Memorandum on the Legislative Consent Process

17 February 2014

Article by Alys Thomas, National Assembly for Wales Research Service

On Tuesday 18 February 2014 Plenary will debate the motion:

To propose that the National Assembly for Wales:

Notes the Welsh Government’s Memorandum on the Legislative Consent Process, which was laid before the National Assembly for Wales on 7 January 2014.

The Memorandum can be seen here: The Legislative Consent Process: Memorandum by the Welsh Government (“the Memorandum”). It is the Welsh Government’s response to the Assembly’s Constitutional and Legislative Affairs Committee’s 2012 Report on Powers Granted to Welsh Ministers in UK Laws (“the Report”) which recommended that:

the Welsh Government should ask the Assembly to consider a ‘declaratory’ resolution setting out the Assembly’s understanding of the Sewel convention as it applies to Wales.

Although the Assembly has the power to legislate in any of the areas specified in the 20 Subjects of Schedule 7 to the Government of Wales Act 2006 Act  the UK Parliament retains the authority to legislate on any issue relating to Wales whether devolved or not. However, in circumstances where the UK Parliament wishes to pass laws that relate to a devolved area, convention states that it must first seek the Assembly’s permission (or consent) before doing so. This is known as the “Sewel Convention” in relation to Scotland.

This convention is enshrined in the Memorandum of Understanding and Supplementary Agreement (“the MoU”) which outlines the principles of co-operation underpinning the relationship between the UK Government and the devolved adminstrations. In relation to parliamentary business the MoU states that:

… the UK Government will proceed in accordance with the convention that the UK Parliament will not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government.

Its application to Wales is set out in Devolution Guidance Note 9 which provides guidance to Whitehall officials on Parliamentary and Assembly Primary Legislation Affecting Wales. The way in which the Assembly provides or refuses to provide consent is by considering and voting on a Legislative Consent Motion (“LCM”) in Plenary.

The Report stated that the Committee had heard evidence that the Assembly should formally endorse the convention. It said:

The principle set out by Lord Sewel, that Westminster would not normally legislate with regard to devolved matters without the consent of the devolved legislature, is one that the Assembly would no doubt endorse but it is not a matter that has been debated at length by the National Assembly. For this reason, we believe it would be useful for the Assembly to consider a motion setting out clearly its own understanding of the convention and how the Welsh Government should act in compliance with it.

The MoU establishes the principle of early engagement with the devolved administrations on matters of mutual interest, including legislation. This might involve discussions between Welsh and Whitehall officials and consultation with Welsh Ministers by Whitehall officials so that the provisions are supported by Welsh Ministers when the LCM is debated in the Assembly.

Shortly after the Queen’s speech, the Welsh Government Minister responsible for Government Business writes to the Presiding Officer identifying those Bills which may require an LCM.  However, it is often only when the detailed provisions of a Bill are examined that decisions on the need for Assembly consent can be taken (and amendments to a Bill during the course of its passage through Parliament may require such decisions to be reconsidered, and additional consent motions laid before the Assembly).

If the Assembly refuses its consent the Welsh Government will ask the UK Government either to amend the Bill so that it is likely that the Assembly would be able to give its consent, or to omit the provisions touching on devolved matters so that an LCM is no longer required.

To date, the Assembly has withheld its consent to provisions in UK Legislation affecting devolved matters on four occasions:

  • In the Police Reform and Social Responsibility Bill  the UK Government removed the impact on devolved matters from the Bill by removing the proposed Police and Crime Panels from local government structures. The need for legislative consent was not disputed as policing and criminal justice are not devolved.
  • Provisions in the Enterprise and Regulatory Reform Bill abolished the Agricultural Wages Board. The UK Government did not believe this lay within the Assembly’s competence and legislative consent was not required. It refused therefore to amend the Bill. The Welsh Government believed it was within competence and subsequently introduced the Agriculture Sector (Wales) Bill. This was passed by the Assembly but was referred to the Supreme Court by the Attorney General. Proceedings begin on 17 February 2014.
  • In the Local Audit and Accountability Bill the UK Government agreed to amend the Bill, following the Assembly witholding its consent, by tabling an amendment to remove cross-border Internal Drainage Boards from the England auditing regime.
  • In the most recent case, the Assembly refused to give approval to a UK Government amendment to the Anti-social Behaviour, Crime and Policing Bill, which replaced the Anti-social behaviour order exception in Schedule 7 to the Government of Wales Act 2006 with a new exception. Following the Assembly’s refusal to give legislative consent, the Welsh Government asked the UK Government to remove the relevant provision from the Bill. The UK Government disputed the need for an LCM, and has refused to remove the provision from the Bill. The First Minister released a statement on this on 11 February 2014 in response to a Home Office statement. He asserted:

I consider that any amendment to the content of Schedule 7 to GOWA 2006, should be fully discussed and agreed with the Welsh Government and the Assembly, because of its significance for our devolution settlement.