LEGISLATING FOR WALES AFTER DEVOLUTION
119. We heard a good deal of evidence about the ways
in which Westminster legislates for functions in Wales. We note
that this is the subject of a forthcoming inquiry by the House
of Commons Select Committee on Welsh Affairs, and will limit ourselves
in our comments to the constitutional issues arising from the
detailed evidence we received.
120. The arrangements for Welsh devolution mean that
the National Assembly continues to rely heavily on Westminster.
The National Assembly derives its powers either from functions
under existing Westminster statutes transferred to it under Transfer
of Functions Orders made under section 22 of the Government of
Wales Act 1998, or by powers conferred on the National Assembly
under subsequent Westminster Acts. As a consequence, legislation
made at Westminster has a major effect on what the National Assembly
can do and how it can do it. These arrangements were described
to us as unsatisfactory at the outset, and the evidence we heard
suggests that their working has been more cumbersome than was
envisaged by the Assembly's designers.
We were therefore concerned by the evidence of Professor Patchett,
suggesting as it does that there are serious weaknesses in a host
of areas including:
(a) the selection of bills affecting Wales which
will be considered at Westminster;
(b) the policy options dealt with in those bills;
(c) the structure of the legislative scheme followed
in such a bill; and
(d) amendments made to bills by the Government while
they are before Parliament.
121. Further problems appear to arise with the patchwork
pattern formed by the National Assembly's powers and the difficulties
that arise if one wishes to identify what the Assembly may do.
These are themselves aggravated by the wide variations in the
powers new Westminster legislation confers on the National Assembly.
We note Professor Patchett's comparison of the situation to "a
jigsaw of constantly changing pieces, none of which has straight
edges", a view with which we agree in the light of other
evidence we have heard.
122. This problem is compounded by the very limited
access the National Assembly has to Parliamentary time for Wales-only
legislation. While this was described to us by the First Minister
as constituting a 500% improvement on the situation before devolution,
it clearly is still very problematic.
While we understand the political circumstances that have led
to Wales-only legislation being split, so that parts appear in
a bill dealing with a variety of other matters for both England
and Wales in one session while others appear in a Wales-only bill
the following session, we do not find this to be a commendable
or sensible practice.
It has led to further confusion in the National Assembly's functions,
since the relevant powers are scattered over two pieces of legislation
not one. It also makes it much harder for legislators at Westminster
to understand what the effect is of bills before Parliament, because
they only tell part of the story - and part of that story may
have yet to be decided.
123. We are particularly concerned by the unstructured
way in which the process of liaison over legislation operates.
Liaison is unsystematic, almost random, highly opaque, and hard
for lay people, Westminster legislators or Assembly Members to
follow. It also affords only limited opportunities for the National
Assembly's views to be heard in connection with bills affecting
the Assembly. Moreover, such opportunities as exist to influence
legislation are exercised behind the scenes and are only available
to Ministers and the Welsh Assembly Government, not the Assembly
as a whole. It appears to us that Wales figures in such arrangements
largely as an afterthought appended to a process driven by the
UK Government's concerns and priorities rather than those of Wales
in general or the National Assembly.
This might be mitigated if there were effective mechanisms for
Welsh views to be considered by the involvement of Welsh MPs,
but these do not exist either. Neither the Welsh Affairs Select
Committee nor the Welsh Grand Committee in the Commons plays a
direct role in considering legislation affecting matters devolved
to the National Assembly. Such bodies could not act as surrogates
for the Assembly but could serve to provide a channel for Welsh
concerns to be heard directly in the legislative process.
124. It appears to us that a number of steps could
be taken to improve Westminster legislation affecting the National
Assembly. We therefore recommend:
(a) that greater consistency be introduced into
the process by which Westminster legislates for Wales. It seems
to us that the Principles adopted by the Assembly Review of Procedure,
following recommendations made by Professor Richard Rawlings (see
Box 5) establish a very useful starting point for bringing
a greater measure of consistency to legislation;
(b) that the Explanatory Memorandum for any bill
affecting the functions of the National Assembly (or not affecting
the Assembly's functions directly, but affecting areas of policy
in which the Assembly has responsibilities in Wales) include a
section explaining briefly how the bill affects the Assembly and
its functions. Such a section should also explain how the bill
complies with the Principles adopted by the Assembly Review of
(c) that further steps be taken within Parliament
to improve the consideration of legislation specifically applying
in Wales, whether as a distinct Wales-bill or Wales-only parts
of bills applying in England and Wales. One way to do this would
be for the Welsh Affairs Select Committee to carry out inquiries
into such bills, for which it might wish to take evidence in Wales
from affected interests including the various parties represented
in the National Assembly. Another would be to make greater use
of the Welsh Grand Committee, possibly for the Committee stage
(d) that further thought be given to how Members
of the National Assembly can be afforded the opportunity to consider
Westminster legislation that will affect the Assembly and its
functions. Such an opportunity needs to take account not only
of the needs of the UK Government and MPs and Peers at Westminster,
but also the different ways of working and timescales applying
to the National Assembly. The trend toward publishing bills in
draft is especially welcome and will, we believe, be especially
helpful in this context.