| 1. The National Assembly for
Wales was established in 1998 to 'take over the powers,
rights and duties' of the Secretary of State for Wales
and to provide a more democratic framework for the governance
of Wales. According to the Lord Chancellor,Lord Irvine
of Lairg, the architect of the 1998 devolution legislation
'There was no demand for more.'
2. However, the Assembly appears to have become a kind
of a mini Parliament. The First Secretary has taken
the title "First Minister", and the Assembly Secretaries
are called "Ministers". The Executive Committee (GWA,s.(2)
is known as the Cabinet. The administration describes
itself as "the Government of Wales". This terminology
has boosted the image of the Assembly and expectations.
The Presiding Officer is almost the equivalent of Speaker.
His Office has 'evolved into a Presiding Office which
provides "parliamentary",services to members of all
parties."1
3. But I am all too well aware that the Assembly is
the subject of much unfavourable criticism in Wales:
some of it levelled at the perceived failure of the
Assembly to demonstrate that it is 'adding value' which
would not be there without the Assembly; some of it
levelled at the Assembly's narrowly confined legislative
powers, and AMs are criticised for failing to make the
most use of the powers which they have.2 This criticism appears to be building up to create
a growing crisis of confidence in the 1998 devolved
arrangements in Wales.
It is against this background that I turn to some of
the questions asked by the Commission.
Does the Government of Wales Act provide the Assembly
with the powers it needs to operate effectively and
meet the expectations of the people of Wales?
4.1 The evidence seems to be mixed. Assembly Ministers
(including the Health Minister who is reffered to below)
have stated 'that their job as Ministers are proceeding
perfectly adequately under existing powers.' I have
been just a shade surprised at this statement bearing
in mind the evidence of the Counsel General (Written
evidence, p 49) and that of the Presiding Officer (Written
evidence, p.23) that the Assembly's legislative powers
may be too limited to enable it on particular issues
to develop policies to meet distinctive Welsh needs
or aspirations. Support for the conclusion of the Counsel
General and the Presiding Officer can be drawn from
other sources.
4.2 The Chair of the Assembly's Legislation Committee
(Mr Mick Bates) in his paper,'Regulatory Reform - A
Welsh Perspective', states that AMs are more and more
supportive of giving the Assembly more powers because
of their frustration 'at the way its action is continually
restrained by its limited powers.'3
Then there is the acknowledgement by the Assembly's
Minister of Transport 'that she was not able to have
a co-ordinated transport policy because some aspects
of transport are devolved,but others are not.' (Cited
by Counsel General in oral evidence, p.31.)
4.3 Another source of support is to be found in the
Parliamentary debates on The Children's Commissioner
for Wales Act 2001 (which has been one of the great
successes of the Assembly.) Children's charities in
Wales had campaigned extensively for over ten years
for the setting up of an independent statutory office
of Children's Commissioner for Wales. It was envisaged
that the Commissioner would be under a statutory duty
to promote and uphold the United Nations Convention
on the Rights of the Child 1989.4 The Children's Commissioner proposal was
adopted by the National Assembly. However,it became
necessary to amend the Bill when it was in the House
of Lords in order to include a number of provisions
which were considered to be important by the Assembly
and which would strengthend the role of the Commissioner.
But the Government rejected amendments to incorporate
in the Bill a reference to the UN Convention on the
ground 'there were difficulties in terms of incorporating
it in domestic law.' In the result nothing is said in
the Act about the Convention. This was greeted with
disappointment by the stakeholders.5
4.4 Yet another source was the limitation of the Assembly's
policy making powers when applied in the context of
the Health (Wales) Bill. The Bill in draft form was
examined by the Welsh Affairs Select Committee and its
recommendations were considered by the Assembly's Health
and Social Services Committee and by the Assembly in
plenary. There was considerable support for inserting
three additional provisions in the Bill:
(i) That Community Health Councils remit be extended
to include the right to inspect health-care facilities
in prison;6
(ii) That members of CHCs be entitled to time off
from their work in order to attend to day time business
of the CHC in a way similar to members of other public
bodies;
(iii) That the Assembly be empowered to take measures
to prevent smoking in buildings used by the public.
It appears that the Assembly Government accepted the
UK Government's position: that CHCs should not be directly
involved in improving health facilities in prison; that
there is no need for the Bill to provide that CHC members
are entitled to take time off to attend to public duties
as this can be achieved by an Order made by the Secretary
for Trade and Industry; and that a prohibition against
smoking in public places 'was not the answer' to the
problem.
4.5 The inability of the Assembly to make an Order
that CHC members are entitled to take time off work
to attend to CHC business illustrates clearly the need
for a delegated power which pre-dates the setting up
of the Assembly and conferred on a Whitehall Department
to be exercisable in relation to Wales by the Assembly.
The Assembly Health Minister set out the case:
We want to widen the membership of Community Health
Councils and a lot of people are not able to contribute
because they are not able to have leave of absence
from employment, so obviously in terms of existing
powers we would want to encourage employers to allow
that, but we know that probably, and certainly if
there is a review, it would be very welcome if the
Employement Rights Act could be amended in this
way so that it was publicly and statutorily clear
that they could have right of leave of absence,
as local authority members do. We know that the
Employment Rights Act is the legislation under which
there are powers to give rights to people in terms
of public leave of absence. This would be something
where I would probably turn to the. Secretary of
State in terms of any intervention. It would have
to be an amendment to the Employment Rights Act
in order to include Community Health Councils. It
could be a Secretary of State Order to amend that
section, but that is something which would have
to be taken forward on that basis.
The Wales Office Minister (Mr Don Touhig) added:
Well, what we would hope to do is to encourage
obviously all the employers to be as co-operative
as possible in giving time off but if, as a result
of consultation that we are going through now, it
is flagged up with us, as Ministers, that there
is a problem and there is likely to be a growing
problem, then the Secretary of State for Wales will
obviously take this up with his Cabinet colleagues
in order that this can be addressed. We do not know
the degree of the problem at the moment, but clearly
the line will be to encourage employers to be as
helpful and co-operative in letting staff have time
off, but, as I say, if we do perceive it as being
a growing problem, then we will have to respond
to it.
(HC,Welsh Affairs Committee, 3rd Report
session 2001-02, 25 June 2002,Ev.41,Q.142,143.)
4.5 The proposal did not involve establishing a new
principle. It could be achieved by a comparatively minor
legislative change. By an Order, subject to the negative
resolution procedure, the Secretary of State for Trade
and Industry could extend the scope of the relevant
legislation [Employment Rights Act 1996, s.50] so
as to include CHC. It seems wrong to many people that
the Secretary of State is empowered to amend the legislation,
but that the Assembly cannot be similarly empowered
in relation to Wales, subject to its own first class
consultation and scrutiny procedures. Moreover, accountability
would be increased by having the decision made closer
to the people who would be affected by the change.
4.6 To the best of my knowledge it is not publicly
known what was the stance of the Assembly Cabinet in
the discussions in Whitehall about possible candidates
for inclusion in the Health Bill. Perhaps these discussions
are protected by the concept of collective responsibility
within the veil of secrecy.
5. The present UK Government and the dominant partner
in the coalition forming the Assembly Cabinet have the
same political complexion and share a commitment to
a common manifesto. The Wales, Office Minister (Mr Touhig)
in his evidence to the Welsh Affairs Committee puts
the point soothingly:
What we are doing is pushing forward a common agenda.
As you will appreciate we put forward a manifesto
at the General Election for reform of the Health
Service, as we did.in Wales at the last Assembly
Election. These reforms we are bringing forward
now are part of that wider agenda.
(Ibid. Ev 34, Q. 104)
So the risk of serious discord between the two present
administrations is greatly reduced because of their
allegiance to a common manifesto.
6. The short debate in the Assembly on banning smoking
in public places prompted some frustrated AMs, including
members of the two coalition parties, to express publicly
the view that if the draft Wales Health Bill could not
be amended to empower the Assembly to prohibit cigarette
smoking in public places (smoking is the biggest single
cause of ill-health in Wales) the Assembly needs its
own primary legislation making powers.
Whether, and if so how, the powers should be extended,
strengthened or changed and whether they should include
tax varying powers?
7.1 The best solution would be to confer on the Assembly
the competence to enact primary legislation in the subject
areas. I believe that as Assembly Members acquire more
experience, greater self confidence and become more
independent minded, the demand for primary legislative
capacity will grow.
7.2 If the Assembly cannot at present be given primary
legislative powers directly, can the result be achieved
indirectly? The second-best solution would be to ensure
that the Assembly's delegated legislation-making powers
are drafted in terms as broad as possible creating,
wherever that would be beneficial, Henry VIII clauses.
Because the power would be exercised by another democratic
body closer to the people to be affected the usual criticism
of the clauses on the ground of accountability would
be absent or mitigated. Moreover, their creation would
be consistent with the dotrine of subsidiarity.
7.3 If I may digress here, it is to draw attention
to the recent paper (in draft form) which is to be submitted
to the European Convention by the Secretary of State
for Wales on behalf of the UK Government and the devolved
administrations in Scotland and Wales. Mr Hain submits
that:
The principles of subsidiarity and proportionality
should be enshrined in the Treaty, to strengthen
their legitimacy and to help guide the EU's decision-making
process.7
He goes on to say he 'support[s] the recommendation
that the Committee of the Regions be given the right
to refer ex post a matter to the European Court of Justice
for violation of the principle of subsidiarity.'
It can be argued that the doctrine of subsidiarity
should evolve to be one of the core values of British
constitutional law to govern the division of legislative
powers between the UK government and the devolved Assembly.
The doctrine is just as legitimate within Britain as
it is within the European Union.
7.4 The Government of Wales Act 1998 is a politically
pragmatic measure. In his book Constitutional Change
in the United Kingdom, F.N.Forman submits that if
it is to work smoothly and effectively there are two
essential pre-conditions:
The first essential is likely to be that the primary
Westminster legislation governing England and Wales,
and the attitude of UK Ministers towards their colleagues
or perhaps adversaries in the Welsh Executive, should
be both looser and less prescriptive than in the
past, in order to allow the Welsh Assembly and its
political leadership to have a greater and more
influential political role in the government of
Wales. The second essential for the smooth working
of Welsh devolution in future is likely to be the
deliberate development of some new constitutional
convention governing the evolving relationships
between Cathays Park and Whitehall, Cardiff Bay
and Westminster. These conventions may take the
form of concordats or supplementary agreements -
as were sketched out in the October 1999 Memorandum
of Understanding between the UK Government and
(in this case) the Cabinet of the Welsh Assembly.8
7.5 There is developing agreement that constitutional
principles or guidelines should be established to govern
the circumstances in which the UK Government should
be expected to respond positively to an Assembly request
for new primary legislation, and just as importantly
for such principles to be incorporated in a new concordat
or an amended Memorandum of Understanding. The point
is also made in the Report of the House of Lords Select
Committee on the Constitution, Devolution: Inter-Institutional
Relations in'the United Kinqdom.9 Moreover the guiding principles should be formulated
now, when the relationship between UK ministers and
Assembly ministers seems to be cosy and comfortable.
The UK Government should not wait until the question
has become a major political issue, or until the foreseeable
situation of different political parties governing in
London and Cardiff.
7.6 The Commission will know that Professor Richard
Rawlings has ormulated draft guidelines which the House
of Lords Committee on he Constitution recommends as
'a very useful starting point for ringing a greater
measure of consistency to legislation.'[Para 4 (a).]
The guidelines are also commended by the Assembly's
own eview of procedures. It remains to be seen how the
UK Government will respond to the recommendation.
7.7 The comments of the Counsel General on the Rawlings
guidelines are reassuring. But there is a risk that
they may not be observed in the future. That risk will.
increase when the decision-makers are no longer those
who formed part of team which chartered the devolution
settlement.
7.8 Even if guidelines are enshrined in a concordat,
the concordat does not amount to a binding contract
(although they may yet turn out to be justiciable in
proceedings for judicial review.) But there is a strong
presumption that the two governments will operate within
the concordat. A presumption is rebuttable. It would
therefore be valuable if it were enshrined in a concordat
that the onus of proof be placed on the party who seeks
to depart from the concordat, and that there be a fair
and speedy procedure for resolving disputes as to whether
or not the rebutting evidence is conclusive. It emerges
from the Report of the Committee on the Constitution,
that the Committee has 'an unresolved concern' that
the present mechanisms 'may not prove adequate to the
challenges arising from a highly-charged political dispute.'
An ingenious constitutional lawyer could draw up the
principles and the mechanism.
7.9 I am a retired Solicitor and I am clearly not qualified
to discuss the issue of tax varying power. But my broad
position is that the Assembly should have a local source
of finance which would enhance its accountability to
the Welsh electorate.
7.10 We are aware of the increasing importance
of the role of deregulation orders. Although the Assembly
acquired the power of the Secretary of State to make
subordinate legislation, his power under the Deregulation
and Contracting Out Act 1994 was not transferred.
We have been informed that consideration was given to
making a deregulation order to repeal the referendum
provisions on the question of Sunday closing of public
houses in Wales.(The repeal is now included in the Licensing
Bill currently before Parliament.) If the power to make
a deregulation order on a matter of special significance
to Wales was to be granted to the Assembly that would
be a gain in terms of the Assembly's status and participation
in the regulation proces.
If the Assembly were to acquire greater law
making powers - is it inevitable that it would need
to be reconstituted on the Parliamentary model?
8. Again I am not qualified to comment on this question.
But it occurs to me that it may be necessary to reconsider
the role of the subject committees. But it will be noted
that their role is not defined in the GWA.
How effective has the Assembly been in influencin
UK Government policy-making in relation to Wales - what
are the practical examples which illustrate the strengths
and weaknesses of the process?
9.1 There is the fact that the UK Government on the
initiative of the Assembly found a place for one Wales-only
Bill in the legislative programme in session 2000-01
and another one in the present session. Both were small
Bills with cross-party agreement, but significant Bills.
Their contents would almost certainly not have seen
the light of parliamentary day without the influence
of the Assembly.
9.2 On the other hand, we need also to bear in mind
that the Assembly requested other items of primary legislation,
but they were not accepted by the UK
Government: of the four measures which were requested
for the 2000-01 session, one was accepted, and of the
eight measures requested for the 2002-03 session, one
was accepted.10
9.3 Further evidence of the Assembly's influence is
the scope of Wales-only clauses in legislation relating
to England and Wales. However, the competences conferred
on the Assembly by the England and Wales legislation
vary widely in substance. Thus the Transport Act 2000
devolved about 40 functions to the Assembly in relation
to roads and bus services, but none in relation to the
railways. Under the Local Government Act 1999, some
functions are not exercisable by the Assembly but by
the Secretary of State.11
What are the advantages and disadvantages in principle
of having law making process which is shared between
Cardiff and Westminster and what are the respective
contribution of AMs,MPs and Peers?
10.1 The term 'shared' is used to mean the principle
of the horizontal division of law-making powers in specified
fields and on which the National Assembly is based.
But "advantages" or "disadvantages" for which country?
10.2 The 'sharing' makes it easier for the UK Government
to remain responsible for what is described as 'the
framework of policy' for England and Wales, while only
devolving to the National Assembly the most narrowly
defined legislative powers which are necessary to satisfy
the members of a directly elected all-Wales Assembly
and to satisfy public opinion in Wales. However, the
arrangements are seen by many people in Wales to be
in a state of transition and evolution.
10.3 The main disadvantages for Wales include:
(i) The Assembly is limited in terms of what it
would like to achieve by having to develop its policies
within the framework of England and Wales primary
legislation; [See paras 5 and 7 above.]
(ii) If and when the Assembly considers that it
requires new powers to be conferred on it by new
primary legislation or by transfer to it of delegated
powers now exercised by a Whitehall department it
has to depend on the good-will and co-operation
of the UK Government to promote legislation through
the Westminster Parliament;
(iii) The Assembly could become dissatisfied with
its position and this could make for friction and
create instability;
(iv) The Assembly with its limited law making powers
is widely regarded in Wales as being inferior to
the Scottish Parliament and the Northern Ireland
Assembly;
(v) A lot of time has been spent discussing the
'complexity' the Assembly's powers. For example,Professor
Rawlings refers to "the special legal complexity
of the model of executive devolution."12 But the Counsel General does not consider
it unusually complex or uncertain. [Evidence,
para 18-20,92-95.] I go along with the Counsel
General's evidence.
What would be gained or lost if powers to make fundamental
policy changes through primary legislation were passed
from Westminster to Cardiff?
11.1 The proposed change would address the significant
weaknesses mentioned in paragraph 10.3.
11.2 In particular there would be the following gains:
(i) It would give the Assembly more say in major
policy decisions than it does now. It would make
for stability.
(ii) It would lessen to some degree the pressure
on central government of the UK which was acknowledged
by the Kilbrandon Commission on the Constitution
to be a desirable objective of constitutional change.
(iii) It would reduce the constituency work-load
of MPs for Welsh constituencies.
(iv) It is perhaps worth suggesting that having
the status and and powers of a 'Parliament' in domestic
matters, the Assembly would be likely to attract
more men and women of ability and vision to seek
a career in Wales as Members of the Assembly.
(v) It would encourage more co-operation with Edinburgh
and make easier the joint Scottish-Welsh lobbying
of London. This will become more important especially
if one Secretary of State is appointed to do the
job for the two countries.
11.3 It would probably encourage demand in England
for regional government.
How would Welsh interests be affected if the
role of Welsh MPs were to be reduced as a consequence
of the acquisition of primary law making powers by the
National Assembly?
12.1 The MPs special and detailed knowledge of their
constituencies will always be respected. But it is in
the nature of devolving more powers to the National
Assembly that the people of Wales will look to the National
Assembly to improve services in the devolved fields
and to rectify grievances about their delivery.It is
therefore likely that the present scope of Welsh MPs
interest in the devolved functions may be diminished
further, although the substantial reduction may already
have occurred. The position is not static. At the present
time the role of a Member of Parliament is evolving
and the role of MPs for Welsh constituencies as scrutineers
of the Executive and watchdogs of the wider public interest
may be strengthened and widened.
12.2 Questions may well arise as to the future of the
Welsh Grand Committee
12.3 There is of course the other side to the coin.
If the National Assembly gets primary legislation powers
and the power to vary tax, I would not be confident
that we could resist the argument for a reduction in
the number of MPs from Wales.
How would Welsh interests be affected if the
Secretary of State's role was reduced as a consequence
of the acquisition of primary law making powers by the
Assembly?
13.1 The existence of the office of Secretary of State
since 1964 has brought great benefits to Wales.
13.2 But with the National Assembly now in being I
believe it must be faced that the role of the Secretary
of State in the life of Wales can only be limited and
possibly awkward, especially if he has to deal with
an Assembly not controlled by his Party.
13.3 The Secretary of State is not answerable to the
Assembly. He is accountable only to Westminster. Secretary
of State Murphy acknowledged that he did not see himself
as a facilitator for the Assembly.
13.4 Although the Secretary of State had new statutory
functions conferred on him in relation to the Assembly
by the GWA 1998,13 the volume of work of the Wales Office
is greatly diminished since the setting up of the Assembly.
It is my understanding that the Department has few experts
on its staff. In his evidence to the Select Committee
on the draft Wales Health Bill the Parliamentary Under-Secretary
touched on this:
In practical terms, of course, as you know because
you have had the Secretary of State before you in
the past, we do have very limited resources in Wales
Office as far as staffing is concerned.
(Ibid., Ev.34, Q.104.)
The Wales Office will become more and more cut off
from life blood of experience of operation of policy
and will not have the information to counter-balance
the advice from the policy-makers in other Whitehall
Departments. It may be too small to deal with other
Departments as an equal.
13.5 However, the Secretary of State is in a position
to exercise influence as he remains a member of the
Cabinet of the UK Government. The strength of his influence
will depend, if one may say so without disrespect, on
the personality of the holder of the office.
The Secretary of State will be well-informed about
policy developments in London, will have a role to play
in the workings of the concordats and this could be
helpful to the Assembly . government. However, he is
bound by the convention of collective responsibility.
13.6 If one had to make the difficult choice between
retaining the office of Secretary of State and primary
legislative powers for the Assembly I believe that the
advantages of devolution to the Assembly outweighs the
disadvantage of sacrificing the office. Others take
a different view, of course. But does one have to make
the choice? And when?
13. The current powers and responsibilities are listed
the House of Commons Research Paper,'Devolution and
Concordats' (99/8,19 October 1999).
What would be gained or lost if there was
a clearer separation between England and Wales in policy
development and implementation?
14.1 See parargraph 11.2.
14.2 It is easy enough to state in abstract terms that
the UK Government will be responsible for the 'framework
of policy' and that the Assembly will be responsible
for 'subsidiary policy'. In practice it is much more
difficult to specify where the dividing line is to be
drawn. If there was a clear separation as suggested
in the question it would be clear that responsibility
for that subject in Wales rests with the Assembly. It
would reduce the potential for-discord and friction
between the two administrations.
How should we evaluate the costs and benefits
ofmovingto a different form of devolution in Wales?
15.1 A main consideration in the evaluation of the
costs and benefits is the importance to be attached
to securing stability of the 1998 devolution settlement.
The limited legislative power devolved to the elected
National Assembly is a great deal less than what is
required. Inevitably in this situation the Assembly
will become dissatisfied with its position, and it will
be able to blame others for its short-comings.
15.2 The expenditure consequences have to be considered,
of course. This leads into the following considerations:
does the Assembly have adequate staffing resources (i)
to enable it to prepare major policies, and (ii) to
provide the opposition parties with adequate research
facilities with which to effectively scrutinise the
actions of Government. There is another consideration.
Will it be necessary to increase the size of the Assembly
membership to enable it to properly discharge the additional
legislative role; I see that the Presiding Officer suggest
that the membership should be increased from 60 to 80.(Written
evidence, para 26.)
15.3 In his written evidence to the Commission the
Counsel General expresses 'every confidence' that the
Legal Department could meet the challenge if primary
legislative powers were to be devolved to the Assembly.(Paragraphs
17, 87-91.) How many months, or years will it take to
achieve the capacity?
15.4 There are no doubt other considerations. Would
the decison lead to increased administrative complexity?
These considerations are probably not different in any
material degree from those faced by Scotland when the
Scottish Parliament was set up under the Scotland Act
1998, except that devolution had been well advanced
in Scotland by 1900 and the Scottish Office was much
better resourced than the Welsh Office and was probably
better equipped to deal with the transition.
|
