Welsh Government’s Trojan Horse Bills

In the Welsh Assembly elections in May 2011, the Welsh Labour Party won half of the seats available, but consequently failed to get that all-important majority that would allow them to govern without the support of at least one of the opposition parties. Rather than enter a coalition, they chose to go it alone. So how does a government without a majority get its legislative programme passed?

On the face of it, the answer is to win the political argument and develop a consensus in the Senedd.

Over the past two and a half years we have seen the Welsh Labour Government negotiate with both the Welsh Liberal Democrats and Plaid Cymru to deliver budget deals for Wales. The process of co-operation is not new to any of these parties as all three have been involved in the government of Wales through a coalition agreement in the past. However, the approach when it comes to law-making has been somewhat different.

A striking aspect of the Welsh Government’s legislative programme since the devolution of primary law-making powers has been the number of so-called framework bills presented to the Assembly. These skeletal laws contain little in the way of detail in terms of how a policy will be delivered in the Bill itself. Instead, they rely on a second layer of law, subordinate legislation or regulation, to flesh out the practical elements of the law when it comes into force. This isn’t a novel approach in itself, but it does present particular challenges to the National Assembly in making sure that the new law is effectively scrutinised and explored.

Regulation is subjected to far less in the way of formal scrutiny in the Assembly and its committees than is legislation. There is little opportunity for the public to engage in a consultation process or for AMs to suggest amendments if flaws or potential improvements can be identified. In itself, this means that a framework bill is less transparent than a fully-fleshed bill. The practice has been described as Trojan Horse legislation because it is impossible to see what could be hiding inside it.

This is obviously a cause for concern. What is less commonly known, however, is that there are different levels of scrutiny that can be applied to regulation. An ‘affirmative resolution’ requires the Assembly to actively vote in favour of a new set of regulations before they can become law. Alternatively, the government can use a ‘negative resolution’, whereby the regulations become law automatically without the approval of the Assembly. The Assembly must call them in for a vote to repeal them if they are not satisfactory.

Writing to the Constitutional and Legislative Affairs Committee of the Assembly, the First Minister has outlined the guidelines the government uses in choosing which procedure to follow. Essentially, the negative procedure is normally to be used when the regulations are minor or technical in nature.

Recently, however, Welsh Government Ministers seem to have been fighting to ensure that the negative resolution is used, even when their own guidelines suggest that an affirmative procedure would be more appropriate. I find this puzzling. The affirmative procedure requires very little in the way of additional work for the government. It doesn’t require a consultation process (although the rare super-affirmative procedure does) and these affirmative resolutions are usually passed with little difficulty in the Senedd.

So what could be the motivation for sticking so doggedly to such a technical point? Perhaps the answer is to be found in the role of the Presiding Officer.

In the event of a tied vote, the Presiding Officer is obliged to use a casting vote in favour of the status quo. In terms of passing regulations onto the Statute Book, the effect of this has radically different consequences depending on whether the affirmative or negative procedure has been followed.

If the affirmative procedure is followed, the Assembly must actively vote in favour of a regulation which is not yet law. In the event of a tied vote, very probably in a hung Assembly, the Presiding Officer must vote against change and therefore must vote against the new regulations passing. The government is defeated. However, if the negative procedure is followed and a regulation is called in for a vote, the regulations are already law and therefore a vote for the status quo means that casting vote must be used to keep the regulations in place. The government wins.

Of course, the opposition parties can table amendments to Bills with a view to improving them. I have tabled amendments to call for the affirmative procedure to be used for regulations in bills such as the Active Travel (Wales) Bill, but amendments to legislation are a change to the status quo and in a hung Assembly will also be defeated by the casting vote of the Presiding Officer.

Essentially the use of the negative as opposed to the affirmative procedure manufactures an operational majority for the Welsh Government, using the Presiding Officer’s casting vote as the additional vote they need. But of course, they still have to get the bill itself passed before they can move on to delivering their regulations. So how might they do that?

The trick is to use a skeletal, framework Bill. With little or no contentious content in the text of the Bill itself, the Welsh Government can win the argument in the Assembly by making it appear churlish to oppose legislation that, on the face of it, is eminently sensible. However, the combination of a framework Bill, with the policy content and delivery detail to be delivered through subsequent regulations, and the consistent use of the negative procedure for those regulations means that the will of the Assembly can be open to manipulation. Unwittingly, or no doubt deliberately from a Welsh Government point of view, it can deliver the functional majority it so desperately wants.

The people of Wales did not give Welsh Labour a majority in the National Assembly. We, as Assembly Members, must not allow the democratic process to be subverted and hand that majority to the Welsh Government. Now is the time for the Assembly to make clear that it will not allow the system to be manipulated.

There are two large framework Bills facing the Assembly at the moment that will have a huge impact on the lives of people in Wales. The Social Services and Well-being (Wales) Bill, and the Education (Wales) Bill both have a significant number of regulation-making powers contained within them, and both rely heavily on the use of the negative procedure. This means that if the Assembly votes in their support, the Welsh Government will have carte blanche to develop policy in these areas.

If the procedure in these bills is not changed, I believe the Assembly will have to make an example of them. There is only one vote where the opposition parties in the Senedd can effectively defeat the government and that is the vote on the Bill as a whole. If the Welsh Government wants to see its legislative programme move forward, it may have to work harder to win that all-important consensus.