Assembly unites over changes to Draft Wales Bill

*grunt*
(Pic : Wales Online)

In what will probably be the final say AMs will have before the full Wales Bill is introduced in the UK Parliament – presumably in the next few months – and probably the last (serious) discussion on the constitution of the Fourth Assembly, AMs recently debated the recommendations of the Constitutional & Legislative Affairs Committee report on the draft Wales Bill (pdf).

• Silk II : The Wrath of Paul (4.3.14)
• A St David's Day Deposit (2.3.15)
• The Coming Constitutional Crisis (28.9.15)
• Draft Wales Bill (Number Two) (21.10.15)
• Assembly debates draft Wales Bill (5.11.15)

The debate has been described to varying degrees as "unprecedented" and "historic", having dominated plenary proceedings yesterday afternoon.

It was bloody unprecedented alright.

When I was deciding what to cover, I looked at the schedule and presumed the 180 minutes allocated to the debate was a typo. "There's no way they'll get any more than 120 mins/2 hours out of that," I thought, "AMs might be in love with the sound of their own voices, but not that much."

The regrets started when it crossed the three and a half hour mark, and in the end it was over four hours. It's a serious subject that could shape the future of devolution, so for the sake of consistency I had to cover it. However, as much as you can argue that AMs had to stay the course too, an important difference between themselves and me is £54,000 a year plus expenses.

Due to the sheer brutality of sitting through a four hour debate on constitutional minutiae, there's no way in hell I'm going to directly quote everyone – which I'm sure will disappoint you all. For brevity's sake I'll summarise the key relevant points made by AMs with respect each motion after the waffle's taken out; each motion in turn being introduced and explained by the Chair of the Committee, David Melding AM (Con, South Wales Central).

Motion 1 : The National Assembly agrees that the UK Government should commit to a bilingual consolidation of Welsh law.

Contributors : David Melding AM, Suzy Davies AM (Con, South Wales West), Mick Antoniw AM (Lab, Pontypridd), Nick Ramsay AM (Con, Monmouth), Dafydd Elis-Thomas AM (Plaid, Dwyfor Meirionnydd), Kirsty Williams AM (Lib Dem, Brecon & Radnor), First Minister, Simon Thomas AM (Plaid, Mid & West Wales).

• There's an expectation that the final Act will be significantly different from the draft Bill.
• Quality of law is something AMs need to demonstrate to the public, so it needs to be accessible. Good law is easily understood. Democracy should be "educated and participatory"; the public can't participate if they don't understand.
• The way in which exceptions were presented in the Government of Wales Act 2006 was a "howler of the first order".
• There's an advantage in leaving consolidation until later in parliamentary timetable as "time will tell" what the new Wales Act might get right and wrong, giving politicians and legal experts time to test the effect of the new arrangements.
• There was a lack of detailed engagement with the Welsh Government and officials, creating a "legislative Robin Reliant".
• As it's a "last chance saloon" for such a substantive piece of legislation in this Parliament, the Assembly has to question whether the full Bill will be fit for purpose if it doesn't change significantly.
• Westminster "doesn't understand" the meaning of bilingual drafting and legal accuracy.
• Offers of help from the Welsh Government weren't taken up. The Welsh Secretary was warned that the draft Bill might not have the support of the Assembly but these warnings were ignored.
• It's already hard for lawyers in Wales to determine which laws apply where across several different Wales Acts, so the "Welsh constitution" has to be outlined/consolidated in one document.

Motion 2 : The "necessity test" should be removed or replaced with a "test of appropriateness".

Contributors : David Melding AM, Simon Thomas AM, Paul Davies AM (Con, Preseli Pembs.), Mick Antoniw AM, William Powell AM (Lib Dem, Mid & West Wales), Dafydd Elis-Thomas AM, First Minister.

• The Government of Wales Act 2006 intended devolved powers to be exercised in full. The tests in the draft Bill would restrict the Assembly's competence and ability to legislate freely in devolved areas.
• The necessity tests are designed to preserve the single EnglandandWales legal jurisdiction and prevent a divergence between Welsh and English law – even though that's already happening.
• The Assembly should be allowed to legislate in private and criminal law to make devolved functions effective.
• Elected members, not the courts, should determine legislative priorities and retain accountability to the electorate. Legal tests shouldn't be used to hinder the Assembly's abilities.
• The tests would open the door to Crown Ministers deciding whether it was appropriate or not for Wales to legislate despite the yes vote in the 2011 referendum.
• The necessity tests are a "fundamental flaw" in the Bill and Wales Office thinking. They don't even need to be defined in legislation, and the problems of legal interpretations of necessity and appropriateness tests have "kept lawyers in work for decades."
• The Welsh necessity tests are complex and far broader than Scotland's equivalent, where such tests are rarely used – though they have their own legal jurisdiction and fewer reserved powers.
• The situation could've been avoided with proper engagement. It's described as a "red line" as it limits Assembly powers in an unacceptable manner.

Motion 3 : A system of crown minister consents similar to those in the Scotland Act 1998 be put into the Wales Bill.

Contributors : David Melding AM, Gwenda Thomas AM (Lab, Neath), Rhun ap Iorwerth AM (Plaid, Ynys Môn), William Graham AM (Con, South Wales East), Kirsty Williams AM, Dafydd Elis-Thomas AM, First Minister.

• The proposed consent requirements reduce legislative competence because the draft Bill requires Crown consents in areas where they are not currently required. It amounts to an "executive overrule" in areas that are already devolved.
• The Welsh position on Crown consents is "highly irregular", with executive power shared between UK and Welsh Ministers. Wales shouldn't be treated in a different way to the other devolved legislatures.
• All Crown Minister functions in relation to devolved areas should be transferred to Welsh Ministers.
• The proposals create a stricter consent regime than the Government of Wales Act 2006 and limits the ability of the Welsh Government to take executive action.
• Any move by another government to limit the powers of the Assembly is "anti-democratic" because the legislature and its powers were granted with the consent of the people of Wales over several referendums.
• 76% of Bills during the Fourth Assembly could not have been passed freely without ministerial consents if the proposals, as set out in the draft Bill, were enacted.

Coracles : Challenge to the Union?
(Pic : tripulous.com)

Motion 4 : The draft Wales Bill should be amended to reduce the number and extent of reserved powers to that consistent with a mature legislature that's about to gain tax-varying powers.

Contributors : David Melding AM, Jenny Rathbone AM (Lab, Cardiff Central), Angela Burns AM (Con, Carms. W. & S. Pembs.), Llyr Gruffydd AM (Plaid, North Wales), John Griffiths AM (Lab, Newport East), William Powell AM, Alun Davies AM (Lab, Blaenau Gwent), Mick Antoniw AM, First Minister.

• The list of reservations is "clearly too long". The extent of reserved powers should develop from existing devolved areas and be based on a principle of subsidiarity (presumption in favour of powers being held by the smallest/least centralised authority).
• An example's given of large energy schemes, where projects of strategic importance would still be decided outside Wales.
• It's an unworkable set of reservations which would frustrate the Assembly's ability to legislate. It's been drafted by civil servants who are still trying to come to grips with devolution and should've been a collaborative process from the start. People won't be able to understand what the Assembly is responsible for.
• The "lowest common denominator approach" during the process has resulted in the devolution of powers agreed by the Assembly, like policing (What's all this then?), being taken off the table. We should instead challenge what should be reserved to Westminster.
• The reservations are a Whitehall interpretation of where boundaries lie between Westminster and Cardiff Bay; AMs need to be wary of underhand attempts at clawing back powers.
• There's little evidence on any intellectual or philosophical underpinning or consistency within the draft Bill's reserved powers.
• Whitehall departments are coming up with proposals to change the reserved powers that the Wales Office aren't even aware of – an example's given where Whitehall civil servants want to remove coracles and canoes from devolved powers as they count as "shipping".

Motion 5 : The Bill should be amended to include a distinct (not separate) jurisdiction in which Welsh laws only apply to Wales, with appropriate modifications to EnglandandWales law to ensure enforcement. (See also : Creating a Welsh legal jurisdiction).

Contributors : David Melding AM, Mick Antoniw AM, Nick Ramsay AM, Simon Thomas AM, William Powell AM, Alun Davies AM, Dafydd Elis-Thomas AM, First Minister.

• The draft Bill is flawed because it prevents a divergence of the law between England and Wales.
• The creation of a Welsh jurisdiction would be most desired legal model; the Assembly backed a Plaid Cymru motion calling for the establishment of one.
• "Theory needs to catch up with practice"; a distinct jurisdiction would retain a unified court system between EnglandandWales, with the Supreme Court remaining arbiter. It would recognise the existence of a distinct body of Welsh law.
• The creation of a Welsh jurisdiction is a separate issue from the court system. All it requires is any matter of Welsh law coming before the courts being identified as such and heard under a Welsh jurisdiction.
• The issue has to be thought about seriously because there may be consequences as a result of a separate jurisdiction, even if it would be "bizarre" for English and Welsh law not to diverge.
• Applying selective bits and pieces of a legal jurisdiction causes confusion – an example's given of laws and regulations regarding self-build properties, which were passed as EnglandandWales law in Westminster but yet don't apply in Wales.
• These debates will continue without some sort of Welsh jurisdiction. It'll become another "messy compromise".
• The draft Bill "reserves the law" and confers powers from that reservation. The preservation of a single jurisdiction is one of the man reasons the draft Bill is flawed.
• EnglandandWales is the only jurisdiction in the world where two legislatures pass laws in the same policy areas – this can't work in the long-term.
• A separate jurisdiction with a shared court system isn't a radical suggestion – it happens all over the world in places with "porous borders", like Northern Ireland and the Republic of Ireland and individual US states.
• A unified court system would still enable cross-border legal working because Wales and England would remain common law jurisdictions.

All of the motions were approved unanimously.

I don't want to see or hear any whinging – from AMs or anyone else involved – that nobody paid attention to their "historic debate". I won't provide any additional commentary. Writing anything at all was work enough; here's your enthusiasm, Bethan.

AMs made their point, I just wish they didn't make the same points over and over again....

As an additional bonus - not related to the above - Bridgend Council have started to webcast council meetings (Camera Shy), which will be available on this website. There's a recording of January's Planning Committee (from 7th January) up on there and they (attempted to) webcast the Partnership and Governance Scrutiny Committee earlier today but it didn't seem to work.

I'm going to return to the Planning Committee meeting early next week and there'll hopefully be more important meetings webcast over the coming weeks as the budget is put before councillors.