Heather logo portraitNational Assembly for Wales

Business Committee

November 2011

 

 


Proposed amendments to Standing Orders following the Assembly powers referendum – Section 109 Orders

Purpose

1.    In accordance with Standing Order 11.7(iv), the Business Committee is responsible for making recommendations on the general practice and procedures of the Assembly, including any proposals for the re-making or revision of Standing Orders.

2.    The Business Committee recommends changes relating to Standing Orders 25 and 26. Consequential changes to Standing Order 24 will also be necessary.

3.    These changes to Standing Orders are necessary due to the ‘yes’ vote in the Assembly powers referendum on 3 March 2011 and the commencement of Part 4 provisions of the Government of Wales Act 2006.

4.    Following the commencement of Part 4 provisions of the Act, schedule 7 defines the Assembly’s legislative competence. Schedule 7 can be amended (for example to add new subjects, to expand or clarify existing ones or to remove exceptions) by an Order in Council under section 109 of the Act (“section 109 Order”). This can only happen with the approval of the Assembly and both Houses of the UK Parliament.

5.    Terminological changes to Standing Order 25 to reflect this change were agreed by the Assembly in July 2011.

6.    Business Committee agreed at that time to bring forward during the autumn term proposals for a mechanism for Members other than members of the Government to introduce proposals for section 109 Orders.

7.    The changes agreed by Business Committee are found in Annex A. Standing Orders will be renumbered as outlined in Annex B.

Background

8.    During the Third Assembly, the successful passage of a Member proposed Order was heavily dependent on negotiations with relevant departments of the UK Government. During the Third Assembly, two Member proposed Orders received Royal Approval: Jonathan Morgan AM’s Order relating to the provision of mental health services and Ann Jones AM’s Order relating to domestic fire safety.

9.    In considering options for individual Members to propose section 109 Orders, the Business Committee decided that a continuation of the ballot system would be inappropriate given that there is less of an expectation for schedule 7 to be amended as a routine matter as compared with arrangements under Part 3 for the amendment of schedule 5. Further, if and when the need to amend schedule 7 arises, this will only be possible on the basis of consensus between the respective legislatures and governments. The generating of proposals for section 109 Orders via a ballot held by the Presiding Officer was therefore viewed as out of keeping with the settlement as outlined under Part 4.

Standing Order 25

Proposing an Order

10.The new Standing Orders provide for a mechanism that involves a Member tabling a motion calling on the Government to introduce a proposed Order under Section 109 of the Act. The motion will need to be accompanied by an Explanatory Memorandum providing information on the effect the proposed Order will have on the Assembly’s legislative competence; an explanation as to why the proposed Order is necessary; and, details of any support received for the proposal, including details of any consultation carried out; 

11.Business Committee will have to refer any such motion that has achieved a certain level of support to a committee or committees for more detailed consideration. The purpose of such a referral would be to request that the Committee reports on the merits of the proposal by a certain date so that the report can inform subsequent consideration and decision by the Assembly relating to the proposal for a section 109 Order.

12.Once the committee or committees have reported on the merits of the proposal for an Order, or the deadline for them doing so has passed, the Business Committee has to make time available to debate the motion.

Criteria for referral

13.The new Standing Order 25.29 sets the criteria of a motion having the support of at least ten members belonging to at least three different political groups, including at least one member from a group with an executive role, before Business Committee must refer the motion to a committee for detailed consideration. That support could either be made clear at the time of tabling, or could result from Members adding their names to the motion after it has been tabled.

Two-thirds majority

14.Business Committee has agreed that in order for a vote on a motion calling on the Welsh government to bring forward a section 109 Order to be passed, it should have the support of at least two-thirds of Members voting.

Standing Order 26: Right to introduce a Bill

15.Standing Order 26.86, granting Members who had initiated an LCO proposal that subsequently became an Order in Council the right to introduce legislation relating the that Order will be deleted.

16.Unlike Member proposed LCOs during the Third Assembly, the Order in this case will in fact be taken forward by the Welsh Government. It is possible that the final Order will be very different to the one originally intended by the individual Member. Subjects could have been added to or removed from the Order, the meaning of ‘related to’ could be difficult to define.

17.In addition, section 109 Orders will by their nature be different to Legislative Competence Orders, which were drafted with a view to introducing a specific Measure and could be quite narrow or specific in scope, in particular Member proposed LCOs.

Standing Order 24: Consequential Changes

18.In light of these amendments, consequential changes to Standing Order 24 are required to reflect the fact that Bills will now be the only type of Member Legislation.

Decision

19.The Business Committee agreed the changes to Standing Orders on 8 November 2011 and the Assembly is invited to approve the proposal as at Annex B.

STANDING ORDER 25 – Orders in Council to be made under section 109 of the Act

Member Proposed and Draft Orders  Proposals for an Order by a Member, other than a member of the Government

Amend these Standing Orders

 

Standing Orders 25.26 – 25.34 provided procedures for Members of the Third Assembly to propose Legislative Competence Orders under Part 3 of the Government of Wales Act 2006.

 

Given that the Assembly is now able to legislate within the 20 subject areas listed in schedule 7 to the Act, it is anticipated that the need to bring forward Orders in Council to amend Schedule 7 is likely to be reduced in comparison with the level of Legislative Competence Orders brought forward during the Third Assembly to amend schedule 5.

 

The new draft SOs provide a mechanism for Members other than Members of the Government to table a motion proposing that the Welsh Government should bring forward a proposed Order.

 

25.26   Standing Orders 25.27 to 25.34 apply only to Member proposed and draft Orders

Delete this Standing Order

 

This Standing Order is no longer necessary

25.27   The Presiding Officer must from time to time hold a ballot to determine the name of a Member, other than a member of the government, who may seek agreement to lay a Member proposed Order under Standing Order 25.30.

 Any Member, other than a member of the government, may table a motion calling on the government to introduce a proposed Order under Section 109 of the Act.    

 

Replace this Standing Order

25.28  The Presiding Officer must include in the ballot the names of all those Members who have applied to be included and who have applied to be included and who have provided an outline proposed Order and an Explanatory Memorandum.

At the same time that a Member tables a motion under 25.27, he or she must also table an explanatory memorandum which must provide the following information:

i)   the impact the proposal for an Order would have on the Assembly’s legislative competence;

ii)  an explanation of why the Member considers the  Order to be necessary;

iii) details of any support received for the proposal, including
     details of any consultation carried out.

Replace this Standing Order

Any Member tabling a motion under SO 25.27 will need to provide an explanatory memorandum including information similar to that which needs to be provided before entering the ballot for a Member proposed Bill.

 

This both prevents spurious motions being tabled, and ensures that sufficient information is made available so that other Members can come to an informed decision about whether to support the motion or not.

25.29  No Member who has previously had agreement to lay a proposed Order in that Assembly may apply to be included in the ballot.

 If a motion tabled under Standing Order 25.27 has the support of at least ten Members who together belong to at least three different political groups, including at least one Member from a group with an executive role, the Business Committee must refer the motion and explanatory memorandum to a committee or committees for consideration,

 

 

 

Replace this Standing Order

 

It is proposed that a motion must achieve a certain level of support, both in terms of absolute number of Members and cross-party support, before Business Committee has to refer the motion to a committee or committees for detailed consideration.

 

That support could either be made clear at the time of tabling, or could result from Members adding their names to the motion after it has been tabled.

 

The new Standing Order sets the threshold as ten members representing at least three different political groups, including at least one member from a group with an executive role.

 

 

25.30  A Member who is successful in a ballot may, within 25 working days of the date of the ballot, table a motion that the Assembly agrees that the Member may lay a proposed Order, to give effect to the outline proposed Order to which it relates, and an Explanatory Memorandum.

 Where a motion under Standing Order 25.27 is referred to a committee or committees for consideration in accordance with Standing Order 25.29, the Business Committee must establish and publish a timetable for the committee or committees to consider and report on it.

Replace this Standing Order

 

This Standing Order ensures that the proposal is reported on within a reasonable timeframe, and is given appropriate priority by the committee or committees in question.

25.30A Time must be made available for a motion referred to a committee or committees under Standing Order 25.29 to be debated, and such a motion cannot be moved until either:

 

(i)            the committee or committees have reported in accordance with Standing Order 22.59; or

 

(ii)           the deadline by which the committee or committees are required to report in accordance with Standing Order 25.29 has been reached.

 

Introduce New Standing Order

 

This Standing Order ensures that the proposal for an Order can be properly considered and scrutinised by the committee(s) in question before the motion calling on the Government to lay a proposed Order is debated.

 

The Committee’s report will inform Members’ consideration of the motion.

 

25.31   A motion under Standing Order 25.27 is not amendable

 No amendment to a motion under Standing Order 25.27 may be tabled if it would not be clear from a resolution of the Assembly approving the motion as amended by such an amendment how the Assembly wished to see its legislative competence altered.

Replace this Standing Order

The new Standing Order ensures as much clarity as possible in the motion passed, while allowing the motion to be amended in light of the committee’s report.

The new Standing Order gives the Presiding Officer discretion in the selection of amendments, and mirrors a similar provision which was in place during the Third Assembly for draft Orders.

25.31A No motion under Standing Order 25.27 can be passed unless (if the motion is passed on a vote) at least two-thirds of the Members voting support it.

Insert new Standing Order

 

The new Standing Order sets a threshold of two-thirds of members voting in favour before a motion calling on the Government to bring forward a section 109 Order is passed.

25.32 Time must be made available for a motion tabled under Standing Order 25.30 to be debated within 35 working days of the date of the ballot (not counting working days in a non-sitting week).

Delete this Standing Order

 

 

25.33   Unless a motion under Standing Order 25.30 is agreed to, no further proceedings are to be taken on the proposed Order.

Delete this Standing Order

25.34  If a motion under Standing Order 25.3027 is disagreed to, then no Member may table a motion under enter any ballot held under Standing Order 25.27 for a period of six months after the motion has been disagreed to if, in the opinion of the Presiding Officer, the proposed Order which he or she is intending to lay motion seeks to confer the same, or substantially the same, legislative competence as the proposed Order referred to in the motion which has been disagreed to.

Amend this Standing Order
The new Standing Order provides for the continuation of the previous provision which prevented substantially the same proposal being made again within a six month period of being rejected by the Assembly.

 

 

 

STANDING ORDER 26 – Acts of the Assembly

26.86   Where a Member was the Member in charge of a Member proposed Order  which became  an Order in Council made by Her Majesty under section 95 of the Act, that Member may introduce one Member proposed Measure  relating to that Order within nine months of the Order being made. This does not affect a Member’s right to enter a ballot held under Standing Order 26.87. 

Delete this Standing Order

Members of the Third Assembly were able to propose Legislative Competence Orders under Part 3 of the Government of Wales Act 2006. This Standing Order provided that any Member who successfully steered a Legislative Competence Order to Royal Approval would automatically be able to introduce a proposed Measure which related to his or her original Legislative Competence Order.

 

 

Unlike Member proposed LCOs during the Third Assembly, the Order in this case will in fact be taken forward by the Welsh Government. It is possible that the final Order will be very different to the one originally intended by the individual Member. Subjects could have been added to or removed from the Order, the meaning of ‘related to’ could be difficult to define.

 In addition, section 109 Orders will by their nature be different to Legislative Competence Orders, which were drafted with a view to introducing a specific Measure and could be quite narrow or specific in scope, in particular Member proposed LCOs.

 

 

 

 

 

 

STANDING ORDER 24 – Definition of Member in Charge of Legislation

Member Legislation Bills

Amend Sub-heading

 

Replace “Legislation” with “Bills”

24.14  Legislation Bills, which is are neither government legislation Bills, committee legislation Bills nor Commission legislation Bills, is are referred to as “Member Bills legislation”.

Amend this Standing Order

 

Replace “legislation” with “Bills”

Replace “is” with “are”

24.15   The Member in charge of an item of a Member Bill legislation is:

(i)      the Member who laid or introduced the legislation, or who has had agreement to introduce or lay the legislation a Bill under Standing Orders 25.30 or 26.91 (or, in the case of a draft Order, the Member who introduced the proposed Order to which the draft Order relates);

(ii)     another Member authorised by the Member under Standing Order 24.15(i), by means of a statement to that effect laid by that Member; or

(iii)     if no such authorisation is made, any Member authorised by the Assembly.

Amend this Standing Order

 

As Members will no longer be able to introduce proposed or draft Orders, this Standing Order required amending to reflect the fact that Bills will now be the only type of Member Legislation.

 

 

24.16 A Member may transfer an item of Member legislation a Bill to a member of the government authorised by the First Minister, by means of a statement to that effect laid by that Member.

Amend this Standing Order

 

Replace “an item of Member legislation” with “a Bill”

24.17   When a Member transfers an item of Member legislation a Bill to a member of the government (in accordance with Standing Order 24.16), that item of legislation Bill is to be regarded, from then on, as an item of  a government Bill legislation.

Amend this Standing Order

 

Replace “an item of Member legislation” with “a Bill”

Replace “item of legislation” with “Bill”

Replace “an item of government legislation” with “a government Bill”

 

ANNEX B – Revised Standing Orders reflecting changes proposed

STANDING ORDER 25 – Orders in Council to be made under section 109 of the Act

Proposals for an Order by a Member, other than a member of the Government

25.26 Any Member, other than a member of the government, may table a motion calling on the government to introduce a proposed Order under Section 109 of the Act.   

25.27 At the same time that a Member tables a motion under Standing Order 25.26, he or she must also table an explanatory memorandum which must provide the following information:

(i)        the impact the proposal for an Order would have on the Assembly’s legislative competence;

 

(ii)       an explanation of why the Member considers the  Order to be necessary;

(iii)      details of any support received for the proposal, including details of any consultation carried out.

 

25.28 If a motion tabled under Standing Order 25.26 has the support of at least ten Members who together belong to at least three different political groups, including at least one Member from a group with an executive role, the Business Committee must refer the motion and explanatory memorandum to a committee or committees for consideration,

25.29 Where a motion under Standing Order 25.26 is referred to a committee or committees for consideration in accordance with Standing Order 25.28, the Business Committee must establish and publish a timetable for the committee or committees to consider and report on it.

25.30 Time must be made available for a motion referred to a committee or committees under Standing Order 25.28 to be debated, and such a motion cannot be moved until either:

(i)     the committee or committeeshave reported in accordance with Standing Order 22.59; or

(ii)    the deadline by which the committee or committees are required to report in accordance with Standing Order 25.29 has been reached.

25.31          No amendment to a motion under Standing Order 25.26 may be tabled if it would not be clear from a resolution of the Assembly approving the motion as amended by such an amendment how the Assembly wished to see its legislative competence altered.

25.32 No motion under Standing Order 25.26 can be passed unless (if the motion is passed on a vote) at least two-thirds of the Members voting support it.

25.33 If a motion under Standing Order 25.26 is disagreed to, then no Member may table a motion under Standing Order 25.26 for a period of six months after the motion has been disagreed to if, in the opinion of the Presiding Officer, the motion seeks to confer the same, or substantially the same, legislative competence.

 

STANDING ORDER 24 – Definition of Member in Charge of Legislation

Member Bills

24.14 Bills, which are neither government Bills, committee Bills nor Commission Bills, are referred to as “Member Bills”.

24.15          The Member in charge of a Member Bill is:

(i)     the Member who has had agreement to introduce a Bill under Standing Orders 26.91;

(ii)    another Member authorised by the Member under Standing Order 24.15(i), by means of a statement to that effect laid by that Member; or

(iii)   if no such authorisation is made, any Member authorised by the Assembly.

24.16 A Member may transfer a Bill to a member of the government authorised by the First Minister, by means of a statement to that effect laid by that Member.

24.17          When a Member transfers a Bill to a member of the government (in accordance with Standing Order 24.16), that Bill is to be regarded, from then on, as a government Bill.

 

STANDING ORDER 26 – Acts of the Assembly

26.86 [Standing Order removed by resolution of the Assembly on (date)]