3Reservation of civil and criminal law and the necessity tests
44.The reservation that has absorbed most of our attention during this inquiry has been the restriction on the modification of criminal law and private law80 which is set out in paragraphs 3 and 4 of new Schedule 7B. The UK Government indicates that the purpose of the restriction is to protect the unified legal system of Wales and England.81 Modification is allowed only where the “necessity tests” (see paragraph 53 below) are satisfied. The Secretary of State explained that the emergence of the “necessity tests” was a result of “real deep, dark complexity around how you reserve civil and criminal law while at the same time not impeding Welsh Government from making law fully and effectively in those areas that are devolved”.82
45.The complexities that the Wales Office face were highlighted in the National Assembly’s observation that “provisions that could be said to modify private law or criminal law arise in every Assembly Bill that modifies the rights or obligations of individuals or private bodies”.83 One witness commented that civil and criminal law, “what a lot of people think of as being ‘the law’”, is reserved but “there has to be a margin within which the Assembly can encroach into that to make its laws work”.84
46.The Silk Commission reported that fundamental principles of civil law, and criminal law in its broadest sense, were matters regarded as better exercised on a non-devolved basis,85 and that the “necessary wide public debate” on the desirability of full devolution of criminal and civil law had not yet taken place.86 We received evidence disputing the rationale for reservation: the debate is clearly ongoing.87
Separate or distinct legal jurisdiction
47.A number of witnesses felt creation or formal recognition of a Welsh legal jurisdiction might reduce the complexity required in the draft Bill arising from the restrictions on modifying the criminal and private law.88 In particular, witnesses discussed the possibility of a “distinct” rather than a “separate” jurisdiction.89 We heard this might consist of a unified court system encompassing Wales and England but applying two distinct bodies of law: the law of Wales and the law of England.90 Professor Richard Wyn Jones told us “this is a matter of acknowledging that Welsh law does exist”;91 he described a Welsh jurisdiction as “the constitution catching up with the legislative reality”.92
48.Sir Stephen Laws QC, former First Parliamentary Counsel and a project leader of the Cardiff-UCL report, told the Silk Commission that a separate “extent” of law for Wales (separate bodies of law for Wales and for England) would “tend to suggest the need for separate court systems”, and if not, “one court with two jurisdictions” with “its own added complexity and inefficiencies”.93 Leanne Wood suggested a distinct jurisdiction would lead to “a separate jurisdiction over [a] period of time”.94 The Secretary of State’s view was that “[w]e can have the discussion, and I am, about how we strengthen the delivery of a specific justice function within Wales, taking account of some of the distinctiveness that is emerging with divergence of Welsh law in a number of key areas”.95 The Secretary of State described a distinct jurisdiction as a “red herring” and did not accept that it was “the logical next step” in Welsh devolution.96 He said that starting again with a single jurisdiction for Wales would be to “build in a pretty hard and deep Offa’s Dyke because then you say that Welsh law ends on the border”.97
49.The Silk Commission did not think a separate jurisdiction was a necessary consequence of moving to a reserved powers model: it could be avoided by careful drafting.98 However the Silk Commission did recommend that the Welsh and UK Governments review the case for this within the next ten years.99 We were told that the draft Bill could be workable even without a separate or distinct jurisdiction.100 Comparing the jurisdictions labelled “distinct” and “separate”, Professor Richard Wyn Jones told us there was no cross-party desire to devolve justice “and therefore the concept of creating a separate jurisdiction is a non-starter”, but that he hoped there would be a cross-party desire to look at a distinct jurisdiction as a means of helping to deal with the effect of reserving criminal law and private law.101 The Secretary of State was also of the view that there is no cross-party desire to devolve justice. He told us “the view of the Government is that a single joint jurisdiction across England and Wales, which has served the people of Wales and England very well for centuries, is still the right framework”.102 Furthermore, he said “that in all of the discussions that we had that led up to the St David’s Day announcement, the official Opposition at the time, the Labour Party, was not calling for a separate jurisdiction either”.103 However, he did believe there was a need to discuss how to strengthen the delivery of a specific justice function within Wales, and he told us that discussions with the Lord Chief Justice and the Lord Chancellor had taken place.104
50.An inevitable consequence of the Assembly’s primary legislative powers is that the laws that apply in Wales, and those that apply in England, are diverging. The divergence will increase.105 Hefin Rees QC described a “huge body of law that is developing” and suggested to us that once the Assembly was given primary legislative powers, “the genie was out of the bottle”.106 The Secretary of State too acknowledged there was a growing volume of Welsh-specific law, which in some areas was starting to diverge quite significantly from English law. However, he contended that “the volume of that specific and different law is tiny compared to the overwhelming volume of legislation that caters for England and Wales on a joint basis”.107
51.We recognise that there is a growing body of Welsh law differing from that which applies in England, and that the requirement of the draft Bill to maintain the unified legal jurisdiction of England and Wales has raised a number of complex supplementary issues.
52.Witnesses discussed the advantages of both separate and distinct jurisdictions. The majority of witnesses recommended the creation of a distinct legal jurisdiction, and it is recognised that this would provide a solution to issues associated with the reservation of civil and criminal law and necessity clauses. This proposal has been unanimously supported by the National Assembly of Wales.
53.The term ‘distinct legal jurisdiction’ need not entail establishing a separate legal jurisdiction with a separate system of courts and separate legal professions.
The necessity tests
54.There are four circumstances in the draft Bill where the National Assembly may legislate if it is “necessary” to give effect to the purpose of a competent provision. As a result, the ‘necessity test’ occurs four times, each in a slightly different context and form, permitting the Assembly to legislate:
a)otherwise than in relation to Wales;108
b)to modify the law on reserved matters;109
c)to modify private law;110 or
d)to modify criminal law.111
In each case (except that relating to private law) the Assembly provision must both be ancillary to another—broadly speaking, “competent”—provision, and have no greater effect “than [is] necessary to give effect to” the purpose of the competent provision. The private law can also be modified if “necessary for a devolved purpose” (and of no greater effect than necessary for that purpose) without the modification needing to be ancillary to a competent provision.
The ‘necessity tests’ as applied to modification of criminal law and private law
55.Unease about the necessity tests was widely voiced by witnesses.112 Specific criticisms included that the test to be applied before modifying the criminal law or the private law113 would or could:
a)reduce the Assembly’s legislative zone of competence (criminal and private law are subjects about which GOWA is “silent”);
b)create complexity and/or uncertainty;
c)give ordinary citizens a means by which they might challenge Assembly Acts in everyday court cases; and
d)have a chilling effect on policy development.
56.The Assembly’s Presiding Officer told us the “severe constraints which the draft Bill would place on the Assembly’s use of these key levers [criminal and private law] is a very significant backward step in our status and powers as a legislature”.114 The First Minister told us that the test seemed to imply that the law in devolved areas should only be changed “exceptionally”,115 and that the test ran “the risk of every single bill ending up in the Supreme Court”.116 Additionally, Professor Thomas Glyn Watkin thought the “restrictions that are now being added about private law and criminal law, [are] a further erosion of the [freedom to legislate]”,117 comments which Emyr Lewis echoed.118
57.The Secretary of State disputed the assertion that the necessity test would restrict the Assembly’s competence. He told us that “[t]he idea that somehow the Bill prevents Welsh Government from bringing forward measures to enforce their own legislation and create penalties to enforce their legislation is just not true at all”.119 However, Sue Olley, Legal Adviser, Wales Office, acknowledged that “no greater effect than necessary” was additional to the existing “test of ancillary”.120
58.The Secretary of State explained that the necessity test exists in the Scotland Act 1998121 but accepted “that the application of a necessity test in this draft Bill is different from the Scottish context because as well as applying to reserved areas, it now applies to civil law, criminal law and matters relating to England”.122 Others told us the position in Scotland was different to that envisaged in Wales by the draft Bill.123 Emyr Lewis explained that paragraphs 2 and 3 of Schedule 4 of the Scotland Act 1998 contained similar provision but only in relation to reserved matters, and that the necessity test “operated in Scotland in a very limited context”.124 Sir Paul Silk explained that in Scotland the necessity test was not so important “because the whole area of private law and criminal law is devolved in Scotland … so the necessity test isn’t going to bite in the same way”.125 Professor Thomas Glyn Watkin also noted the chances of encountering the test would be greater in Wales than in Scotland as a result of the greater number of reservations.126
59.We were told by Emyr Lewis that the necessity test itself was “complex”.127 Furthermore, Professor Thomas Glyn Watkin predicted the necessity test “may end up producing … laws that have to steer very carefully around all these restrictions … with the result that complex competence results in highly complex legislation”.128 We were also told that “necessary” was an ambiguous term, and one that was not well understood by lawyers, which is a possible cause for concern.129
60.Some witnesses referred to the possibility of competence being raised as a defence in criminal proceedings.130 Sue Olley suggested such a legal challenge is available now to those charged with a criminal offence and she did not think the risk was any higher with the draft Bill.131 Huw Williams thought there should be a limit on challenges to within “a sensible period”,132 whilst Professor Thomas Glyn Watkin questioned why the citizen should have the right to challenge legislative competence.133 He thought any challenge ought to be “prior to enactment if those who have responsibility for the jurisdiction wish to do so”.134 However, the Secretary of State did not think reducing the ability of citizens to bring a legal challenge to the executive would work, and that the purpose of the Bill was not to eliminate the risk of legal challenge to Welsh policymaking.135
61.A final criticism of the necessity tests was that they set too high a threshold.136 Professor Thomas Glyn Watkin suggested this could result in a possible chilling effect on policy development, as there would almost always be an alternative to modification of the law. Whilst amending the law might be the better choice, it would not be possible to say it was ‘necessary’.137 The Secretary of State did not accept the test could lead to timidity in legislating.138 He questioned how the necessity test could be “both ambiguous and too high”, but said he was “happy to look again at that”.139
62.We challenged our witnesses to provide a more suitable term than “necessary”. Alan Trench did not believe there was an easy substitute for “necessary” which would make the test simpler.140 Huw Williams thought concepts such as “ancillary” and “reasonable” were better understood by lawyers,141 though Emyr Lewis considered “ancillary” to be ambiguous.142 Additionally, the Assembly has produced its own drafting suggestions, which offer a range of options from, at one end, maintaining the current scope of Assembly competence to, at the other, sticking closest to the intention of the draft Bill, but introducing greater clarity.143
63.We note the difficulties caused by the inclusion of “necessity” in the test for legislating to modify criminal or private law, to modify the law on reserved matters or so as to apply beyond Wales. The comparison with Scotland is not sound. In Scotland, “necessity” is used in the context of consequential or incidental modifications of the law on reserved matters but those reserved matters do not include criminal or private law.
64.We conclude that “necessary” is the wrong test. Its application is uncertain but it risks creating too high a threshold for the Assembly to reach before it can legislate.
65.We recommend that the test of “necessity” is replaced. A number of alternatives have been provided to us, including proposals put forward by the Assembly. We recommend that, in response to this Report, the Wales Office provides an assessment of the suitability of these options.
80 Private law is defined as a combination of civil law subjects. Paragraph 3(2) of new Schedule 7B states “”The private law” means the law of contract, agency, bailment, tort, unjust enrichment and restitution, property, trusts and succession”.
82 Q343
84 Q221
85 Commission on Devolution in Wales, Empowerment and Responsibility: Legislative Powers to Strengthen Wales (March 2014) paras 4.6.3–4.6.4
86 Commission on Devolution in Wales, Empowerment and Responsibility: Legislative Powers to Strengthen Wales (March 2014) para 4.6.6
87 See, for example, the evidence of Professor Richard Wyn Jones: NAW CLAC, Record of Proceedings (9 November 2015), paras [175] and [201]
88 Qq170, 246–247; NAW CLAC, Record of Proceedings (9 November 2015), paras [132], [146] and [184]
89 Q127; NAW CLAC, Record of Proceedings (9 November 2015), paras [243]–[244], [254]
90 Q223; NAW CLAC, Record of Proceedings (9 November 2015), paras [131] and [133]; similarly Q194. See Cardiff University’s Welsh Governance Centre and University College London’s Constitution Unit, Delivering a Reserved Powers Model of Devolution for Wales (September 2015), p 25
91 NAW CLAC, Record of Proceedings (9 November 2015), para [244]
92 NAW CLAC, Record of Proceedings (9 November 2015), para [247]
93 Commission on Devolution in Wales, Empowerment and Responsibility: Legislative Powers to Strengthen Wales (March 2014) p 113 and Sir Stephen Laws, Identifying the Law of Wales (evidence to the Silk Commission), para 44.
94 Q73
95 Q217
96 Q44
97 Q295
98 Commission on Devolution in Wales, Empowerment and Responsibility: Legislative Powers to Strengthen Wales (March 2014) paras 4.4.10 and 4.6.4
99 Commission on Devolution in Wales, Empowerment and Responsibility: Legislative Powers to Strengthen Wales (March 2014) para 10.3.36
100 Qq169, 173, 215
101 NAW CLAC, Record of Proceedings (9 November 2015), para [254], emphasis added
102 Q317
103 Q318
104 Q317
105 NAW CLAC, Record of Proceedings (9 November 2015), para [130]; Q228; Professor Laura McAllister and Dr Diana Stirbu (DWB 005) p 4; Learned Society of Wales (DWB 007) p 2. See also Q318.
106 Q227; echoed by Huw Williams: Q228
107 Q318
108 New section 108A(3)
109 Paras 1 and 2 of new Schedule 7B
110 New Schedule 7B para 3(4))
111 New Schedule 7B para 4(2)
112 Qq 60, 65, 142, 149; NAW CLAC, Record of Proceedings (9 November 2015), para [180]; Dame Rosemary Butler (DWB 01) pp 2 and 12.
113 Adopting the definition of “private law” in the draft Bill.
115 Q174
116 Q149
117 NAW CLAC, Record of Proceedings (9 November 2015), para [89]
118 NAW CLAC, Record of Proceedings (9 November 2015), para [94]; see also at para [71]
119 Q27
120 Q327
121 Q49
122 Q329
123 Q215; Dame Rosemary Butler (DWB 001) p 15;
124 NAW CLAC, Record of Proceedings (9 November 2015), para [36], and NAW CLAC, Record of Proceedings (9 November 2015), para [32]
125 Q126
126 NAW CLAC, Record of Proceedings (9 November 2015), para [39]
127 NAW CLAC, Record of Proceedings (9 November 2015), para [32]
128 NAW CLAC, Record of Proceedings (9 November 2015), para [90]
129 Q219 [Williams]; NAW CLAC, Record of Proceedings (9 November 2015), para [30]; Dame Rosemary Butler (DWB 001) p 12; see also Robert Thomas, “The Draft Wales Bill 2015—Part 2”, UK Const L Blog (3 December 2015), accessed 11 December 2015
130 Q125, NAW CLAC, Record of Proceedings (9 November 2015), para [31]
131 Q331
132 Q219
133 NAW CLAC, Record of Proceedings (9 November 2015), para [82]
134 NAW CLAC, Record of Proceedings (9 November 2015), para [82]
135 Q332
136 Qq216, 221; Robert Thomas, “The Draft Wales Bill 2015—Part 2”, UK Const L Blog (3 December 2015), accessed 11 December 2015
137 NAW CLAC, Record of Proceedings (9 November 2015), para [40]
138 Q330
139 Q306
140 Q240
141 Q219
142 NAW CLAC, Record of Proceedings (9 November 2015), para [30]
143 Dame Rosemary Butler (DWB 001), pp 23 ff
© Parliamentary copyright 2015
Prepared 26 February 2016