Scottish Powers v GoW2006 Powers

Being the first weekend of the school holidays I have been away taking the kids to visit their grandparents etc. On my return today I found a comment on my last post which is worth an in-depth answer, despite being posted by my friend Anonymous.

In my last post I mentioned the fact that many respectable commentators claim that a referendum held under part 4 of the Government of Wales Act 2006 would give Wales Scottish type powers, and noted that this was not true.

Anonymous responded by saying:

OK, then MOF, tell us what the differences are between Scottish parliamentary powers and GoWA2. I dunno.

The major differences are discussed in academic detail in a Web Journal of Current Legal Issues article written by Nigel Johnson LLB, MSc (Econ), Principal Lecturer in Law at Sheffield Hallam University. The most pertinent point that he makes is:

It is noticeable that Wales in this respect is not to follow the Scottish model, in which matters reserved to Westminster are specified and everything else is devolved. Instead the GWA 2006 adopts the defined functions model (Rawlings 2005, p 850) where the devolved powers are listed. The explanation given for this is that whilst Scotland is a separate legal jurisdiction. An important feature of the enhanced legislative competence of the Assembly is that it will legislate within a unified England and Wales jurisdiction

So the simple difference is that the Scottish Parliament is told what it can't do, but the Welsh Assembly is told what it can do. The list of things that the Scottish Parliament can't do is fairly limited. The list of things that the Welsh Assembly can do is also fairly limited.

The Scottish Parliament can do whatever it likes regarding anything other than Social Security, International Affairs, Defence, Internal Security and European Issues etc

The Welsh Assembly, even after a referendum, would only have responsibility over partial issues regarding:

Agriculture, fisheries, forestry and rural development; ancient monuments and historic buildings; culture; economic development; education and training; the environment; fire and rescue services and the promotion of fire safety; food; health and health services; highways and transport; housing; local government; public administration; social welfare; sport and recreation; tourism; town and country planning; water and flood defence and the Welsh language.

And even in these matters, would not be able to pass measures that effected the overall judicial unity of England and Wales in either criminal or civil judicial matters.

If a referendum was held and won tomorrow the Scottish Parliament could make abortion illegal, the Welsh Assembly couldn't (if either would wish to do so is besides the point. One could, the other couldn't). The Scottish Parliament could stop parents smacking children, the Welsh Assembly couldn't. The Scottish Parliament could imprison those who allowed their dogs to foul footpaths, the Welsh Assembly couldn't.

Scottish law is different to, not a part of and is independent to English law. Even under part 4 powers Welsh legislative powers will not be allowed to change the law of England-and-Wales. The Assembly will not be allowed to create a body of Welsh Law that is different to English Law. So The Assembly will have nothing close to, so called, Scottish powers!

To have parity with Scotland, to have Scottish Type Powers the National Assembly would have to be able to have control over the Welsh judicial system, both criminal and civil. That is not offered in the referendum clause. On the contrary it is specifically denied. The creation of a Welsh Legal System similar to the Scottish Legal System is not allowed under the GoW 2006 Act -So those who claim that the referendum is about Scottish Powers are either deluding themselves or deluding the people of Wales or both.