The fate of the National Assembly's first attempt at passing a law under the new powers it gained following last year's referendum is currently being considered by the Supreme Court following a complaint from the Wales Office that it is without the competence of the Assembly. Apparently the Assembly Government had been warned by Whitehall sources that there were problems with the Local Government Byelaws (Wales) Bill before the bill had gone through the Assembly's processes but the Assembly Government chose to carry on regardless.
Yesterday it was announced that a second bill, The Official Languages Bill is about to face a similar fate because the bill deals with both the devolved Welsh Language and the non-devolved English Language. I am not at all surprised by this move; back in 2010 when the Assembly was discussing the Welsh Language LCO I noted on this blog that "There is a failure in the devolution settlement. The Assembly has the right to legislate on the Welsh Language, but not on the Languages of Wales. A measure that says that English and Welsh are both official languages would be illegal;" I made this statement, not because I have superior knowledge of the law, but because that was the feedback that those of us who raised the issue of Official Status got from Assembly Members and Civil Servants. So the Assembly appears to have passed the Official Languages Bill knowing full well that that there were elements in the Bill which were not within the Assembly's current competence.
A third bill, dealing with organ donations is, almost inevitably, going to face a similar challenge, but yet again it appears that the Welsh Labour Government is going to press ahead with that bill regardless of any legal warnings too. When the Government of Wales Acts were passed such legal challenges were expected to be very rare, but they seem to be the defining trait of the current Assembly. So the question has to be asked "Why?"
From a nationalist point of view one could see these legal challenges as a way of highlighting the deficiencies in the Welsh devolution settlement and making the case for more devolution, but that is not what the Welsh Labour Government is doing; Welsh Labour, on the whole, is lukewarm about giving the Assembly further powers.
The Labour government in Cardiff is basically having a pissing competition with the Con-Dem government in London in order to prove that they are "standing up to the Tories". They are allowing the governance of Wales to stagnate in silly legal challenges. Rather than using the limited powers that we voted to give the Assembly in the referendum for the benefit of Wales, Labour is abusing that mandate by bogging the right to pass Welsh laws down in petty party politicking and point scoring. Yet again - the Labour Party is putting what's best for Labour before what is best for Wales!
Alwyn- well done on noting the English language point way back! Good stuff.
ReplyDeleteHowever I don't square you blaming Labour for this. Of course Labour will take advantage of it. But the problem lies with the UK Government. The Wales Office can always choose to waive consent. In the case of the local byelaws bill it offered to waive consent in return for making a deal over the content of the law. The Welsh Government is in fact completely right to carry on attempting to legislate.
I'm a nationalist and know all about the Labour party but in this case it's the Tories who are the bigger problem. They should butt out.
That I knew about this language anomaly two years ago isn't important, the important point is that Assembly Members, Ministers and Civil Servants knew about the anomaly two years ago. During the past two years they could have been in discussion with Westminster and/or could have been campaigning to rectify the problem – they did neither. Instead they have decided to pass a Bill that they knew would face a legal challenge which they will lose. After they lose in court will they then campaign vigorously to get equality for the languages of Wales? The evidence of the past two years is that they will not. They will have an "evil Tories" hissy fit and rant and then do nothing to try and resolve the issues that The Official Languages Bill was supposed to address.
Delete"Rather than using the limited powers that we voted to give the Assembly in the referendum for the benefit of Wales"
ReplyDeleteUm, they are trying to use powers from the referendum on local byelaws but the UK government has blocked it...
Are they really?
DeleteLabour could have passed a law relating to bylaws that would be in force today if they had heeded the warnings about those parts of the Bill that were outside the Assembly's competence and had they worked with the Secretary of State to deal with the contentious issues. By choosing to go down this confrontational route it is unlikely that a bylaws bill will be passed by the end of the current Assembly. So the question is "what is most important to Labour sorting out the problems that Local Authorities have with by-laws or picking a fight with the Tories?" Their behaviour suggests that picking a fight is more important to them than good local government.
Yes! All four parties agreed to the Byelaws bill! Why the heck should they have done a deal with the Sec of State? She has no remit in policy development at the Assembly. Suggesting the Welsh Government should accept changes to an Assembly-agreed Bill to satisfy the Secretary of State, is to bestow Colonial Viceroy powers upon that Secretary.
DeleteYou make a fine argument for a better devolution settlement which I wholeheartedly support – but under the current settlement – the one that the Assembly Government has to work with, the law is the law and the law says that the Assembly can't take powers away from a Westminster Government minister – the by-laws bill attempts to take power away from the Secretary of State for Wales. Morality isn't the point – legally the Assembly can't do so!
DeleteAn alternative take on this is that a right wing Secretary of State for Wales is testing the waters as to the strength of the Welsh Government's resolve to pursue a genuinely Welsh agenda. Maybe it's a sign that London are already anticipating an England+Wales political future, in case Scotland votes for independence in 2014. Maybe as you say Alwyn, Labour are lukewarm about extending the Senedd's powers, but surely the very nature of this type of exchange means they eventually will have to side with their own creation?
ReplyDeleteThe Government of Wales 2006 was written by Labour. Labour are too blame for not putting in legislation powers for the Assembly which would defend us. No point Labour whinging about the Tories.It's Labour, Peter Hain and Rhodri Morgan's fault.
ReplyDeleteThe Tories have seen all the union jacks and compliant Welsh over the Junilee and Olympics and know they can ignore us.
Surely it is time the people of Wales were given a vote on the future of both languages. To leave such matters in the hands of politicians is plain daft.
ReplyDeleteHow many official languages do we want in Wales. Either one or many. To stop at two is just silly!
And don't forget, we've got to work out who pays and how much for each language.
Alwyn, the languages one is an Assembly Commission law, not a Labour Government law. Your theory doesn't stack up. They have persisted with it because the Assembly lawyer (guy named Keith Bush) believes the effect on English is "incidental" and therefore constitutionally allowed. You are seeing a Labour plot where there isn't one.
ReplyDeleteIt really doesn't matter whether a Bill presented to the Assembly originates from the government, the opposition a committee the commission or an individual member they all have to gain the support and input of the Labour Party to have even a sniff at success so your pedantic fig leaf doesn't offer the cover that you think it might. It is an undeniable fact that the Assembly knew more than two years ago that they could not make Welsh an Official Language without making English official too and that making English official would be deemed to be outside the Assembly's competence. It is undeniable, given those facts, that the languages bill was designed with a legal challenge in mind. The by-laws bill was passed with the Assembly Government knowing that a legal challenge was inevitable and the organ donations bill will be passed despite the fact that we all already know that it will be subject to a legal challenge. The current Labour governed Assembly is going out of its way to pass bills with the explicit expectation that those bills will be subject to judicial challenge and nit picking about the differences between Bills, Committee Bills and Commission Bills does nothing to change that fact.
DeleteActually though the Welsh Government's case is alot stronger than I presumed. The UK Government, according to this article http://www.clickonwales.org/2012/10/supreme-court-dictates-direction-of-welsh-devolution-journey/) just wants to keep its hands on certain powers for the sake of it. I could never side with the UK Government in these circumstances.
ReplyDeleteWhere Alwyn has a point is that this case is showing there to have been obvious deficiencies in the 1999 Transfer of Functions Order- Labour's devolution legislation. We got a weak and confusing settlement.
But this point from Alwyn isn't true- "The current Labour governed Assembly is going out of its way to pass bills with the explicit expectation that those bills will be subject to judicial challenge and nit picking about the differences between Bills, Committee Bills and Commission Bills does nothing to change that fact."
They aren't 'going out of their way'. They are legislating in a democratically consistent manner, mostly on laws which Plaid Cymru and the Lib Dems support by the way, based on policy fields that are devolved and that have public opinion behind them.
The UK Government does not HAVE to interfere. It can choose to allow Welsh legislation to proceed without challenge at any point.
My question is bigger than political parties, it is about democracy. What right does the UK Government have to intervene in non-devolved policy fields?
An interesting point raised in the Assembly yesterday by the Counsel General is that he had misgivings about these Bills but that he could only share them with his client "The Government" ie the cabal of Labour Party AMs with a cabinet portfolio. The Government chose not to share Counsel General's advice with The Commission or Scrutiny Committees, so the probability of legal challenges to these Bills was given to the Labour Government, but they chose not to share it – even with their own backbenchers on scrutiny committees.
ReplyDeleteI stand by my claim that these Bills have been passed with the full knowledge that they would be legally opposed – a matter confirmed by Counsel General. The fact that Counsel General's advice was ignored and hidden from those who could have made best use of it consolidates my claim.