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Wales Bill lacks clarity and risks causing future litigation, peers warn

The Wales Bill is so badly drafted that it might inadvertently reduce rather than increase the powers of the Welsh Assembly, the House of Lords constitution committee has said.

The Bill, which is before Parliament, also lacks clarity over the division of powers between Westminster and Cardiff and so risks causing future litigation, the committee said in a report.

It welcomed the Bill’s intention to move from a ‘conferred powers’ model - in which the Welsh Assembly can only legislate on matters specifically devolved to it - to a ‘reserved powers’ model, in which the assembly can legislate on anything not explicitly ‘reserved’ by the UK Parliament.

The committee said the list of reserved matters in some areas was so extensive, and the legal tests that the assembly would have to meet to use its powers “so vague, that the switch to a reserved powers model is likely to actually result in a return of power from the Welsh Assembly to Westminster”.

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Such complexity raised the risk that the courts would be frequently asked to decide whether the assembly had the power to make proposed laws.

It urged the Government to explain whether it actually intended to reduce the assembly’s legislative competence and, if not, how it would ensure that this did not happen accidentally.

One example was the Bill’s absolute restriction on the assembly’s ability to modify criminal law on sexual offences “may affect its ability to exercise its legislative competence in relation to the protection and well-being of children and young adults”.

There was “no evidence of a clear rationale” for the powers proposed to be devolved, and the committee said the government should “explain the principles which underpin the devolution proposals set out in the Bill”. 

The committee’s Conservative chair Lord Lang of Monkton 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.”

A Wales Office statement said: “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.”

Mark Smulian

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