The scrutiny work of the Constitutional and Legislative Affairs Committee

Article by Alys Thomas, National Assembly for Wales Research Service

The Constitutional and Legislative Affairs Committee of the National Assembly for Wales has recently published a mid-term review of its work. The Committee has five members, one from each party group and is chaired by the Deputy Presiding Officer. Its work includes the scrutiny of subordinate legislation (Standing Order 21), scrutiny of Bills and inquiries into topics of interest. This post provides a summary of the review.

Statutory instruments

From June 2011 to July 2014 the Committee has considered and reported on statutory instruments as follows: 95 statutory instruments had reporting points, which were drawn to the attention of the Assembly in the form of a laid report and which included any government response received. In addition to reporting to the Assembly, the Chair also wrote to the Welsh Ministers in respect of 12 statutory instruments. The main issue when writing to the Ministers has been the availability of composite instruments in both English and Welsh.

Assembly Bills

Since the start of the fourth Assembly until the end of November 2014, the Committee has considered and reported on 20 Bills, four of which were Members’ Bills. In total the Committee has drawn 22 formal conclusions (ten of which relate to the general approach to legislating) and made 132 recommendations. It is anticipated that the committee will need to report on a further eleven Bills over the remainder of the Assembly.

Legislative Consent Memoranda

In line with its remit, the Committee may scrutinise Legislative Consent Memoranda, relating to UK Bills that seek to legislate in areas where the Assembly has competence. It can also scrutinise subordinate legislation that requires the Assembly’s consent before it can be made by UK Ministers, for example under the Public Bodies Act 2011. Following a recommendation contained in the Committee’s 2012 report, Inquiry into powers granted to Welsh Ministers in UK laws, the Business Committee agreed on 25 September 2013 to introduce Standing Order 30A to provide a procedure for the Assembly to provide its consent in relation to UK statutory instruments made by UK Ministers and requiring such consent. Standing Order 30A puts in place a procedure similar to that for Legislative Consent Memoranda under Standing Order 29, but in relation to statutory instruments rather than Bills and including a requirement to lay a Statutory Instrument Consent Memorandum (SICM) and a Statutory Instrument Consent Motion. Since the start of the fourth Assembly, the Committee has reported on nine Legislative Consent Memoranda (LCMs). The committee’s reports have covered a wide range of issues and it is possible to pick up some themes:

• on three LCMs—the Crime and Courts Bill and the Deregulation Bill— concerns were  expressed on the quality of the Welsh Government’s memoranda;
• on two LCMs—the Deregulation Bill and the Wales Bill—while no objections were raised to the LCMs, concerns were expressed about some of the clauses they contained. These concerns had been raised previously in correspondence with a parliamentary committee scrutinising the Deregulation Bill and the Secretary of State for Wales.
• on two LCMs, both relating to the Deregulation Bill, the Committee expressed concern at the use of this process rather than Welsh Government Bills to deliver its objectives.
• The Committee has objected to one LCM (Anti-Social Behaviour, Crime and Policing Bill). The Assembly rejected the LCM. The UK Government disputed the need for an LCM, refusing to remove the provision from the Bill.

The Committee has reported on eight statutory instruments requiring the Assembly’s consent, three of which used the new SICM procedure. The instruments have been routine and non-controversial, although the Committee expressed concerns about the quality of two memoranda.

Inquiries

Since the start of the fourth Assembly, the Committee has undertaken and published reports on seven inquiries. Information about these is detailed below:

• Inquiry into powers granted to Welsh Ministers in UK laws (March 2012)
• The Establishment of a Separate Welsh Jurisdiction  (December 2012)
• Council Tax Reduction Scheme Regulations (May 2013)
• Law Making and the Church in Wales (June 2013)
• Powers Granted to Welsh Ministers in UK Laws: Review of Outcomes, (November 2013)
• Wales’ Role in the EU Decision Making Process (March 2014)              -
• Disqualification from Membership of the National Assembly for Wales (July 2014)

The Committee is currently undertaking an inquiry into Making Laws in the fourth Assembly.

EU Matters

Subsidiarity In order to ensure that the Committee fulfils its subsidiarity monitoring function effectively, Assembly officials monitor all draft EU legislative proposals that apply to Wales on a systematic basis to check whether they raise any subsidiarity concerns. Where concerns are raised, these are notified to the Committee for consideration. A subsidiarity monitoring report is prepared by officials for information on a termly basis. To date the Assembly has made two written representations:

•  on the proposals for a directive on public procurement (COM(2011)896) – February 2012. The concerns raised were included in the Reasoned Opinion adopted by the House of Commons, and debated on the floor of the House on 6 March 2012;
• on the proposals for a regulation on high-speed electronic communications networks (COM(2013)147). The Committee in correspondence agreed with the subsidiarity concerns raised by the House of Commons in its Reasoned Opinion adopted on 13 May 2013.

The Committee also wrote informally to the House of Commons’ European Scrutiny Committee about proposals for directives on tobacco and related products (COM(2012)0788); and about alternative fuels infrastructure (COM(2013)0018). On 30 June 2014, the Committee wrote to the Foreign and Commonwealth Office regarding the UK Government’s review of the balance of competences. Proportionality On 16 July 2014 the Committee wrote to the European Commissioner for Maritime Affairs and Fisheries about a draft regulation on driftnets (COM(2014)265), raising issues of proportionality. Other activities The Chair attends EC-UK Forum meetings, which bring together the Chairs of the European and equivalent Committees in the UK Parliament (both Houses) and Devolved Legislatures, to discuss on-going and planned EU work, as well as relevant issues on the EU agenda that impact on the UK and devolved nations. The EC-UK Forum meets every six months, hosted on a rotating basis (Wales last hosted in April 2013), and are held under Chatham House rules.