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A forwards or backwards move?

Is the Draft Wales Bill the next step for devolution or a step back? Tamsin Stirling blogs on criticisms of the legislation and the implications for housing.

Just before Christmas I attended a very interesting briefing from the Wales Governance Centre and Public Affairs Cymru on the Draft Wales Bill, which sets out a ‘framework’ for the next stage of devolution.

A trio of professors provided different perspectives. Laura McAllister looked at the political context, Rick Rawlings considered the move from a conferred powers to a reserved powers model and Thomas Watkin looked at whether a separate jurisdiction for Wales is now a much closer possibility than had previously been thought. All three speakers raised significant issues with the Draft Bill.

Laura McAllister noted that the opportunity to build on the Silk Commission and St David’s Day Agreement is severely undermined by the timetable for the Bill and that the ambitions outlined in the foreword to the Bill are not delivered. She identified a number of specific weaknesses: the Bill as drafted makes no reference to constitutional developments in other parts of the UK (Scotland, Northern Powerhouse); a shorter and more rational list of reservations is needed; and ideally it should be a consolidating bill. Such substantial changes would require a much more realistic timescale.

The issue of the list of reserved powers is significant. Professor McAllister referred to the list in the Draft Bill as, ‘at best odd and at worst ludicrous’, suggesting a mindset that involved trawling Whitehall departments to see ‘what they want to keep away from Wales.’

Rick Rawlins talked about the leeway and lock model adopted by the Draft Bill – an approach that gives some legislative space for the Assembly but then bounds it on all sides, using the concept of ‘a necessity test’ which would define legislation outside of the competence of the Assembly if it is judged ‘unnecessary’. Professor Rawlins noted that the necessity test would be a magnet for legal challenge. He concluded that the basic model of leeway and lock embedded in the Draft Bill is ‘constitutionally wrong’; it essentially says that the National Assembly can’t be on the same level as other devolved institutions in the UK.

Thomas Watkin focused on what is not in the Draft Bill at all: the concept of a distinct, but not separate, jurisdiction for Wales. The necessity test has made the issue of a separate jurisdiction much more live, given that a single jurisdiction for England and Wales with such a porous border between the two countries will inevitably raise questions of whether different legislation in Wales is ‘necessary’. Professor Watkin questioned a potential move to a separate jurisdiction as a response to the Draft Bill as much wider issues would be at play in developing a separate jurisdiction. Rather he put the case for a distinct and emerging jurisdiction for Wales.

The legal implications of constitutional details can be somewhat dry. Indeed, much of the discussion at the event veered to the theoretical end of the spectrum. But the implications of the Draft Wales Bill are anything but theoretical.

For example, from a housing perspective, due to the way that the list of reserved powers has been drafted, our Renting Homes Act could be out of competence under the Draft Wales Bill, rather than within competence as things stand. And there will be similar examples in other policy areas. Surely this cannot be seen as a step forward for devolution? It certainly doesn’t align with an important principle for devolution – that of no rowing back on existing powers.

The foreword of the Draft Bill says that it sets out how the Westminster Government plans to deliver a stronger, clearer and fairer devolution settlement for Wales. The presentations and discussion at the event on 15 December 2015 suggest that, as drafted, the Bill certainly will not deliver a settlement that is stronger, clearer or fairer. Let’s hope that the scrutiny of the Bill results in significant improvements.

You can access tweets from the event at @WalesGovernanceCentr

There is a useful Wales Governance Centre discussion about the Draft Bill online here sites.cardiff.ac.uk/wgc/2015/10/22/new-podcast-wales-governance-centre-debates-the-new-draft-wales-bill/

The Draft Wales Bill is online at www.gov.uk/government/publications/draft-wales-bill-bil-cymru-drafft.

Tamsin Stirling is an independent housing consultant and former editor of WHQ. tamsin.stirling@dial.pipex.com @TamsinStirling1


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