Who runs Wales?

January 16th 2017

As Assembly Members get ready to decide whether to support the latest Wales Bill, Victoria Winckler looks at the question of ‘who runs Wales’?

Who runs Wales is the title of a tri-annual publication by the Equality and Human Rights Commission that typically highlights the stark gender inequalities at the top of Wales’ institutions.

Tomorrow, the question in front of Assembly Members goes much further than the gender of Wales’ decision-makers – it asks who decides the future of devolution in Wales.

I am of course referring to the ‘legislative consent motion’ about the Wales Bill that is before the Assembly on 17th January.

In getting to the point of being before AMs, the part of the Bill about the Assembly’s powers has become little more than a long shopping list of ‘thou shalt nots’. Dull and bizarre thought they might be, they could have the effect of substantially reining in the Assembly’s powers.

The devil in the bill’s detail is that it is not only these matters themselves that are reserved, but anything that ‘relates to’ a reserved matter.

So, matters on which the Assembly has set the pace, such as legislation on violence against women, could be seen as ‘relating to’ policing, a reserved matter, and therefore could be outside its future remit. Legislation on privately rented housing could be seen as ‘relating to’ the regulation of estate agents, a reserved matter, and therefore outside its remit. And so on. The principle of ‘subsidiarity’ – that decisions should be taken closest to where they have their effect -is conspicuous by its absence in the Wales Bill. Far from smoothing or removing the jagged edges between devolved and non-devolved matters of the previous Wales Acts, the current Bill is set to create even more.

The outcome of this new uncertainty is three-fold.

First, we can anticipate many more battles in court as judges get to decide what ‘relates to’ means.

And second, there’s the more invidious effect of the Assembly reining-in, perhaps unconsciously, its ambition. Instead of developing legislation that is fit for purpose, it will develop legislation that fits the box the Assembly sits in, avoiding straying into those contested, ‘related to’, areas.

And third, by continuing and arguably increasing the uncertainty, the Wales Bill does nothing for helping devolution to reach a settled, mature state. If we can be reasonably confident of seeing the UK government in court, we can be confident there’s something wrong with the legislation.

There are lessons from the past

In the late 1990s, there was much agonising about whether the first Government of Wales Bill should be supported. It’s deficiencies were widely recognised – the Assembly proposed at that time could not legislate, could not raise taxes and could not even control its own name but in the end most people who supported devolution supported the Bill. It might not have been perfect but it was generally felt to be better than the existing settlement.

The issues facing AMs on Tuesday are different.  It’s not a question of whether this Wales Bill is better than nothing – it’s a question of whether the Bill is better than what we’ve got now. The answer is by no means an obvious ‘yes’ – indeed if I was a gambler, I’d put a tenner on ‘no’.

And, as we’ve learned, Wales Bills are like buses so whatever AMs decide there’ll be another one on the way soon.

Victoria Winckler is Director of the Bevan Foundation

 

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