Assembly Powers
Are the powers of the National Assembly
sufficient to meet the needs of Wales?
- 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?
- Whether, and if so how, the powers should be extended,
strengthened or changed and whether they should include
tax varying powers.
"Made in Wales"
16. Within its current remit the National
Assembly for Wales has potential to deliver an agenda
which is made in, and made for Wales. The Association
realises that this view is contested. In some quarters
the Government of Wales Act 1998 can be viewed as conferring
"constrained discretion" and an evolving approach to
devolution. The opposite view is that it provides a
rigid "constitutional straightjacket" which denies the
Assembly the freedom to exercise its mandate and provides
a flawed set of governmental arrangements.
17. From the vantage point within local
government we recognise the real potential to work within
the existing settlement of devolution but also agree
that in some areas there needs to be an examination
of a number of functions with reference to substantive
policy making and administration. The current settlement
around Home Office Services is such an example. The
Association believes that the lack of clarity surrounding
many policy areas generates much of the current disquiet
with existing powers, and that if such clarity was provided
this would allow the Assembly to realise its full potential
within the boundaries of the existing settlement.
18. As the Assembly has grown in confidence
over the last few years, we have begun to see real steps
to change policy to meet the needs in Wales, culminating
in an approach enshrined by the term a "Welsh Way" to
public sector reform. Instances of this include the
creation of Local Health Boards and a new focus on primary
care and prevention in health, the distinct education
agenda, the introduction of the Wales Programme for
Improvement and a range of other measures which amount
to significant policy variation from Westminster.
19. These examples illustrate just how
much the Assembly can undertake without the need for
extra powers to be transferred. This creativity in the
use of Assembly secondary powers now needs to be applied
with greater rigour to other policy arenas within the
National Assembly, at both Ministerial and official
level.
Clarification of Assembly Powers
20. A factor holding back the Assembly
from fully realising its potential is the lack of a
complete register of transferred powers. Over the last
few years, powers have been transferred to the Assembly
in a number of fashions, through new primary legislation,
transfer of orders etc. A recent study by the Welsh
Affairs Select Committee highlights the lack of a register
as a major drawback to the Assembly’s involvement
in primary legislation. If a register is not available
for Members and officials, then clarity over what can
and cannot be done must be difficult.
21. In a wider context since its creation
the Assembly has not been given powers that would enable
it to deregulate local government, because they involve
powers to amend primary legislation. Examples are section
16 of the Local Government Act 1999, section 5 of the
Local Government Act 2000 and section 2 of the Regulatory
Reform Act 2001.
22. The Assembly is responsible for the
vast majority of local government functions (education,
housing, social services, planning etc). As a matter
of principle, it should be responsible for deciding
to what extent local authorities in Wales are to be
deregulated: deregulation alters the nature of control
that it exerts over local government and the relationship
between the two spheres of government.
23. The view of the Association is that
the Assembly should have the powers under those Acts.
The alternative is to accept that the devolution of
local government is incomplete - and that what may have
been an unintentional act now results in a constitutional
fact.
24. If the Acts referred to above had been
drafted prior to devolution then the powers with respect
to local government in Wales would have been vested
in the Secretary of State for Wales. Even though they
involve wide powers to amend primary legislation, they
remain powers of secondary legislation and can be used
only in tightly defined circumstances. It is difficult
to envisage that, if the timing of devolution had been
different, convincing arguments against transferring
powers to the Assembly could have been mounted. Local
government in Wales should not be "penalised" simply
as a result of timing of devolution compared to the
timing of the 1999, 2000 and 2001 Acts.
25. What is frustrating about the present
position is that the drive for change in Wales is often
initiated in London rather than Cardiff. The Assembly
is responsible for the vast majority of local government
functions and is therefore better placed to judge to
what extent the powers should be used for Wales, since
they affect its relationship with local government.
The 2000 Act acknowledges that the Assembly can make
proposals to the Secretary of State about the use of
his powers but does not place any obligation on the
Secretary of State to act.
26. One of the features the Assembly should
be congratulated upon is the development of debates
in Wales across the policy spectrum and the promotion
of a range of initiatives and projects it has embarked
upon over the last four years. These projects have been
an attempt by the Assembly to deliver a Welsh solution
to Welsh problems.
27. The down-side of this is an emerging
initiative overload in key areas and, in the sphere
of local government, a propensity for every new proposal
to be accompanied by a requirement for a plan or document
detailing how the said initiative will roll out and
be monitored. The outcome of this is that plan production
has reached "epidemic" proportions despite the fact
that these documents often have no public currency and
amount to the "great unread". There is a perception
within many circles that if a policy initiative is not
seen to deliver straight away the Assembly will launch
a new initiative/policy. This can cause confusion and
disquiet amongst the delivering body i.e. local government,
as time is not being given for one policy to mature.
It is vital therefore that the Assembly take stock of
the plan requirements in Wales and seek at the earliest
opportunity to downsize the requirement for plans which
are detracting from service delivery. This links back
to the point in Paragraph 25 where the Assembly needs
the power to do this.
Partnership Working
28. From the outset the Assembly made a
commitment to work in partnership with key agencies
to meet the needs of Wales. The Partnership Council,
between the Assembly and Local Government is an excellent
example of this approach. This forum has provided the
means by which the Wales Programme for Improvement can
be delivered. This forum also provides an opportunity
for issues between local government and the Assembly
to be discussed and ways forward agreed. The Assembly
recognises that it cannot achieve or deliver change
on its own – it needs to work in partnership.
29. The Federal settlement in the USA has
led to what Jonathan Freedland describes as a "noisy
public conversation" in state and local politics. If
the Assembly’s purpose is about the reversal of
the centralising trend of British politics over the
past 100 years and empowering local communities then
this must translate in terms of greater public understanding
of its role as an institution and its impact on everyday
life.
30. It is crucial that if devolution is
to go further than the current settlement that it be
with the will and support of the public. There is a
danger that proposing reforms and extending powers without
the support of the public will create problems of identity
both for the organisation and for the public it is supposed
to be leading. The devolution project is vital to the
wellbeing of the Welsh people and the Association’s
prime concern is to ensure that it consolidates and
extends upon its mandate in the current period and into
the future.
31. If the Commission were to recommend
an extension of powers particularly within the realm
of primary legislation it is the belief of the Association
that a referendum be held to assess whether there was
support for such radical change.
32. The Association also believes that
the Assembly has "unfinished business" when it comes
to the role of non elected bodies in Wales. We would
ask the Assembly to seriously address this issue which
detracts from democratic accountability across Wales.
We also feel that this in turn would further consolidate
the Assembly’s role. While the abolition of the
Health Authorities was a move we fully supported the
drive to democratise governance in Wales needs to be
extended.
33. There are currently in excess of 40
executive and advisory bodies in Wales. The report published
in 2001 by the House of Commons Public Administration
Select Committee concluded that the growth of quangos
in the UK was problematic. In particular it took the
view that the policies towards quangos of central government
departments, each pursuing their own objectives and
initiatives, are uncoordinated and cumulatively damaging
to local democracy insofar as they undermine the powers
and functions of local government. The Scottish Executive
has reviewed public bodies in Scotland. There could
be a similar review for Wales: the Assembly has wide
ranging powers in Section 28 of the Government of Wales
Act to transfer functions of quangos and abolish some
of them. There is an ambitious programme of quinquennial
reviews but it is not yet clear that any will lead to
reduction in the number of quangos or transfer of their
functions to other bodies, including councils.
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