National Assembly for Wales
Letter from Rosemary Butler AM, Presiding in response
to Lord Richards letter of 17 January 2012:
I am grateful to you for your invitation to express,
on behalf of the Assembly, any views about the proposals set out
in the draft Bill. You will appreciate, of course, that the tight
timetable referred to in your letter means that it has not been
possible for me to carry out the kind of soundings that I would
normally have wished to carry out, or to refer the issue to one
of the committees of the Assembly for inquiry and report, which
would have been the ideal.
I am sure that your Committee will also appreciate
that my views are solely directed at the possible impact of the
bill on the Assembly as an Institution. The political parties
represented in the Assembly will have their own views on the proposals
generally. I cannot, as Presiding Officer, speak for them.
My views are based on the continuing importance,
under current constitutional arrangements, of the working
relationship between the House of Lords, as one of the two houses
of Parliament, and the Assembly.
Even where Bills considered by Parliament do not
deal directly with devolved subjects, they almost always contain
provisions whose impact on Wales, including indirect impact on
devolved subjects, are of significant interest to Assembly Members.
The coming into force of Part 4 of the Government
of Wales Act 2006, extending to the Assembly legislative competence
in relation to the whole of the devolved fields of government,
is relatively recent. It is therefore unclear to what extent Westminster
will still be legislating, with the agreement of the Assembly,
on devolved matters. But based on the Scottish experience there
is bound to be a significant volume of such legislation, with
the result that the House of Lords will continue to be scrutinising
provisions on some matters relating to Wales that would normally
be the subject of Assembly legislation.
Subordinate legislation is sometimes made jointly
by United Kingdom Ministers and Welsh Ministers and may be subject
to parallel scrutiny by the Assembly and by Parliament, through
the Joint Committee on Statutory Instruments.
Section 109 of the Government of Wales Act 2006 provides
a mechanism by which the extent of the legislative competence
of the Assembly may be amended by Orders in Council which require
the approval of both houses of Parliament.
You will also be aware that the Secretary of State
for Wales has established a Commission, chaired by Paul Silk,
to consider issues to do with the financial arrangements for devolved
government in Wales as well, in due course, as more general issues
relating to the powers of the Assembly and the Welsh Government.
It seems very likely that there will therefore be the need, at
some stage, to further amend the Government of Wales Act 2006
to give effect to recommendations arising out of that process.
All these factors demonstrate that under current
constitutional arrangements the good governance of Wales involves
a continuing partnership between the Assembly and the House of
Lords which, in turn, demands that House of Lords be constituted
in a way that acknowledges the particular needs of Wales.
Although the current constitution of the Lords does
not do so in a systematic way, there is nevertheless an obvious
pool of knowledge of, and expertise in, the affairs of the Assembly
amongst the current membership of the House of Lords. One current
Assembly Member, Lord Elis-Thomas and three former Assembly Members,
Lord German, Lord Wigley and Baroness Randerson, sit in the Lords
and you, yourself, of course, have huge knowledge of these matters
through your chairmanship of the Commission whose recommendations
led to the 2006 Act under which we now operate.
Whilst the preponderance of the members of the House
would, under the proposed reforms, be directly elected, so that
a proportionate level of representation from Wales would automatically
be achieved, the same would not necessarily be true of other classes
of members. The 12 Lords Spiritual would, by definition, be drawn
exclusively from England. In theory, the same could also be true
in relation to the 60 appointed members.
If an effective partnership between the Assembly
and the House of Lords is to be ensured then there is a strong
case for seeking to ensure an appropriate level of Welsh representation
amongst all classes of membership of the House of Lords. This
would require the process for appointing members including, perhaps,
the membership of the proposed House of Lords Appointments Commission,
to have regard to the needs of Wales.
How this aim might be achieved is a matter which
the Committee may wish to consider. It would be going beyond my
remit to put forward any detailed suggestions. But I believe that
there are precedents for this kind of safeguard, for example in
paragraph 10(4) of Schedule 12 to the Constitutional Reform Act
2005, in relation to membership of the Judicial Appointments Commission,
whose selection panel:
"must select persons for appointment as lay
members (including the chairman) with a view to securing, so far
as practicable, that the persons so appointed include at any time
at least one who appears to the panel to have special knowledge
of Wales."
May I thank you once again for the opportunity to
express a view on behalf of the Assembly in relation to the work
of the Committee. I look forward with interest to reading the
Committee's report in due course.
25 January 2012
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