1Introduction
Devolution in Wales: the background to the draft Wales Bill
1.The story of devolution in Wales is a story of constitutional fluidity. Since 1997, there have been three pieces of devolution legislation, a move from secondary legislative to primary legislative powers (and within that, a move from one model of primary legislative powers to another). In the space of sixteen years since the first Assembly election, the National Assembly for Wales has been transformed from a body corporate, tasked with passing secondary legislation, to a legislature which, from 2018 onwards, will have the power to levy Stamp duty land tax, landfill tax and the aggregates levy.
2.It is also a story of Commissions. Since the National Assembly began its proceedings in 1999, the governance of Wales has been examined by the Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (Richard Commission)1, the Independent Commission on Funding and Finance for Wales (Holtham Commission)2, the All Wales Convention3, and most recently, the Commission on Devolution in Wales (the Silk Commission)4.
3.The Silk Commission, established by the UK Government in 2011, was tasked with a two-part remit that included reviewing the potential for fiscal devolution to Wales and the broader powers of the National Assembly.5 Its first report, on fiscal devolution, was published in 2012 and led to the Wales Act 2014.6 In March 2014, the second report was published. This proposed moving the basis of the Welsh devolution settlement from a conferred to a reserved powers model and the devolution of further powers to the National Assembly.7 The decision to examine the further devolution of powers, as identified by both the Silk Commission reports, was generally supported by all political parties.
4.On 19 September 2014, the day after the Scottish independence referendum, the Prime Minister announced that, as part of an attempt to arrive at a fair settlement for all four of the UK’s constituent nations, the Government would take forward plans for further devolution in Wales.8 That November the Secretary of State for Wales launched a cross-party process aimed at producing, by St David’s Day 2015, “a set of commitments, agreed by the four main political parties in Wales, on the way forward for Welsh devolution”.9 According to the Secretary of State, these commitments “would form a basis … for taking forward Welsh devolution after the General Election next May”. At the heart of this process was a goal for a “clear, robust and lasting devolution settlement for Wales”.10
5.In February 2015, the fruits of this process were revealed with the publication of the UK Government’s command paper, Powers for a Purpose. The command paper reported a consensus on the Silk Commission’s recommendation that Wales should move from a conferred to a reserved powers model of devolution. In addition, there was consensus on the devolution of the Assembly’s internal procedures, electoral arrangements, energy consents up to 350 MW, and bus and taxi regulation and a range of other recommendations proposed by the Silk Commission. The UK Government also committed itself “to introduce a floor in the level of relative funding it provides to the Welsh Government”. This was “in the expectation” that the Welsh Government and the National Assembly would call a referendum on the partial devolution of income tax.11
6.As intimated by Powers for a Purpose, a key factor in the UK Government’s desire to establish a reserved powers model for Wales has been the impact of the Supreme Court’s ruling on the Agricultural Sector (Wales) Bill.12 The UK Government argued that that ruling undermined the continued operation of the conferred powers model, a model that “was not designed to deliver this level of uncertainty in the devolution boundary”.13 We examine the implications of the Supreme Court decision in more detail in Chapter 2.
7.The Conservative Party’s 2015 General Election Manifesto pledged that, if elected, a Conservative Government would:
- devolve to the National Assembly control over its own affairs;
- implement other recommendations of the second Silk Report where there is all-party support as set out in the St David’s Day Agreement;
- introduce a new Wales Bill if these changes require legislation;
- continue to reserve policing and justice as matters for the UK Parliament;
- introduce a ‘funding floor’ to protect Welsh funding and provide certainty for the Welsh Government to plan for the future; and
- make the Welsh Government responsible for raising more of the money it spends.14
8.Following the return of a majority Conservative Government in the 2015 General Election, the Queen’s Speech on 27 May 2015 announced that a Wales Bill would be brought forward during this Parliamentary session. A draft Wales Bill was published for pre-legislative scrutiny on 20 October 2015.
The Government’s objectives
9.The Secretary of State’s aim, at the outset of the St David’s Day process, was to secure a “clear, robust and lasting devolution settlement for Wales”.15 This draft Bill aims to create greater clarity as to where the devolution boundary lies, bringing to an end the current situation which, according to the Secretary of State, “is entirely silent on huge swathes of policy areas”.16 In the foreword to the draft Bill, he argued that “for too long Welsh politics has been dominated by constitutional debates about what is and is not devolved”.17 He wanted to move away from the “continuous, never-ending constitutional discussion”18, and “ensure that both the UK and Welsh Governments are focussed on delivering a stronger economy, creating jobs and providing the highest quality public services”.19 Overall, the Government’s objective has been to “craft a piece of legislation that is pragmatic, that moves devolution forward … in line with the instincts and appetites of the Welsh people”.20
Our inquiry
10.On 17 September 2015, we announced that we would undertake pre-legislative scrutiny of the draft Wales Bill when it was produced. We invited written evidence in response to the following questions:
(1)Are the Government’s proposals, particularly in respect of the reserved powers model, sound? If not, how could the draft Bill be improved?
(2)Do the provisions of the draft Wales Bill deliver the policy intentions of the UK Government? Could the wording of the draft Bill be improved or changed?21
11.The Government published the draft Wales Bill on 20 October 2015,22 and we began taking oral evidence the following week, hearing from the Secretary of State and Wales Office officials.23 Since this first session, we have held six further evidence sessions on the draft Bill, one of which was a joint session with the National Assembly’s Constitutional and Legislative Affairs Committee.24 We are grateful to that Committee and its Chair, David Melding AM in particular, for agreeing to hold the joint session, and to all the Assembly staff who facilitated our meetings there. We are also grateful to all those who gave oral evidence and submitted written evidence. Our evidence-gathering concluded with a second session with the Secretary of State, on 9 December 2015.25
12.We regret that due to the compressed nature of pre-legislative scrutiny, we were not able to cover all provisions in the draft Bill in detail. Our evidence covered a number of areas, but the three main aspects of the draft Bill that were raised, and on which this Report focuses, are:
- the transition to a reserved powers model;
- the reservation of criminal and private law and the necessity tests; and
- the consenting arrangements.
We deal with each of these three matters in turn in the next three chapters of this Report. In our final chapter we set out some observations on the approach of the Wales Office to the pre-legislative process. Of particular regret is the fact that we were unable to scrutinise the list of policy reservations adequately.
1 Commission on the Powers and Electoral Arrangements of the National Assembly for Wales, Report of the Richard Commission (March 2004)
2 Welsh Government, ‘Holtham Commission reports’, accessed 5 January 2016
4 Commission on Devolution in Wales, ‘Welcome to our Website’, accessed 5 January 2015
5 Sir Paul Silk was named as chair of the Commission. He is a former Clerk to the National Assembly for Wales (NAW), serving from March 2001 until December 2006. The other members of the Commission were Helen Molyneux, Jane Davidson, Trefor Glyn Jones, Esq. CVO CBE, Prof Noel Lloyd CBE, Lord Bourne, Rob Humphreys, Dr Eurfyl ap Gwilym, and for Part 1 only, Sue Essex and Dyfrig John CBE
6 Commission on Devolution in Wales, Empowerment and Responsibility: Financial Powers to Strengthen Wales (November 2012). The Wales Act 2014 devolved responsibility for minor taxes, such as stamp-duty land tax and the landfill tax, and, subject to a referendum, enabled the partial devolution of income tax.
7 Commission on Devolution in Wales, Empowerment and Responsibility: Legislative Powers to Strengthen Wales, March 2014
8 Prime Minister’s Office, Scottish independence referendum: statement by the Prime Minister, 19th September 2014, accessed 15 December 2015
9 Wales Office, Secretary of State for Wales sets out long-term vision on devolution, 17 November 2014, accessed 15 December 2015
10 Wales Office, Secretary of State for Wales sets out long-term vision on devolution, 17 November 2014, accessed 15 December 2015
11 Wales Office, Powers for a Purpose: Towards a lasting devolution settlement in Wales, Cm 9020, p.50
12 In re Agricultural Sector (Wales) Bill [2014] UKSC 43, [2014] 1 WLR 2622
13 Wales Office, Powers for a Purpose: Towards a lasting devolution settlement in Wales, Cm 9020, p.14
14 The Conservative Party Manifesto 2015, pp.70-71
15 Wales Office, Secretary of State for Wales sets out long-term vision on devolution, 17 November 2014, accessed 15 December 2015
16 Q294
17 Wales Office, Powers for a Purpose: Towards a lasting devolution settlement in Wales, Cm 9020, p.4
18 Q2
19 Wales Office, Powers for a Purpose: Towards a lasting devolution settlement in Wales, Cm 9020, p.4
20 Q6
21 Welsh Affairs Select Committee, Pre-legislative scrutiny of the draft Wales Bill, 17 September 2015
© Parliamentary copyright 2015
Prepared 26 February 2016