Not a “lasting and durable settlement”: An Assembly Committee’s view of the Wales Bill

14 October 2016

Article by Alys Thomas, National Assembly for Wales Research Service

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On 19 October the Assembly will debate the Constitutional and Legislative Affairs Committee’s report on the UK’s Wales Bill.

In June the Assembly’s Constitutional and Legislative Affairs Committee (“the Committee”) began scrutiny of the UK Government’s Wales Bill introduced on 7 June. Its Report was published on 6 October.

The Committee welcomes some aspects of the Bill such as:

  • the declaration about the permanence of the National Assembly for Wales and the Welsh Government;
  • the move from a conferred powers to a reserved powers model;
  • the granting of competence in relation to National Assembly elections, including the franchise and the electoral system;

The Committee also welcomes many of the changes made in response to its scrutiny of the draft Bill, including for example:

  • the removal of the necessity test in relation to private and criminal law, giving the National Assembly greater freedom to legislate;
  • the ability to remove or modify some UK Minister functions without consent, with specific bodies also having been carved out from the consent requirements (e.g. Food Standards Agency, Electoral Commission, Ofwat);
  • the listing of all the main Welsh Public Authorities in the Bill, removing any doubt that these bodies are within the National Assembly’s legislative competence;
  • the devolution of powers relating to Assembly Member disqualification.

In general, the Committee is of the view that the UK Government has missed an opportunity to introduce “a long-term and durable constitutional settlement for Wales and its citizens”. It also believes that the Bill does not reflect the democratic will of the people of Wales as expressed in the referendum held in 2011.

The concern of the Committee is the potential for a “roll back” of the Assembly’s powers because the “space to legislate” is constrained by the volume and detail of reservations. It argued that the complexity of the various tests that would apply to the reserved powers model introduced by the Bill is significant. It notes that the “relates to” test, when applied to a reserved powers model has the effect of limiting competence.

The Committee feels that the reluctance to accept the need for a distinct or separate jurisdiction for Wales in response to devolution is a significant failing in the Bill and one that calls into question the durability of the settlement. Legal practitioners and advisors at the stakeholder event told the Committee of the practical pressures that will inevitably arise for those practising law or giving advice on the law in Wales, so that the case for a distinct or separate jurisdiction will continue to arise. Other factors the Committee feel will impact on the durability of the settlement are:

  • the complex way in which the National Assembly’s legislative competence is expressed, including the number and extent of reservations and restrictions;
  • the lack of a consolidating text to improve clarity and workability, which means that legislation on the Welsh constitution will be spread over four Acts of Parliament. The Committee feels it is inconceivable that an unconsolidated constitutional text can meet the needs of legislators, legal practitioners or citizens;
  • the many areas of policy which have been omitted entirely from the Bill, or which UK Ministers have argued against devolving in debate, such as policing, air passenger duty and the sale and supply of alcohol. The failure to devolve these policy areas could prevent the National Assembly making joined-up effective law; and
  • the reversal of devolution and centralisation of some policy areas to the UK Government, for example in relation to adoption services under reservation 175.

The Bill received its Second Reading in the House of Lords on the 10 October and the Committee’s Report contains suggested amendments for laying at Committee stage.

In conclusion, the Committee criticises how the process by which the Bill has been conceived, developed and subjected to scrutiny. It argued that the Bill has been characterised by a Whitehall-driven process and tight control by the UK Government which has locked out any criticism which would have helped improve the Bill. It stated:

This cannot be allowed to happen again on a Bill of such constitutional importance. The people, parliament and government of Wales have to varying degrees been treated as secondary in a matter of significant constitutional reform which directly affects them. Moreover, it does not reflect past best practice observed in previous Bills affecting the governance of Wales where there was wider engagement, and does not reflect the mutual respect and engagement we would expect between the governments and parliaments in Wales and Westminster.

The Committee called for a new approach to considering constitutional Bills that impact on the National Assembly, developed between the latter and the UK Parliament, and between the respective governments which would involve:

  • inter-governmental working on policy development and drafting of a Bill;
  • all relevant National Assembly and UK Parliamentary committees considering the constitutional Bills either collectively or in joint sessions; and
  • as appropriate, Ministers of the Crown, the Secretary of State and the First Minister to appear in public before all relevant parliamentary committees.

Fundamental to such an approach would be an agreed means of co-operating between two parliamentary bodies: between the National Assembly and its committees and Parliament and its two Houses and its committees. It recommends the development of new ways of working together “as a matter of urgency”.

The Research Service Constitutional Developments page has further background on the Wales Bill.