The Welsh Assembly elections May 2007: the formation of the Welsh Assembly Government and recent developments in the Assembly

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1 The Welsh Assembly elections May 2007: the formation of the Welsh Assembly Government and recent developments in the Assembly Standard Note: SN/PC/4407 Last updated: 30 July 2007 Author: Helen Holden Parliament and Constitution Centre This Standard Note summarises the results of the Welsh Assembly elections in May 2007; the nomination of the First Minister and formation of the Welsh Assembly Government and recent developments in the National Assembly for Wales, including the election of the Presiding Officer and Deputy Presiding Officer, the election of the Assembly Commission and the setting up of committees. It also looks at the way in which the Assembly will be able to acquire new powers (via Legislative Competence Orders) to pass legislation called Assembly Measures. The involvement of Westminster in the pre-legislative scrutiny and approval of these Orders and the Welsh Affairs Committee s recent inquiry on the subject are noted. Contents A. Welsh Assembly elections 3 May B. Separation between the National Assembly for Wales and the Welsh Assembly Government 3 C. The new Welsh Assembly Government 4 1. Welsh Ministers 4 2. Nomination of the First Minister 5 3. Formation of the new Welsh Assembly Government 5 4. The Counsel General 9 D. The National Assembly for Wales after the elections 9 1. Election of the Presiding Officer 9 2. Opening of the Third Assembly 9 3. Setting up of committees 10 E. National Assembly for Wales Commission 11 F. Consideration of legislation by the Assembly Background Legislative Competence Orders Measures Subordinate legislation 16 G. Welsh Affairs Committee inquiry on Legislative Competence Orders 16 Standard Notes are compiled for the benefit of Members of Parliament and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise others.

2 H. Chronology 21 I. Sources and further reading Websites National Assembly for Wales 23 a. Procedural 23 b. Members Research Service Welsh Assembly Government Party material UK Parliament Legislation 24 2

3 A. Welsh Assembly elections 3 May 2007 The elections were held on 3 May 2007, with the following results. The figures in brackets indicate the number of seats won in the previous elections in 2003: Party Total seats won (change) Conservative (+1) Labour (-4) Liberal Democrat 6 6 (0) Plaid Cymru (+3) Others 1 1 (0) Source: House of Commons Library Research Paper 07/45 For further information on the elections see Library Research Paper 07/45 National Assembly for Wales elections: 3 May and National Assembly for Wales Members Research Service Briefing Paper 07/ Assembly election results (updated). 2 Labour with 26 seats is the largest party in the new Assembly but does not have a majority of seats. A period of negotiations between the parties followed the elections on 3 May with the outgoing First Minister, the Rt Hon Rhodri Morgan AM (Labour), eventually nominated as the new First Minister on 25 May. B. Separation between the National Assembly for Wales and the Welsh Assembly Government The Government of Wales Act 1998 (the 1998 Act) established the National Assembly for Wales as a single corporate body, with secondary legislative powers and 60 Assembly Members. The Government of Wales Act 2006 (the 2006 Act) 3 provided for a formal legal separation between: The National Assembly for Wales, which is the legislature comprising the 60 Assembly Members, and The Welsh Assembly Government, which is the executive comprising the First Minister, Welsh Ministers, Deputy Welsh Ministers and the Counsel General. This separation between legislature and executive took effect once the First Minister had been appointed by Her Majesty the Queen following the Assembly elections on 3 May Separation should help to clarify the respective roles of the legislature and the executive Chapter 32: (as passed) 3

4 The role of the executive in respect of the subjects devolved to Wales (including the economy, health, education and local government) 4 is now to: develop and implement policy exercise executive functions make subordinate legislation (regulations and statutory guidance) propose Assembly Measure (Welsh laws) The 60 Assembly Members in the National Assembly will now: scrutinise the executive s policies and decisions hold Ministers to account approve budgets for the Welsh Assembly Government s programmes propose, examine and approve Assembly Measures (which go further than the subordinate legislation they previously had the power to make) approve some subordinate legislation These arrangements now mirror much more closely the relationship between the UK Government and the Westminster Parliament and that between the Scottish Executive and the Scottish Parliament. The new National Assembly is not a corporate body and so a third body, the National Assembly Commission, was established in May C. The new Welsh Assembly Government 1. Welsh Ministers The Welsh Assembly Government now consists of: the First Minister the Welsh Ministers the Deputy Welsh Ministers the Counsel General The provisions of the 2006 Act allow up to 12 Welsh Ministers and Deputy Ministers. This means that the maximum size of the Welsh Assembly Government is 14, including the First Minister and Counsel General. The Act makes new provision for the appointment of Welsh Ministers. The First Minister is nominated by the Assembly and then appointed by the Queen. The First Minister subsequently appoints the Welsh Ministers and the Deputy Welsh Ministers, with the approval of the Queen. The Act also creates a new post of Counsel General, who is the chief legal adviser to the Welsh Assembly Government. The Counsel General is appointed by the Queen, on the nomination of the First Minister, whose recommendation needs to be 4 for the full list of broad subject areas, or fields, see F1 4

5 agreed by the National Assembly. The Counsel General may be, but does not have to be, an Assembly Member. Under the 1998 Act executive functions were conferred on the National Assembly for Wales and then separately delegated to the First Minister and to other Cabinet Ministers and staff as appropriate. Following separation, the Welsh Ministers exercise functions in their own right and further transfers of executive functions from the UK Government will be made directly to the Welsh Ministers (with their consent) by an Order in Council approved by Parliament. In the performance of their duties, Ministers are expected to behave according to the highest standards of constitutional and personal conduct. The Ministerial Code 5 issued by the First Minister 6 provides guidance to Ministers on how they should act and behave in order to uphold these standards. 2. Nomination of the First Minister The 2006 Act 7 provides for the First Minister to be appointed by the Queen on the recommendation of the Presiding Officer, following a vote in the Assembly. The Act and Standing Orders of the Assembly 8 set out the procedure for the Assembly to choose and nominate one of its Members for appointment as First Minister and for the Presiding Officer to recommend the appointment of that person to the Queen. The Assembly must nominate a First Minister before the end of the period of 28 days after a general election. 9 In 2007 this period ended at midnight on 30 May. Following the election on 3 May no party had an overall majority (see Section A above) and there ensued a period of negotiations between the parties on the form of the new government for Wales. The outgoing First Minister, the Rt Hon Rhodri Morgan AM (Labour), was eventually nominated as the new First Minister on 25 May 10 and appointed by the Queen. 3. Formation of the new Welsh Assembly Government Rhodri Morgan s first cabinet was announced on 31 May and comprised the following seven Labour AMs: 11 5 Welsh Assembly Government, Ministerial code: a code of ethics and procedural guidance for Ministers and Deputy Ministers, June 2007: 6 Rt Hon Rhodri Morgan AM, Cabinet Ministers and Deputy Ministers, June 2007: 7 Government of Wales Act 2006 ss46-47: 8 National Assembly for Wales, Standing Orders of the National Assembly for Wales, March 2007, in particular Standing Order 4.1 and Temporary Standing Order 36: 9 or other event as specified in the Government of Wales Act 2006 s.47: 10 National Assembly for Wales, Record of proceedings, 25 May 2007: 11 Welsh Assembly Government press release, First Minister announces Cabinet for third term, 31 May 2007: 5

6 First Minister Rhodri Morgan Strategy, science, Europe, Wales in the World Minister for Health and Edwina Hart NHS, public health, social Social Services services Minister for Education, Carwyn Jones Children and early years, Culture and the Welsh schools, year olds, Language skills, FE, HE, Welsh language, sport, arts Minister for the Economy and Dr Brian Gibbons Economic development, Transport transport, regeneration Minister for Sustainability Jane Davidson Climate change, sustainable and Rural Development development, environment, agriculture, energy, planning Minister for Social Justice and Public Service Delivery Minister for Budget and Business Five Deputy Ministers were announced later on 31 May: 12 Andrew Davies Child poverty, housing, public service delivery, local government, the spatial plan, community safety Jane Hutt Budget, financial planning and control, Assembly business management, including legislation Deputy Minister for Business and Chief Whip Deputy Minister to the Minister for Health and Social Services Deputy Minister to the Minister for the Economy and Transport Deputy Minister for Social Justice and Public Service Delivery Deputy Minister for Education, Culture and the Welsh Language Carl Sargeant Gwenda Thomas Special responsibility for social services Huw Lewis Special responsibility for regeneration Leighton Andrews Special responsibility for housing John Griffiths Special responsibility for skills On 5 June the Third Assembly was officially opened by the Queen and on 6 June Rhodri Morgan set out his legislative programme for the coming year, targeting child poverty, housing, health, education, the environment and the Welsh language. 13 Nine pieces of 12 Welsh Assembly Government press release, New Deputy Ministers announced, 1 June 2007: 13 Extract from Welsh Assembly Government press release, First Minister sets out legislative programme, 6 June 2007: 6

7 legislation were announced, six of which would be drafted under a new mechanism contained in the Government of Wales Act 2006, enabling the Assembly to initiate the acquisition of legislative power from the UK Parliament in certain areas. 14 Once powers had been acquired through these new Legislative Competence Orders (LCOs), they would have been devolved to the Assembly in perpetuity, and would enable the passing of Welsh laws called Assembly Measures. 15 The Welsh Assembly Government s press release gave further details: The six LCOs will focus on: Tackling child poverty and assisting vulnerable children. The LCO will include placing a duty on all public bodies to demonstrate their commitment to tackling child poverty. Environmental protection and waste management, to link long-standing public concern over litter and other environmental matters with sustainable waste management. Gaining enhanced legislative powers in relation to additional learning needs to enable a substantial restructuring of the Statementing system in special education. Seeking powers to legislate in the field of charges for home care and other nonresidential social services. Affordable housing. The Welsh language. In addition, the First Minister set out three proposed Assembly Measures using existing powers already devolved which would: Give greater rights to patients through an NHS Redress Measure. This will simplify ways that the public can seek redress from the NHS if things go wrong, establishing new rights, new processes and new outcomes for patients. Reform the curriculum, producing greater learning opportunities and diversity to prepare young people for their working lives. Deal with school transport, to include integrated systems, the creation of a green public transport system and the expansion of the Safer Routes to Schools scheme. A further period of negotiations between Labour and Plaid AMs took place in June, resulting in agreement on the power-sharing document One Wales on 27 June. 16 This committed a 14 For further information about LCOs see Section F2 below 15 For further information about Measures see Section F3 below 16 The text of the One Wales document is available on the Plaid Cymru website at: and is summarised on the BBC website at: Details of Labour-Plaid agreement, 27 June 2007: 7

8 Labour-Plaid administration to moves towards a Welsh Parliament with full law-making powers and promised help for first-time house-buyers, pensioners and students and a review of NHS configuration. The four-year programme pledged to increase the supply of affordable housing and improve road and rail links between north and south Wales. There was some strong opposition in both parties to these developments. 17 The document was put to special conferences of the respective parties on 6 July (Labour) and 7 July (Plaid) and endorsed by delegates 18 and a coalition Government was formed under Rhodri Morgan. The appointment of Ieuan Wyn Jones, the Plaid leader, as Deputy First Minister was confirmed by the Queen on 11 July 19 and a reorganised Cabinet announced on 19 July. 20 The new cabinet line up was as follows: First Minister Rhodri Morgan (Lab) Deputy First Minister and Ieuan Wyn Jones (PC) Minister for Economy and Transport Minister for Finance and Andrew Davies (Lab) Public Service Delivery Minister for Social Justice Brian Gibbons (Lab) and Local Government Minister for Education, Jane Hutt (Lab) Children and Young People Minister for Rural Affairs 21 Elin Jones (PC) Minister for Health and Edwina Hart (Lab) Social Services Minister for Sustainability Jane Davidson (Lab) and Housing Minister for Heritage Rhodri Glyn Thomas (PC) Includes tourism, Cadw, arts, sports and the Welsh language Counsel General and Leader Carwyn Jones (Lab) of the House, also Minister for Assembly Business and Communications Four Deputy Ministers were announced: Social Services Gwenda Thomas (Lab) Housing Jocelyn Davies (PC) Historic Labour-Plaid deal agreed, 27 June 2007: 17 Martin Shipton We don t like it, Western Mail, 29 June 2007, p1 [reaction of most Welsh Labour MPs and some Labour AMs]; Martin Shipton Labour AMs see red over financial coalition deal that wasn t what they had agreed with Plaid, Western Mail, 29 June 2007 p2; Martin Shipton Plaid has been stitched up by Labour, says Ron Davies, Western Mail, 29 June 2007 p4; Martin Shipton Howells in savage attack on Rhodri s Plaid pact, Western Mail, 4 July 2007 p1 [re letter by Kim Howells MP to his Pontypridd Constituency Labour Party] 18 BBC News, Labour agrees historic coalition, 6 July: Labour-Plaid coalition is sealed, 7 July: 19 Welsh Assembly Government press release, Ieuan Wyn Jones appointed Deputy First Minister, 11 July: 20 Welsh Assembly Government press release, New coalition cabinet announced, 19 July 2007: 21 formerly part of the Sustainability and Rural Development portfolio 8

9 Skills Regeneration John Griffiths (Lab) Leighton Andrews (Lab) Carl Sargeant would remain as Chief Whip and attend Cabinet. 4. The Counsel General Section 49 of the Government of Wales Act provides for the appointment of a Counsel General to the Welsh Assembly Government to act as its legal adviser and representative in the courts. The Counsel General is not a Welsh Minister but is a member of the Welsh Assembly Government and is appointed by the Queen, on the recommendation of the First Minister, with the approval of the Assembly. He/she need not be an Assembly Member, although can be, and Carwyn Jones AM has been recommended for the post. D. The National Assembly for Wales after the elections 1. Election of the Presiding Officer The Presiding Officer is elected by all Assembly Members and, once elected, serves the Assembly impartially. The Deputy Presiding Officer is elected in the same way. The Presiding Officer s main role is to chair Plenary, maintaining order and protecting the rights of Assembly Members. The Presiding Officer is also responsible for ensuring that business is handled on the basis of equality and impartiality and for standing orders, being the final authority on their interpretation. The Deputy Presiding Officer chairs Plenary in the absence of the Presiding Officer. Rt Hon Lord Dafydd Elis-Thomas AM (Plaid Cymru) was elected Presiding Officer and Rosemary Butler AM (Labour) Deputy Presiding Officer during the first plenary meeting of the Third Assembly on 9 May The provisions of the Government of Wales Act 2006 and the Standing Orders mean that, in the case of the Presiding Officer and Deputy Presiding Officer, one will normally be from the governing political group or groups and the other from the Opposition. With the formation of the Labour-Plaid coalition Government both offices are now held by members of the governing political groups. Standing Order 2 can, however, be disapplied by a two thirds majority in plenary. 2. Opening of the Third Assembly The Third Assembly was opened by the Queen on 5 June release stated: The Assembly press 22 Government of Wales Act 2006 s49: 23 National Assembly for Wales, Record of proceedings, 9 May 2007: 24 National Assembly for Wales press release, Presiding Officer s speech on the eve of the opening of the Third Assembly, 4 June 2007: 9

10 Her Majesty the Queen has officially opened the Third Assembly, accompanied by The Duke of Edinburgh, The Prince of Wales and the Duchess of Cornwall. Assembly Members and members of the Judiciary were present at the ceremony in the Senedd, at which the mace was carried in to the Siambr to signify the opening of the Assembly. The Queen then signed a commemorative parchment to announce the opening of the Third Assembly. 3. Setting up of committees Committees in the Assembly carry out many functions: some scrutinise the policies of the Welsh Assembly Government and hold Ministers to account; some examine proposed legislation; and others have specific functions allocated to them by the Assembly or its Standing Orders. There are four main types of Committees: Scrutiny Committees have the power to examine the expenditure, administration and policy of the Assembly Government and associated public bodies. Mandatory Committees are named in the Standing Orders of the Assembly and have specific roles, details of which are listed on their homepages. Regional Committees may exist in each electoral region if the Assembly votes to do so. These committees would be concerned with matters particular to the region. Ad-hoc Committees may be created according to the needs of the Assembly. These may include committees created to scrutinise Assembly Measures, Legislative Competence Orders, or specific issues that arise. Committees are generally party-balanced, reflecting the number of Assembly Members representing each party within the Assembly, and most meet in public. The first committees were set up on 26 June and the following are now in being: Audit Committee Business Committee Communities and Culture Committee Enterprise and Learning Committee Equality of Opportunity Committee National Assembly for Wales press release, Third Assembly opened, 5 June 2007: 10

11 European and External Affairs Committee Finance Committee Health, Wellbeing and Local Government Committee Petitions Committee Standards of Conduct Committee Subordinate Legislation Committee Sustainability Committee Sub-Committees Rural Development Sub-Committee Legislative Committees Proposed Additional Learning Needs LCO Committee Proposed Environmental Protection and Waste Management LCO Committee Proposed NHS Redress (Wales) Measure Committee Proposed Vulnerable Children LCO Committee E. National Assembly for Wales Commission The Government of Wales Act 2006 provides for a new corporate body, the National Assembly for Wales Commission. 25 The Commission is responsible for ensuring that property, staff and services are provided for the Assembly. It consists of the Presiding Officer and four Members from different political parties, each with different portfolios of work, and is supported by staff in the Corporate Unit. Standing Order sets out the arrangements for the appointment of the four Assembly Members, and states that there will not be more than one member of the Commission (other than the Presiding Officer) from the same political group. The Assembly Commissioners were elected by Members in Plenary on 6 June. Along with the Presiding Officer, who chairs the Commission, the members are, at the time of writing: Lorraine Barrett Peter Black William Graham Labour Welsh Liberal Democrats Welsh Conservative Party 25 Government of Wales Act 2006 s.27: 26 Assembly for Wales, Standing Orders of the National Assembly for Wales, March 2007: 11

12 Vacant, following the appointment of Elin Jones as Minister for Rural Affairs on 19 July Plaid Cymru The Commission has a number of policies under development, as follows: Welsh Language Scheme Equality of Opportunity Sustainable Development Policy Health and Safety Policy Statement of Practices and Procedures for the Assembly Commission Corporate Governance Framework Financial Standards Staff Code of Conduct Public Interest Disclosure Policy Records Management policy Freedom of Information Publication Scheme Procurement Policy Risk Management Strategy IT Security Policy Business Continuity Plan The first of these, the Welsh language scheme, was launched on 11 July. 27 F. Consideration of legislation by the Assembly Background The Government of Wales Act 2006 (the 2006 Act) provides a mechanism for the Assembly to acquire, on a case-by-case basis, more powers to make its own laws. The ability of the Assembly to make these laws is known as its legislative competence. In the 2006 Act the legislative competence of the Assembly is defined by reference to fields and matters : A field is a broad subject area, e.g. education and training, health and health services A matter is a specific defined policy area within a field In the areas where it has legislative competence, the Assembly can make its own laws, known as Measures. A Measure will have a similar effect to an Act of Parliament. The fields and matters are listed in Schedule 5 to the 2006 Act. The current fields are: Field 1: agriculture, fisheries, forestry and rural development 27 National Assembly for Wales press release, Assembly Commission to launch Welsh language scheme, 11 July 2007: 28 Based on National Assembly for Wales, A guide to the legislative process in the National Assembly for Wales, June 2007: 12

13 Field 2: ancient monuments and historic buildings Field 3: culture Field 4: economic development Field 5: education and training Field 6: environment Field 7: fire and rescue services and promotion of fire safety Field 8: food Field 9: health and health services Field 10: highways and transport Field 11: housing Field 12: local government Field 13: National Assembly for Wales Field 14: public administration Field 15: social welfare Field 16: sport and recreation Field 17: tourism Field 18: town and country planning Field 19: water and flood defence Field 20: Welsh language Within each of the above fields, specific matters will be listed which give the Assembly the power to make Measures within the policy area defined by the matter. Schedule 5 may be amended to add more matters within fields, thereby extending the legislative competence of the Assembly and providing more policy areas where it is possible to make Measures. Schedule 5 may be amended by either: A new Act of Parliament e.g. the NHS Redress Act 2006: 13

14 A Legislative Competence Order (LCO) (subject to approval by both the Assembly and the UK Parliament) The text of Schedule 5 of the Act is kept up to date on the Assembly website as matters are added to fields. It can be accessed via the following link: 2. Legislative Competence Orders Legislative Competence Orders (LCOs) are a type of secondary (or subordinate) legislation which transfer specific powers from Parliament to the Assembly. Each new LCO will add a new matter (or matters) to the relevant field in Schedule 5, providing the Assembly with the power to make Measures within the policy areas defined by the matter. An LCO can be proposed by: The Welsh Assembly Government An Assembly Committee, or An individual Assembly Member, if their name is drawn from a ballot 30 LCOs will be considered in both the Assembly and Parliament in a two-stage process in each: The pre-legislative scrutiny of a proposed LCO by a committee, and The approval by the Assembly and Parliament of a draft LCO Finally, the draft LCO, if approved, will be submitted to Her Majesty in Council. It then becomes law, amending Schedule 5 to the 2006 Act and providing the Assembly with more powers to make Measures. The process for pre-legislative scrutiny of proposed LCOs and approval of drafts LCOs by the Assembly and Parliament is complex and some of the details are, at the time of writing, still being developed. A useful diagram of the expected process can be found at the end of the House of Commons Welsh Affairs Committee s recently published report on Legislative Competence Orders. 31 Briefly, the process will be: Pre-legislative scrutiny/consideration of the proposed LCO: 30 The first ballot for submitting a proposed LCO was held on 26 June 2007: Ann Jones s proposed domestic fire safety LCO was selected. 31 Welsh Affairs Committee, Legislative Competence Orders in Council: Second Report of Session , HC 175, 9 May See the Memorandum submitted by Professor Keith Patchett, Special Adviser to the Committee, at Ev 25 at the end of the pdf version of the report: 14

15 Consideration by the relevant Assembly Committee and the House of Commons Welsh Affairs Committee (WAC), possibly jointly (probably involving just selected members of the WAC) Consideration at about the same time by the House of Lords Constitution Committee Possible amendment of the proposed LCO Approval of the draft LCO: The draft Order is laid before the Assembly The Assembly can vote to approve or reject the draft Order, which cannot be amended If the draft Order is approved by the Assembly it is the responsibility of the Secretary of State to lay the draft before Parliament for approval by both Houses If the draft Order is laid (if the Secretary of State refuses to lay it he must give his reasons in writing to the First Minister) it can be approved or rejected but not amended If the draft Order is approved by both Houses it is formally approved by the Queen and becomes law, amending Schedule 5 to the 2006 Act To date three LCOs have been proposed in the Assembly: 32 National Assembly for Wales (Legislative Competence) Order (Additional Learning Needs) (laid 11 June 2007) National Assembly for Wales (Legislative Competence) (No 2) Order (Environmental Protection and Waste Management) (laid 19 June 2007) National Assembly for Wales (Legislative Competence) (No 3) Order (Vulnerable Children) (laid 9 July 2007) The relevant Assembly committees have recently called for public views on the first two of the above LCOs Measures A Measure is a law made by the Assembly which has similar effect to an Act of Parliament. The Assembly can pass Measures on any matter listed in Schedule 5 to the 2006 Act. While a Measure is in progress through the Assembly it is known as a proposed Measure. A proposed Measure may be introduced by: The Welsh Assembly Government An Assembly Committee An individual Assembly Member, if their name is drawn from a ballot National Assembly for Wales press releases, 26 July 2007: The first ballot for submitting a proposed Measure was held on 26 June

16 The Assembly Commission The proposed Measure must be laid in English and Welsh and accompanied by a statement of legislative competence by the Presiding Officer and an Explanatory Memorandum. There is a four-stage process for the consideration of a proposed Measure involving: Stage 1 - consideration of general principles by a committee 35 and agreement of those principles by the Assembly Stage 2 - detailed consideration by a committee of the proposed Measure and any amendments tabled Stage 3 detailed consideration by the Assembly of the proposed Measure and any amendments selected Stage 4 vote by the Assembly to pass the final text of the proposed Measure If passed by the Assembly the proposed Measure must then receive Royal Approval from the Queen before becoming law. To date one Measure has been proposed in the Assembly, 36 the Proposed NHS Redress (Wales) 2007 Measure. The relevant Assembly committee has recently called for public views on the proposed Measure Subordinate legislation Subordinate legislation (regulations and statutory guidance) will be made by the Welsh Ministers and will be subject to either negative resolution procedure, affirmative resolution procedure or no procedure in the Assembly. The parent Act or Measure will specify the appropriate procedure. Details of subordinate legislation currently before the Assembly and subject to the affirmative of negative procedure can be found on the Welsh Assembly website: 38 G. Welsh Affairs Committee inquiry on Legislative Competence Orders The House of Commons Welsh Affairs Committee, chaired by Dr Hywel Francis MP, conducted an inquiry in on Legislative Competence Orders (LCOs). It took oral evidence at Westminster on 19 December 2006 from Nick Ainger MP, Parliamentary Under Secretary of State for Wales; Rt Hon Lord Dafydd Elis-Thomas AM, Presiding Officer; Jane Hutt AM, Business Minister; Jenny Randerson AM, Chair, Committee on Standing Orders; officials from the Wales Office, the Welsh Assembly Government and the National Assembly for Wales; and a constitutional consultant, Aled Eurig. The Committee also took written evidence from Nick Ainger, Jane Hutt. Professor Keith Patchett, Cymru Yfory Tomorrow s Jenny Randerson s proposed Healthier School Meals Measure was selected. 35 Unless the proposed Measure is a Committee proposed Measure National Assembly for Wales press release, 20 July 2007:

17 Wales and the Wales Office. The Committee s report was ordered to be printed on 9 May 2007 and published on 5 June. 39 In a press notice from the Committee, dated 17 July 40 the Chair, Dr Hywel Francis, said that later in the week he would be meeting the Chairs of the Welsh Assembly committees appointed to scrutinise proposed legislative competence orders and: The Welsh Affairs Committee looks forward to playing its part in this new procedure and welcomes the opportunity it provides for working together with the Assembly Committees, both in Westminster and in Cardiff, in examining the proposed Orders. The Government response to the Committee s second report is included in the Committee s First Special Report, ordered to be printed on 24 July and published on 30 July. 41 That response lists the second report s conclusions and recommendations in bold, with the relevant Government response in normal font below each one, as follows: 1. We welcome the opportunities provided for working jointly with Assembly committees in the scrutiny of proposed LCOs, subject to the comments elsewhere in this Report concerning their anticipated number and timing, whilst of course we acknowledge the Welsh Affairs Committee's primary responsibility to inquire into Government policy as it affects Wales. We are keen to ensure that we retain flexibility in our own timetable of inquiries and we believe it is very appropriate that as elected representatives of the people of Wales we have this central role. (Paragraph 18) The Government welcomes the Committee's willingness to work jointly with Assembly committees, and notes the Committee's comments in relation to the anticipated number and timing of the proposals. The Government welcomes the Committee's willingness to engage with and contribute to this important process for Wales. 2. While we welcome the opportunity for this Committee to scrutinise proposed LCOs, we agree with the Parliamentary Under Secretary of State for Wales' comment that there is a balance to be struck, and that this Committee needs to consider the effect it could have on its existing programme of inquiries. (Paragraph 19) The Government notes and appreciates the Committee's need to balance the work entailed by undertaking pre-legislative scrutiny of all of the Order in Council proposals in the context of its wider programme of work. The appropriate level of pre-legislative scrutiny will be a matter for the Committee to determine. In the case of particularly complex or controversial proposed Orders, the Committee may decide that more intensive scrutiny is required. In the case of straightforward or technical proposed 39 Welsh Affairs Committee, Legislative Competence Orders in Council: Second Report of Session , HC 175: 40 Welsh Affairs Committee press notice, Legislative Competence Orders in Council, 17 July 2007: 41 Welsh Affairs Committee, Legislative Competence Orders in Council: Government Response to the Committee s Second Report of Session : First Special report of Session , HC 986: 17

18 Orders, for example, a proposed Order purely intended to tidy up Schedule 5, the Committee may conclude that little or no pre-legislative scrutiny is required. 3. We also note that in conducting pre-legislative scrutiny of LCOs, we may need to draw on additional legal advice. (Paragraph 20) The Government notes the views of the Committee and will look to the Committee to determine whether it needs to draw on additional legal advice as it sees fit. 4. We agree with the Parliamentary Under Secretary of State and with the Business Minister that, in cases where a proposed Order raises complex legal issues, has wide implications or is politically controversial, it may be appropriate for it also to be scrutinised by the Welsh Grand Committee, following its scrutiny by the Welsh Affairs Committee or by another committee of the House. (Paragraph 23) The Government gave assurances about pre-legislative scrutiny for these proposed Orders in Council during the passage of the Government of Wales Act 2006, including the role of the Welsh Grand Committee where appropriate (Hansard, 24 January 2006, column 1329). The Welsh Affairs Committee will need to identify the circumstances in which it believes that it is more appropriate for the Welsh Grand Committee to undertake such scrutiny. The Committee could also consider inviting MPs with an interest to make representations during its own scrutiny of the proposals in order to ensure that any Member or Peer has an opportunity to comment as they could have done during a Bill's passage through Parliament. 5. We recommend that the UK Government and the National Assembly give further consideration to the means by which the timetables of the National Assembly, the House of Commons and the House of Lords can be most effectively co-ordinated for the consideration of LCOs. We agree with the House of Lords Select Committee on the Constitution that pre-legislative scrutiny in the Commons and the Lords should be concurrent rather than consecutive, and that the work of one House should complement rather than duplicate the work of the other. (Paragraph 26) The Government notes the Committee's views. We would welcome effective coordination and joint scrutiny with Assembly Committees to ensure that scrutiny is concurrent, so that the process can be dealt with expeditiously. Complementary rather than duplicative work would also aid effectiveness. We anticipate individual Assembly Committees will keep the Welsh Affairs Committee informed of their planned work on proposed Orders in Council to enable the Committee to plan its work programme. Reconsideration 6. We note that it is a matter for the Assembly, and in particular for the originator of the proposed Order, how to take into account any differing and possibly competing recommendations contained in reports following the prelegislative scrutiny of a proposed Order. (Paragraph 27) The Government envisages that where proposed Orders in Council originate from the Welsh Assembly Government, they will decide, in agreement with the UK Government, what amendments are required in light of pre-legislative scrutiny. Where proposed Orders in Council originate from an Assembly backbencher or Assembly 18

19 Committee, it will be for them to decide how to take recommendations into account, but the Welsh Assembly Government and the UK Government may provide technical assistance as appropriate. The finalised draft Order will then be tabled before the Assembly, and if approved, the First Minister will write formally to the Secretary of State requesting that it be laid in Parliament. 7. We fully support the view of the witnesses before this Committee that the presumption should be that proposed LCOs should be subject to prelegislative scrutiny. (Paragraph 33) The Government fully endorses the presumption that proposed Orders should normally receive pre-legislative scrutiny. The Government gave commitments in January in relation to pre-legislative scrutiny (Hansard, 24 January 2006, column 1329), and similar commitments were given when the Wales Office Parliamentary Under Secretary and Assembly Business Minister gave evidence during this inquiry. As noted in evidence to the Committee there may be special circumstances when a shortened or accelerated procedure may be appropriate, or indeed in rare circumstances where pre-legislative scrutiny is not possible. 8. If there have been substantive changes between the proposed Order and the draft Order laid before Parliament, we would expect the Government to allow sufficient time for further parliamentary scrutiny if this Committee or others wished to conduct it. (Paragraph 37) The Government notes the Committee's comments, and has indicated its strong commitment to pre-legislative scrutiny. 9. We re-iterate our view that the debate of draft Orders should be undertaken on the floor of the House. (Paragraph 41) The Government notes the Committee's view and it will be reflected in discussions by the usual channels as Orders come forward. 10. We recommend that the authorities of the National Assembly explore the possibility of making appropriate arrangements to represent the interests of the originator of a draft Order as it passes through its Parliamentary stages. (Paragraph 43) The Government notes the Committee's comments. This will be a matter for the National Assembly for Wales and we understand that they are considering ways in which they may do this. 11. The Parliamentary Under Secretary of State estimated that there would be "four or five" LCOs annually "evenly paced throughout the year", which he described as "manageable". He also described as "unattainable" estimates he had seen of up to 30 LCOs a year. We agree with both these assessments, and would be very concerned if anything approaching the upper estimate was proposed. The Parliamentary Under Secretary also indicated that pre-legislative scrutiny was expected to take between three and six months; "certainly six months would be the maximum time". If there are to be four or five LCOs a year, this timeframe seems to us reasonable as far as Westminster is concerned. (Paragraph 44) The Government welcomes the Committee's views. This process has been introduced to give the Assembly the legislative competence it needs to make 19

20 Assembly Measures to enable the Welsh Assembly Government to implement its policies. The making of Assembly Measures will become a key component of the Assembly's workload, which it will need to balance with the work which the proposed Orders will require from Assembly Members. 12. We are concerned that to continue to add Matters by primary legislation could therefore be a device for a general, rather than a specific, extension of Assembly powers, which at the same time negates the opportunity for specific and detailed pre-legislative scrutiny either by a committee of the National Assembly or by the Welsh Affairs Committee. (Paragraph 49) The Government notes the Committee's views. Government policy on this matter remains as set out in the 'Better Governance for Wales' White Paper. That said ""...the Government intends for the future to draft Parliamentary Bills in a way which gives the Assembly wider and more permissive powers to determine the detail of how the provisions should be implemented in Wales." The Order in Council mechanism has been introduced because previously there was an important limitation on the Welsh Assembly Government's ability to implement its policies, and especially to take prompt action in an area of policy where the public might expect it to be able to do so. The limitation was that its opportunities to promote any changes to legislation were constrained by the legislative priorities of the UK Government. So the Order in Council procedure will be of particular relevance, where there is no suitable Bill in the Government's programme to which the required Welsh provisions could be attached, and no time for a Wales-only Bill given other legislative priorities. Where there are UK Bills which provide a suitable legislative vehicle to deliver framework powers to the National Assembly, it is the Government's view that it is entirely appropriate to do so, not least for the efficient utilisation of legislative capacity. Both Orders in Council and Framework Powers are therefore appropriate vehicles to modify the Assembly's legislative competence. And as the "Better Governance for Wales" White Paper makes clear, "the decision as to how wide a policy area such a power would cover on any particular occasion would be a matter for Parliament". Whichever route is used, the Government is committed to ensuring that Parliament has the information it requires to make a judgement about the appropriateness of conferring particular powers. Where framework powers are sought, just as with Orders in Council, an explanatory memorandum will therefore be produced and used as part of the scrutiny arrangements. That explanatory memorandum will provide a clear justification as to why the proposed powers are being sought and why they have been framed in a particular way, whether broadly or narrowly. The UK Government will on introduction in either House place copies of the explanatory memorandums in the Library of both Houses, at the same time it will make copies available to Welsh MPs and Peers and also provide Opposition spokespeople with a copy. Where substantial Government amendments are made to Clauses containing framework powers - for example, if new Matters are added - the Government will issue a supplementary explanatory memorandum setting out the intended purpose of the change. Framework Powers will have the same level of detailed scrutiny and testing by amendment as any other proposed provision in a Bill, and will be subject to 20

21 amendment during the passage of the Bill to take account of points raised during the debate. As the Committee points out in its Report, the recent changes to Bill Committee consideration will also provide additional opportunities for scrutiny. Committees will begin with an evidence session, which will help them to programme their subsequent consideration. Any members or other individuals or organisations with an interest in a particular provision will be able to take this opportunity to make submissions relating to the Framework Power to the Bill Committee for consideration. If the Welsh Affairs Committee saw fit, it could flag a framework power for Wales as meriting closer attention and examination. The Government has undertaken to issue a Written Ministerial Statement to Parliament following the Queen's Speech setting out the provisions within the programme affecting Wales. The Government would seek to draw to Parliament's attention the inclusion of any framework powers in Bills at this point. How these matters are scrutinised within the National Assembly for Wales is a matter for that body. The Secretary of State for Wales makes an annual statement to the National Assembly for Wales on the content of the UK Government's legislative programme. The Assembly can refer to its committees consideration of Welsh aspects of UK Bills. Committees conduct evidence sessions and Wales Office Ministers attend Committee hearings to give evidence. We will continue to do so if invited. 13. We are pleased to note the Presiding Officer's comment that a consolidated list of Fields will be published on the Assembly's website and will be updated regularly. (Paragraph 53) Schedule 5 will at all times stand as the definitive list of the current matters within each field, within which the National Assembly will have legislative competence. The definitive list will also be made available on the Wales Office website, and the Welsh Assembly Government website, new.wales.gov.uk and updated where necessary. 14. We agree with the Presiding Officer's comment that the process by which the legislative powers of the National Assembly are enhanced should be as open and transparent as possible, and that this should be borne in mind as practice and procedure develops. (Paragraph 54) The Government notes the Committee's comments, and pre-legislative scrutiny will play a vital role in bringing transparency to the process whereby Parliament will confer legislative competence on the Assembly. Where Parliament is asked to consider a proposed draft order, it will be accompanied by an explanatory memorandum providing a description of the purpose for which the power is being sought and specifying the areas where legislation is required. H. Chronology 3 May 2007 Welsh Assembly elections 9 May

22 First plenary meeting of the Third Assembly held. Lord Elis-Thomas elected as Presiding Officer; Rosemary Butler AM as Deputy Presiding Officer 25 May 2007 Rhodri Morgan AM elected First Minister 31 May 2007 First Minister announces his new Cabinet for the Third term of the Welsh Assembly Government and appoints Chief Whip 31 May 2007 First Minister appoints Deputy Ministers 5 June 2007 The Queen officially opens the third term of the Assembly 6 June 2007 First Minister sets out legislative programme 6 June 2007 National Assembly for Wales Commissioners elected 12 June 2007 First Legislative Competence Order (Education and Training (Additional Learning Needs)) published 13 June 2007 Consultation on new Assembly petitions system launched 19 June 2007 Assembly elects new Subordinate Legislation Committee 26 June 2007 New Assembly committees elected and membership announced 26 June 2007 First AMs ballot for Legislative Competence Motions (LCOs) and Assembly Measures 27 June Labour and Plaid Cymru AMs agree in principle to form a coalition Welsh Assembly Government 6 July 2007 The terms of the power-sharing document One Wales are backed by a special Labour Party conference in Cardiff 7 July 2007 Plaid Cymru members ratify the One Wales document at their national council meeting in Pontrhydfendigaid, Ceredigion 22