The Senedd’s Legislation, Justice and Constitution Committee (‘the Committee’) remains concerned that it is becoming more difficult for the Senedd to perform its function of scrutinising legislation affecting Wales.
These concerns were raised in the Committee’s Annual Report 2023/24, published in November 2024.
The Annual Report argues that the Welsh Government’s use of framework Bills and the volume of UK Bills being used to legislate in devolved areas are contributing to these difficulties. This article focuses on these two areas.
The use of framework Bills
The Committee has become increasingly concerned about the Welsh Government’s use of framework Bills.
Framework Bills are those where little detail is provided on the face of the Bill about how the law will operate in practice. Instead, they give extensive powers to the Welsh Ministers to make regulations at a later date which will provide this detail.
This approach limits the Senedd’s ability to scrutinise the detail of policy and can leave significant decisions to be made through secondary legislation at a later date. Secondary legislation is not subject to the same level of scrutiny as Senedd Bills and can’t be amended as it’s going through during the legislative process.
The Committee commissioned Professor Richard Whitaker of the University of Leicester to undertake research into the use of framework Bills in Wales and the rest of the UK. The research found that a substantially higher proportion of framework Bills have been passed in the first three years of the Sixth Senedd compared to the Scottish and UK Parliaments over the same period. In the Senedd, 43% of all Bills passed in this period were considered as ‘framework’, compared to 10% in the Scottish Parliament and 9% in the UK Parliament.
The Committee’s Annual Report argues that such Bills “do not represent good legislative practice and their use should be avoided by the Welsh Government”.
The Annual Report cites the Local Government Finance (Wales) Act 2024 as an example of legislation which provides an “inappropriate delegation of power” to the Welsh Government. In its report on the then Bill, the Committee stated that:
Through the Bill, the Minister is asking this Senedd to grant broad delegated powers to an unelected future government for unknown reasons and to do a wide range of things that are not necessarily understood today. The excessive granting of secondary legislative powers denies the Senedd its proper constitutional role.
One of the Welsh Government’s points in response to the Committee’s conclusions was that:
…the proposed approach set out in this Bill [is] a significant improvement in comparison to the system we have relied on to date of seeking consents for Wales through UK Parliament Bills.
Speaking on behalf of the Committee during the debate on the Bill’s general principles, Alun Davies MS suggested that both framework Bills and the use of UK Bills to legislate in devolved areas deny Senedd Members the opportunity to seek to improve the law in Wales, as Members cannot amend secondary legislation or UK Bills.
The use of UK Bills to legislate in devolved areas
The Committee is also concerned about the increasing volume of Bills passed in the UK Parliament in areas devolved to the Senedd.
While the UK Parliament can legislate in devolved areas, the Sewel Convention states that it will not normally do so without the consent of the relevant devolved parliament.
When the UK Parliament legislates in relation to a devolved area, a legislative consent memorandum (LCM) is laid before the Senedd. LCMs outline the Welsh Government’s view on whether it is appropriate for the Bill to include devolved provisions. The Senedd then votes on whether to grant consent via a Legislative Consent Motion.
Motions are subject to a binary vote on whether to grant or withhold consent. There is no opportunity for Senedd Members to propose amendments to the Bills.
Breaching of Sewel Convention
Following increased instances of the UK Parliament legislating in devolved areas without the consent of the Senedd, the Committee’s report notes that the former Counsel General, Mick Antoniw MS, described the Sewel Convention as “wounded”.
The report sets out details of the discussions the Committee held with the then Counsel General and the former First Minster, Mark Drakeford MS, on reform of the Convention, including whether it should be codified (i.e., arranged into a legally formalised system).
In its report, the Committee states that “there would be merit in codifying the Sewel Convention or making it justiciable” (i.e., enabling disputes to be decided in a court).
Welsh Government support for UK Bills in devolved areas
There have also been instances where the Welsh Government has supported the use of UK Bills to make law in devolved areas.
The Committee’s Annual Report expresses concern over “the use of UK Bills to deliver a significant volume of legislation in devolved areas” as this “sidelines the Senedd and its elected Members from scrutinising legislation and seeking changes”.
The Annual Report discusses the intended use of the Renters (Reform) Bill, which would have amended two Senedd Acts relating to housing.
The Committee argued that by using this Bill to legislate in a devolved area as opposed to introducing its own legislation the Welsh Government was “undermining the Senedd as a legislature and the principle of devolution”.
The Committee stressed that introducing a Senedd Bill would have allowed for more effective scrutiny.
It further recommended that the Welsh Government should:
…explain how it will reduce its reliance on UK Bills in future and…ensure the Senedd’s integrity as a legislature is retained.
In response, the Welsh Government rejected the premise that it has a reliance on UK Bills, and said that there are instances where it is “sensible and advantageous” to use UK Bills in devolved areas.
While the Renters (Reform) Bill fell following the calling of the UK General Election, the new UK Government has introduced the Renters’ Rights Bill, which largely duplicates the provisions relating to Wales included in the previous Bill.
Looking ahead
In its Annual Reports for 2021/22 and 2022/23, the Committee warned of an emerging democratic deficit due to the extent to which UK Bills were being used to legislate in devolved areas. This year’s Annual Report states that the Committee’s position hasn’t changed.
Since the General Election in July 2024, 15 LCMs have been laid in relation to 9 UK Bills.
According to the Welsh Government, discussions have taken place relating to the UK Labour manifesto commitment to produce a new memorandum of understanding on the Sewel Convention. Having previously supported proposals to place the Convention on a statutory footing, the Welsh Government recently said that it’s “open-minded” on how to reform it.
The Committee has committed to continue to promote good legislative practice, including highlighting both the use of framework Bills and the “inappropriate use of UK Bills to legislate in devolved areas”.
Article by Adam Cooke, Senedd Research, Welsh Parliament
