National Assembly for Wales

Subordinate Legislation Committee Consultations

Inquiry into the Developments in Schedule 5 to the Government of Wales Act 2006, including Exceptions to Matters

S5 5 – Tomorrow’s Wales

January 2010

Evidence presented by Tomorrow’s Wales to the Subordinate Legislation Committee’s inquiry into Schedule 5 and Fixed and Floating Exceptions

1.This memorandum is presented by Tomorrow’s Wales to the National Assembly for Wales Subordinate Legislation Committee’s inquiry into Schedule 5 of the Government of Wales Act 2006, and the use of fixed and floating exceptions in that Schedule.

2.In its evidence to the All-Wales Convention, Tomorrow’s Wales listed five principles that it believes should form the basis of the devolution settlement:

  • stability;
  • effectiveness and efficiency;
  • clarity and transparency;
  • as much participation as possible;
  • autonomy.

    3.Tomorrow’s Wales believes that Schedule 5, as it currently stands, works against every one of those principles. The content of Schedule 5, which is varied and unclear, undermines the ability to understand it and its clarity. It is difficult, if not impossible, for the general public to understand, in a simple way, which areas have been devolved and which have not. In turn, this means that it is difficult to implement Schedule 5 in an effective and efficient way, particularly in terms of those who use the legislation (apart from the Government). This also means that it fails to secure wide participation (let alone the most participation possible) in devolved governance. The variable nature of Schedule 5, and the cloudy processes that often drive which areas are devolved and how these are framed, means that it is fundamentally unstable. The fact that there is so much debate about which issues should or should not be devolved – especially those regarding the changes made to framework powers, which are not subject to the consent of the National Assembly – undermines the Assembly’s control.  

4.Therefore, Tomorrow’s Wales believes that the way in which Schedule 5 was developed goes against the principles of good governance (we went into more detail on this in our presentation to the All-Wales Convention).

5.In terms of developing fixed and floating exceptions, our concern is based on similar principles. Despite the fact that we concede that there are some advantages to using ‘floating’ exceptions in clarifying the principles regarding what is and what is not devolved, the way in which these were put in writing does not ensure stability, increase the participation of the masses, or secure the powers of the Assembly. For example, the environmental protection and waste management LCO contains exceptions in fields that are not currently devolved. This could cause confusion in the future.  

http://wales.gov.uk/docs/awc/publications/090217tomorrowswalescy.pdf