One of the most contentious Legislative Competence Orders (LCOs) was formally approved by the National Assembly for Wales on Tuesday. This is the LCO on the Welsh Language. The order would give the Assembly the power to legislate for (broadly speaking) the use of Welsh across the public sector, including for all private contractors paid £400,000 or more in public money in a year.
The first version of the LCO was subjected to pre-legislative scrutiny earlier in the year, prompting a critical response from the Commons Welsh Affairs Committee who called for the Assembly to have powers over the language, but only the basis of ‘precision’. They also called for any Assembly legislation to be subject to tests of ‘proportionality’ and ‘reasonableness’. They also said they regarded the threshold (of £200,000) to determine whether a public body would be subject to the powers under the LCO to be too low.
The Assembly Government, and now the Assembly, have largely given way to the concerns expressed by WAC. The threshold is now £400,000, ‘reasonableness’ and ‘proportionality’ tests (and a right of challenge on those grounds) are included, and the order is so much more detailed that the new Matters it will insert into Schedule 5 are nearly twice as long as in the first version considered by the Assembly (964 words rather than 506).
One thing this new order is not, however, is more precise. Detail does not equal precision, and in this case it detracts from it. The convoluted rules to be considered before determining whether a provision is within the legislative powers of the Assembly or not will create plenty of scope for legal argument and work, but not for the making of clear rules about use of the Welsh language.
Moreover, the introduction of proportionality and reasonableness tests seriously undermines the standing of the Assembly and the legislation it passes. They invite legal challenge from anyone unhappy about what the Assembly does. No other legislation passed by a legislature in these islands – not by the Scottish Parliament, the Northern Ireland Assembly let alone the UK Parliament – is subject to such a test. By contrast, secondary legislation made by UK ministers or the Assembly Government is, by virtue of the common law. Even then, though, ‘reasonableness’ usually means the high standard known to lawyers as ‘Wednesbury unreasonableness’, meaning ‘a decision so unreasonable that no reasonable authority could come to it’. The standard incorporated in this order is lower than that.
This provision therefore means two things. First, it sets a damaging and dangerous precedent legally for what the Assembly needs to do to obtain powers from Westminster. This test is simply not an appropriate one to use, and hardly consistent with the rule that ‘an Assembly Measure may make any provision that could be made by an Act of Parliament‘. Second, it asserts the subordinate status of the National Assembly and its powers, certainly under the present arrangements for it to acquire legislative powers. WAC clearly do not regard the National Assembly as having the same standing as the other devolved legislatures. In this battle of wills between the Assembly and the Welsh Affairs Committee, the Assembly has felt it has to give way to secure the legislative powers it needs (and voters expect).
Clearly some Assembly Members realise the dangers of going down this path. But in making the system even more unworkable than it need be, MPs are unlikely actually to be doing their longer-term interests many favours.
The order, now it is formally in the system, needs to be submitted by the Secretary of State to Parliament. (If not, he will have to give his reasons to the First Minister –and it would be interesting to see what those might be.) Each House must then vote on the proposal, and approve it or not. Politically speaking, it’s hard to see how Commons approval could now be withheld. Such constitutionally-dubious techniques may attract greater scepticism in other parts of Parliament, however. It was, after all, the Joint Committee on Statutory Instruments that considered another tricksy device to get round Westminster objections in the Affordable Housing LCO (in that case, a need for further approval by the Secretary of State of any suspension or abolition of right-to-buy) to constitute an unlawful delegation of power. There are now reasons to question whether this LCO in fact complies with the requirements for legislative competence set out in section 94 of the 2006 Act, as the reasonableness and proportionality tests have to be applied by a court: is Assembly legislation in this field therefore subject to tests that could not apply to an Act of Parliament, meaning it falls outside the scope of the powers that can be conferred by the 2006 Act? What the JCSI and the Lords Constitution Committee make of all this remains to be seen.