Powers for a purpose
20. We were keen to establish the purpose for which
the Welsh Assembly Government might use the additional competence
being sought - not in any great detail, but to gain at least some
indication of its intentions in the immediate to medium term.
Such an understanding is key to this Committee's role in being
able to scrutinise the appropriateness of the powers sought under
the terms of a proposed Order.
21. The White Paper Better Governance for Wales
indicated that the powers sought under LCOs might be "something
very specific", "something rather wider", or "something
considerably wider".[18]
The proposed Order on additional learning needs, although restricted
to the field of "education and training", is indeed
widely drawn.
22. In our earlier inquiry into the LCO process,
we were told that the expectation was that proposed Orders would
be introduced with specific Measures to be made under them in
mind.[19] The Parliamentary
Under-Secretary of State told us during that inquiry:
... we would hope that we are not looking at a generality,
a sort of broad brush of Orders in Council, but … at quite
focused Orders in Council.[20]
The whole purpose of the Order in Council process
is to allow the Assembly to pass laws and make Measures with a
specific purpose in mind … so no, this idea that there would
be a sort of portmanteau of Orders in Council where things could
be slotted in in the future, we do not envisage that.[21]
23. As the Parliamentary Under-Secretary of State
confirmed to us in evidence on 8 November:
It is … for Parliament to decide on a case-by-case
basis whether legislative competence in a certain area should
be devolved. There will be many questions that must be asked to
make this determination. … Is the Assembly's description
of the purpose for which these powers are being sought in the
immediate future clear? Are these powers for a purpose?[22]
24. In evidence, the Assembly Minister told us:
I recognise that for the Committee to fulfil its
scrutiny role you do need to have some idea - more of an idea
than perhaps we have given you so far - of what the Assembly might
wish to pursue if the new power is approved.[23]
I do believe I have only given you an indication
of what Measures could emanate from this competence.[24]
25. In his statement to the Assembly on 28 November,
the Secretary of State remarked:
Let me be clear that there is no case whatsoever
for the Assembly to be required to supply every detail of future,
perhaps unforeseen, Assembly Measures. Under the 2006 Act, Parliament's
responsibility is to transfer enduring competence to the Assembly
and it must accept that there will be scope for the implementation
of policy not yet contemplated.[25]
We also note that the White Paper Better Governance
for Wales observed that "This consideration could be
informed by understanding the use the Assembly might propose to
make of these powers in the immediate future".[26]
26. We appreciate that in the longer term powers
devolved under the terms of this proposed Order would be used
to introduce legislation for which there are no current proposals.
However, given that this is the first proposed Order to have been
referred to this Committee, we can speculate that it is high on
the list of the Welsh Assembly Government's legislative priorities.
Further, the Parliamentary Under-Secretary of State referred to
"the very specific purposes" for which the Welsh Assembly
Government was seeking these additional powers in relation to
additional learning needs.[27]
The argument that the additional competence is being sought "to
produce and deliver better services for those learners in Wales
who have additional learning needs" seems to us to be entirely
circular, while the Parliamentary Under-Secretary of State's observation
that the points listed in the accompanying memorandum "provide
quite a good basis … for guessing what Measures would be
brought forward" does not give us the assurance we seek.
[28]
27. The Assembly Government presumably has particular
Measures in mind, since the Parliamentary Under-Secretary of State
told us that it is "happy that the scope of the Field is
sufficient to allow them to carry out the policies they feel are
necessary",[29]
and that the Assembly Government:
did not want to add to it, broaden it or take simply
in block the Scottish model, because that did not suit what they
were intending to do with this particular Order in Council.[30]
28. We
are satisfied the explanatory memorandum produced by the Welsh
Assembly Government to accompany this proposed Order addresses
a widespread consensus that there is an identifiable need for
such an Order, but the evidence provided did not do so effectively
or convincingly. We will look for such clarity in the future.
29. While not
asking for "every detail"[31]
of future Assembly Measures, nevertheless we believe that it would
have been helpful for this Committee to have been given a clearer
indication of the most immediate legislative proposals for which
the additional competence being sought is considered necessary.
This would then enable the Committee to judge the appropriateness
of the proposed Order.
30. We agree
that a Legislative Competence Order is the most appropriate way
forward for this proposal, given that it does not fit within the
scope and purpose of existing bills.
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