Subordinate Legislation Committee
Inquiry into the scrutiny of subordinate legislation and delegated powers
Consultation Response
SLC13(ii) - Enterprise and Learning Committee
Response to the Subordinate Legislation Committee Inquiry into the Scrutiny of Subordinate Legislation and Delegated Powers
To what extent do you currently scrutinise statutory instruments?
The Committee has not scrutinised statutory instruments.
What role do you think your scrutiny Committee should play, if any at all, in scrutinising statutory instruments?
There may be occasions when we might consider it appropriate to scrutinise statutory instruments that are pursuant to primary legislation on which we have reported or that have a bearing upon previous, current or future inquiries. We do not believe however that this should become the focus or indeed a regular part of our work.
The involvement of Scrutiny Committees in scrutinising statutory instruments could serve to underline the importance of the separation of the roles of technical and merits scrutiny and the understanding of the difference between them.
If it is your view that there is a role for scrutiny Committees:
At what stage do you / would you be interested in scrutinising statutory instruments- in parallel with the Subordinate Legislation Committee i.e. once they are laid or earlier in the consultation when the Government is consulting on the draft?
We are of the view that relevant legislation should be scrutinised as early as possible in the legislative process so as to permit the Committee to influence its content.
The Subordinate Legislation Committee is largely a technical committee, and does not have any specific policy expertise. Would you be willing to inform the Subordinate Legislation Committee of any recommendations or concerns that you may have regarding forthcoming regulations (policy implementation) which you may be aware of through scrutiny of the Minister on specific policy issues or when scrutinising a Bill or as part of a Committee inquiry?
We would be happy to do so.
Would you wish the Subordinate Legislation Committee to bring to your attention any particular regulations made by Welsh Ministers once they are laid? If so, would you be able to identify those which will be of particular interest to you, for example, if you are aware that some are forthcoming either as a result of powers delegated to Ministers either in Measures or in UK Bills where Ministers can be given significant discretion to implement new policy proposals in Wales via regulations? Alternatively, would you be interested in being informed of all those within your policy remit which are subject to the affirmative procedure?
We would be happy for the Subordinate Legislation Committee to bring to our attention regulations that might be of particular interest to us. In determining whether to scrutinise these items we would seek legal advice and specialist policy briefing and take advice from the Committee Clerk. Should we decide to proceed, it is likely that we would consult external stakeholders who would be affected by the legislation.
Would you find it helpful to receive a forward programme of regulations which were due to be laid over the forthcoming 6 months / year from the Welsh Assembly Government which relate to your policy remit?
Yes.
During the course of our evidence gathering, one issue which has been raised is the matter of post legislative scrutiny. Do you have any views on whether or to what extent your Committee undertakes / should undertake post-legislative scrutiny?
We have not undertaken post-legislative scrutiny, but would consider such a course were it deemed to be appropriate.
The evidence submitted by the Wales Office states that it is "for Parliament to scrutinise Welsh provisions, including framework powers in Bills”. What role do you think your scrutiny Committee should play in scrutinising Bills?
We note the comments of Tomorrow’s Wales in its response to the Committee’s consultation:
It is well known that the formal obligations for the UK Government departments to consult the Assembly Government during the process of framing and drafting legislation are often honoured with consultation that is late, sketchy, or both.
We recently scrutinised the Draft Apprenticeships Bill. The link to our interim response is attached:
The Bill as drafted was for England only. The written memorandum provided by the Deputy Minister for Skills informed us that it was intended that the provisions of the Bill would be subsumed in the fourth session of the Learning and Skills Bill at which stage it would be possible that references and amendments to Wales might be included.
This procedure concerned us greatly. We were of the opinion that this legislative approach was unsatisfactory and did not reflect well on the UK Government or the Welsh Assembly Government or indeed the current constitutional settlement.
Given the obfuscation of normal procedure, a much amended Bill will need to be considered at some future date. We were concerned that a precedent for the introduction of Welsh clauses to Bills might be developing, given our Legislature’s recent experience of the Planning Bill, where Welsh provisions amended the Bill at a stage too late to allow for parliamentary scrutiny in Wales.
We are therefore of the opinion that it is important that the National Assembly for Wales, where it wishes and deems appropriate, is afforded the opportunity to scrutinise Welsh provisions, including framework powers in Bills.
We note the comments of Public Affairs Cymru in its response to this consultation that communication between Clerks at Westminster and the Assembly with regard to legislative issues should be encouraged. We warmly endorse this suggestion. We would also wish to see a process for stakeholder and public consultation on the content of clauses or on the scope of legislative competence, an issue raised by the Countryside Council for Wales in its response.
Do you consider draft Bills as well as Bills?
Yes.
We are of the opinion that scrutiny of draft Bills is to be encouraged, given that, at an early stage, it affords greater scope to influence the legislation. It also enables us to identify constitutional issues, where there may have been a departure from normal procedure for consulting the Legislature.
Do you consider the UK legislative work programme or the draft programme? Do you have any suggestions as to how the Secretary of State for Wales could improve the discharge of his duty to consult the Assembly on the work programme under section 33 of the Government of Wales Act?
We do not formally consider either, however, we monitor closely the publication and progress of draft Bills and Bills relevant to our remit.
How do you approach the scrutiny of Bills and what information do Welsh Ministers submit to you regarding Welsh provisions in UK Bills?
In the case of the Draft Apprenticeships Bill, the relevant Select Committee in Parliament requested that we assist its scrutiny by providing a response. As a matter of principle we would consider all relevant requests of this nature favourably.
As stated above, we monitor closely the publication and progress of draft Bills and Bills relevant to our remit.
In undertaking scrutiny of Primary Legislation, we would request that the relevant Welsh Minister provide both written and oral evidence regarding Welsh provisions in UK Bills. In doing so we would expect to receive information on the policy background, provisions relevant to Wales, and the likely progress of the Bill. Where possible and appropriate we would also press the Minister on regulations likely to be pursuant to the enactment of the legislation.
Do you have any views on how this or the information accompanying Bills (Explanatory Notes) could be improved?
It would greatly assist the Committee’s scrutiny were information provided by Welsh Ministers to be clear and transparent.
Would you be willing to inform the Subordinate Legislation Committee on a regular basis of any Bills you are intending to scrutinise?
Yes.
Would you wish to be informed of any reports on Bills which are relevant to your policy remit which the Subordinate Legislation Committee may consider?
Yes. We would welcome such information
Do you have any other views which would be useful for the Committee to take into account, on the effectiveness of liaison between the Welsh Assembly Government and the Wales Office on UK legislation?
We reiterate our comments on our experience of scrutinising the Draft Apprenticeships Bill and draw the Committee’s attention to issues affecting Wales outlined in the report on the draft Bill by the Innovation, Universities, Science and Skills Select Committee:
http://www.publications.parliament.uk/pa/cm200708/cmselect/cmdius/1062/1062i.pdf (pp8-9).
