Written evidence from the Welsh Assembly Government (WW9)

Introduction

1. This memorandum from the Welsh Assembly Government, in response to the Welsh Affairs Committee's inquiry on co-operation and consultation between Wales and Whitehall, is based on experience across the range of our responsibilities. We have drawn on that experience to highlight points which we believe will help in promoting good inter-governmental relations. Such relations are important since it is the experience of citizens and of organisations working for the people of Wales, be they private, public or voluntary that matters in assessing the operation of devolution. It behoves governments at all levels to work together for the benefit of the people they serve.

Awareness of the devolution settlement within the civil service including Devolution Guidance Notes

2. Understanding of devolution is patchy across Whitehall, at two levels: awareness and capacity to deal with devolution issues generally, but also understanding of the asymmetric system of devolution across the UK, with the differences in the settlements compounded by policy and political differences. This is most evident in the handling of requests for legislative competence, which do not have an exact equivalent in any other administration. In this regard, our response to your request earlier this year regarding our experience of the Legislative Competence Order process is relevant. It is attached to this memorandum.

3. More generally, both awareness and assuredness are important. Awareness of devolution is not of itself sufficient; we need civil servants with confidence as to how to handle it. In order to advise their ministers well, civil servants need not only to know what is devolved as far as Wales is concerned and to understand the mechanics of the settlement, but also how to manage that positively and confidently. They need to know how to accept and work with policy differences between administrations. Broadly speaking, the two desiderata of awareness and assuredness are most frequently observed in areas where the subject matter is long devolved, such as education, health and social services, though there are examples elsewhere.

4. Conversely, lack of awareness and hence confidence in dealing with devolution can lead to unnecessarily complex arrangements which do not benefit organisations working across borders.

5. The biggest risks in this respect are:

· where a subject is ostensibly non-devolved (such as social security or defence) but impacts on devolved subjects (for example skills, economic development, health, education). Differences in infrastructure, roles and responsibilities for public services have developed in response to Welsh needs and circumstances. Accountability for funding decisions on devolved services lies with the Welsh Assembly Government. Delivery approaches which may be straightforward in an English context need careful consideration as to whether and how they will work in Wales. This calls for liaison at the very earliest stages of policy development. This is where Whitehall needs especially to be able to act with assuredness in sharing information at an early stage since it will avoid far greater difficulties and wasted energies down the line. In the absence of such sharing of information, difficulties can particularly arise when the UK Government issues policy documents which cover both non-devolved and devolved functions, both because it may be unclear how far the commitments apply to the devolved administrations and because such documents do not always take adequate account of different administrative structures in the devolved nations.

· broad brush assumptions that where substantial parts of a subject are non-devolved (eg energy, employment law), all of it is. For historical reasons, the boundary between what is and is not devolved in Wales is in some areas fairly convoluted. Establishing a shared understanding of the Welsh ministers' responsibilities in related policy areas at the outset will lead to better informed and thus more fruitful communications.

· assuming that what goes for Scotland goes for Wales. For many reasons - differences in the scope of powers, policy differences and legal differences - a solution which works for Scotland will not always work for Wales. Taking the trouble to check this before advice is prepared (or instructions for Bills drafted) will again avoid the need to unpick matters publicly and at a later stage, which inevitably uses more resources all round - including Parliamentary time.

· treating the Welsh Assembly Government like another government department. The Welsh Ministers have discretion over the allocation of resources for devolved public services and are accountable to their own elected legislature for the effective use of those resources. If decisions are to be taken at UK level which imply the commitment of those resources for particular purposes, this should only be done with the Welsh Ministers round the table as equal partners to those decisions.

· failing to recognise geographic boundaries: establishing, in respect of non-devolved functions, new administrative structures which do not take account of the existence of Wales as a territory with its own distinct administrative identity, but rather are designed to operate on a cross-border basis in conjunction with adjoining regions of England.

The role of the Wales Office and the Ministry of Justice

6. Direct bilateral relations between relevant policy departments are of prime importance. Whitehall departments should not hesitate in approaching Welsh Assembly Government departments directly in order to establish their policy position and their circumstances, while keeping the Wales Office informed. Officials must understand clearly the different roles of the Wales Office and the Welsh Assembly Government.

7. The Wales Office has a particular role in Welsh legislation - specifically, the Secretary of State for Wales and the Wales Office Minister have a role in piloting Legislative Competence Orders through Parliament and in checking, through their representation on Legislation Committee, that any outstanding issues with the Welsh Assembly Government regarding the Welsh content of Parliamentary Bills or draft Bills are resolved before introduction or publication. Wales Office officials therefore play a role in ensuring that the significant groundwork required on both Bills and LCOs takes place and that information is shared in both directions to enable this to happen. This facilitating role makes it particularly important that Whitehall departments receive consistent messages about the operation of the devolution settlement and about the ground rules for engagement, from both the Wales Office and the Welsh Assembly Government.

8. With regard to the role of the Ministry of Justice, there is a distinction between general constitutional policy issues, such as elections or reform of the House of Lords, which sit with that department, and the question of inter-governmental relations, which more naturally sits with the Cabinet Office as a department that routinely plays a brokering role. That does however highlight the point that somewhere in between general constitutional policy and inter-governmental relations there should be a focus within government for its policy on devolution. The Wales Office interprets the Government of Wales Act 2006 but decisions which affect one devolved administration cannot be taken in isolation: decisions in relation to Scotland, for example, are just as likely to have an impact on Wales, but a different impact. The means of ensuring that such issues are considered in the round is not transparent, as the Justice Select Committee has already observed.

The extent of communication between Whitehall, the Welsh Assembly Government, the National Assembly for Wales and Welsh MPs

9. There are over 100 forums where Welsh Assembly Government and Whitehall officials meet. Despite this and despite 10 years of devolution, there are still many instances of lack of timely consultation on major policy announcements which have implications for Welsh Assembly Government policies and programmes or which leave unclear for audiences what the position is in Wales. There are still instances of Bills being introduced where time pressures mean that the provisions for Wales are not addressed as fully or in as timely a way as they should, although there are examples of good practice and effective co-operation too, to achieve mutually agreed outcomes in short timescales.

10. We recognise that policy differences or even uncertainty about sharing policy proposals which are subject to change may act as a constraint on sharing information. However as we have observed, early sharing of information where there is a "need to know", in confidence where necessary, will lead to smoother and more effective delivery in the long run. The Memorandum of Understanding and Devolution Guidance Notes provide important guidelines to officials in this respect. Regular contacts (both structured and informal and at all levels), with clear ground rules, are essential to the good functioning of inter-governmental relations. There is increasing evidence of this happening in areas where it is clearly essential (such as where European legislation and regulation is involved) but we need to recognise that it is important in other areas too.

11. At official level, Welsh Assembly Government staff have worked with the Wales Office and directly with devolution contacts in other UK Government Departments to provide tailored training sessions for officials. These efforts will be stepped up in future, with a focus on helping people to identify the right contacts, understand the ground rules and share good practice, both in Whitehall and in the Welsh Assembly Government.

12. In looking for areas of good practice, the work of the British-Irish Council deserves more recognition for the extent of collaborative policy work on important issues of mutual interest. When looking for the reasons underlying productive relations between Wales and Whitehall it is sometimes the work undertaken in this forum that has provided the basis. For example the role of the British Irish Council's Social Justice strand (which focused on Child Poverty from 2006-2008) was instrumental in creating the conditions for effective co-operation on child poverty. This co-operation has been continued in a UK context through a Four Nations Group on Child Poverty.

13. The work of the Joint Ministerial Committee (JMC) is also to be welcomed. We therefore support the points made both in the report of the Calman Commission and in the response of the UK Government to that report concerning the need for meetings of the JMC and of its Domestic Committee to be organised on a long term basis and take place regularly. We welcome the way in which the Cabinet Office and devolved administrations are working together to provide a joint secretariat for the JMC and regard this as an important principle for its operation. Similarly, the Finance Ministers' Quadrilateral should be a regular event. Regular meetings at departmental ministerial level are also valuable although we note that these are less widespread. These contacts can help in avoiding disputes arising in the first place; but we also note the absence to date of any independent or impartial element in cases where disputes do arise. For example the UK Government, in the shape of the Treasury, currently acts as judge and jury in the case of disagreement over how the Barnett formula operates. We highlight proposals for how this could be put right, in paragraph 22 below.

14. Much comes down to the skills, behaviours and experience of individuals and to the relationships they develop with their counterparts. Sometimes good communications at official level can be disrupted by teams being disbanded (eg after a Bill) or through reorganisation, so attention needs to be paid to handover briefings.

15. Just as it is possible to look overseas for models of arrangements for the allocation of funding between governments, it may be worth examining existing models which apply to policy and the preparation of legislation. We are not suggesting that there are models which can simply be imported and applied in the UK context but we note, for example, the inter-governmental agreements in Australia which (normally) precede legislation; and arrangements in other countries where overarching meetings at head of government level are supplemented by meetings both at ministerial and official level on more specific subjects. The time has come to develop a more robust set of arrangements for inter-governmental relations: not to replace day to day engagement but to provide a framework for it.

16. Communications between Parliament and the National Assembly for Wales and their respective committees and members are not primarily for us to consider, however we comment in the attached note on the Legislative Competence Order process on the value of joint scrutiny where this is possible.

The review of Whitehall guidance on devolution, announced by the Ministry of Justice in response to the Committee's report on the Legal Services Commission

17. The review (which is taking rather longer than promised) needs to respect the fact that much extant guidance was closely negotiated with the devolved administrations. This is what underpins its worth as an operational tool. We welcome attempts to raise the profile of this guidance and provide simpler access but it is important that the results are acceptable to the devolved administrations. Guidance to officials in Whitehall and in Wales has to be mutually compatible: we recognised this ourselves in publishing guidance to Welsh Assembly Government officials which is consistent with that given in the Whitehall Devolution Guidance Notes.

Taking forward the findings of the Justice Select Committee in its recent substantial report Devolution: A Decade On

18. As will be evident from the comments already made, we substantially agree with the findings of the Justice Select Committee. In particular we note its finding, which is supported by findings elsewhere including those of the Calman Commission, the House of Lords Select Committee on the Barnett Formula and the Holtham Commission, that the Barnett formula is "overdue for reform"; and that there is a lack of transparency in the process of decision making by the UK Government as to what spending is included in the calculations for the Barnett Formula and the rationale for those decisions.

19. We agree with the common conclusions from these reports that any revised formula for determining changes to the block grant of the devolved administrations should be needs based. The real consequence, if action is not taken to achieve this and if the Barnett formula continues to operate as at present, will be that future changes in public spending will lead to increasing convergence between levels of public expenditure per head in Wales and in England, thus failing to take account of the greater levels of need in the Welsh population.

20. We are glad that the UK Government has agreed, with regard to Wales, that the Barnett formula could lead to convergence to an extent that would be regarded as unacceptable (although it maintains that further convergence is not currently expected in the coming years); and its undertaking to make a full assessment of the extent of convergence with consideration of Wales' position relative to other parts of the United Kingdom as part of each spending review and take action, if appropriate, to ensure Wales is not disproportionately disadvantaged. We will continue to work with the UK Government to ensure that this undertaking is borne out in practice.

21. However this undertaking does not go far enough. It is fundamentally important to recognise that the level of resource required in Wales to achieve an equitable level of public services compared with England - in other words, an equivalent outcome - is higher than a straightforward population share, given the higher levels of deprivation in Wales and other factors such as demographics and sparsity. As the House of Lords Select Committee on the Barnett Formula concluded,

"We find the argument that devolution funding should be based on relative need to be a compelling one. Public spending per head of population should be allocated across the United Kingdom on the basis of relative need, so that those parts of the United Kingdom which have a greater need receive more public funds to help them pay for the additional levels of public services they require as a result."

22. We also agree with the Justice Committee's view that for the purpose of reviewing the formula and addressing any anomalies that arise, there needs to be an adjudicating body which can command the respect of the devolved administrations and representatives of the bodies governing England as well as of the UK Government. The Lords Select Committee on the Barnett Formula also proposed a way of meeting this requirement. Its suggestion of an independent funding commission to make recommendations on the allocation of funding to devolved administrations through operation of a needs-based formula has many parallels with the conclusion of the Holtham Commission. The Holtham Commission recommended that technical aspects of the operation of the Barnett Formula should be administered by an independent advisory body that is at arm's length from both the UK Government and the Assembly Government.

23. We also agree with the Justice Select Committee's recommendation on promoting more exchanges of officials between different administrations. In addition to those Welsh Office civil servants who became members of the staff of the National Assembly for Wales when it was first established, roughly 10% of Welsh Assembly Government staff have another part of the home civil service as their previous employer, with others having worked for the UK Government at an earlier stage. We are keen to encourage continued interchange, whether through transfers, secondments or participation in shared learning and development. We welcome the fact that secondments are bringing relevant expertise and experience to bear on specific topics as a result. The regular meetings of Permanent Secretaries have provided a forum for leadership in promoting mutual understanding throughout the civil service. The Cabinet Secretary and Head of the Home Civil Service has shown his personal commitment to this, including by supporting a recent stocktake of Departments' relationships with devolved administrations which will allow everyone to benchmark progress. Continuing professional development, which is promoted across the whole of the civil service, is another way in which mutual learning, common standards and understanding is being supported.

Conclusion

24. There have been some positive developments over the past eighteen months, with new energy being put into raising the profile of devolution as a factor which now permeates government policy making and delivery. However experience remains mixed and it will be important to intensify efforts to establish a more comprehensive and assured approach to managing relations between the Welsh Assembly Government and Whitehall.

THE LEGISLATIVE COMPETENCE ORDER (LCO) PROCESS:

PAPER FROM THE WELSH ASSEMBLY GOVERNMENT

1. This paper is a collective response to a request from the Chair of the Welsh Affairs Committee for Welsh Ministers who had been engaged in the process of progressing proposed LCOs through Whitehall to reflect on their experiences.

2. In summary, there is general agreement that the Legislative Competence Order (LCO) process has been a learning curve for everybody. We have sought to take the learning from each case and build on experience each time.

3. The experience of progressing LCOs both in Whitehall and in parliamentary pre-legislative scrutiny has varied depending on the subject matter of the Order, with Orders which were relatively narrow in scope generally proving more straightforward. However there are some key principles and common factors which help smooth handling.

4. At all stages, the focus needs to be on the legislative competence being sought rather than on the detail of the legislation that the Welsh Assembly Government has in mind. Conferring power on a legislature is fundamentally different from conferring subordinate legislative powers on ministers.

5. The unique nature of Legislative Competence Orders has posed challenges, given that a request for legislative competence is completely different from proposed delegated powers for ministers in a Bill - and completely different from subordinate legislation exercising those delegated powers, even if the Order itself takes the form of a Statutory Instrument. We have made progress in building understanding of the concept and of the approach which should therefore be adopted. The Devolution Guidance Note 16 for Whitehall officials, which the Wales Office developed in consultation with the Welsh Assembly Government, has helped in this respect. Ministers and officials in Whitehall have had to familiarise themselves with the concept of conferring power on the Assembly, as a legislature, on a case by case basis. It is this grasp of the principle which has been fundamental to progress. Much time in the negotiations on the first LCOs was spent in obtaining recognition of the changes to the devolution settlement introduced by the Government of Wales Act 2006.

6. The second principle, which follows naturally from the point that enduring powers are being conferred on a legislature, is that those powers should encompass coherent areas of policy. Trying to limit the competence to the immediate policy intent of the government of the day, or to the precise boundaries of what is currently devolved to the Welsh Ministers, is unlikely to be consistent with enabling the National Assembly to achieve greater legislative coherence in relation to a particular topic. Such limitations, which may be sought in order to achieve clarity about the scope of the powers, will in practice result in greater complexity.

7. The practical factors which facilitate smooth handling include:

· a formal start to the process, through the relevant Welsh Minister writing to their counterpart;

· identification of a senior lead official in the Whitehall department responsible for the policy area in question, to co-ordinate the UK Government's input;

· sharing of information on the intended scope of the Order, in advance of discussions on the draft of the proposed Order itself; and

· the communication of target timescales early on in the process.

8. Since the Wales Office has led on the formal clearance of LCOs by the UK Government and liaison with the Welsh Affairs Committee, as well as facilitating the process of official level clearance which precedes ministerial clearance, its assistance in the process has been essential, although it is the engagement and understanding of the relevant policy departments and their ministers that remains the key factor at the outset. We also of course rely on the contribution of Wales Office Ministers who take the LCOs through the parliamentary processes.

9. The Chair of the Welsh Affairs Committee commented on the "often lengthy" nature of the process. We remain concerned that the process is taking much longer than originally envisaged, with even a straightforward LCO such as that for the red meat industry taking over a year to secure.

10. Perhaps understandably, given their novelty and the fact that they were initiated by the Welsh Assembly Government, it was not always easy at first to convey the sense that these Orders are critical to delivery of the Welsh Assembly Government legislative programme, in the same way that the preparation of parliamentary Bills is time critical. It is interesting to observe that more legislative powers for the Assembly have been secured through parliamentary Bills than through LCOs in the last two years: this may be partly due to the fact that a Bill provides inbuilt reassurance as to the scope of the powers being sought, but also to the fact that Whitehall is accustomed to prioritising and delivering Bills within set timescales.

11. We have tried to tackle this, partly by setting out clearer expectations at the outset, with tighter project management, and partly thanks to the support and efforts of the Wales Office in endeavouring to secure clearances which recognise that the Welsh Assembly Government also has to timetable its legislative business in the Assembly. However the fact remains that the process does demand time and resource at all stages, even for relatively straightforward Orders. It puts particular pressure on those points through which all LCOs pass, given that they do currently all follow the same process whatever their scale.

12. What remains absolutely crucial to the Welsh Assembly Government is that those LCOs within our programme have the opportunity to progress in good time. It is of course only once the Assembly has acquired competence to legislate on an issue that as a government we have the opportunity to propose legislation to deliver on our commitments. There is therefore another year's worth of legislative process to go through as a minimum after the point an LCO is passed - and more, should regulations be required - before those commitments can be delivered. With the UK General Election happening at the latest in the spring of 2010 this is now brought into sharper focus. Given the time needed by Parliament and the Assembly to debate and approve each final draft order, if pre-legislative scrutiny of those proposed LCOs which have already been laid is not completed by early February it will not be possible to complete their passage before the election. This in turn would remove the possibility of completing subsequent Measures before the Assembly election in 2011. We would therefore be grateful to you and the Committee for any assistance in endeavouring to complete the scrutiny of the current LCOs.

13. You also asked for any general comments on the LCO process. Given the variety of experiences to date, we have annexed a paper which includes further, more detailed illustrations based on individual cases.

THE LEGISLATIVE COMPETENCE ORDER PROCESS 2007-2009: WELSH ASSEMBLY GOVERNMENT EXPERIENCES SUMMARISED

Background

i) Between June 2007 and July 2009 the Welsh Assembly Government published 10 proposed LCOs, of which 4 had become law, with the remainder at varying stages.

ii) Of the 10, the first 4 to be produced had not been finally cleared by the UK Government before they were published, although the first of these, on special educational needs, was subsequently cleared and referred to Parliament within around two weeks. In the case of the Environment, Vulnerable Children and Affordable Housing LCOs, the Welsh Assembly Government and UK Government subsequently agreed revised versions which then went to Parliament for pre-legislative scrutiny. The remaining LCOs have received collective clearance by both the Welsh Assembly Government and the UK Government before publication, enabling the pre-legislative scrutiny process to proceed in parallel in Parliament and the Assembly; their production has also been staggered at wider intervals than the first 3 LCOs, which were published in the space of a month.

iii) Between September and December 2009 a further 3 Government proposed LCOs were published and another 2 were made. Notes on experience of some of the individual orders are set out below, where they highlight particular points which have informed the handling of subsequent proposals.

Environment

iv) In contrast with the first LCO, it did not prove possible to secure rapid UK Government clearance of the second proposed LCO subsequent to its publication in the Assembly. The proposed Environment LCO was first published on 19 June 2007, a week before the "One Wales" agreement was made. It was in April 2009 that a revised version of the proposed LCO was agreed by the UK Government and laid before Parliament. The scope of the LCO was wide and affected the interests of more than one Whitehall Department. The subject matter also interacted with a number of topics including non-devolved aspects of transport and energy policy. It was not surprising, in this context, that it took a long time to reach agreement with Whitehall. Other contributing factors were that UK government civil servants and lawyers, confronted with a completely new legal concept, were concerned not to concede points the consequences of which they could not foresee. There was a particular concern, in terms of energy policy, not to lose the existing ability to determine policy at UK level. The key to progress, apart from intensive legal input, was

· engagement at Ministerial level, leading to engagement by senior policy officials; and

· the development of agreed principles and approaches, such as recognising that where the Welsh Assembly Government has extensive executive competence in an area of policy, it is appropriate for the Assembly as a legislature to have powers which at least correspond to that competence.

v) The subsequent process of pre-legislative scrutiny was thoroughly constructive.

Vulnerable Children

vi) The Vulnerable Children LCO was also wide in scope and had to be agreed with the UK Government following initial publication. Factors which led to more rapid progress in this case were:

· recognition on the part of the UK Government of the Welsh Assembly Government's rationale for seeking powers and acceptance that it could pursue its own policies in a devolved area, while still engaging in constructive debate on the merits and risks of different policy approaches ;

· the availability of a UK official willing to lead and co-ordinate negotiations at a senior policy level; and

· close engagement between Welsh Assembly Government and UK Government officials, with the Wales Office playing a facilitating role.

vii) One further observation from this LCO is that it is fundamentally important to have a clear view at the outset about which topics the LCO is intended to cover and which it is not. Where an LCO covers a broad area of policy, greater care is needed to identify and explain the topics on which it would allow the Assembly to legislate. On the proposed Vulnerable Children LCO, the question of whether it would or would not have allowed the Assembly to legislate on the physical punishment of children would ideally have been clear from the start.

Housing

viii) The proposed Affordable Housing LCO was first published on 3 December 2007. Negotiations had been ongoing with the UK Government since July 2007. It was in May 2008 that a version of the Housing LCO agreed with the UK Government was laid before Parliament, which again meant that joint pre-legislative scrutiny was regrettably not an option.

ix) In terms of pre-legislative scrutiny, it appears to the Assembly Government that in this case the Welsh Affairs Committee focussed too much on the policy to be taken forward in the intended Measure.   This was against the spirit of the UK Government policy on which the Government of Wales Act 2006 was based. It is also an unworkable approach - at the time of proposing an LCO it is unrealistic to expect the full details of a Measure to be available for debate.   More generally, if an LCO is drafted in terms too closely tied to an intended Measure it is likely to be unfit for the longer term and will inappropriately constrain the Assembly as a democratic legislature.   The focus in pre-legislative scrutiny should be on the case for competence, not the intended policy detail.  

x)  We would acknowledge however that the Welsh Assembly Government's own Explanatory Memorandum, by seeking to reassure MPs about its policy intentions on the Right to Buy, might have led the discussion in the direction of the intended Measure.    The Explanatory Memorandum should focus more on the constraints in existing primary legislation - as Alun Michael MP said,  "This goes back to the learning process where, as you rightly said, we are at the early stages... it would be helpful to assist pre-legislative scrutiny if the Explanatory Memorandum, as a matter of course, sets out the legislative constraints that justify the Order".   This advice has been followed in subsequent cases (although legislative constraints will not be the only justification for the Assembly acquiring legislative competence: the case may also be for achieving competence over a coherent topic or set of topics).

xi). This LCO was very demanding of time from both Ministers and officials in both administrations and so was a resource intensive process.  It is difficult to explain to the public why it has not proved possible to date to secure the powers the Assembly would need to deliver a policy commitment expressed in 3 of the 4 manifestos of the parties in the Assembly and widely supported in the housing sector.   All involved need to consider how the process can be sharpened.   It is also a matter of concern that the two scrutiny processes could produce quite contradictory findings, placing both the UK Government and WAG in a difficult position. As noted below, joint scrutiny or some element of joint consideration by the Parliamentary and Assembly committees has proved constructive in subsequent cases.

Domiciliary Care 

xii) Where the topic that the LCO covers is relatively limited, as was the case with the Domiciliary Care LCO, agreement is easier to achieve since the scope is easily defined and understood. The negotiations on this LCO proceeded with little delay to the timetable proposed by the Welsh Assembly Government.

xiii) The joint scrutiny session held for the Domiciliary Care LCO was extremely helpful. It facilitated co-operation between Westminster and the National Assembly and common understanding of issues. We note that the Committee's report on the proposed LCO included among its conclusions:

'We were pleased to be able to undertake joint working with the Welsh

Affairs Committee in scrutinising the proposed Order, which we believe was

a valuable exercise and mutually beneficial. We further believe, where

circumstances permit, that joint working between Assembly Committees set

up to consider and report on proposed Legislative Competence Orders and

the Welsh Affairs Committee should be encouraged.'

We would endorse that view unreservedly.

Carers

xiv) In relation to the Carers LCO the discussions with Whitehall showed a high level of engagement which helped to test the intended scope of the Order in a constructive way. Another aspect which was particularly helpful was the level of common interest demonstrated by Assembly Members in the aims of the LCO. Helen Mary Jones withdrew her own Member proposed LCO on the same subject. This contributed to a high level of cross-party support and enabled an open, constructive and co-operative approach. This was echoed in the constructive scrutiny by the Welsh Affairs Committee itself. The high level of contact and consultation with the voluntary sector was of significance, both in establishing the content of the LCO and achieving cross-party support. The briefing sessions held for Members at the Assembly and in Westminster were also helpful in ensuring that potential misunderstandings were resolved as early as possible.

Welsh Language

xv) This is the only case where the Wales Office was the lead policy department. It was also the only proposed LCO to receive clearance from the UK Government for publication for pre-legislative scrutiny where the UK Government reserved its position with regard to final policy clearance. The Wales Office was therefore able to maintain some flexibility over its policy position during and after pre-legislative scrutiny. The experience showed that positive negotiations need to be based on transparent communications, with clear records of decisions taken, and reasons for policy changes given. The more information that can be shared about the process and rationale among all involved, the greater the confidence people will have in it.

xvi) This was also the only LCO where the UK Government proposed a Welsh Grand Committee debate, which added at least a further two months to the overall timescale. In these respects, the process followed by this LCO was not typical.

Red Meat Industry

xvii) This LCO is probably the most limited in scope to be brought forward thus far. Nevertheless, it took 5 months to produce and agree with the UK Government, followed by 9 months for pre-legislative scrutiny, production and clearance of the final draft Order, debates in the Assembly and Parliament and approval by Her Majesty in Council. This compares with the original UK Government estimates of three to six months for completion of pre-legislative scrutiny and approval of the final draft (evidence to the Welsh Affairs Committee, 19 December 2006).

Transport

xviii) This LCO is also fairly limited in scope, covering learner transport safety and concessionary fares. The original timetable allowed some three months for the Assembly Government to reach agreement with the UK Government, so that the draft Order could be published for pre-legislative scrutiny ahead of the Christmas recess. This was achieved, but only through an intensive fortnight of negotiation involving ministers and senior officials and by substantially compressing certain processes in the timetable. The detailed discussions on the Order reflected the relatively complex nature of the devolution settlement for transport, particularly in relation to safety and vehicle standards, and a tendency to focus on the Assembly Government's policy intentions rather than whether it was appropriate to transfer competence.

Other general observations

xix) Both the Justice Select Committee and the Calman Commission have recently expressed concerns about the level of understanding of devolution at senior civil servant level in Whitehall. It would certainly help in progressing LCOs if Whitehall officials had more background knowledge about the distinctive character of the Welsh devolution settlement. This would help avoid misunderstandings which in turn lead to delay: for example, requests that impact assessments should be carried out on LCO proposals, when their only purpose is to confer legislative competence on the Assembly. Welsh Assembly Government officials are already working with the Wales Office to step up the level of briefings to departments across Whitehall.

xx) Clarity and transparency about roles, responsibilities and lines of communication is essential. Negotiations have to be with the lead policy departments since they understand the legislative framework in their area in depth. Given the number of players that may be involved, including the Wales Office, legal advisers and drafting counsel, it will often be quicker to make progress on complex issues by getting all the key players round the table. Senior officials need to monitor progress and familiarise themselves with the subject at the outset, since this will help speed progress on any issues that have to be referred to more senior levels for resolution.

Conclusion

xxi) The main lessons learned so far are that all involved need to focus on the legislative competence being sought, rather than on the detail of the legislation that may subsequently be proposed to the Assembly; and recognise that coherent and appropriately-scoped legislative competence should be conferred in relation to the policy areas where powers are requested. The timescales involved remain a concern. Progress has however been made in terms of increasing understanding of the settlement and establishing good practice in handling LCOs. The pace at which the LCOs in the 2009-10 Welsh Assembly Government legislative programme have been developed is evidence of this, although lack of familiarity in Whitehall with the "nature of the beast" can still cause hitches.

January 2010