Reserved vs. Conferred powers

Published 25/06/2013   |   Last Updated 27/05/2021   |   Reading Time minutes

“No one has ever once ever, hand on heart, said to me: ‘Do you know what we need? We need a Scottish-style devolution settlement’” So said the Secretary of State for Wales, David Jones MP, in announcing the UK Government’s response to the second part of the Silk Commission on 6 March 2013. However, the views expressed by other respondents to the Silk Commission’s consultation strongly suggest that the debate on whether Wales should have a similar powers model to Scotland will only intensify over the coming months and years.

The responses of the Welsh Government, Plaid Cymru and the Welsh Liberal Democrats to Silk 2 all made the case for changing the Assembly’s current so-called conferred powers model - where the Assembly has only the powers conferred on it by the UK Parliament - to a Scottish-style reservation system. This would allow the Assembly to legislate on any matter provided that the matter in question has not been expressly reserved from its competence. This position was also supported by numerous other respondents to the consultation, including Lord Morris of Aberavon, the Law Society and the Federation of Master Builders. The proponents for change argue that the current settlement has been beset by problems since it came into force at the beginning of the fourth Assembly. In particular, the referral of the Local Government Byelaws (Wales) Act 2012 by the UK Government’s Attorney General to the Supreme Court and the threat of similar action by the Wales Office over the legality of the National Assembly for Wales (Official Languages) (Wales) Act 2012, point to practical difficulties within the system that could undermine the entire settlement should they persist. So, what are the options available to ensure a long-lasting and workable settlement? Retaining or tweaking the current model, as outlined in Schedule 7 to the 2006 Act, remains an alternative to adopting a completely new framework. However, in addition to the Scottish-style settlement, the approach adopted in Northern Ireland, where reserved powers are split into two categories – those that are exceptions to the settlement and those that are currently reserved but which could be devolved in future – may prove attractive to many in Wales. Whatever the approach taken forward, the issue will no doubt feature heavily in the Silk Commission’s part 2 report, due out next spring. Further details about the Assembly’s legislative powers model are available in the Quick Guide: Legislative powers of the National Assembly for Wales. A summary of the issues raised in the consultation responses to the second part of the Silk Commission is available in the Research Paper: Summary of consultation responses to part two of the Silk Commission on Devolution in Wales.

Article by Owain Roberts, National Assembly for Wales Research Service