Subordinate Legislation Committee

Inquiry into the scrutiny of subordinate legislation and delegated powers

Consultation Response
SLC 12(i) - European and External Affairs Committee

Dai Lloyd AM
Chair
Subordinate Legislation Committee
National Assembly for Wales
Cardiff Bay
CF99 1NA

9 February 2009

Dear Dai

Inquiry into the scrutiny of subordinate legislation and delegated powers

Thank you for your letter of 6 January regarding the above, which I have forwarded to Members of the European and External Affairs (EEA) Committee for their consideration.

The EEA Committee has just completed an inquiry into current arrangements for the subsidiarity monitoring of European proposals, and mechanisms and/or formal arrangements for future collaboration between the National Assembly for Wales and Westminster, which has some bearing on the questions posed by your Committee inquiry. I am therefore grateful for the opportunity to provide you with a full response now that the EEA Committee has agreed its report and recommendations:

Scrutiny of Statutory Instruments implementing EU directives

(for European and External Affairs Committee only)

• Would you be willing to inform the Subordinate Legislation Committee of any directives of particular interest or concern to your Committee which will subsequently be implemented via regulations by Welsh Ministers to help us identify where there should be linkage between the work of our respective Committees?

The remit of the EEA Committee is to consider and report on any matters relevant to the exercise by the First Minister, Welsh Ministers, the Counsel General or the Assembly of any of their functions relating to the European Union or external affairs. The five Committee Members have recently agreed a strategic approach to their work, within this broad remit and the fortnightly meeting slots currently available to them. One of the four strategic themes for the Committee’s work is:

Monitoring of specific EU legislative proposals (including Subsidiarity)

The committee will:

• Monitor all EU legislative proposals considered to have significant impact or relevance to Wales, including subsidiarity monitoring, transposition into UK law and implementation

• Add to the list as necessary based on emerging intelligence

The Committee will do this by:

• Initial analysis at beginning of the year based on legislative proposals already in the system and newly identified in the Commission’s annual work programme

• Partnership working with other devolved administrations to develop mechanisms for identifying potential impact and subsidiarity breaches

• Enter the inquiry phase and formulate the Committee’s position

• Use the various influencing options to present the Committee’s view to appropriate players and feedback to EC using formal mechanism if appropriate

The Committee’s strategic approach paper is attached as an annex.

The Subordinate Legislation Committee may wish to be aware that the EEA Committee has reviewed the EC Work Programme for 2009 and identified a proposed Directive - Patients’ Rights in Cross-Border Healthcare - to scrutinise in more detail. It has agreed terms of reference and will take evidence from Welsh stakeholders during the Spring term before making its report.

On the general point of how the Committee identifies, from the huge raft of EU legislative proposals coming forward, those considered to have significant impact or relevance to Wales, its report on subsidiarity monitoring makes specific recommendations to the Welsh Assembly Government to:

• make available in a timely manner all UK Government Explanatory Memoranda on European legislative and policy proposals of relevance to Wales

• produce for the Committee a Welsh Assembly Government version of each Explanatory Memorandum, explaining its views on all new proposals that have devolved consequences and the implications they will have for Wales

The Committee awaits the Welsh Assembly Government response to these recommendations, which would be a useful step in allowing the Committee to focus its attention on those proposals of most potential significance, and following from that to potentially identify any consequential regulations to be monitored.

The European and External Affairs Committee would meanwhile welcome consideration of any formal mechanism proposed by the Subordinate Legislation Committee that would serve to link its work with that of the EEA Committee on considering EU Directives of particular interest or concern.

Transposition Notes

• Do you have any views on whether (OR would you support the proposal for a similar) the Scottish model of transposition notes would help make the process of implementing EU legislation more transparent to stakeholders and aid scrutiny of regulations implementing EU legislation?

• If so, do you have any views on what could usefully be included in transposition notes?

In the same way that the EEA Committee would welcome input from the Welsh Assembly Government on the implications for Wales of proposed EU Directives, the Committee would in principle support the provision of transposition notes, and the provision of transposition notes along the lines proposed by the Scottish Parliament’s European and External Relations Committee could provide useful information to aid the scrutiny process.

The mechanics of how such transposition notes would be analysed and considered by Committee officials and Members would need exploration, given the time and resources that could potentially be involved in such an exercise. The EEA Committee would again welcome any recommendations from the Subordinate Legislation Committee on how this process might be managed.

I hope that this response is useful to your inquiry, and look forward to seeing the recommendations that emerge from this work.

Yours sincerely

Sandy Mewies AM
Committee Chair