A Stronger Voice for Wales: First Minister to give evidence

16 March 2017

Article by Dr Alys Thomas National Assembly for Wales Research Service

Darllenwch yr erthygl yma yn Gymraeg | View this post in Welsh

How an Assembly committee is investigating relations between institutions.

The Constitutional and Legislative Affairs Committee  is undertaking an inquiry into inter-institutional working in order:

  • To produce best practice principles for inter-institutional working for constitutional legislation.
  • To reflect and build on the work of other legislatures on inter-institutional working as it relates to broader policy areas.
  • To seek, establish and promote opportunities for inter-parliamentary working, including promotion of citizen engagement.

The inquiry is focusing on two strands: Constitutional Matters and Policy Matters. The Committee is currently looking at Strand I: Constitutional matters. It is reviewing how inter-institutional relations have influenced development of Welsh devolution since the Assembly was set up in 1999. This includes looking at:

  • How intergovernmental mechanisms have impacted on the development of the devolution settlement.
  • How intergovernmental relations have developed and evolved, what worked well and the impact these relations have had on the devolution settlement.
  • How inter-parliamentary relations have evolved, the current state of these relations and how they could be further developed in relation to the development and scrutiny of constitutional legislation.

The Committee has been hearing from key players in the development of devolution in the past 18 years. It has heard from Lord Murphy, who was Secretary of State on two occasions – see our graphic on the Governance of Wales. At the last meeting the Committee heard from Baroness Randerson, who has been a Minister in the Welsh Government and in the Wales Office, and Elfyn Llwyd, former Leader of Plaid Cymru in Westminster. The Committee has also heard evidence from Sir Paul Silk who headed up the Silk Commission which played a part in the most recent devolution Act, the Wales Act 2017.

On Monday 20 March the Committee, as part of #SeneddNewport, is meeting in the University of South Wales, Newport and will be taking evidence from the First Minister, Carwyn Jones AM as part of the inquiry. He will also be questioned about the white paper on Wales leaving the EU, Securing Wales’ Future. The meeting begins at 2.30pm and is open to the public.

The Committee has launched a public consultation to seek views on the inquiry. The deadline for responses is 5 June 2017.

Devolution of energy and environmental powers: is the new settlement a lasting one in the face of Brexit?

14 March 2017

Article by Katy Orford, National Assembly for Wales Research Service 

Darllenwch yr erthygl yma yn Gymraeg | View this post in Welsh

The devolution settlement is changing under the Wales Act 2017 which received royal assent on 31 January 2017. This article explores what this means for energy and environmental powers in Wales, and also highlights the different attitudes to the devolution of powers following withdrawal from the EU.

Devolution – the current ‘conferred powers’ model

The current devolution settlement is based on a ‘conferred powers’ model. Schedule 7 of the Government of Wales Act 2006 sets out the 21 devolved areas for which the Assembly can legislate. Everything else falls to the UK or European Parliaments. Areas devolved to Wales include, amongst other things, the environment, agriculture, fisheries, planning and energy. For example, the Assembly has recently passed three key pieces of legislation in relation to the environment in Wales; the Environment (Wales) Act 2016, the Well-being of Future Generations (Wales) Act 2015 and the Planning (Wales) Act 2015. At present all laws passed by the Assembly must comply with EU law which is of particular relevance for the environment as many policy areas are shared with the EU including agriculture, through the Common Agricultural Policy, and nature conservation, via the Birds and Habitats Directives.

Devolution – the ‘reserved powers’ model

The Wales Act 2017 introduces a ‘reserved powers’ model of devolution. This turns the situation on its head; it sets out the areas outside the Assembly’s legislative competence, leaving everything else devolved to Wales. This is more similar to the situation in Scotland. The reserved powers model is due to come into force in April 2018 and the model in Schedule 7 of the Government of Wales Act 2006 will apply up until that date.

New powers in the field of energy and the environment brought to Wales

In addition to introducing the reserved powers model, the Wales Act 2017 brings new powers to Wales in the field of energy and the environment. Most of these changes will not come into effect until next year, with many requiring additional legislation. The Wales Act 2017 will give Wales:

  • Responsibility for marine licensing in the Welsh ‘offshore region’– 12 nautical miles out to the median line (currently limited to the ‘inshore region’ – 0-12 nautical miles);
  • Power to designate areas in the Welsh offshore region as Marine Conservation Zones (MCZs) (limited to the inshore region currently- Skomer is the only existing Welsh MCZ);
  • Power to consent energy projects with a generating capacity of up to 350MW for both onshore and inshore energy extending the current 50MW limit for the onshore and 1MW limit for the inshore. This would include the planned tidal lagoon in Swansea Bay. Onshore wind projects will continue to have no upper limit;
  • Responsibility for licensing onshore oil and gas, including the extraction of shale gas, and for new coal mines;
  • Power of consent for ‘associated development’ for energy projects, for example transport links and overhead power lines to the same body that is responsible for the main project;
  • Power to make building regulations in respect of ‘excepted energy buildings’ – buildings that form part of energy infrastructure; and
  • Additional power to legislate over water supply and sewerage.

Implications of Brexit on the devolution settlement

The Wales Act 2017 has come at an interesting time as the UK Government prepares to trigger Article 50 and start the formal process for the UK’s withdrawal from the EU. As Wales shares powers with the EU, especially in environmental fields, there are questions around whether the settlement will change as a result of Brexit.

The Welsh and UK Government have expressed different interpretations on where powers currently shared between Wales and the EU will lie. The UK Government has made reference in its Brexit white paper to the ‘repatriation’ to the UK of existing EU powers to set common regulatory frameworks:

[…] even in areas where the devolved legislatures and administrations currently have some competence, such as agriculture, environment and some transport issues, most rules are set through common EU legal and regulatory frameworks, devised and agreed in Brussels. When the UK leaves the EU, these rules will be set here in the UK by democratically elected representatives.

As the powers to make these rules are repatriated to the UK from the EU, we have an opportunity to determine the level best placed to make new laws and policies on these issues, ensuring power sits closer to the people of the UK than ever before.

The view set out in the Welsh Government / Plaid Cymru white paper on Brexit is quite different in that powers returning from the EU, in devolved areas, will land in Wales rather than Westminster:

Currently a range of powers already devolved to the National Assembly for Wales and the Welsh Government are operated within an EU regulatory framework. These include agriculture, fisheries, environment and economic development. At the point of UK exit from the EU, when EU regulatory and administrative frameworks cease to apply, these powers will continue to be devolved in Wales.

The Welsh Government / Plaid Cymru white paper highlights the constitutional implications and challenges of EU withdrawal are particularly acute in the field of environment and rural affairs:

These policy areas are all significantly devolved and over the 17 years since devolution began there has been significant divergence of policy direction between the different parts of the UK.

On Saint David’s Day the Prime Minister addressed devolution and the importance of UK frameworks and an internal single market:

… we are discussing with the devolved Administrations the whole question of the UK framework and devolution of issues as they come back from Brussels. The overriding aim for everything that we do when we make those decisions is to ensure that we do not damage the important single market of the United Kingdom, a market which I remind the right hon.

A key question facing Wales today is whether the ethos of the UK Government’s Command Paper, Powers for a Purpose: Towards a Lasting Devolution Settlement for Wales will be challenged on the UK’s withdrawal from the EU.

Brexit: Views from Wales and Westminster

28 February 2017

Article by Nia Moss, National Assembly for Wales Research Service

Darllenwch yr erthygl yma yn Gymraeg | View this post in Welsh

This is a picture of an Assembly Committee room.

On 6 and 13 February 2017 the First Minister for Wales, Carwyn Jones AM, and the Minister of State for Exiting the EU, Rt Hon David Jones MP gave evidence to the Assembly’s External Affairs Committee (@SeneddEAAL) on their governments’ respective white papers and their priorities for the negotiations on the UK’s withdrawal from the EU.

What was the view from Wales?

The First Minister for Wales told the Committee that his priority for the negotiations was ensuring that Welsh businesses are able to export to the European market in the same way as they do now. The First Minister outlined his view that this goal should be pursued even if it means a compromise on immigration but also highlighted the Welsh Government’s proposal to link the freedom of movement of people to employment.

In relation to the border between Ireland and Norther Ireland, the First Minister stated that he wouldn’t want to see a deal on the issue that would make it easier for companies to move goods through Northern Ireland than through Welsh ports.

In relation to future funding the First Minister stated that he expected Wales to be compensated for the loss of European funding. He outlined his view that this should be in the form of an increase in the block grant and that this funding should not be subject to the Barnett formula.

The First Minister said that the UK Government’s engagement with the Welsh Government had been good and he welcomed the quarterly meetings of the Joint Ministerial Council. However, the First Minister emphasised that he expects not only for the voice of the Welsh Government to be heard but also to play an active role in the negotiations with the EU. The First Minister set out his view that the Welsh Government had not yet received a coherent view from the UK Ministers on the UK Government’s negotiation position.

The First Minister argued that current structures for inter-governmental relations in the UK are not fit for purpose. He called for new structures for making policy decisions and resolving disputes between the four governments of the UK. He was clear in his view that following the UK’s withdrawal from the EU the default position on powers would be that all powers currently exercised by the EU in areas of devolved policy like agriculture would come back to Wales. He stated that this was not the current view in Whitehall where he said there is a belief that the UK Government will decide where powers currently held by the EU will go in the UK.

What was the view from Westminster?

The Minister of State for Exiting the EU, Rt Hon David Jones MP, told the External Affairs Committee that the UK Government had not yet decided when it would trigger Article 50. He stated that the UK Government had also not yet decided whether it would send a simple letter of notification or would send a more detailed letter outlining some of its negotiation objectives.

The Minister offered his reassurance to the Committee that the UK Government’s negotiation position would fully reflect the views of the devolved governments and legislatures. He stated that the UK Government would need to weigh conflicting concerns and priorities within the UK to come up with a solution in the best interests of the whole of the UK.

The Minister stated that he wanted ‘to be absolutely clear that we (the UK) will be leaving the single market’ but that he believed there would be every incentive for the EU to agree a comprehensive free trade agreement with the UK. He outlined that the UK Government is undertaking an analysis of over 50 sectors in the UK economy to consider the implications and opportunities for them post UK withdrawal.

The Minister stated that the Home Office is currently working on a policy in relation to free movement between Northern Ireland and the Republic of Ireland following the UK’s withdrawal from the EU.

On inter-governmental relations the Minister stated that the UK Government was not currently looking at the development of new constitutional structures to replace the JMC though they may consider this ‘in the fullness of time’. In relation to the repatriation of powers following the UK’s withdrawal from the EU the Minister stated that (PDF 432KB):

It will be necessary for the United Kingdom to make a decision as to where various competences lie. We have been absolutely clear in indicating that any devolved competences that are currently exercised at devolved level will not be, so to speak, clawed back. It will be necessary to decide where powers best lie. It may be that there will be scope for further devolution, but, it may well be there will be an advantage, and in fact an imperative to look at UK-wide structures to replace the competences that previously resided at Brussels level.

These two evidence sessions formed part of the External Affairs Committee’s work on the implications for Wales of the UK’s withdrawal from the EU. Find out more about the Committee’s work on its webpage or on twitter @SeneddEAAL. You can watch the evidence sessions in full on Senedd.tv 

The Wales Bill passes the Assembly and Parliament

27 January 2017

Article by Alys Thomas, National Assembly for Wales Research Service

View this post in Welsh | Darllenwch yr erthygl yma yn Gymraeg

Empty chamber from above

On Tuesday 17 January 2017 the National Assembly for Wales debated a Legislative Consent Motion on the Wales Bill. According to a convention (“the Sewel Convention”) the UK Government would not normally bring forward or support proposals to legislate in relation to Wales on subjects in which the Assembly has legislative competence without the Assembly’s consent. The consent of the Assembly is gained via a Legislative Consent Motion (LCM). The Wales Bill changes the powers of the Assembly therefore an LCM was required.

The motion, moved by the First Minister, stated:

To propose that the National Assembly for Wales, in accordance with Standing Order 29.6, agrees that provisions in the Wales Bill, in so far as they fall within or modify the legislative competence of the National Assembly for Wales, should continue to be considered by the UK Parliament.

The First Minister opened the debate. He explained that the Labour group had decided to look at the Bill “as a package” and on balance, decided to support the LCM although that decision was not easy.

When questioned about the key factor in choosing to support the Bill he replied:

The issue with Brexit has been the issue of Sewel for me. The Prime Minister herself said today that there will be no roll-back of powers, and I have to take her on her word, but if it is enshrined in law that there’s a requirement of consent from a devolved parliament or assembly, then that obviously carries more weight than if it’s just a convention. So, enshrining that in law is important, not just in terms of Brexit negotiations, but in terms of negotiations on a number of issues in the future where the UK Government will not be able to say, ‘Of course, in Scotland it’s the law, but in Wales, it isn’t, so we don’t have to pay Wales the same regard as Scotland.’

Huw Irranca-Davies AM, Chair of the Constitutional and Legislative Affairs Committee, which scrutinised the Bill said:

Wiser people than I have suggested that this Bill will not be the durable, once-in-a-generation settlement promised by Secretaries of State for Wales, and that the complexity and conditionality involved means we may potentially be ceding some ground. But there is no doubt that the ground on which we stand will be firmer and surer as a result of moving to a reserved-powers Bill. It stands us in good stead as we face a transition to Brexit and other external shock factors.

Plaid Cymru opposed the Bill on the grounds that it rolled back the powers of the Assembly. Party leader Leanne Wood AM stated:

We were told that a reserved-powers model would be delivered, and this has been one of the key demands for Plaid Cymru for many, many years, yet it quickly became apparent that the list of reserved powers would contain more than 200 reservations, and that anything relating to that list could be out of bounds by this Assembly in the future. Compared to the conferred-powers model, that represents a roll-back of our powers, and in our judgment it would therefore represent a roll-back on the 2011 referendum result.

The politics of this are clear to me. Following its Supreme Court defeat on the agricultural wages Bill, the UK Government wanted to remodel the Welsh constitution to avoid further defeats.

The Conservatives voted in favour of the Bill and party leader Andrew R.T. Davies AM particularly welcomed “that income tax will be coming to this institution to make sure that we do have greater accountability in the way the money has been spent in this institution and by the Government.”

UKIP voted against the Bill as they objected to the removal of the requirement for a referendum before devolving income tax powers. Leader Neil Hamilton AM said:

 I do believe that, whilst the broad principles of the Bill are worthy of support, the way in which this has been handled has been very far from perfect, and, in regard to the removal of a referendum provision in relation to the devolution of income tax powers, I believe that that is a constitutional deficiency that we ought not to ignore.

The Assembly voted 38 in favour of giving its consent for the Bill to proceed and 17 against.

The following day the Wales Bill received its Third Reading in the House of Lords and was passed.

On the 24 January the Bill was returned to the House of Commons for consideration of the House of Lords amendments. The amendments were agreed and the Bill now awaits Royal Assent.

A further development on 24 January was the Supreme Court ruling on Article 50 which also ruled on the Sewel Convention in the devolved legislatures. It concluded that:

[…] the Convention operates as a political constraint on the activity of the UK Parliament. It therefore plays an important role in the operation of the UK constitution. But the policing of its scope and operation is not within the constitutional remit of the courts. The devolved legislatures do not have a veto on the UK’s decision to withdraw from the EU.

The ruling will be covered in more detail in a forthcoming blogpost.

Supreme Court ruling on Article 50 TEU; Assembly Plenary to consider

24 January 2017

Article by Elisabeth Jones, National Assembly for Wales – Chief Legal Adviser

Darllenwch yr erthygl yma yn Gymraeg | View this post in Welsh

Picture of the Supreme Court

Image from Flickr by Rev Stan. Licensed under Creative Commons.

The Supreme Court has today ruled that an Act of the UK Parliament is required to approve the giving of notification required under Article 50 of the Treaty on the European Union. In other words, the UK Government cannot simply use the Royal Prerogative to give this notification.

However, the Supreme Court held that there was no legal requirement for the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly also to consent to this legislation, under what is commonly known as the Sewel Convention or the Legislative Consent Convention.  The Court stressed that the Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures, but ruled that it was not the role of the judiciary to police the scope of such constitutional conventions, or how they operate. The Court went on to hold that this conclusion is not affected by the fact that part of the Sewel Convention is now entrenched in statute for Scotland, in the Scotland Act 2016 (and will be for Wales, if the Wales Bill currently going through its final stages through Parliament is passed).

The Court was not giving the UK Government and Parliament licence to ignore the Sewel Convention. Simply, it is saying that the courts cannot decide disputes about whether it has been applied correctly. Any sanction for failure to observe it has to be political, rather than legal. Notification under Article 50 formally triggers the start of the process of the UK leaving the EU – negotiations on the terms of the exit can begin once notification has been given. The Prime Minister has signalled her intention of giving the notification by the end of March 2017, although this timetable will now be subject to the Parliamentary process.

The Welsh Government’s Counsel General will make a statement in Plenary today on the outcomes of the judgement. Members will be given the opportunity question the Counsel General on his statement.

Key issues likely to be discussed in Plenary include:

  • How the Welsh Government plans to ensure that the interests of Wales are protected in the Brexit process.
  • What type of role the Assembly will have in scrutinising the negotiations and if there is likely to be a role for the Assembly in approving the final deal on the UK’s exit from the EU.
  • Whether the current inter-governmental structures in place in the UK are sufficient to enable the full engagement of the devolved administrations.
  • If a common negotiation position is likely to be reached between the devolved administrations and the UK Government prior to Article 50 being triggered.