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| (Pic : BBC Wales) |
The Committee's Overall Observations
Previous incarnations of the Wales Bill have prompted criticism from various voices in Welsh civic society – including AMs, this blog as well as the the Fourth Assembly's CLA Committee; Phil Davies at Pedryn Drycin has also been critical and there's more from him on that here.
Most of the controversy stemmed over the "necessity tests" which would've been applied to all Welsh laws, even in areas that are devolved. In short, the necessity tests would've had to have been used by Welsh Ministers to determine if the law was "needed" for a devolved purpose. That's been changed as I'll return to shortly.
The Committee's assessment of new draft of the Wales Bill was blunt: a "complex and inaccessible piece of constitutional law" that won't deliver a lasting devolution settlement.
There were, however, parts of the new draft the Committee approved of, including: permanence of the National Assembly, the principle of reserved powers and devolution of Assembly electoral arrangements.
The Committee also welcomed some of the changes made to the new draft, such as the replacement of the necessity tests and the ability to modify or remove UK ministerial functions without consent in devolved areas.
Despite all this, the Committee still thinks the Bill needs a number of changes. They warn against the intentional or unintentional rolling back of the Assembly's powers through poor legislative drafting. They also believe the UK Government have missed the opportunity to create a lasting devolution settlement and might partly overturn the 2011 referendum result. What's on the table might even make things more complicated and fails to set any ambition or aspirations for Wales' place within the UK Constitution.
The Committee would've preferred a settlement in line with Scotland and Northern Ireland, but Whitehall has flatly failed to deliver that at present. Much of this complexity has come about as a result of a determination by the UK Government to preserve the EnglandandWales legal jurisdiction – and having two legislatures in a single legal jurisdiction is unique in the world, and not necessarily in a good way.
The number of reserved matters is also larger than expected, and will "create an unnecessary and inefficient bureaucracy within Welsh Government and Whitehall departments" – which flies in the face of UK Government commitments to "cutting red tape". The Llywydd, Elin Jones AM (Plaid, Ceredigion), told the Committee her role in determining whether Bills are within devolved competences will become much harder.
The Committee's Proposed Amendments & Outlook
- There should be a recognition that Welsh law isn't solely made by the National Assembly, but also Westminster, the courts and – for the time being – the EU Parliament.
- The circumstances in which the UK Parliament can pass laws in devolved areas without the Assembly's consent should be more explicit, mainly when it involves imminent threats to national security and/or are time sensitive.
- Reserved powers should be simplified in a manner similar to that in the Welsh Government's draft Government and Laws in Wales Bill.
- The Assembly should retain all its current powers to legislate in devolved matters. For example, this will mean the Assembly would still be able to pass a smacking ban law under its children's rights powers even if criminal justice is explicitly reserved.
- Remove pre-legislative tests on laws relating to devolved matters, but whilst restricting the Assembly's ability to modify criminal laws unless it's in relation to a devolved area (as currently).
- Legislative and executive competence should be aligned – Welsh Ministers should be responsible for devolved areas; UK Government Ministers should be responsible for reserved areas. As it is, UK Government Ministers still retain some residual executive functions in devolved areas. An example's given of speed limits being devolved, but the power to modify criminal offences relating to speed limits being non-devolved.
- If a UK Secretary of State uses their powers to amend an Act of the Assembly then they must have the permission of the Assembly and UK Parliament to do so; similarly for regulations/secondary legislation.
- Give permission to the National Assembly to consolidate devolution statutes to create a single constitutional document for Wales.
The Committee took evidence from witnesses, one of whom – Prof. Thomas Glyn Watkin – believing the current Wales Bill will last no longer than any of the previous ones. The Committee agree and even suggest the issue will have to be returned to "sooner rather than later", in particular the legal jurisdiction.
They believe the whole process has been flawed, and the UK Government have been neither open or transparent, describing it as being characterised by a "Whitehall-driven process and tight control by the UK Government which has locked out any criticism".
Conclusions
The report contained some of the strongest condemnatory language I've seen come out of a committee.
I don't think the Committee are saying, "rip it up and start again"; however I suspect they, the Assembly as a whole and the Welsh Government are beginning to think it's perhaps better this Bill falls or goes back for another draft instead of having it imposed on us. There's enough time to do so.
I'm coming around to that idea too. It's better to be stuck with a slightly crappy system than end up with a really crappy system.
The "carrot" of having control over Assembly elections, sewerage, speed limits and small-scale energy projects simply isn't worth it. The necessity tests and reserved powers model, even after modification, are legal mazes full of mouse traps and, as we persistently see, something that doesn't apply to either Scotland or Northern Ireland.
Even AMs who with all their heart believe in the UK will surely look at this and see that the Welsh will always be played for a dupe, playing catch up and treated as a running joke by Whitehall – something they palm off to the work experience. I can't even muster the enthusiasm to be disappointed anymore.
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