Introduction of the proposed Order
4. If adopted, the proposed Order relating to
vulnerable children would expand field 5 (relating to education
and training), field 15 (relating to social welfare) and field
16 (relating to sport and recreation) of Schedule 5 of the Government
of Wales Act 2006 by adding new matters which would extend the
competence of the National Assembly for Wales. In its original
form, the proposed Order was laid before the Assembly by the Deputy
Minister for Social Services on 9 July 2007, with a statement
in plenary the following day.[2]
The Assembly's Business Committee had previously decided to refer
the proposed Order to an Assembly committee for pre-legislative
scrutiny, to report by 25 January.[3]
The Assembly Committee published its Report that day.[4]
5. Agreement with Whitehall departments[5]
that the proposed Order proceed having been reached, on 19 March
2008 the Secretary of State for Wales laid the proposed Order
and accompanying Explanatory Memorandum before Parliament in the
form of a Command Paper.[6]
The Secretary of State wrote to the Chair of the Welsh Affairs
Committee and to the Chair of the Select Committee on the Constitution,
House of Lords, inviting these committees to undertake pre-legislative
scrutiny.[7] Both Committees
decided to do so.
6. The process of Whitehall clearance had led
to some substantial revision of the proposed Order as first published
and laid before the Assembly; as the Deputy Minister put it, "As
a consequence of these consultations the LCO has been further
developed".[8] Effectively,
this meant that the Assembly Committee had undertaken considerable
work in scrutinising and reporting on a very different proposed
Order to that which was referred to the Welsh Affairs Committee.
It also substantially reduced opportunities for formal joint working
between the two committees, something which each committee decides
on a case-by-case basis. On this occasion we decided not to conduct
formal joint working, as the Assembly Committee had completed
its investigations and published its Report - almost two months
before the revised proposed Order was referred to us.
7. The proposed Order in its revised form has
therefore not been scrutinised by the Assembly Committee as that
Committee acknowledged in a second Report, published on 13 May:
We note that the revised proposed Order has been
amended substantially and that, as such, there are many areas
we have not been able to scrutinise and report on … [9]
The Deputy Minister also noted, in a letter to the
Chair of the Assembly Committee:
… the pre-legislative scrutiny process on this
LCO has necessitated a singular approach and as a result it has
not been possible to have simultaneous or joint scrutiny by the
Assembly's Committee and the Welsh Affairs Committee. … this
is not ideal[10]
8. This unsatisfactory situation could have been
avoided had the proposed Order first been cleared with Whitehall
departments before being published, and if it had been laid simultaneously
before the Assembly and before Parliament. This would also have
helped facilitate complementary working by the two committees.
As the Deputy Minister acknowledged in evidence to us:
It is my personal view that if there is agreement
before the scrutiny process commences, then that facilitates the
process.[11]
In our view, this underplays the extent of disruption
which pre-clearance publication of a proposed Order and its referral
to an Assembly committee causes to the process as it was anticipated
to work. We welcome the Parliamentary Under-Secretary of State's
comment to us that:
… one of the things we are coming to be aware
of is that it would be better if through all the various partners
… we bring forward these Orders in a way that is planned
and programmed in order that there can be effective scrutiny,
… certainly more simultaneous scrutiny so that we end up
at the same points at certain milestones on the path …[12]
9. We
do not believe that the process for the scrutiny of this proposed
Order has been satisfactory, or that it has worked as intended.
We would again urge the Welsh Assembly Government to synchronise
the publication and referral of a proposed Order to an Assembly
Committee with its referral to Parliament by the Secretary of
State.[13]
Failure to do so represents the single biggest obstacle to the
effective scrutiny of proposed Orders and, coming as it does at
the very beginning of the process, it adversely affects all subsequent
arrangements.
The Welsh Affairs Committee's
inquiry
10. The purpose of this Committee's inquiry was
to examine the scope and appropriateness of the proposed Order
under 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.[14]
On 3 April 2008 we issued a press notice setting out the scope
of our inquiry and inviting written submissions from interested
parties.
11. The Committee heard oral evidence from the
Parliamentary Under-Secretary of State, Wales Office, and from
officials of the Wales Office and the Department for Children,
Families and Schools. We also heard evidence from the Deputy Children's
Commissioner for Wales, and received a number of written submissions.
1 By ballot. Back
2
The National Assembly for Wales (Legislative Competence) (social
welfare and other fields) Order 2008; Legislative Statement
by the Deputy Minister for Social Services to the National Assembly
for Wales, 10 July 2007 Back
3
National Assembly for Wales Business Committee, 3 July 2007 Back
4
Report by the Proposed Vulnerable Children LCO Committee, National
Assembly for Wales, 25 January 2008 Back
5
See para 2 Back
6
Cm 7343 Back
7
Letter from the Secretary of State for Wales to the Chair of the
Welsh Affairs Committee, 19 March 2008 (Ev 19); letter from the
Secretary of State for Wales to the Chair of the Select Committee
on the Constitution, House of Lords, 19 March 2008 (not printed
here). Back
8
Letter of 18 March 2008 from the Deputy Minister to the Chair
of the Assembly Committee (not printed here); Ev 37-38 Back
9
2nd Report of the Proposed Vulnerable Children LCO
Committee, 13 May 2008, para 6 Back
10
Letter of 18 March 2008 from Gwenda Thomas AM, Deputy Minister
for Social Services, to Karen Sinclair AM, Chair of the Assembly
Committee (not printed here) Back
11
Q 55 Back
12
Q 101 Back
13
2nd Report by the Welsh Affairs Committee, The proposed
Legislative Competence Order in Council on additional learning
needs (HC 44, Session 2007-08), conclusions 1-3 Back
14
Welsh Affairs Committee press notice, 3 April 2008 (Ev 19-20) Back
