National Assembly for Wales
[Jump to Contents]
 

National Assembly for Wales

Legislation Committee

Second Assembly

The Technical Scrutiny of Legislation by the National Assembly from May 2007

A report by the Legislation CommitteeThe Technical Scrutiny of Legislation by the National Assembly from May 2007

A report by the Legislation Committee

1. The Legislation Committee has undertaken a brief review of the technical scrutiny of legislation that might be carried out by the National Assembly following the change in its powers after the coming into force of the current Government of Wales Bill and the elections in May 2007. At that stage, the Assembly as such will lose to Welsh Ministers the power to make statutory instruments, but will gain a power to pass Assembly Measures.

2. The Committee has received a number of written reports and papers, which can be accessed on the Committee's internet page. The Committee is most grateful to Sylvia Jackson MSP and Stewart Maxwell MSP of the Subordinate Legislation Committee of the Scottish Parliament, who discussed common concerns by video link, and to the technical staff who made that possible. The Committee is also particularly grateful to Jenny Randerson AM (the Chair of the Business Committee, who talked particularly of her visit to Canada to study bilingual legislation), David Lambert and Marie Navarro of Cardiff Law School, and Anna Daniel of the Members' Research Service in Brussels, who met the Committee to discuss its review. Details of those discussions are set out in the Committee's minutes, which can also be accessed on the Committee's internet page.

3. The Committee has been mindful of the fact that at Westminster, the work of scrutinising the non-policy aspects of legislation can be shared between a large number of committees, and that a comparison with the work carried out by the Scottish Parliament is a more valid one, although it too has significantly more Members than the National Assembly.

4. The Committee has also been mindful of the fact that legislation in Wales is made bilingually, which adds a further, crucial, element to the process of making legislation and to its technical scrutiny.

5. Throughout its existence, the Committee has been conscious of the limitations on its role contained in section 58 of the Government of Wales Act 1988 and reflected in Standing Order 11. It has welcomed the proposed repeal of section 58 so that the National Assembly will have greater flexibility in the way it considers legislation following next year's election.

6. The Committee has identified the following types of technical scrutiny of legislation that could be carried out following the 2007 elections -

(i) a continuation of its present work in the technical scrutiny of subordinate legislation. This will follow more closely the way in which the Joint Committee on Statutory Instruments at Westminster operates to the extent that it will largely happen after the instrument has been made. If resources permit, it would continue to be useful for Parliamentary Service legal advisers to look at draft instruments before they commence the formal process. In the case of those subject to affirmative procedures, it may be appropriate to retain a procedure that makes the Assembly resolution conditional on the Minister dealing with the points raised in a report before making the order, if that can be achieved within the provisions of the Statutory Instruments Act as applied to the Assembly. The Committee also noted the work of the House of Lords Committee on the Merits of Statutory Instruments and considered that there should be a process for the Assembly sometimes to scrutinise statutory instruments made by Welsh Ministers in the same way - to review whether the proposed legislation is a good way of achieving the policy objective.

(ii) a technical scrutiny of draft Assembly Measures; In addition to any policy scrutiny by the Assembly, there may well be a need for a more technical scrutiny, particularly of amendments (both Assembly Government and back-bench) and of non-government Measures, to consider in particular whether all necessary consequential amendments have been addressed. Whilst this will largely be a matter for staff advising Members and the Government respectively, Members are likely to wish to keep the matter under review. There will also be a need for a general oversight of the way in which delegated powers are addressed in Measures, to seek a consistency of approach to the type of instruments that would require an affirmative procedure.

(iii) a scrutiny of the Welsh aspects of legislation made at Westminster and by Whitehall ministers; Whilst this will understandably be the responsibility of Welsh Members of Parliament, Assembly Members may wish to consider the impact of such legislation on the Assembly and on the functions of Welsh Ministers. For example, it may wish to make representations that an order making power to be given to Welsh Ministers in a Bill should be subject to an affirmative procedure in the Assembly rather than a negative one, or indeed that it should be the subject of a Measure making power by the Assembly. There will be a particular need for the scrutiny of proposed orders under the Legislative and Regulatory Reform Bill for any effects on Welsh legislation or Assembly powers.

(iv) a technical scrutiny of the Welsh aspects of draft European legislation; Time does not permit an extensive scrutiny of such legislation, though all Assembly committees will wish to retain the ability to do so. Whilst the Committee noted the system in Dublin whereby one committee recommends to others which drafts should be scrutinised, the present system in the Assembly whereby officials draw drafts to the attention of relevant committees appears to be working satisfactorily.

(v) a post legislative scrutiny of any of these types of legislation. The Committee's attention was drawn to the Law Commission's consultation paper on Post-Legislative Scrutiny, which identified the following possibilities -

  • Have all the provisions been brought into force?
  • Has the legislation given rise to difficulties of interpretation?
  • Has the legislation had unintended legal consequences?
  • Have the policy objectives been achieved?
  • Has the legislation had unintended economic or other consequences?
  • Has it been over-cumbersome?
  • Do any steps need to be taken to improve its effectiveness/operation?
  • Have things changed so that it is no longer needed?

The first of these appears to be the most straightforward and significant, though time and resources will determine what post-legislative scrutiny the Assembly chooses to carry out. When possible problems are foreseen when legislation is made (as in the case of horse passports), committees may identify the legislation as appropriate for post-legislative scrutiny.

7. Moving on to the way in which technical scrutiny is carried out, the Committee noted that the Northern Ireland legislation provides for the Examiner of Statutory Rules (the equivalent of the Legal Advisers to our Legislation Committee) to report to subject committees. The Committee nevertheless considers that the alternative model of a Legislation Committee with Legal Advisers (as in Scotland) is a better option. It provides a greater degree of flexibility in the way in which the technical scrutiny of legislation is carried out. In particular, without the restriction of section 58, it would be able to advise the Assembly on all legislative matters that would not be more appropriately or conveniently dealt with by another committee

8. The Committee recommends that a Legislation Committee be established and be given the following responsibilities-

(i) the continuation of its current role of the technical scrutiny of subordinate legislation, with the freedom to consider the merits of occasional items of legislation. It would not question the policy objective, but consider whether the legislation was the most effective way of achieving that objective.

(ii) to review and report on all provisions in Assembly Measures that grant powers to make subordinate legislation to Welsh Ministers;

(iii) to review and report on provisions in Bills not being considered by another Assembly committee, that grant powers to make subordinate legislation to Welsh Ministers;

(iv) to review and report on the implications for Welsh legislation of draft orders under the Legislative and Regulatory Reform Bill not being considered by another Assembly committee;

(v) to review the use of commencement powers in Assembly Measures and Acts of Parliament of particular application to Wales;

(vi) to consider and advise the Assembly on any other matter of a legislative nature of general application, including in particular the operation of bilingual legislation.

The Committee should also be given the power to review and report on the implications of any draft European legislation not being considered by another Assembly committee.

9. The Committee noted in particular the recommendation it received from Jenny Randerson AM that despite the use of electronic records generally, formal paper library copies should be kept of all formal documents relating to Assembly legislation as security against the possible corruption, whether deliberate or accidental, of electronic records. The Committee endorses that advice, and recommends that it be considered by the Assembly Commission in due course.

10. The Committee also welcomed and supported Mrs Randerson's suggestion of closer co-operation between the Assembly and Welsh universities to meet the need for bilingual lawyers and translators or jurilinguists to meet the demands of bilingual legislation.

11. The Committee was also impressed by the efforts made by the Scottish Committee to encourage the use of clear language. This is particularly important in the context of bilingual legislation, and the proposal at paragraph 8(g) above would give it the opportunity from time to time to consider this issue.

12. Whilst undertaking this brief review, the Committee was very conscious of the uncertainty about the way in which the Assembly would operate following the 2007 elections, and in particular the slow build-up of Measure-making powers and the volume of work faced by subject committees or their successors. It therefore recommends that the arrangements be kept as flexible as possible initially, and that they be reviewed once the Assembly has had an opportunity to settle into its new role.