Lack of clarity in Wales Bill risks litigation and further legislation

31 Oct 2016 03:10 PM

The Constitution Committee recently published its report on the Wales Bill, in which it states that the lack of clarity over the demarcation of powers between the UK Parliament and Welsh Assembly not only risks future litigation, but the need for further legislation to clarify the settlement.

'Conferred powers' to 'reserved powers'

The report welcomes the move from a ‘conferred powers’ model (where the Welsh Assembly can only legislate on matters specifically devolved to it) to a ‘reserved powers’ model (where Welsh Assembly can legislate on any subject not explicitly ‘reserved’ by the UK Parliament).

The reserved powers model offers a relatively clear and simple division of powers, as well as allowing the Welsh Assembly “constitutional space to legislate”. However, the Committee says that the way the Wales Bill implements the reserved powers model undermines these key advantages.

A complex settlement

The complexity of the settlement set out in the Wales Bill, in which numerous legal tests interact with hundreds of matters reserved to the UK Government and Parliament, risks the courts being asked to make decisions about whether the National Assembly for Wales has the power to make laws in certain areas. The Committee contrasts this with the simpler settlement set out in the Scotland Act 1998, where the subjects reserved to Westminster are relatively limited, ensuring greater clarity about the devolution of powers.

The Committee also points out that in some areas the list of reserved matters is so extensive, and the number of legal tests that must be met for the Assembly to use its powers are so vague, that the switch to a reserved powers model is likely to actually result in a return of power from the Welsh Assembly to Westminster.

The Committee calls on the Government to explain whether the Wales Bill is actually intended to reduce the legislative competence of the Welsh Assembly in some area and, if not, what steps they plan to take to ensure that the competence of the Assembly is not inadvertently reduced.

The Committee notes, for example, that absolute restrictions on the Assembly’s ability to modify criminal law in relation to sexual offences may affect its ability to exercise its legislative competence in relation to the protection and well-being of children and young adults.

A coherent strategy

The Committee notes that there is “no evidence of a clear rationale” for the powers devolved by the Wales Bill and calls on the Government to explain the principles which underpin the devolution proposals set out in the Bill.

The Committee points out that in its recent report The Union and Devolution it recommended that further devolution should be managed in a coherent way based on sound principles and clarity about the purpose of the proposed devolution. It says the Government has failed to provide a clear rationale for the scope of powers devolved by the Wales Bill.

Chairman's comments

Commenting, Lord Lang of Monkton, Chairman of the House of Lords Constitution Committee, said:

"My Committee have taken a long and serious look at devolution within the UK in the last year and we bring that experience with us in examining the Wales Bill.

"We welcome the Wales Bill’s move from a ‘conferred powers’ to a ‘reserved powers’ model of devolution. However, the list of reservations is so extensive, and the legal tests that govern the Assembly’s powers so complex and vague, that it could be a recipe for confusion and legal uncertainty. The outcome is likely to be increased litigation as the courts are asked to decide exactly where the boundaries of the Assembly’s authority lies.

"We are disappointed that there is no clear explanation from the Government as to the rationale for the scope of the powers being devolved under the Wales Bill. As we noted in our report The Union and devolution, devolution must take place on the basis of appropriate principles to ensure that the devolution settlements evolve in a coherent way, rather than in a reactive, ad hoc manner.

"The Bill also risks, in some areas, actually reducing the powers of the Welsh Assembly. We have asked the Government whether that was their intention, and if not, how they intend to avoid unintentionally diminishing the Assembly’s powers.

"The Wales Bill starts Committee Stage in the House of Lords next week. This is the first stage where amendments can be made and debated and where the detail of the Bill is examined closely.  I hope our report will be helpful to the House in informing that debate."

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