72.The Wales Act 2014 made provision for the Assembly to set a Welsh rate of income tax for Welsh taxpayers. However, the Act provided that the income tax provisions would enter into force only if a referendum was held and the implementation of the provisions was supported. The Wales Bill removes that referendum requirement.
73.The fact that a referendum requirement imposed only two years ago is now to be removed is arguably illustrative of the highly ad hoc manner in which referendums are (and are not) used in the UK. In our report, Referendums in the United Kingdom, we noted that:
“Referendums may become a part of the UK’s democratic and constitutional framework. There has been little consistency in their use. They have taken place on an ad hoc basis, frequently as a tactical device rather than on the basis of constitutional principle.”
74.We have previously concluded that referendums are “most appropriately used in relation to fundamental constitutional issues” and that “the drawbacks and difficulties of their use are serious.” The imposition and removal of a referendum requirement in such rapid succession implies an unprincipled and tactical use of referendums which is inappropriate.
75.The Wales Bill transfers control over a range of election-related matters from the UK Parliament to the Welsh Assembly. A number of these powers have a super-majority requirement attached. If the Presiding Officer of the Assembly determines that any provision of a Bill relates to a protected subject-matter, the Bill cannot validly be enacted unless the number of Assembly members voting in favour of it at the final stage of the legislative process is at least two-thirds of the total number of Assembly seats. These super-majority requirements correspond to those found in the Scotland Act 2016.
76.In its report on the Scotland Bill, the Committee expressed concern about the implications of authorising the Scottish Parliament to legislate in relation to the franchise, given the jurisprudence of the European Court of Human Rights on prisoner voting:
“the Scottish Parliament’s control over the franchise for its elections may cause problems regarding prisoner voting rights, as (unlike the UK Parliament) the Scottish Parliament cannot make laws that are incompatible with Convention rights under the European Convention on Human Rights. The UK’s blanket ban on prisoners voting has been deemed incompatible, meaning that unless some prisoners were to be enfranchised in Scotland, legislation on the franchise there might be invalid.”
77.We called on the Government to “set out its view of how these powers could be exercised within the Scottish Parliament’s restricted competence.” The Government’s response to the Committee’s report on the Scotland Bill did not directly address this matter, merely saying that “the franchise for elections within devolved competence will be a matter for the Scottish Parliament to decide”. Nor does the documentation for the Wales Bill address this issue, meaning that the potential problem still remains.
78.The House may wish to seek clarification from the Government as to whether they consider that, should the National Assembly for Wales wish to exercise its powers over the franchise, it will have to do so in a way that enfranchises some prisoners so as to ensure that the law is compatible with Convention rights.
79.The law applicable in Wales increasingly diverges from the law applicable in England. This is so both because the Welsh Assembly and Government are building up bodies of distinct Welsh primary and secondary legislation, while, in the light of devolution, some primary and secondary legislation enacted by the UK Parliament and Government applies to England but not to Wales. Against this background—and in the light of the enhanced legislative powers to be conferred upon the Assembly by the Wales Bill—there have been calls for either a ‘separate’ or a ‘distinct’ Welsh jurisdiction. A ‘separate’ jurisdiction would involve the creation of wholly separate institutions. A more modest proposal would be a ‘distinct’ jurisdiction which would preserve the existing institutional architecture of the court system of England and Wales, whilst seeing those courts sitting as distinct courts of England and courts of Wales.
80.The Draft Wales Bill’s omission of provisions establishing such a distinct jurisdiction attracted criticism from Professor Thomas Glyn Watkin, former First Welsh Legislative Counsel to the Welsh Assembly Government and former Head of Bangor Law School, who told the Assembly’s Constitutional and Legislative Affairs Committee that while the administration of justice in Wales did not need to be entirely separate from that in England, “as the law is no longer completely unified, the legal system which administers it needs to develop so as to reflect that new reality not restrict it.” That Committee subsequently concluded that:
“We believe there would be merit in exploring further the concept … of a distinct Welsh jurisdiction as a means of delivering a clearer, more workable settlement. Theory would then catch up with practice: the axiom that all law extends to England and Wales but Welsh law is only applied in Wales would be superseded. Indeed, distinct bodies of Welsh and English laws would be administered within a unified court system in England and Wales.”
81.The UK Government, in its response to the House of Commons Welsh Affairs Committee’s report on the Draft Wales Bill, rejected the case for a separate jurisdiction, citing “cost” and “disruption”, and arguing that “the quantum of Assembly law is small, and will remain small, compared to the body of law that is common to England and Wales”. The UK Government also rejected the case for a distinct jurisdiction, saying: “We consider the current, single legal jurisdiction to be fit for purpose.” The Wales Bill does acknowledge that there is “a body of Welsh law made by the Assembly and the Welsh Ministers”, albeit that it goes on to say that the purpose of that statement is to “recognise the ability of the Assembly and the Welsh Ministers to make law forming part of the law of England and Wales”.
82.The UK Government acknowledges that: “Welsh laws should also feed through into efficient and effective arrangements for the administration of justice in Wales, from matters such as amending court rules to judicial training.” To that end, it has established a ‘Justice in Wales’ working group “to examine these arrangements in detail and recommend how we could improve them”. The working group is due to report by autumn 2016. Cardiff University’s Wales Governance Centre argues—taking as a given that neither a separate nor a distinct jurisdiction is presently imminent—that the ‘Justice in Wales’ group should include the following among its recommendations:
83.The cases for and against a ‘separate’ or a ‘distinct’ Welsh jurisdiction are complex and we do not intend to express a view on them at this juncture. It is an issue that will grow in importance as the process of Welsh law-making becomes increasingly significant.
84.The reality of a growing body of distinct Welsh law should, however, be reflected in the operation of a single England and Wales jurisdiction. For that reason, we welcome the formation of a ‘Justice in Wales’ working group, and we trust that the Government will keep this issue under review to ensure that a single jurisdiction can continue to operate effectively in the light of the deepening of the Welsh devolution regime.
85.Clause 53 of the Wales Bill authorises the Secretary of State by regulations to make “such consequential provision in connection with any provision of this Act as the Secretary of State considers appropriate”. This is a Henry VIII power: it permits, among other things, the amendment, repeal and revocation of primary legislation. The power is exercisable by statutory instrument and subject to the affirmative procedure. The power applies both to Acts of the UK Parliament and Acts and Measures of the Welsh Assembly.
86.We have previously expressed our concern at the scope of similar Henry VIII powers, and we note that the Delegated Powers and Regulatory Reform Committee has drawn this clause to the attention of the House in its report on the Wales Bill.
87.In addition, the Delegated Powers and Regulatory Reform Committee has noted that “there is no requirement in clause 53 for the Secretary of State to consult or seek the approval of the Assembly or Welsh Ministers before making regulations which amend a Measure or Act of the Assembly”. The Welsh Assembly’s Constitutional and Legislative Affairs Committee has consequently expressed concern:
“Regulations which seek to change the law that only applies in Wales and was made by the National Assembly, must be approved by the National Assembly. This is basic matter of constitutional propriety.”
88.Clause 53 would permit legislation passed by the National Assembly for Wales to be amended by statutory instrument at the behest of a UK Government minister without the consent, or indeed involvement, of the National Assembly or Welsh Government. The House may wish to consider whether it would be more appropriate for the consent of the National Assembly to be required—as, for example, is the case for certain statutory instruments made under the Legislative and Regulatory Reform Act 2006 and the Public Bodies Act 2011.
79 Wales Act 2014, sections 8–11
80 Wales Act 2014, sections 12–14
81 Wales Bill, clause 17
82 Constitution Committee, (12th Report, Session 2009–10, HL Paper 99), para 205
83 Ibid., paras 204 and 206
84 Government of Wales Act 2006, new section 111A(4) (to be inserted by Wales Bill, clause 9)
85 Scotland Act 1998, (as amended by Scotland Act 2016, )
86 Constitution Committee, (10th Report, Session 2014–15, HL Paper 145), para 43
87 Professor Thomas Glyn Watkin, evidence submitted to the Welsh Assembly’s Constitutional and Legislative Affairs Committee inquiry on the Draft Wales Bill. See [accessed 26 October 2016]
88 National Assembly for Wales Constitutional and Legislative Affairs Committee, Report on the UK Government’s Draft Wales Bill, December 2015, para 73
89 UK Government response to House of Commons Welsh Affairs Committee’s report on the Draft Wales Bill
90 Government of Wales Act 2006, section A2 (to be inserted by Wales Bill, clause 1)
91 UK Government response to House of Commons Welsh Affairs Committee’s report on the Draft Wales Bill
93 Wales Governance Centre, Justice in Wales: Principles, Progress and Next Steps (2016): [accessed 27 October 2016]
94 See, for example, Constitution Committee, (6th Report, Session 2015–16, HL Paper 59), para 52
95 Delegated Powers and Regulatory Reform Committee, (5th Report, Session 2016–17, HL Paper 54), paras 38-41
96 Ibid., para 43
97 National Assembly for Wales Constitutional and Legislative Affairs Committee, Report on the UK Government’s Wales Bill, October 2016, para 178
98 Legislative and Regulatory Reform Act 2006,
99 Public Bodies Act 2011,