report of the richard commission -...

Report of the

Richard Commission

Commission on the Powers and Electoral Arrangements of the National Assembly for WalesSpring 2004

contentschapter page

1 Introduction 1

2 The historical and international context 5

3 The views of the people of Wales 23

4 The role and structure of the Assembly 47

5 The scope and adequacy of the devolved powers 85

6 The scrutiny of unelected public bodies 125

7 The Wales–Whitehall relationship 141

8 The Wales–Westminster relationship 169

9 The boundaries of devolution 183

10 The financing of devolved government 197

11 The cost of devolution 215

12 The electoral arrangements 225

13 Developing devolution in Wales 241

14 Conclusions: the way ahead 253

annexes

1 Terms of reference 265

2 Programme of evidence sessions 267

3 Public meetings 281

4 Index of written evidence 283

5 Primary legislation affecting Wales 291

6 Acts of the first session of the Scottish Parliament, 1999-2003 299

7 Acts of the Northern Ireland Assembly, 1999-2002 303

8 Letter to the Chair 305

Background

2. The Richard Commission wasappointed in July 2002 by the FirstMinister of the National Assembly forWales. Our Chair, Lord Richard, wasappointed by the First Minister. FiveCommissioners were appointedfollowing open competition andinterview. Four were nominated jointlyby the four party leaders in the firstAssembly.

Terms of reference

3. These are set out in full at Annex 1.They require us to review two aspectsof the National Assembly, which cameinto being in July 1999: the adequacyof its powers and its electoralarrangements.

4. Within the powers part of the remit,there are two elements: the depth ofthe powers – the capacity of theAssembly to act within the fields thatare devolved to it; and the breadth ofthe powers – whether more fieldsshould be devolved.

The Commission’s approach

5. In considering the way forward, wehave been conscious of the fact thatthe current devolution settlement isonly four years old, covering oneAssembly and barely four UKParliamentary sessions.

6. In evaluating the evidence submitted,we have sought to distinguish betweenconstraints or frustrations arising fromthe structure of the settlement, andthose which could be described as‘teething’ problems, which naturallyoccur in the first years of such radicalconstitutional change.

7. The Rt Hon Peter Hain MP, Secretaryof State for Wales, suggested to usthat:

a practical delivery benchmark testshould be applied to any proposal forchange: how will it benefit life inWales? How will it improve it inpractical terms?1

8. We set out in Chapter 13 the visionand principles that have informed ourenquiry. We have worked on twoassumptions. First, that gains indemocracy and accountability arevaluable in themselves. Second, thatmore open, participative andresponsive governance is likely toproduce better policy outcomes. Werecognise, however, that conclusiveevidence on this would be elusive evenif our review had been conducted at amuch later stage.2 It is also fair to saythat better delivery of public services,or improvements in the economy,depend on many factors that areoutside the scope of our enquiry.

This chapter sets out the background to the Commission and explainsour approach, processes and the structure of our report.

Introduction

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chapter 1: introduction

The Richard Commission

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9. We decided to approach our remitfrom a broad and practical perspective.We felt that the terms of referenceraised fundamental questions, whichcould only be addressed by looking atthe operation of the devolutionsettlement in the round, including thework of the Assembly as aparliamentary body and the role of theWelsh Assembly Government. Thequestions we have addressed arepractical ones: how are thearrangements working at the moment;what, if any, problems have beenencountered; and how could things beimproved in the interests of the peopleof Wales?

10. Our enquiry has drawn on the views ofthose who operate the presentsettlement, of those who work withthem on a daily basis and of ordinarypeople in Wales. We are confident thatthe analysis of the first four years, setout in the following chapters, hasprovided a sufficient body of evidenceto enable us to identify in detail thestrengths and weaknesses of thepresent arrangements and torecommend a sustainable settlementfor the long term, based upon bothprinciple and practical experience.

11. Many aspects of the remit – theAssembly’s size, powers, structure,capacity and electoral system – areinter-dependent. In reachingconclusions on individual aspects, wehave sought to take account of theimpact on the Assembly as a whole,and on the governance of Wales morewidely, and to present a coherent andintegrated set of recommendations forthe way ahead.

12. Each chapter of the report examines adifferent aspect of the existingdevolution settlement and concludeswith findings specific to that chapter.The conclusions we have reached,based on those findings, are set out inChapters 13 and 14.

The scope of our report

13. We were clear that it was not our roleto evaluate the performance of theAssembly or the Welsh AssemblyGovernment. This would haveentailed going outside our terms ofreference and making subjectivejudgements. We have focused on theevidence and limited our observationsto matters directly relevant to theAssembly’s powers and its capacity toexercise them effectively.

14. On the electoral arrangements, wehave not tried to go over the groundcovered by previous and concurrentreviews specialising in electoralsystems. We have drawn on these butfocused on the practical operation ofthe existing system and what seem tous the realistic alternatives to it.

The processes we have followed

15. We began our work in September2002 when we decided on a processdesigned to enable us to gather solidevidence on which to base ourconclusions.

16. Between October 2002 andSeptember 2003 we held 115evidence sessions, 3 seminars,3 andissued 2 consultation papers.4 Wereceived over 300 writtensubmissions. We held 9 public



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meetings, starting in Swansea andending at the National Eisteddfod inMeifod. We observed the Assembly inplenary and in committee, visited theScottish Parliament in Edinburgh, metthe Speaker of the Northern IrelandAssembly and visited Westminster, tomeet MPs, Peers and others, threetimes.

17. Since our appointment, theParliament at Westminster hasproduced two reports that have beenof great value to us, as discussed inlater chapters.5 These are:

■ Devolution: Inter-institutional relationsin the United Kingdom – Report ofthe House of Lords Select Committeeon the Constitution, HL 28 of 2002-03;

■ The Primary Legislative Process as itaffects Wales – Report of the WelshAffairs Committee of the House ofCommons, HC 79 of 2002-03.

The structure of the report

18. The structure of our report is asfollows.

■ Chapter 2 reviews the history andwider context of the Government ofWales Act 1998 and demonstrateshow the establishment of theAssembly built upon and changed themodel of administrative devolutionthat existed before. It also provides asummary of the international context;

■ Chapter 3 reviews the evidence onthe views of the people of Wales –drawing on views put to us at ourpublic meetings as well as publicopinion survey evidence;

■ Chapter 4 describes the role andstructure of the National Assembly. Itexamines the capacity of theAssembly and its committees to carryout the role of scrutiny and holdingthe government to account, and theimplications for the organisation ofacquiring further powers. The mainfocus is on the experience of the FirstAssembly, but relevant developmentsduring the Second Assembly are alsoconsidered;

■ Chapter 5 considers the nature of thepowers conferred on the Assemblyand how they have been used inpractice by the Welsh AssemblyGovernment;

■ Chapter 6 reviews the Assembly’spowers in relation to the non-electedpublic bodies it sponsors and how therelationship between government andthese bodies has changed since1999;

■ Chapter 7 examines the relationshipbetween the Welsh AssemblyGovernment and the UK Governmentat Ministerial and official level. Itconsiders the strengths andweaknesses of present arrangementsand their sustainability in the future;

■ Chapter 8 considers the way primarylegislation affecting Wales is handledat Westminster and the impact ofdevolution on the arrangements forscrutiny and debate. Again theadvantages and disadvantages of thesystem are discussed;

■ Chapter 9 reviews proposals forbroadening the powers of theAssembly and considers theimplications of further transfers ofpowers from the UK Government;

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■ Chapter 10 examines the Assembly’sfinancial powers and the scope forextending them;

■ Chapter 11 looks at the cost ofdevolution in Wales and the possibleimplications of further development;

■ Chapter 12 considers the Assembly’selectoral system, examines its meritsand weaknesses and the case forchange;

■ Chapter 13 sets out our vision fordeveloping devolution in Wales;

■ Chapter 14 presents our conclusionsand recommendations.

19. We would like to express our sinceregratitude to all those who presentedevidence to us. Their views were

relevant, thoughtful and perceptive andgave a unique insight into the far-reaching implications of devolution forpublic life in Wales. We are also mostgrateful to many others who havehelped our research, including officersof the Parliament at Westminster andthe devolved bodies, and officials inWhitehall and the devolvedadministrations.

20. We hope that our report does justice tothe evidence we received. We believethat it represents an unprecedentedexamination of Welsh constitutionalarrangements. The papers are beingpublished separately so that they canbe used to inform future debate and asa resource for future students of Welshpolitics and governance.



Notes

1Oral evidence of The Rt Hon Peter Hain MP, Secretary of State for Wales, 13 March 2003.

2‘Evaluating devolution in Wales’, Adrian Kay, Political Studies, (2003),51-66.

3Seminars on the constitutional settlement and on the electoral arrangements, held jointly with the Economic andSocial Research Council’s Devolution Research Programme, at the University of Wales, Aberystwyth (October2002) and Swansea (January 2003). Seminar on legal aspects of the settlement in February 2003 convened bythe Law Society in Wales.

4Commission on the Powers and Electoral Arrangements of the National Assembly for Wales, The Powers of theNational Assembly for Wales: issues and questions for consultation, November 2003, and Commission on thePowers and Electoral Arrangements of the National Assembly for Wales, Electoral Arrangements of the NationalAssembly for Wales: issues and questions for consultation, March 2003.

5In particular Chapters 8 and 10.

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chapter 2: the historical andinternational context


2. The chapter addresses the followingissues:

■ why was the model of executivedevolution introduced for Wales in1999?

■ what are the elements of continuityand change in the present settlement?

■ how do the current governancearrangements in Wales and the UKcompare with those in other countries?

■ what has been the impact ofdevolution on the role of Wales inEurope?

How Wales was governed before1999

3. The Acts of Parliament, of 1536 and1543, now familiarly known as the‘Acts of Union’, though not known assuch until 1901, were designed tocomplete the assimilation into theEnglish state which had begun withthe conquest of Wales by Edward I inthe 13th century. The preamble to the1536 Act asserted that:

Wales is and ever hath beenincorporated, annexed, united andsubject to and under the imperialCrown of this Realm as a verryemember…..

4. The legislation abolished any legaldistinction between Wales andEngland, and established the samesystem for the administration ofjustice, the courts, shires andcommissioners of the peace. The Actsgranted Welsh representation inParliament – 27 Members, whichrepresented 7.2% of the membershipof the House of Commons at the timewhen the Welsh population wasprobably 6.9% of the State.1

5. In the 19th century, proposals forpolitical and administrative devolutionfor Wales, whether from a ‘Home Ruleall round’ viewpoint, linked to the Irishquestion, or from the perspective of theCymru Fydd movement, received littlesupport in Parliament. There washowever an intermittent series ofdistinctive Welsh legislation from thesecond half of the 19th centuryonwards, including the Welsh SundayClosing Act in 1881 - the firstlegislative enactment to apply to Walesa different set of principles from thoseobtaining in England.2

6. Subsequent Wales-only measuresincluded the Intermediate EducationAct in 1889, the Disestablishment ofthe Church (Wales) Act 1920 and the

This chapter provides a summary of the historical and internationalcontext of devolved government in Wales. The first part of the chapterplaces the 1998 Government of Wales Act in the context of thegovernance of Wales since the 16th century. The second part reviewsexperience in other countries.

The historical and internationalcontext

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Welsh Language Act 1967. Manydealt with the establishment of newbodies for Wales including the WelshDevelopment Agency, the DevelopmentBoard for Rural Wales and the LandAuthority for Wales.

7. Responding to Welsh needs throughdistinctive Welsh legislation was seennot as a precursor to separatism but asan alternative to it. In Lord Morgan’sjudgement:

The twentieth century, from the FirstWorld War down to the late 1960s,has been for Scotland and even morefor Wales, an age of centralism and ofunionism.3

Wales in the 20th century: economiccrisis and the growth of administrativedevolution

8. The pre-First World War LiberalAdministration created separate Welshdepartments within the existingMinistries for Education, Agricultureand Health. This began a process ofadministrative devolution whichcontinued until the establishment ofthe Assembly, and was taken forwardby each of the political parties when ingovernment.

9. During the inter-war years of economicdepression and mass unemployment,Aneurin Bevan, and others within theleadership of the emerging Labour andTrade Union movement, considereddevolution a distraction from the crisisfacing the Welsh economy and thecentral task of influencing the‘commanding heights of the economy’,the redistribution of industrial

development and the establishment ofa welfare state.

10. In 1925 Plaid Genedlaethol Cymruwas established to campaign for a self-governing Wales and to preserveWelsh identity, especially the language.

11. Demands for a Secretary of State forWales received short shrift from thewar-time Coalition Government, thepost-war Labour Administration andthe Conservative Government of HaroldMacmillan. It was not until after thedefeat in the 1959 election that theLabour Party gave a manifestocommitment to appoint such aSecretary of State and establish aWelsh Office with executiveresponsibilities. This was against thebackdrop of growth in electoral supportfor Plaid Cymru and the readiness ofthe Conservatives to move in thedirection of devolution.4

12. Under Conservative Governments from1951 to 1964, a wide range offunctions were transferred to Cardiffand co-ordinated by a Minister ofWelsh Affairs, who was in the Cabinetby virtue of jointly holding anothermajor portfolio. The appointment in1957 of a Minister of State, based inCardiff, strengthened these moves.

13. The first Secretary of State for Waleswas appointed by the LabourGovernment in 1964. The most seniorofficials in Whitehall fought hard torestrict the powers of the newlyappointed Secretary of State, JamesGriffiths, to ‘oversight’ over governmentdepartmental activities in Wales. A



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compromise was reached and the firstWelsh Office was founded round theMinistry of Housing and LocalGovernment office in Wales.

14. Whitehall, at the highest level,continued to resist the furtherdevolution of executive responsibility,arguing that the devolution of functionssuch as health and education wouldlead to wasteful duplication andadditional costs.5

15. Arguments put forward against thedevolution of specific powers included:

■ that the transfer of highways powerswould lead to the disruption of roadsplanning between the two countries;

■ that, in education, the separation ofEngland and Wales would createsevere practical problems in respect ofthe supply of teachers to England;

■ the creation of a fourth agriculturedepartment would add to potentialdifficulty and delay in reaching policydecisions;

■ in health, an inordinate amount ofsubordinate legislation would beduplicated as would a number ofexecutive and advisory bodies;

■ in housing and local government, theconcern was about the cutting off ofstaff in Cardiff from the experience,advice and information available inWhitehall.

16. Underlying these objections was arecognition that the creation of a WelshOffice represented a challenge to thecentrally administered state that, onceconceded, was likely to continue

through further transfers of powers tothe new department. This forecastproved accurate although new transferswere extracted slowly from a reluctantWhitehall.6 The key stages in the process are summarised in Box 2.1below.7

17. Under growing political pressure, andfollowing the major re-organisation ofthe Departments of Health and SocialSecurity, health and tourism functionswere transferred in 1968 and jointresponsibility for agriculture in 1969.After the 1970 General Election,responsibility for primary andsecondary education was transferredby the new Conservativeadministration.

18. The debates in Parliament, and withinWales, throughout the period ofadministrative devolution foreshadowmany of the arguments which werelater advanced for moving to politicaldevolution and making the devolvedstructures accountable to a directlyelected Welsh body:8

■ a demand for policies to reflect thespecific circumstances of Wales;

■ a growing consciousness ofnationhood and a feeling thatWhitehall structures failed to takeaccount of national feeling in Wales;

■ a feeling that effective policy washampered by a daunting maze ofgovernment agencies, each possessingnarrow responsibilities and operatingfrom separated and unco-ordinatedoffices;

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■ the view that devolution would beessential for the proper working ofdemocracy in Wales;

■ the need for a ‘watchdog’ Secretary ofState to make sure that Wales wasgetting its fair share;

■ that Wales should be treated on a parwith Scotland.

The impact of administrative devolution

19. The process of administrativedevolution created the capacity forsuccessive Secretaries of State forWales to develop policies in responseto Welsh needs as they interpretedthem. The staff of the Welsh Officegrew from 200 in 1964 to 2321 in



Box 2.1: the expansion of administrative devolution 1906-1999

1906-1918 Creation of separate Welsh departments within the existingministries for education, agriculture, insurance and health

1945-51 Establishment of unelected Advisory Council for Wales andMonmouthshire

1951-1964 Creation of Minister for Welsh Affairs (post held initially byHome Secretary, subsequently by Minister for Housing andLocal Government) and gradual transfer of subject areas withappointment in 1957 of Minister of State based in Wales

1964 Establishment of Welsh Office under Secretary of State forWales, responsible for housing, local government, planning,water, forestry, parks, museums & libraries, the Welsh language, regional economic planning andhighways

1968 Tourism and health transferred

1969 Welsh Office gains joint power over Welsh agriculture

1970 Primary and secondary education transferred

1976 Welsh Development Agency and the Development Board forRural Wales established

1978 Full responsibility for agriculture (most functions) transferred

1980 Establishment of devolved Budget system

1992 Employment training and University of Wales fundingtransferred

1993 Funding Councils for further and higher education in Walesestablished

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1997. Secretaries of State of bothpolitical parties used the Welsh Officeto further their objectives by pursuingpolicies that diverged from those inEngland.

20. This was seen, for example, ineducation9 where a history of Welshpolicy development was wellestablished prior to the creation of theAssembly built around suchinstitutions as the Welsh JointEducation Committee and the SchoolsInspectorate. The scope for distinctivepolicies depended on legislation, onthe use of executive powers andextensive budgetary freedom (whichwas inherited unchanged by theAssembly).10 Other examples of policydivergence include local governmentreform, housing renovation subsidiesand land reclamation.

21. The existence of the Welsh Office alsoinfluenced civic society in Wales,requiring non-governmentorganisations to create Welshstructures and adding to themomentum for distinctive policies –this had a major impact on thepolitical parties, the trade unions andthe media.11

22. However, all this was against thebackground of the unitary state, andthe requirement on the Secretary ofState to operate within collectiveCabinet responsibility andaccountability to the UK electorate.From 1979 until the 1997 election,this had produced a government of adifferent political complexion from themajority of Welsh MPs. Thus theWelsh Office, and the Scottish Office,

reflected both the distinctiveness oftheir countries and the dynamics ofthe union state.12

23. Above all, the growth and power ofthe Welsh Office up to the 1980sbrought to the fore the question ofdemocracy and accountability:

The Welsh Office in the 18 years ofConservative rule ….quietly changedthe terms in which Welsh issues wereconsidered. Almost by stealth, theWelsh Office’s extended role after1979 reinforced the sense of theterritorial identity of Wales…..Acombination of satisfaction with anactive Welsh Office, and of revulsionat politically unacceptable quangos,added to a firmer sense of Welshidentity and perhaps of citizenship.13

Elements of continuity and changefrom 1999

24. Before the establishment of theAssembly a number of key elementsof devolved decision making werealready in place:

■ formal executive powers weredevolved to the Secretary of State forWales in respect of most of the majorpublic services in Wales;

■ the Secretary of State had extensivebudgetary freedom;

■ the structure of the Welsh Officeenabled policy to be developed on aWelsh basis although the constraintsof England and Wales legislationmeant that this was less developedthan in Scotland.

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25. The scope of the powers subsequentlyconferred on the elected Assembly bythe Government of Wales Act werelargely the same as those of theSecretary of State (Chapter 5). The keydifference was in respect ofaccountability. The Secretary of Statefor Wales was (and is) a Member ofthe UK Cabinet and subject tocollective Cabinet responsibility. Bycontrast, the Welsh AssemblyGovernment is accountable throughthe Assembly directly to electors inWales.

26. This separate accountability has wide-ranging implications for theexpectations placed on the Assemblyby people in Wales, as discussed inChapter 3 and in later chapters. LordMorgan suggests that it may havecreated a sense of momentum for thefurther development of devolution – weaddress this in Chapters 13 and 14.

Above all, it (the Assembly) will havethe essential legitimacy that arisesfrom being elected…The people will toan increasing degree be governed byand from Wales, not from Whitehall orWestminster.....Like the constitutionalreforms of the Blair government ingeneral, the Assembly will have adynamic all its own.14

Why was the Assembly established in1999?

27. The change, in 1999, from aSecretary of State to an electedAssembly, has been described as anexecutive model of devolution, distinctfrom the administrative model whichpreceded it and the legislative or

parliamentary model which wasadopted in Scotland at the same time.

28. The proposal for an elected Assemblywas put to the Welsh people for thefirst time in a referendum in 1979, atthe same time as a Parliament wasput to the Scottish people. Thisfollowed the report in 1973 of theRoyal Commission on theConstitution, chaired at first by LordCrowther and, thereafter, by LordKilbrandon, which recommendeddirectly elected assemblies forScotland and Wales, elected by theSingle Transferable Vote system ofproportional representation.

29. The Commission presented a wide-ranging analysis of the governance ofthe United Kingdom and its membersdid not agree on a preferred schemeof devolution.15 Its conclusions werecomplex and included a Memorandumof Dissent by two members whoargued for a UK-wide federal systembased on the German model. Of thesignatories to the main report, sixfavoured legislative devolution for bothScotland and Wales. Two favouredlegislative devolution for Scotlandalone, with an advisory body forWales. Two members favouredexecutive devolution for both countriesand one favoured an advisory body forboth.16

30. Thus, only two members favoureddifferent schemes for Scotland andWales, influenced by Scotland’sseparate legal system. This distinctionwas to influence the proposals of theLabour governments in both the1970s and the 1990s.17



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31. In Wales, the 1979 proposal forexecutive devolution was rejectedoutright; in Scotland the proposal forlegislative devolution was supported,but by an insufficient majority to passthe test established by the statute.18

32. Academics19 have attributed thechange from a decisive ‘no’ vote inWales in 1979 to a ‘yes’ vote by a veryslim margin20 in 1997 to a number offactors:

■ timing – the first referendum took placeat the end of a government facingeconomic difficulties and struggling tohold on to a wafer-thin majority, thesecond took place at the beginning of anew government with a very largemajority and a commitment toconstitutional change;

■ popular will – the sense of nationhoodand aspiration to greater democraticcontrol over the Welsh Office was lesswell developed in 1979 than in 1997,following a long period of governanceby a party without a majority in Walesand the particular strength of feelinggenerated by the quangos issue(Chapter 6);

■ the campaigns – the ‘yes’ campaignwas stronger, and the ‘no’ campaignweaker than in 1979.

Why the executive model of devolution?

33. The model of devolution proposed in AVoice for Wales, the White Paper whichpreceded the 1997 referendum, wasagreed by the Labour Party inopposition following extensive debate.The proposal was for an electedAssembly of sixty members, elected bythe Additional Member System ofproportional representation.21 TheAssembly would ‘assume responsibility

for policies and public servicescurrently exercised by the Secretary ofState for Wales… and make detailedrules and regulations, throughsecondary legislation, within theframework laid down in Acts ofParliament’.22

34. The Rt Hon Ron Davies AM, whobecame Shadow Secretary of State forWales in 1992, and Secretary of Statefrom July 1997 to October 1998,explained that the model was acompromise solution, adopted toensure the support of both pro and antidevolutionists in the Welsh LabourParty:

The big issue at the time, as it is now,was the question of primary legislation.That was what separated the idea ofan Assembly from the idea of aParliament. And it was that issue ofprimary legislative powers that becamethe main battleground within theLabour Party. The powers that bewithin the party were not convinced ofthe case for primary legislative powersand the compromise was settled ontherefore, that we would have anAssembly without those powers ofprimary legislation.23

35. Mr Davies went on to explain that thechoice of the executive devolutionmodel, which involved transferring tothe Assembly the delegated Ministerialpowers previously held by the Secretaryof State for Wales, and the precisemeans by which this was done, wasinfluenced by timing and pragmaticconsiderations, which were to have far-reaching implications, as discussed inChapter 5.

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The influence of Scotland

36. In many respects, Wales has followedScotland – first, in the expansion ofexecutive devolution under theterritorial Secretary of State and,second, in the creation of an electedbody in 1999, with a similar electoralsystem. Although the Scottish Office,established in 1885, had a muchlonger history than the Welsh Office,by 1999 the two departments of statehad much in common – with theexception of policing and justicefunctions, the extent of the devolvedexecutive powers were similar andincluded almost complete discretionwithin the devolved budget.

37. But there was a separate Scottishlegal system and a tradition ofseparate Scottish legislation, withseparate processes for itsconsideration in Parliament.24 Therewas also a stronger tradition of, andgreater capacity for, separate policydevelopment, again subject to theconstraints of collective Cabinetresponsibility.

38. The sense of nationhood was alsostronger in Scotland, reflecting itslater Union with England and itsseparate institutions. The 1997devolution proposals for Scotland builton the work of a ConstitutionalConvention made up ofrepresentatives of civic society,including the Labour and LiberalDemocrat parties in Scotland, whichadvocated a Parliament for Scotlandwith law-making and tax-varyingpowers.

39. All these factors have been seen ascontributing to the outcome of anasymmetrical model of devolution inthe UK, driven by the momentum forconstitutional reform in Scotland butleading to a more limited model forWales. Devolution in Northern Irelandhas a different structure reflecting itsdifferent circumstances andconstitutional history.25

40. Lord Morgan’s evidence suggested thatthe asymmetry in 1999 did reflectdifferences in history and nationalidentity. But he questioned whetherasymmetry would survive the pressuresand expectations of the future:

Broadly speaking, Wales has not had asense of citizenship, unlike Scotlandwhich has had its own legal and otherinstitutions; Wales has not. Even asrecently as the 1990s Scotland had aConstitutional Convention and Walesdid not. So of course the settlementreflected this.

I think the Welsh Office achieved themost enormous amount particularlyunder the regime of Mrs Thatcher andMr Major when the politicaldiscrepancies between the Wales andthe UK Government became profound,and other questions aboutaccountability were asked.

Now they are being asked again…about the present settlement.Asymmetry was essential at thebeginning. But it is not a finalsettlement at all and it creates veryreal problems.26



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41. Professor Rawlings emphasisedWales’s historic and geographicrelationship with England as a factor inthis asymmetry:

…In the case of the four countries ofthe Union ‘one size does not fit all’ forso many reasons….the uniquelypowerful geo-political concept of‘England and Wales’, famouslyexpressed in, but not confined to, theoverarching unity of the English andWelsh legal system, is not about to gogently into the night.27

Devolution in other countries

42. Comparisons with other countries arecomplex and we are particularlyindebted to Professor Charlie Jeffery,Director of the ESRC DevolutionProgramme, Institute of GermanStudies at Birmingham University,Professor Martin Laffin of theUniversity of Durham and ProfessorDrew Scott of the University ofEdinburgh, for providing a comparativeoverview based on their research.

43. Professor Jeffery pointed to thelimitations of internationalcomparisons:

Comparisons can only be made with ahealth warning: it is rarely possiblesimply to transfer institutionalarrangements or practices from oneplace to another. Political institutionsdevelop in a particular social andhistorical context, and reflect itsidiosyncrasies. Cut loose from theirfounding idiosyncrasies, politicalinstitutions rarely work well.28

44. He did see value, however, incomparing the National Assembly withmodels adopted in other countries, inorder to help evaluate the presentarrangements in Wales and identify theways they could develop in future. Hisevidence reviewed experience in a mixof countries with long traditions offederal government (Australia, Canadaand Germany) and formerly unitarystates which have more recentlyembarked on decentralisation (Spainand Belgium). The key messages fromProfessor Jeffery’s evidence are asfollows.

Devolved government in Wales has morelimited policy autonomy than theregions in federal and regionalisedstates

45. Each of the regional tiers ofgovernment examined has significantexclusive (or primary) legislativepowers, typically including education,health, economic development and, insome cases, policing. But thesepowers are often subject to constraintswhich limit regional legislativeautonomy. For example, in some states‘framework’ arrangements apply sothat, in some fields of policy, regionsflesh out legislative frameworks laiddown by the centre. In some respects,such framework-filling powers aresimilar to those of the Assembly oversecondary legislation.

46. In all the countries considered, thereare mechanisms – financial andadministrative – which link regionaland central governments, constrain theautonomy of regions and give thecentre the capacity to steer regional

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policies. Thus, although Wales hasless policy autonomy than the otherregions/states surveyed, the latter arealso subject to constraints and operatewithin complex governancearrangements with the central andlocal tiers of government in theircountries.

Devolved government in Wales hasgreater freedom in its spendingallocation decisions than many otherregional tiers, but has a moreconstrained overall budget

47. Each of the regions or states studiedhas elements of fiscal autonomy (theright to define tax bases or tax rates)and financial autonomy (the right tospend revenues as the regions see fit)but all are dependent on the centre formuch of their income. This centralfunding is often conditional – tied toparticular activities – this reducesregional autonomy and allows thecentre to shape regional policies.

48. Having compared Wales with thecountries mentioned above, ProfessorJeffery concluded,

In all cases, regions are dependent forsome of their income on centraltransfers; where these are tied toparticular activities, regional autonomyis reduced and central objectivesshape regional policies … Few regionshave as little fiscal autonomy29 asWales, but few have as much financialautonomy…. ‘Barnett’ gives flexibilityin the achievement of objectivesdefined in Wales as long as the size ofthe block is big enough.…30

49. Other experts make the same pointabout the funding system for thedevolved administrations in the UK:they 'have limited control over totalbudget size, but have extensivediscretion over expenditurecomposition'.31

50. Although these states and regions dohave the power to raise revenues, theydo not necessarily have the power tospend them as they choose. Forexample, in Germany, there is region-to-region equalisation designed tocompensate regions with low tax-raising capacity. In other cases, thefederal, or central, level operatesequalisation mechanisms designed totake account of differential needs andmake possible similar levels of publicservice in each region (Australia andCanada). Devolved government inWales has considerably more financialfreedom than most of thestates/regions surveyed, although itcannot vary its overall budget. Regionsdo not always choose to use thepowers they have to raise additionalrevenue (Chapter 10).

Devolution elsewhere in Europe hasshown a tendency to greaterdecentralisation of powers over time;initial devolution reforms have been thestart of a process rather than itsconclusion

51. A wider theme in European countrieswhich have established regionalgovernment is that there has typicallybeen a repeated process ofrenegotiation of the constitutional rolesof regions, after the initial act ofdevolution. Both France and Italy are



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currently engaged in intense reformdiscussions on the role of theirrespective regions, Belgium hasundergone a series of 'state reforms'which have steadily widened the scopeof regional power, and the Spanishregions have been in a more or lessconstant renegotiation of the scope oftheir powers since their creation in the1970s. Even in a mature federal statelike Germany, there have been growingpressures in recent years for astrengthening of regional powers.

52. Professor Jeffery’s evidence discussedin particular Spain and Germany,which are of interest because Spain’sasymmetrical model of devolution isoften compared with the UK andbecause of Germany’s long history ofstrong regional government.

Spain

53. The Spanish Constitution specifies adivision of powers between thosewhich are exclusive to the centralgovernment, those exclusive to theAutonomous Communities (ACs), andthose to be negotiated between thecentral and autonomous governments.

54. Each AC has its own statute ofautonomy outlining the specific powersit controls. The regional parliamentexercises devolved legislative powers inthe fields defined by its statute ofautonomy and exercises generalauthority within the region.

55. There has been considerable variationin the powers devolved to each region,reflecting both history and identity as

well as variations in size andprosperity. The Constitution providestwo routes for autonomy. The firstallows the 'historic communities'(Catalonia, the Basque Country andGalicia) to follow a ‘fast route’ and aimfor a higher degree of competence.The second route is followed by theother fourteen ACs apart fromAndalucia, which campaigned througha referendum to follow part of the 'fastroute'. The process is overseen by aConstitutional Tribunal which can passjudgement on any disagreements (ofwhich there are many) between theACs and the central government.

56. As a result of the periodic negotiationof the statutes of autonomy, Spain hasdeveloped a growing system of inter-governmental co-ordination, withcommittees for each major policysector, in order to build co-operationand contain disagreement. Theasymmetry in powers was wide overthe first twenty years or so of Spanishdecentralisation, with topics subject todifferent legislative rules in differentparts of the country. In more recentyears there has been a convergence ofregional powers across the country,with some important exceptions in the‘historic nationalities’ like Cataloniaand the Basque Country.

57. The second chamber in the Spanishparliament, the Senate is elected bythe ACs and by the 'provinces'- an oldadministrative division which isanswerable to the central government.The ACs have been campaigning foryears to reform the Senate into achamber of representation for the ACs.

16

58. The Spanish regions receive a share ofincome tax collected in their regionand have varying competence to raisetheir own taxes in defined areas.32

However, the Constitution requires thatthe financial autonomy of thecommunities must be exercised in co-ordination with the policies of centralgovernment. Overall, around two thirdsof regional resources come fromcentral government transfers – much ofthis is earmarked for provision ofhealth care and social securityservices. Regions have the power toborrow to fund services and capitalinvestment – this power has recentlybeen restricted by the centralgovernment in order to comply withEU fiscal targets.

59. In spite of their legislative and fiscalpowers, the Spanish regions have noconstitutionally guaranteed role ingovernance at the EU level. Someregions, like Catalonia, play aprominent role in the Committee of theRegions, and maintain a high profile inBrussels, but no Spanish region hasbeen allowed to contribute to theMember State delegation in the waythat Ministers from devolved countrieshave done in the UK.

Germany

60. The German constitution issymmetrical with no region-to-regionvariation in powers, and over timethere has been a long-term, gradualmigration of important legislativepowers to the central, federal level.The regions, or Länder, arecompensated for this by being fullyinvolved in passing legislation throughthe second chamber of the federal

parliament – over half of all federallegislation requires the consent of theregions in the upper house. Theoutcome is a highly integrated andnon-transparent form of politics basedon inter-governmental bargaining andfocused on generating standard policyoutcomes which allow little territorialpolicy variation.

61. The German Länder have only limitedpowers to raise and spend their ownrevenues: the constitution requires thattax revenues should be shared outbetween central and regionalgovernment, and then also betweenfinancially strong and weak regions –this is ensured by the distribution oftax revenues, transfers between theLänder and supplementary allocationsby the federal government. The systemis under growing pressure fromwealthier regions keen to assume morepolicy autonomy and to retain more oftheir own funds to invest in regionspecific policies. A Federalism ReformCommission established in November2003 is currently exploringpossibilities for a constitutional reformto decentralise additional legislativepowers to the regions.

Accountability in other federal systems

62. Professor Laffin’s evidence consideredissues of accountability from aninternational perspective with aparticular focus on federal countriessuch as Australia, Canada and the US.He warned against an over simplifiedview of accountability which assumesthat one single government body canbe uniquely responsible andaccountable for a particular policyarea. The reality in most countries is a



17



more diffuse model, where differenttiers of government shareresponsibility. This is true even infederal countries with a constitutionalseparation of powers between the stateand federal levels.

63. For example, in Australia,responsibility for education is formallywith the states, but in practice thefederal government is a major playerbecause of the strategic importance ofthe subject. The general picture is oneof federal government becomingincreasingly involved, through fundingor other levers, in state responsibilitiesin ways which were not foreseen whenthe constitutions were drawn up:

For the most part the founding fathersnever foresaw the massive expansionof the welfare state….In most federalsystems, particularly Australia and theUS, and I believe the Canadiansystem too, in practice almost allspheres of activity that the states areinvolved in involve a great deal ofoverlapping and very complex lines ofresponsibility.33

64. The expansion of social policy, andaspirations to national standards,creates pressure for greater uniformityin some federal systems whichcontrasts with the move towardsgreater diversity in unitary stateswhere central government has beendevolved:

The themes in those countries [USand Australia] in the post war periodhave been, broadly speaking, ageneral trend towards greater

centralisation whereas… we areseeing this country in a sense going ina different direction.34

65. Professor Laffin suggested that, whileaccountability shared between differentlayers of government are seen by someas a weakness, there could beadvantages in providing a system ofchecks and balances which give thecitizen more forms of access orredress:

If you have got overlapping powers,that might actually be an advantagebecause citizens can take upproblems, not just at the state orfederal level, but they can play themoff against each other to some extent,you have got two points of access, twocentres of powers competing againsteach other.35

Thus in a federal system, especiallywhere powers are concurrent, the lossof accountability in the narrow(responsible government) sense iscounterbalanced by the gain in termsof accountability in a wider (checks-and-balances) sense. The zero summetaphor that what one level ofgovernment gains, the other loses, canbe misleading.36

66. In both the US and Australia, therehave been numerous efforts to definefrom first principles the roles andresponsibilities of the centre in greaterdetail vis-a-vis the states, provinces orregions. However, these efforts haveproved difficult to agree andimplement, as relationships are

18

influenced by pragmatic and politicalconsiderations and shifts in thebalance of power over time, and so arenot susceptible to simple, once and forall codification. Nevertheless, theformal institutional framework withinwhich negotiations take place could bevital in a situation of conflict.

The EU and devolution

67. This was set in context by ProfessorScott who provided an overview of thedebate about the role of regions in thegovernance of Europe.

68. In spite of expectations, efforts to putenhancing the role of the regions onthe agenda for the Future of EuropeConvention in 2004 had failed – thefocus will remain on subsidiarity inrelation to the EU-Member Statedivision of competences. Thus it ismost realistic to view the regions as aninfluential pressure group – at the EUlevel through the groupings ofconstitutional and legislative regions,and at the Member State level throughtheir influence on the nationalnegotiating line.

69. Professor Scott suggests that there isno clear evidence to help evaluatewhether the absence of primarylegislative powers in itself was a majorfactor influencing the ability of Walesto pursue its interests at either level.Within the UK it was always an uphillstruggle for the devolved countries toseek to influence the national line.

70. In relation to the EU, Wales is inexactly the same constitutional positionas Scotland. On balance, Scotland

seemed to have a higher profile butthis was possibly due to having morestaff to attend meetings, as well as along history of engagement with theEU, and a strong presence in Brussels,particularly on agriculture and fisheriesissues. The existence of theParliament, and its scrutiny of the wayScottish interests had played out in EUnegotiations, might strengthen thehand of the Scottish Executive but itwas difficult to say whether this wasdue to the formal powers or politicalpressure.

71. Within the wider groupings of EUregions, the fact that Wales hadexecutive rather than legislativedevolution did not seem to ProfessorScott to be a major issue.37 Since theinception of the Assembly, Wales wasincreasingly adopting a higher profilein Europe and benefiting fromparticipating in European networks.The formal powers could become moreimportant if there were moves to giveregions a role in European governance.

72. The proposed Constitution for Europepresented to the EU Heads of Stateand Government in July 2003contains two Protocols that have adirect bearing on the position of sub-state Parliaments across the EU:

■ the Protocol on the Role of NationalParliaments in the European Unionprovides for national parliaments to beconsulted on EU legislative proposalsregarding their compliance with theprinciple of subsidiarity;

■ the Protocol on the Application of thePrinciples on Subsidiarity andProportionality provides for national



19



Notes1John Davies,‘A History of Wales’, (London, Penguin Books, 1994) 233 – 236. S.T. Bindoff, The History ofParliament 1509 – 1558, (London, HMSO, 1981) 264–266.

2Kenneth Morgan, ‘Welsh devolution: the past and the future’, in Bridget Taylor and Katarina Thomson (eds),Scotland and Wales: Nations Again?’ (Cardiff, University of Wales Press 1999), 204.

3Ibid. 205.

4John Davies, op. cit. 663, 664.

parliaments to extend this consultativeexercise to include regionalparliaments with legislative powers,where appropriate.38

73. Professor Scott’s view is that,assuming these Protocols are includedin a future Treaty revision, they doprovide a potentially powerfulmechanism for the UK’s devolvedParliament and Assemblies toinfluence UK policy with respect to theEU. However, to be effective in thecontext of the arrangements forconsultation between UK Governmentand the devolved administrations thatalready operate, he suggests that thiswould need enhanced provision for‘regional’ parliamentary scrutiny of theposition adopted by the devolvedadministrations, and conveyedsubsequently to the UK Government.

Findings

Our findings from the evidence in thischapter are as follows:

■ since the early beginnings ofadministrative devolution there hasbeen a growing momentum toincrease its range and impact;

■ the momentum has come from withinthe devolved institutions, aspoliticians sought to use the toolsavailable to them, and from Welsh

society, as the expectations ofdistinctive policies grew;

■ the process up until 1999 wasintermittent and piecemeal, due to areluctant Whitehall and limitedcapacity, but the direction of travelwas consistent;

■ the formal devolved powers werelargely unchanged in 1999 but thecreation of the elected Assemblyadded a new democratic dynamic totheir implementation;

■ from the outset, the administrativecost has been recognised andweighed against the benefits of localdecision-making;

■ although the momentum fordevolution is strong, the practicallogic of the England and Wales legalrelationship established in the 16thcentury remains powerful;

■ international comparisons suggestthat no system of governanceprovides for simple lines ofaccountability;

■ the momentum in other countries isfor greater regional freedom indecision making – but there are alsostrong forces for greater convergencein social provision, and in economicand fiscal policies, within and acrossnational boundaries.

20



5Sir Lawrence Helsby, Head of the Home Civil Service, Minute to the Prime Minister, Rt Hon Harold Wilson MP, 1July 1966. (London, Public Record Office, PREM 13/3236).

6E Rowlands MP, ‘The Politics of Regional Administration: the establishment of the Welsh Office’, PublicAdministration, Autumn 1972, 333-351.

7Adapted from Table 2.1 in Russell Deacon, ‘The Governance of Wales, the Welsh Office and the Policy Process’,1964-99, (Welsh Academic Press, 2002) 37-38.

8J. Graham Jones, ‘Socialism, Devolution and a Secretary of State for Wales, 1940 – 1964, Transactions of theHonourable Society of Cymmrodorion (London 1989).

9Russell Deacon op. cit., Chapter 9.

10Chapter 10.

11John Davies, op. cit,, 666.

12James Mitchell, Governing Scotland: The Invention of Administrative Devolution, (London, Palgrave Macmillan2003), 259.

13Kenneth Morgan, op. cit., 209, 210.

14Kenneth Morgan, op. cit., 214, 215.

15Vernon Bogdanor, Devolution in the United Kingdom, (Oxford: Oxford University Press, 1999), 170-177, 254-255.

16Royal Commission on the Constitution, 1969-1973, Volume 1, Report Cmnd. 5460 (London, HMSO, 1973),336 –337 and 484-486.

17Bogdanor, op. cit., 255.

18The result of the 1979 referendum in Wales was: 20.2% in favour, 79.8% against, with a turnout of 58.8%. In Scotland: 51.6% voted in favour, 48.5% against, turnout 62.9%. Bogdanor, op. cit. 190.

19Geoffrey Evans and Dafydd Trystan, ‘Why was 1997 different?’, in Scotland and Wales: Nations Again?, Bridget Taylor and KaterinaThomson (eds.) (University of Wales Press, 1999). McAllister, L., (1998), ‘The Welsh Devolution Referendum: Definitely, Maybe?’, Parliamentary Affairs, vol. 51, no. 2, 149-165.

20The result of the 1997 referendum in Wales was: 50.1% in favour, 49.9% against, turnout just over 50%. In Scotland, with a turnout of 60.2%, 74.3% voted in favour of a Parliament and 63.5% in favour of tax-varying powers, 25.7 voted against a Parliament and 36% against tax raising powers.(Bogdanor, op. cit., 199).

21Chapter 12.

22Welsh Office, A Voice for Wales, Cm 3718 (London: The Stationery Office, July 1997), 7.

23Oral evidence of The Rt Hon Ron Davies AM, 26 September 2002.

24Bogdanor, op. cit., 115.

25Chapter 13.

26Oral evidence of Lord Morgan of Aberdyfi, 26 July 2003.

27Written evidence of Professor Rick Rawlings, May 2003.

28Adrian Reilly and Charlie Jeffery, ‘Powers and electoral arrangements: international comparisons’, written evidence to the Richard Commission, July 2003.

29Fiscal autonomy is the right to define tax bases or, in a more limited form, to define tax rates, financial autonomyis the right to spend revenues as the regions see fit.

30Adrian Reilly and Charlie Jeffery, op cit.

31David Heald and Alasdair McLeod, 'Beyond Barnett? Financing devolution.', in Devolution in Practice:PublicPolicy Differences within the UK' John Adams and Peter Robinson (eds), (London: IPPR, 2002).

21



32such as luxury and heritage goods, inheritance taxes and gambling taxes.

33Oral evidence of Professor Martin Laffin, 25 October 2002.

34Ibid.

35Ibid.

36‘Future Options: an assessment of the Powers of the National Assembly for Wales’, Martin Laffin, Alys Thomas,Ian Thomas, (Glamorgan Policy Centre, March 2003).

37The Plaid Cymru MEPs who gave evidence took a different view (Chapter 5).

38Draft Treaty Establishing a Constitution for Europe, produced by the European Convention and submitted to theEuropean Council Meeting in Thessaloniki, 20 June, 2003.

22



23

chapter 3: the views of the peopleof Wales


2. The evidence includes:

■ views put to us directly in 9 publicmeetings held between January andAugust 2003 in: Swansea, Llandudno,Haverfordwest, Llandrindod Wells,Newport, Merthyr Tydfil, Cardiff, theRoyal Welsh Agricultural Show,Llanelwedd and at the NationalEisteddfod in Meifod;

■ young people’s views, put to usdirectly in meetings with young peopleand representative organisations;

■ public opinion survey research;

■ responses from members of the publicto our consultation documents, issuedin November 2002 and February2003, the first dealing with thepowers and the second with theelectoral arrangements of theAssembly.

3. The public opinion survey findings arevital because they provide scientificevidence of public opinion ondevolution and how it has changedsince 1999. But the public meetingsgave us a chance to explore theseissues in more detail with interestedmembers of the public and to hearwhy people feel these issues matter.The views expressed provide a vividintroduction to the questions discussedin this report – for this reason we haveincluded them at the beginning of thischapter.

The public meetings

4. The public meetings are not, of course,a representative sample of people inWales – those who chose to come toour meetings, or respond to ourconsultation, were people particularlyinterested in the Assembly and itsfuture. It is not surprising that theyexpressed their views strongly.

5. The following is a summary of thepoints made to us.

The benefits of devolution

Identity and nationhood

This chapter reviews the evidence on how the people of Wales see theAssembly and its future.

The views of the people of Wales

The National Assembly has given Walesits own identity in Britain.

Written opinionPublic meeting, Llandudno

“

”The National Assembly has acquitteditself well in its first four-year period. ….It has helped to raise the profile ofWales as a nation, and emphasises thecontribution that Wales can continue tomake to the United Kingdom.

Written opinionPublic meeting, Merthyr Tydfil

“

”

24

Openness and accessibility

Working for Wales and bringing decisionscloser to people

Could do better?

6. As well as identifying the positivechanges brought about by theAssembly, we also received someconsistent messages expressingdisappointment, including a sense thatit was over-focused on South EastWales.

7. Suggestions for overcoming thisincluded the Assembly establishing apresence outside of Cardiff, by openingoffices across Wales:

chapter 3: the views of the people ofWales


I would like to praise what the Assemblyhas done by the effect on me as anindividual and in my work – I feel thatthings are much more effective than theywere previously with the Welsh Office –the Assembly is much more willing tolisten to opinion and to influence practicalthings.

SpeakerPublic meeting, Llandudno

When devolution was mooted I washighly sceptical and voted against it.Now that we are four years down theroad, I would vote for the Assembly. I have witnessed a transparency andavailability of AMs and Ministers to thegeneral public, the likes of myself, whichI have not seen anywhere.

SpeakerPublic meeting, Haverfordwest

“

”

People in North Wales are saying they arenot going to vote because it’s donenothing for North Wales. This is a majorproblem because the Assembly has beenput in there to work for the whole ofWales – we talk about North South dividein Great Britain but believe me the NorthSouth Divide seems to be a line North ofCardiff.


“

”Devolution is up and running and workingin our favour. As a community we havejust fought a battle to save the children’spaediatric Centre in Morriston…Wemanaged to convince our WelshGovernment…..You can imagine theimpact of the voice of South West Waleson the British Government at such adistance away. That’s devolution workingat its best.

SpeakerPublic meeting, Swansea

“

”

The greatest attraction of the Assemblyto me personally is it brings governmentcloser in a real sense to people wherethey live and work.


“

”

There should be a North WalesAssembly Building in the area, the sitechosen by the people of North Walesand not imposed by the South.


“

”

25



or by the whole Assembly meetingoutside Cardiff.

Views on the way forward

8. The most frequently cited cause fordisappointment was the inability of theAssembly to fulfil its potential due toits limited powers.

Why don’t they come up here and meetoccasionally…perhaps twice a yearwould make a difference.


“

”

The National Assembly as it ispresently constituted has a great dealof responsibility but not enoughauthority or power. There seems to bea mismatch between expectations ofwhat it’s able to do and what the UKParliament has empowered it to do.

SpeakerPublic meeting, Cardiff

We need to ensure that this body thatwe have voted into being isempowered to carry out the task forwhich it was set up. It has been setup to represent the people of Wales,provide us with a local voice, to allowus in Wales to have a say in thematters that affect us and not to berun at arm’s length from Westminster.

SpeakerPublic meeting, Newport

“

”

Yes, we have an Assembly - that isgood but it does need improvementsand it does need a lot more powers toeffect real change.


I started off with great hopes andambitions for the Assembly. I still havethose ambitions but they have notbeen realised up to now…We do nothave an Assembly that can actuallymake a difference.


You can’t have half a devolution – youcan’t just have executive devolution,it’s a mistaken concept. It doesn’twork.

SpeakerPublic meeting, Merthyr Tydfil

The Welsh Assembly should haveincreased powers as a matter ofurgency. The low turnout at the 2003election is an indication of people’sdisillusionment and misconceivedunderstanding of the Assembly’spowers.... We were very despondent tolearn that they had even less powersthan the Scottish Parliament.

Written opinionPublic meeting, Cardiff

“

”

26

9. Others commented that within theexisting powers the Assembly hadshown a capacity to innovateeffectively.

10. Among those who felt that theAssembly’s current powers areinadequate, opinion varied on thescale and extent of the changesneeded to enable the Assembly tooperate effectively.

11. Some people thought that the prioritywas to extend the Assembly’s power toact in areas which were already mainlyor partly devolved. Examples quotedincluded transport, agriculture andfisheries, education and planning.

12. Others saw a need to extend theAssembly’s executive powers into newareas including the police andemergency services.



I can see that, within the limits imposedby the devolution legislation, innovativeideas such as the reconstruction of thehealth service in Wales, the easing ofteacher’s work lives and thebaccalaureate experiments, there is a realfocus on people’s needs for the future.

Written opinionPublic meeting, Llandrindod Wells

“

”

When will all planning and monitoring ofPolice and Emergency service provisionsbe fully devolved to Wales? …..If we hadfully devolved powers we would have hadthe opportunity to have looked at not onlya safer but a more efficient and costeffective system.

Written opinionPublic meeting, Swansea

“

”

Some of the rounding up … at a veryearly date ..by a transfer of functionsorder [should] include: Electricity Actpowers, …powers under the HarboursActs,… powers over the WalesTransport Office,… powers overbuilding regulation matters… animalhealth powers.


The Assembly has no control, and verylittle influence, over rail serviceprovision in Wales, either in terms ofservice specification or funding. Thesepowers remain with the Strategic RailAuthority (SRA) in London……Thismeans the Assembly is unable todeliver a fully integrated transportsystem.

Written response to consultation

“

”

I think you have got to cut down thesejagged edges so people know who isresponsible for what. We have to lookin terms of the health service andeducation.

SpeakerPublic meeting, Merthyr

“

”

27



A law-making Assembly?

13. Many of those who expressed a desireto increase the Assembly’s powerswere not specific about their scope,but were clear that, to fulfil itspotential and work effectively, theAssembly’s powers should includeprimary legislation.

14. Some were keen for the Assembly toincrease its law-making powers butnot to take on tax-varying powers.

15. Most of those who favoured additionalpowers for the Assembly looked to theScottish model of devolution. Somepeople advocated this for symbolicreasons and a sense of nationhoodand pride.

Since its inception in 1999 the NationalAssembly has failed to capture the publicimagination…What the public sees is anelected body struggling to deliversecondary legislative policies. If theAssembly is to deliver a meaningful andproductive government it needs the toolsto do the job. The full provision ofprimary legislative powers…can deliver afull and practical government for Wales.


“

”

Councils…under the encouragement ofthe National Assembly, are setting upcommunity safety partnerships in order todeal with these problems, and it seems tome that because the Assembly is incharge of local government, if it was incharge of local police we couldstrengthen these partnerships and make aconsiderable difference to the residents ofour areas.

SpeakerPublic meeting, Merthyr

“

”

The Assembly does not have adequatepowers to fully develop devolvedGovernment in Wales. In particularprimary legislative powers are required inthe areas of education and health policy,if truly Welsh solutions are to be found....However at this stage I would not supporttax-varying powers as I believe there isstill a public credibility gap for theAssembly to bridge and it is too early toconsider tax-varying powers.

Written opinion Public meeting, Swansea

“

”

They made a mistake in the very earlystages when they drew two differenttypes of devolution for Scotland andWales….We will have a greater sense ofpride in ourselves and self belief if wedon’t have to ask for things that we cando for ourselves. The nation will beworking together for the benefit of thewhole of Wales, and I think it’s then thatpeople really will have faith and belief intheir Assembly.


“

”

28

16. For others, the Scottish model wasfavoured as the means to improveeffectiveness and stability.

Too early for change?

17. Some contributors argued that it is tooearly to consider additional powers forthe Assembly, and that the currentarrangements should continue.



Why are we being seen as second classin the devolution model? Why is it thatScotland have these powers and we donot? We want to be able to take pride inthe body that represents us and not see itas a second choice institution that hasbeen installed rather than one that weactually want.


“

”

The constitutional arrangementscontained in the Act were intolerablycomplicated….this has bedevilled quite alot of the doings of the Assembly. Weshould now look to a constitutionalsolution which would bring consistency inthe relationship between Westminster,Scotland, Northern Ireland and Wales,probably on the Scottish model becauseit has clearer lines of definition, accordsclearer rights and would probablywithstand better any conflicts that mightarise.

SpeakerPublic meeting, National Eisteddfod

“

”

I spent two years in Scotland after theestablishment of the Parliament, and I cansee the difference in the quality of debatewhich takes place in the ScottishParliament and that which takes place inthe Assembly. The policy community hasgrown around the Parliament in Edinburghbecause of its ability to change law – thatcreates a political imperative and aprocess which I believe leads to betterpolicy making and better democracy.


With law-making and tax powers, I believe that people in Wales will takethe body more seriously, election turnoutwill be higher, decisions made quicker.


“

”

29



18. Some concern was expressed aboutthe capacity of the Assembly to handleadditional powers.

Criticism of the Assembly – opposition tofurther powers 19. Some commentators felt strongly that

the Assembly should not be givenfurther powers. Some of these werefundamentally opposed to devolutionitself.

20. Others were more concerned aboutperformance, bureaucracy and costs.

Three years in to what is only theAssembly’s first term is much too soonto make a sensible judgement as towhether it really needs them…..beforeasking for any extension…Membersshould ensure full use of the powersthey already have.


I am not yet convinced that there is aneed for greater powers. The people ofWales in 1997 voted for theestablishment of the Assembly with thepowers we have now. I’m not closingthe door permanently on increases inpower, but I don’t think the time is rightyet.


“

”

I do not think that … the currentAssembly is experienced or matureenough to deal with increasedpowers….They must first of all get onwith making a success of handlingthose issues on which they wereinitially elected.


Developing skills at policy developmentand legislative process takes time. TheAssembly needs to put effort into thiseven for its present work.


“

”

The people of Wales are overgoverned. All that is needed is onelocal and one national level ofgovernment, i.e., Westminster and theunitary authorities. The WelshAssembly is not needed and wasn’twanted by the Welsh people. It shouldbe abolished so freeing hundreds ofmillions of pounds wasted on thisextra layer of government.


“

”

I am totally against the Assembly. It isdividing the country, dividing parts ofEngland, parts of Wales, Scotland…Wehave seen enough division. We shouldall have the same rights and benefitsright throughout the country.


“

”

30

Another referendum?

21. Some people felt that there was a needfor a further referendum on anyproposed extension to the Assembly’spowers.

Structure and working arrangements ofthe National Assembly

22. Few respondents expressed a viewabout the structure of the NationalAssembly. Those that did tended tosupport reconstitution on theparliamentary model.

23. Others welcomed the less adversarialapproach of the National Assemblycompared to Westminster.



Far too much money is spent on thistalking shop. It is not achievinganything…..We should abolish theAssembly.


“

”

I feel that the result in 1997 was soclose that the Assembly does not deserveany more powers and, if more powerswere proposed, there should be anotherreferendum.

Speaker,Public meeting, Royal Welsh AgriculturalShow

There was a very narrow vote for anAssembly for Wales – an Assembly withlimited powers – at the referendum. TheNational Assembly cannot have greaterpowers by stealth. Wales cannot have aParliament through the back door.


“

”

It is important that citizens recognisehow the institutions of government workand in the UK the parliamentary systemis well understood…. It is debatablewhether the current model has produceda more consensual form of politics andthe ability to work thematically has notbeen very evident in the first term.


A point about the model ofdevolution…we need to have somethingalong the lines of the Scottish modelwhere the executive is separate fromthe Parliament itself because it seemsthat people will blame the Assembly forthe decisions of the Government. Ithink in order to have clarity in ourdemocracy we need to have aseparation of the executive and theAssembly.


“

”

31



24. The Assembly’s Committees wasdiscussed in a few meetings. Somefelt the role played by members of theGoverning party should be changed.

The relationship between the Assemblyin Cardiff and the Parliament atWestminster

Who’s responsible for what?

25. Many people expressed concern aboutthe complexity of the presentsettlement and the confusion over theextent of the powers transferred to theAssembly.

26. The most frequently cited example wasthe foot and mouth outbreak of 2001.

Ministers should not be members ofCommittees. They should be able toappear before the Committees as they doin the Select Committees in Parliament.


The Committees don’t work as well asthey should – particularly the committeeschaired by the members of the governingparty…..A much better change would beto suggest that the Chair has to comefrom the non governmental partiesbecause there would be much moreopportunity to discuss and scrutinise themore contentious issues.


“

”

I would hope that the Assembly wouldnot have to become more like theParliamentary model with its yah boopolitics and confrontational chamberlayout. We want a government whichlooks and behaves as if it is reallyworking together for the benefit of allpeople in Wales.


“

”One of the major weaknesses of thecurrent system is that it is complex.There are about 300 laws that have beentransferred and thousands of discretionsby various departments in Cardiff – it’slittle wonder that on occasion we don’tknow where they stand in the Assembly.


“

”

The weaknesses of the currentarrangements became obvious duringthe foot and mouth crisis at the start of2001 when the Assembly seemed tobe unsure or unwilling to use itspowers, or possibly they were beingstopped from doing so by Ministers inWestminster, we are not quite sure, butthe result was confusion, delays andfurther losses to farmers in Wales.


“

”

32

Long term stability?

27. Others thought that the settlement wasunstable because of the tensions thatwould arise if different political partieswere in power in Cardiff andWestminster.

Shared law making

28. Others focused on the impact ofshared law making on the Assembly’seffectiveness.

29. A few respondents identifiedmechanisms for improving currentarrangements.



We saw the dramatic problems thatarose in Wales as a result of foot andmouth where we were unable to makeany decision without reference toWestminster.

SpeakerPublic meeting, Royal Welsh AgriculturalShow

“

”

We will reach the day when we havedifferent political parties in variouspositions in the country. What would bethe clashes that might arise as aconsequence of that – that would beconstitutional crunch time.


One can only imagine how Wales might suffer if and when differentparties are in power on either side ofthe border – the WestminsterGovernment in that case would have avested interest in frustrating and stallingthe decisions of the AssemblyGovernment.


“

”

Possibly your report could suggest aninterim improvement. This could be inthe form of a Concordat between theAssembly, the Wales Office andParliament to guarantee the AssemblyParliamentary time for two Bills a year,as well as Welsh clauses in generalBills where appropriate. This could belinked to procedures to ensure theWelsh MPs have a scrutiny role therebyhelping involve them in the Assembly’sactivities and hopefully win theirsupport and trust.


“

”

Assembly Members need to have clearpowers and to know that they candevelop and implement policies without depending on the goodwill ofthe government in London, with limited Parliamentary time and perhaps little interest or understandingof Wales.


There is delay in the actions that canbe taken because we need the stamp ofthe government in London on things.This causes delay in our priorities – wehave no influence on the party inLondon which governs the legislativeprogramme.


“

”

33



The role of elected representatives

30. Many people felt that therepresentational role of MPs and AMs(and to some extent local councillors)was unclear, leaving constituentsconfused about where to go for advice.

31. Some commented on the future role ofWelsh MPs, particularly if theAssembly acquired further powers.

The role of the UK government and theSecretary of State for Wales

32. The role of the Secretary of State wasraised following the machinery ofgovernment changes announced inJune 2003.

33. In general, people felt the role of theSecretary of State and Welsh MPswould continue to be important,whether or not the Assembly obtainedfurther powers.

People are often confused about which ofthe three [MP, AM, Councillor] theyshould use for their particular problemand as an elected member it is alwaysdifficult to turn down a plea from amember of your electorate. There isduplication, or triplication in those areas.Do we need as many MPs?


“

”

Absolute devolution would make itdifficult to justify the role of Welsh MPs.Reality suggests that such a position isunlikely and that primary law making, atleast initially would be limited. As suchWelsh MPs would continue to have a rolein representing the interests of thePrincipality in all areas where sovereigntyof decision making remains inWestminster.


“

”

I think we need to lower the number ofMPs who are elected to Westminsterand then that can pay the cost of anincreased membership of the NationalAssembly in Cardiff.


“

”

It seems that the Secretary of State willnow be part time, which in the light ofpresent arrangements for the governanceof Wales does not seem very satisfactory.Of course, if the Welsh Assembly shouldaspire in time to be a full blownParliament then the role of the Secretaryof State could indeed be diminishedwithout detriment.


“

”

34

The size of the Assembly

34. Among those who favoured greaterpowers for the Assembly, many feltthat it would be necessary to increasethe size of the Assembly in order tocope with the additional workload.

35. Others argued that the Membership ofthe Assembly was too small even tocope with its existing powers.

36. Others put the opposite view, that thecurrent size of the Assembly should besufficient to enable it to operateeffectively.



This would depend on the extent ofprimary law making powers. If defence,social security matters etc., are still tobe dictated by Westminster we wouldstill need to have strong representationby Welsh MPs and by the Secretary ofState.


The Wales Office would remain as aconduit between the Assembly andWestminster and would still be neededfor the areas of responsibility retainedby London.


“

”

I certainly think that 60 isinsufficient…..It would be feasible toincrease the numbers to 90 and I thinkthat is essential for any efficientgovernment body even with what theyhave to do now. If they have legislationas well it will certainly be necessary, nodoubt at all.


“

”

60 people are more than adequate,with the existing powers and remit, toachieve the visions set by the NationalAssembly. ..In the current climate itwould be counter productive to seek toincrease the number of AMs.


The number of members..should onlyincrease if the Assembly received extrapowers…..The small size of theAssembly has its advantage..everymember needs to know quite a lot ofwhat is going on in Wales.


“

”

The very damaging and inevitableconsequences of such a small number ofWelsh AMs have been: an impossiblysmall Cabinet, Ministers greatlyoverburdened and…committees, eachwith a membership much too small togive proper and close scrutiny…annualspend, soon to be £12 billion, should beeffectively tested, scrutinised and closelymonitored. How can this be properlydone by 60 AMs?


“

”

35



Effectiveness?

37. Some commentators identified areasfor possible change in order to improveeffectiveness without creating moremembers.

38. A few respondents felt that 60Members was too many.

The Assembly’s electoral system

39. In most of the public meetings, thepowers of the Assembly promptedmuch more comment than theelectoral arrangements. The meeting inMerthyr Tydfil was the exception –held just after the Assembly election inMay, and after a great deal of mediacoverage had been given to theAdditional Member System (AMS) ofelection.

40. Written responses also tended tocomment more on the Assembly’spowers. Those respondents that didfocus on the electoral arrangementsput forward a wide range of viewsboth for and against the current votingsystem.

The present system – does the electorateunderstand it?

41. Some people told us that the currentsystem was not understood by voters,and that this had contributed to lowvoter turnout at the elections.

It would seem difficult to justify anincrease in the number of AMs,particularly given the recent publicdebate about how many days theyactually spend in the Assembly……. Isthere justification in the modern age forthe lengthy periods of recess that theAssembly has?


Increasing AM numbers is absolutelyunnecessary. What we need to do is toget the Assembly working better than itcurrently does……The subjects whichare currently debated in the Assemblyare often quite anodyne andunnecessary.


“

”In preparation for this meeting I held aconsultative meeting with 160 seniorcitizens and I found they had not theslightest idea of what the list memberwas. I think this is one of the reasons whywe have got a low voting turnout. Peoplesimply do not understand, it does not workclearly and obviously so that they canunderstand what their vote does.


“

”

I am not convinced that there is enoughbusiness to fully occupy the time of theexisting members. I submit that themembers…be reduced to 40.


“

”

36

The present system – how representativeis it?

42. Opinion on the representativeness ofthe current system was mixed, withstrong views expressed by those infavour of proportional representation aswell as those against.

43. Critics of the present system focusedon aspects of the constituency andregional member system.



I welcome the fact that it is moredifficult for one party to dominate andthat there is a higher potential forcoalition government which must ofnecessity widen governmentrepresentation.


The system we have for the NationalAssembly, 40 FPTP, 20 list candidatesis an excellent system. Please keep it.


I think the mix that we have got is agood one in that it does make surethat minorities have an opportunity tobe represented.


“

”

The current method also allowscandidates to have two bites of thecherry, by appearing in the ballot for aconstituency first past the post election,and then if rejected by those voters,appearing on a party’s regional list fortop up seats.


PR in its present form is undemocratic,when 20 AMs are elected to the WelshAssembly without anyone personallyvoting for them. They get rejected byvoters in the constituency then getelected by the back door by theregional top-up list.


The allocation of regional seats isdisproportionate to the votes cast. Wesee a party who receives the most inthe regional vote is left empty-handed,whilst a party that is rejected under theFirst Past the Post system is rewardedwith the greatest number of theregional allocation. This system cannotbe a fair and equitable system.


“

”

37



44. Mixed views were expressed aboutproportionality and its perceived linkwith coalition government.

45. We received few opinions on thequestion of gender and ethnic balance,and these were mixed.

Constituency and regional AMs - twotypes of representation?

46. We were told on many occasions thatthere was seen to be a difference inrepresentation and workload betweenconstituency and regional AMs.

The constituency boundaries

47. Those who expressed a view werelargely in favour of retaining the linkwith the Parliamentary boundaries.

On the question of proportionalrepresentation, that would result inhorse trading and we would have someof the results we had in the previousAssembly …The smaller party is drivingthe larger one which can’t be right in ademocratic society.


One advantage of adding extra list AMswould be that in future, it would bevery unlikely that any one political partywould achieve a majority. Thosecountries with a long history of PRelections all have a political culturewhere parties are used to workingtogether within parliaments to achieveefficient, effective government.


“

”

It creates two classes of AMs….in someminds this attaches different levels oflegitimacy to different AMs. Theregional top up seats are not identifiedby the electorate in general. Thismeans local casework tends to go tothose elected on a parliamentaryconstituency basis. It also means theAMs elected on a regional basis aremore able to pick and choose whatissues to campaign on.


We have got 40 very over-workedconstituency AMs answerable to theconstituents and 20 very under-worked[regional AMs] who are not accountableor responsible to anyone.


“

”

It is very important to keep these thesame for Parliamentary and Assemblyelections. People are confused enoughas it is.


“

”

The election of 2007 must be structuredto show positive discrimination in PRseats to cater for Welsh minorities ofethnicity, disability etc.


I feel uneasy about too much impositionof characteristics of candidates. I believethat the parties are aware of theirresponsibility to look to gender andethnic balance.


“

”

38

Options for change

48. Opinion was mixed on possiblechanges to the current electoralsystem, and the suggestions putforward were not always associatedwith increasing the Assembly’s size.

Retaining the mixed system – withchanges

49. Some respondents suggested changesin the ratio of constituency to regionalmembers, or changing the boundariesof the regional constituencies.

50. A few respondents were in favour ofretaining the current list system butreplacing the regional list with anational list.

Replacing the mixed system with anotherproportional system – STV?

51. The alternative to AMS that was mostoften suggested by members of thepublic was the single transferable vote(STV) system.



On proportional representation, I am infavour of the idea but there is toomuch of it…in the Assembly we have33% through this method, we mustdecrease the number but keep thesystem.


Increase the additional members to 40- parity between the constituency AMsand the regional AMs. The regionalAMs to be elected using the currentAMS system on the former 8 Welshcounties. Someone who lived inGwynedd would feel better if they had5 AMs elected in Gwynedd.

SpeakerPublic meeting, Royal WelshAgricultural Show

“

”

AMs should be elected through oneballot, by single transferable vote. ..Thiswould give each AM the same electorallegitimacy. It would improve theprinciple of PR brought in for theAssembly elections, as it is easier tounderstand and would not be felt to beimposed by bureaucracy after theelection.


I am a 75 year old voter who hasparticipated in every election for whichI have been eligible since the age of 21and whose vote has not once, in allthose 54 years, had any bearing on theresult whatsoever. To all intents andpurposes I feel disenfranchised by thepresent system. I want to be able tomake my vote effective and can see noother way of achieving this than bymeans of a change to STV.


“

”

The problems which have been identifiedwith the AMS…could be overcome bymoving to a single, Wales-wide list for theadditional members.


“

”

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First past the post?

52. We also heard support for a moveaway from proportional representationand to First Past the Post, particularlyat our meeting in Merthyr Tydfil.

The views of young people

53. We held two sessions, one inLlandudno, with representatives ofyoung people’s forums in North Wales,and one in Cardiff, where we receivedevidence from young people andyoung people’s organisations. Ingeneral, their views on the Assemblyand its future mirrored the range ofopinions set out above. The youngpeople from North Wales had thesame concerns about the Assembly’sinterest in North Wales as we heard atour public meeting in Llandudno.

What Wales needs is an electionsystem that values every vote equallyand so obliges all political parties tocampaign with equal intensity in allconstituencies….This is my primaryargument for advocating STV.


I am firmly in favour of PR but havereservations about a list systembecause any list system keeps powerwithin the political parties. I very muchfavour systems of PR which are notbased on regional list systems. I wouldprefer to see multi memberconstituencies and the singletransferable vote.


“

”

The current AMS is totallyundemocratic…a third of the Assembly’smembers have no direct accountability tovoters…The true democratic system isfirst past the post whereby the electoratecan identify with their chosencandidate..PR undermines thedemocratic link between member and hisor her constituents…The system must bechanged.


“

”

I totally disagree with the way it is at themoment. The Assembly has notproduced the goods. That is as a resultof PR because there was no clear partythat had control there…You were heldback in lots of areas. You have to havesomeone that has the control and youhave to then have effective oppositionthat works against it. I firmly believe thatfirst past the post is the right way to go.


“

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40

Improvements brought about by theAssembly

54. The sessions demonstrated that forsome young people the Assembly hasmade a positive impact.

Knowledge and understanding of theAssembly

55. The young people felt that knowledgeand understanding of the work of theAssembly was very limited, and thatthis lack of knowledge was notexclusive to young people.

56. Communication between politiciansand young people was thought to be aproblem.

57. As a result, some young people saidthat they would not turn out to vote.

Public opinion research

58. The Commission received evidencefrom the Institute of Welsh Politics atthe University of Wales, Aberystwython the four major academic surveysconducted in recent years on thesocial and political attitudes of peoplein Wales, funded by the Economicand Social Research Council: the1997 Welsh Referendum Survey, the1999 Welsh Assembly Election Study,the 2001 Wales Life and Times Studyand the 2003 Wales Life and TimesSurvey.9 Analysis of the 2003 surveyfindings began in the autumn 2003and we are grateful to



What we feel is that what the WelshAssembly Government has achieved forWales is good, as there are moreopportunities for young people……It isdoing well as it is on things….likeestablishing the youth forums, FunkyDragon, Young Peoples Partnerships, freeprescriptions and dental checks for theunder 25s.1

Carry on the good work – carry on andjust improve.2

“

”

I don’t think many people understand alot of what is going on, or the differencebetween Cardiff and Whitehall.3

I think people in general do not knowwhat the Assembly does so I think thatwe have to balance this out so thatpeople, older people and young people,get educated.4

“

”

It would be better if politicians andyoung people communicated better witheach other and perhaps politicians wouldthen understand young people.5

We need to be heard more than we arebeing, and questions need to beanswered directly rather than justpushed to the side.6

“

”

Seems to be more young people leaningaway from voting…I am old enough tovote, I wouldn’t vote because I do notknow what is what.7

Maybe even friendly presentations whereyou can learn what the policies of thedifferent groups are …consider giving usa little bit more information that wecould understand.8

“

”

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Dr Richard Wyn Jones and RogerScully for providing an earlyindication of the findings relevant toour work.

Survey evidence: powers

59. These Surveys provide detailed andscientific evidence of public attitudesto governance in Wales and how theyhave changed since 1997. On thepowers of the Assembly we felt thattwo findings were particularly striking.

Assembly or Parliament

60. First, growth in support for aParliament in Wales has virtuallydoubled since 1997 – this is the mostfavoured option among the fourchoices offered.10 Support for anAssembly has remained broadlyconstant, as has support forindependence, and support for noelected body has almost halved.

Table 3.1: constitutional preferences (%)in Wales

Trust

61. Second, trust in the Assembly to act inthe best interests of Wales was high,with over two thirds responding thatthey would trust the Assembly at leastmost of the time.

Table 3.2: trust in UK government NAWto ‘act in Wales’ best interests’ (%)

62. The other findings of particular interestincluded those on the influence of theAssembly and on its impact.

Influence

63. A majority believe that London has themost influence over the way Wales isrun but most believe the NationalAssembly should have the mostinfluence – although the timing of the2003 Survey immediately after theAssembly election may have raisedawareness of the Assembly and thusinfluenced the results.

Table 3.3: most influence over ‘the wayWales is run’ (%)

Preference 1997 2003

Independence 14.1 13.9Parliament 19.6 37.8Assembly 26.8 27.1No elected body 39.5 21.2

Response Does Ought toInfluence Influence

NAW 22.4 56.0UK Govt 57.9 29.1Local Councils 15.0 13.8European Union 4.7 1.2

2003

Response UKGovt NAW

Just about always 2.1 12.1Most of the time 21.0 55.5Trust at least most of the time 23.1 67.6Only some of the time 57.9 26.3Almost never 19.0 6.0

2003

42

Impact

64. More people feel that the Assembly isnot making a difference than that it isimproving things. The proportionseeing a positive impact seems to haveincreased since 2001 although, asmentioned above, the timing of theSurveys may have influenced this.11

Table 3.4: impact of the Assembly onstandard of living (%)

Table 3.5: impact of the Assembly onhealth (%)

65. Nor do most people feel that theAssembly has given them a larger sayin government.

Table 3.6: Assembly will give/has given‘ordinary people more say in government’

Survey evidence on electoralarrangements

66. The Survey evidence suggests thatlarge number of voters in Wales areunconvinced that voting matters muchat the UK level: this sense is evengreater for elections to the Assembly:

Table 3.7: make a difference who wins?

Preferred electoral system

67. Most people express support inprinciple for proportionalrepresentation for elections toWestminster, the Assembly and localgovernment, but they also express apreference for being represented by asingle representative.

Table 3.8: should be elected via PR? (%)



Response 2001 2003

Improve 34.7 37.8No difference 57.4 54.5Reduce 7.9 7.7

Response 2001 2003

Improve 31.0 43.3No difference 63.6 47.7Reduce 5.4 9.0

Response 2001 2003

More 35.1 38.6No difference 61.5 55.8Less 3.4 5.6

Response NAW UKElections Elections

A great deal 16.6 23.5Quite a lot 26.3 29.0Some 19.5 15.4Not very much 26.2 22.9None at all 11.5 9.2

Response Westminster NAW Local Govt.

Strongly agree 20.2 19.1 18.6Agree 33.6 39.4 38.4Neither agree nor disagree 31.0 27.8 28.1Disagree 10.7 9.7 10.8Strongly disagree 4.5 4.0 4.0

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Table 3.9: how would you prefer beingrepresented?

Fairness

68. Over 40% believe that the votingsystem for the Assembly is fairer thanthat for Westminster but about thesame number are not sure:

Table 3.10: voting system for NAWelections is fairer?

Complexity

69. Few voters find the current system ofelection to the Assembly too difficult tooperate - although around half foundthe allocation of seats in the Assemblydifficult to understand.

Table 3.11: difficult to fill in ballot papersfor NAW election?

Table 3.12: difficult to understandallocation of seats in NAW?

The Electoral Commission report on the2003 election12

70. In November 2003 the ElectoralCommission published its report onthe 2003 National Assembly elections.In preparing its report, the ElectoralCommission drew upon a wide rangeof sources, including opinion pollingwhich was conducted by NOP and theInstitute of Welsh Politics at theUniversity of Wales, Aberystwyth.13

The results of this opinion pollevidence confirms in many respectsthe Survey evidence quoted above.The evidence also suggested a lack ofunderstanding of the Assembly, itspowers, what it has done since it wascreated or the voting system forelections. In particular, younger peoplehad very modest levels of knowledgeand felt uninformed about theAssembly.

Response %

Single representative 63.6Several representatives 21.9Can’t choose 14.5

Response %

Strongly agree 7.2Agree 33.5Neither agree nor disagree 42.3Disagree 13.4Strongly disagree 3.5

Response %

Very difficult 3.3Fairly difficult 13.0Not very difficult 35.7Not at all difficult 47.9

Response %

Very difficult 12.2Fairly difficult 37.1Not very difficult 35.1Not at all difficult 14.6

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71. The opinion polling also showed that,despite the lack of understanding ofthe Assembly and its activities, morepeople (46%) said that it hadimproved things in terms of how Walesis governed than thought it had madethese matters worse (11%). Thisseems more positive than the findingsof the Life and Times Survey (Tables3.4-3.6 above). However, the fact thatonly 6% thought that the impact hadled to a lot of improvements, and thatfor around a third of the sample theAssembly had made no difference,may explain this. Indeed, NOP/IWPconcluded that ‘substantial numbers ofvoters feel that devolution has changedlittle and done little to improve theirlives’.

Devolution and turnout

72. NOP/IWP also concluded that there isonly a weak relationship between voterturnout and attitudes to devolution,pointing to: ‘little evidence that the risein electoral abstention reflectssubstantial public antipathy to thedevolved institution. Public support fordevolution in Wales has grown since1999’.

73. Indeed, the NOP/IWP findings suggestthat the greatest impact onparticipation would have been felt byextending the Assembly’s powers ‘tochange things that shape people’sdaily lives’. 54% said they would havebeen more likely to vote in suchcircumstances, and, in groupdiscussions, perceptions tended to bethat the Assembly does not haveadequate powers with decisionshaving to be finalised in Westminster.

However, The Electoral Commissionconcluded in its report that ‘it isimportant not to exaggerate this factor.Almost as many people say they wouldbe more likely to vote for otherreasons’.

Overview of survey evidence

74. Overall, this survey evidence seemsbroadly consistent with the messagesfrom the public meetings particularlythe key themes:

■ people can and do draw a distinctionbetween the performance of theAssembly so far, and the role andpowers they feel it should have in thegovernance of Wales;

■ thus many people support furtherdevolution without being overimpressed by what has been achievedso far.

75. The apparent paradox, of low levels ofenthusiasm for what has beenachieved and growing support formore devolution, may be explained bytwo factors:

■ the view that the Assembly is heldback by its limited powers;

■ in spite of criticising its performance sofar, people do trust the Assembly to actin the interests of Wales.

76. The most striking difference betweenthe messages received in our publicmeetings and the survey evidencequoted above relates to Table 3.6.The fact that 56% of respondentsthought that the Assembly has madeno difference to the voice of ordinarypeople in government contrasts with



45



the impression from our meetings, andother evidence sessions, that peoplefind the politicians and the processesof the Assembly vastly more open andaccessible than the Welsh Office priorto 1999.

Limitations of the evidence

77. Taken together the evidencesummarised above does provide somevaluable insights into the perceptions ofthe Assembly and its powers andelectoral arrangements at the end ofthe first term. The major limitation ofthe evidence on constitutionalpreferences (Table 3.1) is that itpresents the Assembly and Parliamentas two distinct choices – this does notgive us any evidence on the scope ofthe powers of the Parliament or howthe work of law making for Wales couldbe shared between Westminster andCardiff.

78. A further limitation of the evidence isthat it does not provide an indication ofhow those who support devolution, orthe extension of devolution, view thebalance of costs and benefits fromsuch a change. In the public meetingsthose who criticised the costs of theAssembly were opposed to furtherchange – we do not know how thosewho favour change in principle wouldview the cost and capacity constraintsdiscussed later in this report.

Findings


■ people are critical of the Assembly ina number of respects but they believeit should lead the governance ofWales, most do not want to get rid ofit and many feel that it needs thetools to do its job effectively;

■ people draw a distinction betweenthe performance of the Assembly andthe role they feel it should have inthe governance of Wales - manysupport further devolution withoutbeing over impressed by what hasbeen achieved so far;

■ many believe that the performance ofthe Assembly has been constrainedby the present powers;

■ the feature of the Assembly thatpeople particularly value is its open-ness and responsiveness;

■ the sense of having a second bestform of devolution is a strong theme,but so is the feeling that the presentdevolution settlement should beallowed ‘to bed down’;

■ on the electoral side, there are manycriticisms of the present AMS systembut support for its two key features:the single member constituency andproportionality.

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Notes1Oral evidence of representatives from the Wrexham, Conwy & Gwynedd Youth Forums, 27 March 2003.

2Ibid.

3Oral evidence of representatives from Llais y Ddraig Girlguiding Cymru, 25 July 2003.

4Oral evidence of representatives from the Wrexham, Conwy & Gwynedd Youth Forums, 27 March 2003.

5Oral evidence of representatives from Llais y Ddraig Girlguiding Cymru, 25 July 2003.

6Ibid.

7Oral evidence of representatives from the Wrexham, Conwy & Gwynedd Youth Forums, 27 March 2003.

8Ibid.

9Commissioned Papers, Scully, R . and Wyn Jones, R. Public opinion, the National Assembly & Devolution –Briefing Note on latest evidence (Aberystwyth, Dept of International Politics, 2003).

10The question is: Which of these statements comes closest to your view?’ with each option given to respondentsNote that the full wording of the ‘Parliament’ option is “Wales should remain part of the UK, with its own electedparliament which has law-making and taxation powers”; the full wording of the ‘Assembly’ option is “Walesshould remain part of the UK, with its own elected assembly which has limited law-making powers only”(emphasis in original).

11This apparent increase in the perceived importance of the Assembly may be merely an artefact of the context inwhich the two surveys were conducted: in 2001 immediately after a UK election where the importance of thatlevel of government would have been in voter’s minds; and 2003, after a devolved election where parties – andthe Electoral Commission! – sought to raise voters’ awareness of the importance of the NAW.

12The Electoral Commission, The National Assembly for Wales elections 2003, The official report and results(Cardiff, The Electoral Commission 2003).

13NOP Research Group and Institute for Welsh Politics, National Assembly for Wales Election 2003, Opinionresearch (Cardiff, The Electoral Commission 2003).



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chapter 4: the role and structure ofthe National Assembly for Wales


2. The first part of the chapter describesthe role and structure of the currentAssembly, including the corporatebody model and the Assembly inplenary and in committees. Thesecond part discusses the evidencereceived on the capacity of theAssembly and sets out the issues thatwould need to be addressed if thepowers of the body were to beincreased. The main focus is on theFirst Assembly from July 1999 toApril 2003 (when most of theevidence cited in this chapter wastaken), but the chapter also takes intoaccount relevant developments in theSecond Assembly (from May 2003). Itdoes not deal with the executivepowers that are delegated by theAssembly to the First Minister, whichare considered in Chapter 5.

Part I: The role of the Assembly

3. The Commission’s consultation paperon the National Assembly’s electoralarrangements1 defined the roles ofAssembly Members as follows:

■ representative – representing thepublic in their constituencies orregions and advocating on theirbehalf;

■ deliberative – debating issues thataffect Wales;

■ scrutiny – examining the actions ofthe Assembly Government includingits use of devolved legislative powersand its spending decisions;

■ policy development – analysingproblems and recommendingsolutions.

Design of the Assembly: A Voice forWales

4. The origins of each of these roles canbe found in the White Paper proposalswhich preceded the 1997 referendumand were implemented in theGovernment of Wales Act.2 The keytheme was that of accountability –making the Welsh Office and itssponsored bodies accountable to adirectly elected body:

[The UK Government] believes thatthose controlling the spending andsetting the standards for publicservices should be answerable to thepeople they serve…3

The role and structure of theNational Assembly for WalesThis chapter examines the capacity of the National Assembly as arepresentative and accountable body for the whole of Wales. It provides evidence for the Commission’s recommendations on the sizeand structure of the Assembly.

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5. The role of the new Assembly wasboth to provide a democraticallyelected voice for Wales and to hold toaccount the executive government ofWales. Within this general design, theWhite Paper gave particular emphasisto the number and accountability of“quangos” (see Chapter 6).

6. The second theme of the White Paperwas that the Assembly would be ableto make the governance of Wales moreresponsive by setting policies andstandards for public services in Walesto suit Welsh needs andcircumstances. How this has beenaddressed within the devolved powersis discussed in the next chapter.

7. The third theme was inclusiveness –the desire to include the whole ofWales, across party as well as sectoraland geographical interests, ingovernance. This underpinned both thestructures of the Assembly, discussedbelow, and its electoral arrangements,which are discussed in Chapter 12.The Rt Hon Ron Davies AM, who wasSecretary of State for Wales at the time,explained the original intentions:

The construction that we had…wasn'tan attempt to replicate a Parliament, itwas an Assembly, and therefore thearchitecture of the Assembly was veryclear, it was about inclusivity, it wasabout power sharing, it was abouthaving a system of committees whereinformation, power and decisionmaking would be shared. It was basedon a degree of proportionality so thatthe elected representatives from allparties in Wales would be included.4

Structure of the Assembly: theconstraints of the Government of Wales Act

8. The Government of Wales Act 1998put in place the key elements of theAssembly’s present structure. Theseinclude: the unitary body structure; thenumber of Assembly Members (AMs);the First Secretary (now known as theFirst Minister) and Cabinet; and thevarious other types of committee andtheir cross-party membership. Theseand some other aspects of thestructure and operation of theAssembly cannot be changed withoutfurther primary legislation.

9. In addition, the Government of WalesAct specified some seventyrequirements for the procedures of theAssembly, thereby placing somesignificant constraints on theinstitution’s ability to determine foritself how it will work. Although thelegislation establishing the ScottishParliament also contains manyprocedural provisions, it is highlyunusual in the UK for an Act to laydown so much parliamentaryprocedure in statute law.

Corporate body structure

10. The decision to establish the Assemblyas a single corporate body has been akey element in its subsequentevolution.5 The body proposed in AVoice for Wales was a single executivebody, setting and implementingpolicies in Wales within theframeworks created by primarylegislation passed in Westminster, andaccounting to the people of the Walesfor delivery.



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11. Once the Assembly was in place,however, it became clear thatMembers wanted it to operate morelike a parliament with a separationbetween government and opposition,so that it would be clear to the peopleof Wales who was responsible fordecisions and policy implementation.6

Following its own cross-party review ofprocedures in 2001-02,7 the Assemblyresolved unanimously to create a defacto separation between the“executive” (Welsh AssemblyGovernment) and “parliamentary” armsof the Assembly – and to take this asfar as possible within the constraints ofthe Government of Wales Act.

12. This tension between the originaldesign of an executive bodysubordinate to the UK Parliament atWestminster, and the aspirations of abody with its own democraticmandate, was identified in debateduring the passage of the Governmentof Wales Bill. One of the resultingmodifications to the Bill thatforeshadowed later developments wasthe introduction of an executivecabinet structure to exercise thedevolved functions.

13. A Voice for Wales had envisaged thatcross-party committees would dealwith much of the work and decisionsof the Assembly, in a model similar tothat operating in local government atthe time of devolution. This model wasclaimed to support more open andinclusive decision-making and toprevent power being concentrated in adominant governing group within theAssembly. For example, Julie MorganMP argued during debates on theGovernment of Wales Bill that:

[Inclusiveness] means that thereshould be a role for all Memberselected to the Assembly, includingthose who are not First Secretary orSecretaries… Another importantprinciple on which to structure theAssembly is the involvement oforganisations from outside it... It willbe done more easily and effectively viaa committee system.8

14. Critics of the local governmentcommittee model, who included all themain opposition parties in Parliament,argued that it would be too slow andwould obscure accountability fordecisions. The Rt Hon Dafydd WigleyMP pointed out that:

We should remember that theAssembly will be composed of only 60persons. The Executive will thereforenot be remote from its membership.An Executive would enable theAssembly to take decisions quickly,coherently and strategically. A cabinetsystem would also provide necessarycredibility in Europe and elsewhere.9

15. The Assembly was created at a timewhen the value of the local governmentcommittee system was beingquestioned. Just as the Government ofWales Act was receiving Royal Assent,the Welsh Office was publishingproposals that subsequently led to theabolition of the committee system inlocal government in Wales.10 In thelight of wide political support for thecabinet model, the Bill was amendedin Parliament to allow the Assembly todelegate its executive functions toMinisters, while keeping open thecommittees option that had been partof the referendum proposals.11

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16. The first set of Standing Orders for thenew Assembly was drafted on thebasis of the cabinet model, which hasnow become widely accepted withinthe Assembly as the best approach.Nevertheless, the hybrid formulationof the 1998 Act continues toinfluence the role and operation of theAssembly, particularly its committees.

Advantages and disadvantages of thecorporate body structure

17. The corporate body structure wasintended to reflect and promote theprinciples of inclusiveness and power-sharing in the new Assembly. Theevidence suggests that this approachhas been most evident in relation tothe Subject Committees, which haveworked co-operatively to achievecross-party consensus on policy issuessuch as higher education, culture andorganic farming. Mari James, one ofthe members of the NationalAssembly Advisory Group that helpedto shape the working arrangements ofthe Assembly, argued that:

I think the Subject Committees areone of the most innovative andinteresting parts of the Assemblysystem… The points that I think arestrongest here are the way in whichthe Subject Committee systemmilitates in favour of a collegiateapproach to the formulation and thedevelopment of policy, and also theway in which they encourage iterativedebate and policy development.12

18. On the other hand, the corporate bodystructure does not clearly identify tothe public those who are accountable

for decisions, nor promote theireffective scrutiny – the examinationand challenge of policies, expenditureprogrammes and legislation.

19. Features of the Assembly’s evolutionfrom the original consensual model toa more parliamentary structure haveincluded:

■ a more marked distinction betweenthe roles, working patterns andinfluence of Ministers or DeputyMinisters and opposition AssemblyMembers who hold the Government toaccount;

■ greater resources for the PresidingOffice to create independent adviceand information services for individualAMs and committees (although thecommittees still make considerableuse of the policy capacity of the WelshAssembly Government);

■ the transfer of formal responsibility forparliamentary services for Membersfrom the First Minister to the HouseCommittee (see Box 4.3);

■ the development of different roles andloyalties for officials working in thetwo parts of the organisation. Whilethis effective separation has beenpossible with pragmatic goodwill atmost levels, the clarity of differingresponsibilities that applies toparliamentary and governmentofficials in Scotland, Northern Ireland,Westminster and most Commonwealthcountries does not exist in Wales.Moreover, the job of PermanentSecretary to the National Assembly forWales cannot be so readily divided.The Permanent Secretary, Sir JonShortridge KCB, illustrated the



51



potential difficulties posed by thecurrent arrangement:

If you talk to probably every Memberthey would say that my role is toserve the government of the day, andI cannot serve the government of theday at the same time as serving theother two parties and the other 51elected Members…It does cause me,on occasions, problems. If you arethe accounting officer for theAssembly at large, with its £10 billionplus expenditure, and you do notknow for sure what decision theAssembly might take on a matterwhich you think reflects on your ownpersonal interests [ie the personalresponsibility of the accountingofficer], that is an uncomfortableposition to be in.13

20. The first months of the SecondAssembly have brought further shiftstowards a pattern of government andopposition. In his evidence, Ron Davies AM questioned whetherimposing a parliamentary way ofworking onto the corporate bodystructure enshrined in the Governmentof Wales Act will be sustainable in thelong term:

Certainly I think the operation iscreaking now because…we have agovernment which acts as agovernment, we have an institutionthat tries to act as a parliament, butit isn't constructed to act as aparliament. Members don't have thecapacity or research support tochallenge the government… Ministers

feel very pressured if they arequestioned Select Committee style -they feel that somehow theCommittee is being unfair to them,that that is not part of an inclusiveprocess.14

21. The Assembly Counsel General,Winston Roddick QC, was of theopinion that:

What now obtains is probably as gooda solution as the circumstances willpermit; to go further would requireprimary legislation.15

The role and operation of Cabinet,Committees and Plenary

22. In the following sections, we examinein more detail the role and operationin practice of the three main structuralelements of the Assembly – theExecutive Committee or “Cabinet”, theother Assembly committees and theplenary.

The Assembly Cabinet

23. The “fields” in which executivefunctions were transferred to theAssembly at the start were specifiedin the 1998 Act (see Box 4.1). TheAssembly delegates the exercise ofalmost all of its functions to the FirstMinister, who in turn delegates themajority of them to other AssemblyMinisters in the Cabinet.16 Manyroutine functions are then delegatedto officials to carry out.17 The FirstMinister also allocates formalaccountability for the exercise ofAssembly functions in these fieldsamong the members of the Cabinet(see Box 4.2).18

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24. A development that was notanticipated in the 1998 Act has beenthe appointment of Deputy Ministers.As Deputy Ministers have no statutorystatus, they are not entitled toexercise delegated functions of theAssembly, but they assist theirCabinet members in committee andon specific policy issues. CabinetMinisters and Deputy Ministerstogether comprise one fifth of thewhole Assembly.

The role of other Assembly Committees

25. The Government of Wales Act 1998requires the Assembly to establishSubject Committees, RegionalCommittees, a SubordinateLegislation Scrutiny Committee andan Audit Committee.20 It also allowsthe Assembly to establish any other

committees that it considersappropriate (see Box 4.3) and allowsthe use of sub-committees.

26. In this chapter, we focus on the roleand capacity of the SubjectCommittees, because they would belikely to bear the main burden of theextra work created if additionalpowers were conferred on theAssembly. We also examine briefly theRegional Committees, because oftheir important role in representingthe views of the different areas ofWales in the Assembly’s work. Therole of the other committees issummarised in Box 4.3.



Box 4.1: Fields in which some or all functions were transferred to the Assembly by the first Transfer of Functions Order19

(Schedule 2 to the Government of Wales Act 1998)

Agriculture, forestry, fisheries and food Industry

Ancient monuments and historic buildings Local government

Culture (including museums, galleries Social servicesand libraries)

Economic development Sport and recreation

Education and training Tourism

The environment Town and country planning

Health and health services Transport

Highways Water and flood defence

Housing The Welsh language

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Box 4.2: The Assembly Cabinet and Ministers

The Assembly must elect a First Secretary (known as the First Minister), who inturn must appoint Assembly Secretaries (Ministers) up to a maximum of eight(the number being specified in Standing Orders).21 The First Minister andMinisters together comprise the Executive Committee or Cabinet of what is nowtermed “the Welsh Assembly Government”. Members of the current Cabinet arelisted below:

The Ministers of the Assembly Government Cabinet, December 2003

■ First Ministera

■ Minister for Finance, Local Government and Public Servicesb

■ Business Ministera

■ Minister for Social Justice and Regenerationc

■ Minister for Health and Social Servicesc

■ Minister for Economic Development and Transportc

■ Minister for Education and Lifelong Learning

■ Minister for Environment, Planning and Countryside

■ Minister for Culture, Welsh Language and Sport

Notesa. These Ministers do not have counterpart Subject Committees.b. This Minister’s counterpart Subject Committee is solely in respect of Local Government and Public

Services.c. At present, there are also three Deputy Ministers, who have been appointed to assist the Cabinet

Ministers indicated by taking specific responsibility for communities, older people and transportrespectively.

Subject Committees

27. The 1998 Act requires the SubjectCommittees to be of the samenumber, and have the same divisionof fields of responsibility, as theAssembly Ministers who areaccountable for functions in any ofthe fields set out in the 1998 Act.22

There are currently seven Subject

Committees, whose chairs areappointed from the party–balanced“Panel of Chairs” elected by the wholeAssembly.23 The relevant Ministermust be a member of the SubjectCommittee;24 and the practice hasevolved that the Deputy Ministers alsosit on their counterpart committees.

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Box 4.3: Standing and Other Committees of the Assembly

Standing Committees

A further six committees have been established as required by the Act or in linewith the advice of the National Assembly Advisory Group:

■ Audit Committee – which considers reports prepared by the Auditor Generalfor Wales25 on the economy, efficiency and effectiveness with which theAssembly has used its resources. The Committee normally meets monthly.

■ Legislation Committee – which considers and reports to the Assembly on draftsubordinate legislation.

26 Like the Audit Committee, it must be chaired by aMember who is not from the largest party that has an executive role in theAssembly, and may not include Ministers among its members.27 TheCommittee meets weekly when the Assembly is in session.

■ Business Committee – which advises on the management and procedures forthe Assembly’s business. The Committee, which must meet weekly when theAssembly is in session, comprises one Member from each of the politicalparties and a chair.

■ Equality of Opportunity Committee and European and External AffairsCommittee – the National Assembly Advisory Group recommended that theAssembly should establish Standing Committees to co-ordinate policydevelopment on issues that cut across subject areas, including at leastcommittees on equal opportunities and European issues. Typically, theCommittees meet three times a term.

■ Standards of Conduct Committee – this Committee considers complaints andother matters relating to the register of Members’ interests and Members’conduct. It meets four to six times a year.

The other Assembly committees operating in the Assembly are:

■ Planning Decision Committee – four Members are elected as necessary on across-party basis from the Subject Committee that deals with planning todetermine certain planning matters that come to the Assembly. This system isdesigned to increase the transparency of decision-making on planning casesand is felt to be working successfully.28

■ House Committee – this has responsibility for services, facilities andaccommodation, Members’ allowances and related matters that support theoperation of the Assembly. The Committee meets every four sitting weeks andhas established sub-groups to handle various aspects of its work.

■ Special task committees – for example, those set up to consider the seatingplan of the Assembly and the Public Audit (Wales) Bill.

The House and Planning Decision Committees are the only committees to which the Assembly has delegated executive functions.

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28. The functions of each SubjectCommittee are set out in theAssembly’s Standing Orders as being to:

� contribute to the development of theAssembly’s policies;

� keep under review the expenditureand administration connected withtheir implementation;

� keep under review the discharge ofpublic functions by public, voluntaryand private bodies;

� advise on proposed primary,secondary and European legislationaffecting Wales;

� provide advice to the AssemblyCabinet on matters relating to theallocation of the Assembly’s budget;

� perform functions under StandingOrder 21 (complaints);

� perform any functions assigned to itunder the Code of Practice on PublicAppointments Procedure made by theAssembly; and

� consider matters referred to it by theAssembly within its fields.29

29. Each committee has had to decide howbest to use its time to fulfil all thesefunctions (Box 4.4). In practice, thecommittees as a whole have allocatedmost time (over a third) to conductingtheir own policy reviews. Individualcommittees have varied in the focusgiven to different activities, reflectingfactors such as the nature of their policyresponsibilities and the relationshipbetween the committee chair andMinister. For example, in 2002:

Box 4.4 Allocation of Subject Committee time: percentage of time envisaged oncommittee agendas, 1999 (July) - 2003 (April)30

Committee inquiries and reviews 39%

Scrutiny of public bodies 8%

Primary legislation 3%

Secondary legislation 2%

Budget 3%

Internal committee business 2%

External presentations 8%

Minister's report 15%

Assembly Government papers 19%

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■ the Culture Committee allocatedalmost two-thirds of its time to policyreviews, with correspondingly less timeon scrutiny of the Minister andAssembly Government policy papers;

■ the Agriculture and Rural DevelopmentCommittee allocated around a quarterof its time to scrutinising the Minister’sreport.

Strengths and weaknesses of theSubject Committee role

30. The evidence points to a number ofstrengths and weaknesses in theoperation of committees during theFirst Assembly. Witnesses includedchairs and members of the committeesthemselves as well as bodiesscrutinised by them or involved inpolicy development with them.

31. The strengths of the committees’hybrid role can be summarised asfollows:

■ quality of policy development – anumber of committee reports werecommended for the detail of theiranalysis and the breadth ofinvolvement from stakeholders;

■ inclusivity – reports such as theSubject Committee review of the WelshLanguage (Ein Hiaith – Ei Dyfodol/OurLanguage – Its Future)31 were felt tohave helped build an evidence-basedconsensus within and beyond thecommittee on the way ahead:

There was a serious debate and therewere disagreements, but the emergingstudy produced a report by theCommittee, a response by theGovernment and millions of pounds ofpublic investment in a new direction.

That to me is proof of the way that thesystem can work.32

■ responsiveness and relevance – theAgriculture and Rural DevelopmentCommittee conducted its own shortreview to examine the particular issuesthat arose in handling the foot andmouth disease outbreak in Wales;

■ accessibility – committee memberswere felt to be readily available tointerested bodies and to have built upknowledge and expertise of the subjectarea. The Presiding Officer also praisedthe open form of participation in policydebate that has developed incommittees:

Officials and Members sit around thesame table, having a discussion veryoften with members representing thepublic or bodies, and there will be adebate taking place between Ministersand officials with Members and therepresentatives of organisations. Thatis quite a unique forum which theAssembly has created.33

32. Weaknesses highlighted in evidenceincluded:

■ a lack of focus in scrutiny – some ofthose who appeared before committeesfelt that the sessions were notsufficiently rigorous or challenging, orthat committees had spent their timeon policy development at the expenseof scrutiny of Ministers and quangos.For example, Huw Davies of theForestry Commission suggested that:

[The Committee] should havescrutinised more, rather than just theoverall policy, how we are



57



implementing it – particularly on theAssembly’s own estate, in terms ofvalue for money. There has not been agreat deal of scrutiny.34

■ in our own observations of thecommittees at work, we have beenstruck by the wide coverage andcrowded nature of the meeting agenda,which often leaves insufficientopportunity to probe key issues withineach agenda item. Kirsty Williams AM,chair of the Health and Social ServicesCommittee, argued that:

The breadth of our portfolio and thelimitations on the number of meetingswe can hold has made it difficult forthe Committee to carry out someaspects of its work: in-depth policyscrutiny and reviews in parallel withscrutiny of legislation, the Minister andother bodies...35

■ the extent to which committees havebeen able to influence AssemblyGovernment policy has varied.36 GlynDavies AM, chair of the Agricultureand Rural Development Committee,concluded that:

The policy-making role of committeesis to a large extent superficial. TheCommittee can develop new policyjust so long as it coincides with whatthe Minister thinks.37

■ too consensual for effective scrutiny –some argued that Ministers’membership of committees is too cosy.

The role of Ministers on Committees

33. A legacy of the original executivecommittee structure proposed for the

Assembly is the statutory requirementfor most Ministers to serve as fullmembers of their counterpart SubjectCommittees, which was intended tofacilitate wide participation in policydevelopment.38

34. Most evidence from within theAssembly pointed to the strengths ofthis arrangement:

■ it allows committees (and those whocontribute to committee policy reviews)to have a stronger and wider-ranginginfluence on policy development. Forexample, Kirsty Williams AM suggestedthat:

[The Minister] will have heard exactlythe same facts, figures, arguments aswe would have heard in theCommittee and, therefore, I think hasa better understanding of where theCommittee is coming from when theyare coming forward with theirproposals because she has been apart of that process.39

■ it gives the committees greater accessto the expertise of officials working forthe Welsh Assembly Government – anarrangement that was formallysupported by the Assembly Review ofProcedure.40

35. However, some evidence suggestedthat Ministers’ dual role places them ina potentially awkward position,because they may wish to takedecisions that do not coincide with theconclusions of a committee policyreview in which they took part.41 OneMinister (Edwina Hart MBE AM) hasdecided to deal with this by notattending the meeting items oncommittee policy reviews.

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36. The main criticism offered of Ministers’committee membership is that itweakens scrutiny of Ministers, because:

■ it is hard for committees to switch froma co-operative policy developmentrelationship with the Minister to anadversarial scrutiny mode;

■ it gives the Minister more scope to tryto influence committee decisions, asituation that is compounded in thecase of those committees upon whichthe Deputy Minister also sits;

■ “backbench” AMs from the party ofgovernment tend to see their role asbeing to defend, rather than scrutinise,the Minister in committee;

■ as a member of the committee, theMinister receives in advance thecommittee’s briefing and lines ofquestioning.

37. Over the lifetime of the Assembly, theSubject Committees as a whole haveincreased the time devoted toscrutinising Ministers’ regular reports ondevelopments within their portfolios(while reducing the time spentdiscussing Welsh Assembly Governmentpolicy papers, which usually invite thecommittee simply to note the proposalscontained within). Some Members didnot feel that the arrangement necessarilyfavours the Minister. For example,Richard Edwards AM, chair of theEnvironment, Planning and TransportCommittee, argued that:

It might from the outside seem like abit of a cosy relationship but the realityis that the Minister has no place tohide… She is subject to questioning allthe time.42

38. The evidence also suggested thatMinisterial membership of the SubjectCommittees contributes to theconfusion as to who is responsible fordecision-making within the Assembly.This issue is discussed further inChapter 6.

Regional Committees

39. The 1998 Act requires the Assemblyto establish committees for NorthWales and the other regions of Wales(whose number and boundaries are tobe determined by the Assembly), eachwith the job of providing advice to theAssembly about matters affecting theregion.43 The membership of the fourRegional Committees comprises theAssembly Members whoseconstituencies or electoral regions fallpartly or wholly within the regionconcerned. Because the RegionalCommittee boundaries adopted by theAssembly follow economic forumrather than Assembly constituencyboundaries, some AMs serve on morethan one Regional Committee. TheRegional Committees each meet threeto six times a year (the frequencyhaving declined following theAssembly Review of Procedure).

40. Although it received evidence arguingfor more specific roles for RegionalCommittees, the Assembly Review ofProcedure favoured retaining theirbroad remit to act as ‘advocates fortheir regions.’44 Issues raised atRegional Committee meetings arenotified in writing to the relevantMinister or Assembly committee.



59



41. We were given some positive evidenceabout the committees’ success intaking the Assembly out to the peopleof Wales. For example, TomMiddlehurst AM told us:

In North Wales, we get massiveattendance, not only because RhodriMorgan has an open-mike session…for an hour people throw whateverthey like at him and he deals withit…But even without that, people turnup for our meeting and visit thewebsite to discuss key issues in thosemeetings: Wales transport, strategy foryoung people, strategy for the elderly,those sort of things.45

42. However, the overall message was oneof disappointment and a sense ofunfulfilled potential. The followingcomments are typical:

I went to a meeting of the [Regional]Committee, where I think of a totalmembership of eleven at the mostthere was three, and at one stagethere was one Assembly Member…The Regional Committees were sold tous as giving the Assembly a publicface throughout Wales and a chancefor people to see their AssemblyMembers, particularly the listmembers who are not directlyaccountable, within their variousareas, and they have not worked.46

43. The Assembly Review of Procedureintroduced some minor changes tothe purpose and format of RegionalCommittee meetings, but was unableto reach agreement on changes to

the committees’ boundaries. TheAssembly can determine the numberof Regional Committees to beestablished in addition to the NorthWales Committee, but abolition of theRegional Committees altogetherwould require the amendment of theGovernment of Wales Act.

The Assembly plenary

44. A Voice for Wales suggested that‘The Assembly will be the forum forthe nation, able to debate all mattersof concern in Wales, not only those itdirectly controls.’47 The Assembly’sown Review of Procedure leanttowards a parliamentary mode ofworking in identifying the broadfunctions of plenary meetings asbeing to:

■ consider, amend and approvesubordinate legislation, the Assemblybudget and other formal expressionsof policy;

■ scrutinise Ministers and their policies;

■ allow “backbench” Members thechance to influence policy and/orhighlight issues of concern to them;

■ act as the most public face of theAssembly’s work.48

45. A breakdown of all business inplenary during the First Assembly isshown in Box 4.5.

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Assembly scrutiny of secondarylegislation

46. Although by no means the only policytool available to the Assembly,secondary (or subordinate) legislationis one of the most tangible outcomesof the Assembly’s work. TheGovernment of Wales Act50 lays downthe main requirements for theprocedures by which the Assemblydevelops, scrutinises and approvesAssembly general subordinatelegislation:51

� all legislation must be approved byplenary;

� a “regulatory appraisal” of the likelycosts and benefits of the legislationmust be undertaken before thelegislation is laid before the Assembly,unless it is inappropriate or notreasonably practicable to do so;

� if the costs of complying with thelegislation are likely to be significant,consultation (which must includebusiness interests) must be carried outbefore the legislation is laid;

� a bilingual draft of the legislation mustbe prepared before the legislation isapproved, unless it is inappropriate ornot reasonably practicable to do so;



Notes� Short debates – a half-hour debate held each week on a motion proposed by a non-Cabinet Assembly

Member.� Debates under Standing Order 6.5 (includes debates on the Budget, the Westminster legislative programme,

Subject and Audit Committee reports, and annual reports of the First Minister, the House Committee, thepartnership and sustainable development schemes, equal opportunity arrangements, arrangements forworking with business, and the EU).

� Standing Order 29 – debates on proposals for subordinate legislation made by non-Cabinet AssemblyMembers.

Box 4.5: Breakdown of plenary business in the First Assembly49

Questions 22%

Government debates 32%Statements 16%

Legislation 9%

Debates underSO6.5 2%

Subject Committeereport debates 3%

Minority party debates 9%

Short debates 7% SO29 less than 0.5%

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■ legislation must not be approved untilthe Assembly has considered therelated report of the LegislationCommittee and regulatory appraisal.

47. The Act also allows the Cabinet tooverride these requirements if they arenot reasonably practicable in thecircumstances concerned, throughwhat has become known as “theExecutive Procedure”. Other types ofprocedure for subordinate legislationare set out in the Assembly’s StandingOrders, including a mechanismwhereby the Deputy Presiding Officermay refer an item of draft legislation tothe relevant Subject Committee forconsideration.52

48. The potential strengths of theAssembly’s subordinate legislationprocedures are:

■ they provide the opportunity for agreater degree of democratic scrutiny ofsubordinate legislation than occurs atWestminster. For example, Assembly

Members may propose amendments todraft subordinate legislation;

■ they provide statutory underpinning tomeasures designed to assess theimpact of proposed legislation and toallow those affected to comment on theproposals;

■ they allow the Assembly Government todevelop distinctive policies for Wales.Policies such as free bus travel fordisabled and older people, freeprescriptions for people under 25 yearsand free dental checks for the under25s and over 60s have been deliveredusing these powers. The Assembly’sCounsel General told us that, in 2001,nearly a third of the Assembly’slegislation was either unique to Walesor differed significantly in content fromits equivalent in England.53 Overall, theadvent of the Assembly has led tosignificantly more secondary legislationaffecting Wales being made in Wales(see Table 4.1 for a comparison of thenumbers before and after the Assemblywas created).

Table 4.1: General and local subordinate legislation made by the Secretary of State forWales and the National Assembly for Wales54

Subordinate Legislation General Locala

Total

The Secretary of State for Wales (legislation made in respect of Wales only)

1998 66 24 90

The National Assembly for Wales

1999 29 28 57

2000 119 109 228

2001 241b

90 331

2002 (to 3 December) 173 103 276Notes

a. A category of subordinate legislation, which is local in nature.

b. The figure for 2001 includes forty-five general statutory instruments made in response to the outbreak offoot and mouth disease.

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49. However, evidence from the FirstAssembly suggests that the opportunitiesfor scrutiny are not being used:

■ in the First Assembly, 291 statutoryinstruments nearly – 42 per cent of allAssembly general subordinate legislation– were made by the Cabinet under theExecutive Procedure (this figure includeslegislation made in connection with thefoot and mouth disease outbreak);55

■ in the same period, the DeputyPresiding Officer referred only twelvepieces of subordinate legislation toSubject Committees for consideration.In total, the Subject Committeesallocated just two per cent of theirmeeting time in the First Assembly tosubordinate legislation;56

■ in the First Assembly, nine per cent ofplenary time was spent debatingsubordinate legislation. Amendmentsto statutory instruments were proposedon only nine occasions, and none wassuccessful; one SI (which concernedthe use of genetically modified cropsand other plant varieties) has beenrejected.57

50. Assembly Members have also maderelatively little use of the procedure bywhich they may propose items ofsubordinate legislation. Of the eightproposals that have been debated, fivewere approved by the Assembly andtwo have resulted in new regulations.58

Ieuan Wyn Jones AM and JocelynDavies AM explained the problems theyhad encountered in this process:

We found it intensely difficult to findanything that (a) was in thecompetence of the Assembly and (b)

was a statutory instrument you couldpromote.59

(Translated from the original spoken inWelsh)

A lot of effort and resources arewasted in working something up thento be told,‘we thought we could dothis but we can't do it.60

51. Reasons why there has been lesslegislative scrutiny than expected mightinclude:

■ although subordinate legislation can beused to implement major policydecisions, much legislation of this kindis technical, routine or implements EUlegislation (and therefore offers littlescope for Assembly discretion). Moreinformation and experience is neededto sift out and prioritise the significantregulations for scrutiny;

■ the Assembly’s subordinate legislationprocedures laid down by theGovernment of Wales Act are complex,time-consuming and difficult to use –for those both within and outside theAssembly;

■ Subject Committees do not haveenough time to carry out all theirdifferent roles in policy developmentand scrutiny:

The Committee does not have time toconsider in detail every order. Therewould not be any subordinatelegislation coming out of the Assemblyat all if we did what we were supposedto do. We do no more than scratchthe surface.61



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52. There is evidence that the SubjectCommittees are paying increasingattention to the scrutiny of subordinatelegislation, aided in part by changesintroduced following the AssemblyReview of Procedure that helpcommittees to identify the mostsignificant pieces of forthcominglegislation. More generally, Mick BatesAM, chair of the LegislationCommittee, commented that:

There is a process of education forsuch an infant body as the Assemblyto understand where you can makesignificant input on the policy side andthen change the legislation… [Also]we need to make sure that in the civicsociety of Wales people are awarethey can impact and changelegislation by the Assembly itself.62

Part II: Managing the business of theAssembly

53. This part of the chapter examines inmore detail the capacity of theAssembly’s existing membership,structures and working arrangements,in order to assess whether theAssembly has sufficient capacity toexercise its current powers effectivelyand the impact that further powersmight have on its working pattern.

The size of the Assembly

54. The Government of Wales Act providesthat the Assembly will have sixtyMembers (although, unlike thelegislation underpinning Scottishdevolution, it does not link the numberof AMs to the number of Members ofParliament in Wales). During thedebate on the Government of WalesBill, the then Secretary of State forWales explained that:

[The size] was arrived at by a policycommission of the Labour party…The60 figure results from the fact thatthere are 40 parliamentaryconstituencies. At that time, we hadfive European constituencies. It wasbelieved that a first-past-the-postsystem based on the existingparliamentary constituencies and anadditional member system using thecombination of five Europeanconstituencies, each with fourMembers, would be the best way ofachieving an Assembly that wasbroadly proportional.63

55. Evaluation of the evidence on thenumber of Members needed to exercisethe functions of the Assembly is

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complex and requires a number ofjudgements to be made: for example,about the balance between work in theAssembly and in the constituency, andthe balance between strategic focusand breadth of subject coverage.Comparisons with other legislativebodies around the world demonstratethat there are no accepted rules ofthumb to follow; local conventionsseem to be just as important as factorssuch as representation at other tiers ofgovernment within the countryconcerned.

56. Several sources of evidence pointed tothe working constraints imposed by theAssembly’s current size, particularly inrelation to committee meetings.However, the Assembly’s Panel ofSubject Committee Chairs argued thatthe small size of the Assembly alsoobliges it to ‘adopt a disciplined andfocused approach to its use of time andto operate effective forward planningarrangements’64 – although some otherevidence on the operation of thecommittees did not support thisclaim.65 The Panel also suggested thatthe current size has advantages for theculture of the organisation:

There are… benefits in terms of closerworking relationships betweenMembers and excellent informalcommunication networks. It could alsobe argued that the small scale of theAssembly encourages an "esprit decorps" among Members: AMs taketheir responsibilities very seriously, asevidenced by the high attendancelevels at committee meetings.66

57. On the other hand, Rhodri GlynThomas AM suggested that theAssembly’s size affected Members’willingness to challenge each other:

In the House of Commons, if you fallout with somebody, you can avoidthem for three or four weeks, or eventhree or four years. In the Assembly,you will bump into them the followingmorning. It is that kind of close, cosyarrangement…[that] does potentially, I think, lead to a situation wherescrutiny is not a natural process.67

The capacity of the Assembly: currentworking arrangements

58. The current working arrangementslargely owe their design to the NationalAssembly Advisory Group (NAAG),which sought the views oforganisations and people in Wales inpreparing its advice on how theAssembly should work. In its publicconsultations, the National AssemblyAdvisory Group found that there wasstrong support for:

■ the principles of democracy, openness,inclusiveness and participation,balanced with efficient and effectivedecision-making;

■ effective mechanisms for consultingand listening to people from all parts ofWales;

■ a break from Westminster workingtraditions and a move to more family-friendly working practices;

■ bilingual operation of the Assembly.68

59. Based on these views, the NAAGestablished some important principlesthat have influenced the working



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patterns of the Assembly since itsinception. The Advisory Group’sprinciples include:

■ the Assembly’s timetable should allowadequate time for AMs to travel to andfrom their regions and constituencies.Over half of AMs have constituencieswithin ninety minutes’ travel time ofCardiff, but the typical travel time forNorth Wales Members is four to fivehours;

■ the Assembly’s annual timetableshould be arranged as far as possibleto coincide with school term times;

■ formal working hours should bescheduled between 8.30am and6.00pm, Monday to Friday;

■ Members should be allowed to spendFridays in their constituencies orregions.69

60. The NAAG report also established theprinciple that, unlike normal practiceat Westminster, there should be fullattendance at plenary sessions andcommittee meetings. This is reflectedin the Assembly’s Protocol on Conductin the Chamber, in which ‘Membersare encouraged to give priority toattendance at plenary meetings’;70 andin the practice of not schedulingplenary and committee meetings at thesame time.

61. These principles were largelytranslated into the Assembly’sStanding Orders, which set out howthe Assembly shall agree its forwardwork programme. A typical sittingweek of the Assembly at the time ofwriting is illustrated in Table 4.2.

Table 4.2: Outline timetable of a typical week of the Assembly in session

AM PM

Monday Constituency business 15.00: Cabinet meeting

Tuesday 9.00-10.30: 14.00-17.30: Business Committee Plenary Meeting (including First 9.30-10.30: Minister’s Question Time)Legislation Committee10.45-1.00: Party Group meetings

Wednesday 9.00-12.30: 14.00-17.30:Subject Committee Meetings Plenary Meeting

Thursday 9.30-12.30: 14.00-17.00: Standing Committee Meetings Time available for additional

committee businessTravel to Regional Committees/ constituencies (each Regional Committee meets3-6 times a year)

Friday Constituency business/ Constituency businessRegional Committees

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62. Both the Scottish Parliament and theNorthern Ireland Assembly haveadopted timetables that typicallyconclude formal business before5.30pm and 6pm respectively, withthe option of sitting later if necessary.However, each of these bodies hasheld more plenary sessions eachweek, and their subject committeeshave been able to meet at leastweekly (see Box 4.6). Overall, theScottish Parliament has routinelyundertaken formal plenary andcommittee business on three days ofthe sitting week. The comparablebusiness at the Assembly is allocatedaround two and a quarter days perweek73 plus the time for RegionalCommittee meetings.

The capacity of the Assembly inplenary

63. The Assembly spends less time inplenary each week than either theScottish Parliament or the NorthernIreland Assembly. For example, intheir respective first sessions (1999-2003), the National Assembly forWales sat for roughly two-thirds of thesitting time of the Scottish Parliament,which usually holds three plenarymeetings totalling nine hours in eachsitting week (see Table 4.3). The

Scottish Parliament also sat for moreweeks in total in this period.

64. The Assembly Review of Procedureconsidered the plenary timetable inits 2002 report. It commented:

On the one hand, there is aconsiderable weight of businesswhich needs to pass throughplenary…On the other, the timing ofplenary meetings needs to recognisethe demands of Assemblycommittees and their other duties onMembers’ time as well as theAssembly’s duty as regards equalopportunities and its commitment tofamily-friendly working for bothMembers and staff…

Extending plenary later into theevening would encroach on or doaway with the time currently used forspecial events, Members’ informalmeetings with outside bodies,meetings of committee chairs, otherpreparatory work in relation tocommittees, and so on…[and] havestaffing and financial implications.74



Table 4.3: Plenary sitting times in the First Assembly and the First Session of theScottish Parliament

Sitting Allocated Actual weeks sitting time sitting time

National Assembly for Wales71 135 910 hours 863 hours

Scottish Parliament72 156 1,424 hours 1,362 hours

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65. On balance, the Review Group feltthat more plenary time should bemade available and recommendedthat Tuesday afternoon sessionsshould normally end at 6pm, withflexibility to continue until 7pm.

Plenary rejected the proposed changeto Standing Orders that would havegiven effect to this recommendation,because it was consideredincompatible with the commitment tofamily-friendly working.

Box 4.6: Working patterns in the Scottish Parliament and the Northern IrelandAssembly

The routine working week of the Scottish Parliament is:

■ all day Tuesday and Wednesday morning – committees; ■ Wednesday afternoon and all day Thursday – meetings of the Parliament.

However, the Parliament can meet on any sitting day during a normal Parliamentary week, which is:

■ Mondays: 14:30-17:30

■ Tuesdays-Thursdays: 09:30-17:30

■ Fridays: 09:30-12:30.

There are 129 Members of the Scottish Parliament. The Parliament has sixteencommittees, plus a separate Scottish Parliamentary Corporate Body (with asimilar role to the Assembly’s House Committee) and Parliamentary Bureau(equivalent to the Assembly’s Business Committee). In addition, five BillCommittees were convened in the first Parliament. Committees have seven ornine members; Ministers do not serve as members of the committees. Mostcommittees meet weekly.

When it was sitting, the Northern Ireland Assembly held plenary sessions onMonday (routinely, from 12 noon – 6pm) and Tuesday (10.30am – 6pm), withthe scope to go on to 7pm if necessary. The pattern and length of committeemeetings was less regular. Most took place weekly on Wednesday and Thursday,although additional meetings were often scheduled on other days (includingFriday) or in the evening.

The Northern Ireland Assembly has 108 Members. The Assembly had tendepartmental committees, each with eleven members, six standing committeesand a separate, smaller Commission to oversee the operation of the Assembly.

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The capacity of Assembly Committees

66. The most significant differencebetween the capacity of the NationalAssembly for Wales and itscounterparts in Scotland andNorthern Ireland – both of whichhave more Members – is the volumeof committee work. The main policycommittees in Scotland and NorthernIreland have usually met weekly. Incontrast, the Assembly’s SubjectCommittees met every two weeksduring the First Assembly, with theopportunity to arrange additionalinformal sessions, off-site meetings orvisits once or twice a term.75

67. In the Second Assembly, thefrequency of Subject Committeemeetings has changed to once everythree weeks. This change, which wasproposed by the current LabourWelsh Assembly Government andopposed by the other parties in theAssembly, was introduced with thestated aim of improving the qualityand focus of committee work andproviding more opportunities forthese committees to conduct theirwork outside Cardiff.76 Oppositionparties claimed that the purpose wasto reduce the scrutiny of government.

68. Many Members serve on at least twoSubject or Standing Committees (seeTable 4.4) and meetings arescheduled so as to avoid timetableclashes for individual committeemembers. The Assembly’s Panel ofSubject Committee Chairs andseveral other witnesses told us thatthe scope for additional committee

meetings is extremely limited. Forexample, Gareth Jones AM, chair ofthe Education and Lifelong LearningCommittee, explained that:

Organising such [additional]meetings… causes difficultiesbecause if a member is on a numberof committees, two or three for somemembers, that then complicates theissue and how frequently one canmeet in order to ensure that allmembers are present.77

(Translated from the original spokenin Welsh)

69. In theory, having smaller committeesmight allow Subject Committees tomeet more frequently. The size ofcommittees is determined by theAssembly on a motion tabled by theBusiness Minister, after the BusinessCommittee has reached a view onthe preferred size. Committees do notall have to be the same size; but the1998 Act requires that themembership of most committeesmust reflect the party balance of thewhole Assembly, ‘as far as ispracticable’.78

70. In the current Assembly, ten-membercommittees have been agreedbecause they allow a party balancethat is very close to that of theAssembly as a whole. In the FirstAssembly, no one size clearly offeredthe best match, and committee sizesbetween nine and eleven memberswere agreed between the parties.



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71. The main argument made againstreducing the size of committees isthat it would have no impact on thenumber of members needed torepresent the smallest parties in theAssembly, because of therequirement to reflect party balanceon each committee. For example, inthe current Assembly, the LiberalDemocrats would still have to fieldone member per committee whetherthe committee size was seven oreleven members. In contrast, LabourParty membership could varybetween three and six members,depending on the options chosen.

72. Following this argument, if theAssembly were to reduce committeesize in order to have more meetingsor more committees, this might forceAMs from the smallest parties tomiss some committee meetingsbecause of timetable clashes.

73. Having smaller committees couldalso reduce the committee workloadfor individual AMs (although again,this benefit might not be realised forMembers of the smallest parties, forthe reason set out above).

74. At the start of the Second Assembly(July 2003), there were 109 Subjectand Standing Committee seats79 tobe filled by 46 AMs.80 The NationalAssembly Advisory Group expectedthat most AMs would be members ofat least two and probably threecommittees, including a Subject anda Regional Committee. In practice,twenty-six AMs sit on three or fourSubject or Standing Committees; if

the Regional Committees areincluded, nearly half of all AMs sit onfour or five committees (Table 4.4).In addition, there are fifteen seats forAMs on the three partnershipcouncils with local government,business and the voluntary sector,which each meet between two andfour times a year.

75. In comparison, the current ScottishParliament has smaller committees(most have seven or nine members).Together with its larger size overall,this means that fewer Members servesimultaneously on more than onecommittee (around a third of MSPsdid so in 2001-02, of whom onlyfour sat on three or morecommittees).81

76. On a three-weekly cycle of SubjectCommittee meetings, the AMs whoare members of most committees willtypically be required to attend in theregion of forty-five formal meetingseach year; this drops to around athird of that number for those whoare members of fewest committees.Chairing a committee significantlyincreases the amount of workinvolved.

77. But for some witnesses, the mainproblem of multiple membership isthe breadth of issues to be mastered.Although the Assembly’s Panel ofChairs argued that doubling up canhelp AMs to make connectionsbetween policy development indifferent fields, one committee chair(Richard Edwards AM) summed upthe more common view82 that:

70

It is very difficult for Members toachieve their maximum potential interms of knowledge and expertise ofsubject matter when they aremembers of several committees andthe pressure of time means theycannot research as thoroughly asthey might be able to do otherwise. Ithink this is reflected perhaps in thescrutiny function of the Committee. I think there is plenty of breadth interms of scrutiny, but perhaps depthwhen it comes to subject matter isquestionable.83

78. Greater flexibility in achieving partybalance on the committees wouldcreate more scope to reducecommittee size. For example, weshow in Table 4.5 how eight-membercommittees could be established inthe current Assembly so as to matchclosely the party balance of thewhole Assembly across the

committees, while requiring onlythree AMs to sit on more than oneSubject Committee.

79. Another way in which committees insome legislative bodies84 increasetheir capacity, in terms of bothexpertise and time, is by using sub-committees or rapporteurs (membersof the committee who take leadresponsibility for a policy issue orspecific task and report back to thefull committee). The Assembly hasmade only limited use of theseapproaches so far. For example, theCulture Committee has appointedrapporteurs to evaluate AssemblySponsored Public Body corporateplans; and the European Committeeis considering establishing a sub-committee to examine thesubsidiarity implications of draft EUlegislation.85



Table 4.4: Distribution of committee membership among Assembly Members (as atJuly 2003)

Number of AMsa

Number of Subject Subject and Subject, Standing committees Committees Standing and Regional per AM only Committees onlyb Committees

b

5 - - 9

4 - 4 19

3 - 22 18

2 17 18 14

1 36 16 -

0 7 - -Notes

a. Includes the Presiding Officer, who attends the House Committee but is not entitled to vote.

b. Standing Committees listed in Box 4.3 plus the House Committee.

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Table 4.5: Meeting the requirement for party balance with smaller committees

This table illustrates one option for establishing eight-member committees in the currentAssembly. This option achieves a close match with the party balance of Assembly acrosscommittees as a whole, but does not offer as good a match on each individual committeeas does the option of ten-member committees, which the Assembly adopted.

Labour Plaid Cons Lib OtherCymru Dems

The Second Assembly

AMs elected in May 2003 30 12 11 6 1a

% of Assembly 50.0 20.0 18.4 10.0 1.6Number of AMs available 28 10 10 5 0to sit on Subject Committees

Option 1: Eight-member committees

Number of committee 4 2 1 1 -members from each party,on four Subject Committees and three Standing Committees% of seats on each 50.0 25.0 12.5 12.5 -committeeNumber of committee 4 1 2 1 -members from each party,on three Subject Committees and two Standing Committees% of seats on each 50.0 12.5 25.0 12.5 -committee% of total committee seats 50.0 19.8 17.7 12.5 -

Option 2: Ten-member committees

Number of committee 5 2 2 1 -members from each party, on all Subject and Standing Committees% of seats on each 50.0 20.0 20.0 10.0 -committeeNotesa. John Marek AM, Deputy Presiding Officer, who sits on the House Committee and attends meetings of the

Business Committee.

b. At the time of writing (December 2003) the First Minister and other party leaders, the Presiding Officer and the Business Minister do not sit on Subject Committees.

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Role, size and structure of thePresiding Office

80. An important element of the capacityof the Assembly is the organisationaland staff support provided to itsMembers. The Presiding Officecomprises the arm of the NationalAssembly for Wales civil servicewhose role is to serve all the Membersof the Assembly, regardless of theirparty affiliation, and to ensure itssuccessful functioning as ademocratically elected body.

81. The Office operates under thedirection of the House Committee (seeBox 4.3) and the guidance of thePresiding Officer. As well as a suite ofservices to support the Assembly andits Members and communicate itswork to the public, the PresidingOffice also includes the translationservice for the whole of the NationalAssembly, including the WelshAssembly Government. Unlike theircounterparts elsewhere in the UK,officials working in the PresidingOffice belong to the UK Home CivilService rather than a separateparliamentary service – anotherfeature that arises from the Assembly’scorporate body structure.

82. In July 1999, 110 staff worked inwhat was then known as the Office ofthe Presiding Officer. At the end ofMarch 2003, there were 225permanent and 24 casual staffworking in the Presiding Office (againsta total of of 294 funded posts).86 Thenumber of permanent staff working inthe various functions of the PresidingOffice is shown in Table 4.6. Areas ofchange since 1999 have included:

■ the growth in translation services tomeet the increase in demand by theAssembly and the AssemblyGovernment;

■ an expansion of the number of staffinvolved in public information andeducation;

■ a new human resource function andexpanded finance functions;

■ the creation of a small legal advicecapacity separate from those workingto the Assembly Government; and

■ the expansion of the Members’research and briefing service.

83. Most of these changes stem from theneed to create independent services tosupport the Presiding Office as theAssembly moves to a moreparliamentary structure. The need tohave separate staff to deal withservices to Members in general, asopposed to services to the AssemblyGovernment, was highlighted duringthe parliamentary debates on theGovernment of Wales Act;87 and weheard no arguments against this inevidence.

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Table 4.6: Number of permanent staff in the Presiding Office, 31 March 200388

Function Number of staff in post

Clerk and Deputy Clerk Offices 3

Assembly Communication Services

Director 1

Information Communication Technology 4

Public Information & Education 28

Record of Proceedings 15

Translation Services 39

Corporate Services

Director 1

Fees & Finance (including Members’ pay and allowances) 11

Human Resources 9

Office & Facilities 42

Members’ Research & Committee Services

Divisional Head 1

Committee Secretariat 30

Members’ Research Services 27

Chamber Secretariat & Table Office 7

Legal Division 2

Private Office for the Presiding Officer and Deputy 4

Trade Union Side 1

TOTAL 225

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Overview of the implications for theAssembly of taking on primarylegislative powers

84. Evaluating the impact on the Assemblyin plenary or in committee of taking onprimary legislative powers is complex,because much would depend on thescale of the legislative programme andits distribution between committees.This in turn would be influenced bycapacity constraints, includingcommittee time and the implicationsfor the staff of the Presiding Office. Thekey issues are:

■ the extent to which the work of passingBills would require the Assemblygenerally, and some or all committees,to become a legislative machine, withmuch time taken up discussing andscrutinising Bills;

■ whether law-making could beintegrated into the work of policydevelopment and scrutiny in a way thatwould preserve the strengths of theexisting system.

85. This would depend on a number offactors, including:

■ how the Assembly itself determined itslegislative programme;

■ the extent to which the Assembly couldwork in partnership with the UKGovernment and Parliament, so thatWelsh legislation in devolved areascould still be passed at Westminster;

■ the nature of the legislative processadopted by the Assembly. The Rt HonSir David Steel KBE MSP, PresidingOfficer of the Scottish Parliament,highlighted his concern that the

scrutiny of some Bills in Scotland hadbeen rushed;89

■ how the Assembly prioritised legislationalongside other business;

■ the extent to which the AssemblyGovernment and the Assembly as awhole saw legislation (as opposed toother policy delivery tools) as necessaryto achieve their objectives for Wales.Speaking about the experience of thefirst four years of the ScottishParliament, Fiona Hyslop MSP arguedthat:

Just because you can legislate doesn’tnecessarily mean you should… if therewas a criticism of our first period, therehas been too much legislation…I think there is also a danger that thegovernment looks first for legislativesolutions rather than policy solutions.90

86. These issues are developed in laterchapters and the Commission’s overallassessment is considered in Chapters13 and 14. In this section, we look atthe nature of the demands on theAssembly’s capacity as a legislativebody that would be created by primarylegislative powers.

The primary legislative process

87. In essence, the process of consideringprimary legislation has three mainstages:

■ scrutiny of the Bill’s principles;

■ detailed scrutiny and amendment ofthe precise wording of the Bill;

■ second revision and adoption of thelegislation.

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88. Different legislative bodies vary in thetime spent on these stages and theirallocation between plenary andcommittees. In the WestminsterParliament, Bills are considered byboth the Commons and the Lords,which means that there issubstantially more capacity forscrutiny and revision than is availablein the unicameral devolved legislativebodies. Bills in the Lords go throughlargely the same stages as in theCommons: a formal first reading, asubstantial debate on second reading,

detailed amendments at committeestage and report, and furtherconsideration (and, in the Lords only,amendments) at third reading.

89. In the devolved bodies, the absence ofa revising chamber makes it vital thatthe procedures are robust and allowfor full scrutiny and consultationbefore the Bill is sent for RoyalAssent. For illustration, the primarylegislation process of the ScottishParliament is summarised in Box 4.7.

Box 4.7: Scottish Parliament procedures for making primary legislation91

Bills can be introduced into the Parliament by different means:

■ Executive Bills are introduced into the Parliament by a Minister;

■ Committee Bills are introduced by the convener of a committee and mayfollow a committee inquiry on the need for legislation in a particular area;

■ any MSP who is not a member of the Executive can propose a Member's Bill. Ifthe proposal attracts support from eleven other MSPs, the MSP can thenintroduce a Bill to give effect to it at any time during the four-year session;

■ Private Bills are introduced by a person (other than an MSP) or body(“promoter”).

The usual parliamentary process for a Bill consists of three stages:

■ Stage 1 – consideration of the general principles of the Bill by parliamentarycommittee(s), and a debate on these by the Parliament;

■ Stage 2 – detailed consideration of the Bill by parliamentary committee(s);

■ Stage 3 – final consideration of the Bill by the Parliament and a decisionwhether it should be passed or rejected.

After a Bill has been passed by the Parliament, it is sent to Her Majesty theQueen for Royal Assent.

76

90. The Acts made by the First Session ofthe Scottish Parliament and by theNorthern Ireland Assembly between1999 and 2002 are listed in Annexes6 and 7. Individual Bills varyenormously in the amount oflegislative work required – not justbecause of the length or complexity ofthe policy proposals, but also becausea controversial issue such as personalcare for older people will requiresubstantially more time forconsultation, debate and scrutiny. Anexample is set out in Box 4.8: theScottish Public Services OmbudsmanAct 2002 (a relatively short,uncontroversial Bill, whichimplemented proposals similar to thosefor which the Assembly has soughtlegislation in Westminster).

91. If the Assembly were to be givenprimary legislative powers, the mainwork of scrutiny would fall oncommittees, who would have the task ofscrutinising in detail, line by line, theproposed new laws, usually following aprocess of consultation.

92. This work has proved to be a major taskfor the committees of the ScottishParliament. Unlike the House ofCommons, which has essentially twotypes of committees – SelectCommittees that deal with the scrutinyof policy and Standing Committees thatexamine individual Bills – the Scottishcommittees bear both the full weight ofscrutiny of legislation and a policychallenge and scrutiny role similar tothat of the Assembly’s committees. Thisis also the norm elsewhere in Europe.

93. The burden of legislation is not evenlyspread. The First Scottish Parliament

passed sixty-two Bills, which were sharedbetween lead committees as shown inTable 4.7.

94. The Scottish committees cope with thisworkload by meeting weekly and, onfive occasions in the first session of theParliament, by establishing special Billcommittees. This option is feasiblebecause there are more Members thanin Cardiff and some committees aresmaller. Nevertheless, even with aweekly meeting cycle, the work ofscrutinising Bills can sometimes beonerous, as Alex Fergusson MSP, theConvener of the Scottish ParliamentRural Affairs Committee, and Sir DavidSteel MSP, Presiding Officer of theScottish Parliament, explained:

Our main role is to scrutinise Bills andpropose amendments to legislation.We have dealt with, up to now, threeMembers’ Bills ranging from one ofthe shortest Bills, a Sea FisheriesAmendment… which simply wentthrough on the nod, to one of thelongest Bills, the Protection of WildMammals Bill, known as the HuntingBill, which is a Private Member’s Billby Mike Watson and that took usvirtually almost two years of extremelyhard work... [and] we have had twovery large Executive Bills.92

As you can imagine, health is apopular issue and the Committee setoff with a whole list of issues theywanted to have inquiries into.However, they soon discovered theywere so busy dealing with legislationthat they simply could not get on withtheir inquiries and other work.93



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Box 4.8: Parliamentary time needed for the scrutiny of primary legislation

The Scottish Public Services Ombudsman Act 2002

This Act of the Scottish Parliament, which has twenty-seven sections and sevenschedules, creates the Scottish Public Services Ombudsman to investigatemaladministration complaints against Members of the Scottish Executive and otheroffice-holders in the Scottish Administration. The new Ombudsman alsoinvestigates certain complaints relating to the Health Service, local government andhousing associations. The Act therefore has parallels with the Welsh AssemblyGovernment’s request for new primary legislation to establish a single Ombudsmanfor Wales (see Chapter 5).

Stage Body Time taken

Pre-legislation consultation Local Government Committee 1h 30m

Stage 1: consideration of principles

Evidence session Local Government Committee 2h 30m(18 December 2001) (lead Committee)Consideration of draft report Not known(private session on 15 January 2002)Evidence session Health and Community Care 2h 10m(5 December 2001) CommitteeConsideration of draft report Not known(private session on 12 December 2001)Consideration of draft Bill Subordinate Legislation <5m(11 and 18 December 2001) CommitteeStage 1 debate Full Parliament 1h 45m(31 January 2002)

Stage 2: detailed Bill scrutiny

Consideration of amendments Local Government Committee 0h 40m(5 March 2002)

Stage 3: final consideration

Debate and vote on Bill Full Parliament 0h 30m (21 March 2002)

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Table 4.7: Committee consideration of Bills that became law in the First Session ofthe Scottish Parliament94

Committee Number of Billsconsidereda

Education, Culture and Sport 5

Enterprise and Lifelong Learning 3

Health and Community Care 3

Justice 1 (formerly Justice and Home Affairs) 10

Justice 2b 5

Local Government 9

Rural Development (formerly Rural Affairs) 6

Social Justice(formerly Social Inclusion, Housing and Voluntary Sector) 4

Transport and the Environment 4

Otherc 13Notes

a. The number refers to the number of Bills considered by each committee as lead committee (committeesalso consider other Bills in which they have an interest). It does not include Bills that were considered bycommittees but did not subsequently become law.

b. Created 14 December 2000.

c. Bills considered by full Parliament, special Bill or other committees.

95. Like the committees, the Assemblyplenary would also have to allocate itstime differently and/or sit for longer toallow time for the scrutiny of Bills. Theexperience of the Scottish Parliament(Box 4.9) suggests that somegovernment business in the form ofstatements or policy debates would

make way for debate on Bills, and thatmuch less time would spentscrutinising subordinate legislation. Onthe other hand, the need to debateprimary legislation would be likely atleast to maintain the government’sinfluence on the timetable of theelected body.

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Findings

The evidence on the role, structure andoperation of the Assembly points to thefollowing conclusions:

� the corporate body concept enshrinedin the Government of Wales Act stillhas a significant influence on theAssembly’s operation, particularly theSubject Committees;

� whatever hopes there may have beenthat the corporate body conceptwould promote a new kind ofinclusive and open style politics, itseems that it is no longer asustainable structure, and has alsocontributed significantly to thepublic’s confusion as to who takesdecisions;

� the structures of the NationalAssembly should make it absolutelyclear that there is a Welsh Assembly

Government responsible for executiveacts and decisions, separate from theNational Assembly itself but directlyanswerable and accountable to it;

� there is a trade-off between policydevelopment and effective scrutiny –not only in terms of committee time,but also in the style of committeework;

� Ministers’ membership of SubjectCommittees has benefited theirdeliberations, but it suppresses thedevelopment of a scrutiny culture incommittee and obscures the lines ofaccountability;

� gaining primary legislative powerswould increase and change thepattern of work of the Assembly –but the scale of the impact woulddepend on the size of the legislativeprogramme;

Other 4%

Statement 4%

Questions 11%

Motions for debate: other 36%

Motions for debate: Scottish Executive 20%

Subordinate legislation less than 0.1%

Bills 25%

Box 4.9 Division of time on plenary business in the Scottish Parliament, May 2001 - May 200295

■ primary legislative powers would alsorequire a stronger culture of scrutinywithin the Assembly;

■ there is capacity within the existingsize of the Assembly to absorb someof the additional work that wouldaccompany primary legislativepowers, by:

■ focusing Subject Committees on ascrutiny role;

■ extending the working week forformal Assembly business to at leastthree days every week and adjustingthe balance of time spent on differentactivities;

■ increasing the number of sittingweeks per year;

■ adopting a more flexible approach toimplementing the Assembly’scommitment to family-friendlyworking;

■ re-aligning the Regional Committeeboundaries so that no AM serves onmore than one Regional Committee;

■ reducing committee size and makingmore use of flexible approaches tocommittee working, such asrapporteurs;

■ however, these changes would not beenough to accommodate a primarylegislative programme;

■ primary legislative powers would alsorequire changes to the nature andscale of support provided by thePresiding Office;

■ the existing size and structure of theAssembly would be placed underconsiderable strain if the Assembly’spowers were significantly broadenedto include new policy fields.

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Notes

1Commission on the Powers and Electoral Arrangements of the National Assembly for Wales, ElectoralArrangements of the National Assembly for Wales: Issues and Questions for Consultation (Cardiff, March 2003).

2Welsh Office, A Voice for Wales, Cm 3718 (1997).

3Ibid, 7.

4Oral evidence of the Rt Hon Ron Davies AM, 26 September 2002.

5The term “corporate body” refers to the legal identity of the Assembly, but is commonly used to describe theconstruction of the Assembly as a single body.

6Oral evidence of the Presiding Officer and Deputy Presiding Officer of the National Assembly for Wales, 5December 2002.

7Assembly Review of Procedure: Final Report (Cardiff: National Assembly for Wales, February 2002).

8House of Commons Debates, 2 February 1998, col. 751.

9Ibid. col. 748.

10Welsh Office, Local Voices: Modernising Local Government in Wales, Cm 4028 (London: The Stationery Office,July 1998).

11Government of Wales Act 1998 c.38, section 62.

12Oral evidence of Mari James, 25 October 2002.

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13Oral evidence of the Permanent Secretary of the National Assembly for Wales, 13 December 2002.


15Written evidence of the Counsel General to the National Assembly for Wales, December 2002.

16Government of Wales Act 1998 c.38, section 62(5).

17Ibid., section 63.

18Up to two members of the Cabinet may have no such accountability: ibid., section 56(4) and National Assemblyfor Wales Standing Order 2.5.

19The National Assembly for Wales (Transfer of Functions) Order 1999, SI 1999/672.

20The 1998 Act also requires the Assembly to establish a local government partnership council, which isdiscussed in Chapter 5.

21Government of Wales Act 1998 c.38, section 53 and Standing Order 2.5.

22Government of Wales Act 1998 c.38, section 57(3-4).

23Ibid., section 57(5).

24Ibid., section 57(4).

25Ibid., sections 60 and 102.



28Oral evidence of the Minister for the Environment, 21 November 2002 and oral evidence of the Chair of theEnvironment, Planning and Transport Committee, 5 December 2002.

29Standing Order 9.

30Data provided by the Presiding Office Members Research and Committee Services, October 2003.

31National Assembly for Wales Culture Committee and Education and Lifelong Learning Committee, Ein Hiaith - EiDyfodol/Our Language - Its Future (Cardiff: National Assembly for Wales, 2002).

32The Lord Elis-Thomas AM, oral evidence of the Presiding Officer and Deputy Presiding Officer of the NationalAssembly for Wales, 5 December 2002.

33Ibid.

34Oral evidence of the Association of National Park Authorities, the National Trust, RSPB Cymru and the ForestryCommission, 8 May 2003.

35Oral evidence of the Chair of the Health and Social Services Committee, 5 December 2002.

36For example, see oral evidence of the Chair of the Economic Development Committee, 10 April 2003.

37Oral evidence of the Chair of the Agriculture and Rural Development Committee, 27 February 2003.

38Government of Wales Act 1998 c.38, section 57(4).


40Assembly Review of Procedure: Final Report (February 2002), 25.

41See, for example, oral evidence of the Minister for Economic Development, 7 November 2002.

42Oral evidence of the Chair of the Environment, Planning and Transport Committee, 5 December 2002.


44Assembly Review of Procedure Final Report (February 2002), 30.

45Oral evidence of the Chair of the European and External Affairs Committee, 27 March 2003.

46Malcolm Thomas, oral evidence of Wales Young Farmers Clubs, Country Land and Business Association,National Farmers’ Union Cymru, Farmers’ Union of Wales, Urdd Gobaith Cymru, Royal Welsh Agriculture Showand Meat Promotion Wales, 8 May 2003.

47Welsh Office, A Voice for Wales, Cm 3718 (July 1997), 8.


49Data provided by the Presiding Office Chamber Secretariat, September 2003.

50Government of Wales Act 1998 c.38, sections 64-68.

51Subordinate legislation that is a statutory instrument made solely by the Assembly.

52Standing Order 22.

53Written evidence of the Counsel General to the National Assembly for Wales, December 2002.

54Ibid.

55Written Assembly Question 26569, National Assembly for Wales Written Questions Answered between 26 June-3 July 2003, 2.

56Data provided by the Presiding Office Members Research and Committee Services.

57The Seeds (National List of Varieties) Regulations 2000 were rejected on 19 October 2000.

58Christine Gwyther AM’s Motion agreed on 6 March 2001 resulted in the Town and Country Planning (UseClasses) (Amendment) (Wales) Order 2002; Brian Hancock AM’s Motion agreed on 18 April 2000 resulted inthe Education (Extension of Careers Education) (Wales) Regulations 2001.

59Ieuan Wyn Jones AM, oral evidence of Plaid Cymru Party of Wales, 27 February 2003.

60Jocelyn Davies AM, ibid.

61Oral evidence of the Chair of the Agriculture and Rural Development Committee, 27 February 2003.

62Oral evidence of the Chair of the Subordinate Legislation Committee, 6 December 2002.

63House of Commons Debates, 8 December 1997, cols. 675-76.

64Written submission of the Assembly Panel of Subject Committee Chairs, November 2002.

65See paragraph 32 of this chapter.

66Written submission of the Assembly Panel of Subject Committee Chairs, November 2002.

67Oral evidence of the Chair of the Culture Committee, 12 December 2002.

68National Assembly Advisory Group, Report to the Secretary of State for Wales (Cardiff: Welsh Office, August1998), 7.

69Ibid., 43.

70National Assembly for Wales, Code of Protocol on Conduct in the Chamber: Presiding Officer’s Protocol onConduct in the Chamber/Rules of Debate (April 2000).

71Data provided by the Presiding Office Chamber Secretariat.

72Data provided by the Scottish Parliament Information Centre.

73This figure includes time on Tuesday morning (9.00 to 10.30) for Business and Legislation Committees.


.

82



83The Richard Commission

75Although, on occasion, overlapping membership of the Committees prevented any additional slots being includedin the timetable: e.g. the Autumn Term of 2002.

76Statement of the Business Minister to Plenary, National Assembly for Wales Record of Proceedings, 17 June2003.

77Oral evidence of the Chair of the Education and Lifelong Learning Committee, 12 December 2002.

78Government of Wales Act 1998 c.38. The requirement applies to Subject Committees (section 57(8)), theLegislation Committee (section 59(2)), the Audit Committee (section 60(3)) and any other committee establishedby the Assembly unless it exists ‘solely to provide advice’ (section 54(2)(b)).

79120 seats on the seven Subject Committees and five Standing Committees (excluding the House and BusinessCommittees), less seven Minister seats on Subject Committees and the First Minister and three other party leaderseats on the European and External Affairs Committee.

80Sixty AMs less the Cabinet (nine AMs), the three other party leaders, the Presiding Officer and the DeputyPresiding Officer.

81Scottish Parliamentary Corporate Body, Scottish Parliament Statistics 2002, SP Paper 8, Session 2 (TheStationery Office Ltd, 2003).

82For example, oral evidence of Delyth Evans, 11 July 2003; written response to consultation, John Griffiths AM.

83Oral evidence of the Chair of the Environment, Planning and Transport Committee, 5 December 2002.

84Including the Scottish Parliament, the Houses of the Oireachtas (Parliament of Ireland) and the EuropeanParliament.

85Information provided by the Presiding Office Members Research and Committee Service.

86Figures provided by the Clerk to the National Assembly for Wales, January 2004.

87Rhodri Morgan MP, House of Commons Debates, 25 March 1998, col.563.

88House Committee, Assembly Members’ Services 2002-2003 (Cardiff: National Assembly for Wales, October2003). Available at http://assembly/committees/house/annual-reports/HC_Annual_report.pdf (accessed 2February 2004).

89Oral evidence of the Presiding Officer, Deputy Presiding Officer and Clerk of the Scottish Parliament, 13 February2003.

90Oral evidence of the Leader of the Scottish National Party and Shadow First Minister of the Scottish Parliamentand Fiona Hyslop MSP, Member of the Parliamentary Bureau, 13 February 2003.

91Adapted from ‘How Does the Scottish Parliament Make Laws?’, The Scottish Parliament [website],http://www.scottish.parliament.uk/visitor/faq.html#12, accessed 20 January 2004.

92Oral evidence of the Committee Conveners of the Scottish Parliament, 13 February 2003.

93Oral evidence of the Presiding Officer, Deputy Presiding Officer and Clerk of the Scottish Parliament, 13 February2003.

94Collated from editions of WHISP (What’s Happening in the Scottish Parliament), 1-149 (Edinburgh: TheScottish Parliament, May 1999-March 2003).

95Collated from Scottish Parliamentary Corporate Body, op. cit.


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chapter 5: the scope and adequacyof the devolved powers


2. The chapter aims to address thefollowing questions:

■ what does the 1998 devolutionsettlement allow the Welsh AssemblyGovernment to do?

■ to what extent have the limits of theexecutive powers in themselvesprovided a brake on the actions orambitions of the Welsh AssemblyGovernment?

■ what are the strengths and weaknessesof the present arrangements?

3. The chapter starts by describing themain features of the settlement andwhy it was adopted for Wales. It thensummarises the evidence provided bythe Ministers of the Welsh AssemblyGovernment about the way they haveused the powers available to them.1

It also draws on the views of Assemblycommittees and those affected by theactions of the Government.

4. This very detailed evidence on eachportfolio has been most helpful to us inidentifying the issues, although it hasnot been possible to summarise all ofthis material here. The chapter aims topull out the key examples that are mostrelevant to our terms of reference indemonstrating both the potential andthe limits of the existing settlement andits consequences for accountability tothe people of Wales.

5. We return to some of the themesemerging from this evidence on theuse of the powers later in the report.This chapter concludes by examiningone of the main criticisms made of thedevolution settlement – that it isparticularly complex to understand andto operate.

Summary of the main features ofexecutive devolution in Wales

6. The structure of devolution in Wales hastwo features which, taken together,make it unique among national orregional elected bodies worldwide.

7. First, Westminster has transferred tothe Assembly the power of executivecompetence only – the power to makeprimary legislation in all fields affectingWales is reserved to Westminster. Thepower of executive competence refersto the specific powers conferred byindividual Acts of Parliament onSecretaries of State to make orders orregulations or take other steps thatgive detailed effect to the intention ofthe Act itself. For example, the level ofprescription charges and categories forexemption from charges, the standardsto be applied in care homes for theelderly and bus travel concessions areall implemented through secondarylegislation.

The scope and adequacy of thedevolved powersThis chapter reviews the devolution settlement from a constitutional anda practical perspective, looking at both the legal nature of the powersconferred on the Assembly and how they have been used in practice.

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8. Second, there is an importantdifference in the way in whichexecutive functions were transferred inthe Government of Wales Act and theScotland Act. Although it is widelyappreciated that the ScottishParliament has primary law-makingpowers and the National Assembly forWales does not, it is not so wellrecognised that the scope of theexecutive powers transferred in respectof Wales is much more limited than inrespect of Scotland. The Scotland Act1998 transferred to the ScottishExecutive all executive powerspreviously conferred on a Secretary ofState by any Act of Parliament, unlessspecifically excepted.2 By and large,the exceptions in respect of executivepowers mirror those for primarylegislative powers.

9. This means that it is possible toassume that, where a Minister inEngland has a power to act in aparticular devolved area of policy, theScottish Executive will have the samepower unless it is specifically reservedby the Act. For post-devolutionexecutive powers, Parliament uses thedevice of deeming the legislation tohave been passed pre-1999 so thatthe powers can, under the ScotlandAct, be conferred on the ScottishExecutive.

10. The approach taken in Wales wasquite different. The Government ofWales Act includes in Schedule 23 alist of fields in which functions had tobe considered for inclusion in the firstOrder that transferred functions to theAssembly. However, it is not possibleto assume that all existing or future

powers in those fields that aredelegated to Ministers by an Act ofParliament have been, or will be,transferred. Instead, the 1999 Transferof Functions Order (TFO) by and largetransferred only the powers thenexercised by the Secretary of State forWales, as explained by Professor DavidMiers, Professor of Law at Cardiff LawSchool:

With hindsight, it appears that theexpectations that were raised in AVoice for Wales, namely that therewould be transfers by subject area –generic, in education, in health,agriculture and so on – have been notrealised. On the contrary, the mode oftransfer both in the 1999 Order andsubsequently is by means of discretetransfer of specific functions withinspecific sections or sometimessubsections of Acts of Parliament.These are listed in the 1999 TFO,some 350 I think of them, and arelisted chronologically rather than byany form of subject coherence.

I think it is worth stressing that thismode of transfer was not obligatoryunder the Government of Wales Act.Sections 21 and 22 merely providethat functions may be transferred tothe Assembly; they do not specify themode of transfer in the sense of thedegree of specificity. There is nothingin those sections which wouldpreclude, it seems to me, the UnitedKingdom Parliament from transferringto the Assembly functions broadlydrawn in education, but subject toexceptions no doubt.4



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11. Ron Davies AM, who as Secretary ofState for Wales was instrumental indeveloping the devolutionarrangements, explained that theapproach of transferring only theexisting functions of the Secretary ofState for Wales was adopted largely forpragmatic reasons – to get hisproposals agreed by the Cabinet asquickly as possible with minimumargument. He said that, had it beennecessary to negotiate with all therelevant Departments which powersshould be delegated to the Assembly,this would have been a huge task withgreat potential for delay. He felt thepriority was to get the legislationthrough and establish the principle ofdevolution, leaving the detail to besorted out later:

I knew that was going to form a very,very ragged edge in the powers – aswe have seen time after time since.But had I argued then – let’s take thecase of DEFRA, for example – that onthis issue of animal health we reallyneed to have a serious look at theextent to which we can devolve somepowers and we need to tidy up thisragged edge, we'd still be talkingtoday.

…Certainly the tactic [in Governmentdiscussions on devolution] was just totuck behind Scotland – let the Scotshandle the big issues and for us tobenefit.5

12. Nevertheless, the evidence suggeststhat the approach to transferringfunctions that was adopted for Walesseems to have had a number of

consequences that might not havebeen fully appreciated at the time.

13. First, it affects the development ofdevolution because it conditions theway Whitehall views the potentialtransfer of existing and new powers tothe Assembly. Before the creation ofthe Assembly, legislation simplyspecified that powers were delegatedto “the Secretary of State” – whetherthis meant the Secretary of State forWales or another Minister was amatter for administrative decision andwas often sorted out by agreementbetween officials some time after theAct was passed. Now, the distributionof powers between Whitehall andCardiff must be negotiated andspecified in each new Bill. We discussthis process further in Chapter 7 onthe Wales-Whitehall relationship.

14. Second, the complexity of theboundaries between devolved andnon-devolved powers creates problemsfor politicians, organisations that dealwith the Assembly and the generalpublic. We return to this issue later inthis chapter (paragraph 121), afterreviewing how the Assembly has usedits powers.

Scope and use of the Assembly’spowers in the First Assembly

15. This section examines how theAssembly’s powers have been used inpractice. Although there are somerecurring themes, we felt it wasimportant to review the powersavailable across all the Assembly’spolicy responsibilities. The paragraphsbelow therefore provide a synopsis of

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the powers in each Ministerial portfolioand what has, and has not, beenpossible in using these powers. Wehave used the division of portfoliosthat existed during the First Assemblybecause this is the basis on which theevidence was given to us.

16. Each Minister has to work within avery detailed set of powers comprising:

■ powers conferred by the Governmentof Wales Act itself;

■ powers previously exercised by theSecretary of State that were transferredto the Assembly by the Transfer ofFunctions orders;

■ powers conferred on the Assembly bylaws passed since July 1999.

17. Overall, the message of the evidencefrom Welsh Assembly GovernmentMinisters was that the powers havegiven them sufficient scope to deliver adistinctive policy agenda for Wales –albeit with some specific constraints,which were more significant in someportfolios than others. The FirstMinister, the Rt Hon Rhodri MorganAM, summed up his approach to thetask of governing with the Assembly’spowers:

I enjoy trying to find a way ofdelivering something that does notinvolve knocking down the walls of thesystem but involves operating withinthe system, with a lot of creative effortand thought. That is what I think I amgood at, and that is what I think hasbeen the characteristic of theAssembly, to find a way around theproblems, and by and large we have.6

18. In his concluding evidence, he addedthat, in his view:

If, at some stage in the future, theAssembly was to acquire greaterpowers, it would be because it hadearned them and not because thepresent powers are not working.7

Education and lifelong learning

19. The education portfolio is one wherethe Welsh Assembly Government hasvery extensive powers under thepresent settlement. The Minister forEducation and Lifelong Learning, Jane Davidson AM, told us:

I think we have been able to deliver avery imaginative, Welsh agenda withinexisting powers.

...The majority of my agenda does notrequire primary legislation; it requiresdelivery, not least because so fewpowers are actually retained centrally,and most of the powers are devolvedto Wales. There are very few areas onwhich I would actively need to seekprimary legislation.8

20. To some extent, this position reflectsthe Assembly Government’s success inobtaining what primary legislation ithas needed to implement its policies.Thus the Minister explained that:

■ the Education Act 2002 had providedher with an early, significantopportunity for primary legislation –with 185 of 217 sections relating toWales, including a number of Wales-only measures required in order todeliver her policy priorities;



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■ in relation to post-16 education andtraining (the Learning and Skills Act2000), she was working withprovisions which had been designedwith devolution in mind and conferredsignificant new powers on theAssembly;

■ the one power that she felt was stilllacking was the power of last resort inrespect of planning relevant to highereducation.

21. In her evidence, the Minister made anumber of points that illustrate aspectsof the primary legislative process forWales since the advent of theAssembly:9

■ because the Assembly Governmenthad already set out its policy proposalsin The Learning Country, it was in aposition to instruct in-house lawyersand subsequently to draft instructionsfor Parliamentary Counsel on the basisof a position on which there was abroad consensus;

■ this also enabled the SubjectCommittee to have a role – it receivedreports from the Wales Office Ministerresponsible for taking the clausesaffecting Wales through Parliament;

■ the UK Government was content withthe divergent Welsh policies containedin the Education Act 2002 becausethese were seen as differences indelivery mechanisms alone:

What we did have in this Bill was thesame philosophy, but differentstrategic action, as it were, on how todelivery a philosophy. That was aboutensuring all children achieve to thebest of their ability…10

22. Defining the overall aims in this verybroad way did allow the samelegislative framework to deliver verysignificant differences in approach inEngland and Wales:

We were not going to support specialistschools in Wales. We wanted tomaintain the comprehensive agenda,for example; we wanted our schools tobe community resources.11

23. One important feature of the presentdevolution settlement is the effect whenprimary legislation provides apermissive power, enabling theAssembly to do something but notrequiring it to do so. This provides anopportunity for the AssemblyGovernment to decide not to follow thepolicy direction set in Whitehall. TheMinister’s evidence demonstrates that,in the 2002 Education Act, thedelegated powers were defined in thisway in recognition of the role of theAssembly:

Where in the past clauses might havebeen instituted on a mandatory basis –you must, you shall – the decision wastaken that, for Wales, the powers wouldbe crafted on a permissive basis forEngland and Wales. So Wales clausesare Wales only; where it is England andWales, rather than ‘you must, youshall’….it was, by agreement, ‘theAssembly may.’12

24. On the legislative process itself, theMinister commented that the ability totake advantage of the legislative timeand drafting resources committed to theEducation Act 2002 by Whitehall wasextremely valuable in terms of gettingher legislative proposals enacted:

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I have no doubt at this point in timethat we had the best of both worlds inthis piece of legislation…It was hardfor us to find a couple of officials todedicate...solely to doing the work....The vast majority of clauses wereEngland and Wales related…We arenot in an administrative (or) legislativeposition at this point in the Assemblywhere we could take on that sort ofeffort ourselves.13

25. Overall, the Minister felt that, inrelation to schools, the powers sheneeded were, largely, already devolvedto the Assembly, with the presumptionof Wales doing its own thing wellestablished in relations withWhitehall. For example, the provisionsin the 2002 Act for admission forums(since enacted through regulations)would help to ensure allocation ofschool places on a more co-operativebasis. In relation to the 2003-04legislative programme, the Ministersought further primary legislativeopportunity to reinforce some deliverymeasures in The Learning Country.

26. This view of the boundaries of theAssembly’s powers in relation toschools was challenged in PlaidCymru’s evidence to the Commission.Cynog Dafis AM argued that theEngland and Wales legislation onschools funding and admissions hadput in place a market-drivenapproach, which would constrain afuture Welsh Assembly Governmentthat wished to strengthen thecomprehensive community schoolmodel:

Let us say we were keen to return toa system…where schools were in asystem of co-operation rather thancompetition and you did want tointroduce changes in the fundingstructures to schools, so that youwere funding schools on the basis ofneed... That would require primarylegislation and then you wouldimmediately hit very importantbarriers that could be vital in thedevelopment of the sort ofeducational system that we would bekeen to establish here in Wales.14


27. Powers over the curriculum in Walesare an example of the extent of, andconstraints upon, delegated powers.The Minister said:

The National Curriculum is nowtotally in the hands of Wales, whichis where it should be.15

28. However she recognised that, if theAssembly Government wanted toamend the basic curriculum so that itno longer included religious educationand sex education, it would needprimary legislation to do that. Itwould also need primary legislation toabolish the National Curriculumaltogether. Similarly, primarylegislative powers were needed tointroduce the foundation curriculumfor 3-7 year olds.

29. In relation to post-16 education, theLearning and Skills Act 2000



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empowered the Assembly to deliverthe major reforms in the structure offurther education and trainingrecommended by the Education andTraining Action Group (ETAG)established by the Secretary of Statein 1998.16 The Act put in place alegislative framework that tookaccount of devolution and thatimplemented a policy position whichwas widely seen as settled followingthe work of ETAG and the Post-16Education and Training Committee.17

30. The proposal to transfer studentsupport powers to the Assembly isdiscussed in Chapter 9.

Teachers’ pay and conditions

31. The relationship between teacherappraisal (performance management),which is devolved, and teachers’ payand conditions, not devolved, becamea matter of debate early in the life ofthe Assembly. It also established theprinciple that committees could seeklegal advice independently fromMinisters (see Box 5.1).

32. To expand the powers of theAssembly and create a more self-contained set of powers in relation toteachers would involve the transfer tothe Assembly of the powers todetermine teachers’ pay andconditions (and, probably, teachers’pensions), putting Wales in a similarposition to Scotland and NorthernIreland. The Minister told us that shedid not wish to go down this route,pointing out that the devolved powersalready allowed the adoption of adifferent approach to teachers’

performance management in Wales.UCAC (the only teachers’representative body that gaveevidence to us), which representsmany Welsh medium teachers,argued for this change, butconditional on the Assembly acquiringtax-varying powers.18

33. The split between policy andresponsibility for pay and conditionsarises in a number of other devolvedareas, notably the NHS and localgovernment staff. It would also arise ifcertain Home Office powers weretransferred (see Chapter 9).

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Box 5.1: Teachers’ performance pay

The issue of teachers’ performance pay was an early test of the relationshipbetween closely related devolved and non-devolved powers. It also provokedone of the first moves towards the recognition of separate identities for theAssembly Government and the wider National Assembly, in that it establishedthe right of Subject Committees to obtain their own legal advice.

Powers in respect of the performance management of teachers in Wales aredevolved to the Assembly, but powers relating to teachers’ pay and conditionsrest with the UK Government. In 1999, the Department for Education andEmployment proposed to introduce new pay arrangements for classroomteachers. Progress through the lower pay range would continue to beessentially incremental; but crossing the threshold to the higher range wouldbe subject to a specific performance assessment.

The Assembly inherited these proposals for implementation in Wales. The Pre-16 Education, Schools and Early Learning Committee welcomed the AssemblySecretary’s plans for the performance management system. However, somemembers were very concerned about the proposals for the pay thresholdassessments (which would apply across England and Wales) and how thesewould interact with the Assembly’s scheme.

The Assembly Secretary, Rosemary Butler AM, argued that the Assembly hadno powers to determine arrangements for the pay threshold assessment, butrefused to show the Committee the legal advice that supported this view. Sincethe new pay threshold standards were based on an assessment of teachers’performance, the Committee was not certain that the Assembly had no powerto act; and it therefore decided to obtain its own legal opinion.19

Two weeks later, the Assembly Secretary supplied the Committee with astatement of further legal advice that she had obtained on the issue fromleading counsel, which confirmed the advice already given and concluded that:

The National Assembly for Wales lacks power to set legally binding criteriaagainst which teachers in Wales will be assessed if they wish to qualify for theproposed new pay point.20

She undertook to ensure that, in future, the Committee would have a fullstatement of the factual and legal background to an issue where this wouldassist, and that a representative of the Assembly’s legal office would attendcommittee meetings.

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Health and social services (includingthe voluntary sector)

34. The health and social servicesportfolio is the largest in expenditureterms, covering about one third ofthe Assembly’s budget. The Minister,Jane Hutt AM, gave an insight intomany facets of the devolutionsettlement, including:

■ extensive experience of Westminsterlegislation post-1999 to implementthe policies of the Welsh AssemblyGovernment;

■ use of secondary legislation powersto tailor England and Wales policiesto Welsh needs;

■ collaboration with non-devolvedservices;

■ use of new Government of Wales Actpowers in relation to the voluntarysector;

■ the importance of cross-borderconsiderations, including in respectof NHS services and the pay andretention of staff;

■ financial constraints on the use ofpowers;

■ continuity of pre-1999 executivepowers for performance managementthrough targets and strategies.

35. Some of these are discussed in moredetail below.

36. The Minister’s experience of theprimary legislative process had beenconstructive. She had put forwardtwo sets of Wales-only provisions inEngland and Wales Bills and twoWales-only Bills. In both cases, ithad been necessary to legislate forurgent measures by slotting theminto England and Wales measuresalready in the Government’sprogramme, and then follow thesewith subsequent Wales-only Bills toimplement less urgent matters.

37. The first such measure was theChildren’s Commissioner for WalesBill – powers to establish the officewere provided in the England andWales Care Standards Act 2000, andbroader powers were conferredsubsequently by the Wales-onlyChildren’s Commissioner for WalesAct 2001. Here, the origin of the

Box 5.1: Teachers’ performance pay (continued)

Nevertheless,the Committee decided that it still wished to obtain its own legaladvice.21 This subsequently confirmed that the Assembly had no powers tospecify the criteria for teachers’ performance-related pay – but it also advisedthat the Secretary of State could determine teachers' pay in Wales by reference tothe system of teacher appraisal set out in the Assembly’s own regulations.22 TheDepartment of Education and Employment rejected the Committee’s subsequentrequest to this end; and the Committee then decided to postpone further actionpending the outcome of a judicial review being pursued by the teachingunions.23 In the event, the matter was not pursued.

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measure in a joint Ministerialresponse to the Waterhouse report,24

and the wide consensus in support ofthe proposal, meant that this couldbe a ‘fast track’ piece of legislation.The Department of Health presentedno objections to the Welsh proposal,viewing it as a potential pilot forconsidering a similar proposal forEngland. In the following legislativesession (2000-01), further powerswere conferred on the Commissioner,including the power to makerepresentations to the Assembly inrespect of non-devolved services.

38. The Minister’s proposals for NHSreform25 that required primarylegislation were also passed throughWestminster in two stages. Proposalsregarded as urgent by the WelshAssembly Government were includedin the NHS Reform etc. and HealthCare Professions Bill, with the otherprovisions (dealing with CommunityHealth Councils, the Wales Centre forHealth and Health Professions Wales)appearing in the NHS (Wales) Bill inthe following session. Again, theDepartment of Health acceptedproposals that diverged significantlyfrom England.

39. Some witnesses26 saw this two-stageapproach as evidence of incoherencebrought about by the need for theAssembly Government to fit in withthe timetable of Whitehall andWestminster. In contrast, theMinister’s evidence explained thatthe phasing was driven bypracticalities and did deliver theAssembly Government’srequirements.27

40. Nor did the Minister see anyproblems with the scrutiny of suchmeasures. She acknowledged thatthe timetable for the Parliamentaryconsideration of the Wales-onlyclauses in the NHS Reform andHealth Care Professions Bill (dealingwith the abolition of healthauthorities and the establishment oflocal health boards) had meant thatthe consultation in Wales and thelegislative scrutiny took place in avery compressed timetable; but sheargued that Members of Parliamentwere familiar with the issues.Subsequent evidence from MPs did,however, raise concerns about thescrutiny process in relation to thesemeasures (Chapter 8).

41. The Minister highlighted the potentialtrade-off between arguments of policycoherence, which might point toWales-only legislation, and the needto consider cross-border issues,which might be better done in anEngland and Wales Bill:

It might have been more comfortableto have a Welsh Bill which couldhave collected all of our particularreforms together…. [but] there is anissue about the England and Walescrossover, which is also a verypowerful argument for having Welshclauses in an England and WalesBill.28

42. As did many other witnesses, shementioned the pre-legislative scrutinyof the (uncontroversial) Health(Wales) Bill as a model in terms ofprocess, involving the Assembly



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Health and Social Services Committee,the Welsh Affairs Select Committee,the Welsh Grand Committee andPeers.

43. The Minister did not believe that theAssembly had the capacity at thatpoint to take on the full load ofprimary legislation – ‘we have beenflat out’29 – but she observed thatWales was developing in a differentpolicy direction from England (forexample on capital funding, onpartnerships with local government,with the voluntary sector and onpatient advocacy through CommunityHealth Councils). She also mentionedmental health as an area wherepolicy divergence might point toseparate legislation in future.

44. As an example of using delegatedpowers to tailor legislation to meetWelsh needs, the Minister referred tothe regulation of care homes, wherea different approach was adopted inboth Wales and Scotland to the issueof minimum standards, followingconsultation with the sector.

45. Within her broad responsibility forchildren and young people, theMinister explained the arrangementsthat have been established forcollaboration with an England andWales body, the Youth Justice Board,to ensure a holistic approach toservices for young people, includingthose in custody.

46. The evidence of Mark Perfect, chiefexecutive of the Youth Justice Board,described the impact of devolvedpolicy-making on an England and

Wales body.30 The Board isaccountable to the Home Office, butits responsibilities overlap with thoseof the Assembly (in relation tochildren and young people’s services)and it has needed to adapt to thedifferent policy and organisationalenvironment in Wales.

47. In his evidence, Mark Perfect pointedto policy differences between Walesand England (for example, Englandhas placed more emphasis ontargeting young people who are atmost risk of offending). He saw theBoard’s role as being to help theAssembly Government deliver itspolicy objectives, but also to seek toinfluence Ministers and services inWales to adopt what it saw as themost effective approaches. He alsopointed to the expertise of the Boardin monitoring standards andpromoting good practice in arelatively specialist field, and thepotential advantages to Wales ofhaving access to this.

48. In contrast to the Youth JusticeBoard, some England and Walesbodies in this portfolio areaccountable both to the AssemblyMinisters and Ministers in England –such as the National Institute forClinical Excellence, the Commissionfor Health Improvement and the FoodStandards Agency.

49. The question of charging for servicesfor older people illustrated theinteraction between the devolvedfinancial arrangements and the scopefor policy divergence. The Ministertold us that, while the Assembly

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supported the proposal of theSutherland Commission31 thatpersonal (as opposed to nursing) careservices for elderly people should notbe subject to charging, the changewould require primary legislation andcould not be pursued in Walesunilaterally because of the costimplications:

The advisory group asked us as theWelsh Assembly Government tomake representations to the UnitedKingdom Government on thismatter...because they felt this shouldbe seen in the context of UnitedKingdom taxation, benefits andinheritance policy, as the RoyalCommission had intended.32

50. By abolishing charging for personalcare in Scotland, the ScottishExecutive incurred not only the directcosts of the policy, but also the costof offsetting the loss of theentitlement to Attendance Allowance,a benefit administered by theDepartment of Work and Pensions.33

51. The Minister felt that her powers toinfluence the performance of theNHS, including through therelationship with NHS Trusts, wereadequate:

I think the most important thing,which is not related to legislation, isthe leverage we have throughperformance management. We dohave the power to direct a singleNHS Trust, or indeed all of them,

through the 1999 Health Act, but itis really this framework ofaccountability in terms ofexpenditure and delivery ofservices.34

The voluntary sector

52. In addition to her specific policyresponsibilities, the Minister also hasa cross-cutting responsibility for theAssembly’s relationship with thevoluntary sector. Uniquely within theUK, the Assembly has a statutoryobligation to make a scheme ‘settingout how it proposes, in the exerciseof its functions, to promote theinterests of relevant voluntaryorganisations.’35

53. The Wales Council for VoluntaryAction (WCVA) felt that thesearrangements had benefited thesector, citing the establishment of aCriminal Records Bureau registeredbody exclusively for the voluntarysector in Wales as an example ofhow the Assembly has been able touse its powers to support voluntaryorganisations.36 It highlighted apotential gap in that, unlike the UKGovernment, the Assembly lacks ageneral power to make payments tovoluntary organisations andcommunity groups (instead, allpayments must be tied to theexercise of a specific Assemblystatutory function).

54. The WCVA’s main concern was aboutthe complexity of the Assembly’spowers. It argued that, because thesettlement is not easy to understand,



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some voluntary organisations arediscouraged from contributing topolicy development. A great deal oftime is spent getting to grips with thecurrent state of legislation in Wales,finding out whether initiativesannounced by Whitehall apply toWales as well as England, andlobbying both London and Cardiff onthe same issues.37

55. For example, despite examining theissue of irrecoverable VAT forregistered charities (a non-devolvedmatter), the Treasury Cross CuttingReview into the Role of the Voluntaryand Community Sector in ServiceDelivery extended only to England.Its limited scope also excludedconsideration of the role of thevoluntary sector in Wales in theplanning and delivery of servicesrelating to non-devolved functions.38

Culture, the Welsh language and sport

56. Culture is the portfolio that providesthe Minister with the widest powers,owing to the breadth of the powersconferred by section 32 of theGovernment of Wales Act. Insummary, this provision allows theAssembly to ‘do anything it considersappropriate’ to support the arts,museums, heritage, culture, sport,recreation and the Welsh language(although it cannot override therequirements of primary legislation).Rhodri Glyn Thomas AM, Chair ofthe Culture Committee, summed upthe significance of these broadpowers:

I would argue that the Minister forCulture, Welsh Language and Sportis probably the best job in theCabinet, because you can make adifference. You are not confined inany way by the constitutionalsettlement, whereas you would be inother portfolios, and you can make areal difference, as is happening, I think, in terms of culture inWales.39

57. Nevertheless, we received evidenceon the limitations of this Minister’spowers in three main areas: theWelsh language, the National Lotteryand broadcasting. In the first twocases, the Minister wanted additionalpowers; in the third, the issue wasmore one of how the Welsh AssemblyGovernment is able to influence theUK Government to take account ofWales’ interests.

The Welsh language

58. The evidence we received highlightedsome problems with the scope of theWelsh Language Act 1993.

59. First, Crown bodies, includinggovernment departments andagencies, are excluded from manyprovisions of the 1993 Act becausethe indivisibility of the Crownprevented the Secretary of State forWales being given powers over otherCrown bodies. The effect of thedifferent application of the Act toCrown bodies is to exclude themfrom the Assembly’s specific powersto enforce the Act’s requirements.40

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60. The arrangements for Crown bodiestherefore largely rely on voluntarycompliance and persuasion, whichhas produced mixed results.41 Onaverage, Crown bodies have takentwice as long as other public bodiesto agree a scheme with the Board.The Criminal Records Bureau agreedto provide bilingual registration formsonly after a public campaign andofficial representations by theAssembly Government to the HomeOffice. Further primary legislationwould be required to bring the Welshlanguage scheme requirements forCrown bodies into line with thoseapplying to other public bodies.42

61. Second, both the Welsh LanguageSociety and the Welsh LanguageBoard highlighted that the Act’srequirements apply only to namedorganisations and to any other publicbodies that fall within the Act’sdefinition of that term.43

Consequently, private and voluntarysector organisations are generallyexcluded. The Assembly Governmentintends to use the scope undercurrent legislation to extend theapplication of the Act in relation tocertain utility companies exercisingfunctions of a public nature in Wales;but any large-scale extension of theAct’s application to the private orvoluntary sectors would requireprimary legislation.44

The National Lottery

62. In relation to the Lottery, which islargely not devolved, the problemsraised in evidence concerned theAssembly’s ability to influence the

overall direction of Lottery fundingprogrammes in Wales. While theAssembly has some powers to shapethe funding policies of the variousdistributors, the Assembly Minister,Jenny Randerson AM, explained that,in practice:

The broad outlines are set by theDepartment for Culture, Media andSport, the strategic policy is set bythem, and we have the power moreor less to tinker around the edges.In practice that means thatannouncements are made very oftenby the UK Government which do notfit us.45

63. This argument was reinforced byPeter Tyndall, chief executive of theArts Council of Wales, one of the fiveLottery distributors covering Wales:

The New Opportunities Fund has hada series of programme that are UK-wide and which reflect UKGovernment proposals…it works withWelsh partners; but the programmesare programmes that are devisedoutside of Wales, and they might notbe the same priorities that a Welshgovernment would choose.

In the case of the arts, it is moresubtle in some ways...[Influence overindividual grants] is not the issue.But there are issues aroundstandardisation…the funding nowhas to be top-sliced to create asingle body to publicise the Lottery.In our judgement, that will struggleto reflect the issues of Wales, not



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least language but also thenuances.46

64. Mr Tyndall also highlighted someuncertainties about the lines ofaccountability for Lottery funding –the Arts Council of Wales wasaccountable to the Department forCulture, Media and Sport for thisexpenditure, but the grant of Lotteryfunding to an organisation thatsubsequently closed down had beenscrutinised by the Assembly’s AuditCommittee.

65. To tackle these problems, theMinister wanted additional powers todetermine the Lottery funding policiesfor Wales, while retaining the overallUK Lottery framework:

There is a lot to be gained by thecross-border links and in particular,for example, with the HeritageLottery Fund we have benefitedgreatly in Wales from being able totap into the central funding there forthe UK as a whole. Money, forexample, for the refurbishment ofCardiff Castle would be well beyondany one year’s Welsh pot of moneyfrom the Heritage Lottery Fund.47

66. Since we took evidence from theMinister in autumn 2002, the UKGovernment has published a LotteryWhite Paper,48 which states that thedevolved administrations should havemore influence in setting specificpriorities and strategies for theircountries. No details are given ofwhat this will entail, but there is acommitment to legislate if necessary.

Broadcasting

67. In relation to broadcasting, fewsuggested that the relevant powersshould transfer to the Assembly.Instead, the issue raised illustrated awider problem that we encounteredregularly during our enquiry –namely, how the Assembly is able toinfluence and hold to account publicbodies working in non-devolved areasthat impact on the responsibilities ofthe Assembly in Wales.

68. The Communications Act 2003introduces a new regulatory regimefor the broadcasting andcommunications sector to beoverseen by a new regulatory body,Ofcom. At the end of 2002, theMinister was concerned that Wales’sinterests were not being properlyaddressed:

Overall…it has proved very difficultto get the UK Government to takeaccount of Assembly Governmentpolicy interests, and to get thesereflected in the Bill. The AssemblyGovernment has found itself in theposition of having to lobby hard toensure that Wales secures the samedegree of representation within thenew regulatory body as it currentlyhas on the existing regulatorybroadcasting bodies.49

69. Eventually, the Assembly Governmentpersuaded DCMS to include astatutory requirement for an OfcomOffice in Wales and a NationalAdvisory Committee – but it did notsecure the right to appoint a memberof the Ofcom Board or a statutory

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duty on Ofcom to consult theAssembly. The Minister attributed thedifficulties of influencing the UKGovernment on this issue to aconflict of priorities rather than toany intention to hinder devolution:

If I give you what I see as DCMS’sgeneral thrust, which is freeing upbroadcasting, as little regulation aspossible, and here we come alongsaying ‘We want this moreprecise.’… To them that appears tobe going against the flow of whatthey want to do. From our point ofview, this is a guardianship ofdevolution and it is an importantmatter of principle, because actuallywe are going to have fewerguarantees than we have under thecurrent set up.50

70. Finally, we received evidence on thisportfolio that illustrated thedifficulties that can be created whenissues span the boundary betweendevolved and non-devolved matters.The National Botanic Garden ofWales (NBGW) told us that they hadbeen unable to identify which part ofgovernment was responsible forconsidering their request for fundingto support systematic biologyresearch.51 The AssemblyGovernment had advised that sciencewas not a devolved responsibility; butthe relevant Whitehall departmentshad decided that biodiversity (and,therefore, research on biodiversity)was the Assembly’s responsibility. Atthe time of giving evidence, theNBGW still did not know where theresponsibility lay.

Economic development

71. As the Minister’s written evidencenoted, ‘Economic developmentpowers in UK primary legislation areusually drawn in broad terms andauthorise a range of administrativeactivity, although they rarely confersubordinate order-making powers.’52

Most of these executive powers havetransferred to the Assembly and aremainly used for assistance to andpromotion of business in Wales.

72. The Economic Development Ministeralso has a particular interest in theimpact of regulation on the economyin Wales. The Assembly has aspecific duty under section 115 ofthe Government of Wales Act toconsult with representatives ofbusiness and other organisationswhere the exercise of the Assembly'sfunctions impacts on their interests.One way in which the AssemblyGovernment aims to build goodrelationships with business and tradeunion organisations is through theBusiness Partnership Council, whichis chaired by the First Minister.53

73. The Minister was satisfied that thepowers available to the Assembly andits agencies are sufficient to addressWales’s economic challenges54 – aview that was shared by CBI Walesin relation to the businessenvironment.55 Overall, the picturehe described was of using a range offunding and partnership levers ratherthan legislation to change theeconomic environment in Wales.Examples include: grants andfinancing schemes for small and



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medium-sized enterprises; the launchof WalesTrade International topromote Welsh exporting andinternational trade links; andBroadband Wales, the largest UKpublic sector funded project forenhanced broadband connectivityand access for business andconsumers.

74. The boundary between devolved andnon-devolved issues did not appearto pose a problem, with theAssembly Government seeking towork with and influence Whitehalland businesses on non-devolvedissues such as energy andtelecommunications. The Ministerargued that the main practicalconstraint derives from the fact thatall support to industry has to complywith relevant UK legislation and EUguidance on state aid.56

75. Beyond EU legislation, the Ministeridentified two specific areas in whichthe Assembly Government’sobjectives had been constrained:

■ the proposal to create a statutorytourism accommodation registrationscheme has been the subject of anAssembly bid for Westminsterprimary legislation (see Box 5.2), butdid not appear in the 2003 Queen’sSpeech. There are unlikely to bemany opportunities for this proposalto “piggy-back” onto an England andWales Bill, because it is a relativelysmall measure in an area that is notregularly subject to legislation;

■ although the Assembly can regulatethe development of small powerstations (including wind farms), the

Department for Trade and Industryretains responsibility for powerstations with a generating capacity ofover 50 megawatts in Wales (but notScotland). The Assembly Governmenthas requested the transfer of thesespecific energy powers to Wales (seeChapter 9).

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Box 5.2: Statutory registration of tourist accommodation in Wales

The Wales Tourist Board (WTB) first put forward the idea of a statutoryregistration scheme for tourism accommodation in Wales in 2000, as part of itsstrategy to improve the quality of the Wales tourism offer.57 The WTB thought58

that the scheme could be introduced under existing legislation by an Order inCouncil,59 which would have to be taken forward by the UK Department ofCulture, Media and Sport (DCMS) on behalf of the Assembly.

However, the Assembly Government identified that the existing legislation,which provides for registration by the tourist boards of England, Scotland andWales of accommodation in Great Britain, might not allow a scheme to beoperated by the Wales Tourist Board alone. An Order could come into force atdifferent times in relation to England, Scotland and Wales, but would have toprovide for statutory registration eventually to be implemented across all ofGreat Britain. Moreover, if the Order allowed accommodation to be graded, thecriteria for this would have to be determined by the British Tourist Authorityafter consultation with the three tourist boards.

DCMS was not willing to sign up to a GB scheme, because it had alreadydecided to take a different approach to improving the quality of accommodationin England through better enforcement of existing standards. When theAssembly Government confirmed that the only means of introducing a schemein Wales would therefore be to amend the 1969 Act,60 the EconomicDevelopment Committee commented:

The need for primary legislation is a considerable hurdle but we note yourcomment at EDC last week that you were confident there would be nodifficulty in obtaining the necessary legislation.61

In March 2003, the Assembly approved a bid for new primary legislation tointroduce a Wales-only scheme – although the proposal did not drawunanimous support, with some Assembly Members arguing that compulsoryregistration was opposed by many in the industry and would drive smallproviders out of business.62

The 2003-04 Queen’s Speech did not promise any legislation on the scheme inthe current session. A small measure like this is unlikely to be the subject of aBill on its own; but if the proposals prove to be controversial, Whitehall may bereluctant to include them in a larger England and Wales Bill because of thepotential difficulties in handling the legislation in Parliament.

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Agriculture and rural development

76. The main characteristic of thisportfolio is the strong influence ofEuropean legislation and finance inshaping agricultural policy. This doesnot entirely rule out policy divergence;for example, the AssemblyGovernment has developed distinctivepolicies such as Tir Gofal, TirMynydd, Farming Connect and theAgri-Food Strategy under the EU RuralDevelopment Regulation and takensome independent steps ongenetically modified organisms. Butoverall, the Director of Agriculture inthe Assembly Government, HuwBrodie, told us that:

The fact that the Scots have gotprimary legislative powers does notmake a substantial difference to howtheir core agriculture brief works.63

77. The extent of European regulation inthis portfolio has sometimesconstrained the Assembly in fulfillingits policy objectives, particularly in itsearly days as the institution got togrips with the scope of its powers.Box 5.3 describes two high profileexamples of this – the calf processingscheme and dairy hygiene charges.

78. Most executive powers in agriculture,food, fisheries, forestry and ruraldevelopment have been transferred tothe Assembly – but a notableexception came to light with theoutbreak of foot and mouth disease in2001. The farming unions felt thatthe Assembly’s limited powers hadexacerbated the impact of the diseasein Wales, as described by Malcolm

Thomas of the National Farmers’Union Cymru:

We were having to wait for two orthree weeks to implement exactly thesame decision, a decision that wehad all agreed on two or three weeksbefore. And, you know, two or threeweeks during a period of spreadingdisease inevitably led to probably tensof thousands of animals beingslaughtered in Wales unnecessarily.64

79. The foot and mouth disease outbreakalso provided a stark example of whathas been presented as a wider featureof devolution to Wales – namely, thedifficulty for the public in determiningwhere accountability lies. TheMinister at the time, Carwyn JonesAM, explained:

We saw the Minister in Cardiff beingresponsible for what was taking placein Wales, although there was no legalpower in force. The Minister could notstand back and say, ‘This is nothingto do with me. It is to do withLondon.’ For example, it is possible atpresent that if foot and mouthdisease were to come back, theMinister in Cardiff could tell theDEFRA Minister, ‘You can’t use theAssembly staff at all.’…This is ananomaly.65

80. In the light of this experience, theAssembly Government is negotiatingwith DEFRA for the transfer of widerexecutive powers in animal health(Chapter 9).

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81. In contrast to the animal health case, inwhich the constraint arises from thebreadth of powers transferred to theAssembly, some other constraints inthis portfolio arise from the need fornew primary legislation to implementthe Assembly Government’s objectives.For example:

■ the Assembly Government would like toreform the legislation governing themanagement of Wales’ inshore fisheriesand, specifically, the Sea FisheriesCommittees. The Minister told us thatthe existing arrangements arepreventing the appropriate sustainablemanagement of important inshorefisheries. However:

Despite regular requests over manyyears by the Assembly Governmentand by DEFRA for amendments to bemade to the [1966 Sea FisheriesRegulation] Act, our attempts havebeen thwarted by a lack ofparliamentary time.66

■ DEFRA and the Assembly Governmentare now working together oncomprehensive proposals for anEngland and Wales Bill to reformcommon land management, after theAssembly first submitted its own bid forprimary legislation on the specific issueof statutory commons managementassociations. DEFRA has promised toseek a legislative slot for the Bill in2004-05;67

■ the Minister told us that the AssemblyGovernment would like to establish aseparate Hill Farming AdvisoryCommittee for Wales ‘with amembership that reflects the broaderinterests relating to farming in the more

marginal agricultural area of Wales’, butneeds primary legislation to do so;68

■ the Assembly can enter intoagreements with other bodies in thepublic sector to carry out functions onits behalf, but does not have equivalentpowers in relation to the voluntarysector.69 This constraint delayedimplementation of the Rural StressScheme under the post-foot and mouthRural Recovery Plan.70



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Box 5.3: The influence of Europe: the calf processing aid scheme and dairyhygiene charges

One of the first tests of the Assembly’s powers was the proposal to extend thecalf processing scheme in Wales. This UK-wide scheme, which provided EU-financed aid to farmers for male calves born into dairy herds, had beenintroduced in the wake of the BSE crisis to help farmers adjust to the loss ofmarkets. The UK scheme was due to end on 31 July 1999 and, under EUrules, had to finish before 31 December 1999.

After the UK scheme closed, the then Assembly Secretary for Agriculture andRural Development, Christine Gwyther AM, set out her support for a Wales-only scheme, but warned that the decision would not rest with the Assemblyalone:

I have also made it clear that, if my colleagues in the other territories won’tagree to an UK-wide scheme, I will have to secure their agreement on aWales-only scheme. The Assembly does not have the power to implement ascheme unilaterally...The proposed payment reduction and the proposal thatit would operate in Wales alone would also require approval by the EuropeanCommission.71

Not long after informing the Agriculture and Rural Development (ARD)Committee that the scheme would proceed on a Wales-only basis,72 theMinister had to report that discussions with the European Commission hadrun into problems:

The calf processing aid scheme is a measure for Member States to adopt,and discussions so far have not found a way in which it would be legallypossible to operate it in part of a Member State so that calves fromelsewhere in that State could be excluded…73

It soon became clear that the European Commission would not approve thescheme. The Assembly was not alone in facing difficulties with EU state aidrules; an attempt by the Scottish Executive to obtain approval for a cull ewescheme had also failed.74 Nevertheless, some Assembly Members claimedthat the Agriculture Secretary had misled the Assembly and the dairy industryas to the likely chances of securing a Wales-only scheme, and she wassubsequently censured by the Assembly.75

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Environment, planning and transport

82. This portfolio covers three broad policyfields that differ somewhat in theirnature and source of authority –environment is strongly influenced byEurope, most planning and historicenvironment powers are devolved tothe Assembly, while the UKGovernment retains many functionsrelating to transport. The portfolio alsoencompasses lead responsibility forone of the Assembly’s overarchingthemes – sustainable development.79

83. The Minister for Environment, SueEssex AM, told us that she had not

found this variation to be a constraintin managing an integrated brief –although she indicated that this mightalter if the obligations emerging fromEurope and the UK were not in linewith the Assembly’s policy approach.In her view,

[The portfolio] has not evolved somuch, in my experience, aroundissues like powers, although that isimportant; it is very much the style oftrying to develop policy and deliver onthe ground which I think has beenthe hallmark of the last couple ofyears.80

Box 5.3: The influence of Europe: the calf processing aid scheme and dairyhygiene charges (continued)

Attention then turned to how to use the £750,000 originally allocated for thecalf processing scheme in a way that would benefit agriculture. It was agreedthat the money should be directed into the dairy sector as far as possible, sothe ARD Committee proposed that £180,000 should be allocated to fundingdairy hygiene inspection charges in Wales for one year.76

The Cabinet subsequently decided in principle to lift the charges permanentlyin Wales, but could not make a firm decision to do so because it couldconstitute a state aid, which would require approval by the EuropeanCommission.77 Moreover, although the Assembly had the necessary statutorypowers, the Commission was unlikely to approve lifting the charges on aWales-only basis because it would be seen as discriminating against Englishfarmers.

However, ‘these difficulties would not arise if any application went forward on anEngland and Wales basis, since this would bring practice in those two countriesinto line with existing charging policies in the rest of the UK.’78 After Assemblypressure, the UK Ministry’s announcement on 30 March 2000 that it wouldabolish dairy hygiene charges in England finally cleared the way for the Assemblyto lift charges in Wales.

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84. Where the Assembly lacked powers,the Minister told us that she hadbeen able to secure primarylegislation in England and Wales Billsfor some policy objectives (forexample, on development plans, theWales Spatial Plan and localauthority municipal wastestrategies).81 The AssemblyGovernment had also been able toinfluence decisions on major non-devolved matters such as thedecision to allow a non-profit makingcompany, Glas Cymru, to acquireDwr Cymru). Overall, the only areawhere she had felt constrained by theAssembly’s powers was transport.

85. By and large, evidence from theAssembly’s partners in Wales did notcontradict this assessment, except inrelation to sustainable development.While praising the open andimaginative way that the AssemblyGovernment had taken forward thisstatutory duty, several organisationsfelt that the Assembly’s ability topromote sustainable development inWales has been limited by its lack ofprimary legislative and/or executivepowers in areas such as the marineenvironment, building standards,energy and transport.82

Transport

86. The Assembly currently has only alimited set of powers with which tofulfil its aspirations for an integratedand sustainable transport system.The powers inherited from theSecretary of State for Wales primarilyconcern the motorway and trunk roadnetwork in Wales.

87. The Transport Act 2000, whichcreated the statutory basis forimplementing the UK Government’sintegrated transport policyframework,83 enhanced theAssembly's functions in relation topublic transport and trafficmanagement, including responsibilityfor quality bus partnerships and travelconcessions. The AssemblyGovernment has used its powers torequire local authorities to guaranteefree travel on local buses for peopleaged 60 or over and disabled people.

88. However, powers to regulate publictransport services in Wales have notbeen devolved to the Assembly, and itis only a statutory consultee instrategic and operational mattersaffecting railways in Wales.

89. The Minister told us that, to achievean integrated transport system, theAssembly needs stronger powers toset transport priorities and to work inpartnership with local authorities andthe private sector to deliver them. Sheis therefore seeking powers ‘similar tothose available to the Mayor ofLondon’84 to develop and implementpolicies for the promotion andencouragement of integrated transportfacilities.

90. These powers have been the subjectof a formal bid from the Assembly fora Transport (Wales) Bill, which wouldgive the Assembly powers to establishjoint authorities on the lines ofPassenger Transport Authorities andsupporting Executives (PTA/PTEs).There are already some voluntaryregional transport consortia in Wales,

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but both the Minister and theEnvironment, Planning and TransportCommittee85 have argued that theAssembly should have available thepower to apply statutory pressure tostrengthen delivery if needed. TheMinister explained:

The issue is, will those voluntarycollaborations achieve the outcomesand integration we want to see.Should we wish to – and I want tomake it clear I am not saying we wishto – strengthen that because we feelthe outcomes are not being achieved,...I think it is right and proper as astrategic government that we havethe power to try and help thatalong.86

91. The Minister is also seeking powers inprimary legislation to strengthen theAssembly’s influence over railtransport. This issue illustrates animportant distinction between thelegislative and executive componentsof the Scottish devolution settlement.Under an agreement made during thepassage of the Scotland Act 1998,87

the Scottish Executive has been givenexecutive powers that extend beyondthe Parliament’s legislativecompetence88 – and that are strongerthan those held by the Assembly inrelation to Wales. Thus ScottishMinisters’ powers include:

■ responsibility for issuing bindingdirections and guidance to theStrategic Rail Authority (SRA) inrelation to services that start andfinish in Scotland (the ScotRailfranchise) and for the associated

funding. The SRA would not need tocomply if Scottish Ministers did notprovide the required funding or themeasures would adversely affect anyrail services outside Scotland;

■ a statutory right to issue non-bindingadvice to the SRA in respect ofpassenger rail services that cross theborder into Scotland.

92. In contrast, the Transport Act 2000only gave the Assembly a right to beconsulted by the SRA on its strategies.The Assembly Government is nowseeking powers of guidance anddirection over the SRA similar to thoseof the Scottish Executive, and afurther power to appoint a member ofthe SRA directly.89 Professor StuartCole of the Wales Transport ResearchCentre at the University of Glamorganexplained why he believed thatstronger powers for the Assembly toinfluence the SRA’s strategy wouldlead to better rail services in Wales:

The SRA’s primary objective is to lookat mass transport of people …thatmeans that, to the SRA, the Welshrailway services are at the edge oftheir primary agenda…

[In relation to investment in serviceimprovements],‘currently the decisionis made by the SRA within its wholerange of priorities. Now that decisionwould subsequently be made by theAssembly Government in terms ofdirecting the SRA…but at the sametime agreeing with the SRA a fundingamount to carry out that work.90



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93. Thus the new powers would enablethe Assembly to require certain railservice improvements in Wales, butdelivery would still be dependent onthe funding being in place. InScotland, the UK Government hastransferred funds to the ScottishExecutive to fund the SRA for existingcommitments relating to the ScotRailfranchise – the money for any extraservice improvements will have to befound from within the Scottish Block.

94. Until recently, the UK Government hasresisted transferring additional powersin relation to railways and PTA/PTEs,arguing that that the Welsh railwaynetwork has a much greater degree ofinterdependence with the Englishnetwork than is the case for Scotlandand that existing legislation fortransport partnerships is adequate.91

However, the UK Secretary of State forTransport has recently announced thathe will consider how more decisionson public transport can bedevolved.92

Finance, local government andcommunities

95. Much of the Minister’s evidence onthis portfolio dealt with finance, whichis examined in Chapter 10.

96. Across her other responsibilities, theMinister, Edwina Hart AM,emphasised how she has been able totake forward a distinctive Welshagenda. Despite the cross-cuttingnature of social inclusion andcommunity safety issues, theMinister’s evidence suggested that theAssembly Government has had

sufficient scope to develop its ownapproach in Wales, using acombination of specific statutorypowers and partnership working withlocal and UK Government bodies.Examples include the CommunitiesFirst regeneration programme and theAssembly Government’s CrimeReduction Unit, which supports localCrime Reduction Partnerships under aservice level agreement with theHome Office.

97. Nevertheless, she identified somespecific constraints on her powers –some relating to primary legislationand others arising from the UKGovernment’s retention of specificdelegated powers – which arediscussed below.

98. The Welsh devolution arrangementsset out to establish ‘a new partnershipbetween central and local governmentfounded on mutual respect.’93

Accordingly, the Government of WalesAct requires the Assembly to make ascheme setting out how it will sustainand promote local government inWales and to set up an advisoryPartnership Council94 – arrangementsthat are not replicated in NorthernIreland or Scotland.

99. The Welsh Local GovernmentAssociation (WLGA) told us that thesearrangements are working well andthat the opportunity to develop adistinctive local government agenda inWales had been beneficial – forexample, in the development of theWales Programme for Improvementunder Best Value legislation.95

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100.The majority (but not unanimous) viewof the WLGA was that the Assembly’sexisting powers are generally sufficientto shape policy and delivery to meetWales’ needs. However, it argued that,in some areas, greater scope isneeded in the delegated powersconferred on the Assembly to ensurethat policy reforms in non-devolvedareas, such as licensing, arecompatible with the AssemblyGovernment’s objectives on devolvedmatters.96

101.There has been a regular programmeof primary legislation on localgovernment since the Assembly wasestablished. Although this is a field inwhich functions have been devolved,the Minister’s evidence pointed toexamples in the Local GovernmentActs of 1999 and 2000 where the UKGovernment has retained delegatedpowers rather than transferring themto the Assembly, because they affectnon-devolved matters or would enablethe Assembly to amend primarylegislation. The Minister argued thatthis has created delay or barriers todelivery: for example, in reducing theregulatory burden on local authorities.She went on to explain how theAssembly Government had learnt fromthat experience:

We are [now] much more proactive ingetting our messages across. We havehad a lot more discussions at officiallevel and the new Local GovernmentAct97 that is coming in reflects a lotof what we want in Wales.98

102.This local government legislation isdiscussed further in Chapter 7, whichlooks at how Whitehall decides whichof the new powers proposed in Billson devolved areas should be given tothe Assembly.

103.In relation to housing, the evidence99

highlighted the need for primarylegislation to introduce a socialhousing ombudsman service in Wales.Provision for this has since beenincluded in the Housing Bill that iscurrently before Parliament. The WelshOverseas Agencies Group argued thatthe Assembly’s housingresponsibilities should be broadenedto cover arrangements for housingasylum seekers in Wales. TheAssembly Government itself is notseeking these powers, but it hassuccessfully made representations tothe UK Government on specificcases.100

104.Finally, the Minister put the case fordevolving broader powers to theAssembly in relation to the fire serviceand police funding. These issues arecovered in Chapter 9.

Open government and equalopportunities

105.At the time we took evidence fromMinisters, the Business Minister,Carwyn Jones AM, also had leadresponsibility for a range of policymatters. The main issue that emergedfrom this portfolio was the jaggededge that exists between theresponsibilities of the Assembly andthe UK Government in relation toequal opportunities.



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106.The Government of Wales Act places aspecific duty on the NationalAssembly to make ‘appropriatearrangements with a view to securingthat its functions are exercised withdue regard to the principle that thereshould be equality of opportunity forall people’.101 There is an equivalentobligation on the Assembly in respectof its conduct of its business.102 TheAssembly Standing Committee onEquality of Opportunity monitorsarrangements for fulfilling theseduties.

107.In response to a query raised inevidence,103 the AssemblyGovernment has confirmed that theduty under section 120 allows theAssembly to promote equality ofopportunity in the exercise of itsfunctions. However, it does not createnew powers in fields that areotherwise outside the Assembly’sremit, such as employment law.104

Beyond the two statutory duties, equalopportunities is not a devolved policymatter – for example, Secretary ofState functions under equalopportunities legislation have not beentransferred to the Assembly in relationto Wales.

108.Overall, the evidence indicates thatthe Assembly has been able to makea difference on equal opportunitieswith the powers it has.105

Nevertheless, the Commission forRacial Equality argued that moreprogress has been made in Scotlandbecause it has been possible to buildequal opportunities principles intoprimary legislation in areas such ashousing and education.106

109.We also heard that the sharedresponsibility for equal opportunitieswith the UK Government has createdsome problems:

■ because equal opportunities policyspans devolved and non-devolvedresponsibilities, it can be difficult toidentify whether it is the Assembly or the UK Government that is responsiblefor policies and funding on anyparticular issue – with the risk thatsome important issues fall betweenthe two stools. This problem – whichwe also encountered in other policyareas – was illustrated by Naz Malik,Director of the All Wales EthnicMinority Association:

The [Home Office ConnectedCommunities Grant] funding wascoming to an end and what we weretold was, ‘You proved your worth, theAssembly should now be fundingyou.’ So we went to the Assembly andthe Assembly said, ‘It is not ourpurpose, you really need to go to theHome Office.’…It took some seriousrepresentations to be made for thatfunding to be extended.107

■ there are no formal statutory adviceand accountability links between theUK/GB statutory equality bodies108

and the Assembly. The UKGovernment approves the strategicwork plans for these bodies and theAssembly has no formal input. Inpractice, informal arrangements haveworked well, with representativesattending meetings of the AssemblyEquality of Opportunity Committee andtaking on extra work for the AssemblyGovernment, sometimes with the

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funding alongside. Nevertheless, KateBennett, Director of the EqualOpportunities Commission in Wales,told us that:

We would like to see those kind oflinks more formalised. We are notobliged to [advise the Committee] andthey are not obliged to listen. It seemsto me that that is a gap.109

110.The UK Government’s decision tocreate a new single Commission forEquality and Human Rights110

potentially offers an opportunity toreview the relationship between thestatutory advisors and the Assembly.

111.At the time of writing, legislation isproposed on two other policies thatwere raised in the Minister’s evidence:

■ a Regulatory Reform Order is beingdrawn up to remove the bar to theposts of Ombudsman for Housing,Local Government and PublicAdministration all being held by thesame individual – but new primarylegislation is still needed to allow theAssembly Government to implement itspolicy of joining these posts to create asingle Ombudsman for Wales;

■ the Civil Contingencies Bill will requirethe UK Government to consult theAssembly on emergency planningarrangements for Wales.

European and external relations

112.International relations are not devolvedto any part of the UK, but the devolvedgovernments have an important role inthe implementation and negotiation ofEU and other international obligations.Like its counterparts in Northern

Ireland, Scotland and elsewhere inEurope, the Assembly cannot passlegislation that is incompatible with EUlaw nor breach any internationalobligations.

113.Two concordats (which are not legallybinding) between the UK Governmentand the devolved administrations coverpractical working arrangements on EUpolicy and wider internationalrelations.111 Among other things, theseagreements provide that the UKGovernment will take account of theAssembly Government’s views informulating the UK’s negotiatingposition in Europe – but the AssemblyGovernment must subsequently followthe UK’s line.

114.Although wider international relationsare important to the AssemblyGovernment’s policy agenda, it is theEU that has the most direct and far-reaching impact on the Assembly’spowers. EU legislation placessignificant limits on the discretion ofthe Assembly in fields such asagriculture, fisheries, the environmentand the internal market. For example,in relation to the calf processingscheme, primary legislative powerswould have made no difference to theAssembly’s ability to act, because theconstraints arose from European stateaid rules.

115.In his evidence, Michael German OBEAM, the Deputy First Minister andMinister for Rural Development andWales Abroad, illustrated how theAssembly Government was working topromote Wales’ interests and raise theprofile of Wales on the international



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stage. He likened the process ofinfluencing EU policy to ‘three-dimensional chess’112 – holdingdiscussions in a co-ordinated way withboth the UK Government and theEuropean Commission (either directlyor through regional networks) in orderto achieve Wales’s desired positionwithout undermining the UK’s line.While he was keen to extend theAssembly’s influence, he did not havecause for complaint about thearrangements.

116.The Chair of the Assembly’s Europeanand External Affairs Committee, TomMiddlehurst AM, told us that theCommittee scrutinises the WelshAssembly Government’s input into EUand international matters, but does nothave enough time to review in detailthe impact on Wales of individual EUpolicies.113 Sir David Steel MSP (asPresiding Officer of the ScottishParliament) suggested that the scrutinyof EU legislation is one of a number ofareas in which there is scope forgreater sharing of expertise betweenthe various legislative bodies in theUK.114

117.The evidence suggests that the mainpractical constraint on Assembly actionin this portfolio is the way in whichthe Assembly is given powers toimplement EU legislation. While theScottish Executive has a general powerto implement new EU legislation in itsareas of devolved competence,115 theAssemblies of both Wales andNorthern Ireland must negotiate withthe UK Government on a case-by-casebasis for the necessary powers.116

118.The Minister told us that this process isresource intensive and often subject touncertainty and delay, becauseWhitehall’s agreement must beobtained to both the principle and theprecise form of the new powers:

It is always frustrating because thenatural instinct [in Whitehall] is not tochange until such time as you candemonstrate there is a need tochange, and that is what takes thetime and energy.117

119.As discussed in Chapter 2, theEuropean Convention has recentlydrafted a treaty that would establish aEuropean Constitution.118 The draftConstitution recognises for the first timethe part played by regionalgovernments within Member States ofthe EU,119 but does not, as wasproposed at an earlier stage,distinguish between regions on thebasis of the extent of their legislativepowers.

120.Jill Evans MEP and Eurig Wyn MEPtold us that the regions with strongerlegislative powers have more influencein Europe and that these regionscontinue to show interest indifferentiating themselves from regionswith purely executive powers, includingorganisationally in representations tothe European Commission.120

Nevertheless, the evidence overallshows that the amount of effortinvested in European representation isat least as important in this respect –and experience suggests that it willcontinue to be the largest and mosteconomically important regions thatexert the greatest influence.

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Complexity of the settlement

121.We conclude this chapter on theexecutive devolution settlement byreturning to the issue of its complexity.Are the boundaries between devolvedand non-devolved issues particularlydifficult to understand in this model ofexecutive devolution and with whatconsequences?

122.The complexity issue was raised in theevidence of John Osmond, Director ofthe Institute of Welsh Affairs andProfessor Keith Patchett, EmeritusProfessor of Law, University of Wales,and was reinforced by manysubsequent witnesses. John Osmondnoted that:

If you look at the Transfer of FunctionsOrder – it’s a big document – youhave to go through hundreds of Actsof Parliaments. There have beenmany incidents when the Assemblyhas been trying to do something andthen has had to ask itself whether itcan do it. There have been a numberof occasions when there have beendiffering views.121

123.Examples of this confusion in the earlydays of the Assembly discussed aboveinclude the calf processing schemeand dairy hygiene charges, thehandling of the foot and mouthdisease outbreak in 2001 andperformance pay for teachers.

124.Keith Patchett likened the Walesdevolution settlement to ‘a jigsaw ofever changing pieces where there areno straight edges’ and suggested thatthe picture is made even more

complex by the lack of consistency inthe way in which powers are conferredon the Assembly:

The problem is compounded by theoverlapping arrangements thatsometimes exist…It’s not only thepowers that have been conferred;sometimes they are conferred subjectto limitations. It may be that thepower is conferred but you have toexercise it with someone else.Sometimes it’s joint action that has tobe taken. Instead of getting a clearpicture, you have to look around tofind clarity as to the exact nature ofthe power. Unfortunately, these thingschange day by day as new powers areconferred and altered.122

125.While accepting that the Scotlandsettlement has its own complexities,he argued that it is easier for thepublic to understand because broadsubject areas are wholly devolved tothe Scottish Parliament.123

126.This evidence illustrates one aspect ofthe complexity argument – the claimthat it is difficult to know whether ornot responsibility for a particularfunction rests with the Assembly inWales. We discussed this in detailwith the Counsel General to theAssembly, Winston Roddick QC andhis colleagues, who advise theAssembly Government day to day onthe interpretation and application ofthe powers devolved to them.

127.The Counsel General argued that thecomplexity argument can beoverstated:



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In practice, I have dealt withproblems of law and statutes thatwere infinitely more complex than thesettlement which we have had to dealwith here. That is why I can say withsome confidence, reflecting on theexperience of my colleagues, that wehave not encountered unusualuncertainties or complexities somewitnesses claim to exist.124

128.Looking at the teachers’ performancepay issue, he pointed out that,although the Committee sought legaladvice on the Assembly’s powers, theoriginal advice of the Assemblyeducation lawyer was eventuallyupheld. It was also the case that, insome other examples cited (geneticallymodified crops, the calf processingscheme and dairy hygiene charges),the problem was not the boundaries ofthe Assembly’s powers vis-a-vis thosedelegated to English Ministers, but thelimitations placed by Europeancompetence.

129.Moreover, the Counsel General andhis colleagues argued that theboundaries between devolved andnon-devolved powers in the Scottishsettlement also contain areas ofcomplexity, and that English Ministersas well frequently need legal advice toestablish whether the powers availableto them are sufficient to allow them toact in a certain way. Overall, heconcluded that:

If a decision is to be made as towhether Wales should have adifferent kind of devolutionsettlement, that is a decision which

needs to be made by reference tomatters of principle or considerationsother than the alleged complexity anduncertainty of the existingsettlement.125

130.While the Counsel General was clearthat the settlement does not presentunusual legal challenges to Assemblylawyers, others argued that the public,legal practitioners and organisationsoutside the Assembly do find itdifficult to know what the Assembly’sresponsibilities are, and how theyrelate to those of the UKGovernment.126 Therefore, the natureof the settlement has implications forpublic accountability and participationin policy development.

131.The other aspect of complexity in thecurrent settlement that was raised inevidence is the claim that it is nowmore difficult to ascertain the state ofthe law in Wales on a particularsubject at a particular date. ProfessorDavid Miers explained why this is notjust a technical matter:

It is a standard requirement of anyconstitution that those affected by thelaw should be able to ascertain clearly,accurately and in an up-to-dateformat what their legal rights andduties are. To the extent that thesediffer and are beginning to differ andwill no doubt widen in extent fromthose rights and duties that areapplied across the border, it is in ourjudgement not an easy task, withoutoverstating the matter, for individualsto ascertain them.127

116

132.On this issue, the Counsel Generalargued that the problem existed inWales before devolution, butacknowledged that the devolutionsettlement could make it morecomplicated. He explained how theAssembly has a collection of powersgiven to it piecemeal in a number ofActs and transfer of functions orders,which is continually changing as morelegislation is made. This issupplemented by the growing body ofsecondary legislation made by theAssembly. All these elements must beidentified and considered in order tofind out what the law is on a specificissue in Wales at a particular time.128

Options for addressing complexity

133.It is possible both to accept theCounsel General’s argument that thesettlement is clear in legal terms anddoes not present unusual problems forthose whose job it is to operate it, butat the same time recognise the force oflay and academic evidence that thecomplexity of the boundary betweendevolved and non-devolved matters isa problem.

134.The issue of the complexity of thesettlement is distinct from the widerquestion of whether the Assemblyshould have the power to pass primarylegislation. The weight of evidencedoes reflect an aspiration that, withinthe framework of executive devolution,there should be a simpler boundarythan currently exists between devolvedand non-devolved powers. This wouldmean that it would be possible to say:“For the fields set out in Schedule 2 of

the Government of Wales Act – allexecutive functions in these fields,created by any Act of Parliament, areexercisable by the National Assemblyfor Wales, except in the followingareas”.

135.The Commission explored the scopefor recasting the existing settlement inthis way.129 This seems to beimpracticable for a number of reasons:

■ it would involve re-transferringfunctions already transferred to theAssembly;

■ it would require a major joint exerciseby officials of the Assembly andWhitehall to trawl through allMinisterial powers in the relevant fieldsto identify those which should beexcepted from a presumption in favourof transfer – which would tie upsignificant staff resources;

■ the Counsel General’s view was thatan Order under section 22 of theGovernment of Wales Act 1998 wouldhave to specify the functions to betransferred, and could only transferfunctions vested in Ministers at thetime of its making.130

136.The Commission would not see such aretrospective exercise as a prioritybecause it would not remove many ofthe present jagged edges which arethere for policy reasons.

137.Another means of simplifying thesettlement would be to use futurelegislation to confer broad newdelegated powers on the Assembly thateffectively create a presumption ofdelegation to the Assembly in broadfields. This would have meant, for



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example, including in the AnimalHealth Act 2002 a broad provision tothe effect that the Assembly mightmake “any regulations as might seemto it appropriate in order to promotethe purposes of this Act ie animalhealth” (with whatever provisions asmight be needed in respect ofagreement with the UK Government totake account of cross-border issues).

138.This approach would extend thepowers of the Assembly by giving itbroad scope to regulate within thefields of the Act. It challenges theprevailing distinction between primarylegislation (which fixes the keyprinciples of a policy) and secondarylegislation (by which government or theAssembly determines how toimplement these principles). Weconsider that aspect further in Chapter7, which examines how the delegatedpowers in Bills are negotiated betweenWhitehall and the AssemblyGovernment.

139.Although they would help, neither ofthese options alone would fully addressthe problem of being able to ascertainthe state of law on a particular issue,because this also requires a knowledgeof how the Assembly has exercised itspowers in subordinate legislation.There are commercial databases thatlegal practitioners can use to extractthis information; and, with grantfunding from the Arts and HumanitiesResearch Board, the Cardiff LawSchool has set up Wales LegislationOn-line, a free database that providesinformation on the Assembly’sfunctions and subordinate legislationby subject.131

Findings

Our findings on the evidence in thischapter are summarised below:

Context

■ the review of the Ministerialportfolios in this chapter shows theAssembly Government workingcreatively, and in partnership withthe UK Government, within thedelegated powers;

■ these formal powers need to be seenin the context of the other substantialpowers available to the AssemblyGovernment:

■ its leadership role deriving fromits democratic mandate;

■ its control of the £10 billion budget delegated to theAssembly;

■ its role as convenor of statutorypartnerships with localgovernment, business and thevoluntary sector;

■ its policy initiating role derivingfrom analysis and evidence – aswell as responding to policyideas generated by otherstakeholders;

Adequacy of the powers

■ policies are designed to address reallife problems, which rarely fit neatlyinto the delegated powers framework– as a consequence, the AssemblyGovernment has been pushing outthe boundaries of devolution, byseeking further powers and byworking in collaboration with non-devolved agencies;

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■ there are many examples where theAssembly Government has been ableto deliver policies designed for Walesusing its delegated powers and theother policy levers available;

■ the Assembly Government has beensuccessful in obtaining the primarylegislation required for its mosturgent priorities – but there arefrustrations about the time needed todeliver change;

■ the experience of the first four yearsof devolution and the increasedpolicy development capacity of theAssembly have changed the contextfor debating the powers: in 1999,the Assembly Government wasgetting to grips with its new powersand responsibilities; in 2004, it isrecognised as the initiator of policyon devolved matters and as a majorstakeholder, deriving from itsdemocratic mandate, on non-devolved issues as well;

■ the evidence also shows theboundaries of the devolutionsettlement constantly changing inresponse to changes in the structureof the delivery or regulation of publicand private services in the UK;

The UK framework

■ in all portfolios there are jaggededges, where policy objectives spanboth devolved and non-devolvedareas – some are unique to theWelsh settlement, some exist in thesettlements for Scotland andNorthern Ireland as well;

■ in many cases, the relationshipbetween the Assembly and UK orEngland and Wales bodies thatimpact on its responsibilities isunclear and lacks a statutory basis –and the picture is becoming morecomplex as new bodies are createdeach year;

External constraints

■ in some policy areas, notablyagriculture, industrial aid andenvironmental protection, Europeanlegislation is as much, if not more, ofa constraint on the options availableto the Welsh Assembly Governmentas the UK legislation – in theseareas, the scope for distinctive actionis often equally limited in Scotlandand Northern Ireland;

Style of governance

■ as well as developing new policycontent, the Assembly is promotinggreater participation in the policy-making process, which is widelywelcomed – although some alsohighlighted the difficulties forbusiness and the voluntary sector ofkeeping pace with the Assembly’sconsultations;

Complexity

■ in most portfolios, clarity and lack ofcertainty about the scope of theAssembly’s powers was an issueduring the First Assembly – for thoseoperating the settlement the problemseems to be diminishing withexperience, but this remains a centralissue for accountability to, andengagement with, the people ofWales;



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■ clarity and accountability would beimproved greatly if the devolvedpowers could be more clearly drawnaround areas of policy responsibility,rather than the detail of specific

powers – but re-defining theAssembly’s existing powers in thisway seems impracticable and wouldnot remove many of the presentjagged edges.

Notes

1The majority of this evidence was provided by the Ministers in post in November-December 2002.

2Scotland Act 1998, c.46, sections 53-57 and schedule 4, part III.

3Listed in Chapter 4, Box 4.1.

4Oral evidence of Professor David Miers and David Lambert, 28 February 2003.


6Oral evidence of the First Minister, 12 December 2002.

7Oral evidence of the First Minister, 26 July 2003.

8Oral evidence of the Minister for Education and Lifelong Learning, 24 October 2002.

9This is discussed in more detail in Chapters 7 and 8 on Wales’ relationship with Whitehall and with Westminster.


11Ibid.

12Ibid. Richard Davies.

13Ibid.

14Oral evidence of Plaid Cymru The Party of Wales, 27 February 2003.


16The Education and Training Action Group for Wales, The Education and Training Action Plan for Wales (Cardiff:Welsh Office, March 1999).

17Post-16 Education and Training Committee, Taking Forward the Recommendations of the Education andTraining Action Group (Cardiff: National Assembly for Wales, December 1999).

18Oral evidence of Undeb Cenedlaethol Athrawon Cymru, 26 June 2003.

19Minutes of the Pre 16 Education, Schools and Early Learning Committee, 1 March 2000, PRE 16-03-00(min).

20Annex 1 to the Minutes of the Pre 16 Education, Schools and Early Learning Committee, 15 March 2000, PRE16-04-00(min).

21Pre 16 Education, Schools and Early Learning Committee, 12 April 2000, Paper PRE 16-06-00(p.4).

22The Education (School Teacher Appraisal) (Wales) Regulations 1999, SI 1999/2888 (W.25).

23Letter from Estelle Morris MP to William Graham AM, 25 May 2000.

24Lost in Care: Report of the Tribunal of Inquiry into the abuse of children in care in the former county councilareas of Gwynedd and Clwyd since 1974, HC 201 of 1999-2000 (London: The Stationery Office, February2000).

25National Assembly for Wales, Improving Health in Wales: A Plan for the NHS with its Partners (Cardiff: NationalAssembly for Wales, January 2001).

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26Oral evidence of John Osmond, Director of the Institute of Welsh Affairs and Professor Keith Patchett, Universityof Wales, 26 September 2002.

27Details of the provisions and their handling are set out in Simon McCann, ‘Permissive Powers are Good for theHealth: The Health Reforms in Wales’, Wales Law Journal, 1 (2003), 176-186.

28Oral evidence of the Minister for Health and Social Services, 7 November 2002.

29Ibid.

30Oral evidence of the Chief Executive and Sue Williams, the Youth Justice Board, 14 March 2003.

31The Royal Commission on Long Term Care, With Respect to Old Age: Long Term Care - Rights andResponsibilities, Cm 4192 (London: The Stationery Office, March 1999).


33Oral evidence of Professor David Bell, Stirling University, 12 February 2003.



36Written evidence of the Wales Council for Voluntary Action, June 2003; see also the oral evidence of the InterFaith Council for Wales, 22 May 2003.

37See also the discussion on lobbying Whitehall in Chapter 7 on the Wales-Whitehall relationship.

38Written evidence of the Wales Council for Voluntary Action, June 2003.


40For example, to set and enforce the timetable for preparing a scheme; and to decide the terms of the scheme.See the supplementary written evidence of the Counsel General, June 2003, for more details.

41Written evidence of the Welsh Language Board, March 2003.

42The supplementary written evidence of the Minister for Culture, Welsh Language and Sport, 26 August 2003,and of the Counsel General, 26 June 2003, confirm that the Assembly could be granted powers to direct otherCrown bodies to take certain steps in relation to the Welsh language.

43Written and oral evidence of the Welsh Language Society, April 2003, and of the Welsh Language Board, 28March 2003.

44Supplementary written evidence of the Minister for Culture, Welsh Language and Sport, 26 August 2003, and ofthe Counsel General, June 2003.

45Oral evidence of the Minister for Culture, Sport and the Welsh Language, 21 November 2002.

46Oral evidence of the Chief Executive of the Arts Council of Wales, 10 April 2003.


48Department for Culture, Media and Sport, National Lottery Funding: Decision Document (London: DCMS, July2003).

49Written evidence of the Minister for Culture, Sport and the Welsh Language, November 2002.


51Oral evidence of the Chairman and Interim Director of the National Botanic Garden of Wales, 13 June 2003.

52Written evidence of the Minister for Economic Development, October 2002.

53Membership of the Business Partnership Council includes eleven AMs from across all the parties.

54Oral evidence of Minister for Economic Development, 7 November 2002.

55Oral evidence of the Chair and Director of CBI Wales, 28 March 2003.

56Oral evidence of Minister for Economic Development, 7 November 2002.

57Wales Tourist Board, Achieving Our Potential - A Tourism Strategy for Wales, (Cardiff: Wales Tourist Board,2000).

58Wales Tourist Board, Statutory Registration of Tourist Accommodation in Wales, (Cardiff: Wales Tourist Board,July 2002).

59Development of Tourism Act 1969, section 17.

60Economic Development Committee, 16 January 2003, Paper EDC 01-03 (p.1): Annex A.

61Letter from the Chair of the Economic Development Committee to the Minister for Economic Development, 21January 2003.

62National Assembly for Wales Record of Proceedings, 12 March 2003.

63Oral evidence of the Deputy First Minister and Minister for Rural Development and Wales Abroad, 8 November2002.

64Oral evidence of Malcolm Thomas, National Farmers’ Union Cymru and other agriculture organisations, 8 May2003.

65Oral evidence of the Minister for Open Government, 22 November 2002.

66Supplementary written evidence of the Minister for Environment, Planning and Countryside, July 2003.

67Ibid.

68Written evidence of the Deputy First Minister and Minister for Rural Development and Wales Abroad, November2002.


70Written evidence of the Deputy First Minister and Minister for Rural Development and Wales Abroad, November2002.

71National Assembly for Wales Record of Proceedings, 15 September 1999.

72Minutes of the Agriculture and Rural Development Committee, 21 September 1999, ARD 11-99 (min).

73National Assembly for Wales Record of Proceedings, 7 October 1999.



76Agriculture and Rural Development Committee, 3 November 1999, ARD 14-99 (p.2) and minutes ARD 14-99(min).

77Oral Question to the Agriculture and Rural Development Secretary, National Assembly for Wales Record ofProceedings, 8 December 1999.

78Agriculture and Rural Development Committee, 26 January 2000, ARD 01-00(p.3).

79Section 121 of the Government of Wales Act 1998, c.38 places a duty on the Assembly to prepare a schemesetting out how it will exercise its functions so as to promote sustainable development.

80Oral evidence of the Minister for Environment, 21 November 2002.

81Since giving evidence, the Assembly Government has also secured provisions in the Water Act 2003 that willallow changes to the current flood defence committee funding and structural arrangements in Wales.

82Oral evidence of the Countryside Council for Wales, 10 April 2003; Environment Agency Wales, 27 March2003; RSPB Wales and the Association of National Park Authorities, 8 May 2003.

83Department for the Environment, Transport and the Regions, A New Deal for Transport: Better for Everyone, Cm3950, (London: Department for the Environment, Transport and the Regions, July 1998).

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122



84Written evidence of the Minister for Environment, November 2002.

85Environment, Planning and Transport Committee, Policy Review of Public Transport – Final Report, (Cardiff:National Assembly for Wales, December 2001).

86Oral evidence of the Minister for Environment, 21 November 2002.

87The “McLeish Settlement”, which was implemented through provisions in the Transport Act 2000 and Ordersmade under Sections 30 and 63 of the Scotland Act 1998.

88The Scottish Parliament has legislative competence over the promotion and construction of new railways, grantsfor passenger rail services and rail responsibilities of certain transport bodies in Scotland.

89At present, all members of the SRA are appointed by the Secretary of State for Transport, who must consult theAssembly about one member of the Board and have regard to the desirability of appointing a person who isfamiliar with the special requirements and circumstances of Wales.

90Oral evidence of Professor Stuart Cole, Wales Transport Research Centre, 13 June 2003.

91Transport in Wales: Response of the Government to the 2nd Report of the Welsh Affairs Select Committee, HC580 of 2002-03.

92House of Commons Debates, 19 January 2004, cols. 1076-77.

93Welsh Office, A Voice for Wales, Cm 3718, 15.


95Oral evidence of the Welsh Local Government Association, 10 July 2003.

96Ibid.

97Local Government Act 2003 c.26.

98Oral evidence of the Minister for Finance, Local Government and Communities, 5 December 2002.

99Written evidence of the Minister for Finance, Local Government and Communities, December 2002; oralevidence of the Chartered Institute of Housing Cymru, 25 July 2003.

100See oral evidence of the Welsh Overseas Agencies Group, 11 July 2003 and of the Inter Faith Council forWales, 22 May 2003.


102Ibid., section 48.

103Oral evidence of the All Wales Ethnic Minority Association, 11 April 2003; written evidence of Stonewall Cymru,May 2003.

104Minute from the Welsh Assembly Government to the Richard Commission Secretariat, 8 October 2003.

105Paul Chaney and Ralph Fevre, An Absolute Duty: Equal Opportunities and the National Assembly for Wales,(Cardiff: Institute of Welsh Affairs, June 2002); oral evidence of the Director of the Equal OpportunitiesCommission for Wales and Director of the Disability Rights Commission (Wales), 23 May 2003.

106Oral evidence of the acting Director of the Regions of the Commission for Racial Equality, 25 July 2003.

107Oral evidence of the Director of the All Wales Ethnic Minority Association, 11 April 2003.

108The Equal Opportunities Commission, the Disability Rights Commission and the Commission for Racial Equality.

109Oral evidence of the Director of the Equal Opportunities Commission Wales, 23 May 2003.

110House of Commons Debates, 30 October 2003, cols. 17-19WS.

111Concordat on the Co-ordination of European Union Policy Issues and Concordat on International Relations,published in Memorandum of Understanding and Supplementary Agreements, Cm 5240 (December 2001).

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112Oral evidence of the Deputy First Minister and Minister for Rural Development and Wales Abroad, 8 November

2002.

113Oral evidence of the Chair of the European and External Affairs Committee, 27 March 2003.

114Oral evidence of the Presiding Officer, Deputy Presiding Officer and Clerk of the Scottish Parliament, 13February 2003.

115Scotland Act 1998 c.46, section 53.

116Powers are conferred on the Assembly by Orders in Council; see supplementary written evidence of the DeputyFirst Minister and Minister for Rural Development and Wales Abroad, 2 April 2003.


118Draft Treaty Establishing a Constitution for Europe, CONV850/03, 18 July 2003.

119For example, Article 9 recognises the regional tier in relation to the principle of subsidiarity.

120Oral evidence of Jill Evans MEP and Eurig Wyn MEP, 11 July 2003.

121Oral evidence of John Osmond, Director of the Institute of Welsh Affairs and Professor Keith Patchett, Universityof Wales, 26 September 2002.

122Ibid.

123Ibid; see also oral evidence of Professor David Miers and David Lambert, 28 February 2003.

124Oral evidence of the Counsel General, 13 December 2002.

125Ibid.

126For example, see the oral evidence of the Inter Faith Council for Wales, 22 May 2003; the Wales Council forVoluntary Action, 26 June 2003; Plaid Cymru the Party of Wales, 27 February 2003; and the Chair of theWales Women’s National Coalition, 22 May 2003; written evidence of the Welsh Local Government Association,July 2003.


128Written evidence of the Counsel General, December 2002.

129See oral evidence of Professor David Miers and David Lambert, 28 February 2003 and of the Counsel General,13 December 2002.

130Oral evidence of the Counsel General, 13 December 2002.


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125

chapter 6: the scrutiny of unelectedpublic bodies


2. The chapter addresses the followingquestions:

■ how has the relationship betweendevolved government and quangoschanged since the creation of theAssembly?

■ what are the levers for accountabilityand scrutiny and how are theyoperating in practice?

■ are the Assembly’s size and powers inrelation to quangos adequate?

3. “Quango” is a loosely defined termcovering a wide range of non-electedpublic bodies that provide services,advise government or serve judicialfunctions. There are several differenttypes of quango, which differ in theirgovernance and accountabilityarrangements. The most significant thatfall within the Assembly’s remit are:

■ Assembly Sponsored Public Bodies(ASPBs), which receive direct fundingfrom the Assembly, but are notformally part of the same organisationand therefore operate to a greater orlesser extent at “arm’s length” undertheir own legal powers. There arecurrently fifteen executive and eighteenadvisory ASPBs, and five tribunals;1

■ NHS bodies, including twenty-twoLocal Health Boards, the fourteen NHSTrusts2 responsible for deliveringhealth services in Wales and theCommunity Health Councils.

4. The executive ASPBs play a major rolein delivering the policies of the WelshAssembly Government (see Table6.1). The political authority of theAssembly, together with its roles inappointing many ASPB boardmembers and providing the bulk oftheir funding, are the most powerfullevers in securing their participation indelivering the Assembly Government’spriorities.

5. The chief executive of each executiveASPB is directly accountable to thePermanent Secretary or the AssemblyGovernment’s Director of NHS Walesfor the regularity, propriety and valuefor money of expenditure from thebudget allocation received from theAssembly Government. As well asusing its formal statutory powers, theAssembly Government monitors andinfluences the work of ASPBs throughadministrative tools, including:

■ approval of corporate and businessplans;

■ “remit letters” that set out theAssembly’s future priorities and targetsfor the body concerned;

■ requirements to report in-year onprogress against targets;

■ requirements for the Assembly’sspecific approval of certain types ofexpenditure, or expenditure above aspecified limit.

The scrutiny of unelected publicbodiesThis chapter looks at the Assembly’s powers to ensure the effectiveaccountability and scrutiny of “quangos” (quasi-autonomous non-governmental bodies), particularly the Assembly Sponsored Public Bodies.

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6. There is a direct relationship betweenthe Assembly and NHS Trusts andLocal Health Boards, includingperformance management and supportthrough the Assembly's three NHSregional offices. The Minister appointsNHS Trust and Local Health Boardchairs, and the accounting officers ofthese organisations are formallyaccountable for their expenditure to theDirector of NHS Wales, who is in turnaccountable to the Minister. TheAssembly Government sets standards,targets and policies for the NHS, andeach health community's performanceis regularly monitored against an

annual service and financialframework agreed with the AssemblyGovernment – the Minister, Jane HuttAM, viewed this system as ‘absolutelycritical to improved delivery.’3

The importance of quangos indevolution

7. Concerns about the number ofquangos in Wales and theiraccountability played a major role inthe pre-devolution debate. Between1979 and 1997, the number ofquangos in Wales more than doubled4

as the process of devolving



Table 6.1: Executive Assembly Sponsored Public Bodies (at December 2003)

a

Arts Council of Wales National Museums and Galleries of Wales

Care Council for Wales Qualification, Curriculum and AssessmentAuthority for Wales (ACCAC)

Countryside Council for Wales Royal Commission for Ancient and Historical Monuments of Wales

Environment Agency Walesb

Sports Council for Wales

Higher Education Funding Wales Tourist Board Council for Wales

The National Council for Welsh Development AgencyEducation and Training for Wales

Local Government Boundary Welsh Language BoardCommission

c

National Library of WalesNotes

a. In addition, Health Professions Wales will be established as an executive ASPB from 1 April 2004 and theWales Centre for Health from 1 April 2005.

b. Environment Agency Wales is part of the Environment Agency for England and Wales that is sponsored bythe UK Department for the Environment, Food and Rural Affairs.

c. Set up as an advisory body, but treated as an executive ASPB because it has some executive functions.

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administrative functions to Walesaccelerated and functions weretransferred out of local government.Some well-publicised incidents offinancial mismanagement, anddisquiet about the apparent use of theappointments system as a form ofpolitical patronage, also contributed tothe growing pressure for reform.

8. As a result, the argument thatdevolution would make the quangosmore directly accountable to thepeople of Wales, and the promise of a“bonfire of the quangos”, proved to beimportant factors in securing supportfor the proposals. Professor KevinMorgan from the Department ofPlanning at Cardiff University told usthat:

With respect to the Labour Party, I think there is no doubt that the issuewhich resonated most for both theparty officials and for members wasthe issue of democratising the WelshOffice and holding quangos toaccount. Nothing really compared withthe forcefulness of that issue.5

9. A Voice for Wales promised actionbefore devolution to tackle theseproblems by reducing the number ofquangos and improving theiraccountability and effectiveness.Thereafter:

The Assembly will be given newpowers to make changes to many ofthe bodies that remain, and to ensurethat all of them are made fullyaccountable to the people of Wales.These radical proposals will

dramatically alter the delivery of publicservices in Wales. Unelected bodieswill be reduced in number andbrought under fuller democraticcontrol and scrutiny. Rationalisationwill reduce wasteful duplication andsave administrative costs.6

10. The importance of this issue can beseen in the strength of the powersgiven to the Assembly to reformquangos. The Government of WalesAct 1998 itself made provision for thewind-up of the Development Board forRural Wales, the Land Authority forWales and Tai Cymru. It also gave theAssembly powers to amend primarylegislation by Order so as to:

■ transfer functions from Welsh healthauthorities to the Assembly, or abolishthem entirely;

■ restructure certain ASPBs bytransferring functions to other quangos,local government or the Assembly, orby abolishing functions or wholequangos.7

11. However, there are limits to the powersto reform ASPBs. The Assemblycannot reduce or abolish entirely thefunctions of bodies that:

■ operate at arm’s length fromgovernment ‘specially to guarantee theindependence of their decisions’,8such as the Higher Education FundingCouncil for Wales and the CountrysideCouncil for Wales;

■ exercise judicial or quasi-judicialfunctions affecting the rights ofindividuals (such as the ValuationTribunals);

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■ were created by Royal Charter orRoyal Warrant, which can only beamended with Her Majesty’sagreement.9

12. As a result, the Government of WalesAct conferred on the Assembly thepowers to restructure or abolishthirteen individual sponsored bodies,agricultural dwelling-house advisorycommittees and agricultural wagescommittees. Powers under the 1998Act have also been used inconjunction with other Assemblyfunctions to set up new advisoryASPBs (e.g. the Advisory Panel onSubstance Misuse).

13. Many other public bodies operate inboth Wales and England (andsometimes across the whole of Britainor the UK), which prevents theAssembly from unilaterally changingtheir remit in Wales. The powersunder the Government of Wales Actdo not allow the Assembly to set up anew executive ASPB, for whichprimary legislation in Westminster isstill required.

Use of the Assembly’s powers toreform ASPBs

14. The Assembly has used its powers toreform two advisory ASPBs –abolishing the Environment AgencyAdvisory Committee for Wales and theLibrary and Information ServicesCouncil (Wales) (the latter’s functionsare being transferred to a new jointbody, CyMAL, within the Assembly).

15. The Assembly Government’s Plan forWales 2001 promised to review all

the major executive ASPBs by 2003-04 ‘to ensure that they are necessary,effective and efficient’.10 Each ofthese “quinquennial” or “strategic”reviews considers whether there is acontinuing need for the function and,if so, whether a sponsored body isthe best means of delivery. Thereview is undertaken by AssemblyGovernment officials or anindependent contractor, but includesa self-assessment by the bodyconcerned. Subject Committees aregiven the opportunity to comment onthe terms of reference for the reviewand the draft report.

16. At the time of writing, all but two ofthese reviews had been completed.11

All have recommended a number ofchanges to improve the effectiveness,governance or accountability of thebodies concerned. However, noreview so far has recommended usingthe Assembly’s powers to transfer orabolish functions or whole ASPBs.

17. Significant organisational changeshave taken place in the field ofhealth. Here, the Assembly hasabolished the five local healthauthorities in Wales and transferredtheir functions either to the NHSDirectorate within the WelshAssembly Government, to newnational organisations or to thetwenty-two Local Health Boardsestablished using powers grantedunder new primary legislation forWales.12 Together with the Health(Wales) Act 2003, this legislationalso allowed the Assembly to retainand enhance the role of CommunityHealth Councils (when they were



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being disbanded in England) and toestablish two new healthorganisations.13

18. The expectation of a “bonfire of thequangos” has, so far, not beenfulfilled. We examined the issue fromthe perspective of the Assembly’spowers – does the Assembly haveadequate powers to reform quangosand hold them to account for thepeople of Wales?

19. The evidence shows that legislationfrom Westminster is still needed formany changes to the structure orfunctions of public bodies – evenwhere the intention is simply toimprove the delivery of existing policyobjectives or services. Examplesinclude the proposals to:

■ create a single Ombudsman’s officefor Wales;

■ merge the National Audit Office andthe Audit Commission – now thesubject of the Public Audit (Wales) Billcurrently before Parliament;

■ allow employees of the Council forEducation and Training in Wales andof the Higher Education FundingCouncil for Wales to carry out work forthe other organisation.

20. These, and other examples cited inevidence, suggest that the Assembly islikely to be able to secure the primarylegislation it needs to achieve thiskind of structural reform, but theprocess can take several years.

21. In other respects, the evidencesuggests that the extent of the

Assembly’s powers has not been apractical constraint on reform. TheFirst Minister explained why theAssembly Government has not carriedout extensive change so far:

For us, over the past four years, thequestion was how much institutionalchurn do you introduce? How muchof it would require primary legislation?Is this a priority for the first term andthe early years of the Assembly? Wetook the decision about the limit,about the institutional churn thatWales could cope with, and thosewere the decisions that were madebut without any commitment for thelong-term future… We continue tostudy the quangos and makecomparisons with quangos elsewherein the general direction of makingsure that transparency andaccountability is maximised.14

Public appointments

22. Professor Kevin Morgan suggested thatthe appointments process was crucialto the reform of ASPBs.15 Since1999, the Assembly has implementeda range of measures to improve thediversity of Assembly appointments toASPBs and other quangos in Wales.These changes have taken placeagainst a backdrop of change acrossthe whole UK that was prompted bythe recommendations of theCommittee on Standards in PublicLife16 (the Nolan Committee) andreinforced by the 1997 incomingGovernment’s manifesto commitmentto extend the “Nolan Principles” to allpublic appointments.

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23. All Assembly appointments toquangos are made on merit throughopen competition and involveindependent assessors throughout theappointment process. The statutorypowers of appointment rest withMinisters, but each SubjectCommittee nominates tworepresentatives to overseeappointments in their policy areas.The Commissioner for PublicAppointments also monitors, reportsand advises on the Assembly’s publicappointments.

Accountability and scrutiny

24. The evidence shows that the adventof the Assembly has changed theframework of accountability andscrutiny for quangos:

■ there is now greater transparency andaccountability to Ministers. TheCommission received evidence frommost of the bodies in Table 6.1 andthe message was that each is subjectto extensive consultation and scrutinyby the Welsh Assembly Government.In this process, the key levers werebudget and target driven and formalpowers were rarely mentioned;

■ the Assembly’s Standing Ordersrequire Subject Committees to keepthe work of quangos under review;and the Audit Committee scrutinisespublic bodies on the back of NationalAudit Office reports on their use ofresources (see paragraphs 28-29below);

■ Ministers and committeesaccountable to the Assembly areincreasingly involved in determiningthe priorities and actions of ASPBs.

25. We consider these changes in moredetail below.

Committee scrutiny

26. Subject Committees have typicallycarried out their oversight role byexamining some stages of the ASPBplanning cycle (e.g. ASPB annualreports, funding bids and remitletters) and by feeding into thequinquennial reviews. Practice hasvaried between the committees: forexample, some have considered andcommented on draft remit letters,whereas others have not seen theletters at all.17 This reflects theuncertainty that exists about therespective roles of committees andMinisters in ensuring theaccountability of the ASPBs (seeparagraph 31 below).

27. Unlike the executive ASPBs, otherquangos have not been subject tosuch regular review by the SubjectCommittees.

28. The Assembly’s Audit Committee hasa similar role to that of the PublicAccounts Committee in Westminster –it can examine the “economy,efficiency and effectiveness” withwhich health quangos and ASPBshave used their resources, but doesnot question the policies themselves.It calls in witnesses – usually theaccounting officers of the bodiesconcerned and the Assembly itself –for questioning on the basis of areport prepared by the National AuditOffice. The Audit Committee thenmakes its own report to Ministers, towhich there is a formal Governmentresponse.



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29. Expenditure by health bodies hasfeatured strongly in the AuditCommittee’s work because itcomprises a large proportion (arounda third) of the Assembly’s totalbudget.18 Across all his work(including audits of the Assembly),the Auditor General for Walesestimates that he has identifiedpotential savings of up to £90 millionsince the Assembly was created.19

30. Despite regular appearances beforethe Assembly’s committees, theevidence from our public meetingssuggests that people are scepticalabout whether the Assembly hasreally made quangos moreaccountable to the public. Moregenerally, the evidence from ASPBs20

and committee chairs pointed to thefollowing weaknesses in committeescrutiny of quangos:

■ Subject Committees have not focusedon their quango scrutiny function. Forexample, Kirsty Williams AM, chair ofthe Health and Social ServicesCommittee, explained in respect ofNHS bodies that:

I think collectively the Committee hasnot seen it as a huge priority. Theorganisations we have looked at havebeen as a result of what wasperceived as some problem withinthat organisation or some thingswhich were going on and causingconcern to the members.21

■ insufficient time is allocated to carryout effective scrutiny. For example,when asked why the Education andLifelong Learning Committee had notexamined ELWa’s management

difficulties, Gareth Jones AM, theCommittee’s chair, responded:

It is a question of time really,because we agree to scrutinise abody, let us say, once a year. I thinkwith ELWa.... it should be scrutinisedfar more often.22


■ AMs have not developed a sufficientlydetailed understanding of the work ofquangos to be able to examine theirwork effectively. For example, RogerThomas, chief executive of theCountryside Council for Wales,suggested:

I suppose the point we are trying tomake there is that the memberssometimes are not as well briefed…I think the back-up facilities theyhave sometimes may, therefore, bedeficient in terms of being able toaccess information… I know thatresearchers are being put in place forcommittees to help that process, andthat from our perspective is a verywelcome point.23

■ some committee chairs argued thatthe turnover of committeemembership and the pressure ofcommittee work on individual AMsboth serve to limit the development ofin-depth subject expertise.24 Forexample, Dafydd Wigley AM, chair ofthe Audit Committee, told us:

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I am on three major committees andI am on three others, six committeesin all. On some of those committeesyou could have 300, 400, 500 pagesof background material to read oncea fortnight and usually there are moreinformal meetings more frequently.The pressure on the individualmembers of the Audit Committee issubstantial and does beg thequestion whether the Assembly is theappropriate size and whether we doneed more Members in order to allowMembers to give the time necessaryto all the functions.25


■ as we identified in Chapter 4, theAssembly has not yet developed astrong culture of scrutiny. As DafyddWigley AM commented in relation tothe Audit Committee:

I hope there is some effective scrutinythen but that depends, of course, onthe Members’ willingness and abilityto carry out that work...26


■ Finally, some witnesses pointed to apotential weakness in the committees’powers to summon witnesses anddocuments. Committees can summonany person who is a member, or amember of staff, of many publicbodies – but they have no powers tocall in former members of staff, orother organisations or individuals notspecified in the Act.27

31. The evidence also revealed somedifferences of opinion and practice onthe respective roles of Ministers andSubject Committees in determiningpolicy for the ASPBs and holdingthem to account – a situation thatmay be compounded by Ministers’membership of those committees.Some ASPBs suggested that it shouldbe for Ministers alone to set theirpolicy direction; committees shouldthen scrutinise ASPBs on how theydeliver those policies, and scrutiniseMinisters on the policy content.28

However, Rhodri Glyn Thomas AM,chair of the Culture Committee,suggested that the committees caninfluence the policy direction aswell.29



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Box 6.1: ELWa – a case study in scrutiny

The Learning & Skills Act 2000 created Wales’s largest quango, the NationalCouncil for Education and Training for Wales-ELWa, with a current budget ofsome £520 million.

In March 2002, concerns about possible control failures in procurement withinELWa surfaced. The Chair of the National Council-ELWa notified the Minister forEducation and Lifelong Learning. ELWa appointed consultants, and the Ministerinformed the Assembly’s Education and Lifelong Learning (ELL) Committee inMay 2002 that an Assembly Government official, Mr Adam Peat, would alsoconduct an internal enquiry.30

Mr Peat’s report was put before the Committee in June 2002, and the Committeewas informed in July that a further review into the joint arrangements for seniorexecutive support to the National Council-ELWa and the Higher EducationFunding Council for Wales (HEFCW) would be carried out by an AssemblyGovernment official, Dr Hugh Rawlings. His report, a copy of which accompaniedthe Minister’s monthly report to the Committee in November 2002,recommended separate executive teams for both organisations.31

However, other auditing and procurement concerns attracted the critical scrutinyof the Auditor General for Wales and, subsequently, the Assembly’s AuditCommittee. Growing criticism and publicity led to a number of AssemblyQuestions, Ministerial statements and plenary debates relating to the NationalCouncil-ELWa during 2003. The remit letter from the Minister in April 2003required the National Council-ELWa to review its key business systems. In July2003, Ministers commissioned the consultants Price Waterhouse Coopers toprovide an independent assessment of the National Council-ELWa’s progress inimplementing its action plan to deal with procurement failures. Their report wasthe subject of plenary debate in November 2003.32

When the Chair of the ELL Committee gave evidence to us in December 2002,he explained that the Committee had not, to that date, felt it necessary to pursuethe issues, being content that the matter was being taken forward by theMinister.33 He was uncertain whether the committee had power to summon DrRawlings, author of one of the reports.

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The Assembly Government–ASPBrelationship

32. The creation of the Assembly hasbrought a new dimension in Walesto the relationship between asponsored body and the Minister.Gareth Davies, chair of the SportsCouncil for Wales, summarised thedifference:

We are an arm’s length body,although those arms are gettingshorter and we are aware of that aswell and it's a challenge for us tomanage...the number of people wewere in contact with [in the WelshOffice] were very few and farbetween.35

33. The evidence brought out thecomplexity of this new relationshipfrom the ASPB perspective. For

example, Enid Rowlands, the chair ofthe National Council for Educationand Training for Wales-ELWa,emphasised not only the direct line ofaccountability for education andtraining to the lead Minister, but alsothe expectation that the Council willdeliver services necessary toimplement the AssemblyGovernment’s strategies in other areasincluding culture, the Welsh languageand in relation to older people. Theissue therefore was not about policydirection, but about the practicalitiesof delivery, including funding issues:

I am very clear about the discussionsthat I need to have with the Ministerbecause that surely has to be part ofthe process of us being judged as towhether we are delivering on behalf ofthe National Assembly.



Box 6.1: ELWa – a case study in scrutiny (continued)

Dr Rawlings’ report was produced at the request of the Minister in support of herMinisterial functions. Accordingly, the appropriate procedure would have been forscrutiny of the report to be answered by the Minister (who could then have chosento be accompanied by Dr Rawlings to answer questions on any matters of detail).

During the course of the crisis surrounding Wales’ largest ASPB over the lasteighteen months, there has been a high degree of accountability of theorganisation to the Minister; and, in turn, the Minister has regularly informed boththe Assembly plenary and the Subject Committee of the various enquiries andreports. The Audit Committee also fulfilled its duty of scrutiny – and the AssemblyGovernment’s response to the Audit Committee’s report promised changes in itssponsorship relationship with quangos generally (such as a “probation” period ofmore rigorous scrutiny for new quangos).34 The Subject Committee chose a morereactive scrutiny role. This particular case has not revealed any deficiency in theAssembly’s formal powers to scrutinise quangos.

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There have been significant numbersof policy developments…The directionof travel is absolutely right. Both myCouncil and the Executive supportthat. We think the direction we'regoing in in Wales is leading edge. Infact, there is a lot of interest fromScotland and England, so we have noissue about the direction. My issue, ifI have one, is about the speed oftravel and the ability to deliver. It isabout where the responsibility lies tonot just set the direction, but also toenable a realistic process ofdelivery.36

34. This evidence session also highlightedthe balance to be struck between thedegree of control over ASPBs neededto secure accountability, and thefreedom that allows the boardmembers and staff of the bodies tofeel a sense of ownership andresponsibility for delivery:

So it’s not so much a matter oflegislation but it’s about theperception of how thingsoperate…You ask these people[members of the National Council] totake on a role of responsibility ofensuring the delivery against a set ofcriteria…Where does the civil servicefunction then come in when you setup this kind of body?… If you thinksomebody is going to check yourwork, your ownership of it really doeschange…

The ASPB system brings in thisprofound knowledge and expertisefrom outside and is a very rich mix. Itcan be made to work. Equally, adepartmental structure… would alsobe made to work. Neither will workunless people are absolutely clearabout who takes decisions on whatand what they are accountable for.37

35. As a past chair of a health authority,Enid Rowlands drew a contrast withher previous experience:

But the health authorities were muchmore hands off…We had considerablyless contact with the Minister, a lotless contact certainly at the chair andboard level with the civil servants…You had to decide which priorities youwere going to address...It was quitedifferent to the very, very ongoingdialogue that…the National Councilhave.38

36. In the case of the Royal Charterbodies, the balance between theirprevious independence and increasingaccountability to the AssemblyGovernment was raised in evidence.Gareth Davies, chair of the SportsCouncil for Wales, was clear in hisaccountability to the Minister in theWelsh Assembly Government:

In terms of the Sports Council’sfunding, we get direct grant aid fromthe National Assembly. The chairman(myself) is appointed by the Minister,and obviously I’m accountable to himor her for the work of the Council andits achievements.39

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37. The relationship was complicated bythe dual accountability for fundingarising from the substantial share ofthe Sports Council budget that comesfrom the National Lottery via theDepartment for Culture, Media andSport.

38. The Council’s evidence highlighted thequestion of the balance to be struck inthe sponsorship relationship withASPBs between scrutiny andinterference in detailed policyimplementation, as expressed by theChief Executive, Huw Jones:

Policies in relation to socialdeprivation, education, clearly it’s rightand proper we should follow thoseparticular policies. I think the issuesand challenges come when thediscussions lead to a lower level thanthat about involvement in programmesor particular schemes or particularinitiatives and I think that’s where thepotential conflict can arise in relationto what is our role as distinct fromwhat is the Assembly’s role.40

39. This theme ran through the evidenceof all the ASPBs. As one of thoseaffected by the work of an ASPB, theUniversity of Wales College, Newportcommented that:

Under current arrangements, theAssembly rather than the HigherEducation Funding Council for Walessets and oversees higher educationpolicy in much greater detail than......Government...does for England.41

40. Unelected public bodies are created asseparate entities from government for avariety of reasons – for example, toallow judgements in certain areas tobe made independently of politicalinvolvement, to undertakeentrepreneurial activities not suited togovernment, or to engage specialistexpertise in public management. Thechallenge of finding the right balancefor the relationship betweengovernment and these arm’s lengthbodies is not unique to the Assembly.It is likely that the management of thisrelationship will always be a carefulbalancing act for all those involved,irrespective of whether or not morelegislative powers are devolved to theAssembly.

England and Wales, GB and UKquangos

41. The primary formal accountability ofWales and England, GB or UKquangos that impact on theAssembly’s responsibilities is to UKMinisters and, ultimately, the UKParliament. However, provision wasmade in the Government of Wales Actto give certain quangos someaccountability to the new elected bodyfor Wales, by creating powers forAssembly committees (but not theCabinet) to summon people andpapers from these bodies.42

42. Some less formal arrangements toenhance accountability to theAssembly have also developed,including:

■ concordat undertakings by the UKGovernment to consult the AssemblyGovernment on certain Ministerial



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appointments to public bodies andquango policy matters;

■ concordats or memorandums ofunderstanding between the AssemblyGovernment and bodies such as theHealth and Safety Executive;

■ regular progress and strategy meetingswith Assembly Government Ministers,officials and other partners in Wales;

■ occasional appearances by bodies infront of the Assembly’s Committees togive evidence for policy reviews or onissues of current concern.

43. Mark Perfect, chief executive of theYouth Justice Board, illustrated howsuch arrangements work in practice.The Home Office sponsors thisquango, which was set up to reformthe youth justice system in Englandand Wales. One of its twelve boardmembers has a particularresponsibility for representing Welshinterests, and the AssemblyGovernment was consulted on hisappointment. The chief executive hasregular meetings with officials inCardiff and, through the Wales YouthStrategy Group, works with theMinister and other Welsh bodiesinvolved in young people’s services. Atthe time of giving evidence, the Boardhad not appeared before an Assemblycommittee, although it was willing inprinciple to do so.

44. Since July 1999, a number of newEngland and Wales quangos havebeen created through primarylegislation. Guidance for Whitehallofficials on making provision for newpublic bodies in primary legislationsuggests that such bodies should be

subject to the Assembly’s powers ofsummons where ‘there is reasonablecommon ground between the body’sresponsibilities and those of theAssembly’.43

45. However, the guidance does notaddress the issue of howaccountability to the Assembly shouldbe delivered through governing bodyappointments. Here, the AssemblyGovernment has pursued its objectiveof ensuring effective representation ofWelsh interests through negotiation as,for example, in the cases of Ofcomand the Strategic Rail Authority.44

Findings

In the light of the evidence in thischapter our findings are as follows:

■ public concern about theaccountability of a growing numberof quangos played a significant partin public support for devolution – ourpublic meetings revealed that suchconcerns remain;

■ apart from the specific limitations onthe Assembly committees’ powers tosummon witnesses, we received noevidence to suggest that the presentformal powers are a constraint uponthe Assembly’s ability to hold toaccount the quangos that it sponsors;

■ there is evidence of weaknesses inthe committees’ capacity toscrutinise quangos effectively: thecurrent role and working patterns ofcommittees do not help AMs todevelop the depth of expertisenecessary for effective scrutiny, nordo they promote a culture of scrutinyand challenge;

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■ some confusion surrounds therelationship between the quangos,Ministers and the SubjectCommittees, particularly over theroles of Ministers and committees inholding quangos to account –clarification of these roles would bebeneficial;

■ so far the Assembly Government hasmade only limited use of its powersto re-structure ASPBs, so that publicexpectations on the reduction ofquangos have not been met – this isa policy choice, which it is not ourrole to evaluate;

■ where ASPBs are established byseparate Acts of Parliament, theAssembly’s powers to carry out majorrestructuring would be constrained bythe existing settlement, but no suchproposals were put to us;

■ devolution has changed radically thenature of the arm’s lengthrelationship between the Assemblyand its sponsored bodies, by bringinga closer involvement in the detailedpolicies and actions of ASPBs;

■ whether or not the Assembly’s formalpowers are changed, it will need toevaluate rigorously the case for thearm’s length relationship, in order toensure the right balance betweenproper accountability and thediscretion needed for effectivedelivery;

■ accountability to the Assemblyshould be strengthened for quangosin non-devolved policy areas thatimpact on the Assembly’sresponsibilities – currentarrangements are variable and reston goodwill and co-operation.



Notes

1The six Agricultural Dwelling House Advisory Committees are counted as one advisory ASPB and the fourValuation Tribunals as one tribunal.

2Bodies such as the Welsh Blood Service, National Public Health Service and Breast Test Wales have anindependent existence on a day-to-day basis, but are formally part of an NHS Trust.


4Kevin Morgan and Geoff Mungham, Redesigning Democracy: The Making of the Welsh Assembly (Bridgend:Seren, 2000).

5Oral evidence of Professor Kevin Morgan, 26 September 2002.

6Welsh Office, A Voice for Wales Cm 3718 (July 1997), 16.

7Government of Wales Act 1998 c.38, sections 27-28 and schedule 4.

8Welsh Office, A Voice for Wales Cm 3718 (July 1997), 18.

9The Arts Council of Wales, the National Library of Wales, the National Museums and Galleries of Wales, the RoyalCommission on Ancient and Historical Monuments in Wales and the Sports Council for Wales.

10Welsh Assembly Government, Plan for Wales 2001 (Cardiff: National Assembly for Wales, October 2001), 21.

11The ACCAC review is underway and the quinquennial review of the Arts Council of Wales was postponedpending implementation of an external management review.

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12NHS Reform and Health Professions Act 2002 c.17.

13Health Professions Wales and the Wales Centre for Health.


15Oral evidence of Professor Kevin Morgan, 26 September 2002.

16The Committee on Standards in Public Life, First Report, Vol 1 – Report, Cm 2850-I (London: The StationeryOffice, May 1995).

17Guidance has recently been developed for the committees on scrutiny at various stages of the ASPB planningprocess.

18Oral evidence of the Chair of the Audit Committee, 12 December 2002.

19Paper AC(2) 03-04(p2) by the Auditor General for Wales to the Audit Committee, 23 October 2003.

20For example, see written and oral evidence of the Countryside Council for Wales, 10 April 2003; oral evidence ofthe Sports Council for Wales, 27 June 2003; written and oral evidence of the Forestry Commission, 8 May2003.



23Oral evidence of the Chair and the Chief Executive of the Countryside Council for Wales, 10 April 2003.

24See, for example, oral evidence of the Chair of the Health and Social Services Committee, and of the Chair of theEnvironment, Planning and Transport Committee, 5 December 2002.

25Oral evidence of the Chair of the Audit Committee, 12 December 2002.

26Ibid.

27Government of Wales Act 1998 c.38, section 74 and schedule 5.

28Oral evidence of the Chair and the Chief Executive of the Countryside Council for Wales, 10 April 2003; writtenevidence of the Chair of the National Council for Education and Training in Wales, 28 March 2003.


30Minutes of the Education and Lifelong Learning Committee, 22 May 2002, ELL 10-02(mins), Annex A.

31Minister’s Report to the Education and Lifelong Learning Committee, 21 November 2002, ELL 17-02(p.1),Annex B.

32National Assembly for Wales Record of Proceedings, 12 November 2003.


34Welsh Assembly Government, Response to the Audit Committee’s Report on the National Council for Educationand Training for Wales: Financial Management of Partnership and Innovation and Development Projects,(Cardiff: Welsh Assembly Government, February 2004).

35Oral evidence of the Chair and the Chief Executive of the Sports Council for Wales, 27 June 2003.

36Oral evidence of Enid Rowlands, Chair of the National Council for Education and Training in Wales, 28 March2003.

37Ibid.

38Ibid. Mrs Rowlands was Chair of the North Wales Health Authority both before and after the Assembly wasestablished, her appointment ending in December 2000.

39Oral evidence of the Chair and the Chief Executive of the Sports Council for Wales, 27 June 2003.

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40Ibid. In this evidence, the Chair also described how the Council was not consulted by the Assembly Governmentin developing its sports strategy for Wales.

41Written submission of the University of Wales College, Newport.

42Government of Wales Act c.38, section 74 and schedule 5.

43Office of the Deputy Prime Minister, Devolution Guidance Note 9: Post-devolution primary legislation affectingWales, (January 2003). Available at http://www.dca.gov.uk/constitution/devolution/guidance/dgn09.pdf(accessed 2 February 2004).

44See Chapter 5.



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chapter 7: the Wales–Whitehallrelationship


2. It addresses the following questions:

■ what are the formal and informalarrangements governing the day today workings at Ministerial andofficial level – and how do these workin practice?

■ what difference has the Assemblymade to the relationship between thedepartments of Government in Cardiffand in London and to Whitehall’streatment of Wales, in relation to bothdevolved and non-devolved services?

■ what are the advantages anddisadvantages of presentarrangements, seen from Cardiff andfrom Whitehall, and how could theybe improved?

■ what changes to the relationshipbetween Wales and Whitehall wouldbe likely as a result of changes to theformal powers of the NationalAssembly for Wales?

3. The key sources of evidence on theseissues are the evidence of theSecretary of State for Wales, speakingon behalf of the UK Government, andof Ministers of the Welsh AssemblyGovernment, as well as a number ofexternal commentators.

4. Many of the dealings between Cardiffand Whitehall relate to the UKGovernment’s proposals forlegislation. The process of scrutinisingand passing primary legislationaffecting Wales is discussed in moredetail in Chapter 8. The presentchapter is concerned mainly with theinter-governmental negotiations onthe UK Government’s legislativeprogramme and individual Bills, aswell as with issues of inter-governmental discussion that do notinvolve legislation.

UK inter-governmental relations underdevolution

5. The Commission was fortunate inbeing able to begin its work byreading the extensive evidence1

provided to the House of Lords SelectCommittee on the Constitutionchaired by Lord Norton of Louth and,as indicated below, to draw on theCommittee’s report following thatenquiry, published in December2002.2 That report highlights thecomplexity of relations with the UKGovernment and the impreciseboundaries that exist betweendevolved and non-devolved matters inrelation to all three devolvedadministrations:

The Wales–WhitehallrelationshipThis chapter reviews the relationship between the administrations inCardiff and London since the advent of the Assembly.

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A further characteristic of devolutionis that it makes inter-governmentalrelations inevitable, and integral tothe UK’s system of government. Thepattern of devolved and retainedfunctions is an intricate one. It can behard to see in practice (andsometimes in principle) where adevolved function stops and a retainedone starts. Even if that were clear,many policies or initiatives of one levelof government will require somedegree of contact between thedevolved administration and UKGovernment…Even if the devolutionarrangements did not place thepremium that they do on continuedgood relations between the variousgovernments within the UnitedKingdom, necessity would compel ahigh degree of interaction.3

6. The evidence received by theCommission reinforced this picture ofcomplexity and extensive interactionwith the UK Government that iscommon to all the devolvedadministrations. Although the Walesmodel of executive devolution seems tobe the most complex set ofarrangements, there exists also inScotland and Northern Ireland ajagged boundary between devolvedand non-devolved issues, whichcurtails the freedom of action of thedevolved administrations in a numberof areas. For all three devolvedadministrations, finance is a key areaof overlap between the potentialaspirations of the devolvedadministrations and powers that arereserved to the UK Government.4

The formal structure for the Wales-Whitehall relationship

7. The arrangements for working relationsbetween the UK Government and thedevolved administrations operate on anon-statutory basis. The basis of therelationship is set out in theMemorandum of Understanding5

between the Assembly Cabinet,Scottish Ministers and the UKGovernment. This commits theadministrations concerned to abide bycertain principles, such as co-operation where appropriate, timelycommunication, full exchange ofscientific, technical and policyinformation, respect for confidentialityrequirements, and the conduct ofbusiness through normaladministrative channels whereverpossible.

8. Accompanying the Memorandum areoverarching agreements on Europeanpolicy issues, international affairs,assistance to industry and statistics.

9. To provide ‘central co-ordination of theoverall relationship’,6 theadministrations have established aJoint Ministerial Committee, or JMC,as a forum for consultation, mediation,discussion and dispute resolution. Aswell as a “plenary” meeting once ayear attended by the Prime Minister,the First Ministers of each devolvedadministration and the territorialSecretaries of State, occasional“subject” JMC meetings have beenheld in areas such as health and theknowledge economy.



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10. The JMC thus meets relativelyinfrequently and has no formal legalstatus underpinning its work. A WelshAssembly Government official summedup his view of what the role of theJMC would be in settlingdisagreements:

The JMC does not have any leveragesystems at all. It certainly does nothave any decision-making powers. It is a typical situation where “goodchaps” sit round the table and cometo a decision, a consensus.Ultimately, the power would lie whereit lay. If it were a matter of the UKGovernment wanting to put legislationthrough, it could walk away and stilldo it.7

11. Bilateral concordats have also beendrawn up between the AssemblyGovernment and individual Whitehalldepartments to govern the detailedadministrative relationships,particularly on matters of mutualinterest and where the institutionshave executive functions that overlapor bear on each other. Largelyprocedural, the concordats establishthe broad framework for day to daydealings between officials, but cannotbe enforced in law.

12. To supplement the formal workingagreements, Whitehall has prepared aseries of Devolution Guidance Notes,which provide practical advice to UKGovernment officials on issues such ascommunication and consultation,handling primary legislation andcorrespondence between Ministers andthe devolved administrations. Two ofthese Notes specifically address

arrangements for Wales, covering therole of the Secretary of State forWales8 and post-devolution primarylegislation affecting Wales.9

The role of the Secretary of State forWales and the Wales Office

13. Although most day to day contact isbetween officials of the WelshAssembly Government and the leaddepartment in Whitehall, the WalesOffice plays an important role in actingas the voice of Wales within the UKGovernment and Parliament. Inparticular, the Secretary of State forWales and his department areresponsible for:

■ bidding for slots in the primarylegislation programme for measuresaffecting Wales and taking theseprovisions through Parliament;

■ acting as guardian of the Walesdevolution settlement – ensuring thatWhitehall departments are properlyconsulting their Assembly counterpartsand taking the lead in disputeresolution;

■ ensuring that the interests of Wales arefully taken into account in UKGovernment decisions.10

14. Membership of the relevant Cabinetcommittees helps the Secretary ofState for Wales and his officials tokeep an overview of the interactionsbetween Whitehall and Cardiff acrossgovernment and to intervene wherenecessary. The Secretary of State forWales, the Rt Hon Peter Hain MP,described his starting point as being ‘afriend and advocate of the Assembly’sposition in Cabinet’:

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I start off with the presumption that Iam negotiating and representing theAssembly to the extent that it does notrepresent itself, which of course itdoes to a considerable extent, bothinter-ministerially and between officialswith Whitehall. I start off with thepresumption that I want to see theAssembly’s wishes carried intopractice. Then we seek to bear inmind what interests, objectives andpolicies there might be in the relevantWhitehall department that need to beadjusted to meet the Assembly’sconcerns. There is a bit of give-and-take in the negotiations…11

15. However, he was keen to emphasisethat his support would not beuncritical. In cases where the UK andAssembly Governments have differentviews, he would try to reconcile thesethrough:

a process of negotiation anddiscussion and testing of thearguments. What I do not do is,simply because the Assembly says ‘Iwant something’, I just say ‘snap’ andthat is that.12

16. The creation of the Department forConstitutional Affairs in June 2003initially seemed to herald the demiseof the Secretaries of State for Walesand Scotland, but it was later clarifiedthat these roles and their respectiveOffices would remain. However, thepresent Secretary of State for Walesnow combines this role with anotherCabinet post – that of Leader of theHouse; and the Wales Office now

comes under the umbrella of the DCAfor staffing and some otheradministrative purposes.

17. The Secretary of State for Walesexplained the reasons for, andconsequences of, the change to theHouse of Commons:

One of its [devolution’s] successes isthat decisions in Scotland and Walesare being made closer to the people ofScotland and Wales, through theScottish Parliament and the NationalAssembly for Wales. As a result thereare fewer decisions and fewer dutiesfor the Secretaries of State for Walesand for Scotland…It is thus a perfectlyreasonable step to combine theirduties with other Cabinet posts, as wehave done…

As the Secretary of State for Wales, Iam accountable to the House, asbefore, for Welsh business, and Irepresent Wales in Cabinet. My dutiesremain the same. My oversight of allprimary legislation affecting Walesremains the same. The Wales Officeremains open for business as usualand its staff serve me and mydeputy…as before.13

How the arrangements work in practice

18. The nature of the relationship betweenthe Welsh Assembly Government andthe UK Government is complexbecause it involves contacts at everylevel between hundreds of civilservants in Cardiff, Whitehall, Brusselsand other government offices. Thesecontacts sometimes underpin



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Ministerial exchanges, but often areconducted at relatively junior levelsacross the very wide range ofdevolved and non-devolved functions.

19. Working within the formal structureset out above, these informal relationsare influenced by a number of factors,including:

■ the particular policy/operational orregulatory framework;

■ the policy direction given by Ministers;

■ departmental culture and the historyof relationships before 1999 andsince;

■ timetable and other extraneouspressures.

20. The Commission was impressed bythe informal briefing it received on theway in which the Wales Office worksto facilitate good working relationsbetween Cardiff and Whitehall and theoperation of the devolution settlement.

The view from Whitehall

21. The view of the UK Government aspresented in evidence to theCommission is that the devolutionarrangements are working well andare fulfilling the undertakings given inA Voice for Wales. The introduction tothe Memorandum by the UKGovernment submitted to theCommission by the Wales Office andthe Office of the Deputy PrimeMinister in December 2002 says that:

With the Assembly now nearing thecompletion of its first full term, theGovernment believes that devolutionhas been a great success. Devolution

has become a settled part of thepolitical landscape and the NationalAssembly for Wales and WelshAssembly Government have begun tomake a real difference to the lives ofthe people of Wales, finding Welshsolutions to Welsh problems…

The Government believes that thecurrent settlement does provide anadequate framework for integratedand consistent policy making inWales…The UK Government hastherefore been willing, where possible,to accommodate a separate Welshagenda in primary legislation. Thishas resulted in a number of Acts thatcontain significant Welsh provisions,as well as Wales-only legislation.14

22. Overall the view of the Secretary ofState was a very positive one – thatthe system is robust and delivers theWelsh Assembly’s legislativerequirements as well as, if not betterthan, those of most Whitehalldepartments. He acknowledged thatproblems arise, partly becauseWhitehall is on a steep learning curve;but these are solved by thedepartments whose job it is to deliverthe UK Government’s commitment todevolution.15

23. The Secretary of State’s evidence alsoincluded a positive view of theapproach taken by Whitehalldepartments to the question ofextending the powers of the Assembly.On the example of powers in relationto student finance he said:

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As the White Paper on highereducation was being finalised on theissue of fees, he [Charles Clarke,Secretary of State for Education andSkills] called me and said, ‘I’minclined to suggest to the Assemblythat this is transferred under thenormal transfer of functionsprocedure, what do you think?’16

24. This had followed an initial approachby the Assembly Minister and wasfollowed by detailed negotiations onthe financial aspects.17 TheCommission put to the Secretary ofState that the evidence from theAssembly Finance Minister seemed topresent a different picture in respectof relations with the Home Office. Heresponded that these problemsrelated mainly to the complexities ofpolice funding:

There have been difficulties overpolice funding and I think that theFinance Minister was really talkingabout that…that has a lot to do withdifferences of timing, the WelshAssembly Budget being set on adifferent cycle and at a different timefrom when the Home Office sets itsbudget, and the fact that policefunding is…50/50 in terms of HomeOffice and Welsh Assemblyfunding…So there are a number ofcomplexities there…[But in relationto police and the legal system morewidely] I am not aware of any majorlogjams or policy difficulties.18

The view from Cardiff

25. The evidence of Ministers and officialsof the Welsh Assembly Governmentpresented a picture of extensivecontact across the range of devolvedand non-devolved issues – withexamples of both collaboration andobstruction.19 Huw Brodie, director ofthe Agriculture and Rural AffairsDepartment of the AssemblyGovernment, emphasised thechallenges presented to Whitehall bythe varying contours of devolution:

My impression is that it is rathercomplicated for civil servants inLondon to understand thecomplexities of the differences of thedevolution settlement between Walesand Scotland…the flow very muchfrom London is seeing Wales andScotland and Northern Ireland asbeing three parallel and equivalentsettlements.20

26. Whitehall departments have varied inthe ease with which they haveadapted to devolution, as MichaelGerman AM, speaking as the thenDeputy First Minister, explained:

There are differences, and they aremanifest, about the way in whichthey [Whitehall departments]understand or have in their mindsetdevolution as an issue…Clearly, likeall processes, you have tounderstand the agendas andpositions in order to achieve whatyou think the right position is totake.21



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27. The evidence suggests that,unsurprisingly, these differences areparticularly marked betweendepartments with a long history ofinteracting with the Welsh Office (e.g.education, health) and departmentslike the Home Office, where theinception of the Assembly hasintroduced a major new dimension topolicy areas hitherto largelyundisturbed by the pre-1999 WelshSecretaries of State. The FirstMinister also highlighted how therelationship is more complicated inareas where functions are splitbetween Whitehall and the Assembly,such as transport or police funding.22

28. Overall, the Assembly Government’sevidence suggested that, while therelationship continues to presentchallenges, Whitehall is becomingmore familiar with the requirements ofdevolution, as the Minister for Culture,Sport and the Welsh Language, JennyRanderson AM, explained:

Experience shows me that achievingmy policy objectives with Whitehall isfar from easy. I would not attributethis, from my experience, to ill will,simply that devolution and thedevolved administrations seem to besome way down Whitehall’sagenda…I think it is fair to say, also,that the number of times we registeron the radar screens is improvingrather than getting worse.23

29. Other organisations told us that, insome ways, their relationship withWhitehall has become more complex

since the Assembly was established.Even in relation to non-devolved issuesor proposals for primary legislation,Whitehall will sometimes assume thatit no longer has to deal with Wales –or simply forget that it should be doingso.24 For example, in relation to theproposals for the draft Charities Bill,Graham Benfield, chief executive ofthe Wales Council for Voluntary Action,explained that:

The Home Office at the moment hasmade it fairly clear they're operatingon this from an English perspective, sothen we get to the question of whoshould we be liaising with from aWelsh point of view, and that is by nomeans clear.

…[In dealing with Whitehall on non-devolved issues], you often get thereply, ‘Well, isn't that a matter for theAssembly?’ or, ‘If you have a view, canyou not communicate that through theAssembly?’…There is sometimesconfusion – either genuine confusionor, sometimes, really a lack of thinkingabout why that relationship isnecessary because of devolution.25

30. A recurring theme in the evidencefrom Cardiff on working withWhitehall was the length of timeneeded to secure agreement or actionfrom Government departments.Examples discussed elsewhere in thereport include the process ofobtaining powers to implement EUlegislation26 and negotiations on thetransfer of additional powers.27

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Equally, the Secretary of Stateemphasised that Whitehall has had tolearn to allow more time for decisionsthat need the Assembly’s approval.28

Working with Whitehall on primarylegislation affecting Wales

31. A critical area of the relationshipbetween Whitehall and the AssemblyGovernment is the development of newprimary legislation affecting Wales. Keyissues here include:

■ how Whitehall’s plans for newlegislation (relating to both devolvedand non-devolved matters) will impacton the Assembly’s obligations, powers,policies and budget – and the extent towhich the Assembly Government caninfluence those proposals;

■ the nature and scope of the powersconferred on the Assembly by newlegislation – how much discretion willthe Assembly have to tailor delivery tomeet the needs of Wales?

■ the extent to which the AssemblyGovernment is able to secure the newprimary legislation it needs to deliverits policies.

32. Devolution Guidance Note (DGN) 9includes the following guidelines forWhitehall officials working on Bills:

■ Whitehall should always consult theWelsh Assembly Government from anearly stage on legislative proposals thatconfer new functions on the Assembly,alter its existing functions or otherwiseaffect the Assembly’s responsibilities(including implementation in Wales ofnon-devolved policy matters);

■ Whitehall’s consent is needed beforethe Assembly Government cancirculate or refer to Bill material in

discussions with the Assembly’scommittees or its partners;

■ new functions created by Bills shouldnormally be conferred on the Assemblywhere it already exercises similarfunctions in that policy area;

■ powers to bring legislation into forceshould normally apply on equal termsto England Ministers and theAssembly;

■ Bills should not normally requireMinisterial consent for Assemblyactions;

■ disagreements should be resolvedwherever possible before a Bill isintroduced or published in draft.29

Legislating for Wales: local government

33. Local government is a striking exampleof how all these arrangements work inpractice because there is a regularprogramme of legislation, with threeBills presented since the inception ofthe Assembly, in 1999, 2000 and2003.

34. Here, the impression is that, althoughthe Whitehall Department (Office ofthe Deputy Prime Minister (ODPM)since 2002) recognises that theAssembly is in the lead in settingpolicy for local government in Wales,there is no presumption that theAssembly will get the legislation,including the subordinate powers, thatit wants. What happens is anegotiation between Whitehall and theAssembly Government, with theAssembly Minister bidding for anumber of modifications to theproposed legislation and getting someof them. This can be a relatively openprocess, with the Minister reporting onbids and their outcome to the Subject



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Committee, but without giving detailsof the respective departments’positions.

35. In some cases, Whitehall is contentwith the Assembly Government’sproposition, but not with the means ofachieving it. For example, in relation tothe 2003 Local Government Bill, theAssembly Government did not wantthe UK Government’s proposals tointroduce precepting arrangements forFire Authorities and suggested that theWelsh Assembly Government be giventhe commencement power for therelevant provisions so that they coulddecide when, and if, to introducethem. There were concerns about theproprieties of this mode of notimplementing a policy, so the agreedalternative was to give the WelshAssembly Government a specificdelegated power to enable it to amendthe primary legislation to acquire thepower at a later stage.

36. More generally, the impression fromCardiff is that Whitehall requires it tojustify different provisions for Wales –sometimes for Parliamentarymanagement reasons and sometimesto satisfy Whitehall that the Welshproposals are robust. Nevertheless,there are many recent examples ofWhitehall acceding to Cardiff’srequests:

■ in order to resolve the problems withthe timing of the police fundingsettlement mentioned above, theWelsh Assembly Government soughtthe power to split the local governmentfinance report to enable the policesettlement for Wales to be announcedafter the main local governmentrevenue settlement;

■ ODPM agreed to the Assembly’srequest for the power (mirroring that ofthe Secretary of State) to change thedates for local government elections;

■ following pressure from both theAssembly and the Local GovernmentAssociation, the proposal to empowerlocal authorities to prepare communitystrategies was converted into the moreprescriptive duty contained in the 2000Act.

37. In respect of business rates, however,the Assembly Government did not getwhat it wanted in the 2003 Bill. TheAssembly manages the non-domesticrates pool for Wales and has relatedsecondary legislation powers that allowit, for example, to set distinctive ruralrate relief and transitional rate reliefarrangements. The AssemblyGovernment sought the power to returnbusiness rates to local government inWales at some point in future – a policysupported by local government in bothWales and England.

38. However, ODPM and the Treasuryresisted the change. On this issue,there were conflicting principles atstake:

■ some functions within local governmentfinance are devolved to the Assembly(and it is a devolved policy area forScotland);

■ but fiscal policy generally is notdevolved and the level of non-domesticrates in Wales is currently tied to thelevel in England.

39. The issues illustrated above are typicalof the kinds of negotiation that takeplace across the primary legislativeprogramme, as shown in the followingexamples:

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■ the Animal Health Act 2002 –belated recognition in Whitehall thatthe Bill’s growing content wouldimpact on Assembly responsibilitiescreated problems for agreeing policybetween the UK and AssemblyGovernments, and the AssemblyGovernment was able to influencepolicy on only a few aspects.30

■ the Homelessness Act 2002 – theAssembly Government was involved ata relatively late stage in discussions onpolicy for the homelessness andallocations provisions of the Bill. Thisconstrained the AssemblyGovernment’s ability to shape thedetailed drafting, although it supportedthe Bill’s general principles.31

■ at the request of the Welsh AssemblyGovernment, provisions on foundationhospitals in the Health and SocialCare (Community Health andStandards) Act 2003 refer to Englandonly, but the Act includes Wales-onlyprovisions for the review andinvestigation of social care servicesand certain health care services.32

Whitehall’s approach to delegatedpowers

40. Prior to 1999, legislation simplyspecified that powers were delegated to“the Secretary of State”. Whether thepowers were in practice exercised by theSecretary of State for Wales or anotherMinister was a matter for administrativedecision (see Chapter 5).

41. Since the advent of the Assembly,negotiations must take place, for eachBill affecting devolved policy issues, onthe nature and scope of the executiveand legislative powers that the newlegislation will confer on the Assembly.

Reflecting the importance of thesenegotiations, it has been suggestedthat each new Westminster Bill is ineffect a “devolution bill”.

42. There are no statutory or other formalagreements to guide this process.Whitehall’s approach in practice hasbroadly followed the guidance in DGN9, which was summed up by DavidLambert, Research Fellow in PublicLaw at Cardiff Law School:

The test seems to have been, ‘Wouldthese have been powers which wouldhave been exercised by the Secretaryof State whilst still in the WelshOffice?’ – and if the answer was no,then the Assembly would exercise nofunctions.33

43. However, as the Counsel Generalpointed out to us, the scope of thepowers given to the Assembly alsodepends on the way in which they aredrafted in the legislation approved byParliament; and:

Although the [Whitehall] guidance isclear on the need for consultation, it issilent as to the question of how newfunctions are to be conferred on theAssembly.34

44. Following the Assembly Review ofProcedure, the Assembly hasendorsed35 a set of general principlesto be used in determining thefunctions that should be given to theAssembly in any new Bills affectingdevolved matters (often termed “theRawlings Principles” – see Box 7.1).



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Box 7.1: Assembly Review of Procedure principles to be adopted in GovernmentBills affecting the Assembly (the Rawlings Principles)36

The following principles for the drafting of Government Bills affecting the Assemblywere adapted from the evidence of Professor Richard Rawlings, Professor of Lawat the London School of Economics and Political Science, to the Assembly Reviewof Procedure. As part of the Assembly Review of Procedure report, the Principleswere endorsed by the Assembly in February 2002, but they have not beenaccepted by the UK Government.

1. The Assembly should acquire any and all new powers in a Bill where theserelate to its existing responsibilities.

2. Bills should only give a UK Minister powers which cover Wales if it isintended that the policy concerned is to be conducted on a single England andWales / GB / UK basis.

3. Bills should not confer functions specifically on the Secretary of State forWales. Where functions need to be exercised separately in Wales, they shouldbe conferred on the Assembly.

4. A Bill should not reduce the Assembly’s functions by giving concurrentfunctions to a UK Minister, imposing a requirement on the Assembly to actjointly or with UK Government / Parliamentary consent, or dealing withmatters which were previously the subject of Assembly subordinate legislation.

5. Where a Bill gives the Assembly new functions, this should be in broadenough terms to allow the Assembly to develop its own policies flexibly. Thismay mean, where appropriate, giving the Assembly "enabling" subordinatelegislative powers, different from those given to a Minister for exercise inEngland, and/or which proceed by reference to the subject-matter of the Bill.

6. It should be permissible for a Bill to give the Assembly so-called "Henry VIII"powers (i.e. powers to amend primary legislation by subordinate legislation, orapply it differently) for defined purposes, the test being whether the particularpowers are justified for the purpose of the effective implementation of therelevant policy. Where such powers are to be vested in a UK Minister forexercise in England, they should be vested in the Assembly for exercise inWales.

7. Assembly to have power to bring into force (or "commence") all Bills or partsof Bills which relate to its responsibilities. Where the Minister is to havecommencement powers in respect of England the Assembly should have thesame powers in respect of Wales.

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45. The UK Government has resistedendorsing the Rawlings Principles,arguing that general principles of thiskind are not appropriate and that eachBill must be drafted in the light of thepolicy decisions made in that particularcase.37 Nevertheless, the Governmenthas agreed that ‘greater consistency isdesirable in the way in whichlegislation for Wales is framed’ and haspromised to ‘consider whether it wouldbe appropriate to expand the advice inDevolution Guidance Note 9’.38

46. The evidence does suggest that theextent of powers delegated to theAssembly in primary legislation isinfluenced by the view of UKGovernment Ministers and officials atthe time, as much as by establishedprinciples. As their experience ofdevolution grows, Whitehall officialsare becoming more knowledgeableabout the kinds of powers that shouldbe conferred on the Assembly – butdecisions are taken on a case-by-casebasis and differences between Bills stilloccur.

47. As a result, the Assembly Governmenthas often had to prove the case fordevolving a function to Wales. Forexample:

■ the Adoption and Children Act 2002– the Assembly Government was ableto influence policy decisions during thedevelopment of the Bill and securepowers to extend the Assembly’s rolein adoption – but had to overcomeWhitehall officials’ reluctance todevolve some functions to theAssembly because they felt a commonEngland and Wales regime should bemaintained.39

■ the Community Care (DelayedDischarges etc) Act 2003 – thislegislation allows the NHS to chargelocal authorities where people remainin hospital for social care reasons (Part1) and provides for the removal oflocal authorities’ discretion to chargefor certain care services, where theirfree provision could contribute tospeedier discharge from hospital (Part2). The Assembly Government readilyobtained the power to decide when toimplement these provisions and hasdecided at present not to introducePart 1. Whitehall was initially reluctantto give the Assembly separate powersto determine the range of free careservices in Wales, possibly because itfeared that the Assembly would usethem to introduce free personal care athome for the elderly. The relevantpowers were later introduced into theBill, but limited free provision to amaximum of six weeks in bothEngland and Wales.

■ local government legislation – in theLocal Government Act 1999, someimportant executive powers areretained by the Secretary of State (forexercise after consultation with theAssembly), including the power toreduce the number of different plansrequired from local authorities inWales. However, by 2003, ODPMwere prepared to give greater scope forthe Assembly to determineimplementation.

■ the Pollution Prevention and ControlAct 1999 – this Act, which waspassed in the early days of theAssembly, provides for theimplementation of a new pollutioncontrol regime. Until recently,



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Whitehall refused to agree the transferof powers to the Assembly eventhough this had been approved inprinciple by Parliament, apparentlybecause it was concerned that theAssembly would thereby gain “HenryVIII” powers that would it give itunduly wide discretion to amendprimary legislation (see Box 7.2).

48. However, there are also exampleswhere Whitehall has supportedrelatively broad powers for theAssembly, which will allow it todevelop its own approach in Wales:

■ the NHS Reform and Health CareProfessions Act 2002 allows theAssembly to determine the numberand geographical coverage of the newLocal Health Boards and to confer onthem virtually any of its functionsconcerning health. It also has powersto set the framework for the contentand preparation of Health and Well-Being Strategies, which are intendedto govern the delivery of health andsocial care services. During the Houseof Commons debates on the Bill, theUK Government resisted requests tosee how the Assembly would use itspowers in draft regulations, arguingthat this would unduly restrict theAssembly’s discretion to use thepowers as it wished;40

■ similarly, the Assembly’s powers inrespect of Health Promotion Walesunder the Health (Wales) Act 2003are broadly drawn, with the intentionthat ‘the Assembly should not have toreturn to Westminster for morelegislation, and should have discretionto make such arrangements as arenecessary for the health service inWales’;41

■ the Education Act 2002 gives theAssembly the power to specify byorder the foundation stage of thecurriculum and its areas of learning,whereas they are specified on the faceof the Act for England;42

■ the Waste and Emissions Trading Act2003 – this UK-wide legislation setsout the policy framework for a schemeof landfill targets for municipal waste,but leaves most of the details of thescheme to be specified in regulationsby each of the four UKadministrations. This approach wastaken to allow the devolved bodies todecide how to meet the targets, whileachieving a consistent approach acrossthe UK in terms of the type oflegislation to be used. In effect, thelimits on the Assembly’s legislativepowers prompted the UK Governmentto propose wider than usual delegatedpowers – but Parliament voicedconcerns about so many matters beingleft to Ministerial discretion.43

49. These examples illustrate the fifthRawlings Principle – that newfunctions given to the Assembly shouldbe drafted in sufficiently broad termsto allow the Assembly to develop itsown policies flexibly. Writing about theNHS Reform etc. Bill, Simon McCann,who at the time was a member of theAssembly’s Office of the CounselGeneral, concluded that:

A precedent appears to have beenestablished that when primarylegislation confers new powers on theAssembly, it may often be appropriateto draw those powers as widely aspossible, leaving it to the democraticmechanisms in Cardiff to exercise the

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proper checks and balances over theuse of the new powers. This is aformat which is likely to be followed infuture Bills where appropriate, thusexpanding the legislative powers of theAssembly and conferring greaterfreedom on it to exercise those powersas the needs of Wales require.44

50. The evidence suggests that there aresome difficulties with this principle:

■ the Counsel General has argued thatbroadly drafted delegated powers wouldcreate legal uncertainty as to the extentof the Assembly’s powers.45 However,the Scotland Act 1998 provides aprecedent for Parliament handing onpowers (in this case, to make primarylegislation) that are phrased in generalterms;

■ the model of executive devolutionregards Ministers in England and theAssembly in Wales as analogues – andthe evidence suggests that Parliamentcontinues to see them in this way when

it is considering the appropriateness ofdelegated powers in proposedlegislation.46 The debates on the Wasteand Emissions Trading Act 2003 andthe Pollution Prevention and Control Act1999 illustrate that Parliament isgenerally cautious about approving“framework” legislation that confersbroad powers – although it has done soon several occasions;

■ because the secondary legislationpowers to be delegated by Parliament toSecretaries of State are, by convention,tightly defined, England and Wales Billswould require separate provisionsrelating to Wales in order to conferbroader powers on the Assembly. Thiswould make Bills longer and morecomplicated, which the UK Governmentusually tries to avoid.

51. The scope for conferring broaderdelegated powers on the Assembly isdiscussed further in Chapter 13 ondeveloping devolution.



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Box 7.2: The Pollution Prevention and Control Act 1999

The Pollution Prevention and Control Act 1999 implements the EU IntegratedPollution Prevention and Control Directive (96/61/EC) by enabling a single,coherent pollution control system to be set up by secondary legislation. Thisregime will apply to installations previously regulated under the EnvironmentalProtection Act 1990 (functions under which have transferred to the Assembly).Regulations made under the 1999 Act can also cover a range of other mattersconnected with the prevention or control of pollution.

The House of Lords Committee that polices the use of delegated powers inprimary legislation was scathing about the broad regulation-making powers thatwere at first proposed in the Bill:

Our fundamental concern is as to whether it can ever be right to legislate ona topic of such importance, which provides for widespread controls andaffects activities carried on both on a commercial and private basis, leavingeverything of substance to be determined either by or under the regulations.So far as we can judge there is no specific issue of policy which theprovisions of the Bill seek to decide…as at present drafted, this is a‘skeleton’ bill and so is an inappropriate delegation of secondary powers.47

The UK Government responded to these concerns by tabling amendments tocircumscribe and provide criteria for the delegated powers. These were sufficientto secure the successful passage of the Bill, although the House of LordsDelegated Powers and Regulatory Reform Committee maintained:

The Committee would not wish this Bill to be regarded as a precedent forthe future. It remains important that the purposes and ambit of legislation,together with any important governing criteria, should be clearly specifiedwithin the primary legislation and not simply left to the exercise ofdelegated powers.48

Although the Act does not directly confer these regulation-making powers on theAssembly, Ministers confirmed to Parliament on several occasions that this wastheir intention.49 However, once the Act was passed, DEFRA officials argued thatthe new powers should not be transferred to Cardiff because they would give theAssembly undue discretion to amend primary legislation – even though theAssembly has many powers relating to pollution control under other legislation.Only now – four years later – has DEFRA agreed in principle to their transfer tothe Assembly. In contrast, the same powers were automatically exercisable by theScottish Executive on Royal Assent in 1999.

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Delivering Assembly requests forprimary legislation

52. As well as responding to opportunitiescreated by Whitehall’s plans for newBills, the Assembly Government canformally submit its own proposals fornew primary legislation, which are firstapproved by the Assembly inplenary.50 These bids are sent to theSecretary of State for Wales, who thendecides which bids he will support inUK Cabinet negotiations on theforthcoming legislative programme.

53. The outcome of the Assembly’s bids sofar is summarised in Table 7.1. Thisshows that the Assembly Governmenthas been able to secure primarylegislation for some, but not all, of itsbids – usually on the back of WhitehallBills rather than as separate Wales-only Bills. The Assembly Governmenthas also developed distinctive Welshpolicies in response to legislativeopportunities created by WhitehallBills. An example of this process atwork is the Planning and CompulsoryPurchase Bill (Box 7.3).

54. The evidence also illustrates how theWales Office and other Whitehalldepartments have taken a practicaland constructive approach to involvingthe Assembly Government in theprocess of drafting Wales-onlyprovisions and briefing Ministers forthe relevant Parliamentary debates.51

55. The main criticism of this processoffered in evidence is that there is noguarantee that the AssemblyGovernment will be able to secure theprimary legislation it needs to deliver

its policies. Evidence from aGlamorgan Policy Centre researchstudy undertaken by Professor MartinLaffin and colleagues suggests that theAssembly Government often faces‘considerable difficulties’ in gettingWales-only provisions included inWestminster Acts.52

56. Even though the UK Government maybe willing in principle to legislate, thepolicy can be delayed because nosuitable legislative opportunity isavailable. Finding the right legislativevehicle can be particularly difficult forsmaller bids that do not constitute aGovernment bill on their own, such asthe proposal to extend the remit of thehousing ombudsman to sociallandlords (now included in theHousing Bill). Some larger “goodgovernance” measures, such as theAssembly Government’s proposals toreform inshore fisheriesmanagement,53 have little chance ofever getting into the legislativeprogramme because they are a lowpolicy priority for the UK Government.

57. The Secretary of State for Walesrejected this criticism by arguing thatthe Assembly is no worse off than UKGovernment departments:

There are lots of frustrated Secretariesof State around the Cabinet table whocannot get their bills in the Queen’sSpeech. There is always a bignegotiation…as to what goes in andwhat there is legislative time for andso far we have a pretty good trackrecord of Welsh legislation, Welsh-onlylegislation and Welsh clauses in

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legislation…It does not follow thatbecause you cannot get everythingtomorrow, the fundamental settlementhas to be altered in a substantialfashion.54

.

58. This views the Assembly as thecounterpart of an individual UKDepartment, rather than thedemocratically elected body for thewhole of Wales with responsibility for abroad range of policy matters.

Table 7.1: Assembly bids for primary legislation submitted under Standing Order 31

Bids submitted55 Outcome

For 2001-02 session

Health and Well-Being Successful. Provisions in National Health Service(Wales) Bill Reform and Health Care Professions Act 2002

and Health (Wales) Act 2003

Education (Wales) Bill Partly successful. Some provisions included in the Education Act 2002

St David’s Day Bill Unsuccessful

Census (Amendment) Unsuccessful, but administrative arrangements toWales Bill enable the Assembly to influence census forms

being made in concordat with the Office of National Statistics

For 2002-03 session

Common Land (Wales) Bill Bid not pursued because of DEFRA commitment to seek legislative time for England and Wales legislation in 2004-05

Sunday Licensing (Wales) Successful; provisions contained in Licensing Act Bill 2003

St David’s Day Bill Unsuccessful

Land Use Planning Bill Successful; separate provisions for Wales containedin Planning and Compulsory Purchase Bill

Education Bill Partly successful; some provisions contained in theEducation Act 2002; others unsuccessful

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Table 7.1: Assembly bids for primary legislation submitted under Standing Order 31(continued)

Bids submitted Outcome

For 2002-03 session (continued)

Audit (Wales) Bill Successful; Public Audit (Wales) Bill currentlybefore Parliament

Housing Ombudsman Successful; separate provisions for Wales included(Wales) Bill in Housing Bill currently before Parliament

Passenger Transport Bill Unsuccessful

For 2003-04 session

Education (Miscellaneous So far unsuccessful in 2003-04Provisions) (Wales) Bill

Public Services Ombudsman Consultation completed on a draft(Wales) Bill Regulatory Reform Order on one proposal.

Other proposals so far unsuccessful

Tourism Accommodation So far unsuccessful in 2003-04(Registration) (Wales) Bill

Transport (Wales) Bill So far unsuccessful in 2003-04

Prohibition of Smoking in So far unsuccessful in 2003-04; Private Member’sPublic Places Billa Bill proposed in the House of Lords

Note

a. This bid was proposed by four individual Assembly Members (led by Alun Pugh AM); all other bids wereproposed by the Welsh Assembly Government.

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Box 7.3: Legislating for Wales: the Planning and Compulsory Purchase Bill

The Planning and Compulsory Purchase Bill56 was among the first Bills to bedrafted since the Assembly’s adoption of the Rawlings Principles.

In July 2001, the UK Government announced plans for a radical overhaul of theplanning system. In the autumn, the Assembly Minister for Environment decidedto borrow some of the Whitehall proposals, but adopt a different approach toimproving the development plan system, which would focus on changes tosimplify and speed up the existing system rather than the more fundamentalreform proposed for England.57

The Assembly Government had to firm up its own thinking quickly to keep up withthe pace of developments in England and convince Whitehall officials to argue forseparate Welsh provisions in the Bill in the UK Cabinet Legislative ProgrammeCommittee negotiations, even though this would mean extra work for them.Because of the constraints of Parliamentary time, there is pressure to keep Bills assmall as possible. ODPM had to satisfy the Committee that it would be possible tolegislate for a distinctive Welsh policy within the previously indicated size of the Billby sharing clauses with England and requiring only a few Wales-only clauses.

Once agreement was in place, Assembly Government officials worked closely withODPM and Parliamentary Counsel to draft the Wales clauses.There was nodifficulty in securing Henry VIII powers for the Assembly equivalent to those of theSecretary of State in making regulations and orders. However, the Assembly wasnot given equivalent powers to commence the England and Wales provisions inWales. This remains with the Secretary of State, who is obliged to consult theAssembly before the power is exercised – contrary to both the Rawlings Principlesand Whitehall’s own guidance in DGN9.

Having two different approaches to the same problem in one Bill did not make iteasy for ODPM to manage the Bill in Parliament, as opposition MPs used theAssembly’s plans to retain the development plan system to criticise England’salternative proposals. In June 2003, the UK Government secured Parliament’sagreement to carry over this Bill to the next session in order to allow for greaterscrutiny and to incorporate further amendments to the Bill.58

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Operating the devolution settlementwhen different parties rule in Cardiffand London

59. Many witnesses argued that theshared political outlook of the UK andAssembly Governments has played animportant part in the Assembly’ssuccess in influencing the primarylegislative programme and otherWhitehall decisions. They felt that asympathetic Government had created afavourable environment for the earlyyears of the Assembly, and queriedwhether this success would continuewhen, at some future date,governments of different political hueare in power in Cardiff and London(sometimes termed political “co-habitation”). The House of Lords SelectCommittee on the Constitution hasgone further to suggest that the Walesdevolution settlement is ultimatelyunsustainable because of itsdependence on goodwill between theAssembly and the UK Government.59

60. Another favourable factor in the firstyears of devolution has been the risingtrend of public expenditure. Whateverparties are in power, the relationshipbetween the Assembly and Whitehallwill be placed under considerablestrain when, at some future date, thefunding coming from Westminster tothe Assembly is reduced.

61. Overall, Professor Martin Laffin andcolleagues argued that:

If the parties in power in London andCardiff were to change, the existingmechanisms for co-ordination andconflict management would face

enormous strains. These strains wouldbe significantly reduced if theAssembly were to have primarypowers but…the impact of any sharpshift in policy at Westminster wouldanyway be passed on through theBarnett Formula. Nonetheless,primary powers would remove theability of the centre to ratchet backWelsh powers in a piecemeal waythrough legislation.60

62. In contrast, the Secretary of State forWales argued that the settlement isrobust enough to adjust to co-habitation, because:

■ there have already been periods ofLondon co-habitation with coalitionexecutives in both Wales and Scotland;

■ policy disagreements occur betweenthe current Assembly and UKGovernments (for example, onfoundation hospitals) withoutundermining the overall settlement;61

■ the existing formal arrangements in theMemorandum of Understanding wouldsustain appropriate communicationand co-operation between the twogovernments;

■ there would be political limits to howmuch the UK Government could standin the way of an elected Assembly orattempt to reverse devolution. TheSecretary of State for Wales arguedthat, even if the two were diametricallyopposed:

The Secretary of State and theGovernment in London who wasactively at war politically with theAssembly in Cardiff is actually going tofind it very difficult to manage Wales

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and is going to find it very difficult tohave Wales effectively in revolt againstLondon, as probably it came quiteclose to being under John Redwood. Ithink that the nature of Britishdemocracy in parliamentary politicsmeans that in fact you will find thatthe system adjusts to cope with thatsituation.62

63. The House of Lords Committeerecommended that further use shouldbe made now of the formalmechanisms for inter-governmentalrelations, arguing that they wouldbecome increasingly important aspolicy and political differences growbetween the administrations.63 Whileagreeing that the formal arrangementsprovide the overall framework formanaging relationships, the UKGovernment replied that good informalcontacts between Ministers andofficials would continue to beimportant to the success of devolution,irrespective of the political persuasionof the administrations concerned.64

64. Whatever the nature of workingrelationships between the governmentsin Cardiff and London under co-habitation, it is likely that there wouldbe greater policy differences betweenthe two – and therefore feweropportunities for the AssemblyGovernment to piggy-back ontoWhitehall Bills or to influenceWhitehall policies affecting Wales.

The implications of a clearer break withWhitehall

65. How the relationship between Walesand Whitehall would develop if theAssembly had primary legislative

powers would depend to some extenton where the boundaries of thesettlement were drawn. Nevertheless,policy problems often cut acrossdevolved and non-devolved issues –and the evidence from Scotlanddemonstrates that there wouldcertainly need to continue to beextensive discussion and collaboration,as was underlined in the UKGovernment’s evidence to theCommission:

Even with a Scottish Parliament,operating the Scottish system hasshown that, with primary legislativepower, some things will have to bedone in partnership with theGovernment of the United Kingdom.Scotland has not just been able to gooff on its own, it has often had to dothings by agreement.65

66. Early experience of devolution hasshown how the momentum of policydevelopment in Whitehall continues toinfluence agendas in both Wales andScotland. If the Assembly were toacquire the power to legislate incertain areas, the scope to make useof Whitehall legislation and be involvedin central thinking and policydevelopment would probably bereduced.

67. Nevertheless, the Assembly would stillhave the option of adoptingWestminster legislation if it wished –as the Scottish Executive did when itborrowed capital finance proposalsfrom the draft Bill for the LocalGovernment Act 2003, which werepassed in Edinburgh ahead ofWestminster.

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68. Thus, a clearer break from Whitehallwould involve a potential reduction ininformation, analysis and leverage,which would need to be set againstthe potential advantages of greaterautonomy in Wales.

69. The First Minister’s evidenceemphasised how, from a comparativelylow base of experience under theWelsh Office, the Assembly civilservice has built up its capacity inpolicy development:

The Welsh Office that weinherited…was not a baby in 1999,but still much less innovative than theScottish Office. Therefore, you say, ‘Letus not try and develop policies whenwe haven’t got the policy-makingcapability to do it.’ So that is a fairlysimple point, that you should not runbefore you have learned to walk, but Ithink certainly we are walking at a fastpace…66

In terms of the [civil service] machine,we are creating things that will be verydifferent in 10 years' time. We havethe whole generation of young civilservants coming in whose expectationsare different to the old days.67

70. Assembly Government officials are alsogaining more experience of developinglegislation through working onAssembly subordinate legislation andon Westminster Bills alongside theirWhitehall colleagues. Although fullprimary legislative powers wouldrequire these skills to be considerablyextended, the Permanent Secretarywas in no doubt that his officials are

now capable of developing distinctivepolicies for Wales:

The acquisition of further powers,including those of primary legislation,would represent a manageableprogression, not a major step change,in terms of the demands that it wouldmake on us.68

71. Acquiring primary powers wouldincrease the policy and legislativeworkload for Assembly Governmentofficials, but it is very difficult topredict the scale of this impact. “Billteams” would need to be establishedto manage each Bill through thelegislative process; but the need foradditional staff to implement theresulting legislation would depend onfactors such as the nature of the Act’sprovisions and the capacity of thepolicy team that was in placebeforehand.

72. Overall, the Permanent Secretary’sview was that the additional workcreated for Assembly Governmentofficials by primary legislative powers‘need not be unduly substantial’69 initself. However, his evidence notedthat, if the size of the Assembly wereto grow, this could significantlyincrease the workload for officials ofsupporting the scrutiny process.

Assembly officials and the Home CivilService

73. Some witnesses questioned whetherAssembly officials should continue tobe part of the UK Home Civil Service –the main concern being that Assemblystaff might be unwilling to challenge



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Whitehall because it could affect theircareer development prospects.

74. We did not receive any evidence tosuggest that this has in fact occurred.It has been seen as appropriate inScotland for executive officials toremain part of the Home Civil Service(although Northern Ireland has had itsown civil service since 1921). Inpractice, most officials choose todevelop their civil service careerswithin the Assembly, with only a fewtaking up the opportunity to work inWhitehall on loan arrangements.70

75. The Assembly is working with partnersin the public sector in Wales on thePublic Service Management Initiative,which aims to create a body of publicservants with understanding andexperience of different parts of thepublic sector. It is hoped that this willimprove the joint delivery of publicservices and enhance and broadencareer opportunities for public servantsin Wales.71

76. A move to a separate executive andparliament (rather than corporatebody) structure would strengthen thecase for officials in the Presiding Officeto be part of a separate“parliamentary” service. At present,they are Crown employees andmembers of the Home Civil Service,whereas the staff of the Scottish andWestminster Parliaments and theNorthern Ireland Assembly areemployed separately by those bodies.Such a legal separation would notprevent the continued collaborationand sharing of common services thatis a feature of current arrangements.Nor would it preclude the possibility of

wider career development for staff ofthe Presiding Office – whether withinthe Welsh Assembly Government, thewider public service in Wales or in theparliamentary services of other UKlegislatures.

Findings

The evidence suggests the followingobservations on the Wales – Whitehallrelationship under devolution:

■ the Assembly Government benefitsfrom close engagement withWhitehall in developing policy anddrafting primary legislation affectingWales;

■ the arrangements by which theWelsh Assembly Government securesits legislative and other requirementsfrom Whitehall depend heavily ongoodwill and the ability to reactquickly to Whitehall’s priorities;

■ the need for good communicationand co-operation has been moreextensive than envisaged in A Voicefor Wales – not only in respect ofpolicy and legislation on devolvedmatters, but also in implementingnon-devolved policies that affect theAssembly;

■ there is no single Whitehall line – theDepartment for Constitutional Affairsand the Wales Office seek to promoteconsistency when issues come totheir attention, but they are not ableto police all the interaction that goeson at every level between theAssembly and Whitehalldepartments, which is influenced byhistory and personal contacts as wellas by the formal structures andpolicy context;

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■ in any event, the constantly changingboundaries of government activitymean that the boundaries ofdevolution are inevitably changingand, with them, the relationshipbetween the centre and the devolvedadministrations;

■ the Assembly Government is thejunior partner in the relationship withWhitehall – making differentarrangements for Wales is acomplication for hard pressed centraldepartments and innate caution andother pressures can cause delay,even when there are no over-ridingobjections to giving the AssemblyGovernment what it wants;

■ because goodwill currently plays asignificant part in making the Wales-Whitehall relationship work, formalarrangements are likely to becomemore important when the parties inpower do not have a similar politicaloutlook; but their efficacy is so faruntested;

■ we share the UK Government’s viewthat there should be greaterconsistency in the way in whichlegislation for Wales is framed – wewelcome the intention to review theguidance for Whitehall and makespecific proposals to create a newlegislative partnership as part of ourrecommendations in the concludingchapter.



Notes

1House of Lords Select Committee on the Constitution, Devolution: Inter-institutional Relations in the UnitedKingdom: Evidence Complete to 10 July 2002, HL Paper 147 of 2001-02 (10 July 2002).

2House of Lords Select Committee on the Constitution, Devolution: Inter-institutional Relations in the UnitedKingdom, 2nd Report, HL Paper 28 of 2002-03 (17 December 2002).

3Ibid. paragraph 12.

4See Chapter 10 on the financing of devolved government and, for an example of this overlap, Chapter 5, whichdescribe the consequences of the Scottish Executive’s decision to abolish charging for the personal care elementof long term care for the elderly.

5Memorandum of Understanding and supplementary agreements between the United Kingdom Government,Scottish Ministers and the Cabinet of the National Assembly for Wales, Cm 5240 (December 2001).

6Ibid. paragraph 22.

7Steve Pomeroy, oral evidence of the First Minister, 12 December 2002.

8Wales Office, Devolution Guidance Note 4: The Role of the Secretary of State for Wales (January 2003).Available at http://www.dca.gov.uk/constitution/devolution/guidance/dgn04.pdf (accessed 2 February 2004).

9Office of the Deputy Prime Minister, Devolution Guidance Note 9: Post-devolution primary legislation affectingWales (January 2003). Available at http://www.dca.gov.uk/constitution/devolution/guidance/dgn09.pdf (accessed2 February 2004).

10Wales Office, op. cit.

11Oral evidence of the Secretary of State for Wales, 13 March 2003.

12Ibid.

13House of Commons Debates, 17 June 2003, col. 228.

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14Written evidence from the UK Government, December 2002.

15For example, the Secretary of State for Wales intervened to promote a solution on the Assembly Learning Grant:see oral evidence of the Secretary of State for Wales, 13 March 2003.

16Ibid.

17See Chapter 9.


19See, for example, the oral evidence of the Minister for Finance, Local Government and Communities, 5December 2002.


21Ibid.


23Oral evidence of Minister for Culture, Sport and the Welsh Language, 21 November 2002.

24See, for example, oral evidence of the Chief Executive of the Arts Council of Wales, 10 April 2003, on Lotteryarrangements; written submission of University of Wales College, Newport, undated, referring to the 2003Higher Education White Paper.

25Oral evidence of the Wales Council for Voluntary Action, 26 June 2003.

26See Chapter 5.

27See Chapter 9.

28Supplementary written evidence of the Secretary of State for Wales, 14 November 2003.

29Office of the Deputy Prime Minister, op. cit.

30Supplementary written evidence of the First Minister, 30 June 2003.

31Ibid; and oral evidence of the Minister for Finance, Local Government and Communities, 5 December 2002.

32Supplementary written evidence of the Minister for Health and Social Services, 16 July 2003.


34Supplementary written evidence of the Counsel General, June 2003.

35National Assembly for Wales Record of Proceedings, 14 February 2002.

36Assembly Review of Procedure: Final Report (op. cit.).

37The Government Response to the Fourth Report of the Committee: The Primary Legislative Process as it AffectsWales, HC 989 of 2002-03 (10 July 2003).

38The Government’s Response to the Second Report of the Select Committee on the Constitution, Session 2002-03 (HL Paper 28): Devolution: Inter-institutional Relations in the United Kingdom, Cm 5780 (March 2003),paragraph 21.

39Supplementary written evidence of the First Minister, 30 June 2003.

40Simon McCann, ‘Permissive Powers are Good for the Health: The Health Reforms in Wales’, Wales Law Journal1 (2003): 176-186.

41Ibid. 184-185.

42Supplementary written evidence of the Counsel General, June 2003.

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43House of Lords Select Committee on Delegated Powers and Regulatory Reform, 1st Report, HL Paper 9 of 2002-03 (27 November 2002).

44Simon McCann, op. cit., 178.

45Oral evidence of the Counsel General, 5 December 2002. See also Q129-130 of the evidence of GeoffreyBowman CB, First Parliamentary Counsel, to the Welsh Affairs Select Committee for its report on The PrimaryLegislative Process as it Affects Wales, HC 79 of 2002-03 (19 March 2003).

46The House of Lords Select Committee on Delegated Powers and Regulatory Reform, which carries out the job inParliament of considering the appropriateness of delegated powers, has decided that it will apply to the Assemblythe same criteria as those for UK Ministers – see House of Lords Select Committee on Delegated Powers andDeregulation, 18th Report, HL Paper 101 of 1997-98 (6 May 1998).

47House of Lords Delegated Powers and Regulatory Reform Committee 3rd report, HL Paper 12 of 1998-99 (16December 1998), paragraphs 5-6.

48House of Lords Delegated Powers and Regulatory Reform Committee 9th report, HL Paper 40 of 1998-99 (10March 1999), paragraph 8.

49For example, see the Minister’s introductory speech to the Commons Second Reading debate, House ofCommons Debates, 8 June 1999 col. 497; the Memorandum submitted by the Department of the Environment,Transport and the Regions to the House of Lords Delegated Powers and Regulatory Reform Committee,reproduced as Annex 1 to HL Paper 12 of 1998-99; and Pollution Prevention and Control Act 1999:Explanatory Notes (London: The Stationery Office, 1999).

50Following procedures set out in Standing Order 31.

51For example, Assembly Government officials often provide Bill drafting instructions for the UK Government’sParliamentary Counsel.

52See Martin Laffin et al, the Glamorgan Policy Centre, Future Options: An Assessment of the Powers of theNational Assembly for Wales (University of Glamorgan, March 2003), 8.

53Supplementary written evidence of the Minister for Environment, Planning and Countryside, July 2003.


55In 1999 and 2000, there was no requirement to notify bids for primary legislation to plenary for approval.

56Planning and Compulsory Purchase Bill, Bill 47 of 2002-03.

57Welsh Assembly Government, Planning: Delivering for Wales - Consultation Paper, (Cardiff: Welsh AssemblyGovernment, January 2002).

58House of Commons Debates, 10 June 2003 cols. 543-607.

59House of Lords Select Committee on the Constitution, op. cit.

60Martin Laffin et al, op. cit., 31.

61See also the oral evidence of Nick Bourne AM, Leader of the Welsh Conservatives in the National Assembly forWales, 28 February 2003.


63House of Lords Select Committee on the Constitution, op. cit.

64The Government’s Response to the Second Report of the Select Committee on the Constitution, Session 2002-03, op. cit.






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68Written evidence of the Permanent Secretary, December 2002.

69Ibid.

70See the supplementary written evidence from the Permanent Secretary, 3 July 2003. The Wales Office is staffedby officials on loan to the Assembly. In July 2003, outward loans included three people on loan to the CabinetOffice and one to the Scottish Executive.

71Ibid.

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chapter 8: the Wales–Westminsterrelationship



■ what has been the impact of devolutionon the arrangements for handlinglegislation affecting Wales?

■ how effective are the presentarrangements?

■ what are the main advantages anddisadvantages identified in evidence?

■ what might be the impact of recentproposals for procedural reform?

3. The preceding chapter considered therelationship between the WelshAssembly Government and the UKGovernment, which is the principalmeans by which the Assembly is ableto influence the Government’s proposalsfor primary legislation, includingsecuring Parliamentary time for its ownproposals. The focus of this chapter ison the relationship between theAssembly as a deliberative body andParliament. In particular, it looks at therole of Members of Parliament andPeers in scrutinising and revising thelegislative proposals of the WelshAssembly Government and otherlegislation affecting Wales that impactson the devolved fields.

4. All primary legislation affecting Wales ismade by the UK Parliament. Annex 5demonstrates that the UK Government’s

programme of legislation includes thefollowing:

■ Wales-only Acts;

■ England and Wales Acts dealing withdevolved matters – some containingonly minor Wales-only provisions andothers with substantial Wales-onlysections;

■ Acts dealing with non-devolvedmatters.

5. A Voice for Wales indicated that theAssembly would have the opportunityto influence primary legislationaffecting Wales, which was not limitedto the fields affected by devolution:

In the making of legislation and in thedebates on UK policy, Wales’s voiceand influence must be felt in theCabinet and in Parliament...

The Assembly will need to establish aclose partnership with Members ofParliament representing Welshconstituencies…The Government’sproposals will allow the Assembly toseek to influence legislation which isbeing considered at Westminster….The Assembly will also have a generalcapacity to debate matters of interestto Wales and to make its views knownto Parliament.1

The Wales–WestminsterrelationshipThis chapter describes the present arrangements for passing primarylegislation that affects Wales, particulary legislation that relates to thefunctions devolved to the Assembly.

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6. There are two main formal routes forthe Assembly to submit its views.First, the Government of Wales Actprovides that the Secretary of Statemust consult the Assembly about theUK Government’s legislativeprogramme, and must participate in atleast one Assembly debate on theprogramme each year.2 Second, theAssembly's own Standing Ordersprovide that ‘A Minister, or at leastthree Members, may table a motioncalling on the UK Government to bringforward a public Bill on a matterspecified in the motion, oramendments to an identified Billcurrently before either House ofParliament.’3

7. The Standing Orders also provide that,before 31 March each year, theAssembly must consider a motionsetting out the Assembly Government'sproposals for primary legislation in thefollowing session of the UKParliament.4 The UK Government thendecides whether and how toincorporate these proposals in itslegislative programme as discussed inChapter 7.

8. Since 1999, the role of the Assemblyin relation to primary legislationaffecting Wales has developedconsiderably from the somewhatlimited role of making its views knownand speaking for Wales that wassuggested in the White Paper. Thepractice has developed that, indeveloping Wales-only primarylegislation, the UK Government willseek to fulfil legislative requests of theAssembly, subject to the constraints oftime, drafting capacity and agreement

on the proposed policy. It is alsoaccepted that the AssemblyGovernment should have an input tothe drafting of a large number of otherBills that affect Wales.

9. As a result, there has developed aprocess of joint working between theAssembly and Parliament. Some havedescribed this as a process of co-legislation; in practice, it is a processwhere responsibilities are split betweenWales and Westminster. Wales –mainly through the Welsh AssemblyGovernment – is increasingly takingthe lead in initiating policy andpreparing drafting instructions forlegislation, but the scrutiny andchallenge role remains at Westminster.

Practical experience of the primarylegislative process for Wales

10. The evidence suggests that thescrutiny of primary legislation affectingWales is now a complex process, andone that is changing rapidly withexperience. It also presents a numberof challenges if it is to work effectively,including:

■ procedural and timing issues –enabling the Assembly in plenary andcommittees to contribute usefully toParliament’s consideration of Welshmeasures;

■ information and understanding –ensuring that Members of Parliamentare in a position to consider andrespond to Assembly Governmentproposals and the views of other AMs;

■ clarity and accessibility – ensuring thatlegislation is drafted in such a way asto enable Members to identify andconsider their implications for Wales;



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■ roles and responsibilities – whose jobis it to scrutinise legislation that isinitiated by the Welsh AssemblyGovernment, or other legislationaffecting the responsibilities of theAssembly?

11. In evaluating this process, theCommission has relied heavily on theevidence of the twenty Members ofParliament whom we met during ourreview, and on the detailedexamination of the primary legislativeprocess as it affects Wales carried outby the Welsh Affairs Select Committee(see paragraphs 29-33 below). Theevidence suggests that Westminster isadapting to the advent of the Assemblyand that there are examples where thejoint scrutiny process has workedeffectively, but others where it has not.

12. The North Wales Group of Labour MPswere positive about the currentsettlement, but felt that scrutinyarrangements should be improved:

We consider that the presentsettlement is working in general termswell…the present arrangement hasonly been in place for a relatively shortperiod, four years, and we, therefore,as a group feel that… there is nopressing need for major change at thisstage…

We think that North Wales has aparticular perception of the Assemblyat the present time which is notpositive and we believe that theAssembly needs to address that issuein the current term. And in order to dothat, we also believe, as most of us

backbenchers, that we need to try, asMembers of Parliament, to work moreclosely with backbench members ofthe National Assembly during thecourse of the years ahead to improvethe working of the settlement and tolook at different ways for developingscrutiny of legislation as it affects ourconstituents.5

13. Wayne David MP told us about bothstrengths and weaknesses in thepresent process for consideringlegislation affecting Wales. From aperspective of support for the presentsettlement, he suggested that the lackof contact and mutual understandingbetween MPs and AMs was apotentially serious flaw in thearrangements, which rely heavily onpartnership between the two electedbodies. The Learning and Skills Act2000, which conferred substantiallynew powers on the Assembly, was anexample where scrutiny had not beeneffective. There were also occasionswhen Welsh legislation seemed to berushed through with little scrutiny:

Sometimes the approach towardsWelsh legislation being introducedhere is, we will do it as quickly and aspainlessly and with as little fuss aspossible and we can move on tosomething else. I do not think that isgood enough. There needs to bemaximum transparency, openness andco-operation for the devolutionsettlement to work as effectively as itcould. That is my main point.6

14. By contrast, he cited the positiveexperience of the Health (Wales) Act2003, which expanded the role of

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Community Health Councils in Walesand established two new statutorybodies, the Wales Centre for Healthand Health Professions Wales:

There has been a high degree of AMand MP involvement in the pre-legislative and the legislativeprocess…The Bill was proposed by theWelsh Assembly Government,accepted in principle by theWestminster Government, but veryimportantly the proposals wentthrough a pre-legislative scrutinystage. It was debated in the Healthand Social Services Committee of theNational Assembly and by the WelshAffairs Select Committee in this Houseand I believe they had joint sessions.7

15. Here, the process was facilitated bythe Wales-only nature of the legislationand by the pre-legislative scrutinyprocess. Where the Welsh AssemblyGovernment’s proposals are part of anEngland and Wales Bill, the process oftheir scrutiny fits less easily withWestminster procedures and timeconstraints, as the experience of thePlanning and Compulsory PurchaseBill suggests.

16. Chapter 7 explained how the contentand structure of this Bill’s Welshprovisions were negotiated betweenCardiff and Whitehall and the timingconstraints this created. The Assemblydebated the Planning: Delivering forWales policy on several occasions in2002,8 and the Environment,Planning and Transport Committeediscussed the Bill itself on 17 January

2003 (although none of its commentsled to amendments being pursued bythe Assembly Government).9

17. When it came to scrutiny inWestminster, the separate measures forWales, which were substantiallydifferent from those proposed forEngland, were given little attention inthe Commons. The one CommonsStanding Committee sitting that wasallocated to consider these clauseswas suspended three times fordivisions, leaving just over two hoursto debate nineteen clauses. In the end,only the first clause was discussed;and much of the debate centred onamendments that were designed tocall into question the proposals forEngland rather than to enhance theprovisions for Wales.10 This Bill wassubsequently carried over to the 2003-04 session.

18. Some MPs emphasised the uncertaintyabout their role in the scrutiny andchallenge of primary legislationinitiated by the Assembly Government.Ian Lucas MP reflected:

What is my role to be in thosecircumstances? Is it my role toactually criticise the Assembly, theproposals, or is it simply to seek toimprove them in minor ways, or seedifficulties? I think there is a difficultywith the present system. I think thereis, however, an answer to it…I thinkthat if legislation is presented in draftit does give you an opportunity toactually make constructive criticisms.If you present legislation that is not in



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draft form then it is very, very difficultto achieve any improvement.11

19. Jon Owen Jones MP argued thatmost primary legislation affectingWales is less well scrutinised nowthan was the case before devolutionbecause, although Bills in devolvedareas are negotiated and agreedbetween the Assembly and UKGovernments, neither MPs nor AMsare in a position to test the proposedlegislation:

Highly contentious bills withsignificant differences of opinion havebeen piggy-backed either as“England/Wales Bills” or on “EnglishBills”. The result of that is that it isvery difficult to be able to ask difficultquestions of a Minister and havethem answered. In general, you areasking questions of English Ministerswho have no particular knowledge, orno ownership of the line of argumentthat they are expected to defend.

…In Parliament, in effect, there isnot the ability to scrutinise andamend and improve thatlegislation…It's not just that WelshMPs are not in a position to do thatjob, Welsh AMs can't do it, becausewhen Parliament has decided whatthe wording of a Bill will be, WelshAMs have no power to change it. Sothere is a lacuna here in thesystem.12

20. Win Griffiths MP also highlighted howthe time pressures that are a featureof the primary legislation process can

squeeze out communication betweenthe various institutions about anypolicy differences. For example, whenthe Welsh Assembly Governmentsubmitted its views to UK Ministerson the Community Care (DelayedDischarges etc.) Bill:

We [MPs] were not copied into theprocess. I suppose because of thetime, there was not a lot of debate.There was a bit of a row about it, butright up to near the end there wasn'ta lot of debate about it, unlike someof the other things where we havetried to raise issues that concernedus… Because of time, etc., bothoutside and within the Parliamentaryprocess, it is difficult to achieve aproper dialogue.13

21. In contrast to his concerns about thescrutiny of England and Wales Bills,Jon Owen Jones MP pointed to theextensive scrutiny that has takenplace of Wales-only Bills:

Welsh legislation, and entirelyconsensual Welsh legislation, hashad huge degrees of scrutiny. It hasbeen subjected to scrutiny in draftform by the Welsh Select Committee,has been scrutinised by the WelshGrand Committee, [and has] thengone on to the floor of the House. Sowe've had scrutiny perhaps to excessfor Bills which are non-contentious.14

22. This point was reinforced by HywelWilliams MP, who commented on thescrutiny process for the Health(Wales) Bill:

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If I may say from the point of view ofthat Bill, it was discussed extensively– very, very extensively...it does raisea very fundamental question withsomething where there is nodisagreement. Are we saying that wehave to go through all these steps?Are we saying that the people inCardiff are unable to takecomparatively innocuous decisions?There was no argument about them.Are we saying that they are unable todo it themselves?15


Examination of primary legislation bythe Assembly committees

23. Subject Committees have developed avariety of different practices forconsidering primary legislativeproposals. For example:

■ committees may submit comments onconsultation papers or draft Bills tothe Assembly Minister;

■ Wales Office Ministers have attendedcommittee sessions to discussforthcoming Bills;

■ members of the House of CommonsWelsh Affairs Select Committeeattended a meeting of the AssemblyHealth and Social Services Committeethat debated amendments to the draftHealth (Wales) Bill;16

■ a special committee was establishedto examine the Public Audit (Wales)Bill.

24. However, there is no formalmechanism by which Assemblycommittees can convey their viewsdirectly to Westminster. As a result,committees are usually reliant onAssembly Ministers to feed theirviews into the UK Government asthey see fit.

25. Furthermore, the committees’meetings often do not fit in well withthe Whitehall and Parliamentarytimetable for Bills, which restricts thecommittees’ scope to comment on orsuggest amendments to the proposedlegislation. For example:

■ the Environment, Planning andTransport Committee discussed thePlanning and Compulsory PurchaseBill just six days before the Wales-only provisions were debated inCommittee in the Commons;

■ the Health and Social ServicesCommittee had to convene a specialmeeting during the 2002 summerrecess in order to discuss the draftMental Health Bill within the UKGovernment’s consultation period.17

Criteria for evaluating the primarylegislative process

26. In the light of this evidence, theCommission set out to evaluate thelegislative process as it now applies tothe legislative proposals of the WelshAssembly Government. We adoptedthe following criteria:

■ are the present arrangements forinitiating and scrutinising legislationfor Wales clear, rigorous, consistentand accountable?



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■ are they likely to produce goodlegislation based on well worked uppolicies that have been tested inconsultation and debate?

■ do they provide appropriateopportunities for the Assembly toinitiate and examine proposals forlegislation, as envisaged in A Voice forWales?

■ do they enable the Welsh AssemblyGovernment to deliver its policypriorities in a reasonable time scale?

Advantages of the presentarrangements

27. Judged by these criteria, the evidenceincludes a number of advantages ofthe present arrangements:

■ the model of executive devolution isclear – the UK Parliament makesprimary legislation for Wales and therequirements of the Welsh AssemblyGovernment are accommodatedwithin the programme of the UKGovernment, which is accountable forall primary legislation affecting Wales;

■ the primary legislation process allowsfor proposals to be developed andtested in Wales at the policy stageand then to receive legislative scrutinyin Parliament;

■ Parliament has extensive experienceof testing and improving Bills – andestablishing separate arrangements forscrutinising primary legislation inCardiff would create additional costsfor Wales;

■ arrangements have evolved toincrease the role of Welsh MPs andcreate more opportunities for AMs andcommittees of the Assembly to

contribute to the consideration oflegislation affecting Wales; and thereare proposals to strengthen thisfurther (see paragraphs 29-33);

■ the process has delivered many of thelegislative proposals submitted by theAssembly during the first term, eitheras separate Welsh Acts or as part ofEngland and Wales legislation.18

Disadvantages of the presentarrangements

28. The evidence also points to a numberof deficiencies in the presentarrangements:

■ frustrated aspirations – that theAssembly cannot itself scrutinise andimplement the policy proposals of theWelsh Assembly Government and thatthese proposals may be held up bythe legislative log-jam at Westminster;

■ the predominance in the legislativeprocess of the priorities and timetableof the UK Government unduly restrictsthe Assembly;

■ Parliament does not have the time,capacity or mechanisms for discreteconsideration of Welsh Parts orclauses of England and Wales Bills;

■ there is a lack of consistency andclarity in the drafting of legislationaffecting Wales and in the allocationof powers to the Assembly;19

■ confused accountability – the rolesand responsibilities of AMs and MPsin relation to the scrutiny of Welshlegislation are unclear;

■ as a result, the scrutiny arrangementsat Westminster and in Cardiff areinadequate.

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Impact of proposals for proceduralreform

29. Both the House of Lords SelectCommittee on the Constitution and theWelsh Affairs Select Committee havemade a number of proposals that aredirectly relevant to the analysis in thischapter, relating to ways of improvingParliamentary procedures and draftingconventions in order to enable theNational Assembly to considermeasures affecting devolved areas.20

These include recommendations for:

■ greater use of pre-legislative scrutiny;

■ the extension of formal joint workingbetween House of Commons SelectCommittees and Subject Committeesof the National Assembly;

■ an annual joint meeting on thelegislative priorities for Wales betweenthe Welsh Grand Committee(comprising all Welsh MPs) and theNational Assembly;

■ committing a Wales Part of a Bill to aseparate Standing Committee andusing Special Standing Committeeprocedures (which would allow theAssembly to present formally its viewson a Bill) for consideration of a Wales-only Bill.

30. In its response to theserecommendations, the UKGovernment:

■ indicated that it is working to achievethe publication in draft, wheneverpracticable, of Bills containingsignificant Wales-only clauses; but thatthere will always be a need forParliament to legislate quickly wherethere is a clear need, and that draftingcapacity places constraints on thenumber of pre-legislative Bills;

■ pointed to the constraints on theseparate scrutiny of Welsh Parts ofBills – Bills are normally drafted as awhole and it is not always practical forone Part to be published in advance ofthe rest. It would not be possible toscrutinise the Wales-only clauseswithout an understanding of the wholepicture as shown by the full draft;

■ supported the proposal for joint pre-legislative scrutiny by the Welsh AffairsCommittee and Assembly committees,but noted that such procedural reformsare a matter for Parliament. Similarly, itwould be for the House of Commonsand the Assembly to take forward theproposal for an annual joint meeting;

■ reported that it has no plans at presentto use new approaches for thecommittee stages of Bills (although itwould consider each case on itsmerits), and argued that a Bill that hadbeen subject to pre-legislative scrutinywould be unlikely to merit furtherexamination by a Special StandingCommittee.

31. The Welsh Affairs Committee proposalsare designed to improve the presentarrangements with respect to theavenues for Assembly–Parliamentarycommunication and joint scrutiny.They would, in effect, create a Walessubset of Westminster, giving Assemblycommittee members and other AMsclearly defined routes for making theirviews known. The role of Welsh MPswould also have a clearer focusthrough the annual debate onlegislative priorities.

32. We understand that officials of theHouse of Commons and the PresidingOffice are considering the practicalities



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of joint committee meetings or jointmeetings of the Assembly and theWelsh Grand Committee.Nevertheless, the Government’semphasis on the practical constraintson separate scrutiny of distinctiveWelsh clauses in England and WalesBills suggests that the prospect ofmajor changes to existing practice isuncertain.

33. Moreover, procedural changes will notaddress all of the problems identified inevidence. One of the key issues thatwill remain unresolved is the nature ofthe convention in relation toParliamentary debate and scrutiny oflegislative proposals emanating fromthe National Assembly. On this thequestions raised by the evidence are:

■ are individual MPs, whether or not theyrepresent Welsh constituencies, entitledto challenge the AssemblyGovernment’s proposals in principle, oris their role simply one of scrutiny toensure that the legislation enactingthem is sound, i.e. well drafted andaccurate in its effects?

■ where proposals relate to WelshAssembly Government policies anddebate, challenge and consultation hastaken place in Wales, is Westminsterbest placed to carry out the scrutinyrole?

The scrutiny of legislation by theScottish Parliament and Westminster

34. These questions do not arise in relationto Scotland because, when the ScottishParliament legislates on devolvedmatters, those who propose Bills aredirectly accountable to the elected bodythat scrutinises and passes thelegislation. As at Westminster, this does

not mean that there are no concernsabout the adequacy of scrutiny by theScottish Parliament – but the process isunder the control of the Parliament andthe Scottish Executive. Sir David SteelMSP, then Presiding Officer of theScottish Parliament, gave his view ofthe strengths and weaknesses of itslegislative scrutiny:

I think the greatest strength of oursystem is the pre-legislative scrutiny ofBills by our committees…The fact thata Bill, before it is debated byParliament, is scrutinised by acommittee which can listen to all thepeople affected by that piece oflegislation and share their views on itbefore it ever gets debated, is I think agreat strength…

A weakness is that I think, at times,we have been a bit rushed when itcomes to considering legislation. Wehave already discussed the quantity oflegislation and I hope in the nextParliament it will be less. The timespent therefore on each individualpiece of legislation will be increasinglygreater.21

35. However, the Westminster Parliamenthas continued to legislate for Scotlandon a wide range of devolved matters,subject to the formal agreement of theScottish Parliament secured throughthe passage of a Sewel motion (seeBox 8.1). It was envisaged that thisdevice would be used rarely but, inpractice, forty-one motions have beenagreed in the first term,22 which hasbeen the cause of considerable debatein Edinburgh.

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36. The Deputy First Minister of theScottish Executive, Jim Wallace QCMSP, argued that the Sewel motionprocedure has been the sensible wayto close loopholes that wouldotherwise be created by newWestminster legislation for Englandand Wales – for example, the Proceedsof Crime Act 2002:

It would have been a criminals’charter if we had created loopholes indifferent regimes north and south ofthe Border, they could have movedtheir money around...it made eminentgood sense to have Westminster tolegislate for all of the UnitedKingdom…



Box 8.1: Sewel motions

The devolution of primary law-making powers to the Scottish Parliament has notaltered the power of the UK Parliament in Westminster to legislate for Scotland.However, during the Parliamentary stages of the Scotland Act 1998, theGovernment Minister, Lord Sewel, announced that the Government ‘wouldexpect a convention to be established that Westminster would not normallylegislate with regard to devolved matters in Scotland without the consent of theScottish Parliament’.23 This convention is re-affirmed in the Memorandum ofUnderstanding with the devolved administrations.24

The UK Government guidance for Whitehall officials on the Sewel Conventionstates that ‘The convention applies when legislation makes provision specificallyfor a devolved purpose; it does not bite when legislation deals with devolvedmatters only incidentally to, or consequentially upon, provision made in relationto a reserved matter.’25 In other words, ‘the test has become: “could theScottish Parliament enact this legislation?” If the answer is yes, its consent issought.’26

The consent of the Scottish Parliament to Westminster legislation on devolvedmatters in Scotland is secured through what has become known as a Sewelmotion. In practice, Whitehall departments are expected to approach theScottish Executive to gain consent for legislation when appropriate; the ScottishExecutive is then responsible for obtaining the view of the Scottish Parliament.Consultation should take place at an early stage in the development of a Bill,and Whitehall officials are expected to advise the Scottish Executive during thepassage of the Bill about amendments (that the Government supports) thatchange or introduce provisions requiring the Scottish Parliament’s consent.

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It would have been a muddle if wehad tried extracting bits that we wouldhave done and bits Westminster did,and tried to put the two together ormake sure they were kept in step, andin fact there was a joint agreementthat Westminster should legislate forus. But it does tend to be thatWestminster are doing particularthings and they may show up…thepowers to be exercised by ScottishMinisters.27

37. Other uses of Sewel motions haveincluded to:

■ comply with international obligations;

■ participate in UK-wide measures, suchas the creation of the Food StandardsAgency;

■ apply uniform powers and regulationto Scottish and UK-wide bodies;

■ participate in policy reforms, e.g. onextending prescription rights orcombating terrorism.28

38. The evidence includes the followingcriticisms of the use of Sewel motionsso far:

■ there is inadequate scope forParliamentary scrutiny of ScottishExecutive proposals for a Sewel motion;

■ the wording of Sewel motions giveswide discretion to Westminster tolegislate on devolved matters in aparticular Bill – the Scottish Parliamentis not automatically informed ofsubsequent amendments to the Bill forits approval;

■ the extent of their use ‘represents aseepage of legislation competencefrom the Scottish Parliament’.29

39. The Scottish experience suggests that,if primary powers were to be devolvedto the National Assembly:

■ the role of Welsh MPs in relation tolegislation for Wales on devolvedmatters would reduce;

■ nevertheless, Westminster wouldprobably continue to legislateextensively for Wales in relation to bothdevolved and non-devolved matters;

■ consequently, the need for a strongworking relationship between theAssembly and the WestminsterParliament would continue.

Findings


■ since the creation of the Assembly, aprocess has evolved whereby muchprimary legislation is initiated inWales and scrutinised atWestminster;

■ this process has some advantages forWales, including the involvement ofexperienced Parliamentarians andtheir officers, and it has evolvedrapidly in response to devolution;

■ in some cases, particularly wherepre-legislative scrutiny is possible,the process has proved effective andflexible in ensuring well-informedscrutiny in both Cardiff andWestminster;

■ there are other examples ofsubstantial policy proposals initiatedby the Welsh Assembly Governmentand presented in England and Waleslegislation receiving little scrutiny;

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■ the relationship between Cardiff andWestminster, on which the presentarrangements depend, presents manychallenges in terms of procedures,timing, shared information andmutual understanding;

■ there is no parliamentary equivalentof the concordats and accompanyingguidance for government on how theAssembly may submit its views onlegislation for Wales – the Assemblyand the Parliamentary authorities andappropriate committees shouldconsider drafting a parliamentaryguidance note on the scrutiny oflegislation;

■ many of the procedural precedentsnow being established depend ongoodwill – more formal agreementsmay be needed when the Assemblyand the Westminster Parliament areled by opposing parties;

■ we welcome the discussions betweenthe Assembly and Parliament onprocedural changes to increase theAssembly’s involvement inscrutinising Bills – but the difficultiesof changing practices at Westminsterin ways that could reduce itssovereignty should not be under-estimated;

■ the fundamental problem is one ofsplit accountability – proposals areinitiated in one representative bodyand scrutinised and adopted inanother. Some proposals arescrutinised in great detail in bothplaces, while others fall between thetwo; and the initiators are notpresent to explain their policies in theforum that scrutinises and legislates;

■ it is hard for the public and lobbyingorganisations to know who isresponsible for legislation under thesearrangements;

■ if primary powers were devolved toWales, there would continue to be aconsiderable body of legislationinitiated in Whitehall, on bothdevolved and non-devolved matters,that would have importantimplications for Wales. Therefore,supporting and facilitating therelationship between the Assemblyand Westminster will remain vital.



Notes

1Welsh Office, A Voice for Wales, Cm 3718 (1997), 8 and 20.


3National Assembly for Wales Standing Order 31.9.

4Standing Order 31.10.

5Ian Lucas MP, oral evidence of the North Wales Group of Labour MPs, 12 June 2003.

6Oral evidence of Wayne David MP, 14 March 2003.

7Ibid.

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8National Assembly for Wales Record of Proceedings, 31 January 2002 and 26 November 2002; Minutes of themeeting of the Environment, Planning and Transport Committee, 17 July 2002, EPT-13-02 (min).

9Letter from the Chair of the Environment, Planning and Transport Committee to the Minister for Environment, 21January 2003; and the reply, 22 January 2003.

10House of Commons Standing Committee G, 10th sitting, 23 January 2003.

11Oral evidence of the North Wales Group of Labour MPs, 12 June 2003.

12Oral evidence of Jon Owen Jones MP and Win Griffiths MP, 11 July 2003.

13Ibid.

14Ibid.

15Oral evidence of Hywel Williams MP, 12 June 2003.

16Health and Social Services Committee, 29 May 2002. For a report of the proceedings, see Committee paperHSS-13-02(p10), agreed on 19 June 2002.

17Minutes of the Health and Social Services Committee, 11 September 2002, HSS-17-02(min).

18See Table 7.1, Chapter 7.

19Discussed in Chapter 7, paragraphs 40-51.

20House of Lords Select Committee on the Constitution (2002), op. cit. and the Welsh Affairs Select Committee(2003), op. cit. (see Chapter 1).

21Oral evidence of the Presiding Officer, the Deputy Presiding Officer and the Clerk of the Scottish Parliament, 13February 2003.

22Data taken from The Scottish Parliament Information Centre, Sewel Motions: Source Sheet No.16 (Edinburgh:The Scottish Parliament, 28 March 2003).

23House of Lords Debates, 21 July 1998, col. 791.

24Memorandum of Understanding and supplementary agreements between the United Kingdom Government,Scottish Ministers and the Cabinet of the National Assembly for Wales, Cm 5240 (December 2001).

25Office of the Deputy Prime Minister, Post-Devolution Primary Legislation Affecting Scotland, Devolution GuidanceNote 10 (October 2002). Available at http://www.dca.gov.uk/constitution/devolution/guidance/dgn10.pdf(accessed 2 February 2004).

26Alan Page and Andrea Batey, ‘Scotland’s Other Parliament: Westminster Legislation About Devolved Matters sinceDevolution’, Public Law, Autumn 2002, 506.

27Oral evidence of the Deputy First Minister of the Scottish Executive, 12 February 2003.

28Categories taken from Alan Page and Andrea Batey, op. cit.

29John Swinney MSP, oral evidence of the Leader of the Scottish National Party and Shadow First Minister of theScottish Parliament and Fiona Hyslop MSP, Member of the Parliamentary Bureau, 13 February 2003.

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chapter 8: the Wales-Westminsterrelationship


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chapter 9: the boundaries ofdevolution


2. Experience, from the limited earlybeginnings of administrative devolution(Chapter 2), shows that, once begun,devolution has a strong momentum toextend its reach and push against theboundaries set around it. Thismomentum has been strengthened bythe creation of an elected Assembly in1999, both as a result of theaspirations of the elected Members andthe expectations of the people of Wales.

3. The chapter looks at this process fromtwo perspectives:

■ part 1 considers examples of proposalsto extend the Assembly’s powersthrough transfers of functions under theprovisions of the Government of WalesAct, how they came about and theirpractical implications;

■ part 2 considers the impact of theAssembly on legal structures in Wales.

Part 1: Candidates for the transfer ofexecutive powers

4. The Government of Wales Actenvisaged that executive functions, thedecision making powers conferred onMinisters by individual Acts ofParliament, would be transferred to theAssembly by means of a Transfer ofFunctions Order approved byParliament.

5. Schedule 2 of the Act lists the fieldswithin which powers will be devolved.

Although often viewed as a broadindication of the devolved fields, in factSchedule 2 is a list of policy areaswithin which functions had to beconsidered for inclusion in the firstTransfer of Functions Order. It neitherrequires all of them to be included (so,for example many aspects of transportare not devolved) nor preventsfunctions in other areas from beingconferred on the Assembly (ashappened in the InternationalDevelopment Act 2001).

6. The first Transfer of Functions Ordertransferred the powers which wereidentified as having previously beenexercised by the Secretary of State forWales. (It was not possible to say withtotal certainty which functions were soexercised because they are very rarelyidentified as such in statute.) Therewas a small number of exceptions –such as certain functions in theDeregulation and Contracting Out Act –which were held back because theyconfer a wide-ranging power to amendprimary legislation by order.

7. It was made clear during the passageof the Bill that the intention was totransfer further powers as and whenagreed between the Assembly and theUK Government. There have been fiveTransfer of Functions Orders since July1999: these have dealt with updatingand correcting the few errors made inthe first Order, rather than substantive

The boundaries of devolution This chapter considers the breadth of the Assembly’s powers andreviews some of the proposals to extend their scope which wereintroduced in Chapter 5.

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transfers of new functions, although anumber of these are being considered,as discussed below.

8. The candidates for transfer consideredin this report fall into two broadcategories:

■ proposals to broaden or consolidatethe Assembly’s powers in areasalready largely devolved such aseducation or health;

■ proposals to transfer to the Assemblypowers in new areas such as animalhealth, rail services and the fire andpolice services.

Common themes

9. The impetus for considering thesefurther transfers has come about indifferent ways. The impression hasbeen of an ad-hoc approach, withindividual proposals considered ontheir merits, without an overall strategyto prioritise candidates for furthertransfer, taking into account thecapacity of the Welsh AssemblyGovernment or the cost benefitcalculation in each case.

10. Examples of the pressures for furthertransfers of powers include:

a. a particular set of circumstancessuch as the foot and mouthoutbreak which built up the casefor bringing decision-making toCardiff on operational grounds;

b. an aspiration for a holisticapproach to policy issues such astransport, crime or substancemisuse;

c. a response to a particular policyinitiative or review by Whitehall

which creates the opportunity forthe Assembly Government to seekthe levers to adopt a distinctiveapproach in Wales;

d. a proposal emerging from a reviewsuch as the Bain review of the fireservice which recommended atransfer of powers to theAssembly.

11. It is unavoidable that some suchproposals will emerge in response tochanging circumstances, but it seemsto us surprising that the cumulativeimpact of the range of transferproposals on the Assembly has notreceived greater attention.

12. Although each transfer of functionsproposal raises different issues, thereare a number of common questionswhich need to be resolved in eachcase:

■ where should accountability lie –should the powers in question beexercised in Cardiff or Whitehall: whatis the balance between UK, GB, E&Wor Welsh considerations in decisionmaking in this field?

■ if powers were to be transferred, whatconsequences might there be forWhitehall policy making in other non-devolved areas?

■ what additional administrativeresources – numbers of staff and typesof expertise – would be required if thepower were to be exercised fromCardiff and what would be the cost tothe Welsh Assembly budget?

■ what programme resources wouldneed to be transferred from Whitehalland how would future requirements be



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managed within the devolved budgetarrangements? What additionalprogramme costs might fall to theAssembly Budget?

■ if powers were to be transferred toCardiff, what strategic or cross–borderissues would need to be considered inthe exercise of those powers and howwould differences be resolved?

■ what new ‘jagged edges’ might becreated by the transfer?

These are not new issues – most ofthem were identified from thebeginning of the process of devolution(Chapter 2).

13. Whatever the merits of the case fortransfer as seen from Cardiff, thedefault position is that powers restwith Whitehall unless specificallydevolved. Before agreeing to thetransfer of further powers, it isnecessary for the Whitehalldepartment to satisfy itself that thereare no serious risks to its policyobjectives or accountabilityarrangements. This takes time – partlydue to the legal process of identifyingthe precise functions to transfer – andas a result the process tends to becomplex and protracted.

14. While it is often relatively easy forcommentators to identify possibleadvantages for Wales from transferringfurther powers to Cardiff, there hasbeen less discussion of the possibledownside including the capacitypressures on the Welsh AssemblyGovernment and the potentialreduction in access to the Whitehalldepartment.

15. The following paragraphs review theexamples of transfer of powersproposals mentioned in evidence to us.

Animal health

16. Chapter 5 described how, during thelast Foot and Mouth Disease outbreak,the Assembly’s lack of powers inrelation to animal health created bothpractical difficulties and publicconfusion about who was responsiblefor controlling the disease.

17. The main statutory powers needed totackle the disease in Wales were heldby the Ministry of Agriculture,Fisheries and Food (MAFF) forexample, to support the designation ofinfected areas, the slaughter ofinfected animals, footpath closuresand restrictions on animal movements.Although many of these powers couldnot be exercised in Wales without theAssembly’s agreement, MAFF’s greaterpowers and policy capacity gave iteffective control of the decision-making processes and timetable. TheAssembly Government was able toexercise some influence on policydecisions; but there were alsooccasions when it was not told ofsignificant developments or decisionsuntil the last moment.1

18. Even when the Assembly assumedoperational control of the outbreak inWales, this was only as agents ofMAFF. This meant that Assemblyofficials were carrying out a dual roleof operating under instructions fromMAFF, while continuing to advise andseek political guidance from AssemblyMinisters.

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19. In the light of this experience, theAssembly Government startednegotiations with the new Departmentfor Environment, Food and RuralAffairs (DEFRA) in 2002 for thetransfer of the relevant executivepowers, and appropriate resources, toenable it to deal directly with allissues of animal health and welfare inWales. The powers identified fortransfer include all those in respect of:

■ orders to control animal disease;

■ cleansing and movement of animals,e.g. to markets or new grazing areas;

■ transport of animals, including importand export;

■ disease outbreak management andcontrols on infected areas;

■ slaughter of animals and disposal ofcarcasses;

■ the prevention and eradication oftransmissible spongiformencephalopathies; and

■ the control of pests and diseasesaffecting bees.

20. The Assembly’s Agriculture and RuralDevelopment Committee voicedconcerns about the slow rate ofprogress in securing the transfer ofanimal health powers.2 The Ministerexplained in November 2002 that:

I think we have a comfort zone thatthis is proceeding properly andaccording to plan, but as with allthese things there is a very complexset of operational aspects which gobehind them.3

21. Having these powers would allow thecontrol of any future outbreak ofanimal disease to be more responsive,in both content and timing, to theparticular circumstances in Wales.Because Great Britain is a singleepidemiological area, the overallstrategy for managing an outbreakwould still be co-ordinated at thatlevel. Similarly, budgets for diseasecontrol and research would still beheld by DEFRA, although having thetransferred powers would allow theAssembly to fund additionalprogrammes if it wished. The scopefor unilateral action by the Assemblywould also be limited by the need tocomply with overarching EUrequirements for disease control.

22. The Assembly’s Budget includesprovision of £1.2 million a year forthe team required to implement thesepowers. This is a net additional cost –there is no offsetting resource transferfrom DEFRA. The Minister announcedon 21 January 2004 that the transferof power was planned to proceed inthe Autumn of 2004.4

Power generation

23. The limitations of the Assembly’spowers in the planning field werehighlighted by the Cefn Croes windfarm proposal. In May 2002, theDepartment for Trade and Industry(DTI) announced that the UKGovernment had approved theconstruction of a 39-turbine windfarm at Cefn Croes in Ceredigion. Thelocal authority had made no objectionto the proposals; but there wereothers, including the Countryside



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Council for Wales, who had voicedconcerns about this majorinfrastructure development. TheAssembly had played no formal partin the decision-making process, itsinvolvement being confined to offeringcomment on the proposals as aconsultee.

24. Had this wind farm been proposed fora site in Scotland, the ScottishExecutive, rather than the UKGovernment, would have taken thedecision. Even though the right tomake legislation on energy mattershas been retained by the UKParliament, the executive functionsrelating to the approval of largeelectricity generating stations havebeen transferred to Scottish Ministers.These powers under Sections 36 and37 of the Electricity Act 1989 providefor the approval of the construction,extension and operation of agenerating station over 50 megawattsand the installation of above groundelectricity lines.

25. Under the 1989 Act, DTI must seekthe views of the local planningauthority and, if it objects, a localpublic inquiry must be held. Althoughthe Assembly Government isconsulted, the Minister told us thatlegal considerations effectively preventit from expressing a clear view on theproposal and its planning meritsbecause this would impinge on thedecision-making responsibilities of theSecretary of State or the localplanning authority.5

26. In early 2002, the AssemblyGovernment started negotiations with

the UK Government on the transfer ofthese powers to allow the Assembly totake decisions about the constructionof large power stations in Wales. TheMinister for Economic Developmentexplained why he is seeking thesepowers:

… in broad terms, there is a hugecapacity in Wales for using renewableenergy sources. We feel it would bemuch more in line with our majorpolicy areas, like energy productionand renewables, if we had the powerto deal with applications over 50megawatts. That is not to say wewould approve them necessarily butwe feel it would be more appropriatefor us to make the decisions ratherthan it be done by the DTI.6

27. The Minister also referred to theeconomic importance of being able tosecure more indigenous powergeneration in Wales. This would notonly be in terms of jobs: electricitycosts in South East Wales are around7 per cent above the UK averagebecause of a shortage of localgeneration.7

28. Wales could be given a stronger rolein the decision-making process underthe current legislation even withouttransferring these powers. This wouldbe achieved by the Secretary of Stateexercising her right to leave theplanning aspects of such developmentto be considered by the relevantplanning authority (the local authority,unless the Assembly decided to call inthe application).8

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29. However, the UK Government’s viewso far has been that the integratednature of the electricity supply systemand market in Wales and Englanddoes not lend itself to separatingdecisions on power generation in thetwo countries.9 North Wales formspart of a distribution network withMerseyside, whereas South and WestWales are linked to South WestEngland. In contrast, Scotland haslong had its own electricity distributionnetworks and operators.

30. Although not mentioned by either theAssembly Government or the DTI,another important consideration forboth sides could be the implicationsfor nuclear power – even though nonew nuclear power stations arecurrently planned in Wales for the nexttwo decades.10 The powers under theElectricity Act 1989 apply to all formsof electricity generation, not justrenewables; so their transfer wouldallow the Assembly to determine thefuture development of nuclear energygeneration in Wales.

Student support

31. The Independent Investigation Groupinto Student Hardship and Funding inWales, chaired by Professor TeresaRees, concluded that responsibility forall elements of student support inWales should be under one roof.11

The Welsh Assembly Governmentagreed, and, in January 2004, theMinister announced that proposalswould be contained in the HigherEducation Bill to give the Assemblythe power to decide what levels oftuition fees and student support will

apply in Wales, from the start of theacademic year 2006-07.12

32. The objective is to enable the WelshAssembly Government, over time, todesign and deliver a student supportsystem which is consistent with itswider strategies. In line with thedevolved arrangements in Scotlandand Northern Ireland, the Assemblywould hold all the public sectorfinancial and policy levers over HigherEducation (HE) and student support.

33. This proposed transfer arose againstthe backdrop of UK governmentproposals for major changes in thefunding of the HE sector in England.Commentators pointed to thecomplexity of the policy-makingframework and the apparent failure ofthe UK Government’s White Paper totake account of the implications forthe devolved administrations.13

34. Transferring these powers could havemajor consequences for theAssembly’s Budget. If the fees chargedby Welsh Universities were to belower than in England, the AssemblyBudget would have to take the strainif HE in Wales is to be funded at acomparable level to England. Theevidence of the Higher EducationFunding Council for Wales suggestedthat it would be very difficult for theAssembly to adopt a significantlydifferent funding structure for HE thanthat in England:

I do think there is time to get thisright but I find it difficult to believethat in the long run it will be possible



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for Wales to be significantly differentin its mechanism in this respect.14

35. The scope for a distinctive approach inWales has been the subject of intensedebate. For example, Ron Daviesargued in November 2003:

Whatever the merits or demerits ofthe central question of who pays forHigher Education, does any oneseriously believe that this is one ofthose issues where Wales should go italone …?15

36. The Secretary of State explained to theWelsh Affairs Committee in June 2003why this transfer, to which the UKGovernment was sympathetic inprinciple (Chapter 7), was so complexto negotiate:

The main difficulty which has stoppedgoing snap on this policy earlier isnailing down the costs. I know I havesaid this for some months but it is notan easy matter to nail down becauseyou are looking not just at historiccosts, which you can easily model,you are looking at future costs takinginto account a future regime whichhas not bedded down involving grantsfor the first time and a differentsystem ….and it is a question ofreally crunching our way throughthat.16

37. In addition to these programme costswhich would be transferred from DfES,there would also be administrationcosts associated with the transfer ofthese powers – these would beadditional and are estimated at around£0.5 million a year. The long-term

administration costs have not yet beendetermined.

Rail services

38. Rail services are an example of theAssembly Government seeking strongerlevers to influence transport in Walesby means of delegated powers ofdirection over the Strategic RailAuthority (Chapter 5).

39. The Minister for EconomicDevelopment and Transportannounced on 19 January 2004 thatthe Secretary of State for Transport hadrecognised the need for powers overpublic transport issues – especially rail– to be devolved to the WelshAssembly Government.

40. Although the Assembly’s exercise ofsuch powers may not carry the sameadministrative implications as some ofthe other candidates discussed here,there could well be a need tostrengthen the transport policycapacity within the AssemblyGovernment.

The Fire Service

41. The Government’s plans to transfer tothe Assembly powers in relation to theFire Service were announced in the2003 White Paper, ‘Our Fire andRescue Service’ which set out theGovernment’s response to the review ofthe service chaired by Sir George Bain.

42. Fire Services are a local authorityresponsibility, operated through themedium of a Combination Orderspecifying that certain local authoritiesshall join together to run a joint FireService.

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43. The Assembly Government took theopportunity presented by the Bainreview to make the case for theacquisition of the formal powers. Bainrecommended as follows:

The Review team endorses theproposal that the Welsh Assembly begiven policy and funding responsibilityfor the Fire Service in Wales. Thepresent split in policy responsibility forthe Fire Service, and capital andrevenue funding between the WelshAssembly Government and ODPMprovides scope for confusion, delay,uncertainty and tension. It militatesagainst the effective planning of theFire Service.17

44. The evidence shows that the impetusfor transfer came from the practicalexperience of a common approach tofire prevention by the AssemblyGovernment and the Fire Service. TheMid & West Wales Fire Authority toldus that:

It is fair to say that [through] theclose working relationship that thethree fire authorities in Wales havebeen able to develop with theAssembly …. some incrediblyproductive things have happened ….quite a strong community of interestbetween the things that we weretrying to achieve, in terms ofreducing fire deaths and injuries, andwhat the Assembly are trying toachieve in terms of communityregeneration and social inclusion ….fire deaths and injuries and fire

generally are quite closely associatedwith issues of social deprivation.18

45. The Welsh Assembly Government’sresponse to the White Paper explainedthe planned transfer on grounds ofreducing preventable death and injuryin Wales. The plans now are to conferon the Assembly powers under thenew statutory arrangements to be putin place by the Fire and RescueService Bill. In the interim theAssembly is seeking the transfer of therelevant powers under the existinglegislation. The statement alsoconfirms that:

The Assembly Government believesthat it would not be practical for theAssembly to establish its ownarrangements in relation to firepersonnel terms and conditions ofemployment or pensions. It willtherefore seek to follow theWestminster lead in this regard.19

46. The financial impact of transferring fireservice powers is likely to be relativelymodest because the revenue costswere already devolved to theAssembly. ODPM was responsible forthe capital allocation – this was apotential source of tension if HM FireInspectorate laid down standardsbased on ODPM requirements, ratherthan those of the Assembly.

47. The gradually increasing role of theAssembly in policy on fire and safetyhas been absorbed without asignificant increase in staff costs up tonow but the cost is likely to grow infuture.



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The Police Service

48. The police service presents a numberof interesting challenges forgovernance in Wales because it is anarea where devolved and non –devolved services inter-act very closelyon the ground. Executive powers inrelation to police functions rest withthe Home Office but responsibility forpolice funding is split between theAssembly, local government and theHome Office. In our public meetings itwas suggested that policing should bedevolved because of the importance ofpartnership with local government inmaking an impact on crime andcommunity safety.

49. The evidence put to us includes threetypes of tension within the presentdistribution of responsibility for thepolice:

■ administrative problems arising fromthe division of responsibility for policefinance;

■ policy and implementation issuesarising from divergence betweenAssembly Government and HomeOffice strategies;

■ accountability and governance issues.

50. The Minister for Finance, LocalGovernment and Communities, EdwinaHart AM, whose portfolio includedliaison with the police as part of theAssembly’s community safety strategy,gave evidence to the Commission inDecember 2002. While emphasisingthat excellent working relations hadbeen established with the policeservice in Wales, she explained thepractical problems that have arisen in

relation to operational priorities andfunding:

When we look at the priorities interms of the Home Office and topslicing of police funding for priorities,those priorities are not Welsh prioritiesin terms of the agenda. They are verymuch a metropolitan and cityagenda.20

51. The implications for police authoritiesof working with the AssemblyGovernment while at the same timemeeting the requirements of theNational Policing Plan and HomeOffice were discussed in the evidencewe received from the Police Authoritiesof Wales (PAW):

… the division of policy betweenWestminster and the NationalAssembly for Wales with regard topolicing, which can result in a policyconflict. The National Assembly forWales document ‘Tackling SubstanceMisuse in Wales’ is focused on theissues that are key in Wales and goesfurther in its approach than theequivalent document in England,‘Tackling Drugs to Build a BetterBritain’. The Welsh policy sets targetsto include alcohol and widersubstance abuse. This is to beapplauded but does not feature in[Public] Service Agreements or themain policy document for policing,‘The National Policing Plan’ … Policyareas that influence policing can befocused to Wales, however policingcannot.21

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52. The PAW, and the North Wales PoliceAuthority22, pointed to problemsarising from the fact that policing isnot devolved but local government is:

The four Police Authorities in Waleswith regard to Member conduct issuesare required to follow Regulationsissued by the ODPM and guidanceissued by the Standards Board forEngland. The requirements and ModelCode are different to those issued bythe National Assembly.

This means that our ‘Councillor’ PoliceAuthority Members have to haveregard to two separate codes … Thiscan lead to confusion to membersbut, perhaps more importantly, to thepublic.23

53. In principle, the PAW saw a number ofpotential advantages from extendingthe powers of the Assembly to includepolicing:

The advantages [of extending thepowers of the National Assembly toinclude police] would includeconsistency of policy between crimeand disorder, community safety andpolicies that relate to policing that arealready functions of the NationalAssembly … This would enable ajoined-up approach to crime anddisorder … A more cohesive approachacross policy areas would allow forpolicing to be prioritised at a locallevel and move away from the currentposition where policing targets are setby the Home Office.24

54. Nevertheless, the PAW recognised thatthe transfer discussions would becomplex and that extensiveconsultation would be required. Theirwritten evidence includes an analysisof all the relevant powers under whichthe police currently operate – in eachcase detailed consideration wouldneed to be given to the case for, andagainst, transfer as well as the budgetimplications.



Box 9.1 Statutory powers in relationto the police which would need to bereviewed in transfer negotiations

Training and recruitment

Emergency support

Police pay and conditions

Procurement of specialist equipment

IT and communication equipment andprotocols

Police Standards Unit

National Policing Plan and performance targets

National Crime Squad

Her Majesty’s Inspectorate ofConstabulary

Research

Codes of Practice

Complaints and discipline

Cross-border issues

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55. The Police Federation of England andWales lent support for an increased rolefor the Assembly in setting targets forthe police in Wales, but expressedcaution about the prospect ofdivergence in the framework of lawsand legal machinery within which thepolice operate.25 The Federation alsopointed out that police pay andconditions of service are negotiated bythe Police Negotiating Board of theUnited Kingdom, in respect of policeofficers throughout the UK, and thatthe federated ranks have no wish tomove from this negotiating position,beyond the elements of localconsultation and negotiation providedfor in the recent police reforms.

56. The financial arrangementsunderpinning any transfer proposalswould be critical. It would be necessaryto ensure that:

■ the budget provision for the police inWales currently contained in the HomeOffice Budget was transferred to theAssembly Budget at an adequate levelto cope with present requirements;

■ adequate arrangements were in placeto ensure that Wales was not short-changed in future budget allocationsdetermined through the Barnettformula. The fact that an increasingshare of the police budget was devotedto centrally funded initiatives wouldmake this difficult to guarantee.

57. In addition to negotiating the transfer ofprovision for existing police expenditurein Wales from the Home Office to theAssembly Budget, it would benecessary to consider the cost ofcreating in Wales a new administrativecapacity to exercise the transferred

police powers. The cost of this woulddepend on the extent of the powerstransferred, but is likely to besignificant and would be a new chargeon the Assembly Budget – theSecretary of State told us that:

In considering this you might want toassume that if the Government agreedto a transfer, they would also transferthe resources presently spent on thepolice in Wales but that any additionalcosts would have to be met from theAssembly’s budget.26

Children and Family Court Advisory andSupport Service Cymru

58. The transfer of the Children and FamilyCourt Advisory and Support ServiceCymru was announced after theconclusion of our evidence. TheMinister for Health and Social Servicesannounced on 14 January 2004 thatUK Government Ministers had agreedin principle to the transfer of therelevant functions to the AssemblyGovernment and that discussions tofinalise the details were then inprogress.

Part 2: The impact of devolution on theadministration of justice in Wales

59. The evidence of the legal profession inWales was that lawyers in Wales see apositive impact from devolution, both interms of the development of Welsh law– through distinctive Welsh provisionsin primary legislation and devolvedlegislation which is made by theAssembly – as well as the expansion ofthe profession in Wales and theemployment opportunities created:

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What is interesting about the presentposition of Wales is the way in whichits independent legal status is comingto be recognised within the unifiedlegal system of England and Wales,that is ‘Legal Wales’.

It appears to us that amongst theadvantages that further devolution ofthe organs of the administration ofjustice to Wales would bring to Walesincludes the following:

a. the institutions would be closer tothe people they are intended toserve;

b. efficiency (of courts andtribunals): the prompt disposal ofwork;

c. economic benefits: employment insupport and related professions;

d. career structures and specialtiesnot presently available in Wales;

e. the geographical limitation on theright to use the Welsh languagewould be accommodated.27

60. The Law Society also saw advantagesin a greater involvement of theAssembly in the organisation of thecourts in Wales, not necessarilythrough formal powers but perhapsthrough an oversight role, for examplein considering the organisation ofmagistrates courts from the perspectiveof social inclusion and access tojustice:

If you were to ask a broad range ofpractitioners in Wales as to what theysee as being one of the key issues in

the way they think the Assemblyought to have a role and make adifference to courts closures anddistribution of legal resources aroundWales, I think that would be top of thelist.28

61. The evidence shows that the processof political devolution has strengthenedconsiderably the momentum for thecreation of legal structures at an allWales level. This would be evenstronger with the devolution of primarypowers. Witnesses recognised that thecreation in June 2003 of the newDepartment of Constitutional Affairs,with responsibility for both devolutionand Justice, has created a new contextfor considering these matters. This wasfurther underlined by the Secretary ofState who pointed us to the LordChancellor’s planned postimplementation review of the newcourts administration structure in2006-07.29

Overview of findings

62. We began our work with theexpectation that our report mightinclude specific recommendations forthe transfer of further functions to theAssembly. In the light of the evidencereviewed in this chapter and elsewherein the report, we concluded that thiswould not be sensible, for thefollowing reasons.

63. First, each significant proposal carrieswith it major financial, staffing andpolicy implications. We received someevidence on this, but not sufficient tobe able to evaluate all theseimplications in full.



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64. Second, the question of priorities isparamount. Proposals cannot beconsidered in isolation because of theircapacity implications for the Assemblyitself, the Welsh Assembly Governmentand their staff. We do not feel it wouldbe wise for us to seek to identify, withincomplete information, the areaswhere broader powers would have themost impact on the achievement of thepriorities of the Welsh AssemblyGovernment.

65. Third, timing is a key constraint. Asthe question of powers in relation tostudent support has shown, proposalsfor transfer often emerge in the contextof structural change at the UK orEngland and Wales level. In thisrapidly changing context, our views onspecific proposals could well beovertaken by events.

66. Accordingly, we decided to focus ourfindings on the strategic and capacityimplications of such transfers.

Findings

From the evidence in this chapter ourfindings are as follows:

■ the creation of the Assembly hasgiven a very strong push to themomentum to extend the boundariesof devolution into new areas –continuing the process which beganwith the first steps of administrativedevolution;

■ the Assembly Government is alreadyseeking a number of major extensionsto its powers, driven by theaspirations of the Assembly itself,and the people it serves, for a morecoherent set of powers related tobroad policy areas;

■ the evidence points to the benefits ofmore integrated and responsivepolicies, not only from devolution ofpowers to the Assembly but also fromthe creation of Welsh structures andexpertise, where powers are notdevolved, as is happening in theadministration of justice;

■ new executive powers often carrysignificant costs, which need to beweighed against the expectedbenefits;

■ the costs include creating newcapacity, where administration costsare not offset by transfers fromWhitehall, as well as potential futurepressures on programme costs – withgreater experience, the Assemblymay feel that the advantage forWales may not always point totransfers from Whitehall;

■ looking to the future, the AssemblyGovernment should determine andexplain its priorities for extending thebreadth of its powers in a morestrategic way than has been possiblehitherto, with a realistic appraisal ofthe pace and likely impact ofchange.

Notes

1National Assembly for Wales evidence to the Anderson Inquiry into the lessons to be learned from the foot andmouth disease outbreak of 2001, January 2002.

2Minutes of the Agriculture and Rural Development Committee 19 March 2003, para 2.5.

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3Oral evidence of the Minister for Rural Development, 8 November 2002.

4Minister for Environment, Planning and Countryside, Statement on the Energy Programme, National Assembly forWales Record of Proceedings, 21 January 2004.

5Oral evidence, 7 November 2002, and written evidence of the Minister for Economic Development, Annex 2;written evidence of the Minister for Environment, November 2002.

6Oral evidence of the Minister for Economic Development, 7 November 2002.

7Oral and written evidence of the Minister for Economic Development, 7 November 2002.

8Written evidence of the Minister for Environment, November 2002.

9House of Lords Debates, 28 January 2002, col. 16WA.

10Minister for Economic Development, Statement on the Energy Programme, National Assembly for Wales Recordof Proceedings, 26 February 2003.

11‘Independent Investigation Group on Student Hardship and Funding in Wales (2001) Investing in Learning:Coherence, clarity and equity for student support in Wales’, Cardiff. ISBN 0 7504 2685 3

12Statement of the Minister for Education and Lifelong Learning to plenary, National Assembly for Wales Record ofProceedings, 13 January 2004.

13Iain McLean, ‘Devolution Bites’, Prospect, March 2003.

14Oral evidence of the Higher Education Funding Council for Wales, 23 May 2003.

15Lecture for the Welsh Political Archive of the National Library of Wales, 7 November 2003, Aberystwyth.

16Oral evidence of Rt Hon Peter Hain MP, the Secretary of State for Wales, to the Welsh Affairs Select Committee,25 June 2003.

17The Future of the Fire Service: Reducing Risk, Saving Lives, ODPM, 2003, paragraph 6.40.

18Oral evidence of the Mid and West Wales Fire Authority, 10 April 2003.

19Statement to the Committee for Social Justice and Regeneration, 24 September 2003.

20Oral evidence of the Minister for Finance, Local Government and Communities, 5 December 2002.

21Written evidence of the Police Authorities of Wales, June 2003.

22Additional written evidence of the North Wales Police Authority, 29 September 2003.

23Written evidence of the Police Authorities of Wales, June 2003.

24Ibid.

25Letter from the Chairman of the Police Federation of England and Wales, 5 September 2003.

26Letter from the Secretary of State for Wales to Lord Richard, 14 November 2003.

27Mr Justice Roderick Evans and Professor Iwan Davies, ‘The Implications for the Court and Tribunal System of an Increase in Powers’, a paper presented to the Law Society/Richard Commission seminar, 7 February 2003.

28Oral evidence of the Law Society, 26 June 2003.

29Letter from the Secretary of State for Wales to Lord Richard, 14 November 2003.



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chapter 10: the financing of devolvedgovernment


2. As many witnesses recognised, thepower of the purse is one of the mostimportant of the Assembly’s powers. AVoice for Wales said:

The Assembly will have at its disposalthe budget – currently £7 billion –which now falls within theresponsibility of the Secretary of Statefor Wales…The Assembly’s decisionsabout how this budget should bespent will determine the range andquality of public services inWales...the Assembly will be fullyaccountable for the proper control andmanagement of its budget and forsecuring economy, efficiency andvalue for money.1

3. This chapter considers the adequacy ofthe financial powers of the Assemblyand:

■ the method of financing and thequantum of resources available;

■ the broader fiscal position of Wales;

■ accountability and budget processes.

4. The questions addressed include:

■ how effective are the financingarrangements in ensuring that theAssembly Government is accountableto the Assembly and to the electoratefor its expenditure decisions?

■ is the size of the Assembly’s budget initself a bar to the exercise of thepowers devolved under the present ora future settlement?

■ are there any changes, such asrevenue varying powers, which shouldbe considered in the interests ofimproving accountability?

5. The arrangements for financingdevolution have recently beenexamined in detail by the House ofLords Select Committee on theConstitution chaired by Lord Norton ofLouth.2 This chapter draws on thatreport and the evidence on which itwas based, in particular that ofProfessor David Heald of AberdeenUniversity and of Professor David Bellof Stirling University and the writtenand oral evidence by the FinanceMinisters of Scotland and Wales.

6. We received further evidence from thetwo Finance Ministers and fromProfessor Bell. The evidence of manyother witnesses included views on thefinancial arrangements.

7. Issues relevant to the present fundingarrangements are considered in Part 1of this chapter, and to tax-varyingpowers in Part 2.

The financing of devolvedgovernmentThis chapter considers the financing of devolved government in Wales,examines the processes of accountability and scrutiny and reviews theoption for a revenue varying power.

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Part 1: The present fundingarrangements

Background

8. Fiscal policy decisions – the level ofexpenditure, taxes and borrowing – arenot devolved matters. The 1998devolution measures did not change thefunding arrangements for the devolvedadministrations: with the exception ofthe new tax-varying power conferred onthe Scottish Parliament – as explainedin paragraph 52 below.

9. These arrangements provide thedevolved administrations withsubstantial budgetary freedom withinthe total Budget set by the UKGovernment. They are free to allocatefunding between services as they wish,with no Treasury PSA3 strings attached.The exceptions are areas such as localgovernment finance where theConcordat with the Treasury imposessome constraints on the use ofresources generated by locally financedexpenditure – see paragraphs 18-21below.

10. The system for determining the size ofthe devolved Budget was inherited fromthe pre-devolution arrangements. Itsmain features are:

a. the starting point is the baselineinherited from previous publicexpenditure settlements;

b. this baseline is adjustedautomatically in line with thechanges made to the budgets of therelevant Whitehall departments;

c. the mechanism for doing this is theBarnett formula which gives thedevolved administrations apopulation determined share of therelevant adjustment as set out in box10.1 below;

d. the baseline together with theseadjustments produce the total Budgetfor the Assembly.

11. This is a population-driven system: itdoes not attempt to take account of anyother factors which might influencerelative need such as the age of thepopulation or income per head. Thusneither the starting point – the inheritedbaselines, or the increments, areadjusted for poverty or health or sparsityor any other factor.

12. There is no connection between thelevel of central government taxes raisedin the devolved countries and theamount of spending power they have –the two are entirely separate.

13. The devolved administrations areresponsible for only part of publicexpenditure in their territories. Majorspending which falls outside the scopeof the Assembly include social security,police and criminal justice, employment,defence and foreign policy. The Ministerfor Finance, Local Government andCommunities told the House of LordsSelect Committee on the Constitution: ‘Ifyou are looking at the total expenditureof Government in Wales, we account forabout 50 per cent which comes out ofCentral Government expenditure, andthe rest is from other sources – DHSSpayments and so on’.4

14. In 2001-02, expenditure by theNational Assembly and the Wales Officeaccounted for £8.8 billion of the totalidentifiable expenditure in Wales of£17.1 billion. The other main blocks ofexpenditure were Social Protection(£6.1 billion) and Law, Order andProtective Services (£1.1 billion).5



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15. Table 10.1 shows the scale of theBudget (Departmental Expenditure

Limit) devolved to the Assembly since1997-98.

Box 10.1 The Barnett Formula

The Barnett formula is a mechanism for allocating increases/reductions in fundingto the devolved administrations in Scotland, Wales and Northern Ireland.

There are three elements to the formula:

1. the change in planned spending in departments in England;

2. the extent to which the relevant English departmental programme iscomparable with the services carried out by each devolved administration;and

3. the population proportion in each devolved region of the UK.

In 2001, these proportions were:

Scotland 10.23%

Wales 5.89%

Northern Ireland 3.40%

The formula simply multiplies 1. x 2. x 3. The change in funding payable to thedevolved administration is therefore the change for England, multiplied by theextent to which a programme is comparable, multiplied by the population of thedevolved region as a proportion of the English population.Adapted from: ‘Select Committee on the Constitution – report on Devolution: Inter-institutional Relations inthe United Kingdom’.

Table 10.1: The devolved Budget for Wales

1997- 1998- 1999- 2000- 2001- 2002- 2003-1998 1999 2000 2001 2002 2003 2004

Wales 6.5 6.8 7.2 7.8 8.6 9.7 10.4Departmental Expenditure Limit £ billionSources: Public Expenditure Statistical Analyses 1999-2000 (H. M. Treasury, Cm 4201, 1999) and 2003(H. M. Treasury, Cm 5901, 2003).

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Accountability

16. Under these arrangements the WelshAssembly Government cannot be heldto account for the size of its budget,but it is wholly accountable for theallocation of resources betweendevolved expenditure programmes,and for the value for money andpropriety of these decisions.

17. This statement needs to be qualified intwo ways. First, it could be argued thatthe debate about the publicexpenditure provision for Europeanfunds allocated to Wales under theObjective 1 programme does providean example of accountability for thesize of the Budget – the First Minister,The Rt. Hon. Alun Michael, was heldto account for decisions on whetherthe European funds received underObjective 1 would be additional to, orsubstitute for, the previous budgetplans. However in this case thedecision was one for the UKGovernment and the Welsh AssemblyGovernment was challenged in respectof its negotiations with the Treasury,not for its own decisions.

The balance of funding for localservices between the council tax payerand Assembly grants

18. Second, through its power todetermine the central grant in supportof local authority spending the WelshAssembly Government is able toinfluence the revenue raised by localauthorities through the council tax andother sources such as charges. TheBudget of the Assembly includes thegrant paid in support of local authorityspending but does not include counciltax income.

19. It might seem therefore that one optionopen to the Assembly would be toreduce the level of grant paid to localauthorities, thereby freeing upresources for other Budget purposes,and rely on higher council tax to makegood the shortfall in local authorityincome. But the Treasury’s Statementof Funding Policy specificallyprescribes that:

If levels of self-financed expendituregenerated by a devolvedadministration [including council tax]grow significantly more rapidly thancomparable expenditure in Englandover a period and in such a way as tothreaten targets set for publicexpenditure as part of themanagement of the United Kingdomeconomy, it will be open to the UnitedKingdom Government to take theexcess into account in considering thelevel of grant to the devolvedadministrations.6

If, due to decisions by the ScottishExecutive or the National Assembly forWales or their respective localauthorities, the costs of Council TaxBenefit subsidy paid to localauthorities changes at adisproportionate rate (both higher orlower), relative to changes in England,then appropriate balancingadjustments are made to the relevantdevolved administration’sDepartmental Expenditure Limit’.7

20. Similarly, where decisions by theAssembly result in a yield from non-domestic rates being reduced (inexcess of any comparable decisions in



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England) thereby increasing thedemand for cash from the Exchequer,the Treasury reserves the right toreduce the Assembly’s AssignedBudget by an amount equal to theadditional cash requirement.

21. In practice, therefore, the scope toease Budget pressures by increasingself-financed spending is strictlylimited.

Revenue from fees and charges

22. The power to vary fees and charges forgoods and services has been used bythe Welsh Assembly Government in anumber of policy areas such as: travelon public transport, entry to Museumsand swimming pools, and prescriptioncharges. In each case, the decisionhas been to reduce charges and shiftthe cost from individuals to theAssembly Budget. The effect is toreduce the purchasing power of theBudget compared to the positionwhere charges were higher and thegrant from the Budget lower.

23. In principle therefore, the existingdevolution settlement does allow theWelsh Assembly Government to easethe pressure on Budget services byincreasing council tax revenue orthrough charging for services. But, inpractice, this power is strictly limitedby a number of factors including theagreements mentioned above and bythe narrow base of the charges.8

Standing Orders and control of thefinancial process

24. The financial processes of the NationalAssembly are governed by StandingOrder 19. This covers: the

determination of budgets; how thosebudgets may be adjusted during theyear; the publication of accounts andreports; and the publication of localgovernment finance reports.

25. Standing Order 19 ensures thatMinisters publish budget information toa recognised timetable to enablescrutiny of their proposals by SubjectCommittees as well as the Assemblyacting in Plenary.

Budget process

26. We looked at the budget processes ofthe Assembly and the ScottishParliament from the point of view ofaccountability. The key points are:

■ apart from the reserve tax-varyingpower, there are no substantivedifferences in the budgetary powers ofthe Assembly Government and theScottish Executive – both areaccountable to their elected Membersfor expenditure decisions, proprietyand value for money;

■ in both Scotland and Wales, theBudget proposals are published indraft and subject to scrutiny by theelected Members – the key differenceis that in Scotland the Parliament usesa Bill procedure for scrutiny;

■ the Bill procedure may provide formore opportunities for individualMembers to influence the proposalsalthough this is constrained by therequirement for zero-sum amendments(where any amendments moved toincrease a budget head must indicatehow the resulting budgetary deficit isto be met).9 We were also told thatmeasures were in hand to improve thefinancial information accompanyingBills;10

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■ the Scottish Parliament has a FinanceCommittee which is able to considerthe Executive’s budget proposals inthe round and to propose a differentshare of resources betweenexpenditure programmes. In Walesthere is no Finance Committee – theNational Assembly Advisory Groupreport stated:

We do not recommend that thereshould be a finance committee. TheAssembly cabinet will provide thecorporate authority to the budgetproposals and any in-yearadjustments; it will be responsible formonitoring expenditure againstbudgets.11

■ in the Assembly and in the ScottishParliament, the Audit Committee haslead responsibility for value for moneyscrutiny based on the reports of theNAO and the Auditor General forScotland.

27. The Finance Committee question wasraised in evidence by Nick BourneAM.12 The absence of such acommittee in the Assembly limits itscapacity to scrutinise the Executive’sBudget proposals in the round.Subject Committees are consulted onbudget priorities in their areas andMinisters take account of their viewswhen preparing the Draft Budget. TheDraft Budget is published and amotion tabled for the Assembly tonote the proposals. Members are freeto table amendments but, to date, theAssembly has not formally amendedthe Draft Budget put forward by theGovernment. Committees then discuss

the proposals. Their views are againtaken into account when Ministersprepare the Final Budget. A motion istabled for the Assembly to adopt theFinal Budget, but amendments arenot permitted at this stage.

28. A recent study of budget scrutiny bylegislatures commissioned by theFinance Committee of the ScottishParliament commented as follows:

The [Scottish] Finance Committee'srole is central to the process.Whereas the relevant subjectcommittees are responsible forcommenting on the relationshipbetween expenditure plans and policypriorities within their remits, it is theFinance Committee's responsibility toco-ordinate the Parliament's overallresponse to the Executive's budgetproposals….it also has the power toput forward an alternative budget, aslong as this remains within the overallbudget limit set by the Executive.

In nearly all of our case studies, thereis some form of balancedarrangement of powers between theExecutive and Legislatures. The formof these systems varies greatly butthe biggest lesson is that it is theactual practices adopted by bothsides (and others) which determinethe real dynamics of the budgetprocess, rather than the formalarrangements.13



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The amount of resources available tothe Assembly

29. Public expenditure per head in Walesis significantly above that in England.This refers to ‘identifiable expenditure’which includes both expendituredevolved to the Assembly andexpenditure by UK governmentdepartments which can be attributedon a country basis (paragraph 13above). ‘Identifiable expenditure perhead’ in Wales in 2001-02 was 17%higher than that in England. Thedifferentials for Scotland and NorthernIreland were 26% and 32%respectively.14/15

30. Nevertheless, some witnesses arguedthat the amount of resources providedto the Assembly by the current systemrepresents an undue constraint on theexercise of devolved powers.16 Theytake the view that Wales doesrelatively badly out of the presentsystem and would do better if it wasreplaced by a different one in whichthe budgets for England, Scotland,Wales and Northern Ireland weredetermined by an assessment of theirrelative expenditure needs.

31. The evidence of Professors Heald andBell to the Norton Committeeexplained that one of the features ofthe Barnett system is that it will overtime reduce the differential betweendevolved expenditure per head andthe average comparable expenditureper head in England. They alsooutlined the practical and conceptualdifficulties of devising an objectiveneeds assessment formula that wouldcommand the support of the UKGovernment and the three devolvedadministrations.17

32. Academics have produced proposalsfor new resource allocationmethodologies – for example, somehave suggested that the approachshould be for public expenditure levelsto compensate for disparities inregional income.18 This contrasts withneeds assessment formulae usingindicators such as demand for publicservices or length of roads to bemaintained.

33. Table 10.2 sets the public expendituredifferentials (paragraph 29 above) inthe context of relative prosperity asmeasured by Gross Value Added perhead.

34. The Commission did not seek toevaluate the merits of differentresource allocation methodologies.The Assembly Finance Minister19

cautioned against assuming that aneeds assessment would beguaranteed to benefit Wales. Shepointed to the unconditionality andrelative certainty provided by thepresent system and to the ‘Barnettplus’ arrangements under which theTreasury agreed to supplement theBudget in response to the Objective 1programme.

35. Nor are we in a position to commenton the adequacy of the devolvedBudget in relation to Welsh needs.Within the resources available to it,the Assembly Government has foundresources to diverge from standards ofprovision in England in a number ofareas including student support,subsidised transport and prescriptioncharges. This does not support theview that the Assembly’s budget hasbeen a bar to policy innovation.

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36. Against this we acknowledge theargument put forward by ProfessorHeald and others that the early yearsof devolution have coincided withhistorically high levels of spendinggrowth which are unlikely to continue.Thus although the devolvedadministrations have enjoyed a degreeof flexibility which comes withrelatively high public expendituregrowth rates – were this to changethey would be more constrained.

37. The overall conclusion of the NortonCommittee was that the long termcontinuation of the Barnett formulawould present serious difficulties andthat it would not be a sustainablebasis for allocating funds to thedevolved administrations in the long

term. When the formula is reviewed,or a needs assessment carried out, theCommittee recommended that it becarried out by an independent bodyrepresenting all parts of the UK. TheGovernment’s response indicated thatit has no plans to replace the presentsystem.20

The broader fiscal position of Wales

38. There is a longstanding debate abouthow to calculate the overall fiscalposition. On the expenditure side,judgements have to be made abouthow to attribute non-devolvedspending and, on the revenue side,there are technical problems inattributing revenues on a territorialbasis.



Table 10.2: Headline Gross Added Value (GVA) and Identifiable Public Expenditureper head

2001 Wales Scotland Northern Ireland England

GVA: 11,396 13,660 11,311 14,844£ per head

GVA: 76.8% 92.0% 76.2% -% of England

Identifiable 5,874 6,324 6,616 5,005expenditure:£ per head

Identifiable 117% 126% 132% -expenditure:% of England

Sources: ONS Regional Accounts and Public Expenditure Statistical Analyses 2003 (H. M. Treasury, Cm5901, 2003), Table 8.6b. GVA is the difference between the value of goods and services produced and thecost of raw materials and other inputs which are used up in production. It is Gross Domestic Product atmarket prices less taxes (plus subsidies) on products.

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39. Depending on how these issues areresolved, it is possible to produce verydifferent estimates of the overallposition of the devolved country.There is an official estimate of theposition for Scotland21 but the resultsare contested. The Welsh Officeproduced an estimate22 for 1994-95on the same basis as that used forScotland but later official figures forWales are not available.

40. The results for 1994-95 aresummarised in Table 10.3 belowwhich shows expenditure in Walesexceeding revenue by £5.7 billion or

some 20% of GDP. (There is no directNorthern Ireland equivalent of theseestimates.23)

41. These figures are now out of date andhighly sensitive to the assumptionsmade. However, it is widely acceptedthat the contribution made by Wales totax revenues is likely to be low relativeto the rest of the UK and its share ofpublic expenditure relatively high –thus producing an overall deficitposition with the UK Exchequer. Thisin part reflects the relatively low GrossValue Added in Wales compared withthe UK overall; see Table 10.2 above.

Table 10.3: Estimated fiscal deficits in Wales, Scotland and the United Kingdom: 1994-95

£ billion Walesa Scotlandb United Kingdom

Total General 15.6 30.3 295.5Government Expenditurec

Total General 9.9 22.1d 247.6BorrowingRevenue

General Government 5.7 8.2 47.9BorrowingRequirement

Borrowing as a 20 14 7proportion of GDPe

Notes

a. Source: Table 10 of Government Expenditure and Revenue – Wales 1994-95. Published January 1997 bythe Welsh Office.

b. Source: Appendix D of Government Expenditure and Revenue in Scotland 1995-96. Published October1997 by the Scotland Office. (The original 1994-95 estimates are quoted as published in October 1996.)

c. Derived from Public Expenditure Statistical Analyses H.M. Treasury, Cm 3201, 1996). Excludesprivatisation proceeds.

d. Excludes North Sea revenues.

e. GDP at current market prices.

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The advantages and disadvantages ofthe present funding arrangements

42. The advantages of the presentarrangements are:

■ there is a strong incentive to maximisevalue for money: when a newexpenditure pressure arises the optionto respond by increasing revenue isnot available so the new expenditurecan only be funded at the expense ofsomething else;

■ the overall budget is relativelypredictable – it is set by the Treasuryfor a three year period and theSpending Review adjustments arenegotiated in a well understoodframework of policy and spendingpressures;

■ there is a very high degree of financialautonomy: the UK Government doesnot attempt to direct priorities byattaching conditions, as happens insome federal states;

■ the fact that the Assembly Governmentmust operate within an externallydetermined financial envelope helpspromote more realistic expectations.

43. The disadvantages are:

■ the Welsh Assembly Government doesnot have to account to taxpayers or tothe Westminster Parliament for therevenue required to fund itsexpenditure;

■ the Welsh Assembly Government isconstrained by public spendingdecisions taken in London – so far theclimate has been relatively benign butin different conditions financialpressures could add to strains betweenLondon and Cardiff.

44. Denzil Davies MP told us:

We are reaching a point, I believe,where it is democraticallyunacceptable that the UnitedKingdom Parliament should be askedto transfer functions to the NationalAssembly in circumstances wherethe cost of exercising those functionseffectively falls on United Kingdomtaxpayers, but where the democraticrepresentatives of those taxpayershave no say in how those functionsare exercised by the NationalAssembly.24

45. The Secretary of State for Wales isanswerable to Parliament for thefunds passed to the Assembly; theHead of the Wales Office hasAccounting Officer responsibilities forthese funds which she dischargesthrough an Accounting Officeragreement with the Assembly’sPermanent Secretary, who providesevidence to demonstrate that thefunds passed to the Assembly havebeen spent properly. That enablesher, in turn, to provide assurance toParliament on the total funds forwhich she is responsible, includingthe monies passed to the Assembly.

46. The Assembly’s Permanent Secretaryis appointed as the AccountingOfficer by the Treasury. He isresponsible to the Assembly for theproper use of funds for which he isthe Accounting Officer. He may alsobe called to appear before the PublicAccounts Committee in respect ofthese funds, although he has notbeen called so far.



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Part 2: Tax-varying powers

Tax-varying powers of sub-nationalgovernments in other countries

47. Chapter 2 includes a summaryoverview of the tax-varying powersavailable to devolved governments inother countries and explains that theUK devolution settlement gives thedevolved governments extensivefreedom in spending their budgets butvery limited powers to raise revenue.

48. John Hopkins plays down theimportance of tax-varying powers inEuropean devolution.25 He commentson the focus of the Scottish media andelectorate on the ‘Scottish variable rate’as follows:

… the focus on finance recognises itsimportance to the successful operationof devolved institutions. Neverthelessthe focus on the tax raising questionalone drew a far too simplisticconnection between regionalautonomy and financialindependence. In fact, as we shallsee, regional powers of taxation arenotable in Europe mainly by theirabsence. Their impact is marginal andthey have a minimal effect on regionalautonomy.26

49. Hopkins examines the fiscal powersavailable in each EU country and theextent to which they have been used –the key points are:

■ block funding is the most importantmethod of regional finance utilisedacross the European union;

■ regional tax powers have been usedcautiously – for political and internalmarket reasons.

50. This analysis, along with the evidencequoted in Chapter 2, suggests that theconnection between revenue raisingpowers and policy discretion andaccountability is complex and needs tobe evaluated against criteria of bothprinciple and practicality.

51. The following paragraphs review theoptions for a Welsh tax-varying power.

The power to vary income tax: theScottish variable rate

52. Under the 1998 Scotland Act, theParliament may, by passing aresolution initiated by the Executive,vary the basic rate of income tax inScotland by up to 3p in eitherdirection. In the case of an increase,the Inland Revenue would collect theadditional amount from taxpayers withScottish residence and, in the case ofa decrease, would credit them withrebated amounts. In the case of anupward variation, the allowedspending of the Scottish Parliamentwould be increased by the Treasury bythe relevant amount. In the case of adownward variation an offsettingreduction would be made.

53. The Scottish Executive gave acommitment that the tax-varyingpower would not be used during thelifetime of the first Scottish Parliamentand has ruled out its use during thelife of the second Parliament. In hisoral evidence to the Commission, theDeputy First Minister of the ScottishExecutive, did however say:

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Who is to say at some time in thefuture if things got tight that therewouldn’t be a clamour to use thepowers so I certainly would notdismiss the powers at al and I think itwas an important part of thedevolution settlement. If I may usethis without being pejorative, I think itis the difference between a Parliamentand an Assembly – because aParliament has taxation powers; it is afunction of a Parliament.27

54. The White Paper Scotland’s Parliamentexplained the rationale for choosingthe income tax route as follows:

The Government propose that the tax-varying power should operate onincome tax, because it is broadlybased and easy to administer. Incometax is relatively simple and easy tounderstand and has none of thedifficulties associated with the othermajor tax bases: different rates of VATon different sides of the border wouldcause practical problems and therewould be specific difficulties with EUrules; corporation tax would place anunreasonable burden on companiesoperating in Scotland; NationalInsurance is inappropriate because ofits direct link with the social securitysystem; and council tax and non-domestic rates would over-burden thelocal government finance system andundermine the accountability of localgovernment to its electorate.28

55. Professor David Heald points out thatone of the features of the 'Scottish

variable rate' is that it is embedded inthe UK tax system and thus affectedby changes in it.29 Since devolution,the estimated value of the tax-varyingpower in Scotland has increased byover 44% (from £540 million to£780 million) as a result, inter alia,of changes to the structure of UKincome tax.

56. The effect of the restructuring of taxbands in the March 1999 Budget wasto increase the yield of a one pennychange in the Scottish variable rate to£230 million compared with £180million prior to the change. TheTreasury statement said: ‘In theTreasury’s view an amendment of theScottish Parliament’s tax-varyingpowers is not required as a result ofthese changes’.30

57. The UK Government estimate that forWales the revenue raised or foregoneby an adjustment of 1p in the basicrate of income tax would be £120million in 2003-04.31 A 3p variationwould represent £360 million,approximately 3.5% of the Assembly’splanned Departmental ExpenditureLimit for 2003-04.

58. Professor Heald suggests that thefocus on the tax-varying power in thepre-referendum debate distractedattention from the issue of the valuefor money secured from existingprogrammes. He also suggests that:

the Scottish Parliament needs to usethe power in the medium term, as itwill otherwise atrophy…both politicallyand administratively.32



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The advantages and disadvantages ofthe Scottish variable rate method

59. The main advantages are:

■ the income tax base is relatively broadso the burden of the additionalexpenditure is widely shared;

■ it is administratively fairly simple – itwould be administered by the InlandRevenue as part of the UK income taxsystem.

60. The disadvantages includeadministration costs and vulnerabilityto changes in the UK income taxstructure.

61. With his written evidence to theCommission in February, Andy KerrMSP, Minister for Finance and PublicServices, Scottish Executive, provideda 1999 estimate of the annual runningcosts of the tax.33 This reported thatthe annual running costs ofmaintaining the necessary databasewould amount to between £2 and£2.5 million. The cost of implementingand running the tax, if implemented,was estimated to add a further £20million over the lifetime of theParliament. The statement also drewattention to the extra work and costwhich would face the estimated91,000 UK employers of Scottishtaxpayers in preparing for the tax.

62. The revenue forecast is vulnerable notjust to normal variations in the takedue to economic activity but alsobecause control over the definition oftax bases and bands rests with theTreasury (paragraph 55). It is open tothe Treasury to propose an amendmentto the tax-varying powers for Scotland

if, in the Treasury's opinion, aproposed modification either of orunder the Income Tax Acts would have'a significant effect on the practicalextent … of the Parliament's tax-varying powers'.34

The local authority precept option

63. Another option with a precedent withinthe UK, would be to give the Assemblythe power to precept local authorities.This would mean requiring localauthorities to collect a specifiedadditional amount of revenue on theAssembly’s behalf. This is theapproach already used to fund policeauthorities and the London Assemblyand is proposed for the EnglishRegional Authorities.

64. The advantages of this approachwould be:

■ it would use the existing council taxbase;

■ it could be relatively transparent: localauthorities could spell out to counciltaxpayers the precise element of thetax which was attributable to theAssembly’s precept;

■ unlike the income tax route the preceptwould not be affected by theChancellor’s budget decisions.

65. The disadvantages would be:

■ it would involve an additional burdenfor 22 local authorities;

■ it would be unpopular with localauthorities and council taxpayers:although the responsibility for theprecept would be the Assembly’s,combining it with the council tax billwould confuse accountability;

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■ the council tax base is relatively smalland so, taking account of council taxbenefit, council tax increases of over50% would be needed to raise anamount equal to the product of a 3pincrease in the basic rate of incometax – see paragraph 57 above.

The council tax option

66. An alternative to the precept option,which would have the same effect ofincreasing the revenue raised fromcouncil taxpayers, would be to allowthe Assembly Government to reducethe grant contribution to local authorityexpenditure thus increasing the shareof local authority expenditure fundedby the council tax. This could beachieved, subject to the agreement ofthe Treasury, within existing powers byreducing the constraints on the growthof local authority self-financedexpenditure included in the Statementof Funding Policy (paragraph 19above). The implications for counciltax benefit mentioned above wouldhave to be resolved.

67. Other potential options which could beconsidered if the aim was to confer atax-varying power on the Assembly,include allowing the Assembly toimpose an additional tax on items oractivities which are currently subject toUK taxes – other than the income taxdevice available to the ScottishParliament. These options werereviewed in detail by the RoyalCommission on the Constitution (TheKilbrandon Commission, see Chapter2).35 Its report set the options forrevenue raising powers in the contextof a wider choice between two broadapproaches for financing devolvedgovernment:

– the revenue basis: devolvedgovernments to have their ownindependent source of revenue tofinance their expenditure – therecould be a measure of equalisationto compensate for a low regional taxbase but expenditure would beconstrained by revenue;

– the expenditure basis: devolvedgovernments to be given aguaranteed expenditure budget withautonomy in spending decisions.

68. Kilbrandon suggested that the revenuebasis implies a preference formaximum independence whereas theexpenditure basis implies a preferencefor financial equity across the UK. Theconclusion was to reject the revenuebasis and accept the expenditure basis– which is the system currently inplace. Kilbrandon noted that thesystem of finance prescribed forNorthern Ireland in 1920 was therevenue basis but the system whichcame to be used in practice was theexpenditure basis This came aboutdue to the pressures for equity instandards of public provision.36

69. Plaid Cymru has suggested that theAssembly should be given the powerto borrow for investment in strategicinfrastructure and that other tax-varying options might be considered,including environmental taxes (such asthe landfill tax) and Corporation Tax(with the possibility of reducing this inthe Objective 1 area).37We have notexplored these ideas in any detail.

70. Nor have we given detailedconsideration to a regional sales tax asan alternative to the Scottish model of



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tax-varying power. Research by theInstitute of Fiscal Studies and otherspoint to practical difficulties posed bythis option including: internetpurchases, cross-border shopping andrelatively high collection costs (wherecollection systems would need to bemaintained and paid for whether ornot extra taxes were levied).

Arguments for and against a tax-varyingpower at the margin

71. Assuming that the Assembly willcontinue to be funded on anexpenditure basis for the foreseeablefuture through the block grant system,we considered the advantages anddisadvantages of giving it a revenuevarying power at the margin, followingthe Scottish precedent or some otherdevice.

72. Some witnesses38 argued against sucha power for Wales on practicalgrounds, arguing that it was unlikely tobe used.

73. The arguments against can besummarised as follows:

■ in the context of the block grantsystem- the impact of a tax-varyingpower on overall financialaccountability would be limited;

■ the scope to provide a financialcushion in a tight UK publicexpenditure climate would be limitedby the scale of the power – assumingit followed the Scottish variable rate, itwould generate up to a maximum of3.5% of the Budget (paragraph 57above);

■ if projected additional revenue were tobe used for long-term funding there

could be problems if the tax take fellbelow projections, creating a fundingshortfall to be met by the Budget;

■ the existence of the power, even if notused, could be a deterrent tobusinesses or individuals planning tolocate or expand on the Welsh side ofthe border.

74. Professor Heald summarised the casefor such a power at the margin of ablock budget:

There is broad academic consensusthat elected bodies should be fiscallyresponsible at the margin, especiallywhen they have legislative powers.The key qualifier is the phrase ‘at themargin’ meaning that after the fiscalequalisation system has compensatedfor differences in needs and resources(i.e. taxable capacity) the cost ofadditional expenditure (and thebenefit of lower expenditure) shouldfall on ‘local’ taxpayers. There arepowerful economic factors, includingglobalisation and membership of theEuropean Union, which mean thatsub-national governments cannot befully self financing.39

75. The Fabian Society report Paying forProgress points to the divergence inthe revenue raising powers of the UKdevolved bodies and recommends thegranting of a power to both Wales andNorthern Ireland 'on the general modelof the Scottish Variable Rate'.40

76. The UK Government's White Paper onthe English regions makes the casefor revenue raising powers as follows:

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Chapter 10: the financing of devolvedgovernment


Notes

1Welsh Office, A Voice for Wales, Cm 3718 (London: The Stationery Office, July 1997), 9, 25.

2Devolution: Inter-Institutional relations in the United Kingdom, Second Report of the Select Committee on theConstitution, HL Paper 28, (Cm 5780), Session 2002-03. The evidence was published as HL Paper 147,Session 2001-02.

3Public Service Agreement (PSA) targets are the means by which the Treasury applies conditions to the additionalresources conceded to Departments in spending rounds. These constrain Departments freedom in allocatingresources at sub Department level. The devolved administrations are free from the requirement to agree suchtargets with the Treasury.

4Oral evidence to the Select Committee on the Constitution, Session 2001-02 - 'Devolution: Inter-InstitutionalRelations in the United Kingdom', HL Paper 147, 245-246.

5Public Expenditure Statistical Analyses 2003, (H. M. Treasury, Cm 5901, 2003), Table 8.7.

6Funding the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly : A Statement ofFunding Policy (H M Treasury, July 2002 (Third edition)). Section 2.2.vii.

7Ibid. Section 5.3.i.

8In 2002-03, direct fees and charges by the Assembly amounted to only £42,000. This figure excludes incomeraised by bodies funded by the Assembly – local authorities' income, excluding council tax and non-domesticrates, totalled about £450 million in 2001-02; income raised by other bodies is estimated to be in the region of£140 million in each year. Source : Welsh Assembly Government.

'We also believe that an assemblyshould be able to raise some extramoney within the region if it believesthat this is desirable … and likely tobe supported by the region's voters'.41

77. The key arguments for a tax-varyingpower seem to us as follows:

■ it would allow the Assembly to raisesome money of its own, with directaccountability to the electorate;

■ it would give the Assembly theopportunity to reduce as well asincrease taxes;

■ it would allow the Assembly, withpublic support, to fund additionalprojects of importance to Wales.

Findings

In the light of the analysis in this chapterour findings are as follows:

■ the arrangements for financingdevolution provide the WelshAssembly Government withsubstantial budgetary freedom;

■ there are concerns about theadequacy of the devolved Budget butit has still been possible for policyinnovation to take place;

■ alternative methodologies forcalculating the devolved Budgetwould require the agreement of theUK Government and the devolvedadministrations – we are not in aposition to evaluate the options ortheir implications for Wales;

■ if a legislative Assembly isconstituted it is desirable, though notessential, to confer tax varyingpowers;

■ if a tax-varying power is to begranted, the most practicable methodappears to be that of the Scottishvariable rate.

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9Oral evidence of John Swinney MSP, Leader of the Scottish National Party, Shadow First Minister of the ScottishParliament, and Alex Ferguson MSP, February 2003.

10Written evidence of the Scottish Finance Minister, February 2003.

11National Assembly Advisory Group, Report to the Secretary of State for Wales, August 1998, paragraph 7.10.

12Oral evidence of Nick Bourne AM, Leader of the Welsh Conservatives, 28 February 2003.

13Colin Talbot and Carole Johnson, Budget Setting and Financial Scrutiny: Experiences in Devolved/RegionalGovernments (Scottish Parliament, 2003).

14Public Expenditure Statistical Analyses 2003 (H. M. Treasury, Cm 5901, 2003), Table 8.6b.

15These figures are derived from an analysis of identifiable expenditure across both devolved and non-devolvedservices. The latest published figures for comparable expenditure within the devolved 'block' Budgets wereprovided by the Treasury in 1998. These figures suggest that, in 1995-96, 'block' spending per head in Waleswas 25% higher than comparable spending in England. The differentials for Scotland and Northern Ireland werehigher; being 32% in both cases. Source : The Barnett Formula (Treasury Committee, Session 1997-98: SecondReport, HC 341, and Fourth Special Report, HC 619), Appendix II, paragraphs 7-10.

16Including the evidence of Plaid Cymru, the Welsh Liberal Democrats, and the Institute of Welsh Affairs.

17Oral evidence to the Select Committee on the Constitution, Session 2001-02. Devolution: Inter-Institutionalrelations in the United Kingdom, HL Paper 147, 148-157.

18Professor Iain McLean, Memorandum to the Select Committee on the Constitution, Session 2001-02,Devolution: Inter-Institutional relations in the United Kingdom, HL Paper 147, 422-427; R. Ross MacKay,‘Barnett Squeeze’ Agenda, Winter 2003/04, 24-27.

19Oral evidence, 5 December 2003.

20The Government's Response to the Second Report of the Select Committee on the Constitution, HL Paper 28, Cm5780, Session 2002-03.

21Government Expenditure and Revenue in Scotland, produced annually by the Scottish Office until 1999 and bythe Scottish Executive thereafter.

22Welsh Office, Government Expenditure and Revenue - Wales 1994-95 (Welsh Office, January 1997).

23Response to Parliamentary Question by Alex Salmond MP. Official Report, 13 Jan 2003, Col 426W.

24Written evidence of Denzil Davies MP, July 2003.

25Devolution in Context: regional, federal and devolved government in the European Union, (London: Cavendish,2002).

26Ibid. Page 211.

27Oral evidence of the Rt. Hon. Jim Wallace QC MSP, Deputy First Minister, Scottish Executive, 12 February 2003.

28Scotland's Parliament, (Cm 3658, 24 July 1997), Paragraph 7.12.

29Funding the Northern Ireland Assembly: Assessing the Options (Northern Ireland Economic Council, March2003), 55.

30'Effects on the Scottish Parliament's tax varying powers - statement regarding Section 76 of the Scotland Act1998', following Table 1.3 of The Financial Statement and Budget Report March 1999 (H.M.Treasury).

31Letter from Alison Jackson, Head of the Wales Office to the Secretary of the Commission, 30 July 2003.


33Scottish Parliament Official Report, 24 June 1999.

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34Section 76 of the Scotland Act 1998.

35Royal Commission on the Constitution 1969-1973, (London: HM Stationery Office, 1973), Chapter 15: ThePublic Finance of Devolution.

36Vernon Bogdanor, Devolution in the United Kingdom (Oxford University Press, 1999), 85-86.

37Written and oral evidence, February 2003.

38Oral evidence from the Rt. Hon. Ron Davies AM on 26 September 2002, Rt. Hon. Rhodri Morgan AM, FirstMinister, on 12 December 2002 and Kevin Brennan MP on 25 July 2003.


40Paying for Progress - A New Politics of Tax for Public Spending (Fabian Society, 2000), 10-11.

41Your Region, Your Choice: Revitalising the English Regions (ODPM, Cm 5511, 2002), 5.6.

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chapter 11: the cost of devolution



■ how do the actual costs compare withthe forecasts provided in A Voice forWales?1

■ what are the components of theadditional costs incurred since 1999?

■ what are the likely costs of possiblechanges in the future?

3. As in Scotland and Northern Ireland,the costs of devolution were met fromwithin the devolved Budget, under thefinancial arrangements discussed inChapter 10. No additional resourceswere provided by the UK Governmentto meet the cost of the new Assemblyand executive structure.

4. In July 1997, A Voice for Walesestimated the additional costs of theAssembly as ‘in the range £15-20million, in addition to the running costsof the Welsh Office of around £72million a year.’ In October 1997, theWelsh Office employed 2,321 staff andwas responsible for a budget of £6.5billion (1997-98 out-turn).

5. The total running costs of the NationalAssembly for Wales and the WalesOffice in 2002-03 were £177 million.This includes the salaries of allAssembly Members and their supportstaff, civil servants, accommodation, ITand all associated costs. In 2003 the

Assembly was responsible for a budgetof £9.7 billion (2002-03 estimatedout-turn).

6. The breakdown of these costs is shownin Table 11.1.

7. This shows that the running costs ofdevolved central government in Walesin 2002-03 was £105 million more(146%) than the running costs of theWelsh Office in 1997. The NationalAssembly for Wales and the WalesOffice employed 3,777 staff in 2003,an increase of 1,456 (63%) over theWelsh Office total in October 1997.

8. This increase has a number of differentcomponents, not all of which can beattributed to devolution, either directlyor indirectly.

9. Part of the increase, £34 million, isdue to the absorption into theAssembly of a number of ASPBs andother bodies such as Tai Cymru(Housing for Wales) and the CareStandards Inspectorate – the ‘MergedBodies’ column in Table 11.1. Therunning costs of these bodies werepreviously outside the centraladministration budget. They werebrought into the Assembly in order toachieve economies of scale in centraloverheads, as well as other gains inefficiency and accountability.

The cost of devolutionThis chapter examines the costs of devolved government in Wales sincethe establishment of the Assembly, and the implications of possiblefuture development.

216

10. If these merged bodies are excluded,the total cost which is broadlycomparable with the centralgovernment responsibilities of theWelsh Office in 1997 is £143 million –more or less double the costs in 1997in cash terms. Adjusted for inflation,the increase is 75% as shown in Table11.2 below.

Cost of devolved government since theestablishment of the Assembly

11. In seeking to analyse the cost ofdevolved government, it is possible firstto identify the running costs of the newstructures put in place by theGovernment of Wales Act, including thenew elected Assembly and its PresidingOffice, as well as the ExecutiveCommittee (the Cabinet) and itsSecretariat.

12. The Presiding Office (in March 2003)directly employed 251 staff (employedin such areas as Research and

Committee Services, Record ofProceedings, Human Resources,Finance, Public Information andEducation and the Table Office). SomePresiding Office services such as OfficeFacilities Management, Reception andSecurity are also provided to theCabinet Secretariat and the TranslationService, which is within the PresidingOffice, does about two thirds of its workfor the Welsh Assembly Government.

13. The Presiding Office budget also coversthe salaries and allowances of the 60Assembly Members and their supportstaff; this amounted to £8 million in2002-03. The total cost in 2002-03was £23 million which included theone-off capital cost of £1.5 million topurchase the Pierhead Building.

14. In March 2003, the Cabinet Secretariatemployed 68 staff, including theMinisters’ Private Offices, and in 2002-03 cost £3 million (this does not



Table 11.1: Central administration costs of central government in Wales 2002-03a

Wales National Assembly for Wales TotalOffice

Presiding Cabinet Merged OtherOffice Secretariat bodies

Staffb 48 251c 68 584 2,826 3,777

£ million 3 23d 3 34 114 177Notes

a. Source: Welsh Assembly Government, Finance Group.

b. March 2003.

c. Civil servants working in the Presiding Office: excludes elected Members and their support staff.

d. Includes the cost of Members and their support staff as well as a number of costs incurred on behalf of theWelsh Assembly Government for example translation and accommodation costs.

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include Cabinet Ministers’ salarieswhich are paid from the PresidingOffice budget).

15. Added together, the cost of thePresiding Office and the CabinetSecretariat in 2002-03 was £24.5million (excluding the capital cost ofthe Pierhead Building). This is roughlythe same as the estimate provided in AVoice for Wales of £15-20 million –which, adjusted for inflation, would be£17-23 million.2

16. This broad comparison aims to put intocontext the figures in A Voice forWales. It does not take account of thecost of the pre-1999 Secretary of Stateand junior Ministers’ private offices –whose functions have been taken overpartly by the Cabinet Secretariat andpartly by the Wales Office.

17. The cost of devolved government hasincreased by considerably more thanthe cost of the Government of WalesAct structures – as discussed below.

Capital costs

18. In addition to running costs, A Voice forWales estimated one-off capital costs ofdevolution at £12-17 million. Thelatest estimated cost of the newAssembly building is £41 millionexcluding VAT and fees. This is adecision taken since devolution forwhich the Assembly itself isaccountable. It illustrates a furtherdistinction which needs to be drawnbetween:

■ the costs of the devolution processitself;

■ decisions of the devolved bodies sincedevolution.

19. In the case of the new building, therequirement for a permanent home canbe seen as an unavoidable cost ofdevolution but the specification of thebuilding itself is not.

20. This distinction is also relevant to theevaluation of trends in the cost ofdevolved government – but it is amatter of judgement where the formerends and the latter begins.

Costs of executive government sincedevolution

21. Table 11.1 shows that since devolutionthere has been a considerable increasein the cost of running the executivearm of the National Assemblycompared with the cost of the WelshOffice, over and above the direct costsof the new Assembly and Cabinetstructures. These increases aresummarised in Table 11.2.

How far can the current cost of theWelsh Assembly Government beattributed to devolution?

22. In a number of respects, devolution hascontributed to additional costs for theexecutive arm of the Assembly overand above the cost of the CabinetSecretariat. These include:

■ the general increase in policy andadministrative activity needed toimplement the priorities of theAssembly, including a nine-MemberCabinet, produce papers and briefingfor the Committees and deal withconstituency queries from 60Members;

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■ the costs of new tasks, functions andpolicies such as the Wales EuropeanFunding Office, the CommunitiesDirectorate, the SustainableDevelopment Unit, the EqualitiesUnit, the Youth Policy Team etc.;

■ a greater emphasis on consultationand engagement in formulating andimplementing new policies – since1999 the Government andCommittees have issued over 440consultation documents;3

■ the aspiration to formulate newpolicies tailored to Welshcircumstances and to rely less onadapting Whitehall policies;

■ enhanced legal expertise needed tointerpret and implement thedevolution settlement.

23. This increased activity was a strongtheme in evidence to the Commission– witnesses emphasised the rangeand ambition of the Assembly’s policyagenda. In general this waswelcomed but the costs ofparticipating in these processes werehighlighted as well.

24. It is clear from the evidence that thecreation of the Assembly has led to amuch more wide-ranging policyagenda, both in terms of content andthe consultative processes followed.This was underestimated in A Voicefor Wales – its estimates would reallyonly cover the new structuresrequired by the Act (paragraph 15above). The White Paper did notanticipate the cost of thetransformation of policy ambitionwhich would follow the creation ofthe Assembly.

25. However, had devolution notoccurred, it seems highly unlikely thatthe running costs of the Welsh Officewould have remained at the level theywere in 1997. It seems reasonable tosuppose that at least some of theareas mentioned in paragraph 22above might have been the subject ofpolicy development had the previousmodel of administrative devolutioncontinued post 1997.



Table 11.2: Cost of devolved central government in Wales in 2002-03 compared withWelsh Office costs in 1997-98, adjusted for inflation

% total excluding excluding merged bodies,increase merged CabSec, Presiding Office

bodies

Cash 116% 75% 43%

Staff 63% 38% 24%Source: Welsh Assembly Government Finance Group.

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26. This is supported by trends inWhitehall departments over this periodas shown in Table 11.3. These figuresneed to be treated with cautionbecause they are influenced bymachinery of government changes,such as the transfer of centralgovernment functions to executiveagencies. With that caveat, theyconfirm that the period since 1997-98has been a period of growth inWhitehall’s administration costs.

Wales, Scotland and Northern Ireland

27. The Commission sought comparisonsof the cost of the devolved bodies: thefigures available are set out in Table11.4 below.

Table 11.3: Comparison in trends in gross administrative expenditure between theNational Assembly and Whitehall Departments, not adjusted for inflation

1997-98 1998-99 2002-03 % 2002-03 % 2002-03£ million £ million £ million 1997-98 1998-99

National 72a 82b 117b + 63% + 43%Assembly

Roughly n/a 2,040d 3,021d n/a + 48%comparableWhitehalldepartmentsc

Total all 13,246e 14,197d 19,788d + 49% + 39%UK civildepartments

Notes

a. Source: A Voice for Wales.

b. Source: Welsh Assembly Government Finance Group.

c. Education; Health; Transport, Local Government and the Regions, Office of the Deputy Prime Minister;Trade and Industry; Environment, Food and Rural Affairs; Culture, Media and Sport.

d. Source: Public Expenditure Statistical Analyses 2003 (H. M. Treasury, Cm 5901, 2003), Table 5.1.

e. Source: Public Expenditure Statistical Analyses 1999-2000 (H.M. Treasury, Cm 4201, 1999), Table 5.5.

Table 11.4: Central administration costsof devolved government in the UK

2002-03 Elected body Government£ million £ million

Wales 23a 151a

Scotland 50a 205b

Northern 39a 719c

IrelandNotes

a. Source: Welsh Assembly Government FinanceGroup.

b. Source: the Administration Outturn Statement inthe Scottish Executive Consolidated ResourceAccounts for the year ended 31 March 2003 -laid before the Scottish Parliament, December2003.

c. Source: ‘Building on Progress: Northern IrelandDepartments Budget 2002’, p64.

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28. It has been stressed to us that it is notpossible to make inter-countrycomparisons between the figures inTable 11.4. This is because of majordifferences both in the coverage of thedevolved services and in the extent towhich they are administered directly orby executive agencies.

29. For example:

■ in Northern Ireland, devolved servicesinclude social security, which is notdevolved in either Wales or Scotland;

■ the equivalent of most of theexpenditure incurred by localauthorities in Wales and Scotland iscarried out by Northern Irelanddepartments;

■ in Scotland, central administrationcosts include functions such aspolicing, which is not devolved ineither Wales or Northern Ireland;

■ in Wales, central administration costsinclude functions such as theregulation of social housing and theinspection of care standards which inScotland are carried out by executiveagencies and not included in centraladministration costs.

30. To produce like-for-like figures wouldrequire a detailed study extendingbeyond our terms of reference.

The cost of primary powers

31. Chapter 13 sets out a model forlegislative devolution to Wales. It isimpossible to forecast precisely whatthis would cost – it would depend onthe scale and complexity of thelegislative programme and the numberof Assembly Members required to carryout legislative scrutiny. The cost would

be shared by the Welsh AssemblyGovernment and the Assembly’sPresiding Office.

32. Recognising these uncertainties, theCommission sought information on thepossible costs of managing in Cardiff alegislative programme of around sixaverage-sized Bills a year, on theassumption that 20 additionalMembers would be needed (seeChapter 12).

33. Based on the information provided bythe Assembly Government and thePresiding Office, the direct cost couldbe of the order of £10 million in eachyear as summarised in Table 11.5. Wehave not assumed any offsettingsavings in the Westminster process.

The Welsh Assembly Government

34. The main cost would arise from theneed to provide Bill Teams to managethe legislation from the policyinstructions stage through toresponding to amendments andbriefing Ministers. Costs would dependon the scale of the programme and theapproach adopted to managing it:Table 11.5 assumes separate Billteams as well as a legislationmanagement unit – at a cost of about£2 million. This does not include anexpansion of the policy capacity of theadministration – see below.

35. It is possible that, with extensive pre-legislative scrutiny and a smoothlymanaged timetable, the programmecould be managed centrally at a lowercost than this. But in the absence offuller information, we felt it prudent to



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assume that the Welsh AssemblyGovernment would continue with itsexisting practice of separate Bill Teamsand Table 11.5 reflects this.

36. In addition, based on experience inScotland, it seems reasonable toassume that the cost of ParliamentaryCounsel would add a further £0.5million.

The Presiding Office

37. The main costs would arise fromincreasing the size of the Assembly bya further 20 Assembly Members.Based on the average cost of anAssembly Member in 2002-03(£137,733), and allowing foroverheads such as accommodationand IT, the cost of 20 additional AMscould be around £5.5 million a year.These costs would arise simply fromthe expansion in number of Members.

However, primary legislation wouldresult in other costs – legal advice,enhanced Research and CommitteeServices, translation, transcription andpublication costs – which mightincrease this to around £7.5 million a year.

Evaluation of possible costs

38. The figures in Table 11.5 are anestimate of the direct costs ofhandling a programme of primarylegislation in Cardiff with anAssembly of 80 Members. Theyassume that the main burden of theadditional work would fall on thePresiding Office, as a result of thecost of the additional Members, andthe cost of the scrutiny andamendment of primary legislation.They also include costs of draftingand Bill management which wouldfall on the Assembly Government.

Table 11.5: Potential costs of handling primary legislation in Cardiff

Costs of handling primary legislation £ million

Welsh Assembly Government:

Bill Teams x 6 (administrators and lawyers) 1.7Legislation co-ordination unit 0.25Parliamentary Counsel 0.5

Total Welsh Assembly Government 2.45

Presiding Office:

20 AMs (salaries, pensions, support staff, travel) 2.7520 AMs (accommodation, IT) 2.75Other (Committee staff, verbatim record, research, 2.5translation, lawyers, publication costs)

Total Presiding Office 7.5

Total Assembly 9.95

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39. These figures do not include anestimate of the potential increase inthe administrative workload as a resultof responding to 20 additionalMembers, nor do they quantify thecost of a further increase in policyambition which could follow extendedpowers. Experience suggests that thereis a real danger of underestimatingthis, but there is also a risk that itcould be overstated.

40. This potential impact on future policyambition is a matter of judgementwhich cannot be quantified. Theevidence shows that the AssemblyGovernment does now have thecapacity to initiate legislative proposalsacross the policy portfolios. There willcertainly be pressure to do more if thescope of the powers is increased – butwe do not think the impact need beanything like as dramatic as the effectof the crucial first step of introducingan elected body in 1999. This wouldbe a choice for future administrationsto make and defend.

41. Accordingly we felt it right to limit ourestimates in Table 11.5 to theadditional costs which are theunavoidable consequences of ourrecommendations, bearing in mind thatboth the policy and scrutiny capacity ofthe Assembly is likely to continue togrow within the existing settlement.

42. An increase of £10 million wouldrepresent an increase of 6% in theAssembly’s 2002-03 centraladministration costs budget(£174million), and about 0.1% of theAssembly’s devolved Budget in thatyear (£9.7 billion).

Findings

In the light of the evidence in thischapter our findings are as follows:

■ the overall cost of devolvedgovernment in Wales has increasedconsiderably since the Assemblycame into being and has been metfrom within the overall Budget forWales under the arrangementsdiscussed in Chapter 10;

■ the costs have been considerablymore than foreseen in A Voice forWales, which seems to haveanticipated only the direct costs ofthe new structures;

■ but the increase in centraladministration costs are not due todevolution alone – many policydevelopments would probably havebeen initiated by a post-1997Welsh Office, as borne out bygrowth in comparable departmentsin Whitehall in this period;

■ some of the additionaladministrative costs are due to thebenefits perceived from devolution– more responsive and transparentprocesses and the design andimplementation of policiesdesigned to meet Welsh needs;

■ the infrastructure needed tosupport an elected Assembly withsecondary legislative powers isnow in place, along with asubstantially expanded policycapacity;

■ if further powers are granted, someadditional direct costs areunavoidable – in both theAssembly Government and thePresiding Office;



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■ experience suggests that therecould also be other indirect costsdue to new policy development andadditional pressure from theincrease in Membership;

■ however, there is no reason why thegrowth in costs should replicate the‘step change’ expansion which tookplace when the Assembly replacedthe Welsh Office;

■ the direct increase in costs is likelyto be in the order of £10 millionper year – of which around halfwould be due to an increase inAssembly Members from 60 to 80.

Notes

1A Voice for Wales, Cm 3718 (London: The Stationery Office, July 1997).

2Source: Welsh Assembly Government Finance Group.

3As at 10 February 2004. Source: Welsh Assembly Government Finance Group.

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225

chapter 12: the electoralarrangements


2. The issues addressed include:

■ whether the present electoral systempermits the election of an Assemblywhich is appropriately representative ofWales;

■ whether any changes would be neededif the Assembly were to acquire furtherpowers.

Whether the number of Assembly Membersis adequate to discharge the Assembly’spresent role is discussed in Chapters 4 and 14.

3. We issued a consultation paper on theelectoral arrangements in March2003. This included the followingpossible definitions ofrepresentativeness:

a. the close identification between anindividual elected Member and thearea represented;

b. the match between seats won andvotes secured in the election;

c. the similarity between thecharacteristics of AMs and those ofthe electorate;

d. the extent to which differentinterests in Wales are representedin the Assembly;

e. the extent to which Members’ policypriorities represent the concerns ofthe people of Wales.

Evidence received on the electoralsystem

4. Most of the concerns expressed inevidence focused on the first point –the role of AMs and their relationshipwith their constituencies. The ElectoralReform Society and the Parliament forWales campaign argued for changingthe system on grounds of voter choiceand participation. In relation to pointsc. and d. the major issue raised withus was the lack of representation ofminority groups in the Assembly.

The Commission’s approach

5. We decided to approach the electoralsystem by addressing the followingquestions:

■ what are the advantages anddisadvantages of the present electoralsystem?

■ can the present system be used tocreate additional Members if they arerecommended?

■ what realistic alternatives (if any) arethere to the present system?

6. In evaluating the different systems, wehad in mind the followingconsiderations:

■ the impact on proportionality – howthe representation of parties in theAssembly under each systemcompares with their support amongstthe electorate;

The electoral arrangements This chapter considers the second part of the Commission’s terms ofreference dealing with the Assembly’s electoral arrangements.

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■ boundaries - whether the electoralboundaries required for each systemare meaningful for local people,and/or match those for otherelections;

■ equal opportunities – the likelihoodthat under-represented groups wouldbe selected as candidates and/or beelected;

■ the connection between Members andvoters;

■ clarity of each system – how easilyunderstood by the electorate;

■ possible impact on voter choice andturnout – incentives for parties tocampaign and for electors to vote;

■ the implications of each system formajority or coalition government.

Main features of electoral systems

7. A summary of the features of the mostcommonly used voting systems is inTable 12.1.

Independent Commission onProportional Representation

8. Our report has been prepared overmuch the same period as that of theIndependent Commission onProportional Representation chaired byProfessor David Butler and PeterRiddell which is due to report inMarch 2004. That Commission hasreviewed experience of PR votingsystems in the UK. The introduction toits report points out:

There is no single ideal electoralsystem. Different systems areassociated with providing a strong andstable executive; representation of

minority interests; proportionality inthe relationship between the share ofvotes cast and the balance of partyrepresentatives elected; a clear linkbetween the voter and theirrepresentatives.1

The AMS system

9. The present system for electing theAssembly is the AMS system. This is aform of proportional representationwhich was developed for use in theFederal Republic of Germany after theSecond World War. It attempts tocombine, in a single voting system,features of the First Past the Post(FPTP) and the Party List systems. Theobjective is to retain the clear linkbetween a representative and his orher electoral area and, at the sametime, provide a mechanism tocompensate for the lack ofproportionality which usually arisesfrom elections conducted entirelyunder FPTP.2

10. The Assembly has 60 Members, 40elected by FPTP to represent singleMember constituencies, with thesame boundaries as for theWestminster Parliament, and 20elected from party lists to representfive regional constituencies of fourMembers each.3 There are separateballot papers for the localconstituency and for the regional list.Regional list Members are elected foreach region from closed party lists inproportion to the votes cast in theregion for each party in the second(list) ballot, after taking into accountthe seats gained in that region byeach party in the first ballot.



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Table 12.1: Electoral systems: definitions and key features

System Description Features Where used

FPTP First Past ■ one or more candidate(s) Westminsterthe Post per constituency US Congress

■ candidate(s) with most Canadavotes win(s) Indian Parliament

Local government: England and Wales,USA, Canada and India

AV Alternative ■ voters rank candidates Australian House ofVote 1,2,3 Representatives

■ same as FPTP if candidate Presidency of Irelandwins 50%+ of first preference votes

■ if not, candidate with leastvotes eliminated and votesredistributed to next-rankedcandidate till one candidatewins absolute majority

SV Supplementary ■ same as FPTP if candidate To elect Mayor of LondonVote wins 50%+ of vote

■ If not, all candidates except two highest scoring are eliminated

■ second preferences redistributed between first two until overall winner elected

AMS Additional ■ combines constituency Germany, New Zealand Member System (FPTP) and party list Parliament, London

■ two separate ballots and Assembly,two types of Member Scottish Parliament,

■ allocation of list seats takes National Assembly foraccount of FPTP results Wales

■ ratio of constituency to list Members varies in each country

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Table 12.1: Electoral systems: definitions and key features (continued)

System Description Features Where used

AV+ Alternative Vote ■ combines AV in single Not used but plus Member constituencies recommended by

and party list Jenkins Commission for■ two types of Member House of Commons■ allocation of list seats

as AMS

STV Single ■ multi-member Republic of IrelandTransferable constituencies Australian SenateVote ■ voters rank candidates Northern Ireland

1,2,3 etc (Assembly, local ■ voters can vote for government and

candidates across parties European Parliament)■ candidates who achieve

quota are electeda

■ votes above or below quota are redistributed until required number of candidates elected

Party list ■ multi-member seats Belgium (nationalsystem ■ voters cast single Parliament) Israel

vote for a party list France, Spain, Belgium,(closed list system) Italy (European

■ parties rank candidates Parliament)in order

■ seats allocated to the parties in proportion to votes gained

■ generally party lists are closed but open lists (where voters can chooseamong candidates withina party’s list) are possible

Note

a. The quota is the total number of valid votes cast in the constituency, divided by one more than the numberof candidates to be elected, and then add on one vote.

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11. The AMS system was put in place bythe Government of Wales Act and wasan integral part of the devolutionproposals, as explained in A Voice forWales:

The electoral system will reflect thediversity of modern Wales and ensurefair representation for all areas andparties.

Electors will have two votes – one for acandidate for their local constituencyand another for a party list. Thisretains local constituencies whilegiving a strong element of proportionalrepresentation.4

12. Proportional systems were alsointroduced for the other devolvedbodies. Scotland has the same systemas Wales, except that the balance oflist seats is greater, producing a moreproportional outcome. The Assembly inNorthern Ireland is elected by STV(which has been used in the provincefor local council elections since 1973and for European elections since1979). Table 12.2 shows the size andelectoral system of each devolvedbody.

13. The proposal that the Assembly shouldbe elected by means of a proportionalsystem was linked to the aim to createa more inclusive form of politics inWales and to secure the backing of theother pro-devolution parties in Wales.5The AMS system was agreed as thebasis for electing the Assembly by theWelsh Labour Party Conference in1997.6

14. Ron Davies told us that the STVsystem of proportional representationwas also considered by the Labourparty in the mid-nineties but was ruledout on practicality grounds:

One of the issues that we consideredway back in 1995-96 was thequestion of multi-memberconstituencies, of creating newconstituencies. Had we done that ofcourse we would have had to havehad a Boundary Commission and thatprocess would have taken forever anda day and that would have frustratedour overall political timetable. So wehad to settle on the existingconstituency arrangements,parliamentary constituencies andEuropean Constituencies.7

Table 12.2: size and electoral systems of devolved bodies

UK Devolved Constituency Regional Total Ratio Ratio Bodies Members Members Members FPTP: List Member:

population

Wales 40 20 60 67%:33% 1: 48,600

Scotland 73 56 129 57%:43% 1: 39,200

Northern Elected by STV system 108 n/a 1: 15,700Ireland

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Experience of the AMS system inWales

15. Two Assembly elections have beenconducted under the AMS system.Table 12.3 below shows the share ofvotes cast for each of the parties(averaging the votes from the 1st and2nd ballots) and compares this withthe proportion of seats gained.

16. The experience of AMS so far suggeststhat the system has a number ofadvantages and disadvantages whichare summarised below.

Advantages of AMS

17. The main advantages are:

■ the single Member constituencyrepresentation, elected by FPTP, isfamiliar and straightforward;

■ the constituency boundaries are thesame as those at Westminster;

■ a broadly proportional result isachieved by the combined effect of theconstituency and regional ballots.

Disadvantages of AMS

18. The main disadvantages are:

■ it creates two types of AM withoverlapping responsibilities: the singleconstituency Member and the regionalMember who is one of fourrepresentatives covering the regionwhich includes the constituency; in thepresent Assembly all Labour AMs areconstituency Members and two-thirdsof opposition AMs are regional listMembers;

■ the freedom for candidates to stand forboth constituency and party regionalseats is seen as a weakness(paragraphs 21-23 below);

■ the constituency element may be seenas disproportionately large and,because of the 40:20 split, the overall

Table 12.3: Comparison of the parties’ share of seats with their share of votes cast inthe 1999 and 2003 elections8

Party 1999 2003

Votes gained Seats won Votes gained Seats wonas % of votes as % of total as % of votes as % of total

cast seats cast seats

Conservative 16.2 15.0 19.5 18.3

Plaid Cymru 29.5 28.3 20.5 20.0

Labour 36.5 46.7 38.3 50.0

Lib Dems 13.0 10.0 13.4 10.0

Total 95.1 100 91.7 98.3a

Note

a. The John Marek Independent Party secured one seat.

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result favours the largest party. (Thehigher the proportion of constituencyseats, the lower the proportionality. InWales, the constituency seats comprise67% of the total compared with 57%in Scotland, 50% in Germany, and56% in the London Assembly);

■ the closed party list system reducesvoter choice in favour of party control.Parties choose the candidates anddetermine their priority order on the list;

■ studies suggest that regional Membershave less direct contact withconstituents than do constituencyMembers;9

■ there is some evidence that people donot understand the dual-voting system,particularly the relationship betweenthe first and second vote;

■ since regional AMs are elected torepresent voters whose preferred partywas unsuccessful in the first ballot,there is little incentive for the parties tocampaign in safe seats – whichinfluences the level of public interestand turn-out;

■ in the first (FPTP) ballot, votes arewasted in the sense that either theyare cast for losing candidates or theycontribute to excessive majoritieswhich give no further advantage to thewinning candidates and their parties.FPTP as a system favours contestsbetween two parties, but in Waleswhere there are four major parties, amajority of votes can be 'wasted'.10

Options for reforming AMS

19. We received a number of suggestionsfor adjustments to the AMS system to

address these concerns. The maincandidates were:

■ introduce protocols to regulatecompetition between list andconstituency AMs – this would coversuch issues as rights to claim torepresent a constituency and locationof constituency offices;

■ replace the regional list with a nationallist – this would be designed to reducecompetition since regional listMembers would have no geographicalconstituency beneath the all-Waleslevel. It would also produce a moreproportional result by taking out thedistortions produced by the existenceof regional boundaries;

■ limit candidates to one ballot – eitherthe constituency ballot or the regionallist ballot – to remove the possibilitythat a candidate could ‘lose’ in theconstituency and still be elected as aregional Member;

■ replace the two ballot paper systemwith a single ballot – the List systemwould operate as now except thatregional seats would be allocatedhaving regard to each party’s share ofthe total vote throughout the region forconstituency candidates and takingaccount of the constituency seats wonin the region;

■ replace the closed party lists with anopen list – voters could vote for theirpreferred individual candidate from theparty list;

■ allocate the regional seats to thoseregional candidates who poll the mostnumber of votes in the constituencyballot.

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20. These proposals raise problems of theirown, and all except the first, wouldrequire an amendment to theGovernment of Wales Act:

■ the evidence from Scotland suggeststhat protocols are difficult to enforceeffectively – there are stronglycompeting perspectives on the properrole and status of different types ofMember;11

■ creating a national list couldexacerbate rather than reduce the gapbetween the two type of Member –regional representation for example inNorth Wales or West Wales could belost but the two-tier Member issuewould not have been resolved;

■ preventing candidates from standing inboth regional and constituency ballotsmight mean that regional candidateswould do no active campaigning andthe parties would be deterred fromfielding strong candidates in marginalseats (preferring to keep them on theList) thus reducing voter choice;

■ the proposal to prevent candidates fromstanding in both ballots is based on thepremise that a candidate defeated inthe constituency ballot has beenrejected by the electorate – this is notnecessarily the case, particularly wherecandidates come a close second;another view is that the winningcandidate was simply preferred;

■ abolishing the separate second ballotmight simplify the system but it wouldmake it harder for very small parties tocompete because they would need tocontest every constituency seat;

■ replacing the closed party lists withopen lists might increase voter choicebut it might make it more difficult for

parties to take positive action topromote candidate diversity;

■ allocating the regional seats to regionalcandidates who poll the most numberof votes in the constituency ballotwould require all regional candidatesto stand as constituency candidates,which would again present problemsfor small parties.

21. Many of the concerns about AMS arisefrom the two categories of Member.The Electoral Reform Society confirmedthat:

AMS creates two categories of electedrepresentatives. This is an intrinsicdefect of additional member systems.Although in the Assembly constituencyand regional list Members have equalrights, there remains a perception thatlist seats are consolation prizes forparties which failed to winconstituency seats.

Constituency Members are viewed ashaving greater legitimacy asrepresentatives of issues in theirconstituencies, while regional listMembers are not regarded as localrepresentatives in the same way.

There have been accusations that ListMembers have concentrated theirenergies in constituencies in theirregions where there are futureprospects of winning constituencyseats. If the Welsh Assembly were toacquire greater powers, it must beanticipated that the tensions betweenlist and constituency AMs willincrease.12

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22. This is the source of the mostpersistent criticism of AMS:

How can it be right that under thesystem adopted candidates who aredefeated in the first-past-the-postballot can then be elected under theregional list ballot?13

Candidates use the list as aninsurance against failing to win aconstituency contest. This dualcandidacy can also confuse theelectorate, who may wish toconsciously reject a particularcandidate only to find them electedvia the list. It should remain a basicdemocratic right not to elect aparticular candidate.14

[In the May 2003 elections] no lessthan 17 out of the 20 AMs electedfrom lists were candidates who lostconstituency contests15

23. Adjusting the AMS system would notaddress this issue. It is possible thattensions could diminish over time asthe system becomes more familiar andentrenched (as in other countries – therivalry between constituency andregional Members does not appear tobe a problem in Germany and NewZealand, for example). However theparty distribution of the differentcategories of seats in Wales suggeststhat it may be optimistic to rely onbetter relations in the future.

Using the AMS system to elect a largerAssembly

24. If an increase in the overall size of theAssembly were desired, the simplest

way to achieve this would be toincrease the number of regional listMembers. For example, an Assemblyof 80 Members could be created byretaining the constituency link with theWestminster boundaries and findingthe balance of 40 from the fiveregional seats. This could be achievedwith no electoral system change,simply by adding to the number ofMembers selected from the lists ineach regional constituency.

25. This would double the number ofregional list Members and bring thebalance of constituency and list seatsto 50:50. Because each regionalconstituency would elect eightMembers from the regional lists,compared with four now, therepresentation of the parties would bemuch more closely aligned with theirshare of the vote. Thus, on presentvoting patterns, the prospect of asingle-party majority government in theAssembly would be reducedsignificantly.

26. In view of the problems inherent in thetwo categories of Member, we verymuch doubt that the AMS systemcould carry the weight of doubling theregional Membership. With sixtyMembers, and the constituencyMembership in the majority, it ispossible that the tensions coulddiminish. But if there weresubstantially more regional Members,the scope for competition andargument about their activities seemslikely to increase.

27. Accordingly, increasing the number ofMembers points strongly to changingthe electoral system. If such a change

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is in prospect, we do not think it wouldbe sensible to amend the AMS systemin the interim. This would rule outmodifications such as a national list.

Alternatives to AMS

28. If AMS is to be replaced there seem tobe only two feasible alternatives:

■ First Past the Post (or a variant of it) asthe basis for electing all AMs;

■ Single Transferable Vote (STV).

An Assembly elected by FPTP

29. In an Assembly elected by FPTP, allMembers would be elected by a simplemajority, i.e., the candidate with themost votes is elected. The mainadvantages of the system are: itssimplicity, the clear link betweenMember and constituency, andconsistency with the Westminster andlocal government systems.

30. Under FPTP, it would be possible toelect an Assembly of 80 Members byelecting two AMs for eachconstituency. The result would bemuch less proportional than under thepresent system. On the basis of thevotes cast in the first ballot of the2003 Assembly election – the largestparty would gain 75% of the seats,having secured 40% of the vote.

31. An alternative would be to create 80single Member constituencies electedby FPTP.16 This would involve a majorboundary re-drawing exercise, to createnew constituencies from the presentParliamentary constituencies whichvary enormously in size fromMeirionnydd Nant Conwy (33,742electors in 2003) to Vale of Glamorgan

(68,947 electors in 2003). The impacton the composition of the Assemblywould depend on how the boundarieswere drawn but again would be farless proportional than under thepresent AMS system.

32. This would have major implications foraccountability, scrutiny and debate inthe Assembly. Scrutiny is not thepreserve of opposition candidates – itis also a duty of Members who belongto the government party. Howeverthere is no doubt that reducing therepresentation of the smaller partieswould seriously weaken the capacityfor opposition and challenge. TheAssembly’s claim to represent Wales asa whole, as proposed in ‘A Voice forWales’, would be much diminished.

33. The relatively small size of theAssembly creates a very differentsituation from Westminster. TheGovernment majorities potentiallyavailable at Westminster under FPTPdo not rule out the election of sufficientopposition Members to make possibleeffective scrutiny. This would not bethe case in Wales.

The AV and SV systems

34. The same objection would apply to theAV and SV systems. These systemswork in the same way as FPTPprovided the winning candidateachieves 50% of the vote on firstpreferences.17 Where that is not thecase, votes are redistributed accordingto the order of preference indicated onthe ballot paper. Under AV, the votes ofthe least successful candidates areredistributed until a candidate passesthe 50% threshold and is elected.

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Under SV, all but the top twocandidates are eliminated and theirvotes re-distributed to achieve anoverall winner.

35. Simulations of the results ofWestminster elections suggest that AVand SV could be less proportionalthan FPTP. If voters voted as they didin the 1997 Westminster election, thesimulations suggest that these twosystems would have produced a lessproportional result than the actualoutcome, giving the largest party alarger majority than did FPTP.18 BothAV and SV can only be used in single-member constituencies (the multi-member version is STV). We do notbelieve that either SV or AV arerealistic options to replace the AMSsystem.

AV+

36. The AV+ system was recommendedby the Jenkins Commission forelections to the House of Commons. Itis similar to AMS except that theconstituency Members are elected byAV rather than FPTP. It offers noadvantages over the AMS system inthe Welsh context.

An Assembly elected by STV

37. The aim of the STV system is to givethe voter the widest choice possiblebetween candidates whilst eliminating,as far as possible, wasted votes.

38. The main features of STV are:

■ STV allows party-based voting withoutlimiting choice to candidates of asingle party. It is as concerned with

the election of individuals as with thechoice between political parties;

■ constituencies are multi-member andeach party or organisation can fieldmore than one candidate;

■ electors rank candidates in order ofpreference;

■ seats are allocated by quota system.The quota is used to calculate howmany votes a candidate needs to getelected. Those above quota areelected. Excess votes for the successfulcandidate(s) are reallocated to theirvoters’ next highest ranked candidate;

■ candidates with least support are alsoeliminated and their votesredistributed to their voters’ nexthighest ranked candidate.

39. The advantages of STV are as follows:

■ all elected Members are on an equalfooting – being elected the same way– and have the same constituencyresponsibilities;

■ it encourages a genuine contest inevery constituency;

■ multi-Member constituencies could becreated relatively easily by groupingWestminster seats, or by using localauthority boundaries (see paragraph47 below);

■ it is straightforward for voters tooperate: the system works smoothly inAustralia, the Republic of Ireland andNorthern Ireland (Table 12.1); theScottish Executive plans to introduceSTV for local authority elections inScotland and the system wasrecommended by the SunderlandCommission19 for use in localauthority elections in Wales;

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■ it maximises voter choice (betweencandidates of different parties or of thesame party, or candidates with noparty label) and the incentive to voteand campaign;

■ constituents have a choice of electedrepresentatives to approach withproblems;

■ few votes are wasted: voters knowthat their second preference will helpelect someone – should their firstchoice not be elected;

■ it creates opportunities forindependent candidates – because theelectorate vote for the individual, notnecessarily a party;

■ it creates opportunity for diversity(paragraphs 49-53 below);

■ more or less every vote counts equallyand the result is broadly proportional– but the degree of proportionality isaffected greatly by constituency size(paragraphs 44-46 below);

■ because individual Members do nothave ‘safe’ seats, STV increases theiraccountability to their constituency.

40. The disadvantages of the system are:

■ each constituency has severalMembers – the link between thesingle Member representative and theconstituency is removed;

■ it can introduce intra-partycompetition and factionalism –candidates in the same party have anincentive to compete against eachother in campaigns and forconstituency casework;

■ the size of constituency could be aproblem in rural areas;

■ if the size of constituency is verylarge, it can be too easy for quitesmall parties to get elected;

■ the counting system is relativelycomplex (as is the counting system forthe list seats under the AMS system) –although no real problems have beenencountered with this in eitherNorthern Ireland or the Republic ofIreland.

41. One of our members joined a group ofobservers of the Northern IrelandAssembly election on 26 November2003. This confirmed that voters haveno difficulty in understanding thevoting system and the requirement tospecify preferences. The system wasuniversally felt to be fair and thecounting system enjoyed theconfidence of all the parties.

The impact if STV were introduced forelections to the National Assembly

42. It is not possible to forecast theimpact of introducing STV on thecomposition of a future Assembly. Thesystem would require the creation ofnew constituencies and the outcomeof an STV election would depend onhow these were constructed and howvoters cast their first and subsequentpreferences.

43. Some argue that introducing STVwould necessarily produce anoutcome that is more proportionalthan the present system so that noparty would have an overall majority.Thus it is argued that STV wouldinevitably lead to a coalitiongovernment – which can be regardedas either a positive or negative featureof the system.

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44. This is not necessarily the case. Theoutcome of an STV election dependscritically on the size of constituencyand the number of Membersrepresenting each. An STV electionwith two or three Members perconstituency could produce anoutcome which favoured the largerparties more than the present AMSsystem. It is generally accepted thatproportionality is hard to achieve withless than four-member or five-memberseats.20

45. The larger the number of seats in anSTV constituency, the moreproportional the result will be acrossWales. However, the aim ofproportionality has to be balancedagainst the need for truly localrepresentation. For instance, a singlenational constituency comprising thewhole of Wales would produce analmost perfectly proportional result.However, it would be difficult toreconcile with the fundamentalprinciples of local representation andaccountability.

46. Thus we recognise it will be better tocreate smaller units in the knowledgethat it involves some loss ofproportionality. Some will regard thatas having a second advantage – tomake single party majoritygovernment more likely. Broadlyspeaking, the smallest unit sizefavours the larger parties. It meansthat votes for the smaller parties willbe redistributed in every constituencyto the largest, adding to the seats ofthose larger parties in the same waythat first past the post eliminates allexcept the single winner.

Creating STV constituencies

47. The balance between the twoobjectives: of creating electoral unitswhich reflect recognisedcommunities, and of proportionality,would, currently, be a matter for theBoundary Commission for Wales(BCW). However, the parliamentaryresponsibilities of the BCW are totransfer to the Electoral Commissionfollowing the current review ofparliamentary constituencies andAssembly Electoral Regions.Constituencies of between four andsix Members (and exceptionally ofthree Members in some areas) couldbe constructed to share boundarieswith Westminster (by linking two orthree constituencies). These numberscould be adjusted easily to reflect anychange in the number of Westminsterconstituencies. Constituencies ofbetween four and six Members (andexceptionally of three Members insome areas) could also beconstructed to share boundaries withlocal authorities.

The case for STV over AMS

48. Thus, on proportionality groundsalone, the choice between AMS andSTV is not clear-cut. In our view, themost important advantages of STVover AMS are three-fold:

■ all Members would have equal statusand share the same relationship withconstituents;

■ the majority of votes would count andthere would be no such thing as awholly safe seat – giving all the partiesan incentive to campaign in everyconstituency;

■ there are opportunities for greaterrepresentation of minority interests.

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The implications of electoral systemchange for diversity of representation

49. It is widely recognised that theAssembly’s electoral system hasachieved a more gender-balancedrepresentation than exists atWestminster, in the Scottish Parliamentor in any of the national parliamentsaboard who report their data to theInter-Parliamentary Union.21 Howevera number of witnesses expresseddisappointment at the failure, underthe present electoral system, toachieve better representation of ethnicminorities and people with disabilitiesin Wales and urged the Commission tomake recommendations to redressthis.

50. The Joint Committee for EthnicMinorities in Wales told us:

The Labour Party ‘zipped in’ five Blackand Minority Ethnic candidates to thefive list seats available throughoutWales [2003] but in spite of thisgallant and praiseworthy effort, theresult was still that there was not asingle Black/Asian candidate electedto the Assembly.

The answer lies in amendment to theAct which would encourage – orperhaps force – registered politicalparties to include Black/Asiancandidates on their lists at a levelwhere they stand a chance of beingelected.22

51. We considered this carefully butconcluded that the scope for electoralsystem change to solve this problem islimited. One remedy lies with the

political parties to ensure that thecandidates they put forward representadequately the range of interestsacross Wales – as has been achievedwith the increased representation ofwomen in the Assembly and in theScottish Parliament.23

52. Systems such as AMS and STV, whichrequire the parties to put forwardmore than one candidate, create anexpectation that the parties will offer abalanced slate of candidates and inthat sense should improve thediversity of candidates.

53. Under STV, individuals orrepresentatives of organisations canalso stand as candidates (for example,representing ethnic minorities orpeople with disabilities) withouthaving to compete and gain selectionwithin internal political partystructures.

Findings

Our findings on the electoral system areas follows:

■ the AMS system has a number ofadvantages – it has achieved itsobjective of ensuring that theAssembly represents all the majorpolitical parties in Wales;

■ inherent in the system is thecreation of two types of AssemblyMember – this is a problem that willnot be solved by adjustments toAMS;

■ if the Membership were to remain atsixty, this problem might not besufficient in itself to justify a changeof electoral system;

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■ however an increase achieved byraising the regional Membershipwould be likely to exacerbate theproblem – we do not think the AMSsystem could carry the weight of asuch an increase;

■ replacing AMS with the First Pastthe Post system would not bedefensible – it would reduce therepresentation of some parties to alevel well below their support inWales;

■ this would seriously weaken thecapacity for opposition and scrutinyin the Assembly, and would departfrom the arrangements for the otherdevolved administrations in the UK;

■ if the number of Assembly Membersis to increase we recommend that,on balance, the STV system ofelection is the best alternative to thepresent system;

■ the size and boundaries of the STVconstituencies will be a matter forthe Boundary Commission for Wales(see paragraph 47 above) – a rangeof four to six Members (andexceptionally of three Members insome areas) per constituency shouldmake possible a reasonable balancebetween local accountability andproportionality;

■ STV would maintain the principle ofproportionality and would not ruleout the possibility of majoritygovernment – if the electoratewished it;

■ our conclusions on the size of theAssembly are set out in Chapter 14.

Notes

1Changed Voting, Changed Politics, Lessons of Britain’s experience with PR since 1997, Report of theIndependent Commission to Review Britain's Experience of PR Voting Systems (The Constitution Unit, UniversityCollege, London, March 2004).

2'Introduction to the most widely known voting systems', prepared for Improving Local Democracy in Wales (Reportof the Commission on Local Government Electoral Arrangements in Wales), July 2002, and quoted in theRichard Commission consultation paper 'Electoral arrangements of the National Assembly for Wales', February2002.

3The five electoral regions are the five European Parliamentary constituencies in Wales provided for by theEuropean Parliamentary Constituencies (Wales) Order 1994.

4Welsh Office, A Voice for Wales, Cm 3718 (London: The Stationery Office, July 1997).

5Kevin Morgan and Geoff Mungham, Redesigning Democracy: the Making of the Welsh Assembly, Seren,Bridgend, 2000, 104 -106.

6Ibid., 107

7Oral evidence of Ron Davies AM, 26 September 2002.

8Source: House of Commons Research Paper 03/45, 14 May 2003.

9Changed Voting, Changed Politics, Lessons of Britain’s experience with PR since 1997, 64.

10For example, in the constituency contests on 1st May 2003: (i) Votes which ensured victory of the winningcandidate : 26.4%; (ii) Votes which contributed to unnecessary majorities : 20.8%; (iii) Votes cast for losing

candidates : 52.8%. Thus 73.6% of votes were 'wasted' in this sense. In the list contests, votes were alsowasted in that they were cast for parties which failed to win seats. (Written evidence of the Electoral ReformSociety.)

11J. Bradbury, O. Gay, R. Hazell, J. Mitchell, Local Representation in a Devolved Scotland and Wales: Guidancefor Constituency and Regional Members, Lessons from the First Term, (Economic and Social Research Council,2003).

12Written evidence of the Electoral Reform Society.

13Oral evidence from the Secretary of State for Wales to the Welsh Affairs Committee, June 2003.

14Written evidence from Dr Denis Balsom.

15Written evidence from the Electoral Reform Society.

16Oral evidence of Ron Davies AM, 26 September 2002.

17In 1999, seven constituency AMs gained over 50% of the votes (of which three were Labour and four PlaidCymru). In 2003, 15 constituency AMs gained over 50% of the votes (of which 11 were Labour, two PlaidCymru, one Welsh Conservative and one Welsh Liberal Democrats).

18Research by Patrick Dunleavy and Helen Margetts, 1998 - quoted in Changed Voting, Changed Politics, Lessonsof Britain’s experience with PR since 1997.

19Improving Local Democracy in Wales (Report of the Commission on Local Government Electoral Arrangements inWales, July 2002).

20'Report of Group of Academics' (Vernon Bogdanor, David Butler, John Curtice, Patrick Dunleavy, David Farrell,Ron Johnston, Iain McLean and Helen Margetts) chaired by David Butler - submitted to the IndependentCommission on the Voting System.

21House of Commons Research Paper 03/45, 14 May 2003.

22Oral evidence from the Joint Committee for Ethnic Minorities in Wales, 25 July 2003.

23Meg Russell, Fiona Mackay, Laura McAllister, 'Women's Representation in the Scottish Parliament and NationalAssembly for Wales: Party Dynamics for Achieving Critical Mass', in Journal of Legislative Studies, Vol 8, No. 2,Summer 2002.

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chapter 13: developing devolution inWales


Developing devolution in Wales Chapters 13 and 14 draw together the issues set out earlier in thereport and set out our recommendations on the way ahead fordevolution in Wales.

2. In developing our recommendations,our starting point was to define aclear vision of what we believe theAssembly’s role and purpose shouldbe.This is the vision we agreed.

Vision: the role of the Assembly

The Assembly is the democraticallyelected representative body for thewhole of Wales. The Welsh AssemblyGovernment should be able toformulate policies within clearlydefined fields, and should have thepower to implement all the stages foreffective delivery, in partnership withthe UK Government and otherstakeholders. The AssemblyGovernment should be able to set itsown priorities and timetables foraction. It should be accountable to thepeople of Wales through the electedAssembly for its policies and theirimplementation.

3. This seems to us to reflect theaspirations of the people of Wales foran Assembly that has a real job to doand has the powers to govern Walesin an effective way.

4. This vision is very much in line withthe UK Government’s principles forconstitutional change in the UK,namely:

■ enhancing the credibility andeffectiveness of public institutions;

■ strengthening democracy and publicengagement with decision-making;

■ increasing trust and accountability inpublic bodies.1

5. As Lord Falconer, Secretary of State forConstitutional Affairs, has said, ‘Theseare not abstract values, but values thathave an impact in everyday lives.’2

6. In recommending this vision, werecognise that there are a number ofpractical constraints on its realisation:

■ no tier of government in Europe isautonomous – each must operatewithin the framework of internationalcommitments, European governanceand the powers and responsibilities ofrelated tiers of government;

■ there are resource constraints on whatthe Assembly can and should aspire todo – it would not be desirable for it toreplicate the work of the UKgovernment or of local authorities.

7. This chapter describes the mainproposals made in evidence for thefuture development of devolution inWales, and considers theirimplications. In the final chapter, weset out our conclusions andrecommendations for the way ahead,to achieve our vision.

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The status quo

8. The first proposal to be considered isthat the devolution arrangements forWales should remain unchanged.Some who gave evidence argued thatthe current settlement is working well,and that more time is needed for thearrangements to bed in before the casefor further change can be properlyassessed. The key features of the statusquo are summarised in Box 13.1.

9. This route does not imply that thesettlement will be static. With noamendment to the Government ofWales Act, and no major change ofpolicy by the UK Government, thedevolution settlement is likely tocontinue to evolve as it has since1999. On the assumption that theWelsh Assembly and UK Governmentscontinue to be drawn from the sameparty, the momentum to broaden theAssembly’s powers through furthertransfers (following the precedentsdescribed in Chapter 9) is likely tocontinue. New legislation will continueto confer new powers on the Assembly,within the scope of each Bill; and thisprocess could be made more consistentwithout amending the Government ofWales Act 1998, for example, byincorporating aspects of the RawlingsPrinciples into the Devolution GuidanceNotes for Whitehall.3

10. Following the Welsh Affairs SelectCommittee report on the primarylegislative process, procedural changescould also be introduced to strengthenthe scrutiny in Westminster oflegislation affecting Wales, subject tothe practical constraints identified inthe UK Government’s response.4

11. In addition, some of the structural andprocedural barriers identified inevidence, such as the corporate bodymodel and the Assembly’s subordinatelegislation procedures, would remainunchanged unless the 1998 Act couldbe amended.



Box 13.1: The status quo

■ primary legislation for Walespassed at Westminster;

■ on average, one Wales-only Bill ayear, subject to UK Governmentagreement;

■ distinctive Welsh clauses inEngland & Wales Bills, byagreement with the UKGovernment;

■ more pre-legislative scrutinywhere practicable, allowing theAssembly to be consulted aheadof Parliamentary scrutiny of thefinal Bill;

■ potential for more collaborationbetween Assembly andWestminster on scrutiny ofprimary legislation – subject topractical and proceduralconstraints;

■ continuing evolution of thesettlement, with further powerspossibly being transferred on acase-by-case basis by agreementof the Assembly and the UKGovernment;

■ 60 AMs elected by AMS;

■ corporate body structure.

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12. The costs associated with the statusquo are evaluated in Chapter 11.Administrative cost pressures are likelyto arise from further transfer of powersproposals; for example, the staffrequired to implement the animalhealth powers are estimated to cost inthe order of £1.2 million a year(Chapter 9).

A new model of executive or framework-legislative powers

13. Another possibility would be for thepowers of the Assembly to developwithin the existing Government ofWales Act framework, but with muchbroader secondary legislative powers.5The objective would be to enable theGovernment in the Assembly to deliverits programme, but through specificpowers delegated to it by Parliament.

14. There are no formal legal orconstitutional rules that define whatshould be the subject of primary ratherthan secondary legislation. As theAssembly Counsel General observed,the current settlement depends ‘onwhat Parliament decides, on a measureby measure basis, shall be providedthrough primary legislation and whatthrough secondary legislation.’6Accordingly, the Assembly’s powerscould be strengthened within thecurrent settlement by including infuture primary legislation newframework provisions designed to allowthe Assembly to, for example, makethrough secondary legislation anychanges it wished within the fieldcovered by the Act. The aim would beto construct broad delegated powersthat reflect the democratic mandateand scrutiny powers of the Assembly.

15. There would be no need to amend theGovernment of Wales Act; the newapproach would be achieved, with theconsent of Parliament, by agreementbetween the UK Government and theWelsh Assembly Government.The UKGovernment would commit itself toframing Bills to bestow upon theAssembly the widest possiblelegislative competence within devolvedareas.

16. Parliament would also have to agreeto adopt a different view of powersdelegated to the Assembly (whichwould be very broad) compared withpowers delegated to Ministers inEngland. By convention, delegatedpowers are tightly constrained andsubject to scrutiny by the House ofLords Delegated Powers andRegulatory Reform Select Committee,which has generally taken the sameapproach in assessing theappropriateness of delegated powerswhether they will be given to UKMinisters or to the Assembly.7

17. There are precedents for a morepermissive approach to the Assembly’spowers: the Education Act 2002; andthe NHS Reform and HealthcareProfessions Act 2002 and the Health(Wales) Act 2003, which confer onthe Assembly powers to amendcertain primary legislation.8 Althoughthe powers granted under these Actsdo not give the Assembly the freedomto do anything it chooses within thescope of the Act, the two Health Actsin particular do confer some broadpowers on the Assembly to shapeNHS delivery in Wales.

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18. The key features of this model aresummarised in Box 13.2. Because it isan evolution of the current settlement,it does not require any amendment ofthe 1998 Act and therefore could beimplemented relatively speedily.Moreover, the additional flow oflegislation could be accommodatedbroadly within the Assembly’s existingcommittee structure – although therewould be capacity implications if theAssembly's powers were considerablyextended under this approach. WelshMPs in Westminster would continue tobe responsible for scrutinising primarylegislation affecting Wales andensuring that appropriate powers areconferred on the Assembly.

19. Nevertheless, the growth of theAssembly’s powers under this modelwould continue to depend on theagreements reached with Whitehalland Westminster on the scope ofpowers to be conferred in each newBill. In addition, the potential for broadpermissive powers would depend onthe scope of the primary legislation.

20. The cost would depend on the extentof the new permissive powers and howthey were used. If drawn in such away as to enable the AssemblyGovernment to do considerably morethan under the status quo, there couldbe capacity implications for both theWelsh Assembly Government and thePresiding Office. There would be aneed for greater scrutiny of Assemblysubordinate legislation in Cardiff,which would have implications for thePresiding Office. However, thecontinued role of Westminster inrelation to primary legislation would

mean that the Assembly couldprobably cope with the extendedpowers without increasing itsmembership or changing its electoralsystem.



Box 13.2: New model of framework-legislative devolution

■ no amendment to Government ofWales Act;

■ size and electoral arrangements ofAssembly unchanged;

■ building on precedents set inhealth and education legislation,delegated powers conferred on theAssembly expressed in broadterms, giving it much greater scopeto make changes within the fieldsconcerned;

■ much broader delegated powerswould require greater scrutiny byAssembly Committees;

■ capacity implications if theAssembly enabled to do muchmore than now;

■ momentum for further transfers ofpowers would be likely to continueas under the status quo;

■ framework powers would providedeeper experience of actingthrough secondary legislation.

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Scotland

21. To go further than would be possibleunder a delegated powers model, anew Wales Act would be needed toconfer on the Assembly the power topass primary legislation in devolvedfields. The model of primary powersfor Wales that was most oftenproposed in evidence was theScotland Act 1998; but features of theNorthern Ireland model were alsosuggested to us.

22. The White Paper Scotland’sParliament recommended theproposed arrangements on grounds ofstability and clarity:

The Government have given carefulthought to the best way of buildingstability into the settlement. TheScotland Act 1978 provided for thetransfer of specified areas oflegislative and executivecompetence… It would have requiredfrequent updating and might havegiven rise to regular legal argumentsabout whether particular matters wereor were not devolved. This approachnow seems incompatible with theGovernment’s objective of ensuringmaximum clarity and stability.Consequently the legislationestablishing the Scottish Parliamentwill follow the approach of theNorthern Ireland Constitution Act1973 in listing matters reserved tothe UK Parliament rather thanspecifying devolved matters.9

23. The main features of the Scottishstructure are summarised in Box 13.3below.

24. A feature of the Scottish model, whichhas been used much more extensivelythan expected, is the provision thatallows for legislation for Scotland indevolved fields to be passed both inEdinburgh and at Westminster. Aconvention, proposed by Lord Sewelduring the passage of the ScotlandBill, has been established thatWestminster will only legislate in thesecircumstances with the agreement ofthe Scottish Parliament.10 A similarmechanism exists in relation toNorthern Ireland, but has been usedon only a few occasions to date.11

25. Following this convention, Westminsterhas legislated for Scotland in areassuch as the proceeds of crime, foodsafety, adoption and consumerprotection. Its use testifies to the strongpressures for common legislationacross the UK.12

26. A second feature of the Scottish modelis the distinction between legislativeand executive powers. In some areas,the executive powers of ScottishMinisters are more broadly drawn thanthe legislative powers of the ScottishParliament. For example, under theScotland Act 1998, railways are areserved matter; but, since the Act waspassed, the Scottish Executive hasbeen granted certain powers in relationto the rail network.13

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Box 13.3: Legislative devolution in Scotland

■ two categories of legislative responsibility: reserved (to Westminster) ordevolved matters (Holyrood can legislate);

■ separate Parliament and Executive;

■ Westminster can legislate for Scotland on devolved matters – by convention,it legislates only with the consent of the Scottish Parliament;

■ reserved matters are specified in Schedule 5 of the Act – everything else isdevolved;

■ reserved matters include: the Constitution, defence, fiscal and monetarypolicy, immigration and nationality, competition, monopolies and mergers,employment legislation, most energy matters, railway services (excludinggrants), social security, elections (except local elections), most company andcommercial law, broadcasting and equal opportunities;

■ devolved matters include: health, education and training, local government,social work, housing, environment, planning, economic development,transport, agriculture, fisheries and forestry, most civil and criminal law andthe criminal justice system, police and prisons, sport and the arts;

■ the list of reserved matters may be amended by Order in Council (withoutnew primary legislation);

■ Bills passed by Scottish Parliament are scrutinised for vires by the AdvocateGeneral for Scotland before being passed to Her Majesty for Royal Assent;

■ the UK Parliament can confer delegated executive powers on ScottishMinisters in non-devolved areas (e.g., railways and energy);

■ power to vary the basic rate of income tax in Scotland up to 3p in the poundin either direction;

■ 129 Members of the Scottish Parliament (MSPs) elected by AMS.

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Northern Ireland

27. The main features of the model ofdevolved primary powers that operatesin Northern Ireland are set out belowin Box 13.4. The structure ofdevolution in Northern Ireland isdifferent from that of Scotland inhaving three categories of function:excepted, reserved and transferred.Reserved matters are an intermediatecategory where the Northern IrelandAssembly can legislate, subject to theapproval of the UK Government andUK Parliamentary control.14

28. This structure was designed to addressthe particular political circumstances ofNorthern Ireland. It allows theAssembly to legislate on reservedmatters such as police and criminaljustice, although the need to do so hasbeen relatively infrequent15 (theAssembly has not attempted to passan entire Bill dealing with reservedmatters).16 It also provides a means ofidentifying functions that could bemoved into the category of devolvedmatters over time without the need forprimary legislation, by agreementthrough the Order in Councilprocedure.

Box 13.4: Legislative devolution in Northern Ireland

■ three categories of legislative responsibility: excepted (only Westminster canlegislate, in most circumstances);17 reserved (the Assembly can legislate withthe agreement of the UK Government); and transferred matters (Assemblycan legislate);

■ excepted matters include: Crown and UK Parliament, elections includinglocal elections, international relations, defence, national security, immigrationand nationality, taxes under UK laws, national insurance;

■ reserved matters include: criminal law, public order, police, civil defence,competitions, monopolies and mergers, some consumer protection matters;

■ transferred matters include: health, education and training, local government,social work, housing, environment, planning, economic development,transport, agriculture, fisheries and forestry, sport and the arts;

■ the functions in the excepted category are ring-fenced, but the functions inthe reserved and transferred category can be moved between categories byconsent, by Order in Council;

■ the Secretary of State for Northern Ireland is responsible for submitting Billsfor Royal Assent;

■ the Northern Ireland Assembly cannot vary its income by adjusting UK taxes;

■ 108 Members elected by STV.

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29. Scotland and Northern Ireland offerdifferent models in respect of tax-varying powers. The ScottishParliament has a specific power toalter its revenue by varying UK incometax rates, whereas the Northern IrelandAssembly is prohibited from operatingin the field of UK taxation. To date, theexecutive in Scotland has not used itstax-varying powers and is committednot to use them for the term of thecurrent Parliament.

A legislative Assembly for Wales

30. In the light of these models, the mostappropriate structure for a legislativeAssembly for Wales would be as setout in Box 13.5.

31. We considered whether this modelshould draw on the Northern Irelandstructure by including an intermediatecategory of matters on which theAssembly could legislate only with theagreement of the UK Government, butwhich could be devolved to theAssembly at a later date.

32. This approach could be taken in oneof two ways. First, it could be used asa means of initially limiting the matterson which the Assembly could passprimary legislation. For instance, areasof social policy such as health andeducation could be fully devolved, butother areas in which the Assemblycurrently has executive powers, suchas economic development or transport,could be included in the intermediatecategory for possible later transfer tothe Assembly.

33. Alternatively, the approach could beused to broaden the powers of primarylegislation beyond the policy areas inwhich executive powers are currentlydevolved. The latter would be includedin the devolved category, and theintermediate category would includenew areas, such as policing, which arecurrently not devolved.

34. Either way, adopting the NorthernIreland model would require drawing adistinction between two categories ofdevolved fields: one in which theAssembly could legislate withoutreference to Westminster (apart fromthe requirement for mutual consultationto which all the devolvedadministrations are committed underthe devolution concordats); andanother in which the Assembly couldlegislate only with the Secretary ofState’s agreement. This approachwould risk creating greater complexityand uncertainty in the settlement andis not therefore incorporated into ourmodel.

35. Instead, the model described in Box13.5 has two categories of primarylegislative responsibility and providesthat all matters are devolved to theAssembly unless specifically reserved.It assumes that the devolved fieldsbroadly mirror those set out inSchedule 2 of the Government of WalesAct, and therefore do not include all theareas that are devolved to the ScottishParliament. However, as is the case forboth Northern Ireland and Scotland,there would be scope to amend therange of matters devolved to theAssembly, without further primarylegislation, by Order in Council.



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36. Were legislative powers to be grantedto the Assembly on the model below, itseems likely that the governingprinciple would be that distinctiveWelsh legislation that enacted thepolicies of the Welsh AssemblyGovernment would be passed inCardiff. For example, the Assemblymight have passed measures such asthe Children’s Commissioner for WalesAct 2001; the Wales provisions of theLearning and Skills Act 2000; theHealth (Wales) Act 2003 and relatedreforms in the NHS Reform andHealthcare Professions Act 2002; andlegislation to create a single PublicServices Ombudsman for Wales.

37. Where it was agreed that proposals ofthe UK Government should be appliedto Wales, these would be passed atWestminster. Following the Scotlandand Northern Ireland precedents, thiswould require a motion to be passedin the Assembly signalling itsagreement to the proposals.Procedures would also be required toestablish whether changes madeduring the passage of the Bill made itnecessary to seek further approvalfrom Cardiff.

38. This would be a matter for negotiationbetween the Welsh AssemblyGovernment and the UK Government,but such measures might include theEngland and Wales provisions of theLocal Government Act 2003; thecompulsory purchase provisions of thePlanning and Compulsory PurchaseBill; the England and Wales provisionsof the Education Act 2002; the Carersand Disabled Children Act 2000; andthe Food Standards Act 1999.

39. The balance between Wales-onlylegislation, passed in Cardiff andEngland and Wales legislation, passedat Westminster, could change overtime depending on:

■ the political relationship betweenCardiff and Westminster;

■ the scale of the legislative programmeof the Welsh Assembly Government;

■ the capacity of the Assembly toscrutinise and debate such measures.

40. The model also provides for theexecutive powers of the WelshAssembly Government to continue tobe broadened within the framework ofUK legislation without necessarilybroadening the Assembly’s legislativepowers at the same rate. For example,certain executive powers in relation tothe police could be transferred withoutdevolving legislative powers in thisfield.

41. The cost would depend on the scaleand complexity of legislation promotedby the Welsh Assembly Government,the procedures adopted by thelegislature for scrutinising it and thenumber of Assembly Members. Ourevaluation of the possible costs is setout in Chapter 11.

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42. Our recommendations on the wayahead are set out in the next chapter.



Box 13.5: A legislative Assembly for Wales

■ Wales Bill needed to amend Government of Wales Act and confer primarylaw-making powers on the Assembly;

■ Bill specifies reserved matters (Westminster legislates); everything isdevolved to the Assembly unless specifically reserved;

■ reserved matters could include: the Constitution, defence, fiscal andmonetary policy, immigration and nationality, competition, monopolies andmergers, employment legislation, most energy matters, railway services(excluding grants), social security, elections arrangements (except localelections), most company and commercial law, broadcasting, equalopportunities, police and criminal justice;

■ devolved matters: the fields set out in Schedule 2 of Government of WalesAct i.e. health, education and training, social services, housing, localgovernment, planning, culture, sport and recreation, the Welsh language,ancient monuments and historic buildings, economic development, industry,tourism, transport, highways, agriculture, fisheries, food, forestry,environment, water and flood defence;

■ corporate body structure replaced with executive and legislature;

■ Assembly can construct its own rules of procedure and Standing Orders,adopted by a majority of two thirds;

■ executive powers in a particular field can be devolved even if the Assemblyhas no corresponding primary legislative powers;

■ Cardiff legislative programme might contain around four to six governmentBills a year;

■ change in Membership and electoral system;

■ option of tax-varying power.

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Notes

1The Rt Hon the Lord Falconer of Thoroton, Constitutional Reform Speech, University College London, 8 December2003, http://www.dca.gov.uk/speeches/2003/lc081203.htm. (accessed 4 February 2004).

2Ibid.

3See Chapter 7, Box 7.1.

4See Chapter 8, paragraphs 29-33.

5See oral evidence of Professor David Miers and David Lambert, 28 February 2003.

6Written evidence of the Counsel General, December 2002.

7See Chapter 7, paragraph 50.

8See Chapter 7, paragraph 48.

9Scottish Office, Scotland’s Parliament, Cm 3658 (London: The Stationery Office, July 1997), paragraph 4.3.

10See Chapter 8 for further discussion of the Sewel Convention.

11This procedure is discussed in the oral evidence of the Rt Hon the Lord Alderdice, Speaker of the NorthernIreland Assembly, 19 September 2003.

12Alan Page and Andrea Batey, op. cit.

13See Chapter 5.

14Northern Ireland Act 1998 c.47, section 15.

15Oral evidence of the Speaker of the Northern Ireland Assembly, 19 September 2003.

16Ibid.

17The Northern Ireland Assembly may legislate on excepted matters if the provision concerned is ancillary to otherprovisions dealing with reserved or transferred matters, but only with the agreement of the UK Government.

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chapter 14: conclusions: the wayahead


Principles

2. We set out in Chapter 13 the visionand principles which have informedour enquiry. As explained in Chapter1, we have worked on theassumption that gains in democracyand accountability are valuable inthemselves and that more open,participative and responsivegovernance is likely to produce betterpolicy outcomes.

3. We reached our conclusions byexamining the dynamics of thepresent arrangements, and theprinciples which have come to beaccepted in the relationship betweenWales and Westminster.

4. The evidence demonstrates that thereis now in place an evolvinglegislative relationship basedincreasingly on the expectation that,in principle, the needs and wishes ofthe Assembly should be met. Forexample:

■ it is recognised that the AssemblyGovernment is the initiator of policyon devolved matters and a majorstakeholder on non-devolved issues aswell;

■ it is the Welsh Assembly Governmentthat formulates distinctive legislativeproposals for Wales on devolvedmatters; and proposes them to the UKGovernment and Parliament forenactment;

■ the Assembly Government isconsulted on the content of legislationaffecting devolved fields and hasopted out of such legislation if itwishes;

■ Assembly Committees, and individualMembers, have the opportunity, so faras is practicable, to comment on Billsbeing considered at Westminster,particularly through pre-legislativescrutiny;

■ there are extensive areas where policyand legislation are conducted on anEngland and Wales basis, byagreement between the Governmentsin Cardiff and London, not least whereEuropean competence applies.

5. This is the position that has evolved,through practice and precedent, sincethe establishment of the Assembly.The Assembly has already become theinitiator of much legislation for Waleson devolved matters and this isaccepted both in Cardiff and atWestminster as the right relationship.

Conclusions: the way aheadThis chapter sets out our conclusions on the way ahead for devolvedgovernment in Wales, based on our evaluation of the present settlementand its evolution since 1999.

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6. Our analysis of the first four years ofthe devolution settlement has amplydemonstrated that it has been anythingbut static. The Welsh AssemblyGovernment and the NationalAssembly have been heavily involvedin legislation, through the use of theirown secondary legislative powers and,with Whitehall and Westminster, indeveloping primary legislation.

7. It seems to us, therefore, inaccurate todescribe the present situation as oneof merely executive devolution. Italready has some of the features andpractical infrastructure of legislativedevolution. For example:

■ Wales-only Bills are devised in Cardiffand officials of the Welsh AssemblyGovernment, by agreement with theWales Office and the lead department,draft policy instructions for theParliamentary draftsmen;

■ the same is true of substantial Wales-only clauses in England and WalesBills;

■ those Bills that are subject to pre-legislative scrutiny are scrutinised inboth Cardiff and Westminster.

8. New legislation has already conferredupon the Assembly considerablepermissive powers in the key policyareas of health, education and theenvironment, including powers toamend by order UK primary legislation.These are important precedents whichcould be expanded to coverprogressively all devolved services.

9. The Assembly has used its powers ofsecondary legislation to reflect its ownpolicy choices and priorities. Some of

the most popular decisions of the pastfour years, nationwide free bus passesfor the elderly and disabled, and freeprescriptions, have been introduced bystatutory instrument and not primarylegislation.

10. It is this growing and maturingexperience which, in our view, shoulddetermine the development and thepace of the Assembly’s legislativeactivity and future powers. The casefor change does not rest on thelimitations of the existing settlement –but also on the legislative andregulatory experience gained in thesefirst four years.

11. One of the most encouragingdevelopments over this period hasbeen the growing consensus in favourof devolution not only within Wales butalso at Westminster. We hope that ourproposals can build on that consensus,and thus provide the best foundationfor a stable and sustainable settlement.

12. We have been impressed by thebreadth and depth of the Assembly’sconsultation processes, linked to agrowing civic Wales. The Assemblyhas drawn on expertise across Welshsociety and beyond in formulatingpolicy. A large number of witnessestestified to the openness andaccessibility of the process. The civilservice has responded positively to thenew agenda.

13. By contrast, we also found anextensive lack of understanding of thesettlement and the role of theAssembly and the AssemblyGovernment, which cannot be wholly



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attributed to its complexity. We havebeen struck by the contrast betweenthe enthusiasm of those actively incontact with the Assembly, and aseemingly wider public indifferenceexpressed by the particularly lowturnout at the two elections.

14. We believe that the way forwardshould address this by making theprocesses of devolved governmentmore accountable and clearer to thewider public, and by giving the WelshAssembly Government the tools toimplement directly its policies andtranslate its priorities and timetableinto legislative form.

15. Devolution post-1999 has beendriven by a new democratic dynamic,with a far-reaching impact beyond theagencies of government. The pressureof elected politicians, needing torespond to the most immediateproblems, will, we suspect, ensurethat devolution will not proceed at thegradual pace experienced in the 20thcentury.1 That is already evident afterthe first four years. Pressures toaccelerate the process will, we expect,continue to grow.

The way ahead

16. We set out in Chapter 13 the possibleways in which devolution coulddevelop in future.

17. We do not think the status quo is asustainable basis for futuredevelopment. Although there hasbeen significant evolution in theAssembly’s powers since 1999, it hasbeen an ad hoc, piecemealdevelopment, on a case by case

basis, not founded upon any agreedgeneral policy, or informed by anyclear set of devolution principles. Thelegislative relationship betweenCardiff, Whitehall and Westminsterhas grown significantly, but remainsdependent upon particular situationsand even individual departmentalinclinations.

18. The status quo is also, as many havepointed out, dependent on goodwillbetween the administrations in Cardiffand Whitehall. Time and precedentmay entrench the principle ofdevolution in such a way as to makeit difficult for a government in Londonto challenge it openly. But the presentsettlement offers scope for delay orobstruction. Even with goodwill onboth sides, there are practicalconstraints on the achievement of theAssembly’s legislative requirements(Chapter 8).

19. To overcome this, we are agreed thatthe process of devolution to Walesshould be taken forward to enhancethe legislative competence of theAssembly.

A legislative Assembly for Wales

20. We set out our model for a legislativeAssembly in Chapter 13, Box 13.5.This is a distinctive model for Wales:it combines a continuing programmeof England and Wales legislation,reflecting practical needs, with theopportunity for distinctive Waleslegislation passed in Cardiff. Newprocedures would be needed, learningfrom and adapting the Scottishexperience.

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21. This will improve the accountabilityand clarity of the legislative process,with benefits for the people of Wales,the politicians who serve them, andcivil society. Policies currently initiated,debated and consulted upon in theAssembly could be enacted there. TheGovernment in the Assembly would beable to carry through its programme,without needing to rely on thewillingness, legislative capacity andtimetable of the Government atWestminster.

22. Complexity would not disappear fromthe settlement: as in other devolvedand federal systems, there willcontinue to be areas where thecompetence of the UK Governmentand that of the devolved governmentoverlap (Chapters 5 and 9). But, incases of doubt, the burden of proofwill benefit devolution – matters notspecifically reserved to the UKGovernment would fall within thecompetence of the Assembly.

23. A legislative Assembly will require newprimary legislation – a Wales Bill. Anillustrative timetable for the preparationand consideration of such a measureis set out below. This is a logical andsustainable model for Wales which,with public support, could be achievedby 2011 and we so recommend.

A new legislative partnership

24. In the interim, and as a bridge to fulllegislative competence, we recommendthe model of framework legislativepowers outlined in Chapter 13. Thiswould involve the progressive transferof delegated powers in respect of

devolved services, allowing themaximum scope for the Assembly toexercise its secondary legislativepowers to implement its policieswithout further recourse toWestminster.

25. This would require Whitehall andWestminster to accept the logic ofdevolution in framing legislation: thatthe process of delegating executivepowers under primary legislationshould take account of both theAssembly’s status as an elected bodyand of its procedures for the scrutinyof secondary legislation. It would alsoallow the Assembly to continue todevelop its expertise in formulatingpolicy in broad fields and in draftingsecondary legislation.

26. Such an approach could beimplemented quickly and easily – itwould not require an amendment ofthe Government of Wales Act. If thepermissive powers were considerablybroader than now, the scrutinycapacity of the Assembly, and thepolicy capacity of the executive, wouldneed to increase, but this could bemanaged without increasing the overallMembership.

27. The UK Government has recentlyacknowledged the need to revise theexisting devolution guidance. Webelieve such a revision shouldembrace the principle of frameworklegislation of the kind we envisage.The new legislative partnership couldtake the form of a memorandum ofunderstanding which could emphasisethe commitment to such apartnership.



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28. Provided Westminster could acceptsuch a potentially far-reaching changeto the way it frames primarylegislation, this approach wouldenable the Assembly to continue todevelop its capacity and wouldprovide for a smooth transition to alegislative Assembly.

Legislation for Wales at Westminster

29. If our proposed new Wales Bill isenacted, Wales will, for practicalreasons or where policy objectivesconverge, continue to requireWestminster legislation in respect ofdevolved matters. That has been thesurprising experience of the ScottishParliament in its first four years(Chapters 4 and 8).

30. Such legislation is likely to be evenmore extensive in respect of Walesthan it has been for Scotland. Thiswould reflect cross-border issues aswell as Wales’s closer historic andinstitutional relationship with England– ‘the uniquely powerful geo-politicalconcept of England and Wales’2 whichis likely to continue to call for acommon approach in many areas.The Sewel mechanism used in respectof Scotland is a practical means ofachieving this – Wales should build onthis approach (Chapter 8).

31. There would therefore continue to bea substantial programme of legislationat Westminster affecting Wales, anddevolved services, each year. The roleof Welsh Members of Parliament, andof the Secretary of State for Wales, asa link between the Assembly andWestminster would continue to beessential, for a number of reasons:

■ to ensure that the implications ofWestminster legislation for devolvedmatters are scrutinised effectively;

■ to act as a link in securing theapproval of the Assembly for proposalsaffecting devolved areas in Englandand Wales legislation;

■ to monitor the implications for Walesof legislation in fields where primarypowers are not devolved, or legislationwhich creates new executive bodiesfor England and Wales, where theinterests of the Assembly need to beconsidered.

32. This would, of course, be in additionto MPs’ continuing constituency rolein respect of Westminster legislation innon-devolved areas.

The implications of a legislativeAssembly

33. If the principle of the devolution ofprimary powers is accepted, anumber of consequential changesfollow which are discussed in moredetail below:

■ the structure of the Assembly shouldbe changed from a single unitary bodyto a separate executive andlegislature;

■ the capacity of the Assembly shouldbe increased, by a combination ofreviewing its working methods andincreasing its Membership from 60 to80 – with implications for the methodof election;

■ the capacity of the Presiding Officewill need to increase to cope with theadditional Members and additionalscrutiny work;

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■ the executive will need the capacity tomanage the legislative process and itspolicy capacity will need to continueto develop, but a step change will notbe needed.

Tax-varying powers

34. We have also given consideration tothe question of conferring tax-varyingpowers, if there were a transfer ofprimary legislative powers.

35. There is a strong case in principle forprimary legislative powers to carrywith them revenue-varying powers. Inpractice, however, we regard powersof taxation as desirable, but notessential to the exercise of primarypowers.

The implications for the structure ofthe Assembly

36. We do not believe that the corporatebody structure of the Assembly couldsustain an increase in its powers.Early in its life, the Assembly chose tocreate a clear distinction between theexecutive, the Welsh AssemblyGovernment, and the Assembly as aforum for scrutiny, debate and holdingthe executive to account. On groundsof accountability and clarity, there is astrong case for changing theAssembly’s legal structure with thepowers it currently has. Withenhanced powers the case isindisputable.

37. Accordingly, we recommend that theAssembly should be replaced by twoseparate bodies – an executive and alegislature. With this separation, andthe stronger scrutiny focus required by

primary legislation, we recommendthat, on balance, Ministers should nolonger automatically be members ofSubject Committees. The over-ridingimperative is for clarity ofresponsibility for scrutiny andchallenge, and for the independenceof committees from the Government.

The implications for the membership ofthe Assembly

38. If the powers of the Assembly areincreased, scrutiny will have to begiven much greater priority in thework of the Assembly, particularly ofcommittees. This would be anonerous responsibility since therewould be no revising chamber and noreference back to Westminster.

39. The impact on the committees’workload would vary, according to thescale of the legislative programme andthe subject matter: for example,education and health and socialservices would face a greater burdenthan economic development orculture. Committees would have lessfreedom to determine their own workpriorities and the culture would needto be one of greater challenge andscrutiny.

40. It would be for the Assembly itself todetermine how to cope with thisadditional work. With greater flexibilityon working arrangements, andrigorous priority setting, capacitycould be enhanced with the presentMembership (Chapter 4) but thiswould not be sufficient to cope withprimary legislation. The aim shouldbe for Members to sit on one Subject



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Committee each – in order to developsubject expertise and facilitate weeklymeetings (or more, where businessnecessitates this).

41. This means that primary powerswould require an increase in the sizeof the elected Assembly. This shouldbe kept to the minimum required bythe additional work. We believe thatan increase of one third, from 60 to80, combined with increasedflexibility on working arrangements,would be necessitated by theadditional scrutiny workload.

The implications of increasedmembership for the Assembly’selectoral arrangements

42. The implications for the Assembly’selectoral arrangements of an increaseto 80 Members are considered inChapter 12. We considered firstwhether the change could beachieved without changing thepresent Additional Member System(AMS) of election – by doubling theregional list Membership from 20 to 40.

43. We saw considerable difficulties withthis option. The AMS system createstwo different types of AssemblyMember, representing different butoverlapping constituencies. There areno options for reforming the AMSsystem which overcome this problemand the tensions it creates betweenthe two types of Member. Accordinglywe do not believe that the AMSsystem could carry the weight ofdoubling the regional listMembership.

44. If the AMS system is not to continue,there are two realistic alternatives –First Past the Post or the SingleTransferable Vote (STV). We do notthink First Past the Post is anacceptable option, bearing in mindthat proportionality was an intrinsicelement of the A Voice for Walesproposals.

45. If voters voted as they did in 2003,First Past the Post would give aroundthree quarters of the seats to thelargest party, even though it securedno more than forty per cent of thevote. This would undermine both thefairness of representation and theprospect of effective scrutiny in theAssembly.

46. There are, therefore, strongarguments, of both principle andpractice, for continuing with a degreeof proportionality in the system ofelection to the Assembly. On thisbasis, First Past the Post is ruled out,as are the Alternative Vote andSupplementary Vote systems.

47. If AMS is to be replaced, the bestoption for electing an 80 MemberAssembly is the STV system. Thiswould not necessarily produce a moreproportional outcome than AMS – itmight not, depending on the size ofconstituency (Chapter 12). The casefor adopting the STV system would beto maintain the principle ofproportionality while ensuring that allMembers were elected in the sameway, and enjoyed the samerelationship with the electorate.

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Capacity and cost

48. The cost of the acquisition of primarypowers by the Assembly will bedetermined by the cost of theadditional Members, the scale andcomplexity of the legislativeprogramme proposed by futureadministrations in Cardiff, and theprocedures which the Assemblydecides to adopt for the scrutiny ofthis programme.

49. Although it is impossible to predictwith certainty what the costimplications would be, bearing inmind that the Assembly is likely tocontinue to evolve in the period untilprimary powers could come intoeffect, the figures provided to us bythe Assembly suggest that the directcosts would be of the order of £10million a year. This would include thecost of 20 additional AMs, togetherwith additional capacity in thePresiding Office and for the draftingand management of Bills within theexecutive (Chapter 11).

50. This does not include the cost ofresponding to scrutiny by moreMembers or the increase in capacitywhich might be required for newpolicies. The pressure for enhancedpolicy capacity should not beunderestimated but this will be amatter for future administrations todetermine and defend. The evidencesuggests that, during the Assembly’sfirst 4-5 years, the capacity of theWelsh Assembly Government toinitiate policy, including legislativemeasures, has already expandedconsiderably, in breadth and depth.

51. We see no reason to expect that thisexpansion must be repeated simply asa consequence of enabling thelegislative stage of the policy processto be completed in Cardiff Bay insteadof at Westminster. We believe that theassessment of the PermanentSecretary – that the acquisition ofprimary powers would represent amanageable progression for the civilservice in Cardiff – is accurate andrealistic.3

52. It was recognised from the beginningof administrative devolution that thecosts of separate Welsh structureswere likely to be significant comparedwith administering Wales fromWhitehall. The costs incurred inestablishing and developing theAssembly have been borne by thedevolved Budget at a time when theoverall public expenditure context hasbeen relatively benign – this may notalways be the case.

53. However, these costs need to be setagainst the benefits perceived bythose who have engaged with theAssembly’s processes. From thisperspective, the costs of devolutionrepresent an investment – in moreresponsive, accountable andrepresentative governance and a moreconfident and participative civilsociety.

Timescale

54. Whether, and when, to accept ourrecommendations is, of course, amatter for the Assembly, the UKGovernment and Parliament, in thelight of the views of the people of



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Wales. However, we set out below thebroad timescale within which thenecessary legislation could beenacted, if this was desired, assuminga UK General Election in 2005. Allthe timing assumptions are, of course,entirely illustrative and represent nomore than our estimate of what mightbe a possible scenario. A referendum,if desired, could be accommodatedwithin this timetable.

55. This seems a realistic timescale fordevolving primary legislative powers toWales. It seems to us unlikely that thenew powers, together with therequired increase in Members, couldbe in place before 2011. However, ifthe bridging approach suggestedabove is adopted, the Assembly willbe in a position to continue to developits expertise in the formulation andscrutiny of primary legislation and willbe well placed for a smooth transitionto its new role.

The representation of Wales atWestminster

56. The question of Welsh representationat Westminster falls outside our termsof reference. However, we recognisethat conferring primary powers on theAssembly will have implications for therole of Welsh Members at Westminster,although we envisage that the amountof England and Wales legislation,covering both devolved and non-devolved matters, will continue to besignificant. In the case of Scotland, itwas accepted that the devolution ofprimary legislative powers would leadto a reduction of Scottishrepresentation at Westminster. It islikely that a similar expectation willarise if such powers were devolved tothe Assembly.

57. The Scottish precedent suggests thatsuch implications could be expected totake effect some time after 2011 – onour illustrative timetable. In theinterim, it seems likely that Welsh MPs

Illustrative timescale for implementation

2005 Possible UK General Election

2005 Drafting approval for new Wales Bill

2006 Bill published for pre-legislative scrutiny

May 2007 Assembly election

November 2007 Wales Bill introduced

July 2008 Royal Assent

2008-2010 Boundary Review

2011 Election of new body with 80 Members and primary powers

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will continue to play a crucial part infacilitating the partnership betweenWales and Westminster, which is sovital to present arrangements and,indeed, is likely to continue to beimportant post-2011.

The need for a further referendum

58. Although not within our terms ofreference, we considered whether themeasures we recommend wouldrequire a further referendum.

59. It is of crucial importance that thepeople of Wales are properly consultedabout major changes in the way theyare governed, and how theirrepresentatives are elected, whetherthrough a General Election, areferendum or other means.

60. Referendums raise many difficultissues,4 including how to define thequestion, or questions, whether to seta threshold and when the vote shouldbe held.

61. In addition, the proposal to enhancethe powers of the National Assembly,building on the continuingdevelopment of its powers under thepresent structure, would have a strongelement of evolution. On this view, ameaningful referendum would becomplex to devise and might not bejustified.

62. Against this, it could be argued thatthe devolution of primary legislativepowers, and the consequential changein Membership and electoral system,constitute a major departure from theoriginal settlement, itself only narrowlyendorsed in a referendum. On thisview, a further referendum would berequired.

63. The judgement is one for the UKGovernment and Parliament to makein the light of their assessment of theresponse to our report and the ensuingdebate in Wales.

Summary of recommendations

64. This report was agreed by theMembers of the Commission on31 January 2004.

65. Our recommendations aresummarised below. One of usexpressed a wish to comment furtherupon the recommendations, as setout in Annex 8.

We recommend:■ that there should be a legislative

Assembly for Wales on the model inChapter 13;

■ in the interim, the frameworkdelegated powers approach should beexpanded as far as possible with theagreement of the UK Governmentand Parliament;

■ that, if a legislative Assembly isconstituted, it is desirable, thoughnot essential, to confer tax-varyingpowers;

■ that to exercise primary powers theAssembly needs an increase inmembership to 80 Members;

■ that the structure of the Assemblyshould be reconstituted with aseparate legislature and executive;

■ that the present voting system cannotsustain an increase to 80 – the bestalternative is the STV system;

■ these changes should be in place by2011, or sooner if practicable.



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Notes

1Chapter 2.

2Professor Rawlings (Chapter 2).

3Written evidence of Sir Jon Shortridge KCB, Permanent Secretary, National Assembly for Wales, December 2003.

4See, for example, David Butler and Iain McClean, ‘Referendums’, in Bridget Taylor and Katarina Thomson (eds)Scotland and Wales: Nations Again? (Cardiff, University of Wales, 1999).

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265

annex 1: terms of reference


Background

The Welsh Assembly Government’sdocument Putting Wales First1 contained acommitment to:

establish an independent Commissioninto the powers and electoralarrangements of the National Assemblyin order to ensure that it is able tooperate in the best interests of thepeople of Wales. This review shouldinvestigate inter alia the extension ofproportionality in the composition of theAssembly, and of the relevantcompetencies devolved.

Terms of reference

The Commission’s detailed terms ofreference are as follows.

Assembly powers

The Commission should consider thesufficiency of the Assembly’s currentpowers, and in particular:

■ whether the Assembly’s powers aresufficiently clear to allow optimumefficiency in policy-making;

■ whether both the breadth (ie., therange of issues over which it hascontrol) and the depth (ie., thecapacity to effect change within thoseissues) of the Assembly’s powers areadequate to permit integrated andconsistent policy-making on issues

where there is a clear and separateWelsh agenda;

■ whether the mechanisms for UKGovernment policy-making as regardsWales, and the arrangements forinfluence by the Assembly on these,are clear and effective, and inparticular whether they correct anyapparent shortcoming from theprevious item;

■ whether the division of responsibilitybetween the Assembly and the UKGovernment places inappropriateconstraints on Whitehall policy-making,both on matters over which theAssembly has control and otherwise.

The Commission should consider anypossible financial implications arising fromthe implementation of its proposals.

Electoral arrangements

The Commission should consider theadequacy of the Assembly’s electoralarrangements, and in particular:

■ whether the size of the Assembly isadequate to allow it to operateeffectively within a normal workingweek, and without placing unduepressure on Members;

■ whether the means of electing theAssembly, including the degree ofproportionality, adequately andaccurately represents all significantinterests in Wales;

Terms of referenceThe Commission’s terms of reference, set out below, were approved bythe Assembly in plenary on 20 June 2002.

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■ whether any changes which may berecommended to the Assembly’spowers make either necessary ordesirable changes to the size of theAssembly or the means of electing it.

Report

The Commission should report on itsdeliberations, including itsrecommendations on the above matters,by the end of 2003. It may make interimreports or recommendations if it sees fit.

Procedural matters

The Commission is to be free from anyinfluence from either the Welsh AssemblyGovernment or the Assembly as a whole.It shall determine its own agenda andpriorities within these terms of reference.

The Commission may determine its ownworking procedures. However, it should:

■ invite oral and/or written evidencefrom any who wish to provide it;

■ accept such evidence in either Englishor Welsh;

■ meet in public unless those givingevidence request otherwise or unless,in exceptional circumstances, theCommission resolves to meet inprivate;

■ publish periodic accounts of itsproceedings and evidence received.

The Commission has no power to compelany person to give evidence or to see anydocuments other than those availableunder the Assembly’s freedom ofinformation policy or similar equivalentregimes.

Secretariat

The Commission will be supported by aSecretariat comprising seconded Assemblycivil servants.

annex 1: terms of reference


Notes

1Welsh Assembly Government, Putting Wales First: A Partnership for the People of Wales, October 2000.

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annex 2: programme of evidencesessions


Date Location Evidence taken from:

September 2002

26 Cardiff The Rt Hon Ron Davies AM

Professor Kevin Morgan

Institute of Welsh Affairs:John OsmondProfessor Keith Patchett

October 2002

10, 11 Aberystwyth Academic Seminar on the constitutionalsettlement, held jointly with the Economic andSocial Research Council’s Devolution ResearchProgramme. Speakers included:Professor Martin LaffinDr Richard Wyn JonesProfessor Robert HazellProfessor Drew ScottAlasdair McLeodJohn Adams and Professor Kevin Woods

24, 25 Cardiff Robert Buckland

Jane Davidson AM, Minister for Education andLifelong Learning, Welsh Assembly Government

Professor Robert Hazell, Director, TheConstitution Unit, School of Public Policy, UCL

Mari James

Professor Martin Laffin, University of Durham

November 2002

7, 8 Cardiff Andrew Davies AM, Minister for EconomicDevelopment, Welsh Assembly Government

Jane Hutt AM, Minister for Health and SocialServices, Welsh Assembly Government

Programme of evidence sessions

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November 2002

7, 8 Cardiff Michael German AM, Minister for RuralDevelopment and Wales Abroad, WelshAssembly Government

21, 22 Cardiff Sue Essex AM, Minister for the Environment,Welsh Assembly Government

Carwyn Jones AM, Minister for OpenGovernment, Welsh Assembly Government

Jenny Randerson AM, Minister for Culture, Sport and the Welsh Language, Welsh Assembly Government

December 2002

5, 6 Cardiff The Lord Elis-Thomas AM, Presiding Officer of the National Assembly for Wales

Dr John Marek AM, Deputy Presiding Officer of the National Assembly for Wales

Edwina Hart MBE AM, Minister for Finance,Local Government and Communities, Welsh Assembly Government

Kirsty Williams AM, Chair, Health and SocialServices Committee, National Assembly forWales

Richard Edwards AM, Chair, Environment,Planning and Transport Committee, NationalAssembly for Wales

Gwenda Thomas AM, Chair, Local Governmentand Housing Committee, National Assembly for Wales

Mick Bates AM, Chair, Legislation Committee,National Assembly for Wales

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December 2002

12, 13 Cardiff The Rt Hon Rhodri Morgan AM, First Minister,National Assembly for Wales

Rhodri Glyn Thomas AM, Chair, CultureCommittee, National Assembly for Wales

The Rt Hon Dafydd Wigley AM, Chair, AuditCommittee, National Assembly for Wales

Gareth Jones AM, Chair, Education and LifelongLearning Committee, National Assembly forWales

Winston Roddick QC, Counsel General, NationalAssembly for Wales

Sir Jon Shortridge KCB, Permanent Secretary ofthe National Assembly for Wales

January 2003

16, 17 Swansea Academic Seminar on electoral arrangements,held jointly with the Economic and SocialResearch Council’s Devolution ResearchProgramme.Speakers included:Roger ScullyBarry WinetrobeProfessor David ButlerDr Simon KingOonagh GayJames MitchellJonathan BradburyProfessor Robert Hazell

30, 31 London Meeting with Peers

Meeting with Clerks to the House of Commons

Round table session with a cross party group ofbackbenchers

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January 2002

30, 31 London Meeting with Clerks to the House of Lords

Cabinet Office briefing seminar

February 2003

7 Cardiff Seminar on legal aspects of the constitutionalsettlement, convened by the Law Society inWales.Speakers included:Milwyn Jarman QCNichola Cooke QCNicholas NealeEmyr LewisPhillip Howell-RichardsonTerence GrangeMr Justice Roderick Evans Professor Iwan DaviesHuw WilliamsClive LewisProfessor David Miers

12, 13 Edinburgh Professor David McCrone, Professor of Sociologyand Co-Director, Institute for Governance,University of Edinburgh

Professor David Bell, Professor of Economics,University of Stirling

Lord James Douglas-Hamilton QC, MSP,Conservative Spokesperson on Justice & HomeAffairs, Scottish Parliament

Patricia Ferguson MSP, Minister forParliamentary Business, Scottish Executive

Colin Boyd QC, Lord Advocate, Scottish Executive

Robert Gordon, Head of Legal & ParliamentaryServices, Scottish Executive

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February 2003

12, 13 Edinburgh Professor Alan Page, Professor of Public Law,University of Dundee

The Rt Hon Jim Wallace QC MSP, Deputy FirstMinister, Scottish Executive

The Rt Hon Sir David Steel KBE MSP, PresidingOfficer of the Scottish Parliament

Murray Tosh MSP, Deputy Presiding Officer ofthe Scottish Parliament

Paul Grice, Clerk/Chief Executive of the ScottishParliament

Sir Muir Russell KCB, Permanent Secretary ofthe Scottish Executive

Bristow Muldoon MSP, Convenor, LocalGovernment & Transport Committee, ScottishParliament

Alex Ferguson MSP, Convenor, Environment &Rural Development Committee, ScottishParliament

Trish Godman MSP, Convenor, LocalGovernment Committee, Scottish Parliament

Karen Gillon MSP, Convenor, EducationCommittee, Scottish Parliament

John Swinney, MSP, Leader Scottish National Party, Shadow First Minister of the Scottish Parliament

Fiona Hyslop, MSP, Member of the ParliamentaryBureau, Scottish Parliament

272




February 2003

27, 28 Cardiff Plaid Cymru the Party of Wales:Ieuan Wyn Jones AM, Leader of the AssemblyGroup and PresidentCynog Dafis AM, Policy DirectorJocelyn Davies AM, Party Spokesperson onConstitutional AffairsSimon Thomas MP, Parliamentary GroupRepresentativeDafydd Trystan, Chief Executive

Glyn Davies AM, Chair, Agriculture and RuralDevelopment Committee, National Assembly for Wales

Nick Bourne AM, Leader of the WelshConservatives in the National Assembly forWales

Professor David Miers, Professor of Law, CardiffLaw School and David Lambert, Cardiff LawSchool

Welsh Liberal Democrats:Michael German AM, Leader of the WelshLiberal DemocratsRobert Joffe, Policy Officer

March 2003

13, 14 London The Rt Hon Peter Hain MP, Secretary of State for Wales

Electoral Reform Society:Ken Ritchie, Chief Executive

Wayne David MP

Youth Justice Board:Mark Perfect, Chief ExecutiveSue Williams

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March 2003

13, 14 London UNISON:Bill King, Regional ConvenerDominic MacAskill, Policy Development &Campaigns Committee

27, 28 Llandudno Environment Agency Wales:Helen Phillips, DirectorNigel Reader, Director of Finance

Tom Middlehurst AM, Chair, European AffairsCommittee, National Assembly for Wales

Representatives from Wrexham, Conwy andGwynedd Youth Forums

CBI Wales:David Rosser, DirectorRobert Salisbury, Chair

National Council for Education and Training inWales:Enid Rowlands, ChairGrenville Jackson, Director of Policy

Lord Thomas of Gresford, Liberal DemocratSpokesperson for Wales, House of Lords

Welsh Language Board:Rhodri Williams, ChairJohn Walter Jones, Chief ExecutiveRhys Dafis, Language PlanningMeirion Prys Jones, Language Planning

April 2003

10, 11 Haverfordwest Countryside Council for Wales:John Lloyd Jones, ChairRoger Thomas, Chief Executive

Christine Gwyther AM, Chair, EconomicDevelopment Committee, National Assembly for Wales

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April 2003

10, 11 Haverfordwest Peter Clarke, Children's Commissioner for Wales

Cymdeithas yr Iaith Gymraeg:Huw Lewis, Chair Iwan StanleyDafydd Morgan Lewis

Arts Council of Wales:Peter Tyndall, Chief Executive

Mid & West Wales Fire Authority:Douglas Mackay, Chief Fire OfficerGareth Sullivan, Vice ChairGareth Thomas, Director of Service SupportJudith Morris, Corporate Head of Policy

All Wales Ethnic Minority Organisation:Naz Malik, Director

Dr Denis Balsom

National Museums and Galleries of Wales:Paul Loveluck, PresidentEurwyn William, Acting Director General

May 2003

8, 9 Royal Welsh National Farmers Union Cymru:Showground, Peredur Hughes, President Llanelwedd Malcolm Thomas, Director

Urdd Gobaith Cymru:Jim O'Rourke, Chief Executive

Wales Young Farmers' Clubs:Meinir Wigley, ChairLouise Owen, Rural Development Officer

Country Land & Business Association:Julian Salmon, Director

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May 2003

8, 9 Royal Welsh Farmers Union of Wales: Showground, Bob Parry, PresidentLlanelwedd Barrie Jones

Siôn Aron

Royal Welsh Agricultural Society:Meuric ReesPeter Sturrock

Meat Promotion Wales:Rees Roberts, ChairGwyn Howells

Roy Norris, Chair, Welsh Ambulance ServicesNHS Trust (appearing in a personal capacity)

Dr Denis Balsom

Forestry Commission:Huw Davies, Policy Officer

RSPB Wales:Dr Tim Stowe Katie-Jo Luxton

National Trust in Wales:Iwan Huws, Director

The Association of National Parks Authority:Martin Fitton, Chief Executive

Lord Livsey of Talgarth CBE

22, 23 Newport David Melding AM

CYTUN:

The Reverend Aled Edwards

Evangelical Alliance:Daniel Boucher

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May 2003

22, 23 Newport Hindu Community Representative:Naran Patel

South Wales Jewish Representative Council:Alan Schwartz

Muslim Council for Wales:Saleem Kidwai

Disability Wales:Rhian Davies, Chief Executive

Stonewall Cymru:Derek Walker, Policy Officer

Wales Women’s National Coalition:Angharad Davies, ChairJoyce Watson, FieldworkerMary Slater, Coalition Manager

Mr Justice Thomas, Judge, Chancery Court

Professor Iwan Davies, Head, Department of Law, University of Swansea

Phillip Howell-Richardson, Partner, Morgan Cole

Nicholas Cooke QC

Higher Education Funding Council for Wales:Roger Williams, Chair Steve Martin, Chief Executive

Equal Opportunities Commission in Wales:Kate Bennett, Director

Disability Rights Commission Wales:Will Bee, Director

Professor Vernon Bogdanor CBE FBA, Professor of Government, University of Oxford

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June 2003

12 London Professor David Butler

Dr Simon King

Lord Carlile of Berriew

Donald Anderson MP

Ian Lucas MP

Betty Williams MP

Gareth Thomas MP

Llew Smith MP

Hywel Williams MP

13 Cardiff National Botanic Garden of Wales:Professor Dianne Edwards, Acting DirectorMr Alan Hayward, Chairman of Trustees

Professor Richard Rawlings, Law Department,London School of Economics

Wales TUC:Felicity Williams, Assistant General SecretaryGraham Smith, General CouncilJeff Evans, General CouncilJim Hancock

Wales Transport Research Centre:Professor Stuart Cole

26, 27 Merthyr Tydfil Wales Council for Voluntary Action:Graham Benfield, Chief ExecutiveAnna Nicholl

Geraint Talfan Davies

Police Authorities of Wales (PAW):Councillor Ray Thomas, Chair, PAW & South Wales Police Authority Haydn Lewis, Chair, Dyfed Powys Police Authority

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June 2003

26, 27 Merthyr Tydfil Police Authorities of Wales (PAW)Viv Waters MBE JP, Chair, Gwent PoliceAuthorityLyn James, Financial Advisor, PAW & Treasurer,South Wales Police Authority Kelvin Dent, Legal Advisor, PAW and Clerk,North Wales Police AuthorityDaisy Seabourne, Policy Officer, PAW

The Law Society:Huw Williams, Working Party MemberVicki Chapman, Head of Law Reform Emyr Lewis

Chamber Wales:Paul Rutter, Chair

Wales Tourist Board:Nigel Adams, Head of Policy

Undeb Cenedlaethol Athrawon Cymru:Edwyn Williams, General Secretary Moelwen Gwyndaf, Secretary of Pensions, Pay,Working Conditions

Sports Council for Wales:Gareth Davies, ChairHuw Jones, Chief Executive

July 2003

10, 11 Cardiff Welsh Local Government Association:Sandy Blair, DirectorRussell Goodway, Spokesperson, Finance &Wales Programme for ImprovementColin Mann, WLGA Plaid Cymru Leader Steve Thomas, Head, Policy UnitRachel Jowitt, Policy Division

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July 2003

10, 11 Cardiff Parliament for Wales Campaign:David Morris, ChairDr John Cox FRSADr Russell Deacon

Meeting with members of the Welsh AffairsCommittee

Brian Hancock, Member of the First Assembly,National Assembly for Wales

Welsh Overseas Agencies Group:Stephen Thomas, Welsh Centre for International AffairsJohn Townley, Oxfam Cymru

Delyth Evans, Member of the First Assembly,National Assembly for Wales

Jill Evans MEP

Eurig Wyn MEP

Win Griffiths MP

Jon Owen Jones MP

Gareth Jones, Member of the First Assembly,National Assembly for Wales

Denzil Davies MP

25 Cardiff Kevin Brennan MP

The Rt Hon Rhodri Morgan AM, First Minister,National Assembly for Wales

Gwenda Thomas AM, Chair, Equality ofOpportunity Committee, National Assembly forWales

Llais y Ddraig Girlguiding Cymru:Caryn ParkerClaire Rogers

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July 2003

25 Cardiff Canllaw Online:Elise Stewart, Director

Council for Wales Voluntary Youth Services:Veronica Wilson, Chief Executive

Boys and Girls Clubs of Wales:Dave Evans, Chief Executive

Wales Youth Agency:Courtney Taylor, Training Manager

Lord Morgan of Aberdyfi

Chartered Institute of Housing Cymru:Keith Edwards, DirectorTamsin Sterling, Chair Louise Matts, Policy Officer

Alison Halford, Member of the First Assembly,National Assembly for Wales

Commission for Racial Equality:Dharmendra Kanani, Acting Director, Countries,Regions and Communities Bailjit Gill, Deputy Director, Countries, Regionsand Communities

Joint Committee for Ethnic Minorities in Wales:Tunji Fahm, Joint ConvenorSabz Ali Khan, Joint Convenor Sabrina Khan

September 2003

19 Cardiff The Lord Alderdice, Speaker of the NorthernIreland Assembly

Trade Union Side, National Assembly for Wales:Howie Oliver, ChairBev Bambrough, Vice ChairKevin Davies, SecretariatLaurie Pavelin

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annex 3: public meetings


Public meetingsDate Location

15 January 2003 Swansea

26 March 2003 Llandudno Junction

10 April 2003 Haverfordwest

8 May 2003 Llandrindod Wells

22 May 2003 Newport

26 June 2003 Merthyr Tydfil

10 July 2003 Cardiff

24 July 2003 Llanelwedd

7 August 2003 Meifod

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annex 3: public meetings


283

annex 4: index of written evidence


Index of written evidenceThe following individuals and organisations submitted written evidenceto the Richard Commission as part of its consultation. Copies of allsubmissions are published separately, and are also included on theattached CD-ROM, except for those few where the individuals ororganisations concerned requested that their evidence be treated asconfidential.

Written Evidence provided in support ofFormal Evidence Sessions

John Osmond, Institute of Welsh Affairs &Professor Keith Patchett, Institute of WelshAffairs

The Rt Hon Ron Davies AM

Jane Davidson AM, Minister for Educationand Lifelong Learning, Welsh AssemblyGovernment

Robert Buckland

Professor Martin Laffin, University ofDurham

Jane Hutt AM, Minister for Health andSocial Services, Welsh AssemblyGovernment

Andrew Davies AM, Minister for EconomicDevelopment, Welsh Assembly Government

Michael German OBE AM, Deputy FirstMinister and Minister for RuralDevelopment and Wales Abroad, WelshAssembly Government

Jenny Randerson AM, Minister for Culture,Sport and the Welsh Language, WelshAssembly Government

Alun Pugh AM, Minister for Culture, WelshLanguage and Sport, Welsh AssemblyGovernment

Sue Essex AM, Minister for theEnvironment, Welsh Assembly Government

Carwyn Jones AM, Minister for OpenGovernment, Welsh Assembly Government

The Lord Elis-Thomas AM, PresidingOfficer, of the National Assembly for Wales& Dr John Marek AM, Deputy PresidingOfficer of the National Assembly for Wales

Edwina Hart MBE AM, Minister forFinance, Local Government andCommunities, Welsh Assembly Government

Panel of Subject Committee Chairs,National Assembly for Wales

Kirsty Williams AM, Chair, Health & SocialServices Committee, National Assembly forWales

Richard Edwards AM, Chair, Environment,Planning & Transport Committee, NationalAssembly for Wales

Gwenda Thomas AM, Chair, LocalGovernment & Housing Committee,National Assembly for Wales

Mick Bates AM, Chair, LegislationCommittee, National Assembly for Wales

The Rt Hon Rhodri Morgan AM, FirstMinister, National Assembly for Wales

The Rt Hon Dafydd Wigley AM, Chair,Audit Committee, National Assembly forWales (& in a personal capacity)

Gareth Jones AM, Chair, Education &Lifelong Learning Committee, NationalAssembly for Wales

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Winston Roddick QC, Counsel General,National Assembly for Wales

Sir Jon Shortridge KCB, PermanentSecretary of the National Assembly forWales

The Rt Hon Sir David Steel KBE MSP,Presiding Officer of the Scottish Parliament

Andy Kerr MSP, Minister for Finance andPublic Services, Scottish Executive

Scottish Executive

Plaid Cymru The Party of Wales

Glyn Davies AM, Chair, Agriculture & RuralDevelopment Committee, NationalAssembly for Wales

Agriculture & Rural DevelopmentCommittee, National Assembly for Wales

Nick Bourne AM, Leader of the WelshConservatives in the National Assembly forWales

Welsh Conservative Party

Professor David Miers, Professor of Law,Cardiff Law School

David Lambert, Cardiff Law School

Welsh Liberal Democrats

The Rt Hon Peter Hain MP, Secretary ofState for Wales

UK Government

Electoral Reform Society

Wayne David MP

UNISON

Environment Agency Wales

CBI Wales

Enid Rowlands, Chair, National Council forEducation and Training in Wales

Welsh Language Board

Countryside Council for Wales

Cymdeithas yr Iaith Gymraeg

Arts Council of Wales

Mid & West Wales Fire Authority

All Wales Ethnic Minority Association

Dr Denis Balsom

National Museums & Galleries of Wales

National Farmers Union Cymru

Urdd Gobaith Cymru

Wales Young Farmers Clubs

Country Land & Business Association

Farmers Union of Wales

Meat Promotion Wales

Roy Norris

Association of National Parks Authorities

The National Trust

RSPB Cymru

Lord Livsey of Talgarth CBE

David Melding AM

CYTUN

Disability Wales

Stonewall Cymru

Wales Women’s National Coalition

Higher Education Funding Council forWales

Equal Opportunities Commission

Professor David Butler & Dr Simon King

North Wales Group of Labour MPs

Ian Lucas MP

Llew Smith MP

National Botanic Garden of Wales

Professor Richard Rawlings

Wales TUC



285



Wales Transport Research Centre

Wales Council for Voluntary Action

Dyfed Powys Police Authority

Police Authorities of Wales

North Wales Police Authority

The Law Society

Chamber Wales

Wales Tourist Board

Undeb Cenedlaethol Athrawon Cymru

Sports Council for Wales

Welsh Local Government Association

Welsh Local Government AssociationLabour Group

Parliament for Wales Campaign

Welsh Overseas Agencies Group

Delyth Evans, Member of the FirstAssembly, National Assembly for Wales

Win Griffiths MP

Jon Owen Jones MP

Denzil Davies MP

Kevin Brennan MP

Wales Labour Party

Council for Wales Voluntary Youth Service

Canllaw Online

Chartered Institute of Housing Cymru

Alison Halford, Member of the FirstAssembly, National Assembly for Wales

Commission for Racial Equality

Joint Committee for Ethnic Minorities inWales

The Lord Alderdice, The Speaker, NorthernIreland Assembly

Written evidence provided in responseto the Commission’s public consultationon the Powers and ElectoralArrangements of the National Assemblyfor Wales

Politicians and Political Parties

Leighton Andrews AM

Bargoed & Gilfach Labour Party

Carn Ward Labour Party

Wales Council of the Co-operative Party

Huw Irranca-Davies MP

Dr Brian Gibbons AM

Wales Green Party

John Griffiths AM

Mark Isherwood AM

Laura Ann Jones AM

Llandaf Branch Labour Party

Mold & District Labour Party

Mumbles Labour Party

Newport West Labour Party

Pengam Labour Party

Penyffordd & Penymynydd Labour Party

Plasnewydd Labour Party

Gwilym Prys Davies

The Rt Hon The Lord Roberts of Conwy

Treherbert Branch Labour Party

UK Independence Party

Usk & District Labour Party

The Rt Hon Alan Williams MP

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Local Government

Bridgend County Borough Council

Cil-y-Cwm Community Council

Coedffranc Community Council

Ferwig Community Council

Gowerton Community Council

Graig Community Council

Gwynedd Council

Llanfair-ar-y-Bryn Community Council

Llanuwchlyn Community Council

Llwchwr Town Council

Newport City Council

Pembrokeshire County Council

Powys County Council

Ruabon Community Council

Organisations and Institutions

Age Concern Cymru

Anti Poverty Network Cymru

Audit Commission in Wales

Auditor General for Wales

Richard Brunstrom, Chief Constable, NorthWales Police

Campaign for the Protection of Rural Wales– Newport and Valleys Branch

Care Council for Wales

Chamber Wales

Chartered Institute of Environmental Health

Community Enterprise Wales

Congregational Federation

Countryside Alliance Wales

CPT Wales

Cymuned

Engineering Employers Federation

ERA European Regional Affairs – Wales

Fairbridge De Cymru

Fforwm

Help the Aged

The Incorporated Law Society for Cardiff &District

Institute of Chartered Accountants inEngland and Wales

Mentrau Iaith Cymru

National Union of Students in Wales

Newport Crossroads Caring for Carers

North East Wales NHS Trust

North Wales Fire Authority

Police Federation of England and Wales

Powys Association of VoluntaryOrganisations

Presbyterian Church of Wales

Royal College of Nursing Wales

Royal Institution of Chartered SurveyorsWales

Royal Town Planning Institute in Wales

South & West Wales Fishing Communities Ltd

Standing Committee for Legal Wales

University of Bangor

University of Wales College Newport

Voluntary Arts Wales

Welsh Development Agency

Welsh Food Alliance



287



General Public

LG Ager

A Bevan

M Biggs

M Bird

Jonathan Bishop

D Bowen

Jon Brown

TH Brown

Gareth Butler

Robin Campbell

G Carruthers

J Chambers

M Child

Antony Peter Clark

Dr John Cox FRSA

DP Davies

GV Davies

John Davies

J Davies

L Davies

Nancy Davies

R Davies

M Day

EM Edwards

A Eickhoff

WB Evans

Dean Flowers

A Griffith

BJ Gooch

DT Hardacre

KA Harris

K Hayden

T Hellis

BR Hood

Ken Hopkins

RL Howell

Gerallt Huws

G & S Jackson

CV James

I James

Ken James

Leighton Jenkins

D Elwyn Jones

A Lloyd Jones

Clive M Jones

Silvan Jones

G Kensler

R Kitaruth

Tom Lamrick

A Lockhead

Luke Magee

J McDougall

Patrick McGuinness

B Mee

M Moffatt

T Morgan

K Morgan

Ian Murray

Aharon Nathan

Roy Noble OBE

GD Northam

Commissioned Papers

The following papers were commissioned to assist the Commission in its work. Somehave been published separately by the individuals or bodies concerned.

Bradbury, J. The division of labour between AMs and MPs: multi-level politics and localrepresentation in Wales, 2004.

Cooke, N. Criminal justice policy and the operation of the criminal justice system,2003.

Davies, I. and Evans, R. The implications for the court and tribunal system of anincrease in powers, 2003.

288

Colin Nosworthy

Richard Noyce

J Owen

L Owen

S Owen

R Page

AW Pearcy

C Pearcy

Hilary Pepler

WC Philpin

P Powell

V Power

Dr RF Purnell

Jeff Rees

Ralph Rees

Ioan M Richard

Alun John Richards

D Roberts

Gwyn Roberts

J Roscoe

DC Sage

Tom Saul

T Scales

I Seaton

J Sheppard

Cllr Chris Simpson

Cllr VE Smith & EG Smith

VH Stacey

M Symes

T Tobin

Derek Tong

B Tudor

R Tyler

JR Walker

JPG Walters

RG Waters

E Williams

Gareth Williams

JB Williams

ME Williams

O Williams

T Williams

Y Wood

Gareth Woodham

FC Wykes



289



Grange, T. Criminal justice policy and the operation of the criminal justice system,2003.

Howell-Richardson, P. The Impact of the last three years on the courts, tribunals andprofessions, 2003.

Jarman, M. A Barrister’s perspective on problems with current legislation and policymaking in Westminster and Cardiff, 2003.

Jeffery, C and Reilly, A. Powers and electoral arrangements: international comparisons,2003.

Laffin, M. An introduction to the issues facing the Commission, 2002.

Lewis, C. The structure of the devolution settlement in Wales, 2003.

Lewis, E. A Solicitor’s perspective on problems with current legislation and policy makingin Westminster and Cardiff, 2003.

Miers, D. Practical factors to be considered in relation to an increase in legislativepowers of the Assembly, 2003.

Neale, N. The contribution of the legal profession to the economic development againstthe background of extended powers; the potential benefits of working together moreeasily in a small country, 2003.

Rowlands, E. Whitehall’s last stand, 2003.

Scully, R. and Wyn Jones, R. Public opinion, the National Assembly & devolution –briefing note on the latest evidence. Dept of International Politics, Aberystwyth, 2003.(Updated version of earlier paper, Public attitudes on the devolution settlement in Wales,presented to the Commission in October 2002.)

Williams, H. A Legal Perspective on issues relating to an increase in the powers of theNational Assembly for Wales, 2003.

290



291

annex 5: primary legislationaffecting Wales


England and Wales Acts whose provisionsrelate only to England, and ConsolidatedFund, Finance and Appropriation Acts,have not been listed.

All legislation that confers functions on theAssembly is shaded. The number and

scope of the functions conferred byindividual Acts varies considerably. In somecases (such as the Regulation ofInvestigatory Powers Act 2000), thefunctions conferred on the Assembly alsoapply to other public authorities covered bythe Act concerned.

ACT

2003

Anti-social Behaviour Act

Arms Control and Disarmament (Inspections) Act

Aviation (Offences) Act

Communications Act

Community Care (Delayed Discharges etc.) Act

Co-operatives and Community Benefit Societies Act

Courts Act

Crime (International Co-operation Act)

Criminal Justice Act

Dealing in Cultural Objects (Offences) Act

Electricity (Miscellaneous Provisions) Act

European Parliament (Representation) Act

Extradition Act

Female Genital Mutilation Act

Primary legislation affectingWalesThis annex lists Acts of the UK Parliament affecting Wales that havebeen made between 1 July 1999 - 31 December 2003 (based on thedate of Royal Assent).

292



ACT

2003

Fire Services Act

Fireworks Act

Health (Wales) Act

Health and Social Care (Community Health and Standards) Act

Household Waste Recycling Act

Human Fertilisation and Embryology (Deceased Fathers) Act

Income Tax (Earnings and Pensions) Act

Industrial Development (Financial Assistance) Act

Legal Deposit Libraries Act

Licensing Act

Local Government Act

Marine Safety Act

National Lottery (Funding of Endowments) Act

National Minimum Wage (Enforcement Notices) Act

Ragwort Control Act

Railways and Transport Safety Act

Sexual Offences Act

Sustainable Energy Act

Waste and Emissions Trading Act

Water Act

2002

Adoption and Children Act

Animal Health Act

British Overseas Territories Act

Civil Defence (Grant) Act

Commonhold and Leasehold Reform Act

293



ACT

2002

Commonwealth Act

Copyright, etc. and Trade Marks (Offences and Enforcement) Act

Copyright (Visually Impaired Persons) Act

Divorce (Religious Marriages) Act

Education Act

Employee Share Schemes Act

Employment Act

Enterprise Act

European Communities (Amendment) Act

European Parliamentary Elections Act

Export Control Act

Football (Disorder) (Amendment) Act

Homelessness Act

Industrial and Provident Societies Act

International Development Act

Land Registration Act

Mobile Telephones (Re-programming) Act

National Health Service Reform and Health Care Professions Act

National Heritage Act

National Insurance Contributions Act

Nationality, Immigration and Asylum Act

Office of Communications Act

Police Reform Act

Private Hire Vehicles (Carriage of Guide Dogs etc.) Act

Proceeds of Crime Act

Public Trustee (Liability and Fees) Act

294

ACT

2002

Sex Discrimination (Election Candidates) Act

State Pension Credit Act

Tax Credits Act

Tobacco Advertising and Promotion Act

Travel Concessions (Eligibility) Act

2001

Anti-terrorism, Crime and Security Act

Armed Forces Act

Capital Allowances Act

Children’s Commissioner for Wales Act

Criminal Defence Service (Advice and Assistance) Act

Criminal Justice and Police Act

Elections Publications Act

Elections Act

European Communities (Finance) Act

Health and Social Care Act

House of Commons (Removal of Clergy Disqualification) Act

Human Reproductive Cloning Act

International Criminal Court Act

Private Security Industry Act

Rating (Former Agricultural Premises and Rural Shops) Act

Regulatory Reform Act

Social Security Contributions (Share Option) Act

Social Security Fraud Act

Special Educational Needs and Disability Act

Vehicles (Crime) Act



295



ACT

2000

Armed Forces Discipline Act

Care Standards Act

Carers and Disabled Children Act

Census Amendment Act

Children (Leaving Care) Act

Child Support, Pensions and Social Security Act

Countryside and Rights of Way Act

Criminal Justice and Court Services Act

Crown Prosecution Inspectorate Act

Disqualifications Act

Electronic Communications Act

Financial Services and Markets Act

Football Disorder Act

Freedom of Information Act

Fur Farming (Prohibition) Act

Government Resource and Accounts Act

Health Service Commissioners (Amendment) Act

Insolvency Act

Learning and Skills Act

Licensing (Young Persons) Act

Limited Liability Partnerships Act


Nuclear Safeguards Act

Political Parties, Elections and Referendums Act

Postal Services Act

Powers of Criminal Courts (Sentencing) Act

296

ACT

2000

Protection of Animals (Amendment) Act

Race Relations (Amendment) Act

Regulation of Investigatory Powers Act

Representation of the People Act

Sea Fishing Grants Act

Sexual Offences (Amendment) Act

Television Licences (Disclosure of Information) Act

Terrorism ActACT Venue

Transport Act

Trustee Act

Utilities Act

Warm Homes and Energy Conservation Act

1999 (1 July onwards)

Protection of Children Act

Trustee Delegation Act

Disability Rights Commission Act

Adoption (Intercountry Aspects) Act

Company and Business Names (Chamber of Commerce, Etc.) Act

Commonwealth Development Corporation Act

Football (Offences and Disorder) Act

Access to Justice Act

Youth Justice and Criminal Evidence Act

Pollution Prevention and Control Act

Criminal Cases Review (Insanity) Act

Employment Relations Act



297



ACT

1999 (1 July onwards)


Food Standards Act

Welfare Reform and Pensions Act

Contracts (Rights of Third Parties) Act

Immigation and Asylum Act

House of Lords Act

298



299

annex 6: Acts of the first session ofthe Scottish Parliament, 1999-2003


Name of Act Size

2003

Local Government in Scotland Act 62 sections

Land Reform (Scotland) Act 100 sections 2 schedules

Water Environment and Water Services 38 sections 4 schedules(Scotland) Act

Public Appointments and Public Bodies etc. 21 sections 4 schedules(Scotland) Act

Protection of Children (Scotland) Act 22 sections 2 schedules

Budget (Scotland) Act 11 sections 5 schedules

Criminal Justice (Scotland) Act 89 sections 5 schedules

Building (Scotland) Act 59 sections 6 schedules

Title Conditions (Scotland) Act 129 sections 15 schedules

Homelessness etc (Scotland) Act 14 sections 1 schedule

Agricultural Holdings (Scotland) Act 95 sections 1 schedule

Dog Fouling (Scotland) Actb 18 sections

Mental Health (Care and Treatment) 333 sections 6 schedules(Scotland) Act

Council of the Law Society of Scotland Actb 3 sections

Salmon and Freshwater Fisheries (Consolidation) 71 sections 4 schedules(Scotland) Act

National Galleries of Scotland Actc 3 sections

Commissioner for Children and Young People 17 sections 2 schedules(Scotland) Acta

Acts of the first session of theScottish Parliament, 1999-2003

300

Name of Act Size

2002

Scottish Local Government (Elections) Act 7 sections

School Education (Amendment) (Scotland) Act 3 sections

Water Industry (Scotland) Act 72 sections 7 schedules

Criminal Procedure (Amendment) (Scotland) Act 2 sections

Community Care and Health (Scotland) Act 27 sections 2 schedules

Protection of Wild Mammals (Scotland) Actb 12 sections 1 schedule


Marriage (Scotland) Act 2 sections

Sexual Offences (Procedure and Evidence) 11 sections 1 schedule(Scotland) Act

Fur Farming (Prohibition) (Scotland) Act 6 sections

Scottish Public Services Ombudsman Act 27 sections 7 schedules

Education (Disability Strategies and Pupils’ 7 sectionsEducational Records) (Scotland) Act

Freedom of Information (Scotland) Act 76 sections 4 schedules

Scottish Qualifications Authority Act 6 sections

University of St. Andrews (Postgraduate MedicalDegrees) Actb 2 sections

Scottish Parliamentary Standards Commissioner 21 sections 1 scheduleActa

Debt Arrangement and Attachment (Scotland) Act 64 sections 3 schedules

2001

Abolition of Poindings and Warrant Sales Actb 4 sections 1 schedule

Transport (Scotland) Act 84 sections 2 schedules

Salmon Conservation (Scotland) Act 3 sections


Leasehold Casualties (Scotland) Actb 11 sections 2 schedules



301



Name of Act Size

2001

Education (Graduate Endowment and Student 5 sectionsSupport) (Scotland) Act

Convention Rights (Compliance) (Scotland) Act 15 sections 1 schedule

Regulation of Care (Scotland) Act 81 sections 4 schedules

Scottish Local Authorities (Tendering) Act 2 sections

Housing (Scotland) Act 113 sections 10 schedules

Mortgage Rights (Scotland) Actb 7 sections 1 schedule

Erskine Bridge Tolls Act 2 sections

International Criminal Court (Scotland) Act 30 sections

Protection from Abuse (Scotland) Acta 8 sections

Police and Fire Services (Finance) (Scotland) Act 3 sections

2000

Public Finance and Accountability (Scotland) 30 sections 4 schedulesAct


Census (Amendment) (Scotland) Act 2 sections

Adults with Incapacity (Scotland) Act 89 sections 6 schedules

Abolition of Feudal Tenure etc. (Scotland) Act 77 sections 13 schedules

Standards in Scotland’s Schools etc. Act 61 sections 3 schedules

Ethical Standards in Public Life etc. (Scotland) Act 37 sections 4 schedules

Education and Training (Scotland) Act 4 sections

Bail, Judicial Appointments etc. (Scotland) Act 13 sections 1 schedule

National Parks (Scotland) Act 37 sections 5 schedules

Regulation of Investigatory Powers (Scotland) Act 32 sections

Sea Fisheries (Shellfish) Amendment (Scotland) 2 sectionsActb

302



Name of Act Size

1999

Mental Health (Public Safety and Appeals) 4 sections(Scotland) Act

Notes

a. Committee Bill

b. Member’s Bill

c. Private Bill

303

annex 7: Acts of the Northern IrelandAssembly, 1999-2002


Name of Act Size

2002

Industrial Development Act (Northern Ireland) 8 sections 1 schedule

Game Preservation (Amendment) Act 4 sections 1 schedule(Northern Ireland)

Budget Act (Northern Ireland) 7 sections 4 schedules

Local Government (Best Value) Act 7 sections(Northern Ireland)

Personal Social Services (Preserved Rights) Act 8 sections 1 schedule(Northern Ireland)

Carers and Direct Payments Act (Northern Ireland) 12 sections 1 schedule

Budget (No. 2) Act (Northern Ireland) 6 sections 3 schedules

Railway Safety Act (Northern Ireland) 9 sections 2 schedules

Health and Personal Social Services Act 5 sections 1 schedule (Northern Ireland)

Social Security Act (Northern Ireland) 10 sections 2 schedules

Children (Leaving Care) Act (Northern Ireland) 9 sections

Limited Liability Partnership Acts (Northern Ireland) 16 sections 1 schedule

Open-Ended Invested Companies Act 5 sections(Northern Ireland)

State Pension Credit Act (Northern Ireland) 21 sections 3 schedules

2001

Dogs (Amendment) Act (Northern Ireland) 6 sections

Planning (Compensation, etc.) Act (Northern Ireland) 7 sections 3 schedules

Health and Personal Social Services Act 61 sections 5 schedules(Northern Ireland)

Acts of the Northern IrelandAssembly, 1999-2002

304

annex 7: Acts of the Northern IrelandAssembly, 1999-2002


Name of Act Size

2001

Fisheries (Amendment) Act (Northern Ireland) 9 sections

Ground Rents Act (Northern Ireland) 33 sections 3 schedules

Government Resources and Accounts Act 29 sections 2 schedules(Northern Ireland)

Budget Act (Northern Ireland) 5 sections 3 schedules

Street Trading Act (Northern Ireland) 30 sections 3 schedules

Electronic Communications Act (Northern Ireland) 5 sections

Defective Premises (Landlord’s Liability) Act 6 sections(Northern Ireland)

Adoption (Intercountry Aspects) Act 16 sections 1 schedule(Northern Ireland)

Family Law Act (Northern Ireland) 5 sections

Product Liability (Amendment) Act 3 sections(Northern Ireland)

Trustee Act (Northern Ireland) 46 sections 4 schedules

Department for Employment and Learning Act 1 section(Northern Ireland)

Budget (No. 2) Act (Northern Ireland) 6 sections 3 schedules

Social Security Fraud Act (Northern Ireland) 18 sections 1 schedule

2000

Financial Assistance for Political Parties Act 4 sections(Northern Ireland)

Appropriation Act (Northern Ireland) 5 sections 2 schedules

Allowances to Members of the Assembly Act 5 sections 1 schedule(Northern Ireland)

Child Support, Pensions and Social Security Act 69 sections 9 schedules(Northern Ireland)

Weights and Measures (Amendment) Act 5 sections 1 schedule(Northern Ireland)

305

annex 8: letter to the Chair


William Smith BuildingHigh Street

Merthyr TydfilCF47 8AT

27 February 2004

At our concluding meeting on January 30th, I suggested, and Commissionersagreed, that I should put, in a letter to you, the reservations I expressed at themeeting.

I now do so.

I do not believe that the experience and evidence of just four years of the devolutionsettlement justifies concluding, at this stage, that it should be supplanted by analternative model, which was not adopted in 1997/1998 by the elected governmentand Parliament of the day.

However, the experience of operating the settlement over the coming years mayjustify such a change. If so, I believe our report will make a major contribution toan informed debate. It offers to the political parties and the public a coherentalternative model for a legislative Assembly, which, if supported by the Welsh peoplein a referendum, could form the basis for further constitutional change.

Ted Rowlands

Letter to the Chair

306

notes


307

notes


308

notes


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