Category Archives: Legislation

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

Unlocking the lockstep?

There are interesting changes to the ‘Calman’ model of income tax in the Wales bill (which had its Commons second reading on Monday) and the Finance bill (which had its Commons second reading on Tuesday).

The ‘Calman’ model applies a ‘lockstep’ to the devolved income tax rate, which has to be the same for all three tax bands (basic, higher and additional or 45 per cent). That rate can be 0 per cent, 10 per cent (as it is at present) or some other figure but it must be the same for all three bands – so if the devolved rate were nine per cent, you would have tax rates of 19, 39 and 44 per cent. While this question did not attract particular attention when the Scotland Act 2012 was going through the UK and Scottish Parliaments, it has been controversial in Wales. It was not recommended by either the Holtham or Silk Commissions, and has attracted criticism from the Commons Welsh Affairs Committee, the First Minister (who called the power with the lockstep ‘pretty useless’) and the Plaid Cymru and Welsh Conservative leaders.

The provisions in the Wales bill mark a change from the draft bill published before Christmas. Instead of providing for a single ‘Welsh rate of income tax’ across all three bands, the key operational clause now provides for Welsh basic, higher and additional rates and defines each of them separately (see clause 9 of the bill). Clause 289 and Schedule 34 of the Finance (No 2) bill make similar changes to the finance provisions of the Scotland Act 2012. (Both bills also provide for beefed-up arrangements for reports on devolved tax powers by the Comptroller and Auditor General, something that was conspicuously missing from the Scotland bill.)

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Filed under Calman Commission/Scotland bill, Devolution finance, Legislation, Scotland, Wales

Evidence to the Holyrood Referendum Bill Committee

I gave evidence last Thursday to the Scottish Parliament’s Referendum (Scotland) Bill Committee, which is considering the section 30 order that forms part of the ‘Edinburgh Agreement’ between the UK and Scottish Governments as a preliminary to the Referendum Bill proper.  (My earlier post on that is HERE.)  I appeared with Professor Aileen McHarg from Strathclyde University; Michael Moore, the Secretary of State, followed us.

My memorandum can be found here, and the transcript is available here.  I can even be watched giving evidence on the BBC’s Democracy Live website, here.

My appearance, and remarks about the role of the Electoral Commission, led to coverage in the Herald on Thursday here, and in the Scotsman, leading page 1 on Friday, here.  The other slightly surprising issues to come up in questioning were the role of the Civil Service and the Continue reading

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Filed under Intergovernmental relations, Legislation, Referendums, Scotland, Scottish independence, Whitehall

The Welsh Byelaws bill and the UK Government: an update

The Welsh Government has released a good deal of correspondence regarding the progress of the Byelaws bill and the legal problem that has led to it being referred to the UK Supreme Court, which I discussed earlier HERE.  It is interesting that they have chosen to do this (and it is a choice), as section 28 of the Freedom of Information Act 2000 provides a broad exception to the Act if ‘disclosure under this Act would, or would be likely to, prejudice relations between any administration in the United Kingdom and any other such administration.’  Clearly the Welsh Government do not think it would, and it is encouraging that the Welsh Government has been willing to put this material in the public domain, although it has used the public interest exemptions in section 36 to exclude some internal notes and material.  (Just in case anyone was wondering, I was not involved in the FoI application.)  The hearing before the UK Supreme Court is due to begin next Tuesday, 9 October.

The letter explaining the disclosure can be found here, and the documents disclosed are at the bottom of that page.  They include the formal reference by the Attorney General to the Supreme Court, setting out the detailed legal grounds for the reference and drafted for him by Counsel, which is also here.

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Filed under Courts and legal issues, Intergovernmental relations, Legislation, Wales, Whitehall

Welsh byelaws and the UK Supreme Court

This post also appears on the UK Constitutional Law Group blog, here

At the end of July, we learned that the UK Attorney-General has referred the first Act of the National Assembly passed since the March 2011 referendum to the UK Supreme Court.  There’s news coverage of this from the BBC here, and a good analysis from Toby Mason of BBC Wales here.  This is the first time that any devolved legislation has been referred to the Supreme Court before receiving royal assent; it is the first time the UK Government’s law officers have challenged the legal competence of devolved legislation; and it is the first time that legal challenges involving Welsh legislation have been brought.  Any one of those would make it a noteworthy event indeed.  To find all three of them in one place – coupled with a significant legal issue – makes it a case of rare interest.  The latest information is that there will be a hearing in early October.

This post will discuss what the case is about, how it comes before the court and what the constitutional political issues at stake are, as well as the black-letter legal ones.  It is a case of interest that goes far beyond Wales, because although there are significant differences between the Welsh arrangements and those for Scotland or Northern Ireland, the case also raises some rather broader questions about the legal working of devolution.

This is not the first time Wales has broken new ground in challenging how devolution works, of course.  Most notably, Wales was the first jurisdiction to refuse consent to Westminster legislation affecting a devolved function under the Sewel convention – aspects of the Police Reform and Social Responsibility Act 2011.  Perhaps the more provisional, evolutionary nature of the Welsh arrangements mean that it is more prone to test the legal aspects of its devolution arrangements than Scotland or Northern Ireland, where they are more clearly established.

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Filed under Courts and legal issues, Intergovernmental relations, Legislation, Wales, Whitehall

The rentrée in Scotland

Autumn started with a bang in Scotland: a Programme for Government and plans for new legislation, including a referendum bill; a government reshuffle, and a host of policy initiatives.

First, Alex Salmond’s reshuffle of the Scottish ministerial team.  The official press statement is here.  Key moves are Nicola Sturgeon’s move to Infrastructure, Investment and Cities, along with a constitutional brief; Alex Neil’s swap with her, from Infrastructure to Health; the departure from government of Bruce Crawford and Brian Adam; and the appointment of Humza Yousaf as Minister for External Affairs and International Development.  There has been something of a structural rejig.  The Minister for Transport and Veterans (Keith Brown) and a new post of Minister for Housing and Welfare (Margaret Burgess) are to report to Sturgeon as Infrastructure Secretary.  That may give Sturgeon more time for her constitutional brief.  Yousaf reports to Fiona Hyslop as Cabinet Secretary for Culture and External Affairs.  The new Minister for Parliamentary Business is Joe Fitzpatrick, and is both whip and government business manager, but not a Cabinet Secretary.  Burgess, Yousaf and Paul Wheelhouse (new Minister for Environment and Climate Change) all come from the 2011 intake of MSPs.

In contrast to the rather sprawling nature of the UK Coalition Cabinet (23 full members, its statutory limit, but 32 attendees – and there are also quite a few unpaid junior ministers to deal with the overall limit on the size of the government payroll), the Scottish Government are eager to point out that there are still only eight Cabinet members, and (by my reckoning) 10 non-Cabinet Ministers.  Having a single-party government helps a lot, of course, and the Scottish Government’s responsibilities are much narrower, but even so the difference is telling.

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Filed under Legislation, Referendums, Scotland, Scottish independence, SNP

The Welsh legislative programme for 2012-13

With rather curious timing, the Welsh Government announced its legislative programme for the coming year just before the summer recess.  The news release is here, and there’s news coverage from the Western Mail here.  This announcement follows one last year, laying out a legislative programme for the whole of the Assembly’s term.

There are eight bills for 2012-13.  Several of these are likely to test the limits of the National Assembly’s law-making powers, either because of the scope of Schedule 7 as it is drafted, or because of their effects on the remaining powers of UK ministers.  The latter is particularly like to be a problem with the Human Transplantation bill, creating an opt-out rather than opt-in regime for organ donations.  (The organ transplantation system is presently run on a UK-wide basis by NHS Blood & Transplant, for which the UK Secretary of State for Health is responsible, and regulated by another UK body, the Human Tissue Authority, although that is slated to have its functions changed under the Public Bodies Act 2011.  See HERE for further discussion of the legal problems it faces.)  Similar issues may arise with the Education, Local Democracy and perhaps Social Services bills, depending on how those are framed.  That means that issues of amending Schedule 7 (for which new procedures were set out in the early summer), or obtaining the Secretary of State’s consent where there is an effect on a UK ministers’ functions, will be needed.

One thing is very clear about legislating in Cardiff Bay; the new arrangements under Part 4 of the Government of Wales Act 2006 replaced one set of difficulties with another.  The National Assembly simply does not have an untrammelled power to legislate for ‘health’ or ‘education’, even if the general public has the impression that it should.

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Filed under Labour, Legislation, Wales

The UK reshuffle and the territorial offices

The UK Government’s ministerial reshuffle may lead to further tensions within the Westminster Coalition, but it has been one of pretty limited change, as far as the territorial offices are concerned.  Full details of all the new ministers can be found on the No 10 website, here.

There has been no change at the Scotland Office at all, with Michael Moore and David Mundell remaining in place.  Lord Wallace does so too, as Advocate General for Scotland.  The opportunity of putting a more ‘campaigning’ politician in charge has not been taken, even with the independence referendum looming, and although the heavy legislative work of getting what is now the Scotland Act 2012 drafted and onto the statute book is now done.  The only major item of legislative business on the immediate agenda is the section 30 order regarding the referendum (which Severin Carrell suggests here is close to agreement between the two governments).

The Wales Office has seen the departure of Cheryl Gillan as Secretary of State, and the promotion of David Jones, the former junior minister, to replace her.  That follows a determined lobbying campaign from Welsh Conservative MPs for the new Secretary of State to have a Welsh seat, and suggests minimal change in the UK Government’s approach.  Jones has already emphasised his desire for a ‘very good business-like relationship’ with the Welsh Government.  The interesting shifts of role and personnel are at the junior level.  Stephen Crabb has been promoted within the Whip’s office (though he was never the ‘Welsh whip’), and also made parliamentary under-secretary of state.  Baroness (Jenny) Randerson, former AM and Welsh Lib Dem Minister, has also become an (unpaid) parliamentary under-secretary, for which the Lib Dems are said to have fought hard.  Given her company among colleagues who have been regarded as ‘devo-sceptics’ (though they now emphasise their support for devolution), it’s interesting that she emphasises that she is a ‘committed devolutionist’ in the Welsh Lib Dem press notice announcing her appointment.

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Filed under Conservatives, Intergovernmental relations, Legislation, Lib Dems, N Ireland corporation tax devolution, Northern Ireland, Scotland, Wales, Whitehall

New Welsh Devolution Guidance Notes

Through the Cardiff seminar on ‘A separate Welsh Legal jurisdiction’, (see post above) I learned that the Wales Office has now quietly published two new Devolution Guidance Notes concerning the new legislative arrangements.

Devolution Guidance Notes are rather important parts of the knitting that make the devolved UK work. Collectively, they can now be found on the Cabinet Office’s website here.  Although they are only internal guidance to UK Government departments, they lay down important procedures for how Whitehall should in fact deal with the devolved governments and legislatures.  They also result from discussions with the devolved government concerned, so although they should not be regarded as agreed documents, they do take into account some devolved concerns.

The new DGNs are Devolution Guidance Note 9, Post Devolution Primary Legislation affecting Wales, and Devolution Guidance Note 17, Modifying the Legislative Competence of the National Assembly for Wales.  DGN 9 has been through repeated editions, following the various legislative dispensations for Wales; the new one replaces one designed for Part 3 of the Government of Wales Act 2006, which was issued in November 2005.  DGN 17 is wholly new, and deals with the possible (indeed, likely) need to amend the legislative powers set out in Schedule 7 to the 2006 Act under section 109 of the Act.  (Unlike legislative competence orders made under section 95, there are no defined procedures for such orders – or any formal way for the National Assembly to seek to obtain one.

It’s not clear when the new DGNs were actually made or published.  There was no announcement of their publication on either the Cabinet Office or Wales Office websites (so one would have to be very vigilant to have spotted their publication), and the new notes bear no date – but they are pretty new.  The new DGN 9 can be found here, and DGN 17 is here.

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Filed under Intergovernmental relations, Legislation, Wales, Whitehall

The Queen’s speech and the UK Government’s legislative programme for 2012-13

The Queen’s speech given today launches a pretty modest UK legislative programme.  Whatever the reasons for that – failure to agree between the Coalition partners (see Patrick Wintour’s view that it’s largely a Lib Dem programme, here) or giving priority to other issues which don’t need legislation – it’s notably limited when it comes to the sort of domestic legislation that tended to throw up devolution issues while Labour were in office.  Nonetheless, more such questions lurk within it than may be obvious at first glance.

The text of the Queen’s speech can be found here.  The Cabinet Office’s remarkably interesting briefing notes on it – which give information about the content of the bills – are here.

Those notes include summaries of territorial extent and implications for devolution, which suggest rather greater consideration has been given to devolution questions than has been the case when many previous legislative programmes were announced.  Indeed, that was conspicuously missing in the Coalition’s first Queen’s speech.  If that was an example of poor practice in that regard, this is an example of pretty good practice.

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Filed under Conservatives, Courts and legal issues, Intergovernmental relations, Legislation, Lib Dems, Westminster, Whitehall