4 March 2016
Article by Steve Boyce, National Assembly for Wales Research Service
This week the process of legislating for a new devolution settlement in Wales has taken a further step forward. On Sunday 28 February the Welsh Affairs Select Committee published a report on its scrutiny of the draft Wales Bill and on Monday the Secretary of State for Wales announced his plans for the next stage in the development of the Bill. The draft Wales Bill was published by the UK Government Wales Office on 20 October 2015.
Both the Assembly’s Constitutional and Legislative Affairs Committee (See earlier blog post “Not yet in a state to command consensus”: scrutiny of the draft Wales Bill, 16 December 2015) and the House of Commons Welsh Affairs Select Committee have identified significant issues with the draft Bill and the Secretary of State has responded by announcing a pause in the development of the Bill and a change in approach to the drafting of some of its key provisions.
The Welsh Affairs Committee report focuses on three key aspects of the draft Bill:
- the transition to a reserved powers model;
- the reservation of criminal and private law and the necessity tests; and
- the consenting arrangements.
The report is critical of the way in which the list of subjects reserved to Westminster was drawn up. The list of reservations is long, and the Committee argues that asking UK Government departments to identify matters to be reserved to Westminster has resulted in a list that merely maps out the existing legislative competence.
The Committee recommended that the process be undertaken a second time with clear guidance to Whitehall departments from the Wales Office on making decisions about the reservation of powers, and greater transparency about the criteria to be applied to the process. The Committee also says the Wales Office should also consult with the Welsh Government about its expectations regarding the list of reservations.
The Committee was also critical of the ‘necessity’ tests in the draft Bill which would apply to four aspects of Assembly legislation: those which concern the Assembly’s competence to make provisions affecting England, modifying the law on reserved matters, modifying ‘private law’ and modifying criminal law.
The Committee believes the tests risk creating too high a threshold for Assembly legislation and recommend its removal from the Bill and an assessment of alternatives.
The report discusses the requirement for Ministerial consent for Assembly legislation where it affects the functions of UK Ministers or reserved bodies. The draft Bill would widen the circumstances in which consent would be needed. The report highlights the lack of clarity in the definition of Welsh public authorities in the draft Bill, and suggests that a list of bodies for which the Assembly can legislate should be agreed by the UK and Welsh governments to guide decisions on this matter. It also recommends the inclusion in the Bill of a time limit of 60 days, in most circumstances, for any decisions around Ministerial consent.
The Committee recommends the transfer, where possible, of Ministerial functions in all areas where the Assembly has legislative competence.
Finally, the Committee believes the Secretary of State should reflect on the pre-legislative process and should consider delaying the introduction of the Bill.
The Committee did not feel able to make recommendations on some of the other key issues affecting the Bill, such as the development of a separate or distinct legal jurisdiction for Wales, and did not reach a consensus on which powers should be devolved to Wales and which should be reserved to Westminster.
In a statement on 29 February the Secretary of State for Wales announced his intention to remove the necessity test rather than replace it:
‘Given that a key aim is to reduce complexity, removing the “necessity test” will cut the constitutional red tape which risks fettering the ability of the Assembly to modify the law to enforce its legislation for which it is responsible.’
He also agreed to reduce the number of reservations and has instructed Wales Office officials to work with UK Cabinet colleagues to draw up a revised list.
In relation to Ministerial consent the Secretary of State has decided to remove the general restriction on the Assembly modifying a Minister of the Crown function in devolved areas, and to review each of the functions with a view to devolving as many as possible.
The Secretary of State reiterated his opposition to a separate Welsh jurisdiction but announced the creation of a working group – with the Ministry of Justice, the Lord Chief Justice’s office, and the Welsh Government – to consider what distinct arrangements are required to recognise Wales’s needs within the England and Wales jurisdiction when the reserved powers model is implemented.
The final version of the bill – originally due in February – will not now be published until May at the earliest.
The decision to pause the process of publishing the Bill has been welcomed in the Assembly by party leaders and by the Presiding Officer. In a statement the First Minister saw it as an opportunity to produce a ‘genuinely meaningful piece of legislation’ but expressed disappointment about the absence of detail on the proposals and the lack of constructive dialogue between the Wales Office and the Welsh Government.