A Lasting Devolution Settlement for Wales?

25 March 2015

Article by Alys Thomas, National Assembly Research Service

Image representing the Government of Wales Act

“Powers for a purpose”

On 24 February 2015 the UK Government published a Command Paper Powers for a Purpose: Towards a Lasting Devolution Settlement for Wales [PDF, 839KB, 60 pages]. Although, it is a UK Government paper it emerged following cross-party talks which took place in the wake of the Scottish Referendum. The Secretary of State held discussions with the four main political parties in Wales, focusing on the recommendations made by the Silk Commission in its second report (“Silk II Report” [PDF, 2.02MB, 226 pages]), published in March 2014.

When the Silk II Report recommended that Wales should move towards a reserved powers model it was widely welcomed in Wales, including across the political parties. On 14 October 2014 an all-party motion [PDF, 169 KB] was passed in the Assembly which sought “confirmation that the Reserved Powers model will be instituted for Wales”.

Why Reserved Powers?

The Silk Commission stated that “the evidence we received was overwhelmingly in favour of a reserved powers model.” The reasons given were that it provides certainty: “With a clear set of reservations, the limit of the devolution settlement should be more apparent and so allow the National Assembly to legislate with confidence”. The model would provide greater clarity, simplicity and provide greater structural stability than the conferred powers model. It was also argued that it would provide consistency and coherence across the United Kingdom as reserved powers models already apply to Scotland and Northern Ireland.

But…

However, some legal experts have sounded a note of caution. In October 2014 Professor Thomas Glyn Watkin told a Wales Governance Centre conference that whether a reserved powers model delivered in terms of some of the advantages Silk identified, depended on how the Bill was drafted.

Similar concerns were voiced by the First Minister In his statement in Plenary on the Command Paper on 3 March 2015:

There are indications that the UK Government may use this exercise to row back from Wales’s current powers. The annex listing areas where reservations would be needed is of limited value, because it doesn’t include any of the exceptions that will be required simply to maintain the current settlement. It does, however, highlight the risk that some Whitehall departments may take this as an opportunity to actually narrow the devolution settlement rather than take it forward. These annexes reinforce my view that we’ll need to scrutinise the draft Wales Bill with the utmost caution, to ensure that our existing powers are protected, and, here, the devil will be in the detail.

Supreme Court rulings

Between the publication of the Silk II Report and the Command Paper the two outstanding Supreme Court rulings on Welsh Bills were published which provide an important context to the consideration of moving towards a reserved model. On the 9 July 2014 the Supreme Court handed down its judgement on the Agriculture Sector (Wales) Bill which was discussed in an earlier blogpost.

The ruling on the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill was published on 9 February 2015. The Supreme Court ruled that the Bill was not in the legislative competence of the National Assembly for Wales and incompatible with the rights of compensators under the European Convention on Human Rights (ECHR).

Lord Mance, who gave the leading judgement, said the bill was not sufficiently related to the organisation and funding of the NHS under the Government of Wales Act 2006, to come within the Assembly’s competence.

This ruling was felt by some commentators to be a narrower interpretation of the Assembly’s legislative competence than the Agriculture Bill ruling. Professor Adam Tomkins of Glasgow University considered it in the context of Supreme Court devolution case law from across the UK and concluded “Coherent, stable and workable” it is not: that much is for sure.” He explained the differences between the existing settlements in Wales and Scotland:

The words “relates to” do not have the same effect in section 29 of the Scotland and section 108 of the Government of Wales Act. If an Act of the Scottish Parliament relates to a reserved matter listed in Schedule 5 to the Scotland Act it is outwith competence. On the other hand, an Act of the Welsh Assembly must relate to a devolved matter listed in Schedule 7 to the Government of Wales Act in order to be within competence. This is the difference between the “reserved powers” model used in Scotland and the “conferred powers” model used in Wales […] Thus, the effect of interpreting “relates to” as indicating “more than a loose or consequential connection” in Scotland is that the competence of the Scottish Parliament is treated generously: an ASP must have more than a loose connection with a reserved matter before it may be held on that ground to be outwith competence. However, the effect of interpreting “relates to” in this way in Wales is the opposite, and diminishes the legislative competence of the Assembly: an Act of the Assembly risks being held ultra vires unless the Assembly can show that it has more than a loose or consequential connection with a subject listed in Schedule 7.

What next?

The UK Government’s Command Paper states that “a programme of work to prepare the model” is already underway. An illustrative list of the areas in which it believes that reservations would be needed is at Annex B of the paper, and examples of the reservations that it says would be included in the model are at Annex C. Annex D lists the issues that UK Government thinks would need to be considered in moving to a reserved powers model by posing a series of questions including “How does the interpretation of legal judgements have an impact on the boundary of the devolution settlement?”. However, further clarity about Wales’ journey towards “a lasting devolution settlement” lies the other side of the UK General Election.

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