1. It is now just over two years since the Legislative Competence Order in Council (LCO) procedure was introduced as a mechanism for the National Assembly for Wales to bring forward proposals to extend its lawmaking powers.[1] The Welsh Affairs Committee has completed pre-legislative scrutiny of twelve proposed Orders during this time, with three further LCOs currently under consideration. 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, we have dealt with fifteen LCOs.

2. 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 not only have taken considerably longer, but would have been subject to uncertainty and the likelihood of further unpredictable delays, as well as the potential for changes by either or both chambers of Parliament over which neither the Welsh Assembly Government nor the Assembly as a whole would have had any say whatsoever. In contrast, the LCO process allows the Assembly Minister and the Assembly as a whole to consider the findings and suggestions made by the Welsh Affairs Select Committee before deciding the form of the proposal that comes forward for the making of the substantive Order in Council. This means that Assembly Members and Ministers are engaged in a collaborative process with this Committee, which is made up almost entirely of Welsh MPs, and that elected representatives from Wales in the Assembly and at Westminster have played complementary roles which have been constructive and led to improved legislation, most significantly in respect of the Welsh Language LCO. The evidence is therefore clear that the LCO process has been swift and flexible as far as the work of the Welsh Affairs Committee is concerned and has provided a bridge between Parliament and the National Assembly for Wales.

3. Widespread misapprehensions and misunderstanding about the LCO process which exist in Wales can sometimes lead to a negative view of the process as a whole. In this Report, we take the opportunity to highlight some of the strengths of the process. We set out our experience and make recommendations for adjustments to the system in future, to ensure that it operates smoothly. As with any new process, some initial problems arose due to a lack of familiarity with the system and as more Orders have come forward, some of these difficulties have been resolved without the need for further intervention. However, we also consider that a number of improvements could be made to the process itself.

4. In particular, as a result of our sustained involvement in the LCO process, we have been able to identify persistent difficulties that ran through a number of proposed Orders, which the Welsh Assembly Government has then been able to address in a systematic way. 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.

5. 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.

6. 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.

Previous reviews

7. This is not the first time we have given consideration to the LCO process. In June 2007, when the procedure was first introduced, we published a Report looking ahead at what pre-legislative scrutiny of proposed Orders might entail.[2] In that Report, we commented on the implementation of arrangements for scrutiny:

We fully support the presumption that draft Orders will be subject to pre-legislative scrutiny. However, we have some concerns for the implications this may have for our own timetable and express our reservations should the annual number of proposed Legislative Competence Orders exceed what we judge to be "manageable". Should this be the case, we see merit in the appointment by the House of Commons of ad hoc committees set up specifically for the purpose of examining a proposed Legislative Competence Order, as is to be the case in the National Assembly. In addition, we believe there is a role for the Welsh Grand Committee in scrutinising particularly complex or contentious draft Legislative Competence Orders.

8. One year after the implementation of the LCO procedure, the then Secretary of State for Wales, Rt Hon Paul Murphy MP, conducted a review of the process, to which we submitted a memorandum based on our experiences over the previous twelve months. We recommended that:

...the select committee is the most effective option for the pre-legislative scrutiny of LCOs. It allows for a thorough evidence-gathering process during which witnesses, including Welsh Assembly Government and UK Ministers, can be questioned regarding the detail and scope of a proposed Order. Recommendations can be made to the UK Government which have been agreed by the Committee. The Committee (and others) can follow up such recommendations more effectively than points raised during the course of a short debate can be.

We recommend that pre-legislative scrutiny of LCOs at Westminster continues to follow the rigorous, evidence-gathering process of the select committee. We strongly recommend that all proposed Orders continue to be referred to the Welsh Affairs Committee for pre-legislative scrutiny. Making this the standard process will help with the orderly and adequate allocation of time and resources. [...] In the light of experience to date, the Committee has made a case to the House authorities for the necessary staff resources to properly support the Committee's work on LCOs without draining resources from the traditional roles of the Committee.[3]

9. In his response, the Secretary of State concurred that no change to current arrangements was necessary:

I agree with your Committee's conclusion that it should continue to conduct PLS [pre-legislative scrutiny]. I am mindful of comments people had made about the burdens on your Committee and potential distractions from other core tasks. I considered options such as creating ad hoc committees or a new permanent committee, but conclude, as did your Committee, that the merits of the Welsh Affairs Select Committee continuing with scrutiny of Orders outweigh those of any alternative options. Your Committee has done a very effective job of scrutinising Orders in Council to date, building up a considerable degree of experience and expertise. To end the Welsh Affairs Select Committee's involvement and create ad hoc committees each time an Order was referred to Parliament would deny the process that expertise.[4]

10. Our memorandum to the Secretary of State also recommended that there should be a further review of LCOs after two years of operation. Whilst it was appropriate for the Minister to conduct the first of these reviews, we have now accumulated significant experience in the pre-legislative scrutiny of proposed Orders. In the light of two years' experience, it is easier to distinguish between problems that were largely due to unfamiliarity with a new system, and improvements we believe could be made to the process itself. We have the expertise necessary to conduct our own review on this occasion and it is undoubtedly better for this to be independent of Government. We are pleased to note that the Secretary of State has welcomed our review.[5]

2   Welsh Affairs Committee, Second Report of Session 2006-07, Legislative Competence Orders in Council, HC (2006-07) 175 Back

3   Review by the Secretary of State of the procedure for Legislative Competence Orders in Council, Memorandum by the Welsh Affairs Select Committee, paragraphs 6-8. Back

4   Letter to the Chairman from Paul Murphy, July 2008 [not printed]. Back

5   Wales Office Annual Report 2009, Oral Evidence given by Rt Hon Peter Hain MP, Secretary of State, Wales Office on 27 October 2009, HC (2008-09) 1075-I, Q 16. Back