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.
As part of a joint Wales Governance Centre and UCL Constitution Unit research project on a reserved powers model for Wales, we decided to look at what Annex B proposes, and how that relates to functions that are reserved in Scotland, or reserved or excepted in Northern Ireland. (Northern Ireland has two categories of powers; excepted powers, on which the Assembly can’t legislate at all, and reserved powers on which it can legislate if the Secretary of State consents.) A table showing our analysis can be downloaded here. It shows whether there are precedents for proposed Welsh reservations from Scotland or Northern Ireland, and what the nature of those reservations is. A second table (available here) is a summary of the first, limited to those matters which are not reserved for Scotland or Northern Ireland.
Those reservations can be put into three categories. One is matters where there are clear reasons why the UK, as a state, needs to retain control of particular matters. These are matters that are reserved for Scotland and also retained (usually as excepted matters) for Northern Ireland – matters like the constitution, foreign affairs, the currency. There are also matters that are related to the social union (like old age pensions and national insurance) or the economic union, like competition law or consumer credit.
A second category is matters that relate to functions that there was no agreement about reserving – notably policing, offender management, and civil and criminal justice. Some of these reservations may create serious difficulties for other aspects of devolution; this is notably the case for the proposed reservations of civil and criminal law. If policing and criminal justice are not to be devolved matters, there is a logic in retaining such matters as control of criminal records, firearms or riot damages at UK level. That case is more tenuous when it comes to such matters as regulating the private security industry, the use of CCTV or anti-social behaviour, but there is still a logic to it given that initial decision not to devolve criminal justice. By the same token, retaining civil law makes reserving such matters as legal aid or claims management logical. Retaining such functions as land charges, land registration or inter-country adoption is less so; again, these merit a substantive policy discussion.
The third category is proposed reservations which have little or no relation to other functions that are being reserved, and are not reserved for Scotland or Northern Ireland. This is a baffling mixed bag of a list. It includes teachers’ pay, student loans, non-energy minerals, licensing the sale and supply of alcohol, licensing entertainment and late-night licensing, the safety of sports grounds and the control of dangerous dogs and hunting with dogs. In each case, it is hard to see the rationale for retaining these; there is no vital UK interest at stake, there is no obvious connection to other reserved functions, and there is no sign of any serious political or policy discussion about retaining them.
The UK Government may well change its proposed reservations as discussion between the Wales Office and Whitehall departments progress. This is simply based on an analysis of what it proposed in February. If it publishes a revised list of reservations, it may well be worthwhile to repeat this exercise for that list.
A ‘reserved powers’ model is not something that can simply be pulled off the shelf to solve some ‘technical’ legal problems. It raises a set of major questions about the division of powers between the UK and devolved Welsh tiers of government – which government should be responsible for what. That calls for a carefully-thought through approach by the UK Government followed by an open public debate, engaging the Welsh Government, the political parties and Welsh civil society. It mustn’t go by the board.