Lockdown confusion is the result of wriggle room in the Welsh Government’s bad law
Suzy Davies, Welsh Conservative Senedd Member for South Wales West
The words “emergency” and “legislation” don’t work well together. Well-made law creates certainty and means less need to reach for lawyers. Making law in haste means repenting at leisure.
Just look at the bunfights over the lockdown – culminating in this week’s high profile case of the human instinct behind the dilemma of ‘Dad v SpAd’. So far we’ve had an MP driving to London to ensure his father received “essential supplies,” whilst coincidentally celebrating his birthday, and the not so infamous “picnic-gate”.
And all because of wriggle room in the rules. It’s pretty obvious that, had any of this ended up in a court of law, credible arguments could have been made on both sides.
That’s why, to move the focus to the Senedd – the Welsh Parliament – for a minute, we need to look at what’s happening here.
It’s a legislature. Never a doorstep issue but the primary purpose of the institution. No-one cares about the work you do scrutinising regulations made by Welsh Government or preparing amendments to improve Welsh Government-drafted statutes. Welsh Government policy is up to them but a great deal of it will have to be underpinned by some form of legal instrument to get it into place. It’s the Senedd’s job to make that law, not the Government’s, and this legislature remains the main check of the freedom of people against the dictatorship of the executive.
I’d like to think people might care a bit more if they understood our role. The Members of the Senedd are the ones looking out for them.
So how many of you reading this realised that the Welsh Conservatives, the official Opposition in the Senedd, did not support the latest Welsh Government Coronavirus regulations? You know, the ones about libraries and garden centres. It was neither a party political stunt nor an assault on Welsh Government’s safety-first policy position. It was an objection to bad law.
Bad law which achieved the twin objective of:
1) Using the same science to support two contradictory positions: Driving a carload of people to a garden centre to encounter any number of strangers but still not allowing you to walk to meet a friend on a deserted beach; and
2) Using the word “locally” to determine what is permissible exercise, but without any attempt to define what that word means.
I think the confusion which has followed – is “local” the same as “nearest”? If my exercise is fishing, can I drive to the river? – makes the point.
That’s one of those lawyers-rubbing-their-hands moments right there.
Considering the amount of quick-turnaround draft legislation the Welsh Government had to prepare as a result of Brexit, you’d have hoped they’d have got better at it by now.
I don’t say “emergency legislation” as that’s an official description, debased some years ago by the introduction of the Agricultural Wages Act as emergency legislation; it took almost two years to bring in the secondary legislation to make it do anything.
And getting better at it is not just about clarity. It’s about proportionality and prior consultation. The Welsh Government has recently published a draft regulation, with no requirement for it to be debated, postponing all council by-elections to February 2021 at the earliest.
Why February? Two by-elections in my region were suspended by the initial lockdown rules. Do those communities have to wait nearly a year for local representation? Did Welsh Government ask them? I don’t know so.
I’m using my role as an MS to get that overturned, to bring the Minister before your representatives to explain herself and to ask her to publish something proportionate.
Or maybe that February date is a hint that we’ll be in lockdown beyond Christmas?
I’m sure it’s not but if I were a mischievous commentator, I could suggest it. The breeding of hares to set running has been a hallmark of the public experience of a committed attempt to stop people becoming ill and dying.
It has not been helpful. But the one place that we should all be able to look for certainty, rather than supposition, is the law.
The frenzy this weekend proves that.
It also shows why MSs’ role as lawmakers is so important and why it needs to be taken seriously.