The Welsh government published an alternative draft Wales Bill on 7 March, following the announcement that the UK government’s draft bill was to be revised following a series of critical reports. This will be one of the first and hardest tasks for Alun Cairns, the new Secretary of State for Wales. In this post Alan Cogbill offers an initial analysis of the alternative bill and argues that it merits careful study in Whitehall.

When the UK government published its draft Wales Bill last October, it ran into a barrage of criticism.  The First Minister of Wales Carwyn Jones expressed frustration at how the UK Government had responded (or not) to Welsh government concerns while the bill was being prepared, and he published extensive correspondence.  It disclosed acute non-meeting of minds between ministers and officials in Cardiff and London – even on technical matters.

The draft bill was heavily criticised elsewhere.  Both the National Assembly’s Constitutional and Legal Affairs Committee, and the House of Commons’ Welsh Affairs Committee, expressed serious misgivings and recommended time to reconsider.  A joint report by the Wales Governance Centre and the Constitution Unit offered a sharp critique, with proposals for radical revision.

Now the Welsh government has published its own draft bill.  It offers it not as a finished product, but a contribution to joint working with the UK government to produce a better bill for parliament to consider – one that will create a clear, robust and sustainable basis for the governance of Wales within the United Kingdom.

The original UK bill

For his part the then Secretary of State for Wales Stephen Crabb said that he had published the UK government bill in draft to provide an opportunity for people to suggest improvements, and he was in listening mode.  He proved as good as his word when, last month, as reported here by Huw Pritchard and Lleu Williams, he announced that he would not now seek to introduce the bill so quickly, but would be revising it in key respects to meet the major criticisms made. This will be one of the first and hardest tasks for his successor, Alun Cairns.

There were many criticisms of the UK’s original draft bill:

• Lack of a basis of principle to determine which powers should rest with UK institutions, which with institutions in Wales.
• Ragged and often complicated division of powers, likely to provoke frequent dispute and recourse to the courts. Judges would be drawn into pre-eminently political choices.
• Complex and uncertain ‘necessity’ tests would again draw judges into decisions properly taken by politicians.
• The Assembly would be denied the instruments of criminal and civil law to give effect to its devolved legislative purposes.
• A piecemeal, occasionally quirky, assignment of particular legislative matters.
• A heavily constraining regime of UK ministerial consent to Assembly bills.
• Wide-ranging reservation of executive powers – in stark contrast to Scottish Ministers’ capacity to act in devolved matters.

The Welsh government bill – a comprehensive constitutional statute

So how does the Welsh government’s draft bill measure up?  A bill of 141 clauses and 14 schedules deserves close and careful study – far beyond this brief early commentary.  The Welsh government envisages negotiation with the UK government, as well as further work to elaborate it.

Most strikingly – as befits a ‘constitutional’ statute – it attempts to deal comprehensively with all aspects of government and laws in Wales – legislative, executive and judicial institutions, legislative and executive powers and duties, relationships with UK institutions, dispute resolution, financing, taxation (and benefits), borrowing, and audit – with mechanisms to make adjustments which may prove necessary or desirable over time.  People who take an interest in constitution making will surely applaud this endeavour.

Large parts of the bill deal with the constitution, procedures, rights, and means for reform of the Welsh institutions. (The Welsh government would re-style the National Assembly as the ‘Welsh Parliament’).  Others deal with arrangements for taxation and borrowing, once Wales has greater tax raising powers.  These largely incorporate existing and proposed provisions, already agreed between Welsh and UK Governments.  There are a few extra ‘bids’ for powers, to be negotiated.

Principles for assigning powers

The Silk Commission enunciated principles to determine which functions and powers should be devolved to the Welsh institutions, and this bill largely adopts its recommendations.  It should perhaps be considered if some statement of guiding principles (akin to a ‘purposes’ clause) – reflecting the Bingham descriptions of the core functions of the union, together with the implications of social solidarity, and of a single economic area – might usefully be set out in the bill, as an aid to its application to unpredicted future cases.

Welsh law for Wales

Devolution has already brought an increasing body of distinctive Welsh law.  The bill develops the Welsh government’s recent proposal to establish a distinct jurisdiction for Wales.   The conundrum is how to empower the Assembly to make effective devolved legislation, without it applying in England in a way which might seem unreasonable or unfair from the English viewpoint, when there has been no UK say (to speak for the English interest).  Different solutions are possible, such as territorial rules to determine which law should apply in a particular case.

A distinct jurisdiction is a practical solution, using the same courts, designated as courts of Wales or of England, and applying either Welsh or English law, as apt.  But it is questionable if the ordinary rules of jurisdiction will in every case align with an acceptable policy answer, bearing in mind the complexities of the permeable border. The courts may face difficult and complex cases where, for instance, a couple have married (or not), had a child, and then break up, to live separately in Bristol and Cardiff.  Consider the further dimension if the child has special educational or health needs; or if the partner in Bristol is renting housing for the partner in Cardiff.  Commercial dealings similarly may involve entangled cross border transactions.  Where process is begun would not be a good indicator of how strongly the case was connected with Wales, or England, respectively.

Relationship with matters reserved to the UK

Apart from territorial aspects, there is the question of when and how far the Assembly should be able to encroach on subjects reserved to Westminster. Present law allows Assembly Acts to impinge on reserved matters in ways incidental to their devolved purpose, if necessary to give effect to that purpose; and the effect of Supreme Court rulings on how purpose is to be tested is that a Welsh bill which is primarily for a devolved purpose may spill over significantly into reserved matters.  Thus a bill on agricultural wages (agriculture being devolved) could provide for a minimum wage, an employment matter otherwise apt to UK determination.

Similarly, the Supreme Court has ruled that Assembly legislation for a devolved purpose may give powers to a Welsh minister (to approve bye-laws), which effectively displace those of a UK minister.

The UK Government’s bill would have put paid to this – some suggested it was why Welsh devolution legislation had risen up the Westminster agenda.  The Welsh government’s bill would again permit, as now, consequential impacts on reserved law if ancillary to a devolved purpose.

Given the sharper demarcation of when Welsh law shall apply, achievable by a distinct jurisdiction, or by territorial rules, or some such device, which would then safeguard the interests of those outside Wales, to allow some incidental overspill seems reasonable.  It is very difficult to see any workable alternative to allowing Wales some latitude in this regard.  There would be a risk of detriment to the functioning of the common economic area, not only in potentially different employment law (which the Welsh government notes may need special attention), but in all aspects of the market for goods, services, labour, and capital.  Very likely only effective inter-governmental relations, not legislative prescription, could address this.

Welsh ministers’ powers – aligning with the legislative boundary

The Welsh government bill would also confer full executive powers on Welsh ministers in devolved areas or for devolved purposes (which terms in future will of course cover anything not expressly reserved) – save for any exceptional cases to be negotiated.  Historic powers – which no-one has managed to list – would be devolved wholesale.   The Welsh institutions would have full authority over devolved aspects of public bodies which have a mix of reserved and devolved functions, while the UK’s interests in reserved aspects would be safeguarded.  The legitimate UK concern that Welsh institutions should not be able to command other people’s resources would be met.

The bill would essentially mirror the position in Scotland, and provide greater clarity over inter-governmental interests.  This was the approach that the joint Wales Governance Centre and Constitution Unit report favoured, and is widely supported.  We shall see if Whitehall is persuaded.

Looking to the future

The Welsh government proposes a novel solution to future proofing, to avoid having to revisit the bill in a few years’ time.  Where further devolution of areas such as policing, courts and tribunals, and criminal and civil law at large has been mooted as a possible development within the next decade, it proposes a category of ‘deferred subjects’, to be devolved from ten years hence. In the meantime the new Welsh Parliament would be able to legislate in them when, through a set procedure, the UK parliament had chosen not to disapprove.

Whether this finds favour with the UK government will depend how far objections to this further devolution are chiefly practical – where a decade to bring them about should reassure – and how far there are fundamental objections to Wales ever, for example, having full authority to determine the law of homicide in the country (as Scotland already has), or having its own full criminal and civil law regimes.

At the purely practical level, a deadline which seems far off may creep up on the two governments as if unwitting, when there will be much to agree and execute.  Small items may prove contentious, especially where money is at stake.  Policy and financing of legal aid is but one example, arrangements for execution of warrants (including across the border) another.

Making devolution work – relationships, not prescription

Many of us have lamented the failure to secure effective collegiate relations of the four governments of the UK.  Good government is not just about prescribed powers, but about exercising them in a cooperative way, to the benefit of the peoples affected.  Relationships have sometimes lacked mutual respect and consideration – let alone the warmth and collegiality one might hope from countries which are friendly and neighbourly.  Let us hope the UK government’s readiness to reconsider the bill, and Carwyn Jones’ offer of the very substantial work done by his officials in collaboration towards an agreed bill, will trigger a more harmonious relationship, which will set an example of making shared rule work well for both Wales and England, under whatever new legislative settlement is reached.

What next?

Preoccupation with the EU referendum may leave the UK Government little time to give to Welsh devolution in the next 3 months – and who knows what a return to other business will look like then. With much to be agreed between London and Cardiff, it seems unlikely that a good revised bill could be ready for introduction until late this year.  While there is no compelling need for Royal Assent in 12 months time – implementation was always likely to run too late for the Assembly due to be elected in May 2016 – spilling over into 2017-18 would disconcert the government’s parliamentary business managers, putting the whole enterprise at risk.

The Welsh government’s bill merits careful study.  It is to be hoped that no Whitehall official is led to spurn it on the self-indulgently precious ground ‘not made here’.  That would do their ministers no service.

The toughest part technically will be to work through the fuller demarcation of when Welsh law should apply.  It is encouraging that the Ministry of Justice has already set up a working group of practitioners who can take this on. Tackling the practicalities may make the political decisions easier.

Politically there is cause for optimism. Last year Stephen Crabb talked of the benefits of clearer division of powers and accountabilities between Wales and UK institutions. Better juridical demarcation can support better cross-border relations: ‘good fences make good neighbours’.

It may be difficult for some Whitehall departments to relinquish ‘guarantees’ of their interests through statutory consent regimes, and to rely more on inter-governmental negotiation and collaboration.  Perhaps the enlarged scope of shared rule in Scotland, and wider recognition of the need to adopt effective ways of managing it, will give the process a push.

No principled discussion of powers and duties can escape the underlying issues of public financing, and that elected politicians face praise or blame for impacts on people’s lives.  They cannot ignore costs and risks.  The agreement of the ‘funding floor’ for Wales in the last Autumn Statement may be a straw in the wind that core UK departments would like to strike a different settlement, but from Wales’ viewpoint it was only a holding position.   It will be interesting to watch what further inter-governmental work is done on money, alongside the constitutional debate.

About the author

Alan Cogbill was the Director of the Wales Office from 2005 to 2009. He chaired the Independent Review Group that produced the Wales Governance Centre and Constitution Unit report Challenge and Opportunity: The Draft Wales Bill 2015.