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Saturday, October 18, 2008

Presiding Officer chastises Commons Committee

A recommendation by the Welsh Affairs Select Committee that the proposed Affordable Housing Legislative Competence Order be revised so that the Assembly cannot scrap the right to buy has attracted the attention of the Assembly's Presiding Officer.

Dafydd Elis Thomas has written to the Secretary of State for Wales to emphasise his constitutional concerns about the Committee's approach to the legislative order. The full text of his letter is as follows:

I feel that I must write to you about the contents of the report from the Welsh Affairs Select Committee (WASC) on the Proposed Housing Order since you referred it for scrutiny. WASC in this report has decided to adopt a restrictive approach to the transfer of powers to NAW. I do not address policy issues which are not for me, but I must emphasise my constitutional concerns about the whole approach as evidenced by this report.

WASC appears to believe that it is appropriate for it to recommend restricting the scope of a Proposed Order to ensure that NAW should not seek to legislate in future in a way that appears to go beyond the specific intention of the current Welsh Government.

It also seems to assert the view that legislating by framework powers in UK bills is somehow constitutionally more appropriate than seeking powers by Proposed Orders, as specifically legislated for by Parliament in GOWA 2006.

WASC's assumption that its function should extend to questioning whether a Proposed Measure is consistent with the framework of Government policy or its attempt to scrutinise the 'effectiveness' of a Proposed Measure is an intervention which is contrary to my reading of Devolution Guidance Notes and repeated assurances given by successive UK and Welsh Ministers in debates in Parliament and NAW. As I have emphasised previously WASC's approach is seriously at variance with that of the House of Lord's Constitution Committee, which can only lead me to ask which approach is closer to the intention of Parliament when it legislated, and whether WASC's approach is motivated by a principled constitutional approach to making devolution work, to which we are both committed?

It is a serious point and one that the UK Government and the Welsh Affairs Committee needs to answer. The Government's problem is that it is not just backbench MPs who have played this game. It has also been attempted by Government Ministers, such as when a Wales Office Minister sought to speak on behalf of the Assembly Government on how the same piece of legislation will be used.

It is my view that it is inappropriate for the Welsh Affairs Committee to try to run the Assembly Government's Housing policy from Westminster, however the unsustainable LCO system has led MPs to believe that they can get away with this sort of behaviour. Maybe they can. That is why we need to have the full law-making powers envisaged by the Government of Wales Act 2006 as soon as possible.
I agree - the whole point of the LCO process is to transfer legislative power in a defined area, not to do it on a one off basis for a specific piece of legislation. By trying to narrow the remit of the LCO they are effectively installing themselves as a second chamber with the right to revise individual pieces of Assembly legislation. This runs counter to the whole purpose of the GOWA 2006
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