Joint scrutiny with the Assembly
Committee
9. We had hoped to have been able to explore the
possibility of working together with the Assembly Committee which
was also examining this proposed Order. However, as noted above
the proposed Order was referred to us on 26 July, shortly before
the House of Commons rose for its summer recess. The Business
Committee of the Assembly charged the Assembly Committee with
reporting by 23 November (later extended to 30 November).
In order to do so, the Assembly Committee began its evidence-taking
as soon as the Assembly resumed after its summer recess, and held
its first evidence on 20 September. As Jane Hutt AM told us, "we
were anxious not to waste time in terms of being able to start
the process".[8] The
House of Commons returned on 8 October, and our own evidence sessions
took place on 7 and 21 November - by which time the Assembly Committee
had completed its evidence-taking.
10. In this case, the proposed Order was referred
to the Assembly and to the Welsh Affairs Committee at the same
time. Since then, however, the Welsh Assembly Government has published
and referred to the Assembly further proposed Orders - before
the clearance process with Whitehall departments has been completed.
The Assembly Committee charged with examining the Environmental
Protection and Waste Management proposed Order has completed its
inquiry and published its report,[9]
and the Assembly Committee appointed for the scrutiny of the proposed
Order relating to vulnerable children has already begun its evidence-taking.
11. Although the Assembly Committee appointed to
scrutinise the proposed Order relating to vulnerable children
is well underway, the proposed Order has not yet been referred
to parliamentary committees by the Secretary of State for pre-legislative
scrutiny. This rules out the possibility of joint scrutiny, unless
the Assembly process is to be repeated subsequently should revised
proposed Orders be published. If this were to be the case it would
be for the Assembly to decide on its own procedure under the terms
of GOWA 2006.[10]
12. When asked why the Welsh Assembly Government
had published proposed Orders and referred them to the Assembly
for pre-legislative scrutiny before the clearance process with
Whitehall departments was complete, the Assembly Minister told
us, "I cannot see that this will happen again in terms of
timetabling."[11]
13. On 3 December, however, the Welsh Assembly Government
laid before the National Assembly its proposed Order on affordable
housing, and published it the following day. This is the third
proposed Order to have been published and referred to the Assembly
before the process of agreement with Whitehall departments has
been completed. These proposed Orders have therefore not yet been
referred to Westminster committees for pre-legislative scrutiny.
This once again rules out the possibility of joint working between
the Assembly and Westminster committees, and leaves open the question
of what will happen should the text of the proposed Orders which
are referred to Westminster committees differ from the text of
those which have been examined and reported on by committees
of the Assembly. We regret
that the Assembly Committee appointed to conduct pre-legislative
scrutiny on the proposed Order on environmental protection and
waste management has completed its inquiry and published its report
before the proposed Order has been referred to Parliament by the
Secretary of State. We further regret that the publication of
the proposed Order on affordable housing and its referral for
pre-legislative scrutiny before its clearance in Whitehall is
another example of how this process is not working as anticipated.
14. We regret
that due to timetabling considerations it was not practicable
to explore the possibility of working jointly with the Assembly
Committee on the proposed Order relating to people with additional
learning needs. However, we are grateful to the Assembly Committee
for keeping us informed of the course of its inquiry at every
stage, and appreciate the opportunity for members of the Welsh
Affairs Committee to attend its meetings in an observer capacity.
Future timetabling arrangements should allow greater opportunities
for the Assembly and Westminster committees to work together.
15. We regret
that this opportunity appears to have been ruled out in the case
of some proposed Orders by their publication and examination prior
to completion of the process of engagement with Whitehall departments.
The Welsh Affairs Committee would wish to explore the possibility
of working more closely with Assembly committees in the pre-legislative
scrutiny of proposals for draft Legislative Competence Orders.
We would wish to consider experimenting with some degree of joint
scrutiny where practicable.
1 
