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Part I: Environment, Planning And
Transport Committee
Responsibilities of subject committees
1. Section 57 of the Government of Wales
Act 1998 (the Act) requires the Assembly to establish
subject committees mirroring the portfolios of Cabinet
Ministers with accountability in the fields in which
the Assembly has executive functions. The Act also requires
that Ministers be members of the committee covering
their portfolio. Standing Order 9 defines the responsibilities
of subject committees, principally they are two-fold:
policy development (via committee inquires
and by contributing to Ministerial policy development);
and scrutiny (of expenditure, administration
and discharge of public functions). An increasingly
prominent role, though appearing in a separate sub-paragraph
of the Standing Order, is to advise on proposed
legislation (subordinate, primary and European).
2. As subject committees do not exercise
executive functions, in theory the distribution of powers
between the Assembly, Westminster and Europe per
se is not a barrier to a committee’s ability
to discharge these responsibilities. However, in practice
a committee’s ability to influence policy and scrutinise
its implementation is dependent on the degree of influence
it possesses over those with executive functions. Clearly
the greatest influence of subject committees is over
Assembly Ministers as members of those committees.
3. Guided by the terms of reference of
the Commission, this submission concentrates on the
statutory powers of the Assembly and its committees,
but it must be recognised that influence is not confined
to the exercise of formal powers. Committees, and politicians
generally, have scope to influence the development of
policy in many ways. However, potential for influence
is greatest where committees have a formal policy development
or scrutiny role.
Clarity, breadth and depth of the
Assembly’s powers
4. The following is a summary of the
principal policy development and scrutiny work undertaken
by the Environment, Planning and Transport Committee
(the Committee) in addition to other areas of consideration
where the powers of the Assembly were at issue. I have
included examples of the Committee successfully influencing
policy, as well as examples of where the Assembly’s
executive powers proved a barrier to the implementation
of its recommendations. This section aims to cover those
parts of the terms of reference relating to the clarity,
depth and breadth of the Assembly’s powers.
Review of public transport
5. The Committee’s first inquiry
looked at public transport in Wales. We considered what
steps were needed to facilitate improved and integrated
public transport services, and whether the depth and
breadth of the Assembly’s powers over public transport
were a barrier to doing so. The Committee concluded
that whilst some improvements could be delivered within
the existing settlement, longer-term statutory and organisational
changes were required.
6. The Commission has received written
evidence from the Minister for Environment, which provides
details of the extent of the Assembly’s powers
over public transport. The Committee based its recommendations
for short-term improvements on the Assembly’s ‘power’
to ‘encourage’ local authority public transport
actions through guiding Local Transport Plans, and the
‘lever’ of Assembly funding for local authority
infrastructure via Transport Grant and also revenue
support for buses and community transport. The Minister
for Environment has accepted and is implementing recommendations
for the Assembly and local authorities relating to:
establishing a quality kite mark; preparing voluntary
regional public transport strategies; developing the
voluntary regional transport consortia; and developing
an evaluation framework for measuring the benefits of
investment in public transport.
7. However, the Committee identified
significant barriers to the Assembly’s ability
to develop integrated public transport policy, primarily
its breadth of powers, namely: lack of specific power
to require local authorities to plan and deliver
joined-up (regional) public transport services; lack
of regulatory powers affecting bus and rail services;
lack of statutory control over the Traffic Commissioner;
and no specific provisions in respect of rail services.
The Committee made the following recommendations, accepted
by the Minister for Environment, that require the agreement
of the UK Government or its agencies: gaining enabling
primary legislative powers for organisational change;
gaining power of direction over the Strategic Rail Authority
(SRA) along the Scottish model; gaining the right to
nominate a member of the SRA and secure Welsh representation
on the successor body to Railtrack; obtaining a delegation
of management responsibility for the Valley Lines rail
service; establishing an office of the Traffic Commissioner
in Wales, and considering ways of his being accountable
to the Assembly.
Investigation into the Nantygwyddon
landfill site
8. Another key piece of work undertaken
by the Committee was the independent investigation into
the Nantygwyddon landfill site at Gelli, Rhondda. Following
concerns expressed by local residents about the effect
of the site on their health and environment, the Assembly
resolved that the Committee investigate the establishment,
management and regulation of the site. The primary focus
of the investigation was to be forward looking, seeking
to identify lessons for the future, both in relation
to the site and in relation to waste management issues
more generally. The investigation covered issues within
the portfolios of Environment and Health.
9. This was the first, and to date only,
investigation conducted by a subject committee on behalf
of the Assembly. The Assembly has the power, under section
35 of the Act, to hold a public inquiry, and there were
calls for this to be done. The Assembly decided, however,
that the aims of completing the investigation at an
early date and of ensuring that the process was inexpensive
and accessible to participants, called for an innovative
approach avoiding the formality, delay and expense associated
with a classic public inquiry. The Assembly took the
view that its power under section 40 of the Act to do
anything calculated to facilitate, or conducive or incidental
to the exercise of any of its functions, enabled an
alternative form of investigation to be carried out.
10. The Nantygwyddon investigation has
set a precedent for the work of the Assembly’s
subject committees. The Committee adopted a novel procedure
of using an independent investigator to invite submissions,
hold evidence-taking sessions locally, to analyse the
material gathered and to report to the Committee on
it, making recommendations which the Committee then
considered. The Committee invited interested parties
to appear before it and comment directly on the investigator’s
recommendations. The Committee reported in turn to the
Assembly and its recommendations were endorsed in full.
The site has now been closed.
11. Some of the Committee’s recommendations
were specific to the Nantygwyddon landfill site, others
drew general lessons for the future of waste management
in Wales, including the need to address health concerns
associated with waste disposal facilities. Implementation
of the recommendations by the Assembly, its sponsored
bodies and the local authority is underway, with the
exception of one recommendation, which requires the
Assembly to seek amendment to the Environmental Protection
Act 1990, namely the removal of ‘commercial confidentiality’
as a barrier to publication of environmental information.
12. The investigation highlighted limits
to a committee’s ability to undertake an investigation
of this nature. Public inquiries can summon witnesses
and require the production of documents. Committees
themselves can only do so (section 74 of the Act) in
relation to the staff of certain public bodies. The
Committee was to some extent hampered by its inability
to obtain information about the affairs of the waste
disposal company which had at one time operated the
tip. Consideration should be given to whether the Assembly’s
power to require the attendance before committees of
witnesses and the production of documents should extend
to all individuals or bodies who have information relevant
to the Assembly’s functions.
13. The investigation also illustrated
the potential for anomalies arising out of the legal
character of the Assembly as a single corporate body.
The Minister is both a member of the Committee and subject
to scrutiny by it. It emerged that the results of the
Committee’s investigation were being cited as evidence
in support of complaints being investigated by the European
Commission against the UK (as Member State) for alleged
failure to implement effectively the Waste Framework
Directive. The Assembly (Welsh Assembly Government),
as successor to the Welsh Office, is the channel through
which the UK Government gathers information to defend
itself against such complaints. This places the Minister
in the difficult position of being required to assist
the UK Government (and being privy to confidential communications
between the UK Government and the Commission) in relation
to a matter where the Committee, of which she is a member,
has itself carried out an investigation.
Environment Agency
14. The Committee has scrutinised the
performance of the sponsored bodies within its portfolio.
The Environment Agency is a body jointly sponsored and
funded by the Assembly and the Secretary of State for
Environment, Food and Rural Affairs by virtue of the
Environment Act 1995. Some members have questioned the
Assembly’s ability to set the strategic direction
and activities of the Agency in Wales whilst it remains
an England and Wales body under the direction of a Board
(with the exception of one of its fifteen members) appointed
by the Secretary of State.
Dwr Cymru
15. The Committee met jointly with the
Economic Development Committee to consider issues associated
with the acquisition of Dwr Cymru and subsequent creation
of Glas Cymru, the non-profit company that now owns
Dwr Cymru. Some concern was expressed at the time at
the nature of the Assembly’s powers to influence
the decisions of the water industry regulator OFWAT.
The Assembly has the power under section 13 of Water
Industry Act 1991 to direct the Director General of
Water Services not to make modifications which
he may propose to the conditions of Dwr Cymru's appointment,
but cannot direct the regulator to make modifications.
Planning Decisions
16. The Commission may wish to note current
arrangements for determining called-in planning applications
and recovered appeals under the Town and Country Planning
Act 1990 and applications for Orders under the Transport
and Works Act 1992. The Assembly, through its Standing
Orders, delegates executive responsibility for determining
such cases to committees made up of four members of
the subject committee covering the planning portfolio,
rather than to the Minister for Environment. Instead
of decisions being taken by or in the name of one individual
(the Minister) as occurred pre-devolution and as is
still the practice in England, the Assembly takes these
decisions on a collegiate basis. Officials from the
Welsh Assembly Government’s Planning Division provide
detailed advice, identifying relevant planning policies
and the salient facts as found by the planning inspectorate.
The aim is transparent, evidence-based decisions.
17. A measure of the success of these
arrangements is that there have been no successful legal
challenges to any decision made by a Planning Decision
Committee. Indeed, there has only ever been one attempt
to challenge such a decision, which the claimant withdrew
before it could reach court. Although Planning Decision
Committees are cross-party bodies, the experience has
been that consensus has almost always been achieved
and on the few occasions when there have been differences
of opinion, these have usually cut across party boundaries.
18. Planning decisions do not often involve
joint decision-making with Whitehall departments. However,
I believe that there is in the pipe-line one called-in
application which will involve a joint decision with
the Department of Trade and Industry because it involves
a statutory undertaker for which they have responsibility.
Whilst it would be wrong to assume that the Planning
Decision Committee which considers the case in due course
on behalf of the Assembly will reach a different view
from that of the Secretary of State, it is unclear what
would happen if a difference of opinion did arise.
19. Where a Transport and Works Act Order
affects both England and Wales, the decision whether
to make it is that of the Secretary of State, but the
consent of the Assembly is required. This situation
arose recently (The Wye Navigation Order 2002). Since
the Order was not made by the Assembly, which only had
to consent to it, Standing Orders required the decision
to be made by a vote in plenary. Assembly Members, having
been provided with the Secretary of State’s reasons
for wanting to make the Order, voted unanimously to
give the necessary consent. The potential for a different
view being taken by the Assembly from that of the Secretary
of State, with the result that an Order which the latter
regards as desirable cannot be made, does nevertheless
exist.
Subordinate legislation
20. Rather than undertake detailed scrutiny
of proposed subordinate legislation after a policy has
been formulated, the Committee has tended to contribute
at the policy development stage. However, at the beginning
of each term the Minister has tabled a subordinate legislation
forward look, which the Committee has considered to
identify items for detailed consideration or further
clarification. The Committee received reports on the
implementation of the Countryside and Rights of Way
Act through the Assembly’s subordinate legislation,
to ensure that it met the needs of stakeholders.
Influencing UK Government policy-making
21. I have highlighted above those areas
where implementation of the Committee’s recommendations
is a matter for the UK Government or its agencies. As
the Minister has accepted the recommendations (and indeed
as a member of the Committee took part in their development),
the Committee has asked that she seek their implementation
by the relevant UK Ministers. The Committee has not
made direct representations the Secretary of State for
Wales or other UK Ministers, other than to make them
aware of the Committee’s recommendations.
22. The Committee was the first subject
committee to work with the Welsh Affairs Select Committee
in a co-ordinated approach to the committees’ respective
transport inquiries. Members of the EPT Committee gave
evidence to the Welsh Affairs Committee on those recommendations
from the transport review relating to non-devolved powers,
so that they could be taken up at Westminster.
23. In general, where the Committee has
considered reviews or policies being developed jointly
on an UK or England and Wales basis (e.g. review of
the Environment Agency), officials from the relevant
UK Government Department have accompanied the Assembly
Minister at Committee meetings. The Committee has not
thus far invited a UK Minister to attend its meetings.
24. To date the Committee has not formally
‘scrutinised’ proposed primary legislation
affecting Wales, although evidence was taken from key
stakeholders on the implications of the provisions of
the Countryside and Rights of Way Bill on Wales as it
was nearing the end of its passage through the House.
The Committee does however propose to scrutinise the
forthcoming England and Wales Planning Bill, although
it is anticipated that opportunity to influence the
Bill will be limited, as it is unlikely to be published
in draft. Scope for influence is likely to be via the
Minister.
Part II: Assembly Subject Committees
Generally
The Assembly’s Powers
Subject committee portfolios
25. The section 57 requirement for subject
committees to exactly mirror the ‘accountabilities’
of Ministers means that a Cabinet portfolio re-shuffle
can lead to the dissolution of committees. For example,
the splitting of the Local Government and Environment
portfolio in February 2000 led to the dissolution of
the corresponding subject committee with the two new
committees meeting for the first time some two months
later. In the intervening period there was no public
forum for the scrutiny of the Ministers. The time taken
to elect the committee chairs and members also reduced
the time available for policy development, and limited
the opportunities to input into the primary legislative
process. The stability of subject committees is therefore
reliant on the stability of Cabinet portfolios.
26. A further issue is that subject committee
membership generally has been subject to change. For
example, since its establishment only three of the original
members remain on the Committee (including the Minister
and myself). This greatly limits the ‘collective
memory’ of the committee and the ability to build
up a body of subject experts. This is not a matter for
the Act, but might possibly be addressed if subject
committees were more stable.
27. The Commission will hear examples
of subject committees whose portfolios do not exactly
match Ministerial ‘responsibilities’. The
strict definition of subject committees’ portfolios
as mirroring the ‘accountability in fields’
of Ministers can prevent committee scrutiny of cross-cutting
and other responsibilities. For example, the Environment
Minister is not required to report to the Committee
on sustainable development. However, in practice Sue
Essex chooses to do so.
Ministerial membership
28. Section 57 of the Act also requires
that Ministers be members of subject committees. It
is argued that the presence of a Minister on a committee
will increase the likelihood that its recommendations
will be implemented, as the Minister will have been
involved with other Members in shaping those recommendations.
However, in practice the development of a particular
committee, and the benefits or otherwise of Ministerial
membership of the committee, will depend on the dynamics
of that committee. In the case of the EPT Committee,
the Minister works openly and positively with the Committee,
and she has accepted the Committee’s recommendations.
29. Some commentators have questioned
the ability of committees to effectively scrutinise
Ministers who are members of those committees. Inevitably
a committee’s appetite for ‘scrutinising’
the Minister will depend on the relationships within
the committee, but in my view there are no institutional
barriers to effective scrutiny. Indeed by requiring
their presence at all meetings of a subject committee,
it could be argued that Ministers cannot escape committee
scrutiny. However, there are anomalies arising from
a Minister’s role as both a member of a ‘scrutiny’
committee and a government Minister, as highlighted
in para. 13 above.
Responsibilities of subject committees
30. The Commission has already pursued
with some Ministers the sustainability of the dual role
of subject committees within the corporate body of both
policy-making and scrutiny. I would be happy to discuss
my views on this issue at the oral evidence session.
Powers of subject committees
31. In para. 12 above I drew attention
to limits to a committee’s ability to undertake
an investigation such as Nantygwyddon. In our experience,
these primarily related to the powers conferred to subject
committees by the Act, such as power of summons. When
the Committee reviewed the investigation process, most
of those taking part considered the lack of powers to
compel witnesses to give evidence in person or make
documents available to the investigation a major weakness,
and some felt that key questions remained unanswered.
32. A further issue highlighted in both
the Committee’s public transport review and Nantygwyddon
investigation was the relationship between the Assembly
and local government. With regard to the nature of the
Assembly’s relationship with local government,
it is not clear what mechanisms are available to committees
to ensure implementation of recommendations relating
to local authorities. Again, I would be happy to develop
this point at the oral session.
Influencing UK Government policy-making
33. As outlined above, the Committee
has made several policy recommendations relating to
non-devolved powers. Our approach has been to ‘lobby’
Westminster via the Welsh Affairs Committee and Whitehall
via the Assembly Minister, the latter reflecting both
the personal dynamics of the Committee and a pragmatic
approach – a committee view is likely to be more
influential if supported by a Minister. Should a Minister
prove less enthusiastic, a committee could lobby the
Secretary and State or other UK Ministers direct, but
the reality in many cases is that the ‘parliamentary’
side of the Assembly will be treated as any other consultee.
34. The Committee has yet to influence
primary legislation, and it is unlikely to have the
opportunity to do so without draft bills which allows
time for meaningful consultation within a more flexible
parliamentary timetable. In terms of initiating legislation,
the Committee has asked the Minister to take forward
its recommendations relating to public transport, but
the Assembly Cabinet has thus far not succeeded in securing
parliamentary time.
Size of the Assembly
35. The small number of Assembly Members
and our commitment to family friendly hours requires
a rigid timetable to govern the Assembly’s formal
business. Flexibility of committee meeting times is
further restricted by multiple membership of committees
and consequent need to prevent timetable clashes. This
greatly limits the ability of committees to meet at
short notice discuss urgent issues or to hold additional
meetings. The current timetable also prevents the Committee
from meeting outside Cardiff, as it meets on the same
day as plenary, whereas previously the Committee met
outside Cardiff once a term.
36. A potential solution, which could
be achieved within Standing Orders, would be to reduce
the number of members on each subject committee (and
hence multiple membership), however this would have
the disadvantage of smaller parties not being represented
on some committees. Another option would be to increase
the number of Assembly Members, which would reduce the
pressure on Members and enable them to dedicate more
time to committee business. This could also provide
an incentive for stability of committees if Members
were to specialise in one subject area. I can expand
on this suggestion at the oral evidence session.
Conclusion
37. I am grateful for the invitation
to contribute to the Commission’s inquiry and look
forward to giving oral evidence on 5 December.
Dr Richard Edwards AM
November 2002
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