Not meeting the challenge: the failings of the draft Wales Bill

The draft Wales bill is far from the fair, clear and lasting devolution settlement Wales seeks, writes Alan Trench. Drawing on a joint Constitution Unit and Wales Governance Centre report, he explains that the ‘necessity test’ and the not thought-through ‘reserved powers’ approach would make it particularly difficult for the Welsh Assembly to legislate on concerned matters, and also undermine the respect due to an elected legislature.

When the draft Wales Bill was published in October 2015, it was described by Stephen Crabb, the Secretary of State for Wales as delivering on the UK Government’s commitment ‘to create a stronger, clearer and fairer devolution settlement for Wales’. This is badly needed; the history of Welsh devolution since 1998 has been one of short-term solutions that have needed to be revised or replaced within a few years. Hopes were high that the present round of constitutional debate – triggered by the appointment of the Commission on Devolution in Wales chaired by Sir Paul Silk in 2011 – would mark a departure from that established pattern.

Sadly, a close analysis of the draft bill shows those hopes to have foundered. A joint project hosted by The Constitution Unit and the Wales Governance Centre at Cardiff University has been looking at the draft bill in detail, and published its report Challenge and Opportunity: The Draft Wales Bill 2015 yesterday.  Our group has been chaired by Alan Cogbill, former Director of the Wales Office in Whitehall, and had Professor Rick Rawlings from UCL as rapporteur.  Other members have included Sir Paul Silk and Sir Stephen Laws (formerly First Parliamentary Counsel), academic and practising lawyers from Cardiff, as well as myself. This work follows an earlier joint CU/WGC report published in September 2015, entitled Delivering A Reserved Powers Model of Devolution for Wales (available here as a PDF, and summarised here). Our examination of the draft bill has found it to be flawed in many respects.

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Legislative consent in Wales

Alan Trench discusses the Sewel convention’s application to Wales and the implications of this for the current debate about Welsh devolution. He argues that were the recently introduced draft Wales Bill to be enacted without the Assembly’s consent, it would lead to a major constitutional crisis, and that the idea of holding a referendum on the devolution of income tax without the Assembly’s consent is also a constitutional non-starter.

The Sewel convention has rightly come to be seen as key to the working of devolution in the United Kingdom. It may have first been envisaged as a way of enabling Westminster to continue to legislate for devolved matters and maintain something like the practical pre-devolution status quo in policy-making, when convenient and politically acceptable, but it was quickly understood to mean more than that.

One reason may be that devolved legislative powers are more far-reaching than was at first appreciated. More important, though, is the emergence of the ‘constitutional’ dimension of the convention. The wording used in the Memorandum of Understanding (first agreed in 1999 and not changed since then) may refer to ‘the UK Parliament … not normally legislat[ing] with regard to devolved matters except with the agreement of the devolved legislatures’, but Devolution Guidance Note 10 on Post Devolution Primary Legislation regarding Scotland has been clear that consent is also required where there are changes to the functions of the Scottish Executive/Government or Parliament.  This means that functions cannot be removed from the devolved tier of government without its consent.  It also means functions cannot be added without consent, meaning that the UK tier cannot get rid of inconvenient functions, or transfer them without adequate funding, if a devolved legislature objects.

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Making ‘reserved powers’ work for Wales

A ‘reserved powers’ approach to devolution in Wales would offer a number of significant advantages, but applying such a model will not be straightforward. Drawing on research conducted with the Wales Governance Centre and the Constitution Unit for a report published this week, Alan Trench outlines the key challenges.

The debate about a ‘reserved powers’ model for the National Assembly has to be one of the most obscure legal issues to enter public debate.  The basic idea is straightforward: that the powers of the National Assembly should be defined by setting out what it cannot do, rather than by defining ‘subject areas’ where it does have power to pass laws.  The idea is scarcely novel – it was mooted by the Richard Commission in 2004, and repeated by the Silk Commission in 2014 – but it has acquired political legs following the St David’s Day process with all the parties agreeing to adopt it.

A ‘reserved powers’ approach would offer a number of significant advantages.  It would mean that Welsh devolution works in a similar way to that in Scotland and Northern Ireland – important both symbolically and as a way of making it clearer to the public how a devolved UK works.  It also offers a way to resolve the puzzle created by the UK Supreme Court’s jurisprudence about devolution, and particularly its judgment in the reference about the NHS Recovery Of Medical Costs for Asbestos Diseases (Wales) Bill, [2015] UKSC 3, by enabling the Assembly to legislate for all matters save expressly those reserved to Westminster.  In broad terms, the Scotland Act 1998 provides a valuable model – not necessarily so much in the list of reserved matters in Schedule 5 as in the provisions of the Act for identifying the scope of those reservations and interpreting them in the courts.   At present, the list of proposed reserved matters suggests a list of matters Whitehall departments do not wish to see devolved, unsupported by any wider rationale or principle.  That is not the right way to proceed when drafting a constitution.  It needs some clearer and stronger basis, rooted in a conception of what the UK needs to do at the centre (and why), and what is best done by devolved governments.

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A ‘reserved powers’ model of devolution for Wales: what should be ‘reserved’?

Proposals for a reserved powers model in Wales raise major questions about the division of powers between the UK and devolved Welsh tiers of government. Alan Trench argues that Welsh reservations should not simply be an adaptation of the Scottish model. What is needed is a carefully-thought through approach by the UK Government followed by a public debate, engaging the Welsh Government, the political parties and Welsh civil society.

Since at least 2004, when the Richard Commission proposed one, there has been significant support in Wales for adoption of a ‘reserved powers’ model – as Scotland and (in a different way) Northern Ireland have.  The call was strongly endorsed by the Silk Commission in its Part 2 report and became UK Government policy with support from all four main parties following the St David’s Day process. There seems to be an assumption now that a reserved powers model is essentially a technical matter and that the Scottish model can and will be taken off the shelf and applied, with appropriate modifications, to Wales.  That might not be a bad way forward – there’s a good deal to be said for the Scottish legislation, though it’s not a magical way to solve all problems.  But real devils also lurk in the detail of what ‘appropriate modifications’ might be.

What appears to be underway is a process by which Whitehall departments are consulted about what functions they want to see retained, and what they are happy to let go.  The Welsh Government is a marginal player in this process, if it is a player at all, and the Wales Office does not appear to have a strategy to go with its consultation list.  The first fruit of that trawl appeared in the Powers for a Purpose Command paper published in February at the end of the St David’s Day process, as Annex B.

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The Conservative government’s Scotland bill

The Scotland Bill has been introduced early, facilitated by the fact the coalition government published draft clauses in January. Alan Trench writes that implements the proposals of the Smith Commission, and although it appears to be a done deal, it is likely to be challenged by the SNP.

This article is taken from the latest edition of the Constitution Unit Monitor, published yesterday.

The new Conservative government got its busy legislative programme off to a quick start by publishing its Scotland bill on 28 May, the day after the Queen’s speech. This bill is a substantial extension of Scottish devolution, following ‘The Vow’ made toward the end of the Scottish referendum campaign last September and the work of the Smith Commission whose recommendations it implements.

Contents of the bill

The bill builds on the ‘draft legislative clauses’ published in January. It shows a significant re-think of some details; it now consists of 64 clauses and two schedules, compared to 44 clauses from the January paper, though the key provisions about welfare and tax devolution are substantively unchanged. On the tax side these provide for devolving the power to set income tax thresholds, rates and bands on earned income, and to assign half of VAT receipts (10 points of normally-rated items and 2.5 points of items rated at 5 per cent).

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The UK at a constitutional crossroads

Alan Trench discusses Ways forward for the United Kingdom, a new report from the Bingham Centre for the Rule of Law which considers the constitutional issues that the UK as a whole will need to address in the short and medium term.

The impact of the Scottish independence referendum has been wide-ranging. It raises a number of questions about how the UK works as a whole and its territorial constitution, as well as ones about Scotland.  But for all the importance and urgency of these issues, they have not yet been subject to any wide-ranging or sustained scrutiny.  A new report from the Bingham Centre for the Rule of Law, available here, seeks to change that and look at what issues the UK as a whole will need to address in the coming months and years.  The review commission has been chaired by Sir Jeffrey Jowell QC, and its membership and remit are set out here

The Commission’s starting point was to consider the implications of the piecemeal, ad hoc approach to devolution taken so far.  Its view is that this has reached the end of its road.  The knock-on effects of the Smith Commission proposals for Scotland mean that this now creates serious constitutional difficulties beyond Scotland.  A more systematic view, considering the UK as a whole, is badly needed. 

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“Thursday’s election will either reshape the UK significantly or ease the way to its breakup”

Alan Trench assesses devolution commitments in the party manifestos and argues that pro-UK and nationalist parties alike display a lack of coherence and consistency. The SNP and Plaid Cymru seem to have conflicting demands, while the Tories, Labour and Lib Dems fail to take an overarching view of the implications of their proposals for each part of the UK on the others. It is however clear that the outcome of Thursday’s election will have major implications for the structure of the country.

It is hard to think of a general election that has ever been so freighted with questions about the UK’s territorial constitution. It is hardly an overstatement to say that the outcome of the 2015 election, and actions of the government that takes office after it, will either reshape the UK significantly or ease the way to its breakup. This post considers what the manifestos tell us about what the various parties propose to do and how they propose to do it, when it comes to the reshaping of devolution arrangements across the UK, and then discusses some of the issues that will loom larger after 7 May.

The pro-UK parties

The 2015 manifestos contain a welter of devolution-related commitments. Those in the three pro-UK parties (Conservative, Liberal Democrats and Labour) are all strikingly similar, though not identical. For Scotland, all commit to implementing the Smith Commission’s recommendations, and to retaining the Barnett formula. (Interestingly, they do not commit to the UK Government’s white paper Scotland in the United Kingdom: An enduring settlement, raising the possibility they could scrape off some of the barnacles that paper puts on the Smith proposals). Labour want to go further in a ‘Home Rule bill’ in unspecified ways, though it appears that wider scope for the Scottish Parliament to legislate on welfare matters is key to it. These commitments rather resemble those made by the same three parties in 2010 about the implementation of the Calman Commission’s recommendations, though with Labour somewhat breaking ranks with the two governing parties.

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