Select Committee on Welsh Affairs First Report


4  NEW LEGISLATIVE POWERS

The Current Position

94. At present, powers are conferred on the National Assembly in a number of ways as set out earlier in this Report.[156] In relation to the current powers available, the most noticeable form is that of the Wales-only Bill. This is a Bill introduced to Parliament that is solely concerned with Wales. The Wales Office has made a practice of introducing a draft Wales-only Bill to Parliament each year, with the Bill being introduced to Parliament in the following session. Our predecessor Committee conducted pre-legislative scrutiny of those draft Bills. In recent sessions of Parliament the Government has introduced draft Bills which led to the Public Health (Wales) Act,[157] the Public Audit (Wales) Act,[158] the Transport (Wales) Act,[159] and the Public Services Ombudsman (Wales) Act.[160]

95. The White Paper stated that "Parliament will continue for at least some years into the future to enact 'Wales-only Bills' at the request of the Assembly".[161] Alan Cogbill, Director of the Wales Office, told us that the reason for this proposal was that there would be a time lag between the present situation and that of the new regime established under Orders in Council. He explained that it was important not to interrupt the flow of "necessary Wales-only measures" and that the Wales-only Bill method would ensure that continuity.[162] Cedric Longville, Legal Adviser at the Wales Office, also told us that there remained the possibility that a Wales-only Bill would be necessary to deal with legislation that concerned devolved and non-devolved matters.[163]

96. Should Wales-only Bills continue to be introduced to Parliament, we would expect the Government to maintain its policy of publishing them first in draft form so that they could be subjected to pre-legislative scrutiny by this Committee in conjunction with the appropriate Committee of the National Assembly.

Stage 1

Monitoring of UK Government's adherence to the new policy

97. The first stage of legislative reform for the National Assembly involves the UK Government adopting, with immediate effect, a "more permissive" attitude to Wales-only clauses in Westminster Bills which cover both England and Wales. In practice this would mean drafting Parliamentary Bills in a way that gave the National Assembly wider and more permissive powers to determine the detail of how the provision should be implemented in Wales.[164] That stage does not require any change to the 1998 Act, but builds on precedents set in health and education legislation.[165] However, the White Paper acknowledged that this approach "does not fully address the weaknesses that have become apparent in the present system".[166]

98. In evidence to us, Alan Cogbill, Director at the Wales Office, confirmed that Stage 1 was possible now, without the need for new legislation. He told us that it entailed the drafting of framework provisions in Bills, which would "give the Assembly greater legislative discretion in the application, whatever the main Bill said".[167] Zenny Saunders, Head of Legislation and Strategic Policy Branch at the Wales Office, explained that to reflect the new arrangements, Devolution Guidance Notes were being amended to advise Whitehall Departments on how to "engage Wales in any legislation that they are bringing forward".[168] Furthermore, the Wales Office was also working with the devolution unit in the Department of Constitutional Affairs, which was assisting in the dissemination of that material. Zenny Saunders also told us that the Wales Office had "set up a legislation branch within the Wales Office as a focal point for any government department, so that they know they have one unit to contact if they need any advice, and there is a similar unit established within the Assembly that can give advice internally and also externally to government departments".[169] Kate Cassidy confirmed to us that a similar approach was being taken by the Welsh Assembly Government.[170]

99. The Secretary of State told us that Devolution Guidance Note No.9[171] had been amended to take account of that change in approach. He explained that note specified that in "drafting primary legislation of an England and Wales character, if there were to be clauses devolving power in it […] then, instead of a series of, as it were, clauses which specify in some detail what the Assembly could or could not do, it simply said the Assembly will have the power to do as it wishes in detail on this".[172]

100. The revision of the Guidance Note is to be welcomed, but it is not necessarily reassuring. The experience of the previous Committee was that in spite of clear departmental guidance on devolution, actual understanding of the relationship between the National Assembly and the UK Government varied significantly. Therefore we pressed the Secretary of State on how the new procedures would be monitored. He responded by telling us that all legislation affecting Wales was monitored extremely closely and that the Devolution Guidance Note would assist the Wales Office in making sure that the new regime was upheld.[173] He did not, however, provide any real detail about how individual Government departments were being monitored.[174] We look to the Wales Office to play an active and visible role in the education of Government Departments in this respect. We recommend that the Wales Office, in its response to this Report, set out clearly, the precise procedures that are in place to ensure that those roles are carried out effectively.

THE ROLE OF THE WELSH AFFAIRS COMMITTEE

101. The Secretary of State anticipated an aspect of our future scrutiny of legislation with his suggestion that our Committee could play a role in the monitoring of the new procedures.[175] In order to assist us in that work it would be helpful for us to have an early understanding of clauses in major England and Wales Bills that apply to Wales, and a commentary on how those clauses would affect Wales. We recommend that the Wales Office supply the Committee with quarterly memoranda setting out those Bills which contain significant Welsh clauses.

STATEMENTS IN EXPLANATORY MEMORANDA

102. While the efforts made by the Wales Office are to be welcomed, the Presiding Officer aired a note of caution. He drew the Committee's attention to the written parliamentary answers to Peter Law MP, and that some of them read rather too closely for comfort;[176] the implication being that it was nothing more than a standard Whitehall response. He also highlighted the response from the Home Office which did not say that it intended to implement the Government's policy; but only to state that it was in discussions with the Welsh Assembly Government.[177] Professor Miers agreed. He stated that his concerns about Whitehall adherence towards devolution were "in the main prompted by history and the evidence to date that some Departments have been less willing to concede to allocate functions to the National Assembly than others".[178]

103. Professor Richard Rawlings saw an opportunity for the Government to enhance the use of the Explanatory Notes that accompany Parliamentary Bills. He argued that if the UK Government and the Welsh Assembly Government were serious about the immediate use of framework legislation, a statement could be attached to the Explanatory Notes, which would "first of all list the relevant clauses relating to Wales and then, secondly, explain how the Government's new commitment to consistently permissive legislation has been played out in relation to those clauses".[179] We recommend that the Wales Office include under the heading Territorial Extent in the Explanatory Notes to Bills, a statement listing the clauses in Bills that relate to Wales; and explaining how the Government's new commitment to more permissive legislation for Wales has been enacted in relation to those clauses.

Stage 2

Introduction

104. The White Paper also sets out the Government's proposals for a second Stage of legislative reform for Wales. That second stage could be described as a "fast track" approach to legislation. It would involve a streamlined procedure that enabled Parliament to give the National Assembly powers to modify legislation, or to make new provision on matters not covered by statute. Those powers would apply only to devolved matters: "the purpose would be to allow the Welsh Assembly Government to carry out its programme, without having to wait for a suitable Bill, or time-slot, at Westminster".[180] However, that procedure would retain the sovereignty of the UK Parliament as the principal law maker for Wales. Should Parliament not approve an Order in Council, the proposed transfer of powers would not take place.

THE CONTENT OF ORDERS IN COUNCIL

105. This Order in Council procedure for Wales is new and therefore, the White Paper suggested three possible examples of the form those Orders could take.[181] The first related to something very specific, such as the functions of the Ombudsmen in Wales.[182] The second related to a broader issue, for example, the protection and welfare of children, described as a "limited policy area, but one cutting across a range of the National Assembly's functions, such as education, local government and social care".[183] The third related to something much wider; for example the structure of the NHS in Wales. The White Paper reinforced the view that it would be limited to policy areas which were within the responsibility of the Assembly Minister, and could not be extended to alter primary legislation relating to non-devolved matters.[184] Furthermore, the power would be framed to ensure that no Order could confer on the National Assembly powers over the whole of any of the fields listed in Schedule 2 to the Government of Wales Act.[185]

PROPOSALS FOR THE PASSAGE OF ORDERS IN COUNCIL

106. In its written evidence to the Committee, the Wales Office explained how it envisaged Orders in Council progressing from instigation to enactment. The first part of the process would be the preparation of a draft Order in Council which would follow on from discussions between the Welsh Assembly Government, relevant Whitehall Departments, and the Wales Office. Those discussions would focus on ensuring clarity about the vires and scope of the Order in Council, and whether it would provide the National Assembly with the necessary legislative competence in that area.[186]

PRE-LEGISLATIVE SCRUTINY OF ORDERS IN COUNCIL

107. Once a proposal for a draft Order was published, the Government expects that it would be subjected to pre-legislative scrutiny both in Parliament and by the National Assembly. As the Government noted, the precise nature of that pre-legislative scrutiny would be a matter for each institution to determine.[187] At that stage it would be possible for amendments to be suggested to the proposal for a draft Order in the light of that scrutiny.[188] Alan Cogbill, the Director of the Wales Office, told us that it was the Wales Office's intention that there should be full scrutiny of the proposal for draft Orders: "in every case a proposal for a draft Order would be published to allow for pre-legislative scrutiny both at Westminster and in Cardiff".[189] It would be open to the Minister to take into account any amendment suggested during this pre-legislative scrutiny by laying the subsequent draft Order in an amended form.

108. That scrutiny will be best performed by our Committee in conjunction with the appropriate Committee of the National Assembly. We will explore the most effective way in which we can undertake such a task. It is already evident to us that we will need to receive more information than just the proposal for the draft Order. We recommend that when submitting a proposal for a draft Order in Council for pre-legislative scrutiny the Wales Office also provide a detailed explanatory note which would make clear the scope of the proposal, the practical effects of the proposal on Wales, and the legislative authority that would pass to the National Assembly.

109. In respect of Regulatory Reform Orders - another form of secondary legislation which can amend primary legislation - when a proposal is laid, it must lie before Parliament for a period of 60 days, not including any time during which parliament is dissolved or prorogued, or either House is adjourned for more than four days. A draft Order consequent on the proposal may not be laid before Parliament until the end of that period. That guarantees a period of time for the Regulatory Reform Committee to consider the proposal for a draft Order.[190]

110. We recommend that any proposal for a draft Order in Council be laid before the Parliament. Once it is laid, we recommend that it must lie before Parliament for a period of 60 days, not including any time during which parliament is dissolved or prorogued, or either House is adjourned for more than four days. We recommend that a draft Order consequent on the proposal may not be laid before Parliament until the end of that period.

DRAFT OF ORDERS IN COUNCIL

111. The formal process for approving the Order in Council would follow that pre-legislative scrutiny. The National Assembly would formally approve the draft Order (although the Order would not come into effect until it was approved by Parliament), and at Westminster, the Secretary of State would lay the draft Order before Parliament. At that stage the Order in Council would not be amendable as both the National Assembly and Parliament would need to approve an identical text.[191]

112. There would be a fallback procedure whereby a draft Order in Council can be laid before, and approved by, the National Assembly, without a draft Order having been laid before Parliament. The First Minister will then notify the Secretary of State, who will then have 60 days in which either to lay before Parliament the draft Order approved by the National Assembly or to give notice to the First Minister of his refusal to do so and his reasons. It will be open to the National Assembly to use this procedure in instances where prior discussion and agreement between Cardiff and London has not been possible.[192] Nonetheless, it would still have to be approved by Parliament.

PARLIAMENTARY CONSIDERATION OF DRAFT ORDERS IN COUNCIL

113. The White Paper explained that draft Orders in Council would follow the affirmative resolution procedure which means that draft Orders "must be debated and agreed by both Houses of Parliament before Her Majesty can be asked to make them." The White Paper however, does not set this out in detail. There appear to be two options for debating draft Orders in Council. They could be considered on the floor of the House - for one and a half hours - followed by a vote, or considered in the Welsh Grand Committee - possibly for up to three hours - followed by a non-debatable motion on the floor of the House at a later date.

114. Changes would need to be made to the Standing Orders to allow for either of those debates. At present, Statutory Instruments (S.I.s) under the affirmative procedure (which is proposed for these draft Orders in Council) are referred automatically to a Standing Committee on Delegated Legislation.[193] That Committee would consider the S.I. and report 'that the committee has considered [the instrument].' The motion to approve the S.I. would then be put forthwith on the floor of the House. In our opinion it would be inappropriate for a draft Order in Council to be considered in a Standing Committee on Delegated Legislation In our opinion, there are however, two exceptions to the Standing Order. They are when:

      "(a) notice has been given by a Minister of the Crown of a motion that the instrument shall not so stand referred, or

      (b) the instrument is referred to the Scottish Grand Committee or to the Northern Ireland Grand Committee".[194]

115. If a draft Order is to be debated on the floor of the House, and not in a Standing Committee, a Minister would have to give notice under Standing Order 118(3)(a). If on the other hand the draft Order in Council is to be debated in the Welsh Grand Committee, the Minister would have to move a motion to refer the draft Order to that Committee.

116. At present, the Welsh Grand Committee can consider, amongst other issues:

      "such specified matters relating exclusively to Wales as may be referred to it in accordance with Standing Order No. 107 (Welsh Grand Committee (matters relating exclusively to Wales)) [195];

It may also consider Bills:

      (1) A motion, of which at least ten days' notice has been given, may be made by a Minister of the Crown at the commencement of public business, that a public bill be referred to the Welsh Grand Committee, and the question thereon shall be put forthwith; and if, on the question being put, not fewer than twenty Members rise in their places and signify their objection thereto, the Speaker shall declare that the noes have it:

      Provided that no such notice shall be given until the bill has been printed and delivered to the Vote Office.

      (2) The committee shall report to the House either that it recommends that the bill ought to be read a second time or that it recommends that the bill ought not to be read a second time, and in the latter case it shall have power to state its reasons for so recommending.

      (3) Upon a motion being made for the second reading of a bill reported from the committee, the question thereon shall be put forthwith.[196]

117. The Standing Orders that apply to the Welsh Grand Committee unlike those for the Scottish Grand Committee, do not include specifically, consideration of Statutory Instruments whether or not in draft. Standing Order No. 98 (Scottish Grand Committee (delegated legislation)) states:

98—(1) Where

      (a) a Member has given notice of a motion for an humble address to Her Majesty praying that a statutory instrument be annulled, or of a motion of a similar character relating to a statutory instrument or to any other instrument (whether or not in draft) which may be subject to proceedings in the House in pursuance of a statute, or of a motion that the House takes note of a statutory instrument, or

      (b) a Minister of the Crown has given notice of a motion to the effect that an instrument (whether or not in draft) upon which proceedings may be taken in pursuance of an Act of Parliament (other than a draft regulatory reform order) be approved,

    a motion may be made by a Minister of the Crown, 'That the instrument be referred to the Scottish Grand Committee'; and the question on such motion shall be put forthwith and may be decided at any hour, though opposed.

    (2) The committee shall consider each instrument referred to it on a motion, 'That the Committee has considered the instrument'; and the chairman shall put any question necessary to dispose of the proceedings on the motion, if not previously disposed of, not later than one and a half hours after the commencement of proceedings thereon; and shall thereupon report the instrument to the House without any further question being put.

    (3) If any motion is made in the House of the kind specified in paragraph (1)(a) or (1)(b) of this order, in relation to any instrument in respect of which a report has been made to the House in accordance with paragraph (2) of this order, the Speaker shall put forthwith the question thereon; which may be decided at any hour, though opposed.

Similar provisions for the Welsh Grand Committee would need to be made.

118. Replicating those provisions for the Welsh Grand Committee would not be difficult. The debate in the Scottish Grand Committee is limited to one and a half hours. We do not believe that one and a half hours would be sufficient for considering these draft Orders. Instead we believe that a three hour debate in the Welsh Grand Committee would be appropriate for considering these draft Orders (which are subordinate primary legislation). Therefore we recommend that provisions similar to those for the Scottish Grand Committee under Standing Order 115 should be made for the Welsh Grand Committee.

119. We believe that in principle, debates on all Orders in Council should be on the floor of the House. For that to happen, Standing Orders would need to be amended to disapply Standing Order 118 in respect of draft Orders in Council made under the proposed Act. This would not preclude the referral of a draft Order to the Welsh Grand Committee should the Government move such a motion and the House agree to it.

120. We believe that, in principle, all draft Orders in Council should be debated on the floor of the House. Therefore we recommend that Standing Orders be amended to disapply Standing Order No.118 in respect of draft Orders in Council made under the proposed new Act. Should there be a general agreement that a draft Order be referred to the Welsh Grand Committee the Minister could, on such an occasion, table a motion to refer it to that Committee.

THE ROLE OF THE SECRETARY OF STATE

121. The White Paper states that the Bill would include provisions to allow for the Secretary of State to refuse to lay a draft Order in Council before Parliament. If the Secretary of State was to do so he would be required to "reply to the Assembly Government within 60 days, giving his reasons for refusal".[197]

122. Several of our witnesses raised concerns with this power. Lord Richard argued that "on the one hand, the proposal is one which seems to limit the role of Westminster and the Secretary of State to the presentation of the Assembly's request, but on the other retains residual power to the Secretary of State to reject a request if he thinks it appropriate".[198] He considered such an approach as "somewhat paternalistic",[199] and argued that, the legislature in London should be enabling the National Assembly to legislate for itself rather that "putting up barriers in their way".[200]

123. The Presiding Officer believed that the only argument that supported intervention by the Secretary of State was to ensure that the Orders in Council were appropriate, in terms of drafting, to come before Parliament.[201] To that end he argued that the powers could be interpreted as a "constitution for action".[202] He put it that:

    "I would be exceptionally angry if we came to any position where the Secretary of State rejected an application for policy reasons, because that would be completely contrary to the whole argument in favour of devolution; namely, if a legislative or parliamentary body in Wales asks for legislation and if that is in order constitutionally, then it is appropriate for that legislation to be considered".[203]

124. The Presiding Officer was particularly concerned with the ability of a UK Government Minister having the power to refuse an Order in Council, "I believe it would be inappropriate for a Secretary of State to reject tabling an application for an Order in Council because there was something regarding a difference in policy".[204]

125. Notwithstanding the appropriateness of the Secretary of State's power to refuse to lay an Order in Council, other witnesses were unhappy with the process of the Secretary of State responding to the Welsh Assembly Government. Professor Rawlings argued that "it seems peculiar, to put it mildly, that the answer does not go back to the Assembly, it goes back to what by then will be a statutorily different body, the Welsh Assembly Government".[205] He highlighted the comparison between the role of the Presiding Officer in Wales to that of the Speaker in Parliament, with both offices being the "titular head" of the National Assembly and the House of Commons respectively. Therefore as the request for an Order in Council came from the National Assembly, "surely the answer would go back to the titular head of the Assembly who is the Presiding Officer".[206]

126. Professor Miers also highlighted an inconsistency in the fact that Secretary of State would respond in all cases to the Welsh Assembly Government despite the fact that Orders in Council could be instigated by individual Assembly Members:

"If an Assembly Member were to promote what in effect is a Private Member's Bill or a Private Member's request, no doubt the Assembly Government or its successor will want to look at it and will conduct the usual sort of review of it to ensure that it is not incompatible with its own policy, but that request having been initiated by someone who is a member of the Assembly and approved by the Assembly, through what deliberative processes it agrees, it is surely wholly improper that that refusal to lay by the Secretary of State goes back to the First Minister".[207]

127. The Presiding Officer of the National Assembly also aired his concerns about the lines of communication. He highlighted the fact that the National Assembly Report recommended that any letter of refusal should be addressed to the holder of his Office and not to the First Minister. In his opinion, "the letter would come to the holder of my office; then that would be a public document; and then there would be an Assembly debate upon the reasons for the refusal and whether they are adequate. Some of you might want debates in Parliament as to whether the reasons for refusal were adequate".[208]

128. Our witnesses from the Wales Office and the Welsh Assembly Government were not convinced by these arguments. Mr Hugh Rawlings argued that although the National Assembly approved an Order, it would be the First Minister who would convey that message to the Secretary of State. Should that Order be refused then it was appropriate for the Secretary of State to respond to the First Minister's request. The First Minister would then inform the National Assembly.[209] Similarly he argued that the fact that the process was initiated by an individual member was "in a sense, neither here nor there, because, once the Assembly endorses it by resolution, the Assembly owns it and the First Minister is acting on the Assembly's behalf in then handling the correspondence".[210]

129. The Secretary of State defended his role which he described as the "necessary intermediary between Welsh Assembly Government making a request ultimately to Parliament and a Secretary of State transmitting that request to the floor of both Houses".[211] The Secretary of State disputed the charge that his was a paternalistic role, but neither did he see it as a purely transactional role. He saw it as "a question of getting the Order in Council in the sort of shape that Parliament is likely to want to endorse".[212] The First Minister described that role as "something more than vires but something less than merit".[213]

130. The First Minister argued that if the proposals came from the elected Government majority of the National Assembly, therefore the refusal should rightly go back to that Government. However, he acknowledged that the Welsh Assembly Government may not be the sole instigator of Orders in Council. He stated that if individual Assembly Members instigated an Order in Councils, "they would not go back to the Government side of the Assembly, because they have not come from the Government side of the Assembly, but they have been voted through on a free vote".[214] The Secretary of State was more forthright: "We would deal with the Assembly on a government-to-government basis. We would deal with the issue on a government-to-government basis, although ultimately the Welsh Assembly Government is answerable and accountable to the Assembly just as we are to Parliament".[215]

131. The Secretary of State has an important role to play in facilitating the progress and passage of Orders in Council. In particular, he will provide advice and support to ensure that Orders in Council are drafted correctly, and conform to Parliamentary rules. We are not convinced that it is necessary for him to act as a filter, and use those powers to refuse to lay an Order in Council based on its policy aspirations. A request from the National Assembly, if it is in order, should be submitted for the approval of Parliament, not for the approval of the Secretary of State. Therefore we recommend that the Secretary of State's powers be limited to refusing Orders in Council on the basis of procedure, and not on the merits of the policy aspiration.

132. Orders in Council may be instigated not only by the Welsh Assembly Government, but also by individual Assembly Members or National Assembly Committees. Should a Welsh Assembly Government request be refused we can see some logic in the Secretary of State responding to the First Minister. However, that logic does not apply to Orders in Council that have been instigated through the non-Government route. The procedure for a refusal needs to be consistent. In light of the fact that the National Assembly, as the legislature will approve all Orders in Council, we consider it more appropriate for the response be sent to the Presiding Officer and not the First Minister.

Stage 3

A Referendum on Primary Powers

133. The third stage of legislative enhancement proposed in the White Paper would involve transferring primary law-making powers over all devolved fields to the National Assembly.[216] Provision for this would be included on the face of the Bill. However, the Government regard this as a fundamental change to the devolution settlement in Wales and therefore would need to be dependent on the support of the electorate through a post-legislative referendum. That referendum would be triggered by a two-thirds majority of AMs, in a vote in Plenary, followed by the Secretary of State tabling an Order in Council to be approved by both Houses of Parliament.[217] However, the White Paper introduces an additional filter by proposing that "if the Secretary of State was minded to table an Order in Parliament, he would first be obliged to undertake such consultation as he considered appropriate".[218] The Secretary of State confirmed that the consultation was necessary "to assess the situation and then the referendum decision for Parliament would follow".[219]

134. The First Minister argued that a referendum was fundamentally different to an opinion poll that had the role of "taking the temperature" at particular points in a year. He argued that a referendum was designed to "determine a big constitutional issue for preference to settle matters for at least half a century until an entire generation of politicians and voters have lived, died and gone and different people are around in politics and at the voting stage as well, not as a test of opinion just for this year".[220]

135. The Secretary of State confirmed that there would not be specific provision in the Bill to outlaw repeated referenda, as that would be a "matter for politics". Rt. Hon. Rhodri Morgan AM believed that should a referendum fail "everybody will have to take a deep breath and decide when they want to do this again" but was of the strong belief that a "No" vote would put the issue "off the agenda for a very long time",[221] probably lasting a generation.[222] Professors Miers and Rawlings suggested that there was a case for "a moratorium on further referendum initiatives for a specified period, for example, two Assembly terms".[223] In that event, the effect of a "No" vote would be "simply that the Assembly carried on as it was".[224]

136. We note the proposal for a post-legislative referendum, and its approval by Parliament using the Order in Council procedure. That approach would avoid the need for further primary legislation, and the inevitable delays that such a route would cause. However, the Order in Council mechanism would not allow the question to be put in the referendum to be amended, nor would it allow for the possibility of a number of questions to be put. Therefore, the new Bill that will be presented to Parliament will represent the only opportunity for all Members of Parliament to consider that wording in detail. The wording of that question should be straight forward and therefore one that should survive any length of time between the enactment of the Bill and a possible future referendum. Therefore we recommend that the wording of the question for the referendum be included on the face of the Bill

137. In the event of a referendum returning a majority "No" vote, we agree that a long period of reflection would be necessary. It would be wrong for a series of referenda to be held solely to attempt to force a particular decision. The Bill will need to contain explicit provision to stop repeated referenda in the event of a "No" vote. The period between a "No" vote and a second referendum is open to debate, but we consider two National Assembly terms as an appropriate time-gap before a referendum is called for a second time.

DEFINITION OF PRIMARY POWERS OF THE NATIONAL ASSEMBLY

138. The Secretary of State told us that the Bill would make provision for an Order in Council mechanism to go before Parliament at the request of the National Assembly to trigger a referendum. That Order in Council would determine the question for the referendum.[225] In the event of a successful referendum, the White Paper stated "like the Scottish Parliament, [the National Assembly] would be able to make law on all the matters within its devolved fields". This would exclude those subjects which remain the responsibility of Whitehall Departments for Wales as well as for England".[226] It goes on to say that unlike in Scotland, "civil and criminal law, the administration of justice, police and the prison service," will remain reserved.[227]

139. Whilst the White Paper does not include any detail about the way in which the limits of the National Assembly's powers are to be defined,[228] the Government's written evidence outlined two potential options:

  • to specify the subjects on which the National Assembly could legislate (this was the model adopted in relation to Scotland in the Scotland Act 1978, which never came into force); or
  • to provide that the National Assembly could legislate on anything unless it was specifically reserved to the UK Parliament and then to specify those reserved matters (which was the model adopted in relation to Scotland by the Scotland Act 1998).[229]

140. The Government has opted for the first option. It coming to its decision it cited four main reasons. First, that Wales unlike Scotland does not have its own legal system and institutions. Second, that Wales shared a common legal jurisdiction with England, so a definition along the Scotland 1998 lines would be more complicated in Wales, and could have far reaching consequences in terms of the common legal jurisdiction. Third, that the list of reserved powers would be substantially longer and more complex in Wales compared to Scotland. Fourth, that the Scotland 1978 model built on the executive function already devolved to the National Assembly, and therefore could develop out of the existing pattern of Welsh devolution. [230]

141. In his evidence to us, Professor Rawlings, highlighted the problems with the Scotland 1978 model. He argued that, "the Assembly only having power to legislate where it is expressly authorised to do so carries strong potential for time-consuming and complicated problems of legal competence, and, in turn, for intergovernmental wrangling and even substantial forms of litigation".[231] Furthermore he reminded us that the 1978 model was rejected for Scotland in 1998 on grounds of "complexity from the need to spell out the devolved areas in considerable detail".[232] He concluded that "Lord Richard was well aware of the England and Wales jurisdiction point, so his response was to take out the most obvious things relating to the England and Wales jurisdiction…Lord Richard took the view that this was a manageable position".[233]

142. We note the Government's preference for the 1978 model for the definition of any future transfer of primary legislative powers for the National Assembly.

THE ROLE OF THE SECRETARY OF STATE

143. In paragraph 133 we noted that the White Paper proposed that "if the Secretary of State was minded to table an Order in Parliament, he would first be obliged to undertake such consultation as he considered appropriate".[234] That role was questioned by our witnesses. In their written evidence Professors Miers and Rawlings did not agree that the Secretary of State for Wales should be able to decline to table a National Assembly decision or to consult further before putting such a decision to Parliament. They strongly believed that: "the settled will of the democratically elected representatives in the Assembly should be put to Parliament for its decision without the possibility of Government intervention".[235]

144. The Secretary of State disputed the charge that this role encompassed a power of veto over a referendum that the 'Government intervention' implied. Rather, he believed that a Secretary of State would want to be sure that the broad consensus in the National Assembly was reflected throughout Wales: "I would not see this provision as being a veto in power, it would be a bit of a reality check on being confident that the people of Wales will back you in a vote". However, he acknowledged that "a two-thirds majority gives you that kind of confidence".[236] That a two-thirds majority in the National Assembly is necessary is not disputed. However, the Secretary of State left us no clearer about what further evidence was necessary, over and above a two-thirds majority that would allow him to take a judgement on whether or not to lay the Order for a referendum.[237]

145. A two-thirds majority in the National Assembly in favour of a referendum would represent a clear broad consensus that there was general support for a referendum. In the absence of any further opinion poll "evidence", it would rightly be the basis for submitting an Order in Council to trigger that referendum. Therefore, we remain unconvinced that the Secretary of State could draw upon any other demonstration of support or otherwise that would give him a clearer insight into whether the trigger should be pulled or not. For that reason we do not consider it appropriate for that Office to have the power to refuse a request for a referendum. Rather it would be for Parliament to decide on the fate of that request. We recommend that the power of refusal by the Secretary of State be excluded from the Bill.


156   Paras 17 to 20 Back

157   The Bill was considered in draft form by the Welsh Affairs Committee in its Third Report, the draft National Health Service (Wales) Bill, HC959 of Session 2001-02. Back

158   The Bill was considered in draft form by the Welsh Affairs Committee in its Fifth Report, the draft Public Audit (Wales) Bill, HC763 of Session 2002-03. Back

159   The Bill was considered in draft form by the Welsh Affairs Committee in its Fourth Report the draft Transport (Wales) Bill, HC759 of Session 2003-04. Back

160   The Bill was considered in draft form by the Welsh Affairs Committee in its Third Report, the Public Services Ombudsman (Wales) Bill, HC 234 of Session 2004-05. Back

161   Cm6582 para3.33 Back

162   Q15 Back

163   Q15 Back

164   Cm6582, para 1.24. Back

165   For example, new powers in the areas of animal health, and in taking responsibility for the Children and Family Court Advisory and Support Service, CAFCASS, in Wales). Back

166   Cm6582, paras 3.12-3.13 Back

167   Q13 Back

168   Q16 Back

169   Q16 Back

170   Q16 Back

171   www.dca.gov.uk/constitution/devolution/guidance/dgn09.pdf Back

172   Q204 Back

173   Q205 Back

174   Q203 to 205 Back

175   Q205 Back

176   Q168, the answers can be found at www.parliament.uk. Back

177   Q169 Back

178   Q32 Back

179   Q32 Back

180   Cm6582, para 1.12 Back

181   Cm6582 para 3.18 Back

182   Cm6582, para 3.18(a) Back

183   Cm6582 para 3.18(b) Back

184   Cm6582, para 3.17 Back

185   Cm6582, para 3.18 Back

186   Ev 59 Back

187   Ev 59 Back

188   Ev 59 Back

189   Q19 Back

190   The period for Parliamentary consideration is defined by section 8 (2) and (3) of the Regulatory Reform Act 2001 as the period of sixty days beginning on the day on which a proposal was laid before Parliament, but not including any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.

Back

191   Ev 59 Back

192   Ev 59 Back

193   Standing Order No. No.118 (3) Back

194   Standing Order No. 118. Back

195   Standing Order No. 102 Back

196   Standing Order No. 106 Back

197   Cm6582, para 3.20 Back

198   Ev28 Back

199   Q79 Back

200   Q79 Back

201   Q174 Back

202   Q174 Back

203   Q174 Back

204   Q174 Back

205   Q40 Back

206   Q40 Back

207   Q40 Back

208   Q169 Back

209   Q20 Back

210   Q22 Back

211   Q217 Back

212   Q218 Back

213   Q218 Back

214   Q221 Back

215   Q221 Back

216   Cm6582 Back

217   Cm6582, paras 3.23-3.24 Back

218   Cm6582, para 3.24 Back

219   Q225 Back

220   Q225 Back

221   Q226 Back

222   Q226 Back

223   Ev 14 Back

224   Q27 Back

225   Q223 Back

226   Cm 6582 para 3,26 Back

227   Cm 6582 para 3.26 Back

228   Ev 11 and 12 Back

229   Ev 61 Back

230   Ev61  Back

231   Hastening Slowly: the next phase of Welsh devolution, Public Law [2005] (Winter).  Back

232   Ev 11 Back

233   Q44 Back

234   Cm6582, para 3.24 Back

235   Ev 11 Back

236   Q223 Back

237   Q223-5 Back


 
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Prepared 13 December 2005