Category Archives: Publications and projects

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.

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.


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

The Bingham Centre devolution review: the UK at a constitutional crossroads

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.

The Charter would accompany the specific devolution statutes for Scotland, Wales and Northern Ireland, so they would need to be construed in accordance with it and its principles would govern further considerations of devolution – and indeed changes at UK level.  It would therefore set out a clearer constitutional framework for the UK as a whole, rather than the current ad hoc approach to three distinct arrangements plus an evolving pattern for England.  This might be a staging-post to a written constitution, but it would certainly put the UK’s territorial constitution at the forefront of its constitutional debates over the coming years.

The second major recommendation relates to funding arrangements.  The review is clear that the Barnett formula has had its day.  It does not deliver equity between the various parts of the UK.  It does result in a number of unintended policy spillovers between England and the devolved tier of government, and it gives the Treasury a huge degree of control and scope to make subjective judgements about how the UK’s finances as a whole work.  These are incompatible with the sort of devolved Union that the UK has become, and will only become worse.  The block grant will become increasingly subjective as adjustments are made to allow for devolved tax capacity, to pay for devolved welfare functions in Scotland, and by application of the ‘no detriment’ rule intended to help separate tax policy decisions by both devolved and UK governments (both the subject of forthright criticism by the Scottish Parliament’s Devolution (Further Powers) Committee).  This ‘multiple black box’ approach will become a source of nothing but disagreement and intergovernmental tension.

The Commission’s proposals entail reform of the UK’s devolution finance arrangements, of the easy parts as soon as practicable and of the more difficult ones over time.  The machinery needs an independent, impartial body to advise on financial matters and calculations.  There also needs to be an effective way of resolving disagreements and disputes when they arise, rather than ones that leave the initiative in the hands of the UK Government as at present.  And the block grant arrangements need to be put on a statutory basis rather than resting on a Treasury ‘Statement of Funding Policy’, and be subject to external scrutiny and audit

Linked to this is the need for a wider debate about welfare and the Union; how much the Union is responsible for delivering social solidarity and how, and the ways this relates to the arrangements for funding devolution.  This political choice has such wide-reaching effects it needs to be explicitly debated, not implied by other decisions.

The third major recommendation relates to ‘English votes for English laws’.  The report supports the principle that bills or provisions which satisfy the McKay Commission’s test of having a ‘separate and distinct effect’ for England should be subject to consideration by English MPs alone, within the House of Commons.  The problem will come with identifying what these bills are.  The government of the day may have a view about this, but ultimately deciding this will have to be a job for someone with authority and expertise or access to it, so probably the Commons Speaker.  It will need to take into account not only the policy implications of a decision about health, education or policing, but also the financial implications.  This will be tricky, and is an argument for both disentangling devolved and non-devolved finances and for separating the way finances and policy are considered within Parliament.

The fourth major set of recommendations relate to the UK Government, and particularly Whitehall. Whitehall needs to pay much more attention to devolution concerns; it needs to ensure that the machinery of intergovernmental co-ordination actually works; and it needs to reinforce ministerial capacity.  The last is a strong reason for a single Secretary of State for the Nations and Regions, or for the Union.  The absence of an effective overview at ministerial level has made the disjointed structure of the UK much worse.  Without much greater care about what devolution means, and the relationship between devolved and non-devolved functions, it will be impossible to distinguish between devolved and non-devolved financial matters or between legislation that has a ‘separate and distinct’ effect for England and that which does not.  Treating devolution as some sort of add-on or variation from an English ‘norm’ has also had its day.

In September 2014, Scottish voters chose to stay in a reformed Union rather than leave it.  There is strong public support for greater self-government in Wales and England as well.  Northern Ireland, as part of the Union, needs and deserves a system that works effectively.  The Commission’s proposals are designed to lay the groundwork for a union that delivers on those demands.




Filed under Conservatives, Devolution finance, English questions, Northern Ireland, Publications and projects, Scotland, Wales, Westminster

Bingham Centre review of devolution in the UK

For the last few months, I’ve been working with the Bingham Centre for the Rule of Law on a major inquiry into devolution and how it should develop, from the point of the UK as a whole. The starting point has been constitutional: what sort of constitutional system has emerged given the fragmented nature of the process of devolution in Scotland, Wales, Northern Ireland and across England. Our committee has been chaired by Professor Sir Jeffrey Jowell QC, Director of the Bingham Centre, and includes such figures as Professor Linda Colley, Gerald Holtham, Sir Maurice Kay, John Kay and Philip Stephens of the FT. (Full details of the committee are here.) Adam Tomkins and I have acted as advisers to the committee.
We’ll be publishing the report on 20 May, with a launch at Middle Temple Hall, and have a number of important recommendations for how the UK should work which we hope will shape the actions of the incoming UK Government, whatever political complexion it may have. Key to these is the need now to think about devolution as affecting the UK as a whole, and what the nature of that Union is – not unitary, but not federal either. No new government can afford to ignore these issues, or fail to try to tackle them.

UPDATE: Anyone wanting to come to the launch should email Sandra Homewood on s.homewood[at] to confirm their attendance. 

UPDATE, 21 May:  The report, A Constitutional Crossroads: Ways forward for the United Kingdom, can now be downloaded here as a PDF file.

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Filed under Devolution finance, English questions, General, Northern Ireland, Publications and projects, Scotland, Wales

Improving intergovernmental co-ordination: better intergovernmental relations and better devolution

I’ve a report out today on the procedural aspects of intergovernmental relations.  This was commissioned by the UK Changing Union project through the Wales Governance Centre at Cardiff University, and can be found on their website here. Today was also the day when the plenary Joint Ministerial Committee met; it agreed, among other things, a full-scale rewrite of the Memorandum of Understanding.  As this post argues, such a rewrite is overdue. 

Intergovernmental relations are key to making devolution work effectively. The Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly all operate in a wider context of governance across the UK, and how their functions overlap with those of the UK Government (and other governments) is vital for all four governments and all UK citizens. The Smith Commission’s recent report pays a good deal of attention to the need to ‘scale up’ intergovernmental co-ordination as part of the package of further devolution.

The UK Government is not very interested in managing intergovernmental relations, however. It put in place an attenuated under-institutionalised set of mechanisms in 1999, and has allowed that to weaken or fall further into disuse since then. The key institution is the Joint Ministerial Committee. Plenary meetings of that ceased altogether between 2002 and 2008; they have been more or less annual since then, but are characterised by grandstanding rather than productive work. The JMC’s ‘Domestic’ format has nearly ceased to function, as so few policy issues concern more than one devolved government. The only established format of the JMC which does meet regularly, and does more or less what it was expected to, is the EU format which helps formulate the UK ‘line’ for major EU Council meetings, though there are problems even there. In reality, most intergovernmental issues are bilateral, but with few exceptions they are dealt with in an ad hoc, casual way, out of sight of public or legislatures, and many important issues slip through the net.

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Filed under Intergovernmental relations, Northern Ireland, Publications and projects, Scotland, Wales, Whitehall

Stevenson Lecture in Glasgow, 11 November

I shall be giving a lecture in Glasgow at 6pm on Tuesday 11 November, in the series of Stevenson Trust Lectures on ‘Scotland’s Citizens: The Referendum and Beyond’.  My lecture will be on ‘Devo More not Devo Max: The realistic possibilities’, and I’ll be explaining the issues relating to further devolution, what might be practicable and what isn’t, and why.  There should be plenty of time for questions afterward, both in the lecture hall and informally over drinks.

The lecture takes place in the Sir Charles Wilson Building on Glasgow University’s main (Gilmorehill) campus.  Further information is available from the organiser, Kevin Francis, at, or

UPDATE, 12 November: The slides from my lecture can be found here.

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‘Scotland on Sunday’ piece on the Smith Commission and delivering further devolution

I’ve an article in today’s Scotland on Sunday about how the referendum result defines the scope of the work of the Smith Commission, and what it can and cannot deliver.  I argue that the referendum choice excludes some options, because they are incompatible with the Union that Scots voted to remain part of on 18 September, and that attempts to widen the process will be obvious as attempts to frustrate it.  It can be found here.

UPDATE: The text of the article as originally filed is now pasted below.

The Smith Commission starts its work with two great advantages over predecessors like the Calman Commission, the National Conversation, or even the Scottish Constitutional Convention. First, it has all the major parties involved. Second, its remit is clear: it is not just to consider Scotland’s constitutional future, but to do that in the context of Scotland remaining part of the United Kingdom. For the first time, all the actors are involved, and the purpose is clear: to work out a sensible model for further devolution for Scotland, recognising that Scotland’s future lies in the United Kingdom not outside it, and that this must be decided soon.

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