Richard Commission | The Constitution Unit Blog

In September, the Committee on Senedd Electoral Reform published a report that recommended a wide range of reforms to the Welsh Parliament’s arrangements, including increasing the number of Members of the Senedd, adopting a new electoral system, and implementing measures to improve diversity. In this post, Michela Palese summarises the key recommendations and reflects on the likely next steps.

Reform of Wales’s legislature has been on the political agenda for many years. Earlier this year, the first phase of reform led to the extension of the franchise to 16- and 17-year olds; to changing the name of the Welsh Assembly to the Welsh Parliament/Senedd Cymru and of its members to Members of the Senedd (MS); and to changes around electoral administration. These reforms were part of the Senedd and Elections (Wales) Act 2020, which became law on 15 January.

Another area of reform, which has yet to be taken forward, is the size of the legislature itself. Constitutional developments in Wales, particularly following the Wales Act 2017, have meant that the Welsh legislature has acquired new, primary law-making powers, including in relation to its size and electoral arrangements, and is now recognised as permanent within the UK’s constitutional settlement, alongside the Welsh government. The 2017 Act also moved Wales from a conferred powers model of devolution (an anomaly in the UK’s set-up) to a reserved matters model similar to that of Scotland, as recommended by the Unit in 2016.

These significant new legislative powers have not been matched, however, by an increase in the number of members of the legislature (hereafter, MSs or Members of the Senedd, though note their name was Assembly Members/AMs until May 2020), which have remained at 60.

There has been much, long-standing debate around this issue – it is broadly accepted that 60 MSs are insufficient to carry out the important legislative and scrutiny work of a fully-fledged parliament, with its own committee system, particularly if one considers that 14 MSs (around 23% of the total) are part of the executive.

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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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