The LCO on housing has become a touchstone for the success, or otherwise, of the system set up by Part 3 of the Government of Wales Act 2006. This was a priority for the Labour-Plaid Cymru coalition, but protracted intergovernmental negotiations meant that it took six months to frame a proposal for an order, and a further year to move from that proposal to a formal draft. The compromise solution proposed there to the problem of the Assembly’s wish to have power to suspend or abolish right-to-buy for council housing was a complex and messy one – to require the consent of the Secretary of State to any use of the power. The Joint Committee on Statutory Instruments, one of Parliament’s more obscure and technical committees, considered that that fell foul of the principle of the separation of powers – as it meant that the Assembly’s legislative powers were subject to the control of a minister, not of Parliament. That order was withdrawn in March last year, and a new one – now known as the ‘Sustainable Homes’ LCO – proposed in July 2009.
Last week brought news that the draft LCO has been approved in plenary by the Assembly – but that the Conservative AMs voted against it. (There’s coverage from the BBC News website here and the Western Mail here.) Media coverage has understandably focussed on the discrepancy between Conservative support for the principle of broader legislative powers, and opposition to the tangible case of right-to-buy here. It’s not clear what will happen when the order is considered in the Commons, but if Tory MPs vote against, it will need a strong turn-out of Labour Members to make sure it is passed.
This episode illustrates vividly all the problems that the LCO system creates. The order has been complicated by lengthy debates, both in relative public and in private; progress has been achingly slow, as well as lacking in transparency. That in turn has led the Assembly Government to make concessions it would prefer not to have made (and should not have) – such as that Secretary of State’s veto. The debate has strayed regularly and repeatedly from the constitutional issue (‘should the Assembly have these powers?’) to policy ones (‘should the Assembly be able to do what it proposes with these powers?’). The solutions found to these problems have been highly complex and hard to understand, and more than dubious intellectually. The veto for the Secretary of State simply disregarded fundamental principles of constitutionality, only to be shot down by an authoritative constitutional watchdog. If the case for being rid of the present system needs making, all one need do is point this out – and that, more than two and a half years after the present Assembly Government took office, it’s still no nearer being able to get its housing legislation considered by the Assembly, let alone passed and implemented.
And this is about housing, for goodness’ sakes – it’s not about war or life and death. It’s about finding ways to make sure people have decent places to live in. If there were a more obvious policy area to be in the Assembly’s hands, I can’t think of it.
What makes this episode all the more interesting is what it reveals about the Conservatives, now that power at Westminster looms. Hitherto, the Tories have got a large part of their devolution policy right. The parties in Cardiff Bay (and Holyrood) were largely free to do their own thing, as on one hand the party was so concerned with getting votes in England, and on the other its main institutional focus was on Westminster.
This was a puzzle facing all the Britain-wide parties. The Lib Dems got over it because their federal structure guaranteed a high level of autonomy for the parties in Scotland and Wales, albeit at the price of some distance between those parties and that at Westminster. The problems were worst for Labour, and particularly Labour in Scotland, where the tendency was for Scottish Labour to cleave so closely to the London line that journalists magnified any small difference between them into a ‘crisis’ and a ‘rift’. The fact that Scottish Labour was tarred with the unpopularity of London Labour did it few favours in the 2003 election and none in 2007. Welsh Labour was able to cultivate a different style and approach, characterised by ‘clear red water’ and ‘progressive universalism’, which clearly made a difference (contrast its relative success in 2003 with Scottish Labour’s poor performance). But the difference was limited and largely symbolic, mainly for constitutional reasons – and failing to make the LCO system work suggests this will remain the case until the Assembly gets proper legislative powers.
Now the stakes are higher for the Conservatives. Clearly they feel supporting the LCO would be damaging to public perception of party unity, given hostility to it from the party at Westminster. At a guess, Nick Bourne is trying to avoid a division between Conservative AMs and MPs, knowing that the big issue is the Commons vote on a referendum as well as the UK election, and that the ‘Broughton declaration’ on a referendum on primary powers means he has probably won on the big issue. But if the Tories in the National Assembly are going to second-guess the view of Welsh Conservative MPs, they’re heading for great trouble. Labour at least commanded a plurality of support in Wales in both legislatures. The Tories don’t and won’t. They will always be one of the smaller parties in Wales, and if what they do in the Welsh arena is shaped by UK-level considerations, they will simply reinforce their status as an ‘outsider’ party (which devolution, and Bourne’s leadership, have managed to get rid of). It starts to look as though their earlier success was by luck or chance more than judgement.
Sooner or later, both Labour and Tories are going to have to think about their party organisation and structures, and how those should reflect the nature of a devolved UK. Trying to maintain apparent party unity across all the electoral arenas in which they compete is not likely to succeed – internal views aspirations are different in each arena, as are the conditions of party competition. You need to do different things to get votes in Scotland (when the nationalist challenge is strongest, and comes from the SNP) than in Wales (where Plaid is a different sort of threat to the other parties). And you need to do different things in the different arenas – Scottish Parliament elections are different to Westminster elections in Scotland, with people voting differently as well as different issues at stake. Asymmetry, and England’s dominance in size, mask this from the party leaderships and make it easier to disregard its implications. Sooner or later, though, the UK parties will have to start to adjust. My money would be on a significant loosening of the party ties, in order to maximise the likelihood of success in each arena. That would, however, run contrary to the increasing trends of centralisation of power and personalisation and presidentialisation of politics, particularly in London. If parties want to succeed in this territorially complex UK, they may have to start to reverse that trend.