Devolution: A Decade on - Justice Committee Contents

4  The Legislative Process

125. The creation of the devolved administrations brought about significant changes to the role and practices of Westminster in legislating for Scotland and Wales. Rt Hon Lord Elis-Thomas AM told us that "co-legislating between legislatures, wherever it happens, is complex".[207] In this chapter we consider the procedures and practices which have developed for legislating for Scotland and Wales post-devolution. Wales is dealt with in greater detail because the processes are newer and perceived to be more complex, as Westminster retains some responsibilities for primary legislation for Wales.


126. While the Scottish Parliament has primary law-making powers in most areas of domestic policy,[208] on occasion—for example if there is a common policy aim—it is considered appropriate, with the authority of the Scottish Parliament, for Westminster to legislate on devolved matters. The convention that the UK Parliament will not legislate on devolved matters unless authorised is known as the Sewel Convention (Legislative Consent Motion). This was named after the then government minister, Lord Sewel, who set out the terms of the policy in the House of Lords during the passage of the Scotland Act 1997-98 on 21 July 1998.[209]:

"Clause 27 makes it clear that the devolution of legislative competence to the Scottish Parliament does not affect the ability of Westminster to legislate for Scotland even in relation to devolved matters. Indeed, as paragraph 4.4 of the White Paper explained, we envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament. However, as happened in Northern Ireland earlier in the century, we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament".[210]

127. The Scottish Government explained that in practice, "Legislative Consent Motions seeking the consent of the Scottish Parliament under the Convention have generally been used for minor provision in Westminster Bills. Substantive legislation for Scotland in devolved areas has mainly been contained in Acts of the Scottish Parliament. The Scottish Affairs Committee have recommended a series of changes in Westminster's procedures in dealing with Sewel motions, including "the introduction of a formal process".[211] Their first recommendation stated:

"We recommend the introduction of a formal process whereby the Scottish Parliament notifies Westminster when a Sewel motion has been passed. Although we cannot, of course, insist on how the Scottish Parliament communicates its decisions to us, we trust that the Presiding Officer and the Clerk of the Scottish Parliament will note our view that the better way of letting the House of Commons and the House of Lords know that Holyrood had passed a Sewel motion would be for the Clerk of the Scottish Parliament to advise the Clerk of the House and the Clerk of the Parliaments that such a motion had been passed, rather than for the Presiding Officer to contact the Speaker and the Lord Chancellor".[212]

The Government responded: "While this recommendation is for the UK Parliament and the Scottish Parliament, the Government welcomes the introduction of a formal process of notification between the Parliament, which, combined with the recommendation to tag relevant Bills, should serve to increase the awareness at Westminster of those Bills that include provisions that trigger the Sewel Convention and therefore require the consent of the Scottish Parliament".[213]

128. The Scottish Government explained that Legislative Consent Motions (LCMs) are subject to the express agreement of the whole Scottish Parliament, after detailed scrutiny by the relevant Parliamentary Committee. The process is regulated by the Scottish Parliament's Standing Orders.[214] Mr Ken Hughes, Acting Director of Clerking and Reporting, Scottish Parliament explained that, in 2005, the Scottish Parliament agreed a new set of Standing Orders which applied to Scottish Parliamentary scrutiny of Legislative Consent Motions. The Parliament introduced rules in relation to the expectations of the timescales of when LCMs would be introduced to the Parliament. That also included a formal exchange of letters between the Clerk of the Scottish Parliament and the Clerk of the House of Commons confirming that the Scottish Parliament had indeed just passed a Legislative Competence Motion.[215] He explained that this was "future-proofed" in terms of looking forward to a situation whereby governments would be different north and south of the border. He said that these procedures "still seem to be working well".[216]

129. While these procedures have satisfied the recommendation of the Scottish Affairs Committee, Professor Hazell suggested that additional steps need to be taken in order to clarify the use of Legislative Consent Orders by the UK Government. He said: "the procedures need clarifying and tightening up ... there is a need for a clear set of principles setting out when and why the British Government will invoke the convention".[217] The Scottish Government agreed that the Sewel Convention would remain "a key part of the current constitutional arrangements," and identified that continuing respect for the fundamental principle of the Convention was crucial to the proper working of these constitutional arrangements".[218]

130. We welcome the procedures and mechanisms which have been put in place by the Scottish Parliament for the effective scrutiny of Legislative Consent Motions, and the effective system of communication with the Westminster Parliament, which appears to be working satisfactorily.

131. We recommend that the UK and Scottish Governments set out and publicise their agreed understanding of the principles which should govern the use of Legislative Consent Motions.


132. The process of legislating for Wales is somewhat more complex than in Scotland, as Westminster retains primary law-making powers for Wales. Until May 2007 (when the new arrangements under the Government of Wales Act 2006 came into force), this was primarily achieved through Wales-only Bills and Wales-only clauses in legislation for England and Wales. The 2006 Act brought about a new process for legislating for Wales, [219] described by the Welsh Affairs Committee as "a new mechanism for enhancing the legislative powers of the National Assembly for Wales on a case-by-case basis and with parliamentary consent".[220] The Welsh Affairs Committee explained:

"The Act conferred on the Assembly the power to initiate Legislative Competence Orders in Council (LCOs), which, if approved in draft by both Houses of Parliament, insert specified "Matters" into Schedule 5 to the Government of Wales Act 2006, relating to one or more of the 20 "Fields" listed there. These Matters specify areas in which the Assembly can pass legislation, known as Assembly Measures".[221]

133. It was envisaged by some that this would be a "transitory"[222] arrangement, before, the National Assembly for Wales was given full law-making powers, subject to a referendum.[223] Rt Hon Rhodri Morgan AM, First Minister, Welsh Assembly Government, described the legislative process for Wales as "different to what you would find in most other devolved settlements around the world". He said "it has been devised specifically for Welsh circumstances".[224]


134. Unlike the Scotland Act 1998 which gave the Scottish Parliament legislative powers in all areas other than those specifically reserved, the Wales Act 1998 defined the areas in which the National Assembly for Wales has legislative competence.[225] The Government of Wales Act 2006 lists devolved 'fields' and 'matters'. Part 3 of the Government of Wales Act 2006 gives the Assembly power to pass legislation (Assembly Measures) on matters in relation to which the Assembly has legislative competence. The 2006 Act also set out a procedure by which Parliament can increase the matters on which the Assembly has legislative competence by amending Schedule 5. This can be achieved through clauses in Parliamentary legislation or by a Legislative Competence Order (see below).

135. Provided it complies with the limits set by Section 95 and Schedule 5, an Assembly Measure can have the same effect as an Act of Parliament. In other words it can modify existing Acts of Parliament or other enactments and it can make new provision not covered by existing statutes. However, the ultimate right of Parliament to legislate in relation to Wales, even on a matter over which legislative competence has been conferred on the Assembly, is preserved.[226]


136. Legislative Competence Orders are a new kind of Order in Council. Orders in Council are a type of secondary legislation which are issued by the Monarch with the advice of the Privy Council and made under powers given in a parent Act. They are most frequently used when the use of an ordinary Statutory Instrument would be inappropriate, such as the transfer of responsibilities between Government Departments or in relation to the Constitution. Orders in Council were used to transfer powers from Ministers of the UK Government to those of the National Assembly for Wales in 1999 through the National Assembly for Wales (Transfer of Functions) Order 1999.[227]

137. Legislative Competence Orders are Orders in Council made specifically in relation to the legislative competence of the National Assembly for Wales under provisions in the Government of Wales Act 2006. A proposal for draft Orders may be triggered by the Welsh Assembly Government, by committees of the National Assembly for Wales, or by individual Assembly Members.[228] The Presiding Officer holds two monthly private members' ballots, and as of 29 April 2009, eight such ballots had been held.


138. Any Legislative Competence Order has to go through pre-legislative scrutiny both at the Assembly and at Westminster. Initially it was expected that this scrutiny would take place in parallel, in the same time frame. However, during the first year of this process, the Welsh Affairs Select Committee identified that it is often possible to work more quickly and more effectively if the Assembly process is completed—and if the draft Order is then amended by the Welsh Assembly Government to take account of the Assembly Committee's comments—so that Westminster scrutiny relates to the considered view of the Assembly.

139. As of 29 April 2009, the Welsh Affairs Committee had published reports on six Legislative Competence Orders.[229] The Committee made a series of recommendations as to how these measures should be scrutinised and managed both on the floor of the House, and through scrutiny by the Welsh Affairs Committee. The Committee welcomed the opportunity for joint working and exchanges of views with the relevant committees of the National Assembly for Wales. The Select Committee said that this was subject to the co-ordination of timetables, the right of the Committee to retain control of its own programme of work and that the annual number of Legislative Competence Orders was manageable.[230]

140. There has been criticism of the process for the scrutiny of draft Legislative Competence Orders from the Presiding Officer of the National Assembly for Wales. Rt Hon Lord Elis-Thomas AM questioned whether the Welsh Affairs Committee was the most appropriate Committee at Westminster to scrutinize the draft Orders.[231] The Welsh Affairs Committee has argued that the scrutiny of LCOs is a crucial part of its role, but emphasised the need for fewer, higher quality LCOs. In their submission to the Review by the Secretary of State of the procedure for Legislative Competence Orders in Council, the Committee identified that the larger number of LCOs that they had received, compared to the four or five that they had expected, risked "bringing the LCO process into disrepute".[232] In oral evidence to the Welsh Affairs Committee, Mr Huw Irranca-Davies MP, the then Parliamentary Under-Secretary of State for Wales, was optimistic that the process was likely to improve in the next year with "improved synchronisation and in effect a project management of bringing these LCOs forward".[233] Mr Mike German AM said that it would be useful to overcome "timetable problems" and do things more jointly on this matter as this would "help to build levels of expertise ... in both determinations". [234]


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   Q 545 Back

208   See An Introduction to devolution in the UK, Research Paper 03/84, House of Commons Library, November 2003 p.21 for a full list. Back

209   An Introduction to devolution in the UK, Research Paper 03/84, House of Commons Library, November 2003, p. 14. Sewel Motions, by which the Scottish parliament gives its consent, have since been formally re-named Legislative Consent Motions. Back

210   HL Deb, 21 July 1998, col 791 Back

211   Scottish Affairs Committee, Fourth Report of Session 2005-06 ,The Sewel Convention: the Westminster Perspective, HC 983, p 16 Back

212   Scottish Affairs Committee, Fourth Report of Session 2005-06, The Sewel Convention: the Westminster Perspective, HC 983, para 17 Back

213   Scottish Affairs Committee, The Sewel Convention: the Westminster Perspective: Government's Response to the Committee's Fourth Report of session 2005-06, HC 1634 Back

214   Ev 231 Back

215   Q 195 Back

216   Q 177 Back

217   Robert Hazell, Towards a New Constitutional Settlement: An Agenda for Gordon Brown's First 100 Days and Beyond (Constitution Unit: UCL), p 28 Back

218   Ev 231 Back

219   In addition to the Legislative Competence Orders in Council described in this report, the Government of Wales Act 2006 also made provision for Parliament to change the Assembly's legislative competence by 'framework' provisions in Parliamentary Bills. See paragraph 15 of Devolution Guidance Note 9: Post-Devolution Primary Legislation Affecting Wales available at  Back

220   Welsh Affairs Committee, Second Report of Session 2006-07, Legislative Competence Orders in Council, p. 5 Back

221   Welsh Affairs Committee, Second Report of Session 2006-07, Legislative Competence Orders in Council, p. 5 Back

222   Q 574 Back

223   As outlined in the Government of Wales Act 2006. Back

224   Q 625 Back

225   These are set out in Schedule 5 and section 95 of the 2006 Act, by listing all "devolved Matters" within a series of "Fields". Back

226   Government of Wales Act, s.97, 98. For further detail see Back

227   HC Factsheet, Statutory Instruments, L7, January 2007 Back

228   Welsh Affairs Committee, Seventh Report of Session 2007-08, The proposed draft National Assembly for Wales (Legislative Competence) (Housing) Order 2008, HC 812, para 3 Back

229   The Welsh Affairs Committee has reported on the following draft Proposed Legislative Competence Orders: Additional learning needs (Second Report, Session 2007-08, HC 44), The field of social welfare (Fourth Report, Session 2007-08, HC 257), Social welfare and other fields (Fifth Report, Session 2007-08, HC 576), Housing (Seventh Report, Session 2007-08, HC 812), Agriculture and Rural Development (Third Report, Session 2008-09, HC 5), and Social Welfare (Sixth Report, Session 2008-09, HC 306). The Committee is also currently considering the draft Orders on Welsh Language and the Environment. Back

230   Welsh Affairs Committee, Second Report of session 2006-07, Legislative Competence Orders in Council, Recc 11. In practice the Welsh Affairs Select Committee has changed its own practices in order to create additional time for dealing with LCOs and keep pace with developments. The Committee has found benefit from coming to an LCO after the Assembly Committee has come to its conclusions and the Welsh Assembly Government has amended the draft. This means that the Westminster scrutiny is applied to a more considered proposal. Back

231   Q 548 Back

232   Para 22. See also Back

233   Welsh Affairs Committee, Seventh Report of Session 2007-08, The proposed draft National Assembly for Wales (Legislative Competence) (Housing) Order 2008, HC 812, para 9 Back

234   Q 619 Back

235   Q 625 Back

236   Q 626 Back

237   Q 95 Back

238   Q 546 Back

239   Q 571 Back

240   Q 574 Back

241   Q 574 Back

242   Q 604 Back

243   Q 574 Back

244   Q 552 Back

245   Q 552 Back

246   Q 616 Back

247   Q 616 Back

248   Q 616 Back

249   Robert Hazell, Towards a New Constitutional Settlement: An Agenda for Gordon Brown's First 100 Days and Beyond (Constitution Unit: UCL), p.28 Back

250   Q 630 Back

251   Q 2 Back

252   Q 550 Back

253   Ev 229 Back

254   Ev 119 Back

255   Q 628 Back

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