Over the course of this Assembly, there have been three occasions where our Bills have had to go before the Supreme Court before they could become law.
On each occasion, this came about because there was uncertainty about the scope or range of the Assembly’s powers to make laws. This leads to an unsatisfactory situation where laws agreed by democratically elected Members can be delayed or even rejected by the courts, as a consequence of an unclear set of powers.
I have long argued that the current conferred powers model (which specifies areas in which the Assembly can legislate) is unsatisfactory.
Like many people, I would prefer to move to a reserved powers settlement – as they have in Scotland and Northern Ireland (which would specify areas in which the Assembly cannot legislate) and so welcome the commitment in the UK Government’s St David’s Day announcement to do so.
However, shifting to a reserved powers model is not simple, and if not done properly has the ability to constrain Wales for years to come. When the UK Government publishes its proposals for a reserved powers model, my support will be conditional on meeting three key tests:
No roll-back on the current powers of the Assembly.
This is a fundamental issue of democracy. We need a settlement which gives clarity about who makes the laws of the land to all the people of Wales, not just the lawyers.
A move to reserved powers does not in itself guarantee clarity. It is important that any new model is designed to provide a more transparent and understandable settlement, to enable the people of Wales to understand who makes the laws by which they live. The clarity of the settlement will depend on the number of reservations (and exceptions from those reservations – and carve-outs from those exceptions), and the degree of detail with which they are drafted.
The Scotland settlement is often referred to as an example of good practice. It isn’t. The Supreme Court has noted that the Scottish model ’may not strike one as a model of clarity.’
I have frequently spoken of wishing to see Wales treated with the same respect and priority as Scotland. But this does not mean we need a ‘cut-and-paste’ of the Scottish constitutional settlement.
The lack of clarity in the Scottish model has a number of causes, most importantly the lack of an organising principle justifying the reservations – those things which are ‘reserved’ to Westminster.
The Northern Ireland Act 1998 provides a shorter and simpler list of excepted and reserved matters. However, similar to the Scottish model, it is inconsistently drafted, reducing clarity.
Building on the Scotland and Northern Ireland models, Wales can do better. Pages and pages of complex reservations and exceptions will not achieve the clarity I wish to see.
The Supreme Court has repeatedly expressed the view that both the Scottish and Welsh settlements should be ‘stable, coherent and workable’. I wholeheartedly agree. I believe that we should aspire to a settlement that does not rely on the courts for interpretation.
As with clarity, reservations are the key. The greater the number of reservations and the more complex they are, the more difficult it will be for the Assembly to legislate plainly on matters related to each other, without crossing into reserved areas.
In moving to a reserved powers model, I wish to retain the same breadth of competence as we have now. The great risk lies in what are known as the ‘silent subjects’ – those topics neither specifically listed in Schedule 7 to the Government of Wales Act 2006 as devolved subjects, nor exceptions from competence. I firmly believe that the ‘silent subjects’ should not automatically become reservations in the new Wales Act.
Of course there are topics within these ‘silent subjects’ which should be reserved to the UK Government, such as the constitution or defence. However, if other ‘silent subjects’, such as employment law, or – crucially – civil and criminal law, are reserved without strong caveats, this would represent a significant roll-back from competence as interpreted by the Supreme Court in the case of the Agricultural Sector Bill.
Meeting the tests
To meet the three tests, there will need to be a clear organising principle, justifying reservations to what is devolved. In my view, the fundamental organising principle for the devolved settlements should be subsidiarity – the centre should reserve to itself only what cannot be effectively done at devolved national level.
The development of a reserved powers model for Wales, which meets the criteria of clarity, workability and no roll-back is no simple matter to achieve. Yet, if the outcome is to be a settlement that “stands the test of time” as the Secretary of State for Wales has committed to deliver, they are the standards that will need to be met.
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