The judgement of the little known Joint Committee on Statutory Instruments in the House of Parliament that the veto given to the Secretary of State for Wales in the Government’s Housing LCO could be illegal is a huge embarrassment for the Labour and Plaid Cymru.
Yesterday in the Assembly Plenary Session the Counsel General, wearing his Leader of the House hat thought that there was not a problem. He told Assembly Members that the LCO itself is clear that it simply deals with a request that may be put forward in the future by an Assembly Government to look to abolish the right to buy:
“In those circumstances, the power to legislate could be transferred by the Secretary of State without the need for another LCO. There is certainly no question of any Measure passed in this chamber being subject to any veto by any UK minister, and having looked at the transcript provided to me of the deliberations of the JCSI it does appear that they may have actually thought that was the case, but that isn’t right.
Nevertheless, it is a matter for the UK Government to proceed with the LCO, and the JCSI doesn’t have a veto of any kind over the way in which an LCO does proceed in the future. Certainly, we are confident that there is no difficulty in terms of the vires of the LCO with regard to any future devolution of power.”
There is of course a constitutional problem there and that was recognised by the JCSI. The Government of Wales Act does not make any provision for the transfer of power to be approved by a Government Minister as is envisaged by this LCO. The question then must surely be can an Order or Statutory Instrument amend the terms of an Act under which they are made? Surely the answer is no. The JCSI agrees:
1.16 The delegation in paragraph 7B proposed by this Order differs in degree from the existing consent provisions. First, it delegates power not only to the Secretary of State, but also to the Welsh Ministers, who are not accountable to Parliament. Secondly, unlike paragraphs 7 and 8, it relates to a specific matter in Part 1 and so can be seen as undermining the principle (paragraph 1.3 above) that Parliament retains control over the matters in Part 1. Thirdly, the provision to be authorised by the consent would inevitably impact directly not just on the Secretary of State or administrative arrangements, but on the statutory rights and liabilities of others (the social landlords and their tenants).
1.17 Recognising the restrictions implied by law on sub-delegation, the Committee has said (First Special Report for Session 1977-78; HL51, HC139) that delegated legislation should not depend on the exercise of ministerial or departmental discretion unless provision to that effect is expressly contained in the enabling statute. There are no express words in the 2006 Act authorising the determination of the Assembly’s competence by anything other than an Order in Council; nor, in the Committee’s view, is there a sufficiently strong implication in the 2006 Act. The Committee considers there is a doubt as to whether new paragraph 7B in Part 3 of Schedule 5 to the 2006 Act, to be inserted by article 2(3) of the draft Order, is intra vires and reports accordingly.
The report in the Western Mail poses further problems for the Plaid Cymru Ministers who agreed this unconstitutional veto. Comments have already been made about the Party of Wales undermining the devolution settlement by acceding to this veto, now Plaid Cymru MP Adam Price wades in with yet another implicit criticism of his own Ministers:
“I believe that there is a lot of substance in what the committee says. The First Minister has tried to explain the situation by saying this was a one-off, and it did not set a precedent. But the problem with a one-off is that by its nature it does create some sort of precedent.
“There needs to be an explanation….this has created a new layer of complexity in a governance system that was already very complicated.”
As Welsh Liberal Democrat Leader Kirsty Williams says: “While this committee doubts the legality of the UK government’s veto power, we doubt whether the Labour party and their Plaid Cymru coalition partners are serious about devolution.
“Why give us the full powers and then dictate from London what we can and cannot do with them? Why did the Plaid Cymru Deputy Housing Minister allow this veto to be placed on the power transfers to Wales?
“The most important issue now is where this goes next. If the Labour government presses ahead with this Order as it is currently drafted then it could raise serious legal questions and bring the whole devolution process into disrepute.
“We want the powers and we want them in full – no complicated strings attached.”
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