| The form of devolution enshrined
in the Act requires the active co-operation of the Westminster
government to allocate new and changing responsibilities
within each Act of the Westminster Parliament which impinges
on devolved matters. |
| The second rebuttal therefore
must be that the present system can only work as and when
further change happens. The National Assembly will identify
its own needs and other opportunities will arise from
UK legislation. The more enthusiastically Whitehall and
Westminster devolve, the greater the likelihood of the
present system working. The omens from the last session
of Parliament 1999-2000 (the first full one since the
establishment of the Assembly) are not good - but more
of this later. Suffice it to say here that had the system
worked this year we would now have a Children's Commissioner
in Wales with statutory powers, a Strategic Rail Authority
for Wales and substantially enhanced powers for local
government and over the environment. |
| The third argument - that incremental
change either by precedent or by legislation is somehow
improper or unconstitutional, simply ignores the reality
of 700 years of British history. The creation of Parliament
as an institution, democracy as a process and citizens
rights against the power of the Royal Prerogative are
all testament to the dynamic and progressive forces at
play as our unwritten constitution moves forward. |
| The Government of Wales Act,
creating such fundamental constitutional change in one
legislative step is more of an aberration than a familiar
step in a tried and trusted process. And it is a step,
it's not a settlement with any permanence. The Assembly
now needs confidence, imagination and courage to fight
for Wales. In the modern parlance, we need attitude. The
pioneers of democracy and civil rights in our country
would have little truck with those who say "don't
rock the boat - leave it up to Westminster - they'll do
what thy think is right". |
| Fourthly, who is to say that
further change is "not planned" or not on the
agenda? Further change must be planned.
Unless each relevant piece of Westminster legislation
confers new or changing powers to the Assembly the Assembly's
own existing powers will slowly be stripped away as the
legislative provisions which give rise to its statutory
functions, are modified or subsumed by succeeding Bills. |
| The Pollution Prevention and
Control Act 1999 for example, deals not only with pollution
control but also with disposal and waste management licensing.
It enables existing Acts (under which the Assembly does
have powers) to be either amended or repealed by Ministerial
Order. |
| If that were to happen, those
functions would be lost to the Assembly itself as the
new Act doesn't convey the relevant provisions themselves
to the Assembly. |
| The Assembly itself has placed
further change on the agenda. A review is soon to take
place of the Assembly’s procedures. Welcome as this
is, it is imperative that this process is transparent
and does not simply involve the consultation of the party
leaders and the determination of the Executive. The Assembly
as a whole – as a democratic body, must be fully
consulted and involved in the outcome. |
| The Partnership Government
is committed to an independent commission to review the
powers of the Assembly and report three years hence. Any
objective review of the 1998 Act, especially taken alongside
developments in Scotland and Northern Ireland, will inevitably
conclude that legislative powers for the Assembly are
the next logical step. |
| The question of primary legislative
powers is one that cannot be merely dismissed by stating
that the Assembly must prove itself within its current
structure before any consideration is given to further
power. The assembly is not a dog performing tricks to
the reward of legislative ‘treats’ from Westminster.
Westminster knows that the Assembly cannot deliver its
full potential within the structure currently operated
and that if it fails to be more expansive and responsive
to the needs of the National Assembly, the calls for full
powers over primary legislation will be irresistible.
|
| If the Assembly were to make
this call, Wales would have spoken and Westminster politicians
would be ill advised to pre-judge that outcome or to try
to obstruct the expressed will of the Assembly. |
| In the meantime, the ball rests
very much in the court of politicians in London. The Queen's
Speech on December 6th will be the last of
this Parliament but it will actually be the first which
will allow us a judgement as to whether devolution as
planned in a Welsh context is working or not. |
| As far as Wales is concerned
there can only be one important principle - does that
legislation which impinges on devolved matters convey
to the National Assembly adequate powers in keeping with
the spirit of devolution? |
| We can look at the experience
of the last legislative programme 1999-2000. In fairness,
the Assembly having only been elected in May 1999 and
empowered in July of that year, was hardly in a position
to express its views forcefully or be in much expectation
that its influence would be great on legislation largely
framed before it came into existence. |
| But if devolution for Wales
was an accepted part of the mindset of Whitehall, it would
show. A common approach would inform all departmental
legislation and a common principle underpinning the Government’s
approach would be evident. |
| There isn't and that's worrying.
Last year the Assembly was weak and ineffectual in asserting
its influence. We must seek to learn the lessons of the
past year and apply them to the future. |
| During last year's session
of Parliament, forty-three Government Bills were introduced.
Of these, only eight related to devolved matters and it
is these, which require careful analysis. |
| The successes undoubtedly were
the Care Standards Bill and the Learning and Skills Bill. |
| The Care Standards Bill establishes
the post of Children's Commissioner for Wales. Given that
this had been advocated by the charity "Children
in Wales" from 1991 onwards, was one of the recommendations
of the Tribunal of Enquiry into the abuse of children
in Gwynedd and Clwyd and had been included in the Labour
Party's (Millbank approved) manifesto. This was hardly
a radical proposition. |
| It was accepted, however,
and credit must be given. The most interesting question
is whether the forthcoming Queen's Speech will convey
to the Commissioner, statutory powers. This is the absolute
minimum that can be expected this year and failure to
gain this progress will be a major setback for the Assembly. |
| The opposition of the DHSS
to the creation of such a post in England will undoubtedly
weigh heavily but the fact that no draft Bill has been
published by the Assembly and that the Assembly Cabinet
clearly has no idea whether the proposal will be included
or not, is hardly an endorsement of the present arrangements. |
| The Learning and Skills Bill
provides for extensive powers for the National Assembly
for Wales and is an excellent example of devolution in
action. The proposal is again, one with prior policy endorsement
of the UK Government (it is likely, indeed, to provide
a template for England) and has the advantage of having
been included in the manifesto. Again, therefore, it is
hardly radical and has certainly presented no policy challenge
to central Government orthodoxy. |
| The good news ends here, however.
It's instructive to look at the Assembly's expectations
for last year that were not realised. |
| The Transport Bill highlights
clearly Whitehall’s reticence. The Assembly clearly
expressed a desire to see its role recognised on the face
of the Bill and yet this was not heeded. The Assembly
asked that consideration be given for the creation of
a Welsh Strategic Rail Authority as in Scotland to administer
the needs of Wales on this matter. Again, however, this
has not come about. Indeed, the Assembly does not even
have the power to make an appointment to the Strategic
Rail Authority to represent the needs of Wales but merely
to be consulted on this appointment. |
| Similarly, in the Local Government
Bill, strenuous representations were made that the Assembly
should be given wide discretion but the need to get Lib-Dem
votes in the House of Lords was more effective than the
wishes of the National Assembly for Wales in influencing
Government policy. The Assembly's desire to have flexibility
on the internal management structures of Local Government
was rejected by the Government - but then conceded under
duress to a compromise amendment proposed by the Lib-Dems
in the House of Lords. |
| At the same time Sections 5
and 6 of that Bill created Henry VIII powers to modify
or repeal existing enactments but rather than conveying
powers to the Assembly, they were given to the Secretary
of State breaching both the spirit and the rationale of
the Government of Wales Act. |
| Elsewhere in, for example,
the Children (Leaving Care) Bill and the Countryside and
Rights of Way Bill the principle seems to have been to
devolve to the National Assembly for Wales the same powers
as are devolved to the Secretary of State in England.
This arrangement at least has the virtue of being consistent
with past practice and while it does not enhance the powers
of the Assembly at least it does not, like for example
the Transport and Local Government Bills, fly in the face
of the devolution settlement. |
| One interesting exception is
provided by the Fur Farming Bill. The Assembly took no
view on this measure (indeed it was never considered at
any stage by any Assembly Committee or Plenary) yet MAFF
conceded to the Assembly the right to choose whether a
compensation scheme should be introduced or not, while
at the same time denying the Minister of Agriculture such
discretion and laying on him an absolute duty to introduce
such a scheme. Any such compensation would, of course,
have to come from the Assembly's own financial resources
so it would have been difficult for MAFF not to concede
discretion to the Assembly. |
| The fact that we don't actually
have any fur farms in Wales would, doubtless, have made
it rather easier for this measure to appear in the way
it has. |
| It is clear, therefore, that
within the 22 Bills published during 1999-2000 that refer
to Wales, there is no uniform approach across Whitehall
as to how the Assembly's interests and wishes should be
accommodated in new legislation. As a result the pattern
of powers devolved becomes even more capricious and inconsistent. |
| This is not entirely Whitehall's
fault, however; The Assembly itself has hardly been forthright,
consistent, orderly and robust in the way that it represents
its own interests. |
| Measures approved by the Assembly
earlier this year allow the Assembly Cabinet to submit
proposals for primary legislation. However, to date, no
such proposals have been submitted to either the Assembly
or Whitehall. The Assembly is even failing therefore,
to use the limited power it does have over primary
legislation. |
| The problems that the Assembly
has experienced relating to its powers over the last 12
months have arisen not because its powers have been too
great - rather the contrary - they have either been too
limited or lacking clarity. |
| Issues such as teachers' pay,
beef on the bone and GM crops have highlighted these problems
(and done little during the process to enhance the Assembly's
reputation). While these difficulties may be an inevitable
consequence of the 1998 Act, surely we should now be insisting
that greater clarity is provided wherever possible for
the future? |
| The Assembly's attempts at
developing such clarity have been thwarted. In its consideration
of last year's Queen's Speech the Assembly resolved Inter
alia "to establish a mechanism for continuing
dialogue to enable the Assembly as a whole to have input
into the drafting of new legislation at each stage of
its evolution". The resolution, confusing as it does
the role of Government and Parliament in the legislative
process, is less than precise - but the spirit is clear.
There should be a two-way, continuing dialogue as part
of an agreed mechanism whereby the Assembly can influence
legislation within which it has a legitimate interest. |
| The Executive's response that
"this is a matter for the Assembly as a whole, not
the Administration" has, frankly, been shameful.
They have done nothing. This is to frustrate the will
of the Assembly by hiding behind a technicality. Of course
it’s a matter for the Assembly - but the Assembly
has devolved all its powers to the Administration - it's
the Administration which controls all dialogue with Whitehall
and it's the Administration which controls all business
on the floor of the Assembly in Plenary. |
| The Administration alone has
the ability to implement this declared wish of the Assembly
and had they wanted to, they would have. |
| Further flaws in the system
are evident from the resolution passed on 2nd
February 2000 when the Assembly returned to examine the
Executive's response to this earlier resolution of 8th
December. The Assembly, as a whole, took a robust view
on Structural Funds match funding, the Local Government,
Transport and the Criminal Justice Bills. The Assembly's
views were dismissed in all these matters - it's now clear
that no formal submission was made by the then First Secretary
to the Secretary of State for Wales and that discussions
such as these, being deemed to be inter-governmental communication,
are not only covered by the Official Secrets Act but that
the Freedom of Information Bill has been specifically
constructed to exempt the disclosure of similar communications
from its provisions. |
| It seems that the detail of
discussions via the Joint Ministerial Committee (which
recently "reviewed the working of devolution")
must remain confidential even when the legitimate interests
of the Assembly, as a corporate body, are being discussed. |
| The protocol between the Assembly
and the Secretary of State (not yet ratified by the Secretary
of State after nearly twelve months) is little more than
a supine acceptance that while the Assembly may take a
view, the Secretary of State may respond as he or she
wishes, with no explanation or justification and that
the protocol is "without prejudice to the UK Government's
ultimate right to determine the final content of its legislative
programme for each Parliamentary session without informing
the Assembly." |
| That may be an accurate reflection
of the strict constitutional position but it's more reminiscent
of the language of a colonialist "hand me down"
than a modern partnership between two democratically elected
administrations. It may be acceptable when both administrations
are drawn from the same political party but it would offer
precious little to an Assembly in Cardiff faced with a
more hostile UK Government. |
| The Queen's Speech due on 6th
December should provoke us to ask some searching questions
of ourselves. |
| Are the specific needs of Wales
being addressed? |
| Is the Assembly being treated
fairly and consistently in legislation affecting devolved
matters? |
| Have we developed mechanisms
ourselves, as an Assembly, to present our views in a timely
and considered way to the UK Government? |
| Are we, as an Assembly, equipped
to monitor the legislative process and, if appropriate,
influence it? |
| Are the views of the Assembly
being communicated openly, fairly and robustly to the
UK Government? |
| The Assembly is a developing
institution but if it fails to realise the high expectations
placed upon it, it will fail to carry public support. |
| We must deliver for Wales -
but delivery is not only about the public service agendas
of the UK Government. To deliver effectively, we need
discretion to take our own decisions, to set our own agenda
as well and influence legislation as it affects Wales
. Not for nothing was the White Paper called "A
Voice for Wales". |
| The way we respond to these
issues will impact not only upon our effectiveness but
also on the nature and structure of the Assembly itself.
We have to find ways of raising our debates so that they
are not as the First Secretary says "like watching
paint dry", but are vibrant, meaningful and capable
of changing the ways we live in modern Wales. |
| Can we do it? Of course we
can if we have the will. |
| As the Assembly starts to review
its own procedures and we anticipate the Independent Commission
on the wider issues of functions and powers, we could
consider the following. |
|
1.
|
During the course of each Parliamentary
year Subject Committees be asked to suggest Bills they
would like to see incorporated in future legislative programmes. |
|
2.
|
Each year, prior to the Summer Recess, the
First Secretary submits to Plenary his Cabinet's report
on the Committees' (and other) suggestions to allow the
Assembly to submit a prioritised list to the Secretary
of State for consideration. |
|
3.
|
A formal submission be made and a formal
response be sought from the Secretary of State to the
Assembly's submissions and provision be made for this
to be debated in plenary on a substantive motion. |
|
4.
|
A summary of individual Bills being proposed
to Parliament and dealing with devolved matters, be presented
to the relevant subject committee, as a matter of course,
and the committee's views reported for debate in Plenary
and the resulting views be submitted to the Wales Office. |
|
5.
|
All correspondence between the National
Assembly for Wales and the Wales Office relating to Assembly
resolutions be placed in the Assembly Library. |
|
6.
|
All correspondence relating to the Assembly's
views on the legislative programme and between the Wales
Office and other Whitehall Departments be placed in the
House of Commons Library. |
|
7.
|
A regular report be presented by the Office
of the Counsel General for debate in plenary during the
course of the Parliamentary year on the progress of relevant
legislation. |
|
8.
|
An annual report be presented to the Assembly
by the First Minister reviewing the legislative programme
and reporting on the extent to which the Assembly's views
have been accommodated. |
|
9.
|
The Assembly’s standing orders and
the concordat between the National Assembly for Wales
and the Wales Office be reviewed to incorporate these
changes and a more radical approach to making the existing
system successful. Such a concordat should be submitted
for approval to the National Assembly. |
|
10.
|
A clearer understanding be established with
the UK Government as to whether selected Bills promoted
by the Assembly will be included in the legislative programme
and what potential exists for the development of a fast
track mechanism to speed Assembly Bills through Parliament. |
