What does the EU (Withdrawal) Bill mean for Wales and devolution?

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On 13 July 2017, the UK Government introduced the EU (Withdrawal) Bill into the UK Parliament. The Bill – which was formerly referred to as the Great Repeal Bill or Repeal Bill – aims to make the changes the UK Government considers necessary to law in the UK in preparation for the UK’s exit from the EU.

The White Paper leading to the Bill, Legislating for the United Kingdom’s Withdrawal from the European Union, was published on 30 March 2017. You can read more about it in our blog.

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A Stronger Voice for Wales: First Minister to give evidence

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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.

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

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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.

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The Wales Bill passes the Assembly and Parliament

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.

Article by Alys Thomas, National Assembly for Wales Research Service.

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


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.