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Government Pauses for a Better Wales Bill

Published: 2 March 2016

The decision by the Secretary of State for Wales to pause the legislative process for the Wales Bill not only makes constitutional sense but, say Huw Pritchard and Lleu Williams of the Wales Governance Centre, it’s good politics. 

The Secretary of State for Wales, Stephen Crabb, promised to make “significant changes” to the Draft Wales Bill, a promise that has been warmly welcomed by many commentators.

Most notably, the Secretary of State promised to “pause” the legislative process of the draft bill as the Wales Office undertakes these significant changes. This announcement follows numerous reports by the Wales Governance Centre (and Constitution Unit at UCL), the Welsh Affairs Select Committee and the Constitutional and Legislative Affairs Committee in Cardiff Bay which all raised concerns about the draft legislation.
The changes announced by the Secretary of State will:
  • Remove the necessity test, so that the National Assembly can change the law without the need to apply this test
  • Reduce the size of the reservation list in the Draft Wales Bill
  • Remove the general restriction on the National Assembly modifying a Minister of the Crown function in devolved areas
The removal of arguably the most controversial part of the draft bill, the necessity test, will please many academics, political commentators and politicians in Wales. The test itself was seen as a significant hurdle that did not meet the Wales Office vision of a devolution settlement that is “workable and sustainable”. 
The test would have required the Welsh Government to prove that certain legislative provisions were “necessary”, in particular when making provisions to enforce Assembly legislation. Many believe that this would have been too high a test to reach and it is likely to have led to referrals to the courts; leaving judges to decide on the competence of the National Assembly for Wales and not the politicians. During the course of scrutinising the draft bill some suggested alternative tests to the one of “necessity”, but the Secretary of State has gone one-step further by removing the test in its entirety.
Another important challenge set by Mr Crabb for himself was the decision to reduce the number of reserved matters contained within the draft bill. This process will require Wales Office officials to work with Cabinet Office colleagues to see where the number of reservations can be reduced. The Secretary of State did note in the press conference yesterday that there should be “reasonable justification” for matters to be reserved following criticisms over the decision to reserve matters such as “standing at sports grounds” or “late night licensing of entertainment venues”. This process could in itself be long and complex depending on each HM Government department’s individual willingness to devolve powers to Wales beyond the original draft Bill.
Devolving Minister of the Crown functions is also a welcome proposal. The complexity of ascertaining whether a provision in Welsh legislation requires UK Ministerial consent derives from the days of executive devolution in Wales. Hopefully, this will be an opportunity to align legislative and executive competence in a much more coherent way which will also contribute towards the clearer settlement the Wales Office wish to provide.
The one part of Stephen Crabb’s announcement on Monday that did not receive as much coverage in the media was the decision to form a working group to look at distinct arrangements for Wales within the England and Wales legal jurisdiction. Although the Secretary of State ruled out the creation of a distinct or single jurisdiction for Wales, he did recognise that the growing body of Welsh law needs recognition. The formation of this working group, which will consist of representatives from the Welsh Government, the Ministry of Justice and the Lord Chief Justice’s Office, is a big step forward for the Welsh Secretary of State given that justice was largely disregarded in the St David’s Day announcement a year ago. 
Whereas the terms of reference for the working group have not been announced, it is certainly an opportunity to put some meat on the bones of the Silk Commission’s recommendation that a review of the devolution of justice should take place within the next decade. The group, it seems, will also consider “justice” and not just “jurisdiction”, which could well provide an opportunity to move the debate beyond technical issues and allow for consideration of matters that affect the lives of people in Wales on a daily basis.
The announcement by Stephen Crabb is one of great significance. He continuously said during the pre-legislative process that he was listening, and it seems that he has. In light of the criticism the draft bill received from all quarters in Wales (and outside of Wales), sometimes fierce criticism, it is a brave step to implement such significant change to the Draft Wales Bill as he has said that he will. It should be noted that this brave step is also rather a clever step. It is very likely that the draft bill in its current form, should it have gone through the legislative process, would have been tied up in numerous amendments, fiery parliamentary debate and the possible prospect of the National Assembly withholding its consent. 
The Secretary of State said that he was now optimistic that he can deliver a better Bill and a better settlement as a result. Cardiff Bay’s constitutional anoraks will certainly share that optimism and hope that the amended bill will finally pave the way towards a clear, robust and lasting Welsh devolution settlement.

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