Friday, November 14, 2008

The Evolution of Devolution: A critique

A brief critique on the ‘Evolution of Devolution’ pamphlet published by the Bevan Foundation last week to co-incide with their conference on the enacting of the Government of Wales Act in Cardiff and London over the past 18 months or so. Whatever you might make of the contents of the pamphlet or of the event, it's important for Welsh democracy that these discussions are held - and that their findings are held up to scrutiny.

Firstly, I must say that it’s rather brave (or perhaps foolhardy) to publish a pamphlet with the same name as a conference before the event itself takes place.


I wasn’t there in Cardiff last Thursday, but it might be misunderstood that the common title is representative of the views expressed, and I’m pretty sure there would be some on the panels who might have rather different opinions on the devolution system than the three authors of the pamphlet.

In fact, and to be fair to them, they admit that themselves in the pamphlet’s conclusion.

Why might they need to admit it? Well, quite possibly because the central assumptions of the pamphlet are untenable from several positions on the Welsh political spectrum.

The authors go to great lengths to show that we in Wales have never had it so good in terms of self-governance – backed up by wide-ranging comment on the events of the last year.

It is, for want of a better title, a Hain-ist perspective on the devolution question.

And therein lies the problem with the pamphlet – its starting position is couched in the terms of Westminster’s idea of devolution: that power begins in London and can be devolved (and perhaps taken back), and adopts language accordingly, rather than taking its starting point as sovereignty lying with the people of Wales.

It is a Labour-style document with a top-down power structure that tells us that we should be grateful for what has been offered to us.

The central message of the pamphlet is to point to the significant potential of the powers given by the GoWA 2006, and to suggest that those who believe the settlement to be somehow narrow in its scope take the time or trouble to make better use of the available powers. As opposed, of course, to the powers they actually want.

One of the first issues tackled is whether or not the post-GoWA 2006 Assembly is a parliament, based around a number of unassailable criterion to note that the similarities outweigh the differences.

But this is rather like comparisons between vehicles with four wheels and a gearstick.

What’s under the bonnet? We all know the Assembly is not a shop or a church, but we also know there are significant differences in the powers that are held in Westminster and Cardiff Bay, in the power relations between the two governments and in the ability to legislate on many different issues.

Framework powers and LCOs

Where the authors discuss ‘framework powers’ (pardon me for using the Westminster term, but it’s where I work), I think they underestimate the difference between these and the LCO and their origins. Part of the reason for the LCO system (as explained in the Better Governance for Wales White Paper) was to prevent a logjam of parliamentary time taken up by Wales-only Bills, such as, say, the Transport (Wales) Act.

It naturally makes more sense to use a Bill that will be passed through Parliament to insert clauses relating to Wales, providing they are appropriate, where they will be scrutinised in the same way as other Bills rather than to create additional parliamentary bureaucracy through the use of the LCO system.

Bearing that in mind, it seems strange that there appears to have been no automatically activated procedure in which UK Bills are discussed at either civil service or ministerial level between Westminster and Cardiff Bay – especially as Whitehall mandarins may well have expected to be dealing with at least the same party at both ends of the M4.

This was especially clear, I think, in the Education and Skills Bill, which has been singled out by other committees at Westminster for its’ strange take on devolution (creating new powers for England, but making Wales ask for an LCO so that they can make a Measure for the same powers).

It also brings to mind the difference in scrutiny levels and time associated with these two different routes – ‘framework powers’ and ‘LCOs’.

In discussing the stages of an LCO, that authors adopt the language and terminology of Westminster’s Devolution Guidance Note 16, DGN16. This argues that there are six stages to an LCO, although the authors note there are perhaps several sub-stages to some of these.

Certainly, the Lords’ Constitutional Committee claim ten stages, many of which take place simultaneously. Taken independently of each other, it is clear that there are far more separate actions than this in the progress of an LCO from its first announcement from the First Minister (or however it comes into being from a backbench AM, Assembly committee etc.) until finally being approved by Her Majesty in Council.

I must also point out that the term ‘Whitehall clearance’ used in DGN16 to define the agreement on the subject and contents of LCOs, has a wonderful way of sticking in your throat as you tug your forelock.

The authors rightly point to the very mixed picture regarding the pace of LCOs through this process, although I am wary of their pointing to the apparent success (so far!) of the Red Meat LCO as being ‘proof’ that the second wave of LCOs will show that the lessons of the first wave have been learnt – not least as many of the first wave of LCOs haven’t actually got through yet.

Perhaps it’s worth bearing in mind that unlike large Bills in Parliament, most LCOs are relatively unproblematic (in Cardiff at least!) and are also rather short, barely a page or two.

They are also right to say that everyone is learning – although again what this says for forward planning of the process, I’m not sure. Certainly, the fact that DGN16 wasn’t written in the first year of the system suggests that the proposals had been little considered at the time of the 2005 White Paper.

Meanwhile, the various ‘teething problems’ regarding finding adequate parliamentary time and ensuring joint scrutiny of LCOs, or even ensuring that scrutiny of the LCO to be considered was done in both places, suggest a work in progress that some might hope to have been solved, or more clearly evolved, at an earlier point.

Increase in lawmaking powers

If there is a genuine bonus in the 2006 GoWA then it is the widening of access to lawmaking powers. In Westminster, the overwhelming majority of Bills that reach the statute book are government sponsored, but the hope is that the Assembly will provide LCOs and Measures from a variety of sources, including as noted backbench AMs and Assembly committees, (even if some of them, such as Peter Black’s local government LCO get shot down in flames before they start).

Unfortunately (and you knew there was a but!), should the Welsh Affairs Committee in London decide that they don’t want to do as much work on LCOs, then we can guess which ones will suffer.

The authors draw attention to the ‘rules’ attached to LCOs by DGN16, and then use some case studies to show how these are variously interpreted in Cardiff Bay and Westminster, but I won’t be discussing them in depth here as I’ll be commenting on my concerns with the LCO process separately.

Finishing off, one of the more heartwarming points made towards the end of the pamphlet is the increase in Measures in the second year of the One Wales government than LCOs. Well, yes, it’s helpful to have a government that wants to govern and not spend all its time just trying to get its hand on powers.

Now we just need to push that forward to its logical conclusion and give the Assembly the powers to do its job without having to check it’s ok with Westminster first.

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