Select Committee on Modernisation of the House of Commons Appendices to the Minutes of Evidence


Memorandum from Lord Elis-Thomas, AM, Presiding Officer and Dr John Marek, AM, Deputy Presiding Officer, National Assembly for Wales


  1.  We welcome and endorse the suggestion contained in paragraph 18 of the Leader of the House's Memorandum to the Modernisation Committee that the publication of draft bills would enhance the opportunity for co-operation with the devolved bodies.

  2.  The Memorandum goes on to suggest that "Bills which applied only in Wales could undergo pre-legislative scrutiny in parallel both at Westminster and in the Assembly for Wales".

  3.  We would like in this brief Memorandum to propose that pre-legislative scrutiny of this type should not be confined to bills applying only in Wales; that there would be greater clarity if the clauses of bills applying to Wales were discrete; and that new mechanisms need to be established, both at Cardiff and Westminster, to facilitate joint scrutiny.


  4.  Government bills which apply only in Wales are rare. The only examples since 1997 are the Government of Wales Bill and the Children's Commissioner for Wales Bill. Many bills, however, apply to Wales and deal with matters for which the Assembly has responsibility. Bills in this category in the current session include the Education Bill, the National Health Service Reform and Health Care Professions Bill and the Homelessness Bill.

  5.  In our view, parallel pre-legislative scrutiny of draft bills should extend beyond the narrow category of Wales-only bills, and include all draft government bills which apply in both jurisdictions and for which it is proposed that the Assembly should have responsibilities.


  6.  Our proposal in the previous paragraph would be facilitated if it were more immediately clear from the face of a bill or draft bill which provisions were to apply in Wales.

  7.  The problem we at present face is that the applicability of bills to Wales is sometimes difficult even for professional lawyers to read, and is certainly difficult for elected Members without legal expertise.

  8.  The Education Bill of the current parliamentary session exemplifies this. Apart from Part 7 of the Bill, which relates to the national Curriculum in Wales, the Bill has to be read subsection by subsection to ascertain if powers are exercisable by the Assembly. On the other hand, it is easier to ascertain what provisions apply to Wales in the Learning and Skills Act 2000 because there are distinct Welsh Parts. The Homelessness Bill of the current session is another welcome model—clause 16 provides for the Assembly to have jurisdiction in Wales.

  9.  We believe that every England and Wales Bill which proposes powers for the Assembly should be drafted so that practitioners and legislators should have maximum clarity as to the applicability to Wales.


  10.  The Government of Wales Act was a radical measure. It gave us in the Assembly the possibility of a shared law-making role with Parliament in devolved matters. We warmly endorse the hope expressed in 1999 by the United Kingdom Government that "the House [of Commons] will not take too restrictive a view of its procedures if that would impede the development of good working relationships with the devolved legislatures"[1]. We now need to develop procedures in both legislatures which complement the existing co-operation between officials of Her Majesty's Government and the Welsh Assembly Government. These should involve direct co-operation between Members of Parliament and Assembly Members.

  11.  There is a growing and welcome level of co-operation between the Welsh Affairs Committee and subject committees in the National Assembly. But Standing Orders in both the Assembly and the House of Commons do not permit the Committees to meet formally together, whether to take evidence or to deliberate. While this would not be appropriate or necessary in all cases, we believe that there should be an experimental use of formally constituted joint meetings to consider draft bills. These joint meetings should not, however, be confined to the Welsh Affairs Committee as other select committees (including specially constituted select committees) will consider draft bills which apply in both jurisdictions and which deal with devolved matters.

  12.  We also believe that there should be a means of involving Assembly Members after bills have been formally introduced in Parliament. At present the Assembly as a whole and its committees have no greater status than any other affected interest group. This does not reflect the Assembly's role as a potential co-legislator for Wales.

  13.  We are sure that, when subject committees or the plenary as a whole wish to express views on legislation before Parliament, or even suggest amendments to it, there should be a formal mechanism for this to occur. We would welcome radical thought about this. For example, could the Welsh provisions of a bill always be committed to a Special Standing Committee which would be required to take evidence from the relevant Assembly Ministers, or subject committee or committees? Could amendments proposed by Assembly plenary or subject committees be fast-tracked in some way? Could AMs have the right to attend and speak (but not vote) at the standing committee stage of Welsh Bills or Parts of Bills?

  14.  We do not underestimate the practical difficulties which would be involved in co-operating in this way[2] or the change of attitudes which would be necessary. But we believe that this is an area where the Modernisation Committee has an opportunity to propose a radical change in Parliamentary procedure to reflect our changed constitutional framework. We are confident that the Assembly would be prepared to adapt its procedure to reflect any changes, which the Commons makes.

  15.  We believe that radical procedural change is necessary at Westminster and in Cardiff to enable Members of Parliament and Assembly Members to work together jointly on primary legislation which deals with devolved matters.

1   Government response to Fourth Report from Procedure Committee, Session 1998-1999. Back

2   Many of these were dealt with in the Procedure Committee's Report 1988-99 on the Procedural Consequences of Devolution. Back

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