National Assembly for Wales
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BGW2 EV14

Evidence to the Committee on the Better Governance for Wales White Paper 10 July 2005

Jenny Randerson AM, Chair of the Business Committee

Background

The terms of reference of the Business Committee are set out in Standing Order 13 (Annex 1).

This evidence will concentrate upon those elements of the White Paper’s proposals of particular relevance to the Business Committee's roles, and will deal with relevant areas where the White Paper is silent. The views expressed are those of the Chair, and do not necessarily reflect the views of the Committee.

Scrutinising Ministers

The proposal that the Assembly should generally be able to establish such committees as it sees fit, having regard to party balance is welcome. The current requirements are too detailed and inflexible and have restricted the ability of the Assembly's committees to evolve. The removal of unnecessary statutory restrictions will enable the Assembly to decide how it should organise its own committees to ensure effective scrutiny. However, there is a danger that committees will be seen simply as a vehicle for scrutiny of Ministers and draft legislation. There are many good things in committees' current ways of working, in terms of conducting creative and proactive policy inquiries and engagement with the public, and the Assembly should not abandon these strengths lightly.

Although there is no need to have statutory provision for a business committee, the business programming and procedural roles it currently performs will assume even greater significance. An Assembly with enhanced legislative competence will need an effective means of considering its business programme, including the timetabling of legislation. One of the strengths of the Business Committee is the opportunity it provides for all the political parties to play a part in shaping the Assembly timetable, ensuring proper scrutiny of legislation and safeguarding time for other activities including Ministerial scrutiny and non-executive business. There will also be a need for an effective mechanism for considering the practice and procedures of the Assembly, including proposed amendments to Standing Orders. At present the combination of these two roles in one committee works well and there has been no conflict between them. The current remit of the Business Committee emphasises the inter-relationship between business programming and procedures and allows its members to develop concentrated expertise and experience. This will continue to be an important consideration in an Assembly with only 60 Members.

Legislation

  The proposal that Members should be able to pass or to reject the legislation proposed by the Welsh executive is welcome. The Assembly should have the ability to set its own procedures for the scrutiny and passage of legislation, building upon the experience of its Members and staff since 1999. There should be scope within the legislation for Assembly Members to bring forward non executive legislation, either as "private Members" legislation or committee legislation.

  The proposals to allow Her Majesty to make Orders in Council to give the Assembly powers, in specified areas of policy, to modify the provisions of Acts of Parliament in their application to Wales or to make new provision are interesting. The Business Committee look forward to commenting on the detailed proposals in due course. There will need to be clarity from the outset about whether the Assembly or the executive will be responsible for communicating proposals for Orders in Council to the UK Parliament. There should be a process by which non-executive proposals for legislation can be agreed by Assembly Resolution and passed by the Assembly to the Secretary of State, with a requirement for onward transmission to the UK Parliament. Similarly, an executive proposal which was supported by a majority vote in the Assembly might be regarded as carrying greater authority in the UK Parliament than one which came solely from the executive.

In the light of the Business Committee's recent discussions with our counterparts in the Bureau in Edinburgh, the proposal to introduce a similar procedure to the Scottish Sewel Motions to enable Westminster to legislate for Wales on occasions when it would be more efficient to do so is welcome. Clarity as to whether proposals will be made by the Assembly, as the democratic legislature, or the government will be necessary.

Time Pressures

Whilst welcome, the proposals for enhanced legislative competence will require the Assembly to re-consider how we use our time. During the First Assembly only 3% of Committee time and 9% of Plenary time was devoted to consideration of legislation. Even these figures disguise the fact that consideration of a draft order often took the form of a broad debate about the principles of the draft legislation and the policy behind it. Consideration of detailed textual amendments was very rare. The Report of the Richard Commission show the leap that we will have to take. Over 25% of the time in the Scottish Parliament is taken up with consideration of legislation. The Richard Commission Report gives an example of a relatively short, uncontroversial Bill (the Scottish Public Services Ombudsman Act 2002) which took over 7 hours of committee time and 2 hours 15 minutes in plenary. The implications of the requirement for the Assembly effectively to scrutinise draft legislation in both English and Welsh simultaneously should not be under-estimated.

The need to perform proper legislative and Ministerial scrutiny, will provide a significant challenge to the capacity and ingenuity of our 60 Members. A comprehensive and holistic review of our procedures, including the number of sitting weeks, sitting times, balance of committee and Plenary time, size and membership of committees and the consequences for staffing, will be essential and I expect that the Business Committee will play a full part in this.

Subordinate Legislation

The proposal in the White Paper that Ministers will be able to exercise many of the Assembly's existing powers to make secondary legislation, subject to scrutiny by the Assembly is welcome. At present the Business Committee has a dual role in relation to subordinate legislation. The Committee advises the Business Minister on the route by which each piece of draft legislation should pass through the Assembly, and thereby the level of scrutiny that it receives. The Committee has also adopted responsibility for the scrutiny of the Government's compliance with the procedural requirements in statute and Standing Orders.

The proposal to give the Assembly freedom to decide how to exercise its scrutiny function in relation to subordinate legislation is welcome. The principle that the Assembly should be able to decide the degree of scrutiny which it wishes to give to individual draft orders, based on their merits and taking into account all of the circumstances at the time, is an important one. Therefore, decisions about the procedure by which individual orders should be considered by the Assembly should ultimately be in the hands of Assembly Members themselves, and not the prerogative of Assembly Ministers or the UK Parliament.

Our current procedures for making and scrutinising subordinate legislation are too long and unwieldy and require supplementary mechanisms, such as the Legislation Protocol agreed in the Business Committee to enable them to work effectively. The opportunity to devise new procedures will be welcome.

It will be necessary to consider the future role of the Legislation Committee so that the role of ensuring that draft orders comply with statutory and procedural requirements, which the Business Committee performs by default, continues as part of the essential function of technical scrutiny of draft subordinate legislation. The public needs to be confident that all legislation made in Wales is of the highest technical standard.

Assembly Standing Orders

At present the Business Committee is responsible for considering and making recommendations to the Assembly about proposals to amend Standing Orders. As a Committee we have given detailed consideration to hundreds of proposed amendments since 1999 and, as individual Members and supporting officials, we have built up considerable knowledge and experience of Standing Orders and Assembly practice and procedures. The proposal to remove most of the restrictions and requirements in respect of Standing Orders from the legislation is welcome. This should provide an opportunity to allow those who have the greatest knowledge of the operation of Assembly procedures, the Members themselves and those who support them, to determine their own procedures.

Therefore, the proposal that the Secretary of State should make the Standing Orders of the new Assembly, with advice from an advisory committee is not appropriate. I believe that the Assembly itself, with its six years experience of working with its Standing Orders and supported by its experienced staff, is the appropriate body to make rules about its own proceedings. If this is the case, I would anticipate the Business Committee taking a lead in developing and drafting new Standing Orders in readiness for the Third Assembly.

Annex 1

Terms of Reference of the Business Committee - Standing Order 13

Title and Terms of Reference

There shall be a Business Committee, which shall:

  • advise the Business Minister on the management of the Assembly’s business;
  • advise the Deputy on the exercise of his or her functions under Standing Order 24 (subordinate legislation procedures); and
  • make such recommendations to the Assembly as it thinks fit on the general practice and procedure of the Assembly in the conduct of its business (including any proposals for revision of Standing Orders).

Membership

The Assembly shall elect to the Committee one Member from each political group in the Assembly, together with another Member to chair it. If a Member other than the Deputy is elected to chair the Committee, the Deputy shall be entitled to attend meetings of the Committee.

A member of the Committee may, having given advance notice to the chair, be represented at a meeting, or a part of a meeting, of the Committee by another Member from the same political group who has been identified in advance. In giving such notice, the Member shall indicate the reason for the need for substitution. The nominated representative may participate in the meeting of the Committee in all respects as if he or she were a member of it.

Meetings

The Committee shall meet each week that the Assembly holds a plenary meeting. It shall meet in private.

Provisions in these Standing Orders relating to quorums for committees or voting in committees shall not apply to the Committee.