Item 6 on the agenda is a motion to amend Standing Orders, and can I call on a member of the Business Committee to move formally the motion?

Motion NDM6825 Elin Jones

To propose that the National Assembly, in accordance with Standing Order 33.2:

1. Considers the Report of the Business Committee, ‘Amending Standing Orders: Standing Orders 24, 25 and 27—Section 116C Orders’, laid in the Table Office on 2 October 2018; and

2. Approves the proposal to revise Standing Orders 24, 25 and 27, as set out in Annex B of the Report of the Business Committee.

Motion moved.

Moved.

I realise that these Standing Orders will pass, and for the efficiency of what we need to do, I think we have to accept that. However, it would have been much better if we were amending this afternoon Standing Order 25 to accommodate the new needs that are on us, in relation to taxation powers.

In response to the Business Committee's preference, the Constitutional and Legislative Affairs Committee—and I think the Chair will speak later—suggested a new Standing Order 25. Bizarrely, we are now having to accept a bifurcated Standing Order 27. In the event, this is the wrong Standing Order, because it breaks the logical sequence laid out in Standing Orders, and it effectively places a new Standing Order within an existing Standing Order. This is not clear or transparent, and will have a big effect on anyone trying to read our Standing Orders, to gain an understanding of how these matters are dealt with.

Joyce Watson took the Chair.

This process has been made even more convoluted by the reporting mechanisms that the Government has committed to. I won't bore the Assembly with them all, but it seems to say there should be a reporting mechanism, but the whole committee is not involved in it, just the Chair. Whilst I have no doubt that Chair will be diligent in the exercise of his duties, this is not robust procedure. I have to say, acting Deputy Presiding Officer, that this amendment is bad craft and I hope it is not repeated.

I’m very pleased to speak to this motion to amend Standing Orders and I speak on behalf of the Constitutional and Legislative Affairs Committee and on behalf of Mick Antoniw, the Chair.

In April this year, the Business Committee wrote to us as a committee, seeking our views on the changes being proposed to Standing Orders related to the scrutiny of Orders in Council under section 116C of the Government of Wales Act 2006. Section 116C of the 2006 Act, as you all know, permits the addition or modification, through an Order in Council, of law-making powers for the Assembly in relation to taxation, as David Melding has just said. The Order in Council will specify how the taxation powers are to be changed.   

The Business Committee asked for our views as a committee on whether we saw any reason not to develop an appropriate procedure within Standing Order 27. Standing Order 27 concerns the scrutiny of subordinate legislation. In seeking our views, we were advised by the Business Committee that the Welsh Government considered it to be problematic to mirror Standing Order 25, which sets out the process for scrutinising Orders in Council under section 109 of the 2006 Act. Section 109 concerns modifications to the Assembly’s existing legislative powers. 

Our favoured approach was to include a separate, new Standing Order: Standing Order 25A. We felt that, irrespective of the approach it adopted, a new Standing Order would sit more comfortably within the current structure of our Standing Orders. This would have meant that Standing Orders that relate to acquiring legislative competence, i.e. Standing Orders 25 and 25A, would sit before those related to utilising that competence to make law—Standing Orders 26A, 26B and 26C—and would not come within the ambit of Standing Order 27. This Standing Order concerns scrutiny of subordination legislation that is invariably made as a result of powers delegated from a National Assembly or UK Parliament Act to Welsh Ministers.

As we've said on numerous occasions as a committee, it’s important that laws are accessible to citizens. It is just as important that the way in which the Assembly operates, through its procedures, is accessible too. On that basis, we felt that our solution offered a clearer, neater and more accessible way to proceed. The Finance Committee also questioned whether Standing Orders would be better served by a new stand-alone Standing Order rather than integration into Standing Order 27.

In view of the Business Committee’s decision, we have written to the Welsh Government seeking an explanation why the Welsh Government considered it problematic to subject Orders in Council under section 116C of the 2006 Act to the same scrutiny process as those under section 109, and why the Government felt the new procedure would sit better in Standing Order 27, rather than a newly drafted Standing Order 25A.

We’ve also noted from the Business Committee report that, as part of the commitments given to supplement the process chosen, the Cabinet Secretary will meet with the Chair of our committee to brief him following meetings with the Joint Exchequer Committee. We have therefore sought clarification from the Welsh Government as to why the Cabinet Secretary is meeting the Chair only, rather than the whole committee. The Business Committee has indicated that it will review the effectiveness of the new arrangements in due course and we would be very happy to assist with any review. Thank you very much.

I now call on the leader of the house, Julie James, to reply to the debate.

Thank you, acting Deputy Presiding Officer. 

Standing Order 25 was established to deal with section 109 Orders, as they existed under the pre-2011 devolution settlement—the old legislative competence Orders or LCOs of the third Assembly. Section 116C Orders, whilst relating to devolving new tax-making powers to the Assembly, are different from LCOs; they will only come forward after a period of negotiation and consultation and on the basis of consensus between the Welsh and UK Governments. The two-step process of the LCO, where proposed and draft Orders are scrutinised, is not appropriate in this situation. The Government has given a number of commitments regarding the information that will be provided to the Assembly during the negotiating phase in advance of a section 116C being brought forward. These are set out in the Business Committee's report.

A section 116C Order is an item of subordinate legislation subject to the affirmative procedure. The existing Standing Order 27 already provides for most of the procedure necessary to scrutinise 116C Orders. We consider incorporating the procedure in Standing Order 27 would see a consolidation of Standing Orders for subordinate legislation. This approach avoids duplication of procedures in different Standing Orders, thus helping with accessibility and transparency. Last week, the Assembly agreed the same approach to Standing Order 27 for statutory instruments made by Welsh Ministers relating to EU exit. 

The issue has also been raised about the proposal to provide a briefing to the Chair, as a representative of the committee, to ensure the committee could be updated on the progress of negotiations in a timely fashion. As you can appreciate, this will be in the context of inter-governmental confidentiality and relationships, but in the light of comments from the various members of the Business Committee, I am absolutely certain the Cabinet Secretary would be more than happy to consider other options to keep the committee updated as a whole, if they would find that helpful. 

There are ongoing discussions between our respective officials about future arrangements for keeping the Assembly committees informed about the operation of the inter-governmental relations machinery. The Government is very open to establishing appropriate arrangements. We can address the issues around the Joint Exchequer Committee, for example, in that context. As Dai Lloyd said, in his closing remarks, the process as established by section 116C of the Government of Wales Act is new. The Government is more than happy to review its commitments and the changes to Standing Orders, if they are agreed today, in the light of experience of actually operating them. Diolch. 

The proposal is to agree the motion. Does any Member object? No. The motion is therefore agreed in accordance with Standing Order 12.36. 

Motion agreed in accordance with Standing Order 12.36.