• In just over two years, the Legislative Competence Order (LCO) process has proved to be an effective way of responding to requests by the National Assembly for Wales to be given decision-making powers—legislative competence—over new areas of policy. In what is a relatively short time in legislative terms, twelve LCOs have been dealt with by the Welsh Affairs Committee with a further three currently under consideration. The LCO process has been criticised in some quarters as being unduly complex or slow, but this is simply untrue. It is a matter of fact that the normal process of primary legislation from draft Westminster Bill to Royal Assent for fifteen new proposals would have taken considerably longer. We note that the LCO process has been swift and flexible as far as the work of the Welsh Affairs Committee is concerned, and that it now provides a bridge between Parliament and the National Assembly for Wales.
• Widespread misapprehensions and misunderstanding about the LCO process which exist in Wales can sometimes lead to a negative view of the procedure as a whole. In this Report we take the opportunity to highlight some of the strengths of the process. LCOs can be brought forward not only by the Welsh Assembly Government but also by backbench Assembly Members or by Assembly committees (an opportunity which does not exist at Westminster). Proposals for LCOs are subject to constructive scrutiny by Assembly committees and the House of Lords Constitution Committee as well as by ourselves. It is a matter of record that on every occasion so far the observations of the these committees have been constructive, complementary and consensual, and the Welsh Assembly Government has responded positively. There is no doubt that almost all the LCOs so far passed into law have been improved as a result of the scrutiny process.
• Further, as a result of our sustained involvement in the LCO process, we have been able to identify persistent difficulties that were evident in a number of early Orders, for example imprecise legal drafting or drafting that was inadequate or overly complex or sometimes both. The Welsh Assembly Government has then been able to address these issues in a systematic way. There is still a problem with some Explanatory Memoranda, which merely replicate the terms of the draft Order in language that is almost as opaque as the Order itself. That may be inevitable, given the standard advice of lawyers that simple language in such a memorandum can introduce legal doubts, but we believe that it should not be beyond the reach of language to provide in addition a simple statement of what the LCO will enable the National Assembly for Wales to do in practice without causing such complications. We have also identified some procedural problems, most notably long and unaccountable delays in the process of negotiation between the Welsh Assembly Government and the Whitehall department or departments that sometimes occurs before an Order is referred to us. This Report makes recommendations to address those issues and in future, we intend to give full scrutiny to that part of the process.
• The LCO procedure is a new process which has no precise parallel elsewhere. That creates a real challenge for all parties—in Parliament and in the Assembly, in Government and in the Welsh Assembly Government—to ensure that all our processes are robust and fit for purpose and that we make the best possible law as a result. We point out that the new system was introduced without adequate planning for the process of learning and adaptation that would be needed in order to make the new system work. However those problems have been overcome, relatively quickly, with goodwill on all sides. While there has been a need for experienced legislators to adapt to the new system, it has also been a steep learning curve for those without previous experience of draft legislation and pre-legislative scrutiny. This has necessitated a considerable strengthening of the capacity for both drafting and scrutiny in the Assembly. The number of LCOs referred to this Committee in the past year has also placed an enormous burden on our members. In this Report we make proposals to streamline the scrutiny process where feasible and to further adapt our working practices to meet these demands.
• Scrutiny carried out both here and in other places is a vital part of ensuring openness, transparency and good governance in the legislative process. It is a responsibility we take extremely seriously. We hope that this Report will make a positive and constructive contribution to that process.
• This Report makes the following key recommendations:

Role of the Welsh Affairs Committee

• Every proposed LCO should continue to undergo pre-legislative scrutiny in the House of Commons. The House of Commons must be fully informed about the implications of any decision it is asked to make on extending the legislative competence of the National Assembly for Wales by the LCO mechanism. Having said that there have been a number of instances where there has been clarity of purpose and intention from the start together with simplicity and clarity of drafting. In such cases the call for written evidence may be sufficient to identify any residual concerns on the part of interested parties and allow oral evidence to be kept to a minimum. Good examples are of this are the Red Meat LCO from the Welsh Assembly Government and the Fire Safety LCO from a backbench Assembly Member.
• We have built up expertise in pre-legislative scrutiny of LCOs over the past two years and our familiarity with the procedure is allowing us to work with greater speed and efficiency. Where possible, we will adopt an accelerated process of scrutiny for LCOs which appear to raise no significant legal or policy questions.
• Orders should be referred to the Welsh Grand Committee only when there are matters of general public concern or controversy or specific areas of concern amongst Members of Parliament. In the case of the most complex and wide-ranging Orders, the option of a debate open to all Welsh MPs has proved its worth.
• Holding a debate on the floor of the House enables any MP from anywhere in the country to comment. We therefore consider that this option should be retained, but used sparingly and only when necessary.
• The Welsh Affairs Committee should be given the power to invite any MP who is not a member of the committee to attend and ask questions during evidence sessions in respect of LCOs. This change should allow more members to be involved in the pre-legislative scrutiny process.
• It may not need saying, but for the avoidance of doubt, we wish to put on record our strong conviction about the continuing need for the work of the Welsh Affairs Select Committee and we strongly urge the House to maintain a Welsh Affairs Committee in the next Parliament both to pursue the traditional role of the committee in the context of devolution and to undertake pre-legislative scrutiny of LCOs.

Joint working with the National Assembly for Wales

• Informal meetings with Assembly Committee members are a vital part of the scrutiny of LCOs, helping to join up scrutiny in Parliament and in the Assembly.
• Extensive use of formal joint meetings to take evidence is impractical. The logistical difficulties involved hamper each committee's ability to plan its own programme of evidence in a timely manner.
• Sharing evidence and exchanging perspectives on the issues arising out of the evidence about a particular LCO has proved stimulating and constructive. The complementary roles of Assembly and Parliamentary committees, has proved an additional and constructive bonus in a variety of ways.
• The Standing Order governing formal joint meetings should be revised better to reflect practice as it has developed.

The LCO process

• There is an unacceptable lack of transparency within the Whitehall clearance process. The Wales Office should provide this Committee with a monthly update on the progress of all proposed Orders together with an explanation of any delays. In the event of this Committee being dissatisfied with progress, we intend to call ministers and officials from Whitehall departments to attend a meeting of the Committee along with a minister or official of the Wales Office in order to identify the issues that remain unresolved, and to provide transparency about the process.
• Some complexity in the law in Wales has been perceived in some quarters from the need to keep track of a range of legislative vehicles through which powers can be devolved either to the Assembly or Welsh Ministers.
• Some work remains to be done to establish a comprehensive and accessible 'Welsh statute book', which should be on-line and include a facility for public comment as well specialist comments and suggestions from professional and academic experts and lawyers. This should be combined with a more straightforward approach to the drafting of proposed Orders and Explanatory Memoranda on the part of the Wales Office and Welsh Assembly Government.
• Each LCO should be as well defined as possible and should reflect the intention that has been stated by ministers, Assembly members and MPs for each LCO to contain 'what it says on the tin'.