6. Statement by the Counsel General and Minister for the Constitution: Interim Report of the Independent Commission on the Constitutional Future of Wales

– in the Senedd at 4:07 pm on 31 January 2023.

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Photo of Elin Jones Elin Jones Plaid Cymru 4:07, 31 January 2023

(Translated)

We move to item 6, a statement by the Counsel General and Minister for the Constitution on the interim report of the Independent Commission on the Constitutional Future of Wales. I call on the Minister for the Constitution to make the statement—Mick Antoniw.

Photo of Mick Antoniw Mick Antoniw Labour

(Translated)

Thank you, Llywydd. Eighteen months ago, we established the Independent Commission on the Constitutional Future of Wales. We asked the commission to consider and develop options for fundamental reform of the constitutional structures of the United Kingdom, in which Wales remains an integral part. We also asked them to consider and develop all progressive options to strengthen Welsh democracy and to deliver improvements for the people of Wales. The commission's task was to produce an interim report by the end of last year, with a full report by the end of this year.

Before Christmas, I was pleased to inform Members that the commission had met the first of its objectives and had published its interim report. Today, I'd like to welcome that interim report, and I'd like to place on record my thanks to the commission’s co-chairs, Dr Rowan Williams and Professor Laura McAllister, and all the members of the commission for their work in producing the report. The interim report is a substantial one. It is an authoritative and well-evidenced document. There was an excellent public outreach and consultation process. While the commission’s work continues, it has come to an important conclusion: the status quo is 'no longer a stable basis for the future'.

Photo of Mick Antoniw Mick Antoniw Labour 4:09, 31 January 2023

Llywydd, the commission is taking forward its work at a time when the tensions in the wider constitutional structures of the United Kingdom are increasing and our inter-governmental relationship tested. In that context, it is not surprising at all that the commission has reached the view that neither the status quo nor unwinding devolution are viable options for further consideration. Nor is it surprising that the commission’s work is contributing to a real and growing momentum behind calls for constitutional change. Members will be aware of the report that was recently published by Gordon Brown’s commission on the future of the UK, which made a series of radical proposals for constitutional reform, and which references the work of the independent commission.

Llywydd, I believe that change is inevitable, and I believe that the commission’s work is, and will be, a vital contribution to the discussion already taking place. In my written statement, I encouraged Members, and indeed anyone with an interest in our constitution, to consider the report, and I hope Members will have done so.

On that point, I want to highlight the commission’s work to engage with the public. Given the direct impact that our governance arrangements will have on people’s lives, we asked the commission to engage widely with civic society and the Welsh public to raise awareness and to build a genuinely national conversation. Their initial consultation has resulted in over 2,000 responses, and I am particularly grateful to the commission for the innovative way they have engaged with communities through their community engagement fund.

If the commission’s solutions are to be workable and command support, they must be grounded in the experience of the lives of those whose lives they will affect. Indeed, the commission has indicated their intention, in the next phase of their work, to extend their conversation with the people of Wales. As the commission embarks on this next phase, I would encourage Members of all parties in this Chamber to engage with the commission and to encourage engagement from their communities to ensure that the commission’s conclusions are truly reflective of all of the people of Wales. Diolch, Llywydd.

Photo of Darren Millar Darren Millar Conservative 4:12, 31 January 2023

As the only party that seems to believe in the future of the whole of the United Kingdom, and Wales's integral place in it, it's my pleasure to be able to ask some questions in respect of your statement, Minister. The commission, as you will know, we regard as unnecessary. It's unnecessary because it's Wales just looking at one single part of the United Kingdom and not having proper consideration of the views of people elsewhere in the United Kingdom, which I think is a big mistake.

It's an expensive commission—£1.1 million each year over three years. It's supposed to finish its work in December of this year, yet you've already allocated for future budgets in the following financial years, even beyond this current financial year, for two years, another £1.1 million. Can you explain to us why the commission, even after it has completed its work, still needs £1.1 million per year in the financial year 2024-25?

I've paid great attention to the work of the commission; I've read the report. I was, frankly, astonished that it examined what it regarded as the centralised power system in England, but it had no regard whatsoever for the centralising of powers here in Wales. There was no talk of any potential for devolution to the regions of Wales—my part of Wales, which feels, for example, north Wales, so disconnected with life here in Cardiff Bay and, in particular, Cathays Park, because of the ignorance of the Welsh Government towards that particular region. Can I ask, will you give some direction to the commission to actually look at devolution within Wales in order that we can get a proper decentralised approach to the governance of this country, rather than the centralised approach that your Government has taken over the past two-odd decades?

In addition to that, the report quite rightly talks about the importance of direct accountability in a democracy. Of course, we all know that the Labour Party, in cahoots with Plaid Cymru, is trying to strip that direct accountability away through the introduction of Senedd reforms that will empower political parties over members of the public in terms of whom they can directly elect to represent them in this Chamber. I know backbenchers on the Labour benches agree with me in that respect, because closed-list systems take away power from the people and put it into the pockets of political party leaders. That's the wrong approach, as far as we’re concerned, and I think you should ask the commission to examine and give its view on the proposals for Senedd reform that have been hatched between the Labour Party and Plaid Cymru, because I don’t think, frankly, that they would find them to be beneficial to the people of Wales.

You made reference to Gordon Brown’s commission on the future of the UK—a Labour Party document, not a document that has any more gravity outside of the Labour Party than the gravity that you seem to attach to it. Wales, of course, was an afterthought in that document. It talked heavily about the situation in Scotland. It talked about the regions of England. Wales barely got a mention in the document, and in fact the mention it did get completely disagreed with the view of the Labour Party here in Wales, which wanted to see the full devolution of the criminal justice system. Of course, Gordon Brown disagreed with you. I don’t know why you’re applauding him now in this Chamber and saying what a wonderful piece of work he’s done, when, frankly, he clearly didn’t share that piece of work with you before it was published. He even made references to the 'Welsh Assembly Government'. He didn’t talk about the ‘Welsh Government’. The ‘Welsh Assembly Government’ is a term that we abandoned over 10 years ago. This shows how out of date and out of touch Gordon Brown is, frankly, with the people of Wales and the people in this Senedd, including his own colleagues in the Labour Party.

Then you talk about public engagement. My goodness—they’ve had 2,000 responses so far that have contributed, through the questionnaire, to the work of the commission. Fifty-five per cent of those, apparently, supported independence. Now, that’s clearly not reflective of the views of the people of Wales, because we’re consistently told that support for independence is well below 55 per cent, extraordinarily below. So, I’m afraid that this commission seems to be talking only to those people that some of its members want to listen to. Can you tell us how you will encourage the commission to reach out beyond that navel-gazing part of society that seems to be obsessed with constitutional tinkering here in Wales so that we can ensure that there’s a proper representative view put to it of the views of people across this country?

And finally, I want to say to you, Minister, that I think it’s time that we invested the resources that are going to this commission into our NHS, into our schools and into our public services. You keep claiming that you’ve got no money to invest in some of these things, you keep claiming that you’ve got no money to be able to put into the pockets of our nurses and other public sector workers. Here’s some money. If it’s burning a hole in your pocket, spend it in a different direction.

Photo of Mick Antoniw Mick Antoniw Labour 4:17, 31 January 2023

Well, I'd like to thank the Member for his contribution, and it was very similar to the contribution he made about 18 months, two years ago. It hasn’t changed at all. It seems to me you haven’t realised that the debate has moved on. We’ve had the debate over the merits of the commission and the purpose to it, and what we’re now having is a commission that is actually engaging about its work. I would have hoped that there would be a slightly more constructive contribution to the work. I understand you disagree with the commission and you didn’t want to see it established. You don’t think the purpose of its work is important. But that is not the view of the majority of this Senedd.

Can I just say, firstly, in terms of your first comments with regard to the whole of the UK, the First Minister and the Welsh Government and the Welsh Labour Party has made it absolutely clear what the Welsh Labour position is? And that is that it is in support of the union. It believes Wales is better off in the union, in a prosperous union, but believes that the union is in desperate need of reform. That reform, ironically, is very much recognised—the need for that reform—across political parties in Westminster, and, when you talk about constitutional tinkering, well, if this is tinkering, all we need to look at is the raft after raft after raft of legislation that’s going through Westminster that impacts on this place—the Retained EU Law (Revocation and Reform) Bill, which is all about constitutional reform; the Northern Ireland Protocol Bill, which, again, is essentially about reform; the suggestion now that they’re going to resurrect the bill of rights, which is, again, about constitutional reform; the United Kingdom Internal Market Act, which is about undermining devolution and constitutional reform; even the Strikes (Minimum Service Levels) Bill has significant constitutional implications.

The constitution is important to people’s lives because it is about how power is exercised, how it is distributed and the sort of governance we have, and if you don’t recognise that there is a real precipice for our democracy in terms of people's belief in democratic systems, then I believe you're failing even those you represent in respect of the need for change. I believe that the commission is necessary, because I believe Wales has to have a voice within this process. There has to be an examination, an exploration, of the issues that are important to Wales, and we have to be able to express those ourselves, and that is what the work of the commission is about. 

I understand the points you make and you're perfectly entitled to make those particular points; in fact, I hope you've made them to the commission, because I understand you have attended the commission to give evidence. I understand from the commission that they originally asked to meet with the leader of the Welsh Conservatives, Andrew R.T. Davies, were initially directed to Mark Isherwood but since have met with yourself. But, equally so, Simon Hart, as Secretary of State for Wales, has given evidence to the commission, and the UK Government levelling-up Minister, Neil O'Brien, has also given. So, I think it is an important recognition, after the hyperbole, that I think there are people on the Conservatives side who are taking the commission seriously and who are engaging, because, if they didn't think it was an important event, whether they agree with it or not, I don't think they would have wanted to participate in it. 

Just to say that the commission is, of course, independent. Its terms of reference were well debated within this Chamber. It is not for us, having established an independent commission, to direct that commission and tell it what it is to do. But, having read the report and having had a meeting with the commission, I'm impressed with the work that is now ongoing, which is very, very serious, in-depth and detailed engagement. I was very impressed with the interim report, because the importance of the interim report, unlike often the case with interim reports, is that it doesn't actually say, 'This is an interim report and these are the conclusions we're going to reach in due course.' It has basically set out the variety of opinions there and is going out to actually engage, and I think that engagement is important. I believe deep down in your heart, after you've made the publicity statements that you wanted to make, that, deep down, you really do believe in the importance of this commission and the importance of actually engaging with it, even if you don't think it should be here. 

Photo of Adam Price Adam Price Plaid Cymru 4:22, 31 January 2023

(Translated)

I agree with you, Counsel General, that the existence and the work of the commission reflect the new enthusiasm that there is in Wales around our national conversation in terms of our constitutional future, and it's also contributing to that momentum. And that can be seen in a range of different ways and reflects a range of different views, perhaps. One example over the past weekend—as I've already referred to earlier this afternoon, I attended the Melin Drafod summit on independence; 200 people representing different parties, different parts of society and different parts of Wales, discussing independence, and publishing, as part of the summit, their new study on the funding question in relation to independence, which is one of the questions that the commission's interim report raises in the context of assessing the viability of independence, and that study responds to the Plaid Cymru presentation to the commission and the work specifically done by Professor John Doyle from Dublin City University, which demonstrated that it would be possible for Wales to afford independence, that there isn't as great a funding gap as had previously been thought, and the work of Melin Drafod confirmed that and has done further work on that basis. 

So, there is civic enthusiasm and energy around the question of the constitutional future of Wales, which is similar, I think, to the period prior to the 1997 referendum. And it is the end of one period and the beginning of another, and the conversation that we're having is what that new chapter is, and in what direction are we moving. I think it is an opportunity for us to rejuvenate our democracy as we face the constitutional and broader democratic crisis across the UK. The interim report provides three possible options that could be looked into further on the constitutional future of Wales: first, safeguarding and strengthening devolution, federalism, secondly, and then independence. It's clear which of the three options my party would favour, but may I ask the Counsel General to tell us which of the three options the Welsh Government would support as the best option at this point? And in that context, is there a difference between the view of the Welsh Labour Government, Welsh Labour as a party, and as part of the wider British Labour Party in Wales, and the policy of the UK Labour Party? Or is there an expectation that the policy of the Welsh Labour Government, Welsh Labour, will decide on the policy of the Labour Party more generally? And what's the inter-relationship—? Now, you mentioned the Gordon Brown commission and his recommendations to the leadership of the UK Labour Party. What's the inter-relationship between that process of policy creation at the UK level in terms of the Labour Party and the work of the commission? In the case of Scotland, in the constitutional convention there, which had such an influence on the devolution process in Scotland, the upshot of the convention and the final report did have a direct impact on the policy of the Labour Party; it was adopted as policy. Is that the kind of inter-relationship that you anticipate with the final report of this commission, that that would be respected by the leadership of the Labour Party at the UK level? And would you encourage that as the best way forward, of course referring to the fact that the Gordon Brown commission report didn't say much about Wales and the fact that the work of the constitutional commission was still ongoing?

The constitutional commission does note a number of areas where there have been calls for further devolution. We've heard reference to justice and policing, for example, but it lists some others: employment, where work is ongoing by the TUC; benefits; the Crown Estate; the railways and so on and so forth, and broadcasting too. And as part of your presentation to the next stage, do you intend to list those areas that you as a Government would wish to see the next Westminster Government devolving powers to Wales? And as a Government that has said that you espouse the right to self-determination, would you want to include in that list the right to call a referendum on independence or on the constitutional future, in whichever direction, that that right shouldn't be reserved to Westminster but that it should be devolved here, where it should be, in the hands of the elected representatives of the people of Wales?

Photo of Mick Antoniw Mick Antoniw Labour 4:28, 31 January 2023

I thank the Member very much for those very detailed questions—a large number of questions. I'll do my best to try and answer them. Perhaps I could just preface them by—. Of course, I do actually want to wait and see what the outcome of the independent commission's report is. Within our respective political parties, within our communities, within our organisations, of course we all have views. We've all been on this devolution journey for many years in different ways. I was very involved in the 1979 devolution referendum, the one no-one seems to mention, and the outcome of that was depressing. It was—. And we thought we might never ever have another referendum or that we might not ever achieve the establishment of the Assembly and then the Senedd. So, we have come an enormously long way. And it's fair to say I think, within all political parties, even within Plaid, within Welsh Labour, within UK Labour, there are a whole variety of differing views as to the principles of devolution, decentralisation of power, how it should happen and what the structure should be, just as there are differences in terms of what the UK should look like in the future. What I can say is, since I came to Wales in 1973, there is a confidence in Wales, there is a transformation in Wales, a confidence in the identity, in the language, in Wales's place within the UK and within the world, that has grown beyond anything, I think, that was ever conceivable back in those particular times. A lot of that is down to what has actually happened.

Photo of Mick Antoniw Mick Antoniw Labour 4:30, 31 January 2023

As far as the issue of—. I mean, I understand the position you have with independence. For me, the main issue has always actually been the issue of subsidiarity. All countries and economies have a certain degree of interdependency; that was one of the functions of the European Union. And, in many ways, when you start taking the terminology out of terms, in actual fact, there is actually quite a lot of common ground. I think, probably across all political parties, we want to see decision making as close to people as possible. Darren Millar made a very valid point in that devolution isn't just about the creation of parliaments; it is about the empowerment of people and communities, and that means we have to look equally so at how devolution takes place within our own communities and within our own Government. What the role of parliaments is—I think there is a very serious question there for Westminster, but I think equally so for Holyrood and for this place as well. I think one of the advantages of the independent commission is that I think it will begin to address this; it will engage over those. And each individual political party and people individually will have to consider what conclusions and what views the report comes with in order to formulate, ultimately, their own views as to the way they see the way forward, not just about aspiration, but in terms of practically how you achieve change and what that change should be.

You raised very properly the issue of finance and the issues of viability, and I'm very aware of the work that was done by the Wales Governance Centre as well. There are, of course, important views to be taken into account in terms of, within the UK, the role of tax, the role of welfare, but the issues around the redistribution of wealth. Barnett, after all, is a redistributive. It may be a very inadequate, outdated and ineffective way of redistribution, but it does have that particular role; that is one of the common features in terms of one of the functions of the UK.

Equally so, in terms of my own opinions on this, well, I'm not really here to give my own personal opinions. You're well aware of the work that I was involved in with regard to radical federalism and so on, as to what the future and the options might be. But, I think, what I am here to do is to really talk about the importance of the commission and how we have to take that work seriously and how we have to engage with it, and I think how we have to assess the work it does, listen to what its conclusions are, to engage with it, and then give very serious consideration to the final outcome.

Can I just say, in terms of the—? You'll be aware, of course, about what the Welsh Government's position has been around the 'Reforming the Union' documents. The two versions that have been published actually set out the sort of evidence that the First Minister gave to the commission, and we'll wait to see what they make of that.

With regard to the Gordon Brown report, can I say what I thought were the two most important things within that? Firstly, that there were no doors closed in terms of change. He said that there's absolutely no reason why Wales shouldn't have exactly the same powers as Scotland. He also says that subsidiarity means that decision making should be taken as close to people as possible. And he also outlines within that, and recognises, I think, the democratic precipice that we've been approaching as more and more people lose confidence in the electoral system. But there was also, within that, a very important deference to the fact that we have the independent commission, that it wouldn't be appropriate for them, within the Gordon Brown report, to list all the different things that he thought they should decide for Wales, but rather the fact that there should be constructive engagement with the Senedd and with the Welsh Government once the independent commission has completed its work. I think that is exactly the appropriate thing to have done. It would have been totally wrong to have basically said, 'Whatever the independent commission does is irrelevant because these are the things that are good for you.' I think I've said on numerous occasions that it should not be the case that the future of Wales and Wales's role within the UK or wherever would be decided by a commission elsewhere and outwith of Wales. 

With regard to the issue of a right to a referendum, I support very much the view that's been given by the First Minister over the years: any party that is elected that says within its manifesto that it intends to call a referendum should have the right to have that referendum. Diolch.

Photo of Huw Irranca-Davies Huw Irranca-Davies Labour 4:35, 31 January 2023

(Translated)

I welcome this debate this afternoon. It will not come as any surprise that, as Chair of the committee with constitutional matters as a core part of its remit, I am contributing today. As a committee, we have not considered the report in detail, but we have discussed it briefly last week in advance of today's statement. My focus this afternoon will be to highlight matters within the interim report that are likely to be of interest to my committee in the months ahead.

Photo of Huw Irranca-Davies Huw Irranca-Davies Labour

I note the commission’s conclusion that there are,

'significant problems with the way Wales is currently governed', and that it has identified 10 immediate pressure points on the current settlement. Now, it’s interesting that these mainly relate to

'relations between the UK and Welsh governments'— a view that indeed chimes with some of our observations as a committee during our scrutiny of legislative consent memoranda. So, it's therefore welcome that, in the next phase of the commission's work, it will explore how these pressures could be addressed, and we'll watch that with interest.

One of these 10 pressure points is, in fact, the fragility of these inter-governmental relations. So, I welcome the commission's intention to take evidence on whether the new machinery, which was established only last year and—indeed, we remember on the committee the Counsel General coming in front of us and it was one of those rare occasions where we saw smiles and optimism that this was a good way forward, but we have yet to see how it will bed in and how effective it will be—that they will take evidence on whether this new machinery, established last year, is indeed improving relations between the Welsh and UK Governments.

In fact, Counsel General, we intend as well to undertake some work on this area of inter-governmental relations ourselves before the summer recess. But, as you know, much of our time is now focused on the scrutiny of legislative consent memoranda and Welsh Government legislation, so our opportunities to be proactive in this area are much more limited than we would like to see. Later this year, we may also have to contend, of course, with the scrutiny of statutory instruments arising from Retained EU Law (Revocation and Reform) Bill. So, we welcome the fact the commission is going to look at this.

I note also that the next stage of the commission’s work will include looking at options for reform of constitutional structures, and exploring with the people of Wales how they believe their country should be governed in the future. And, interestingly, Darren’s point here on devolution and empowering people, extending way beyond the Senedd, is a point well made. So, we will look with interest at what proposals they might come forward with in that respect. So, I look forward to considering the commission's final report and some of these points in particular, which leads me to the following questions, Counsel General.

First of all, how does the work of this commission, as it moves ahead, fit with Welsh Government's constitutional policy agenda? I guess I'm asking you to look forward a little bit and suggest to us what impact this might have in shaping your policy intention, going forward.

Secondly, how might the work of the commission help realise improvements that we know are needed to the Welsh Government's capacity to legislate as we've taken on additional powers, as we develop more legislation, as we legislate also, or seek to steer legislation at the other end of the M4, so, in fact, that we can rely less on that, less on Westminster, and so that legislation in devolved areas is predominantly made in Wales, by the Senedd, for the citizens who elect us for that purpose? Do you anticipate that the commission will actually look at how we can do more of 'legislated in Wales, for Wales'?

And, thirdly, how does the Welsh Government intend to engage with the UK Government on these issues? This is the big question that sits underneath this, particularly given concerns around inter-governmental relations over recent years. And, Counsel General, maybe I could ask you to speculate on how receptive you think the UK Government will be to you coming forward saying, 'We have some good ideas that have come forward; what do you think? Can we work together on this?'

My final point would simply be that I noticed in your statement that you referred to the fact that this constitutional analysis should be grounded, and the commission themselves have said it should be grounded, in the lives of those people whose lives are affected. I entirely agree, because that's what constitutional work should always be focused on: it's how better we and the institutions we have can serve the electorate, rather than some arcane debate. Grounded in people's lives. Diolch yn fawr iawn.

Photo of Mick Antoniw Mick Antoniw Labour 4:40, 31 January 2023

Thank you, Huw, for those comments, and also for the work your committee has done and the work that it will do. Of course, there are a lot of constitutional engagements taking place between the four nations of the UK at the moment, including on the issue of common frameworks, some of which are being considered by committees within this Senedd, and these frameworks, of course, were created on a co-operative basis in order to enable the four nations to work together in the post-Brexit environment. It was unfortunate that the United Kingdom Internal Market Act 2020 came along to undermine them, but the common frameworks work is still ongoing, and we hope that that will begin to take some form of prescience.

The fact that there are significant constitutional problems and prescience is no surprise to us. Those of us who attended the inter-parliamentary forum, which I know you attend now and I've attended previously, on a cross-party basis—I think the chair of Public Administration and Constitutional Affairs Committee then was Sir Bernard Jenkin—were consistently saying unanimously that the current relationships don't work, that there are major constitutional problems that need to be addressed. So, this is not something that is of partisan nature. The question is how you actually resolve those, and that is of course where differing views come in, and, again, I think it's why the work of the commission is so important.

If we take seriously our democracy in this country, if we take seriously the threats to it, the challenge to it, the challenges of participation or non-participation or how people perceive the political governance that we have within this country, if we fail to address that, we are really letting down future generations of people within Wales and within the United Kingdom. The reason why we have a specific Welsh commission is not in some form of nationalistic or isolationist process, but because it's important we explore ourselves our own role within that, and recognise where Wales fits within that and what those particular options are, in what is a very changing environment, particularly post Brexit.

You raise a number of issues with regard to inter-governmental relations that are really important. It's certainly true that there have been a lot of delays for a whole variety of reasons, which we are all familiar with, as to Government, particularly in Westminster, being able to get on with its job, and I don't think we've actually overcome all of those yet. But there are inter-governmental, inter-ministerial meetings now taking place. The meeting of the First Ministers and the Prime Minister, that took place and they've agreed a number of areas of work. The body below that, the Interministerial Standing Committee, is a body that will be meeting, in fact, tomorrow, and I will be chairing that on this occasion. We'll be looking at a whole host of those, so we will be reviewing the state of relations and the various issues around Sewel, around inter-governmental relations, around the implications of things like retained EU law and so on. I think that notification has obviously gone to you, as Chair of your committee, to inform you that that is taking place.

The point you made that was very important was that it's about exploring with the people of Wales, and you're absolutely right. The quality and the strength of the work the independent commission is doing will be dependent, to some extent, on the extent to which it is able to do that engagement. I was quite encouraged by the innovative ways and the different assemblies and groups and so on that are being set up to achieve that. We know it is not easy. But it is important for me that it does happen.

How will the UK Government react? Well, I suppose it depends which UK Government we're talking about. With the current UK Government, relations are difficult in the sense that the arrangements with regard to good processes for legislation are still not in place. Too much legislation is coming forward where there is no engagement. The Strikes (Minimum Service Levels) Bill is a classic example: massive implications for us and very little engagement. The retained EU law Bill—a significant impact on us, on thousands of pieces of legislation, standards, environmental issues, and food standard issues and many other areas as well—is one where we were promised the world in terms of engagement, and the engagement was minimal. We still do not have any clear indications as to the scale. There is work that is going on between officials, so it is getting better. But all the issues we raised with regard to the sunset clause, with regard to concurrent powers, and so on, I raised a year ago, and they've still not been addressed. I will be pressing on those particular issues. 

How will the UK Government react? Well, I think a Government that takes seriously the governance of the UK and the hegemony within the UK has to take all of these seriously, and I hope that will be the case. It is, obviously, a difficult environment, but we will carry on working as co-operatively as we can, setting out the views we have from the Welsh Government in terms of the direction of the reform, what good parliamentary processes are, how democracy should work better, and we will give very serious consideration, as I know your committee will, once the independent commission's report has been published.

Photo of Elin Jones Elin Jones Plaid Cymru 4:45, 31 January 2023

We're almost out of time for this statement. I have quite a few Members who are keen to ask questions, so if we can keep questions and answers as succinct as possible, then I'll get through as many Members as possible. 

Photo of James Evans James Evans Conservative

Diolch, Llywydd. I'd like to thank the Minister for his statement from the commission, or as I like to call it the independent commission for independence sympathisers, judging by who the commissioners are. I've never read, I don't think, such a biased document against the UK Government and against the union of the United Kingdom. I think, Minister, that we all agree and recognise that there do need to be some constitutional changes across the United Kingdom. We've looked at that in the legislation committee, and it needs to be looked at. But as my colleague Darren Millar said, this needs to be done with a UK-wide approach, with every devolved Government and every devolved Parliament feeding into that process, because doing it in isolation will go nowhere. So, I want to know what conversations you've had with other Governments across the United Kingdom about having an actual commission that looks at everything in the round, to bring it together so that we can have meaningful change, and not a commission here that just keeps people in Plaid Cymru happy pushing an independence narrative, which, I'm afraid to burst their bubble, is going nowhere. 

Photo of Mick Antoniw Mick Antoniw Labour 4:47, 31 January 2023

I thank you for the comments and the spirit in which they were made. You say it's one of the most biased documents so far, but it is an interim report. I wasn't really too sure that there was that much in it that you could read as being that biased, but I suppose when you say that it's the most biased document against the UK Government, I suppose what you can say is that it's probably quite an accurate reflection of current popular opinion of the UK Government. But that's my hyperbolic comment out of the way. The commission is engaging, and I hope you will. I know that Darren Millar has engaged, and obviously senior UK Government Ministers have engaged. So, it is taken seriously. I think that is where the input is coming in from the UK Government. If senior UK Government Ministers are participating with it and giving their evidence and that's being properly considered as part of the evidence base and the engagement process, then I don't think it gives a sense that there is really much of a basis to the criticisms you're making. 

More broadly, we have been arguing in this Chamber ever since I have been here, which is now 12 years or so, but I know it went on long before that, for a constitutional convention. I know, on a cross-party basis, the Legislation, Justice and Constitution Committee has been arguing and saying there should be a constitutional convention. The UK Government has consistently refused all along the way to go down that road to have a constitutional convention. I think, at some stage, it might be something that has to happen. And you are absolutely right, reform needs to take place with all the parties that are involved. But I don't think you can criticise this commission for the work it's doing and the mandate it has, because it is a mandate that we have set specifically for Wales but with the complete freedom for that commission to actually choose to engage with who it chooses. From what I can see, it has done that on a complete cross-party basis without bias. 

Photo of Peredur Owen Griffiths Peredur Owen Griffiths Plaid Cymru 4:49, 31 January 2023

I welcome the interim report and echo some, not all, of the comments that we've heard in this Chamber this afternoon. I'd like to concentrate my contribution on a small aspect of what you've said this afternoon, Minister.

Can we ban the use of the words 'progressive' and 'radical' when referring to the Gordon Brown proposals? They are anything but radical or progressive. Giving us control of youth justice and the probation service on their own is simply not good enough. It will not alter what Dr Rob Jones and Professor Richard Wyn Jones of the Wales Governance Centre have termed ‘the jagged edge’. Only full devolution of the criminal justice system will allow us to make the substantial changes that are desperately needed.

This retrograde position from Brown and Labour is a far cry from the stated ambition of the co-operation agreement for the full devolution of justice and policing in Wales. You may remember this not only follows the recommendations of the Welsh Government-established Thomas commission, but also featured in the Labour Party’s manifestos of 2017 and 2019 in the general elections. What has changed? Does Gordon Brown take Wales seriously, or are we just an afterthought?

Photo of Mick Antoniw Mick Antoniw Labour 4:50, 31 January 2023

Thank you for your comments, Peredur. I actually think the Gordon Brown report is progressive. It's progressive because it talks about additional powers here; it talks about providing a constitutional framework to protect devolution and to protect the Sewel process; it talks about an unlimited subsidiarity as a fundamental principle—that power should be as close to the people as possible and it is only for the extent of what the interdependencies are that we have to have democratic governance; and the fact that there are no closed doors. This seems to me to be pretty progressive, and it seems to me pretty radical. If you adopt what I would sort of call the ‘shopping-list approach’ to devolution, where you have a whole list of things and you tick them and so on, well, maybe there are those who would not be happy with that approach. I suppose what I would say is, having been involved in the process of trying to organise and support decentralisation of power and devolution since the early 1970s, I see what is happening as something that is of significant change if it moves us forward. Maybe it doesn’t move us forward as quickly as some would like, maybe it doesn’t even move as quickly as I would like, but I think the proposals within it are pretty fundamental, and if they were implemented, I think it would result in significant change in terms of the devolution settlement, and greater devolution stability and coherence.

Photo of Mike Hedges Mike Hedges Labour 4:52, 31 January 2023

We have to move away from piecemeal devolution, with Plaid Cymru believing we can salami-slice to independence, the Conservatives that we can stop it going any further, and many looking to move devolution backwards. An example is policing: devolved to Scotland, Northern Ireland, Manchester and London, but not to Wales. We have directly elected mayors in England; in fact, Bristol has a directly elected mayor, and so does the West of England, including Bristol. Whilst where power and responsibility lie in the USA and Germany is clear—it being the same in each state or Länder—in Britain, it's complicated. I was going to use the word 'chaotic', and I think I probably prefer that word. Asymmetric devolution does not work; just look at what's happened in Spain, the only other country that's gone ahead with asymmetric devolution—it's got exactly the same problems as we have. Does the Minister agree there is a need to create a coherent model for the whole of the UK, as has been created in the USA and Germany, and that we need to do it urgently? We just cannot carry on like this.

Photo of Mick Antoniw Mick Antoniw Labour 4:53, 31 January 2023

Thank you, Mike. I certainly agree with that last point that we can’t carry on like this. That’s precisely why I think we’ve been going down the road that we have, precisely why we have the commission. I think one of the most important things—whether you call it devolution, decentralisation of powers, subsidiarity or whatever—is the principles on which it’s based, what is the basis, what is the change you want to make and why do you want to make those changes. If it's about the empowerment of people and communities and better governance, then it’s a question of what changes will actually achieve that.

I don’t disagree with you in respect of justice and policing, but what I do know is that if there is not a labour Government in the next general election, we will not get the changes that we would want. We will not get any changes and we might even see a reversal of the current situation, which is why, I think, within the context, some of the proposals that are being put forward are really important constitutionally. They’re very important for the future of Wales, but they also are a framework within which a broader constitutional debate, which has to involve England and Scotland and Northern Ireland also, needs to take place. I think at some stage in the future, there will be a constitutional convention, because I think it’s the only way you can cohesively put all the different traits together. If that constitutional convention ever does take place, what we can say is that we’ve done our bit within Wales to ensure that we’ve engaged with the people of Wales, and that the input that we are making into that is a product of those conversations and discussions on behalf of the people of Wales.

Photo of Tom Giffard Tom Giffard Conservative 4:55, 31 January 2023

Minister, I've heard a number of definitive statements from you today in terms of this interim report and the commission, in terms of what it means for the people of Wales. But, actually, I think this commission has been set up and the report has been based on, unfortunately, a skewed range of opinions. We know that 55 per cent of the people that responded to the survey supported independence, but from the last St David's Day poll, just 14 per cent of the people in Wales supported it. It's a very small number, but it's actually less than the number of people who vote for Plaid Cymru, so if Plaid can't even convince their own voters to support independence, how on earth they'll convince the rest of Wales, I'll never understand.

But, nevertheless, what this consultation exercise has shown is that it failed to properly engage with communities right across Wales. You called it a genuinely national conversation, but, in fact, it's actually a projection of Wales and the Wales that this commission wished existed, rather than the Wales that actually does exist today. It skews the entire consultation exercise. You said it set out the variety of opinions. Well, we know that the same number of people that want independence in Wales, according to polls, also want to abolish this place entirely, which is not something given consideration to at all by this commission. So, do you agree with me, Minister, that if this consultation cannot be done reliably, it should not be done at all?

Photo of Mick Antoniw Mick Antoniw Labour 4:56, 31 January 2023

Can I say, firstly, that I think your representation of the interim report and the work up to that stage is, indeed, a misrepresentation? Because what they have done is put forward a whole series of evidence sessions. Again, you're right in terms of the online consultation, and, to be honest, that's the same with just about every online consultation that takes place, that you have a large number of people with a predetermined position, and they've been absolutely honest about that. They said that straight upfront, but they've also said that that isn't the basis of the consultation, that the whole purpose of producing the interim report was to provide a framework on core options—and you've seen the three options that they've identified—on which they're now going through a much more detailed and grass-roots engagement process. So, I think it is unfair to criticise engagement when that engagement is actually taking place on the basis of the interim report.

I understand the position that you have, and I understand, within this Chamber, that when positions are put forward, sometimes they're positions that are overexaggerated for party political reasons and so on. What I do hope is that you do, deep down, recognise that there is now a very serious engagement process that is under way with the commission, that the Welsh Government is not directing or controlling that, that it is a genuine independent commission, and you are free to ensure that your views on all the specific points they are looking at are answered and you give evidence. I hope you will follow the exemplary example of Darren Millar, the former Secretary of State for Wales Simon Hart, and UK Government Ministers who have chosen to give that evidence, as, indeed, I understand, has Gordon Brown as well. I think your views are just as valid, and I now look forward to perhaps reading the evidence that you yourself submit in terms of your views in terms of the various points that are being made in the consultation that is under way.

Photo of Jenny Rathbone Jenny Rathbone Labour 4:58, 31 January 2023

Darren Millar and Tom Giffard make some important points about the level of engagement with the whole population. I think it's really important that we have that conversation, but that we ensure that all parts of the population are involved where possible.

There are three issues that the interim report highlights that are really not working at the moment: policing and justice, rail infrastructure, and welfare. I think the Tories need to pay caution to the fact that there are so many people in our country who are in full-time work and are struggling to eat and heat. That tells you there must be something wrong with our welfare system. We've already rehearsed the problems with the rail infrastructure in First Minister's questions, so I want to raise the issue of policing and justice.

There is an absolute crisis of confidence in the police force across the United Kingdom. Our ability to ensure that the culture within the police is appropriate and not a place where people who should never be policemen can hide is—. We don't have those powers, and that is really worrying. But what's more than that, the way in which we waste money within the criminal justice system, across the United Kingdom, is something that is extremely difficult for us to resolve unless we have the powers. We have an excellent relationship at the moment with people in the Ministry of Justice, who are all working together on this women's justice blueprint, but that can change without anything that the Welsh Government can do about it. If the UK Government suddenly decide that they want to go off on a different path, then all of the good work can just go down the can.

So, I want to understand what the relationship is between the Government and the remit of this commission, because these are serious issues and they need properly investigating. There's really almost nothing in the interim report on the important issue of policing and justice, indeed, nor on the welfare system and how we could run it better, if we had control over its administration, just like they have in the other countries—in Scotland and Northern Ireland. They're able to do it, so we should be able to show that we're able to spend money better and have a more just outcome from it. So, I wonder whether you can just highlight that for us.

Photo of Mick Antoniw Mick Antoniw Labour 5:01, 31 January 2023

Thank you. The terms of reference of the commission were well set out and we've been debating them on many occasions within this Chamber. I met recently with the commission, as the First Minister has, and I think they've explained, now, the process of engagement that they want to do and some of the directions of the issues they want to look at. They may want to look at these issues—financial issues, constitutional issues, governance issues and so on. 

It really is for them to determine the areas that they think are, actually, important, where the evidence they conclude and the representations they get within the framework, where that leads them. I'd be very surprised if all of those issues are not ones that are being looked at, and looked at in some detail and being engaged with. With the sort of engagement process they're having, it's inevitable that that will be the case. I think it would be a big mistake to, actually, direct and say, 'This is what you've got to do, this is how you've got to do it', et cetera. I think you have to have confidence from the wide range of people from across political parties, the different persuasions and skills of the various commissioners and experts who are there that that is what they will do.

The points you raise in terms of welfare, policing, the cost-of-living crisis, justice and so on are absolutely right. I attended, with the Minister for Social Justice, Eastwood Park women's prison in Bristol. The governor there told us that every single woman there in that prison was a victim, one way or another, of abuse, of poverty, of exploitation. When we attended, just the other day, Berwyn prison up in north Wales, 10 per cent of the prisoners are former care leavers. We met with the care leavers, many of whom have themselves become mentors to care leavers who are coming into the prison system. In discussions that we've had with Cardiff University over the recent research and publications that they've had, the suggestion is that Wales has the highest level of imprisonment of its citizens in the whole of Europe, and something like two thirds or more of those who are on probation or in prison come from black or ethnic minority backgrounds. All of those things tell you that there are really serious issues in terms of our justice system. Looking at those, and how it can be delivered better, of course, is already part of our policy.

Now, our views on that have been fed into the commission in evidence sessions, as I'm sure have the views of every other individual who's interested in the commission. That's why I keep saying, whether you agree or don't agree with it—whether you think it should be going ahead or not—it is there and it is really important that you engage with it, and that we have the most constructive engagement and consideration of all of those issues that are so important to the future of Wales and the people of Wales. It's a way of actually exploring the thinking and the views of the people of Wales.

The point, Jenny, that you made and that you've made as well is absolutely right: the quality, to some extent, is the scale and the quality of the evidence, but also the quality of the engagement that takes place. That's why it is important, not whether we're going to agree with or disagree with the outcome, and not whether we think our predetermined views are always going to be the views we're going to have and we're not going to consider anything else so inflexibly, et cetera—I'm sure that that isn't the case. And that's why I think what is happening is timely, but I think it is also fundamentally important. Aneurin Bevan said that the problem, sometimes, is that people know the price of everything but the value of nothing, and I think our democracy has a very high value, and that's the direction we're taking. Thank you. 

Photo of Rhys ab Owen Rhys ab Owen Plaid Cymru 5:05, 31 January 2023

It's clear, Cwnsler Cyffredinol, from the interim report that the current devolution settlement is both dysfunctional and wholly inadequate for the needs of the people of Wales. What is also clear is that the commission will face an uphill struggle to persuade a Westminster Government of any colour that fundamental change is needed. I read last week your interview with the Law Society Gazette and was shocked that only five of the 78 recommendations of the independent commission on justice in Wales report have been accepted by Westminster. How do you surmount the very real challenge that Wales is an afterthought at best at Whitehall at all times? How can those proud defenders of the status quo there on the Conservative benches and with you, with Labour, in Westminster—how can they defend the status quo, that this union is working for the people of Wales, when we are one of the poorest parts of the United Kingdom, as mentioned by Jenny Rathbone? Our poverty is not inevitable. We have the resources, we have the skills. What we need is the chwarae teg, Cwnsler Cyffredinol. The late Tom Nairn said that the British state,

'has entered into a historical cul-de-sac from which no exit is visible'. 

Well, this commission has the opportunity to guide us toward an exit. However, I think it is very fitting that one of the co-chairs of this commission is the former Archbishop of Canterbury, because you will need all the support in the world and beyond to persuade any Westminster Government that change really is needed. Diolch yn fawr.

Photo of Mick Antoniw Mick Antoniw Labour 5:06, 31 January 2023

Well, thank you for that last comment. If water can be turned into wine, then I'm pretty sure that commissions can be turned into constitutional reform. Listen, the point that you make is a valid one, isn't it? There is a recognition—and I hope there is common ground that there's a recognition that our constitutional structures, the status quo, are not acceptable, not workable, and there needs to be change. That's why everyone needs to make an input on what they think that change should be. 

But, when has devolution been easy? When has constitutional reform, when has change, been easy? We only have to look through history to see the steps that have been taken and what has happened. In England, there had to be a civil war to get some fundamental constitutional reform; well, we don't need to go that far, but it's a recognition of the fact that there's a need, that things aren't working and we have to make them better. I very much value the comments and the input that you've made to this, but this is an important debate and it's an ongoing debate.

Photo of Rhianon Passmore Rhianon Passmore Labour

Thank you very much, and I also welcome the statement today. Earlier this month, I spoke to my Labour Party membership in Islwyn regarding the work of the commission and the interim report, and my sense from that meeting and wider discussions is that there's still much to be done in totality to communicate the work of the independent commission on the constitutional future of Wales. Because people are understandably trying to get by in the cost-of-living crisis and the pandemic, there is not much space for many in terms of understanding the ins and outs of a theoretical constitutional reform. However, this does affect all of us across Wales, and never a bigger impact on the citizens of Wales with its final conclusion—we cannot underestimate the importance of that. 

I noted that there exists confusion between the work of the independent commission and the well-publicised Welsh Government discussion of Senedd reform, and now the Gordon Brown reportage. I note that there have been 2,000 responses, which is a healthy start, but Wales having a population of three million demands the question: how do we ensure that this is a meaningful local and national conversation? I know that the Llywydd is looking at me.

You stated that the commission has indicated that their intention is, in the next phase of their work, to extend that conversation to the people of Wales, and that's to be welcomed, but that has to be a real and important conversation that stretches across Wales and across our valleys. So, Counsel General, how will this actually manifest itself in reality, as there is a need for that greater dialogue, for the engagement that we all want and that Wales deserves?

Photo of Mick Antoniw Mick Antoniw Labour 5:09, 31 January 2023

Thank you, Rhianon, for those comments. The commission has set out a programme of much deeper engagement, much deeper consultation, and the establishment of groups within communities with which it will engage, and I know that that was one of the points that I raised and others raised when we met with them—'How are you going to go about it?' There was clearly a lot of work and a lot of thought about it. And we all know from our own engagement with our communities that it's not an easy process. People who are disengaged from civic society in that way are difficult to engage with—they have dropped out for a particular reason—but I'm confident that they are clearly addressing it, and that they will be doing some very, very different things and ways of doing it. 

In terms of our discussions, this is a challenge for all of us, isn't it? How do we turn these debates, which are about how people can influence matters, influence the decisions that affect their lives, into more than technical discussions? Well, look this happened—we only have to look through history. It has happened before. The Chartists—what was that? That was about constitutional reform; it was about almost nothing else other than constitutional reform. The establishment of democracy is about constitutional reform. Keir Hardie, on the Labour Representation Committee before the establishment of the Labour Party, talked about home rule, constitutional things, because they recognised the importance in terms of identifying where power was and how you could exercise and democratise it. 

So, that is the core, I think, of the debate that we're having and that we must have and I think will be underpinning many of the future discussions that we're going to have on this very, very important issue. I'm glad that we've been able to have this hour. I'm grateful for the generosity of the Llywydd for allowing this debate to take place in this way, but this is really only the start of that work, I think.

Photo of Elin Jones Elin Jones Plaid Cymru 5:11, 31 January 2023

I'm generous enough even to call Alun Davies. [Laughter.] 

Photo of Alun Davies Alun Davies Labour

There we are. I'm very grateful to you, Presiding Officer, and so is the Chamber. [Laughter.] Home rule, of course, was one of the founding principles of the modern Labour Party, and those people who haven't read 'In Place of Fear' will chart Aneurin Bevan's search for democracy and search for power from the miners' lodge in Pochin colliery, through Tredegar town council and Monmouthshire County Council to the Palace of Westminster. And power is what socialism is about, and the use of power and the democratic control of power, which is what Waldorf and Statler don't actually like about this debate, because this is about the democratisation of political power. What I want to see from this commission, Counsel General, is the establishment of a recognition that parliamentary democracy is equal here as to that which exists in Westminster. 

I've read through the statutes of Westminster in 1931, and that might well provide a building block for the shared sovereignty of parliamentary democracy throughout these islands, because until we lose the concept of parliamentary democracy residing in Westminster and Westminster alone, we will never be able to protect the powers that the people of Wales want to be held here. So, we need to be able to do that. 

And the other point that I will just make, if the Presiding Officer will allow me, is that about the democratisation of money. All too often, decisions that are taken by the UK Treasury are taken to benefit London and the south-east of England, and one place where Liz Truss was absolutely right was that Treasury orthodoxy has failed the United Kingdom. Treasury orthodoxy has failed Wales. Treasury orthodoxy has impoverished the United Kingdom, and what I would like to see is a model based, perhaps, even on the Australian model, where you have the independent allocation of funds and redistribution of wealth across these islands to ensure that all parts of these islands benefit from the wealth created in these islands. 

Photo of Mick Antoniw Mick Antoniw Labour 5:14, 31 January 2023

Thank you for that, and again, I'm grateful to the Llywydd for her generosity, or shall I say extravagance? [Laughter.] The point you make on sovereignty is an important one, and I have been saying at every opportunity I get that the concept of Westminster sovereignty disappeared some time ago. It may not be completely recognised and maybe our constitutional structure may not have caught up with it, but where you have four Parliaments that elect and have primary legislative powers, with mandates from the people by whom they were elected, then there cannot be anything other than shared sovereignty. And it is the failure of our constitutional system to adjust to that that I think has resulted in the dysfunctions that we are continually facing every day, and one of the reasons why there has to be reform. The democratisation of finance, the accountability of the Treasury, I actually agree are absolutely fundamental. The HS2 debate is a classic example of that. It should not be capable of happening in an area where there is clear delineation of the conventions and the powers and the responsibilities. So, beyond that, I think I agreed with most of the other points you made as well.