Hain's assembly blueprint 'lacks clarity'
17 August 2005
Peter Hain's plan to give extra power to the National Assembly is fraught with problems, according to one of Britain's leading constitutional experts.
In a policy paper written for the Economic and Social Research Council, Alan Trench [Constitution Unit] sets out a series of concerns about the complicated proposal to let the Assembly seek permission to draft its own laws on a piecemeal basis.
In June Mr Hain, the Welsh Secretary, published a White Paper that says the Assembly could get primary lawmaking powers after a 'Yes' vote in a referendum to be held at some unspecified date in the future. In the meantime, the Assembly could ask Parliament to pass 'orders in council', allowing it to legislate in specific areas.
In his paper, Mr Trench argues that the 'orders in council' proposal has problems both of principle and of technical practicality.
Mr Trench writes, "This key part of the White Paper... smacks of political compromise rather than a thought-through approach to problems of principle."
Orders in council would require positive votes from both Houses of Parliament. That would be preceded by an element of scrutiny by some form of parliamentary committee.
Mr Trench writes, "It is not clear what the status of the committee stage of deliberation would be, and in particular whether it could obstruct a draft order in council altogether or merely produce a critical report.
"When and how, exactly, orders in council would be made is far from clear. "One suggestion is that they would be made as and when the Assembly seeks them. That would imply varying frequency, but with the possibility of much parliamentary and Assembly time being spent on them. Another, suggested by an official, is that there would normally be only one such order a year.
"A further question is what functions of the Assembly might be increased by orders in council. These will relate to narrower 'policy areas' within larger 'fields' of policy. The question is quite how far this would go, particularly in relation to matters (notably the fire service) added to the Assembly's functions since 1998 (when the Government of Wales Act setting up the Assembly was passed). The point is not simply a technical one: there needs to be clarity about when and how orders in council will be used to extend the Assembly's powers, and what the limits to such extensions are."
Mr Trench writes, "Part of the problem with this lack of clarity is that the situation could change with a change in political control at Westminster, or with a different Secretary of State. While Peter Hain may indicate that one approach will be adopted, there can be no guarantee that this approach will be permanent even under Labour UK Governments, let alone ones of different parties. This will be important for the next few years, but all the more so if the proposed third phase of devolved powers does not in fact happen." Mr Trench says that from the Assembly's point of view, orders in council have to be regarded as potentially a 'vulnerable' way to acquire powers. "Supporters of the White Paper's proposals," he writes, "assume that powers granted under order in council will be generous in extent, and transferred unconditionally and irrevocably. While this assumption may be valid, there is little in the White Paper or the ministerial statements made when the White Paper was introduced into Parliament to support it.
"Even if the powers are used in this way initially, there is little to stop a future UK Government taking a different approach. Depending on the drafting of the new legislation, it might even be possible for Parliament to revoke orders already made - although that would imply a very different approach to that presently applying to powers transferred to the Assembly under the Government of Wales Act 1998."
Martin Shipton, The Western Mail