28 October 2015
Article by Alys Thomas, National Assembly for Wales Research Service
Terms of reference
The inquiry began in spring 2014 and the terms of reference were to consider how laws are being made in the Fourth Assembly, in particular by:
- considering the principles applied to the legislative drafting of Welsh Government Bills and Members’ Bills, and amendments, for the Assembly;
- considering the impact of legislative competence on the drafting of Bills (including the possible impact of alternative methods of defining legislative competence);
- reviewing the purpose and effect of Explanatory Memoranda which accompany Bills, and other explanatory or background material;
- reviewing the effectiveness of the opportunities provided by Standing Orders for the scrutiny of Bills;
- considering the time allowed for the scrutiny of Bills, and other matters relating to Bill procedure;
- reviewing the scope and effectiveness of arrangements for “fast-tracking” Bills within the existing Assembly procedures;
- considering the capacity of the Welsh Government and National Assembly to legislate;
- considering issues relating to the management by the Welsh Government of its legislative programme;
- considering any other matters relating to the making of legislation;
The Committee held an initial consultation exercise and issued a call for evidence asking both general and detailed questions relating to the above issues. The consultation ran from April until June 2014.
The Committee was advised on its work by Daniel Greenberg, a barrister specialising in legislation.
In October 2014, the Committee held a stakeholder event to consider the following topics:
- drafting techniques;
- policy development and explanation;
- the balance between primary and secondary legislation; and Assembly scrutiny.
The Committee then held oral evidence sessions in the spring and summer 2015.
Following the evidence gathering process, the Committee shared the draft report and initial findings with an expert panel.
The Report makes 34 recommendations which include:
- Recommending that the Welsh Government undertakes a thorough review and overhaul of its processes for the development and internal co-ordination of its legislative programme and that it ensures ensures that effective strategic planning, monitoring, delivery and quality control mechanisms are in place to ensure fully thought through and complete Bills are introduced for scrutiny by the Assembly;
- That there should be a presumption in favour of publishing draft Bills. This recommendation applies to the Welsh Government and Assembly Members given leave to introduce Bills.
- The Explanatory Memorandum to an introduced Bill should contain a detailed synopsis of how a Bill introduced has been amended from a draft Bill, and the reasons for any changes adopted.
- A financial memorandum should be published alongside all draft Bills, containing information about the costs of the current policy and legislative position and the costs after legislation.
- The Welsh Government should review its approach to Explanatory Memoranda and publish the outcome of that review in readiness for the Fifth Assembly
- Given that the Assembly is a unicameral legislature, we recommend that the Business Committee prepares proposals to amend the Assembly’s Standing Orders to provide a compulsory Report Stage for the scrutiny of every Bill, unless the Assembly, by resolution on a two-thirds majority, decides otherwise.
- The Welsh Government, in collaboration with the Law Commission, should develop a long-term plan for consolidating law in Wales.
During the launch of the Report the Chair of the Constitutional and Legislative Affairs Committee, David Melding AM stated:
‘As a unicameral chamber, it is the critical that the Assembly has sufficient time and opportunity to consider in detail and add value to a proposed law, so we would like to see a compulsory report stage, and highlight the importance of pre-legislative scrutiny.
It is also critical that people have the opportunity to shape these laws and see the benefit of their contribution. Therefore, clear, consolidated laws based on sound, well-thought-out policy are essential as Wales moves into this new phase of devolution.’
The Report stated that the Committee
‘[…] found some reason to believe that we can do more to ensure a smooth process of engagement between the citizen, the Welsh Government and the Assembly in the production of legislation, and this forms another theme connecting a number of our recommendations. For example, pre-legislative scrutiny is not only an opportunity for the Welsh Government to satisfy the Assembly that a proposal is ready to be introduced as a Bill; it is also an opportunity for the Assembly to satisfy itself that the interests and concerns of stakeholders have been identified and reflected in the policy development. Similarly, our recommendations around consolidation of the Welsh statute book, and about improving the content of Explanatory Memoranda, are aimed at improving access to the law for the people of Wales.’