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SUBMISSION TO THE RICHARD COMMISSION
BY DAVID MELDING AM
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22ND MAY, 2003
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| The current arrangements for devolution in Wales |
| 1. The Government of Wales Act 1998 created a
system of executive devolution in Wales. Executive devolution
emerged as arguably the most coherent product of the Kilbrandon
Commission (1973). In the Commission’s words, executive
devolution allows "the undivided sovereignty of Parliament
to be maintained" (para 539). Such a system of government
devolves policy functions but not primary law making powers.
If a limited form of executive devolution had been offered
and accepted by Scotland, Wales and Northern Ireland in
1997, then the UK would have remained a classic unitary
state with a system of subordinated regional government. |
| 2. The present Labour government, like its predecessor
in the 1970s, opted for a variable system of devolution
with executive devolution in Wales but legislative devolution
in Scotland. This incongruity was further exacerbated
in the 1990s by granting legislative devolution to Northern
Ireland. If Wales had also been granted legislative devolution
in 1997 the constitutional position of England would have
become distinctly anomalous. It can be said that presently
Wales is the thread on which hangs what is left of the
unitary state. Legislative devolution in Wales would immediately
create England only Bills on a wide range of issues and
such Bills would be passed by a UK parliament with the
participation of Scottish, Welsh and N. Irish MPs. |
| Primary Legislation |
| 3. Executive devolution established a government
in Cardiff but retained at Westminster the primary legislative
machinery needed to locomote much of policy. This is not
an elegant system and it seems at odds with the British
tradition of parliamentary and responsible government.
Some critics believe that less scrutiny of primary legislation
affecting Wales occurs now than in the pre-devolutionary
past . Assembly members are responsible for the scrutiny
of the Welsh Assembly Government but they have no legislative
powers, whilst MPs do have the legislative powers but
are naturally reluctant to scrutinise a government they
are not responsible for holding to account. |
| 4. The clearest remedy would be the extensive
use of a pre-legislative system to scrutinise draft parliamentary
Bills. Furthermore, Bills affecting Wales could be published
as Wales only Bills and be more easily accommodated into
the Assembly’s timetable for scrutiny of major policy
developments. Such Bills could be debated in the Assembly
and amended in Committee or in Plenary. The draft Bills,
as modified, could then return to Westminster and undergo
the parliamentary process. Of course the Assembly’s
amendments might then be rejected, but at least the Assembly
would have had the opportunity to attempt modification. |
| 5. However, a successful pre-legislative process
as described above is a bit like travelling from Cardiff
to Newport via Wrexham. It seems prolix and convoluted.
In practice devolved scrutiny would probably become more
detailed and protracted whilst the parliamentary stages
more accelerated and perfunctory. It would beg the question
why form should not follow function and legislative devolution
not be granted to Wales? |
| Wales only Bills |
| 6. During the National Assembly’s first term,
both the NHS and the education service underwent major
reform. In each case the necessary primary legislation
proceeded on an England and Wales basis. However, the
Welsh Assembly Government had initially intended the NHS
reforms to be dealt with in a Wales only Bill and made
an announcement to this effect. Six weeks later plans
for a Wales only Bill were dropped. The NHS Reform and
Health Professions Bill did receive a level of scrutiny
in the Assembly, both in the Health and Social Services
Committee and in Plenary. The Education Bill was not debated
in Plenary and received only one short scrutiny session
in Committee. |
| 7. The main difficulty facing the practice of
issuing Wales only Bills on major policy matters is that
England only Bills are created as a direct consequence
(assuming reform is proceeding in England simultaneously).
The continued participation of Scottish, Welsh and N.
Irish MPs in a legislative process affecting England only
might have a corrosive effect on the British constitution.
It should be noted that granting primary law making powers
to the National Assembly would create the same difficulty
and in an aggravated form. |
| Secondary Legislation |
| 8. It now takes an act of imagination to recall
the importance given to the argument that devolution would
allow secondary legislation to be properly scrutinised.
Yet in the run-up to the referendum in 1997 this argument
was repeated forcefully time and time again. In practice
the National Assembly has been cursory when it comes to
examining secondary legislation. Between 1999 and March
2002, 426 Assembly Orders were passed. The table below
indicates how these orders were processed: |
Full scrutiny: 10 (2.3%)
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Partial scrutiny 115 (27%)
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No scrutiny
301 (71%)
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Full scrutiny requires draft Assembly
orders to be referred to the relevant subject committee
for discussion. Partial scrutiny involves a debate
in Plenary only (often lasting no more than 15 minutes).
The category ‘No scrutiny’ indicates that
the order received no discussion in Committee or Plenary.
It should be noted that AMs can call for orders not
designated for scrutiny to be discussed, and in this
sense all 426 orders went through a process that allowed
for scrutiny.
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9. Of course many Assembly orders
deal with routine or technical matters that warrant
little attention. Nevertheless, the Assembly’s
record on the scrutiny of secondary legislation was
poor during its first term. Towards the end of the term
practice improved somewhat and amendments were attempted
a little more frequently. The Health and Social Services
Committee developed a procedure to sift secondary legislation.
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Can executive devolution work?
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10. Executive devolution can certainly
work better than it does at the moment. One can point
to the Assembly’s review of procedure and the "Rawlings"
principles to indicate how improvements might be achieved.
The Welsh Conservative Party’s Manifesto "Winning
for Wales" outlined a set of policies to make executive
devolution more coherent (see appendix A).
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11. It is a basic principle of
responsible government within the British parliamentary
tradition that executive and legislative powers reside
in the same institution. This does not happen in Wales,
or at least not fully. The Welsh Assembly Government
can be removed by a vote of no confidence in the National
Assembly and so remains responsible to the Assembly
in this ultimate sense. However, the primary legislation
needed to achieve much of the Welsh Assembly Government’s
programme is granted by a completely separate institution.
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12. Looking at the experience of
Wales since 1999, perhaps the greatest weakness of executive
devolution is that it creates such a strong executive.
The Welsh Assembly Government is not puny and it certainly
resembles the Scottish Executive more than a unit of
subordinated regional government. To have gained internal
coherence, executive devolution probably needed to create
weaker and obviously subordinated executives that adapted
and modified policy determined in Westminster. The moment
an executive authority creates policy the necessary
legislative powers are best located in the devolved
Assembly. The Welsh version of devolution combines a
strong executive with a weak and diluted legislature.
It seems at odds with the British parliamentary tradition.
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13. The UK is no longer a classic
unitary state. Should legislative devolution be given
to Wales, the UK will start to resemble a quasi-federal
state (it can be argued that it does so now). Primary
law making powers for Wales require a primary law making
process for England. This will inevitably stretch the
existing settlement. Leaving Westminster responsible
for English legislation would exaggerate the anomaly
of Scottish, Welsh and N. Irish MPs participating in
an English legislative process. Removing Scottish, Welsh
and N. Irish MPs from much of Westminster’s proceedings
could create a bifurcated executive. It is hardly surprising
that the UK government seems reluctant to re-visit the
question of the National Assembly’s powers.
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14. Nevertheless, much could be
gained from a more balanced constitution which accommodates
more fully the experience of devolution. It is difficult
to see this happening without the National Assembly
acquiring primary law making powers.
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