5 August 2016
Article by Mark Norton, National Assembly for Wales Research Service
On 5 July the first day of consideration of the Wales Bill took place in Committee of the whole House of Commons. This is the first opportunity given to Members of Parliament to amend the Bill, debate them and then vote on them. This blog provides an overview of the key points of discussion.
Assembly and Welsh Government Permanence
The debate was opened by Plaid Cymru MP Liz Saville Roberts, who moved amendments relating to the declaratory clauses in the Bill. These are are intended to establish the Assembly and the Welsh Government as a permanent part of the UK Constitution. She explained that the effect of one amendment would be the “declaration of the permanence of the Assembly should be given prominence in the Bill. Placing it in section 1 of the 2006 Act would achieve that”.
Another set of amendments moved by Liz Saville-Roberts MP reflected the constitutional separation of the legislature (the National Assembly for Wales) and the executive (the Welsh Government), by dealing with them in separate new provisions to be inserted into those parts of the Government of Wales Act 2006 that deal respectively with the Assembly and the Government. She explained that these were probing amendments, which would not be pushed to a vote, but she hoped that the Secretary of State would agree to accept these proposals and to table his own amendments at the next stage.
The Parliamentary Under-Secretary for State in the Wales Office, Guto Bebb MP said that the UK Government was keen to see the commitment to permanence expressed in a single clause to reflect the fact that the Assembly and the Welsh Government belong together as a part of the UK’s constitutional arrangements. They would, however, like to give further consideration to the most appropriate place to the declaration of permanence in the Government of Wales Act 2006.
A Separate Legal Jurisdiction
Liz Saville Roberts MP also laid amendments that would in effect create a separate jurisdiction for Wales. She said that this was recommended by both the Silk report and the Inquiry carried out by the Assembly’s Constitutional and Legislative Affairs Committee into the draft Wales Bill which had concluded that one was needed.
She argued that:
“Many, if not most, of the criticisms of the Bill made by politicians, lawyers, civil society and academics alike have been of clauses or sections that have been justified as necessary by the Secretary of State in order to maintain the single unified legal system of England and Wales.”
and the Bill as drafted would not deliver a durable settlement.
The Labour Party laid an amendment which would place new subsections to be inserted after the provision relating to Welsh Law. These would require the Secretary of State to keep the justice system as it applies in relation to Wales under review with a view to its development and reform, having regard in particular to divergence in the law as between England and Wales.
The current Shadow Secretary of State, Paul Flynn MP, expressed sympathy about the creation a separate jurisdiction, however, he explained that he would not be supporting it on this occasion because there was not enough support to pass it and it was simply “gesture politics.”
He explained that Labour’s amendments would achieve three things.
- First, there would be a duty on the Lord Chancellor and Welsh Ministers to keep the operation of the justice system under review, including the jurisdiction question.
- Secondly, they would be able to appoint an expert panel to advise them, which could be an invaluable source of legal expertise to focus on the practical issues.
- Thirdly, the work would have to be transparent and sustained, with an annual report laid before the National Assembly and Parliament.
The Secretary of State, like his predecessor, wants the Bill to offer a lasting settlement, and so do we, but that will not happen unless they put forward a credible and serious process for reforming the joint jurisdiction.
Both the Plaid Cymru and the Labour amendments fell.
Guto Bebb said “the Government is fully committed to maintaining the single legal jurisdiction of England and Wales. It has served Wales well”
He went on to announce that a working group was being put together by the UK Government to consider the administrative changes in diverging legislation for Wales.
Former Secretary of State for Wales, David Jones MP, indicated that he and some other Government backbenchers would not be supporting Clause 16 which removes the requirement for a referendum before income tax is devolved to the Assembly.
The Secretary of State for Wales, Alun Cairns MP replied that the debate had moved on substantially since the Wales Act 2014. He said that here is clearly a strong consensus that Welsh devolution and the Welsh Government should not have to call a referendum before assuming the power to raise, vary or even reduce a portion of income tax.
Labour put down an amendment with provision for a fiscal framework to be prepared by the Secretary of State, which must be approved by the Assembly and each House of Parliament before the income tax provisions may be commenced by order made by the Treasury.
The Secretary of State responded that under the model followed in Scotland, a legislative consent motion came only after the fiscal framework was agreed. He envisaged a similar process happening Wales and did not consider the amendment necessary.
Legislative Impact Assessments
Liz Saville Roberts MP spoke against the imposition of an obligation on the Assembly to undertake and publish justice impact assessments for Assembly Bills, in particular being imposed on the Assembly through its own Standing Orders. Liberal Democrat MP, Mark Williams intervened:
“In many ways the Bill includes a welcome approach for the Assembly to regulate its own affairs, so does she agree that this measure is inconsistent with the rest of the Bill?”
The Secretary of State replied that through the Treasury and a range of other Departments, the UK Government issues guidance and requirements relating to expectations of how public spending will be conducted and how public interests will be guarded. That is the principle under which the justice impact assessment should be considered, rather than how it has been interpreted by many.
He added that the UK Government “recognise[s] the need for Assembly legislation to make effective enforcement provision, and we are putting that beyond doubt in the Bill.”
A blogpost on the second day of consideration of the Wales Bill will be published soon.