Inter-institutional partnership: the Senedd and the Welsh Government

By: Alys Thomas

In this blog I examine the formal mechanisms governing relations between the Senedd and the Welsh Government. I begin with a brief overview that explains how the Welsh institutions have developed since 1999. Then I consider developments in the most recent Senedd terms, notably the Inter-Institutional Relations Agreement (the Agreement) and concerns surrounding scrutiny and accountability.

Developing the Institutions

The story of Welsh devolution is one of the incremental developments. When the National Assembly for Wales was created in 1999 it was a corporate body, with no separation of powers between the legislature and government. Powers were limited to making subordinate legislation.  

This changed in 2007 when the Government of Wales Act 2006 brought about the separation of the Assembly and the Welsh Government and granted powers to make primary legislation – albeit subject to powers drawn down from Westminster through Legislative Competence Orders. This regime lasted a single Assembly term when in 2011 a referendum approved a move towards full primary legislative powers. In 2020 the name of the legislature changed to the Senedd Cymru or Welsh Parliament, in English.

Before 2007, as the Assembly was legally one institution, the staff were all civil servants and the Ministers sat on the subject committees. Thus, relations were close, even overly cosy, but it raised questions about effective scrutiny and how ministers could be properly held to account when they sat alongside other members on committees. After 2007 the committee structures became more regularised and in line with practice in other legislatures.

Inter-institutional Relations

Following the Brexit referendum and the and  the Constitution and Legislative Affairs Committee’s (CLA) scrutiny of the European Union (Withdrawal) Bill conducted with the External Affairs and Additional Legislation Committee the situation changed again. It quickly became apparent that there would be a slew of forthcoming subordinate legislation which would require thorough scrutiny. In February 2018, the then CLA Committee, which scrutinised subordinate legislation, published a report: UK governance post-Brexit. The Chair of the Committee’s foreword to the report stated:

We started this inquiry in earnest early in 2017, following on from the decision of the UK to leave the European Union in June 2016 and just as the Wales Bill was to receive Royal Assent and become the Wales Act 2017. Both of the events featured strongly in the evidence we received and highlighted the greater importance that must be attached in the future to inter-institutional relations: between governments and between parliaments.

The report made several recommendations about intergovernmental and inter-institutional relations and scrutiny in the UK. A key recommendation was that the Welsh Government enter into an agreement with the CLA Committee to support the scrutiny of intergovernmental activity.

A formal version of the first Inter-Institutional Relations Agreement (the Agreement) was agreed by the CLA Committee in January 2019. A paper was laid before the Senedd on 31 January which contained the Agreement, and the Senedd formally noted the report and the Agreement on 6 March 2019. 

Following the Senedd election in May 2021 and the establishment of a new Legislation, Justice and Constitution Committee (LJC), a new Agreement with the Welsh Government was made for the Sixth Senedd. The First Minister formally agreed the text of the new Agreement on 8 November 2021. 

The First Minister further agreed to the process by which Welsh Ministers will notify the Senedd of when they intend to, or have given, consent to the UK Government exercising a delegated legislative power in a devolved area. Mark Drakeford confirmed:  

[T]hat the Welsh Government will write to your committee and other relevant committees to inform them of an intention to consent to the UK Government exercising a delegated legislative power in a devolved area in relation to Wales, explaining the rationale for the intention to consent. Where time allows we will provide an opportunity for the Senedd to express a view before consent is formally given. Further, the Welsh Government will lay a Written Statement in relation to every exercise of a delegated legislative power by a UK Minister in a devolved area to which the Welsh Ministers have given consent, explaining the rationale for that consent, normally within three working days of the laying before or notification to the UK Parliament.   

The Agreement represents the agreed position of Senedd Cymru and the Welsh Government on the information that the Welsh Government will provide to the Senedd about its participation in formal, ministerial-level inter-governmental meetings, agreements, concordats, and memorandums of understanding. The agreement notes the mutual recognition that on the one hand, the Senedd’s purpose is to scrutinise but that on the other hand, there is sometimes a need for the Welsh Government to keep aspects of intergovernmental relations confidential.

The Agreement establishes three principles which will govern the relationship between the Senedd and the Welsh Government regarding intergovernmental relations. These are: 

  • Transparency 
  • Accountability 
  • Respect for, and recognition of, the part confidential discussions play between governments, particularly when developing policy. 

The Welsh Government undertook to prepare an Annual Report on intergovernmental relations (“IGR Report”).

However, the effectiveness of the Agreement as a guarantor of transparency and accountability has yet to be established. The L,JC’s Fifth Senedd Legacy Report expressed disappointment that the Welsh Government had chosen to use UK Bills rather than introduce its own primary legislation to legislate for Wales. The report stated, “In effect, the UK Parliament became responsible for scrutinising in detail policy that has been devolved to Wales for over 20 years.” 

The report argued that opportunities to hear evidence from stakeholders and expert witnesses were not available to the same extent for Senedd Committees to scrutinise Bills. Nor were Members of the Senedd afforded the ability and opportunities to test and seek to influence legislation by tabling and voting on amendments as would have been possible with Welsh Government Bills.  

Furthermore, the LCJ was particularly concerned at how some UK Government Bills provided wide-ranging powers for Welsh Ministers to develop future policy by means of subordinate legislation, again avoiding detailed legislative scrutiny in the Senedd. Concern was expressed about the lack of opportunity for scrutiny of such legislation. In most cases, the Welsh Government has not tabled the necessary motions that would enable the Senedd to reach decisions on whether to consent to UK Government subordinate legislation that amends primary legislation in devolved areas.

The LCJ in the Sixth Senedd has been issuing monthly Monitoring Reports which cover a range of issues regarding inter-parliamentary and intergovernmental relations. The June 2023 edition stated that the total number of LCMs and SLCMs in the Sixth Senedd was 85 across 37 UK Bills. The LCJ Committee’s Annual Report 2021/22 stated that its work programme had been dominated by the scrutiny of legislative consent memoranda and supplementary legislative consent memoranda. It argued that this demonstrated a significant increase of primary legislation in devolved areas being made by the UK Parliament rather than by the Senedd.

During its consideration of legislative consent memoranda for UK Government Bills The LCJ Committee made 73 recommendations. Significant themes and issues included: 

  • concern about the extent to which the UK Government is now seeking to legislate in devolved areas;
  • poorly drafted, incomplete or inaccurate legislative consent memoranda; 
  • timeliness (or lack thereof) of legislative consent memoranda being laid before the Senedd;
  • concurrent powers leading to an effective impact on devolved competence; 
  • Henry VIII powers to amend the Government of Wales Act 2006; 
  • reliance on non-binding intergovernmental agreements rather than securing amendments to the face of the UK Bills, 
  • lack of transparency regarding how UK Bills may interact with international obligations, common frameworks, and other post-Brexit arrangements. 

The Annual Report also stated that general scrutiny had highlighted how the Welsh Government has applied and interpreted its guiding principles for legislating through UK Government Bills. It quoted the Counsel General’s response dated 20 April 2022:

We approach legislation in terms of maximising the outcomes for the people of Wales in line with our priorities. So we decide how best to do that via both Senedd and UK Parliament legislation, taking account of the priorities and capacity of our own legislative programme and also the potential opportunities – and risks – arising from the UK Government’s legislative programme. If we only delivered our priorities through Senedd legislation, rather than pursuing a wider set of priorities through both legislative programmes, then we would end up delivering less for the people of Wales.

Conclusion

The Senedd has operated as a full legislature for just over a decade, yet the LCJ Committee’s scrutiny over the Fifth Assembly and Sixth Senedd has revealed that the Welsh Government is increasingly allowing the UK Government to legislate in devolved areas. This is clearly linked to the scale of Brexit subordinate legislation. The Inter-Institutional Relations Agreement was clearly an effort by the Senedd and the Welsh Government to set ground rules for scrutiny and accountability, but it has not seemed to have been sufficiently effective in the current climate.

A Senedd Reform Bill is expected in the autumn which will increase the size of Senedd and therefore its capacity to scrutinise. However, clearly the pressure point regarding legislation lies within Welsh Government.

At a recent meeting of the LCJ Committee the Counsel General tried to explain the challenges faced by the Welsh Government in engaging with UK Ministers and having an input on Westminster legislation which impinged on devolved issues.  The Sewel Convention applies when the UK Parliament wants to legislate on a matter within the devolved competence of the Scottish Parliament, the Senedd, or Northern Ireland Assembly. Under the terms of the Convention, the UK Parliament will “not normally” do so without the relevant devolved institution having passed a legislative consent motion. 

The Counsel General suggested that there is a “disregard” for the Sewel Convention at Westminster and breaching the Convention has been normalised:

Sewel is, effectively, as I describe it, the oil of an engine. If you take the constitutional arrangements as an engine, it’s the oil that makes that engine actually operate. When Sewel breaches, the engine ceases, and that, I think, effectively, is what has begun to happen. 

To conclude, the Inter-institutional Agreement lays out how the relations between the Senedd and the Welsh Government should operate but the poor state of intergovernmental relations with the UK Government is hampering the Welsh Government’s capacity to comply. If the Counsel General is to be believed, the Sewel Convention is being disregarded by the UK Government across the board. In such circumstances, it is difficult to see the value of an Inter-institutional Agreement being replicated in other devolved systems. However, it might be useful if looking forward to a more functional period of intergovernmental relations.

Alys Thomas. 

Alys Thomas has researched and written about constitutional issues for many years, particularly on the devolution settlement in Wales. From 2003 to 2019 she worked for National Assembly for Wales’ Research Service in the Constitution Team. She is a contributing writer for the Constitution Society. 

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.