I was in Cardiff on Monday to give evidence to the National Assembly’s Constitutional and Legislative Affairs Committee. The Committee is carrying out an inquiry into the powers given to Welsh ministers in Westminster legislation, and looking more generally at how the Sewel convention will function in relation to Wales.
The problem I highlighted in my evidence was the fact that Westminster legislation was very largely the sole concern of the Welsh Assembly Government (as it was) between 2007 and 2011. It was open to WAG to decide what form powers would take – legislative or executive – when Westminster legislation put these on the table, and the Assembly’s consent was not required when Westminster legislation conferred powers on the Welsh Government, or even the Assembly itself. The Assembly’s consent was only regarded as required when powers were removed from the Assembly, or when it sought powers by means of a legislative competence order. The result was a significant strengthening of the executive branch of government, at the expense of the elected legislative branch.
To a large degree, this is a historic issue. The March referendum, and the Assembly’s consequent acquisition of primary legislative powers over the 20 devolved subjects, means that the question posed by future Westminster legislation will be rather different in future. While Part 3 of the Government of Wales Act 2006 was in effect, the question was posed by most domestic legislation, and was ‘how should Wales’s devolved institutions be treated by this bill, and what powers should be conferred on them by it?’. Now, the question is ‘how do we ensure this legislation proposed for England does not apply in Wales?’ Nonetheless, there are some major questions about the nature of the Welsh Government’s powers and how the government relates to the National Assembly, to which I’ll return in due course.
In my memorandum of evidence to the Committee (which is available HERE), I start to outline some ways in which the National Assembly could become more active in its approach, so that it can play the sort of ‘gatekeeper’ role that the Scottish Parliament does for Scottish devolution, as well as some steps to put the working of the Sewel convention onto a more interparliamentary footing, rather than working intergovernmentally as it largely does at present.