9 April 2015
Article by Alys Thomas, National Assembly for Wales Research Service
Why constitutional permanence?
The UK Government Command Paper Powers for a Purpose: Towards a Lasting Devolution Settlement for Wales [PDF, 839KB, 60 pages] states:
‘The UK Government agrees that the Assembly should be formally recognised as permanent and that the Assembly and Welsh Government are permanent parts of the United Kingdom’s constitutional arrangements. This should be enshrined in legislation.’
The Assembly was created by the Government of Wales Act 1998, now replaced by the Government of Wales Act 2006, Section 1 (1) of which states:
‘There is to be an Assembly for Wales to be known as the National Assembly for Wales or Cynulliad Cenedlaethol Cymru (referred to in this Act as “the Assembly”).’
However, as a body created by a UK Act, in theory it could be abolished by another Act, although many constitutional commentators believe this to be politically unthinkable without the consent of the people of Wales.
The Silk II Report [PDF, 2.02MB, 226 pages] said:
‘The British Constitution does not allow for the entrenchment of any law except in the sense that a law can achieve a perceived constitutional status. Even though the UK Parliament would still have the power to abolish the National Assembly, the National Assembly has now in our view achieved a constitutional status that means it has become inconceivable that Parliament would be able to abolish the National Assembly without a clear mandate from the people of Wales.’
It, therefore, recommended that “It should be recognised that the National Assembly is permanent, so long as that is the will of the majority of the people of Wales”.
The Westminster inquiry
This UK Government proposal follows developments in Scotland in the wake of the referendum where the Smith Commission Report [PDF, 28 pages. 399kb] put the issue of the permanence of the devolved institutions at the centre of the proposed new constitutional settlement, with the first draft clause focusing on the permanence of the Scottish Parliament.
The Political and Constitutional Reform Committee of the House of Commons has held an inquiry on the draft clauses published by the UK Government to enact the Smith Commission Report and took detailed evidence on the issue of placing the Scottish Parliament on a statutory basis.
Draft clause 1 attempts to implement this aspect of the Smith Commission Report by adding a new subsection (1A) to section 1 of the Scotland Act 1998. Under the proposal the Scotland Act 1998, as amended would say:
(1) There shall be a Scottish Parliament.
(1A) A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements.
However, much of the expert legal evidence received questioned whether the drafting of Clause would have the effect of making the Scottish Parliament permanent.
‘Dr Mark Elliott, Reader in Constitutional Law at the University of Cambridge, argued in his written evidence that draft clause 1 does not actually state that the institutions are permanent much less make them so. It does not, after all, simply state that the Scottish Parliament is permanent but rather that it is “recognised” as such. Professor Tom Mullen of the University of Glasgow, Professor Aileen McHarg of Strathclyde University and the Law Society of Scotland all argued to the committee that the difference is of legal significance. They contended that the clause as drafted appears not to offer a prescription that is identifiably the will of Parliament but merely sets out a statement of fact: it is not what lawyers call a “normative statement” and it is thus incapable of having legal effect. As Professor Mullen put it in his written evidence: “the use of the phrase ‘is recognised’ seems more appropriate for a statement of fact. It is not clear, therefore, whether a court would treat it as a normative statement capable of being given legal effect.” ‘
The PCRC report concluded that draft clause 1, on the permanence of the Scottish Parliament, may seek to recognise the Scottish Parliament and Scottish Government as constitutionally permanent but expressed doubt whether such a provision would have the effect of making the institutions permanent in constitutional terms.
‘While we note that clause 1 as presently drafted has been described as “legally vacuous”, we consider that there is no mischief in the clause as drafted. The existence of such a statutory recognition of the permanence of the Scottish devolved institutions is likely to constitute a further political (if not a legal) obstacle to any attempted abolition of those institutions.’
The report noted that it would be possible to achieve the UK Government’s policy aim more effectively if the UK’s territorial constitution were codified in a way which clearly set out the respective competences and powers of UK and devolved institutions. A Statute of the Union, or a full written constitution, could provide greater legal certainty over the status of the Scottish institutions, were any further certainty required.
The report also stated:
‘We recommend that the Wales Office, when preparing legislation to give effect to the Government’s proposals for further devolution to Wales, take account of the conclusions and recommendations of this report in respect of the drafting of the constitutional clauses for a Scotland Bill.’