Wales waits for Westminster

The Assembly has ensured that its law-making processes now operate far more efficiently

LAST November I co-authored a paper which sought to make a more balanced assessment of the way the National Assembly for Wales’ new legislative powers under the Government of Wales Act 2006 were being used. The aim of the paper, written for the Bevan Foundation, was in part to offer a “response to criticisms that the National Assembly’s new law-making process is ‘a mess’ and in urgent need of reform”, and to argue that there were also strengths and successes of the Act. The authors felt that that a more balanced appraisal was due but we also conceded, “That is not to say the system is flawless, but rather that there is more to it than flaws.”

The need to look at both pluses and minuses when examining Wales’ new legislative system remains the case, perhaps even more so, as we mark the point of two years of operation of the Act. One of the most distinctive aspects of its operation has been its evolution. In no way is the flow chart of the Legislative Competence Order process a static one. Some of us have tried to map out the process visually on several occasions, but the inclusion of numerous arrows, dashed or otherwise, has been as confusing as the appearance of new boxes designating new hoops and hurdles in the process. As the system has operated additional stages have been added, some have been lengthened, and some are have swapped around.

It might therefore be hoped that, since the system has been subject to refinement, it might be seen to have improved and become more efficient. In several ways in the last six months it has. Some of the major political wrangles predicted for this year seem to have been avoided, most especially major division between Cardiff Bay and Westminster over the Welsh Language LCO. That is not to say there has not been robust discussion, but the LCO has not – at least at the time of writing – brought the system to a grinding halt as predicted by those who saw in it the seeds of doom for the relationship between Westminster and Cardiff Bay.

Perhaps the most important new development has been the creation of five permanent Legislation Committees in the National Assembly. Previously new Committees had to be created every time the Assembly needed to examine a Measure or an LCO. The creation of permanent Legislative Committees now means that there is a clear path when new LCOs or Measures are introduced, and that around half the Assembly Members are now gaining a deeper skill at scrutinising legislation. In addition, this innovation has speeded up legislative examination no end and has got us to the current position where two of the five Committees, (No2 and No5 for purists) have operated so efficiently that they currently have no legislation before them.

And in terms of most of the individual items of legislation, excepting the Housing LCO discussed below, the story has been a positive one too. The Environmental Protection LCO, which disappeared for so long that the search party was lost too, has made significant progress. Originally laid in July 2007, this item competed its Assembly Committee scrutiny before the end of that year but then vanished as the Welsh Assembly Government sought the necessary Whitehall legislative clearances to ensure it would pass at that end. It was not retabled until April 2009, but since then it has been formally laid and examined at Assembly end in record time.

But that is not to say that everything is working well. There are of course political problems over whether everyone involved wants the system to work, and around the content of individual LCOs. It remains true, as I wrote last year, that “Significant difference of opinion between the key players in the Assembly and Westminster over the scoping of LCOs seems to pose the biggest current danger to the whole process”. This remains a killer fact.

The collapse of the Housing LCO has been the most graphic illustration of this. This legislation, piloted through the Assembly by a Plaid Cymru Minister, was aimed at giving the Welsh Assembly Government the power to suspend the right to buy council housing in areas of housing pressure. Such a proposal was always controversial since it cut across a consensus at Westminster on this policy between the Conservatives and New Labour. On the insistence of the Wales Office, the final draft of this LCO included an unprecedented clause which would have given the Secretary of State for Wales the power to veto certain Measures (Acts of the Assembly) arising from the competence of the LCO. Such an approach was the first time Westminster or Whitehall had sought to involve themselves in the exercise of a competence once it was devolved to the Assembly, and it was politically controversial. The clause provoked such stern opposition in the House of Lords that the whole LCO was subsequently withdrawn. Without a doubt, it was amendments demanded at the London end that brought the legislation down. It will now need to be redrafted and re-presented from the start once again.

There is also a serious capacity problem at the Westminster end to actually find time to scrutinise the LCOs. There is a growing backlog of LCOs waiting for time before the Welsh Affairs Select Committee in particular. Jonathan Morgan AM and Ann Jones AM have both been waiting since last summer for both the necessary Whitehall clearances and also an opportunity to table their own backbench LCOs before the Welsh Affairs Select Committee. No matter how much time the Welsh Affairs Committee gives to LCOs, there is no way it can keep up with the flow. The ruthless efficiency of the Legislative Committees at Assembly end has shone an even sharper light on this inadequacy.

A year ago, there were problems in both Cardiff Bay and Westminster over the efficiency of the system as well as the politics. Now the remaining process problems are all in London.