RESPONSE
Contents
The Chartered Institute of Environmental Health (CIEH) is a charity promoting environmental health issues. It has no political affiliation. We welcome the opportunity to comment on this important issue.
This response will deal with the questions posed in the body of the Consultation Document, and thereafter will make general comments based upon the collective response of Environmental Health Practitioners in Wales.
In what practical ways do the powers of the Assembly, or the limits if its powers, impinge on the CIEH on the people that we serve?
The majority of Environmental Health Practitioners in Wales are employed by Local Authorities. They are therefore able to accurately determine the public health needs of a local population and the condition of the local environment and the pressures upon it. The fact that the Assembly has the power to make secondary legislation means that it is in a position to enact legislation that deals with issues specific to Wales and provides solutions that may be appropriate for Wales but may not be appropriate for England. Issues that are specific to regions of the UK are often not best served by a ‘one size fits all’ policy or the legislation that flows from it, the power of the Assembly to make legislation, albeit secondary, goes some way to providing the flexibility needed to deal with regional issues in a ‘best fit’ way.
The fact that the Assembly can make only secondary legislation is restricting, in that the legislation it makes, or seeks to make, relies upon there being primary legislation in place covering England and Wales from which the secondary legislation takes its legitimacy. Where primary legislation is in place the Assembly can move to make secondary legislation, where however the primary legislation is not in place it must wait for action to be taken at Westminster. In such cases it is clearly arguable that the primary legislation should be worded such that it deals with the issue as it affects both England and Wales and there should be no need for secondary legislation to be made in Wales to make the legislation region specific or to add to the primary Act.
The best general example that we can offer is that of the Welsh language. It is difficult to reconcile the position where the government at Westminster has to pass a Welsh Language Act, of almost exclusive application to Wales, before the Assembly government can make regulations regarding use of the Welsh language in Wales. This is hardly good use of parliamentary time in Westminster, and diminishes the role of the Assembly in respect of a subject that should be a matter for its exclusive consideration.
Where issues relate only to Wales the National Assembly for Wales should have the power to make primary legislation, in order to deal with that issue in a comprehensive and region-sensitive way.

Best examples of this from the point of view of the CIEH

The CIEH considers that one of the best examples of the Assembly using its powers is in the way that health services, and specifically public health is being delivered in Wales. There is clear divergence between England, where Primary Health Care Trusts will deliver health care to the position in Wales, where health care, including pubic health will be delivered through Local Health Boards. The Assembly has also put in place the Wales Centre for Health to oversee the delivery of public health and the ability to promote public health as part of the overall health agenda. The Assembly has sought to provide a health care system that responds to the needs of Wales, and which is markedly different from that in England. Although neither system is yet tested to the point where comparisons of effectiveness can properly be made it that fact that Wales has a unique and tailored system to meet its specific needs is encouraging and demonstrates the ability of the Assembly to meet a regional need with a regional solution.
The need however for the Assembly to consider local solutions can however lead to frustrating delays in the delivery of legislation which is a vital tool for Environmental Health Practitioner in Wales. This is best demonstrated by the position in respect of abandoned vehicles. Abandoned vehicles are a particular problem in Wales, being a potential danger to children, an indicator of the deterioration of an area and a serious blemish in areas in which local authorities seek to promote tourism.
In April 2002 the DETR announced new powers for local authorities in England to remove abandoned vehicle within 24 hours. This measure was introduced after national consultation exercise had been undertaken to which bodies in Wales responded. At the time of this response (December 2002) no such similar measure has been introduced in Wales, notwithstanding the participation of Welsh bodies in the consultation exercise, although the Assembly has indicated that it is considering the implications of making legislation to bring Wales into line with the position in England. Until such time as this is done local authorities in Wales will continue to have to give 7 days notice of intention to remove abandoned vehicles. Such a long lag phase is undesirable, particularly after a national consultation has been carried out. Whilst the CIEH appreciates the desire of the Assembly to ‘get it right’, we cannot see that delays of such magnitude are necessary in such cases, and they lead to the view that the Assembly is slow and is concerned more to be different to England than to provide an effective and speedy response.
We would also point to the Assembly initiative to provide free bus transport for pensioners. We make no comment about the policy itself, but note that the fact that the Assembly cannot fund this initiative itself through taxation revenue has meant that local authorities have been obliged to funds the scheme. In doing so money has been diverted for other projects, such as environmental monitoring and public health initiatives, which may, in the round, have a detrimental effect on those served by the free bus travel initiative.
Does the Government of Wales Act provide the Assembly with the powers it needs to operate effectively and meet the expectations of the people of Wales?
No. As with any controlling body to operate effectively the National Assembly needs to be able to govern as the primary governing body of the region and to be able to deliver its initiatives by raising the necessary finance to do so. Whilst the people of Wales were aware that the proposed Assembly would not have these powers the effect of their absence has only become clear as the Assembly has begun to conduct its business, and has lead to the recognised public disillusionment with the Assembly as a governing body.
The Government of Wales Act does not give the National Assembly the powers to vary taxation or to make primary legislation. The effect of this is that taxation is levied by the Westminster government through primary taxation measures and by local authorities through the Community Charge. Whilst the Assembly may propose initiatives for Wales it may not be able to deliver them unless it is provided with the necessary finance by Westminster, and hence it cannot operate effectively to deliver what it has identified as necessary or desirable measures.
The fact that the Assembly does not have the power to make primary legislation means that it is required to feed of primary legislation in place in England and covering Wales or to wait for primary legislation to be enacted by the Westminster government. This is not efficient, and it does not lead to effective government.
Whether, and if so how, the powers should be extended, strengthened and changed and whether they should include tax varying powers.
While the Assembly does not have the power to make primary legislation the weaknesses identified above will continue. There is however clear benefit in legislation that extends across the whole of the UK, e.g. food hygiene legislation, food labelling regulations etc., since the consumer is afforded the same level of protection across the whole of the UK, and there is certainty as to position for manufacturers and retailers. It would also be undesirable if legislation were to evolve differently in England and Wales such that e.g. employees were afforded less protection in law in Wales than those in the same type of employment in England.
The present system is unsatisfactory, however this lies as much with the slow manner in which primary legislation is progressed through the Westminster government as with the lack of primary legislative power of the Assembly. One way in which this could be overcome would be if the government made guaranteed time available at Westminster for primary legislation to be advanced at the request of the National Assembly for Wales. This would elevate such legislation in the parliamentary timetable and ensure that it would be considered expediently, whilst maintaining the present strength that flows from having the same primary legislative provisions applicable in England and Wales.
The CIEH makes no comment in respect of tax variance powers.
Is it inevitable that the Assembly would need to be reconstituted on the Parliamentary model?
Although the Assembly set out to be a less confrontational and a more co-operative body than the Westminster Parliament, it has evolved to act in the same manner as Westminster. Given that issues are usually discussed from a party political stance this is almost inevitable. In the event of the Assembly having greater law making powers the party political slant is likely to be come more pronounced and therefore the confrontational style is likely to continue.
It would therefore seem to be inevitable that the Parliamentary model would have to be followed.
Organisational changes – gains and losses
As Assembly operating to a Parliamentary model would be more recognisable as ‘government’ to members of the public that the ‘Committee’ style presently attempted, hence there may be greater recognition of the Assembly as ‘government’ than at present. This would be a positive step.
A Loss would be the loss of members individuality – the party whip would take precedence in important issues over the conscience of members, which would clearly be to the detriment of the overall system.
CIEH makes no comment regarding organisational changes.
Effectiveness of the Assembly in influencing UK Government policy
The CIEH has no evidence as to the effectiveness or otherwise of the National Assembly in this regard and therefore makes no comment.
Advantages and disadvantages of shared law making process, respective contributions of AMs, MPs and Peers.
An advantage of the shared law making process, as at present, is that the Welsh dimension to any legislation, in theory is debated three times, once at the Assembly, by AMs and again in Westminster by MPs, some of whom will have constituencies in Wales. The English dimension does not have this dual consideration, being considered only in Westminster. The final consideration in the House of Lords applies to both England and Wales.
It is an inevitable consequence of a procedure that requires the Assembly to consider a proposal and report its view to Parliament before the issue is debated in the House of Commons and then the House of Lords that the mechanism will be slow and unwieldy. It does not allow for rapid response to emerging issues, and given the pressure on parliamentary time, can result in matters being lost due to insufficient time being available.
A further disadvantage of shared system as at present is that the view of the Welsh Assembly can be overruled by the party whip system being enforced by the government of the day. This is an inevitable consequence of the government having a large majority, but has the effect of rendering the Assembly impotent.
Gains and losses if Cardiff had primary legislative powers.
The primary gain would be in time taken to legislate – legislation debated and enacted in Cardiff would come onto the statute book much more quickly than at present. The debate would also centre around solely Welsh issues, with no requirement to take account of the position in England. This would mean that legislation would be much more region specific and would address the position in Wales, rather than having to be applicable to both England and Wales.
There is potential for confusion to arise if legislation in England and Legislation on the same meter in Wales is different – for example safety advice might differ between England and Wales leading in consequence to different safety standards being included within legislation. This would lead to confusion and to difficulties for manufacturers who may see commercial benefit in locating in one region to the exclusion of the other.
Another loss would be the consideration of the legislation emerging from Cardiff by an Upper House. No such upper chamber exists in Cardiff therefore there would be no scrutiny of the legislation emerging from the Assembly.
Welsh interests and the role of Welsh MPs
Welsh MPs would have no valid contribution to make to legislation that was to be effective only in England, although it is noted that Scottish MPs continue to debate and vote on emerging legislation in Westminster notwithstanding the fact that the Scottish Assembly has primary legislative powers.
An important remaining role for Welsh MPs would be to lobby the Chancellor of the Exchequer in respect of funding for Wales, since it is not suggested in the present scenario that the Assembly would have tax varying powers. This being the case it would be important for Welsh MPs to be active in respect of finance to ensure that the Welsh Assembly would have sufficient money to implement its policies. They would also act as ‘ambassadors’ for Wales within Westminster, raising the profile of Wales and promoting Welsh interests. It is hard however to escape the conclusion that the importance of their role would be much diminished were Cardiff to have primary legislative power.
The clear risk of this change would be that the interests of Wales would be sidelined at Westminster, and Wales would be left to fend for itself. This is not to say that Wales is incapable of doing so, but rather to note that where there has been effective England and Wales linkage this would be lost, and the loss may diminish both England and Wales.
Welsh interests and the reduction of the role of the Secretary of State in the event of primary legislative power passing to the Assembly
There appears to be some public confusion as to the respective roles of the First Minister of the Assembly and the Secretary of State for Wales. It is not at all clear which is the more ‘senior’ role, which has the greater power and which the greater influence. In the event of primary legislative power passing to the Assembly it is difficult to see a role for the Secretary of State for Wales – the First Minister would inevitably pick up most of his function. This would remove uncertainty in the minds of the public and would elevate the role of the First Minister.
It is not clear that Welsh interests would be affected since the function could pass to the First Minister, or could be split between Cabinet Ministers of the Assembly. The role of the Secretary of State in advising the Prime Minister and Cabinet on Welsh issues would not be so important since the Assembly would be the body having primary responsibility for those matters, hence this function would be come redundant.
Gains and losses in policy development and implementation if there were to be clear separation between England and Wales
There would be additional cost were it to be the case that research that has previously been done ‘centrally’ in respect of policy covering England and Wales were to be undertaken separately in both countries. This may be justified where the issue is relevant only to one of the countries, but would be a waste of resources where the issue is a matter of mutual applicability and concern. Simultaneous development and implementation would be lost where matters were of mutual applicability, one country would be ahead of the other if timetables were different.
There would be savings where a matter was not of concern to one of the countries, as the non-involved country would not expend monies on research and implementation.
There would also be a clear gain in the speed at which legislation could be enacted within Wales, allowing for legislation to keep up with changing events much better than it presently does. An example of this is in legislation making counterfeiting of IT software an offence, which cannot keep track with IT development. A further example is in control over importation of exotic foodstuffs, which is out of date, but which is being taken forward too slowly to have any effect on the importation and trade in the material. Quicker legislative response would allow for more effective control.
Financial Context
The CIEH makes no comment in this regard.
Funding Streams
The CIEH receives no funding from central government or from the National Assembly for Wales. Those of our members most affected by changes to funding streams would be those employed by local authorities, which will be making their own response to this Consultation Document. The CIEH therefore makes no comment in this regard.
General Comments
The CIEH is committed to promoting environmental health, raising the profile of public health matters and seeking environmental improvements. We support any system of governance that will make the achievement of our aims more effective, efficient and expedient. All of the above comment should be read having regard to these aims, and the fact that the CIEH has no alignment to any political party.
The CIEH would be happy to clarify or expand upon any points arising from this response, and to comment upon any further proposals on this subject.