Call to pause introduction of Wales Bill
28 February 2016
The Welsh Affairs Committee has called on the UK Government to pause its proposed timetable for the new Wales Bill, so that there is the opportunity to reflect fully on the pre-legislative process. The call comes as the Committee publishes its Report on the draft Wales Bill.
Committee Chair David TC Davies said:
"Over the course of the inquiry, the Committee has heard evidence that raises doubts about the draft Bill’s ability to provide the lasting settlement it seeks to create. The pre-legislative process has been an opportunity for these concerns to be aired. Therefore, a period of reflection is necessary to reach a settlement that is long lasting."
Replace Necessity Test
Three major issues were raised during the course of the inquiry, and these are the focus of the report:
- The Committee is concerned that the current list of reservations needs to be strengthened. It recommends that Whitehall look again at the list of the powers to be reserved, with clear guidance provided about the questions departments should ask themselves before deciding whether or not to reserve a power. This exercise should both make the final list of reservations more coherent, and also provide a defensible justification for each decision.
- The report outlines concerns that the arrangements concerning Ministerial consent may be too complex. One aspect of this concerns a delay when the National Assembly request Ministerial consent from Whitehall for Assembly Acts. The Committee has therefore recommended that the final Bill includes a procedure where Ministerial consent will be given by default if no decision has been made within 60 days.
- The Committee recommends that the test of "necessity" in the Bill be replaced. A number of alternatives have been suggested, which the Wales Office is called to assess. The requirement for these tests stems from the unified legal jurisdiction of England and Wales. Evidence was received that called for a separate or distinct legal jurisdiction for Wales, to account for the growing body of Wales only law. Whilst the Committee has addressed these arguments, this is an area where they could not agree unanimously.
Justify list of reservations
In addition to these recommendations, the Committee concluded:
- Discussions which are ongoing between the Wales Office and the Welsh Government on the draft Bill should have concluded prior to its publication.
- A more hands-on approach from the Wales Office in helping Whitehall departments to draw up the list of reservations would have been preferable, with clearer guidance produced. Additionally, each department should have been asked to consult widely and then be challenged as to what they were and were not proposing should go on the list of reservations.
- It is important that the list of reservations is justifiable as a whole, so as to satisfy the National Assembly of Wales, which will be asked to pass a Legislative Consent Motion for the Bill. Each subject will also have to be individually justifiable as they will be scrutinised during the Bill's passage. This pre-legislative process will have kick-started that process, which should help overcome these future challenges.
- The inclusion of the ‘necessity test’ in the Bill will cause difficulties and is the wrong test. Its application is uncertain but it risks creating too high a threshold for the Assembly to reach before it can legislate
- The National Assembly needs clarity about which public bodies it can legislate for. We recommend that the UK and Welsh Governments offer indicative lists of bodies which they consider that the National Assembly can legislate for. The aim should be to produce an agreed list alongside the Bill, which can be used as a guide, and can help to avoid future disagreement.
- The announcement, that the power to set rates of income tax to be paid by Welsh taxpayers would be devolved without requiring a referendum, was a key change in policy. We regret the fact that due to the timing of that announcement, the Committee did not have the opportunity to properly scrutinise this.
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