By Mark Elliott and Stephen Tierney
The House of Lords Constitution Committee today publishes its report on the Wales Bill. The history of the Bill is a somewhat chequered one, a Draft Bill published in October 2015 having been subjected to excoriating criticism by (among others) the Assembly’s Legislative and Constitutional Affairs Committee. The centrepiece of the Bill is intended to be the shift from the ‘conferred powers’ model of devolution that presently operates in Wales to a ‘reserved powers’ model akin to that which is found in Scotland. However, the Constitution Committee concludes that ‘the current implementation of the reserved powers model in the Wales Bill undermines its key advantages: namely providing the devolved legislature with constitutional space to legislate and allowing for a relatively clear and simple division of powers’. In this post, we highlight a number of concerns raised by the Committee in its report, and conclude with some broader reflections on what the Wales Bill tells us about the state of the UK’s territorial constitution and the approach to constitutional design adopted in respect of it.
General constitutional matters
Like the Scotland Act 2016, the Wales Bill makes provision as to the ‘permanence’ of the Welsh Assembly and Welsh Government and in respect of the Sewel Convention. The Bill will insert a new section A1 into the Government of Wales Act 2006 stating that the Assembly and Government ‘are a permanent part of the United Kingdom’s constitutional arrangements’; clarifying that the purpose of this statement is ‘to signify the commitment of the Parliament and Government of the United Kingdom to the Assembly and the Welsh Government’; and ‘declar[ing]’ that ‘[i]n view of that commitment’ the Welsh institutions ‘are not to be abolished except on the basis of a decision of the people of Wales voting in a referendum’. Meanwhile, section 107(5) of the 2006 Act — which asserts that the conferral of legislative competence upon the Assembly ‘does not affect the power of the Parliament of the United Kingdom to make laws for Wales’ — will be glossed by new section 107(6). It will provide that ‘it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Assembly’.
The Constitution Committee raised concerns about comparable provisions in its report on what is now the Scotland Act 2016. As to the ‘permanence’ provision in the Scotland Act 2016, the Committee expressed unease about its potential to create doubt as to the ‘absolute nature of parliamentary sovereignty’. In its report on the Wales Bill, it notes that the ‘permanence’ provision ‘has the merit of bringing the Welsh devolution settlement into line with Scotland’s and bringing a degree of consistency to the otherwise disparate and asymmetrical approaches taken to date’. However, it also points out that in its report on the Union and devolution it ‘concluded that the devolution settlements should be designed with a clear eye to their implications for the coherence and stability of the Union itself’. The Committee goes on to say in its report on the Wales Bill that ‘legislation which creates uncertainty about the lynchpin principle of parliamentary sovereignty could be considered unhelpful and damaging to the stability of the constitution of the Union as a whole’.
As far as the Sewel Convention is concerned, the Committee similarly echoes in respect of the Wales Bill concerns that it originally voiced in relation to the Scotland Act 2016. First, the Committee notes that the Wales Bill — like the Scotland Act — refers incompletely to the Sewel Convention ‘by failing to refer to that limb of the Convention that is concerned with UK legislation that adjusts the scope of devolved competence’. The Committee points out that in its report on the Scotland Bill it asked the Government about this disparity but received no clear answer. In its report on the Wales Bill, the Committee once again asks the Government to address this question. Second, although acknowledging that the Wales Bill simply replicates provisions that are now on the statute book in respect of Scotland, the Committee again expresses concern ‘that setting the Sewel Convention in statute risks inappropriately drawing the courts into areas which have previously been within the jurisdiction of Parliament alone, namely its competence to make law’.
The scope of the Assembly’s legislative competence
The natural assumptions concerning the shift from a ‘conferred powers’ to a ‘reserved powers’ model is that the Assembly’s legislative competence will expand as a result, and that ascertaining the scope of competence will be simpler. The Committee notes, however, that the extent to which these aspirations are realised by the Wales Bill is open to serious doubt, thanks to the number of matters that are reserved and the volume and complexity of the legal tests that operate so as to constrain the Assembly’s legislative competence.
The Committee notes that these aspects of the Bill raise distinct, if interlocking, constitutional concerns. The Bill’s complexity is itself a constitutional concern. As the Committee puts it, ‘there is a strong constitutional interest in legislation—particularly constitutional legislation such as the Wales Bill—being as clear as possible’. It argues that: ‘The lack of clarity in the Wales Bill increases the likelihood of demarcation disputes regarding the extent of the Welsh Assembly’s powers, and thus risks not only future litigation but the need for further legislation to clarify the Welsh devolution settlement.’
In addition to this overarching concern about the Bill’s complexity, the Committee raises concerns about the specific implications for legislative competence of certain aspects of the Bill. For instance, it draws attention to so-called ‘silent subjects’. At present, schedule 7 to the Government of Wales Act 2006 sets out (a) explicitly devolved matters and (b) exceptions thereto. ‘Silent subjects’ — including such matters as immigration and employment — are those that fall into neither category (a) nor category (b). In Attorney General for England and Wales v Counsel General for Wales  UKSC 43,  1 WLR 2622, the Supreme Court confirmed that Assembly legislation that relates to a devolved subject but which also relates to a silent subject is within devolved competence. However, the Committee notes that the Wales Bill ‘in effect reverses this judgment because many presently silent subjects become reserved matters under the Bill, and the Assembly, under the new dispensation, will exceed devolved competence if its legislation “relates to” reserved matters’. The Committee concludes that ‘[t]he upshot is that, in certain respects, the Assembly’s legislative competence will be rolled back’, and draws the House of Lords’ attention to amendments proposed in this area by the Welsh Assembly’s Constitutional and Legislative Affairs Committee.
The Constitution Committee also draws attention to the ‘necessity test’, which requires that relevant provisions have no greater effect on the matter in question than is necessary to give effect to the (non-reserved) purpose of the provision. The necessity test conditions the Assembly’s competence in relation to provisions affecting England and the modification of the law on reserved matters. As to the latter, the Committee notes that it ‘corresponds to a similar provision in the Scotland Act’. However, it cautions that the test in the Wales Bill ‘is likely to have a disproportionate effect on the legislative competence of the Welsh Assembly, given the lengthy list of reserved subjects set out in Schedule 7 of the Wales Bill’. The Committee concludes on this point that the House of Lords ‘may wish to consider whether it is appropriate to include this provision, as it stands, in the Wales Bill, when its effect is likely to differ so widely from the equivalent provision in the Scotland Act’.
It is also worth highlighting the Committee’s concerns relating to the interface between legislative and executive competence. It points out that the legislative competence of the Assembly and the executive competence of the Welsh Government have never been fully aligned. As result, points out the Committee, ‘there are some matters upon which the Assembly has competence at the legislative level, but in relation to which functions may remain with UK Ministers at the executive level’. The Committee observes that the Bill ‘does not attempt to remedy this situation’, and that instead the UK Government intends to increase the level of alignment by transferring functions to the Welsh Ministers by Order. The Committee questions why this approach is being adopted, and says it ‘would welcome an explanation from Government as to why it intends to use a Transfer of Functions Order to pass executive competence to the Welsh Government, rather than simply amending the Wales Bill so as to transfer all functions currently exercisable by Ministers of the Crown within devolved competence to the Welsh Government (taking into account the exceptions it listed in its response to the Commons Welsh Affairs Committee)’.
Relatedly, the Committee raises concerns about the regime in the Wales Bill requiring UK ministerial consent in respect of Welsh legislation that (for example) confers functions on UK public authorities. Among other things, the Committee invites the House of Lords ‘to consider the extent to which it is appropriate for the scope of a devolved assembly’s legislative authority to be determined through the exercise of discretion by UK Ministers, albeit in respect of what is likely to be a relatively limited range of matters’.
A separate or distinct Welsh jurisdiction
The Committee notes that the ‘law applicable in Wales increasingly diverges from the law applicable in England’ — ‘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, it notes calls that have been made for a ‘separate’ or ‘distinct’ Welsh jurisdiction. (The latter implies preservation of 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’.) The Committee goes on to note that the Wales Bill makes no provision in respect of a separate or distinct jurisdiction, albeit that it will insert a provision into the Governance of Wales Act 2006 acknowledging that there is ‘a body of Welsh law made by the Assembly and the Welsh Ministers’.
The Committee takes no position in this report on whether there should be a separate or distinct Welsh jurisdiction, although it does note that this issue ‘will grow in importance as the process of Welsh law-making becomes increasingly significant’. It welcomes the establishment by the UK Government of the Justice in Wales working group — whose remit is concerned with improving the arrangements for the administration of justice in Wales in the light of devolution — and calls on the Government to ‘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’.
By way of conclusion, we draw attention to, and offer some reflections on, the Committee’s analysis of broader issues of constitutional design and the future development of the territorial constitution. In this regard, the Committee’s report on the Wales Bill must be read in the light of its report, published earlier this year, on the Union and devolution — the culmination of a year-long inquiry into the state of the UK’s territorial constitution. In that report, the Committee argued for an approach to the territorial constitution that views it through the lens of the Union, in order to ensure that devolution is able to operate in a manner that does not threaten the stability or viability of the Union. The Committee called for a more principled approach to be adopted when future design issues about the shape of the territorial constitution are confronted. In particular, the Committee argued that consideration should be given — in a systematic and joined-up manner — to questions about such matters as the extent of devolved competence and the scope of the matters that ought to be retained at UK level. Against that background, the Committee finds cause for disappointment in the Wales Bill on at least two levels.
First, it questions why the architectural similarity of the Scottish and the new Welsh systems — thanks to the latter’s shift to a ‘reserved powers’ model — is so dramatically unmatched in terms of the substantive scope of the two devolution systems. The very substantial differences between the extent of the Scottish Parliament’s powers and the competence that the Welsh Assembly will have under the new Bill ‘raise a question of constitutional principle regarding the differential treatment of Wales compared to Scotland and Northern Ireland’. In this context, the Committee draws attention to the Welsh Assembly Constitutional and Legislative Affairs Committee’s observation that ‘it is not entirely clear why Wales still merits a lesser, and much more complex, form of devolution than Scotland and Northern Ireland’. The Constitution Committee notes that although that observation was made in respect of the Draft Wales Bill, the point ‘remains pertinent’.
Second, the Constitution Committee draws attention to the arguments advanced in its report on the Union and devolution concerning the need for ‘strategic thinking … about the development of devolution’ and the articulation of a ‘guiding strategy’. In that report, the Committee noted that those things had been sorely lacking, and that devolution has been permitted to develop in an ‘ad hoc fashion’ with ‘different constitutional conversations taking place separately in different parts of the country’. There is little, if any, sign that those failures have been addressed in respect of the Wales Bill. Indeed, the Committee notes the remarkably ad hoc manner in which the UK Government appears to have gone about designing Wales’s new settlement. It notes concerns that have been expressed to the effect that the process ‘prized the need for consensus within the negotiations that culminated in the St David’s Day Agreement above the need to arrive at sensible, principled conclusions’. The Committee also draws attention to the fact that the drawing up of the list of reserved matters ‘was begun by the Wales Office asking UK departments what they believed to be reserved’. The Committee concludes that there is ‘no evidence of a clear rationale underlying the scope of the powers devolved by the Wales Bill’ and calls on the Government to supply ‘an explanation … as to the principles that underpin the devolution settlement set out in the Wales Bill’.
From one perspective, the most significant issues raised by the Wales Bill are those that pertain to its implications for the Welsh Assembly as it seeks to navigate Wales’s new devolution settlement when exercising its law-making powers. From that end-user perspective, the Bill is unwieldly, complex and limiting in ways that sit in tension with the notion that devolution serves to provide ‘constitutional space’ for devolved institutions to pursue distinctive legislative agendas.
From another perspective, though, the Bill is arguably of even greater — if more abstract — concern. That perspective relates to the question of constitutional design — and, in particular, the approach that is adopted to the design, and redesign, of the UK’s territorial constitution. It is perhaps inevitable — for now — that devolution is a work-in-progress. For one thing, the system is very young, making development and refinement unsurprising. For another, the fact that the devolution arrangements are contained in regular legislation, rather than being laid down in a hard-to-amend constitutional text, removes some of the barriers to change that apply to comparable arrangements in other constitutional systems.
The Wales Bill must be understood against this background. It reflects a strengthening body of opinion that the enormous initial differences between the UK’s devolution systems should be narrowed where possible, and signals that the general direction of travel is towards convergence (even though full convergence is a highly unlikely destination particularly since some aspects of asymmetry appropriately reflect societal distinctiveness). In this sense, the Bill reflects a maturing — a bedding down — of the system, following the experimentation that has characterised its first two decades. What the Bill does not do, however, is to offer a viable basis for an enduring devolution settlement in Wales. It is heavily implicit in the Bill that it is does not purport to be any sort of final word on the shape of the Welsh devolution system for the foreseeable future. Indeed, given the Bill’s many complexities and anomalies, it is hard to avoid concluding that it will turn out to have been little more than a staging-post reform.
The risk thus arises that the ease with which devolution settlements can be remade results in a failure ever to move beyond what ought to have been devolution’s early ‘experimental’ phase. This is not to suggest that the UK’s devolution systems should now, or at some other point, be cast in stone. But there is surely a strong case for seeking to move, nearly 20 years after the introduction of devolution, into a period of relative constitutional stability, in which devolution schemes are designed with longevity in mind. Yet the very fact that the Wales Bill has attracted such strong criticism from within the Welsh Assembly itself strongly suggests that the Bill will fail to provide the basis for an enduring settlement. The much-vaunted flexibility of the UK’s constitution inevitably facilitates an approach that treats constitutional design as a process that is as unending as the painting of the Forth Bridge. But a point comes at which temptations thereby created must be resisted, and a serious attempt made to design something of lasting value. Viewed from that perspective, the Wales Bill may well prove to have been a lost opportunity.
Mark Elliott is Professor of Public Law at the University of Cambridge. Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh. They serve as Legal Advisers to the House of Lords Constitution Committee. This post is written in their personal capacities.