Room for manoeuvre needed

27 July 2015

Article by Alys Thomas, National Assembly for Wales Research Service

Image representing the Government of Wales Act

Assembly Committee’s verdict on UK proposals for further devolution

In February 2015, the UK Government published a Command Paper Powers for a Purpose: Towards a Lasting Devolution Settlement for Wales. This was published after cross party talks following the publication of the Silk Commission’s second report (“Silk II”).

At the same time, the Smith Commission published their report, following the Scottish independence referendum, making recommendations about further devolution in Scotland.

The Queen’s Speech in May 2015 stated that the UK Government will bring forward a Wales Bill to enact the UK Government’s proposals set out in the Command Paper. It is expected that a draft Bill will come forward in autumn 2015.

Ahead of the draft Bill, the Constitutional and Legislative Affairs Committee held a short inquiry into the proposals with particular focus on:

  • The reserved powers model
  • The permanence of the Assembly
  • The Legislative Consent Procedure

On the 22 June it took oral evidence from an expert panel made up of Emeritus Professor Thomas Glyn Watkin; Emyr Lewis, Senior Research Fellow in Cardiff Law School and partner in Blake Morgan LLP and Professor Adam Tomkins from Glasgow University. The Committee also took evidence from the First Minister and the Presiding Officer on 29 June.

The Committee report was published on 17 July 2015. It contains 6 recommendations:

  • We recommend that the UK Government sets out a clear timetable for the legislation; the timetable should enable both the Houses of Parliament and the National Assembly to scrutinise both the draft and final Bill.
  • We recommend that the National Assembly ensures there is committee capacity to scrutinise the draft and final Bill.
  • We recommend that in drafting the new Wales Act, the UK Government uses the principle of subsidiarity as the starting point.
  • We recommend that the Secretary of State endorses the principle that the National Assembly must consent to any changes to the constitutional settlement for Wales.
  • We recommend that the UK Government ensures that the provisions of section 154(2) of the Government of Wales Act 2006 remain in force.
  • We recommend that the UK Government places the legislative consent procedure for Wales on a statutory basis.

The principles of the model

The Committee agreed with the principle that the Presiding Officer summarised as “the centre should reserve to itself only what cannot be done effectively at devolved national level”, namely, subsidiarity. The other principles underpinning any new devolution model should be:

  • Clarity;
  • Simplicity; and
  • Workability

Reserved powers

The UK Government has committed to introducing a reserved powers model which was welcomed by the Committee. However, in their evidence both the First Minister and the Presiding Officer indicated that the model in itself is not a guarantee of a clear settlement, and that the “devil is in the detail.” Professor Watkin summed this up:

“It’s not the way the room is described from the outside or the inside that matters, but the room for manoeuvre that one has.” He went on to add that “what is needed is space in which to manoeuvre legislatively.”

The First Minister told the Committee that “the list of reserved powers should be quite a short list, and of course it should be ensured that the list of the powers to be reserved is not so broad as to mean that we wouldn’t be able to legislate at the end of the day.” Contemplating annex B to the Command Paper which contained illustrative exceptions to reserved powers he stated.

“…if all these reservations were put into place, we would be in a position that was where we were pre-1999, and even pre-Welsh Office. For example, if you reserve civil law and procedure and criminal law and procedure, you can pass no laws here. It would mean that we would be so restricted, it would effectively destroy the 2011 referendum result.”

All of the witnesses agreed with the First Minister’s concerns about the wholesale reservation of civil and criminal law.

Section 154(2) of the Government of Wales Act 2006

Professor Tomkins stressed the importance of section 154(2) of the Government of Wales Act 2006 to the Committee. The purpose of this section is to enable the courts to give effect to legislation, wherever possible, rather than to invalidate it merely because it could be read in such a way as to be outside the competence or powers under which it was made. It provides that in such a case, the legislation is to be read as narrowly as is required for it to be considered to be within competence. Professor Tomkins told the Committee that it must ensure that in “any new Wales Bill or Wales Act, there is an equivalent of section 154.”

A permanent Assembly

The Command Paper states that the National Assembly and Welsh Government should be formally recognised as permanent parts of the UK constitution, and that this should be enshrined in legislation.

This reflects the recommendation made by the Smith Commission in Scotland. There has already been extensive scrutiny of the draft Scottish clauses by the Scottish Parliament, the House of Commons and the House of Lords. Professor Tomkins, who was a member of the Smith Commission, told the Committee that the Commission’s recommendation on permanence was seeking “to have UK Law recognise that which is already politically the case.” The First Minister stated that it would be “well-nigh impossible” to abolish the Assembly without the consent of the people of Wales.

Legislative Consent procedure

As with the proposals on permanence the Committee heard that placing the legislative consent procedure on a statutory basis would have no legal effect, but would provide legal recognition of the political reality. It would still be contingent on intergovernmental relations.

Dispute Resolution

Discussion of intergovernmental relations led to a discussion of dispute resolution in the evidence sessions. The First Minister was of the view that “there’s much to commend the current structure until it gets to the end of the process” and that there is no “genuine independence” at this final stage.” The Presiding Officer stated that the playing field “should be level” but that at this stage it wasn’t. The need for a dispute mechanism was clear the Committee were told, especially in light of the development of parliamentary procedures for “English Votes for English Laws” which will be voted on in Westminster in September.

The Draft Wales Bill is expected in the autumn and the Constitutional and Legislative Affairs Committee will lead the scrutiny.

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