Category Archives: Publications and projects

Brexit, the welfare state and redistribution

My final academic publication is a contribution to a book coming out in June 2019 edited by Scott Greer and Heather Elliott, at the University of Michigan School of Public Health.  Federalism and Social Policy: Patterns of Redistribution in 11 Democracies is an attempt to explore how welfare states actually work in federal and decentralised states, what sorts of redistribution they do and how effectively, and whether and how much there are different welfare regimes at sub-state or regional level.  This comes from the chapter about the UK, which looks at how devolution is financed, and the working of policies relating to under-19 education, health services and pensions.  It should be a significant contribution to the academic literatures about both comparative federalism and comparative welfare states.  Details of the book can be found here

What appears below is an extract from the conclusion, about the impact of Brexit on the welfare state.  There has been much speculation about the sort of country that a post-Brexit UK may be, and some discussion, mostly short-term and very pragmatic, about the impact of Brexit on social policy, such as labour market problems affecting the NHS or social care.  It seems to me, though, that the divisions of the Brexit vote and its likely economic effects will have a grave effect on the future of a redistributive welfare state – generally, not just in territorial terms (though it has territorial dimensions too).  Due to space constraints and the fact this was a comparative project, not particularly concerned with Brexit or the UK, it’s rather brief and under-developed, but nonetheless is worth wider and earlier circulation than the published book permits.  This section was drafted early in 2018, but nothing that has happened since changes what I wrote then – indeed, the only change is that I would now probably put it more forcefully. 

Far more important are the effects of the UK’s vote to leave the European Union in June 2016, with departure to take effect in March 2019.  The significance of the Brexit vote can hardly be understated and is likely to reshape the UK in the years to come.  Its significance has three dimensions.

First, there is the deep social cleavage that the vote to leave the EU revealed, and which has deepened since the vote.  At least in England and Wales (which both voted by majorities to leave), ‘Leave’ voters were generally older (age 49 or older), less well-off and from less well-off parts of the UK, particularly smaller towns that were badly affected by de-industrialisation.  ‘Remain’ voters were younger, better off and lived mainly in larger cities.  (60 per cent of voters in London voted Remain; only slightly smaller a percentage in the West Midlands voted Leave.)   To a substantial degree, this was a vote by the losers from globalisation against the relative winners.  Since those ‘winners’ are also the most economically productive members of British society, who generate the income that is redistributed to those ‘losers’ in the form of public services and welfare benefits for which their taxes cannot pay, there has to be a question in the longer term of why they should continue to do so.  This goes to the heart of the social basis for redistribution through public services and taxation.  Add to this the difficulties younger people face, with very high housing costs, large levels of graduate debt, and limited occupational opportunities compared to their parents’ or grandparents’ generations in an economy that is growing more slowly than in the past.  If, as many expect, leaving the EU adversely affects the British economy for some time to come, these difficulties will be further compounded.  Younger people, faced with increasing difficulties, are likely to be more and more unwilling to see their stretched incomes taxed to pay for those who have made them worse not better off.

Second, there are the direct impacts of Brexit on public services.  While the form Brexit will take remains quite unclear (even in February 2018), it is clear these will be substantial.  In particular, UK economic growth is likely to be weaker, reducing tax revenues for spending on services and increasing costs in some areas.  Social care and the NHS are heavily dependent on staff from overseas and particularly within the EU.  Limiting migration is a key part of the Brexit proposal, and so it may be harder for the UK to recruit from other EU countries, and people from abroad may be more reluctant to work in the UK even if they can, as it has become more hostile to foreigners.  In such circumstances, public services will become more and more stretched.

Third, there is the impact on the UK’s territorial politics.  While the UK as a whole voted to leave the EU, neither Scotland nor Northern Ireland did.  (The Remain vote was 62 per cent in Scotland and 56 per cent in Northern Ireland.)  So far, attempts by the SNP to exploit the difference in the vote to bolster the case for independence or trigger another independence referendum have come to nothing, but that may change.  Such a difference certainly creates the basis for pushing for independence if Brexit works out badly.  In Northern Ireland, the concern of the Republic of Ireland’s government to protect the Good Friday Agreement and avoid a ‘hard border’ have been supported by other EU member states and both UK and the EU-27 have agreed they should form part of the parameters for Brexit, but how that will be translated into practice remains unclear.  Since July 2017, the reliance of the UK’s minority Conservative government on support in the UK Parliament from the only Northern Ireland party committed to leaving the EU (the hardline unionist Democratic Unionist Party) makes this more acute.

In the past twenty years, the UK has embarked on extensive devolution, with profound effects on public services.  It now faces leaving the EU with consequences that cannot be calculated or even roughly estimated, for large areas of public services and for the state as a whole.  Its tolerance of anomalies, public policies that are frequently altered against a backdrop that can only be explained historically, and large territorial variations has led to a backlash from voters, whose vote to leave the EU reflected much wider discontents.

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Why solicitors should worry about the Draft Wales Bill

This was first published as an article in the Law Society’s Gazette earlier this week, and can be found on its website here

Solicitors could be forgiven for being baffled about Welsh devolution, since it keeps changing. The latest episode started in October when the secretary of state for Wales published a new draft Wales Bill.

The draft bill proposed to put Welsh devolution on a ‘clear and lasting’ basis by delivering a ‘reserved powers’ approach to the national assembly’s law-making powers. The bill also proposed to devolve a limited range of further functions relating to matters such as planning for energy schemes or ports and harbours, and to give the assembly power to determine its own size, electoral arrangements and name. But the ‘reserved powers’ approach is at its heart. Seldom has what looks like a technical legal issue turned out to be more vexed or politically charged.

Pre-legislative scrutiny of the draft bill is coming to an end. The Welsh government and national assembly have considered it, and the Commons Welsh affairs committee is finalising its report. But the most detailed, non-partisan scrutiny comes from a major report by a group of lawyers, academics and former officials convened by the constitution unit at University College London and the Wales governance centre at Cardiff University. The report – Challenge And Opportunity: The Draft Wales Bill 2015 – sets out in detail why the draft bill needs to be fundamentally reworked if it is to live up to its promise.

‘Reserved powers’ means that the national assembly would be free to legislate for all matters save those expressly reserved to Westminster. At present, the assembly can only legislate 20 defined ‘subject areas’, including health, education and the environment. Using these powers, it has introduced ‘presumed consent’ for organ donation, looked hard at banning the smacking of children, re-established a body to set wages for farm workers, and is abolishing the distinction between residential leases and licences.

Its powers stretch a long way beyond regulating the public sector, but how far remains legally uncertain, thanks partly to a Supreme Court decision last February. The reserved powers approach is already used in Scotland and Northern Ireland (with modifications). Applying it in Wales would aid legal clarity and bring Wales more clearly into line with the other devolved parts of the UK (making it more straightforward for public lawyers). It would offer significant benefits, if done right. Done wrong, it would make matters worse, not better.

The bill has a number of flaws, but the initial one is simple. It starts by trying to graft the ‘reserved powers’ model on to the existing division of functions between Cardiff Bay and Westminster, without making any significant consequential changes. This has meant limiting the assembly’s powers, in some cases beyond what they are at present. As a result, the assembly could only legislate for matters affecting ‘private law’ – land law, contract and so on – when ‘necessary’ to do so, to give effect to legislation relating to ‘devolved functions’.

The increasing differences in law between England and Wales, which have to be reconciled within the shared legal jurisdiction of England and Wales, would be left to the courts to work out which body of law applies, case by case and ad hoc. All this is to preserve Westminster control of the legal system in general, and the shared legal jurisdiction of England and Wales in particular.

The results would be highly unattractive. The draft bill would result in a hamstrung, ineffective Assembly, which is in no one’s interests. When the assembly cannot act, Westminster would not be able to act either, so Wales would just end up badly governed. Critics may say that it will be a field day for lawyers, but not for many. Litigators might get some work, but others will be left with a complicated task of working out what the substantive rules are and which apply in what circumstances. Ordinary members of the public and small businesses will find it difficult to get legal certainty whenever matters of Welsh devolution arise.

Worse, a tightly constrained national assembly with a complex web of limits on its powers will struggle to make practical law that deals with problems in the real world. The tests the assembly has to pass will be adjudicated by the courts, so judges will have no option but to take an active and recurrent role in the management of Welsh devolution. Effectively, the Supreme Court (which does not have a ‘Welsh’ member) will become the second chamber of the national assembly.

The alternative to this is sketched out in our report. First, ‘necessity tests’ and constraints on devolved legislation affecting private and criminal law must go. Any such test – even a less demanding one, relating to the ‘appropriateness’ or ‘reasonableness’ of legislation – will make the courts key players in Welsh devolution, rather than elected politicians. The assembly needs to be able to use all the mechanisms the law offers to make its legislation effective, including those of reshaping private law and revising the criminal law. On the criminal side, some key offences might be reserved to ensure similarity of the criminal law, but even that creates problems. Reserving the law of homicide is one thing, but assault is another matter, if the assembly is to have the power to decide about banning smacking, for example.

Second, there needs to be a much clearer way to deal with conflicts of law issues – the fact that the law will be different between England and Wales. This could be done by a clear statutory ‘rules-based’ approach, setting down which set of laws applies in which circumstances. Alternatively, it could be done by establishing two distinct legal jurisdictions (of England and of Wales). ‘Distinct’ need not mean ‘separate’.

The same judges would sit, and lawyers practise, in both countries, but would do so in different capacities and would need to deal with different (though largely similar) bodies of law in doing so. Solicitors would be admitted ‘in England and in Wales’, rather than ‘in England and Wales’. Established rules for the conflict of laws would be used to determine what law applied in what circumstances, where there was a conflict. Again, that draws on experiences from Scotland and Northern Ireland.

What Wales – and the UK as a whole – needs is what the secretary of state says he wants: a robust, clear and lasting devolution settlement for Wales.  The draft Wales bill is emphatically not it. If enacted in anything like its current form, it would be a horrendous, unworkable mess that would need to be replaced within a few years – perhaps the shortest-lived of the sequence of interim arrangements Wales has had since 1999.

None of that is good news for anyone, least of all legal practitioners.  The way forward is going to involve more change, not less, and needs to be carefully thought through. But it offers the hope of a stable and lasting settlement which will benefit all the UK, not just Wales.

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Not meeting the challenge: The failings of the Draft Wales bill

This blog post first appeared on the LSE’s British Politics and Policy blog, here. It also appears on the Constitution Unit’s blog, Constitution-unit.com, here, on the Edinburgh Centre for Constitutional Change’s blog, here and on ClickonWales, the blog of the Institute for Welsh Affairs, here.

I have forborne from commenting in any detail on the Draft Wales Bill before now, other than in giving evidence to the Commons Welsh Affairs Committee, because of my involvement in the joint Constitution Unit/Wales Governance Centre project. The report was published on Monday 1 February, and can be downloaded here as a PDF.

When the Draft Wales Bill was published in October 2015, it was described by Stephen Crabb, the Secretary of State for Wales as delivering on the UK Government’s commitment ‘to create a stronger, clearer and fairer devolution settlement for Wales’. This is badly needed; the history of Welsh devolution since 1998 has been one of short-term solutions that have needed to be revised or replaced within a few years. Hopes were high that the present round of constitutional debate – triggered by the appointment of the Commission on Devolution in Wales chaired by Sir Paul Silk in 2011 – would mark a departure from that established pattern.
Sadly, a close analysis of the Draft Bill shows those hopes to have foundered. A joint project hosted by the Constitution Unit at UCL and the Wales Governance Centre at Cardiff University has been looking at the Draft Bill in detail, and publishes its report Challenge and Opportunity: The Draft Wales Bill 2015 today. Our group has been chaired by Alan Cogbill, former Director of the Wales Office in Whitehall, and had Professor Rick Rawlings from UCL as rapporteur. Other members have included Sir Paul Silk and Sir Stephen Laws (formerly First Parliamentary Counsel), academic and practising lawyers from Cardiff, as well as myself. This work follows an earlier joint CU/WGC report published in September 2015, entitled Delivering A Reserved Powers Model of Devolution for Wales (available here as a PDF, and summarised HERE.) Our examination of the Draft Bill has found it to be flawed in many respects.
The first flaw is a conceptual one. The draft bill’s key commitment is to deliver a ‘reserved powers’ approach to Welsh devolution, like that used for Scotland (and with modifications for Northern Ireland). At the same time, it tries to avoid making wider changes to how Welsh devolution works while delivering that. The assumption that the ‘reserved powers’ approach can simply be grafted onto the existing division of law-making powers between Westminster and Cardiff Bay is wrong. The ‘reserved powers’ model necessitates a sequence of other changes, which were already in place for Scotland in 1998, and which need to be considered for Wales.
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Launch of report on the Draft Wales Bill

With a number of colleagues from the Constitution Unit and the Wales Governance Centre, I have been working for some time on a major examination of the Draft Wales Bill published in October. This follows our earlier report written over the summer on issues of a ‘reserved powers’ model more generally. We’ve now finished our work and are shortly going to launch our new report, which is entitled Challenge and Opportunity: The Draft Wales Bill 2015. There will be two events – one in Cardiff at lunchtime on Monday 1 February, and one in Westminster late in the afternoon of Tuesday 2 February. Both events are free to attend but registration is necessary.

The Cardiff event starts at 12.30 pm in the Main Hall of the Pierhead. Speakers will be Professor Rick Rawlings from UCL, who drafted the report, Alan Cogbill who chaired the group, and Emyr Lewis of Blake Morgan, another member of the group. Fuller details and registration (through Eventbrite) are here.

The London event will be at 5 pm and takes place in the Wilson Room in Portcullis House, on the Parliamentary Estate Committee Room 6 in the Palace of Westminster. Speakers will include Rick Rawlings, Richard Wyn Jones and myself.  Please allow plenty of time to get through Parliamentary security. Email wgc@cardiff.ac.uk to register your attendance.

UPDATE, 2 February: The report Challenge and Opportunity: The Draft Wales Bill 2015 can now be downloaded from here as a PDF.

 

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Making ‘reserved powers’ work for Wales

The debate about a ‘reserved powers’ model for the National Assembly has to be one of the most obscure legal issues to enter public debate.  The basic idea is straightforward: that the powers of the National Assembly should be defined by setting out what it cannot do, rather than by defining ‘subject areas’ where it does have power to pass laws.  The idea is scarcely novel – it was mooted by the Richard Commission in 2004, and repeated by the Silk Commission in 2014 – but it has acquired political legs following the St David’s Day process with all the parties agreeing to adopt it.

A ‘reserved powers’ approach would offer a number of significant advantages.  It would mean that Welsh devolution works in a similar way to that in Scotland and Northern Ireland – important both symbolically and as a way of making it clearer to the public how a devolved UK works.  It also offers a way to resolve the puzzle created by the UK Supreme Court’s jurisprudence about devolution, and particularly its judgment in the reference about the NHS Recovery Of Medical Costs for Asbestos Diseases (Wales) Bill, [2015] UKSC 3, by enabling the Assembly to legislate for all matters save expressly those reserved to Westminster.  In broad terms, the Scotland Act 1998 provides a valuable model – not necessarily so much in the list of reserved matters in Schedule 5 as in the provisions of the Act for identifying the scope of those reservations and interpreting them in the courts.   At present, the list of proposed reserved matters suggests a list of matters Whitehall departments do not wish to see devolved, unsupported by any wider rationale or principle.  That is not the right way to proceed when drafting a constitution.  It needs some clearer and stronger basis, rooted in a conception of what the UK needs to do at the centre (and why), and what is best done by devolved governments.

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A ‘reserved powers’ model of devolution for Wales: what should be ‘reserved’?

This post also appears on ClickonWales, the Institute for Welsh Affairs’ blog, here.

Since at least 2004, when the Richard Commission proposed one, there has been significant support in Wales for adoption of a ‘reserved powers’ model – as Scotland and (in a different way) Northern Ireland have.  The call was strongly endorsed by the Silk Commission in its Part 2 report and became UK Government policy with support from all four main parties following the St David’s Day process.  There seems to be an assumption now that a reserved powers model is essentially a technical matter and that the Scottish model can and will be taken off the shelf and applied, with appropriate modifications, to Wales.  That might not be a bad way forward – there’s a good deal to be said for the Scottish legislation, though it’s not a magical way to solve all problems.  But real devils also lurk in the detail of what ‘appropriate modifications’ might be.

What appears to be underway is a process by which Whitehall departments are consulted about what functions they want to see retained, and what they are happy to let go.  The Welsh Government is a marginal player in this process, if it is a player at all, and the Wales Office does not appear to have a strategy to go with its consultation list.  The first fruit of that trawl appeared in the Powers for a Purpose Command paper published in February at the end of the St David’s Day process, as Annex B.

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The Bingham Centre devolution review: the UK at a constitutional crossroads

This post also appears as a guest post on the Centre on Constitutional Change blog here, the LSE’s British Politics and Policy blog here, and the Institute of Welsh Affairs blog ClickonWales here.

The impact of the Scottish independence referendum has been wide-ranging. It raises a number of questions about how the UK works as a whole and its territorial constitution, as well as ones about Scotland.  But for all the importance and urgency of these issues, they have not yet been subject to any wide-ranging or sustained scrutiny.  A new report from the Bingham Centre for the Rule of Law, available here, seeks to change that and look at what issues the UK as a whole will need to address in the coming months and years.  The review commission has been chaired by Sir Jeffrey Jowell QC, and its membership is here and remit is set out here.

The Commission’s starting point was to consider the implications of the piecemeal, ad hoc approach to devolution taken so far.  Its view is that this has reached the end of its road.  The knock-on effects of the Smith Commission proposals for Scotland mean that this now creates serious constitutional difficulties beyond Scotland.  A more systematic view, considering the UK as a whole, is badly needed.

The first big recommendation to address that is a Charter of the Union, to be passed as a Westminster statute with consent from the devolved legislatures, and setting out key principles for the working of a devolved union.  These draw on what already applies – they include such principles as respect for democracy, the rule of law, autonomy of each government and comity and respect for each other in their dealings with each other.  Subsidiarity and social solidarity are also key principles for the Charter of the Union.

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