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.

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.

The Trade Union Bill

17 January 2017

Article by Alys Thomas, National Assembly for Wales Research Service

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

trade_union_rally

Image from Wikimedia Commons by Dean Molyneaux. Licensed under Creative Commons.

In January 2016 the Fourth Assembly refused its consent to the UK’s Government Trade Union Bill on the grounds that parts of it relate to devolved public services. The UK Government does not accept that Assembly consent was needed. Leighton Andrews, the then Minister for Public Services, said that if back in power, the Welsh Government would introduce an Welsh Bill to overturn the relevant parts of the UK Bill. It is a dispute which could be heading to the Supreme Court.

The Trade Union (Wales) Bill 2017

The Trade Union (Wales) Bill was published by the Welsh Government on 16 January 2017. It is very short Bill with just three clauses. The Bill amends the Trade Union and Labour Relations (Consolidation) Act 1992 as amended by the Trade Union Act 2016

The Trade Union Act 2016 received Royal Assent on 4 May 2016. Its provisions include a 50% turnout of a union’s members for strike action to occur. For ‘important public services’ 40% of those eligible to vote (as opposed to those actually voting) must back action for a strike to take place. A simple majority of those who vote is currently required. The Welsh Bill would disapply the 40% threshold to Welsh public authorities. It also includes powers to require the publication of information on facility time and to impose requirements on public sector employers in relation to paid facility time. It also introduces restrictions on deduction of union subscriptions from wages by employers.

The Legislative Consent Motion

Both the Scottish Government and the last Welsh Government opposed the UK Bill. They argued that because parts of it related to devolved public services, those parts should be subject to the consent of the Scottish Parliament and the National Assembly for Wales. The UK Government maintained that the subject of the Bill was entirely reserved to the UK Parliament. During a UK Parliament Public Bill Committee debate in October 2015, Nick Boles, the UK Minister for Skills, said he saw no reason why the UK Government should seek consent before applying the contested provisions.

The Scottish Government submitted a Legislative Consent Memorandum (LCM) which asked the Scottish Parliament to withhold consent for the Bill because it would impact on devolved functions. However, the Scottish Parliament’s Presiding Officer ruled that the Scottish Parliament’s consent was not required. This meant that no vote could be taken on the Scottish Government’s LCM. The subject matter of the Trade Union and Labour Relations Consolidation Act 1992 –is a reserved area in Scotland Act 1998. The is no equivalent exception from competence in the Government of Wales Act 2006.

In Wales an LCM was laid in November 2015. The LCM set out the last Welsh Government’s view that the Assembly’s consent would be required for some of the Bill’s clauses as they related to devolved matters. The Welsh Government argued that these clauses fell within the legislative competence of the  Assembly because they related to public sector employers in Wales. Those employers provide a range of devolved public services including education and training, fire and rescue services, health services, local government, and transport services.

The Assembly considered the LCM in January 2016. Leighton Andrews, the then Minister for Public Services, stated that ‘significant parts of the Bill relate specifically to public services that are clearly devolved, and it is not acceptable for the UK Government to try to impose it on Wales.’

The 2014 Supreme Court ruling

In September 2015 the First Minister issued a written statement in which he argued that the 2014 Supreme Court ruling on the Agriculture Sector (Wales) Bill meant that the Assembly reserved the right to withhold its consent to the Trade Union Bill. He said:

It is clear, however, that significant elements of the Bill relate specifically to public services which in Wales are unambiguously devolved responsibilities.  I therefore do not accept the suggestion that the Bill must be regarded as concerned exclusively with non-devolved issues.

The 2014 ruling said that although employment was not listed as a devolved subject in Schedule 7 of the Government of Wales Act 2006, agriculture was and the contents of the Agriculture Sector (Wales) Bill related to it. Something does not have to relate only to devolved subjects in order for it to be within the competence of the Assembly.

In January 2016 a leaked letter from the UK Minister for Skills to other UK Ministers came to light. This showed that legal advice to the UK Government suggested there was a strong case that its Trade Union Bill’s provisions were reserved in relation to Scotland, but that the UK Government had a ‘very weak case’ in relation to Wales because of the precedent set by the Supreme Court ruling.

The Assembly voted to withhold legislative consent to the Bill by 43 votes to 13.

The impact of Wales Bill

The Wales Bill, which is completing its passage through Parliament, will reconfigure Welsh devolution by introducing a reserved powers model. This would make the devolution model similar to that in Scotland with the likely effect that the Trade Union Bill would be deemed outside the Assembly’s competence.

However, provided the Trade Union (Wales) Bill completes Stage 1 of the legislative process “before the appointed day” when the relevant parts of the Wales Bill are commenced, it may proceed. The transitional arrangements also state that nothing in the in the Wales Bill affects Acts and Measures already passed by the Assembly. Nevertheless,   a challenge by the UK Government in the Supreme Court remains a possibility.

New Publication: Land Transaction Tax and Anti-avoidance of Devolved Taxes (Wales) Bill – Bill Summary

10 January 2017

Article by Christian Tipples, National Assembly for Wales Research Service

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

Introduction

Date of introduction: 12 September 2016

Member in charge: Mark Drakeford AM, Cabinet Secretary for Finance and Local Government

Assembly Committee responsible for Stage 1 scrutiny: Finance Committee

Stage 1 reporting deadline: 22 December 2016

The Land Transaction and Anti-avoidance of Devolved Taxes (Wales) Bill (‘the Bill’) was laid before the Assembly on 12 September 2016. The Bill was introduced in plenary by Mark Drakeford, the Cabinet Secretary for Finance and Local Government, on 13 September 2016.

The Bill is the first tax specific legislation to be introduced in the Assembly. It establishes provisions for Land Transaction Tax (LTT) in Wales, which will replace UK Stamp Duty Land Tax (SDLT) in April 2018. The Bill is the second in the series of three bills relating to the devolution of tax powers to Wales as stated in the Wales Act 2014.

The Bill follows the Tax Collection and Management Act (Wales) 2016, which received Royal Assent on 25 April 2016. The Act provided the legal framework for the future collection and management of devolved taxes in Wales and established the Welsh Revenue Authority (WRA), the body responsible for collecting and managing devolved taxes.

Land Transaction Tax and Anti-avoidance of Devolved Taxes (Wales) Bill – Bill Summary (PDF, 355KB)

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