A REPORT on the Wales Bill, published by the House of Lords Constitution Committee, has stated that the lack of clarity over the demarcation of powers between the UK Parliament and Welsh Assembly not only risks future litigation, but the need for further legislation to clarify the settlement.
The report welcomes the move from a ‘conferred powers’ model (where the Welsh Assembly can only legislate on matters specifically devolved to it) to a ‘reserved powers’ model (where Welsh Assembly can legislate on any subject not explicitly ‘reserved’ by the UK Parliament). The reserved powers model offers a relatively clear and simple division of powers, as well as allowing the Welsh Assembly ‘constitutional space to legislate’. However, the Committee say that the way the Wales Bill implements the reserved powers model undermines these key advantages.
The complexity of the settlement set out in the Wales Bill, in which numerous legal tests interact with hundreds of matters reserved to the UK Government and Parliament, risks the courts being asked to make decisions about whether the National Assembly for Wales has the power to make laws in certain areas. The Committee contrasts this with the simpler settlement set out in the Scotland Act 1998, where the subjects reserved to Westminster are relatively limited, ensuring greater clarity about the devolution of powers.
The Committee also point out that in some areas, the list of reserved matters is so extensive, and the number of legal tests that must be met for the Assembly to use its powers are so vague, that the switch to a reserved powers model is likely to actually result in a return of power from the Welsh Assembly to Westminster.
The Committee call on the Government to explain whether the Wales Bill is actually intended to reduce the legislative competence of the Welsh Assembly in some areas and, if not, what steps they plan to take to ensure that the competence of the Assembly is not inadvertently reduced.
The Committee notes, for example, that absolute restrictions on the Assembly’s ability to modify criminal law in relation to sexual offences may affect its ability to exercise its legislative competence in relation to the protection and well-being of children and young adults.
The Committee notes that there is ‘no evidence of a clear rationale’ for the powers devolved by the Wales Bill and calls on the Government to explain the principles which underpin the devolution proposals set out in the Bill.
The Committee points out that in its recent report, The Union and Devolution, it recommended that further devolution should be managed in a coherent way based on sound principles and clarity about the purpose of the proposed devolution. It says the Government has failed to provide a clear rationale for the scope of powers devolved by the Wales Bill.
Lord Lang of Monkton, Chairman of the House of Lords Constitution Committee, said: “My Committee have taken a long and serious look at devolution within the UK in the last year and we bring that experience with us in examining the Wales Bill.
“We welcome the Wales Bill’s move from a ‘conferred powers’ to a ‘reserved powers’ model of devolution. However, the list of reservations is so extensive, and the legal tests that govern the Assembly’s powers so complex and vague, that it could be a recipe for confusion and legal uncertainty. The outcome is likely to be increased litigation as the courts are asked to decide exactly where the boundaries of the Assembly’s authority lies.
“We are disappointed that there is no clear explanation from the Government as to the rationale for the scope of the powers being devolved under the Wales Bill. As we noted in our report, The Union and Devolution, devolution must take place on the basis of appropriate principles to ensure that the devolution settlements evolve in a coherent way, rather than in a reactive, ad hoc manner.
“The Bill also risks, in some areas, actually reducing the powers of the Welsh Assembly. We have asked the Government whether that was their intention, and if not, how they intend to avoid unintentionally diminishing the Assembly’s powers.
“The Wales Bill starts Committee Stage in the House of Lords next week. This is the first stage where amendments can be made and debated and where the detail of the Bill is examined closely. I hope our report will be helpful to the House in informing that debate.”
This week, the Director of the Welsh Governance Centre, Professor Richard Wyn Jones, also raised concerns that the Wales Bill was being ‘rammed through Parliament’, and suggested that it could be blocked by the Welsh Government. Speaking to the BBC, he said: “It is genuinely hard to find people who aren’t directly involved on the UK government side with a good word to say about this legislation, certainly in terms of the detail,” he said.
“What was striking, we did have a consensus, an all-party consensus, in terms of moving to a reserved powers model.
“What’s particularly depressing is, in the enactments of that good intention, we’ve reached a stage where everybody who is looking at this in a relatively dispassionate way is pointing to some fundamental problems.
“I don’t think that anybody is going into this wanting it to fail, in terms of the critics. This is the only piece of legislation on the table, there is a sense the status quo is unsatisfactory and so people want this to work.
“There have been lots of constructive suggestions for change from the Welsh Government, from the National Assembly presiding office, and yet the legislation is being rammed through Parliament with, so far, only very small changes being conceded.”
However, the Leader of the Welsh Conservatives, Andrew RT Davies, described the ‘landmark’ legislation as offering ‘greater clarity and accountability than ever before in the devolved era’.
“Labour had 13 years in power to address concerns over where power resides and made no meaningful attempt to establish a lasting settlement. Whereas Conservatives have delivered a significant breakthrough, demonstrating our party’s commitment to devolution and the place of Wales as a full partner in the UK,” he added after the MPs gave the Bill an unopposed third reading in September.
“We now have an opportunity to move on from constitutional affairs, and the Welsh Government must now make best use of the tools at its disposal and deliver for Welsh communities; creating jobs, developing the Welsh economy and improving our public services.”
New Year’s messages from party leaders
Andrew RT Davies
AS ASSEMBLY Members we have the privilege of being in a position to make a meaningful difference to the lives of the people of Wales.
My New Year’s resolution will be to carry that mantra into 2018, and concentrate on the things that bring us together rather than things that drive us apart.
As a country we are often accused of looking at our feet rather than at the horizon. Let’s make 2018 the year that we challenge that narrative and look ahead to the opportunities in front of us.
New Year’s Day is a hopeful time, as we mark the passing of one year and look ahead to a healthier and happy new one.
It is a time of positivity, and a time to be open to change.
2017 was a difficult year in so many ways. Yet it was in the very depths of adversity that we witnessed the best of human nature – and the true strength of community spirit.
The Assembly itself also witnessed great tragedy, but we have to continue to look forward and reach for the more positive future that’s just around the corner.
Above all, we must remember that in spite of our political differences there is much that binds us together.
There are huge opportunities ahead for this country and there will be times when our ability to come together will serve the people of Wales far better than working in isolation.
Wishing everyone across Wales and the United Kingdom the very best for 2018.
AS the year draws to a close, it is a good time to reflect on the events of the last 12 months and look ahead to the year to come.
2018 offers us new opportunities and a chance to build on the progress we have made this year, and over the past two decades of devolution.
There are certainly challenges and uncertainty ahead, but many reasons for optimism too. I look forward to my ministerial team and I driving forward our ambitious plans for Wales – focusing on growing the economy, creating jobs, supporting our public services and improving the day-to-day lives of the people of Wales.
I want 2018 to be a year that unites us – a year in which we celebrate all we have in common and work together to build the fair, open, prosperous nation that we all want Wales to become.
I wish you and your families a very happy, healthy and peaceful New Year.
PEOPLE here in Wales face many problems and challenges which cannot be solved by our National Assembly because of its limited powers and because its current Labour government lacks the necessary will and ambition to get those powers.
Neither can our problems be solved by Westminster, where the concerns of Wales are an afterthought at best. I very much hope that 2018 will be the year where we collectively conclude that only people in Wales can solve the problems this country faces.
As the political landscape changes alongside our relationships within the UK and Europe, as people in countries like Catalonia and Scotland push for self-government to have more control over the decisions that affect them, we have the chance for 2018 to be the year that people here consider how we in Wales can be empowered to tackle more of our problems for ourselves.
While the other parties may be content for many big decisions to be taken on our behalf in London, Plaid Cymru believes that decisions are best made by those who are directly affected by them. Plaid Cymru therefore believes also in further devolution within Wales.
My team and I will be dedicating time in 2018 to be in open consultation with people right throughout the country about how we can make the most of the opportunity devolution has given us to practice a different kind of politics, how we can extend and deepen our autonomy to develop a real alternative to the mess that Westminster has to offer.
Mandy Jones sworn in as AM
MANDY JONES has been returned as an Assembly Member for the North Wales region following the resignation of Nathan Gill.
Mr Gill, whose sporadic attendance at the Assembly had become a running sore, resigned just before Christmas.
When a regional Assembly seat becomes vacant, the Llywydd informs the Regional Returning Officer for the relevant region.
Where the seat was vacated by a Member who was elected at an Assembly general election from a list of candidates submitted by a political party, the Regional Returning Officer is required to contact the next candidate on the list submitted at the time of the general election by that political party.
Once the Regional Returning Officer has established that the person is able and willing to serve, the Regional Returning Officer informs the Llywydd of the name of the person.
When the Llywydd receives notification of the name, that person becomes an Assembly Member. However, he or she cannot undertake the work of an Assembly Member until the oath has been taken.
The Regional Returning Officer informed the Llywydd on 27 December 2017 that Mandy Jones is able and willing to serve and was therefore returned as an Assembly Member for the North Wales region on that day.
And, on December 29, Mandy Jones AM was sworn in as the new Assembly Member for North Wales, in a ceremony at the National Assembly’s North Wales Office in Colwyn Bay.
Mrs Jones was accompanied at the ceremony by her family, and fellow UKIP AM for North Wales, Michelle Brown.
Mandy Jones commented: “I am extremely grateful and honoured to have the opportunity to be the Assembly Member for North Wales. I live here, I raised my children here and I promise to serve this region to the best of my ability.
“I will work hard on your behalf by supporting local businesses in delivering good jobs and campaigning for better local health and transport services in north Wales.”
UKIP Wales Leader Neil Hamilton welcomed Mandy Jones to the UKIP Assembly Group stating: “We are looking forward to welcoming our new team member, Mandy Jones into the group. UKIP is stronger with an additional member in the National Assembly and on the front foot in Wales. We are looking forward to 2018, where we will be even more active and vocal, as we continue to stand up for the people of Wales against the cosy Cardiff Bay consensus.”
‘Payroll vote’ attacked
THE EVER-INCREASING size of the Welsh Government ‘pay-roll vote’ is damaging the effectiveness of democracy in Wales according to the Welsh Conservatives.
Following Carwyn Jones’ last reshuffle, twenty one Labour Assembly Members now hold remunerated positions – be it ministerial, commission or committee chair posts – which currently represents a staggering 75 per cent of the governing party in Wales. In Scotland, the percentage of SNP members in similar paid-up positions is closer to 50 per cent.
The pay-roll vote and democratic deficit intensifies in Wales with the inclusion of Independent AM, Dafydd Elis-Thomas, and Lib Dem AM, Kirsty Williams, as Welsh government ministers.
Leader of the Welsh Conservatives, Andrew RT Davies, has said the ‘bloated’ government pay-roll vote is damaging the heart of democracy in Wales.
He said: “The ever-increasing and bloated size of the Welsh Government ‘pay-roll vote’ is damaging the effectiveness and heart of democracy in Wales.
“As an opposition party, we work around the clock to hold Carwyn Jones and his chaotic government to account, but the Welsh Parliament is unquestionably being harmed by the ever-shrinking voice of genuine backbenchers.
“By bringing three quarters of his Labour members into the ‘paid-up tent’, the First Minister is effectively closing down scrutiny of his actions and those of his government.
“A tired government of 18 years standing and devoid of new ideas is seeking to cover-up its numerous failures by increasing the democratic deficit in Wales – people and communities deserve better and for that we need to start with a fully functioning democracy and smaller government pay-roll.”
‘Welsh Government pay-roll vote’
Labour Cabinet Secretaries and Ministers (12):
Carwyn Jones – First Minister
Ken Skates – Cabinet Secretary for Economy and Transport
Vaughan Gething – Cabinet Secretary for Health and Social Services
Huw Irranca-Davies – Minister for Children and Social Care
Mark Drakeford – Cabinet Secretary for Finance
Alun Davies – Cabinet Secretary for Local Government and Public Services
Rebecca Evans – Minister for Housing and Regeneration
Lesley Griffiths – Cabinet Secretary for Energy, Planning and Rural Affairs
Hannah Blythyn – Minister for Environment
Eluned Morgan – Minister for Welsh Language and Lifelong Learning
Julie James – Leader of the House and Chief Whip, with responsibility for digital infrastructure and equalities
Jeremy Miles – Counsel General
Other Welsh Government Ministers (2):
Dafydd Elis Thomas – Minister for Culture, Tourism and Sport
Kirsty Williams – Cabinet Secretary for Education
DPO and Committee Chairs (7):
Ann Jones – Deputy Presiding Officer and Chair of Committee for the Scrutiny of the First Minister
Lynne Neagle – Children, Young People and Education Committee
Mike Hedges – Climate Change, Environment and Rural Affairs Committee
Mick Antoniw – Constitutional and Legislative Affairs Committee
John Griffiths – Equality, Local Government and Communities Committee
David Rees – External Affairs and Additional Legislation Committee
Jane Bryant – Standards of Conduct Committee
Other roles (2):
Joyce Watson – Commissioner – Equalities and the Commission as the employer of Assembly staff
Julie Morgan – Chair of the All-Wales Programme Monitoring Committee (EU funding oversight)
During the last Assembly term, the scope of the payroll vote was demonstrated when a Labour AM, Jenny Rathbone, was sacked by Carwyn Jones as Chair of the All-Wales PMC for breaching ‘collective responsibility’ by speaking out against a policy decision made by the Welsh Government – despite fulfilling a number of supposedly ‘backbench’ roles such as sitting on Assembly Committees as a Labour representative.
While Mr Davies’ point has merit, in the Westminster parliament the total number of ministers in government posts in June 2017, following the general election and reshuffle of Theresa May’s Government, was 118.
This was the same number as under the Cameron administration in May 2015, but more than all other post-1979 general elections bar 2010.
As a point of comparison, there were sixty government ministers in 1990 and India, with a population of over 1.3bn, has under eighty.
There are nine unpaid ministers in Theresa May’s June 2017 Government.
The Prime Minister is able to invite Ministers to attend Cabinet without making them Cabinet Ministers. There are five people in Theresa May’s June 2017 Government who attend Cabinet without being full Cabinet Ministers.
There is no formal definition of the payroll vote. It is generally considered to refer to all those who hold a role in the administration, whether paid or unpaid. This includes senior roles, as well as more junior roles including Parliamentary Private Secretaries (PPSs).
The proportion of Members of the House of Commons who have been part of the payroll vote has varied from 19-22% between 1979 and 2017. More recently, the Conservative Government rigged the Select Committee system, which is supposed to scrutinise the government, by appointing nine members of its payroll vote to select committees.
There have been calls for the size of the payroll vote to be limited.
Most recently, in a 2011 report, the Public Administration Select Committee noted that the proportion of those holding government posts would be exacerbated by the proposed reduction in the size of the House of Commons from 650 to 600 following the forthcoming Boundary Review. Their recommendations included cutting the number of PPSs to one per Government Department and that the Ministerial and Other Salaries Act 1975 should be seen as imposing a strict limit on paid and unpaid ministers.
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