Press Release: Independent review recommends politicians say
NO to Draft Wales Bill unless major changes are made
1 February 2016
A report by an
independent review group consisting of constitutional and
legislative experts will today (Monday 1 February 2016) say that
they could not recommend that politicians in Cardiff Bay and
Westminster support the Draft Wales Bill in its current
form.
The landmark report,
“Challenge and Opportunity: The Draft Wales Bill 2015,”
was commissioned by the Wales Governance Centre at Cardiff
University and the Constitution Unit at the University College
London. The report provides an expert commentary and assessment of
the detailed provisions set out in the Draft Wales Bill published
in October 2015.
In their report, the
independent review group say:
- The ‘reserved powers’ approach offers
many benefits to Wales and to the UK as a whole if done
properly. That is not the case with the Draft Wales Bill. Done badly,
the reserved powers approach will lead to another short-lived
arrangement that works poorly.
- To be lasting and effective, a new Wales Act needs to
be underpinned by clear principles that ensure a coherent and
consistent devolution package for Wales. As that is not the case, it is unsurprising that the
Bill has attracted little support, even in the short time available
for consideration.
- The list of reservations in the draft Bill reflects
the lack of coherent approach by Whitehall. The overall package of
reservations is highly complex, and some of the proposed reservations are designed to protect
Whitehall departmental interests rather than deliver a coherent and
consistent set of devolved powers. Their complexity will inhibit
policy making and undermine the robustness of the
settlement.
- The reliance on‘necessity’ tests for
legislation affecting private or criminal law is unduly
onerous. These tests add complexity and uncertainty, and will provoke
legal challenge with decisions on whether Welsh legislation is
necessary taken by judges rather than elected
representatives.
- • There are complex questions about the legal
relationship between England and Wales arising from the powers
necessary to make ‘reserved powers’ work
effectively. A distinct Welsh legal jurisdiction is one answer
to these issues. A ‘rules-based’approach to managing
legal differences is another.
Commenting on the difficulties with the Draft Wales
Bill, Professor Richard Rawlings of University College London, who
helped draft the report, said:
"“Wales has experienced three deeply problematic
devolution settlements since 1999. There was genuine hope that the
all-party agreement that Wales should move to a ‘reserved
powers’ model of devolution heralded the beginning of a
process that would lead to Welsh devolution being placed on a
sustainable constitutional basis.”
"“The draft Wales Bill does not do what was promised.
All too often, the Secretary of State’s fine policy
objectives of a stronger, clearer, fairer and more robust
devolution settlement are frustrated by provision that is
constricting, clunky, inequitable and constitutionally
short-sighted. At the heart of the difficulty is the triple squeeze
on the devolved institutions of intrusive general restriction,
over-occupation of legislative space, and blurry forms of executive
veto. It does not have to be like this.”
The report points to the need for fundamental changes
to the proposed legislation and sets out a series of proposals for
reconstructing the legislation in order to deliver a properly
constituted reserved powers model of devolution for
Wales.
The report explains how alternative approaches to the
legislation based on territorial rules or a distinct but not
separate jurisdiction for Wales offer ways of providing the space
to allow the National Assembly to legislate effectively.
Commenting on the next steps for the Draft Wales
Bill, Professor Richard Wyn Jones of the Wales Governance Centre at
Cardiff University said:
"“We believe that the legislative process around the
Draft Wales Bill should be paused for these matters to be fully
examined by all stakeholders including the Welsh Government, Wales
Office and the Ministry of Justice.”
Editor’s Notes:
- The Wales Governance Centre is a Cardiff University
research centre undertaking innovative research into all aspects of
the law, politics, government and political economy of Wales, as
well the wider UK and European contexts of territorial governance.
The Constitution Unit at UCL conducts timely, rigorous, independent
research into constitutional change and its consequences. Its
research has significant real-world impact, informing policy-makers
engaged in constitutional reform both in the United Kingdom and
around the world.
- To arrange media opportunities in both Welsh and
English, please contact Lleu Williams on
07455 015819 or WilliamsL59@cardiff.ac.uk
- The report will be launched at 12.30pm in the Main
Hall in the Pierhead Building, Cardiff Bay on Monday 1 February
2016. The report will also be launched in Westminster at 5.00pm on
Tuesday 2 February 2016 in the Wilson Room in Portcullis
House.
- The report was produced by an independent review
group consisting of:
-
- Alan Cogbill (Chair), former Director of the Wales
Office
- Robert Hazell CBE, Professor of Government and the
Constitution and former Director of the Constitution Unit at
University College London
- Sir Stephen Laws, former First Parliamentary Counsel
and Member of the McKay Commission on the Consequences of
Devolution for the House of Commons
- Emyr Lewis, Senior Regional Partner Wales at Blake
Morgan LLP
- Lowri Morgan, Head of Wales Office, The Law
Society
- Richard Rawlings (Rapporteur), Professor of Public
Law at University College London and former Legal Adviser to the
House of Lords Constitution Committee
- Sir Paul Silk, former Clerk to the National Assembly
for Wales and Chair of the Commission on Devolution in Wales
2011-2014
- Alan Trench (Adviser), former Specialist Adviser to
the House of Commons Welsh Affairs Committee and to the Scottish
Conservatives’ Commission on the Future Governance of
Scotland
- Thomas Glyn Watkin, former First Legislative Counsel
for Wales and Honorary Professor at Bangor and Cardiff
Universities
- Richard Wyn Jones, Professor of Welsh Politics and
Director of the Wales Governance Centre at Cardiff
University
- The first report issued in September 2015 by the
Wales Governance Centre and the Constitution Unit, Delivering a
Reserved Powers Model of Devolution for Wales, can be found
here.
A copy of the UK Government’s Draft Wales Bill
can be found
here. The Command paper which preceded the Draft Bill, Powers for
a Purpose, is available
here.
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