21 November 2018
On 9 October 2018 the Act of Union Bill received its First Reading in the House of Lords. It is a Private Peer’s Bill and is sponsored by Lord Lisvane, a Crossbencher and former Clerk of the House of Commons. The aim of the Bill is:
[…] to provide a renewed constitutional form for the peoples of England, Scotland, Wales and Northern Ireland, to continue to join together to form the United Kingdom, to affirm that the peoples of those nations and parts have chosen, subject to and in accordance with the provisions of this Act, to continue to pool their sovereignty for specified purposes, and to protect social and economic rights for citizens.
No date has been set as yet for a Second Reading of the Bill .This article sets out what is in the Bill, how it relates to Wales, and the extent to which it would lead to moves towards a federal state.
Why has the Bill been introduced?
The Constitution Reform Group (“CRG”) is the organisation which has developed the Bill introduced by Lord Lisvane. It consists of former and practising politicians of all the principal UK parties, a number of academics, former officials in Parliament and government, as well as ordinary citizens. The CRG considers that:
The United Kingdom risks disintegration unless we have a new constitutional settlement to guarantee the rights and autonomy of each constituent nation and region within a reformed UK under a new Act of Union.
The CRG launched a public debate with a short paper in September 2015, followed by a Draft Act of Union Bill which was published in July 2016. There were Explanatory Notes to accompany this. The current iteration of the Bill is the result of consultation over the last three years and it is the CRG’s objective to stimulate further debate. The CRG states:
All of the members of the Steering Committee and the Group’s wide circle of correspondents agree that, in spite of piecemeal constitutional changes over recent decades, our present constitutional arrangements are unsatisfactory and trigger questions which undermine the stability of the UK.
The Group believes that the case is a very urgent one, and the Bill as it has been drafted reflects the view that the UK needs a new constitutional settlement if the Union is to be preserved and strengthened. This is particularly important as the UK embarks on a new chapter of its history as it departs the EU in March 2019.
What is in the Bill?
The 2016 Explanatory Notes state that the purpose of the Act of Union Bill is “to cement the fundamental structure of the UK for the foreseeable future, based on principles and processes that command the general support of people throughout the country.” The Bill aims to preserve and codify the most important and successful features of the present system, such as the notion of mutual support and shared rights and values; but it also suggests change on issues where there is thought to be general lack of content, including the governance of England and the structure of the House of Lords.
The essence of the policy of the Bill is that it starts from the position that each of England, Scotland, Wales and Northern Ireland is a unit that both can and should determine its own affairs to the extent that it considers it should; but that each unit should also be free to choose to share, through an efficient and effective United Kingdom, functions which are more effectively exercised on a shared basis.
What does the Bill say about Wales?
Part 5 of the draft Bill makes provision for the governance of Wales.
The Bill pre-empts the Assembly Commission’s plans for a name change in the forthcoming Senedd and Elections (Wales) Bill in describing the National Assembly for Wales as the Welsh Parliament/Senedd Cymru.
Part 5 confirms the existing arrangements for devolution. It preserves the Government of Wales Acts 1998 and 2006 as the core Acts about the government and legislature of Wales.
It requires the amendment of the Government of Wales Acts to ensure that the Welsh Parliament/Senedd Cymru and the Welsh Government have competence in all matters except the central policy areas reserved to Parliament and the UK Government by Part 2 of the Bill.
The Government of Wales Acts would be amended (if necessary) to achieve the following:
- providing for matters concerning elections to the Welsh Parliament/Senedd Cymru to be legislated by the Welsh Parliament/Senedd Cymru itself;
- removing powers of UK Parliament to intervene in the affairs of the Welsh Parliament /Senedd Cymru;
- removing powers of the UK Government to intervene in the affairs of the Welsh Government;
- removing controls on payments out of the Welsh Consolidated Fund;
- removing existing controls on borrowing by Welsh Ministers.
A move towards federalism?
The Bill was presented by the CRG as a Bill to prevent the breakup of the UK, in the wake of the UK Parliament introducing English Votes for English Laws. In an article from 2015 Lord Campbell, Lord Hain and the Marquess of Salisbury, all members of the CRG Steering Group, said:
The English votes for English laws provisions in effect create two classes of MP, making the Scots, Northern Irish and Welsh seem less welcome than they are — grist to the mill for separatists. They also make it difficult for article 9 of the Bill of Rights — which covers freedom of speech in parliament — to apply, which risks opening parliamentary proceedings to litigation. Perhaps worst of all, the use of standing orders as a vehicle for change makes our constitutional arrangements even more impenetrable. The bones of our constitution should be clear and understandable to any interested citizen, not just legislative anoraks.
To this end the Bill sets out the purposes of the Union, including equality and the rule of law; rights and freedoms; tolerance and respect; equality of opportunity; safety and security; social and economic rights, including health and education; and benefiting from shared history and culture. There is a list of reserved competences, as in the current devolution settlements, with the details to be filled in for the individual nations. In an article, the political scientist, Professor Michael Keating, said that this pointed to “a type of asymmetrical federal union” which “provides a useful thought experiment and measure for any actual settlement”.
However, he then notes that “the last part of the bill, however goes in a very different direction”. There is to be a single civil service, “which seems intended to be a strong force for cohesion […]”. He concludes:
Most strikingly of all, there is a clause that provides that nothing in the Act will affect the sovereignty of the UK Parliament, which even retains the power to amend or repeal the Act of Union itself. Such a clause has featured in every devolution bill since 1886, with the exception of one Scotland bill in the 1920s. It is the essential difference between devolution and the federal or confederal alternatives. It is also in glaring contradiction with the commitment to the sovereignty of the nations on which the earlier part of the proposal is based.
Article by Alys Thomas, National Assembly for Wales Research Service