Joint Committee on Statutory Instruments Twenty-Seventh Report


APPENDIX I

Memorandum by the President of the Council

DELEGATED LEGISLATION AND DEVOLUTION

INTRODUCTION

1.  The Joint Committee on Statutory Instruments has requested from the Government a memorandum on the arrangements for scrutiny of delegated legislation in the National Assembly for Wales and the Scottish Parliament and how areas of overlap or need for co-operation with Westminster are to be handled.

2.  This memorandum covers:

3.  In this memorandum the words "delegated legislation" cover secondary legislation, subordinate legislation, statutory instruments, regulations and orders. The word "chamber" is used as a generic term including the House of Commons, House of Lords, the Scottish Parliament and the National Assembly for Wales. "Ministers", unless otherwise specified, includes UK Ministers and Scottish Ministers. Clause numbers given are those which apply on the date of submission of this memorandum; since they may change at subsequent stages the side heading of clauses is also given.

4.  Each statutory instrument specifies the parent Act under which it is laid. That Act, amended in some cases by the Scotland or Government of Wales bill, sets out before which House of Parliament or the Scottish Parliament or the National Assembly for Wales it should be laid and whether it is subject to affirmative, negative or no procedure. Both the Scotland and the Government of Wales bills provide for Westminster parliamentary procedures to cease to apply to some delegated legislation made by Scottish Ministers or the National Assembly for Wales. Statutory instruments will therefore fall into categories according to which chamber they must be laid before:

      1  Commons only

      2  Commons and Lords

      3  Commons, Lords and Scottish Parliament (SP)

      4  Commons, Lords and National Assembly of Wales (NAW)

      5  Commons and SP and/or NAW

      6  SP only

      7  NAW only.

5.  Any instrument requiring to be laid before the Westminster chambers will be made available as usual to the Joint Committee on Statutory Instruments.

Scotland

6.  The provisions in the Scotland bill will have an impact on the work of the Joint Committee. There will be a reduction in the number of statutory instruments which have to be referred to the Joint Committee for consideration. The Scottish Office estimates that, in an average year, the Secretary of State for Scotland makes approximately 250 instruments, about 120 of which are local instruments. The majority of these instruments will, in future, be dealt with by the Scottish Parliament. The Joint Committee can therefore expect a reduction in the number of instruments that it considers each year. On the other hand, there may be additional statutory instruments laid under clause 95 (Power to make provision consequential on Acts of the Scottish Parliament) to amend UK legislation affected by Acts of the Scottish Parliament.

Wales

7.  The provisions in the Government of Wales bill will also have an impact on the work of the Joint Committee. There will be a reduction in the number of statutory instruments which have to be referred to the Joint Committee for consideration. The Welsh Office estimates that, in an average year, the Secretary of State for Wales makes approximately 150 instruments on his own, about 100 of which are local instruments, and 400 with other Ministers. The Joint Committee can therefore expect a reduction of approximately 50 in the number of instruments that it considers each year. Whether or not the Assembly continues to join with Ministers of the Crown in making the other instruments currently signed by the Secretary of State for Wales, Ministers will still legislate for England and there will consequently not be a reduction in the Joint Committee's workload on this front.

POWERS OF THE DEVOLVED CHAMBERS

Scotland

8.  Under clause 27 of the Scotland bill (Acts of the Scottish Parliament), the Scottish Parliament will have power to make laws, which are to be known as Acts of the Scottish Parliament. The extent of the legislative competence of the Parliament is principally defined by clause 28, 29 and Schedule 5 (Legislative competence, Reserved matters). Under clause 49 (General transfer of functions), functions of a Minister of the Crown are transferred to the Scottish Ministers so far as they are exercisable in or as regards Scotland and do not relate to reserved matters. Special provision is made for retained functions of the Lord Advocate. Under clause 59 (Powers to transfer functions), additional functions can be transferred by Order in Council to be exercisable by the Scottish Ministers.

9.  The Parliament will be an elected body, able to make its own legislation and directly accountable to the people of Scotland for its decisions. Acts of the Scottish Parliament will be able to confer powers to make subordinate legislation. The Scottish Executive will also need to make use of powers under existing (pre-commencement) enactments.

10.  Clause 105 (Subordinate instruments) provides that, where a function of making, confirming or approving subordinate legislation contained in a pre-commencement enactment has been transferred to the Scottish Ministers under clause 49 (General transfer of functions), any requirements for the instrument or draft instrument to be laid before Parliament and for the annulment or approval of the instrument by Parliament are transferred to the Scottish Parliament. Similar provision is made in the case of powers to make subordinate legislation exercised by a person other than a Minister of the Crown, such as the Registrar General of Births, Deaths and Marriages for Scotland.

Wales

11.  The Assembly will gain functions (including functions of making subordinate legislation) in two ways:

12.  The White Paper, "A Voice for Wales" (Cm 3718), explained the Government's policy on the transfer of functions to the Assembly:

      "The Government's intention is that the Transfer Order will pass to the Assembly virtually all the functions of the Secretary of State for Wales." (paragraph 1.8)

      "The Government does not propose to transfer to the Assembly responsibility for functions which currently operate on a common basis throughout the United Kingdom. These include foreign affairs, defence, taxation, macro-economic policy, policy on fiscal and common markets, social security and broadcasting." (paragraph 1.9)

13.  The Assembly will normally be given powers to make orders (including rules and regulations) for the whole of Wales. There are a few cases where the Government is considering giving the Assembly powers either for less than the whole of Wales and/or for parts of England too. The Government is considering adopting this approach for certain bodies and functions with respect to the water industry, flood defence, internal drainage and rivers. These are functions currently exercised by the Welsh Office and reflect the fact that natural watersheds do not coincide with the boundary between Wales and England.

14.  Article 2(4) of the draft transfer order provides that the Assembly will not inherit any functions of bringing into force the existing Acts mentioned in Schedule 1 to the draft (not all of which have been commenced in their entirety). The Government's policy on commencement of future legislation is set out in paragraph 3.39 of the White Paper:

      "The Government will consider, in drafting each Bill that it introduces into Parliament, which of the new powers it contains should be exercised in Wales by the Assembly. This could include giving the Assembly responsibility for bringing the Bill's provisions into force in Wales."

15.  Following the precedent of section 75 of the Wales Act 1978, the bill provides for Westminster procedures generally to cease to apply to subordinate legislation made by the Assembly. The Assembly will be an elected body, able to make its own subordinate legislation and directly accountable to the people of Wales for its decisions. Moreover it will not have an Assembly member to speak on its behalf at Westminster.

16.  Clause 43(2) (Parliamentary procedures for subordinate legislation) provides that, where a function of making, confirming or approving subordinate legislation has been transferred to the Assembly by Order in Council under clause 22 (Transfer of ministerial functions), the relevant Westminster procedures as defined by clause 43(3) will cease to apply except in certain limited circumstances.

17.  The exceptions are:

      -  subsection (4): where the Assembly makes a statutory instrument with a Minister of the Crown, whether because it is required to make a joint instrument or because it chooses to do so. This is appropriate because Ministers will continue to be accountable at Westminster, and their statutory instruments must accordingly be subject to Westminster procedures;

      -  subsection (5): where the statutory instrument relates to a part of England under the provisions relating to cross-border areas in clause 23(6) (Transfers: supplementary). This is appropriate because the Assembly will not be elected by people resident in England. It provides a mechanism by which their representatives can check the Assembly's actions. The transfer order can provide for the Assembly's functions with respect to cross-border areas to be subject to the agreement of, or consultation with, a Minister of the Crown. In such cases, the Government expects that the Minister concerned would speak to the Assembly's statutory instrument in any debate; in any other case, the Secretary of State for Wales would do so;

      -  subsection (6): where the Order in Council provides that special parliamentary procedure shall continue to apply to orders within the meaning of the Statutory Orders (Special Procedure) Act 1945. This will enable the Order in Council to reflect the approach taken in section 75(2) of, and Schedule 10 to, the Wales Act 1978. Where special parliamentary procedure continues to apply, the Government expects that the Secretary of State for Wales would handle the Assembly's order at Westminster.

PROCEDURE IN THE SCOTTISH PARLIAMENT AND NATIONAL ASSEMBLY OF WALES

18.  It will be a matter for the Scottish Parliament and the National Assembly for Wales to establish procedures for examining instruments laid before those bodies. Both bills include provisions for some standing orders and work has begun to devise detailed procedures for these chambers. Not until they are fully established will the exact procedures be known. To consider instruments subject to parliamentary procedures both at Westminster and in Edinburgh or Cardiff, there will have to be some form of liaison between the scrutiny committees of those bodies to avoid the possibility of different conclusion being reached on, say, vires. The scrutiny arrangements at Westminster will not apply to any instruments made in Edinburgh or Cardiff which do not need to be laid at Westminster.

Scotland

19.  Paragraphs 9.1 and 9.8 of the White Paper made clear that the Scottish Parliament would be responsible for regulating its procedure, including that for the scrutiny of subordinate legislation.

Wales

20.  The Assembly will not have any primary legislative capacity. While, therefore, subject to the requirements of the Government of Wales bill, the procedures to be adopted will be a matter for the Assembly itself, it is expected that the Assembly will attach considerable significance to the exercise of its order-making powers and adopt procedures reflecting that.

21.  The bill stipulates in clause 63 (Standing orders to provide procedures) that the Assembly's Standing Orders must provide procedures for the preparation, making, approval and confirmation of orders, regulations, rules and other subordinate legislation. Clause 59 (6) (Subordinate legislation scrutiny committee) defines 'Assembly general subordinate legislation' as any subordinate legislation which is:

22.  The following bill provisions set out the procedures for making Assembly general subordinate legislation. These procedures require:

      A.  the statutory instrument to be drafted in both Welsh and English unless in the particular circumstances it is inappropriate or not reasonably practicable for the draft to be in both languages - cl 65(4) (Making of Assembly general subordinate legislation);

      B.  a regulatory appraisal to be prepared (unless in the particular circumstances it is inappropriate or not reasonably practicable for one to be carried out - see cl 64(2))(Regulatory appraisals);

      C.  the subordinate legislation scrutiny committees of the Assembly to consider the draft statutory instrument and to report to the Assembly if its attention should be drawn to the statutory instrument on any of the grounds set out in standing orders - see cl 59(3) (Subordinate legislation scrutiny committee);

      D.  the Assembly to consider the report of the subordinate legislation scrutiny committee and the regulatory appraisal (if any) - cl 65(5);

      E.  the Assembly to approve the draft statutory instrument by making a resolution cl 65(2));

      F.  the statutory instrument to be made by the presiding officer, or in his absence, by the deputy presiding officer or the Assembly First Secretary - cl 65(1) and cl 65(3);

      G.  where Assembly general subordinate legislation may give rise to the payment of sums by the Assembly, the recommendation of the executive committee is required for that statutory instrument to be made - unless the sums are insignificant (what qualifies as insignificant to be defined in Standing Orders) cl 67 (Financial initiative).

23.  These procedures will only apply to general statutory instruments made solely by the Assembly, but not necessarily to local statutory instruments, nor to statutory instruments made jointly with a Minister of the Crown or which contain provisions made by a Minister of the Crown, nor to subordinate legislation which is not made in the form of statutory instruments. These will need to be covered by the clause 63 procedures which the Assembly adopts (Standing orders to provide procedures).

24.  Clause 66 (Disqualification of procedural requirements) allows Assembly general subordinate legislation to be made without some or all of the above procedures being followed, if the executive committee determines that in the particular circumstances it is not reasonably practicable to comply with the requirement. The requirements which may be dropped are:

      A.  the requirement for the Assembly to approve the draft statutory instrument - cl 65(2) (Making of Assembly general subordinate legislation).

      B.  the requirement to consult on and publish a regulatory appraisal if the indication is that the compliance costs are likely to be significant - cl 64(3) (Regulatory appraisals).

      C.  the requirement to consider the report of the Scrutiny Committee relating to the draft instrument before it - cl 65(5).

25.  Where the provisions of clause 66 apply, the Standing Orders must allow Assembly members to move, within forty days, that a statutory instrument which has been made without following the full procedures should be revoked.

26.  The Joint Committee will be interested to note items C and D of paragraph 22 above. The Bill requires the Assembly to establish a Subordinate Legislation Scrutiny Committee whose role, it is anticipated, will be analogous to that of the Joint Committee, but with one major difference. Whereas the Joint Committee's evaluation of a statutory instrument when made under negative resolution procedure necessarily takes place after the instrument has been made and laid before each House, the Assembly's Scrutiny Committee will perform its functions in respect of Assembly general subordinate legislation in advance of the formal making of the instrument; indeed, the effect of clause 65(5)(a), subject to clause 66, is that the Assembly may not make such legislation without having before it a report from its Scrutiny Committee on the draft. This may perhaps be characterised as a species of internal audit of order-making powers, as against the external audit provided by the Joint Committee in respect of Ministerial Orders.

27.  It will be apparent that Standing Orders will prescribe the detailed procedures to be followed in the Assembly's exercise of its order-making powers. The first Standing Orders will be drafted for the Assembly by Commissioners appointed by the Secretary of State under clause 49 (First standing orders) of the Bill; the Secretary of State will then make the Standing Orders with or without modification. The Secretary of State is empowered by clause 50(4) (The Commissioners) to issue guidance to the Commissioners as to the form and content of the Standing Orders. To assist him in preparing such guidance, the Secretary of State has appointed a National Assembly Advisory Group, which is considering various aspects of the Assembly's working procedures. The Group proposes to go out to public consultation in April, and it has therefore reached no final conclusions as to procedures for the Assembly's order-making.

28.  Where subordinate legislation prepared by the Welsh Office makes amendments to primary legislation, Welsh Office lawyers consult the Office of Parliamentary Counsel. While it is not a bill requirement, such consultation will in practice continue. Under clause 35 (Staff), the Assembly's staff will be members of the Home Civil Service and its lawyers will be part of the Government Legal Service just as Welsh Office lawyers are now.


 
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