4Ministerial consent
66.UK Government Ministers exercise many functions conferred by legislation affecting the law of England and Wales. Some of the ministerial functions previously held by UK Ministers have been devolved to the Welsh Ministers. But Assembly Acts cannot remove or modify functions a UK Minister had before 5 May 2011144 unless the Secretary of State consents or the provision is “incidental to, or consequential on,” another provision of the same Assembly Act (the “incidental/consequential exception”).145 Assembly Acts cannot confer or impose functions on a UK Minister unless the Secretary of State consents.146 The UK Government says the Secretary of State’s consent should be given before legislation is introduced in the National Assembly.147
67.The draft Bill would mean the Assembly would need the consent of a UK Minister to remove or modify functions of, or confer or impose functions on, a “reserved authority”; or to confer, impose, modify or remove functions specifically exercisable in relation to such an authority or change such an authority’s constitution.148 As a result, we were told that the draft Bill reduced the Assembly’s competence and was complex and unclear. Furthermore, we were told that the process of obtaining Ministerial consent caused delay.
Reduced competence
68.The National Assembly argued that the draft Bill extended the requirement for Ministerial consent by:149
- extending it to authorities other than UK Ministers;
- extending it to the removal or modification of UK Ministerial functions arising after 4 May 2011;
- including functions “specifically exercisable in relation to” reserved authorities;
- including modification of the constitution of reserved authorities; and
- removing the incidental/consequential exception.150
Some of these effects were echoed in an article by Professor Robert Thomas,151 and in evidence by Professor Thomas Glyn Watkin.152
69.The UK Government acknowledges that competence is reduced. The Wales Office accepts that five existing Assembly provisions could not have been passed in the same manner under the provisions in the draft Bill. Each would have required Ministerial consent, albeit in three cases the Wales Office says consent would be likely to have been given.153 While this UK Government might say consent would have been likely, as Kirsty Williams AM, Welsh Liberal Democrats, argued “it is important that [the Secretary of State] remembers that he needs to legislate not only for this Government or for this set of Ministers, but for future Governments and Ministers”.154 The Secretary of State agreed the need for consent was extended in that “reserved bodies” were now included.155 He later accepted there might be five consents required that had not been previously, but said there was not an “unacceptably large new requirement of consents”.156
70.The effect of extending the need for consent and of retaining it in devolved areas was described to us as a “recipe for conflict”.157 The Institute of Welsh Affairs observed that additional instances needing consent would mean “the relationship between the two governments will surely be tested to breaking point”.158
71.The Secretary of State explained he would regard as “lawless” the idea that the Welsh Government might be allowed to make legislation that affects England (in relation to functions of UK Ministers or reserved bodies) without regard for the views of the UK Government.159 He thought:
if Welsh Government are making legislation that as a result impinges on the functions of a UK Minister or a UK reserved body, it is only reasonable that, as is already currently the case, the Welsh Government seek the consent of the UK Minister for that change. … You need devolution with rules; you need a rules-based approach to this to get clarity and that is what I want this legislation to provide.160
Complexity and clarity
72.The consenting regime was described by Huw Williams as “a recipe for continuing potential confusion”.161 Professor Richard Wyn Jones found it the “most complex and abstruse” part of the draft Bill.162 On the other hand, Professor Thomas Glyn Watkin said, “there is no doubt in my mind that the change that is proposed in the Bill increases clarity”,163 in the sense that it was clear when consent was required, albeit at the cost of clarity as to when the Assembly could legislate. As Professor Robert Thomas put it:
the Assembly’s competence to modify such powers would be dependent upon the discretion of a Minister of the Crown. Such Ministers will, of course, vary over time. Different Ministers will reach different decisions concerning the modification of their powers. This further undermines the claim that the Bill will provide a clear and certain devolution settlement.164
73.The Secretary of State told us he did not consider the Bill less clear than existing legislation but that he was happy to look at “whether the mechanisms in the Bill could be clearer, simpler, more straightforward”165 and that Ministerial consents was an issue he was happy to look at again.166
Reserved authorities
74.A particular area identified as complex was the definition of “reserved authorities”.167 Professor Thomas Glyn Watkin said “you either need a list of what the reserved authorities are, or you need a test that will give us what … is called conceptual certainty. … If you have any room for doubt, the test doesn’t work”.168 He also pointed out that the test relies on the concept of an office or holder of an office which has functions of a public nature, and said that this was a difficult area of the law.169
75.At the outset, the Wales Office made it clear the intention was not to have a list of reserved authorities because of the risks of omitting a relevant body.170 The Secretary of State indicated he was happy to look at the definition, but observed:
The alternative is creating and defining a list of what those bodies are and then you are back in the position of lists again … if we did not go down the road of trying to craft some definition on the face of the Bill, the alternative is to itemise all of the bodies.171
76.The National Assembly needs clarity about which bodies it can legislate for. The only alternative we heard to the proposed test was a list of bodies. A list of bodies in respect of which the Assembly can legislate could lack flexibility and would be suggestive of a conferred powers approach. A list of reserved bodies would doubtless be a long one, and even if it is meticulously produced, bodies might inadvertently be missed from it. However, there are plenty of examples of legislation which contain comparable lists, for example, the Freedom of Information Act 2000. That Act includes the power to add bodies to or remove them from the list through secondary legislation, so that any difficulties can be resolved.
77.We recommend that the respective Governments offer indicative lists of bodies which they consider fall on either side of the proposed test. Through negotiation the aim should be to produce an agreed list alongside the Bill, which can be used as a guide. Whilst this would not be binding on successor administrations (or the National Assembly) it could help to establish the parameters of the definition, and therefore avoid disagreement.
Alignment of executive and legislative devolution
78.The current division of executive devolution has been described as “a haphazard arrangement whereby UK Ministers retain powers on areas devolved to Wales” with the result that “executive and legislative responsibilities do not neatly map onto each other”.172 The draft Bill transfers specific executive functions to the Welsh Ministers, including in some quite general terms (the transfer of common law powers in clause 25), but in contrast with section 53 of the Scotland Act 1998 it does not effect any general transfer of executive functions.173
79.The Silk Commission recommended that “to reduce complexity and increase clarity” there should be a general transfer to the Welsh Ministers of Minister of Crown functions in non-reserved areas,174 and we heard other calls for such a transfer, which would more closely align legislative and executive competence.175 Emyr Lewis observed that he understood why power over some cross-border authorities ought to be reserved, but that the consenting regime created “some sort of middle ground”.176 He told us:
In Scotland, there is a transfer of executive powers of Ministers of the Crown in their entirety to the Scottish Government and to Scottish Ministers. … They all transfer unless they are specifically exempted. That hasn’t happened in this draft, so we have this concept that any function, even if it is within the legislative scope of the Assembly and isn’t reserved, any power that power lies in London … it is not possible to legislate on that without the consent of London.177
80.Alignment seems to be the ultimate aim of the UK Government. The Secretary of State said he thought there was “an issue around … pre-commencement Minister of the Crown functions” that he was “happy to go away and look at”.178 Sue Olley told us the Wales Office was reviewing pre-commencement Ministerial functions, and that:
we hope to arrive at a position where we are talking about Ministers of the Crown exercising functions in reserved areas and Welsh Ministers exercising functions in devolved areas.179
81.The Secretary of State acknowledged some of the evidence strongly suggested that the “reach” of UK Government Ministers should recede but observed that “if you follow the logic of some of the rhetoric … you get to a place where you would believe that the reach of UK Ministers should stop at Offa’s Dyke”.180 His position was that there should be an efficient way for each government to “make legislation fully that may for legitimate reasons need to cross into each other’s devolved competence”.181
82.Greater alignment of executive and legislative powers would reduce complexity and increase clarity. We welcome the UK Government’s aim to align those powers and its review of pre-commencement functions, but are disappointed this review had not been completed before the draft Bill was presented to us for scrutiny.
83.We recommend that wherever possible the UK Government transfers to the Welsh Ministers, through revision to the draft Bill, all Ministerial functions in areas of devolved legislative competence.
Delays in obtaining Ministerial consent
84.We heard that the process of obtaining Ministerial consent can cause delay.182 The First Minister told us it took 16 months to obtain some of the consents for the Social Services and Well-being (Wales) Act 2014, and “many months” to get consents for the Public Health (Wales) Bill.183 His view was that granting consents to Wales was “not a priority” for Whitehall departments.
85.The Secretary of State told us the time taken to give consent varied. He acknowledged “[s]ometimes it is the fault of the UK Government machine … and there are specific examples where the turnaround has not been timely enough”.184 He added that sometimes further information had to be sought from the Welsh Government before being able to make a decision and that might contribute to delay.
86.One proposal we raised with the Secretary of State was that there should be a deadline for provision of consent. The Secretary of State thought this was “a really good suggestion” and considered “some kind of concordat around ministerial consents” to be “definitely something worth pursuing”.185
87.There will continue to be occasions when it is appropriate for the National Assembly to legislate in respect of bodies not operating solely in Wales, as the Wales Office acknowledges. A process which streamlines consideration of Ministerial consent would be welcome.
88.We recommend that the Government includes in the final Bill a procedure for the granting of Ministerial consent whereby it must be granted or refused within 60 days, in default of which consent would be deemed given. Such a procedure should also include the possibility of an extension to the time period where one was reasonably required, for example to obtain further information from the Welsh Ministers.
144 The date on which the “Assembly Act” provisions came into force: Government of Wales Act 2006 (Commencement of Assembly Act Provisions, Transitional and Saving Provisions and Modifications) Order 2011 (SI 2011 No 1011) art 3.
145 Schedule 7, paras 1(1) and 6(1)
146 Schedule 7, paras 1(2) and 6(2)
147 UK Government, Devolution Guidance Note 9: Parliamentary and Assembly Primary Legislation Affecting Wales, para 66
148 Schedule 2, inserting into GOWA new Schedule 7B, paragraph 8. In this paragraph, a “reserved authority” is defined as: (a) a Minister of the Crown or government department; and (b) any other public authority, apart from a Welsh public authority.
149 Dame Rosemary Butler (DWB 01), p 19
150 The UK Government challenged the effect of the incidental/consequential exception in the Local Government (Byelaws) Bill case (Local Government Byelaws (Wales) Bill 2012—Reference by the Attorney General for England and Wales [2012] UKSC 53; [2013] 1 AC 792). The Supreme Court decided that the Bill’s removal of a UK Ministerial function (the Secretary of State’s concurrent role in deciding whether to confirm particular byelaws) was “incidental to, or consequential on,” a principal purpose of the Bill, namely removal of the function from the Welsh Ministers.
151 Robert Thomas, “The Draft Wales Bill 2015—Part 1”, UK Const L Blog (2 December 2015), accessed 11 December 2015
152 NAW CLAC, Record of Proceedings (9 November 2015), para [100]
153 Wales Office, Assembly Acts the Welsh Government Claim Could Not Be Made Under the New Reserved Powers Model: UK Government Analysis (November 2005) pp 8–11
154 Q74
155 Q335
156 Q337
157 Q149; see also NAW CLAC, Record of Proceedings (9 November 2015), para [207]
159 Q30; see also Q307.
160 Q30; see also Q307.
161 Q231
162 NAW CLAC, Record of Proceedings (9 November 2015), para [206]
163 NAW CLAC, Record of Proceedings (9 November 2015), para [101]
164 Robert Thomas, “The Draft Wales Bill 2015—Part 1”, UK Const L Blog (2 December 2015), accessed 11 December 2015
165 Q294
166 Q307
167 Q195
168 NAW CLAC, Record of Proceedings (9 November 2015), para [113]
169 NAW CLAC, Record of Proceedings (9 November 2015), para [113]
170 Q59
171 Q340
172 Robert Thomas, “The Draft Wales Bill 2015—Part 1”, UK Const L Blog (2 December 2015), accessed 11 December 2015; see also Q231
173 NAW CLAC, Record of Proceedings (9 November 2015), para [104]
174 Commission on Devolution in Wales, Empowerment and Responsibility: Legislative Powers to Strengthen Wales (March 2014) para 4.7.3 and R.2
176 NAW CLAC, Record of Proceedings (9 November 2015), para [107]
177 NAW CLAC, Record of Proceedings (9 November 2015), para [104]
178 Q337
179 Q338
180 Q293
181 Q293
182 Learned Society of Wales (DWB 07) p 2
183 Q149
184 Q336
185 Q308 and Q323
© Parliamentary copyright 2015
Prepared 26 February 2016