Next steps in the Welsh devolution process

Wales’s legislative framework should be the same as is the case in both Northern Ireland and Scotland, with a reserved powers model to replace our current ‘conferred powers’ system where all matters devolved to Wales are set out in specific detail in statute. This has led to enormous confusion and difficulty about the precise powers of the National Assembly.

A reserved powers model would simplify and enhance the Welsh devolution process and should be a major recommendation coming from the next phase of the Silk Commission’s work. Under this model everything is devolved except powers specifically reserved to Westminster, such as defence and foreign affairs. It means that there should be no problem over whether an issue was wholly in the power of the National Assembly Wales and would provide greater clarity for legislatures and Governments at both ends of the M4.

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Unlike the Government of Wales Act 2006 which lists specific areas which are within the Assembly’s legislative competence, the Scotland Act 1998 enables the Scottish Parliament to legislate on any issue so long as it is not listed as a reserved matter in Schedule 5 of that Act. A matter therefore not explicitly listed in the Act is implicitly devolved to the Scottish Parliament. Reserved matters include: The Constitution, Foreign affairs, Defence, International development, the Civil Service, Financial and economic matters, National security, Immigration and nationality, misuse of drugs, Trade and Industry, Various aspects of energy regulation (e.g. electricity; coal, oil and gas; nuclear energy), various aspects of transport (e.g. regulation of air services, rail and international shipping), Social security, Employment, Abortion, genetics, surrogacy, medicines, Broadcasting and Equal opportunities.

No exhaustive list of the Scottish Parliament’s legislative powers is therefore available. However the Scottish Government’s website lists the following as ‘devolved issues’: health, education and training, local government, social work, housing, planning, tourism, economic development and financial assistance to industry, some aspects of transport, including the Scottish road network, bus policy and ports and harbours, law and home affairs, including most aspects of criminal and civil law, the prosecution system and the courts, the Police and Fire services, the environment, natural and built heritage, agriculture, forestry and fishing, sport and the arts, statistics, public registers and records.

Additional legislative competence over firearms was devolved to the Scottish Parliament by Section 10 of the Scotland Act 2012 (‘the 2012 Act’) on 3 July 2012. The 2012 Act also devolved the following additional executive powers to Scottish Ministers: The powers to issue addicts licences (i.e. a licence to administer, supply or to authorise the administration or supply of certain controlled drugs to a person addicted to controlled drugs) to doctors acting in Scotland; The power to make regulations in relation to the prescribed alcohol limit which applies when driving in Scotland; The power to determine the level of the Scottish national speed limit and the power to make regulations to specify traffic signs to indicate that limit.

The 2012 Act also enhanced Scotland’s financial and taxation powers by providing the Scottish Parliament with: responsibility for setting a Scottish Rate of Income Tax;

legislative competence over taxation on land transactions and disposals to landfill, along with a mechanism for further devolution of responsibility for taxes in the future; new borrowing powers; and a Scottish cash reserve to manage fluctuations in devolved tax receipts.

In very general terms however, the main legislative powers which are devolved to Scotland but not Wales (other than financial and taxation powers) are the following:

• Police;
• Law and home affairs, including most aspects of criminal and civil law, the prosecution system and the courts; and
• Firearms.

In addition to these legislative powers, the Scottish Ministers also have executive powers in relation to addict’s licences, alcohol limits when driving and the national speed limit, which have not been conferred on Welsh Ministers.  There may be other examples of executive powers which are conferred on Scottish but not Welsh Ministers, however identifying all these areas would not be straightforward.

Powers over energy and renewables are generally non-devolved in both Scotland and Wales. These are set out as exceptions to the Assembly’s powers under Subject 4: Economic Development of Schedule 7 to the 2006 Act, and as exceptions to the Scottish Parliament’s powers in Head D – Energy of Schedule 5 (Reserved Matters) to the Scotland Act 1998.

The legislative powers of the Northern Ireland Assembly are set out in the Northern Ireland Act 1998. The Act states that if a matter does not fall within a description specified in either Schedule 2 (“excepted matters”) or 3 (“reserved matters”) to that Act, it is a devolved matter. This is similar to the framework set out by the Scotland Act 1998 where a matter which is not explicitly listed in that Act is implicitly devolved to the Scottish Parliament.

Section 4 of the Act however allows the Secretary of State to devolve areas listed as “reserved matters” in the Act, provided that a resolution has been passed by the Northern Ireland Assembly.

Reserved matters (i.e. those matters which may be devolved to the Northern Ireland Assembly at a future date) include: Navigation and civil aviation, the foreshore and sea bed, Disqualification from Assembly membership, Consumer safety, and Intellectual property.

Excepted matters include:  Royal succession, International relations, Defence and armed forces, Nationality, immigration and asylum, Taxation across the UK, All elections held in Northern Ireland, Currency, Conferring of honours, International Treaties.

Although no exhaustive list of the legislative powers of the Northern Ireland Assembly therefore exists, an indicative overview of the areas within its competence includes agriculture and rural development, culture and the arts, Economic development, Education and training, environment, health and social services, housing, industry, trade and investment, local government, sport and leisure, tourism, town and country planning, transport and roads, water and flood defence.

Additional legislative powers relating to policing and justice matters were devolved to the Northern Ireland Assembly on 12 April 2010 by The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010.

The ‘reserved powers’ model is very similar to the devolution model in State and regional Governments across Europe, for example in Germany, and Italy, as well as in Scotland and Northern Ireland. In recent weeks the model been supported by both the First Minister and Ieuan Wyn Jones the former Plaid Cymru leader.

This should not need a further referendum but what it would do is clarify fully devolved and non devolved issues otherwise every piece of legislation will be in danger of being referred by the Attorney General to the Supreme Court.

Whilst areas such as Policing should be devolved as soon as possible, for consistency, asking for widespread further devolution at a time of expenditure cuts would only pass further problems on to the Welsh Government. However, when the economic conditions are right then further devolution giving Wales the same legislative powers as Scotland should be undertaken.

I would prefer the Northern Ireland model where items that may be devolved at a future date are listed and I would support a lock so that it would need at least two-thirds of Assembly Members to vote for a competency to become devolved. The first items that I believe should be put in this ‘future devolved’ list are Police, Law and home affairs, including most aspects of criminal and civil law, the prosecution system and the courts, and firearms.

Whilst I am sure many will disagree with the rather short list above I believe we can obtain consensus on creating both a reserved matters model and the creation of a list of competencies that can be devolved to Wales.