4 Managing the post-referendum settlement
Devolution guidance notes
35. The Memorandum of Understanding between
the UK Government and devolved administrations is key to the overall
relationship between the administration in Cardiff and the UK
Government.[27] However,
for many practical purposes, the Memorandum of Understanding
lacks specific detail. This is provided by the Devolution Guidance
Notes detailing working relations between UK and Welsh governments.
Of particular importance are Devolution Guidance Note 4 on the
Role of the Secretary of State for Wales and Note 9 on post-devolution
primary legislation affecting Wales. The Report of our predecessors,
Wales in Whitehall, identified a number of areas of friction
in Government where devolution protocols were not given sufficient
consideration.[28]
36. Following any affirmative outcome in the referendum,
and any consequential increase in legislative competence, it would
be necessary for the Government to update these notes and to refresh
the actual relationship between the different parties to the settlement.
It would also need to replace Devolution Guidance Note 16, which
is concerned with orders under section 95 of the Government of
Wales Act 2006 relating to the making of Legislative Competence
Orders.
37. The Government told us that it would update the
Devolution Guidance notes "in light of the outcome of next
year's referendum".[29]
However, the Secretary of State did not "expect that the
outcome of the referendum will necessitate changes to the Memorandum
of understanding".[30]
38. The Devolution Guidance notes, which set out
the working arrangements between the UK Government and the devolved
administrations, are key to the administrative and the constitutional
relationship between the administration in Cardiff and the UK
Government. Clearly, these constitutional arrangements would have
to be changed if there were a "Yes" vote in the referendum
in March 2011. We recommend that in those circumstances, the Welsh
Affairs Committee be consulted during the process of the revision
of these documents.
Mechanisms for changing Schedule
7 in the future
THE CURRENT PROCESS FOR AMENDING
SCHEDULE 5
39. Schedule 5 to the Government of Wales Act 2006
has been amended in two ways since 2006; by Acts of Parliament
and by Legislative Competence Orders (LCOs). LCOs are normally
proposed by the Welsh Assembly Government (WAG), but can also
be proposed by a backbench Assembly Member or an Assembly committee.[31]
40. Following WAG-proposed LCOs there is a period
of negotiation between WAG and the UK Government to agree on a
text that the Government will be willing to lay before Parliament.
When a text is ready, the Secretary of State for Wales lays a
proposed draft LCO before Parliament and refers it to Welsh Affairs
Committee and the House of Lords Constitution Committee for pre-legislative
scrutiny. The LCO is also laid before the Assembly and referred
to one of its committees for scrutiny. Following these pre-legislative
stages, a draft Order proposed by the National Assembly is laid
before Parliament for approval in the manner of an affirmative
statutory instrument. In the Commons this has been normally debated
in a delegated legislation committee.
AMENDING SCHEDULE 7
41. Section 109 of the 2006 Act provides a general
power for the Secretary of State to amend Schedule 7. There are
no limits on what amendments might be made in this way, or in
the timing of them. However, any Order doing so would require
the approval of both Houses of Parliament, and of the National
Assembly. It therefore could not be used without the consent
of the House of Commons.
42. Under the Government of Wales Act 2006, the National
Assembly has no power formally to propose changes to Schedule
7. It is not clear what role, if any, would be taken by the Welsh
Affairs Committee in consideration of any proposal to amend Schedule
7.
43. Further matters might also be devolved by Act
of Parliament. Primary legislation has been used when substantial
additional functions have been devolved to both Scotland and Northern
Ireland - even though similar order-making powers to that in Wales
exist in both systems. However, as we noted above, the devolution
settlement with Wales is of a different nature. Because it is
based on transfers of powers from Westminster to Wales, rather
than on a definition of "reserved" matters, it seems
likely that there may be more frequent need, even if Schedule
7 comes into effect, for detailed adjustment of the legislative
competence of the Assembly on a scale which would not normally
justify primary legislation.
44. The Secretary of State told us that the Government
intended to consult the Welsh Assembly Government and the Welsh
Affairs Committee before deciding how to deal with any requests
from the National Assembly to amend Schedule 7.[32]
45. The Government has made clear that the Welsh
Affairs Committee will be consulted on how requests from the National
Assembly for Wales should be dealt with in the event of Schedule
7 coming into effect following a "Yes" vote in a referendum.
We consider that any future conferral of legislative power on
the National Assembly should have the consent of both Parliament
and the Assembly itself, whatever means is used to achieve that
end.
27 Cm 7864 Back
28
Welsh Affairs Committee, Eleventh Report of Session 2009-10, Wales
and Whitehall HC 246 Back
29
Ev 3 Back
30
Ibid. Back
31
The LCO process has existed since 2007 and 15 LCOs have reached
Parliament to date. Most of these LCOs have been backed by the
Welsh Assembly Government, but there have been 2 backbench LCOs
and the one committee-sponsored LCO has passed through its stages
in the National Assembly. Back
32
Ev 3 Back
| 
