02 June 2016
Article by Steve Boyce, National Assembly for Wales Research Service
Does Wales have the powers it needs to make effective laws?
With a new Wales Bill from Westminster expected before summer recess, the question of which powers should be devolved to the Assembly and the Welsh Government will be high on the Fifth Assembly’s agenda.
Scrutiny of the draft Wales Bill in the Fourth Assembly revealed considerable disagreement on how a new devolution settlement should look. The new Wales Bill will need to provide a clear and workable settlement that has support in both Wales and Westminster.
The draft Wales Bill
There was much discussion in the Fourth Assembly (prompted in part by the Scottish independence referendum) about the shortcomings of the current devolution settlement and how it might be improved. The UK Government published a draft Wales Bill for consultation in November 2015 that set out a new devolution framework. The intention was to create a lasting settlement that would provide greater clarity and certainty about the boundaries of Wales’s powers.
A key feature of the draft Bill was a new ‘reserved powers’ model of devolution which clearly set out the subject areas outside the Assembly’s legislative competence. The second report of the Silk Commission (2014) on devolution in Wales recommended adopting such a model and concluded that it would be clearer and simpler to administer than the current arrangement. It would also help to prevent further referrals of Assembly legislation to the Supreme Court for a ruling on competence, as has happened on three occasions since the Assembly acquired full legislative powers in 2011.
The draft Wales Bill was scrutinised in Parliament and the Assembly. Stakeholders welcomed some of its provisions, but other parts attracted considerable criticism. For example:
- the draft Bill had a lengthy list of matters reserved to the UK Parliament;
- it created new tests which would determine whether new Welsh legislation was within the Assembly’s competence; and
- it extended the circumstances in which the consent of a UK minister would be needed for certain aspects of Assembly legislation.
Reserved powers model
Under the ‘reserved powers’ model of devolution, those powers which are reserved to the UK Government are set out in legislation, with all other powers being devolved to the Assembly. Currently, the powers devolved to Wales are listed under 20 headings in Schedule 7 to the Government of Wales Act 2006. The reserved powers model, which is used in Scotland, is widely held to be simpler and clearer.
Criticism of the draft Wales Bill
Legal experts suggested that the draft Bill represented a ‘roll back’ of the Assembly’s legislative competence, particularly given the new ‘necessity tests’ that were to be applied to any Assembly legislation if it affected England, if it modified the law on reserved matters, or if it modified private or criminal law. These were judged to place excessive and unnecessary restrictions on the ability of the Assembly to make effective legislation for Wales.
The Fourth Assembly’s Constitutional and Legislative Affairs Committee concluded that the draft Bill did not conform to the principles of subsidiarity, clarity, simplicity and workability, all of which it believed should underpin a new devolution settlement. The House of Commons Welsh Affairs Committee recommended that the Secretary of State should consider delaying the introduction of the Bill and revisit its list of reservations and tests of competence. A further constitutional issue, which divided opinion, concerned the need or otherwise for Wales to develop a distinct or separate jurisdiction for the expanding body of Welsh law (see article on a distinct Welsh jurisdiction).
In February 2016, Stephen Crabb, the then Secretary of State for Wales, announced a ‘pause’ in developing the legislation and delayed publishing the finalised Bill. It will now be published before summer recess 2016 at the earliest. In the meantime, the Welsh Government, which had argued for fewer reservations and tests of competence, published its own version of the Bill which it said set out a fairer and clearer settlement.
What to look for in a new Wales Bill
Some aspects of the draft Bill were broadly welcomed and it is likely that these would remain in a re-drafted version. These included provision for making the Assembly and the Welsh Government permanent in law, and for devolving significant powers to the Assembly over its functions and the conduct of Assembly elections. The latter included powers to determine the electoral franchise; the electoral system; the number and size of Assembly constituencies; and the number of Assembly Members.
The draft Bill also gave the Assembly additional competence in areas such as energy, transport and local government, and it set out the arrangements for how the Assembly approves Westminster legislation that affects matters devolved to Wales (the ‘Sewell convention’). These issues were relatively uncontroversial.
In his statement in February 2016, the then Secretary of State announced his intention to remove the ‘necessity tests’, reduce the number of reservations, and revisit the requirements for ministerial consent. Therefore, significant changes are likely to be made in these areas and scrutiny of the new Bill will focus on these provisions and on those that appear to hinder progress towards a clear and workable settlement for Wales.
All eyes will now be on Alun Cairns, the new Secretary of State for Wales, as he prepares to introduce the revised Wales Bill. The Bill will form the basis of the next stage in Welsh devolution and is sure to receive close attention in both Wales and Westminster.
- Commission on Devolution in Wales (the ‘Silk Commission’), Empowerment and Responsibility: Legislative Powers to Strengthen Wales (2014)
- Constitutional and Legislative Affairs Committee, Report on the UK Government’s Draft Wales Bill (2015)
- House of Commons Welsh Affairs Committee, Pre-legislative scrutiny of the draft Wales Bill. First Report of Session 2015–16 (2016)
- UK Government, Draft Wales Bill (2015)
- UK Government, Powers for a purpose: Towards a lasting devolution settlement for Wales (2015)
- Welsh Government, Government and Laws in Wales Draft Bill (2016