The Proposed National Assembly for Wales (Legislative Competence) (Environment) Order 2009
Introduction
1. The Constitution Committee is appointed "to
examine the constitutional implications of all public bills coming
before the House; and to keep under review the operation of the
constitution". As part of the second limb of our remit, we
have since March 2007 conducted pre-legislative scrutiny of proposed
Legislative Competence Orders (LCOs). Our work is undertaken simultaneously
with reviews of proposed LCOs carried out by the House of Commons
Welsh Affairs Committee and is intended to complement rather than
duplicate the work of others during the pre-legislative phase.
After the completion of the pre-legislative phase, a draft LCO
is prepared and laid before Parliament for consideration
2. LCOs are made under Part 3 of the Government
of Wales Act 2006. Under Part 3, Parliament, the National Assembly
for Wales and the Secretary of State for Wales may agree to amend
Schedule 5 to the 2006 Act in order to enlarge the National Assembly's
legislative powers to make Measures. Schedule 5 defines the scope
of the National Assembly's legislative competence in terms of
"fields" (20 broad areas of policy), under which are
listed various more specific "matters" on which Measures
may be enacted by the Assembly. In this report we draw to the
attention of the House the drafting in the proposed LCO on the
Environment (LCO 8).[1]
LCO 8
3. LCO 8 will amend Part 1 of Schedule 5 by inserting
three new Matters into Field 6 (environment), as follows:
Matter 6.1 Preventing,
reducing, collecting, managing, treating or disposing of waste
in Wales and disposing in the sea adjacent to Wales, out as far
as the seaward boundary of the territorial sea, of waste collected,
managed or treated on land.
Matter 6.2 Protecting
or improving the environment in relation to pollution.
Matter 6.3 Protecting
or improving the environment in relation to nuisances.
4. The environment is a long-devolved policy
area and the proposed LCO seeks legislative competence for the
Assembly over areas where executive competence is already held
by Welsh Ministers. Such legislative competence, it is said, will
facilitate a more holistic and less piecemeal approach to be adopted
for environmental regulation in Wales. The Committee would
like to draw the attention of the House to the use made in this
LCO of exceptions. These appear in three main forms: "fixed
exceptions", "floating exceptions" and "carve-outs"
(which are in fact exceptions to exceptions). The drafting thus
raises concerns about clarity and transparency in the law.
THE "FIXED EXCEPTIONS"
5. Also known as "matter(s)-specific exceptions"
these exceptions are detailed in each new Matter (6.1, 6.2, 6.3).
Thus, to take an example, Matter 6.1 excludes: the regulation
of the provision of postal services, the regulation of decommissioned
explosives, the regulation of radioactive material that is at
military premises, the decommissioning of offshore energy installations,
the capture, conveyance and disposal of carbon dioxide, etc. The
use made in this proposed LCO of fixed exceptions is readily understandable,
in that it seeks (in the words of the Welsh Assembly Government's
memorandum at paragraph 24) "to follow the current boundaries
of what are devolved and non-devolved issues". However, the
Constitution Committee endorses the conclusion reached
by the House of Commons Welsh Affairs Committee that, while "the
extensive use of exceptions in this proposed Order reflects the
complexity of this field of legislation,
such a sweeping
use risks making the Government of Wales Act 2006 unwieldy and
incomprehensible".[2]
THE "FLOATING EXCEPTIONS"
6. Floating exceptions were first proposed in
the Carers LCO, on which the Committee reported in June 2009.[3]
A floating exception, unlike a fixed exception, is not pinned
to a particular Matter and appears not in Part 1 of Schedule 5
to the Government of Wales Act 2006 (which lists Fields and Matters),
but in paragraph A1 of Part 2 of that Schedule. (Part 2 originally
listed "general restrictions" to Fields and Matters
and now lists "floating exceptions" as well as "general
restrictions".) The proposed LCO contains floating exceptions
that will be listed not under Field 6 (environment), but under
Field 4 (economic development), Field 10 (highways and transport)
and Field 19 (water and flood defence). For example, in respect
of highways and transport it will insert new floating exceptions
relating to road freight, aviation and carriage of dangerous goods.
They are listed otherwise than under Field 6 not because they
do not relate to the environment but because they relate more
closely to Fields 4, 10 and 19. This usage may be considered complex
and inelegant but is understandable given that environmental concerns
are relevant to policy and legislation in many areas. The Constitution
Committee echoes the recommendation of the House of Commons Welsh
Affairs Committee that "the inclusion of floating exceptions
not directly related to the Matters encompassed by an LCO should
not become common practice".[4]
Likewise, the Constitution Committee re-emphasises that, in
the interests of effective parliamentary scrutiny, "LCOs
should avoid rolling up specific provision on a subject and 'exceptions
to matters' on a completely unrelated subject."[5]
THE "CARVE-OUTS"
7. Carve-outs add back in what an exception would
otherwise remove from the Assembly's legislative competence. Several
of the floating exceptions included within the proposed LCO contain
them. This is not wholly novel to LCOs: they were included in
the Carers' Order, but they feature more extensively and more
prominently in the proposed Environment LCO. To give some examples:
Aviation is listed as a floating exception under
Field 10 (Highways and Transport). Three carve-outs are then listed
as exceptions to this exception: the provision of financial assistance
to providers of air transport services, Government or other public
authorities' strategies about the provision of air services, and
the regulation of the use of aircraft carrying animals for the
purpose of protecting human or other health or the environment.
Similarly, under the same Field, shipping
is listed as an exception. From this there are two carve-outs:
financial assistance for shipping services, and regulations for
the purpose of protecting human or other health or the environment.
Again under the same Field, 'harbours, docks,
piers and boatslips' are listed as an exception from all Matters,
except that two areas are carved out from this exception, one
of which provides that harbours, docks, piers and boatslips "used
or required wholly or mainly for the fishing industry, for recreation,
or for communication between places in Wales" are excluded
from the exception.
8. Some use of carve-outs must be expected. As
the examples show, this will tend to be the case where an area
of policysuch as aviationis not generally devolved
but the Welsh Ministers have some limited functions within that
area or have functions in another devolved field (such as the
environment) which may affect activities in that area. However,
in reporting on the proposed LCO, the House of Commons Welsh
Affairs Committee noted that the carve-outs "add complexity
to this legislation" and, moreover, that "their exact
effect on the law in Wales is not easy to explain".[6]
The Constitution Committee endorses this view, along with the
further recommendation of the Welsh Affairs Committee that such
carve-outs should be "kept to an absolute minimum".
CLARITY, TRANSPARENCY AND ACCESSIBILITY
9. The Constitution Committee considers LCO
8, taken in the round, to be perilously close to the borderline
of what is constitutionally acceptable. A common thread is the
opaque nature of the evolving 'written constitution' that is the
Government of Wales Act 2006. To this effect, the Constitution
Committee agrees with the Welsh Affairs Committee that "LCOs
should be drafted with the aims of clarity and simplicity in mind"[7]
and, indeed, recalls that clarity and transparency in the law
are elemental to the core constitutional principle of the rule
of law. The Wales Office, it is recommended, should actively explore
ways in which the proposed Environment LCO may be simplified.
The Constitution Committee also urges the importance of user-friendly
explanations of the Assembly's evolving legislative competence,
both in the case of individual LCOs and, on a regular basis, of
Schedule 5 as a whole. The concept of an evolving 'written constitution'
for one of the four countries of the Union demands no less.
1 The proposed Order and Explanatory Memorandum are
published as Pre-legislative scrutiny of the proposed National
Assembly for Wales (Legislative Competence) (Environment) Order
2009, Cm. 7608, April 2009. The Welsh Affairs Committee of
the House of Commons has scrutinised this proposed LCO: see its
12th report for 2008-09, HC 678, July 2009. Back
2
Welsh Affairs Committee, 12th Report (2008-09) HC Paper 678,
para. 41, emphasis added. Back
3
See Constitution Committee, 13th Report (2008-09) The National
Assembly for Wales (Legislative Competence) (Social Welfare) Order
2009 (relating to Carers), HL Paper105. Back
4
Welsh Affairs Committee, 12th Report (2008-09) HC Paper 678,
para. 45. Back
5
See Constitution Committee, 13th Report (2008-09) The National
Assembly for Wales (Legislative Competence) (Social Welfare) Order
2009 (relating to Carers), HL Paper105, para. 15. Back
6
Welsh Affairs Committee, 12th Report (2008-09) HC Paper 678,
para. 48. Back
7
Ibid, para. 41. Back
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