Monday, 30 October 2017

Think big when representing the future of Wales

This guest post by Lord Elystan Morgan first appeared in the booklet: 'Towards Federalism and Beyond.'

In order to preserve the unity of the United Kingdom (UK), the reality of devolution and the harmony between the various constituent nations of the UK, respect should be shown by the mother parliament in Westminster to the parliaments of Wales, Scotland and Northern Ireland. Indeed, those are key political and social considerations.

The matter that I wish to discuss is in no way contrary to that, but runs parallel. It is a marvellously simple constitutional point, and I think I can deal with it in very short compass. It concerns the reserved powers constitution that Wales achieved under the recent Wales Act 2017, which became law earlier this year. The purpose of that Act was to change the whole pattern of devolution for Wales from a conferred model—a confetti type of approach in place from 1964 onwards, when Wales achieved its Secretary of State—to a reserved powers constitution.

However, it is axiomatic as far as a reserved powers constitution is concerned that two matters should be dominant in its establishment. The essence of a reserved powers constitution, as we appreciate, is that there is a transfer in the first instance of the totality of power from the mother parliament to the subsidiary parliament, but that at the same time there should be a reservation of a strict number of exceptions and reservations. It is axiomatic, therefore, that two conditions must prevail. First, the mother parliament must be seized of all the legislative power and authority that is relevant to the situation. That is obvious. Secondly, the mother parliament must be cognisant of the powers that it has, and must be in a position to know exactly where to draw the line between that which is transferred and that which is reserved. Neither of those conditions exists in this case.

Why is that so? I remember a piece of dog Latin that I learned many years ago when I was a law student in relation to the sale of goods: ‘nemo dat quod non habet’—no man can give that which he does not have. Or …nobody can transfer that which they do not hold! When it came to the question of deciding what powers Wales should have in the initial devolution settlement, the mother parliament did not have a mass of those powers relevant to the situation. There is a huge body of authority that is missing. Proportionally, it may be 25%; it may be 30% or 40%. Nevertheless, it is massive in relation to the totality of legal responsibility. That authority was missing from 1st January 1973, ever since the European Communities Act 1972 came into force which ruled with regard to a very considerable swathe of competences in the UK.

Many powers were never with the mother parliament in Westminster to dispose of. It could not possibly give them to Wales or to Scotland for that matter—in Northern Ireland, the situation was entirely different, because its constitution goes back to 1922. The central concept of a reserved constitution is the idea that the mother parliament has ‘on the table,’ as it were, the totality of powers that are available and relevant in the situation, and that the mother parliament looks upon those powers and says, ‘This is all that we have. This is where we draw the dividing line between the totality that is transferred and that small remnant that is retained and reserved.’

Therefore, the current Brexit negotiations will impact greatly on the Wales Act 2017. Since a good proportion of powers have historically resided in Brussels there is a real risk that these will be repatriated, of course, neither to Wales nor to Scotland but indeed, to Westminster. We must ensure a settlement that is fair, just and lasting.

What is to be done? The following matters have some relevance, broadly. Of course, there is the question of the Sewel convention, which has been written into both the Scotland Act and Wales Act. That will have its effect gradually over the years. There is also the question of the joint ministerial committee, which meets in confidence and is able to discuss, in a situation of total secrecy, matters that are of the utmost importance to the mother parliament and the devolved parliaments. There is also the question of protocols, which were greatly promised in the late-1990s when legislation relating to Scottish and Welsh devolution went through, but have since been as ‘dead as the dodo,’ I am afraid, and must be revived.

That is why I have proposed that the Prime Minister and the First Minister for Wales should be responsible for forming a body that will look carefully at the situation to determine:

o   firstly, what is the scope of legislative authority that is missing here?
o   secondly, what is the nature of that authority?
o   thirdly, what entrenched rights—what established rights—have come into being in relation to that since January 1973? 
o   lastly, what situations exist where there has been legislation under the 1972 Act which has been deemed to be incompatible with the European instruments?

Many people will say that all this is not necessary and that Wales, from Cardiff, and the Westminster Parliament can negotiate at arm’s length. I do not believe for a moment that that is feasible. We have seen exactly, over the past year, when dealing with the Wales Bill how almost impossible it was to persuade the Westminster parliament that much of what had been reserved was utterly trivial and an insult to the Welsh nation. Things such as sharp knives, axes, dogs, licensing, prostitution, hovercraft all those matters which scream for domestic consideration have now been reserved!

So, putting Brexit aside, how did we get to this rather awkward point?

In July 2014 the Supreme Court, presided over by the Lord Chief Justice Lord Thomas of Cwmgiedd, was required to decide upon the crucial issue of exactly where the boundary lay between Westminster and Cardiff in relation to devolution. The matter before the court was the desire of the Welsh Assembly to pass its own legislation relating to the wages of agricultural workers in Wales. The case for the Westminster government, presented by the then Attorney General, was essentially that a decision as to wages belonged classically to the field of employment. The Supreme Court found differently and said that whenever there was in any one of the twenty fields of devolved authority an intention to transfer substantial powers to Wales, then unless there was a specific exemption to that effect, all other powers belonged to the Welsh Assembly. This is what the Supreme Court called the ‘silent transfer’. The consequence of the ruling was particularly mindboggling in that:

o   It was clear that huge areas (hitherto ‘silent’) had in fact been unwittingly transferred to the Welsh Assembly
o   In many other areas there could have been no certainty that matters had not in fact been transferred.

Much of the controversy surrounding the Wales Act emanates directly from that uncertainty described. The Act is deeply flawed and is a blue print for failure and disaster, particularly because of the fact that there are about 200 reservations—the very nature of which makes the matter a nonsense. When you deal with a long period of transferring small powers, day in day out, coming from hundreds of different sources, you create a situation that almost guarantees some constitutional neurosis on the part of many generations of Welsh lawyers. Avoiding that would be utterly worthwhile. There has to be some mutual trust and a sense of balance. If the Westminster parliament refuses to accept that, then the whole moral geometry of the situation is affected.

One could suggest that there has been a permafrost of attitude towards Welsh devolution from the beginning. I believe that it has a lot to do with the fact that Wales was England’s first colony. When thinking of many of those reservations in the Wales Act, can you imagine the Colonial Office of the UK some 70 years ago, particularly when Jim Griffiths was head of that department, approaching a British Caribbean or African colony and stating: ‘These are the trivial reservations I demand of you?

Dominion status is not about a rigid pattern of government. The principle is enunciated in the Statute of Westminster 1931 and has developed politically over 85 years thereafter. Obviously one is not speaking of a replica of the constitutional situation of New Zealand or Australia, but specifically of Dominion status in the context of Wales and these isles. It is an open secret that about 10 years ago the governments of the UK and that of Spain almost came to an understanding – this is hardly believable – about the future of Gibraltar, with a plan for some form of Dominion status as a solution. In other words the concept is so flexible, so malleable and so adaptable that it was possible for those ancient conflicts surrounding that important rock, which guards access to the Mediterranean Sea, to come very near to a friendly settlement. There are endless possibilities that can be considered. 

At this point I am tempted to mischievously highlight that for many centuries Wales was indeed a Dominion of the UK in law.  The actual wording of the Act of Union 1536 refers to the: ‘Dominion, principality and country of Wales!’

So, as I proposed when the then Wales Bill undertook its passage through the House of Lords, the Secretary of State for Wales should be responsible for establishing a working party to report to Parliament as to the operation of the reserved powers retained by Westminster, particularly those matters which can properly be regarded as belonging to the province of the devolved parliaments. The function of the working party would be to winnow out the dozens of trivial matters whose inclusion in the reserved powers list is an affront to Welsh nationhood, which are the cobwebs of colonialism and would never have been considered in the 1950s in the context of a British colony in the Caribbean or Africa. I venture to think that this is of the most crucial importance to the Welsh devolution settlement in that it seeks to correct a fatal flaw in the heart and cornel of that settlement.

The concept of devolution which inevitably espouses principles of domestic rule and subsidiarity inevitably rests fundamentally upon the acceptance of what I would call the watershed of justice and reason. This is no more and no less than an acceptance that while certain matters belong inevitably to the mother Parliament (Westminster), such as succession to the Crown, Defence and Foreign Policy, the vast bulk of the remainder are matters which palpably belong to the jurisdiction of the devolved parliament (the Welsh Assembly). A denial of this watershed is both an affront to common sense but a betrayal and devaluation of devolution. This is exactly what the Wales Act creates in Wales when functions such as liquor licensing (devolved to Wales in 1881) and the organisation of charitable collections are set amongst the now reserved powers.

I would expect the proposed working party to report to represent the broadest interests in Wales, both politically and socially. If the Secretary of State wishes to have a working party ‘off the shelf,’ as it were, he could do no better than invite the Silk Committee to sit again, remembering that this distinguished body which represented all political opinions has reported twice, unanimously and constructively, upon Welsh devolution.

Also, concurrently, a study should be advanced on the future possibilities for Wales as a land and nation, and of constitutional advancement within the terms of and consistent with the principles of the Statute of Westminster 1931, and developments thereafter. Despite the devolution of the last two decades, the UK today remains one of the most concentrated systems of parliamentary government in the democratic world. There is a desperate need for a UK -wide Constitutional Convention, with the involvement of all political parties and elements of British society, to discuss the future of the Union, particularly in the context of Brexit.

For well over a century the debate as to whether a federal, or similar, structure should be created has ebbed and flowed. All creative efforts, however, have floundered on the grim rock of fundamental disproportion. The fact that England has the vastly dominant share of the kingdom’s wealth and 82% of its population creates an imbalance which makes any federal structure a daunting task. But whilst this is true in relation to the composition of the House of Commons, why should we not consider whether a restructured, elected House of Lords could form part of the solution?

The House of Lords owes its origins to a dominant caste of nobles and aristocracy. In Saxon times they sent their representatives to the Witenagemot – the Council of Wise Men to advise their King. From that there developed the concept of government as ‘the shining ladder’.  At its top was the monarch answerable only to Almighty God. Immediately below was the House of Lords. Many centuries later, and then countless degrees lower, came the early House of Commons. When the will of the elected House of Commons encountered a brutal and existential clash with the unelected Lords in 1911, thanks to Lloyd George, the Parliament of that year guaranteed that the Commons would have its way – but subject to a delaying process.

This historic legislation, however great its impact at the time, was seen by many as a constitutional stop gap. The preamble to the 1911 Act of Parliament speaks of a more representative form of government. Many interpreted this back then as referring to an elected Second Chamber. Yet over a century later, despite the culling of hereditary peers to a low level of 92 members, the second chamber remains unelected by the public at large. Although the 1958 Life Peerage Act has provided for a wider representation of members in social and gender terms. Could not an elected House of Lords (suitably renamed the Senate) be such a federal body?

I believe the clue lies across the Atlantic. In the USA the lower house of Congress (the House of Representatives) has its members elected in proportion to population, but in the second chamber (the Senate) a different system is resorted to. Each state irrespective of its economic strength or its population has two senators. Thus the tiny population of Rhode Island has the same number of senators as California and Texas. It is a model of the enlightened and chivalrous majority towards the minority.

So a second chamber (the Senate) can carry a federal structure amongst units of disparate strengths and size given certain imaginative checks and balances. I would personally advocate a Senate of some 70 members each for the four nations of the UK. Their numbers could be topped up by 10 elected members from each of the devolved bodies and 10 representatives from the House of Commons. This federal elected Senate would have all the powers of scrutiny and examination enjoyed as present, but with broader powers to delay legislation (including regulations), albeit for a period of months rather than a year. Surely such a plan points the way forward to a more progressive Parliamentary future as a starting point?

I appreciate that this does not deal with the bountiful problems of regional devolution in England. But the background created could not be anything other than beneficial for such a principle. I will not touch upon the slogan EVEL (English Votes for English Laws) because I believe its whole campaign is ill founded. If one deducts from the 650 members of the House of Commons those Members of Parliament (MPs) that are not from England, then one is still left with a huge majority of English members. They have never been defeated on the floor of the Commons by the Celtic fringes nor, as far as I know, in any Bill Committee during modern times. Therefore England has nothing to fear.

However, I would like to touch again on the matter of Dominion status which was conferred on Canada, Australia, New Zealand and South Africa.  Although there was no formal definition of it, the Imperial Conference of 1926 described Great Britain and the Dominions as ‘autonomous communities within the British Empire, equal in status, in no way subordinate to one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown and freely associated as members of the British Commonwealth of Nations.’ So the Statute of Westminster 1931 did not create a rigid model of Dominion status but rather enunciated a principle of immense flexibility and subtleness. The present situation in the UK is of total flux and it is therefore incumbent upon us all to consider the many possibilities existing, as who knows what the circumstances will be in five to ten years’ time from now?

I conceive of nationalism in the context of Wales as being a patriotism that knows no hatred of any other nation. That is what Welsh nationhood and Welsh nationalism at their very best should be and are. My appeal is when we are thinking of the future of Wales is to think big. If you think big, you will achieve something worthwhile; if you think small, what you will achieve will be insubstantial and inevitably lesser than what you set out to accomplish. For far too long we have begged for the crumbs of devolution, and it is now highly necessary that we should raise our expectations to be worthy of our position as a mature national entity, whether it be embarking on a journey through models of federalism, confederalism or Dominion status. That is the situation confronting us in 2017.

After being involved with the devolution issue over many decades, I am rapidly coming to the conclusion that Wales is being mercilessly short changed over devolution. This assertion rests upon two incontrovertible pieces of evidence. The first was the willingness on the part of Her Majesty’s Government to contemplate nearly 200 reservations, most which were so childish and trivial as to give the lie to any sincerity concerning a reserved constitution. The second was the willingness to pretend that a lasting and long-term settlement of the division of authority between Westminster and Cardiff could even be contemplated, whilst the very substantial proportion of that authority was not in the gift of the Government, but was ensconced in Brussels. 

There is therefore a ringing challenge to Welsh political representatives, both in Westminster and Cardiff, to demand a more equitable approach on the part of the Government to the fundamental rights of Wales as a land and nation. Failure to act in this way would be a signal of disloyalty to the people of Wales.