The Draft Wales Bill and the Devil in the Detail

The reserved powers model, the latest system of devolution proposed for Wales, is generally considered to be the best way of delineating power, where the legislature can make laws on any matter except those matters reserved to the UK Parliament. However, as Stephen Crabb, Secretary of State for Wales, acknowledged on Monday 29th February when announcing changes to the Wales Bill, ‘the devil is in the delivery of the detail’. The clarity and workability of the model depends on its design, the tests for competence and the list of reservations.

Some aspects of the original Bill were welcomed from the start by followers of Welsh devolution. For example, the Draft Bill provided that the Assembly would be a permanent institution and put the convention that the UK Parliament should not legislate on devolved matters without the Assembly’s consent on a statutory footing. It also transferred more powers to Cardiff Bay, including powers over Assembly elections.

However, the list of reserved powers in the Draft Wales Bill as first introduced contained over 200 matters. This was seen as a ‘roll-back’ of the National Assembly’s powers especially following the decision of the Supreme Court in relation to the Agricultural Sector (Wales) Act where five Justices unanimously held that as long as an Assembly law ‘fairly and realistically’ relates to a devolved matter it does not matter whether it might also be capable of being classified as relating to a subject which has not been devolved.

The Supreme Court held that the competence tests in Part 4 and Schedule 7 to the Government of Wales Act 2006 must be interpreted as intended to create a ‘coherent, stable and workable’ system for the exercise of legislative power by the Assembly. Likewise, the fourth constitutional settlement through the current Draft Wales Bill was intended to be a ‘stronger, clearer and fairer devolution settlement’. However, in introducing a new ten-part legislative competence test, it would most likely to lead to even more debates about what is and is not devolved. In fact, Welsh Government lawyers suggested that around 20 Acts or Measures would have failed to pass this new test.

Critics of the original draft will therefore welcome the Secretary of State’s ‘significant and substantial changes’ to the Wales Bill. With the aim of removing ‘constitutional red tape’, he will work with Whitehall departments to shorten and simplify the list of reserved matters. This process will be rooted in the principle that all reservations in the final Bill must be subject to justification. It remains to be seen whether this will go as far as the Silk Commission’s recommendation that Welsh devolution should be based on the principle of subsidiarity, so that the UK Government should only reserve what cannot be done effectively at a devolved level.

Some of the most controversial details in the Draft Bill were the restrictions on the modification of criminal law and private law. Despite the fact that many existing Assembly laws modify general principles of the law, modification would only be allowed where it had ‘no greater effect otherwise than in relation to Wales than is necessary to give effect to the provision’. According to the UK Government, such restriction was necessary to protect the unified legal system of England and Wales. However, this new test was viewed as yet more roll-back of the Assembly’s powers because under the current conferred powers model a provision may be within devolved competence if it provides for the enforcement of an Assembly provision, or is otherwise appropriate for making Welsh law effective, or is otherwise incidental to, or consequential on, such provision.

In contrast, under the Draft Wales Bill, the Welsh Government would have to consider the effects of all the different legislative options and identify the one with the least effect on the criminal or private law but still makes the legislation effective. However, it is hoped that the final Bill will provide the Assembly with more flexibility as the Secretary of State went further than the Welsh Affairs Committee’s recommendation that the test of necessity should be replaced, and decided to remove the restriction as it applies to the general principles of private and criminal law altogether. It is crucial that the Assembly is able to modify general principles of the law in order to enforce its legislation. This implies that the extent of the necessity test in relation to the criminal and private law was never essential to safeguard the unified jurisdiction as was originally suggested.

However, a form of necessity test will most likely still apply in the final Bill, such as when the Assembly may need to legislate otherwise than in relation to Wales or to modify the law on reserved matters. The latter situation would be consistent with the test in the Scotland Act 1998. However, the first test would be novel to Wales due to the unified jurisdiction where laws made by the Assembly currently have to extend to England and Wales.

The necessity test was not the only detail likely to cause problems to be removed by the Secretary of State. He also announced that he will remove the restriction that the Assembly needs the consent of the UK Government to legislate on Minister of the Crown functions in devolved areas which existed before the 2011 referendum. This restriction under Part 4 of the Government of Wales Act 2006 currently creates great uncertainty as to the boundaries of the Assembly’s legislative powers. The problem is that these powers are very difficult to ascertain due to them not being defined or listed anywhere. Determining the full extent of all powers of UK Ministers of the Crown would involve a detailed trawl through all UK legislation prior to May 2011 to identify the relevant functions. In Scotland on the other hand there is a general transfer of existing Minister of the Crown functions in devolved areas.

As with the removal of the necessity test, the Assembly will hopefully enjoy more flexibility in legislating without this restriction. However, more detail is required on how this will be achieved as there seems to be a gulf between the Scottish approach and the proposal by the Wales Office of looking at each function ‘with a view to devolving as many as possible’. This implies a much more specific and detailed approach rather than a general devolution of functions as in Scotland. However, it will be good to see the detail of how the Wales Office will propose to deliver this devolution of functions.

There is no change in the Wales Office position against a separate, or distinct, jurisdiction for Wales. However, there is recognition of the need to look at justice in Wales in light of the growing divergences in some areas of Welsh law. A working group will be established between the Ministry of Justice, the Welsh Government and the Lord Chief Justice’s Office to consider what ‘distinct arrangements are required’ to recognise the needs of Wales within the current jurisdiction.

This is a significant step from the St David’s Day announcement which did not really consider justice in much detail. In fact, it may be argued that it is a return to the Silk Commission recommendation of reviewing the devolution of justice matters within the next decade. The Lord Chief Justice has been vocal of the need for a ‘dedicated justice function’ which would ‘enable legislation to operate effectively’ in Wales. Administrative developments since devolution, such as unifying the Wales circuit and establishing the administrative court in Cardiff, mean that this work has already commenced to some degree under the umbrella of the current legal system. It is hoped that the working group will have the remit to provide a structure and plan of how this could be taken forward.

The detail of the delivery of a reserved powers model for Wales is still somewhat unknown and very much at the mercy of Whitehall departments until we see the next version of the Bill. However, the Secretary of State’s willingness to pause in order to ‘devolve more powers and remove constitutional and legal red tape’ is certainly encouraging.