Written Response to the Richard Commission
by Carwyn Jones AM,
Minister for Open Government

November 2002

You invited me to submit written evidence in advance of my discussion with the Commission on 22 November. I am pleased to do this, although as will become apparent, the nature of my present portfolio is such that some of the questions to which you invite answers are not really relevant to me. However, taking them in the order in your letter of 29 July:

My portfolio covers a number of matters, as follows.

Standing Order 2.5 requires the First Minister to designate one member of the Assembly Cabinet to have particular responsibility for the proper management of the Assembly’s business. I currently serve in that capacity. I say no more about that in this submission because I understand my predecessor as Business Manager, Andrew Davies, is providing you with a note about the role; but I would of course be happy to discuss it with you on 22 November.

As Minister for Open Government, I am responsible for the Assembly Government’s communications strategy. I also maintain a watching brief on Freedom of Information issues. In 2001 the Assembly adopted a Code of Practice on Public Access to Information (the Information Code) based on the Freedom of Information Act 2000 but going beyond it in some respects; when the Act comes into full force in 2005, it will apply to the Assembly but I anticipate that we will wish to continue to use it as a basis for our own more liberal approach to these issues (and so it will perhaps be an example of the Assembly implementing a different policy, albeit not one requiring exercise of formal statutory powers). I am the Assembly Government’s Ministerial contact for the UK Information Commissioner on Freedom of Information Act and Data Protection issues. In the same way I maintain oversight of the Assembly Government’s policies on public appointments and maintain close liaison with the (UK) Commissioner for Public Appointments in this respect. Finally under this heading, I am the Minister with broad oversight of Ombudsman issues in Wales and deal as necessary with the Welsh Administration Ombudsman (although my colleagues Edwina Hart and Jane Hutt are respectively responsible for dealings with the Local Government Ombudsman and the Health Services Commissioner for Wales).

The third broad area covered by my portfolio is in respect of Equal Opportunities. As you will know, section 120 of the Government of Wales Act places a specific duty on the National Assembly to make "appropriate arrangements with a view to securing that its functions are exercised with due regard to the principle that there should be equality of opportunity for all people". There is an equivalent obligation on the Assembly in respect of its conduct of its business. Equality of opportunity is therefore considered one of the principal themes cutting across all aspects of the Assembly’s work. The Assembly’s Standing Orders currently require that its Committee on Equality of Opportunity should be chaired by a Minister (although that will change from next May), and I serve in that capacity. I am also the Assembly Government’s Ministerial contact with Whitehall Departments on equal opportunities and human rights issues and am consulted frequently on developments in the UK’s policy on those matters, although formal responsibility for them is of course retained in London.

I have referred above to the Assembly’s liberal approach to Freedom of Information. Our Information Code goes beyond the provisions of the Freedom of Information Act 2000 (which in turn goes beyond the UK Government’s current Code of Practice on Access to Government Information) in important respects. The target date for responding to requests for information will be 20 working days when the Act comes into force in 2005 but is 15 working days under our Information Code now; and our test for disclosure of information is, in most cases, one of substantial harm. Under the 2000 Act, if the information sought is subject to an absolute exemption, then that is the end of the matter; we however will disclose information that would be subject to absolute exemption under the Act unless to do so would cause substantial harm, breach confidentiality or require us to act inconsistently with any legal provision.

Also under the Open Government heading, later this month we will, jointly with the Wales Office, be publishing a consultation document proposing the creation of a single Ombudsman’s office for Wales, bringing together in one jurisdiction the existing offices of Welsh Administration Ombudsman, Welsh Local Government Ombudsman and Health Services Commissioner for Wales. If, in light of the comments received, we decide to take that proposal forward, there will be a further round of consultation next year on the precise powers and functions of the new office. Establishment of the office will however require primary legislation, and we will need to secure a slot in a future year’s legislative programme in order to take this forward.

In relation to Equal Opportunities, a recent study for the Institute of Welsh Affairs by Mr Paul Chaney and Professor Ralph Fevre of Cardiff University concluded that "the singular nature of the duty [in the Government of Wales Act] has allowed elected representatives greater scope and enabled them to be more innovative in undertaking equality reforms. It is for these reasons that a distinctive equality agenda has started to emerge over the past two and a half years". The authors go on to list twenty separate actions or initiatives taken by or on behalf of the Assembly which illustrate how that distinctive agenda has evolved; among them are the action taken to improve equal pay arrangements in the Assembly and Welsh public bodies; "extensive and far-reaching reforms to promote equality in the Assembly Civil Service"; "reforms of the policy process…designed to mainstream equality in the work of government"; and implementation of the Objective One programme "in ways that promote equality of opportunity for groups defined by language, ethnicity and disability as well as gender".

Generally speaking we have been able to take forward these sorts of policies within existing powers, but we have recently come across one difficulty where it is not yet clear whether our aspirations can be met. As noted above, the Assembly Government believes, subject to consultation, that a single Ombudsman’s office for Wales should be created at some future time. It so happens that all three of the current Ombudsmen’s offices will become vacant next year, and as a first step to achieving that long term goal, we would like to have the option to appoint one person to fill all three offices; the offices could themselves then be merged later, following primary legislation. However, such an appointment would itself first require a minor amendment to existing statute. It is not yet clear whether it will be possible to secure that amendment, whether through appropriate provision in a Bill in Parliament in the new session or through a Regulatory Reform Order, before the appointments to the existing offices come to be made. That is therefore a possible example where a modest aspiration may be frustrated.

So far as equal opportunities are concerned, I have already set out the specific statutory duty placed by s.120 of the Government of Wales Act on the Assembly. This does not amount to a general obligation to promote equality of opportunity in the context of our functions; rather it is about "making arrangements….". On the other hand, in the field of race, the Assembly has a separate duty under the Race Relations Act 1976 as amended to "have due regard" in carrying out its functions "to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups". The Assembly has made wide use of the s.120 duty, but the creation of a function bringing our powers and duties in relation to all the strands of equality into line with the duty under the 1976 Act would strengthen our ability to take this work forward.

While we have established close working relations with the three statutory equality Commissions and they are standing advisors to the Equal Opportunities Committee, the Assembly has no formal functions (for example of appointment of members or provision of financial support) with regard to their work in Wales. The proposal to establish a single Equality Commission covering all strands of potential discrimination, currently the subject of consultation by the UK Government, might offer an opportunity to reconsider that position.

The Assembly Government, with the assistance of the Wales Office, has sought to identify a way forward on the Ombudsman issue mentioned above through discussion with Whitehall Departments; it remains to be seen what the outcome will be. There have been no dealings with Westminster as such.

The Assembly Government has influenced work by the Home Office on immigration and asylum issues affecting Wales, in particular over the dispersal of asylum seekers and the use of Cardiff Prison to house them (which clearly could have had far wider implications than for Wales alone). It has also supported the review of the Welsh Refugee Council, to ensure effective continuing support for refugees in Wales. Our officials participate in the Whitehall-led working groups concerned with Freedom of Information and Data Protection, and will be in a good position, given our distinctive position on Access to Information, to make important contributions to those groups’ work.

Generally speaking this has not been a problem. Unlike my other colleagues, very little of what I do is based upon powers which were either formerly exercisable by the Secretary of State for Wales and transferred to the Assembly, or have been conferred by primary legislation since 1999. Given that position, the nature of the settlement does not really impinge upon the day to day operation of the portfolio, and my relations with Whitehall Departments are primarily concerned with expressing the Assembly Government’s views on proposed policy developments in relevant areas rather than co-ordinating or negotiating joint actions across the boundary between transferred and non-transferred functions.

I hope this evidence is helpful, and I look forward to meeting the Commission on 22 November to discuss it further.