The UK Government's Draft Wales Bill
We (the Constitutional and Legislative Affairs Committee of the National Assembly for Wales) have been looking at the effect the draft Wales Bill will have on the Assembly’s ability to make Welsh laws.
What is the draft Bill?
The draft Wales Bill was published by the UK Government on the 20 October 2015. The proposed law is the start of a new phase of legislation on devolution in Wales, following the Silk II report and political discussions referred to as the St. David’s Day process.
The draft Bill has also been scrutinised by the House of Commons Welsh Affairs Select Committee. On 9 November 2015 we held a simultaneous meeting with them in the Senedd where evidence was heard from legal experts and academics.
We received 33 pieces of written evidence and took oral evidence throughout November.
Reserved Powers Model
The draft Bill sets out a new devolution settlement for Wales in terms of a reserved powers model, which lists the subjects on which the Assembly is not permitted to legislate. This is different from listing the subjects on which the Assembly can legislate, which is how the current model operates.
“[The draft Bill] sets out in detail how the Government plans to deliver the St David’s day commitments to create a stronger, clearer and fairer devolution settlement for Wales that will stand the test of time”] – Wales Office, Draft Wales Bill, Cm 9144, October 2015
Our report
Several issues about the contents of the draft Bill were raised in written and oral evidence to us.
New Powers
The draft Bill provides the Assembly with powers in some new areas. The evidence we received on these proposals were positive, and were welcomed by us:
- providing in law for the Assembly to be permanent,
- the removal of controls over the arrangement of Assembly committees,
- the end of involvement of UK ministers in Assembly proceedings, and
- the transfer of some powers concerning energy, transport and elections.
Tests of competence
Clause 3 of the draft Bill introduces a section to replace the current section 108 Government of Wales Act 2006 provision and sets out limits on the legislative competence of the Assembly (or the Assembly’s ability to pass law). Our report draws conclusions about the tests that are included in clause 3.
Our conclusions
The necessity test
The necessity test would restrict the Assembly’s competence (or ability) to make provisions affecting England, or modifying the law on reserved matters, or modifying private or criminal law.
If the Assembly needed to modify these areas of law to give effect or enforce, for example, a legal rule or regulation relating to a devolved subject area like housing or health, it would have to make sure that:
- The modification is necessary for the devolved purpose, and
- Has no greater effect on the general application of the private law than is necessary to give effect to that purpose.
In his evidence the Secretary of State, Stephen Crabb MP explained that:
“The Assembly will continue to be able to enforce its legislation by modifying the private law and criminal law, in the same way as it does now. The model recognises that the Assembly has a legitimate need to modify the law in respect of devolved matters in order to give full and proper effect to its legislation. It will continue, for example, to be able to create offences and impose penalties to enforce the laws that it makes...The no greater effect than necessary test is designed to address occasions where the Assembly seeks to enforce its laws by legislating in relation to England, the law on reserved matters and the general principles of private law and criminal law.”
However, the Secretary of State also stated in relation to the test that apply to the Scotland Act 1998:
“Of course, it is not in exactly the same form as it appears in the draft Wales Bill, because, of course, they have a separate jurisdiction—so, the necessity test in the Scottish legislation doesn’t refer to criminal or private law. So, the necessity test is there, it’s already in existing devolution legislation, and that’s why we’ve used that. Now, if people think that the hurdle that that is creating for Welsh legislation is too high, then let’s look at that. If there are other forms of legal definition that could be used that are not so problematic, then let’s look at that … But, if people think that the necessity test as it’s structured or as it’s framed in this draft legislation creates too much of a problem, then I’d be really keen to understand that…
…if the Bill becomes an Act, it would be for the Welsh Assembly to decide whether an Assembly Bill is necessary.”
Much of the evidence received expressed concern about how the “necessity tests” in the draft Bill would operate and in particular how they could result in more legal challenges to Welsh law.
Other evidence, including that of the First Minister, Carwyn Jones AM and Presiding Officer, Dame Rosemary Butler AM, highlighted the difficulty of interpreting or understanding the term “necessity”.
“The choice about whether it is necessary, appropriate or expedient to modify the private or criminal law for a devolved purpose is one properly for the National Assembly, not for the courts, but this new limitation dramatically increases the likelihood of Assembly legislation being challenged in the courts.” - Carwyn Jones AM, First Minister
Our view
The necessity tests have caused considerable reaction amongst those who have provided evidence and it is fair to say that these tests have received very little support.
We welcome the Secretary of State’s willingness to consider alternative approaches and welcome his intention to allow the Assembly to decide what is necessary, but point out that the current draft Bill does not achieve this aim.
We believe that a suitable solution to overcoming the issues raised by the introduction of the necessity tests would be to change the draft Bill to reflect the view that it is a matter for the Assembly to decide what is necessary.
Minister of the Crown consents
The draft Bill provides that a provision of an Assembly Act cannot remove or change any function of a reserved authority, defined as a Minister of the Crown (UK Minister), UK government departments or other public authorities (other than a Welsh public authority).
In his written evidence the Secretary of State said:
“The Assembly will continue to be able to legislate in devolved areas without the need for any consent. The Assembly will be able to legislate in any area not specified as a reservation in Schedule 1 to the draft Bill and in those areas specified as exceptions to reservations. The Assembly will need the consent of UK Ministers to legislate about reserved bodies. It is surely right that UK Ministers consent when an Assembly Bill imposes functions on reserved bodies, just as Assembly consent is obtained when Parliament legislates in devolved areas.”
However, much of the other evidence received argues that UK Ministers are being given an effective veto over Welsh legislation. The First Minister’s written evidence highlights:
“The draft Bill significantly extends the requirement for Ministerial consents to Assembly legislation. […] The practical effect of these new consent requirements is that Assembly legislation will be vulnerable to delay, or worse still, frustration, by Whitehall. This is irreconcilable with the Secretary of State’s expressed desire for “a settlement that fosters co-operation not conflict between either end of the M4”, and for “Welsh laws to be decided by the people of Wales and their elected representatives.”
Keith Bush QC told the Committee that, as well as having a Welsh model of devolution that was unnecessarily complex, difficult to operate and understand:
“Fundamental constitutional principles will continue to be undermined (and will, indeed, be further damaged) by the existence of a power for the UK executive (Government) to interfere in the affairs of the Welsh legislature (Assembly).”
Professor Richard Wyn Jones emphasised this point:
“What the business in relation to consent does is give power to the executive, and one of the things that has been characteristic of the devolution process in Wales, in my opinion, is that it’s placed too much power in the hands of the executive at the expense of the legislature. This business about consent—its power to Ministers … power that isn’t accountable.”
Our view
It is clear to us that the effect of the approach being adopted in relation to the Minister of the Crown consents is to reduce the Assembly’s legislative competence (or ability to make laws). This is because the draft Bill requires Ministerial consents to be given in connection with functions that are not currently required.
A system for requiring Minister of the Crown consents that reflects the model in the Scotland Act 1998 would be more appropriate. Replicating sections 53 to 56 and 58 of the Scotland Act 1998, within the Government of Wales Act 2006 would be a simple solution, which would contribute greatly to improving the clarity, simplicity and workability of the devolution settlement. It would ensure that the Welsh Government’s legislative programme was not conditional on the consent of an executive in the form of UK Government Ministers.
List of reservations
As currently drafted, there are over 250 specific reservations and restrictions which the Assembly would be unable to legislate on.
The Secretary of State’s written evidence states:
“The current conferred powers model of devolution in Wales lacks clarity and is incomplete. Indeed, it is silent about many areas of policy such as defence, policing, the criminal justice system and employment. This lack of definition has proved to be a recipe for confusion and dispute, and there is widespread acceptance that it is fundamentally flawed...
The new reserved powers model provides the clarity the current model lacks. It lists the subjects which are reserved to the UK level. The Assembly can legislate in all other areas and in relation to subjects that are excepted from those reservations. It provides a clear boundary between reserved and devolved subjects. The Assembly will continue to legislate in devolved areas as it does now. The consent of UK Government Ministers would be needed if the Assembly wished to place functions on reserved bodies.”
However, much of the other evidence received expressed concern that the Assembly’s powers were being “rolled back”.
For example, the Presiding Officer’s written evidence says:
“There is a significant roll back of the Assembly’s powers in the list of reservations. A large number of matters which are not exceptions from the Assembly’s current competence have been made into reserved matters. This is a reversal of the Supreme Court judgement on the Agricultural Sector (Wales) Bill.”
Professor Thomas Glyn Watkin explained how the number of reservations had the effect of reducing the Assembly’s competence:
“This loss of competence results from the interplay of two factors. The first is the large number of reservations. The second is the use of the ‘relates to’ test to determine whether provisions fall foul of reservations. Whereas the ‘relates to’ test broadens the scope of the Assembly’s legislative competence under the conferred-powers model, it narrows it under the reserved-powers model. The greater the number of reservations, the greater the narrowing achieved by the test. This also makes the task of those developing policy which may require legislation for its implementation all the more difficult. They will be asked to determine whether anything they wish to do may relate to any one or more of 200+ reserved matters, as opposed to being asked to determine that their proposals relate to any one conferred subject.”
He added that the aim of the draft Bill appears to be to regain ground lost by the UK Government in Supreme Court judgements.
Our view
The Committee is concerned that the overall effect of the extensive number of reservations is to reduce the competence of the Assembly to make laws.
The reservations should be based on clearly identified principles. The absence of a principled approach has contributed to the excessive number and complexity of the reservations. We believe that there should be a significant reduction in the number and extent of specific reservations and restrictions.
Legal jurisdiction
Some of the evidence argued that the draft Bill seemed to be designed to defend the England and Wales jurisdiction by limiting the legislative powers of the Assembly.
The Secretary of State seemed to confirm this when he appeared before the Committee:
“We’ve committed to preserving the integrity of the England-and-Wales jurisdiction. Now, if you’re going to do that, if you are going to preserve that single jurisdiction, you actually do need to build into legislation a way to give freedom to Welsh Government to be able to legislate and enforce its legislation, but also some kind of boundary that preserves the fundamental underpinnings of the single England-and-Wales jurisdiction.”
Referring to the inclusion of the “necessity test” in the draft Bill the First Minister said:
“The reason why it’s there, and many of the other tests are there, is that there is an—well, ‘obsession’ is the word, and I choose that word deliberately—with keeping the single jurisdiction, and on top of that ensuring that there is not much divergence between England and Wales in terms of the law. Now, that goes right against what people voted for in 2011. It is inevitable after the 2011 referendum that there will be significant divergence in the law—not in procedure, but in the law between England and Wales.”
The First Minister expressed the view that without addressing the issue of the jurisdiction, the Bill won’t endure for many years.
Our view
We believe there is merit in exploring further the concept of a distinct jurisdiction, which would have the benefit of recognising that there is a body of Welsh law that is distinct from English law.
We believe this would help provide greater clarity to the public about the laws to which they are subject.
Conclusion
The draft Bill, while containing welcome elements, is not yet in a state to command consensus. We believe that it should not proceed until it is significantly amended.
One approach would be to pause proceedings and use the evidence gathered in scrutinising the draft Bill to prepare a consolidating Bill in close collaboration with key players: the Assembly, Welsh Government, legal practitioners, civic society and the UK Parliament.
Should the UK Government proceed with the current timetable, the draft Bill needs to be amended so that the Bill introduced in the UK Parliament contains the following:
- the removal of the necessity test or its replacement by a test based on appropriateness;
- a system for requiring Minister of the Crown consents that reflects the model in the Scotland Act 1998;
- a significant reduction in the number and extent of specific reservations and restrictions consistent with a mature, effective and accountable legislature that is to acquire income tax powers through the same Bill;
- a distinct jurisdiction in which Welsh Acts extend only to Wales;
- a system in which Welsh Acts modify England and Wales law as appropriate for reasonable enforcement; and
- a clear commitment that a bilingual consolidation be carried out during the current Parliament.
You can read our full report on the Draft Wales Bill below:
We have shared our findings with the Welsh Government, UK Government and Assembly Commission, who have to respond to the recommendations we made. We are holding a debate in Plenary, on our findings and the responses to the recommendations, on 13 January 2016.
How to get involved and keep up-to date
Photos by: National Assembly for Wales.