Wales still vulnerable to interference by Whitehall Minsters

The Welsh Government’s first piece of legislation since being given full law making powers has been referred to the Supreme Court by the UK Government’s chief legal adviser, Dominic Grieve over concerns that the Bill stretches beyond the Assembly’s legislative competency.

Despite claims made by the Welsh Government that Wales voted in favour of devolving full law making powers to Wales, a Wales Office source stated that:

“…it’s simply an issue of principle which reflects the devolution settlement. They can’t make any laws which affect British Government Ministers.”

The Local Government Bylaws (Wales) Bill, passed by the Assembly in July 2012, intended to make it easier for local authorities to pass bylaws. The law would make it easier for local authorities to legislate on issues such as ball games, and dog fouling. At the same time, issues of wider importance such as establishing sites of special scientific interest would require Welsh Government approval.

Whilst there remains the possibility that the Bill is illegal, it raises the argument over whether Wales should have its own jurisdiction which would serve to deepen Welsh legislative autonomy. Of course, such a development has been opposed by civil servants for decades.

This argument for a jurisdiction was made by Professor Thomas Watkin, formerly First Welsh Legislative Counsel, the official responsible for drafting the Welsh Government’s legislative programme, in the IWA’s annual lecture at the Eisteddfod last week. This explored the way the devious use of legal arguments has frustrated Welsh legal aspirations in the past. The lecture can be read in Welsh here and in English here.

Professor Watkin argues that the varying definitions of jurisdiction, to mean “a territory which has its own laws”, or “a territory which has its own judicial system”, have been used to block many developments in Wales that have been granted to Scotland. For example the appointment of a Secretary of State for Scotland in 1885, and the delay of over 60 years for a Minister for Welsh Affairs in 1951.

Whilst there is a clear connection between the concept of a jurisdiction and a body of law, granted by the Government of Wales Act 2006, the Welsh Government cannot legislate on the local authority bylaws bill, because it affects the powers of British Government Ministers.

In the lecture Professor Watkin looked back to the 1880s when the argument was made that Wales could not make its own laws because it was not a territory with its own law courts and legal system. Yet at a Speaker’s conference on devolution in 1920, the argument was that it wasn’t possible for Wales to have a separate judicial system from England because Wales did not have its own laws. However, the answer to requests for Welsh law courts forty years later was that it was not possible to have courts because Wales did not have its own laws.

Since then Wales now has its own legislature, and therefore a body of Welsh laws is developing. Yet, as Professor Watkins states, we cannot argue that a small number of laws can justify the creation of an entirely separate judicial system. The question of the number of laws amounts to the same as asking whether a substantial ‘body’ of Welsh laws now exists:

“As a consequence, one can say – as in the 1880s – Wales cannot have its own legislation because Wales is not a jurisdiction, and again, as in 1920, Wales cannot have its own judicial system because Wales is not a jurisdiction.”

However, Professor Watkin says that today calls for a Welsh jurisdiction can be reinforced using constitutional principles:

“The strength of the argument for a separate jurisdiction for Wales is that it can now be based on constitutional and legal principles that have been accepted in the past by the institutions of the United Kingdom … It would be folly therefore, to abandon the solid ground of principle in order to deploy arguments that are open to mockery as vague sentiment, or opposition on the ground of cost or practicality.”

The reason the Westminster Government is able to question the Welsh Government’s modest first step in primary law-making following last year’s referendum is because of the architecture of devolved powers. This entails the detail of the National Assembly’s powers being specified in every case in the legislation. Inevitably this creates a jagged edge in the legislative split between Wales and Westminster, in which the powers of UK Government Ministers can be contravened by Welsh aspirations – as is happening with the current Local Government Bylaws (Wales) Bill.

The way round this is for Wales to adopt the Scottish powers model in which everything is devolved, except specific areas dealing with such matters as defence, foreign affairs and macro-economic policy. Because of this structure the Scottish Parliament has been able to avoid falling foul of UK Ministerial interference.

However, the reason why the Scottish Parliament is able to enjoy this more relaxed form of devolved powers, as laid down in the 1998 Scotland Act, is because it has a distinctive legal system and court structure within its own separate jurisdiction. Until Wales achieves the same status we will have to endure the conferred powers model of devolution, in which our powers are set out in specific detail and so remain vulnerable to interference by UK Ministers.