Manon George and Huw Pritchard offer their take on the new Wales Bill.
On the same day as the Queen officially opened the fifth National Assembly for Wales, the Wales Bill was introduced at the House of Commons. This is a revised version of the draft published in October 2015 for pre-legislative scrutiny. Following criticism of the workability and clarity of the first draft, the Secretary of State for Wales at the time, Stephen Crabb, announced that ‘significant and substantial changes’ would be made. (Further analysis here).
The Wales Bill modifies the Welsh devolution settlement by moving to a reserved powers model, similar to the Scottish system, where the devolved legislature can make laws on any matter except those specifically reserved to the UK Parliament. However, this is the Wales Office’s second attempt at delivering a ‘stronger, clearer and fairer devolution settlement for Wales that will stand the test of time’. The first Bill was heavily criticised for the lengthy list of reservations, the extension of UK Minister of the Crown consents and the controversial ‘necessity test’.
The much debated necessity test in the draft Bill was viewed as a roll back of the Assembly’s powers. In introducing yet another step in the legislative competence test, the Assembly would only be able to modify the criminal and private law when modification had ‘no greater effect otherwise than in relation to Wales than is necessary to give effect to the provision’, raising concerns that this would lead to more litigation and placing judges in the precarious position of determining what is ‘necessary’.
The Secretary of State listened to these concerns and announced last March that the necessity test would be removed. Honouring this promise, the new Bill has removed this extra hurdle in the legislative process to the extent that it applied to the general principles of private and criminal law. However, the necessity test has not disappeared altogether. It still applies in relation to the law on reserved matters. It provides that Assembly Acts cannot modify the law on reserved matters unless it is ancillary to a provision which is not reserved, but modification cannot go further than is necessary to in order to achieve the devolved objective. We were unlikely to see the disappearance of the necessity test here as Scottish Parliament is also only able to modify the law on reserved matters in consequential or incidental ways, and where ‘necessary’. However, the use of the necessity test in relation to the criminal law and private law could not be justified by reference to Scotland and would have been an unnecessary constraint on the legislative powers of the Assembly. Therefore the removal of this test in these two areas is certainly a positive step forward.
Nonetheless, restrictions still apply in relation to the criminal and private law in the new Wales Bill. The latest version states very clearly that Acts of the Assembly cannot modify the private law unless it is for a purpose that relates to a devolved matter. In other words, the Assembly cannot modify the private law for its own sake; modification can only be for a non‐reserved purpose. But unlike the draft, this is a not roll back of the Assembly’s powers under Part 4 of the Government of Wales Act 2006, instead it recognises that that the Assembly can modify the general principles of law in order to enforce its legislation.
The same principle applies to the criminal law. The Assembly can legislate for offences in relation to devolved matters. However, the new Bill provides that Assembly Acts cannot modify or create offences and defences falling within categories listed in the Bill. The UK Government’s reasoning for this restriction is to ensure that fundamental elements of the criminal law of England and Wales cannot be altered by the Assembly.
However, the remnants of the necessity test in this regard may not be quite dead and buried yet. There is a new clause in the Bill providing for justice impact assessments to be made in relation to Assembly Bills where the potential impact of the Bill’s provisions on the justice system in England and Wales must be stated. When UK legislation proposes to introduce a new offence or civil penalty a justice impact test is routinely conducted by Whitehall. In the Ministry of Justice guidance, policy-makers are encouraged to consider whether the new offence or penalty is ‘necessary and proportional to the harm’. If the Welsh assessment follows similar guidance it may be argued that the necessity test has moved from a statutory to an administrative consideration. There is also concern that although the Bill transfers responsibilities to the National Assembly for its own arrangements it nevertheless makes direct changes to the Assembly’s Standing Orders for this purpose.
The Secretary of State promised a reduction to the list of reserved matters and there is, to a degree, a reduction. This is managed by the removal of some matters and the clearer drafting of the Schedule but there are also some additions since the first draft. As a result, the reduction is not as significant as it may appear but there is clearer alignment with the current powers of the National Assembly with the removal of some matters. There may be other areas where the UK Government will need to concede during the passage of the Bill. However, on this occasion, rather than the number of reservations it is the wider flexibility for the National Assembly to implement those powers that is the main story; the close scrutiny of each reserved matter will wait for another day.
In an unexpected move the new Bill recognises a body of Welsh law as the law made by the National Assembly and Welsh Government. However, its effects are limited as it still forms part of the law of England and Wales. It is also doubtful that this is a correct definition of ‘Welsh law’ as the body of Welsh law is not only laws passed by the National Assembly and Welsh Government but also laws made by the UK Parliament and UK Government which relate to Wales. Therefore, it is a purely symbolic provision. But, recognition may prove significant, with a bit of refinement, if it is used to support the notion of a distinct body of Welsh law.
Connected to that is the issue of a Welsh jurisdiction. The Welsh Government published its own extensive draft for a distinct Welsh jurisdiction, including the future devolution of justice, in its Government and Laws in Wales Draft Bill in March. However, as expected, there is no distinct or separate jurisdiction in the new Wales Bill and the key justice matters are specifically reserved. But this is unlikely to be the end for the jurisdiction debate and matters regarding the administration of justice will need responding to so that the growing body of distinct Welsh law is properly accommodated within the current jurisdiction at least. The accompanying remit of the ‘Justice in Wales Working Group’ will be important for these considerations.
The Welsh Government also proposed in its Government and Laws in Wales Draft Bill that all Minister of the Crown functions within the Assembly’s devolved competence should be transferred to the Welsh Ministers, as is the case in Scotland where legislative and executive functions go hand in hand. But despite promises by the previous Secretary of State, Stephen Crabb, that he would devolve ‘as many as possible’, there is no general transfer of executive functions in devolved areas on Welsh Ministers, only a transfer of common law type powers. However, a new provision allowing Welsh Ministers the automatic right to make regulation implementing EU law within devolved competence without the need for prior designation by the UK Government is likely to be welcomed by the Welsh Government. Likewise, the removal of the restriction that the Assembly needs the consent of the UK Government to legislate on Minister of the Crown functions within devolved competence will not only streamline the legislative process but also prevent Assembly being overridden by UK executive power. However, the Assembly will still need consent to modify or remove functions of Ministers of the Crown exercisable concurrently with or jointly with Welsh Ministers or to confer, impose, modify or remove functions of a ‘reserved authority’. Therefore, there is still a threat of an executive veto from UK Ministers on certain matters.
Whenever this Bill receives Royal Assent, the Assembly will soon be a permanent part of the United Kingdom’s constitutional arrangements, be able to change its name and have powers over rates of income tax without needing a referendum. However the new legislative competence of the Assembly will not come into force until the Secretary of State for Wales decides so it remains to be seen whether the latest instalment in the story of Welsh devolution will ‘set the course for decades’.
Perhaps too kind an analysis.
The recognition of a body of Welsh law would appear to be little more than a sop to those who want proper recognition of the law of Wales as something distinct from the law of England, in the hope that we would be too stupid to recognise it for what it is.
One of the principal problems with Stephen Crabb’s Bill was that it started from the assumption that the joint jurisdiction must be preserved. This starting point ignores the experience of the common law world, but is perpetuated in this Bill.
The list of reservations is still far too long (knives! Street trading!) and this Bill would provide for something very, very far from a plenary legislative competence, subject to reservations necessary and appropriate in the UK.
The matter of reservations seems to fly in the face of the Queen’s Speech in the Assembly, which suggested satisfaction with the competence of the Assembly. Perhaps negotiations in the months (and years?) ahead need greater edge, rather than a willingness to accommodate more process in the guise of checks and balances.