Cynulliad Cenedlaethol Cymru l National Assembly for
Wales
Y Pwyllgor Materion Cyfansoddiadol a Deddfwriaethol l
Constitutional and Legislative Affairs Committee
Ymchwiliad: Llais cryfach i Gymru: ymgysylltu â San Steffan
a'r sefydliadau datganoledig l
Inquiry: A stronger voice for Wales: engaging with Westminster and
the devolved institutions
IGP011
Ymateb gan: Yr Athro Thomas Glyn Watkin
Response from: Professor Thomas Glyn Watkin
- I
should like to thank the Committee for the invitation to submit
written evidence to it in relation to this inquiry, and for the
subsequent notification of the extended period permitted for the
submission of evidence. The opinions expressed in this paper are
entirely my own and do not represent the views of any body or
institution with which I am or have been associated. I have to
admit that I was in two minds as to whether I had anything of value
to say on this issue as my direct knowledge and experience of
inter-institutional working between Wales and Westminster is
limited to my time as Legislative Counsel during the Third
Assembly, a period now perhaps more of historical interest than of
direct relevance to the inquiry. Indeed, even then, the occasions
on which I was directly involved in discussions with UK
institutions, as opposed to having to deal with the outcomes of
such negotiations, were very few in number. However, the
similarities between what I experienced then and more recent
experience of involvement in discussions leading up to the passing
of the Wales Act 2017 have led me to believe that things may not
have changed as much as the length of time which has passed might
lead one to suppose.
Experience
during the Third Assembly (2007−11)
- Towards
the end of the Third Assembly, I gave evidence to this Committee as
First Welsh Legislative Counsel.
This
related to the difficulties which had been experienced in
delivering the Welsh Government’s legislative programme under
the devolution settlement contained in Part 3 and Schedule 5 of the
Government of Wales Act 2006. Under that model of devolution, the
Assembly acquired legislative competence incrementally through the
periodical insertion of matters into the 20 fields set out in Part
1 of Schedule 5, which matters could be inserted either by Act of
Parliament or through the making of Orders in Council, commonly
referred to as Legislative Competence Orders or LCOs. I shall not
repeat the evidence given by myself and Mr. Huw G. Davies, Senior
Welsh Legislative Counsel, on that occasion regarding my
Office’s experience of the work. Suffice it to say that the
experience had been very frustrating. The extent of the legislative
competence to be enjoyed by the Assembly under Part 4 and Schedule
7 of the 2006 Act following a successful referendum was already
known, as the 20 headings in Part 1 of Schedule 7 already had
listed under them the subjects in relation to which Parliament had
decided that the Assembly should be competent to legislate. Those
20 headings corresponded to the 20 fields in Schedule 5. They were
in the main empty, matters having yet to be incrementally inserted
into them. It was agreed that it was not anticipated that all of
the subjects under a heading in Schedule 7 should be transferred
into a field in Schedule 5 at any one time, but that each field
should grow incrementally. It seemed therefore that what was
intended was that the subjects already identified as being suitable
for devolved legislative competence should be inserted into
Schedule 5 individually or in groups as required to deliver the
Welsh legislative programme. This however was not what happened.
Following an initial attempt to proceed in this manner, it became
apparent that the UK Government was not prepared to confer as broad
a competence upon the Assembly as that given by Schedule 7 even in
relation to the individual subjects identified there. Instead, each
matter was subjected to sometimes very considerable limitations and
exceptions which had not been imposed by Parliament when enacting
the provisions of Schedule 7. Perhaps the classic example of this
can be seen by comparing the text of the proposed Environment LCO
promoted by the Welsh Government and agreed by the Assembly in 2007
with the eventual Environment LCO approved by Parliament following
lengthy negotiations with the UK Government in 2010.
Experience
during the passage of the Wales Act 2017 – déjà
vu?
- The
difficulties encountered in obtaining legislative competence during
the Third Assembly seemed to be reproduced in the deliberations
leading up to the Wales Act 2017, and the manner in which reserved
matters - especially the specified reserved matters −
are defined in that Act recall the manner in which matters had been
defined for insertion into Schedule 5. It is also in my view
significant that little seems to turn on the political complexion
of the UK Government in this regard. Many believed at the time of
the Third Assembly that problems may have lain more with officials
in Whitehall than with UK ministers. The problem would appear to
have been an unwillingness to address the issue as one of
subsidiarity – “what subjects are most appropriately
decided at national level and what subjects need to be retained at
State level?” – but rather as one of administrative
convenience – “what matters would make my work more
difficult if decisions concerning them had to be shared with
Wales?” The devolution of legislative competence appears to
turn on the convenience or inconvenience of administrative
decentralization rather than respect for any right to national
self-determination.
- It
is difficult to separate this problem, if it is recognized, from
the manner in which devolution has been pursued within the United
Kingdom, and in particular from the dual rôle of the UK
Government as being both the government of the UK as a sovereign
state and also the government of England regarding matters which
are not devolved. Until the imbalance of power and sometimes the
conflict of interest which results from this situation is
satisfactorily addressed, I do not believe that a lasting
constitutional settlement will be achieved nor that satisfactory
inter-institutional relations can be maintained.
- Silk
II recommended the provision of a statutory Code of Practice on
intergovernmental relations.
It is to be regretted that the Wales Act 2017 did not deliver on
this recommendation.
Cross-Border
Issues
- Silk
II also recommended that the Welsh and UK Governments should
establish a Welsh Intergovernmental Committee to oversee the
operation of the devolution settlement by, amongst other things,
resolving cross-border issues.
- The
Wales Act 2017 has addressed two specific cross-border issues by a
form of statutory regulation. In relation to cross-border harbours,
this involves duties being placed upon both governments to consult
one another when exercising certain functions, although in one
instance the duty of the UK Minister to consult corresponds to a
duty on the Welsh Ministers to obtain consent – an example of
the imbalance referred to above.
- The
2017 Act does however implement to a large extent Silk II’s
recommendation that a formal intergovernmental protocol should be
established with regard to cross-border issues relating to water
resources, water supply and water quality, and that the Secretary
of State’s power of intervention to prevent Assembly bills
proceeding to Royal Assent if he or she had reasonable grounds to
believe that any of its provisions would have a serious adverse
effect on water resources, water supply or water quality in England
should be removed in favour of mechanisms under the
protocol.
- The
2017 Act provides for the replacement of the intervention power by
a water protocol, and also provides that in exercising functions
relating to water resources, water supply and water quality the
Welsh Ministers must have regard to the interests of consumers in
England and the Secretary of State must have regard to the
interests of consumers in Wales,
thus introducing a welcome balance between the two governments
regarding the exercise of these functions. Pending the development
of a more balanced constitutional structure between the governments
of the component nations of the United Kingdom, the approach taken
with regard to cross-border water issues as between England and
Wales may offer the best way forward for the present in relation to
cross-border issues affecting the two nations.
Legislative
Issues
- Imbalance
however continues to exist with regard to the legislative processes
of the two legislatures. Putting aside the issue of the sovereign
UK Parliament’s power to continue to legislate for the
devolved nations even on devolved matters subject to the convention
that it will not ‘normally’ do so without
consent,
there is also the bone of contention that it legislates in the same
sovereign manner when legislating for England only under the
procedures regarding ‘English Votes for English Laws’.
This effectively means that the restrictions placed upon the
legislative competence of the devolved legislatures regarding
compatibility with EU law and Human Rights legislation do not
operate in the same manner with regard to England-only legislation
as they do to Wales-only legislation passed by the Assembly. Nor do
the same consequences follow from successful challenge. The
consequences of devolved legislation straying into matters which
are reserved or subject to restriction are therefore materially
different from the lack of consequences if England-only legislation
wanders across the devolution boundary. England-only legislation is
not subject to judicial oversight with regard to competence as are
the nation-specific enactments of the devolved
legislatures.
- While
with regard to cross-border water issues, Silk II’s
recommendation relating to the intervention powers of the Secretary
of State is potentially poised to bear fruit in the form of a water
protocol, the same is not the case with its recommendation that
those powers generally should be aligned with those existing in
Scotland.
Indeed, the 2017 Act gives the Secretary of State a further power
to make regulations which can amend, repeal, revoke or modify
Assembly legislation without any requirement to obtain the approval
of the Assembly for the statutory instrument making the
change.
It was this provision which so outraged the former Lord Chief
Justice, Lord Judge, during the House of Lords debates that he
described it as an ‘insult to the democratic process’
and a ‘constitutional aberration’.
It will an interesting test of the legislative balance which it is
claimed has been achieved by the EVEL procedures and of the logic
which lies behind them to see whether, if and when a statutory
instrument is laid before the House of Commons containing such
regulations, it is only Welsh MPs who will be permitted to vote on
its approval, given that any laws being amended apply only in
relation to Wales.
Despite
my misgivings expressed earlier, I hope these reflections will
prove of some use to the Committee in its deliberations.