BGW2 EV8

Better Governance for Wales

Comments by Professor David Miers

I wish to comment on the proposals to develop and to enhance the Assembly’s law making powers.

My comments are organised as a narrative that addresses the processes by which new Assembly legislative powers will be conferred, in particular via the 'enhanced’ route. For this purpose I assume that the Assembly will enjoy the liberating effect of the welcome proposal that the complex prescriptions in GOWA concerning its Committees will be removed and that it will be free to devise new Standing Orders (para. 2.15). The Assembly has a prime opportunity to revisit and revise its Committee structure to purposes that are more clearly focused (because of the de jure recognition of the de facto separation of powers: para. 1.18) and make better use both of AMs’ and WAG’s time for its deliberative and scrutiny functions. The narrative will remark on some political and constitutional rubbing points.

The proposals to develop and to enhance the Assembly’s law making powers

1. Developing the current settlement

This proposal expresses the Government’s intention that current Whitehall measures should as a matter of principle move from the more narrowly defined to the wider allocation of legislative discretion to the Assembly (paras.1.24, 3.9). While para. 1.24 speaks of the Government’s immediate intention 'in drafting’ legislation for Wales, this is of course a matter of policy in the given case. The issue is whether Ministers will, as a matter of policy, be more inclined in the future to take a 'more liberal approach’ (para. 3.9) than has been evident to date. Certainly there are areas where Acts have transferred a very wide measure of discretion to the Assembly to make secondary legislation (the Education Act 2002 is a good example, cited at para. 3.10). But the practice adopted in the 1999 TFO of very particular transfer of functions remains the norm.

The central question is whether it is reasonable to expect a change in the political culture in London. The White Paper makes it clear, that as matters stand, the Assembly’s powers reflect what Parliament is 'prepared to confer’ (para. 3.5) and that in the future, 'to what extent and on what terms Parliament might be willing’ to confer additional authority on the Assembly to make law (para. 3.7). Since what Westminster is prepared to confer must initially depend on what Whitehall decides, the success of this 'development’ will, as it always has, depend on Ministers’ views about devolution and their departmental responsibilities.

This is a matter that has been frequently debated. Why should Ministers considering the delegation of powers in areas such as the environment, planning or transport, now change to a more liberal approach? One influential voice argues that for a more liberal policy to work, Ministers should be expected to start from the presumption that in giving powers to themselves or to statutory or other bodies so far as England is concerned, the same breadth of discretion should be transferred to Assembly Ministers. This is one of the Rawlings principles, and could constitute, in the form of a Concordat or DGN, an express commitment to the intention of para. 3.9.

What this proposal does not address are the weaknesses exposed by the Lords’ Constitution Committee concerning communication between the Assembly, Whitehall and Westminster. As para. 3.33 notes, the joint scrutiny by Assembly and Parliamentary committees of a Wales-only Bill was a useful advance on the accepted practice. Formalisation of this innovation is welcome.

2. Enhancing the current settlement

In terms of the Assembly’s medium-term powers to make secondary legislation, this section of the White Paper is unquestionably the most interesting, holding out the prospect of real advance.

The White Paper notes (para. 3.13) that its proposals for developing the current settlement do not address the underlying problems that the Assembly faces in trying to secure new legislative authority to act (paras. 1.21, 3.15). What is proposed here is modelled on what is already permitted under section 22 of GOWA, since there is nothing in that section that requires transferred executive functions to be cast in the detailed manner that has been the norm. Paras. 3.14-3.21 propose a means by which broadly defined legislative functions can be transferred. A number of issues need to be addressed.

2.1 What is to be transferred?

The White Paper draws a careful distinction between 'fields’ and 'policy areas’ (paras. 3.17. 3.18), and 'policy areas’ exist within 'fields’ (para 1.25). An interesting question that is prompted by para 1.25 arises as to the scope of 'field’.

The paragraph says that the enhanced powers would apply to 'specific matters or within defined areas of policy within the fields in which the Assembly currently exercises functions.’ I have italicised these words because they require interpretation, both as to the meaning of the word 'field’ and of 'current’.

First, the para.1.25 fields must be taken to include 'fields’ in the technical sense of Schedule 2. These 'fields’ are immutable, because they were enacted for the sole purpose of the first TFO. Clearly the Assembly has acquired many functions within these fields, and will continue to do so, but the 'fields’ themselves cannot change, as they have served their statutory purpose. If the meaning of 'fields’ in para 1.25 were so confined, the addition of the italicized words would be superfluous.

But, under GOWA section 21(b), Parliament may confer functions under any Act other than GOWA. Until the Fire Services Act 2004, these functions have all fallen within the 'fields’, but this Act does not. The question which therefore arises is whether 'fire services’ now constitute a field, in the non-technical sense. If it does, then the Government has, by that Act, extended the 'fields’ within which the Assembly now has executive functions. And, once the enhanced settlement is in force, it would also have potential to amend that Act in its application to Wales. It would also be able to make new legislative provision.

To put this point more shortly, if this analysis is correct, it appears to be Government policy that the Assembly should, over time, have more fields conferred on it. There is, however, a serious issue concerning what exactly constitutes the field created by the Fire Service Act 2004, and consequently what would constitute the scope of any Order in Council conferring legislative authority on the Assembly to modify it.

The second point that arises under para 1.25 is that Orders in Council can apply only to policy areas in 'the fields within which the Assembly currently exercises functions.’ This I take to mean 'current’ at the date of the Order and not at the date of the GOWA Amendment Act. If the latter, then the scope of the Assembly’s devolved legislative powers will be frozen in time to fields that exist in, say, 2006. If that were the case, and no further fields in the non-technical sense were conferred before that date, then the Assembly’s powers under the enhanced settlement would be limited to the 18 'fields’ plus fire services.

If the former ('current’ at the date of the Order), then the scope of the Assembly’s legislative powers will expand as over time functions within new fields are conferred on it; for example, in respect of the police service.

a) Scope

The first matter to note is what is excluded as possible transfers of legislative authority:

• Within any 'field’ (as defined) there could be no transfer of legislative powers that could only be the responsibility of HMG (para. 3.17)
• Within any 'field’ (as defined) legislative powers could be transferred only in respect of a 'policy area’ of wide or narrow scope, as determined by Parliament (HMG) (paras. 2.25, 3.18).
• However wide the scope of the 'policy area’ that is transferred, it can never be coterminous with the 'field’ to which it belongs (para. 3.17); even in the case of the Welsh language, therefore, the 'enhanced’ settlement could not give the Assembly exclusive secondary legislative authority.

The second matter to note is that whatever comprises the 'specific pieces of legislation’ or clearly defined topics’ will need to be very carefully drafted. They will be closely scrutinised by UK Ministers to ensure that they do not encroach on their policy areas, and by Parliamentary Committees to ensure that they do not give the Assembly inappropriate Henry VIII powers as measured by the accepted criteria for such clauses. These points are picked up below.

b) The power to amend, repeal or extend primary legislation

The power to be given to the Assembly under this procedure is analogous to that which applies to Regulatory Reform Orders (originally Deregulation Orders), but goes some way beyond them. These Orders give Ministers authority to modify primary legislation where that modification will achieve the benefits that are specified within the Regulatory Reform Act 2001.

To understand fully what is proposed in the White Paper, it is necessary to recognise that the Deregulation and Contracting Out Act 1994 was the first occasion (other than wartime) that Parliament had given a general authorisation to the executive to amend primary legislation. The 1994 Act restricted such amendments, broadly speaking, to effect reductions in the burdens on business, while retaining necessary protections for those affected by the legislation.

The 2001 Act took this further. First, it authorises not merely the reduction or removal of burdens (as was the case under the 1994 Act), but permits Ministers to impose or increase them. I mention this because this extension alone caused the relevant parliamentary committees to look carefully at the procedures that they should apply to Ministers’ proposals for such Orders.

Secondly, the 2001 Act provides that RR Orders may apply prospectively, to legislation passed after the Act where the legislation to be amended is at least two years old when the Order is made. This too engaged the attention of the Lords Delegated Powers and Regulatory Reform Committee (DPRR).

Prospective Henry VIII clauses are rare, and the White Paper appears to propose that this power to amend should be routine, save where expressly prohibited. This is bound to generate issues for DPRR, and for the equivalent Commons Committee (see further below).

2.2 The role of the Assembly Government

It might be helpful to visualise the process by which the Assembly’s request will be made and thereafter managed. A policy area might be identified by the Assembly Government as part of its mandate, or arising from difficulties encountered in the implementation of existing powers, but which cannot be remedied other than with fresh powers for which the Assembly has no authority. Alternatively, the Assembly may identify the area as part of its deliberative or scrutiny functions.

Whether the idea for the 'policy area’ that is to be the subject of the Order emanates from the Government or the Assembly, it will be the Government’s responsibility to ensure that the motion that is to be put to the Assembly for its agreement

• defines and justifies the policy area or 'topic’
• identifies and demarcates any aspects of the policy that might touch on UK Ministers’ responsibilities
• identifies the 'specific pieces of legislation’ that are to be modified, and the exact nature of that modification
• identifies how the Assembly might propose to make use of its powers in the immediate future
• identifies any aspects of the 'specified area’ which, if Parliament were in future to enact legislation, the Assembly would wish power to modify
• meets and anticipates any issues concerning the criteria that will be applied by Parliamentary Committees

This will be a substantial task, but one which, as the Commons Regulatory Reform Committee put it in its Regulatory Reform First Special Report (HC 908, 2002-03, para. 9), the Government 'should be expected to get … right first time.’ If for no other reason, any error that is revealed while the draft Order is being considered by UK Ministers or by parliamentary committees will inevitably add to what is likely in any event to be a lengthy timescale for any request.

2.3 The role of the Assembly

The Assembly’s role is to make the request to the SSW (paras. 1.25, 3.19). As one of the principal justifications for the enhanced settlement is the Assembly’s democratic credentials (para. 3.5), it will need to establish a procedure that enables AMs to debate, amend and approve the proposed Order that is the subject of the request. A second reason is that the Parliamentary Committees that consider the draft Order will need to be persuaded that there has been consultation on its substance as well as scrutiny by the Assembly (para. 3.12).

Provision would be made for the Minister formally to introduce the proposal that will comprise the request for its consideration in plenary, thereafter to be committed to (say) a Legislation Committee that performs a function similar to Westminster Standing Committees. That Committee should be given power to take evidence, prior to debating and agreeing or rejecting amendments, and reporting to the Assembly in plenary for final approval.

In essence, the request is the product of a deliberative process that resembles Bill procedure, but with the addition of evidence taking at the Committee stage. This is now a routine feature of Draft Bills in Parliament, though not of Bill procedure.

The Presiding Officer would have to make a compliance statement (as in Scotland) that the draft Order did not contravene the excluded matters.

2.4 The role of SSW

In the words of a former holder of this office, the role of the SSW 'is to present, not to represent the Assembly’s views’.

Before any question of the draft Order being laid, SSW will need first to satisfy him/herself that HMG can support it in debate. This does not imply that HMG supports it in the sense that it represents a policy position that it would adopt; rather, that it represents a policy position that the Assembly, as a democratic devolved body, wishes to adopt, and which does not conflict with any UK Minister’s responsibilities.

Upon receipt, the SSW will consult Departments within whose areas of responsibility the Assembly’s request falls. They will determine whether the request trespasses on areas for which they alone have responsibility. They will need to be satisfied that the list of modifications is in order. They will need to be satisfied that any future cases that the Assembly has identified as those in respect of which it would desire the power to modify does not foreclose for them their range of future action.

Officials in the Assembly Government will have drafted the draft Order. It will now be referred to Parliamentary Counsel.

The question that then arises is, what steps might SSW take if any aspect of the scope of the draft Order or the detail of what the Assembly would do with the power it defines is objectionable? It may be objectionable because it conflicts with what is prohibited by paras.1.25, 3.17 and 3.18 or because of its execution. In either case SSW would be unwilling to proceed (for a reason other than the trivial), and is obliged to write to the Assembly Government giving his reasons (para. 3.20).

Two major issues to which this gives rise are:

• It is unclear why, if the request has come from the Assembly it is the Assembly Government and not the Presiding Officer who receives this letter (para. 1.25); it is one matter to say that the Assembly cannot compel SSW to lay the Order (3.20), but it does not follow from that that SSW must give his reasons to the Assembly Government;
• On the assumption that the draft Order is objectionable because of its execution, but could be remedied fairly easily, what scope is there for the Assembly (the Government) to make that remedy and resubmit? Or does the request die? Any resubmission would, like the original, have to come from the Assembly, since the Assembly would have to approve the remedied version.

2.5 The role of Parliament

The White Paper suggests that it is likely, and probably desirable that the draft Order would be scrutinised by parliamentary committees before the Affirmative Resolution debate (para. 3.21).

In the Lords the most obvious candidate for this role is DPRR Committee. This Committee has a well-established and robust procedure for examining the scope and proposed effect of delegated powers. It pays special attention to Henry VIII clauses, and can be expected to pay even greater attention to such clauses where it is proposed that they may apply to primary legislation yet to be enacted. (See N. Barber and A. Young, 'The Rise of Prospective Henry VIII clauses and Their Implications for Sovereignty’ [2003] Public Law 112-127). ’Its Special Report on Henry VIII clauses (HL 21; 2002-03), which dealt with the addition of such a clause in a Bill on its Third Reading, while not exactly in point, nevertheless demonstrates the vigilance that the Committee brings to these clauses.

In the Commons the RR Committee performs a similar role as the DPRR, but only in respect of RR Orders. But since they also give Henry VIII powers, its criteria, which are similarly rigorous, will need to be addressed when the Assembly Government and the Assembly are formulating, debating and approving the request.

It is an open question, whether Parliament would wish to extend the remit of the existing Committees to Assembly draft Orders, or to establish, as para. 3.21 canvasses, a new Joint Committee. Whichever, one point is very clear. That is, that the Assembly can expect that the criteria that the two Committees currently apply will, suitably modified, apply with equal rigour to its requests.

Two key points concerning these committees’ scrutiny of RR draft Orders warrant mention. The first is that both require the Order to be an 'appropriate’ subject for the use of the deregulation procedure. Both Committees have on a number of occasions considered what is or is not an appropriate subject. The most recent observations are those of the DPRR Committee (Special Report, HL 110, 2004-05; paras. 49-51). There can be no doubt but that if either (or a joint) committee were to consider an Assembly request an inappropriate use of the enhanced settlement, it would be rejected..

The second point concerns consultation: 'it will be key to establishing whether a proposal is suitable to enactment’, (HL Special Report, ibid, para 52). Both Committees take evidence from the Department proposing the delegated power. They do this to test that the Department has met the statutory and parliamentary criteria for RR Orders. In the case of Assembly requests, these could include vires, consultation, clarity of expression, and EU compatibility. It would also include the justification for the appropriate use of the procedure. Who would give evidence in support of the Assembly request? In this instance the Assembly Government is better placed, even though procedurally it is not its request.

(The Standing Orders for RR Orders specify a two-stage procedure: an initial proposal, which is considered by the Committee, followed by a second stage consideration of the draft Order prior to a recommendation to the House. The extension of existing parliamentary procedures to consideration of Assembly requests would have to conclude whether, because of the Assembly’s democratic and deliberative input, a single stage was sufficient).

3. Conclusions

Apart from any others, one conclusion that may be drawn from this is that it is likely to take some time for a draft Order to be successfully piloted through these various steps. Each request will need the equivalent of a 'Bill team’, which also raises the question, how many requests could the Assembly realistically expect to make in any one year?

Professor David Miers

5 July 2005