Constitutional and Legislative Affairs Committee hears evidence on the Wales Bill.

Posted by Emyr Lewis on
Emyr Lewis recently appeared before the Constitutional and Legislative Affairs Committee in a personal capacity expressing his own opinions on the Wales Bill ("the Bill").  Questions were asked whether the Bill was an improvement on the previous draft and whether it would prove durable. The general consensus from the expert witnesses was that whilst it was a slight improvement on the draft bill, there were still grave problems present and that the question of a settlement for Wales would need to be revisited again in the not so distant future.

A prominent criticism of the draft bill was the sheer number of reservations listed as the domain of the UK Parliament and outside the legislative competence of the Welsh Assembly.  On this point, Emyr was of the view that the freedom to legislate depends on what is reserved by Parliament.  Whilst he acknowledged that certain subjects should be reserved, it was his view that the vast list of reserved matters needed to be justified in both policy and political terms and that this element was currently missing.

A concern the committee addressed was that separate laws for England and Wales could cause confusion by virtue of the fact that Wales shares a vast land border with England.  Emyr reassured the panel that in the commercial work he does, the parties are free to choose the jurisdiction and governing law of their contracts and transactions.  Whilst the matter could raise questions, he saw that there were practical answers to those concerns.

Lord Elis-Thomas referred back to the 2011 Wales referendum which gave the Welsh Assembly primary law making powers and questioned the extent to which the new Bill was incompatible with that decision in that it could result in less powers for the Welsh Assembly.  Emyr answered that the people had voted for a settlement to replace an arrangement that did not work before.  He gave an example of the Assembly legislating to abolish the defence of reasonable chastisement against children and believed that, should the Bill be passed in its current form, this would not be possible.

Next, there was a discussion of the word 'relates to'.  Presently, under the Government of Wales Act 2006, the Assembly can legislate in areas that 'relate to' devolved areas, subject to listed exceptions.  The courts have given this a wide interpretation and has allowed the Welsh Government and Assembly to legislate in areas that Parliament, arguably, did not foresee.  However, under the formulation in the new Bill, this concept is reversed and will prohibit legislating where it 'relates' to a reservation, potentially widening the ambit of the reservations.  Whilst there was a suggestion that the words 'relating to' should be removed due to its connotations and legislative analysis in Supreme Court cases, Emyr disagreed and believed there was a need for consistency across the UK's devolved legislatures as to the words used but also a need in the case of Wales for a change in attitude as to the principles of reserved powers.

A further key criticism of the draft bill was the so-called necessity test which existed in relation to four areas.  Emyr welcomed abolishing the test in two areas but urged caution in that a new test had been introduced should the Welsh Assembly legislate to change private law.  Also, whilst the test had disappeared, this did not change the fact that there were plenty of hurdles still extant, therefore, there was a need to look at the bigger picture.

As a penultimate question, the committee probed section 51 of the Bill which they suggested could result in the UK Parliament unilaterally modifying acts of the Assembly.  Emyr stated that whilst he thought this was right in principle, he had nothing to add to the evidence of Professor Thomas Watkin, that is, that the Assembly should be a part of this process.  Finally, Lord Elis-Thomas explored the political outlook post-Brexit.  He explored whether there were areas currently under the prerogative of the European Union that could naturally come directly to be under the control of the Welsh Assembly, assuming that the UK do indeed leave the European Union.  All experts answered this question following the caveat that there was great uncertainty about any future negotiations with the European Union and that the question was being answered in that context.  Emyr tentatively agreed with the premise of the question.  However, he expressed that Parliament's time was likely to be scarce over the next decade and that the Bill needed to be right.  In addition, he thought the time had come to consider whether there was a need to legislate to ensure financial fairness and that this may involve re-visiting the Barnett formula.

For further information or advice on our Welsh Public Law services, please email: welshpubliclaw@blakemorgan.co.uk

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Emyr covers public and constitutional law as well as heavyweight commercial transactions in the ICT and media sectors, public procurement and State Aid.

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