Scrutiny ... or a Veto?

Alongside the many spurious issues that have been raised in the referendum campaign so far, there is one issue that is actually very relevant to the subject at hand: that of scrutiny. We hear the frequently repeated claim that the UK Parliament at Westminster has a role in scrutinizing legislation proposed by the Assembly, and the further claim that this is a good thing.

So in this post I'd like to look in a little more detail at how the current system works, and I think the best way of doing this is to take one example: the Mental Health LCO and the subsequent Mental Health Measure which finally became law in December last year. I've chosen this for two reasons:

•  first, it's short and easy to understand
•  second, it is not politically contentious because it was not introduced by the Welsh Government, but by a Tory AM, although it did have cross-party support.

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An LCO is a Legislative Competence Order, a means by which the Assembly is allowed to pass laws in a particular area. The process was laid out in the Government of Wales Act 2006 and came into effect following the Assembly elections of May 2007. This progress of this particular LCO is set out in detail on this page of the Assembly's website:

Provision of mental health services The National Assembly for Wales (Legislative Competence) (Health and Health Services and Social Welfare) Order 2010 (formerly known as the National Assembly for Wales (Legislative Competence) (No.6) Order 2008 (Relating to Provision of Mental Health Services) Proposed by Jonathan Morgan AM. The Order confers further legislative competence on the National Assembly for Wales, in the field of Health and Health services (field 9, Part 1, Schedule 5 to the 2006 Act). The Order enables the National Assembly for Wales to pass Assembly Measures providing mentally disordered persons with a right to assessment by the health service in Wales, duties on the health service to provide treatment, and a right to independent mental health advocacy. The Order became the first to be introduced by an individual backbench Assembly Member to receive Royal approval. Assembly: 03/10/07 Selected in ballot 17/10/07 Assembly grants leave to introduce proposed LCO 18/02/08 Proposed LCO laid 26/02/08 Committee established 13/03/08 Consultation opened 25/04/08 Consultation closed 20/06/08 Committee report laid 02/12/09 Draft LCO laid 09/12/09 Draft LCO approved in Plenary Westminster: 21/05/09 Secretary of State refers the proposed LCO to Parliament for scrutiny 02/06/09 Welsh Affairs Committee (WAC) call for evidence 26/06/09 WAC call for evidence closes 30/10/09 WAC report published 06/01/10 UK Government response to WAC report published 26/01/10 Draft Order approved by the House of Commons 01/02/10 Draft Order discussed by House of Lords in Grand Committee 03/02/10 Draft Order approved by the House of Lords 10/02/10 Royal approval. Order made: The National Assembly for Wales (Legislative Competence) (Health and Health Services and Social Welfare) Order 2010

As we can see, the process is long and very complicated. And I'm sure people will be relieved that I'm not going to go through every stage in detail (anyone who wants to do that can simply click the links) but I do want us to look at the LCO as it was first proposed. In a nutshell, it allowed the National Assembly for Wales to pass Measures to give mentally disordered persons a right to assessment by the health service in Wales, to lay duties on the health service to provide treatment, and to give individuals the right to independent mental health advocacy.

In fact the actual LCO request itself was not very much more complicated than that. The legal wording (i.e. what was to be added to Field 9 of Schedule 5 of the GoWA 2006) would allow the Assembly to legislate on:

Provision for and in connection with –
     (a)  the assessment by the health service in Wales of persons who are
     or may be mentally disordered persons;
     (b)  duties on the health service in Wales to provide treatment for
     mentally disordered persons;
     (c)  independent mental health advocacy for persons who are or may be
     mentally disordered persons.

This matter does not include assessment of, treatment or advocacy for persons detained, liable to be detained or liable to recall under the Mental Health Act 1983 (or any statutory modification or re-enactment thereof).

The principle should be, and indeed was, simple and straightforward. Health is a devolved matter, but in order for any government to provide an effective health service it is sometimes necessary to pass laws to give people rights within that service. As things stand, the Welsh Government has responsibility for running the health service, but does not have the corresponding power to make laws about the way it works. They have to ask permission each and every time they want to make laws in a new area.

     

Now how long do we think it would take for the Assembly to get permission from Westminster to make laws in this area? In fact it took a whole two years. The proposed LCO was laid before Parliament in February 2008, and the final LCO came into effect in February 2010. The final version is here, and the matters to be added to Schedule 5 were:

Assessment of mental health and treatment of mental disorder.

This matter does not include any of the following—

     (a)  subjecting patients to—
          (i)  compulsory attendance at any place for the purposes of assessment
          or treatment,
          (ii)  compulsory supervision, or
          (iii)  guardianship;
     (b)  consent to assessment or treatment;
     (c)  restraint;
     (d)  detention.

For the purposes of this matter, “treatment of mental disorder” means treatment to alleviate, or prevent a worsening of, a mental disorder or one or more of its symptoms or manifestations; and it includes (but is not limited to) nursing, psychological intervention, habilitation, rehabilitation and care.”.

and

Social care services connected to mental health.

This matter does not include the independent mental capacity advocacy services established by Part 1 of the Mental Capacity Act 2005.”.

Although the words are arranged in a different way, and although the final LCO includes matters under separate headings relating to the fields of health and social welfare, they say almost exactly the same thing as the original did. So why on earth did it take all of two years for the LCO to pass through Westminster?

     

But—and this is the important point—the LCO that was granted after those two years was not a new law, but only permission to make new laws about the assessment and treatment of those with mental health problems. The process of making the new law was much more complicated, because it had to do with the details and practicalities of how the services were to be provided, and the matter of rights and safeguards for people who are in an obviously vulnerable position because of mental health problems.

We can follow the progress of this legislation on this page. The proposed Measure was introduced in March 2010 and, like all Assembly legislation, has to go through detailed scrutiny procedures in four separate stages.

To get an idea of how much work was involved, we need only look at the final version of the Measure as passed by the Assembly in November 2010, which is here. As we can see, it has 6 Parts, 56 Sections, and 2 Schedules, and to read the detail rather than just the headings, we can click "Opening Options" on the left, then "Open Whole Measure".

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True Wales want to inflate the importance of Westminster's scrutiny of an LCO that was only a few short paragraphs of generalities, not realizing (or at least not being prepared to acknowledge) that scrutiny means dealing with and understanding the details and ramifications of any proposed legislation. Westminster had absolutely nothing to do with the scrutiny of the actual legislation itself, that is something that Assembly members from all parties had to do ... in just the same way as it is done in the Scottish Parliament and Northern Ireland Assembly. We in Wales are no less capable of doing this than the people of Scotland and Northern Ireland are.

     

In closing, I would like to make a more general point about what scrutiny is. It is a process by which representatives from all points on the political spectrum examine a proposed piece of legislation in detail. They do this to make the proposed legislation better than it might otherwise be: by closing loopholes, avoiding conflicts with other legislation, and clarifying any potential confusion about how that legislation might work in practice.

But if we look at how things work at Westminster, it is open to the government of the day (as most legislation is proposed by government) to use the majority it has to ignore the recommendations of any scrutiny committee, and even to ignore the will of the House of Lords. If necessary, it can use the Parliament Act to force the Lords to vote in favour of the legislation it wants to put through. This is entirely right, because representative democracy should mean that the final say rests with those who have been elected by the people who will be affected by that legislation.

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But the LCO process is something entirely different. Even though our National Assembly might have the necessary majority of AMs to pass a law that affects only Wales, the LCO process gives one person—the Secretary of State for Wales—an absolute power to refuse to lay it before Parliament. Then, even if they do lay it before Parliament, Parliament in turn has the power to refuse to grant it. This is not scrutiny, it is a veto.

We ourselves, through the AMs we elect to the Assembly, should have the right to make laws in areas that are already devolved to Wales, without requiring permission from the government of the day at Westminster. For that government might, as it does now, have an entirely different political complexion from the Welsh Government, and therefore be inclined to veto our request not on the grounds of constitutional principle, but simply because they don't agree with the policies we wish to pursue, even in areas which are meant to be devolved to Wales.

But we have it in our own hands to remove this veto ... by voting Yes on 3 March.