Mid-term report on the Wales Bill: 'Must do Better'
Huw Irranca-Davies AM
| PoliticsHome
A barrister giving evidence to the National Assembly’s CLA Committee gave a “D minus” to the current Wales Bill. Welsh Assembly Committee Chair, the former Labour MP and Minister Huw Irranca-Davies AM explains why.
Most people are not constitutional anoraks, thank goodness. Most people rightly get on with their lives, without worrying about the ins-and-outs of who makes what laws where and why. Most people have better things to worry about.
As is often said, no-one down the pub talks about the latest iteration of the Wales Bill.
Yet this is vitally important for the future of Wales, and for the future of the UK. The Wales Bill has the power to make or break the devolution settlement. Get it right and we add stability and durability to Government in Wales, and to government at a UK level. Get it wrong and at best we’ll be back here doing it all again very soon, and at worst we’ll be undermining the will of the people of Wales and de-stabilising the relationship between Wales and the rest of the UK.
Just to add spice and a bit of danger, this comes against the backdrop of a Brexit vote on membership of the EU, the most volatile and febrile politics we have seen for a generation or more, and speculation of an Autumn General Election.
This volatile and rapidly-changing political context may explain why the UK Government has chosen to rush the Wales Bill through Parliament at break-neck speed. The House of Commons will have finished its Committee stage of the Bill before the summer recess. So once again, the unelected House of Lords will be left to give the Bill full and proper scrutiny in the autumn.
This is far from ideal. Elected MPs will have minimal time to give the Bill proper consideration, or to put forward constructive amendments for improvements (and it DOES need improvement – see below). But more importantly, if this is rushed and not significantly improved, we could end up with a Bill which does give some neat steps forward for Wales, but which has some worrying unintended consequences which could even roll-back the devolution settlement.
So what do we know already? The powerful Constitutional and Legislative Committee which I chair at the National Assembly has begun taking evidence from expert witnesses. We will continue taking evidence through the summer. There has been a cautious welcome for some of the changes made since the original draft Bill (which was universally derided). But some common and serious concerns are already becoming clear.
Despite categorical reassurances from the Secretary of State for Wales, witnesses to the committee have raised concerns that the new Justice Impact Assessments (JIAs) may – when used in concert with existing powers available to the Secretary of State – be used to veto future made-in-wales legislation. This raises the possibility that this provision extends or at least re-enforces the ability of the UK government to impede the will of the Welsh Government. It has been proposed that these JIAs serve no purpose, or could be harmful to the interests of Wales, and therefore should be dropped.
The Bill proposes that we move to a reserved powers model (as used in Scotland) where the Welsh Government would be able to legislate on any matter not expressly reserved to the UK Parliament. The original draft Bill was heavily criticised for drawing the list of reservations so widely that it reduced the ability of Wales to legislate on matters. But even now, the full spirit of the reserved powers model is not evident, and there are widespread concerns that some of the reserved powers will actually roll-back devolution. That would not be acceptable. Changes will have to be made.
To alleviate concerns over how to deal with the ongoing evolution of a body of law which is made in Wales or relates to Wales, and the implications of this for a distinct though not necessarily separate jurisdiction, the Secretary of State for Wales has established a Justice in Wales Working Group. This approach would normally be welcome of course. But my committee has heard that the First Minister of Wales and the Welsh Government have not been invited to help set the terms of reference, have not been formally invited to participate, and the working group will report only to UK Ministers and not to the Welsh Government. Yet with a rethink, a standing group considering the growth in Wales legislation over-time has a real merit – but only if the Welsh Government is directly involved.
There is more of course. But this gives some idea of the flavour of the Bill. It is once again a begrudging Bill that reluctantly gives a little in one hand while snatching back more in the other. That is why we have asked the Secretary of State for Wales to appear before us, to share his thinking, and to consider what leading constitutional and legal experts have told us must change.
One of the witnesses to the Bill told us that a Wales Bill needs to be aspirational. I challenged that, and asked why it shouldn’t just be a pragmatic and practical statement of what currently exists. The witness said:
“Because I think constitutions send messages about what kind of politics you are conducting in a country, what kind of society you want to live in, what kind of aspirations you have for your future generations. And all these messages, symbolic or not, at declarative level or at a very technical level—I think the constitution should go further than just technical and legalistic expressions of political reality.”
There are some welcome parts of this Bill. It is better than the original draft. It has some wins for Wales. But it also has some potential bear-traps which could actually roll-back our devolution settlement.
A “D-minus” score is simply not good enough. There has to be significant improvement over the summer, for some re-sits in Parliament in the autumn. The UK Government simply must do better, and will need to cram a lot of revision into the next couple of months.
Huw Irranca-Davies is the Labour Welsh Assembly Member for Ogmore
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