simply not acceptable that in Wales we need to wait at least five years for far fewer powers. And this will mean that the new powers on elections and structures will not be available until the 2026 election – a full decade after they were announced.

If the Secretary of State is able to recognise that there are many of us in all parties who wish to move from a decades-long debate on the constitution and want to focus on the major social and economic issues facing the country then he will achieve his ambition of a robust, stable and long-lasting settlement. However I believe that many of us will not simply agree to any settlement and will not feel well-disposed to a bill which is made in Whitehall for Whitehall and not made in Wales and for Wales. However we are, this evening, closer to a potential settlement than we were this morning. Crabb has recognised, as did John Morris, that there was an elephant on his doorstep. Back in 1979 that was the end of it. The people had spoken. And had spoken in primary colours.

Today in a much different and changed world the message is also different but in some ways is unchanging. Constitutional change cannot be either forced or imposed. By working together the changes that most people agree are needed, can be made, and made with consent and support. It is now a matter for the Secretary of State to reach out and to work with Wales.

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

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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

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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.