Introduction
Background
1. The Government of Wales Act 2006 introduced a
new procedure whereby the National Assembly for Wales can bring
forward proposals which would extend the Assembly's law-making
powers by way of Legislative Competence Orders in Council. The
Orders do not themselves change the general law for Wales - they
pave the way to subsequent changes in the law applying to Wales
within the devolved areas of legislative competence. They do this
by adding new "Matters" to the "Fields" of
legislative competence set out in Schedule 5 of the Government
of Wales Act 2006.
2. These proposals for draft Orders may be introduced
by the Welsh Assembly Government, by committees of the National
Assembly, or by individual Assembly Members.[1]
They are subject to pre-legislative scrutiny by committees of
the Assembly appointed for this purpose and, potentially, by committees
of the House of Commons and the House of Lords. Whitehall agreement
("clearance") is a necessary pre-requisite before a
proposed Order is referred by the Secretary of State for Wales
to each House at this pre-legislative scrutiny stage.
3. Following the pre-legislative scrutiny stage,
the National Assembly may agree an actual draft Order. This may
take account of committee recommendations (from either its own
committees or Westminster) following pre-legislative scrutiny.
The draft Order must then be laid before Parliament by the Secretary
of State for Wales - and he or she may still decline to do so
at this stage. If the draft Order is laid, it is considered by
both Houses of Parliament, and may be debated by them. Draft Orders
at this stage are not amendable and can only be approved or rejected.
If approved by both Houses, and once it is given the royal assent
in the Privy Council, direct law-making powers are devolved to
the Assembly within the scope of the Order in Council. The Assembly
then makes those laws in the form of Assembly Measures, which
must be passed by the National Assembly but which require no further
approval by either Whitehall or the UK Parliament.
Introduction
of the proposed Order
4. The proposed Order on charging for non-residential
social care was introduced by the Welsh Assembly Government and
laid before the Assembly by the Deputy Minister for Social Services
on 26 November 2007.[2]
5. If adopted, the proposed Order would expand Field
15 of Schedule 5 of the Government of Wales Act 2006 by adding
a new matter, Matter 15.9, which would extend the legislative
competence of the National Assembly for Wales to cover:
- charges for non-residential
social care provided by or secured by local authorities,
and
- direct payments in respect of individuals so
they, or persons looking after them,
may secure non-residential social care.[3]
6. The Secretary of State for Wales wrote to the
Chair of the Welsh Affairs Select Committee and to the Chair of
the Select Committee on the Constitution, House of Lords, inviting
these committees to undertake pre-legislative scrutiny.[4]
Both committees decided to do so.
House
of Lords Select Committee on the Constitution
7. We note that the House of Lords Select Committee
on the Constitution has examined the proposed Order, and has concluded
that it "does not raise any matters of constitutional principle".[5]
The Welsh
Affairs Committee's inquiry and joint working
8. The Secretary of State has noted that "the
issue for the Parliamentary committees … would be the appropriateness
in general of delegating legislative authority to the Assembly
on the particular policy area specified in the [proposed] Order
in Council".[6] The
purpose of this Committee's inquiry was therefore to examine the
scope and appropriateness of the proposed Order under the terms
of the Government of Wales Act 2006. We considered whether the
proposed Order is in the spirit and scope of the devolution settlement;
the extent to which there is a demand for legislation which might
follow the adoption of the proposed Order; and whether the use
of the Legislative Competence Order in Council procedure is more
appropriate in this instance than, for example, the use of framework
powers in a Westminster Bill.[7]
On 13 December 2007 we issued a press notice setting out the scope
of our inquiry and inviting written submissions from interested
parties.
- The Committee heard oral evidence from the Parliamentary
Under-Secretary of State, Wales Office, and from Wales Office
and Department of Health officials.[8]
The Committee also held a joint meeting with the Assembly Committee
which was examining the proposed Order, when evidence was given
by the Assembly Deputy Minister for Social Services and Welsh
Assembly Government officials.[9]
We followed the Assembly Committee's further deliberations closely,
and have been able to draw on the additional oral and written
evidence it has received.
On this occasion, because the proposed
Order was published and referred simultaneously to both committees
for pre-legislative scrutiny, joint working - which had eluded
us previously - proved possible. The Welsh Affairs Committee welcomes
this positive development, and anticipates that in future proposed
Orders will be published and referred to Westminster and National
Assembly committees in a sequence which allows for such joint
working. It is unfortunate that this has not proved to be the
case with some of the proposed Orders published so far, which
still await Whitehall clearance although their examination by
an Assembly committee is underway or complete.
1 By ballot. Back
2
Note: the proposed Order does not use the term 'domiciliary care'. Back
3
National Assembly for Wales (Legislative Competence) Order in
the Field of social welfare 2008, Explanatory Note (Ev 20). Back
4
Letter from the Secretary of State for Wales to the Chair of the
Welsh Affairs Select Committee, 26 November 2007 (Ev 17);
letter from the Secretary of State for Wales to the Chair of the
Select Committee on the Constitution, House of Lords, 26 November
2007 (not printed here). Back
5
Letter from Rt Hon Lord Goodland to the Secretary of State for
Wales, 22 January 2008 (not printed here) Back
6
Wales Office, Pre-legislative scrutiny of the proposed National
Assembly for Wales (Legislative Competence) Order in the Field
of social welfare, Cm 7286 (November 2007), Ministerial foreword,
p. 2 Back
7
Welsh Affairs Select Committee press notice, 13 December 2007 Back
8
Ev 10-16 Back
9
Ev 1-9 Back
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