Assembly needs reserved powers model

Devolution is now the settled will of the people of Wales. But unlike devolution in Scotland, which perhaps sprang into life fully formed, devolution in Wales has been in a process of growth since 1999. It was only with the overwhelming success of the Yes campaign in the 2011 referendum that we finally established the National Assembly for Wales as a legislature, with primary legislative powers. The Assembly can now make laws for Wales in matters such as health, education, transport, the environment, local government – matters which most touch peoples’ lives on a daily basis.

But we have more constitutional change in prospect. The UK Government, in its coalition agreement, committed to a Commission to review the constitutional settlement for Wales. That Commission, under the chairmanship of Paul Silk, has been working diligently and will soon publish its first report.

The Commission’s remit covers two broad areas. First, it has considered fiscal devolution, whether to confer on the Assembly responsibilities to determine rates for specified taxes.  The Commission will report to the UK Government on that very soon, but the two Governments have already agreed that any recommendations on the transfer of taxation powers will go forward only with the consent of the National Assembly. That is a proper recognition of the status of the Assembly within the UK’s constitutional arrangements, and means that fiscal devolution must proceed on the basis of consensus between the UK and the Welsh Governments.

We await a Supreme Court judgement on one particular aspect. It is worth noting that that case was heard in the Supreme Court without the benefit of a Welsh judge on the bench; it is very surprising that the Lord Chief Justice, who is the Lord Chief Justice of Wales as well as of England, was not invited to sit in the Supreme Court to hear this case. Wales is the only part of the UK not formally represented in membership of the Supreme Court. That position that should not be allowed to continue.

Although the National Assembly now has substantial legislative powers, the statutory provisions providing for this differ significantly from those for the Scottish Parliament and the Northern Ireland Assembly. The Scottish Parliament’s powers, for example, are defined in law by what it cannot do; certain matters are ‘reserved’ to Westminster, but the Parliament can legislate in relation to Scotland on anything else. The Welsh Assembly’s powers, on the other hand, are legally defined by what it is permitted to do: legislative competence is conferred on the Assembly in respect only of a range of specified subjects.

In theory, the two approaches ought to be able to produce bodies with equivalent competence. In practice, that has not proved the case, and the method of conferring legislative competence on the Welsh Assembly produces complications. I expect the Silk Commission will receive a lot of evidence about this, with recommendations for change. My Government’s evidence will argue for Welsh devolution to be reformed on the basis of a Reserved Powers model, as Lord Richard recommended in his Report on the powers of the National Assembly as long ago as 2004.