Ministers accused of power grab over Asbos sentence; FIRST MINISTER PROTESTS OVER WORDING OF WESTMINSTER BILL.
A SENTENCE in the drafting of a new law to tackle anti-social behaviour and crime has sparked a cross-border row over an alleged power-grab by UK Ministers from the National Assembly.
First Minister Carwyn Jones has written to the Home Office and Welsh Secretary David Jones to protest over an amendment of an exemption to Welsh powers over anti-social behaviour orders (ASBOs), which he claims would mean the UK Government would assume competence in devolved areas and act as a "restriction on the Assembly's powers".
In the letters, he accuses the UK Government of ignoring concerns raised by the Welsh Government over the wording of a section of the new Anti-social Behaviour, Crime and Policing Bill passing through Westminster, which he said represented "a substantive reduction in the Assembly's legislative competence" by allegedly granting power to issue orders to the Home Office.
Currently, power over ASBOs - which impose restrictions on offenders for issues surrounding anti-social behaviour such as curfews and bans, avoiding the need for prosecutions - remains reserved to Westminster.
But Welsh Government officials believe the wording of the Bill would mean orders could be made by UK Ministers to "protect people from behaviour that causes or is likely to cause harassment, alarm or distress" regardless of whether the policy area was devolved or not. If this is the case, it means the Assembly would be unable to pass laws to protect people even in areas such as health, housing or schools, including introducing measures to protect NHS staff or council tenants from harassment, effectively meaning powers that would have been wielded by the Assembly would be transferred to Westminster.
A spokeswoman for the Wales Office said its view was the amendment did not modify the Assembly's powers.
It follows a number of rows between the Welsh Government and the UK Government over the lawmaking powers of the Assembly.
The first ever law passed by the Senedd, over local government by-laws, was referred to the Supreme Court by the Attorney General for England and Wales Dominic Grieve over concerns it breached the powers of the National Assembly. The resulting court battle ended with the panel of justices ruling in the Welsh Government's favour.
Another law passed by the Assembly to set up a new Agricultural Wages Board for Wales was referred to the court for adjudication in December.
In a written statement on the issue issued to Assembly Members, Mr Jones said the change would have a "significant impact" on the lawmaking powers of the Assembly.
"The effect of the current exception is that anti-social behaviour orders (ASBOs), under the current Crime and Disorder Act 1998 regime, are not within the Assembly's legislative competence," he said.
"The effect of the proposed replacement exception is that all or any orders to protect people from behaviour that causes or is likely to cause harassment, alarm or distress would fall outside the Assembly's legislative competence.
"This represents a restriction on the Assembly's powers, as it would prevent it from legislating substantively about any sort of order to protect people from behaviour that causes or is likely to cause harassment, alarm or distress, even in devolved contexts such as the health service, schools or housing."
In an unprecedented move, the Welsh Government plans to propose a legislative consent motion (LCM) in the National Assembly, commonly known as a Sewel motion, which would authorise the UK Government to pass legislation on a devolved area - and then vote against it.
Formally registering its disapproval of the UK Government Bill, if passed, would mean the UK Government would have to disregard the view of the National Assembly to proceed with a law that affects devolved areas, a scenario which has never happened.
In a letter to Policing and Criminal Justice Minister Damian Green, Business Minister Lesley Griffiths confirmed she planned to introduce an LCM and the Welsh Government would not support it.
If it were not passed, she said, "we will write to you to ask you act in accordance with the well-established convention the UK Government should not legislate in devolved areas for Wales without the Assembly's agreement".
Constitutional expert Alan Trench, who authors the Devolution Matters blog, said: "The UK Government are right in that because of the way they are replacing ASBOs with different orders, they would need to make a consequential amendment.
"[But] the Welsh Government are also right in the rather sweeping way it is being done in removing an Assembly devolved function from something that is devolved at the moment."
He added: "This looks like a tactical use of the Sewel convention to try to establish a broad view of the Assembly's competencies. The Welsh Government may well regard it as win-win approach - it may believe it can secure a political victory, even if it loses the immediate argument about ASBOs.
"But doing this through the Sewel convention is high-risk. The convention is key to the effective working of devolution, but it remains rather ill-defined and this risks stretching its fabric beyond tearing point." A spokeswoman for the Wales Office said: "The UK Government's view remains that the amendment tabled is consequential to the amendments being made in the Bill, and does not modify the Assembly's legislative competence."