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Conclusion
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It’s the will that’s lacking
on the part of our MPs. No changing of the rules, no
beefing-up of the NAO alone, will alter that. The remedy
lies within themselves.’ (Prof. Peter
Hennessy)258
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Committees may produce some vibration,
which causes delicately poised objects to sway and is
felt by many indoors, but by few outdoors, few are awakened.’
(Gavin Drewry, The New Select Committees, 1984)
259
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| As has become clear, there is a stark difference
between the presence of powers of scrutiny and putting
those powers to good use. Westminster committees, in comparison
with their Assembly cousins, have broad sweeping powers
to hold the executive to account yet we find they use
them rarely and when they do threaten to use them the
party machine usually takes over and deals are done behind
closed doors. In the obtaining of information and witnesses
it is clear that informal political pressure, the character
and determination of the membership are central factors
which determine the success or failure of a committee’s
scrutiny investigation.260
Clearly, devolution has resulted in new and divergent
forms of committee scrutiny. However, the Assembly committees
have all the drawbacks with few of the benefits; they
lack the power but retain equal political interference.
The concept of scrutiny in Assembly committees is present
but it is mixed in with exciting policy development amounting
to a ‘two thirds’ policy, ‘one third’
scrutiny’ mix.261 |
| The Assembly committees therefore have
no powers to call any of the thousands of WAG civil servants
or private citizens or companies even if they’ve
been responsible for the misspending of millions of pounds
of taxpayers money. They cannot order the production of
any WAG documents even if they are central to an investigation,
nor can they insist on seeing any documents of any kind
unless it is held by those ASPBs mentioned in schedule
5. In many of the fields of their day-to-day work they
are powerless to order persons or papers if they should
meet resistance. A stubborn minister or a reluctant civil
servant will render the entire committee system toothless.
This may never happen but when it does the powerlessness
of the legislative will be clear for all to see. Combine
this with an ever-present Minster who has forewarning
of any issues the committee may want to scrutinise and
has a vote on committee decisions. Who writes/decides
the majority of the content of her scrutiny report and
sits along side her Deputy-Minister who is also a full
committee member. A minister that has possibly a close
and productive relationship with the Chair which in extreme
circumstances sees their joint aim prevail over the wishes
of committee members. Looking at the difficulties that
Westminster has experienced and the impact that similar
situations would have; it cannot be said that the NAAG
has truly fulfilled its function of ensuring ‘effective
scrutiny of decision.’ NAAG has failed to look in
the long term or did not foresee- reasonably so- that
there would be an almost immediate desire by AMs to create
a de facto ‘virtual Parliament.’ |
| If the Permanent Secretary is right in
what he said to the Constitution Committee of the Lords
then the need for greater power becomes all the more immediate:
‘I do not think it is a concluded view yet amongst
members on precisely what role those subject committees
should perform… there is a significant number of
members who feel they should be essentially scrutiny bodies.’262
If this were to happen without any increased powers
of scrutiny similar to Westminster the committees would
be toothless watchdogs, empowered to scrutinise but with
no real power to do it. |
| The official recognition of ‘ministerial
accountability’ has a fundamental constitutional
implication for future legislative-executive relations.
The concept is agreed that the minister is the conduit
through whom scrutiny of the actions of government have
to occur. S/he has to be a willing conduit due to the
absence of formal powers to summons WAG civil servants
or demand their papers. The OPO and WAG have already done
all that they can to become a simulacrum of the legislative/executive
split present in Westminster. If a legal recognition of
such a split were to occur it would be essential for the
health of welsh democracy that the committees see a drastic
increase in their official powers to at least that of
Select committees even if their powers to call people
were limited to those in Wales and to those who have dealings
in Wales. Similarly the power to call for papers should
be as strong as Westminster. |
| Another ‘constitutional’ flaw
would be the absence of a procedural method of analysing
the Assembly as a coherent whole. There is no Assembly
equivalent of the Liaison or Procedural Committees nor
even of the Lord’s Constitution Committee. Westminster
has three committees specifically created to examine the
system of government as a whole. The Assembly has none.
It is forced into creating a ‘Procedural Review’
or appointing a government influenced ‘Richard Commission’
if it wished to check progress. Ron Davies has called
for a constitutional standing committee for the Assembly
it seems logical to support such a call. |
| Political interference is the only thing
that Westminster and the Assembly have in equal measure.
The appointment process of both committees and their chairs
is filtered through political bargaining. The whips ensuring
that those that hold key posts are more compliant with
the wishes of the executive. If the separation of powers
is going to truly work committee membership should be
an Assembly matter alone. The provision of extra resources
via the MRS was probably justified more on policy development
than scrutiny grounds but its presence is nonetheless
vital. Empowering the committees to be on a firmer footing
with Ministers and their support network of hundreds of
expert civil servants. Brining in NAO secondees and allowing
the general use of NAO/AGW reports would do a lot to guarantee
that committees could not blame the lack of support for
ineffective scrutiny. |
| However, having said that, in the first
four years the Assembly committees have not met with any
significant interference or blocking from the executive.
Minister have been mostly compliant, partly because committees
have not pushed too hard, but also because there is a
genuine culture of co-operations in this first term of
devolved government. May be it will last and if so the
committees will have few instances where they are forced
to use the powers they have. However, the first term-
with a minority administration making co-operation essential
it was easy for Ministers to blame current thorny issues
on an old non-devolved political world. In time Minister
decisions and deadlines for promises will expire. It will
be interesting to see how open and honest the executive
is then when policy decisions and political promises have
not been entirely fulfilled. A committee investigating
such a situation will test the boundaries of the new cooperative
culture. The Audit committee is meeting at the end of
March 2003 to discuss the Health Ministers abolition of
health authorities. It has turned out to costing £8million
more than she planned. With an election pending, the committee
meeting when the decision was made to investigate the
issue divided down party lines, it was a lively meeting.
AMs feared political capital would be made out of any
analysis of the plan. Time will see whether the Minister
and officials remain fully cooperative. Westminster has
taught us that this is unlikely to be the case and unlike
Westminster the Assembly’s committees are virtually
powerless to challenge executive stonewalling. |
| In the short term, and perhaps after the
conclusion of the Richard Commission, OPO and WAG could
come to some informal arrangements within the Government
of Wales Act to extend their accountability to committees.
Informal promises or agreements that WAG will share documents
and produce civil servants for questioning by committees
would go a long way to ease the urgency for real committee
powers. Similar agreements already exist for the protection
of OPO staff within the body corporate. If reform of committee
powers fails to occur after the Richard Commission it
will do nothing to engender a civic culture and participatory
democracy that is so vital to the popular success of the
Assembly and devolution. Committee powers, although rarely
used, act as a necessary check on the otherwise unfettered
use of power. At present Assembly committees are relying
on the good will of Ministers. As Select Committees have
proven- in time promises will be broken, Ministers will
be reluctant, information will be withheld and officials
will be difficult. The issue then is whether Subject Committees
have the powers to ensure ‘effective scrutiny of
decision’- Westminster’s experiences have shown
they do not. |
| The one thing that unites MPs and AMs is
this simple truth from Prof Hennessy, namely that the
remedy to effective scrutiny lies within themselves. Reforms
will help but they cannot achieve it alone. AMs and MPs
must want to scrutinise before effective scrutiny can
occur. At the end of the day if the will is not
present within the majority of AMs to scrutinise the executive
and set up proper procedural safeguards to ensure this
occurs- then all the lessons from Westminster- all the
recommendations in this dissertation- will not make a
difference as committee powers will be irrelevant. |
258
Peter, Hennessy and Frank Smith, ‘Teething the Watchdogs:
Parliament, Government and Accountability,’ Strathclyde
Papers, p18.
259 Peter Hennessey, Whitehall, Pimlico,
(2001), p331
260 Diana Woodhouse, ‘Ministers
and Parliament, Accountability in Theory and in Practice
(1994)p 198, 202.
261 Panel of Chairs evidence to the
Procedural Review, 2000, p9. |
| 262
Sir John Shortridge, oral evidence to the Lord’s
Constitution Committee, 28 May 2002, page 4. |
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