18 March 2016
Article by Alys Thomas, National Assembly for Wales Research Service
On 29 February the Secretary of State for Wales announced a pause in the process of bringing forward the promised Wales Bill which we blogged about. However, in a further development, on Monday 7 March the First Minister issued a Written Statement and published the Government and Laws of Wales Bill (‘the alternative bill’) along with an Explanatory Summary.
The statement says that in dealing with the UK Government’s draft bill:
‘[…] we have been trying to improve a draft Bill that sought to create a new settlement on the reserved powers model by amending the present conferred powers model. This has proved a futile exercise because it perpetuates the legacy of executive devolution. It has become clear to us that a fundamental rethink is needed if we are to create a coherent and lasting settlement for Wales. Simply amending the earlier legislation does not work.
We believe that a different approach is required: one that is based on constitutional principle, that gives full effect to the recommendations of the Silk Commission, and which consolidates the previous devolution statutes as recommended by CLAC.’
The statement also says that the Welsh Government is publishing the alternative Bill ‘as a constructive contribution to the development of Welsh devolution, and to assist the Secretary of State and the UK Parliament when they consider how the settlement should be improved’.
The alternative bill
The alternative bill as drafted consists of 141 clauses and 14 Schedules. It is a consolidated bill so it re-enacts much of what is in the Government of Wales Act 2006, for example in relation to the structure of the Assembly. Other provisions have been included from the current Scotland bill, Assembly Measures and the draft Wales bill and there are some new provisions.
Clause 1 (I) of the alternative bill renames the Assembly as ‘Parliament’.
In drafting the alternative Bill, the Explanatory Summary states that the guiding principles have been:
- A lasting settlement
The Bill provides for an immediate change from a conferred powers model of to a reserved powers model The Explanatory Summary states that the list of reservations includes those matters essential to the UK’s political, economic and social union. Thus provisions supporting the UK’s internal market, or social security are reserved matters.
However, it also provides for devolution in the longer term of policing, the administration of justice, criminal law, and family law all of which are ‘deferred matters’ until the ‘deferred transfer date’ of 1 March 2026.
The alternative bill provides for the immediate creation of a distinct Welsh legal jurisdiction, separating the laws of England from the laws of Wales. The Explanatory Summary states:
‘The Welsh Government first initiated the debate about the Welsh jurisdiction in 2011. At that point, we concluded that the jurisdiction should develop organically over time. But our detailed work on the reserved powers model for Wales has made clear that creating such a model within a joint jurisdiction risks creating new complexity and uncertainty. Therefore, as we argued in our evidence to CLAC […] we have concluded that a Welsh jurisdiction is the right way forward in line with the principles set out above.’
The alternative bill provides for some new restrictions on the powers of the proposed Welsh Parliament–in three ways:
- the Welsh Parliament’s powers will be exercisable only in relation to Wales. So, by establishing a distinct Welsh jurisdiction, the ability for Welsh laws to apply in some respects in England is removed. As with Scotland, changes in the law of England consequential upon Acts of the Welsh Parliament made for Wales will be made by the UK Government by regulations.
- Some reduction of power is necessary in order to achieve the logical and clear reservation of employment rights and duties which is needed to underpin the UK’s internal labour market.
- Thirdly, the Welsh Parliament will not be able to modify the functions or constitutions of listed reserved authorities without the Secretary of State’s consent, or modify the law on reserved matters unless doing so is necessary for a devolved purpose.
The First Minister’s Oral Statement
On Tuesday 8 March the First Minister made an Oral Statement in Plenary. In response, Andrew RT Davies AM raised a provision in the alternative bill that requires a two-thirds majority in the Assembly before the powers over income tax come in to force which he described as a ‘retrograde step’.
The First Minister replied:
‘Taking on board income tax is a significant change. How it’s implemented is not. It’s up to a Government to decide where to go from there. My party has accepted the devolution of income tax. The debates on that are now finished. We will not accept the devolution of income tax on any basis. It has to be fair to Wales, and remember that the Treasury could, if it wanted to, impose it anyway. We’re still seeking meetings with the Treasury with a view to taking forward a fiscal framework for Wales that reflects the devolution of the Welsh rate of income tax. We’re happy to have those conversations. So, it isn’t to do with trying to prevent this Assembly having income tax varying powers. We accept that, that’s going to happen, and we’re working towards that already.’
Simon Thomas AM stated:
‘So, the first question that I would like to ask the First Minister is this: if we are to take this process seriously, then what are your next steps towards ensuring that this Bill is more than just a footnote in the history of Wales and does move the process forward, along with, as has to be the case, the Westminster Government, because legislation on this can only happen in Westminster? So, what is the route towards that and what are the milestones that you would expect to see reached during that journey?’
In response the First Minister said:
‘What are the next steps? Well, to be realistic, I would not expect anything to happen between now and the election, but I would expect the UK Government to respond in a meaningful and fair way as regards the way forward, because, at present, they don’t have any Bill on the table. What we are saying is that this is a template. There are some things that would not have the agreement of all parties, but this is a template for what the constitutional settlement for Wales should be in due course.’
Kirsty Williams AM said:
‘Could I begin by saying that I think it’s perfectly appropriate for the Welsh Government to have brought forward the draft we see before us today? If one criticises the actions of a Government, and you say you don’t like what’s on offer, and what they’ve put forward, it is incumbent, I would say, to come up with an alternative. So, I think it is perfectly acceptable, and, indeed, the right thing to have done, to say, ‘Well, if that’s no good—what’s being offered from London—this is an alternative.’ And it does form the basis, I think, of a debate that we can have here, about what a Wales Bill should look like, and could deliver what we all want, across this Chamber, which is a settlement that is sustainable, long-lasting, and provides clarity—clarity to a Welsh Government about its roles and responsibilities, and clarity to the Welsh public about what they can expect that Government to do on its behalf, and that clarity is something that has been sadly missing.’
The First Minister replied:
‘In terms of where we go next with this, this Bill is on the table for genuine discussion. We don’t offer this as a take-it-or-leave-it Bill; this is a document that, we hope, will form the basis for discussion about Wales’s constitutional future, and we hope it will be in the thinking of the UK Government as they look to provide a draft Bill for the future. This is our contribution to the debate and to what’s passed thus far for negotiation.’