Submission to the Richard Commission by Mark Hinge, Political Director for the Countryside Alliance (Wales)

This submission to the Chairman and members of the Commission follows advice and invitation given to the Countryside Alliance in August 2002 from the office of the Presiding Officer and that if the Commission.

The purpose of this submission is to highlight the views of the Countryside Alliance (CA) within the parameters of the Commissions Terms of Reference, more specifically directed towards ‘Part One’ of the consultation into the powers of the National Assembly for Wales (NAfW), but will not wholly constrain it submission to those matters.

In order to best advise the Commission on the views of the CA, it perhaps would be useful to outline the scope and breadth of the organisation and to briefly touch on its make-up, the devolved structure and in particular its work through consultations and advice to central and devolved government.

The CA was formed in 1996, from ‘an alliance’ of three well established bodies, the Countryside Movement, the British Field Sports Society and Countryside Business Group. It is a public limited company, by liability, having a Chairman, a Board, Chief Executive and President. It has staff in place to advise on political matters in Westminster, Holyrood, Stormont and Cardiff. This is backed-up by a head-office located in London and regional offices across the UK, these regional offices have a constituency, county and ‘RDA’ based network -the networking is primarily drawn from within the land-based sector. There are consultants, policy advisers, political and public relations departments and various autonomous campaign groups who campaign on the issues of shooting, fishing, hunting, falconry, food, farming and rural livelihoods. There is a sophisticated ‘Rural Communications Network’ and also outside of these a Rural Regeneration Unit, the former facilitates some 80,000 messages a week, a web page which receives upwards of 1.5 million ‘hits’ per month and is funded through membership, the latter working on a whole range of rural issues with central and devolved governments. In the various membership categories, the CA has approximately 1.2 million members drawn from a very broad range of backgrounds, interests, professions and political affiliations.

The CA is an apolitical organisation, which seeks to represent the views of the countryside via its membership to government and opposition. It sits on the Rural Forum at Westminster, it instigated, and now sits and an equal partner on the Rural Council and more recently in Wales, has been invited to form part of The Rural Partnership for Wales.

In May 2002, The Economist cited the Countryside Alliance as "the most effective rural lobby in Britain today".

Apart from the political and media work, the CAs’ name may also be synonymous with demonstration, where in November 2000, thirteen thousand demonstrated in Cardiff Bay and latterly arranging the ‘Liberty & Livelihood March’ in London, which attracted last Autumn, the largest rural demonstration seen in Europe, whereby 407,791 people took their voice to London, with a further 105,000 ‘Marching in Spirit’.

Against the backdrop of the passage of the Government of Wales Act and the 1999 Assembly Elections, the CA held ‘hustings’ across Wales, some of these were broadcast and televised. The range of questions levied by members were very diverse. There was a great expectation by the people of rural Wales, that the NAfW should be able to do many good things. The consensus was that it must be given every opportunity to do so. This perception remains extant and recent combined academic research from the Centre for Research into Elections and Social Trends (CREST) and individually by the Universities of Oxford, York, Bristol, Edinburgh and Aberystwyth confirm that public opinion for such ‘constitutional change in the UK’ is quite buoyant.

The CA will not make specific recommendations as to ‘what powers’ the NAfW requires, that is a matter for Westminster and Cardiff. However, it will state it believes that there is a need for more parity and clarity amongst the devolved institutions and it wholly recognises that there are problems associated with the present ‘devolution settlement’. Further, as the devolutionary process expands, as is already apparent by the passing of legislation and therefore the transferring of more functions to Wales, that a more holistic and defined approach, for the future, is needed at the National Assembly towards addressing the issues in Wales. To that end such issues will be highlighted in this submission.

The ‘powers’ of the Assembly are not understood, this perhaps comes from within the very complex matters of what it can and cannot do. The Assembly does not exercise its ‘powers’ by a specific reference to subject areas but by reference to specific Acts of Parliament (although subject areas are indeed debated). The functions which are exercisable by Ministers under these Acts in relation to England, are then exercisable, in relation to Wales either wholly by the Assembly, or partly by the Assembly and partly by central government or by the Assembly with the consent of Ministers. Each Act giving powers to the Assembly differs to the extent to which the Assembly has powers. There are no laid-out general principles in this respect and each Act; in here lies the need for scrutiny and analysis and often this leads to conflict.

Over the past 5 years, various comments have been written by political commentators, academics and indeed the political party’s themselves on the powers of the Assembly. In truth, there is scant information outside of legal definition on ‘the powers’. The reality, outside the early work of the Institute of Welsh Affairs, is that very few concurrent studies have been made or challenges raised on such ‘powers’; the NAfW is regarded as being untested and unexercised in that role. There is therefore, what may be termed a ‘Devolution Gap’, between Westminster and Cardiff, which can often be exacerbated by the present devolution settlement.

Practical examples can be drawn from a number of rural issues, which over the past years have been difficult to monitor and /or advise upon. These are not wholly confined to one particular portfolio. The CA does monitor and advise, in the main, on all the Assembly portfolios, that said, for simplicity sake, this paper will be confined primarily towards two, that of the Rural Affairs and matters on the Environment portfolio.

The topics in this submission will cover:

1. The Government’s legislative proposals
2. EU-London-Cardiff relationships
3. Subordinate Legislation
4. Consultations
5. Committees

There has been, for the process of making ‘Welsh law’ both an acceptance and what can only be described as a ignored-input made by the Welsh Assembly from Westminster. However, in the main there has been a lack of opportunity to make the legislative system work for the needs of devolution.

Despite efforts by the CA [and others in the land based sector], the influence exerted from Wales, has, particularly on flagship Primary Legislation, not been embraced, by London. Whereas some commentators may state that this could be put down to political expediency, from a perspective of wishing to see good legislation passed and therefore such legislation supported, the needs or wishes of elected representatives in Wales have not generally been taken into account.

As the first example, there was a refusal for the Countryside and Rights of Way Bill (CROW) to be ‘devolved’ in its entirety, to Wales. Indeed, if such ‘new devolution’ were to work then the input for Cardiff should have been regarded as vitally important; to a larger degree this didn’t happen. Certainly there was consultation on issues such as ‘mapping’ and ‘Local Access Forums’ (a CA initiative), however, the fundamentals of a devolved structure and thereby its needs for Wales were not addressed.

As a practical example on CROW, much pressure was brought to bear concerning the safety of ‘walkers’ on the uplands in Wales. This was highlighted during the passage of the Bill whereby real-time news reported on two incidents in Wales. One was the very sad death of a Boy Scout on the Eryri ranges, the other was an alleged ‘near miss shooting’ of a walker. Both incidents happened during the hours of darkness, the former on a night-hike, the latter a matter of fox control. Many in the NAfW were keen that ‘night access’ should be, at the very least addressed some regarded this should be limited. Indeed, in retrospect, such an amendment viewed from Wales’ needs would have shown a commitment to the devolutionary process, but importantly assisted somewhat in laying foundations towards public safety thereby securing the compliance and consent of farmers, tenants and walkers. In retrospect, the amendment itself, whether it would have been accepted or not, is now not the issue, but the legislative route is.

A further, but more complex example of this ‘devolution gap’ can be highlighted on the matter of ‘hunting’. This matter has presently been refused to be devolved to Wales, government stating [then] that it was a Home Office matter, ergo Home Office issues have not been devolved to Wales. That said, the NAfW voted for the matter to be so, and on 27^th June 2000 called upon the Welsh Assembly Government "to request Her Majesty’s Government at Westminster to allow the National Assembly for Wales to decide on the question of hunting with dogs in Wales by framing any Bill to provide for secondary legislative purposes to this end". However, following the Queen’s speech, the [then] termed Hunting ‘Options‘ Bill was subsequently referred. Moves to influence on behalf of Wales were not forthcoming for the NAfW to either in part, or wholly consider, any impact on Wales. An attempt was made by the NAfW’s Rural Affairs Committee to further influence and/or advise, however, despite such a high-profiled issue dominating political, public and media interest, this did not happen. To this end, folowing a public consultation in Wales this still has not drawn an allowance for the NAfW to input towards the present Hunting Bill, which of course is now not a Home Office matter, but of course a DEFRA matter – and vis a vis many issues from DEFRA are now devolved to Wales.

Whether the communication-links or demands levied were a misunderstanding of the office of the Secretary of State for Wales, or the make-up of the [now termed] Welsh Assembly Government or indeed the NAfW itself can be speculated upon, however, 4 years down the road there still remains this void (a Devolution Gap) to the extent that we see another very high-profile piece of ‘rural legislation’, namely the Animal Health Bill adding similar confusion to the equation.

The Animal Health Bill[Act] has now been ‘devolved’. However, it serves to highlight the very confusion that exists as to what, if any, powers Wales has in dealing with a future major outbreak of animal disease and this confusion exists even with an assurance by ministers that the matter has been devolved. Certainly the Rural Affairs Ministers, both past and present wished for the powers, particularly on Foot & Mouth (FMD) and more recently Bovine TB to be wholly devolved. Had this been the case in 2000 then certainly in Wales, "things would have been done differently" – Carwyn Jones AM, Former Rural Affairs Minister. (This issue will be covered in greater detail in the next section).

Essentially, the CA conclude that there is no clear or defined conduit to Westminster-Whitehall to ensure that those Welsh issues are injected into debate. This has come perhaps from a combination of an embryonic institution i.e. ‘those early years’, but also a differing culture of legislative issues that are out of synchronisation with the NAfW’s own programme. In essence there is very little time allocated to the NAfW in dealing with any Bills in Westminster. Effectively, therefore the NAfW is primarily very much in the hands of London when either implementation or amendments are proposed to primary legislation. The legislative balance is not one of equals, therefore it falls that both Whitehall and Cardiff also become out of balance.

There can be no doubt that FMD had a profound impact on rural Wales. The Foot & Mouth outbreak, although mainly confined north to south on the Welsh-English border, Powys, Monmouthshire and Ynys Mon, highlighted the lack of cohesiveness in the devolved settlement. For example:

Those whose businesses straddled the Wales-England border, or perhaps had parts of their businesses in both, were greatly disadvantaged as they were unable to have common answers to their questions. Therefore DEFRA (read England) followed one route and the NAfW (read Wales) followed another. The problems were further exacerbated by the NAfW taking 5 weeks to have Wales represented on the Rural Task Force at Westminster and thereby to address and understand face-to-face the UK wide issues.

The NAfW was unable legally to ‘take evidence’ from leading veterinarian and government ministers. It is known that in Wales there was a good resource of experts to deal with FMD, but not ‘the power’, this situation was reversed in England. This dichotomy still has not been resolved to fair satisfaction.

The maters above, as a bi-product, brought into question the NAfW’s own Committee structures and working practises, but suffice to say that the Environment portfolio (i.e. Footpaths, Tourism/Access etc) and Rural Affairs portfolio (Disease Control) had from the CA’s viewpoint little common working practice in tandem with DEFRA and therefore also with the EU on such matters as payments, opening exports and so on.

The above is not an indictment of the work and in some cases highly commendable efforts that were made during the most testing of times in Wales by the Officials, Ministers and/or Chairmen of Committees, but is submitted as evidence to emphasise a lack of communication between London and Cardiff. It does however, illustrate that there is a form of breakdown between the two institutions. Such a lack of cohesiveness was not so apparent in Scotland and indeed FMD was controlled and managed far better north of the border; this happening even with it’s own embryonic government and geographical closeness to the hot-spot of Cumbria.

Moving the EU equation a step further. The EU & London relationship to that of Wales can also be shown to be at a divergence. For example, the Government of Wales Act demands that under Section 121 there is a legal requirement of ‘Sustainable Development’. This legal requirement does not exist either in the EU or London. Therefore taking, for example, the issue of Food and that of say, ‘EU Public Procurement Directives’, these could very well work against the well-being of Wales. Certainly from a Wales perspective issues such as, EU Public Procurement Directives could well have an impact on S121.

For example, the NAfW now wishes to have it’s own Procurement Strategy to access food from local sources for public services such as hospitals and schools, this may well be contrary to procurement regulations in sourcing from overseas – clearly a challenge will be made at some stage as to the legalities of such an issue. But the overriding factor in the eyes of devolution is now that we have a legal requirement to ‘sustainably develop’ but an EU legal requirement to ignore that. There is no defined link from the ‘Welsh Assembly- to- Europe’ as also the defined link of ‘Welsh Assembly- to- London’ is, as has been illustrated, quite erratic.

Clearly there is an imbalance between the dynamics of EU-London-Cardiff and that imbalance is reflected in the workings of, for example, the Quangos and the NAfW. Taking as an example the Countryside Council for Wales (CCW), this body is often regarded as having the same functions as The Countryside Agency in England. This is not the case, but, they are asked not only to comment upon areas outside of their remit, but can be placed in difficult situations having to adopt EU Directives, which they have no true power or function over, e.g. EU Bird Habitats directives. The issue for them and therefore the NAfW is then compounded by financial penalties if not adopted. The CA will say that the CCW have made remarkable in-roads to benefit Wales, however, the inter-relationships with a large quango and government will be stretched and ultimately impact upon other matters such as countryside access, conservation, Agri-partnership schemes (et al) and thereby affect the communities that seek to exist as part of the ‘rurality of Wales’. This will not be a failure of the CCW, but the exigencies of a system that demands without a clear mandate or resource.

This is an area that, as an organisation, we dedicate much time. In the main, Subordinate Legislation is starting to develop its own form and tempo, and this has, to the credit of Committees, come from within. It appears to be an evolving process. The systems of legislation has been assisted by the Legislation Committee being wholly public in their approach and indeed also themselves engaging with bodies and organisations such as ours and spent time in advising on how/why a particular legislative route is being taken.

The CA‘s brief on, the two main areas, that of the Rural Affairs and the Environment portfolios, generate approximately half of all the subordinate legislation passed in Cardiff.

Both of these Committees take a structured approach to these matters and as such, every SI is scrutinised line by line. To this end the CA and we are aware others, also play their own part in developing SI’s.

The ‘legislative path’ is much more defined for SI’s than it is for ‘Primary Legislation’. That said, the CA is wholly reliant on identification of SI’s on subject matter and content by the officials in the Welsh Assembly Government. The procedures to deal with them, are, from a customer-perspective, highly pressurised in timescale and there is often a lack of parity with other areas of the UK or the EU. It can happen that an SI is superseded by other legislation and no one would be the wiser.

That said the Commission may wish to draw upon the fact that as detailed scrutiny does take place in Wales and such ‘amendments’ can and are being made, then a parallel could be drawn that in both the Committee and Plenary, systems do exist to deal with ‘law-making’.

These papers emanate from the Welsh Assembly Government with regularity.

On occasion they are a mirror image of those produced in England, but often they are ‘Wales specific’. From the CA’s perspective it shows that WAG have a focus and a momentum to create it’s own identity. A huge range of matters are consulted upon and indeed, often, these can be used not only as a tool for public consumption, but to better advise Ministers and policy makers alike.

Over the Assembly’s first term, one issue (amongst a number) stands out as being conducted with high standards, that is the issue of ‘Lead-shot’. This refers to the pellets, that are used in shotgun cartridges. After nearly 2 years of consultation, the matter was finally implemented in Wales on 1^st September 2002. This legislation was introduced one year later than in England, and the consultation allowed for a very broad and deep study to be made in Wales over and above that of England.

This not only displayed professionalism within the Environment Division of WAG, but facilitated a slightly differing SI to that of England. The outcome being, that across the border matters are now being further addressed.

There are many other examples of quality consultations, such as The Future of Farming in Wales, this came well ahead of a DEFRA consultation, COTES and CITES Regulations, Forestry, Rural Poverty and housing, Tourism, Fisheries, Nutrition and so the list expands. All of these issues have produced exceedingly good results, the quoted examples are cited as they display that the WAG/NAfW, can, and often do make workable legislation based on ‘principle and evidence’ in Wales and thereby to benefit Wales.

During the passage of the Government of Wales Act (GOWA) and latterly the Scottish Parliament Act, an issue of interest was the need, or otherwise, for a ‘Revising Chamber’ and also how ‘Legislation’ would, in the future, have further scrutiny in both institutions.

The late Donald Dewar made much reference to this fact and indeed put his faith in the Committee structure. Such confidence in having powerful and influential Committees is a matter of public record; indeed such was the driving force behind the Committee and its needs, that it was to manifest that the Committees’ word was deemed to be ‘Trinity’. Sadly within eighteen months of that new parliament coming into being the protocols and conventions laid down there were brought into disrepute and for example, the recommendations made by the Rural Affairs Committee, backed up by the Justice Minister on the issue of hunting, were sadly, ignored. To this end the Commission maybe aware that the Scottish Countryside Alliance are presently presenting a legal case with the Inner Courts Session on such laws being passed. The Media have covered this matter particularly well and headlines such as "Everything to loose including your Parliament" whilst bolstering the Alliance’s position have not helped the political needs of Scotland or its parliament.

The above issue is raised to illustrate that even in a theatre of new Primary law making, then recourse is open to the legal system to challenge bad law. Albeit such redress is open to the NAfW on any issue, either through inappropriate home-grown legislation or indeed legislation passed on by Westminster such issues as are presently being dealt with are in themselves quite defined in their terms,(e.g. NHS Charges, Performance Related Pay. Other matters such as GMO’s remain open to speculation, legal and scientific interpretation and the legal counsel at the NAfW although is of quality, is very limited in resource. Therefore if Primary powers were to be an option for Wales, consideration must be given to the make-up of Committees and their accountability over and above what they presently do and the advice given by counsel to Ministers, their Committees and WAG.

Wales, unlike Scotland has not had ‘The Chamber’ challenge in any high degree the decisions made by the Committee. There have been instances where this has been mooted, but resolutions have been found. Clearly, if the NAfW were to have increased powers then the Committee structure and its protocols would need to be re-defined to allow for both the responsibilities and functions to be addressed.

The often quoted devolution statement made by former Secretary of State for Wales and now Assembly Member, Ron Davies that, "Devolution is a process and not an event", does illustrate, in part, the juncture that the CA feel that the NAfW has perhaps now arrived at. ‘The Process’ is itself difficult to manage, it holds many paradoxes, some of which have been highlighted that are in themselves quite undefined. The Process requires a constant vigil and an understanding of the speed and constant confusion of the political issues in the Bay and at Westminster and all of this is not wholly synchronised with London.

The electoral hybrid of First-Past-The-Post & Proportional Representation has served to create a Minority administration, this in turn has facilitated a coalition. This could happen again or indeed an administration could be elected or maybe co-exist which is in direct conflict politically, with a Westminster model. The question must be asked that if this were to happen, then, how would the NAfW operate under a conflicting regime of political thought or beliefs. Is this what devolution in Wales needs?

These are not easy questions to answer, but certainly from a CA perspective parity with other devolved bodies would be advantageous, if only to ensure that London were able to ‘wholly manage’ for the entire UK - in a continual two way process of benefit to the benefit of Wales.

The need for inter-communications of MP’s and AM’s must be strengthened and a more profiled role for the Secretary of State for Wales in acting as a conduit between the Bay and Westminster. The Welsh Assembly Government has made a remarkable transformation, but sadly this seems not to be recognised and yet, despite the process evolving in every conceivable way, one issue remains constant, albeit future electoral turnouts are likely to be poor, people still refer to ‘The Assembly’ and that in itself is the defining statement.