This was first published as an article in the Law Society’s Gazette earlier this week, and can be found on its website here.
Solicitors could be forgiven for being baffled about Welsh devolution, since it keeps changing. The latest episode started in October when the secretary of state for Wales published a new draft Wales Bill.
The draft bill proposed to put Welsh devolution on a ‘clear and lasting’ basis by delivering a ‘reserved powers’ approach to the national assembly’s law-making powers. The bill also proposed to devolve a limited range of further functions relating to matters such as planning for energy schemes or ports and harbours, and to give the assembly power to determine its own size, electoral arrangements and name. But the ‘reserved powers’ approach is at its heart. Seldom has what looks like a technical legal issue turned out to be more vexed or politically charged.
Pre-legislative scrutiny of the draft bill is coming to an end. The Welsh government and national assembly have considered it, and the Commons Welsh affairs committee is finalising its report. But the most detailed, non-partisan scrutiny comes from a major report by a group of lawyers, academics and former officials convened by the constitution unit at University College London and the Wales governance centre at Cardiff University. The report – Challenge And Opportunity: The Draft Wales Bill 2015 – sets out in detail why the draft bill needs to be fundamentally reworked if it is to live up to its promise.
‘Reserved powers’ means that the national assembly would be free to legislate for all matters save those expressly reserved to Westminster. At present, the assembly can only legislate 20 defined ‘subject areas’, including health, education and the environment. Using these powers, it has introduced ‘presumed consent’ for organ donation, looked hard at banning the smacking of children, re-established a body to set wages for farm workers, and is abolishing the distinction between residential leases and licences.
Its powers stretch a long way beyond regulating the public sector, but how far remains legally uncertain, thanks partly to a Supreme Court decision last February. The reserved powers approach is already used in Scotland and Northern Ireland (with modifications). Applying it in Wales would aid legal clarity and bring Wales more clearly into line with the other devolved parts of the UK (making it more straightforward for public lawyers). It would offer significant benefits, if done right. Done wrong, it would make matters worse, not better.
The bill has a number of flaws, but the initial one is simple. It starts by trying to graft the ‘reserved powers’ model on to the existing division of functions between Cardiff Bay and Westminster, without making any significant consequential changes. This has meant limiting the assembly’s powers, in some cases beyond what they are at present. As a result, the assembly could only legislate for matters affecting ‘private law’ – land law, contract and so on – when ‘necessary’ to do so, to give effect to legislation relating to ‘devolved functions’.
The increasing differences in law between England and Wales, which have to be reconciled within the shared legal jurisdiction of England and Wales, would be left to the courts to work out which body of law applies, case by case and ad hoc. All this is to preserve Westminster control of the legal system in general, and the shared legal jurisdiction of England and Wales in particular.
The results would be highly unattractive. The draft bill would result in a hamstrung, ineffective Assembly, which is in no one’s interests. When the assembly cannot act, Westminster would not be able to act either, so Wales would just end up badly governed. Critics may say that it will be a field day for lawyers, but not for many. Litigators might get some work, but others will be left with a complicated task of working out what the substantive rules are and which apply in what circumstances. Ordinary members of the public and small businesses will find it difficult to get legal certainty whenever matters of Welsh devolution arise.
Worse, a tightly constrained national assembly with a complex web of limits on its powers will struggle to make practical law that deals with problems in the real world. The tests the assembly has to pass will be adjudicated by the courts, so judges will have no option but to take an active and recurrent role in the management of Welsh devolution. Effectively, the Supreme Court (which does not have a ‘Welsh’ member) will become the second chamber of the national assembly.
The alternative to this is sketched out in our report. First, ‘necessity tests’ and constraints on devolved legislation affecting private and criminal law must go. Any such test – even a less demanding one, relating to the ‘appropriateness’ or ‘reasonableness’ of legislation – will make the courts key players in Welsh devolution, rather than elected politicians. The assembly needs to be able to use all the mechanisms the law offers to make its legislation effective, including those of reshaping private law and revising the criminal law. On the criminal side, some key offences might be reserved to ensure similarity of the criminal law, but even that creates problems. Reserving the law of homicide is one thing, but assault is another matter, if the assembly is to have the power to decide about banning smacking, for example.
Second, there needs to be a much clearer way to deal with conflicts of law issues – the fact that the law will be different between England and Wales. This could be done by a clear statutory ‘rules-based’ approach, setting down which set of laws applies in which circumstances. Alternatively, it could be done by establishing two distinct legal jurisdictions (of England and of Wales). ‘Distinct’ need not mean ‘separate’.
The same judges would sit, and lawyers practise, in both countries, but would do so in different capacities and would need to deal with different (though largely similar) bodies of law in doing so. Solicitors would be admitted ‘in England and in Wales’, rather than ‘in England and Wales’. Established rules for the conflict of laws would be used to determine what law applied in what circumstances, where there was a conflict. Again, that draws on experiences from Scotland and Northern Ireland.
What Wales – and the UK as a whole – needs is what the secretary of state says he wants: a robust, clear and lasting devolution settlement for Wales. The draft Wales bill is emphatically not it. If enacted in anything like its current form, it would be a horrendous, unworkable mess that would need to be replaced within a few years – perhaps the shortest-lived of the sequence of interim arrangements Wales has had since 1999.
None of that is good news for anyone, least of all legal practitioners. The way forward is going to involve more change, not less, and needs to be carefully thought through. But it offers the hope of a stable and lasting settlement which will benefit all the UK, not just Wales.