11 April 2018

The Wales Act 2017 was supposed to herald a new dawn for Welsh devolution. But instead, argues Jack Kellam, the act facilitated a breakdown in trust between the UK and Welsh governments.

On 1 April 2018, the Wales Act came into force. It shifts the Welsh Assembly to a ‘reserved powers’ model of devolution, alongside introducing a number of new taxation and borrowing powers. The move to this new model means that the Welsh Assembly is free to pass legislation on all matters which are not explicitly reserved to Westminster, such as defence, foreign affairs, and justice.

But despite its intention to provide a lasting devolution settlement in Wales, the act is instead the subject of widespread discontent across all parties in the Welsh Assembly. The reserved powers model puts Welsh devolution on the same footing as that of Scotland and Northern Ireland (although there is no separate Welsh justice and policing system).

The reserved powers model is intended to end constitutional churn

Of the three devolved nations, Wales has experienced the most constitutional ‘churn’. The unevenness of the initial devolution legislation – in which Wales was given far more limited powers than Scotland and Northern Ireland – means that the National Assembly has continually had to play constitutional catch-up.

These regular upheavals – including two major legislative revisions of the initial Government of Wales Act 1998 within 16 years – have been matched by legal uncertainty.

Since the Welsh Assembly gained full primary legislative powers in 2011, the conferred powers system has been hampered by uncertainty over ‘silent subjects’: policy areas where it is not clear whether the UK Parliament or Welsh Assembly has competence. The Supreme Court has been called upon to decide responsibility on three separate occasions, including when the Welsh Assembly reinstated the Agricultural Wages Board, which the UK Government had abolished.

In that instance, the Supreme Court held that the Welsh Government’s Agricultural Sector (Wales) Bill was within competence, because it "relates to" agriculture – a devolved matter.

The UK Government had claimed that the bill dealt with employment and industrial relations, which are reserved. However, because these two subjects were not explicitly specified as exceptions to conferred powers in the Government of Wales Act 2006, the Supreme Court deemed it sufficient that the bill merely related to a matter of devolved competence.

This judgment therefore opened the door for the Welsh Government to legislate in ‘silent subjects’ – areas not specifically listed as exceptions to competence – so long as a bill’s main purpose relates to a matter conferred to the Welsh Assembly.

The Wales Act fails to clarify the boundaries of devolved competence

The move to a reserved powers model was intended to eliminate these ‘silent subjects’, and end “the constant squabbles over where powers lie”, according to the Secretary of State for Wales Alun Cairns. Now, if an issue is not explicitly reserved to the UK Government, it must be considered devolved.

However, the squabbles might not be over. Schedule 7A of the Wales Act, which outlines the new list of reserved areas and runs to 200 sections, has been widely criticised. Academics have claimed that it “lacks any principled justification” for the reservations it makes, especially compared to the existing arrangements in Scotland and Northern Ireland.

There are also areas previously within devolved competence that the Wales Act appears to ’re-reserve’ to Westminster. For this reason, the Welsh Government has explicitly ensured that its own legislation in such areas – like its Public Health (Minimum Price for Alcohol) (Wales) Bill – had sufficiently progressed before April so that it could not be challenged in the Supreme Court under the new legal settlement. 

The Wales Act has hampered negotiations over the EU Withdrawal Bill

The failings of the Wales Act have generated a perception among Welsh Assembly Members that the UK Government cannot be trusted with the Welsh devolution settlement. The Assembly’s Constitutional and Legislative Affairs committee, for instance, concluded that the Wales Act “over-complicates rather than simplifies and fails to fully empower the National Assembly as a modern legislature”.

The perception that Westminster effected a power grab through the Wales Act, by re-reserving certain powers, has led many to argue that it is attempting the same through Clause 11 of the EU Withdrawal Bill, which will hand back to UK ministers powers to ‘freeze’ devolved competence in certain areas.

In any case, it is unlikely that the Wales Act 2017 will be the lasting devolution settlement for Wales previously envisaged. Instead, more constitutional churn lies ahead.

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