Two Steps Forward, One Step Back for Wales

The UK Government's response to criticism of the draft Wales Bill is more of a staging post than a destination, says Richard Wyn Jones. 
 
When he began the process that would lead to the publication in September 2015 of the Draft Wales Bill, the then Secretary of State, Stephen Crabb, spoke in effusive terms about his determination to achieve a devolution settlement for Wales that would last for the foreseeable future.
 
He was far from the first Secretary of State to embrace such an ambition.
 
In fact it seems to have become an established pattern for successive Secretaries of State to claim to be legislating ‘for a generation’ only to see their efforts being substantially revised within 4 or 5 years.
 
By the time of his shock move to the Department of Work and Pensions, Mr Crabb’s ambitions had become noticeably more constrained.
 
Chastened by the overwhelmingly critical reception afforded the Draft Bill, he came to stress the way that the proposed legislation would provide for greater clarity in the short to medium term, explicitly leaving open the possibility of more change in the longer term future.
 
Launching the reworked legislative proposals , the new Secretary of State, Alun Cairns, appeared to revert to the rhetoric used by so many of his predecessors as he argued that it would ‘set the course for decades ahead and put a definitive end to outdated arguments over who possesses what powers.’
 
Well maybe, but I wouldn’t bet on it. What is possible, however, is that in the spirit of what we might term ‘late Crabb’, the proposed legislation can achieve an improvement on the present situation.
 
Not a definitive devolution settlement then, but another interim dispensation that is at least better than the ones that went before.
 
There were three main areas of concern surrounding the Draft Wales Bill.
 
First, although ostensibly moving Wales to a reserved powers model of devolution – something for which there is almost unanimous, in-principle support across the political spectrum – the list of reservations contained in the draft was long, cumbersome and illogical.
 
So long, cumbersome and illogical, in fact, that critics feared that the National Assembly would not only fail to benefit from the increased clarity that a reserved powers model of devolution is meant to achieve, but might even lose some of its present powers.
 
It will take several weeks rather than a few hours to digest the new list of reservations contained in this Mark II set of legislative proposals.
 
But at first blush, there appears to be a modest streamlining since the Draft Bill when the Western Mail calculated the existence of well over 250 reservations. Progress, therefore, although hardly a radical overhaul.
 
The second controversial element of the Draft Bill was Minister of Crown consents, or what First Minister Carwyn Jones dubbed an “English veto on Welsh Laws”.
 
Again, the redrafted version will require detailed scrutiny and consideration. On first impression, however, it seems that the Wales Office has conceded ground to the Welsh Government.
 
But this may well have been achieved at the expense of making the legislation even more ferociously complicated than originally intended.
 
So in other words, whilst both Governments may well be able to live with the compromise that has apparently been arrived at, it will do little to help the people of Wales understand how we are to be governed.
 
The third and most serious area of disagreement was around the so-called ‘necessity tests’, namely the insistence that the National Assembly would only be able to alter the criminal and civil law to the extent that that was deemed ‘necessary’.
 
The wide-spread assumption being that the Supreme Court would end up with the thankless and political charged task of trying to work out what ‘necessary’ meant in the circumstances of any given piece of legislation.
 
Apparently included in the Draft Bill at the insistence of the Ministry of Justice, the necessity tests poisoned its reception to the extent that, when he announced the ‘pause’ in the legislative process in order to allow the proposals to be reworked, Stephen Crabb made clear that the necessity tests relating to private and criminal law would be completely abandoned. Alun Cairns has made good on this pledge.
 
The Mark II Bill would seem to allow the National Assembly significantly more freedom than did its predecessor in revising private and criminal law in its areas of responsibility. This is an improvement even if there are also new constraints and limits requiring careful analysis.
 
It is, though, a case of two steps forward and one step back. The Ministry of Justice mind-set that gave rise to the necessity tests makes an unwelcome return in the latest version of the Bill in the form of a requirement that the National Assembly produce ‘Justice Impact Assessments’ of proposed legislation.
 
On the face of it, demanding that an assessment be made of the likely impact of any proposed piece of legislation on the justice system of England and Wales may seem wholly reasonable.
 
But it is in fact unnecessary, one sided and utterly inconsistent with the principles that the UK Government claims to be applying to the devolved legislatures.
 
Unnecessary in that the National Assembly is already far more effective than Westminster itself in considering the potential impacts – including on the justice system – of its own legislation.
 
One-sided in that the UK government clearly has no intention of producing any kind of assessment of the implications of its own activities in the area of justice on the policies of the Welsh Government, even though they are often very far-reaching.
 
Inconsistent in that the UK government has presented the legislation as recognising the internal autonomy of the National Assembly to decide on its own name, size and voting system, and yet is now proposing to interfere with Assembly standing orders.
 
The patronising attitude that underpins the proposal for ‘Justice Impact Assessments’ illustrates why Wales is destined to have to make do with yet another interim dispensation rather enjoy a devolution settlement that is truly worthy of the name.
 
Whilst Wales remains part of the single England and Wales justice system, influential parts of the Whitehall will continue to regard Wales as enjoying a lower status that the other devolved territories. Until that changes, complexity and lack of clarity will continue to characterise the constitution of Wales.

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Cardiff University
9th June 2016
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