Tweet In his reaction to Saturday's story in the Western Mail about the tensions within One Wales, Peter Black is correct in summing up what for me are two crunch issues, although I disagree with his analysis of our likely position on them, and I think he understates the importance of the position we are in on the Housing LCO.
His suggestion that "if Plaid Cymru get the Welsh Language LCO they will be prepared to accept some form of fudge on the referendum" is one which I would reject. I remain confident that the referendum will be held - and as I have said before, if I believed that the leadership of Plaid was in any way back-tracking on the commitment to hold a referendum, then I would find my current role impossible to sustain.
However, back to the Housing LCO for a moment, because this is the nub of the current debate. The real tension here is not between Plaid and Labour in the Assembly, but between Labour AMs and some Labour MPs – but there is a knock-on danger to relationships between the two parties if Labour fail to achieve a satisfactory resolution of those internal tensions.
The core of the disagreement is the extent to which any LCO devolving power to Cardiff could or should be restricted to match the precise scope of any Assembly Measures which may be proposed after agreeing the LCO. The MPs seem to be taking a position of saying that they want to devolve only the exact powers needed to allow a specific Measure to be passed – which means that if the Assembly subsequently wanted to pass another Measure in the same field, it would need to submit a further LCO to London. Effectively, the MPs are trying to scrutinise Measures rather than LCOs.
The key question to which we await an answer is on which side will Paul Murphy come down? Will he, as his deputy, Wayne David suggested last week, come down in favour of the recalcitrant MPs, or will he support the Assembly Government, which remains united on this issue? My attention has been drawn to an exchange which took place at the Welsh Affairs Select Committee back in July (set out below), when Mr David's predecessor in the job, Huw Irranca-Davies, took a very different line on the issue, suggesting that the Welsh Office at that stage actually backed the position of the Assembly Government. I've highlighted one section in particular, showing that he fully understood the difference between a Measure and an LCO.
So – has the position of the Welsh Office changed, or are people just playing games?
Q130 Alun Michael: Could we come back to the terms of the Bill? Are you absolutely satisfied that the proposed Order is defined well enough to articulate clearly its intentions and its scope to all interested parties?
Huw Irranca-Davies: Yes, I am, and it is noticeable that there is support for this and what is within the Bill from TPAS—the Tenant Participation Advisory Service Cymru. They have looked at this and they are confident that it gives them the clarity to satisfy their needs in terms of affordable housing as well as, I have to say, official confidence that this is appropriate.
Q131 Alun Michael: But we are talking about the precision of a piece of legislation here.
Huw Irranca-Davies: Yes.
Q132 Alun Michael: Therefore the precision is extremely important and it seems to me from some of the earlier answers that you have given that it would be possible to use the powers conveyed in this Order in a variety of ways that are quite different to the intention. You have reinforced the view that has come from some quarters that the proposed Order would be interpreted narrowly rather than broadly, but that is not the way that some people see it and it is not the way that some people want the powers to be used, so there does seem to be a degree of confusion here. Are you sure that the phrasing of the Order is adequate for it to be clear what it does not do or are there dangers of unintended consequences?
Huw Irranca-Davies: The only unintended consequence would be an administration that took the competences bestowed within this Order and had a clearly different policy intent behind it, so I do take what you are saying, we could narrow this or another LCO to the extent that we determine what will subsequently be done with it quite narrowly. There is an element here of working within the Government of Wales Act 2006 in transferring this competence, seeing where the policy intention currently is, but recognising and having confidence in the National Assembly for Wales and the Ministers down there that the Measures that they bring forward will be appropriate and will satisfy the needs of the community out there. You are right in what you are saying, what we are not trying to do within this LCO is actually to determine precisely for now and forever what the Welsh Assembly Government may do with it.
Q133 Alun Michael: Given that the Measure can be used in a variety of ways other than the current policy intentions, given also that the definitions are porous in the sense that land can be defined differently for the future and this can raise all sorts of community issues, would it not be to everybody’s benefit if there were an element within the Order that said the use of these powers shall be limited to the intentions that have been set out in the explanatory memorandum, would that not be closer to actually putting on the tin the precision of what the contents are?
Huw Irranca-Davies: I do know what you are saying but I am conscious that when we bring forward either this LCO or when we are looking at framework powers going through on the floor of the Commons there is always an element that once we have passed those powers to the Assembly it is then within the gift of the Assembly to change policy over time, to interpret them differently and there is an element of trust and faith in the institution then of the Welsh Assembly Government and the scrutiny given by the National Assembly of Wales members.
Q134 Alun Michael: Does it not go well beyond to the possibility that powers will be dealt with in ways that are wholly unintended by yourself or the Assembly Ministers that are proposing the transfer of these powers at the present time?
Huw Irranca-Davies: I do see what you are saying, Mr Michael, but we recognise as well that over time policy might well change in response to what the housing market is and what the needs for affordable housing in Wales are. It is important that within the scope of any LCO that we deliver it does allow that flexibility for change. I know what you are saying is that there could be a potentially detrimental policy intent.
Q135 Alun Michael: No, what I am saying is that it may go beyond what is intended, beyond the powers that the Assembly is actually seeking in its explanation of the powers that it wants. It is a lack of legislative precision that is concerning me.
Huw Irranca-Davies: What I can reassure you about in terms of the definitional points that you talked about—which are laid out in previous Acts of this Parliament—is that there is certainly clarity in terms of the powers that are being sought and the powers that can be conferred. However, what I cannot give you entire clarity on is what the ultimate policy intention may be in 10 years time.
Q136 Alun Michael: No, but the legislative intention needs to be clear so surely we ought to be clear on the face of the Measure as to the powers that are being transferred and that it is limited to those in order to obviate the danger of unintended legislative complications.
Huw Irranca-Davies: You are right in what you are saying in that the powers conferred need to be clear and we are confident that the powers that are being sought and are being conferred are clear in the competence that they bestow. Whilst there is also quite a clear policy intent that is being argued at the moment that might bring forward Measures, what I cannot do and I know you would not expect me to do is to double-guess five or 10 years down the line.
Q137 Alun Michael: With respect—I will just make this point once more—we are talking about the possibility of unintended legislative consequences which is why precision in the legislation surely is necessary to a greater extent than we have. I suggest you should reflect on that.
Huw Irranca-Davies: Right, okay.
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