Thursday, 13 January 2011

Presumed consent

Clearly, a few feathers have been ruffled over the LCO on presumed consent.  The debate has been succinctly summarised by Adrian Masters; and it is indeed difficult to determine how much of what is being said is being driven by political agendas rather than by debate over the substance.
The comment which best summarised my concern over the way this has been handled was that from Dai Lloyd, who pointed out that the arguments being put forward by the Attorney General could be applied to any and every LCO submitted.  It may even be worse than that – it would also provide a basis for challenging the legality of any Assembly measure, even if there is a yes vote in March which eliminates the need for an LCO.
In that context, I’m not sure that the spat is as helpful to the yes cause as some are suggesting; it’s more a case of highlighting the fundamental flaw in the different approach adopted towards Wales, where only specified powers are devolved, compared with Scotland, where only specific powers are reserved.  That issue doesn’t go away on March 4th; a yes vote simply moves the potential debate from the two elected legislatures into the courts.
I was also somewhat surprised at the opinion of the Attorney General that it may not be “practical” to have a different system in Wales from that in operation in England.  Surely such a judgement goes way beyond the remit of an opinion as to the legality of the proposal?

5 comments:

Cibwr said...

For me the issue is not that the LCO process may be failing, but why on earth did the Attorney General take so long to produce objections? To an outsider you would think that the first thing when an LCO is advanced would be the views of the legality of it would be obtained. After all this was started in August, that is some time ago.

Certainly all sides are making capital out of this and you are right a yes vote will not solve this problem. The current settlement is really untidy. Reading what is devolved with the opt outs and opt ins of the opt outs is complex in the extreme. How can any government and legislature plan when its powers alter on a day to day basis?

Anonymous said...

John
Correct me if I am wrong but the fuction of an LCO is to ask Westminster for Wales to be able to acquire devolved powers on specific pieces of legislation

There is no specific imposition that having acquired such powers we have to use them at all nor is there any basis for saying yea or nay to the use of the powers so devolved

The Attoney General is of couse entitled to his opinion but put simply it is just that


Clearly it is not practical to extract my kidney in Wales if I die here and have consented for its use to benefit someone else but should I die in England God forbid that such a soul as the Attorney General himself should not be able to survive as a result of my demise
My consent is universal and presumed consent should also be the universal

John Dixon said...

"the fuction of an LCO is to ask Westminster for Wales to be able to acquire devolved powers on specific pieces of legislation"

That seems to be the way that Westminster increasingly interprets it, but it wasn't quite the way in which it was sold. It's supposed to deliver the 'right to legislate' in a particular area, not the right to make 'specific pieces of legislation'

As you say, "There is no specific imposition that having acquired such powers we have to use them at all nor is there any basis for saying yea or nay to the use of the powers so devolved"; yet the UK Ministers and Parliament seem to want to have the right to say yea or nay to the use of the powers - and do so in advance.

Most worrying in this particular case, though, are the way in which the Attorney General has attempted to shift the debate by claiming that it's a Human Rights rather than a Health issue, and raising issues of practicality rather than legality. Both of these can be used as objections to almost anything the Assembly does, and to me they display a profound unwillingness to allow the Assembly to do much more than administer. And, as I said in the original post, these are not issues which go away with a yes vote in March.

Actually, I'd accept that there are always likely to be practicality issues with legislation differing between neighbouring countries whose populations use each other's services to a degree, but I don't think it's a matter for the Chief Law Officer to be raising, and they can all be overcome when the detail is debated.

Siônnyn said...

I find it hard to see how the proposed opt-out system, which is already in effect in several European counties, can be contrary to the Human Rights act - which is a European act incorporated into English Law. If it contravenes human rights here, how does it not do so in Belgium?

How does the human rights act still apply after a human being dies? How long after death does it apply? And what about the human rights of the people on the waiting list?

I suspect that this is a case of the English ruling class using European law to get their way in Wales while at the same time seeking to discredit Europe!

John Dixon said...

Siônnyn,

"I find it hard to see how the proposed opt-out system ... can be contrary to the Human Rights act"

I agree. But the Human Rights Act is such an all-pervasive piece of legislation that, if this argument is allowed to stand, it can be applied to almost anything.

"I suspect that this is a case of the English ruling class using European law to get their way in Wales while at the same time seeking to discredit Europe"

I don't think it's as thought-through as that. More a case of people not understanding why there might ever be a case for differences between Wales and England.