12 August 2016
Article by Mark Norton, National Assembly for Wales Research Service
MPs sat in a Committee of the whole House of Commons on the 11 July 2016 to take part in the second day of consideration of the Wales Bill. This was the second opportunity for MPs to put forward amendments to the Wales Bill. The debate focused on the reserved powers listed in the new Schedule 7A to the Government of Wales Act 2006.
Paul Flynn MP, the Shadow Secretary of State for Wales, set out Labour’s view that the Bill as drafted would restrict the Assembly’s legislative competence inappropriately and reverse the competence given to the Assembly under the Government of Wales 2006 Act, section 108(5) of which allows the Assembly to make “ancillary” provisions. He said that unless the Bill was amended, the Assembly’s ability to make its legislation enforceable and effective would be inappropriately constrained. He urged the Secretary of State to give very careful consideration to the issues and to table amendments on Report that reflect an agreed position.
Liz Saville Roberts MP said the idea of moving towards a reserved powers model has been taken to symbolise a shift in Westminster’s attitude towards the Assembly, because it was assumed to be synonymous with a maturing of relations between the two institutions. She said that rather than having to justify devolving an area of competence, Westminster would be compelled to justify reserving an area of law. She concluded:
that should have represented a significant attitudinal shift, and a recognition of greater parity. The sheer length of the list of reserved areas in schedule 1 has made a mockery of that notion.
She explained that majority of Plaid Cymru amendments sought to omit certain reservations from schedule 7A in the Bill.
The Secretary of State for Wales, Alun Cairns MP said that some opposition amendments sought to broaden the Assembly’s competence significantly by enabling it to legislate in relation to reserved matters, so long as the provision is ancillary to a provision on a devolved matter. He said that this would drive a “coach and horses through the key principle underpinning the new model, which is a clear boundary between what is devolved and what is reserved.”
Secretary of State’s Order making powers
Clause 51 of the Bill provides the Secretary of State with order-making powers to make consequential provision following the enactment of the Wales Bill. This includes powers to amend, repeal, revoke or otherwise modify primary or secondary legislation. Affirmative procedure in both Houses is provided for where the amendment or repeal of primary legislation is envisaged in any such order.
Paul Flynn MP noted that there was no provision for Assembly approval of a draft order that would repeal or modify Assembly legislation. Furthermore, as the Bill is drafted, the Secretary of State could propose orders making modifications to the Acts of Parliament underpinning the Welsh devolution settlement without requiring the Assembly’s consent, although parliamentary consent would be needed. He declared this wrong in principle.
The Parliamentary Under Secretary of State, Guto Bebb MP responded that “Clause 51 is a fairly typical consequential provision” and that it ensures that the UK Government are able to tidy up the statute book where required in connection with this Bill. He said that giving the Assembly a role in approving the Secretary of State’s regulations made under this clause would be as unjustified as giving Parliament a role in approving Welsh Ministers’ regulations made under Assembly Acts.
Water and Sewerage
The Shadow Secretary of State called for the powers of intervention of the Secretary of State for Wales in respect of water to be removed from Government of Wales Act 2006.
Guto Bebb MP noted that water and sewerage devolution is complex and further work to consider the practical implications was needed. The UK Government set up a Programme Board with the Welsh Government to look at these issues. The work has concluded and the UK Government is considering the evidence.
Traffic Signs and Speed Limits
David Davies MP and other Government backbenchers spoke against the change to devolve the power for the Welsh Government to be able to change speed limits and the ability to change traffic signs in Wales. He claimed it was unnecessary and counter-productive.
Guto Bebb MP replied that the St David’s Day process agreed that responsibility for speed limits in Wales should be devolved. Powers over traffic signs, including pedestrian crossings, will also be devolved.
He explained that together, the clause and the schedule have the effect of devolving to the Assembly and Welsh Ministers legislative and executive competence in respect of substantially all the provisions of the Road Traffic Regulation Act 1984 that concern speed limits and traffic signs.
Paul Flynn MP said that the Opposition believe that a change in policing powers is desirable because the Silk Commission recommended devolution of policing in Wales. He said:
Policing is the only major front-line public service that is not at present the responsibility of the devolved institutions in Wales. That anomalous position means that it is significantly more difficult to achieve advantages of collaboration with other blue light services
The Secretary of State, however, said that the St David’s day process found no consensus to devolve the criminal justice system in Wales. He argued that crime, public order and policing are inextricably linked to the criminal justice system.
He referred to amendments tabled by Plaid Cymru, and Labour, which sought to remove the reservations for late night entertainment and alcohol licensing respectively. He said that the UK Government consider both subjects to be closely connected to policing and maintaining public order. Given that policing and criminal justice remain reserved matters, late night entertainment and alcohol licensing should also be reserved under the principle that has been established.
The Report stage of the Wales Bill will take place in the House of Commons on 12 September 2016.