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.