A briefing paper on the legal issues surrounding a Scottish independence referendum
Documents to download
Wales Bill 2016-17: Committee Stage Report (1 MB , PDF)
The Wales Bill 2016-17 changes Welsh devolution to a reserved powers model as used for Scotland. The Bill specifies a list of subjects that are reserved to the UK level: everything else is devolved.
It also states the permanency of the National Assembly for Wales, and allows it to change its name (by a two-thirds majority), so that it can rename itself as a “Parliament”.
It recognises that there is a body of Welsh law, although it does not change the single England and Wales jurisdiction.
The Bill devolves Assembly elections, including the franchise, and devolves to Welsh Ministers some matters to do with energy (eg, issuing licenses for onshore petroleum activities, including fracking, and electricity generating projects up to 350MW), transport (eg motorway speed limits), harbours, equal opportunities, and marine licensing and conservation.
The Bill is discussed in detail in CBP 7617, Wales Bill 2016-17, 13 June 2016, prepared for second reading.
The Bill had its second reading on 14 June 2016, starting at HC Deb 1644.
Committee stage will be taken in a Committee of the Whole House, because this is a constitutional bill, on two days.
The first day was 5 July 2016. It covered most of Part 1 of the Bill, the constitutional aspects such as elections.
The second day was 11 July 2016. This covered clause 3, and the associated Schedules 1 and 2, which create the reserved powers, plus the remainder of the Bill in Parts 2 – 4. This includes the devolution of powers to do with energy, transport and equal opportunities.
The fate of each amendment or New Clause can be traced in the Proceedings of the Committee of the Whole House published for each day:
First day (Part 1 except clause 3, constitutional provisions)
Second day (the rest)
First day in committee
Part 1 of the Bill, except for clause 3, was considered on 5 July 2016.
No amendments were made. There were divisions on three amendments and on two clauses.
What was discussed?
Liz Saville Roberts (Dwyfor Meirionnydd) (PC) moved Amendment 5 that would have the effect of separating the legal jurisdiction of England and Wales into two new jurisdictions, that of England and Wales. The amendment was drafted by the Welsh Government. It was defeated on division: Ayes 41 and Noes 270, HC Deb 5 July 2016, cc789-91.
Paul Flynn (Newport West) (Labour) moved Amendment 7 that would require the Lord Chancellor and the Welsh Ministers to keep the issue of the single jurisdiction of England and Wales under review. The amendment was defeated on division: Ayes 217 and Noes 274, HC Deb 5 July 2016, cc792-5.
Speaking for the Government, Guto Bebb (Aberconwy) (Conservative), defended the single jurisdiction and continued reservation of justice. Clauses 1, 2 and 4 were ordered to stand part of the Bill,
At second reading, the Secretary of State for Wales, Alun Cairns, said that he had been working with the Justice Secretary to establish an officials-led working group, the Justice in Wales Working Group, to look at how the administrative arrangements relating to the growing body of Welsh law could be improved [HC Deb 14 June 2016 c1648]. The group includes representatives from the Judicial Office and the Welsh Government, and will be working on proposals as the Bill goes through Parliament. The Group is due to report in the autumn.
Clauses 5 to 7, relating to the conduct and timings of elections, were agreed without amendment. Plaid Cymru tabled probing amendments to clause 6, which transfers the power to alter the date of certain elections from the Secretary of State to Welsh Ministers. The Plaid Cymru amendments would have transferred the power to the Presiding Officer of the NAW, to mirror the situation in Scotland. The Minister agreed to consider the issue further.
All remaining clauses up to clause 21, with associated schedules, were agreed to.
There was a division on clause 10 stand part. The clause was agreed to: Ayes 294 to Noes 228, HC Deb 5 July 2016, cc836-40. This clause concerns the requirement to produced a justice impact assessment to accompany bills in the Assembly. Paul Flynn for Labour explained that he saw the clause as micro-managing the Assembly (HC Deb 5 July, c829).
There was also a division on Amendment 11 to clause 16. The clause removes the referendum that is required before devolving some income tax powers. The amendment would have replaced the referendum with a new requirement for the Secretary of State first to gain approval from Parliament and the Assembly for a fiscal framework for Wales. Paul Flynn argued that this should include offsets against devolved tax revenue but also a long-term commitment to the funding floor, and that the framework should be no less favourable than the Scottish example (HC Deb 5 July 2016, cc828-9). The Amendment was defeated on division: Ayes 181 to Noes 285. Clause 16 stand part was agreed to on division: Ayes 285 to Noes 7.
Second day in committee
Parts 2, 3 and 4 of the Bill, plus clause 3 and associated schedules, were considered on 11 July 2016.
Some Government technical amendments were made. There were divisions on four amendments and one new clause, all defeated.
What was discussed?
Paul Flynn moved amendment 118 to Clause 3 with the stated intention of ensuring that the Assembly retained the power to legislate for non-devolved matters in order to make effective or enforce a devolved provision. Mr Flynn said that the Bill did not presently contain an equivalent to the provision in the Government of Wales Act 2006 which expressly permits legislation on non-devolved subjects if consequential or incidental to a devolved provision. The amendment was withdrawn. Clause 3 was agreed to without amendment.
Liz Saville Roberts moved a series of amendments (83, 86, 100 and 111) designed to devolve aspects of justice to the Assembly. Amendment 83 to Schedule 1 would have removed the reservations of crime, public order and policing from the list of reserved powers. In support of her case, Ms Saville Roberts pointed out that it is now being proposed by the Government to devolve policing to English city regions. The amendment was defeated on division: Ayes 47 to Noes 270 (HC Deb 11 July 2016, cc92-95).
Ms Saville Roberts also indicated that her party would use the report stage to bring forward proposals on a distinct rather than separate legal jurisdiction (HC Deb 11 July c74).
Planning for electricity generating stations
Clauses 36-39 devolve the responsibility for granting development consent for energy generating projects up to and including 350MW onshore and in Welsh territorial waters. It devolves responsibility for development consent for onshore wind powered generating stations with no upper limit.
Hywel Williams (Plaid Cymru) (Arfon) tabled amendments 74 and 75, and consequential amendments 76 to 80, which would remove the Bill’s 350 MW limit on the Welsh Government’s legislative competence on energy decisions. He argued that there should be no upper limit to reflect the situation as it is in Scotland (HC Deb 11 July 2016, c112).
Parliamentary Under-Secretary Guto Bebb said that the 350MW limit was a compromise based on the views expressed by the Silk Commission and in the St David’s day agreement, and that these amendments would “reopen the issue of the political consensus”. He said that the Bill would move “significant changes and decision-making powers to Wales, but it is also recognising the importance of what might be seen as a strategic energy development” (HC Deb 11 July 2016, c120). Amendment 74 was defeated on division: Ayes 195 to Noes 275 (HC Deb 11 July 2016, cc128-30).
Amendments made to these clauses were Government amendments 47 to 49 to Clause 38 to “correct an inadvertent constraint in the current drafting of clause 38 by removing the presumption that Welsh Ministers are the devolved consenting authority,” and Government amendment 60, which covers the transitional period (applications formally accepted for examination will continue under the Secretary of State, those not yet accepted will fall to the Welsh Ministers) (HC Deb 11 July 2016, cc121 and 125).
There was a division on New Clause 2, tabled by Jonathan Edwards (Carmarthen East and Dinefwr) (PC). As Mr Edwards explained in the first day in Committee, the purpose of the new clause was to allow the Welsh Assembly to set the thresholds at which Welsh taxpayers were liable to pay the basic, higher and additional rates of income tax. He had also tabled New Clause 3 to allow for all income tax revenues from Welsh taxpayers to be devolved.
Mr Edwards argued that New Clause 2 would allow the Welsh Government “to set innovative income tax structures aimed at maximising revenues for the Welsh Exchequer to invest in Welsh public services, but also to encourage wealth creation and encourage investment” (HC Deb 5 July 2016, c820).
He had also tabled probing clauses to assign Welsh VAT revenues to the Welsh Government equivalent to the provision that has been made for Scotland (NC4), and to devolve corporation tax equivalent to the provision that has been made for Northern Ireland (NC 8 & 9), as well as a clause to devolve Air Passenger Duty (NC5).
Speaking for the Government Guto Bebb (Aberconwy) (Conservative) opposed all these new clauses, suggesting that there was “no consensus” to assign VAT revenues “unlike in Scotland”, and that, in the case of corporation tax, “Northern Ireland faces a number of unique challenges that Wales does not” (HC Deb 11 July 2016 cc126-7). In relation to Air Passenger Duty, Mr Bebb noted that the Government were “not of the view that the case has been made for devolving APD at this point, but we will remain open to listening to the arguments in future (HC Deb 11 July 2016 c126). New Clause 2 was put to the vote, and was negatived by 273 votes to 46 (HC Deb 11 July 2016 cc135-8).
There was a division on Plaid Cymru amendment 81 to clause 44, which would have removed the Secretary of State’s power to block Welsh legislation that might have a serious adverse impact on water supply or quality in England. Hywel Williams spoke to it, and linked it to the historical flooding of Capel Celyn in the 1960s to create a reservoir to supply industry in the Liverpool area (HC Deb 11 July 2016, c113). Mr Bebb responded that the matter of devolving water, and sewerage, was under consideration (HC Deb 11 July 2016, c123). The amendment was defeated on division: Ayes 47 to Noes 274 (HC Deb 11 July 2016, cc131-4).
Alcohol and entertainment
Paul Flynn spoke to amendment 123 to Schedule 1 which would have removed the reservations on the sale and supply of alcohol and the licensing of entertainment and late night refreshment. He argued that, since alcohol misuse was a “major public health issue” in Wales, the Assembly should have the power to legislate on it (HC Deb 11 July 2016, c67). The amendment was defeated on division: Ayes 210 to Noes 270 (HC Deb 11 July 2016, cc95-8).
Documents to download
Wales Bill 2016-17: Committee Stage Report (1 MB , PDF)
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