Back to the drawing board for the draft Wales Bill?

The Secretary of State’s decision to publish a draft Wales Bill (‘draft Bill’) in October for a period of pre-legislative scrutiny was very welcome, offering an opportunity for those not involved in its preparation to comment in advance of the Bill’s formal introduction.

Apart from welcoming certain provisions of the Bill, for example in relation to elections and the internal organisation of the Assembly, reactions to some of the detail of the draft Bill were not positive. It has failed to sustain the consensus that largely surrounded the St David’s Day process.

This is principally because of the roll-back of the Assembly’s legislative competence proposed in the draft Bill. Many of the written submissions we received sought to explain how the Assembly’s legislative competence was being reduced. This included detailed responses from Assembly committees who looked at specific reservations affecting their policy areas.

Our report did not attempt to tinker at the margins of the draft Bill. Instead, and having regard to the principles of subsidiarity, clarity, simplicity and workability that we felt should underpin the settlement, we sought to suggest changes that would deliver the Secretary of State’s aims of a stronger, clearer and fairer devolution settlement for Wales that will stand the test of time.

One approach we suggested was to pause proceedings and use the evidence gathered in scrutinising the draft Bill to prepare a consolidating Bill in close collaboration with key players: the Assembly, Welsh Government, legal practitioners, civic society and the UK Parliament.

Alternatively, should the UK Government proceed with the current timetable, we said that the draft Bill needs to be amended so that the Bill introduced in the UK Parliament contains the following:

• the removal of the necessity test or its replacement by a test based on appropriateness;

• a system for requiring Minister of the Crown consents that reflects the model in the Scotland Act 1998;

• a significant reduction in the number and extent of specific reservations and restrictions;

• a distinct jurisdiction in which Welsh Acts extend only to Wales;

• a system in which Welsh Acts modify England and Wales law as appropriate for reasonable enforcement;

• a clear commitment that a bilingual consolidation be carried out during the current Parliament.

We are heartened by the messages of support we have received for our report, which will now be debated in the Assembly on January 13.

We believe that the changes we propose are essential to enabling a mature, effective and accountable legislature that, through the same Bill, is also to acquire some income tax powers.

Indeed, it would seem a somewhat contradictory approach to provide the Assembly with some responsibility over income tax without the need for a referendum, while imposing so many reservations and restrictions in certain policy areas. Allowing the UK Government, an executive which is unaccountable to the Assembly, to have a veto in certain policy areas that are already devolved not only adds to the contradiction, but is clearly contrary to established constitutional principles.

We note and welcome therefore the Secretary of State’s comment that the draft Bill could change significantly. We also welcome his comments that he wants to work constructively together to get the draft Bill right.  He should aim high and introduce a Bill that clearly bears the stamp “made in Wales”. This requires the return to the consensus that appeared earlier in the process and it offers the prize of an enduring constitutional settlement for Wales.

That is why we believe, whichever approach he chooses to tackle the difficult task he faces, that he should set up a Constitutional Working Group involving key players to produce the lasting, durable constitutional settlement for Wales that its citizens deserve.

The Wales Bill to be introduced into the UK Parliament next year will be of fundamental constitutional importance. However, it will also determine the Assembly’s ability to legislative effectively and efficiently in policy areas such as health and education, areas that, as the Secretary of State rightly identifies, are of considerable concern to people in Wales.

That is why the need for a lasting settlement is paramount so that the Welsh Government and Assembly can move forward and deliver on these important issues. The last thing the Assembly needs is a fourth government of Wales Act so complex and impenetrable that it hinders the delivery of laws aimed at improving the quality of the lives of the people of Wales.