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Neither Clear nor Lasting

Published: 10 December 2015
The draft Wales Bill represents the fourth model of devolved government for Wales since 1999 but, says Elin Royles, in its current form it is unlikely to be the last. 
The UK Government’s draft Wales Bill,  will be the fourth model of devolved goverment to be introduced in Wales. Following its inquiry, the Constitutional and Legislative Affairs committee of the Welsh Senedd has published its report on the draft bill and the scrutiny process continues at Westminster. Much of the discussion has focussed on the implications of the transition from the current ‘conferred powers’ model to a ‘reserved powers’ one, ostensibly similar to the model currently in place in Scotland. The difference between the two being that the Scottish Government and Parliament have responsibility over all matters excepting those specifically reserved to Westminster whereas, currently, the National Assembly for Wales and Welsh Government only have competency over those powers specifically conferred upon them, with everything else defaulting to Westminster and Whitehall. 
A 'reserved powers' model is intended to establish clearer, simpler, more effective and accountable arrangements for Wales. These characteristics would support the Secretary of State’s commitment to a ‘clear and lasting devolution settlement’. 
However, in practice, the reservations and exceptions and complexities in the model outlined in the draft Bill suggest that it differs greatly from the clarity of the Scottish model. That the list of exceptions is both long and convoluted would be confusing in and of itself but the very way these restrictions have been framed - general reservations and their exceptions and specific reservations in Schedule 7A and general restrictions and general exceptions to the general restrictions to the Assembly’s legislative competence in 7B - is itself likely to require significant, and possibly conflicting,  interpretation.  Such interpretation is, in turn, likely to create tension and be succeptible to judicial dispute.  Based on the evidence that it recieved, the Senedd report called for a significant reduction in the number and extent of specific reservations and restrictions and called for the establishment of a Constitutional Working Group to produce lasting and durable constitutional arrangements for Wales. 
The complexity of the proposed arrangements could have far-reaching implications for the operation of devolution in Wales. These would make for a system far removed from the clearer and simpler arrangements that numerous inquiries have recommended since 1999. Those recomendations aimed at arrangements that could be communicated to Welsh citizens in order to to increase their awareness of, and engagement with, the process of holding government to account.
Against the backdrop of this complexity, the draft Bill’s failure to address the issue of how the UK and Welsh governments should relate to one another becomes particularly problematic. The limitations of the current arrangements for intergovernmental relations have been apparent since establishing devolved government in 1999. Both governmental reports and academic analyses have repeatedly identified and criticized the current situation: informal, non-legally binding arrangements and a dependence on good personal relationships.
Calls for improving these arrangements respond to the variable quality of relations and circumstances where Wales has been left vulnerable on many occasions, including not being adequately considered and consulted on UK legislative initiatives or on policy developments. The nature of these relations and their implications is well documented, evident in a range of policy areas including trade and inward investment
In response, the Commission on Devolution in Wales produced detailed recommendations (3-9) to introduce more robust formal mechanisms for intergovernmental relations. They include a statutory Code of Practice on intergovernmental relations to be included in a new devolution act; a role for Welsh and UK audit bodies in the joint audit of intergovernmental relations, and a bilateral Welsh Intergovernmental Committee to oversee relations between both governments and enhance consultation, cooperation and accountability. 
Given the asymmetry of devolution in the UK, the existing quadrilateral arrangements, such as the Joint Ministerial Committee, have time and time again proven that they do not on their own provide an appropriate basis for relations between governments. Since the parameters of devolution settlements are negotiated bilaterally between the UK government and the three non-English territories, the structures of intergovernmental relations would benefit from being similarly bilateral. More formal bilateral engagement mechanisms could be more attuned to the specificities and differences in constitutional arrangements and political relations between the UK and the respective devolved governments.
Even without getting into the details of the precise powers currently being discussed in the pre-legislative scrutiny of the Bill, there are considerable obstacles to it forming the type of settlement that the Secretary of State has said he wants to see. The complexity of the proposed arrangements and the absence of a meaningful framework in which they can be discussed, means that the proposed arrangements are certainly not clear and are unlikely to be lasting. 

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