Pre-legislative scrutiny of the draft Wales Bill Contents

5The approach of the Wales Office to the “pre-legislative process”

89.The previous chapters have focused on the three main criticisms of the draft Bill that have been raised during our inquiry. We have also received comments that have been critical of the overall pre-legislative process and the approach taken within Whitehall, which we consider in this chapter.

Preparing the draft Bill

90.When the Secretary of State appeared before us on 26 October, he told us that the draft Bill gave a relatively straightforward and simple architecture within which future Governments could “tweak the devolution boundary”.186 He explained that the appropriate amount of time had been taken “to work up a model that we believe is workable in terms of the advice that we get from parliamentary counsel on giving it practical legal effect” and that now he was to “open the books and invite people to comment, cross-question and scrutinise that draft legislation”.187

91.One criticism of the draft Bill was that it is a bill to amend, rather than replace, GOWA. Professor Richard Wyn Jones provided a summary of the effect of this approach:

to read this, you have to have a copy of the 2006 Act, and a towel doused in cold water wrapped around your head, and you have to compare the two pieces of legislation. As a constitution for Wales, this isn’t user friendly.188

We were told by others that a replacement for GOWA would be preferable,189 and the Constitutional and Legislative Affairs Committee concluded in their report that a consolidating Bill “would help deal with some of the issues of accessibility and complexity”.190

92.Another criticism concerned the extent of communications between Whitehall and Cardiff. The Secretary of State explained that over a period of six weeks leading up to the publication of the draft Bill there was “an opportunity for private discussions between … the Wales Office and … the Welsh Government officials” and that these discussions would “carry on in parallel with the open period of pre-legislative scrutiny and consultation that the publication started”. However, the Constitutional and Legislative Affairs Committee criticised this approach, and said “the Welsh Government and Assembly, who will have to work with the model on a daily basis, have been brought into the process too late”.

93.When the Secretary of State appeared before us for the second time, on 9 December, he explained that the pre-legislative scrutiny phase had done what the Government had intended it to do. He said that the draft Bill was “put out into the marketplace and that provides an opportunity to hear evidence … [and] in a sense it has flushed out positions of a lot of groups and individuals” and that there would be changes to the legislation from the draft when the Bill was introduced.191

94.We have heard that some of the decisions taken in the preparation of the draft Bill may hinder its workability. For example, the decision to amend the Government of Wales Act 2006, rather than replace it, means that the proposed legislation is not freestanding. Additionally, whilst we welcome the discussions that are ongoing between the Wales Office and the Welsh Government, more extensive discussions could have taken place prior to the draft Bill being published.

95.Whilst this pre-legislative process has flushed out views, it has also made it apparent that the final Bill will be significantly different to that which we have been scrutinising. That is wrong. Whilst changes and improvements are what this process seeks to provide, the weight of the evidence we received has meant we have had to focus on fundamental principles of the draft Bill rather than the specifics of the text. The Government should have focused its effort on resolving these matters of principle, before proceeding with a draft Bill. This could have been achieved through a consultation on its proposals which would also have aired these issues.

Timing

96.At the outset of our inquiry, the Secretary of State told us “There will not be another Wales devolution piece of legislation in this Parliament under this Government”. However, some witnesses have argued that the Government’s timetable for introducing this important piece of legislation, expected to be in early 2016,192 was not appropriate for practical and process reasons. Sir Paul Silk told us “because this Bill is an important constitutional Bill … do it right. There is no need to rush things”.193 Dame Rosemary Butler also felt that the draft Bill was being rushed, and there was a need to get it right the first time. This view was shared by Hefin Rees QC, who also told us “Wales … deserves a devolution settlement that will be long lasting, and will have durability and clarity” but that the speed of the process was “not the way to get to grips with a detailed, complicated piece of legislation”.194 Furthermore, Alan Trench thought that if the Bill had to be fundamentally reworked “it would be very hard to comply with the proposed timetable”.195

97.Additionally, we heard that the timetable for the Bill was ill-conceived for political reasons. Andrew RT Davies AM, Leader of the Welsh Conservatives, argued “We are going into a politically charged couple of months … We have the Assembly election coming up, and it is probably difficult to find consensus on this type of legislation just before a Welsh general election”.196 The First Minister was concerned that the Bill could “turn into some kind of political football” and thought it “might be worth taking a couple of months to get this right” whilst Dame Rosemary Butler felt that the draft Bill should be left for the new Assembly to discuss.197

98.We have also heard that the swift pace with which the Wales Office has sought to proceed has crowded out contributions from civic society to this stage in the legislation’s formulation.198 Professor Richard Wyn Jones told us:

the timetable set out for this process does make it extremely difficult for civic society organisations such as universities to make a sensible response to what is going on. The timetable is so challenging. … As the Lord Chief Justice has said, this is the most complex devolution settlement of them all, and we are dealing with it in great haste, and that does make things very difficult.199

He added “If we want this debate to move beyond an argument between governments, then we have to delay the process”.200

99.At the start of this inquiry, the Secretary of State said “I think I have struck the right balance. … I do not think I can win either way on satisfying people on the timetable”.201 Indeed, some witnesses empathised with the situation he was in. Sir Paul Silk told us “I can understand that there may not be another slot for another Wales Bill in the future, so you are a little bit between the devil and the deep blue sea”.202 Hefin Rees QC emphasised that this was a draft Bill and there were further opportunities for improvement, but added “I would certainly hope to see some evidence that some of this detailed work is now being done”.203 Furthermore, Andrew RT Davies AM and Kirsty Williams AM, from a political perspective, both felt that it would be possible to find a way forward.204

100.When the Secretary of State appeared before us on 9 December, he reiterated:

there will be no appetite on the part of the UK Government for quite some considerable time to do another major piece of Welsh legislation, so we need to do the work to get the legislation as fit and proper as we can so that it will last.205

However, he disputed that the pace of the process had been rushed, arguing that it had been ongoing for over a year already.206 In addition there was “pretty much all of next year while this Bill will be going through the parliamentary process to reflect and make changes”.207 He added that “through this pre-legislative scrutiny phase we are getting a clear idea of where the areas of change need to be”.

101.The timetable that the Secretary of State has set is challenging, but it can be done. However, the Secretary of State should not be overly committed to his stated timetable.

102. We recommend that he take this opportunity to reflect fully on the pre-legislative process. He should also be open to the possibility of introducing a Bill later in this Session if, in his consideration, the current timetable becomes too challenging.

Additional provisions to be added to the Bill

103.The provisions of the Wales Act 2014 confer on the National Assembly for Wales the power to set rates of income tax to be paid by Welsh taxpayers. However, this power is subject to a referendum. On 25 November, in the Autumn Statement, the Chancellor of the Exchequer announced in the House of Commons:

My right hon. Friend the Secretary of State for Wales and I also confirm that we will legislate so that the devolution of income tax can take place without a referendum.208

This was shortly followed by a tweet from the Secretary of State, which stated “I will amend Wales Bill to remove referendum block on Welsh tax powers”.209

104.We considered that these statements amounted to the addition of an extra provision to the Bill. As such we were of the view that this was something that we should have had time to consider during our inquiry. Due to the timing of the announcement, we have not been able to take expert evidence on this matter, but we did raise it with the Secretary of State on 9 December. He told us that he did not consider the addition of this provision to be a key element of the Bill. He argued that the forthcoming Bill was “a convenient vehicle” and that “[i]t is the 2014 Act that really delivers the fiscal powers”.210

105.In their report, the Constitutional and Legislative Affairs Committee welcomed the devolution of some income tax powers without the need for a referendum, but concluded that this “stands in contrast to the unnecessarily restrictive boundary of legislative competence currently delivered through the draft Bill”.211

106.We consider the announcement, that the power to set rates of income tax to be paid by Welsh taxpayers would be devolved without requiring a referendum, was a key change in policy. We regret the fact that the Committee did not have the opportunity to properly scrutinise this.

186 Q55

187 Q40

188 Q192

189 Q216 and Q234

190 NAW CLAC, Report on the UK Government’s Draft Wales Bill, December 2015, p.41

191 Q293 and Q306

192 Q40

193 Q132

194 Q218

195 Q238

196 Q64

197 Q182