The operation of the England and Wales jurisdiction should recognise the ‘reality of a growing body of a distinct Welsh law’, a high-powered Lords committee recommends today in a review of the latest devolution settlement.
Reporting on the Wales Bill, the Lords select committee on the constitution also calls for further legislation to clarify the demarcation of powers between the UK parliament and the Welsh Assembly.
The bill, currently before the House of Lords, seeks to move the scope of assembly law-making powers from a ‘conferred powers’ to a ‘reserved powers’ model, in which the assembly will enjoy general legislative competence subject to exceptions such as over sexual offences.
While welcoming the bill’s aim, the committee say that the way the proposed legislation implements the reserved powers model is unnecessarily complicated.
‘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.’
It contrasts these arrangements 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’.
Committee chair Lord Lang of Monkton (Conservative former MP Ian Lang, pictured) said: ’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.’
The new regime could even have the effect of reducing the powers of the Welsh Assembly, Lang said. ‘We have asked the government whether that was their intention, and if not, how they intend to avoid unintentionally diminishing the assembly’s powers.’
On the controversial question of the need for a distinct Welsh jurisdiction the committee declines to comment, describing the arguments as ‘complex’.
However it notes that ‘the law applicable in Wales increasingly diverges from the law applicable in England’ and says this is an issue that will ‘grow in importance as the process of Welsh law-making becomes increasingly significant.’
The bill begins its committee stage in the Lords next week.
In an unusually quick response the government stated today: ‘The Wales bill provides a historic opportunity for the Welsh Assembly to secure more powers and will create a stronger, clearer fairer devolution settlement for Wales. The whole purpose of the bill is to make it much clearer which powers are exercised by the Welsh Assembly and which powers are exercised by the Westminster parliament.’
It said the bill had been substantially modified over the past 18 months, it added. ‘Discussions will continue as the bill goes through Parliament and there will be plenty of opportunity to debate further amendments over the coming weeks.’