73. In the final section of this review, we consider the general operation of the LCO procedure over the past two years, beyond our own role in the process. We have now been working with the LCO system for over two years and we consider that we are well placed to analyse the effectiveness of different aspects of its operation. We acknowledge that all parties involved in the process have developed a greater familiarity with the process and as a result are working together more successfully. However, we have identified two areas of continuing concern: the Whitehall clearance process and the emerging complexity of the law in Wales.

Whitehall Clearance

DELAYS

74. The Whitehall clearance process accounts for the most substantial part of the whole LCO process. As Table 1 shows, some proposed Orders have taken months or even years to progress through the Whitehall clearance process before being referred to the Committee for scrutiny. In preparation for this review, we asked the Secretary of State for Wales, Rt Hon Peter Hain MP, in his most recent appearance before the Committee whether he could account for the time that Orders such as the proposed Environment LCO had spent "wandering through Whitehall":

It was one of those orders that was announced in June 2007. It had not been subject to prior discussion with the Government and we have come a long way since those early days and I have described this. The other problem with it, partly because it had not been discussed—I make no criticism of the Wales Assembly Government, it wanted to be seen to be getting on with things and it created more of a problem down the line—was that it was very broad in scope, far too broad in scope. It touched on policy interests of a lot of different government departments including the Department for Energy and Climate Change, Business, Innovation and Skills, Ministry of Defence, Defra and the Department of Transport. It took a long time to agree the boundaries to the competence which, in places, related to sensitive and high profile areas of policy such as nuclear energy, defence establishments and energy exploration.[24]

[…]

I think the team that was put in place to coordinate it gradually evolved. It started off with no proper team work and immediately, as you put it, wandering round Whitehall, hit into all the problems in terms of scope and definition and competence issues and so on which could have been eliminated right at the beginning. Rather than necessarily failures in the system systemically, it is more a product of the understandable desire to be keen to be getting a move on by the Welsh Assembly Government in its early post-2007 days.[25]

75. The clearance process will necessarily involve different government departments depending on the policy area concerned, but the Wales Office is best placed to take an overview of the LCO process and ensure that Orders are making adequate progress through Whitehall. We asked the Secretary of State whether the Wales Office would be more proactive in ensuring that proposals for LCOs make progress with Whitehall departments in future:

I think we already are. It is proactivity both in terms of getting in right at the beginning with our colleagues in the Welsh Assembly Government at ministerial and official level. It is also proactivity in immediately engaging with the Whitehall departments. The Wales Office plays an absolutely pivotal role and there is a greater burden of work now than at any time in its existence since 1999 precisely because of the volume of legislation going through. As I say, I think we have all learned along the way and I think we are getting to where we need to be with your help.[26]

76. Most recently, the Secretary of State addressed the National Assembly for Wales on the subject of the Queen's Speech. During that speech, he said:

I have freely admitted that the [LCO] system took time to bed-down. Many of the delays we encountered with particular LCOs were avoidable, and we have learned our lessons. But the new powers are starting to work, and to work well.[27]

Responding to that statement, Ann Jones AM agreed that there had been problems with the process:

As the first backbencher to take a Member proposed Order to Westminster, I feel able to say that the Welsh Affairs Committee does not act as a shadow Assembly. I have been treated with the utmost respect. In fact, it is doing everything that it can to ensure that it is passed. Therefore, let us not pretend that the LCO process is not working, because it does. My proposal was the first Member proposed Order, and, with the first one, you have to look at the processes and at the subject, so I like to think that that [problem] was the process.[28]

The Secretary of State has said recently that the Wales Office has 'learned our lessons' and that delays with particular LCOs were 'avoidable'. We would welcome further elaboration from the Wales Office on the nature of these delays and where they could have been avoided, as well as its plans to ensure that they do not occur in future.

TRANSPARENCY

77. It is important to note that, to date, the Committee has had no access to the substance of Whitehall negotiations concerning LCOs. Although we welcome the informal contacts we have with the Wales Office, which give us some idea of the sequence of Orders we can expect to receive, we have not been made aware of any sticking points in relation to individual Orders, nor have we received formal updates on their progress. In the context of democratic devolution, this lack of transparency is unhealthy and means that the reasons for any delay are not clear. In practical terms, the difficulty in predicting when a proposed Order will be referred to us makes it harder for us to plan a programme of work which balances pre-legislative scrutiny of LCOs with our other activities. It is likely to have had a similar effect on other interested parties (e.g. the voluntary sector, campaign groups etc. with an interest in a particular LCO).

78. We propose to take a more proactive approach to the oversight of Whitehall clearance process in the future, seeking regular and frequent updates from the Secretary of State on the progress of any LCO proposal as soon as it has been announced in the Assembly. The Secretary of State has a personal responsibility to make the process work. The Wales Office—in its own right and as part of the Ministry of Justice which has oversight of constitutional issues— has a clear duty to ensure that the procedure operates effectively and that officials across Whitehall are fully aware of devolved issues and the importance of prioritising negotiations on LCOs. This should result in a speedier resolution of any issues raised in respect of an LCO endorsed by the Assembly.

79. The Wales Office's experience of LCOs as "a greater burden of work now than at any time in its existence since 1999" is one that we would recognise. It is unfortunate that the resources to deal with this burden were not made available at an earlier stage, but we acknowledge that the Wales Office is now making efforts to speed up the Whitehall clearance process for proposed Orders. There remains, however, an unacceptable lack of transparency within the process which hampers our ability to assess any progress which may have been made.

80. We believe that there is a strong case for a more formal reporting system on the Whitehall clearance system. 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.

The law in Wales since the Government of Wales Act 2006

81. The LCO system is not the only means by which the Assembly can extend its legislative competence. Powers can also be devolved as part of a Westminster Bill. If Parliament is legislating on a policy area in which the Welsh Assembly Government wishes to modify the Assembly's competence or the scope of Welsh Ministers' powers, the Welsh Assembly Government can request the inclusion of "framework powers" or "Welsh only clauses" which devolve powers as part of that Bill. There have been several recent examples of this process. The Secretary of State reported to the Committee in October that:

The devolution settlement put in place through the Government of Wales Act 2006 is delivering much more for Wales than ever before. It has delivered powers to the Assembly in a total of 45 different areas to date. This is massively more than before when we would be lucky to see more than one Wales only bill per parliamentary session. More and more legislative competence orders and framework powers are now flowing through the system providing up to three times as many powers for Wales as under the old system.[29]

[…]

In just two years four LCOs have been delivered covering additional learning needs and non-residential domiciliary care, vulnerable children, the Welsh red meat industry, a further one on carers is being considered by the Privy Council next month so that will make five. A further seven LCOs are in the pipeline covering subjects as varied as the Welsh language, mental health, waste and local government. Then there have been seven acts of Parliament which have included framework powers from a variety of areas from planning to education and skills to local government and local transport. There are still two further bills in the current session including four framework powers.[30]

LCOS, FRAMEWORK POWERS AND WELSH-ONLY CLAUSES

82. Powers devolved by means of Westminster Bills may include executive powers devolved to the Welsh Assembly Government Ministers alone, which would not allow Assembly Members (whether Government or backbench AMs) to propose Measures in the relevant policy area, or framework powers which insert new Matters into Schedule 5 of the Government of Wales Act and effect a permanent transfer of law-making powers to the Assembly in the same way as an LCO. For example, the recent Marine and Coastal Access Act 2009 includes provisions which would confer executive powers on Welsh Ministers in relation to marine licensing, marine nature conservation and fisheries, bestow new marine planning functions on the Welsh Ministers and provide Measure-making powers for the Assembly on coastal access.

83. A list of Bills and Acts containing framework powers and Welsh-only clauses which have been considered by Parliament since the passage of the Government of Wales Act 2006 appears in Table 2.[31] The scrutiny of these bills and orders is a matter for the whole House. Whilst members of the Welsh Affairs Committee sometimes serve on Public Bill Committees and Delegated Legislation Committees considering such legislation, we as a body are not formally involved (though there is nothing to prevent us from commenting if we choose to do so and time allows).

Table 2: Welsh provisions in Westminster legislation[32]

Session	Bills with framework powers	Bills with significant Welsh provisions	Proposed LCOs referred to us for scrutiny
2006-07	Further Education and Training Local Government and Public Involvement in Health	Concessionary Bus Travel Consumers, Estate Agents and Redress Further Education and Training Local Government and Public Involvement in Health Local Government Finance Mental Health Offender Management Serious Crime Tribunals, Courts and Enforcement Statistics and Registration Service	None
2007-08	Education and Skills Local Transport Planning	Children and Young Persons Climate Change Criminal Justice and Immigration Dormant Bank and Building Society Accounts Education and Skills Health and Social Care Housing and Regeneration Local Transport Regulatory Enforcement and Sanctions Sale of Student Loans Energy Planning	Additional learning needs Domiciliary care Vulnerable children Affordable housing
2008-09	Constitutional Reform and Governance Local Democracy, Economic Development and Construction Marine and Coastal Access	Apprenticeships, Skills, Children and Learning Autism Business Rate Supplements Child Poverty Constitutional Reform and Governance Coroners and Justice Corporation Tax Equality Health Local Democracy, Economic Development and Construction Marine and Coastal Access Policing and Crime Welfare Reform	Red meat industry Carers Welsh language Environment Mental Health Culture and other fields Local Government Housing (Fire Sprinklers) Education (School Governance)

84. It has been suggested that, to date, Wales has received more powers by means of clauses in Westminster Bills than through the LCO system. The recent report by the All Wales Convention suggested that "Since May 2007, more Matters have been added to Schedule 5 through the UK Framework Bill route than through the LCO route. As of 20 July 2009, the start of the National Assembly for Wales's summer recess, 28 new Matters had been added to Schedule 5—12 through LCOs, and 16 through UK Framework Bills".[33] The All Wales Convention also refers to a study undertaken in Spring 2009, which found that devolution of executive powers to Welsh Ministers has significantly exceeded the transfer of legislative competence to the Assembly.[34] The authors of that study note that whilst the transfer of legislative competence must fall within one of the fields listed in Schedule 5 to the Government of Wales Act 2006, executive devolution to Welsh Ministers is not limited in this way and may relate to any policy area.[35]

85. Simply counting the number of Matters added to Schedule 5 by various means does not necessarily give a true picture of the extent of legislative competence transferred, as some Matters may be much broader in scope than others. In addition, the inclusion of more new powers within primary legislation may in part be due to the lead time involved in setting up a new system and the fact that many such Bills were already at the planning stage before the LCO process began. Quantification of the extent of powers devolved by different means cannot be a precise science, and the fact that there are several paths along which the process of devolution can be pursued can be seen as a strength of the system. However, it does present a challenge in ensuring that the different legal processes are coherent, consistent and transparent.

COMPLEXITY

86. As a result of the devolution of new powers via a combination of framework powers and LCOs, some commentators have argued that the legal record in Wales has reached an undesirable level of complexity.[36] In a recent evidence session, we asked the Secretary of State for Wales whether the general public could hope to understand the way in which new powers are now transferred to Wales. He said:

I take the view that a lot of the criticism of LCOs is misplaced. People suggest that this is a hugely complex system; others have used the phrase "a fog around it". Actually it is no more complex than the process of taking a bill through the House of Commons. I do not think most members of the public would easily understand the process of taking a bill through the House of Commons and the different stages, the descriptions of them and the labels that are put on them. I think actually that the system, after some initial teething troubles which your Committee has dealt with and highlighted, is actually working quite well.[37]

He acknowledged, however, that more could be done to explain the process to the public, including (as we recommended in our report on the Environment LCO) through improved Explanatory Memoranda accompanying proposed LCOs:

There is a very important recommendation because I remember reading draft memoranda and, to be honest, it was written in a jargon which parliamentary draughtsmen and officials acquainted with the technical detail of it may have been familiar with it, but to most parliamentarians, let alone most members of the public, it was opaque to say the least.[38]

87. We are aware of some efforts to present the law relating to Wales in a more user-friendly manner. For example, two services provided by the National Assembly for Wales via its website, the Assembly powers tracking notes[39] and the regularly updated version of Schedule 5 to the Government of Wales Act 2006[40] provide a useful tool for those wishing to monitor the growing competence of the Assembly. Nevertheless, more work is needed to provide a comprehensive picture of powers devolved both to the Assembly and to Welsh Ministers in an accessible and regularly updated form. One vehicle for further research may be Wales legislation online, a service supported by the National Assembly for Wales and the Welsh Assembly Government in conjunction with Cardiff University and the Wales Governance Centre, which aims to provide "an accurate, comprehensive and current statement of the devolved functions in Wales and of the laws made in Wales".[41] This site is currently being revised to better reflect legislation since the Government of Wales Act 2006.

All Wales Convention

88. During the preparation of this Report, the All Wales Convention published its final report, which gave some consideration to these issues.[42] Many of those who gave evidence to the All Wales Convention stated that they did not understand the LCO process and found it complex. It is regrettable that the All Wales Convention's report reflected some of the common misconceptions surrounding the LCO process without correcting them. For example, the Report includes a chart which misrepresents the comparative complexity of primary legislation and the LCO process. It also repeats the erroneous assumption that a series of different LCOs would be required to devolve power in a number of related areas. As the recent Environment and Housing LCOs demonstrate, LCOs can devolve powers in several different fields in order to provide for a holistic approach to legislation in a given policy area.[43] Processes for passing legislation possess an inherent degree of complexity, but we do not consider that the LCO procedure is intrinsically any more complex than other legislative processes.

CASE STUDY 3: THE ENVIRONMENT LCO

89. One of the most technically complex Orders we have considered so far was the proposed Environment LCO. This Order, which spent two years in the Whitehall clearance process, would confer legislative competence on the Assembly largely reflecting the existing executive powers of the Welsh Assembly Government. As drafted, the proposed Order contains a large number of exceptions to its three Matters reflecting "topics which are relevant to waste or environmental protections, but where the Welsh Ministers do not have significant functions".[44]

90. A distinction was made between 'fixed' exceptions and 'floating' exceptions within the proposed Order. 'Fixed' exceptions apply to one or more specific Matters within a given Field, whereas 'floating' exceptions apply across all Fields. In addition, the Order contained a number of 'carve-outs', or exceptions to exceptions, which do not themselves confer legislative powers but only take effect if they deal with cases that otherwise fall with the scope of an existing Matter.

91. Several of the exceptions, for example regarding health and safety regulations, relate to Matters that would already be excluded from the Assembly's competence under Part 2 of Schedule 5 to the Government of Wales Act 2006 which prevents the functions of Ministers of the Crown from being modified by means of an Assembly Measure without the permission of the Secretary of State. Other exceptions were to be added to Schedule 5 under three fields that will not otherwise be affected by the proposed Order.

92. Concerns were raised during the scrutiny process, both here and in the Assembly, about the use of terms and definitions and the exceptions to Matters listed in the proposed Order. In its report, the National Assembly for Wales Legislation Committee No. 4 highlighted the sheer complexity that the use of exceptions creates within the LCO and ultimately within the Government of Wales Act 2006, commenting "In our view the effect of the volume and complexity of these new exceptions will be to make it extremely difficult for the public, stakeholders and even relevant professions to be clear where the boundaries of the National Assembly's legislative competence will lie".[45] In our report we suggested that:

…there is a danger that excessive use of these practices could risk making the Government of Wales Act 2006 unwieldy and impenetrable. Furthermore, we suggest that the Explanatory Memorandum accompanying the proposed Order fails to fully convey the precise implications of the proposed Order in terms that are understandable by all. […] This cannot be helpful, especially at a time when the National Assembly for Wales is trying to promote an understanding of its processes.[46]

93. At the end of our respective inquiries, our Chairman wrote jointly with the Chair of the Assembly Committee to the Secretary of State for Wales and the First Minister to suggest that they review the use of exceptions in this Order. The letter drew attention to the complexity of the legislative settlement that is developing under Schedule 5 of the Government of Wales Act 2006, and the need to ensure that Explanatory Memoranda accompanying proposed Orders explain clearly and precisely what powers they will confer on the National Assembly.

94. In October 2009, the Lords Constitution Committee reported on the proposed Order. It endorsed our views on the use of exceptions and concluded as follows:

The Constitution Committee considers LCO 8 [the Environment LCO], taken in the round, to be perilously close to the borderline of what is constitutionally acceptable. A common thread is the opaque nature of the evolving 'written constitution' that is the Government of Wales Act 2006. To this effect, the Constitution Committee agrees with the Welsh Affairs Committee that "LCOs should be drafted with the aims of clarity and simplicity in mind" and, indeed, recalls that clarity and transparency in the law are elemental to the core constitutional principle of the rule of law. The Wales Office, it is recommended, should actively explore ways in which the proposed Environment LCO may be simplified. The Constitution Committee also urges the importance of user-friendly explanations of the Assembly's evolving legislative competence, both in the case of individual LCOs and, on a regular basis, of Schedule 5 as a whole. The concept of an evolving 'written constitution' for one of the four countries of the Union demands no less.[47]

95. We call for different a type of drafting to be undertaken by the National Assembly for Wales with the support and encouragement of the Wales Office and the Office of Parliamentary Counsel. The traditional approach within Whitehall is to draft any legislative clauses as widely as possible and to give ill-defined powers to ministers and officials. This arises from the wish to be able to deal with unanticipated circumstances and it is understandable when a legislative opportunity may not arise for a considerable period of time and perhaps for many years. Such drafting is not justified given the speed and efficiency of the LCO process, which makes it easy for the Assembly to draft and submit a fresh LCO to deal with specific circumstances that have not been anticipated in the drafting of existing legislation. It follows that 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'.

RECOMMENDATIONS

96. We agree with the Lords Constitution Committee that "clarity and transparency in the law are elemental to the core constitutional principle of the rule of law". The developing complexity of the law in Wales therefore gives us cause for concern. This situation arises not only from the legal complexity of certain individual instruments, such as the Environment LCO, but also 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.

97. A difficulty now exists for legislators, ministers and civil servants, experts and most particularly the general public, in establishing the precise state of the law in Wales. In its report on the Environment LCO, the Lords Constitution Committee recommends the creation of "user-friendly explanations of the Assembly's evolving legislative competence, both in the case of individual LCOs and, on a regular basis, of Schedule 5 as a whole" to address this difficulty. We agree that there is more work to be done to establish a comprehensive and accessible 'Welsh statute book' and consider that 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.

25   Ibid. Q 15 Back

26   Ibid. Q 16 Back

27   National Assembly for Wales, Record of Proceedings, 25 November 2009. Back

28   Ibid. Back

29   Transcript of oral evidence taken before the Welsh Affairs Committee on 27 October 2009, HC (2008-09) 1075-I, Q 2 Back

30   Ibid.,Q 4 Back

31   Executive powers may also be devolved to the Welsh Ministers by transfer of functions orders. 3 of these have or are being passed since 2006. 11 Matters were also transferred from existing Acts shortly after the passage of the Government of Wales Act via the National Assembly for Wales (Legislative Competence) (Conversion of Framework Powers) Order 2007. Back

32   See library note. Further information is also available at http://www.walesoffice.gov.uk/legislation/primary-legislation/ and http://www.wales-legislation.org.uk/ Back

33   Paragraph 3.3.3 Back

34   This includes Transfer of Functions Orders. Back

35   'Bypassing the Assembly', Agenda, Journal of the Institute of Welsh Affairs, Spring 2009, article by Marie Navarro and David Lambert. Back

36   See for example evidence to the All Wales Convention: http://allwalesconvention.org/ Back

37   Transcript of oral evidence taken before the Welsh Affairs Committee on 27 October 2009, HC (2008-09) 1075-I, Q 2 Back

38   Ibid., Q 14 Back

39   http://www.assemblywales.org/bus-home/bus-legislation/bus-legislation-guidance/bus-legislation-guidance-documents/legislation_fields.htm Back

40   http://www.assemblywales.org/bus-home/bus-legislation/bus-legislation-guidance/bus-legislation-guidance-documents/legislation_fields/schedule-5.htm Back

41   http://www.wales-legislation.org.uk/ Back

42   All Wales Convention Report, November 2009, available at www.allwalesconvention.org Back

43   Paragraphs 3.11.21 and Chart 3.1. Back

44   Explanatory Memorandum paragraph 30 Back

45   National Assembly for Wales Legislation Committee No. 4 Report on the National Assembly for Wales (Legislative Competence) (Environment) Order 2009 Back

46   HC (2008-09) HC 678 Back

47   HL (2008-09) 159, paragraph 9 Back