The Coming Constitutional Crisis

Just when you thought the issue of Wales' law-making powers had been settled....
(Pic : The Guardian)

The next Wales Bill is due to be introduced this autumn and will, as announced earlier this year (A St Davids Day Deposit), include additional powers for the National Assembly.

Last Thursday, the Wales Governance Centre and University College London published a timely report into the proposals, specifically focusing on the reserved powers model. In shorthand, a reserved powers model would list what the National Assembly can't do ("reserved powers") as opposed to outlining in minute detail what it can do – which is how powers are devolved to Wales currently.

It's believed a reserved powers model would make the Welsh devolution clearer and easier to understand, would reduce the chances of Welsh laws being referred to the UK Supreme Court and would give devolution greater permanence by bringing Wales into line with Scotland and Northern Ireland.

Unfortunately, what's been put on the table could seriously damage Welsh devolution. You can read the report in full for yourselves here (pdf), but I'm going to cover three key sections of the report.

What powers should be reserved to Westminster?

There's an acceptance power needs to be retained by Westminster, but the UK Government have proposed
reserving powers for no justifiable reason other than they control it already - such as safety at sports grounds.
(Pic : safestandingroadshow.co.uk)

Ideas on what powers should reside where will change from time to time and is complicated by the historic legacy of Wales' relationship with England (Wales was forced into the Union through annexation, Scotland freely joined the Union as a separate nation, Northern Ireland is somewhere in between) which makes discussions on the constitution notably different from those surrounding other parts of the UK.

Another problem is that decisions on what powers should reside where have been based on compromises between individual political parties - each with their own conflicting beliefs and priorities - not "what works".

Despite this, the report acknowledges that for the Union to work, some power has to be retained by the centre – defence, foreign policy, energy markets and currency are given as examples. This is rendered even more complicated by the fact the UK Parliament and Government are responsible both for UK-wide matters, as well as matters exclusively relating to England (or in some cases EnglandandWales).

Schedule 5 of the Scotland Act 1998 could be used as a template for a Welsh reserved powers model. A key difference would be that in Wales' case, criminal justice and policing would be reserved, despite its devolution being recommended by the Silk Commission, and Assembly support for the devolution of policing (What's all this then?).

Unfortunately, the indicative list of reserved powers in the UK Government's command paper lists a number of policy areas which would be reserved to Westminster but not entirely linked to criminal justice – like the sale of student loans, safety at sports grounds (National Assembly stands up for safe standing) and alcohol licensing.

These are areas over which Whitehall departments "want to retain in control of", regardless of whether that would be in the spirit of devolution.

In short, based on what's currently on the table, the UK Government are attempting to severely limit, and in some cases take away, powers from the National Assembly - which are currently devolved to Scotland and Northern Ireland - for no justifiable reason.

The Reservation of Civil and Criminal Law

UK Government proposals, as they are, would "hamstring" the Assembly
and probably prevent them passing laws at all.
(Pic : Welsh Government via BBC Wales)

• See also : Assembly Requests "Clear and Durable" Devolution Settlement

This is one of the key problems emerging from the process. It might not sound particularly important, but it could fundamentally alter Welsh devolution, perhaps even inadvertently destroy it.

Although, as said, criminal justice is non-devolved and Wales is part of the same legal jurisdiction as England, the Assembly has the power to pass civil as well as criminal laws in devolved areas (like creating new offences in order to enforce laws on health, the environment etc.).

In 2011, voters gave the National Assembly law-making powers in 20 devolved areas without having to seek permission from Westminster first.

The command paper proposes that both criminal and civil law procedure be reserved to Westminster. It may, as the report says, "weaken the effectiveness of the Assembly as a legislature and might even make it unable to exercise its functions".

The report lists five possible options to deal with the situation :

1. Devolve criminal and civil law without establishing a Welsh legal jurisdiction.
2. Devolve criminal and civil law and establish a Welsh legal jurisdiction.
3. Reserve criminal and civil law (which is what appears to be proposed).
4. Reserve criminal and civil law, but allow the Assembly to pass such laws with UK consent.
5. Status quo; the Assembly wouldn't be able to pass stand-alone civil or criminal laws (i.e. laws relating to murder, rape, theft), but would be able to in relation to pieces of legislation in devolved areas.

Options 1 and 2 would, it's claimed, require political considerations over whether English and Welsh law should even be allowed to diverge. Doing it without creating a legal jurisdiction may lead to Welsh laws applying in England which people might not be aware of; creating a legal jurisdiction would almost certainly require the devolution of the criminal justice system and separate courts etc. Only nationalists support the latter, while - as mentioned earlier - other parties support the devolution of policing at least.

Option 3 – which is what's currently on the table – would result in a "severely hamstrung Assembly". The UK Parliament would have to make criminal and civil laws on Wales' behalf in policy areas where, currently, the Assembly would be able to. Westminster would have neither the time or manpower to do so, resulting in a "flawed governance overall". In essence, it would go beyond overturning the 2011 referendum and actively take away most, if not all, law-making powers from the Assembly.

Option 4 is based on Northern Ireland, where the Northern Irish Assembly has to get permission from the Secretary of State to legislate in any area which "deals with a reserved matter". This would, in effect, mean a partial return of the LCO system Wales rejected in 2011.

Option 5 is what we have now, but the report says it would be "difficult, if not impossible" to draft the legislation that would be required. It would also mean a reserved powers model wouldn't function as intended as thelegal minefield which politicians are keen to eliminate would still exist.

A Welsh legal jurisdiction

• See also : Creating a Welsh legal jurisdiction

It's unusual for common law territories to have their own laws without their own legal jurisdiction, which makes Wales unique in the world. For political reasons – namely Labour's opposition to devolution of criminal justice and the courts system and Conservative opposition to devolution of criminal justice, courts and policing - creating a Welsh legal jurisdiction has been taken off the table.

If a Welsh legal jurisdiction were created, Welsh law (laws passed by the National Assembly in devolved areas) would only apply in Wales, and any cases relating to Welsh law would be heard in Welsh courts – in line with Scotland and Northern Ireland. The Welsh Government aren't opposed to this in principle, and accept that it would need to be done in the longer-term, but they're concerned about the costs involved.

A Welsh legal jurisdiction needn't be completely separate to England either, more two equal parts of the same sum. This means judges and officers of the court would still be able to apply English or Welsh law depending on the circumstances, as long as it's made clear in legislation which cases Welsh law would be exclusively applicable to.

What Next?

As we've learned through experience, when it comes to dealing with Tories (or, previously, Labour)
on devolution, always check the small print. It's a bit rich of them to complain when our academics do so.
(Pic : BBC Wales)

It was pleasantly surprising that the report got relatively wide coverage in the Welsh media, including BBC Wales, Prof. Alan Trench, The Western Mail's David Deans, Pedryn Drycin and John Dixon at Borthlas.

As BBC Wales' Vaughan Roderick explained, the current system is hamstrung to a certain extent by the fact England and Wales share a legal jurisdiction despite having separate laws – what I've dubbed EnglandandWales.

This can be useful because it means both UK and Welsh governments can work together to introduce certain laws and regulations. This could include a scenario given in the report where the Assembly pass a law banning the slaughter of animals in Welsh abattoirs who've been exposed to a certain substance, and want that ban to apply to English farmers who use Welsh abattoirs.

The down side is that when the Welsh Government wants to make law in an area that's already devolved to Wales, it's being passed as EnglandandWales law. The UK Parliament has ultimate primacy in EnglandandWales, and because Wales' powers are outlined line-by-line, it's often too easy to challenge Welsh law in devolved areas – as we've seen several times during the Fourth Assembly.

This doesn't happen (as often) in Scotland and Northern Ireland because they have their own legal jurisdictions, meaning laws passed in devolved areas apply only to Scotland and Northern Ireland as each have their own criminal and civil justice systems. That's much clearer and easier to understand when it's accompanied by a reserved powers model....but that's not what's currently on the table for Wales despite promises that it would be.

Creating a Welsh legal jurisdiction perhaps sounds easier on paper than it would be in practice. As the report says, decoupling the legal jurisdiction from the criminal justice system would be difficult to do.

What should've happened, of course, is that a Welsh legal jurisdiction – with or without the devolution of criminal justice - should've been established before Wales gained any significant law-making powers. Send your thanks to Peter Hain.

Stephen Crabb's made good noises as Welsh Secretary so far, but his rebuttal to complaints about what's current on the table was a load of waffle about academic debates and preventing independence - as if that's his sole right in the first place. He could be on the brink of doing something so destructive to Welsh devolution he may help critically damage the very Union he's keen to protect.

A separate Welsh legal jurisdiction - which in my opinion is now a necessity, not an optional extra - would, at most, result in a form of federalism that's commonplace around the world and has long been an accepted part of the UK's constitution with regard Scotland. So why Stephen's so anxious about Welsh independence when nobody else seems to be is anyone's guess.

Although support for Welsh independence is small and erratic, as Borthlas hinted, there's no greater gift to nationalists than a blindly-committed unionist. I'm not the only nationalist who's content to sit back and let unionists do the heavy lifting for us.

It's highly likely that - if things remain as they're proposed in the command paper - when the UK Government asks for the Assembly's approval to pass the new Wales Bill, the Assembly will reject it. If that happens and neither side budge on their positions, we'll have a constitutional crisis on our hands.

The Welsh Secretary should pay close attention to what's just happened in Catalonia. Nationalists lose battles, but we move closer to winning the war every single time Westminster fudges devolution, seeks to treat Wales differently to Scotland, or creates a sense of grievance or suspicion amongst influential people who would otherwise be as supportive of the Union as Stephen himself claims to be.