Introduction
Background
1. The Government of Wales Act 2006 introduced a
procedure whereby the National Assembly for Wales can bring forward
proposals which would extend the Assembly's lawmaking powers by
way of Legislative Competence Orders in Council. The Orders do
not themselves change the general law for Wales—they pave
the way to subsequent changes in the law applying to Wales within
the devolved areas of legislative competence. They do this by
adding new "Matters" to the "Fields" of legislative
competence set out in Schedule 5 to the Government of Wales Act
2006.
2. These proposals for draft Orders may be introduced
by the Welsh Assembly, by committees of the National Assembly,
or by individual Assembly Members (chosen by ballot). They are
subject to pre-legislative scrutiny by committees of the Assembly
appointed for this purpose and, potentially, by committees of
the House of Commons and the House of Lords. Whitehall agreement
("clearance") is a necessary prerequisite before a proposed
Order is referred by the Secretary of State for Wales to each
House at this pre-legislative stage.
3. Following the pre-legislative stage, the National
Assembly may agree an actual draft Order. This may take account
of committee recommendations (from either its own committees or
Westminster) following pre-legislative scrutiny. The draft Order
must then be laid before Parliament by the Secretary of State
for Wales—and he or she may still decline to do so at this
stage. If the draft Order is laid, it is considered by both Houses
of Parliament, and may be debated by them. Draft Orders at this
stage are not amendable and can only be approved or rejected.
If approved by both Houses, direct law-making powers are devolved
to the Assembly within the scope of the Order in Council. The
Assembly then makes those laws in the form of Assembly Measures,
which must be passed by the National Assembly but which require
no further approval by either Whitehall or the UK Parliament.
Introduction of this proposed
Order
4. If adopted, the proposed Order would expand Field
9 (Health and Social Services) and Field 15 (Social Welfare) of
Part 1 of Schedule 5 of the Government of Wales Act 2006. Proposed
Matter 9.2 would confer competency to legislate on the assessment
of mental health and treatment of mental disorder. Proposed Matter
15.9 would extend the competence of the National Assembly for
Wales to provide legislative power in relation to mental health
advocacy.
5. In October 2007, Jonathan Morgan AM was successful
in the ballot for the opportunity to introduce a proposal to add
to the legislative competence of the National Assembly. On 17
October 2007 following a debate in plenary session under Standing
Order 22.50 the National Assembly for Wales gave him leave to
introduce a proposed Order about and in connection with mental
health.
6. The proposed National Assembly for Wales (Legislative
Competence) (No.6) Order 2008 (Relating to Provision of Mental
Health Services) was laid before the Assembly on 18 February 2008.
The Assembly established a Committee on 26 February 2008 to undertake
pre-legislative scrutiny of the proposed Order. The Committee
issued a call for written evidence and subsequently held six evidence
sessions and published its report on 20 June 2008. This report
recommended a number of changes to the drafting of the proposed
Order.
7. The revised proposed Order, together with an Explanatory
Memorandum, by Jonathan Morgan AM, endorsed by the Welsh Assembly
Government, was published as a Command Paper by the Wales Office
on 21 May 2009. The Secretary of State wrote to the Chairman of
the Welsh Affairs Committee and to the Select Committee on the
Constitution, House of Lords, inviting these committees to undertake
pre-legislative scrutiny. The Welsh Affairs Committee formally
accepted this invitation on 2 June 2009.
The LCO process in this instance
8. Jonathan Morgan AM is the first non-Government
Assembly Member to have a Legislative Competence Order formally
laid in Parliament. In oral evidence to the Committee, he highlighted
the support he had received from the Health Minister and officials
in the Welsh Assembly Government and the value of "joint
working":[1]
The Health Minister was very keen and very supportive
in that I could receive information via officials and not just
information via the Minister. I was invited to briefings with
the Minister and her officials. We kept in regular contact and
more recently, it has been weekly contact, either meeting informally
or more formally, to talk about where we are in the process […]
That very strong working relationship has continued for the past
two years.[2]
9. Claire Fife, Mental Health Legislation Manager
from the Welsh Assembly Government, commented that "it has
been a really interesting process to work in this way",[3]
and noted:
The Minister has been extremely supportive throughout
the whole process and has made the time of her officials fully
available to Mr Morgan whenever he wished to discuss a point either
with her or with her officials.[4]
10. Jonathan Morgan recognised that "One of
the difficulties of pursuing a competence order as a backbench
Member is that clearly you do need the support of the government."[5]
He noted that the proposed LCO had "support not just from
the government but from the other two political parties in the
Assembly".[6]
11. The proposed Order as originally drafted was
not laid before Parliament and was not referred to the Welsh Affairs
Committee. The Assembly's Proposed Mental Health LCO Committee
undertook initial pre-legislative scrutiny and recommended substantial
changes to the proposed Order. As a result, the Order was re-drafted
before the LCO in its current form was laid before Parliament
on 21 May 2009. This Committee has previously commented on the
benefit of sequential consideration of LCOs. If, as in this case,
the changes suggested by the Assembly Committee have been incorporated
into a revised draft by the time the proposed Order is considered
at Westminster, this means that we are likely to be scrutinising
the considered view of the Assembly as a whole rather than the
initial proposal, improving both the process and the outcome,
so the sequence of events in this scrutiny process appears to
us to provide a sensible pattern for future consideration of Private
Members' LCOs .
12. In oral evidence to the Committee, Jonathan Morgan
AM spoke of the redrafting process, following recommendations
made by the Mental Health Legislative Competence Order Committee
of the National Assembly, and highlighted the continued working
between himself and the Minister:
There was a series of correspondence exchanged
between myself and the Minister where she had considered the evidence
of that committee. I had made suggestions for where terminology
needed to change, where wording needed to alter and where work
needed to be done […] There were then conversations and discussions
between officials in the Assembly parliamentary service and officials
working in the Assembly Government. The final draft was a draft
provided by the Assembly Government but that was at the end of
a process of going back and forth to discuss what needed to be
there.[7]
Claire Fife, Mental Health Legislation Manager from
the Welsh Assembly Government, commented:
The final draft [of the proposed draft] has been
prepared by the Office of the Welsh Legislative Council and agreed
with Mr Morgan and is based on the negotiations that officials
have had, his officials and the Assembly officials, with the Department
of Health, the Ministry of Justice, and so forth.[8]
Wayne David MP, the Parliamentary Under-Secretary
of State, Wales Office, noted that the relationship between all
parties had been a very positive one, and that the Wales Office
would "wish to learn from our experience so far so that in
future a similar process can be equally smooth."[9]
13. Mr Morgan expressed some frustration about the
time the process had taken and the delay in receiving Whitehall
clearance for the proposed Order. He was successful in the ballot
on 3 October 2007. The proposed Order and Explanatory Memorandum
were published as a Command Paper by the Wales Office on 21 May
2009. In oral evidence to the Committee, he commented:
One of the difficulties is that once the Order
had been agreed between myself and the Assembly's Health Minister,
had received that all party support and had that very active support
of the Minister and her officials, the Order was referred to Whitehall
in December of last year. There have been government Legislative
Competence Orders which have been published later and delivered
to Whitehall later than mine which have I think almost completed
their processes […] I can understand where government officials
would want to ensure that the government's legislative programme
is prioritised. I accept that as one of the realities of government
and political life. I suppose from my own perspective it was necessary
to wait in the queue until when Whitehall clearance could be afforded
and when it could be possibly referred to this Committee by the
Secretary of State.[10]
14. Claire Fife from the Welsh Assembly Government
indicated that the issue had been raised within the National Assembly
for Wales:
… the Counsel General and Leader of the
House has given reassurance that each LCO is considered on its
merits and he has confirmed to Mr Morgan that it is absolutely
not the case that backbench LCOs have been treated differently
[…] it is certainly not the case that this Order has been
lagging behind the Government priorities.[11]
15. We welcome the first proposal for a Legislative
Competence Order formally laid before Parliament to have been
introduced by a non-Government Assembly Member. We note Mr Morgan's
frustration with the time the process has taken in receiving Whitehall
clearance for the proposed Order. We applaud the level of co-operation
between Mr Morgan who sponsored the proposed LCO, the Welsh Assembly
Government, and the Wales Office. We look forward to similar support
by the Welsh Assembly Government and Wales Office to further backbench-sponsored
LCOs.
The Welsh Affairs Committee inquiry
16. The Secretary of State referred the proposed
National Assembly for Wales (Legislative Competence) (Health and
Health Services and Social Welfare) Order 2009 to us for pre-legislative
scrutiny. We considered whether the proposed Order is in the spirit
and within the scope of the devolution settlement; the extent
to which there is a demand for legislation which might follow
the adoption of the proposed Order; and whether the use of the
Legislative Competence Order in Council procedure is more appropriate
in this instance than, for example, the use of framework powers
in a Westminster Bill.[12]
17. We took oral evidence on three occasions, including
from Jonathan Morgan AM, sponsor of the proposed LCO, officials
from the Welsh Assembly Government, and from the Parliamentary
Under-Secretary of State, together with officials of the Wales
Office and an official from the Department of Health. We were
disappointed that the Welsh Assembly Government Health Minister
Edwina Hart MBE AM was not able to appear before the Committee
but look forward to her appearing before us for our inquiry into
cross-border health services. We received written evidence from
Dai Davies MP, Mind Cymru, Gofal Cymru, the College of Occupational
Therapists, Hafal, the Children's Commissioner for Wales, Royal
College of Nursing, Wales, and Jonathan Morgan AM. The evidence
we received is appended to this Report. We are grateful for the
assistance of our specialist advisers, Professor Phil Fennell
of Cardiff Law School,[13]
and Professor Keith Patchett, Emeritus Professor of Law, University
of Wales.[14]
1 Q 24 Back
2
Q 22 Back
3
Q 81 Back
4
Q 81 Back
5
Q 7 Back
6
Q 7 Back
7
Q 23 Back
8
Q 61 Back
9
Q 104 Back
10
Q 21 Back
11
Q 80 Back
12
On 2 June 2009 the Committee issued a press notice setting out
the scope of its inquiry and inviting written submissions from
interested parties. Back
13
See Formal Minutes of the Committee for 9 June 2009 at http://www.parliament.uk/documents/upload/FORMALMINUTESWAC08-09v3a.pdf Back
14
See Formal Minutes of the Committee for 28 November 2006 at http://www.parliament.uk/documents/upload/final%20FORMAL%20MINUTES%2006%2007.pdf Back
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