08 October 2015
Article by Stephen Boyce, National Assembly for Wales Research Service
With a draft version of a new Wales Bill expected this autumn, debate on the likely impact and effectiveness of the reserved powers model is intensifying.
Last February the UK Government set out its plans for a new Wales Bill in a Command Paper Powers for a Purpose: Towards a lasting devolution settlement for Wales which included moving to a reserved powers model of devolution. Since then the Command Paper has been the subject of scrutiny and debate by politicians, academics, legal experts and others with an interest in how the new settlement might look for Wales in the post-Scottish referendum landscape.
The move to a “reserved powers” model was a key recommendation in the 2014 second report of the Silk Commission on devolution in Wales. In the model powers which are reserved to the UK Government are set out, with all other powers being devolved to the Assembly. Currently, powers are devolved to Wales in a “conferred powers” model – that is, they are expressly listed – specifically, under 20 headings in Schedule 7 to the Government of Wales Act 2006.
The Silk Commission believed that a reserved powers model of devolution, which is the model used in Scotland, would offer greater certainty, clarity and simplicity. The fact that there have been three Supreme Court cases on Assembly legislation since 2011 suggest that the current conferred powers model in Wales does not meet these criteria.
In June the Assembly’s Constitutional and Legislative Affairs Committee published the conclusions of its short inquiry into the UK Government’s devolution proposals (see earlier blog post Room for manoeuvre needed). Evidence to the Committee suggested that the way the new legislation is drawn up will be critical to the effectiveness of the new model. The Assembly’s Presiding Officer told the Committee she believed that the centre should reserve to itself only what cannot be done effectively at devolved national level – i.e., the settlement should be based on the principle of subsidiarity – and that the new settlement should preserve and build on the Assembly’s current competence.
Now a new report by the Wales Governance Centre and the University of London’s Constitution Unit expresses strong misgivings about the way in which the UK Government is developing the new legislation.
The report argues that any reserved powers model should not be constructed on a simple list of devolved and reserved powers but according to a set of agreed principles. Powers for a Purpose, it says, does not achieve this.
One area of particular contention is the proposal in Powers for Purpose to reserve criminal law and civil law. The report argues that these are mechanisms through which policy is delivered and not policy topics themselves; reserving these, it says, would:
significantly undermine the ability of the national assembly to make laws in relation to devolved functions such as health, the environment or housing if it could not make the necessary provisions to give effect to its legislation.
Separate Welsh legal jurisdiction
One aspect of the current Welsh devolution settlement highlighted in the report is the absence of a separate Welsh jurisdiction. The report argues that addressing in some way the lack of a distinct legal system in Wales (as exists in both Scotland and Northern Ireland) is necessary for the effective operation of the reserved powers model. It offers an innovative approach to a separate jurisdiction that would not require a separate legal infrastructure for Wales, and which may therefore be more politically acceptable.
The Constitutional and Legislative Affairs Committee examined the issue of a separate Welsh jurisdiction in some detail in a 2012 inquiry.
Although First Minister Carwyn Jones sees such a development as inevitable, the Secretary of State for Wales, Stephen Crabb does not believe a separate Welsh jurisdiction is needed. He recently told the House of Commons Welsh Affairs Select Committee “I do not think it is a barrier to achieving what we are trying to do, which is to get clarity.”
Now all eyes are on the publication of a draft Wales Bill, expected in late October. The Secretary of State told the Welsh Affairs Committee that the Bill itself will follow soon after:
Early 2016, it will get published in its final form, in its First Reading, and it will have its Second Reading before the purdah period, before the Assembly elections. Then we are into a new parliamentary year, so it will be what we call a carry-over Bill; start in this parliamentary year and carry over to the next one. I would hope by the end of 2016, early 2017, this will receive Royal Assent, but that is tentative
Committees in both the Assembly and Westminster are preparing to scrutinise the draft Bill this autumn. The Assembly’s Constitutional and Legislative Affairs Committee has already held a preliminary stakeholder event and will begin taking evidence in November in what is likely to be brief and intensive scrutiny. The Welsh Affairs Select Committee will undertake pre-legislative scrutiny of the draft Bill during October and November.