Amongst the recent political upheaval, the Wales Bill’s progress through the House of Commons has been somewhat overlooked. Alan Cogbill discusses how the version currently being debated has changed from last year’s much criticised draft bill. He suggests that the new bill is a significant improvement but still leaves fundamental questions unanswered.  

Amidst the excitement and despair of the EU referendum, leadership contests, and the new UK Government, a constitutional measure is hastening through parliament with relatively little attention. The Wales Bill, which puts the legislative powers of the Welsh Assembly on a new footing, and reframes the powers of Welsh ministers, was introduced on 7 June, and has already completed second reading and committee stages in the House of Commons.

The government’s 2015 draft bill ran into heavy criticism, in the Assembly, Commons, and outside. A joint Wales Governance Centre/ Constitution Unit report, which reviewed the draft bill in detail, found it severely flawed. In February then Secretary of State for Wales Stephen Crabb announced a re-think. It fell to his successor, Alun Cairns, to introduce the revised Bill.

The new bill has tried to respond to many of the criticisms made – although its authors have not resisted a little mischief. A new duty on the Assembly to require ‘judicial impact assessments’ of Assembly bills was seen in Wales as importing another (covert) fetter, but it appears not; Alun Cairns said on second reading that appraisals would not give rise to any ‘veto’ by the UK.  The bill is deliberately declaratory in high constitutional matters, but whether it needs to highlight a small and inconsequential item of inter-government relations seems questionable.

Changes from the draft bill

Modifications of criminal and private law

Stephen Crabb announced that the ‘necessity’ requirements, which in varying complicated ways would have fettered the Assembly’s legislative powers, and had been strongly criticised on legal as well as political grounds, would be removed. Almost all have been.

The bill now sets out those areas of criminal and private law which the Assembly may not modify, restoring its ability under current law to use criminal or civil sanctions to support and give effect to the objectives of its bills. Without this it would have been severely hampered as a legislature.

Reservations and new legislative powers

The list of reserved matters is somewhat shorter. Several have been clarified. The whole bill is tidier. Part 2’s further provisions on legislative and executive competence are much more systematically dealt with, and easier to follow.

Some new powers have been devolved, notably to give the Assembly and Welsh government a more complete suite of powers over infrastructure and development.

A new definition of ‘Wales public authority’, with many such bodies now listed, again helps the reader. The Assembly can legislate for these bodies without needing the say-so of a UK minister. The bill also makes plain that the Assembly may legislate for a Wales public authority whatever its mix of functions, averting doubt whether authorities which incidentally discharge functions in England, or for the UK, are thereby made subject to the regime of UK ministerial consent. It also has provisions to enable effective governance of cross-border bodies.

New provision on income tax powers

More politically than constitutionally contentious, the bill amends the 2014 Wales Act so that no referendum is needed for the transfer of powers to set income tax rates in Wales. This has offended some government backbenchers, because it departs from a manifesto commitment. Labour object that the UK could foist powers on a reluctant Assembly, because the amendments would leave commencement in the hands of the Treasury, instead of by order requiring prior approval from both parliament and Assembly.

Areas of disappointment

Principles for reservation or devolution

Our earlier report lamented the failure to proceed from any set of principles to determine which matters are more fittingly reserved to UK institutions, which more fittingly devolved to Welsh institutions.

Clearer political and democratic accountability requires systematic understandings of which functions are essential to the UK as a state, or its international relations, which sustain our single market, or social solidarity, and which (such as major risks) are more practically handled at UK level.

The Calman Commission, for Scotland, and the Bingham Centre Commission, for the UK, have both argued for and from principles. We urged closer adherence to the Silk Commission recommendations because it similarly enunciated principles for devolution to Wales.

Articulated principles could help avert disputes. They would give the courts, if called on to adjudicate on legislative and executive powers (including in cases unforeseen now), a basis from which to infer parliament’s intentions, instead of being called on to address what are properly political judgments.

They would also help to expose differences between the different devolution settlements in the UK, to be justified or removed, by broadly based political agreement. This more ambitious exercise will surely be needed sooner or later, looking at Wales, Scotland, and Northern Ireland all together. But it will have to wait for a later phase of constitutional maturity in the UK.

A distinct jurisdiction

The development of distinct Welsh made law – an intended object of devolution – presents challenges to the single jurisdiction of England and Wales, as it presently exists, and as the government argues to keep it.

Welsh made law may cross (or need to cross) – incidentally, or in order to make it effective – the geographical boundary with England, or the line drawn by statute between reserved and devolved matters. In the first case there is a need to balance what the Assembly wants to do against the interests of English neighbours; in the second, to determine what degree of encroachment should be borne, in the interests of respecting an elected national legislature, when a devolved matter may impinge on a reserved one.

The Assembly’s Agricultural Sector Bill highlighted the issue. The Supreme Court held that the Assembly’s power to legislate on agriculture allowed it to set a minimum wage for agricultural workers, notwithstanding the UK Government’s objection that the minimum wage was also an aspect of employment law, which was not devolved.

Our earlier reports canvassed two possible approaches to the single jurisdiction problems. One was a distinct (but not separate) jurisdiction for Wales, the other statutory rules to determine, when a case came forward, which regime of law should better apply to it, in its particular facts. On either approach, acceptable and deliberate encroachments of systematic kind would be dealt with by the Secretary of State in an order under section 150 of the 2006 Act.

The Welsh government developed the distinct jurisdiction proposal in its ‘shadow’ bill. A distinct jurisdiction would not entail a new and separate judicial and court system. Practitioners would move freely between the chambers of Welsh and English jurisdiction, applying the relevant law. The other country’s law would not be treated as ‘foreign’.

The UK government has noted the debate, but is unconvinced. The bill now expressly recognises a body of distinct Welsh law. The government accepts a need to reconsider how the administration of justice should work between Wales and England. The Ministry of Justice has convened a working group with the Welsh Government, and judges and practitioners, to consider this.  Unfortunately the group will not reach conclusions in time for any necessary provisions to be included in the Bill. This is surely more unfinished business.

UK executive consent to Assembly bills

UK ministers need to be able to regulate the Assembly’s legislating in a way which would increase the burdens on (or otherwise disrupt) a ‘shared’ public body. Crudely, they need to be able to insist that Wales pays for work it requires. The draft bill was criticised for meeting this reasonable objective in an overblown and overly intrusive way. This bill is improved, but it has not adopted the simpler clearer approach which harmonising the regime with the corresponding provisions for Scotland would have achieved.

Where next?

The UK government has always been keen to hold to the 2016-17 legislative slot. The welter of legislation which EU withdrawal will require – and Ministers’ preoccupations – must intensify their wish to clear the decks. Against this background, it seems unlikely that more fundamental criticisms of the bill will or can be heeded. This is a pity, when it is liable once again to leave legislators, ministers and officials, and others in Wales feeling that they are treated as a poor relation within the UK family.

About the author

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