The Draft Wales Bill

Posted by Emyr Lewis on
What is the significance of the provisions in the Bill? This is a draft Bill published by the Secretary of State for Wales, rather than a Bill proper.  It is being consulted on, in advance of introducing a Bill proper sometime early in the new year.  The draft follows on from the previous Government's white paper "Powers for a Purpose" (aka the "Saint David's Day Agreement", which can be found here.

The draft Bill does three main things, through amending the Government of Wales Act 2006:

  • It makes some fundamental constitutional declarations: that the National Assembly and Welsh Government are both recognised as "a permanent part of the United Kingdom's constitutional arrangements" and that the UK Parliament will "not normally legislate with regard to devolved matters without the consent of the Assembly";
  • It changes the Assembly's law-making powers from a "conferred" to a "reserved" powers model;
  • It gives some additional executive powers to the Welsh Government.

Although without its schedules it is relatively brief (31 sections), it is very complicated, in particular the provisions relating to changing the model of devolution.

To what extent does this enhance the level of devolution in Wales?

How far the National Assembly can go in making laws has been a problematic question, ever since the Assembly acquired considerably extended law-making powers in 2011 following a referendum.  The Supreme Court has on three occasions been asked to determine whether prospective Assembly legislation was within its legislative competence, something that has never happened to prospective legislation in Scotland.

Part of the problem is that, unlike the Scottish Parliament, which can legislate on any matter not expressly reserved to the UK Parliament, the Welsh Assembly can legislate relating to specific subjects, but not within certain specific exceptions.  The two models have become known as the "reserved powers" and "conferred powers" models, respectively. 

The way in which the Supreme Court has interpreted the Assembly's current powers has led to certain results which had not been foreseen, certainly by the UK Government.  The Assembly's current powers include legislating in areas which are beyond the expectations, and probably the comfort zone, of Whitehall.  This is because in the conferred powers model, there are "silent subjects" which are neither expressly included nor expressly excluded.  The Whitehall assumption had been that these would be no-go areas for the Assembly.  So when the UK Parliament abolished the Agricultural Wages Board, and the National Assembly passed emergency legislation for the regulation of agricultural wages in Wales, the Attorney-General challenged this because employment law is not devolved.  The Supreme Court disagreed.  It held that because agriculture is expressly included in the Assembly's legislative competence, and employment law is not expressly excluded, the law "related to" a matter which was within competence, and was therefore valid. The report can be found here.

On the other side of the argument, the conferred powers model (and other aspects of the 2006 Act) contains rather complex and occasionally ambiguous constraints on the Assembly's power to legislate.  Consequently, the Welsh Government has occasionally been hesitant to promote laws because of the lack of clarity about the extent of the Assembly's legislative competence.  While the agricultural wages case helped clear some things, a subsequent decision of the Supreme Court relating to recovery of NHS medical costs from insurers in asbestosis cases has muddied the waters again (see here).

The Silk Commission, which looked at the law-making powers of the Assembly, recommended that it would be better if the Welsh Assembly should have a reserved powers model.

The draft Bill does this, to an extent.

It solves Whitehall's problems with the current model by reserving to Westminster the power to legislate over areas which are currently "silent".  This includes some rather surprising omissions from  the 2006 Act, such as the defence of the realm and immigration.

It does so however by creating some new and complicated constraints on the ability of the Welsh Assembly to legislate.  The most significant of these relate to:

  1. modifying the criminal and civil law.  As things stand, the Welsh Assembly can legislate to modify private law or criminal law in relation to the areas where it has conferred competence.  The draft Bill would restrict the Assembly's ability to do this, by reference to what has been called (by way of shorthand) a "necessity test". 
  2. requiring the Assembly to obtain the consent of UK Government Ministers before being able to legislate in relation to certain types of public authorities and bodies.

These new constraints have caused a good deal of concern to the Welsh Government, and commentators in Wales.  The prospect of regular court challenges to the validity of Welsh legislation, especially in relation to private and criminal law, is seen by some as being a potential dead hand on any Welsh Government's legislative programme.  The reason given for these constraints is that, because Wales and England are a unified legal jurisdiction, the Assembly's ability to change the "general application" of the private and criminal law should be restricted.

What impact will the provisions around executive competence have?

The new individual executive powers granted to Welsh Ministers are a bit of a rag-bag.  They cover elections, onshore petroleum licensing, speed limits, Traffic Commissioners, taxis, ports and harbours, and planning consent for power generation.  Of these, the onshore petroleum licensing and power generation provisions are those most likely to have a significant impact, given the Welsh Government's environmental and economic development aspirations.

Probably of greater significance in the longer term will be the provisions about executive competence which are absent from the draft Bill.  The Scotland Act 1998 contains a provision which means that the executive powers of Scottish Ministers align with the legislative competence of the Scottish Parliament.  This baseline executive competence does not exist currently in Wales, and the draft Bill does not introduce it, which is another cause for concern for the Welsh Government.

From a public law / local government perspective, are there any potential issues that might arise in the future as a result of the Bill?

This depends very much on what happens to the draft Bill.

Since it will need (as a matter of convention) the consent of the National Assembly to become law, and since some central aspects of it are considered to be deeply problematic, it is difficult to see the Bill proper, when it comes, being the same as the draft Bill.  The Secretary of State for Wales has been consulting, and both the Welsh Affairs Committee of the House of Commons and the Assembly's Constitutional and Legislative Affairs Committee have conducted enquiries.  The Assembly Committee has produced a report on the draft Bill, which can be found here

It offers a lucid critique of the relevant provisions of the draft Bill.

If the so-called necessity test, or some other constraint on the ability to legislate on criminal and public law, appears in the Act in due course, it could give rise to considerable difficulties for authorities which exercise regulatory functions through prosecution in areas where the Assembly can create offences.  In any prosecution of an offence created by or under an Assembly Act, the defendant will be entitled to raise the issue of whether the relevant provision meets the statutory test.  It will be a new technical defence available in all cases and in all courts.  This could have an impact in Wales similar in effect (if not in kind) to that which the Human Rights Act has had throughout the UK.

As mentioned above, the reason given for applying constraints to the Assembly's ability to modify criminal or private law is the unified jurisdiction of England and Wales.  One response to this has been to question the unified jurisdiction. 

The possibility of a separate Welsh (and therefore English) legal jurisdiction has been talked about since the Assembly was first created, and more so since it acquired law-making powers.  The concept has caused alarm among some practitioners and others in both Wales and England, concerned at the prospect of a separate system for the administration of justice in Wales, with separate institutions, a separate judiciary and separate professions.

An emerging theme in public discourse in Wales has been the idea of a "distinct but not separate" Welsh jurisdiction.  This would involve:

  • recognising Wales (and consequently England) as a legally distinct territory,
  • recognising the law of Wales and the law of England as being legally distinct (as opposed to there being one law of England and Wales applied differently in each territory) and as extending only to their respective territories
  • confining the ability of the Welsh Assembly to legislate to the legal territory of Wales (under current arrangements, and under the draft Bill, the Assembly can make laws which apply in England).

This approach would not involve establishing for Wales a separate system for the administration of justice, with separate institutions, a separate judiciary and separate professions.  While in formal terms, there would be courts of Wales and Courts of England, in practical terms, judges could sit as judges of either court, and anyone able to practice law in England and Wales now would be able to do so in England or in Wales. 

The Welsh Government has proposed draft clauses for this very purpose.  If adopted, the Welsh Government's proposal would formally separate the laws and legal territories of England and Wales for the first time in five hundred years.

In short, watch this space, but don't panic.

This article was first published on Lexis®PSL on 5 January 2015.

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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.

Emyr Lewis
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