AN OVER-COMPLEX PROCESS?
141. Rt Hon Rhodri Morgan AM, said that while it
was "too early to give a verdict on how well the process
works," he said that "it creaks a little bit at the
beginning".[235]
He suggested however, that this "creaking is caused by the
newness, not by the fact of some defective piece of machinery".[236]
Rt Hon Paul Murphy MP, told us that he had "no doubt that
the process will be one that people get used to and that it will
be smooth".[237]
142. While Mr Adrian Crompton, Director of Assembly
Business, National Assembly for Wales, told the Committee that
they had found working with the 2006 Act "adequately clear",[238]
Nick Bourne AM said that not even its "biggest fans could
call it clear or crisp".[239]
He described the process as "unwieldy and convoluted long
term",[240] and
said that having to justify every Legislative Competence Order
was not a "sensible use of time".[241]
Mr German AM agreed, and described this as a "cumbersome
and transitory approach".[242]
He concluded, "the sooner we move on ... to a more effective
and lasting form of devolution, the better off we would be".[243]
143. Some witnesses also identified potential problems
with the role of the Secretary of State for Wales in this process.
Rt Hon Lord Elis-Thomas AM said that the role of the Secretary
of State is "a delicate one", [244]
but described his constitutional relationship with the Secretary
of State as "valuable"... as far as the process in concerned.[245]
However, Mr Mike German AM expressed concern about the role of
the Secretary of State in "determining whether or not he
will lay a legislative competence order before both Houses of
Parliament ... There are no ground rules. The Government of Wales
Act does not specify when the Secretary of State should say yes
and when the Secretary of State says no. I think there is a case
for much clearer protocol on those matters".[246]
144. While the previous Secretary of State for Wales,
Rt Hon Peter Hain MP, gave a commitment that he would not refuse
anything that was in order, Mr Mike German AM argued "that
does not give you enough of a reason and a rationale".[247]
He cited a hypothetical example of a Legislative Consent Order
"stuck in the system," but that we do not know "why
or how" because that is not a matter in the public domain.[248]
Mr Mike German AM concluded that "the Government should set
out a clear approach to legislating for Wales, with a commitment
to accepting Assembly requests for legislative competence in all
but exceptional cases".[249]
145. Mr Ieuan Wyn Jones AM, Deputy First Minister,
(Plaid Cymru) Welsh Assembly Government, identified a further
practical problem in terms of planning the legislative workload
and programme of the National Assembly for Wales because the length
of time it takes for a Legislative Competence Order to go through
Westminster was "not entirely in our hands".[250]
146. We recognise
that the process of enhancing the legislative competence of the
National Assembly for Wales with the consent of Whitehall and
Westminster is seen by some commentators as complex. It is a new
process, and there were some initial fears that it would be difficult
to achieve an efficient and streamlined process of scrutinizing
and enacting Legislative Competence Orders.
147. We agree
that there is a legitimate role for Westminster in scrutinizing
draft Legislative Consent Orders to check whether they are in
order, what their scope is, whether the drafting is clear and
precise and whether the legislative competence can or should be
devolved under the terms of the Act.
148. However,
the process in Whitehall is less clear and we are also concerned
about the lack of transparency of the role of the Secretary of
State in determining whether or not he would lay a draft Order
before both Houses of Parliament. We recommend that the Secretary
of State produce a protocol outlining the principles that would
inform such a decision, and the maximum timescales within which
a decision should be made.
A Welsh statute book?
149. In his written evidence to the Committee, John
Osmond, the Director of the Institute of Welsh Affairs, identified
that one consequence of the new legislative arrangements is the
emergence of a plethora of sources of the law that relates specifically
to Wales:
i. Acts of Parliament applying to England and
Wales as a single jurisdiction.
ii. Wales-only Acts of Parliament.
iii. Provisions in Acts of Parliament that apply
to Wales, including framework powers.
iv. Orders in Council approved by Parliament,
including Legislative Competence Orders.
v. Measures made by the Assembly modifying or
supplementing existing legislation (including Acts of Parliament)
or making new provision.
vi. Subordinate legislation made by Welsh Ministers
implementing Community law under Designation Orders made under
the European Communities Act 1972, s.2(2).
vii. Subordinate legislation made by Whitehall
for England and Wales as a single jurisdiction.
viii. Subordinate legislation made by Whitehall
specifically for Wales.
ix. Subordinate legislation made by the Assembly
under Acts of Parliament or, exceptionally, under Whitehall subordinate
legislation, prior to 2007.
x. Subordinate legislation made by the Assembly
Government (or jointly with Whitehall) under provisions of Acts
of Parliament.
xi. Subordinate legislation made by the Assembly
Government under powers delegated by Assembly Measures.
At first glance this list appears formidable but
it is only marginally more complicated than the situation that
has existed across England and Wales for many years.
150. Professor Hazell identified that while the Government
of Wales Act 2006 identified the primary mechanism for conferring
legislative power on the National Assembly for Wales to be Legislative
Consent Orders, he said: "the UK Government does not seem
inclined to follow that primary mechanism, although it is early
days, but it certainly does still confer legislative powers by
ordinary legislation and indeed by a variety of other means, and
there too there is a need for much greater consistency".[251]
Rt Hon Lord Elis-Thomas AM disagreed; he said "it was
always envisaged during the passage of the Government of Wales
Act that powers would be derived from both Welsh clauses in Westminster
legislation and orders in council. It does not make a difference
how the powers come: the important thing is that they are here".[252]
151. However, in their written evidence, Public Affairs
Cymru said that as a result of the plethora of sources of legislation
in relation to Wales, "it was difficult for both civil society
and the Welsh political class to acquire a clear knowledge of
the powers the Assembly has".[253]
John Osmond agreed, but argued that it was by no means "clear
that the necessary steps are being taken to ensure that Assembly
Members, the legal profession and civil society generally are
able to have access to an up-to-date collation of these sources
of the law, as it affects Wales as distinct from other parts of
the United Kingdom". He continued "
we are strongly
of the view that early consideration must be given to the separate
publication of a collation of current Welsh legislation, a resource
that will become increasing needed as distinct Welsh law is enacted".[254]
Rt Hon Rhodri Morgan AM said that the Welsh Assembly Government
would be "sympathetic to the idea" but added "there
are almost not enough laws in Wales to codify into a big statute
book".[255]
152. We recognise
that accessibility of the law relating to Wales is important for
the development of healthy democracy. We encourage the Government
to facilitate the work of the Welsh Assembly Government in seeking
to achieve this objective.
207