Assembly Requests "Clear & Durable" Devolution Settlement

When the Prime Minister and that-other-bloke-who-used-to-be-important
announced their response to Silk II, it looked like we were due constitutional clarity.
So far it's still a bit cloudy.
(Pic : The Guardian)

The Assembly's Constitutional and Legislative Affairs Committee recently reported back on a short inquiry they undertook into the future of devolved powers. This was done in light of Silk Commission Part II, the fallout from 2014's Scottish independence referendum, St David's Day Agreement and the forthcoming Wales Bill – expected to be introduced in the autumn.

The Committee say in their introduction that "there is a desire for a lasting settlement that will not need to be extensively revisited in the short term" adding that it's "perhaps telling when a constitutional academic says that too much time is being spent on the constitution". So even AMs are getting fed up with constitutional issues now.

The report is just 10 pages long so it's not a lengthy tome (pdf) - though it's definitely one for the anoraks.

The Committee made 6 recommendations :

• The UK Government should set a clear timetable for the Wales Bill; the timetable should enable the UK Parliament and National Assembly to scrutinise both the draft and final Bill.
• The National Assembly should ensure there's committee capacity to scrutinise the draft and final Bill.
• In drafting the new Wales Act, the UK Government should uses the principle of subsidiarity as the starting point.
• The Secretary of State for Wales should endorse the principle that the National Assembly must consent to any changes to the constitutional settlement for Wales.
• The UK Government should ensure the provisions of section 154(2) of the Government of Wales Act 2006 remain in force (explained later).
• The UK Government should place the legislative consent procedure for Wales on a statutory (legally-binding) footing.

Overarching Themes

The First Minister and Presiding Officer of the National Assembly (Llywydd), Rosemary Butler (Lab, Newport West), were said to be pleased by the open approach taken by the Welsh Secretary, Stephen Crabb MP (Con, Preseli Pembs.), particularly when it came to what powers may or may not be reserved. However, they were concerned that Whitehall departments don't understand the current situation and we could end up with "a list of reservations longer than the current list of exemptions" – in effect, taking powers away from Wales (more from Pedryn Drycin).

Emyr Lewis – a constitutional lawyer from Blake Morgan LLP – told the Committee that events across the UK need to be taken into consideration and there needs to be greater focus on the role of the Union as a whole, not the role of its respective parts; describing the current situation as "looking through the wrong end of a telescope".

The Committee also add that English Votes for English Laws proposals were introduced whilst their inquiry was ongoing. They acknowledge it may have an impact on the Assembly and so will consider looking at it in its own right at another time.

The body of the inquiry itself focused on three main areas :

1. Reserved Powers

There's widespread backing across the Bay Bubble for a reserved powers model,
but what's currently on the table could actually take powers away from Wales.
(Pic : Gofal)

There was widespread welcome for the introduction of a reserved powers model (a constitutional settlement which outlines what the National Assembly can't do as opposed to the current system where powers are explicitly devolved line-by-line).

The First Minister said he expects the list of reserved powers to be "short" (as it is in Scotland) and not so broad as to effectively hamstring the Assembly's ability to legislate in a devolved area. The Llywydd added that there needs to be a system of subsidiarity, meaning the "UK Government.... should only reserve matters that cannot effectively be devolved at national level". That presumably includes matters like defence and foreign affairs.

The Committee argue that unless the reserved powers model meets three criteria : clarity, simplicity and workability, it can't work at all. They were concerned the lists of reserved powers being drafted by individual Whitehall departments would completely undermine these criteria and not result in an "enduring settlement" (because a lengthy list of reserved powers would be as unclear as the current Schedule 7).

In Annex B of the St David's Day Agreement (pdf - p57), the UK Government set out a lengthy illustrative list of future reserved powers. All of the witnesses were concerned, the First Minister saying :

“…if all these reservations were put into place, we would be in a position that was where we were pre-1999, and even pre-Welsh Office. For example, if you reserve civil law and procedure and criminal law and procedure, you can pass no laws here. It would mean that we would be so restricted, it would effectively destroy the 2011 referendum result."

It was also argued that the National Assembly should give its consent to any future Wales Bill, so if the final reserved powers were similar to Annex B, the Assembly could effectively veto it.

Glasgow University's Prof. Adam Tomkins stressed the importance of Section 154(2) of the Government of Wales Act 2006 which means courts have to read Welsh legislation as narrowly as possible with a presumption that the issues involved are devolved. This means Bills which might cross into non-devolved areas – like the Agricultural Wages Act 2013 – aren't invalidated. Therefore, any Wales Bill has to include a similar section.

2. Permanence of the National Assembly

Reflecting recommendations by the Smith Commission in Scotland, the National Assembly is to become a permanent part of the UK's constitution, meaning it can never be disestablished at the whim of the UK Parliament.

That's currently said to be a "political reality" anyway - the First Minister saying it would be "nigh on impossible" to disestablish the National Assembly without the consent of Welsh voters - but enshrining it in law will make it legally significant.

However, it's argued the legal effect of such a clause would be "limited" – though they don't expand further (I presume they mean the concept of parliamentary sovereignty : anything Westminster says or does, goes regardless).

3. Legislative Consent Procedures

The UK Government currently has to ask permission to legislate in a devolved area
- this procedure is due to be enshrined in law.
(Pic : BBC Democracy Live)

The current legislative consent procedure in Wales (where the UK Government asks for the Assembly's permission to legislate in a devolved area) is based on a memorandum of understanding. The Wales Bill will enshrine it in law. It would have no real legal effect (due to parliamentary sovereignty) but would, like institutional permanence, reflect the political reality.

The Committee hopes reserved powers would lead to greater clarity, but they were interested in how disputes over competence would be addressed in future. The First Minister and Llywydd called for a "level playing field" – so they can contend whether the UK has a right to legislate in a devolved area - especially if English Votes for English Laws is approved (in EnglandandWales matters like policing).

Prof. Tomkins suggested a dispute resolution system backed by an independent arms-length body. The Committee say, however, disputes are best resolved between governments.

The Last Constitutional Discussion?

The confusing situation with regard criminal and civil law is just one
area where a reserved powers model needs to get things right.
(Pic : unlockthelaw.co.uk)

Don't bet on it, but if the future Wales Bill is satisfactory this is probably the penultimate one.

Barring an upsurge in support for independence, the last constitutional discussion will probably revolve around the devolution of criminal justice/creating a Welsh legal jurisdiction. Once criminal justice is devolved in line with Scotland I'd imagine all but hard nationalists will draw a line on constitutional change.

Everything the Committee has said is right – we need a clearer devolution settlement.

The proposed introduction of reserved powers shouldn't be used as an excuse to simply "mirror"  Schedule 7 of GoW Act 2006 by turning current exemptions into reservations (if you see what I mean). That sounds like what the UK Government are attempting to do. Reserved powers have to be broad and be restricted to policy areas that can be exclusively run from London or the situation will be just as confusing as it is now.

One area that needs clearing up is the issue of criminal law.

I've made the mistake myself of thinking the National Assembly can't pass criminal laws – they actually can within devolved areas in order to create new criminal or civil penalties, like fines. They wouldn't be able to pass a law on, for argument's sake, murder or euthanasia, while in Scotland they can because the whole criminal justice system is devolved.

Yet despite this, because of the misconception on what criminal law is (exclusively dealing with indictable crimes), the UK Government have included it as a reserved power. Add the fact they've also included a reserved power on civil law it technically means - if the list of reserved powers in Annex B makes it into the Wales Bill - the National Assembly wouldn't be able to pass any laws at all, something the First Minister told the Committee.

So there's some significant work left to do.