NOT WIDER BUT DEEPER – A UNIONIST APPROACH TO BETTER LAWMAKING IN WALES

1. Are the Assembly’s powers sufficiently clear to allow optimum efficiency in policy-making? No.

2. Is both the breadth and depth of the Assembly’s powers adequate to permit integrated and consistent policy-making on issues where there is a clear and separate Welsh agenda? A slight adjustment in the breadth of powers seems necessary for the sake of clarity. As to depth, the Assembly needs to be involved in the passage of primary legislation.

3. Are the mechanisms for UK Government policy-making as regards Wales, and the arrangements for influence by the Assembly on these, clear and effective, and in particular do they correct any apparent shortcoming from the previous item? No.

4. Does the division of responsibility between the Assembly and the UK Government place inappropriate constraints on Whitehall policy-making, both on matters over which the Assembly has control and otherwise? Not if there is a culture of direct communication between civil servants. I do not, however, claim particular insight in this area!

The Status Quo is Unsatisfactory
Day by day, the sheer inadequacy of the settlement (and I use that word advisedly) affecting Wales is revealed to us. Far from the system being more accountable than it was under the Secretary of State, the system is now LESS accountable. One aspect of the problem lies within the powers of the Assembly – the other aspect is directly related to the dislocation that exists between that body and Westminster.

Of the 426 pieces of secondary legislation – those all important statutory instruments that increasingly are the flesh to the bare bones of primary legislation – that have been placed before the Assembly up to Spring 2002, only 10 items have been subject to the fullest scrutiny. That represents 2.3% of the total. 71% have been taken literally "on the nod".

Some of these instruments, I concede, are what we can classify as technical matters, but others convey an alarming range of powers, conveyed by Henry VIII clauses in Acts of Parliament. In the two years since I first aired concerns over legislative scrutiny in an article for the Wales & Chester Circuit, the situation has not improved. I am delighted to see that the Health and Social Services Committee has decided to examine all key items of secondary legislation emanating from the NHS Reform and Health Professions Bill, but I fear that pressures of time and party politics will militate against more democracy.

The current situation has also revealed that the precise boundary between the Assembly and Westminster is often labyrinthine and unclear – remember Foot and Mouth, when much time and energy was expended dealing with such issues?

And what of Westminster? This year, the Assembly has asked Parliament to provide time for four Welsh Bills to go before it. They will get one Bill, plus a few clauses attached to two other Bills – and all this with a Labour Government. This is a recipe for constitutional disaster, as well as being fuel to the Nationalist fire. The current perception is that even with administrations of the same political hue, there is a dangerous lack of understanding and communication between Cardiff Bay on one hand and Westminster/Whitehall on the other. There is also a perception that our MPs now have very little to do because of devolution. From my Unionist viewpoint, this is all very worrying indeed.

Suggestions for future lawmaking
I remain convinced that a bicameral legislature – Bills forged in the heat of the Commons and refined by the light of the Lords, provides the best potential means of lawmaking. That is why I do not advocate that we simply go the way of the Scottish Parliament. That single Chamber is in my opinion passing some poorly-drafted and ill-thought out legislation, precisely because it has no second, deliberating chamber to refine its product. I am not advocating the creation of a new second chamber in Wales. Having just visited Australia, and in particular the Parliament of New South Wales, I was impressed by both Houses of that Parliament, but remain a firm believer that too many politicians most definitely spoil the political broth! I do not share the view that the Assembly requires a substantial increase in membership. With use of members of Commons and Lords in the process, our existing lawmakers can do the job.

What I am suggesting is in fact no more than a refinement of what could potentially happen now. At present, the Assembly has a little used power to debate draft Welsh Bills, which can then be placed before Parliament – the Assembly has taken the de facto role of first Chamber, with Parliament acting as final arbiter. I understand that in the House of Commons, powers exist, dating from the era of Lloyd George, for the consideration of Bills relating to purely Welsh matters by, in effect, the Welsh Grand Committee. In the era immediately prior to Scottish Devolution, Scots Bills were dealt with by Scots members in the same way.

In order to create some stability, and to set in stone some proper constitutional framework for Primary legislation affecting Wales, I propose that the Assembly be given Primary lawmaking powers in its current fields of competence. Not a widening of power, but a deepening of it. All Welsh Bills would then be referred to the Welsh Grand Committee, which would act as the second Chamber, sitting in Wales as often as possible. At a stroke, we would have created a more responsive, democratic and truly Wales-orientated system. The highly damaging perception that Welsh MPs have too little to do and are remote from domestic issues would be removed, and the Nationalist dream of deadlock between Cardiff and London would remain purely that. The conveyance of Primary powers would avoid the worrying imbroglio we all got into over the extent of powers relating to Foot and Mouth, for example.

As an alternative to a "Welsh Grand Committee" consisting solely of MPs, a Welsh Joint Committee consisting of members of both Houses of Parliament could be convened to deal with Assembly Primary Legislation. This proposal may commend itself in the interests of party balance. The Committee should always be constituted so as to reflect the political situation in Wales, thereby avoiding the nationalist spectre of a Conservative Government in Westminster vetoing the wishes of a Labour or Plaid administration in Cardiff.

The extension of Primary lawmaking powers to the Assembly will go a long way to clarify the boundaries of its powers, I suggest.

Conclusion: if the process of primary legislation created a formal tie between the Assembly and Westminster, then I believe that a culture of co-operation between Whitehall and Cardiff Bay will be fostered. I am not so naïve as to suggest that there will be a complete eradication of a "them and us" attitude, but the creation of a symbiotic legislating process could indeed make necessity the mother of co-operation!

25^th October 2002 ROBERT BUCKLAND