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Up in smoke: Instructing the Assembly on how it makes law, rather than what it may legislate on, marks the end for the LCO system

AS ELECTED politicians we are often accused of standing by policies and systems we don’t really believe in just because that’s the party’s line. But that is something which I am not prepared to do.

Over recent months my mind has been changed on a key issue of governance facing Wales. That is not an easy statement to make and on saying so in the Assembly on Tuesday, my words naturally drew attention.

When I entered this Assembly in May 2007, it was at the time when the provisions of the Government of Wales Act were coming into force. One of the key elements in that Act was the introduction of a system of Legislative Competence Orders (LCOs) by which the Assembly would, over time, accrue powers to make laws for Wales in Wales. As a pro-devolutionist, it seemed to me the right and natural thing to do.

From the outset, my support of the LCO process as it was first described has been strong and consistent. The White Paper of 2005 and the subsequent Government of Wales Act 2006 promised much. Without a doubt, I recognize that introducing the system was a radical and inventive way of making the constitution work in our favour so that we in Wales are able to make more of our own laws and – crucially – set our own agenda.

Many of those who have condemned the system from the start have never wanted it to succeed. They never wanted to give it a chance. Such critics have never wanted to let experience get in the way of some political polemic or to allow a system to “bed down”, as we have been told the LCO system needed to, before forming an opinion. That has not been my approach.

The persistent critics have often contrasted the LCO system with the report of the Richard Commission that preceded it. But such an approach is both simplistic and uninformed. The LCO system has certainly delivered a greater range of powers to this place more speedily than would have been possible under the process proposed by Ivor Richard, which if implemented would not have seen us achieve any primary powers until 2011. It is a point the Cassandras never make.

However, over time my opinion of the system’s effectiveness has changed. I have sat on three LCO committees and have sought different ways of making it work. But my experience of working within the system has made me lose faith in it. Effective and strong devolution means a process and a settlement where stability, transparency and clarity are fundamental elements of the legislative process. But it now appears that this process only works easily where there is little disagreement and only delivers substantial powers where those powers are non-controversial.

In my opinion – and it is one which is shared by impartial expert observers of this process like Marie Navarro from Cardiff University – LCOs are becoming increasingly narrowly drawn and the list of exemptions appears longer than the list of new powers. The time taken and the exhaustive and often pointless scrutiny mean that this already cumbersome process is fast becoming unwieldy and unsustainable.

Back in 2007, I stood on a manifesto commitment to transfer powers to legislate on language matters to Cardiff. I was therefore pleased to find myself a member of the legislation committee which considered the Welsh Language LCO when it was laid before the Assembly. But the LCO which the Assembly approved on Tuesday and which will now pass to the House of Commons and the House of Lords for scrutiny does not permit the wide transfer of legislative competence which so many of us wished to see. In supporting the approval of the LCO through the Assembly, I did so without any enthusiasm and with a great deal of frustration and disappointment. The final LCO was incomplete: narrow LCO and minimalist LCO. And it should and could have been very different.

When we started the legislative passage of the Welsh Language LCO there were widespread reports of the difficulties ahead. Assembly Members read numerous descriptions of forthcoming pain, most of which were written in almost medieval terms. None of that happened. To the great disappointment of the fourth estate and others, the committee of which I was a member met jointly with the Welsh Affairs Select Committee and we agreed. Yes, we agreed. We agreed across party lines and between Westminster and Cardiff Bay. The much and eagerly-predicted tensions were simply not there. We agreed that the language is clearly a matter where it is right, proper and appropriate that legislative competence rests here in Cardiff Bay. It was simply a matter of how this was to be achieved.

As a Committee we investigated and tested the government’s position. We questioned witnesses and called for written evidence and, as we expected, an enormous volume of correspondence duly arrived. Our report was published in the spring and by the summer the Welsh Affairs Select Committee also published its report. Yet the final LCO which has now been passed by the Assembly takes some note of both reports but makes amendments to the Order which were recommended by neither.

The amendment relating to the scope of the Order was particularly difficult to vote for. It did not describe or delineate an area of legislative competence but, rather, it described and prescribed what future legislation must contain. This addition broke a fundamental principle of the 2006 Act that while the matters set out in Schedule 5 of the Act define what the Assembly may legislate upon, determining how to legislate is purely a matter for the Assembly. This amendment was entirely contrary to the expectations of those of us who supported the 2006 legislation and entirely contrary to what was described to Parliament at that time. It creates the potential for this place to be emasculated by a future, unfriendly, Westminster government.

Taken together, the Secretary of State’s veto introduced by the now-lost Affordable Housing LCO – which was another example of flawed legislation which was scrutinized by a committee that I was a member of – and the new clauses introduced in the Welsh Language LCO, drive a coach and horses through this process. For this reason, I have lost faith in the LCO process.

It now appears that even a Welsh Assembly Government’s manifesto commitment supported by the electorate and endorsed by election cannot be carried on into law. At the same time the UK Government can now determine not only those areas where we will have legislative competence but also – crucially – how we legislate in those areas. That is a step too far. It is not legislative competence but more akin to us simply doing as we’re told and passing delegated legislation. That was not in the 2005 manifesto and it was not the purpose of the 2006 legislation.

The LCO system cannot go on. In constitutional terms, we must move from Part 3 to Part 4 of the Government of Wales Act 2006. In terms that everyone will understand: it is time for a referendum.

That is why I will be pressing my party and the new First Minister to bring forward proposals for an Order and an early vote on the legislation which will enable us to have a referendum as soon as possible after the next General Election.