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 powerslegislative competenceover
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,
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
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,"
but believed that the process was now "delivering enormously
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".
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
Governmentand of course the coalition Government coincided
with this new era you will recalland 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 ...
The Welsh Assembly Government listed the principal
factors that now facilitated smooth handling between themselves
formal start to the process, through the relevant Welsh Minister
writing to their counterpart;
of a senior lead official in the Whitehall department responsible
for the policy area in question, to co-ordinate the UK Government's
of information on the intended scope of the Order, in advance
of discussions on the draft of the proposed Order itself; and
communication of target timescales early on in the process.
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
secondand I would not say this is a big effect but it is
a real effect, I thinkis 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.
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.
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.
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.
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?'
152. A lack of transparency in Whitehall was also
highlighted as a particular concern. The Wales Council for Voluntary
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.
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.
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.
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".
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
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.
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
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".
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.
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 Parliamentas one legislature to anotherrather
than to the UK Government".
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.
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".
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
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.
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
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.
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.
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.
Carwyn Jones AM referred to them as "measure-making powers".
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
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 Whitehallthere is no involvement of
the National Assembly for Wales or Welsh stakeholders".
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
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.
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.
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".
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
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
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".
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".
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?
170. An initial response to this concern has been
developed by Cardiff University, in the form of Wales Legislation
"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".
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.
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
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