The Legislation, Justice and Constitution Committee has warned that the Welsh Government’s current approach to legislating risks shifting the balance of power away from the Senedd and towards the Government.
In its Annual Report for 2022-23, the Committee cites three main reasons for this shift: the use of framework bills, the inclusion of broad regulation-making powers in Senedd bills, and the use of UK bills to make provision in devolved areas.
This article will look at these three areas, before highlighting some of the Committee’s other work from this year.
Framework bills
As part of its remit, the Committee scrutinises all legislation introduced to the Senedd. The Committee’s annual report notes that three of the six bills it has scrutinised this year are considered either framework bills or bills with framework elements: the Agriculture (Wales) Bill (now Act); the Health Service Procurement (Wales) Bill, and the Environment (Air Quality and Soundscapes) (Wales) Bill.
What is a framework bill?Framework bills, also known as skeleton bills, are defined by the House of Lords Delegated Powers and Regulatory Reform Committee as those: “where the provision on the face of the bill is so insubstantial that the real operation of the Act, or sections of an Act, would be entirely by the regulations or orders made under it”. |
The report states that policy detail is being left for regulations meaning that these bills “by their nature take power away from the Senedd and give it to the government”. This is because regulations are not subject to the same level of scrutiny as primary legislation and cannot be amended by the Senedd.
The Committee notes a consensus amongst the House of Lords Secondary Legislation Scrutiny Committee, the Delegated Powers and Regulatory Reform Committee and the Constitution Committee that the use of framework bills does not constitute good practice.
Excessively broad powers?
The Committee also expresses concern that powers being delegated to the Welsh Government in primary legislation are sometimes “excessively broad” or being delegated “just in case” they would be useful in the future.
For example, these issues were raised with the Minister for Climate Change, Julie James MS (“the Minister”), during scrutiny of the Environment (Air Quality and Soundscapes) (Wales) Bill. The Minister suggested that, in this instance, the inclusion of broad regulation-making powers would help with “future proofing” the bill and enable the Welsh Government to set appropriate targets in the future.
The Minister also told the Committee that a power in the Bill to widen the powers of Welsh Ministers to introduce road charging was being taken even though she has no intention of using it.
UK bills in devolved areas
In last year’s annual report, the Committee warned of an emerging “democratic deficit” due to the extent to which UK bills were being used to legislate in devolved areas. In its report for 2022-23, the Committee says that its experience of the last year “has not changed that position”.
Legislative Consent MemorandaA Legislative Consent Memorandum (LCM) explains the policy objectives of a UK bill which makes provision in relation to Wales for any purpose within the legislative competence of the Senedd, or which modifies the Senedd’s legislative competence. The memorandum (usually laid by a member of the Welsh Government) must include certain information (see Standing Order 29.3) but will generally explain whether it is appropriate for the provision to be made, before the Senedd formally votes whether to consent via a Legislative Consent Motion. |
The Committee argues that the binary yes or no decision that LCMs necessitate is not a substitute for line-by-line scrutiny which occurs when bills are introduced to the Senedd. It suggests that the use of UK bills in devolved areas is removing elements of democratic accountability, and is not in-keeping with the fundamental principle that it is the Senedd that is elected, rather than the Welsh Government.
The Welsh Government’s Counsel General and Minister for the Constitution, Mick Antoniw MS (“the Counsel General”), has agreed that the best way to develop legislation is through the Senedd, however, he added that the realities of the current legislative constitutional arrangement mean that this is not always possible.
The Committee concludes that the increase in LCMs, as well as the points raised above, contribute to an emerging picture of a shifting balance of power.
Other areas of focus
Following the agreement of a new intergovernmental relations (IGR) structure, the Committee has been scrutinising how the UK’s governments have been working together.
Whilst meetings have continued at all tiers of the new machinery, the report notes that at the highest level, the Prime Minister and Heads of Devolved Governments Council, a second meeting has not been held since the inaugural one in November 2022. Also, the new dispute resolution process, hailed by the Counsel General as a “very significant step forward”, appears not to have been used to date.
In May 2023, the Committee launched an inquiry into UK-EU Governance. The report, published on 27 November 2023, considers the role of devolved governments, legislatures and civil society in UK-EU agreements.
The report recommends that, in order to improve the role of devolved governments, Intergovernmental Structures for managing UK-EU relations need urgent reform and review.
Over the last year, the Committee has taken oral evidence from key actors in the field of justice, including Lord Bellamy (Parliamentary Under-Secretary of State for Justice), Sir Wyn Williams (the outgoing President of the Welsh Tribunals), and the Counsel General.
The Committee has considered issues such as the need for effective IGR between the Welsh Government and the Ministry of Justice, and the need to disaggregate data on justice in Wales. It concludes that it is concerning that progress on implementing the recommendations of the Thomas Commission (which reviewed the justice system in Wales) has been limited.
Forward Look
After another busy year, the Committee is continuing to focus on its core responsibilities of scrutinising legislation introduced to the Senedd and considering matters across its portfolio of devolution, the constitution, justice and external affairs.
The Committee’s Annual Report for 2022-23 will be debated in Plenary, likely in February.
Article by Adam Cooke, Senedd Research, Welsh Parliament
