The Affordable Housing (now Sustainable Housing) LCO saga continued at the Senedd yesterday, as Conservative AMs voted against approving the Draft Sustainable Homes LCO, despite two weeks ago having voted in favour of a referendum on the devolution of these powers and more to the National Assembly.

Once again we saw evidence of how the LCO process creates conflict, and blurs the boundaries between the principles of which powers should be devolved and the policy intentions of the Measures that would then be drawn up using those powers (in this case, the inclusion of the power to suspend the right to buy in areas of housing shortage was at the root of the opposition to the LCO). 

The LCO however was approved, and now needs to be passed at Westminster.  With a General Election looming the timescale for this is short. For a perspective on whether the LCO will survive the pre-election ‘wash-up’, see this post on the Syniadau blog.

We spotted this quiz on devolution in the UK on twitter this afternoon (thanks to @elinhafthomas).

Have a go and see how you get on!

As Tomos Livingstone tweeted yesterday, Secretary of State for Wales Peter Hain has received First Minister Carwyn Jones’ letter informing him of the Assembly’s vote in favour of triggering a referendum last week.

Mr Hain now has up to 120 days (4 months) to consult with, among others, the Electoral Commission, on the proposal to hold a referendum.

The urgent need for the National Assembly to get proper, primary, law-making powers has been dramatically illustrated by the potential collapse of the Housing Legislative Competence Order (LCO) in the face of Conservative opposition at Westminster. After four years’ work by civil servants and legal experts in both Cardiff and London, at goodness knows what cost, the net result could be – nothing. The LCO could give the Assembly power, in areas of acute shortage of social housing, to limit the right to buy, and is supported by housing organisations such as Shelter and Community Housing Cymru.

It is the opposition of Conservative MPs that might sink the attempt in this case. However just blaming the Tories misses the point. It is the system that needs to be changed. Trying to draw down law-making powers bit by bit, with MPs having the means to say No or impose conditions, is bound to lead to outcomes like this. Inevitably MPs will confuse the question of whether we in Wales should have law-making powers in certain matters with the issue of what the Assembly Government intends to do with those powers. Conflict is in-built in the system. And of course with the imminent possibility of governments of different colours in Westminster and Cardiff Bay the situation is sure to get worse.

Fortunately the forthcoming referendum will give us the chance to sort out the mess. The saga of the Affordable Housing LCO shows how important it is that we get it right.        

The report of the newly-renamed Assembly Constitutional Affairs Committee on the Westminster Flood and Water Management bill (available here) isn’t the sort of thing that usually sets the pulse racing.  A drily-written document concerned with a new England-and-Wales regime for preventing future floods, it’s the sort of thing that normally would only attract the interests of those interested in water management and environmental protection.  But it also highlights much of what’s wrong with the present constitutional arrangements for Wales. 

What has happened is that the UK Government has decided it needs to prioritise new provisions for preventing floods.  That’s hardly surprising in the wake of the flooding we’ve seen over the last couple of years.  And despite a lengthy process of pre-legislative scrutiny at Westminster, the UK Government decided to press ahead with a bill in the current, short, session at Westminster – even though the Commons Environment, Food and Rural Affairs Select Committee recommended that it should be deferred.  The result has been what the UK Minister calls a ‘slimmed-down bill’, and what the Committee called a ‘pick and mix’ approach to what’s included in it.  Even in conventional Westminster terms, this a bad way to make legislation. 

Among the casualties of this approach has been the sort of careful consideration of Welsh devolution issues that’s needed to make the present arrangements work properly.  What the bill contains evidently results from being dealt with in a hurry.  These provisions have two great failings.  First, there are no legislative powers for the Assembly at all.  The powers devolved are all purely executive powers for the Welsh Assembly Government. In principle – as Jane Davidson acknowledged – these ought to be legislative powers, but framing those and their scope was simply too complicated and time-consuming for the UK Government’s schedule.  Second, the form of those powers varies but most will require negative rather than affirmative instruments to be made, limiting the Assembly’s influence on what is made all the more.  (The report also criticises the omission of any proper appeals mechanism for cases where constraints are put on the use of land, which will clearly have to be put together in a piecemeal fashion.) 

There is one good thing about this process – the fact that the Assembly is now looking with care at how devolved powers are conferred, and doing so in such a thoughtful and thorough way.  Credit to the Constitutional Affairs Committee for doing so. 

However, the Committee can’t put right what has already gone wrong elsewhere.  The upshot of this process is that Wales has been treated as a convoluted afterthought and lost out as a result.  That process has not just treated Wales as second-best, but disregarded the need for a clear legal framework for the problems it creates and the role of the elected National Assembly in setting important new rules.  It shows only too clearly why a proper and workable devolution settlement is needed.  Part 4 of the Government of Wales Act 2006 would provide that (‘Water and flood defence’ would be wholly devolved in that – see Schedule 7, Field 19).  The present arrangements don’t, and while so much hinges on what goes on in Westminster and Whitehall it will always be this way. 

Alan Trench

Peter Black, Liberal Democrat AM for South Wales West, addressed last night’s local meeting in Mumbles. Here is his account of the evening.

The public meeting at Victoria Hall, Mumbles on Wednesday 11 February attracted a small and enthusiastic group of people, raring to go and campaign for a ‘yes’ vote. As well as myself speakers included Elin Wyn and Nick Bennett, whilst the chair was Tyrone O’Sullivan, who also contributed a quote to supporters pack: “Any country that is growing in stature needs to have its own law-making powers.”

Nick Bennett, whose day job is as Chief Executive of Community Housing Cymru, spoke about his experiences on the All-Wales Convention and the lessons that we need to learn from its research, whilst I outlined the circumstances of the vote and urged the meeting to form a unified ‘Yes’ campaign with a single message. I said that we need to explain clearly why the Assembly needs to assume all the powers set out in Part Four of the Government of Wales Act, we needed to address people’s concerns, especially about the cost and we had to tackle the misinformation from True Wales head-on.

There was some frustration amongst the audience that we were not campaigning now and that the ‘no-voters’ had got a head start, but it was generally accepted that anything that was said for or against more powers would now be lost in the mêlée in the run-up to the General Election. The vote on 9th February may have been historic but it was only the start of the process, not an end in itself. The real work begins now.

CAMPAIGNERS against more powers for the National Assembly have been stunned by Labour MP Don Touhig’s refusal to back them.

Several prominent members of Mr Touhig’s constituency party at Islwyn also belong to True Wales, the group likely to form the official No campaign in the referendum on primary lawmaking powers for the Assembly that will almost certainly be triggered tomorrow.

(more…)

Source: WalesOnline 8/2/10

NB This post originally appeared on Alan Trench’s Devolution Matters blog. Alan is also a member of Tomorrow’s Wales’ Executive Committee.

The role and remit of the National Assembly’s Subordinate Legislation Committee has been changing for some time.  It started as the reincarnation (in the 2007 Assembly) of the former Legislation Committee in the first two Assemblies.  That Committee had a narrow remit, being essentially concerned with whether Assembly legislation – by definition secondary legislation – was intra vires.  That meant checking it was within the scope of the legal powers conferred on the Assembly, and was properly made in procedural terms.

With the potential acquisition of primary legislative powers by the National Assembly after 2007, the role of the Committee changed.  This started with needing to ensure that Assembly Measures (as well as secondary legislation) was within its powers, but grew to include consideration of Legislative Competence Orders and instruments conferring powers on the National Assembly and the Welsh Assembly Government.  That role has come to play a greater part in its work – a fit subject for the involvement of elected politicians.  The change in name (and remit) to ‘Constitutional Affairs Committee’ recognises that change.  (The press notice announcing it is here.  The Committee’s webpage is here.)  The change is hardly overdue.

It’s interesting to watch the evolution of the National Assembly’s committees.  In 1999, these were purely concerned with the Assembly’s policy functions and paid much less attention to wider issues.  It’s almost as though the system were designed to prevent such consideration.  Now, the former Audit Committee has become a Public Accounts Committee, there’s a Constitutional Affairs Committee, and since 2007 there has been a Finance Committee as well.  The emergence of these committees, concerned with major cross-cutting issues rather than immediate policy matters, is an important part of the development of the National Assembly as a legislative body representing the concerns of the people of Wales.  It’s part of the story of Welsh devolution that should not be overlooked.