Emyr Lewis explains the why the uncertain legal boundaries between Westminster and Cardiff Bay are causing problems

October 29th, 2012

The current Welsh devolution settlement has created a set of complex and uncertain legal boundary lines between England and Wales. That leads to tensions between administrations and legislatures in Cardiff and London. The first ever Bill passed by the Assembly has already been the subject of litigation in the Supreme Court (see here), and the second may also be as well.

Perhaps the most fundamental of those boundary lines marks out the subjects about which the Assembly can make laws, its ‘subject-matter competence’. The way in which the boundary is drawn creates some unexpected and rather messy results. As drafted, the settlement means that the Assembly’s power to legislate includes areas which are intuitively UK matters. Conversely, this also leaves unnecessary gaps in the devolved powers of the Assembly.

Briefly, an Assembly law must relate to one of a list of subjects in Schedule 7 of the Government of Wales Act 2006, and must not fall within any exceptions in Schedule 7. In effect this creates two lists. The first is the list of subjects, and the second is the list of exceptions. This means that there are some subjects which are not contained in either list.  This is hardly surprising, given that:

  1. It would be an impossible task to describe comprehensively in two lists all aspects of the world, or even Wales, about which legislation might be made.
  2. The categories into which we classify things, the ways in which we choose to describe the world, are not closed (100 years ago, for instance, there was no such category as ‘broadcasting’).
  3. Because there are different ways in which we classify things, for example according to what colour or size they are, subjects can belong in more than one category.

There is therefore a wide range of subjects which is neither expressly included in, nor expressly excluded from, the Assembly’s subject-matter competence. They are in limbo.The Assembly can, however, make laws about something which is in limbo if it relates to one or more of the subjects in Schedule 7.

There has been more than one example of people failing to grasp this concept. It has been observed, for instance, that the Assembly cannot legislate about the criminal law – for example, in the context of banning the smacking of children – because it is not listed in Schedule 7. That is wrong. It can, because the criminal law is not excluded.

There are some surprising consequences. In some cases the Assembly’s powers are broader than was perhaps intended, and in some cases narrower.

For example, the Assembly has the power to legislate in relation to the “protection and wellbeing of children and young people”. Does this mean that the Assembly could pass a law banning the recruitment in Wales of young people between the ages of 16 and 18 into the Armed Forces? The law would ‘relate to’ the protection and wellbeing of children, and (unlike the situation in Scotland or Northern Ireland), there is no exception covering ‘the armed forces’ or ‘defence’. So the answer is probably Yes, even though many would assume that this wasn’t intended.

By contrast, Schedule 7 does not expressly give the Assembly the power to make laws to combat violence against women.  Some laws could be made to protect some women in all circumstances, and all women in some circumstances. However, for a comprehensive Act to protect all women, special pleading would be needed to fit this within the Schedule 7 powers. If this were to happen it would become the kind of case which is ripe for disagreement between Cardiff and London.

The Welsh devolution model contrasts with the models for Scotland and Northern Ireland. While there are differences between the dispensations in Northern Ireland and Scotland, the basic model is the same. That is to say, there is no list of subjects on which laws can be made.  Rather, the model sets out what is excluded. There are lists in Schedules of excluded matters, as well as exceptions to those exclusions. The starting point is that laws can be made about anything, unless excluded.

In this model, multiple categories and overlapping categories are less problematic.  There can be no subjects in limbo under this model, because the default position is that all subjects are included, unless expressly excluded. The Scottish Parliament would have no problem in passing a comprehensive Act for protecting women from violence, since it would not have to pick over and construe a list of detailed conferred powers, worrying how far it could go.  It would have to ensure that a provision did not relate to an excluded matter, but that is a far less precarious starting point than in Wales.

Furthermore, in both Scotland and Northern Ireland, the phrase ‘relating to’ is used to define what is excluded from subject-matter competence rather than what is included within it. So, the Scottish Parliament would be unable to legislate to ban the recruitment of children into the armed forces, because such a provision would ‘relate to’ something which is excluded.

There are various possible ways of resolving these difficulties.

  • Exclude from the law-making powers everything which is not expressly conferred. The problems with this approach are clear. Quite apart from the fact that it would remove a huge amount of the power for which the people of Wales voted in the 2011 referendum, this would make it impossible for instance for the Assembly to legislate in a way which created criminal sanctions to protect elderly people, because that would ‘relate to’ the criminal law as well as to the protection of elderly people. In almost any case where there are multiple possible categories and overlapping categories, the Assembly would be unable to legislate.
  • Extend the categories of exceptions, so that they cover at least those areas currently excluded from the subject-matter competence of the Scottish Parliament. While this solution deals with the problem of powers which are possibly too broad, such as the recruitment of children, it does not deal with those which are possibly too narrow, such as violence against women, because the list of conferred subjects is not changed, and there will still be limbo areas.
  • Combine the previous method with a more generous list of conferred subjects on which the Assembly could legislate. This would give the Welsh Assembly greater flexibility, but there would still be limbo areas.
  • Introduce the Scotland / Northern Ireland model into the Wales devolution settlement. This would do away with limbo areas and resolve the issues of both too narrow and too broad competence. It would mean much more certainty about the basic subject-matter competence of the Assembly, saving much work for Welsh Ministers, the Wales Office, the Assembly Commission and all their staff. In addition there would be less pettifogging turf warfare between the administrations and legislatures in London and Cardiff. It would also create greater parity between the devolved legislatures.

Tags: , ,

Emyr Lewis is a Partner with Morgan Cole LLP and a Senior Fellow at the Wales Governance Centre, Cardiff University. This article is a synopsis of preliminary evidence the Changing Union project is giving to the Silk Commission ahead of its examination of Part 2 of its remit on the powers, accountability and scrutiny capacity of the National Assembly.

17 Responses to:“The Assembly’s legislative limbo land”

  1. Jacques Protic says:

    There are many valid arguments that are raised in Emyr Parry’s paper but I only want to touch upon the issues surrounding overlapping laws between Cardiff and Westminster and Welsh Government’s interpretation and application of existing and some of the new laws that came into the being over the last 10 years.
    We all know that Wales has a minority language, a simple fact that sets it apart from England, Scotland and Northern Ireland and Welsh Government has been exceptionally active in creating ‘legislation’ that sets it on a very different course to the other parts of the UK.

    Some 10 years ago we have seen creation of the Bilingual nation concept where the education of Welsh children became the primary means and a tool to fulfil Welsh Government’s expectations behind the said initiative.

    Then we have public employment laws where again Welsh Government has created ‘legislation’ and conditions primarily via the Welsh Language Board that give what appears to be a substantial bias towards minority language and culture and it hasn’t stopped there.

    Welsh Government has ensured that Welsh language is outside the remit of Human Rights watchdog in Wales and any issues concerning the Welsh language were strictly given to Welsh Language Board as the sole arbiter upon this matter (These ‘powers’ are now in the hands of the Welsh Language Commissioner).

    This is a legal mine field under any definition and questions must be asked of the Welsh Government to provide absolute transparency and legal clarity as to the equality of the two languages and two cultures living in Wales.

    Should the WAG fail to do so then the Welsh Office must intervene and call for at least the Judicial Review or preferably challenge the Welsh Government in the Supreme Court of the so called legal policies that appear to preclude English speaking Welsh people from working in public domain or having the right to educate their children through the English language in Wales!?

    (Report comment)

  2. belowlandsker says:

    I’m sick to death of articles like this. Last year we had the likes of Roger Lewis and various other nauseating politicians asking us to vote yes to “give them the tools for the job”. We did vote yes… but instead of using these new tools they are straight onto whining about the next thing! It seems it is now possible in Wales to spend a political career bickering about constitutional change without ever doing anything to benefit the lot of the public.

    (Report comment)

  3. John R. Walker says:

    “There are various possible ways of resolving these difficulties.”

    You missed the most obvious and most effective remedy off your list – which is to scrap devolution and go back to 1-nation, 1-legal code, 1-tax code, 1-funding code, 1-education curriculum, 1-language, and a lot fewer seemingly incompetent parasites on the devo-payroll sucking the life-blood out of front-line services.

    How much longer do you think you can keep digging this hole before it collapses on your collective heads?

    (Report comment)

  4. Jeff Peters says:

    Interesting article, especially the ‘Armed Forces’ argument and the Scotland / Ulster models, and their possible absorption into Welsh law. In response, and as we’ve come to expect, Jacques Protic allows us into his cultural imperialist world. An obsessive Brit nat, he has ignored Emyr Lewis’ article in order to allow himself some anti-Cymraeg ranting space. Trueni!

    (Report comment)

  5. Dave says:

    The Scottish model is the most clearly defined, and should have been adopted initially or in the 2006 Act. The sooner it is done the better.

    Some people have nothing better to do than engage in perpetual repetition of a prejudiced opposition to the Welsh Language at every conceivable opportunity, which I find nauseating.

    (Report comment)

  6. Ken Richards says:

    This article and the comments about it are similar in many ways to the discussions here in Canada both before and after the adoption of the 1982 Constitution. The process canbe frustrating to those of us on the sidelines, but fascinating to aficionados of governance. At the same time, the amateur historian in me whispers phrases such as Statute of Rhuddlan and Acts of Union, which suggest that Wales could lose out in the end. Thus Wales needs its aficionados and experts to survive the process, which is why articles such as this one, and others which preceded it in recent weeks, are important to our overall understanding of what is taking place in Cardiff and Westminster.

    (Report comment)

  7. Geraint says:

    belowlandsker, the article is not asking for more powers, or new powers. It is asking for the powers that the Welsh Assembly have to be made clear. The current model has created confusion and has a lot of possible unintended consequences. If we had the powers laid out similar to that in Scotland and Northern Ireland, it would stop confusion and clashes between the Assembly and the Wales Office, and we wont be having the kind of court cases we are at the moment.

    (Report comment)

  8. Geraint says:

    Jaques Protic is absolutely right on the Welsh language. I am a graduate, who has been trying to find work in Wales, but has been unable too, in part because being unable to speak Welsh has made me a person non grata in Wales.

    (Report comment)

  9. RTG says:

    When did this site first get invaded by the crazed, paranoid True Wales types usually found on WalesOnline and the comments section of Betsan Powys’s blog?

    (Report comment)

  10. Tredwyn says:

    I urge Jacques Protic to take the Welsh government to the European Court under the Human Rights treaty. He clearly thinks his human rights are being invaded because he has chosen to live in a Welsh-speaking community where children are taught in the community language. Jacques, most of us are not sympathetic; we don’t understand why you should choose to live in the only place on earth where Welsh is the community language and then moan about it. So Instead of boring us all to death, why not just test your position in court?

    Belowlandsker: did you really vote yes?

    (Report comment)

  11. David Lloyd Owen says:

    RTG, I wholeheartedly agree. It is a pity that this site has been all but taken over in this manner. Unlike those other sites you mention, there used to be an engaged and constructive discourse here.

    Geraint, I am a graduate and a non-Welsh speaker. I am most certainly not persona non grata here, despite the fact that I live in Y Fro. I find this an open and accepting society. If it is so closed, then why did the local Plaid Cymru group as me to become Town Mayor a few years ago?

    JRW is to be applauded for his honesty in stating his desire for ’1-language’.

    Making sure that my children are enjoying a genuine Welsh-medium education (and yes, they are fluent in Welsh, as are most of the children from a monoglot English speaking background at Ysgol Y Preseli) and trying to be part of a nation’s civic society are part and parcel of living in another country and would be the norm in almost every other country in the world where one moves into a different language area.

    (Report comment)

  12. Paul Roberts says:

    As I am not a legal/constutional professional perhaps someone could explain. After the referendum was won, why wasn’t Wales’ law-making power simply made a carbon copy of Scotland’s-with all Anglo-Scottish legal precedents applying to us?

    (Report comment)

  13. Emyr Lewis says:

    To Paul Roberts:

    The reason is that the choice to adopt a Scottish-style model wasn’t included in the part of the 2006 Government of Wales Act which set up the referendum.

    That would probably have needed another Act of Parliament, though some argue that it could have been achieved (and could still be achieved) by amending Schedule 7 to the 2006 Act through an Order in Council.

    (Report comment)

  14. tredwyn says:

    Paul Roberts: because a substantial minority in the Labour party don’t want any tax devolution and the party as a whole has consistently underestimated the appetite of the Welsh people to make the Assembly effective and accountable. The party has therefore always gone for the minimalist or half-baked option and we have to stagger to a sensible model of devolution in a series of small steps rather than just going there.

    (Report comment)

  15. Jacques Protic says:

    As the principal article raised issues of Welsh legislation I felt it important to highlight some legal anomalies and also question how in a democracy it is possible to create a legal structure that is based upon the state dogma aimed at creating socially engineered new society for the benefit of the few.

    Having read few comments from people who disagree with my viewpoint I have noticed a distinct lack of fact and in the place of factual absence use of dismissive prejudice seems to be OK.

    It’s not OK and whilst I do understand their concerns in trying to keep the lid down and stifle debate it’s no longer possible to avoid difficult facts and to keep demise of Wales out of public domain.

    We all know that Welsh nationalists have huge vested interests in protecting the enormous perks and privileges extended to them via the WAG’s Road to Bilingual Wales but at what cost to Wales?

    We must not ignore overwhelming facts that the Welsh education is in terminal decline as is its economy, infrastructure and so on and sanity appears to be absent or missing in Cardiff Bay and typical of a mindset that is displayed in David Lloyd Owen’s (DLO) comment on this thread.

    For DLO’s information at this very moment which is some 10 years since the onslaught of Road to Bilingual Wales began there are in round figures 33,000 fifteen year old children in Welsh Education.

    27,000 children chose English Medium education and 6,000 opted for Welsh medium education then I looked at the Welsh Government’s statistics and with no exception English Medium education outperformed Welsh Medium education in English language and Mathematics in all sectors which includes percentages of children with Free School Meals (FSM) provisions.

    Interesting fact to note is that there are no Welsh medium schools with FSM above 20% whilst English medium schools contain up to 30+ percentage of children with FSM’s, just wonder why!?

    Whilst on Welsh statistics the attainment grades for Welsh language (Grades A-C) in Welsh Medium schools are poor – 61% achieved A-C in schools with low FSM down to 42% getting the A-C grades in WM schools with FSM’s in category of 15 – 20%.

    Whilst the figures I have just quoted are readily available to anyone who is interested and who can be bothered to request information from the Welsh Government these figures are not on their website and it appears the Welsh Government is concealing failure of Bilingual Nation strategy from the Welsh people.

    In my humble opinion Leighton Andrew is a liability to Wales as much as the Bilingual Nation concept is and if Leighton has any integrity he should resign from the Welsh Government and yesterday would not be soon enough.

    Wales needs inclusivity and freedom of choice extended to all people of Wales to live and work here irrespective if they are Welsh speakers or not and Welsh people must be free of state sponsored dogma.

    (Report comment)

  16. Phil Davies says:

    Jacques

    Summarising your challenge of legal principle here:

    1. “It is my human right to have my children educated in the language of my choice” (presumably you would concede, as I would, that a small practical condition be put on this such as: “within a reasonable distance and at a reasonable cost, and as long as it is, say, an official language of the UK with, say reasonable levels of parental demand?)

    2. “It is my human right to occupy a role of work even if I cannot speak the language that has been identified as being essential for that role” (because any other role demanding language competence other than ‘essential’ is already illegal and you can challenge in a court of law now)

    On principle number 1. Good luck with that one. I’d support you. Unfortunately, it seems, local budgetary limitations and perhaps even local ideological prejudices sometimes prevent some local authorities acting in this enlightened way. Incidentally, parents all across Wales wanting to give their children a Welsh-speaking education will applaud you if you can get that human right established in Welsh, British or European law. They’ve been campaigning for it for nearly 60 years to no avail (parents in Wales have no legal right for their children to receive a Welsh-medium education and local authorities have no obligation to provide a prescribed level of Welsh-medium education, and only to have a ‘plan’ and undertake periodical ‘demand assessments’). Come on board, maybe we can make common cause?

    On 2. Good luck with that one as well. I’d love to support you from a strictly self-interested perspective. I’d love to have the right to have a job even if I didn’t fullfil one of the core requirements. Come to think of it, I’d love to be doctor or dentist but unfortunately I haven’t been to medical school. So I think you will struggle with that one. In the meantime, if you see a ‘Welsh-essential’ job that you’d be interested in applying for but suspect is unjustifiably categorised as such, challenge them, take them to court, let the law test its validity. The law is there. And I’d support you if you were proven to be right.

    Regarding your assessment of the relative performance of Welsh- and English-medium eduction, I’m not really in a position to comment. You’ve provided a lot of statitics there and, who knows, you may have a case. Why not forward your evidence to the leader of the Official Opposition in the Assembly? Or to the press? I’m sure they would be delighted to expose such a discrepancy in performance and hold the Welsh Government minister to account. The Opposition may support Welsh-medium education in principle but they’d be damned interested to know if it were under-performing as a result of political failure. Or maybe bring a private case of negligence against the local authority or Welsh Government? After all, it’s not in any of our interests that a child’s education is compromised just because of the language they’re taught in, is it?

    Good luck anyway. In principle, you have my full support on these three issues, if indeed you are proven to be right.

    (Report comment)

  17. David says:

    Geraint says:
    “Jaques Protic is absolutely right on the Welsh language. I am a graduate, who has been trying to find work in Wales, but has been unable too, in part because being unable to speak Welsh has made me a person non grata in Wales.”

    I am a graduate, who is fluent in Welsh and English, and unable to find work in Wales. I don’t understand the point you are attempting to make.

    (Report comment)

Have your say

Please let us know in your message if you do not want the IWA to contact you in future or related IWA activity.