House of Commons - Review of the LCO Process

Review of the LCO Process - Welsh Affairs Committee Contents

2 Role of the Welsh Affairs Committee

Pre-legislative scrutiny role

11. The Welsh Affairs Committee is responsible for undertaking pre-legislative scrutiny of each LCO laid before the House of Commons. The process we have followed in dealing with proposed Orders is to issue a call for written evidence and to hold one or more oral evidence sessions, leading to a Report and recommendations. Our Reports advise the House of the implications of any decision it is asked to make on extending the legislative competence of the National Assembly for Wales. Pre-legislative scrutiny also takes place in the Assembly (where it is now undertaken by one of five permanent Legislation Committees) and in the House of Lords by the Constitution Committee.

12. In a recent memorandum to the All Wales Convention, the Chairman of the Committee described our role as follows:

Our role within the pre-legislative scrutiny process is to test the provisions of the proposed Order against the evidence that is given to us.

13. LCOs are now a regular part of our programme, but our pre-existing task of scrutinising Government policy as it affects Wales continues alongside this role. We are committed to continuing this important work. In the past two years we have been engaged in an investigation of cross-border public services looking at the provision of further and higher education, healthcare and transport links for those living near or travelling across the border between Wales and England. We have also completed a number of other inquiries, including those on digital inclusion, ports, broadcasting, the 2012 Olympics and Paralympics, globalisation, and the proposed closure of the Legal Services Commission's Cardiff office, publishing a total of eleven reports[7] on policy matters in the 2008-09 and 2007-08 sessions, compared to nine on LCOs. We therefore estimate that the additional task of conducting pre-legislative scrutiny of LCOs has almost doubled the workload of the Committee for its members.

14. Pre-legislative scrutiny by this Committee is only one part of the process through which a proposed Order must progress before receiving Royal Assent. LCOs are originated in the National Assembly for Wales by the Welsh Assembly Government, an Assembly Committee or an individual backbench AM. The text of an Order is then subject to negotiation with UK government departments (a process which has become known as 'Whitehall clearance') before being finalised and laid before Parliament. It is at this point that the proposed Order is referred to us for scrutiny. After all the scrutiny committees have reported, the proposed Order may be modified as a result of their recommendations—a process which may entail further negotiation and agreement between the Wales Office, other Whitehall departments and the Welsh Assembly Government. A final draft Order is then laid before Parliament and the Assembly for debate and approval.

15. There are a number of optional stages through which an Order can pass if it is deemed to be of sufficient significance. Recently, our Report on the Welsh Language LCO was debated in the Welsh Grand Committee. This was the first debate on a proposed Order to be held in the Grand Committee and it provided the opportunity for all Welsh MPs to make contributions on this important step for the people of Wales. It also enhanced the understanding of the LCO process amongst MPs, and of the positive changes that the LCO will bring about in Wales. We therefore consider it a positive addition to the scrutiny process in this case. We do not believe that all proposed Orders should be referred to the Welsh Grand Committee, but 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.

16. After the pre-legislative scrutiny phase, a final draft Order is laid before the House for approval. This is normally debated in a Delegated Legislation Committee whose membership is drawn from across the House. Nominations to Delegated Legislation Committees are arranged by the party whips, but our members have often served on committees relating to draft LCOs and have been able to contribute significantly through their familiarity with an Order and their knowledge of issues raised in the course of pre-legislative scrutiny. There is a clear advantage in nominating members of the Welsh Affairs Committee to serve on Delegated Legislation Committees in relation to draft LCOs.

17. The Welsh Language LCO is also the only draft Order so far to have been debated on the floor of the House rather than in a Delegated Legislation Committee. Although the controversy surrounding the original proposal for this particular Order was allayed by the pre-legislative scrutiny process, allowing debate in the Welsh Grand Committee may be necessary if an LCO is particularly controversial or has implications for specific constituencies and localities. Holding a debate on the floor of the House enables any MP from anywhere in the country to comment. We therefore consider that these options should be retained, but used sparingly and only when necessary.

Timing

18. Since the inception of the LCO process, attention in some quarters has focused on the time a proposed Order takes from its proposal in the Assembly to becoming law through approval in the Privy Council. The system has been subject to criticism for being too lengthy and some have alleged that this Committee has been the cause of additional delay. In comparison with the process for taking a Bill through Parliament, we do not believe that the LCO process can be viewed as particularly slow. A table giving details of our scrutiny of proposed Orders appears in an Annex to this Report. In addition, Table 1 below provides an overview of the time taken by pre-legislative scrutiny compared to other phases, for example, the time from the announcement of a proposed LCO by the relevant Welsh Assembly Government Minister (or, for Orders proposed by backbench AMs, when the Assembly grants leave to proceed with the proposal) to its referral to this Committee.

Table 1: Scrutiny of proposed LCOs

Key: + Private member's LCO (date when Assembly grants leave)

Draft Order Announcement of LCO Received by Welsh Affairs Committee[8] Report published Time taken by Assembly
Committee[9]

Additional learning needs 6 June 2007 26 July 2007
(7 weeks later)
21 December 2007
(10 sitting weeks)
4 July 2007 to 28 Nov 2007
(12 sitting weeks)

Social welfare (non-residential social care) 6 June 2007 26 November 2007
(25 Weeks later)
5 March 2008
(11 sitting weeks)
5 December 2007 to 14 March 2008
(9 sitting weeks)

Social welfare and other fields (vulnerable children) 6 June 2007
19 March 2008
(41 weeks later)
26 June 2008
(11 sitting weeks)
4 July 2007 to 25 January 2008
(16 sitting weeks)
8 April to 14 May
(5 weeks)

Affordable housing 6 June 2007
13 May 2008
(49 weeks later)
14 October 2008
(11 sitting weeks)
12 December 2007 to 18 April 2008
(10 sitting weeks)

Red meat industry 15 July 2008 6 October 2008
(12 weeks later)
23 February 2009
(16 sitting weeks)
22 September to 10 December 2008
(10 sitting weeks)

Carers[10] 20 February 2008+ 8 December 2008
(42 weeks later)
28 April 2009
(14 sitting weeks)
8 December 2008 to 2 April 2009
(14 sitting weeks)

Welsh language 6 June 2007 9 February 2009
(88 weeks later)
7 July 2009
(17 sitting weeks)
2 February 2009 to 5 June 2009
(13 sitting weeks)

Environment 6 June 2007
27 April 2009
(99 weeks later)

28 July 2009
(12 sitting weeks)
4 July 2007 to 29 November 2007
(12 sitting weeks)
Then 19 May 2009 to 29 June 2009
(5 sitting weeks)

Mental health 17 October 2007+ 21 May 2009
(83 weeks later)
30 October 2009
(11 sitting weeks)
26 February 2008 to 20 June 2008
(13 sitting weeks)

Culture and other fields 15 July 2008 1 July 2009
(50 weeks later)
7 December 2009
(11 sitting weeks)
15 June 2009 to 6 November 2009
(11 sitting weeks)

Local government 14 July 2009
14 July 2009 12 January 2010 (15 sitting weeks) 16 July 2009 to 4 December 2009
(10 sitting weeks)

Housing (fire sprinklers) 10 October 2007+ 13 October 2009
(104 weeks later)
18 December 2009
(8 sitting weeks)
26 February 2008 to 11 June 2008
(11 sitting weeks)

Education (school governance) 19 October 2009 23 October 2009
(1 week later)
tbc 19 October 2009 to tbc

Transport (learner transport safety and concessionary fares) 14 July 2009 14 December 2009
(22 weeks later)
tbc 10 December 2009 to tbc

19. We have always approached proposed Orders on a case-by-case basis, adjusting the number of evidence sessions we hold in the course of an inquiry to the potential impact, complexity and quality of drafting of the Order in question. For example, the recent proposed Orders on Culture and Carers were dealt with in a single session with Ministers. In contrast, the proposed Welsh Language LCO required much more in-depth scrutiny and we held four sessions with a wide range of bodies whose views had a bearing on the proposed Order.

20. Other factors also affect the programme of evidence for committees both here and in the Assembly, for example, the dates of recesses and the availability of Ministers, who may have many competing priorities, to appear to give evidence before us. Overall, however, we believe that the speed of the parliamentary process is increasing. We have worked hard to examine proposed Orders in a timely manner that is compatible with proper and thorough scrutiny. We expect to continue to increase our pace as all parties become more familiar with the process—this should mean that we receive better drafted Orders in the first place and that fewer problems emerge during the scrutiny process.

21. It remains the case that we can only have limited influence over the speed with which proposed Orders progress through the system. For those LCOs which have taken the longest time to proceed from their announcement in the Assembly to approval in Parliament, the main factor by a significant margin is the time taken up by negotiations between the UK and Welsh Assembly Governments to agree on a text. Proposed Orders are not referred to us until this has occurred and the delay represented by Whitehall clearance can be significant (amounting to almost two years in the case of the Environment LCO for example).

CASE STUDY 1: MEMBER-PROPOSED LCOS

22. We have so far considered two LCOs proposed by individual backbench AMs. The proposed National Assembly for Wales (Legislative Competence) (Housing) Order 2009, relating to fire sprinklers and proposed by Ann Jones AM was the second of these, even though Ms Jones was successful in the first ballot permitting Assembly members to bring forward proposed Orders in Council, which took place on 26 June 2007. On 10 October 2007 the National Assembly for Wales granted permission for her to lay a proposed Order and an Explanatory Memorandum. Despite this, Jonathan Morgan AM, the second member to win such a ballot, overtook her in the LCO process. In our oral evidence session, we asked Ann Jones what factors had caused a delay in her case. She explained that there had been a hiatus whilst the possibility of achieving the aims of her proposal through devolution of building regulations was investigated:

23. The negotiations concerning building regulations which took place between the Welsh Assembly Government and Whitehall were complex. Mr Francois Samuel, Department for Housing, Sustainability and the Environment, told us that in contrast, the proposed Order was relatively simple: "the drafting itself and the comments and scrutiny did not take long. It was because it was caught up, if you want, in what we saw as the bigger picture of the building regulations and our discussions with government that there were delays to the process".[12] Jane Davidson AM, Minister for Housing, Sustainability and the Environment in the Welsh Assembly Government, added:

24. There was a delay of at over a year before the LCO relating to domestic fire safety was passed to Westminster for scrutiny. We were told that the delay arose because the Welsh Assembly Government thought it would be tidier to use primary legislation to amend the Assembly's powers in respect of building regulations. While this approach may have been intended to achieve coherence between primary legislation and devolved powers, and consistency for the UK as a whole, there are occasions where waiting for primary legislation can cause needless delay. Our view is that the delay in this case was needless and the LCO process should have been used more quickly by the Welsh Assembly Government. Reconciliation of that power with building regulations could have been achieved through legislation in due course, but the power would have been in the hands of the Assembly a year earlier. We consider that the delay in respect of the Fire Sprinklers LCO was highly unsatisfactory and that it was clear that a Legislative Competence Order would achieve the desired outcome much earlier than any amendment to building regulations, once devolved. The Committee hopes that lessons can be learned from the unnecessary delays caused in bringing this proposed Order forward.

25. When questioned on this point, Ms Davidson thought that matters had improved over time:

26. Ann Jones told the Committee that last year 20 deaths and £128 million in damages were caused by fires in Wales and that this could have been avoided by universal installation of sprinkler systems.[15] Despite the delay, she expressed her support for the LCO process in general:

27. In October 2007, Jonathan Morgan AM was successful in the ballot for the opportunity to introduce a proposal to add to the legislative competence of the National Assembly. Following a debate in plenary session the National Assembly for Wales granted leave to introduce a proposed Order about and in connection with mental health. The proposed National Assembly for Wales (Legislative Competence) (No. 6) Order 2008 (Relating to Provision of Mental Health Services) was laid before the Assembly on in February 2008 and was subject to pre-legislative scrutiny in the Assembly. The Assembly Committee issued a call for written evidence and subsequently held six evidence sessions and published its report in June 2008, recommending a number of changes to the drafting of the proposed Order.

28. The revised proposed Order was laid before Parliament and referred to the Welsh Affairs Committee for pre-legislative scrutiny almost a year later, in May 2009. It was the first backbench LCO to reach this stage and we asked Jonathan Morgan for his reflections on the process. Mr Morgan spoke of the importance of pre-legislative scrutiny and the principle of accountability:

29. However, Mr Morgan expressed some frustration about the time the process had taken and the delay in receiving Whitehall clearance, despite having secured all-party support for his proposal:

In our Report on the draft Order, we applauded the level of co-operation between Mr Morgan who sponsored the proposed LCO, the Welsh Assembly Government, and the Wales Office, which had allowed the proposal to be referred to us, but we note with regret the length of time involved in reaching this stage.

Future scrutiny of proposed Orders

30. The LCO process has become more efficient and focused as all parties have acquired familiarity with the procedure over the past two years. It is important that scrutiny committees, both in the Assembly in Parliament, give adequate time to each LCO and should not be under pressure to rush through the process. Nevertheless, we do not believe that every LCO needs the same level of scrutiny. We have already found that our experience with the process has allowed us to deal quickly with the most straightforward LCOs, such as the LCO relating to domestic fire safety. In contrast, other LCOs have benefited from greater scrutiny and wider discussion which has in every case been constructive across all four parties. This section of our review sets out our plans to adopt an accelerated process with those LCOs that appear to raise no significant legal or policy questions, while ensuring that there is an opportunity for those who would be affected by such an LCO to alert us to any potential issues or possible unintended consequences.

REFERRAL

31. At present, the Secretary of State for Wales writes to the Chairman of the Welsh Affairs Committee when he lays a proposed Order before the House, inviting us to undertake pre-legislative scrutiny. Over the past two years, there has never been an occasion when a proposed LCO has not been referred to the Committee or when the Committee has declined to undertake scrutiny. We find it highly doubtful that such a situation would arise. We therefore consider that there should be a standing assumption that proposed Orders will be scrutinised by the Welsh Affairs Committee once they have been laid before the House, without the need for the Secretary of State to specifically refer each Order to us. For clarity, and depending on any other changes which may be made, this could be specified in a Standing Order. In addition, the Secretary of State should be required to provide notification in writing to this committee as soon as an LCO is submitted to the Wales Office, in order to enable us to undertake scrutiny of the process in Whitehall and prepare the ground for our own scrutiny to follow quickly when that is complete.

EVIDENCE TAKING

32. To date, we have announced an inquiry for each proposed Order that has been referred to us. Each inquiry has begun with a public call for written evidence, followed by at least one oral evidence session and a report. This practice is similar to that followed by Assembly scrutiny committees, although in general we have held fewer evidence sessions and have been able to draw on evidence taken in the Assembly to avoid duplication.

33. We believe that every proposed LCO should continue to undergo pre-legislative scrutiny in the House of Commons. The value of such scrutiny has been proved in the case of successive LCOs, where we have been able to highlight problems at an early stage and ensure that they are resolved before the proposal becomes law. We believe that the inquiry structure outlined above provides an appropriate default model for pre-legislative scrutiny of LCOs. However, in the light of experience, we feel that alterations could be made to established practice, for example in the case of very narrow and non-controversial LCOs, without risking the integrity of the process.

34. We consider it important that we continue to issue a public call for written submissions when we receive a proposed Order and that we allow interested parties a reasonable time to respond. This enables campaign and interest groups, as well as members of the public, to express their views on a proposal and helps to ensure that any potential problems with an Order are brought to our attention swiftly.

35. We will normally wish to take oral evidence in connection with a proposed Order. The number of evidence sessions needed for each Order will vary and we will continue to make decisions on a case-by-case basis. However, we would normally expect to hear from Welsh Assembly Government and Wales Office Ministers, as well as the sponsoring Assembly Member, in the case of private members' LCOs. It is important that Ministers should be accountable for the legislation they propose to introduce. The evidence we have received from Ministers both in the Wales Office and Welsh Assembly Government over the past two years has in almost all cases been excellent and has ensured that any confusion arising from technical drafting points can be eliminated.

36. We consider that an accelerated process of scrutiny could be implemented for LCOs which appear to raise no significant legal or policy questions. For example, if a public call for evidence supported by our own research identified no significant matters of concern, an inquiry could exceptionally be completed via an exchange of letters with Ministers, rather than an evidence session. We consider that this accelerated procedure would be appropriate for proposed Orders similar in scope to the LCO on the red meat industry, which we considered earlier this year. We intend to adopt this approach and would recommend it to our successor committee in the next Parliament.

37. We agree that we must give prompt consideration to LCOs which are referred to us for scrutiny to avoid needless delay. By implementing the measures outlined above, we hope that we may we may be able to process less complex LCOs more efficiently. It remains the case, however, that some LCOs will raise issues of broad importance to the people of Wales or may be of some legal complexity (the recent Welsh Language LCO is an example in both categories). Proposed Orders should receive proper scrutiny via a sustained inquiry and the House of Commons should 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. We would also note that any increase in the speed in which we deal with LCOs will not necessarily have a direct impact on the overall timetable for an LCO—this is dependent on many other factors outside our control, such as the timetables of scrutiny committees in the Assembly and the House of Lords and the need for re-drafting and further negotiation between the UK and Welsh Assembly Governments after the pre-legislative scrutiny process is complete.

EVIDENCE TAKEN BY ASSEMBLY COMMITTEES

38. Proposed Orders are now scrutinised in the Assembly by one of five permanent legislation committees, which have established a pattern of holding several evidence sessions with key stakeholders in the relevant policy area. These evidence sessions often resolve many of the outstanding issues with a particular LCO. To avoid duplication of effort, we can draw on evidence taken in the Assembly rather than holding similar evidence sessions with the same witnesses. This might mean that the number of oral evidence sessions at Westminster could generally be reduced to a single session with Welsh Assembly Government and Wales Office Ministers (indeed, this has been the case for the recent Culture LCO and Local Government LCO). We intend to adopt this approach where possible and would recommend it to our successor committee in the next Parliament.

39. We can feel confident in drawing on the evidence taken in the Assembly due to the strong links we have established with our counterparts in Cardiff Bay. For all recent LCOs, we have taken part in informal joint meetings with the relevant Assembly committee and we have found that the sharing of information and perspectives an invaluable addition to the scrutiny process. We place great importance on the continuation of this excellent relationship in future, which should allow both sides to work in an increasingly complementary way.

WORKLOAD

40. It was originally envisaged that proposed Orders coming forward for scrutiny would be evenly spaced throughout the year.[19] This ambition has not been realised. In practice, the number of LCOs proposed by the Assembly is heavily influenced by its electoral cycle. Clearly, the Welsh Assembly Government wishes to make Measures under the competence granted by LCOs and in order to do this, it needs to allow time towards the end of a cycle for the Assembly to pass this legislation. Most of the Assembly Government proposed Orders this year have been brought forward with the intention that Measures will be made next year before the end of the current Assembly in May 2011. Shortly before going to press, we were dealing with four LCOs simultaneously. Although we had originally planned to complete work on each LCO we received before starting on the next, this has not proved possible. In contrast, as we approach Assembly elections, it is likely that fewer LCOs will come forward, since there will not be time to make Measures flowing from them in the present Assembly term.

41. In our memorandum to the previous Secretary of State's review, we noted the impact of pre-legislative scrutiny of LCOs on our programme and reported that we had "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".[20] Since that time, our workload has increased still further, but this has not yet been matched in staff resources. Given the current difficulty in predicting when proposed Orders will come to us and the variation in numbers according to the Assembly's electoral cycle, it may be more efficient to employ these additional resources on a flexible staffing model.

Arrangements after the next General Election

42. Whichever party is returned to government, the General Election forms a natural break in the parliamentary calendar and is often used as an opportunity to revise Committee structures. We therefore consider in this review whether a Welsh Affairs Committee established in the next Parliament should retain the pre-legislative scrutiny role we have carried out over the past two years.

43. Depending on the date of the election, some proposed Orders may complete the pre-legislative scrutiny process but may not be finally approved by Parliament before dissolution. Those Orders will be a matter for the new Parliament to consider, but we would not expect our successor Committee to feel it necessary to repeat the pre-legislative scrutiny process in cases where we have already reported on a proposal. This would be a needless duplication of effort.

THE STATUS QUO

44. There are a number of advantages in retaining the current arrangements for pre-legislative scrutiny. The Welsh Affairs Committee is a representative body of the democratically elected representatives of Wales in Parliament, and as such is appropriate to this task. We can apply relevant knowledge and expertise from other inquiries, which form part of our wider scrutiny role, to our work on LCOs. This enables us to deploy a wider perspective and to identify potential problems which might be overlooked by a committee with a narrower focus. 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 increasingly efficiently. Although there is normally some turnover in committee membership after a general election, transferring responsibility to an entirely different body might result in a significant efficiency loss.

45. In contrast, we have identified some disadvantages in continuing in our current role. Scrutiny of LCOs is taking up an increasing proportion of the Committee's programme of work. There has been a strain on the resources of members and staff at the expense of other inquiries which we consider to be just as important to the people of Wales. Finally, by limiting participation in pre-legislative scrutiny to members of the Welsh Affairs Committee, Welsh MPs who are not members of the Committee are excluded from the pre-legislative scrutiny process. Indeed, English Members of Parliament representing constituencies bordering Wales may also have a valuable contribution to make where issues of cross-border co-ordination are raised.

OPTIONS FOR CHANGE

Ad hoc committees

46. In the new Parliament, scrutiny of LCOs could be given to a series of ad hoc committees nominated as and when each separate proposed Order is referred to the House. However, a decision would need to be taken as to whether membership of the committees was restricted to Members of Parliament representing Welsh constituencies. If membership of any new committee(s) were restricted either exclusively or overwhelmingly to Welsh Members of Parliament, this might in practice duplicate the membership of the Welsh Affairs Select Committee. The objective of including more Members in the pre-legislative scrutiny process might not therefore be realised. It might be difficult for ad hoc committees set up to consider individual LCOs to develop consistent working practices and, with a changing membership, such committees would not be able to build up technical expertise. They might also find it difficult to maintain the close working relationship we have developed with our counterparts in the National Assembly, which has itself moved away from ad hoc committees on LCOs and now refers proposed Orders to one of five permanent legislation committees. For these reasons, we do not recommend that pre-legislative scrutiny of LCOs should be undertaken by ad hoc committees, established only to consider a single proposed Order.

A permanent LCO committee

47. An entirely new select committee could be created at the beginning of the new Parliament specifically for the purpose of conducting pre-legislative scrutiny of LCOs. In practice, however, the House may not be persuaded that the creation of an entirely new select committee is a proportionate response to the irregular need for scrutiny of proposed Orders. Whilst a relatively high number of LCOs has been laid before the House this year, that number is likely to decrease sharply next year and, in Assembly election years, a permanent LCO committee might find itself with very little business indeed. Many current Members of Parliament have already stated, in regard to proposals for the creation of other new select committees, that further expansion of the select committee system risks placing unreasonable demands on the resources of the House in terms of members' time, staff, accommodation and budgets.[21]

Sub-committees

48. As an alternative to ad hoc committees, or a new permanent committee, we considered the option of establishing a permanent Welsh Affairs Committee Sub-committee on LCOs. At present our Committee, in common with all departmental sub-committees, has the ability under Standing Order No. 152 to create one sub-committee on a subject of its choosing.[22]

49. Our committee has 11 members and any permanent sub-committee to deal with LCOs might comprise 5 or 6 of these. In practice, not all members are able to attend all meetings. It may be that a smaller number of core members would continue to take on most of the work in both pre-legislative and policy inquiries, meaning that the creation of a sub-committee would have little practical effect. Some departmental select committees have 14 members. While in theory this might allow more members to take part in proceedings, committees with a larger membership have not generally been found by members of the Liaison Committee to be more effective than smaller committees.

50. We have already experimented with informal sub-committees in our scrutiny of the Environment and Mental Health LCOs. These two proposed Orders were referred to us simultaneously. In order to work more efficiently, some of us decided to focus our attention on one or other of these LCOs, although it was open to all members to attend all sessions if they so chose. We also resolved that a member of the Committee other than the regular Chairman would chair the evidence sessions relating to each of these inquiries, whilst our Chairman continued to chair sessions not related to LCOs. The final Reports relating to these inquiries were considered by the whole Committee. We found the informal division of labour we employed in regard to the Environment and Mental Health LCOs an effective way of dealing with a heavy programme of evidence.

51. We note that the option of creating two formal sub-committees to deal with the two proposed Orders was not available to us as under Standing Order No. 152 we are only able to establish one sub-committee at a time. The informal division of labour we employed has the advantage of flexibility over sub-committees with a fixed membership, however, it may be that a future committee would wish to take a different approach. We would therefore support a change to Standing Order 152 to allow departmental select committees to establish more than one sub-committee simultaneously. This may also benefit other select committees and we suggest that the Procedure Committee might wish to consider this matter more widely.

Invitation of other MPs

52. We have commented above on the potential benefits of including more Members of Parliament in pre-legislative scrutiny of LCOs (including Welsh Members who are not members of the Committee; English members representing bordering constituencies; or Members from any part of the UK with an interest in the relevant policy area). The Regulatory Reform Committee of the House of Commons has the power to invite other Members of Parliament to attend evidence sessions and question witnesses, but not to vote or count towards the quorum and this power has recently been extended to committees considering proposed National Policy Statements laid before the House under the Planning Act 2008 (a new procedure with some similarities to the LCO process). It would be possible to give a future Welsh Affairs Committee, or an LCO scrutiny committee, powers similar to the Regulatory Reform Committee under Standing Order No. 141 (13):

The committee and the sub-committee shall have power to invite Members of the House who are not members of the committee to attend meetings at which witnesses are being examined in relation to matters within paragraphs (1)(i) to (iii) and such Members may, at the discretion of the chairman, ask questions of those witnesses; but no Member not being a member of the committee shall otherwise take part in the proceedings of the committee or sub-committee, or be counted in the quorum.

Welsh Grand Committee

53. Another way in which more Welsh Members of Parliament can be involved in scrutiny of proposed Orders is through debates in the Welsh Grand Committee. As we commented earlier in this review, we believe that the Welsh Grand Committee is a useful addition to pre-legislative scrutiny of the most complex and wide-ranging Orders. We do not consider that it would be appropriate for every proposed Order, however, and as such its potential as a way of increasing involvement in the pre-legislative scrutiny process for Welsh Members of Parliament who are not members of the Committee is limited.

Recommendations

54. 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.

55. The Welsh Affairs Committee should retain responsibility for pre-legislative scrutiny of proposed Orders. There are procedural changes which would enable the process to operate more smoothly in future. Some of these require changes to Standing Orders and the new Parliament might provide the opportunity for these to be made and for other committees to revise their working practices at the same time should they so wish.

56. We recommend that, from the new Parliament, the Welsh Affairs Committee 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. The attendance of other Members would be at the invitation of the Committee, which is best placed to decide whether their participation would be of value in the context of any given inquiry. As a consequence, we do not recommend any change to the current size of the Committee.

57. We recommend that consideration be given to revising Standing Order 152 to allow departmental select committees to establish more than one sub-committee simultaneously. We suggest that the Procedure Committee might wish to consider this matter in the first instance.

6 http://wales.gov.uk/docs/awc/publications/090730wacen.doc Back

7 Including one interim report on cross-border healthcare. Back

8 Time elapsed from announcement of LCO is shown in calendar weeks. Back

9 Measured from referral by Business Committee to laying of report Back

10 This proposed Order was later split into two separate LCOs, one on carers and one on exceptions to Matters. Back

11 HC (2009-10) 142, Q 44 Back

12 HC (2009-10) 142, Q 53 Back

13 HC (2009-10) 142, Q 56 Back

14 HC (2009-10) 142, Q 56 Back

15 HC 142 (2009-10) Q 39 Back

16 HC 142 (2009-10) Q 37 Back

17 HC 778 (2008-09), Q 21 Back