Leading experts warn that proposals for ‘reserved powers’ for Wales will leave major constitutional problems unresolved

A report from a group of leading constitutional and legal experts published today warns that the UK Government’s devolution proposals for a ‘reserved powers’ model of devolution for Wales are unlikely to be workable and will fail to provide a clear, robust and lasting settlement.
 
The report, Delivering a Reserved Powers Model of Devolution for Wales, was commissioned by the Wales Governance Centre at Cardiff University and the Constitution Unit at University College London (UCL). 

A “reserved powers” model of devolution is preferable to the current model of devolution due to the uncertainty caused by recent Supreme Court judgements on whether matters are devolved or not. Nonetheless, the report argues that a ‘reserved powers’ model is not a simple technical change but also requires a number of other major changes.  The UK Government has not addressed these changes in a convincing way so far.

The report says that a ‘reserved powers’ model will require:
 
-  a clear rationale for deciding which functions should be devolved and which reserved to Westminster; 

-  the devolution of powers in relation to the civil law – contract, land law or civil liability;  

-  the devolution of powers to create new criminal offences, even if specific major criminal offences such as murder, manslaughter or theft are reserved to Westminster; 

-  either the establishment of a Welsh legal jurisdiction, distinct from that in England, or a set of complex mechanisms to limit the effects of laws being made in Wales also affecting England.
 
The report expresses particular concern about the proposal to reserve civil law and procedure. According to Alan Trench, who helped draft the report, 

“Civil law is not a policy area like health or education, but a legal mechanism through which policy is delivered.  Reserving it would stop the National Assembly doing its job.  Similarly, while it might be possible to reserve the law relating to specified criminal offences such as murder or theft, the Assembly has to have powers over the criminal law if it’s to be able to pass effective laws.   We tried to work out to reserve these areas as the UK Government suggested but concluded it was impossible to draft those reservations without gravely hampering the powers of the Assembly.”  

The UK Government’s proposals are based on the all-party St David’s Day Agreement published in February 2015 as the Command paper Powers for a Purpose.  According to Secretary of State Stephen Crabb, the aim was to produce a “clear, robust and lasting devolution settlement for Wales.”

The new report’s authors argue that, the list of powers to be reserved to the UK level in the case of Wales includes many reservations that do not apply in Scotland or Northern Ireland and for which there is little obvious justification in the case of Wales. These include policy areas such as anti-social behaviour, safety at sports grounds, and late night entertainment and alcohol licensing.  Alan Trench added,

“I’m afraid this is simply a wish-list of functions Whitehall departments think they need to retain, without any further reflection about the constitution of a devolved United Kingdom.”

Launching the report, Professor Richard Wyn Jones, Director of the Wales Governance Centre at Cardiff University said,

“Wales has experienced three deeply problematic devolution settlements since 1999. There was genuine hope that the all-party agreement that Wales should move to a ‘reserved powers’ model of devolution heralded the beginning of a process that would lead to Welsh devolution being placed on a sustainable constitutional basis.”

“Unfortunately, however, the proposals set out in the Command Paper seem unlikely to fulfil the Secretary of State’s aspiration for a ‘clear, robust and lasting devolution settlement for Wales’. Our analysis suggests that, unless substantially revised, Wales will be left with another devolution settlement that is unclear, highly complex and unstable.”

Welcoming the new report, Sir Paul Silk, chair of the Commission on Devolution in Wales said,

“I very much welcome this report. It gives a careful analysis of what a move to reserved powers will entail, but it also emphasises that the division of powers and responsibilities between Wales and Westminster must be based on clear principles if the new settlement is to endure.
 
“This was an important message from the Commission on Devolution. It will be disappointing if the argument about powers enters another cycle.”

The report will be launched at 12pm in the Neuadd in the Senedd on Thursday 24 September 2015.