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.
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.
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.
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,  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.
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.
Given Tuesday’s Commons debate and vote against the Government (also reported in a Guardian liveblog here), I thought it was worth reposting here an amended version of a short piece which appeared earlier on the Democratic Audit blog.
Chris Grayling’s proposals for English votes for English laws (EVEL) should not be much of a surprise. They are very largely a straightforward implementation of ‘option 3’ set out by the party in the December 2014 Command paper, endorsed in a speech by William Hague in February 2015 and set out in the party’s election manifesto. The Conservatives will claim credit for having done what they said they would.
In doing so, they have not addressed some key problems. First, they have abandoned the McKay Commission’s test of provisions having a ‘separate and distinct’ effect for England. That had the merit of principle. Instead, the test is whether a provision ‘relates exclusively’ to England. But, second, that test is mis-applied; provisions may relate to England in a legal sense but have a major effect on devolved governments, whether through the Barnett formula and consequential changes in funding, or their effects across a border (a major issue for Wales if not Scotland). This means, third, that the problems arising from a piecemeal approach to constitutional change have been maintained and aggravated, not resolved.
There are ways of implementing EVEL that would give England the distinct voice in the Union that it badly needs. That needs a much further-reaching reconstruction of how legislation works, and perhaps the machinery of government too. We canvassed these issues in the recent Bingham Centre devolution review, and set out a path to achieve it. (The report can be downloaded here.) Instead, the Conservatives have ticked a box on their to-do list, but stored up yet further constitutional problems for the future. To work properly, EVEL needs to form part of a much broader programme of reform in Westminster and Whitehall, not be a one-off revision to Commons procedures.
This post also appears as a guest post on the Centre on Constitutional Change blog here, the LSE’s British Politics and Policy blog here, and the Institute of Welsh Affairs blog ClickonWales here.
The impact of the Scottish independence referendum has been wide-ranging. It raises a number of questions about how the UK works as a whole and its territorial constitution, as well as ones about Scotland. But for all the importance and urgency of these issues, they have not yet been subject to any wide-ranging or sustained scrutiny. A new report from the Bingham Centre for the Rule of Law, available here, seeks to change that and look at what issues the UK as a whole will need to address in the coming months and years. The review commission has been chaired by Sir Jeffrey Jowell QC, and its membership is here and remit is set out here.
The Commission’s starting point was to consider the implications of the piecemeal, ad hoc approach to devolution taken so far. Its view is that this has reached the end of its road. The knock-on effects of the Smith Commission proposals for Scotland mean that this now creates serious constitutional difficulties beyond Scotland. A more systematic view, considering the UK as a whole, is badly needed.
The first big recommendation to address that is a Charter of the Union, to be passed as a Westminster statute with consent from the devolved legislatures, and setting out key principles for the working of a devolved union. These draw on what already applies – they include such principles as respect for democracy, the rule of law, autonomy of each government and comity and respect for each other in their dealings with each other. Subsidiarity and social solidarity are also key principles for the Charter of the Union.