Pre-legislative Scrutiny
7. The process by which LCOs are passed is somewhat
complex (see the Appendix to this report for a flowchart describing
the process).
8. The first phase involves the Welsh Assembly
Government and the Secretary of State agreeing on the scope of
the powers sought and preparing the text of the proposed LCO.[2]
An explanatory memorandum is also prepared by the Welsh Assembly
Government.
9. The second phase is a period of pre-legislative
scrutiny by an ad hoc committee in the National Assembly
and, generally at the invitation of the Secretary of State, by
the House of Commons Welsh Affairs Committee and the Constitution
Committee.[3] The ad
hoc committee and the Welsh Affairs Committee may meet together
to consider the proposal and take evidence. The Counsel General
or the Attorney General also have a role in relation to proposed
LCOs: under section 96 of the 2006 Act, they may refer to the
Judicial Committee of the Privy Council (subsequently the Supreme
Court of the United Kingdom when it begins to sit) "for decision
the question whether a matter which a proposed Order in Council
under section 95 proposes to add to Part 1 of Schedule 5 relates
to a field listed in that Part".
10. The three committees mentioned above will
consider the proposed LCO simultaneously. It is for the other
two committees to explain their criteria when undertaking such
scrutiny, but the Constitution Committee will apply the usual
yardstick of concerning itself with "matters of principle
affecting a principal part of the constitution".[4]
The overarching question will be whether, from a constitutional
point of view, the request for legislative competence is within
the overall letter and spirit of the devolution settlement.
11. In assessing proposed LCOs, the Constitution
Committee will have regard to the terms of the proposed LCO in
question, the explanatory memorandum and the formal requirements
of Part 3 of the 2006 Act (in particular sections 94 and 95) and
Schedule 5 to the Act. In relation to scrutiny of proposed LCOs,
it needs to be borne in mind that LCOs contain only enabling provisions.
It is the manner in which the National Assembly subsequently chooses
to use those enabling powers to make Measures that is more likely
to give rise to questions relating to the legislative competence
of the Assembly—but those questions will be for the courts
rather than Parliament to determine, as Parliament's formal role
in the Welsh legislative process ceases at the point that an LCO
is approved by both Houses.
12. The Constitution Committee's consideration
of proposed LCOs will include consideration of the following questions.[5]
(a) Does the proposed LCO appear to confer legislative
competence that risks falling foul of the "general restrictions"
defined by Parts 2 and 3 of Schedule 5 to the 2006 Act? The restrictions
relate to: (a) altering functions of Ministers of the Crown; (b)
criminal offences punishable by fines over level 5 or more than
two years imprisonment; and (c) amending certain Acts of Parliament.
(b) Does the proposed LCO and any envisaged Measure
described in the explanatory memorandum appear to apply beyond
Wales or extend beyond England and Wales?[6]
In the 2006 Act, sections 94(4)(b) and (6)(b) impose territorial
restrictions on the National Assembly's legislative competence.
(c) Does the "matter" set out in the
proposed LCO properly fall within the "field" under
which it is to be placed in Schedule 5? To take an example: should
a request for legislative competence to require smoke detectors
and fire alarms to be fitted in domestic dwellings fall under
"Field 7: fire and rescue services and promotion of fire
safety" or "Field 18: town and country planning",
both, or neither? The 2006 Act is, to all intents and purposes,
a written constitution for Wales[7]
and it is therefore important that there be clarity about the
legal base for any legislation.
(d) Do the provisions of the Measure envisaged
in the explanatory memorandum accompanying the proposed LCO properly
"relate to" a "matter" set out in the proposed
LCO or another matter specified in Schedule 5, as required by
section 94(4)(a)?[8] As
indicated above, at the pre-legislative stage of proposed LCOs
the Constitution Committee will not have before it the text of
any Measure. Therefore, it will only be possible to consider whether
there are any obvious problems in respect of what is said about
planned Measures in the explanatory memorandum.
(e) Does what is proposed appear to be incompatible
with the Convention rights set out in the Human Rights Act 1998,
contrary to section 94(6)(c) of the 2006 Act? The proposed LCO
itself—being merely enabling in character—is unlikely
to affect Convention rights; but consideration may be given as
to whether the manner in which the power may be exercised in making
a Measure is likely to have any significant human rights implications
that ought to be flagged up at the outset.
(f) Does what is proposed appear to breach European
Community law, contrary to section 94(6)(c) of the 2006 Act? Similar
constraints on the depth of scrutiny apply here as they do in
relation to Convention rights.
(g) Have the necessary procedural requirements
been followed in the making of the proposed LCO?
(h) Will Measures made under the proposed LCO
significantly affect the institutional structure of government
in Wales?
(i) Are there any other constitutional implications
that ought to be drawn to the attention of the House and the Secretary
of State?
13. Finally, because the Joint Committee on Statutory
Instruments will not be involved at this pre-legislative stage,
we shall attempt to bring any technical drafting points to the
attention of the House and the Secretary of State.
14. At the time of making this report, we had
considered one LCO: the National Assembly for Wales (Legislative
Competence) Order 2007 (Additional Learning Needs). We concluded
that this LCO did not raise any matters of constitutional principle.
Formal Approval of the Order
15. Following the period of pre-legislative scrutiny,
the proposed LCO will be amended if this is thought to be necessary
by the Secretary of State and the Welsh Assembly Government. A
draft order will then formally be laid before the National Assembly
for debate and approval. If it is approved, then the Secretary
of State will (within 60 days of receiving notice of the Assembly
resolution) lay the draft order before both Houses of Parliament,
where it will face the normal scrutiny process involving the Joint
Committee on Statutory Instruments and the Merits of Statutory
Instruments Committee.
16. To complete its legislative passage, the
draft order (which is not amendable) needs to be approved by both
Houses of Parliament under the affirmative resolution procedure.
Assuming this happens, the Secretary of State will then recommend
to Her Majesty that the Order in Council be made. This is the
end of the process.
Possible Next Steps in Devolution
17. The rather complex provisions for making
LCOs and Measures set out in Part 3 of the 2006 Act are interim
arrangements pending the coming into force of Part 4 of the Act.
This will permit the National Assembly to make "Acts of the
Assembly" on any subject within its legislative competence.
Part 4 may only be brought into force after a referendum in which
the majority of the voters support the National Assembly acquiring
such law-making powers. On 23 October 2007, Sir Emyr Jones Parry
was appointed by the Welsh Assembly Government to chair the All-Wales
Convention to promote the case for moving to the next stage of
devolution.
1 Constitution Committee, 8th Report (2005-06): Government
of Wales Bill (HL Paper 142), paragraphs 23-24. Back
2
During the pre-legislative phase, LCOs are referred to as "proposed
orders"; in the legislative stage, when they have formally
been laid before Parliament, they are "draft orders". Back
3
Under the National Assembly's Standing Order 22.16(ii), if the
National Assembly approves a motion in plenary to bypass detailed
scrutiny of the proposed order, then the Member in charge of the
proposed order may proceed to introduce a draft order under Standing
Order 22.31. This does not preclude the Welsh Affairs Committee
and the Constitution Committee from conducting pre-legislative
scrutiny. Back
4
See Constitution Committee, 1st Report (2001-02): Reviewing
the Constitution: Terms of Reference and Method of Working
(HL Paper 11), paragraph 22. Back
5
Where necessary, we will consult with the advisers to the Joint
Committee on Human Rights, the Joint Committee on Statutory Instruments
and the Delegated Powers and Regulatory Reform Committee. Back
6
"England and Wales" is a single legal jurisdiction and
the courts of England and Wales will therefore be able to adjudicate
on disputes relating to Measures. Back
7
The Appellate Committee of the House of Lords has recognised that
the Northern Ireland Act 1998 is "in effect" a written
constitution for that part of the United Kingdom (Robinson
v Secretary of State for Northern Ireland [2002] UKHL 32). Back
8
The concept encapsulated by the phrase "relates to",
sometimes known as the "respection doctrine", is a familiar
one in written constitutions and devolved settlements (as under
the Scotland Act 1998). There is a substantial body of case law
on its meaning. Lord Atkin's statement in Gallagher v Lynn
[1937] AC 863 at 870 is widely regarded as capturing the gist
of the approach that should be adopted: "It is well established
that you ought to look at the true nature and character ... the
pith and substance of the legislation. If, on the view of the
statute as a whole, you find that the substance of the legislation
is within the express powers, then it is not invalidated if incidentally
it affects matters which are outside the authorised field". Back
