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.
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.
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]binghamcentre.biicl.org 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.
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.
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 firstname.lastname@example.org, or email@example.com.
UPDATE, 12 November: The slides from my lecture can be found here.
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.