A report by an independent review group consisting of constitutional and legislative experts says that they could not recommend that politicians in Cardiff Bay and Westminster support the Draft Wales Bill in its current form.
The landmark report, “Challenge and Opportunity: The Draft Wales Bill 2015,” provides an expert commentary and assessment of the detailed provisions set out in the Draft Wales Bill published in October 2015.
In their report, the independent review group say:
The ‘reserved powers’ approach offers many benefits to Wales and to the UK as a whole if done properly. That is not the case with the Draft Wales Bill. Done badly, the reserved powers approach will lead to another short-lived arrangement that works poorly.
To be lasting and effective, a new Wales Act needs to be underpinned by clear principles that ensure a coherent and consistent devolution package for Wales. As that is not the case, it is unsurprising that the Bill has attracted little support, even in the short time available for consideration.
The list of reservations in the draft Bill reflects the lack of coherent approach by Whitehall. The overall package of reservations is highly complex, and some of the proposed reservations are designed to protect Whitehall departmental interests rather than deliver a coherent and consistent set of devolved powers. Their complexity will inhibit policy making and undermine the robustness of the settlement.
The reliance on ‘necessity’ tests for legislation affecting private or criminal law is unduly onerous. These tests add complexity and uncertainty, and will provoke legal challenge with decisions on whether Welsh legislation is necessary taken by judges rather than elected representatives.
There are complex questions about the legal relationship between England and Wales arising from the powers necessary to make ‘reserved powers’ work effectively. A distinct Welsh legal jurisdiction is one answer to these issues. A ‘rules-based’ approach to managing legal differences is another.
Commenting on the difficulties with the Draft Wales Bill, Professor Richard Rawlings of University College London, who helped draft the report, said: “Wales has experienced three deeply problematic devolution settlements since 1999. There was genuine hope that the all-party agreement that Wales should move to a ‘reserved powers’ model of devolution heralded the beginning of a process that would lead to Welsh devolution being placed on a sustainable constitutional basis.
“The draft Wales Bill does not do what was promised. All too often, the Secretary of State’s fine policy objectives of a stronger, clearer, fairer and more robust devolution settlement are frustrated by provision that is constricting, clunky, inequitable and constitutionally short-sighted. At the heart of the difficulty is the triple squeeze on the devolved institutions of intrusive general restriction, over-occupation of legislative space, and blurry forms of executive veto. It does not have to be like this.”
The report points to the need for fundamental changes to the proposed legislation and sets out a series of proposals for reconstructing the legislation in order to deliver a properly constituted reserved powers model of devolution for Wales.
The report explains how alternative approaches to the legislation based on territorial rules or a distinct but not separate jurisdiction for Wales offer ways of providing the space to allow the National Assembly to legislate effectively.
Commenting on the next steps for the Draft Wales Bill, Professor Wyn Jones added: “We believe that the legislative process around the Draft Wales Bill should be paused for these matters to be fully examined by all stakeholders including the Welsh Government, Wales Office and the Ministry of Justice.”
We will have further analysis on the site soon.