A ‘reserved powers’ model of devolution for Wales: what should be ‘reserved’?

Alan Trench says the proposed ‘reserved powers’ model of devolution for Wales should be carefully thought through.

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.

Alan Trench is I am an academic, associated with the University of Ulster, the University of Edinburgh, and the Constitution Unit at University College London where I’m an honorary senior research associate.

18 thoughts on “A ‘reserved powers’ model of devolution for Wales: what should be ‘reserved’?

  1. English Medium Education; Policing; Justice; Reinstatement of full HR remit for EHRC in Wales + ‘Loads More’ – Welsh Devolution has been hijacked by Welsh nationalists in the Labour Party and only works for circa 10% of Welsh population (Welsh speaking Elite) – Debate on Social Engineering by compulsion stifled and censored by the mainstream Welsh media, especially BBC Wales!

  2. Policing is going to come at some point, so why not now?

    How do you end this constant constitutional wrangling? For me, create a separate Welsh jurisdiction (which would obviously include the devolution of policing and criminal justice), income tax powers without a referendum, airport taxes and as much power over energy as possible.

    After this, it would be very hard to argue for much more.

    Stephen Crabb says he wants to end the constitutional debate, he better start doing some serious work then.

  3. Jacques. Your problem is you insist on living in Gwynedd, which people are trying to preserve as the last Welsh speaking community on earth. Why not move somewhere else in Wales, where there is very litttle Welsh and it would not be an issue for you? You would be relieved and the rest of us could be spared your endless, inaccurate ranting.

  4. Timely warning from Alan Trench. Surely the devolutionists in the Welsh Conservative Party will get on to Stephen Crabb and make sure he keeps an eye on this. The point is the Whitehall bureaucrats will put down the first thing that comes into their head but the bottom line is they couldn’t care less one way or the other. A bit of sound argument and stiff resistance and the Secretary of State can get what he wants.

  5. It’s time we asked the people of Wales if we still want a devolution given that the Welsh government will soon be assigned tax varying powers.

    I suspect the answer will be in the negative.

    What to do then?

  6. Rhobat Bryn Jones, In 2011 we voted on this question:

    “Do you want the Assembly now to be able to make laws on all matters in the 20 subject areas it has powers for?”

    Matters have worsened rather than improved. We have the worst education standards in the western world. On many measures we have the worst health service in the western world. And we certainly have the most expensive and least efficient local government in the western world.

    i don’t think many want this sad state of affairs to continue, not least the Westminster government that cannot afford another generation of Welsh welfare recipients.

    Time we moved on!

  7. The issues you raise, education, health and local government are the responsibility of the Welsh Assembly. The people of Wales were very clear that they wanted this body to have the powers to deal with these issues. If you don’t like what the Government is doing, then vote for a party that does.

    It does not follow that because there are problems to be resolved here, the answer is to hand it all back to Westminster, who made an absolute dog’s breakfast of our economic development. We are still having to clear up the problems left behind by a Westminster government more interested in the financial services sector in SE England than in the economic needs of our population and businesses.

    The people’s vote was clear and we proceed on that basis, whatever your personal views on the matter. Glad to see you’re willing to move on.

  8. What should be reserved? Everything Wales can’t afford to pay for! Which is roughly 45% of the Treasury expenditure Wales soaks up… Plenty of choice then!

    I have come to see ‘moving on’ as a euphemism for moving out – is it just me?

  9. JRW The present situation corresponds to what you want. Welsh tax receipts at some £17-18 billion more than cover the devolved spending of the Welsh government at some £15 billion a year. The tax does not cover welfare payments in Wales, some £9-10 billion, but they are not devolved. Proposed increases in powers would not alter that siuation much. There is suggestion that welfare or defense be devolved.

  10. Karen, every poll ever taken shows the welsh to be overwhelmingly in favor of devolution and why wouldn’t they?
    You seem to have a problem with the welsh language, the welsh having any sort of power, You deny welsh history and welsh nationhood. Why are you even on this site?

  11. What has devolution given wales so far. Don’t let facts get in the way of your agenda Karen.
    this is a small list i made ages ago. I could add to it tbh.
    free prescriptions for all
    · Nine new hospitals and huge investment in new hospital equipment .
    · New Kidney Transplant Unit, PET scanner and Women’s Unit at UHW.
    · New Cardiff and Vale Breast Centre.
    · No smoking in public places.

    · Biggest investment in school buildings ever.
    · Thousands more teachers and teaching assistants.
    · The Foundation Phase – new education system for 3-7-year-olds.
    · Free breakfast schemes in over 1000 schools – 56 in Cardiff.
    · UK’s first Children’s Commissioner.
    · Free nursery places for all 3 and 4-year-olds.
    · Thousands more modern apprenticeships.

    · Funding for eco-schools.
    · Reduction in use of plastic bags.
    · More Blue Flag beaches.
    · Investment in renewable energy and recycling.
    · Grants for insulation and new boilers.

    · Free bus passes for the over-60s and the disabled – 64,111 in Cardiff.
    · World’s first Older People’s Commissioner.
    · Free swimming for school children and older people.
    · ProAct and ReAct schemes to combat global recession and keep people in work.
    · Free entry to national museums and galleries.
    · Wales for Africa scheme.
    · 1305 additional affordable homes in Cardiff.
    · £7 million extra to mend potholes and buy road salt — £677,000 in Cardiff.
    · Welsh students protected from the tuition fees hike facing students in England
    · Free school breakfasts kept – the English government want to scrap them
    · Educational Maintenance Allowance kept for young people in Wales– scrapped in England,
    · NHS kept market-free.
    · Welsh Jobs Fund promised to create 4,000 jobs for young people– Tory-led coalition scrapped .Future Jobs Fund.
    · 500 more Police Community Support Officers promised .

    The value of exports from Wales more than doubled between 1999 and 2013″ doubled since the set up of the assembly.

    Bellow are some of the things i could find that devolution has given wales so far with limited powers.

    .free prescriptions for all
    · Nine new hospitals and huge investment in new hospital equipment .
    · New Kidney Transplant Unit, PET scanner and Women’s Unit at UHW.
    · New Cardiff and Vale Breast Centre.
    · No smoking in public places.

    · Biggest investment in school buildings ever.
    · Thousands more teachers and teaching assistants.
    · The Foundation Phase – new education system for 3-7-year-olds.
    · Free breakfast schemes in over 1000 schools – 56 in Cardiff.
    · UK’s first Children’s Commissioner.
    · Free nursery places for all 3 and 4-year-olds.
    · Thousands more modern apprenticeships.

    · Funding for eco-schools.
    · Reduction in use of plastic bags.
    · More Blue Flag beaches.
    · Investment in renewable energy and recycling.
    · Grants for insulation and new boilers.

    · Free bus passes for the over-60s and the disabled – 64,111 in Cardiff.
    · World’s first Older People’s Commissioner.
    · Free swimming for school children and older people.
    · ProAct and ReAct schemes to combat global recession and keep people in work.
    · Free entry to national museums and galleries.
    · Wales for Africa scheme.
    · 1305 additional affordable homes in Cardiff.
    · £7 million extra to mend potholes and buy road salt — £677,000 in Cardiff.

    · Welsh students protected from the tuition fees hike facing students in England
    · Free school breakfasts kept – the English government want to scrap them
    · Educational Maintenance Allowance kept for young people in Wales– scrapped in England,
    · NHS kept market-free.
    · Welsh Jobs Fund promised to create 4,000 jobs for young people– Tory-led coalition scrapped .Future Jobs Fund.
    · 500 more Police Community Support Officers promised .

    The value of exports from Wales more than doubled between 1999 and 2013″ doubled since the set up of the assembly.

  12. Karen, the swing in favour of devolution between ’79 and ’97 was around 30 points. Since then nearly every poll I have ever seen has been in favour of more devolution (or at the least in favour of the status quo).

    Let’s take 2011, where the people of Wales hated devolution so much, they could barely muster a hundred people to argue against it. The ‘No’ campaign was truly pathetic.

    The number of people who are in favour of abolishing the Assembly is similar to the number who support independence (and I’m being generous). On a bad day, as low as three per cent, on a good day as high as ten. There is no silent majority.

    This is the last time I will bite. I know people like you get off on that. You really have to move on and find something more productive to do with your life.

    You have lost.

  13. Glyn Thomas; there has been no poll that shows a majority in favour of more devolution (including independence). Two polls that asked a question about further devolution, ICM/BBC St David’s day 2014 and 2015 showed support for Independence at 5% and 6%. Support for abolition of the Assembly was 23% and 13%. Can you come up with the polls that show 3% to 10% support for abolition of the Assembly?

  14. Remains me of those English nationalists saying they are the silent majority who have never spoken yet, when the rest of the country would just like them to shut up for more than 5 minutes.

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