Muddying the waters

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It was Peter Hain who, when he was Secretary of State for Wales, steered through the 2006 Government of Wales Act.  That act provided for the referendum on law-making powers which, after the 2011 referendum, turned the largely administrative Assembly into a legislature.  It was also Peter Hain who, as I recall, did everything he could to prevent and deter the Assembly from calling the referendum for which he had made the legislative provision, (even at times endangering the survival of the One Wales coalition, so vociferous was his opposition).

I find it more than a little strange therefore that the same Pater Hain, now having been suitably invested in ermine, should be calling for the Assembly to have powers to block legislation on a subject which seems to me to be outside the purview which he set for the body, even using the powers which he then didn’t want it to have.  The trade unions are arguing that it isn’t actually outside the Assembly’s powers, but the lack of clarity is, once again, a hindrance to good governance.

Hain’s argument is that “It is essential for the devolution settlement to work that the prime minister respects the wishes of the Welsh Government”.  That seems to be asking the current (Tory) UK Government to behave as he says it should, rather than behave as he himself did when a member of the previous (Labour) government.  In reality, what the devolution settlement needs to make it work is clarity over who does what; clarity which he failed to provide when he could; and he now seems to be trying to muddy the waters even further.  

I’m sure that he’d argue that the two situations are completely different.  Any disagreement with Carwyn Jones was merely a spat between two different parts of the Labour Party, but now he’s dealing with the wicked and evil baby-eaters.  Or perhaps there’s some other subtlety which has been lost on me.

One Wales: The Good...

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Now that it has come to an end, I’d like to think that the successes and failures of the One Wales period can be dissected a little more objectively than has tended to happen to date.  Supporters of the agreement tend to see only the good, whilst opponents see only the bad; and whether people want to rush into another similar agreement or not seems to depend on which side of that argument they find themselves.  In real life, there were some things that were good, some things that were bad, and some things which were downright ugly.

I’ll start with some of the good points, although this is not intended to be a comprehensive list.  And I make no apologies for looking at the issue from the standpoint of my own political outlook.

One of the things most frequently bandied about was that the hospital rationalisation programme of the previous Labour government was halted.  Technically, this actually happened before One Wales was agreed, so it isn’t a direct result of One Wales.  But One Wales would have been impossible without it, and Labour could read that writing on the wall.

I felt that one of the most positive things about One Wales wasn’t an outcome as such, it was the detail in which the programme was defined.  There is often a world of difference between what a party says in a manifesto and what it does once elected; the discipline of having a detailed written programme, which was essential to any decision by Plaid to enter coalition, gave a road-map to the government for a four year term.  It’s something that perhaps even single party governments might learn from.

The reports of the Holtham Commission were hugely significant.  Although Plaid had been banging on about the unfairness of Barnett for years, the reports of the Commission finally convinced the other parties.  Labour’s argument that it wasn’t necessary to do anything about it earlier because the squeeze didn’t apply when the settlement was generous might be technically correct, but it sounded a bit like saying that we didn’t need to fix the hole in the roof because it wasn’t raining.  Holtham changed the basis of the debate – in Wales, at least.

The calling and winning of a referendum on Part 4 of GOWA was undoubtedly a huge plus for the agreement.  I’ve noted before that the Lib Dems could legitimately claim a certain amount of credit for that, albeit by accident, but it was One Wales which delivered, and delivered handsomely.  The result has created a quite different sort of Assembly in Cardiff, and gives Wales a new basis for moving forward.

There can be little doubt that the Welsh Language Measure steered through by Alun Ffred was a major piece of legislation.  Sure, it doesn’t do everything that some of us would like, and there’s more to be done, but surely no-one can really believe that we would have had anything like this Measure without One Wales.

Some of the strategies produced by One Wales, such as on energy and the environment are extremely far-reaching.  The government took huge strides forward in recognising the importance of lowering Wales’ ecological footprint; and related to this was the switch in emphasis within the transport programme from road-building to public transport.  All of this creates a sound foundation for the future.

But not everything was perfect…

Still wriggling

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What is it with Peter Hain?  Does he really think that he can convince people that black is white just by repeating it often enough?  Or does he just think everyone else has as short term a memory as he himself appears to have?  From ‘the referendum is unwinnable’, through ‘it’s all Plaid’s fault’, to ‘what a great day for Wales’ in a few short weeks.  Perhaps next week, an independent Wales will turn out to have been his very own idea all along.

I heard him earlier today, peddling the line that the referendum result is sending a clear message to London about Tory cuts.  Nothing to do with devolution for Wales, then.

He was also denying vehemently that the dog’s breakfast which passes for GOWA 2006, and the commitment to a referendum, were anything to do with internal divisions in the Labour Party.  Not at all, he claimed.  The referendum commitment had to be included, he said, because that was the only way he could get the Act through Parliament.

Perhaps he’s just forgotten that the Labour Party had a very clear overall majority at the time.  Or maybe he didn’t even realise that the people with whom he was conducting these delicate negotiations were in his own party...

Roosting chickens

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There’s been a lot of criticism of ‘True Wales’ for their decision not to seek lead campaign group status.  Certainly, their decision means that both sides of the argument will have to put their case without any subsidy from the public purse, but in criticising ‘True Wales’, people are aiming at the wrong target.  Why should any group feel under any obligation to apply for a particular status if it doesn’t want to?

The Electoral Commission’s hands are tied by the legislation which allows campaigners on one side of any referendum argument to be designated as the lead group only if there is a similar group on the other side which can also be so designated.  Does that mean that it’s the MPs who passed the legislation setting out the rules who got it wrong?

Possibly; but I’m not sure that that would be the right target either.  In setting up rules for holding referenda, the government of the day and the MPs who voted the legislation through probably assumed that any referendum was likely to be on a highly contentious proposal, and that there would be two strongly put sets of arguments.  It’s not an unreasonable assumption – but that doesn't make it correct.

The referendum on 3^rd March is one where the arguments are overwhelmingly one-sided, and most of the counter arguments seem to be against a wholly different proposition from that which is on the ballot paper.  We are obliged to go through a referendum process because that’s what GOWA 2006 says, but it’s not the issue on which any rational analysis would suggest that a referendum is really necessary.

I can see the argument for holding a referendum in 2006, before GOWA was enacted, on the principle of moving from an administrative body to a legislative one.  That was a real step change in the nature of devolved government.  But whether the powers devolved under GOWA are passed across piecemeal or wholesale doesn’t really strike me – or many others – as the sort of major change which really requires a referendum.  And the difficulty which both sides are having in adequately explaining why people should vote one way or the other tends to support that view.

We are where we are in terms of the two campaigns over the next few weeks, but it really isn’t ‘True Wales’ who put us there – it’s the architect of GOWA 2006, and the people who forced him to include a clause mandating a referendum as the price for their support for the Act, in the belief that they could thereby delay a move to Part 4 almost indefinitely.

I wonder whether the difficulty some people are having in deciding what to say now is because they are distracted by the sound of roosting chickens.

Presumed consent

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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 4^th; 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?

Questions, questions...

Tweet It should surely be no surprise to anyone that the Electoral Commission has concluded that there were problems with the proposed referendum question, and has proposed an alternative of its own. I'm not sure how much of an improvement it really is, though.

The real problem isn't with the question at all; it's with the mess created by the 2006 Act itself. Trying to explain the implications of moving from Part 3 to Part 4 bearing in mind the restrictions of the various schedules means, I fear, that there is no simple way of asking the right question without a complex preamble of some sort; and the longer the preamble, the more scope for disagreement about it.

We are, in reality, having the wrong referendum about the wrong issue, and we're doing it because firstly it was the only way that Hain could get the Act through Parliament, and secondly, because he believed that the referendum would not actually be triggered for a decade or two. And, as if that wasn't enough, it looks increasingly likely that one or both sides of the campaign will find themselves campaigning on questions which are not on the ballot paper anyway.

Whilst the outcome of the referendum certainly matters, does it matter how we get there? For those of us who believe that referenda can and should play a part in politics, of course it does, but there are times in life when we have to accept that "we are where we are".

Hopefully, some lessons will be learned about when we do and when we don't need a referendum. To be a meaningful part of our political life, they need to be clear and focussed in a way that this one can never be.

Campaign funding

Tweet 'True' Wales seem to be getting a little bit worked up about the conditions which might apply to any campaign funding from the Electoral Commission for the forthcoming referendum. It's interesting, but somehow not all that surprising, that an organisation which has argued that holding a referendum at all is a costly waste of money should now be trying to maximise the amount of money which it might receive from the state as part of the process.

They're staking their claim from the outset to be the officially funded anti campaign, but on my reading of the rules, there doesn't actually need to be one at all. The relevant legislation allows, but does not oblige, the Electoral Commission to designate an official campaign on either side, and allows, but does not oblige, it to fund both campaigns up to a set limit. The only obligation is that if official campaigns are to be designated and/or funded, then there must be equity of treatment between the two sides.

It is perfectly possible for the Electoral Commission to decide not to designate or fund an official campaign on either side, and it seems to me that there is a very good case to be made for taking precisely that decision.

In the first place, any referendum is going to be held against a background where politicians and politics, and the funding thereof, are held pretty low in public esteem. That, in itself, is sufficient ground to argue that the pro and anti campaigns should fund themselves rather than depend on the taxpayers.

It's also the case that the Commission is likely to find it very difficult to identify and designate any group which is able to campaign honestly against the proposal. We don't, of course, know what the question will be yet, but however it is worded, the choice before us will be whether we stay with the current arrangement, or whether we implement Part 4 of GOWA 2006.

To date, I have seen no evidence of any group or campaign which is prepared to campaign openly and honestly for the retention of the current system. Most opposition to the proposition on the table is based on an entirely different set of arguments. I can't really see any good argument for the taxpayer to fund any group which wants to run a campaign against a completely different proposition.

The Commission may argue that in distinguishing between the funding of organisation and staffing on the one hand, and literature on the other, then they would not be funding material which is irrelevant to the referendum. It's a specious argument to me, since more money means an ability to fund more propoaganda by diverting money which would otherwise have been spent on organisation and staffing. The distinction does seem to be part, though, of what has upset 'True' Wales. Better by far to avoid the problem completely, and give no taxpayers' money to either side.

Hain's revelation

Tweet According to the Western Mail on Saturday, Peter Hain has 'revealed' that the Welsh language LCO would have been 'bad law' were it not for the kindly intervention of MPs.

I don't think that he has actually 'revealed' any such thing; he has merely expressed his personal opinion. The two things are quite different, although I sometimes wonder if he understands that. But there is much to argue with, even in his expression of opinion.

In the first place, it is questionable whether the MPs were making 'law' at all, in the commonly understood sense of the word; they were only debating whether the power to make law should be passed from one place to another.

I suppose it might be argued that that is indeed making law in the widest sense, since it amounts to a change in the Government of Wales Act; but even taking that broad interpretation, I fail to see how the current LCO process does anything other than make a 'bad' law (Hain's own brainchild, of course) even worse. 'Good' law surely includes maximum clarity over who is responsible for what, but the more that MPs try to slice and dice powers before passing them to Cardiff, the less clear the situation becomes.

More importantly, it really does seem as though Hain and his MPs are still struggling with the concept of devolving law-making powers to Wales at all. I'm not sure whether the exceptions to the LCO that have resulted from the efforts of MPs' are right or wrong. They are certainly legitimate matters for debate, and I hope that I'm open-minded enough to consider the case for and against. The debate, however, should have been held around any draft Measure, not around the LCO.

I don't blame the various organisations for lobbying Parliament in the way that they have. If you give people two bites of the cherry, you should expect them to take two. MPs have effectively declared that they can and will obstruct and change LCOs, not on the basis of a rational discussion about where the power should lie, but on the basis of what someone might do with it at some unspecified point in the future.

It's a pity though that those organisations are putting their time and effort into trying to stop or restrict the transfer of power itself rather then entering into debate with the Assembly's committees and members about the content of future Measures. It's an even bigger pity that Hain and friends are giving them such an open invitation to do so.

Hain's at it again

Tweet Writing in the latest edition of the IWA magazine, 'Agenda', Peter Hain says, "The Government of Wales Act 2006…settled the question of Wales' constitutional status, if not forever, then for generations to come. …there will never be another Act because it provides for full law making powers…"

If there's one infallible rule of politics it is this: politicians who say something will 'never' happen are proved wrong, sometimes fairly rapidly. There are many politicians who have lived to regret ever having uttered the word. Hain will be proved wrong as well, for the simple reason that, even after holding a successful referendum and implementing Part 4 of GOWA 2006, the Assembly will still find itself hampered by the way in which the powers have been devolved.

The contrast is, inevitably, with Scotland, where the devolution settlement is so very much clearer. Scotland can do anything not explicitly reserved to Westminster; whereas, even under GOWA 2006 Part 4, Wales will only be able to legislate on those matters explicitly devolved to Wales. We will be able to do so without having to go through the ludicrous LCO process, and the split in responsibilities will be clearer than it is now – but it will still not be as clear as the situation in Scotland.

Far from being settled 'for generations to come', I believe that the constitutional status of Wales will continue to be a significant issue until at least the degree of stability afforded to Scotland is achieved. Does Hain really believe his own words, or is he just playing to a particular audience in his own party?

All Wales Convention

Tweet As Betsan has already blogged, yesterday evening saw the final event in the grand tour by the All-Wales Convention. It wasn't all they did yesterday, however - earlier in the day, they were taking oral evidence from bodies and individuals, and Plaid's Chief Executive, Gwenllïan Lansdown, and I were there to give evidence formally on behalf of Plaid.

No surprise to anyone, I'm sure, that our view was that there should be maximum devolution of powers to Wales in the shortest possible timetable; and that the referendum on implementing Part 4 of the Government of Wales Act should be held within the timetable agreed by ourselves and the Labour Party, and set out in the One Wales agreement. What other position would anyone expect Plaid to adopt?

The line of questioning was interesting, but it's hard to know whether Sir Emyr, in particular, was revealing his own attitude in asking questions, or merely playing devil's advocate. I'll give him the benefit of the doubt and assume the latter, which means that it's hard to read any hint about the probable outcome of their deliberations from the line of questioning.

The points raised with us about how we enthuse people in Wales to vote for what is in a sense a technical change - a matter of 'when not what' - were entirely valid, and they are issues which those of us who want to see a referendum held, with a successful answer, will need to consider. I'm not entirely convinced that they're relevant factors for the Convention to be worrying about; but that doesn't detract from their seriousness and relevance to the wider debate.

All too often, people are referring to a Scottish-style Parliament - but that, of course, is not what is on offer. I firmly believe that it would be a much easier proposition to sell than the content of GOWA 2006, largely because it's so much clearer. But if the problem in selling the next step is a direct result of the lack of clarity over the difference between where we are and where we would be after implementing Part 4, then what is the mechanism which ends that lack of clarity?

I have to admit that I don't see one; to argue that it will take more time for people to understand the issue (which seems to be the position of some who want to delay holding a referendum) leaves me cold. I don't think any amount of time is going to enthuse people about a largely technical change - the only thing more time will do is to continue to highlight the problems of the current system. There is a real danger that using the difficulty of getting people to understand and vote for change on the basis of lack of understanding becomes a permanent cop-out.

We got into an interesting debate with Sir Emyr about seatbelts on school buses at one point. We mentioned it as an example of the Assembly Government wanting to act but being unable to do so under the current settlement. He asked why they needed to legislate; why couldn't they just impose the change through the contracts individual councils have with the bus companies. It's an entirely valid point about the style of government – should governments always seek to resolve matters through legislation or should they look at other approaches? Entirely valid at a philosophical level; but surely irrelevant to the debate about where the power should lie?

Our final parting shot was a very simple, but I think very important, message. The Commission has done a great deal of detailed work and analysis. That will be reflected in their report when they conclude their work. That report will be an input - a very important input – into the final decision as to whether and when to hold a referendum. But the decision on that issue will be taken by politicians, not by the Convention's members. The One Wales Government has appointed the Convention's members to do a job of work and return with some considered advice; it has not abdicated its responsibility to them.

When it comes to commissioning and considering reports, governments can't win. If they do whatever their appointees advise, they can be accused of hiding behind others; and if they ignore reports, they can be accused of wasting time and money on an unnecessary exercise. I think it's more subtle than that. Good government uses all sorts of tools and methods to obtain views, to make assessments, and to provide advice. But good government also means that the final decision rests with elected representatives, who take their decisions having heard all the advice and considered the implications.

Finally, lest anyone jump to the conclusion that I am expecting a negative result from the Convention and seeking to justify over-ruling it in advance, let me add that this works both ways. If the Convention recommends an early referendum, the politicians have the right to decide otherwise, just as they have the right to decide to go forward if the Convention recommends no progress.