Letter from Rt Hon Rhodri Morgan AM, First Minister,

National Assembly for Wales

30 June 2003

Dear Ivor
I am writing in response to your letter of 4 June about the extent to which the Welsh Assembly government has influenced a sample of recent Bills and Acts.
I attached a table setting out the answers to the questions you asked in respect of each measure. I believe these fairly reflect the broad range of experience we have had in working with the UK Government on primary legislation, with the exception of Wales-only Bills where we naturally play a more leading role. You will appreciate that this information does not, and cannot, include the details of confidential discussions with the relevant Whitehall department in each case.
Nor does the table answer your third question on the financial consequences of each Bill or Act. There are several reasons for this:-
  		• The Parliamentary legislative and budgetary procedures are entirely separate. An Act merely authorises expenditure from voted funds – which neither applies to the Assembly nor commits a given level of resources. The financial memorandum which accompanies a Bill, and which is drawn up before Second Reading, offers an indicative assessment of the effect on public expenditure that the Bill might entail, but it has no legal or budgetary status at all.
  		• If the UK Government were in some way to authorise extra resources for the Assembly specifically in consequence of a Bill, this might run counter to the principle that the Welsh block is unhypothecated and that the Assembly is free to allocate resources between its responsibilities.
  		• The exact financial implications for us of a new Act affecting our responsibilities will, in many cases, depend at least as much on how and when we choose to implement it as on the terms of the Act itself.
    While the demands of new legislation will invariably feature along with much else in the negotiation of each spending round, and thus in the Barnett consequentials that we receive, it is not really possible to answer your question with reference to a particular Bill or Act.
    In response to your fourth question on the involvement of the plenary Assembly and its committees, I should point out that neither can consider a Bill before it is introduced, unless it is first published in draft. Doing otherwise would place AMs in an absurdly better position than MPs. However, in many cases the Assembly and/or its committees have debated the policy aims of a Bill before its introduction, and/or its details contents afterwards.
    I hope that you and your colleagues find this response useful.
    EVIDENCE IN RELATION TO THE CO-LEGISLATION PROCESS
    Question 1
    The Assembly was not formally consulted. However, the Bill (and the Courts Bill) both followed extensive public consultation in the shape of the White Paper ‘Justice for All’ which was out for consultation from July to October 2002. The White Paper itself built on two very public documents – Sir Robin Auld’s 2001 ‘Review of the Criminal Courts of England and Wales’ and John Halliday’s 2001 ‘Making Punishment Work: report of a review of the sentencing framework of England and Wales’; the Criminal Justice Bill owes most to the letter.
    Question 2
    We have not sought to influence the proposals as they affect Wales, because they are no separate Welsh implications, although we did respond to the Auld Report making a detailed case for the introduction of Welsh-speaking juries. Although these are not provided for in the Courts Bill, the Home Office is working on a consultation document on this and is liaising with us on that.
    Question 4
    Early in 2003 the Local Government and Housing Committee requested a paper on the Criminal Justice Bill with particular reference to any implications for local authorities in Wales (none) – the committee considered the paper, LG 03-03 (p.1) when it met on 12 February.
    Question 5
    The chief considerations were that there were no specific Welsh aspects and also that law and order is a non-devolved area, although we are making progress as noted above on the issue of Welsh-speaking juries.
    ADOPTION AND CHILDREN ACT
    Question 1
    We first became aware of the probability of primary legislation when the Prime Minister’s Review of Adoption was announced in February 2000. This was followed in December 2000 by a White Paper, "Adoption – a new approach", on which we were consulted by the Department of Health. We secured a statement in the White Paper that "it will be for the National Assembly for Wales to determine policy in Wales on transferred issues".
    Following the White Paper the Adoption and Children Act Bill was drafted and we were consulted on its content from the outset and were able to influence a number of key clauses.
    Question 2
    We were able to ensure that the Assembly’s existing powers under the Adoption Act 1976 were protected and secured a range of regulation making and commencement powers that safeguarded and extended the Assembly’s role in adoption.
    The Department of Health were reluctant to agree to a number of policy areas being devolved to the Assembly, arguing that it was essential to maintain a common England/Wales regime for adoption. However, we continued to press the case and, in some cases with Ministerial involvement, we were able to secure appropriate provision for Wales.
    Throughout the Bill’s Parliamentary stages we were regularly consulted by the Department of Health on proposed amendments to the Bill and, again, we were able to influence policy decisions.
    Question 4
    A paper on the Prime Minister’s Adoption Review was submitted to the Health and Social Services Committee at its meeting on 24 January 2001. A further paper was submitted to the meeting 18 October 2001, detailing the Assembly response to the key proposals in the White Paper.
    There were no Committee responses to these papers although we understand that there was general support across all parties for the proposed legislation.
    Question 5
    The most important factor in facilitating the Assembly’s role in shaping this particular piece of legislation was undoubtedly the establishment of early contact with the Department of Health Bill Team and maintaining that contact, almost on a day to day basis, throughout the Bill’s progress.
    The active role played by the Office of the Counsel General was also vital. OCG were able to provide guidance and advice that was key to the policy department and influenced the stance taken in negotiations with the Department of Health.
    HOMELESSNESS ACT 2002
    Question 1
    Officials were consulted in mid August 2000 on the homelessness and allocation provisions of the Bill. This took the form of a copy of the DETR Instructions to Lawyers, and was agreed with officials in September 2000. Further copies of papers and amendments wee received on 4 occasions between September 2000 and January 2001. The Wales Office also sent the draft Bill to officials for comments in January 2001. A revised Homelessness Bill was forwarded to officials in June 2001.
    Question 2
    Officials were mainly in agreement with the proposals. Officials, on behalf of the National Assembly, asked DETR to ensure that the Bill allowed the National Assembly the right to make secondary legislation to introduce the Act ie make the appropriate Commencement Order. This was incorporated into the Bill.
    Question 4
    The Local Government and Housing Committee had an opportunity to discuss the proposals in the Homes Bill on the 13 September 2000. It endorsed the proposal for a requirement to be included in the Bill concerning prior consultation with the Assembly on proposed secondary legislation. This secondary legislation related to the residential property section of the Bill.
    The Local Government and Housing Committee were further advised of the final version of the Homes Bill on 24 January 2001.
    Following the changes to the proposals ie the Bill only including clauses on homelessness and allocation of accommodation and being re-named the Homelessness Bill, the Local Government and Housing Committee were advised of the amendments on 24 October 2001.
    Question 5
    The Assembly was involved relatively late in the discussions on the policy and preparation of the homelessness and allocations parts of the Bill (August 2000) and this constrained its ability to shape the drafting of the Bill in detail. The Assembly supported the principles behind the Bill, and therefore did not test its capacity to influence it.
    Officials were not advised that the Homelessness Bill received Royal Assent. This information was received from a contact in the Wales Office a few days after the process had been completed.
    ANIMAL HEALTH ACT 2002
    Question 1
    Original consultation took place immediately post the end of the foot and mouth disease outbreaks. We were consulted in writing.
    Question 2
    The Bill was originally narrowly focussed ie to provide additional powers to tackle Foot and Mouth disease but belated changes in the Bill saw the Assembly liaise and work closely with DEFRA’s Bill team towards the end of the Bill throughout its passage through the Lords and Commons.
    Question 4
    Not specifically, but this of course was a public Bill and scrutiny could have taken place on that basis. Discussion in Plenary took place after the Bill became an Act to bring enforcement provision into effect.
    Question 5
    The 1981 Act which the 2002 Act amended was only partially transferred in the 1999 Transfer of Function Order. The Bill as originally designed was an emergency measure to deal with issues arising from the Foot and Mouth Disease Outbreak. However, during its passage the Bill was changed to include Disease Contingency Plans (on which Wales had made considerable progress), Transmissible Spongiforme Encephalophathies (TSEs) in sheep and an annual report to Parliament on illegal imports. Because these changes occurred during the passage of the Bill, it was belatedly recognised by the Bill team that these were issues for which the Assembly would have a close interest. However, this timing created problems for policy agreement between DEFRA and the Assembly and only on a few of the issues was the Assembly able to develop an active role eg on contingency planning and the annual report.
    NATIONALITY, IMMIGRATION AND ASYLUM ACT
    Question 1
    The Home Secretary announced a package of measures on asylum, migration and citizenship to the House of Commons on 29 October 2001. The Home Secretary subsequently wrote to the devolved administrations including the National Assembly for Wales in January 2002 to inform of the main elements of the Bill.
    Immigration and Asylum are not devolved issues and the Bill inherently covered matters predominantly within the remit of the Home Office for the whole of the UK. The Home Office identified possible devolved issues within the Bill, and invited comment from Assembly Ministers on these.
    Question 2
    There was regular correspondence between Home Office and Assembly Government Ministers on the Bill. A videolink meeting was arranged but cancelled due to technical difficulties. There were meetings between officials from the Home Office and the National Assembly.
    There was wide-ranging consultation on a variety of issues. Two main areas of contention were the creation of data gateways (information powers) and accommodation centres.
    There has been long running correspondence regarding the creation of data gateways and the Office of the Counsel General has advised on responses for this for the National Assembly.
    Sully Hospital was originally identified by the Home Office as a potential site for an Accommodation Centre.
    The Welsh Assembly Government opposed the use of the Sully site as it was felt that it is/was not suitable for this purpose. The Home Office subsequently chose not to pursue the Sully Hospital site.
    Question 4
    On 14 November 2002, the Home Office provided a presentation to the Equal Opportunities Committee regarding the ‘Benefit Shopping’ proposals of the Nationality Immigration and Asylum Act. The Committee stated their concern over the policy. It was pointed out that most local authorities were already applying the measures.
    Question 5
    Immigration and asylum are not devolved issues and remain the responsibility of the Home Office.
    Much of what happens to people once they arrive in Wales will fall under the responsibility of the National Assembly.
    NHS REFORM AND HEALTH CARE PROFESSIONS ACT 2002
    Question 1
    There was extensive discussion and negotiation between the Assembly, the Wales Office and the Department of Health before the Bill was introduced.
    Question 2
    We sought, and obtained, the provisions necessary for the restructuring of the NHS in Wales to take place as scheduled, and for the Assembly to implement this as it saw fit by means of subordinate legislation.
    Question 4
    The Assembly’s Health and Social Services Committee considered the Bill on 5 December 2001, taking evidence from Mr Don Touhig MP. There was some concern that the discussion had not taken place earlier, although the Health Minister pointed out that there would be further opportunities for the Committee and the Assembly subordinate legislation arising from it. The Committee nonetheless agreed that consideration of future Bills needed to be better planned and structured. Members also agreed to build time into the Committee’s forward work programme for discussion of secondary legislation.
    Question 5
    No particular constraints. The fact that parts of the Bill dealt separately and differently with Wales in an area already largely under the Assembly’s control made the process relatively straightforward.
    COMMUNITY CARE (DELAYED DISCHARGES) BILL
    Question 1
    We were first formally consulted (in the sense of receiving a Minister to Minister letter) on 8 October 2002 when instructions to Parliamentary Counsel were well developed, but there had been contact between officials and sight of the emerging instructions since July.
    Question 2
    The Bill was in two parts – Part 1 was about empowering the NHS to seek, and requiring local authorities to pay, a charge to the NHS where people were delayed in hospital for social care reasons. Part 2 was about removing local authorities’ discretion to charge for certain care services where their free provision could contribute to speedier discharge from hospital. We sought to influence the design of the Bill in a number of ways.
    That parts 1 and 2 could be separately commenced in Wales.
    That all the regulation-making powers in Parts 1 and 2 were separately and differently exercisable by the Assembly.
    That the detail of any cross-border charging (charging of Welsh local authorities by English hospitals and English local authorities by Welsh hospitals) would be set out in regulations to be made jointly by the Secretary of State and the Assembly.
    Bullet points 1 and 3 were secured without difficulty as was most of the middle bullet point. The only sticking point was that, at introduction, the Bill still included a clause for Part 2 which would have required us to follow the same detail for free services as adopted in England. We secured a subsequent Government amendment which removed that tie so that we could, for example, have a different menu of free services from England, but on the basis that free provision would be for no more than 6 weeks in England or Wales.
    Question 4
    There was no discussion specifically on this Bill in plenary. It was however discussed by the then Local Government and Housing Committee in February this year.
    Question 5
    In respect of Part 1, the Bill was essentially to take forward an English policy initiative which we had no immediate plans to implement in Wales and so it was largely a matter of thinking through the implications if we should wish to bring that into force. Our ability to help to design that part of the Bill was therefore limited in that we had had no part in the design of the policy which gave rise to it. As regards Part 2, while nothing was ever said explicitly in the exchanges between Ministers, we suspect that DH Ministers’ concerns to limit the extent of free provision in Wales to what was being provided free in England, arose from a fear that the Assembly would otherwise use these powers to implement the domiciliary care element of a free personal care policy. In its response to the Report "When I’m 64" (the report of the Advisory Group on the Older Person’s Strategy, the Assembly had declared itself in a plenary motion in principle in favour of such a policy.
    EDUCATION ACT 2002
    Question 1
    The Assembly was alerted to forthcoming legislation and shown early drafts of the DfES Green paper for schools in early spring of 2001. From then consultation was a largely routine and effective between officials and occurred between ministers when particular points needed to be resolved. The consultation papers which paved the way for that legislation went out in England and Wales on the same day.
    Question 2
    Jane Davidson gave some examples of this in her evidence to the Commission. Looking at the Education Act 2002, it is notable that there are a similar number of clauses that are England only and Wales only. It is also true that the England and Wales clauses are framed in permissive terms leaving the Assembly the opportunity to determine what provisions are brought in, when they are brought and how they are brought into effect. That illustrates the Assembly Government’s and Whitehall’s responsiveness. Some suggestions we made have been accepted for wider application as a recognition of the merits of the case – such as the power for the General Teaching Councils in England and Wales to attach conditions to suspensions. In relation to Assembly Learning Grants, we were not able to include a tailored power in the 2002 Education Act for reasons of scope, although DfES did indicate that they would have been prepared to make regulations for Wales using the Secretary of State’s non-devolved powers. In the event, we were able to achieve the Welsh Assembly Government’s objective by using a combination of National Assembly and Local Education Authority powers. For some a number of joint provisions the policy was driven by the Assembly. The best example is the new provision in the 2002 Act enabling schools to be federated under single governing body. Instruction of Parliamentary Counsel had been prepared by Assembly lawyers to a policy brief, and discussions between policy makers convinced DfES that there was merit in having such provisions. When England decided to come on board, revised instructions were prepared by the Assembly lawyer and the DfES lawyer acting jointly reflecting the jointly agreed policy. Similarly, the provisions to add to the basic curriculum was one of our policies which DfES adopted. We sought this power to give ourselves flexibility over PSE and WRE and while DfES had no such need, they took the same powers for England The LEA functions: qualifications provisions – section 190 in the Education Act 2002 – was a Wales initiative to confirm the status of the Welsh Joint Education Committee (WJEC) but which DfES adopted as an England and Wales provision with the National Assembly in the lead.
    Question 4
    Yes. First through the consultation of The Learning Country, then through regular progress reports to the then Education and Lifelong Learning Committee. The Education and Lifelong Learning Minister gave a Plenary Statement in November 2001 and the then Wales Office Minister, Mr Don Touhig attended a meeting of ELL Committee (February 2002) during the passage of the Bill. There was also a debate on Commencement in October 2002. There was a strong consensus in favour of the direction set out in the Learning Country and in support of the powers within the Act being largely permissive.
    Question 5
    Clarity of political and strategic direction and a good working relationship between officials. A protocol between Departments in which we operate on a "no surprise" basis.