First Minister Carwyn Jones has told Welsh Secretary Alun Cairns that he still requires substantial changes to the Wales Bill before he could recommend it to the Assembly. In a letter to the Secretary of State, Mr Jones says that what he sees as a "clear rowback" of some of the Assembly's existing powers outweighs the new responsibilities that the Bill would give to Cardiff Bay.
The First Minister argues that because the Bill affects what's already been devolved, the Assembly's agreement is needed before it can be passed. It's a convention that the UK government could ignore but it would risk poisoning relations with the Welsh government if it did so.
As the UK Government has publicly acknowledged, the Bill can only proceed to Royal Assent if the Assembly has resolved to give its Legislative Consent to the UK Parliament legislating along these lines. My expectation is that ... the UK Government will bring forward a significant number of amendments to the Bill. It will be essential that Lords consideration ... should not be completed until the Assembly ...has made its decision on Legislative Consent. The Welsh Government will need to be satisfied that it can properly recommend to the Assembly that consent be given.
Carwyn Jones highlights his major concerns in his letter. He says that there is still "much to be resolved and agreed" about the Welsh Government's tax-raising powers and how its funding from the Treasury will be calculated in future. He also wants the UK Government to compromise in its opposition to Wales becoming a separate legal jurisdiction to England. The First Minister also asks for the Assembly to be given further powers that the Bill currently denies it:
Teachers' pay and conditions
Powers over employment legislation
Alcohol licensing, sale and supply
The levy paid by developers to local communities
More compulsory purchase powers
Powers over water and local bye-laws without needing UK ministers' permission to act.
Opposition peers will be pressing many of the Welsh Government's concerns in the House of Lords, which will start detailed consideration of the Bill on Monday. In his letter to Alun Cairns, Carwyn Jones says how the UK Government responds will "heavily influence" whether he will ask the Assembly to approve or oppose the legislation.
We are in danger of replacing one unstable settlement with another.In considering whether to recommend Legislative Consent, protecting the Assembly’s current competence will be a central concern. I will be looking to you to use your influence within the UK Government to secure the necessary amendments so that the Welsh Government can commend the Bill to the Assembly. We are certainly not yet in that position, but I stand ready to discuss further with you as necessary.
The debate in the Lords is also expected to raise one area where an influential group of Labour peers thinks the Bill goes too far. Two former Secretaries of State for Wales, Lord Hain and Lord Murphy, plus the former Labour Leader Lord Kinnock, don't want income tax raising powers devolved without a referendum.
But many of the House of Lords' numerous constitutional experts agree with most of the First Minister's criticisms. A report out today from the Lords' Constitution Committee sets out their misgivings about "the lack of clarity over the demarcation of powers between the UK Parliament and Welsh Assembly. They agree with Carwyn Jones that in some areas the Bill is likely to actually result in a return of power from the Welsh Assembly to Westminster.
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. The Bill also risks, in some areas, actually reducing the powers of the Welsh Assembly. We have asked the Government whether that was their intention, and if not, how they intend to avoid unintentionally diminishing the Assembly’s powers. >
The UK Government has reacted to the report by claiming that the Bill will produce "a stronger, clearer fairer devolution settlement for Wales". But it also acknowledges that there's still scope to change the Bill.
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.