Legislative consent in Wales

The Sewel convention has rightly come to be seen as key to the working of devolution in the United Kingdom. It may have first been envisaged as a way of enabling Westminster to continue to legislate for devolved matters and maintaining something like the practical pre-devolution status quo in policy-making, when convenient and politically acceptable, but it was quickly understood to mean more than that.

One reason may be that devolved legislative powers are more far-reaching than was at first appreciated. More important, though, is the emergence of the ‘constitutional’ dimension of the convention. The wording used in the Memorandum of Understanding (first agreed in 1999 and not changed since then) may refer to ‘the UK Parliament … not normally legislat[ing] with regard to devolved matters except with the agreement of the devolved legislatures’, but Devolution Guidance Note 10 on Post Devolution Primary Legislation regarding Scotland has been clear that consent is also required where there are changes to the functions of the Scottish Executive/Government or Parliament.  This means that functions cannot be removed from the devolved tier of government without its consent.  It also means functions cannot be added without consent, meaning that the UK tier cannot get rid of inconvenient functions, or transfer them without adequate funding, if a devolved legislature objects.

How the convention applies to Wales has always been less clear than its application to Scotland. The formal basis is the same for all three devolved governments; that statement in the Memorandum of Understanding. The National Assembly for Wales had very limited legislative powers until 2007, of course, and in that circumstance had no formal right to approve changes to its functions, merely a generally accepted right to be consulted about changes made by Westminster legislation (which also explains why the Secretary of State for Wales had the right to attend and participate in Assembly proceedings and receive documents about those). With the assumption of law-making powers it was clear that the Sewel convention applied to Westminster legislation that affected substantively devolved functions and the Assembly began to consider legislative consent motions, and sometimes to reject them.

However, the Assembly was initially reluctant to engage with the ‘constitutional dimension’.  This was the case even when the UK Parliament conferred functions directly on Welsh ministers without any engagement with the Assembly – a matter that drew the attention of the Assembly’s Constitutional and Legislative Affairs Committee in 2011-12.  Another odd feature of the 2007-11 term was that Assembly consent was required for changes to the Assembly’s law-making powers when made by legislative competence order, but not if that was done by provision in Westminster primary legislation (so-called ‘framework’ powers). A reading of the current (2012) version of Devolution Guidance Note 9 on Parliamentary and Assembly Primary Legislation Affecting Wales (available here in PDF format) confirms that the UK Government understands that the convention applies to changes to devolved powers and functions.  (The Note is hardly an example of clear drafting, but does note in paragraph 14 that the convention is triggered, inter alia, by provisions ‘likely to have an impact on the Assembly’s legislative competence or the Welsh Ministers’ executive powers’.)

Perhaps the key test regarding whether the convention applies in its ‘constitutional’ dimension applies in Wales arose with proceedings on the Wales Act 2014. The National Assembly considered the bill in some detail, with inquiries by both the Finance Committee and Constitutional and Legislative Affairs Committee.  Its legislative consent motion was approved on 1 July 2014, after completion of consideration of the bill in the Commons and formal introduction into the Lords but before Lords second reading. The Assembly has certainly asserted its right to consent (or not to consent) to Westminster legislation that changes its powers or those of the Welsh Government, and it is hard to see how that power can be denied given the general applicability of the commitment in the Memorandum of Understanding and the Assembly’s exercise of that right.  It’s clearly recognised in the explanatory notes to the draft bill, paragraph 10 of which notes the need for a legislative consent motion for the bill.

This has two implications for the current debate. First, when the Wales bill (published as a draft last week) is finalised and introduced into Parliament, this will require the legislative consent of the National Assembly as well. In effect, the National Assembly will be a kind of third chamber of Parliament, albeit without the detailed process of second reading, committee and report stages – just as the Scottish Parliament was for the Scotland Act 2012 and is for the Scotland bill it is presently considering. If the Assembly does not assent to the bill, the bill should not pass.

If the bill were to be enacted without consent, it would lead to a major constitutional crisis.  In these circumstances, there is no emergency that might trigger the limitation requiring devolved consent only in ‘normal’ circumstances, so the UK Government would be asserting Westminster’s sovereignty even when faced with opposition from the National Assembly.  That amounts to tearing up the constitutional fabric of devolution – and the very entrenchment of devolved rights that was agreed in the St David’s Day process and which the draft bill seeks to implement. Worse, such a move would make it clear that very different rules apply to Scotland and to Wales, with Wales plainly and visibly being a second-class devolved nation.  As a result, arguments about the UK being a diverse multinational union which accepts and even finds unity in that diversity, as we sought to argue in the Bingham Centre Devolution review, would be very hard to sustain.

The second implication is for the requirement for a referendum on the partial devolution of income tax set out in the Wales Act 2014. Any change to that would similarly need the consent of the National Assembly, even if the referendum has not yet been held. The powers conferred on the Welsh Government and the National Assembly (to trigger a referendum and call for it by a two-thirds majority) are clearly Assembly functions, and cannot be altered without the Assembly’s consent. Any idea of a ‘quickie’ referendum without the Assembly’s approval is similarly, constitutionally, a non-starter.

As the Trade Union bill shows, the requirement for devolved legislative consent is a complex area, made more complex by different frameworks for devolved powers. The complexity is likely to increase if it is put on a statutory basis, as the Scotland bill and draft Wales bill propose, as it will then become a possible subject for litigation. (That commitment will prove to be hugely problematic; the courts are profoundly ill-equipped to consider such matters, and the commitment runs directly contrary to the guarantee of Parliamentary immunity from having its proceedings questioned in any court under the 1689 Bill of Rights.) But the Sewel convention has huge value, to the point where it can be regarded as a piece of constitutional magic. It puts in place a powerful safeguard for devolved interests, but one which is consistent with the UK’s unwritten, political constitution. If devolved and UK interests are able to agree to a change in the framework, it can be made to happen; if they cannot, it will not. In the absence of a written constitution (with all the rigidities that brings), legislative consent provides as effective a solution to the question of constitutional protection and entrenchment as one is likely to find. It’s incumbent on UK Government and Parliament to ensure it is recognised and complied with.


Filed under Legislation, Wales, Westminster

Legislative consent for the Trade Union bill?

In a speech at the SNP conference in Aberdeen, Grahame Smith of the STUC has apparently argued that the impact of the Trade Union bill currently before the UK Parliament is such that it requires legislative consent from Holyrood under the Sewel convention – ‘a consent that I am confident would not be forthcoming’, so in reality a veto on the bill at least for Scotland. The bill is unsurprisingly under heavy criticism not just from the STUC but also the Greens and Rise. The UK Government does not believe that the bill needs legislative consent, however (see Annex A of the Explanatory Note, available here; the bill itself is here as a PDF document).

Constitutionally speaking, it’s hard to disagree with the UK Government’s view. Industrial relations and trade union law, like employment law more generally, remains a reserved matter under Head H1 of the Scotland Act 1998, beyond the powers of the Scottish Parliament. The criteria for legislative consent under the Sewel convention are set out in Devolution Guidance Note 10 on Post – Devolution Primary Legislation affecting Scotland (available here as a PDF). Consent is not needed for bills which do not apply to Scotland at all; which apply to Scotland but ‘relate to’ reserved matters and do not alter Scots law on non-reserved matters; or which contain provisions applying to Scotland and relating to reserved matters, though they may make incidental or consequential changes to Scots law on non-reserved matters.  Consent is only needed if the bill ‘contains provisions applying to Scotland and which are for devolved purposes, or which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers’.

The objection here cannot be that these provisions are for devolved purposes, since industrial relations are reserved.  Likewise, it’s not that these provisions alter the legislative competence of the Scottish Parliament, since it has no such competence. There can’t be any argument that the UK Parliament has the power to legislate regarding the operation of trade unions, balloting requirements, the operation of political funds and the like which make up the bulk of the bill, which operate equally in Scotland as in other parts of the UK. Indeed, do trade unions really want to see different rules applying in Scotland from those in England and Wales when it comes to holding ballots or running a political fund? It would be impossible for them to operate on a UK- or Great Britain-wide basis if that were so.

The argument must therefore be founded on the fact the provisions affecting the public sector trigger the convention. These include the requirement for a forty per cent affirmative vote for strikes in public services in clause 3, the publication arrangements regarding ‘facility time’ in clause 12 and the reserve powers regarding ‘facility time’ in clause 13. These will certainly affect the Scottish Government itself, as well as local authorities, the NHS and other public service employers in Scotland.  In that sense, they will affect devolved executive functions.  But the fact that they affect these devolved-sector employers doesn’t mean that the bill affects a devolved matter. The competence of the Scottish Government (or Parliament) will not be changed, simply the way they go about their business – in the same way that a change in the rate of National Insurance Contributions payable by them would be. The mere fact that legislation affects a devolved institution does not trigger the Sewel convention.

Smith must have been very badly advised on constitutional matters if he thought that this was so, or that this argument was worth advancing.

It’s worth adding that the proposal in clause 3 of the Scotland bill currently before Westminster to put the Sewel convention on a statutory footing would not alter this.

It’s also worth adding that a similar argument applies in relation to Wales, though the conclusion is more tentative.  It’s not quite the same; the Scottish Parliament has full powers to legislate in relation to non-reserved matters, including most aspects of the functioning of the Scottish public sector.  In Wales, the Assembly’s powers to legislate must ‘relate to’ a devolved subject as listed in Schedule 7 to the Government of Wales Act 1998.  This is relevant because the test used to apply Sewel is whether a bill would be within devolved competence if passed by the devolved legislature, and apply that backwards, as it were, to the Westminster legislation.  (This means Sewel gets really complicated where there are legislative grey areas about devolved competence.)  The National Assembly’s powers in relation to ‘public administration’ in subject area 14 are narrow ones; employment is not mentioned in relation to that or to other relevant devolved subjects such as health or education, though it is not an excepted matter either (so it can be regarded as a ‘silent subject’, if one subscribes to that account of devolved powers).  Whether legislation on it would be within devolved competence therefore depends on a combination of inferring such powers into Schedule 7 subjects or using section 108(5)’s powers to make incidental or consequential provision.  This is also made more complicated by the confusing decisions of the UK Supreme Court, notably the wide scope to legislate provided the legislation ‘relates to’ a devolved subject endorsed in the reference regarding the Agricultural Sector (Wales) bill, but complicated by more general uncertainty following the NHS Recovery Of Medical Costs for Asbestos Diseases (Wales) Bill.  This leads me to conclude that the Assembly has no power to legislate for trade union matters relating to devolved subjects, and so Westminster legislation regarding that doesn’t need devolved consent either – but it’s not certain, and the complex nature of this analysis and the fact one can’t be certain may indicate why a clearer way of defining the Assembly’s powers is badly needed.

As far as Northern Ireland is concerned, trade union matters are a devolved matter; the Trade Union bill won’t apply there as a piece of Westminster legislation, nor does the Department of Enterprise and Learning intend to apply similar provisions there.  But the arrangements for Northern Ireland are different from those for Scotland or Wales.

The politics of the argument are rather different from its constitutional propriety, of course. Smith and others may believe that the powers of the Scottish Parliament are other than they are, as part of an argument that they should be broader. This provides a convenient campaigning platform to oppose Westminster legislation they dislike, and to try to mobilise opposition to the legislation they dislike into opposition to the Union more generally. That’s clearly the line the Scottish Government is taking, with Roseanna Cunningham seeking to exempt Scotland from the bill generally rather than argue the constitutional point. Even if Scottish opponents of the bill succeed in getting Holyrood to consider legislative consent (there’s nothing to stop it debating and rejecting a motion), that will have no constitutional impact, because there’s no constitutional basis to say that devolved consent is needed here.

I’ve updated this post since it was first published, particularly to include Wales and Northern Ireland. 


Filed under Legislation, Northern Ireland, Policy issues, Scotland, SNP, Wales, Westminster

A legal jurisdiction for Wales?

This post also appears on the Institute of Welsh Affairs’s blog, ClickonWales, here

The debate about whether there should be a legal jurisdiction for Wales, so that Wales would no longer share a system of law and courts with England, has rumbled on for some time.  Plaid Cymru issued its own paper on the subject in 2010.  In 2012, it was the subject of a consultation by the Welsh Government as well as a major inquiry by the National Assembly’s Constitutional and Legislative Affairs Committee.  The proposition received a conditional endorsement from the Assembly Committee, which noted the legal differentiation between England and Wales that was already underway and the implications of that for a shared England-and-Wales jurisdiction.  However, the Welsh Government’s enthusiasm for the idea had disappeared by time it submitted evidence to the Part 2 inquiry of the Silk Commission, when it said, ‘While it would not be appropriate to establish a separate legal jurisdiction for Wales now, such a development is very likely in the longer term and action can be taken which would help to ensure a smoother transition to such a jurisdiction in due course.’  More recently, support for a Welsh legal jurisdiction has come from Justice for Wales and from Plaid Cymru.  The relationship of a legal jurisdiction to a ‘reserved powers’ model (an issue that has concerned me since 2005, and previously discussed HERE (my evidence to Silk Part 2) and HERE) means it is now highly topical.

Part of the reason for the limited support from the Welsh Government is the complexity of the issue, the costs and concerns that any further devolved functions would not be fully funded, but also the fact that the issue became something of a Christmas tree.   Many of those giving evidence hung onto a devolved jurisdiction their own wish-list of functions they thought should be devolved – whether that be the criminal law, policing, offender management, the court system or the civil law.  There may be strong arguments for devolving each of these functions – Justice for Wales base their case on the advantages of devolving a number of functions relating to the operation of the courts and the legal system, and the advantages of devolution.  This approach may be good advocacy, but it doesn’t always reflect clear thinking about the problem.  There are a number of distinct questions to be addressed:

  • Should Wales constitute a distinct legal jurisdiction?  If so, to achieve what goal?
  • How separate should a distinct Welsh jurisdiction be – what institutions, functions or arrangements presently operating on an England-and-Wales basis need to operate separately if Wales were to become a distinct legal jurisdiction?
  • How devolved should a distinct Welsh jurisdiction be?  What functions should be devolved and under the control of the National Assembly and Welsh Government?

To answer the first, the case that Wales should constitute a distinct legal jurisdiction as part of the move to a ‘reserved powers’ model is a strong one.  Writing the recent WGC/Constitution Unit report on this, it was clear that a number of important issues need to be regulated to ensure that the National Assembly can legislate effectively for Wales, but also does not affect England when it does so.  A Welsh legal jurisdiction is not the only way of doing so, and the report sets out some of the measures needed if there were not one – notably ways of determining which body of law applies in any particular court case.  But a Welsh jurisdiction becomes the easiest, clearest and most direct way of addressing those problems.  Given the need we identify to devolve powers in relation to both the civil law generally, and the creation of criminal offences, there is a further reason for a legal jurisdiction: to help the public understand the nature of the powers of the National Assembly and the fact that ‘things will be different’ in Wales, as well as manage these matters from a more technically legal point of view.  These are essentially technocratic arguments, but they are powerful ones regardless of other considerations.

The second question above has attracted many answers – the ‘Christmas tree’ problem noted in connection with the Welsh Government’s consultation.  Plaid Cymru directly addressed this by setting out two models for a Welsh jurisdiction, a ‘minimum’ and a ‘maximum’ model.  Their ‘minimum’ model includes a separate prosecution service, administration of the courts and of justice, appointments of judges and magistrates, and a distinct legal aid system.  (They also propose that these functions are devolved, answering the third question.)

However, whether establishment of a Welsh legal jurisdiction needs to involve establishing any separate institutions that replicate the current England-and-Wales ones is open to debate.  At present, Wales has all the elements of a legal jurisdiction: a territory, an identifiable body of law applicable within that territory (with not one but two legislatures to pass laws), and courts to administer that body of law along with legal professions and the related institutions needed to give effect to court proceedings.  The problems that are most pressing arise from the fact that (except for territory) these elements are also those of England.  A simple way of addressing the problem is simply to create two units out of the one, while allowing the two to continue to share their resources and operations.  Thus one could provide that the courts of the single jurisdiction of England and Wales – the magistrates’, Crown and county courts, High Court and Court of Appeal – will become, instead, the courts of two jurisdictions, of England and of Wales.  All those presently qualified to sit in those courts would continue to do so, but when they were adjudicating cases relating to England they would sit as the courts of England, and when adjudicating ones relating to Wales they would sit as the courts of Wales.  The existing levels of decentralisation of the courts would mean that in many cases Welsh courts would sit in Wales, with judges from Wales, and there might be good reasons to ensure that was so for the lower courts sitting at first instance (magistrates’, Crown and county courts).  At the same time, a shared relationship with the courts and legal system of England would ensure Wales had ready access to the specialist expertise and resources when that was needed, whether for urgent business or highly technical areas of law like Chancery matters or intellectual property.  By the same token, solicitors and barristers currently admitted in England-and-Wales would be admitted in both England and Wales.  As a result, Wales would gain a legal boundary that best addresses the problems of a reserved powers model, but without losing advantages of the shared jurisdiction or adding to the costs of running the courts and legal system.

This would mean a change in the status of the law; the laws of Wales would not in general automatically be the same as those of England.  The substantive change would be less great and immediate, since they would only be different insofar as they were devolved.  Devolved law-making powers mean this is already happening, as much because of changes made for England at Westminster as what happens in Cardiff Bay.  The move to a reserved powers model will necessarily increase the scope of substantive legal change, as to work effectively it needs to include devolving powers in relation to the civil law and the creation of criminal offences.  Even to the extent that the National Assembly would have power over the law of contract (for example), it would have some good reasons not to use this in far-reaching ways, given the open and porous border with England – the more so if areas of law like consumer protection remain reserved (as it is for Scotland).

What this offers is a way of establishing a legal jurisdiction for Wales that is distinct, without necessarily being separate.  Whether it should be separate is another issue.  There are clearly many who think that a legal jurisdiction must necessarily bring with it differentiation of various functions – a court system, legal professions and so on, and that normatively it should do so.  However, it is not clear why that is the case.  There may be good arguments to have separate as well as distinct systems (and to devolve those systems), but they are different questions from those about having a Welsh legal jurisdiction.

There are of course clear precedents for having separate legal jurisdiction without necessarily also devolving control of them.  Northern Ireland has been a separate legal jurisdiction since 1922, when it was formed by severing the former jurisdiction of Ireland when the Free State was created.  The legal system was under the control of the Stormont Parliament until direct rule, but from 1972 until 1999 was under Westminster’s control (though much ‘domestic’ legislation for Northern Ireland was made by orders in council rather than primary legislation).  Scotland remained a separate legal jurisdiction after the Union of 1707, with protections for the legal system, the Court of Session and criminal appeals included in the Articles of Union – but under Westminster’s control until 1999.  Even Wales retained a distinct system of courts (the Court of Great Sessions) after its legal absorption into England from 1542 until 1830.

Part of the attraction of a ‘minimal’ distinct-but-not-separate Welsh legal jurisdiction is that it directly deals with the problem that presently needs to be addressed.  The most pressing problem is the entangled nature of the England-and-Wales legal jurisdiction, and its implications for a ‘reserved powers’ model for the National Assembly.  Other questions about what should be devolved and how are more complex and there is clearly little agreement about them.  (There also seems to be little inclination in the Wales Office to take such issues on.)  Trying to resolve those now risks letting the best be the enemy of the better.  Perhaps the way forward would be to leave those issues for resolution later on; put in place a minimal jurisdiction now, and resolve other questions later on.

Otherwise, there are three options.  One is another protracted and obscure constitutional debate about a legal jurisdiction, which will delay any action to implement the Silk Commission’s Part 2 recommendations or the St David’s Day process.  The second is an incomplete and highly complex form of reserved powers, which itself will need unpicking and reconstructing in due course, so this will only be another interim arrangement not a durable and lasting settlement.  The third is to ditch the St David’s Day process recommendation of reserved powers altogether.  Following the puzzling judgment in the Asbestos Diseases Costs case, that’s highly unattractive, as it is now almost impossible to give clear advice about what devolved legislation will be within the Assembly’s competence. The Secretary of State can’t go backward and can’t stand still – so will he accept the logic of the situation in delivering his commitment to move forward?


Filed under Courts and legal issues, Legislation, Plaid Cymru, Wales, Westminster

Plaid Cymru and a Welsh legal jurisdiction

Plaid Cymru is, so far as I know, the only political party in Wales to have taken a position on the issue of a Welsh legal jurisdiction. (The Welsh Government has, but that’s a government not Labour Party matter.)  Responding to the recent WGC/Constitution Unit report, Leanne Wood said such a jurisdiction was ‘essential’.

This is not policy-making off the cuff.  In 2010, Plaid Cymru held an internal discussion about the establishment of a Welsh legal jurisdiction and the form it should take.  As their ‘consultation paper’ from that exercise isn’t otherwise available, and given the developing debate about this issue, with Plaid’s permission I’ve uploaded the paper in PDF format.  The English version is available here, and the Welsh one is here.


Filed under Courts and legal issues, Legislation, Plaid Cymru, Policy issues, Wales

Justice for Wales’s pamphlet on a Welsh legal jurisdiction

The Welsh legal group ‘Justice for Wales’ published its pamphlet on the case for a Welsh legal jurisdiction, and extensive devolution of the legal and justice system, last week.  There’s news coverage of it from the Western Mail here and BBC News here.  I don’t necessarily agree with their arguments (and I’ll have more to say about questions of a Welsh legal jurisdiction shortly), but their ideas certainly ought to be considered seriously.

As Justice for Wales doesn’t have its own website, readers may wish to download their pamphlet from this blog.  The PDF of the Welsh version is here, and that of the English one is here.




Filed under Courts and legal issues, Policy issues, Wales

Making ‘reserved powers’ work for Wales

The debate about a ‘reserved powers’ model for the National Assembly has to be one of the most obscure legal issues to enter public debate.  The basic idea is straightforward: that the powers of the National Assembly should be defined by setting out what it cannot do, rather than by defining ‘subject areas’ where it does have power to pass laws.  The idea is scarcely novel – it was mooted by the Richard Commission in 2004, and repeated by the Silk Commission in 2014 – but it has acquired political legs following the St David’s Day process with all the parties agreeing to adopt it.

A ‘reserved powers’ approach would offer a number of significant advantages.  It would mean that Welsh devolution works in a similar way to that in Scotland and Northern Ireland – important both symbolically and as a way of making it clearer to the public how a devolved UK works.  It also offers a way to resolve the puzzle created by the UK Supreme Court’s jurisprudence about devolution, and particularly its judgment in the reference about the NHS Recovery Of Medical Costs for Asbestos Diseases (Wales) Bill, [2015] UKSC 3, by enabling the Assembly to legislate for all matters save expressly those reserved to Westminster.  In broad terms, the Scotland Act 1998 provides a valuable model – not necessarily so much in the list of reserved matters in Schedule 5 as in the provisions of the Act for identifying the scope of those reservations and interpreting them in the courts.   At present, the list of proposed reserved matters suggests a list of matters Whitehall departments do not wish to see devolved, unsupported by any wider rationale or principle.  That is not the right way to proceed when drafting a constitution.  It needs some clearer and stronger basis, rooted in a conception of what the UK needs to do at the centre (and why), and what is best done by devolved governments.

The difficulty is that the reserved powers model is not straightforward to apply.  It raises a complex set of legal issues as well, beyond simply deciding what matters should be reserved and which should not.  (That issue is already causing a number of problems – as discussed earlier HERE.)  As part of an august group assembled by the Wales Governance Centre at Cardiff University and the Constitution Unit at UCL (and including Sir Paul Silk and Sir Stephen Laws, former First Parliamentary Counsel), I’ve been looking at these issues in some detail over the summer, and our report considering them has just been published.  It can be downloaded in PDF format here.

There are three key difficulties.  One is the UK Government’s proposal that criminal law and procedure be reserved.  The problem is that criminal offences are often created to ensure that ‘ordinary’ legislation is effective – creating the possibility of a fine or something more serious for breach of regulations, for example.  This could be dealt with by reserving the law relating to key criminal offences such as murder, theft or treason, but otherwise allowing the National Assembly to legislate for criminal matters as well.  That will lead to a significant shift in how the criminal law works in Wales, though, even if policing, the courts and the criminal justice system remain under Westminster’s control.

The second difficulty is the proposal to reserve civil law and civil procedure.  Under the present arrangements, the National Assembly has no direct powers in this area, but equally it has changed the rules considerably in this area through its existing powers.  Legislation like the new rules on organ donation involve a change in the law of agency to enable consent to donation to be deemed; the Renting Homes (Wales) bill makes significant changes to the law of landlord and tenant.  Again, the Assembly needs these sorts of powers in order to be able to make effective laws.  The civil law, like the criminal law, is not a subject – it is a mechanism used to achieve certain objectives, many of which are now devolved.  Remove powers over the civil or criminal law, and the result is a hobbled legislature that cannot in fact do its job.

The third difficulty relates to the legal nature of Wales, and the single legal jurisdiction of England and Wales.  Scotland and Northern Ireland have their own, separate, legal jurisdictions.   This means that laws passed by the Scottish Parliament or Northern Ireland Assembly have effect only within those jurisdictions.  Wales doesn’t, and that causes confusion.  Laws passed by the National Assembly are as much part of the law affecting Teignmouth as that for Tenby, and in some circumstances can have legal effect in England as well.  That needs to be regulated, in the interests of people in both England and Wales.  One can devise specific mechanism to regulate issues of applicability of laws and their enforcement, within the framework of a legal and court system shared between England and Wales.  Alternatively, one could establish a Welsh legal jurisdiction, distinct from that in England if not separate from it.  That raises the question of what a Welsh legal jurisdiction needs to involve or might involve.  (For an argument for a separate jurisdiction, the legal group Justice for Wales has just published a paper – see here for a news report.  Their pamphlet is available HERE.)

What worries us – the group of lawyers, former civil servants and advisers who drafted the report – is that these issues may be ducked in the desire to produce another devolution bill quickly.  (Indeed, the Wales Office’s initial reaction suggests that is exactly their intention.)  If these matters aren’t got right, the likelihood is another round of constitution-making for Wales in a few years’ time, during which the working of Welsh devolution will be hampered and messy, to the detriment of the people of Wales and indeed the whole of the UK.

This post also appears on the Constitution Unit’s blog, here, and on ClickonWales, here.

UPDATE: The press release for the launch can be found on the WGC’s website here.  There’s news coverage from the Western Mail  here, and BBC News here.  It was also covered on BBC Radio Wales (both Good Morning Wales and Good Evening Wales), and Radio 4’s The World at One.

The London launch seminar on 5 October (at which Lord Thomas of Cwmgiedd, the Lord Chief Justice, Sir Stephen Laws, Professor Richard Wyn Jones and I spoke) was live-tweeted, and a Storify of the event can be found here.


Filed under Courts and legal issues, Legislation, Publications and projects, Wales

A ‘reserved powers’ model of devolution for Wales: what should be ‘reserved’?

This post also appears on ClickonWales, the Institute for Welsh Affairs’ blog, here.

Since at least 2004, when the Richard Commission proposed one, there has been significant support in Wales for adoption of a ‘reserved powers’ model – as Scotland and (in a different way) Northern Ireland have.  The call was strongly endorsed by the Silk Commission in its Part 2 report and became UK Government policy with support from all four main parties following the St David’s Day process.  There seems to be an assumption now that a reserved powers model is essentially a technical matter and that the Scottish model can and will be taken off the shelf and applied, with appropriate modifications, to Wales.  That might not be a bad way forward – there’s a good deal to be said for the Scottish legislation, though it’s not a magical way to solve all problems.  But real devils also lurk in the detail of what ‘appropriate modifications’ might be.

What appears to be underway is a process by which Whitehall departments are consulted about what functions they want to see retained, and what they are happy to let go.  The Welsh Government is a marginal player in this process, if it is a player at all, and the Wales Office does not appear to have a strategy to go with its consultation list.  The first fruit of that trawl appeared in the Powers for a Purpose Command paper published in February at the end of the St David’s Day process, as Annex B.

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Filed under Courts and legal issues, Legislation, Publications and projects, Wales, Westminster