Lifting the fog surrounding devolution

John Osmond says the case for a Welsh jurisdiction should be part of the Westminster Government’s plans to examine how the Assembly is working

In response to my article about Plaid Cymru last week, in which I called for a Welsh jurisdiction to allow the National Assembly’s primary legislative powers approved in the March referendum to be exercised effectively, Peter Price queried the necessity. He asked, “What would be the practical effects of the Welsh jurisdiction for which you call and why is it of such importance?”

As a Liberal Democrat lawyer, a former Member of the European Parliament, and a member of the Richard Commission Peter Price should be able to answer this question himself. However, since he also said a Welsh jurisdiction “means different things to different people” I shall try to explain what I think establishing a Welsh jurisdiction means and why it needs to be placed higher up the agenda as a result of the Yes vote in the referendum.

The yes vote considerably strengthened the case for creating a distinctive Welsh jurisdiction has been strengthened. As a discrete body of Welsh law grows, it is becoming increasingly difficult to make the single ‘England and Wales’ legal jurisdiction work. Furthermore, the development of a distinctive Welsh legal personality is calling into question the Welsh model of devolution in which powers are itemised and conferred on the National Assembly in complex and detailed legislation. This contrasts with the simpler Scottish model, in which all powers are devolved except specific matters, such as defence and foreign affairs, which are reserved to Westminster.

The case for a Welsh jurisdiction once the Assembly had primary legislative powers was first raised as a substantive issue by First Minister Carwyn Jones in an article in the Summer 2009 issue of the IWA’s journal Agenda. He argued that the increasing divergence of law in relation to England and Wales, and the bilingual character of Welsh legislation were giving impetus to the case. But the essential case was that nowhere else in the world do two primary law making bodies exist within the same jurisdiction. As Carwyn Jones put it:

“Once the National Assembly is able to exercise primary legislative powers, following a referendum, I think it is inevitable that we will have to consider creating a distinctive legal jurisdiction for Wales. It is a question which neither the Welsh Government, nor the legal community in Wales can shy away from.”

However, the more immediate and urgent case for a separate Welsh jurisdiction is that it will enable us to move to the Scottish model of devolution. This would replace the present position in Wales where, even after the 3 March referendum, all the Assembly’s powers are expressly transferred, that is to say they are ‘specified’ or ‘conferred’ powers.

At the time of the 1998 Wales Act more than 5,000 different functions for the National Assembly were drawn together from some 350 pieces of legislation and placed in a Transfer of Functions Order. Since then, many more additions and alterations have been made by subsequent Transfer Orders, new legislation and amendments to legislation. The result has been the creation of a quagmire in which it is difficult, even for legal experts, to determine what functions the National Assembly has in any particular field. For the ordinary person, and even for most Assembly Members, it is often impossible to work out precisely what the Assembly’s powers are. As the constitutional expert Professor Keith Patchett put it in his contribution to the IWA’s 2003 collection of essays Birth of Welsh Democracy:

“Keeping track of the instruments used for conferring functions and ascertaining whether or in what form a function exists, as well as any statutory constraints as to its exercise, present real problems for the user.”

In short, the quagmire of the Assembly’s powers contributes most of what Sir Emyr Jones Parry, chairman of the All-Wales Constitutional Convention, called the “fog of understanding” that surrounds devolution.

The cause of much of the confusion that surrounds devolution is not just a matter of what the Assembly is empowered to do, but also discovering what it can’t. The National Assembly’s powers are listed in a number of Schedules to the 2006 Wales Act. At the same time, however, ‘Exceptions’ to these powers are listed in Parts 1 of Schedule 5 and Schedule 7 to the Act. In addition, and even more opaquely, Part 2 of Schedule 7 lists ‘General Restrictions’. It is these that cause the fog to become pea soup. They prevent the National Assembly trespassing, through legislation, on the functions of a Minister of the Crown exercisable in Wales, unless the Minister consents. However, and bizarrely, Welsh legislators cannot even find a list of these ‘Restrictions’. The many and various UK Ministerial functions which have the potential to impact on the Welsh Government’s decision-making simply crop up from time to time, as a kind of bear trap for our legislators.

For example, in the last Assembly a Legislative Competence Order allowing the Welsh Government to pass into law a Measure requiring seat belts to be fitted to school buses – which had been proposed following a tragic accident in the Vale of Glamorgan – would have required the agreement of the Department of Transport. This was because it remained a Ministerial power, albeit one that this was not immediately obvious from a reading of the ‘Exceptions’ under the Highways and Transport Field in Part 1 of Schedule 7 to the 2006 Wales Act.

Issues of this kind have to be dealt with on a case by case basis even though the National Assembly now has primary legislative powers following the referendum. They are a reflection of the disadvantages of the Assembly’s powers being conferred in specific detail, and often subject to specified exceptions, rather than everything being devolved in broad terms, as is the case with the Scottish Parliament. There is a considerable difference between Scotland being able to legislate on everything unless it is specifically prevented from doing so, and Wales not being able to legislate on anything unless it is given the specific power to do so.

While the 2006 Act sets out exceptions to its stated powers, the uncertainty lies in the lack of clarity in knowing what powers UK central Government Ministers retain in devolved areas in relation to Wales. As I say, there is no agreed statement of these powers. The problem was illustrated by the Assembly’s wish during the last session to legislate to prevent the smacking of children. There would have been a legal sanction imposed against smacking. However, in the absence of an agreed list of UK central Government functions exercisable in Wales, the criminal law was claimed by the Attorney General’s Office in Westminster as a matter entirely for UK Government Ministers in relation to both Wales and England. Yet this overlooked the express powers of the Assembly to create criminal sanctions to underpin its legislation of up to two years imprisonment or up to a £6,000 fine.

What is the relevance of a Welsh jurisdiction to all of this? Put simply, Wales did not follow the simpler Scottish model for devolving powers because we are incorporated in a single England and Wales jurisdiction. This was stated in terms in November 2006 in a Joint Memorandum from the then Secretary of State for Wales, Peter Hain, and then First Minister, Rhodri Morgan, to the Welsh Affairs Committee, which is also cited in the Explanatory notes to the 2006 Government of Wales Act. As they say:

“If the Assembly had the same general power to legislate as the Scottish Parliament then the consequences for the unity of the England and Wales legal jurisdiction would be considerable. The courts would, as time went by, be increasingly called upon to apply fundamentally different basic principles of law and rules of law of general application which were different in Wales from those which applied in England. The practical consequence would be the need for different systems of legal education, different sets of judges and lawyers and different courts. England and Wales would become separate legal jurisdictions. … In order to avoid this result the simplest solution is to follow the Scotland Act 1978 model, limiting the legislative competence of the Assembly to specified subjects.”

Of course, as a result of the outcome of the March referendum we have taken a major step in the Scottish direction since the National Assembly can now enact primary legislation in its areas of responsibility without first having recourse to the Westminster Parliament. What we need now is the same “general power” to legislate as the Scottish Parliament, without all the encumbrances of the ‘Exceptions’ as laid down in the 2006 Act, and the bear traps of UK Ministerial prerogatives. In short we need to assert the essential sovereignty of the people of Wales as represented by the National Assembly and its primary powers that were approved in the 3 March referendum. But to achieve that we will first need to establish our own distinctive legal jurisdiction. In turn that will require a new Wales Act at Westminster, first to create a Welsh jurisdiction and then to install the Scottish devolution model in relation to Wales.

All this has some contemporary urgency since the London coalition government is shortly to announce the formation of a Commission to review the way the devolution settlement is operating in Wales. In the foreground are fiscal matters, the Barnett-derived block grant, and borrowing and taxation powers. But the Welsh Government should insist that the case for a jurisdiction and for the Scottish devolution model to be applied to Wales should also be part of its terms of reference.

John Osmond is Director of the IWA.

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