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Written evidence from Wales
Governance Centre,
Summary This evidence is submitted on behalf of the Wales
Governance Centre at The Centre includes representatives of The evidence would like to address one aspect of the
Committee's inquiry namely the extent of communication between
We are concerned about the difficulty which the National Assembly, acting through its Subordinate Legislation Committee has in carrying out one of its important functions. This function is set out in the Assembly's Standing Order 15.6 (ii). It relates to the scrutiny and reporting to the Assembly of the "Appropriateness of provisions in proposed Assembly Measures and in Bills for Acts of the United Kingdom Parliament that grant powers to make subordinate legislation to the Welsh Ministers, the First Minister or the Counsel General"
The problem It is important for the Assembly to whom the Assembly Ministers account for the exercising of their powers to be fully aware of the extent of such proposed powers. In relation to proposed Assembly Measures the Assembly is fully aware of such ministerial powers contained in the draft Measure and there is extensive machinery available to the Assembly by which proposed powers are debated during the progress of a Measure through the Assembly. Such in-depth consideration of ministerial powers is not currently available to the Assembly in relation to powers proposed to be granted to assembly Ministers in UK Bills.
Currently, more such powers are given through UK Bills (Acts) than are given through Measures. The structure of the Assembly is such that it appears that reliance is mainly made by the Assembly on the reports produced by the Subordinate Legislation Committee on Bills going through Parliament which propose to give executive powers to the Assembly Government and legislative powers to the Assembly.
In the Parliamentary Session 2008-2009, 2 Acts gave Legislative Powers to the Assembly to make Measures and 9 Acts gave executive powers to the Assembly Government. This compares to 3 Legislative Competence Orders giving Measure making powers to the Assembly and 6 Measures made by the Assembly giving executive powers to the Assembly Government. A list is attached as Annex 1 to this submission.
Of the 9 Acts giving executive powers to the Assembly Government the Subordinate Legislation Committee considered the extent of the executive powers in 5 of the Bills which eventually became Acts. A list of the Bills that were considered is attached as Annex 2.
The Subordinate Legislation Committee on 14th October 2009 reviewed the other Bills and certain Draft Bills before Parliament in 2008-2009 Session which would give powers to the Welsh Ministers. A list of the Bills and draft Bills they have considered is attached as Annex 3. The Committee concluded that it would not consider any of these Bills or Draft Bills. Their main reasons for not considering the Bills and Draft Bills were: 1. Either because the Bills and Draft Bills contained limited powers delegated to Welsh Ministers or 2. Because the Bills were so advanced that it was too late to attempt to influence the contents of the Bills.
For the current Parliamentary Session 2009-2010, 6 Bills appear to devolve either legislative powers to the Assembly and executive powers to the Assembly Government or only executive powers to the Assembly Government. No doubt that the Subordinate Legislation Committee will give consideration to at least some of these Bills. Presumably it is the UK Government's intention that at least some of these Bills should receive Royal Assent before next year's general election. This gives limited time to the Assembly to consider these Bills.
From what it is said above we have two main concerns:
1. Where the Subordinate Legislation Committee has reported on Bills its analysis of the proposed Welsh Minister's powers is clear and well argued. The Reports include the Committee's conclusion on written and oral evidence taken from Welsh Ministers based on the analysis by the Committee of these ministerial powers. However the Committee also have other important functions to carry out under the standing orders applicable to them. This is particularly so in the case of the consideration of many Assembly Government Statutory instruments. The result is that the Committee is unable to report to the Assembly on all Bills giving powers to Welsh Ministers or legislative powers to the Assembly.
2. It is uncertain as to what is the ultimate effect,
if any, on the contents of the Bills which have been reported on by the
Committee. The reports do not seem to be sent to any relevant Committee of
either House of Parliament. Neither Members of Parliament nor members of the
House of Lords have any established machinery by which they can be kept
informed of any concerns expressed by the Committee. It seems that it is left
to the Assembly Government Ministers to decide to what extent they seek to take
account of the Committee's comments in working on the Bills with their
Conclusion:
At least to outside observers, it does not seem that for various reasons the Assembly is able to play any fundamental role in influencing the contents of Bills which either give the Assembly legislative powers to make Measures or give executive powers to Welsh Ministers including some extensive powers to make Subordinate Legislation.
January 2010
Annex 1:
Legislative and Executive Powers
1. Local Democracy, Economic Development and Construction Act 2009 2. Marine and Coastal Access Act 2009
Executive Powers
1. Apprenticeships, Skills, Children and Learning Act 2009 2. Business Rate Supplements Act 2009 3. Coroners and Justice Act 2009 4. Corporation Tax Act 2009 5. Health Act 2009 6. Policing and Crime Act 2009 7. Welfare Reform Act 2009
Measures
1. Learner
Travel ( 2. Learning
and Skills ( 3. Local
Government ( 4. Health
Eating in Schools ( 5. Children
and Families ( 6. Education
(
Legislative Competence Orders (LCOs)
1. Red Meat Industry LCO 2. Carers LCO 3. Exception to matters LCO Annex 2:
In the Parliamentary Session 2008-2009 the Subordinate Legislation Committee considered 5 UK Bills namely:
1. The Apprenticeships, Skills, Children and Learning Bill: Powers Delegated to Welsh Ministers on Powers delegated to Welsh Ministers
2. The
3. The Equality Bill on Powers delegated to Welsh Ministers
4. The Marine and Coastal Access Bill on Powers delegated to Welsh Ministers
5. Child Poverty Bill on Powers delegated to Welsh Ministers
Annex 3:
Committee's Review of Bills before Parliament (and draft bills) for possible scrutiny under Standing Order 15.6(ii)
The Subordinate Legislation Committee on 14th October 2009 reviewed the Bills before Parliament and draft bills for possible scrutiny under Standing Order 15.6(ii) (Appropriateness of provisions in proposed Assembly Measures and in Bills for Acts of the United Kingdom Parliament that grant powers to make subordinate legislation to the Welsh Ministers, the First Minister or the Counsel General).
The following UK Bills which would give powers to Welsh Ministers were reviewed but not considered under the Standing Order:
1. Constitutional Reform and Governance Bill 2. Coroners and Justice Bill 3. Local Democracy, Economic Development and Construction Bill 4. Policing and Crime Bill 5. Postal Services Bill 6. Welfare Reform Bill 7. The Postal Services Bill 8. Constitutional Renewal Bill 9. Health Bill Coastal Bill 10. The draft Floods and Water Management Bill
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