The UK Government's Draft Wales Bill
What is the draft Bill?
The draft Wales Bill was published by the UK Government on the 20 October 2015. The proposed law is the start of a new phase of legislation on devolution in Wales, following the Silk II report and political discussions referred to as the St. David’s Day process.
The draft Bill has also been scrutinised by the House of Commons Welsh Affairs Select Committee. On 9 November 2015 we held a simultaneous meeting with them in the Senedd where evidence was heard from legal experts and academics.
We received 33 pieces of written evidence and took oral evidence throughout November.
The draft Bill provides the Assembly with powers in some new areas. The evidence we received on these proposals were positive, and were welcomed by us:
- providing in law for the Assembly to be permanent,
- the removal of controls over the arrangement of Assembly committees,
- the end of involvement of UK ministers in Assembly proceedings, and
- the transfer of some powers concerning energy, transport and elections.
Tests of competence
Clause 3 of the draft Bill introduces a section to replace the current section 108 Government of Wales Act 2006 provision and sets out limits on the legislative competence of the Assembly (or the Assembly’s ability to pass law). Our report draws conclusions about the tests that are included in clause 3.
The necessity test
The necessity test would restrict the Assembly’s competence (or ability) to make provisions affecting England, or modifying the law on reserved matters, or modifying private or criminal law.
If the Assembly needed to modify these areas of law to give effect or enforce, for example, a legal rule or regulation relating to a devolved subject area like housing or health, it would have to make sure that:
- The modification is necessary for the devolved purpose, and
- Has no greater effect on the general application of the private law than is necessary to give effect to that purpose.
“The choice about whether it is necessary, appropriate or expedient to modify the private or criminal law for a devolved purpose is one properly for the National Assembly, not for the courts, but this new limitation dramatically increases the likelihood of Assembly legislation being challenged in the courts.” - Carwyn Jones AM, First Minister
Minister of the Crown consents
The draft Bill provides that a provision of an Assembly Act cannot remove or change any function of a reserved authority, defined as a Minister of the Crown (UK Minister), UK government departments or other public authorities (other than a Welsh public authority).
In his written evidence the Secretary of State said:
“The Assembly will continue to be able to legislate in devolved areas without the need for any consent. The Assembly will be able to legislate in any area not specified as a reservation in Schedule 1 to the draft Bill and in those areas specified as exceptions to reservations. The Assembly will need the consent of UK Ministers to legislate about reserved bodies. It is surely right that UK Ministers consent when an Assembly Bill imposes functions on reserved bodies, just as Assembly consent is obtained when Parliament legislates in devolved areas.”
Professor Richard Wyn Jones emphasised this point:
“What the business in relation to consent does is give power to the executive, and one of the things that has been characteristic of the devolution process in Wales, in my opinion, is that it’s placed too much power in the hands of the executive at the expense of the legislature. This business about consent—its power to Ministers … power that isn’t accountable.”
However, much of the other evidence received expressed concern that the Assembly’s powers were being “rolled back”.
For example, the Presiding Officer’s written evidence says:
“There is a significant roll back of the Assembly’s powers in the list of reservations. A large number of matters which are not exceptions from the Assembly’s current competence have been made into reserved matters. This is a reversal of the Supreme Court judgement on the Agricultural Sector (Wales) Bill.”
“This loss of competence results from the interplay of two factors. The first is the large number of reservations. The second is the use of the ‘relates to’ test to determine whether provisions fall foul of reservations. Whereas the ‘relates to’ test broadens the scope of the Assembly’s legislative competence under the conferred-powers model, it narrows it under the reserved-powers model. The greater the number of reservations, the greater the narrowing achieved by the test. This also makes the task of those developing policy which may require legislation for its implementation all the more difficult. They will be asked to determine whether anything they wish to do may relate to any one or more of 200+ reserved matters, as opposed to being asked to determine that their proposals relate to any one conferred subject.”
He added that the aim of the draft Bill appears to be to regain ground lost by the UK Government in Supreme Court judgements.
The Committee is concerned that the overall effect of the extensive number of reservations is to reduce the competence of the Assembly to make laws.
The reservations should be based on clearly identified principles. The absence of a principled approach has contributed to the excessive number and complexity of the reservations. We believe that there should be a significant reduction in the number and extent of specific reservations and restrictions.
We believe there is merit in exploring further the concept of a distinct jurisdiction, which would have the benefit of recognising that there is a body of Welsh law that is distinct from English law.
We believe this would help provide greater clarity to the public about the laws to which they are subject.