APPENDIX 19
Memorandum from Lord Elis-Thomas, AM,
Presiding Officer and Dr John Marek, AM, Deputy Presiding Officer,
National Assembly for Wales
INTRODUCTION
1. We welcome and endorse the suggestion
contained in paragraph 18 of the Leader of the House's Memorandum
to the Modernisation Committee that the publication of draft bills
would enhance the opportunity for co-operation with the devolved
bodies.
2. The Memorandum goes on to suggest that
"Bills which applied only in Wales could undergo pre-legislative
scrutiny in parallel both at Westminster and in the Assembly for
Wales".
3. We would like in this brief Memorandum
to propose that pre-legislative scrutiny of this type should not
be confined to bills applying only in Wales; that there would
be greater clarity if the clauses of bills applying to Wales were
discrete; and that new mechanisms need to be established, both
at Cardiff and Westminster, to facilitate joint scrutiny.
PRIMARY LEGISLATION
OFFSETTING WALES
4. Government bills which apply only in
Wales are rare. The only examples since 1997 are the Government
of Wales Bill and the Children's Commissioner for Wales Bill.
Many bills, however, apply to Wales and deal with matters for
which the Assembly has responsibility. Bills in this category
in the current session include the Education Bill, the National
Health Service Reform and Health Care Professions Bill and the
Homelessness Bill.
5. In our view, parallel pre-legislative
scrutiny of draft bills should extend beyond the narrow category
of Wales-only bills, and include all draft government bills which
apply in both jurisdictions and for which it is proposed that
the Assembly should have responsibilities.
DISTINGUISHING THE
WELSH ELEMENTS
OF BILLS
6. Our proposal in the previous paragraph
would be facilitated if it were more immediately clear from the
face of a bill or draft bill which provisions were to apply in
Wales.
7. The problem we at present face is that
the applicability of bills to Wales is sometimes difficult even
for professional lawyers to read, and is certainly difficult for
elected Members without legal expertise.
8. The Education Bill of the current parliamentary
session exemplifies this. Apart from Part 7 of the Bill, which
relates to the national Curriculum in Wales, the Bill has to be
read subsection by subsection to ascertain if powers are exercisable
by the Assembly. On the other hand, it is easier to ascertain
what provisions apply to Wales in the Learning and Skills Act
2000 because there are distinct Welsh Parts. The Homelessness
Bill of the current session is another welcome model—clause
16 provides for the Assembly to have jurisdiction in Wales.
9. We believe that every England and Wales
Bill which proposes powers for the Assembly should be drafted
so that practitioners and legislators should have maximum clarity
as to the applicability to Wales.
MECHANISM FOR
JOINT CONSIDERATION
10. The Government of Wales Act was a radical
measure. It gave us in the Assembly the possibility of a shared
law-making role with Parliament in devolved matters. We warmly
endorse the hope expressed in 1999 by the United Kingdom Government
that "the House [of Commons] will not take too restrictive
a view of its procedures if that would impede the development
of good working relationships with the devolved legislatures"[1].
We now need to develop procedures in both legislatures which complement
the existing co-operation between officials of Her Majesty's Government
and the Welsh Assembly Government. These should involve direct
co-operation between Members of Parliament and Assembly Members.
11. There is a growing and welcome level
of co-operation between the Welsh Affairs Committee and subject
committees in the National Assembly. But Standing Orders in both
the Assembly and the House of Commons do not permit the Committees
to meet formally together, whether to take evidence or to deliberate.
While this would not be appropriate or necessary in all cases,
we believe that there should be an experimental use of formally
constituted joint meetings to consider draft bills. These joint
meetings should not, however, be confined to the Welsh Affairs
Committee as other select committees (including specially constituted
select committees) will consider draft bills which apply in both
jurisdictions and which deal with devolved matters.
12. We also believe that there should be
a means of involving Assembly Members after bills have been formally
introduced in Parliament. At present the Assembly as a whole and
its committees have no greater status than any other affected
interest group. This does not reflect the Assembly's role as a
potential co-legislator for Wales.
13. We are sure that, when subject committees
or the plenary as a whole wish to express views on legislation
before Parliament, or even suggest amendments to it, there should
be a formal mechanism for this to occur. We would welcome radical
thought about this. For example, could the Welsh provisions of
a bill always be committed to a Special Standing Committee which
would be required to take evidence from the relevant Assembly
Ministers, or subject committee or committees? Could amendments
proposed by Assembly plenary or subject committees be fast-tracked
in some way? Could AMs have the right to attend and speak (but
not vote) at the standing committee stage of Welsh Bills or Parts
of Bills?
14. We do not underestimate the practical
difficulties which would be involved in co-operating in this way[2]
or the change of attitudes which would be necessary. But we believe
that this is an area where the Modernisation Committee has an
opportunity to propose a radical change in Parliamentary procedure
to reflect our changed constitutional framework. We are confident
that the Assembly would be prepared to adapt its procedure to
reflect any changes, which the Commons makes.
15. We believe that radical procedural
change is necessary at Westminster and in Cardiff to enable Members
of Parliament and Assembly Members to work together jointly on
primary legislation which deals with devolved matters.
1 Government response to Fourth Report from Procedure
Committee, Session 1998-1999. Back
2
Many of these were dealt with in the Procedure Committee's Report
1988-99 on the Procedural Consequences of Devolution. Back
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