Ben Lloyd suggests ways the Welsh legislation process can be improved once the May election is out of the way
The referendum result was a show of faith by the Welsh people in our legislature. Both the Westminster and the Welsh Governments will need to change to respect that. It is not often that public debate can centre around issues like the quality of legislation. We must use this opportunity to examine how we improve it.
The continued existence of clause 150 in the 2006 Government of Wales Act allows the Secretary of State to amend or repeal a National Assembly Act by an unamendable order. In the wake of the referendum a brief brouhaha over the appropriateness of this clause occurred in the Western Mail between myself and the author of the now disposed Legislative Competence Order system, Peter Hain.
I have two objections – the first is that it is not consistent with the express wishes of the referendum. Repealing the clause would complement that vote. The second however, is that it places the decision on whether to repeal an Assembly Act in the hands of the Secretary of State, and not Parliament which would at least have a greater amount of authority.
It is claimed that this legislation was not intended to be used for political purposes, but rather for technical cross-border issues. If this is the case the intention should be enshrined in law to prevent abuse. And in any case, I would hope the National Assembly would be sufficiently mature to consider any cross-border issues sensibly.
Apart from this, there are two main parts of the legislation process that need improving. The first is the way in which laws are considered, and the second is the process by which they are passed.
Welsh legislation is too often uncoordinated and not written with a final policy in mind. To a certain extent, this is a consequence of a system of legislation that required piece-by-piece approval by a largely uninterested Government in Westminster. However, there is little co-ordination between Government legislation and overall strategic objectives.
The Constitutional Affairs Committee, which in the last Assembly had a heavyweight line-up including former First Minister Rhodri Morgan, Welsh Liberal Democrat leader Kirsty Williams and former Minister Brian Gibbons, was critical of the quality of legislation and recommended that a future Government should produce White Papers explaining policy aims before introducing legislation. This would ensure that the legislation’s strategic objectives were clearly thought out in advance, as is the case with both Westminster and Scottish legislation. Now that it will have a wider range of legislative competence, the new Welsh Government following May’s election should adopt this practice from the beginning. The main effect will be to prevent legislation being produced in a knee-jerk and haphazard way.
As well as the way laws are introduced the process of passing them, and especially the way they are scrutinised, needs improvement. External advice, sustained analysis and public engagement all allow legislation to be improved and enhanced. Better technical advice and bringing in more people with different shades of opinion, are designed to improve policy outcomes. Plurality in drafting laws should be encouraged because it makes sure that policy development can draw on the widest range of expertise and experience.
Yet the Assembly’s current procedure actively undermines the role of scrutiny in legislation. It leaves Ministers and civil servants the sole judges of the quality of a piece of legislation. For example, near the end of the last Assembly the financial notes on the Local Government Measure were published after the deadline for amendments, while the Waste Measure was heavily criticised for inadequate information on its cost implications.
There has been constant criticism of the quality of information on the financial implications of new laws. The National Assembly should be able to send laws back to the Welsh Government if the financial information it has provided is not deemed to be good enough.
Moreover, thus far the National Assembly has relied far too much on secondary legislation. A depressing high number of Measures have simply given Ministers the power to make changes by decree. The epitome of this unfortunate trend came with the new Local Government Measure, which the Government tried to amend to allow themselves to merge councils by decree. This would allow Ministers to ignore local concerns and proper scrutiny. AMs would also be prevented from amending the legislation to develop a range of alternative options.
Admittedly, very few people on the doorsteps are concerned about the transparency of secondary legislation. Nonetheless, badly worded or ill-thought out legislation does affect their lives. For example, local government has been hampered over the lack of a clear definition of the term “well-being” which is deployed in a lot of legislation. Legislation that doesn’t express its intent well, such as clause 150 in the Government of Wales Act, is open to abuse.
In the next Assembly, both the Welsh Government and backbenchers should take also a more proactive role in rooting out subordinate legislation that is inappropriate. In the referendum the people of Wales voted to assert the legislative primacy of the National Assembly – the Welsh Government should not be allowed to undermine that.
Of course, the National Assembly is not the only Parliament that makes bad law. Westminster has often made laws that are badly thought out and have relied too heavily on secondary legislation. I am sure there are examples from other countries as well. But this is not an excuse for bad law to be the norm. The referendum has afforded us in Wales a rare opportunity to start a debate on improving our fledgling process of law-making.
