“Not yet in a state to command consensus”: scrutiny of the draft Wales Bill

16 December 2015

Article by Alys Thomas, National Assembly for Wales Research Service

This is a picture of the Senedd.

The draft Wales Bill was published on the 20 October and since then has been scrutinised by the Constitutional and Legislative Affairs Committee (CLA) of the Assembly. It has also been scrutinised by the House of Commons Select Committee on Welsh Affairs and on 9 November a concurrent meeting of both committees was held in the Senedd where evidence was heard from legal experts and academics. The CLA Committee received 33 pieces of written evidence and took oral evidence throughout November. Its Report was published on 4 December.

The draft Bill contains specific proposals where much of the evidence received is positive, such as providing in law for the Assembly to be permanent, the removal of unnecessary controls over the composition of Assembly committees, the cessation of involvement of UK ministers in Assembly proceedings, placing the Sewel Convention on a legislative basis, and the transfer of powers concerning energy, transport and elections.

However, several issues about the contents of the draft Bill were raised in written and oral evidence to the CLA.

Volume of reservations and “roll back” of powers

The Secretary of State’s written evidence states:

“The current conferred powers model of devolution in Wales lacks clarity and is incomplete. Indeed, it is silent about many areas of policy such as defence, policing, the criminal justice system and employment. This lack of definition has proved to be a recipe for confusion and dispute, and there is widespread acceptance that it is fundamentally flawed.

The new reserved powers model provides the clarity the current model lacks. It lists the subjects which are reserved to the UK level. The Assembly can legislate in all other areas and in relation to subjects that are excepted from those reservations. It provides a clear boundary between reserved and devolved subjects. The Assembly will continue to legislate in devolved areas as it does now. The consent of UK Government Ministers would be needed if the Assembly wished to place functions on reserved bodies.”

However, much of the other evidence received expressed concern that the Assembly’s powers were being “rolled back”. For example, the Presiding Officer’s written evidence says:

“There is a significant roll back of the Assembly’s powers in the list of reservations. A large number of matters which are not exceptions from the Assembly’s current competence have been made into reserved matters. This is a reversal of the Supreme Court judgement on the Agricultural Sector (Wales) Bill.”

Professor Thomas Glyn Watkin’s evidence said that “It is also demonstrably the case that the proposed reservations remove competence from the Assembly”. He added that the aim of the draft Bill appears to be to regain ground lost by the UK Government in Supreme Court judgements.

Ministerial consents

In his written evidence the Secretary of State said:

The Assembly will continue to be able to legislate in devolved areas without the need for any consent. The Assembly will be able to legislate in any area not specified as a reservation in Schedule 1 to the draft Bill and in those areas specified as exceptions to reservations. The Assembly will need the consent of UK Ministers to legislate about reserved bodies. It is surely right that UK Ministers consent when an Assembly Bill imposes functions on reserved bodies, just as Assembly consent is obtained when Parliament legislates in devolved areas.”

However, much of the other evidence received argues that UK Ministers are being given an effective veto over Welsh legislation. The First Minister’s written evidence states:

The draft Bill significantly extends the requirement for Ministerial consents to Assembly legislation. […]

[…] The practical effect of these new consent requirements is that Assembly legislation will be vulnerable to delay, or worse still, frustration, by Whitehall. This is irreconcilable with the Secretary of State’s expressed desire for “a settlement that fosters co-operation not conflict between either end of the M4”, and for “Welsh laws to be decided by the people of Wales and their elected representatives.” “

“Necessity tests”

Much of the evidence received expressed disquiet about how the “necessity tests” in the draft Bill would operate and in particular how it could result in more legal challenges to Welsh legislation. Written evidence from Emyr Lewis states “there is no time limit on this, so an Act of the Assembly may have been in place and functioning very well for years, and still be challenged.” Other evidence, including that of the First Minister and Presiding Officer, highlighted the difficulty of interpreting the term “necessity”.

Single jurisdiction in England and Wales

Some of the evidence argued that the draft Bill seemed to be designed to defend the England and Wales jurisdiction by limiting the legislative powers of the Assembly. The Secretary of State seemed to confirm this when he appeared before CLA:

“We’ve committed to preserving the integrity of the England-and-Wales jurisdiction. Now, if you’re going to do that, if you are going to preserve that single jurisdiction, you actually do need to build into legislation a way to give freedom to Welsh Government to be able to legislate and enforce its legislation, but also some kind of boundary that preserves the fundamental underpinnings of the single England-and-Wales jurisdiction.”

Referring to the inclusion of the so called “necessity test” in the draft Bill the First Minister said:

“The reason why it’s there, and many of the other tests are there, is that there is an—well, ‘obsession’ is the word, and I choose that word deliberately—with keeping the single jurisdiction, and on top of that ensuring that there is not much divergence between England and Wales in terms of the law. Now, that goes right against what people voted for in 2011. It is inevitable after the 2011 referendum that there will be significant divergence in the law—not in procedure, but in the law between England and Wales.”

The First Minister also expressed the view that “without addressing the issue of the jurisdiction, the Bill won’t endure for many years”. He noted the Lord Chief Justice had said it was possible to have a distinct jurisdiction without the need for a separate court system.

CLA’s conclusions

In its report the CLA Committee stated that “the weight of evidence received overwhelmingly opposes the way in which the draft Bill delineates the boundary of the Assembly’s legislative competence” and that it “is not yet in a state to command consensus”. It does not believe that the Bill should proceed until it is significantly amended.

It believes that if the UK Government intends to proceed to its stated timetable the draft Bill should be amended to include:

  • the removal of the necessity test or its replacement by a test based on appropriateness;
  • a system for requiring Minister of the Crown consents that reflects the model in the Scotland Act 1998;
  • a significant reduction in the number and extent of specific reservations and restrictions consistent with a mature, effective and accountable legislature that is to acquire income tax powers through the same Bill;
  • a distinct jurisdiction in which Welsh Acts extend only to Wales;
  • a system in which Welsh Acts modify England and Wales law as appropriate for reasonable enforcement;
  • a clear commitment that a bilingual consolidation be carried out during the current Parliament.

The CLA Report will be debated in Plenary on 13 January 2016.

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