I know that this blog comes a few days after the breaking news that the JCSI (joint committee on statutory instruments) thinks that the Affordable housing LCO is dodgy, but as a bit of a constitutional geek I’ve taken this time to look at the wider implications.
Firstly who are the JCSI?
This committee is a made up from members of the House of Lords and the House of Commons (6 of each to be exact) and they look at statutory instruments to make sure that they are technically sound – basically to make sure they don’t do what their not supposed to.
There are thousands of statutory instruments passed each year and this committee meets almost weekly to flag up any concerns they have.
What have they said about the LCO?
The concern with the affordable housing LCO which has been agreed by the Assembly and the Welsh Affairs Select Committee is the veto included within it. The committee (which looks at a lot of these things and know what their doing) think that this provision is “remarkable” and have flagged it up for special attention.
Basically they feel that the purpose of the LCO arrangement is to transfer power from one building to another and that the Veto power being given to the Secretary of State goes against this principle. Assembly competence should be defined by the Government of Wales Act 2006 not on the whim of an individual.
What does this mean?
Well it means that the teething troubles continue, but it strikes me with my limited (compared to the lawyers working at the Welsh office) legal knowledge that this was wholly foreseeable.
It means that in their desperate attempt to pass the LCO, the Assembly Government have hashed this compromise together instead of focusing on the root of the problem, their relationship with the Welsh Affairs Select Committee. What they’ve actually done is caused more trouble for themselves in the long run.
Well the JCSI’s report isn’t binding so the LCO can go ahead in its current form and be passed but given the concerns raised a number of things could occur to stop it. Firstly the House of Lords may not be willing to approve it; secondly someone (opposition parties) could launch judicial review into the order and challenge its legality.
Whatever happens next the affordable LCO’s journey into the statute books is set to continue to be a bumpy ride.
What can we learn from all this?
It does strike me that Carwyn Jones (a former barrister remember) the Counsel General has been so blasé about this, I wonder if his approach is indicative of the attitude of the WAG towards the constitutional backdrop?
What may seem like small things, things like having a veto, created simply to compromise on a piece of legislation, can have a huge impact and set a precedent that could change how devolution works for the next decade. And it seems that Westminster cares more about this than the Assembly Government!
This whole incident is just another example of the hugely confusing system here in Wales.