Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘devolution

The Wales Act 2017

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The Wales Act 2017 amends the Government of Wales Act 2006 by moving to a ‘reserved powers’ model for Wales. (This is the model that underpins the devolution settlement in Scotland.) The reserved powers model set out in the Act provides a clearer separation of powers between what is devolved and what is reserved to the UK Parliament. As a consequence, the Assembly has power to legislate on any subject except those specifically reserved to the UK Parliament. (One measure that has already been announced is that there will be legislation to rename the Welsh Assembly the Welsh Parliament.

The Wales Act 2017 includes a declaration that the Assembly (Parliament) and the Welsh Ministers and the laws that they make, are considered a permanent part of the UK’s constitutional arrangements and will not be abolished without a decision of the people of Wales. It is also declared that the UK Parliament will not normally legislate with regard to devolved matters without the consent of the Assembly, whilst retaining the sovereignty to do so.

The Act devolves further powers to the Assembly and the Welsh Ministers in areas where there was political consensus in support of further devolution. These include:

  1. Devolving greater responsibility to the Assembly to run its own affairs, including deciding its name;
  2. Devolving responsibility to the Assembly for ports policy, speed limits, bus registration, taxi regulation, local government elections, sewerage and energy consenting up to 350MW;
  3. Devolving responsibility to Welsh Ministers for marine licensing and conservation and energy consents in the Welsh offshore region; and extending responsibility for building regulations to include excepted energy buildings;
  4. Devolving power over Assembly elections; and
  5. Devolving powers over the licensing of onshore oil and gas extraction
  6. Aligning the devolution boundary for water and sewerage services along the border between England and Wales.

The most interesting provision from a Legal System perspective is that the Wales Act provides for establishing in statute a President of Welsh Tribunals to oversee devolved tribunals and allowing cross-deployment of judicial office holders. This could be the first step in the development of a more distinct Welsh legal system.

The Wales Act 2017 is at http://www.legislation.gov.uk/ukpga/2017/4/introduction/enacted

 

For recent comment on the possible development of a distinct system of justice in Wales, see the report of the Justice in Wales Working Group at http://sites.cardiff.ac.uk/wgc/files/2017/09/Justice-in-Wales-Working-Group-Report-Final-2.pdf, and the work of the Welsh Governance centre on Justice in Wales: http://sites.cardiff.ac.uk/wgc/justice-in-wales/

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Written by lwtmp

October 6, 2017 at 1:04 pm

Posted in Chapter 3

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Turning constitutional conventions into law

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During the debate on what became the Scotland Act 1998, Lord Sewel indicated in the House of Lords  (H.L. Deb vol. 592 col. 791) that “we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.

Clause 2 of the Scotland Bill 2015  inserts a new subsection (8) into section 28 of the 1998 Act so it is recognised in statute that, although the sovereignty of the UK Parliament is unchanged by the legislative competence of the Scottish Parliament, the UK Parliament will not normally legislate for devolved matters in Scotland without the consent of the Scottish Parliament.
For further details see http://services.parliament.uk/bills/2015-16/scotland.html

 

Written by lwtmp

October 13, 2015 at 4:31 pm

The Scotland Bill 2015

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A principal outcome of the Referendum on Scottish Independence was an agreement – the Smith Commission Agreement – that more power should be devolved from Westminster to the Scottish Parliament. The Scotland Bill was published in July 2015 and has started its progress through the Westminster Parliament.

The Explanatory Notes to the Bill summarise the contents of the Bill as follows:

The Bill is an enabling Bill and the majority of the provisions in the Bill set out the powers that are being transferred to the Scottish Parliament and or the Scottish Ministers. In particular the Scotland Bill amends sections of the Scotland Act 1998 and rebalances the devolved and reserved responsibilities between the administrations. The Bill also includes provisions which set out the constitutional relationship of the Scottish Parliament and Scottish Government within the United Kingdom’s constitutional arrangements. It does not amend this relationship.
…[T]he Bill:
• declares that a Scottish Parliament and a Scottish Government are considered permanent parts of the UK’s constitutional arrangements, and that the UK Parliament will not normally legislate in devolved areas without the consent of the Scottish Parliament, whilst retaining the sovereignty to do so;
• gives increased autonomy to the Scottish Parliament and the Scottish Ministers in relation to the operation of Scottish Parliament and local government elections in Scotland;
• gives increased autonomy to the Scottish Parliament in relation to the power to amend sections of the Scotland Act 1998 which relate to the operation of the Scottish Parliament and the Scottish Government within the United Kingdom;
• increases the financial accountability of the Scottish Parliament through devolution of the rates and bands of income tax, Air Passenger Duty and the Aggregates Levy, and assignment of VAT revenues;
• increases responsibility of welfare policy and delivery in Scotland through the devolution of welfare powers to the Scottish Parliament and / or the Scottish Ministers;
• gives significant responsibility to Scotland for areas such as road signs, speed limits, onshore oil and gas extraction, consumer advocacy and advice amongst others by devolution of powers in relation to these fields to the Scottish Parliament and the Scottish Ministers; and
• increases scrutiny for the Scottish Government of specific bodies and increases the ability of the Scottish Government to design schemes relating to energy efficiency and fuel poverty by the devolution of functions to the Scottish Ministers.

The Smith Commission Agreement increases the financial accountability of the Scottish Parliament. A new fiscal framework will be agreed for Scotland to accompany the further powers included in this Bill, in order to set and coordinate sustainable fiscal policy for the UK as a whole. This will give the Scottish Government the tools to manage the powers in this Bill while ensuring consistency with the fiscal framework in the rest of the UK. It is intended that that framework will be negotiated in parallel to the passage of this Bill.

There is still considerable political debate as to whether the provisions of the Bill go far enough. The Scottish National Party is arguing for more devolution. The final outcome of this process will be known in 2016.

The Bill and accompanying papers is at http://services.parliament.uk/bills/2015-16/scotland/documents.html

The subject of English Votes for English Laws – EVEL – is considered in a separate note.

Written by lwtmp

October 13, 2015 at 12:12 pm

The changing constitution – abolition of the Select Committee on Political and Constitutional Reform

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Just over a year ago, (October 2014) I published a blog item here on a consultation by the Political and Constitutional Reform Select Committee of the House of Commons in which it explored the arguments for and against the adoption of a Written Constitution. It followed that with a rather anodyne report, published before the dissolution of the Coalition Government, suggesting that more work should be done on this.
It also suggested that the Committee should be reconstituted after the outcome of the 2015 Election was known.
Despite the fact that there is considerable discussion about constitutional change, particularly issues – such as English Votes for English Laws – which came out of the Scottish Referendum, the Select Committee itself has not been reconstituted.

For the Select Committee’s Final Report on this subject go to http://www.publications.parliament.uk/pa/cm201415/cmselect/cmpolcon/599/59902.htm
Under the title ‘Consultation on A new Magna Carta?’ it attaches, as an Annex, a draft accessible summary constitution, with options for reform, written by Professor Robert Blackburn of King’s College London. This is an interesting contribution to a much wider debate.
For more detailed discussion about constitutional developments you need to look at the work of the Constitution Unit, based in University College London. See http://www.ucl.ac.uk/constitution-unit/

Written by lwtmp

October 12, 2015 at 3:04 pm

Reflecting on how measures set out in the Queen’s Speech 2015 may impact on the English Legal System

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The Queen’s Speech sets out each year the bare bones of the proposed legislative programme for the forthcoming 12 months.

I’ve been looking through the detailed briefing to see whether there are issues which will affect the English Legal System (ELS) that may not be apparent from the speech itself.

Here are my personal comments:

Enterprise Bill.

The headline aim of the new Bill is to reduce red tape and improve the ways in which regulators work. But there are also two specific ELS related issues that may be noted:

  • Establishing a Small Business Conciliation Service that will handle business-to-business disputes without the need for court action, tackling  in particular, late payment issues;
  • Introducing business rates appeals reform, including modifying the Valuation Tribunal powers to consider ratepayer appeals.

Immigration Bill

Among proposed measures to be set out here, there are proposals to change the way in which immigration appeals work. In particular, the Government plans to:

Extend the principle of “deport first, appeal later” from just criminal cases, to all immigration cases. In 2014 the
last government cut the number of appeal rights but other than foreign criminals, migrants retain an in-country
right of appeal against the refusal of a human rights claim. We will now extend the “deport first, appeal later” principle to all cases, except where it will cause serious harm.
Devolution
In addition to the well publicised plans to devolve further legislative power to the Scottish Assembly Government, there are also proposals for a new Wales Bill and a Northern Ireland bill that will also contain detailed devolution measures.
English Votes for English Laws
This contentious measure, designed to ensure that only English MPs vote on legislative measures that will only apply in England is to be introduced, not by legislation, but by changes to the Standing Orders of the House of Commons.
Investigatory Powers Bill
Among other issues this will deal with the question of who should authorise various forms of electronic surveillance – the Home Secretary or senior Judges (as recently recommended by the Government’s Independent Reviewer of Counter-Terrorism legislation)
Policing and Criminal Justice Bill
Among other things, this will change the law on Bail, The proposals are
To create a presumption that suspects will be released without bail unless it is necessary.
The Bill would initially limit pre-charge bail to 28 days, with an extension of up to three months, authorised by a senior police officer.
In exceptional circumstances, the police will have to apply to the courts for an extension beyond three months, to be approved by a magistrate.
This will introduce judicial oversight of the pre-charge bail process for the first time, increasing accountability and scrutiny in a way that is manageable for the courts.
British Bill of Rights
Proposals on this are delayed.
Victims of Crime Bill
This will put existing protections for Victims on a statutory footing and give greater protection to victims and witnesses
Votes for Life Bill
This will give UK citizens who live abroad a life time right to vote, rather than, as at present losing that right after 15 years.
Draft Public Sector Ombudsman Bill
Proposals to merge the current Parliamentary Commissioner, local government ombudsmen and the Health Service Ombudsman will be considered in a draft Bill.
Of course at this stage, most of the details are not available and they may well change during their various Parliamentary processes. But it is worth noting these issues so that you can keep an eye on them.
For more detail go to https://www.gov.uk/government/publications/queens-speech-2015-background-briefing-notes