Wales and Whitehall - Welsh Affairs Committee Contents


5  Legislation

144. The Welsh Assembly Government has to ask for powers and has to work with Whitehall in its rolling out of the devolution programme in two principal ways: with regard to Legislative Competence Orders where the National Assembly for Wales is given decision-making powers—legislative competence—over new areas of policy; and through powers granted in primary legislation (Acts of Parliament).

Legislative Competence Orders

145. In January 2010, we published a report Review of the LCO Process,[185] in which we gave consideration to the LCO process. While we concluded that many aspects of the process are now working well, we noted that procedural problems persist, notably the lack of transparency in the Whitehall clearance process. We examined this further during this inquiry.

146. The Secretary of State for Wales admitted that, as a new settlement, the legislative competence order process had taken some time to bed down: "both sets of officials at Welsh Assembly Government level and in Whitehall had to get up to speed and there was slowness and shortcomings at both ends at the beginning,"[186] but believed that the process was now "delivering enormously for Wales".[187] The Welsh Assembly Government believed that the "process has been a learning curve for everybody. We have sought to take the learning from each case and build on experience each time".[188]

147. Witnesses commented that at the beginning of the new process, there had been a lack of joint working between the Welsh Assembly Government and Whitehall. The Secretary of State for Wales felt that:

    At the beginning there was a sense in the Welsh Assembly Government, both at ministerial level in the coalition Government—and of course the coalition Government coincided with this new era you will recall—and at official level that they wanted to play their cards a little more closely to their chests than perhaps had always been the case, and therefore in the case of some of the LCOs they were fully drafted before we had a chance to have a process of interaction to deal with issues of scope and technicalities. We are now working in a much more joined-up fashion ...[189]

The Welsh Assembly Government listed the principal factors that now facilitated smooth handling between themselves and Whitehall:

·  a formal start to the process, through the relevant Welsh Minister writing to their counterpart;

·  identification of a senior lead official in the Whitehall department responsible for the policy area in question, to co-ordinate the UK Government's input;

·  sharing of information on the intended scope of the Order, in advance of discussions on the draft of the proposed Order itself; and

·  the communication of target timescales early on in the process.[190]

148. Dr Jim Gallagher noted that the effects on Whitehall of the new process were two-fold:

    The first couple of these did cause distress; there is no doubt about that. They caused difficulty as people struggled with understanding the difference between the transfer of legislative competence and some kind of mechanism that might look like shared responsibility for legislation. [...] As time has gone on, and a few more Orders have come along, the first effect has been that we have learned how to do them better. The second—and I would not say this is a big effect but it is a real effect, I think—is that Wales has become, in competence terms, a little more like the Scottish settlement; it has a bit more legislative competence, and that has raised its profile inside Whitehall, no doubt about that. When a body like the Assembly has legislative competence its impact, or potential impact, on Whitehall and indeed on Westminster is greater and therefore its salience, if you like, is increased.[191]

149. Carwyn Jones AM did not feel yet that the LCO process had led to greater understanding of the devolution settlement in Whitehall and that there was still much variation between departments:

    It has led to closer working between the Welsh Assembly Government and Whitehall but there have been occasions where there have been some intense negotiations in terms of what can and what cannot be devolved. [...] the approach taken by various Whitehall departments and, indeed, within different parts of Whitehall departments can vary quite significantly in terms of their understanding of the Welsh devolution settlement.[192]

150. The First Minister commented that the Welsh Assembly Government looked for the "most efficient avenue" in which to gain legislative powers:

    We will look at what the Queen's Speech says every year and identify whether there are any Bills there where it would be appropriate for us to have measure-making powers. Clearly, that is a swifter process than the Legislative Competence Order process so where [...] there is a bus going in the right direction we will try and jump on that bus [...] [if] there is no bus going in the direction we want[...] we have to build our own, and that is the Legislative Competence Order.[193]

151. Witnesses also commented on the lack of understanding within Whitehall of the need to prioritise Legislative Competence Orders. The Welsh Assembly Government noted that:

    ... it was not always easy at first to convey the sense that these Orders are critical to delivery of the Welsh Assembly Government legislative programme, in the same way that the preparation of parliamentary Bills is time critical. [...] We have tried to tackle this, partly by setting out clearer expectations at the outset, with tighter project management, and partly thanks to the support and efforts of the Wales Office in endeavouring to secure clearances which recognise that the Welsh Assembly Government also has to timetable its legislative business in the Assembly. However the fact remains that the process does demand time and resource at all stages, even for relatively straightforward Orders. It puts particular pressure on those points through which all LCOs pass, given that they do currently all follow the same process whatever their scale.[194]

Rhodri Morgan AM felt that delays occurred because it was not part of a civil servants 'normal day job':

    Because one individual civil servant in Whitehall is in charge of writing a Bill, steering a Bill, getting it into useable form, and has probably never dealt with an LCO before and may never have dealt with Wales before, the machinery does creak when that civil servant realises, 'Oh, my God, I have got to deal with something that has come in from Wales. What am I going to advise my ministers?' I think it is quite likely to have gone into the pending tray [...] because it is something new and unique and, therefore, you do not find a lot of enthusiasm. People think, 'Can't I get back to my normal day job?' [...] That is how human beings work. They have got what they think of as a day job and suddenly a new fish lands in the net and they think, 'What am I going to do with that?'[195]

152. A lack of transparency in Whitehall was also highlighted as a particular concern. The Wales Council for Voluntary Action commented:

    Our members' experience to date is that the role of Whitehall in the Legislative Competence Order (LCO) process is not transparent. Organisations in Wales may have lobbied hard for an LCO and engage in all of the relevant steps in the process in Cardiff Bay but when the LCO goes to Whitehall it appears to go into a black hole. Things seem to get held up there for a long time and it can be hard to know what is happening or when it might be possible to try to engage with the LCO again.[196]

Mr Huw Williams of the Law Society agreed that:

    ... from the outside looking in, there is no clarity as to what happens with some aspects of the pre-legislative scrutiny of these things. The environment LCO is a classic example. [...] when it came to its formal stages in Cardiff Bay and, also in this House, it went through relatively speedily but, of course, there was two years when it sat somewhere in the governmental machine between Cardiff and Whitehall.[197]

He commented on the need to "open up to the light of day this process that evidently goes on between government in Cardiff and in Whitehall at the pre-legislative stage in terms of the shape of the drafting and, in particular, what is carved out and what are the concerns", and added:

    ... it might do no harm on a suitable occasion to try and have a good, hard look at what went on at that stage before an LCO saw the light of day and actually get officials from the relevant Whitehall departments that have had input into the drafting of the LCO to come and talk to you about what they saw as being their role. I think that would certainly lend a degree of transparency into how these things get formulated.[198]

153. We continue to have concerns about the time it takes for Legislative Competence Orders to receive Whitehall clearance. They are frequently not given priority within Whitehall departments, which may affect the delivery of the Welsh Assembly Government's legislative timetable. In contrast, the House of Commons has shown an ability to deal expeditiously with such proposals.

154. As we recommended in our earlier report, Review of the LCO Process, we believe that there is a strong case for a more formal reporting system on the Whitehall clearance system. This Committee has made clear its intention to scrutinise the process from the point when a Legislative Competence Order is sent by the Welsh Assembly Government to Whitehall. The Wales Office has now agreed to provide this Committee with a monthly update on the progress of all proposed Orders together with an explanation of any delays. In the event of this Committee being dissatisfied with progress, we intend to call ministers and officials from Whitehall departments to attend a meeting of the Committee along with a minister or official of the Wales Office in order to identify the issues that remain unresolved, and to provide transparency about the process.

SECRETARY OF STATE'S ROLE

155. Under the Government of Wales Act 2006 c.95, once the pre-legislative scrutiny process is complete, the First Minister sends a draft LCO, with notice of the Assembly's resolution to the Secretary of State, who has 60 days to either lay the draft LCO before Parliament or refuse to lay it before Parliament and give notice of refusal, with reasons to the First Minister. To date, the Secretary of State for Wales has not refused to lay a draft Legislative Competence Order before Parliament.

156. During the Justice Select Committee's inquiry on Devolution: A Decade On, 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 not 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".[199] In its conclusions, the Justice Select Committee expressed concern about the lack of transparency of the role of the Secretary of State and recommended a protocol outlining the principles that would inform a decision by the Secretary of State whether or not to lay a draft order.

157. Some witnesses argued that, theoretically, a judicial review could be applied for if the Secretary of State did not lay a Legislative Competence Order before both Houses of Parliament. However, Mr Huw Williams of the Law Society commented that:

    My feeling for it would be that if such a claim were mounted (a) it would be part of a wider controversy that had a political element to it. Secondly, I suspect, on the basis of the lines taken by the courts in other instances (the GCHQ case comes to mind) is that they would probably agree that in principle they had power to review to the Secretary of State because, at the end of the day, he is a Minister and not laying is a Ministerial act, but I suspect that they would then reach the threshold at which the courts would say: 'We are now into the matter of politics' and would probably tread very carefully unless the Secretary of State had done something totally egregious.[200]

158. Rhodri Morgan commented that in order for the LCO process to work it was:

    ... for Whitehall ministers to have the ability in their DNA to say, 'I do not like what legislation is going to emerge back in Cardiff from the transferring of this power, but I still accept that it is appropriate for Whitehall to release the legislative power to Cardiff for a purpose that I disapprove of.'[201]

Mr Morgan acknowledged that a "big cultural change was needed" in order for ministers, while not agreeing with the purpose to which the LCO would be put, to recognise that it was appropriate for the Welsh Assembly Government to have the power to legislate in a particular area. He equated the process with the Salisbury Convention in which the House of Lords will not oppose the second or third reading of any government legislation promised in its election manifesto and stated: "there is no moral authority or political authority behind an LCO bid that has not been mentioned in a manifesto".[202] Exceptions to the need for a declaration in a manifesto were public health emergencies or animal health crisis. He argued that backbench LCOs were also in a different category:

    It is just a matter really for the Westminster and Whitehall machine to decide how brutal, how co-operative, how trendy or how warm they want to be to the backbench LCO concerned. So far the record is not bad.[203]

159. We are 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 to present it early in the new Parliament. This should not omit consideration of the status of backbench Legislative Competence Orders.

LAYING OF LEGISLATIVE COMPETENCE ORDERS BEFORE PARLIAMENT

160. In his submission, Sir Jon Shortridge proposed the novel idea that "once the Assembly has formally resolved to secure a Legislative Competence Order, it should make its submission directly to Parliament—as one legislature to another—rather than to the UK Government".[204] He expanded on this idea in oral evidence to the Committee:

    The practical implications would be that Parliament would have to change certain of its basic conventions because by convention Bills are introduced by the Government into Parliament. Legislative Competence Orders are legislation, so I think Parliament would have to provide a different device for taking Legislative Competence Orders through Parliament [...] If that procedural hurdle could be overcome, then it would make life easier for the UK Government because they could decide through a transparent political process what they were going to support and whether they were going to support it. There would also be the merit from the Cardiff point of view that you would not need to go through two sequential sets of negotiations, one to get the Government's agreement and then Parliament's agreement. Obviously, if you get the Government's agreement then I would say it diminishes the opportunity of Parliament to challenge because you have got majority support for it as it goes through.[205]

161. Some witnesses considered it an "attractive proposition" but felt that "the executive impact of Legislative Competence Orders when they are proposed is an essential aspect of it".[206] Professor Richard Wyn Jones Director of the Wales Governance Centre commented on the proposal that:

    ... instinctively, I warmed to [it] immediately because I think that that is how I would like to think democracy works and I would very much like to see backbench Members of this place, in a sense, act as champions of the sister parliament in Cardiff.[207]

However, he added:

    ... I do worry about the practicalities of that, to be honest as it would, I suspect, inevitably be executives who do all the work in the end, but symbolically I could certainly see the value.[208]

162. Carwyn Jones AM also recognised the need for executive support in the process through the UK Parliament and expressed concern about the timetabling of Legislative Competence Orders:

    Clearly, in order for a Legislative Competence Order to be timetabled it needs the support of government, and from our point of view, if it was to be a legislature-to-legislature transfer, there would have to be a great deal of thought given to ensuring that Legislative Competence Orders were taken forward in a timely fashion. Obviously with the support of the UK Government that can be done but without the support of the UK Government it is difficult to see how the process could be taken forward.[209]

We accept this point, but we do not believe it is impossible to develop a process whereby a Legislative Competence Order is passed directly from the Assembly to Parliament for oversight.

Framework Powers

163. It has been argued that, to date, Wales has received more powers by means of clauses in Westminster Bills ('framework powers') than through the LCO system.[210] Carwyn Jones AM referred to them as "measure-making powers".[211] For example, the Marine and Coastal Access Act 2009 included provisions which conferred executive powers on Welsh Ministers in relation to marine licensing, marine nature conservation and fisheries, bestowed new marine planning functions on the Welsh Ministers and provided Measure-making powers for the Assembly on coastal access.

164. Witnesses expressed concern regarding the lack of scrutiny available to the National Assembly for Wales in relation to powers proposed to be granted to Assembly Ministers in UK Bills, which "at present [...] is taken entirely behind closed doors between the WAG and Whitehall—there is no involvement of the National Assembly for Wales or Welsh stakeholders".[212] The Wales Governance Centre stated that:

    The structure of the Assembly is such that it appears that reliance is mainly made by the Assembly on the reports produced by the Subordinate Legislation Committee[213] on Bills going through Parliament which proposed to give executive powers to the Assembly Government and legislative powers to the Assembly. [...] However the Committee also have other important functions to carry out under the standing orders applicable to them. [...] The result is that the Committee is unable to report to the Assembly on all Bills giving powers to Welsh Ministers or legislative powers to the Assembly.[214]

Alan Trench compared this to the situation in Scotland where all conferrals of legislative power on the Scottish Parliament (and of executive powers on the Scottish Ministers) required the approval of the Scottish Parliament. He commented:

    I cannot see any logical reason for the position in Wales to be different when the key issue is the route by which legislative powers are conferred on the Assembly rather than the substantive outcome. Ensuring that the Assembly approved all conferrals of such powers, regardless of means, would contribute significantly to the strengthening of the elected arm of the devolved Government of Wales.[215]

165. Professor Richard Wyn Jones of the Wales Governance Centre, commented that this was "an unintended consequence of the system but it is leading to a very powerful executive in Wales which is not particularly tightly controlled by the legislature".[216]

166. We are concerned that framework powers are not scrutinised to the same degree as proposed Legislative Competence Orders, either within Parliament or the National Assembly for Wales. We suggest that it is appropriate for this Committee to provide more parliamentary oversight of such powers and will investigate the most effective way of doing this. It is not appropriate for two legislatures to be entirely beholden to their executives in order to converse formally, and the National Assembly for Wales should have the opportunity to make observations on any proposal to legislate at Westminster in relation to devolved matters. It is our intention to explore the development of practice in this area.

167. The Scottish Affairs Committee recommended in their recent report that there should be provision made in the House's standing orders for the Presiding Officer of the Scottish Parliament to convey formal decisions of that Parliament to the Speaker of the House of Commons and for the Speaker to lay any such communications before the House. We recommend that the Standing Orders of the House provide for the Speaker to lay before it any formal communication conveyed to him or her from the National Assembly for Wales.

Welsh Statute Book

168. In giving evidence to the Justice Committee's inquiry on Devolution: A Decade On, John Osmond, the Director of the Institute of Welsh Affairs, identified that one consequence of the new legislative arrangements was the emergence of a plethora of sources of the law that related 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.

169. Witnesses identified that the divergence in law between Wales and England was making it difficult to identify the law as it applied to specific issues. As a result, the Welsh Local Government Association explained that "the process of preparing legal advice now requires complex and time consuming searches of the Welsh Assembly Government web-site in an attempt to identify what legislation actually exists, even before its impact can be assessed".[217] The Law Society commented that it had lobbied on the provision of a Wales Statute Book during the passage of the Government of Wales Act 2006. It argued that it wanted a Welsh Statute Book "provided as a public service: access to justice is a matter for the state and the complexity of the devolution settlement requires action on this".[218] Ms Tessa Shellens from the Law Society highlighted the difficulties the lack of a Welsh Statute Book caused:

    ... yes we can ascertain the LCOs; where we are having more difficulty is in ascertaining the various Acts with various powers in them, and it is almost impossible to scrutinise whether powers are going to be taken up by the Assembly or not and whether they are going to be left redundant, and is England moving one way and are we not moving anywhere at all?[219]

170. An initial response to this concern has been developed by Cardiff University, in the form of Wales Legislation online,[220] funded "partly with the support of the Assembly Commission, to a lesser extent by the Assembly Government and by Cardiff University itself" but Professor Richard Wyn Jones commented that this "is a hand-to-mouth operation".[221] The Welsh Local Government Association welcomed its work but commented that it was not sufficient:

    ... the facility is not widely known and it does not deal with the common law, nor is there legal text support as found in published reference material.[222]

171. The accessibility of the law in relation to Wales and the creation of a single comprehensive reference of legislation impacting on Wales is important. We encourage the Government to support the Welsh Assembly Government to achieve this objective.


185   Fifth Report from the Welsh Affairs Committee, Review of the LCO Process, Session 2009-10, HC 155 Back

186   Q 617 Back

187   Q 589 Back

188   Ev 146 Back

189   Q 617 Back

190   Ev 146 Back

191   Q 152 Back

192   Q 474 Back

193   Q 454 Back

194   Ev 146 Back

195   Qq 89 and 90 Back

196   Ev 140 Back

197   Q 412 Back

198   Q 418 Back

199   Justice Committee, Fifth Report of Session 2008-09, Devolution: A Decade On, HC 529-I, para 143 Back

200   Q 428 Back

201   Q 100 Back

202   Q 104 Back

203   Q 106 Back

204   Ev 125 Back

205   Q 49 Back

206   Q 414 Back

207   Q 419 Back

208   Q 419 Back

209   Q 476 Back

210   Ev 143 Back

211   Q 458 Back

212   Ev 140 Back

213   Now called the Constitutional Affairs Committee. Back

214   Ev 143 Back

215   Ev 127 Back

216   Q 388 Back

217   Ev 156 Back

218   Ev 119 Back

219   Q 435 Back

220   http://www.wales-legislation.org.uk/ Back

221   Q 386 Back

222   Ev 156 Back


 
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