The Wales Bill 2016: a marked improvement but there are fundamental questions yet to be resolved

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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.

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The Welsh government’s alternative draft Wales Bill merits careful study

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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.

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Pause to Wales Bill not only makes constitutional sense but is good politics too

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The announcement by the Secretary of State for Wales that the legislative process for the Wales Bill will be paused not only makes constitutional sense but, say Huw Pritchard and Lleu Williams, it’s good politics. The decision followed numerous critical reports, including a joint report by the Wales Governance Centre and the Constitution Unit.

The Secretary of State for Wales, Stephen Crabb, has promised to make ‘significant changes’ to the draft Wales Bill, a promise that has been warmly welcomed by many commentators.

Most notably, the Secretary of State promised to ‘pause’ the legislative process of the draft bill as the Wales Office undertakes these significant changes. This announcement follows reports by the Wales Governance Centre and the Constitution Unit, the Welsh Affairs Select Committee and the Constitutional and Legislative Affairs Committee in Cardiff Bay which all raised concerns about the draft legislation.

The changes announced by the Secretary of State will:

  • Remove the necessity test, so that the National Assembly can change the law without the need to apply this test
  • Reduce the size of the reservation list in the Draft Wales Bill
  • Remove the general restriction on the National Assembly modifying a Minister of the Crown function in devolved areas

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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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The electoral implications of the draft Wales Bill

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Last Tuesday the government published their draft Wales Bill. Among its provisions are devolution of control of the electoral system for Welsh Assembly and local government elections. In this post Roger Scully explains the significance of this.

It was all fun and games in Wales last Tuesday, as the draft Wales Bill was published by the UK Government. This putative piece of legislation has had quite a long gestation – a process that includes both the second Silk Commission report (published in spring 2014) and the cross-party talks that generated this spring’s St David’s Day declaration.

There has already been, and will doubtless continue to be, much debate about the draft bill, at least among the Welsh political class. I think it is fair to say, given the reception accorded the draft bill, that it is far from certain to become legislation at all, and certainly not in quite this form. The bill will need to go through both Houses of Parliament. It will also need to be supported by the National Assembly. At present, we are only at the stage of draft legislation, which will face pre-legislative scrutiny in parliament from the Welsh Affairs Committee over the next few months.

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What the Queen said – and what she didn’t say

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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.

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