03 November 2016
Article by Kim Obergfall, National Assembly for Wales Research Service
The view of the Constitutional and Legislative Affairs Committee
The chair of the Committee, Huw Irranca-Davies AM said that elements of the Bill were welcomed by the Committee, such as the move to the principle of a reserved-powers model, the removal of the necessity test in relation to private and criminal law, and the listing of the main Welsh public authorities.
However, Mr Irranca-Davies explained the committee’s view that the Bill is too complex and inaccessible and the extent of reservations and restrictions is far too restrictive. It was noted that the Bill would need to be considerably modified in the House of Lords if the Assembly is not to lose significant law-making powers in some areas. As a result it believes that ‘it will not deliver the lasting, durable settlement that the people of Wales had expected. That is disappointing and it is regrettable.’
He went on to say that ‘a durable and a workable settlement is crucial to the constitutional integrity of the UK as well as to Wales’, and that, ‘the Committee considered that politicians in the UK Parliament and the National Assembly “will have to return to the Welsh devolution settlement sooner rather than later”’. This lack of long-term durability, is due to the Bill’s complexity and the failure to introduce a separate legal jurisdiction for Wales. These feelings were echoed by many of the Members throughout the debate, including the First Minister, Carwyn Jones AM, and other Members of the Committee: Lord Elis-Thomas AM, Nathan Gill AM and David Melding AM.
Despite this, Lord Bourne, who is responsible for getting the Bill through the House of Lords, has recently said that he thinks this is the “last major piece of legislation on Wales for a long time”
Mr Irranca-Davies advocated the introduction of an agreed process of co-operation between the National Assembly, its committees and the Houses of Parliament and their committees when considering constitutional Bills and urged that this process should, ideally, be in place before the UK’s withdrawal from the European Union.
As a complete redrafting of the Bill would be too complicated, the Committee’s report suggests amendments that would improve the Bill’s accessibility and fairness.
The view of the other Assembly Members
Simon Thomas AM (Plaid Cymru) supported the idea of reserved powers and the acknowledgement of the National Assembly for Wales as a permanent institution. As the Chair of the Finance Committee, he also welcomed the opportunity to develop new fiscal processes. He claimed that the Bill goes against the will of the Welsh people, as expressed in the 2011 referendum, in wanting the Assembly to have full legislative powers.
David Melding AM (Welsh Conservatives) praised the Bill for the proposed powers over future Assembly elections. He also focused on the issue of the necessity tests, welcoming where they have been removed and calling for changes where they remain.
Michelle Brown AM (UKIP) criticised how the Wales Bill has been delivered, claiming that the UK Government had not ‘properly consulted’ the Assembly. She added that the return of some legislative powers from Brussels would create ‘a golden opportunity to have a mature conversation with the UK Government about the proper apportionment of legislative competence between the UK legislature and the Assembly’.
Nathan Gill AM (Independent) stressed that Welsh constitutional arrangements would have to be revisited in light of the UK’s decision to leave the EU. He pointed out that Bill does not have ‘acknowledgement of the fact that we’re going to get some of the areas that are devolved to Wales, hopefully, coming back to us’ as a result of the UK withdrawing from the EU.
Lord Elis-Thomas AM (Independent) highlighted a comparison of the much shorter list of reservations found in Scotland’s devolution settlement and Northern Ireland’s settlement with that of Wales’ settlement, asking why Wales would need to be treated differently. He also questioned whether the UK Government would be ‘truly interested in responding to what we have said, which raises a very grave question in terms of the prejudice against this house in the rest of the UK’.
The view of the First Minister
The First Minister, Carwyn Jones AM (Labour), reminded the Assembly Members that this Bill must be compared to the draft Bill. ‘This Bill is better; it would be difficult for it to be worse’ he declared. He then ran through the bits of the Bill that were welcomed, which included the powers over the size of the Assembly and how it operates its elections.
He also stated that it is ‘absolutely inevitable that there will be another Bill’ and echoed the concerns about the issues of jurisdiction and policing: ‘Already, I’ve been told—the Lord Chief Justice has said this to me—that lawyers have come into courts in Wales and argued the wrong law, because they believe single jurisdiction means a single set of laws. This confusion can only continue in the future.’
The First Minister highlighted the some of the areas of particular contention in the Bill. These include licensing issues, air passenger duty, ports and the intervention power in water. He confirmed that a rollback of powers can be seen in several areas. He also confirmed his belief that devolved powers that come back from Brussels will bypass Westminster and end up in Wales.
In his closing remarks, Huw Irranca-Davies thanked the contributors and declared that the debate revealed a clear consensus on the inevitability of another Constitutional Bill in the near future. He also reiterated that the Bill has good elements and that it is capable of improvement. He concluded by quoting Dr Diana Stirbu, a witness to the Committee, who claimed ‘a constitutional settlement should be also aspirational’.