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,  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.
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.
Following yesterday’s Queen’s Speech, Robert Hazell considers the constitutional issues that featured, as well as those which were notable in their absence.
There were few surprises in the Queen’s Speech announcing the new government’s legislative programme. Like his admired predecessor Tony Blair, David Cameron knows that the public have little interest in constitutional issues, so the constitutional items came last, just before foreign affairs. England got mentioned first, with devolution to English cities; then more powers for Scotland, Wales and Northern Ireland; English votes for English laws; the EU referendum; and a British bill of rights. What are the key issues to look out for in relation to each of these items? And what other items didn’t get a mention?
The Scotland Bill will be introduced early, because that was promised in the Vow, and the coalition government published draft clauses in January. It will implement the proposals of the Smith Commission, but go no further. It appears to be a done deal, but will be attacked on both sides. The SNP attack is predictable: they will say their resounding victory in Scotland is a mandate to go much further. But the bill also risks being attacked on the government side. The Smith proposals are based on no underlying principles and were very hurried, with no consultation amongst the political parties and endorsed only by the three main party leaders. When the details are examined, unionists on all sides may start to worry about their feasibility, and compatibility with the union. Whitehall was bounced into Smith like everyone else, and no one can confidently say how the fiscal arrangements will work in practice.