Legislation Monitoring for the Law Society Wales Committee

October 2010

Marie Navarro and Naomi WilliamsLegal Consultants

Completed All Legislation Report

Completed, ready to be uploaded on the Law Society’s website

Referendum Question

New Date 3rd March 2011

Report of the Electoral Commission - Illegality aspect Keith Patchett and Alan Trench declared the proposed question used language inconsistent with that of

the GOWA. (paragraph 4.2), Laura Mc Alistair and Cynos Dafis stated it lacked legal clarity According to Keith the referendum question must explicitly ask voters whether Part 4 of GOWA should be

come into force. A more generalised reference that merely seeks approval for powers on ‘all subjects in the devolved areas’ was not specific enough.(Professor Keith Patchett, paragraph 4.4)

Alan Trench argued that the proposed question referring to ‘areas’ and ‘subjects’ instead of ‘matters’ and ‘fields’, meant that the question was less precise and therefore ambiguous. (Alan Trench, paragraph 4.5)

In the Electoral Commission’s view, although it is clear that the referendum question must be ‘about’ whether the Assembly Act provisions should come into force, this does not mean that the question must specify the legislative provisions in express terms. “It appears to us, therefore, that GOWA envisages that the question to be proposed by the Secretary of State will be in terms that can be understood by voters.” (paragraph 4.8)

« 4.10 The question has been proposed by the Secretary of State for Wales and we must assume that the Secretary of State, who is required to comply with the provisions of the GOWA, considers that the question she has proposed is lawful. We further note that the First Minister and Deputy First Minister, although they have concerns about part of the wording of the proposed question, are in broad agreement with it and have not raised questions about its lawfulness. »

The Electoral Commission’s focus continues to be on the intelligibility of the referendum question that has been proposed by the Secretary of State. We do so on the basis that the question need not specifically refer to implementation of the scheme as formulated in Part 4 of the Government of Wales Act 2006 in order to be lawful. (paragraph 4.12)

New Wording Statement

English Redraft The National Assembly for Wales: what happens at the moment The Assembly has powers to make laws on 20 subject areas, such as:

agriculture the environment housing education health local government

In each subject area, the Assembly can make laws on some matters, but not others. To make laws on any of these other matters, the Assembly must ask the UK Parliament for its agreement. The UK Parliament then decides each time whether or not the Assembly can make these laws.

The Assembly cannot make laws on subject areas such as defence, tax or welfare benefits, whatever the result of this vote.

If most voters vote ‘yes’ The Assembly will be able to make laws on all matters in the 20 subject areas it has powers

for, without needing the UK Parliament's agreement. If most voters vote ‘no’

What happens at the moment will continue.

Question

Do you want the Assembly now to be able to make laws on all matters in the 20 subject areas it has powers for?

Yes No

A ydych yn dymuno i’r Cynulliad allu llunio deddfau ar bob mater yn yr 20 maes pwnc y mae ganddo bwerau ynddynt?

Ydw Nac ydw

Priority Legislation

Waste Measure Welsh Language Measure Mental Health Measure Children's Rights Measure Housing Measure

Inquiry ‘Drafting Measures: Lessons learnt in the first three years of the Third Assembly’

Proposed Welsh Language Measure 23/07/10

Legislation Committee Stage 1 report published

06/08/10 Assembly Finance Committee report published

21/09/10 General Principles of the proposed Measure agreed in plenary.

22/09/10 ‘Stage 2’ consideration began.

Stage 1 Committee Report

Agrees with general principles of proposed Measure Key issues:a) The Committee agrees that there is a need for this legislation to update and

modernise the existing framework of Welsh language legislation. [paragraph 111]

b) The Committee believes that a clear statement of principle is missing from the proposed Measure.

An overarching statement needs to be incorporated into the proposed Measure clearly stating that the purpose of the legislation is to promote and develop the Welsh language, consistent with retaining the support and goodwill of non- Welsh speakers. [paragraph 112]

c) There have been no objections to the inclusion in the proposed Measure of provisions relating to the official status of the Welsh language.

However, the Committee believe that section 1 of the proposed Measure, as currently drafted, makes no change to the status of the language, but acts merely as a signpost to provisions in this and other legislation which relate to the Welsh language. It contains no declaration as to the status of the Welsh language. In the Committee’s view, such a declaration is necessary. [paragraph 112]

d) The Committee, like most consultees, support the creation of the post of Welsh Language Commissioner. [paragraph 113]

e) The Committee believes it is too early to state whether the move from language schemes to standards will provide for a more streamlined, administratively simpler and therefore effective framework for the delivery of Welsh language services.

However, the Committee does acknowledge that the new system of standards has the potential to be an improvement on the existing legislative framework and provide a vehicle for increasing the use of the Welsh Language. [paragraph 114]

f) The Committee believes that the extension of statutory language obligations to certain private sector organisations that carry out quasi-public service functions is an improvement on the current position.

Nevertheless, the Committee have noted that the application of a standard to a particular person, including organisations in the private sector, is subject to a test of reasonableness and proportionality, which includes the right of challenge. [paragraph 115]

g) The Committee noted evidence they received from private sector organisations suggesting that the take-up of Welsh language services is low.

The Committee recommend that the new Commissioner, once appointed, should use his or her powers under section 3 of the proposed Measure to address both the reasons behind low take-up and the best solutions to it. [paragraph 116]

h) The Committee are concerned that two of the objectives of the proposed Measure as set out in paragraph 3.10 of the Explanatory Memorandum conflict with each other.

The Committee do not see how it can be possible to provide greater clarity and consistency for Welsh speakers in terms of the services they can expect to receive in Welsh, while at the same time establishing a system that will both ensure that duties imposed on bodies are both reasonable and proportionate and create a level playing field within sectors. [Paragraph 117]

i) The Committee have not been persuaded that this legislation is the place for provisions that relate to one particular service (Welsh medium education) and are content with the proposed Measure in this regard. [paragraph 120]

Conclusions: On balance, and while the Committee have concerns about the lack of clarity

in moving from language schemes to standards, they agree the general principles of the proposed Measure. [paragraph 121]

N/Bi. While the Committee acknowledge that the Welsh Government is anxious to enact this

important legislation before the end of the current Assembly in 2011, they consider that the Welsh Government should have published a draft Measure for consultation prior to its formal introduction into the National Assembly. [paragraph 123]

ii. The Committee acknowledge and agree with the Minister’s view that the Explanatory Memorandum met the requirements of Standing Orders. However, these are procedural requirements and are not used as a tool to assess the quality of information provided. [paragraph 124]

Suggested Amendments to Measure

1. The Committee recommend that the long title of the proposed Measure is amended to include a clear statement of principle against which the success of the proposed Measure can be judged in the future. [paragraph 112]

2. The Committee recommend that section 1 of the proposed Measure is replaced by a clear statement regarding the official status of our languages, which could read as follows:

English and Welsh are the official languages of Wales, and have equal validity and status. [paragraph 169]

3. The Committee take the view that there needs to be a more open and transparent approach in which a mechanism is included in the proposed Measure whereby the Welsh Language Commissioner is nominated by the First Minister and approved by the National Assembly. Accordingly, we recommend that the Minister brings forward an amendment to that effect. [paragraph 248]

4. The Committee also recommend that the Minister reviews those provisions of the proposed Measure which arguably exert some form of Ministerial control over the Welsh Language Commissioner, with a view to bringing forward amendments that give effect to the recommendation in the above paragraph,[248]: In their view these provisions are:

section 10(4) (approval to the making of grants or loans); section 11(6) (approval for employing staff); section 15 (general power of direction); section 63 (power to direct a standards investigation); section 66 (codes of practice) and section 97 (approval of enforcement policy documents). [Paragraph 249]

5. The Committee recommend that the Minister brings forward an amendment which provides a clear statutory purpose for the Welsh Language Commissioner, similar to that included for the Children’s Commissioner for Wales (in section 72A of the Care Standards Act 2000). [paragraph 250]

6. The Committee recommend that the Minister brings forward an amendment to paragraph 5(4) of Schedule 4 to clarify the relevant knowledge and experience a member of the Advisory Panel must have, as they consider it to be an important role to act as sounding board for testing and bringing forward new ideas. [paragraph 274]

7. The Committee recommend that the Minister brings forward an amendment to increase the number of members that may sit on the Advisory Panel at any one time. [Paragraph 275]

8. The Committee consider that members of the Advisory Panel should be nominated by Welsh Ministers and approved by the National Assembly. Accordingly, they recommend that the Minister brings forward an amendment to that effect. [Paragraph 276]

9. The Committee recommend that any decision of Welsh Ministers to dismiss a member of the Advisory Panel should be subject to approval by the National Assembly. [Paragraph 278]

10. The Committee noted that the Minister indicated that Welsh Ministers would specify standards following recommendations from the Commissioner. However, there is no indication in Chapter 2 of Part 4 of the proposed Measure that this is the case. They therefore recommend that it be amended in this way and in accordance with the Minister's evidence. [Paragraph 365]

11. The Committee consider that the regulations prepared by Welsh Ministers on standards under section 25 should be the subject of consultation and see no reason why such a requirement should not be explicitly provided for on the face of the proposed Measure. Accordingly, they recommend that section 25 be amended on this basis. [Paragraph 366]

12. The Committee believe that there should be a duty to consult organisations on regulations that provide for standards to be specifically applicable to them under section 38. Therefore, they recommend that section 38 is amended on this basis. [Paragraph 366]

13. The Committee recommend that section 61(2) be amended to provide that in carrying out a standards investigation, the Commissioner must also consult the public.

14. The Committee recommend that Schedule 8 be amended to clarify that the standards will not apply to LPG providers. [Paragraph 372]

15. The Committee recommend that the proposed Measure be amended to permit the imposition of promotion standards on such bodies. More generally, they recommend that the Minister reconsiders the bodies to which promotion standards should apply and brings forward amendments as he sees appropriate. [Paragraph 376]

16. It is the Committee’s view that it would be beneficial for clear record keeping standards to be applied to all organisations for the purpose of checking the success or otherwise of any standard set. It is recommended that the Minister considers bringing forward an appropriate amendment to make this a statutory requirement. [Paragraph 377]

17. The Committee recommend that section 70 be amended to highlight the capacity of individuals to initiate the process of investigations and for the Commissioner to be required to explain a decision not to investigate, similar to the requirement in section 103(6). [Paragraph 413]

18. The Committee recommend that the Minister considers other ways that highlight the role of members of the public in achieving the aims of the proposed Measure and brings forward appropriate amendments. [Paragraph 414]

19. If the Minister accepts the Committee’s recommendation to include a clear statement regarding the official status of the Welsh language in Part 1 of the proposed Measure, then a subsequent provision to protect a person’s freedom would not be necessary. If such changes are made to the proposed Measure, we believe that Part 6 should be removed in its entirety. [Paragraph 459]

20. The Committee consider that members of the Tribunal should be nominated by Welsh Ministers and approved by the National Assembly and accordingly, recommend that the Minister brings forward an amendment to that effect. [Paragraph 470]

Other actions:

1. The Committee recommend that the Minister for Heritage gives consideration to making a Ministerial statement clarifying the overall purpose of the proposed Measure and how this relates to its wider aims and objectives. Such a statement should be made during the remaining passage of the proposed Measure through the National Assembly. [Paragraph 112]

2. The Committee recommend that any Ministerial statement prepared by the Minister for Heritage should clarify the position regarding the ability of the proposed Measure to provide greater clarity and consistency for Welsh speakers in terms of the services they can expect to receive in Welsh, and at the same time respect the principles of reasonableness and proportionality. [Paragraph 119]

3. With regards to whether the promotional work should rest with the Welsh Language Commissioner, the Welsh Ministers or is to be split between the two, the Committee note that the Minister has made no final decision on this matter. It is recommended that the Minister should announce his decision on this issue prior to the start of Stage 2 proceedings. [Paragraph 252]

4. The Committee are unable to conclude definitively whether the standards mechanism will actually deliver changes in the absence of any substantive provisions on the face of the proposed Measure regarding the contents of the standards. Therefore, it is recommended that the Minister provides such clarification through the preparation and publication of draft standards of the different sorts contemplated under the proposed Measure. [Paragraph 362]

5. The Committee are concerned that the process of agreeing standards together with the potential need to develop an implementation plan could therefore, if anything, increase the administrative burdens for some organisations. They recommend that the Minister considers ways in which this potential burden can be minimised, without affecting the need for appropriate consultation. [Paragraph 364]

6. The Committee strongly recommend that the Minister works closely with the Welsh Language Board to plan effectively for the transition to the new system to ensure that the momentum built up in promoting the Welsh language and regulating the provision of Welsh language services is maintained. [Paragraph 490]

7. The Committee consider it very important that the Welsh Government works openly with all organisations subject to this legislation to ensure that any future regulatory impact assessments that arise as a consequence of this proposed Measure accurately reflect the cost of implementing its provisions. [Paragraph 510]

Additional points:

The Committee comment on the nature of some of the amendments submitted by consultees as part of their consideration of the substantive provisions of the proposed Measure. However, many of the amendments submitted were of a detailed, technical nature. Given the nature of Stage 1 scrutiny, it has not been possible to undertake any significant detailed examination of them. As such, it is recommended that the Minister reviews the submissions referred to in Annex 2, with a view to bringing forward appropriate amendments as he sees fit. [Paragraph 122]

The Committee were impressed by the idea of a Charter Mark which could be developed for organisations which are not subject to the standards mechanism. They therefore recommend that the Minister considers how provision may be made for the creation of a Charter Mark which would bear some form of official approval, perhaps from the Commissioner. [Paragraph 371]

Response to Law Society’s Evidence The detailed and prescriptive nature of the legislation in places, yet a lack of a clear

framework in others The Committee noted this concern, but no specific reference is made as to how to resolve this

issue. The lack of necessity of having an appointed advisory panel to work with the Commissioner

However, the Committee feels that there is a need for an Advisory Panel for the Welsh Language Commissioner and consider this to be an important role to act as a sounding board for testing and bringing forward new ideas.

The lack of indication of the form and content of standards. The Committee shares the concerns about the lack of clarity in moving from language schemes to

standards, but it is broadly content with the enforcement provision set out in the Proposed Measure. The inadequate cost analysis of the proposals provided in the Explanatory Memorandum.

The Committee shares the Law Society’s concerns regarding the lack of information available in the Explanatory Memorandum on the financial impact of the proposed Measure’s aims and objectives.

The need for the Measure to have been published in draft The Committee agrees that the Measure should have been published in draft.

Lack of quality in drafting The Committee noted the poor quality of the explanatory memorandum

Finance Committee Report Key issues:

There is a lack of analysis, detail and adequate financial information, which makes it difficult for the Assembly Finance Committee to properly assess the full financial implications of this proposed Measure.

For example, the Finance Committee notes the Minster’s view that the number of challenges, and more specifically the costs of these, are unlikely to rise with the proposed Measure. However, the Committee considers that there is insufficient evidence to come to such a judgement.

This proposed Measure might have a significant impact on outside organisations and the Finance Committee considers that in making legislation the Assembly should be aware of, and have properly scrutinised, the financial impact of the legislation on such organisations.

The Finance Committee believes that there should be sufficient information presented in support of such an ‘enabling’ Measure to allow an informed understanding of its financial implications to be made because secondary legislation usually attracts a lower level of scrutiny.

Recommendations

The Finance Committee believes that there should be sufficient information presented in support of such an ‘enabling’ Measure to allow an informed understanding of its financial implications to be made because secondary legislation usually attracts a lower level of scrutiny.

The Finance Committee calls on the Welsh Assembly Government to ensure that when secondary legislation to set standards is laid, it is subject to a full financial scrutiny.

Proposed Waste Measure

07/07/10 'Stage 2' consideration began

Consideration of ‘Stage 2’ amendments by the Legislation Committee is scheduled for 30/09/10 and 07/10/10

Proposed Mental Health Measure

07/10 Finance Committee report published 14/07/10 'Stage 2' consideration began. 30/09/10 Committee consideration of

amendments.

Finance Committee Report

The Committee welcomed the inclusion in the Explanatory Memorandum of a Regulatory impact Assessment which included a detailed analysis of the costs involved with this proposed Measure.

With regards to the sources of funding, the Finance Committee was concerned that funding for this Measure would come at the expense of other services and the Welsh Minister for Health and Social Services told the Assembly Committee that she could confirm that the funds she intended to make available for this Measure were not being diverted from other mental health programmes.

The Committee was pleased to note the Minister’s assurance that the workload implications would be subject to regular monitoring and that a comprehensive, formal review would take place in three years time and suggested that the outcome of such a review should be assessed by either a future Finance or Public Accounts Committee.

The Committee welcomed the innovative flexibility in Section 42 of the proposed Measure which provides delegated powers to Welsh Ministers to modify the operation of Part 1, ‘Local Primary Mental Health Support Services’, in relation to local authorities. This is noted as an important part of the Measure, allowing the Government to establish wider areas and, in turn, allow LHBs and local authorities from outside that region to become partners.

The Finance Committee notes the analysis of the costs of this proposed Measure and the uncertainties attached to them. It welcomes the detailed analysis that has been prepared which enables the figures, and the uncertainties, to be examined and decisions taken in the full light of them.

The Finance Committee very much welcomes the proposals in the proposed Measure that will result in better coordination of primary and secondary mental health services and to a more efficient and effective use of resources.

The Finance Committee is inclined to the opinion that funding the proposed Measure will prove rather more complex than is suggested in the Explanatory Memorandum, and welcomes the careful work that has been done on the costing for this proposed Measure. 

Conclusions The Finance Committee sees no objection, from a financial perspective, to

the proposed Measure.

Proposed Rights of Children and Young Persons (Wales) Measure

27/08/10 Stage 1 Consultation closed 22 responses received The Committee must report by 22 October 2010

30/09/10 Finance Committee considered the Financial implications of Proposed Measure.

Evidence sample UNICEF UK welcomes the proposed Measure introducing a general duty on Welsh ministers to have due regard to

the UN Convention on the Rights of the Child (UNCRC)and its two Optional Protocols and welcomes the proposed Measure.

We would like to see the proposed Measure go much further than the mere objective of ‘putting the law in place’; we expect it to eventually achieve both harmonisation of Welsh legislation with the UNCRC and effective implementation of children‘s rights. In other words, the due regard duty should by means of ‘decisions of strategic nature’ create a new legal framework for all aspects of the Welsh Government‘s dealings with children

UNICEF UK calls on the Welsh Government to effectively implement both Optional Protocols (the sale of children, child prostitution and child pornography, and on protection for children in armed conflict) by incorporating them into national legislation, policy and planning, and providing victim protection and rehabilitation programs.

Wales UNCRC Monitoring Group thinks that placing a duty on the Welsh Ministers to have due regard to the Convention only when making decisions of a strategic nature is unsatisfactory, and will lead, as we have already seen, to confusion and ultimately be ineffective. Instead they recommend that that Ministers should be under a duty to give due regard to the UNCRC in the same way that they do with sustainable development / equality of opportunity etc.

Wales UNCRC Monitoring Group thinks that to extend the principles of the UNCRC to young adults remains inappropriate.

NSPCC Cymru/Wales despite supporting the Measure in general, feels that in its current form, it does not allow for the full embedment of the Convention within the legal framework in Wales, because the due regard duty currently only applies to “decisions of a strategic nature about how to exercise any functions which are exercisable by ( Welsh Ministers)”. Despite the change from “relevant functions” in the draft Measure to “decisions of a strategic nature” in the proposed Measure, NSPCC Cymru/Wales remains concerned that the remit of the Measure is not wide enough.

Housing Measure

This Measure was announced in the Assembly Government’s Legislative Programme by the First Minister in July. This Measure will enable local authorities to apply to Welsh Ministers to suspend the Right to Buy in areas of housing pressure. It will also provide Welsh Ministers with a broad range of intervention powers to strengthen the regulation of Registered Social Housing providers.

Currently awaiting publication and introduction by the Welsh Assembly Government.

New Inquiry Drafting Welsh Government Measures: Lessons from the

first three years

The Committee has agreed to look into what, if any, issues of general significance have arisen or could arise from the way in which Measures have been drafted. In particular, the committee will be looking at whether there any lessons from the experience so far that might be applied to how Measures are drafted in future.

The Committee would be grateful for views on: The balance of what is included on the face of Measures and what is provided for in

regulations;  The extent to which Measures are drafted in clear language and provide legal Clarity;  The extent to which Explanatory Memorandums provide a useful guide to the proposed

Measure;  The extent to which Regulatory Impact Assessments provide a robust assessment of the

likely impact of proposed Measures. Any other matters that is considered to be relevant to the Inquiry.

The Committee issued a call for evidence, which closed on 24 September 2010.

Constitutional Reform and Governance Act 2010

Received Royal Assent 08/04/10 This Act only gives Executive Powers to the Welsh Ministers.

new proposed Matter 14.1 in Field 14 (Public Administration) new governance arrangements for the Auditor General for Wales and the Wales Audit Office have been removed during the passage of the Bill before Parliament.

Welsh Affairs Committee

Inquiry into the ‘Implications for Wales of the Government’s Proposals for Constitutional Reform.’ The Welsh Affairs Committee decided at its meeting on 27 July to scrutinise the

impact of the Government’s proposed legislation on Wales: to reduce the size of the House of Commons, and to equalise the size of parliamentary

constituencies; and to hold a national referendum on using the alternative vote system at UK general

elections on the same day as elections are due to be held to the Welsh Assembly. “Some commentators have also questioned whether the people of Wales should

reasonably be expected to participate in a referendum and an Assembly election on the same day.  The Committee is keen to hear the Government’s case for reducing the number of MPs in Wales and is equally keen to hear from the widest number of people about the merits of the Government’s proposals.” David Davies MP, Chair of the Committee.

Call for evidence closed 17 September. Public evidence sessions begin in October.