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A living constitution verses a body corporate
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| There is a great
difficulty [for] a writer who attempts to sketch a living
Constitution, — a Constitution that is in actual
work and power… the object is in constant change…
a contemporary writer who tries to paint what is before
him is puzzled and perplexed; what he sees is changing
daily.’.... (Bagehot, The English Constitution,)11 |
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'We have transformed ourselves
into as much of a simulacrum of the conventional Westminstermodel
as the constraints of the Government of Wales Act allow
us.’ ....(Presiding Officer,DafyddEllis-Thomas)12
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| Before looking at the scrutiny powers of
committees it’s important to compare the constitutional
relationship between the committees and the executive
of both institutions. The constitutional framework acts
as the stage upon which the committees play their roles,
fundamentally affecting the powers they have and the manner
in which they are used. The Assembly and Parliament could
not be more different in this way. Parliament’s rights
have been present for almost a thousand years; the Assembly-
for not even four years. Parliament’s historic supremacy
is built on a myriad of constitutional conventions and
historic rights which runs like a thread through the fabric
of British democracy. The Assembly’s powers are codified
and set out in the Government of Wales Act 1998. |
| Parliamentary Sovereignty verses Ministerial
Accountability |
| Unlike in the Assembly, the source of Select
Committee power is disputed.13 The theory of ‘Parliamentary
Supremacy’ that ‘Parliament can do anything
except bind its successors is the official ideology of
the British Constitution.’14
Select Committees assume their power comes from this fundamental
doctrine of constitutional law. They ‘exercise their
formal powers to inquire into policy and actions of departments
because Parliament is sovereign and has established the
select committees to monitor Government departments on
its behalf, giving them the traditional powers to send
for person and papers.’15
However, successive governments have held to the line
that they ‘exercise their formal powers to inquire
into policies and actions of departments by virtue
of the accountability of Ministers to Parliament.’16
If the government accepted that Parliament is supreme
they could not justifiably withhold information or fail
to co-operate with select committees. By limiting the
powers of committees to a constitutional convention,
they are saying that ‘select committees can require
ministers to account but only within the conventional
framework of restrictions developed by modern government.’17
This, although it is not the dominant theory of
select committee power it is the reality of how
power has been exercised since 1979. |
| The fundamental power difference between
these two breeds of committee is one of limited- certainty
verses unlimited- uncertainty. The Assembly subject
committees have limited powers but because the
powers they have are written in the Government of Wales
Act 1998 they have a certainty of power that Westminster
simply cannot match. On the other hand, Westminster committees-
with their ties to history have, in theory, unlimited
powers due to the constitutional convention of Parliamentary
Sovereignty, backed up by House of Commons Standing Orders.
But as a court judgment in 1849 viewed their powers to
be ‘unqualified,’ such power is uncertain
as the nature of our ‘living constitution’ means
there is an eternal ‘tug of war’ between successive
executives and legislatives over the extend and use of
such powers.18 |
| The Assembly committees’ relationship
with the executive (Welsh Assembly Government- WAG) is
similarly complex. The Assembly is a corporate body, namely,
the legislative and executive functions are combined so
an executive decision is, in law, a decision of the entire
Assembly and, by inference, each Assembly Member.19 Thus, as the above quote from the Director
of the Welsh Governance Centre shows, the committees are
a constitutional hybrid. Unlike Select committees, they
are empowered, to ‘contribute to the Assembly’s
policies.20 The main advantage over select
committees is, therefore, a certainty of power. The National
Assembly Advisory Group, the Act and Assembly standing
orders make clear that the committees have several formal
roles. The question in Wales is not one of uncertainty
of power, the theory is clear; the reality does not follow
the theory. This will be discussed later. |
| The Assembly, therefore, is a ‘child
without a parent’ it cannot call upon constitutional
conventions or comfortable precedents, it has no Erskine
May.21 The
rebirth of democracy in Wales is no small event. It may
be unnecessarily romanticising devolution but if we use
the example of Parliament we can clearly see that precedents
made in the Assembly’s early years may bind
successors for decades to come. Any conventions made,
however, must be within the powers of the Act. Conventions,
of course, have no formal procedure; they develop via
habit to become the ‘accepted way of doing things.’
From interviews of key office holders both within the
Office of the Presiding Officer and Assembly Members,
it is clear that there is no accepted constitutional vocabulary
of accountability via committees. Assembly equivalents
of ‘parliamentary supremacy’ and a feeling of
dominance over the executive are not widely held within
the committees.22 A more common view is one of ministerial accountability.
‘We hold the Minister to account, and we hold his
civil servants to account through him.’23
This view can be backed up by the Assembly’s own
standing orders for committees which stipulate their first
task is to ‘Contribute to the development of the
Assembly’s policies… for which the relevant
Minister is accountable to the Assembly.’24
Whether intentional or not, the Assembly has given latent
approval to the convention of ministerial accountability
rather than nurture a convention of ‘Assembly supremacy.’
This is surprising especially in light of its legal status
as a ‘body corporate.’ Parliament has bitterly
refusing to accept anything other than supremacy long
before departmental select committees came into being.
Time will tell whether this will hinder or help the committees
in their scrutiny role. |
| Some Assembly ‘constitutional conventions’
have already been made. The ‘corporate’ structure
has acted like a straight jacket on the intentions to
formally separate the powers of WAG and the ‘‘legislature’s’’
management (the Office of the Presiding Officer (OPO)).
The OPO is responsible for the committee secretariat,
the chamber secretariat, and other administrative staffs
who do not advise ministers but serve all members of the
Assembly regardless of political party or party strength.
Formal agreements are in place between the Presiding Office
and the Permanent Secretary to ensure that OPO staff can
act independently of the Assembly Government.25
However, this is not legally binding. The staff within
OPO remain accountable to the Permanent Secretary and
ultimately to the Cabinet Secretary in Whitehall.26 This means all committee clerks are technically
accountable to the Executive’s own chief civil servant.
However, the Assembly has approved a motion to adopt the
‘principle that there should be the clearest possible
separation between the Government and the Assembly which
is achievable under current legislation.27" A de facto if not
de jure separation of powers.28
As this convention is not ‘within’ the Government
of Wales Act it has no legal authority. It is weaker than
the non-legally binding Memorandums of Understanding and
concordats as they have the formal approval of those at
the top of the Assembly and central Government.29 A change of Permanent Secretary or Presiding
Officer or a change in political will in London could
result in its reform. Two other conventions have been
the renaming all Assembly ‘Secretaries’ as ‘Ministers.’
Such a renaming is not technically legal as the Act refers
only to ‘secretaries.’ So too is the creation
of four ‘deputy Ministers’ who shadow several
portfolios at once.30
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| The ‘Body Corporate,’ therefore,
is a limit on effective scrutiny. Clear separation of
powers between Parliament and government- Westminster
and Whitehall- has long been established. Although there
has been no reported evidence of pressure from the Welsh
Assembly Government on OPO staff the mere presence of
the corporate arrangement does nothing to encourage searching
scrutiny. The job of a clerk is to aid the committee fulfil
its functions. One of its functions is effective scrutiny,
the ‘body corporate’ does nothing to promote
and reward scrutiny of the executive as many ‘[committee]
staff believe their careers could be jeopardised if they
help a Committee to subject senior officials -who might
be their line managers in their next job- to uncomfortably
searching scrutiny.’31
‘The separation between parliamentary and executive
staffs which exists in most other systems is there for
a good reason.’32
The present Presiding Officer and the Deputy Presiding
Officer both have called for a ‘Welsh Public Service’
where OPO staff and Assembly Members’ support staff
would all be members of one single body whose ‘allegiances’
would be to the Assembly and its members and not to a
London government.33
In the meantime action is being taken to create a formal
career structure and manager within the OPO that would
increase the separation of powers.34 |
11
Walter Bagehot, ‘The English Constitution.’
Taylor, Miles (ed) Oxford Paperback, 2001, p4
12 Memorandum to the Lord’s
Constitution Committee, May 2002, p1.
13 Diana Woodhouse, ‘Ministers
and Parliament, Accountability in Theory and in Practice,
1994, p177.
14 Oxford Concise Dictionary
of Politics, 1996, p361
15 First Report of the Treasury
and Civil Service Committee (1986-7), HC62, HMSO |
16
The Government’s Response to the Fourth Report from
the Defence Committee on ‘Westland plc: The Defence
Implications of the future of Westland plc: The
Government’s Decision-making (1986), Cmnd.9916, HMSO.
17 Woodhouse, Diana, ‘Ministers
and Parliament, Clarendon Press, 1994, p178
18 CJ (1849) 75
19 Crossing the Road, Winston
Roddick QC, Counsel General to the National Assembly,
Lecture to the Law Society, National Eisteddfod,
Ynys Mon, August 1999. Discussions with the Counsel Generals
Office, January 2003.
20 Standing order 9.7(i) My emphasis. |
21
Crossing the Road, Winston Roddick QC, Counsel General
to the National Assembly, Lecture to the Law Society,
National Eisteddfod, Ynys Mon, August 1999.
22 Interviews with the Author,
2002-3.
23 Interview with the Author,
2002-3.
24 Standing Order 9.7(i) |
25
Elis-Thomas, Dafydd, written evidence to the Richard commission,
5/12/02.
26 Permanent Secretary’s
evidence to the Richard Commission.
27 Elis-Thomas, Dafydd, written
evidence to the Richard commission, 5/12/02, p2.
28 Osmond, John, ‘From corporate
Body to Virtual Parliament,’ in the State and the
Nations 2003, Constitution Unit, p15-47.
29 McAllister, Laura The Road
to Cardiff Bay: The Process of Establishing the National
Assembly for Wales, Parliamentary Affairs, 2000, p646
30 For Example, Delyth Evans
is the Deputy Minister for Agriculture and Culture and
sits on the Culture committee. |
31
Wigley, Dafydd, ‘Written Evidence to the Richard
Commission, 5/12/02, p1.
32 McAllister, Laura The Road
to Cardiff Bay: The Process of Establishing the National
Assembly for Wales, Parliamentary Affairs, 2000, p646
33 Interviews with the author,
January-February, 2003.
34 Interview with the Deputy
Presiding Officer, January 2003. |
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