Wednesday, 21 October 2015

The Draft Wales Bill (Number Two)

(Pic : ITV Wales)
Yesterday, the Welsh Secretary, Stephen Crabb MP (Con, Preseli Pembs.) introduced the draft Wales Bill to the UK Parliament on behalf of the UK Government – you can read it here (pdf).

The draft Bill forms a key part of the next step in Welsh devolution, following the second report of the Silk Commission in 2014 and the St Davids Day Agreement earlier this year. Alongside a list of relatively minor powers to be devolved to Wales are more significant provisions, such as the creation of a "reserved powers model".

It's of course worth reiterating that this is a draft Bill, not the final version that will have to go through all the processes in both houses of the UK Parliament before it can become law. It's also highly unlikely it'll be passed before the end of 2016.

We already knew most of the following was going to be in the Bill, but it's worth repeating now that it's all down on paper.

What powers will be devolved to Wales?

(Pic : South Wales Evening Post)
  • Electoral arrangements for the National Assembly; including the conduct of elections, the timing/date of Assembly elections, the electoral system used to elect AMs and the number of constituencies and/or regions – subject to a super majority vote (two-third majority). This includes the number of AMs elected in each constituency or region, but I'm not sure if that means the Assembly can change the total number of AMs or not.
  • The name of the National Assembly, Assembly Commission and Assembly Acts – subject to a two-thirds majority vote.
  • Composition of Assembly committees will no longer be legally-outlined in the Government of Wales Act 2006.
  • Onshore petroleum licensing (I presume this includes fracking).
  • Planning consent for energy projects that generate 350MW or less.
  • Speed limits.
  • Traffic Commissioner functions.
  • Regulation of taxis.
  • Regulation and planning consents in relation to harbours and reserved trust ports.
  • Marine licensing and marine conservation zones.
  • Building regulations with regard "excepted energy buildings" (i.e. power stations, pylons)
  • Regulation of water and sewerage services (as long as it doesn't have a detrimental impact on English supplies)

What other provisions are included?
  • The National Assembly and Welsh Government will be recognised as a permanent part of the UK's constitution – that means neither can be dissolved without the consent of the Welsh electorate.
  • It's formally recognised that the UK Government cannot legislate on matters devolved to Wales without the permission of the National Assembly.
  • The Presiding Officer/Llywydd will submit Bills approved by the Assembly for Royal Assent, not the Clerk to the Assembly.
  • Removes the right of the Welsh Secretary to participate in Assembly proceedings, but also removes an optional responsibility for the Welsh Secretary to consult the Assembly on the UK's legislative programme.
  • Grants Welsh Ministers the power to appoint, or subsequently remove, a member to Ofcom's board - subject to consultation with the Welsh Secretary.

What powers will be reserved to Westminster?

Some reserved powers are obvious, like defence.
Others, like safety at sports grounds and non-energy minerals, seem baffling and hard to explain.
(Pic : Safe Standing Roadshow)

By my reading of the draft Bill, the UK Government haven't created a reserved powers model because it doesn't exclusively state what the Assembly can't do, and there are still lengthy lists of exceptions. They've actually created an even more confusing hybrid between the existing conferred powers model, and a copy and paste of the Scotland Act 1998's reserved powers.

The list of powers to be reserved by Westminster (in Schedule 1 of the draft Bill) are quite extensive and run over tens of pages, but can be broadly categorised as I've done so below. Remember, this is listing all the things Wales can't do.
All those powers currently devolved to Scotland, or not specifically included as reserved powers in the Scotland Act, are marked with a saltire :

Similarly, powers devolved to Northern Ireland are marked with an Ulster Banner :

Law & Constitution
  • The Constitution – including honours, elections to the UK Parliament and of Police & Crime Commissioners (PCCs)
  • Courts, tribunals, judges, civil & criminal procedure, private law and judicial reviews
  • Legal aid and the legal profession
  • Offender management
  • Family law – except adoptions
  • Civil registration , registration and funding of political parties
  • The Civil Service
  • The Crown Estate (Independence Minutiae : The Crown Estate)

The Economy

Foreign & Home Affairs

Energy & Utilities
  • Water – unless wholly within Wales or powers devolved under the Act
  • Non-energy minerals (i.e. precious metals such as gold, silver, rare-earth elements)
  • Generation, transmission and supply of electricity
  • Coal, oil & gas – except powers devolved in the Act - as well as nuclear energy.
  • Deep sea bed mining

  • Road traffic regulations, driver licensing, traffic signs, car tax etc – except powers devolved in the Act.
  • Railway services and railway heritage – except funding related to the Wales & Borders franchise
  • Maritime transport and maritime safety
  • Regulation of air transport

Employment & Welfare
  • Social security, child support, occupational & personal pensions
  • Public sector compensation
  • Armed forces compensation
  • Regulation/registration of professions
  • Employment and industrial relations (AMs take swipe at Trade Union Bill)
  • Job search and support – except education, vocational training and careers services
  • Health & Safety
  • Safety at sports grounds (National Assembly stands up for safe standing)
  • Gender recognition
  • Equal opportunities
  • Teachers pay and conditions


The Civil & Criminal Law Issue
This will determine whether the UK Government are attempting to overturn the 2011 referendum or not, and the focus falls on Schedule 2 of the draft Bill.

The draft Bill says the Assembly cannot make modifications to, or regulations modifying, criminal law unless it's "ancillary to a provision made....that has a devolved purpose" or "has no greater effect on the general application of criminal law than is necessary to give effect to that provision".

"Devolved purpose" is defined as anything that isn't related to a reserved matter.

Civil and criminal law, in itself, hasn't been reserved as far as I can tell. What Whitehall have done is even sneakier.

They've included a "test of necessity" as described in legalese above. Basically, it means if the UK Government decides that criminal and civil penalties aren't a necessary part of a Welsh law, or if a proposed Welsh law extends beyond Wales in order to function (covering areas subject to the EnglandandWales legal jurisdiction), they'll have a power to block it. That doesn't happen now.

In effect it gives English Ministers a veto on Welsh laws
, and would've meant several laws which have already been passed by the Assembly probably wouldn't have without the expressed permission of Whitehall. It also, in effect, overturns Supreme Court judgements on Welsh laws.

If the UK Government tried the same trick with Scotland, a second referendum would be won by the yes campaign with a landslide.

To underline the seriousness, the Assembly's Standing Orders have been suspended and an extraordinary debate will be held on the draft Bill following half term, probably on 3rd November.


Just look at that list of reservations, then compare to the list of powers set to be devolved. Anyone who thinks Wales is "edging close to independence" has probably taken too many blows to the head.

I honestly couldn't give a fiddler's fart what the Assembly calls itself, while there's never going to be a consensus on changing the electoral system. So a massive chunk of these new powers verge on useless – but at least they're there, I suppose. The biggest inclusions relate to energy, traffic, speed limits and sewerage.

Policing would've been nice (What's all this then?), and I suspect that'll be the next bone of contention, because we'll be back here again in 5-10 years time. This hasn't put a lid on anything.

As their report moves to gather dust on a shelf alongside Richards, Holtham and Williams, Paul Silk and his eponymous Commission deserve a note of thanks. To them I say, "Good effort everyone, but none of them bloody listened". I'll raise a glass to you.

In turn, with mighty policy levers over sewerage set to come, we should honour it by raising a pint of warm piss to our politicians. Where would Wales be without you?


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