Annex 1

The Rt Hon Lord Richard QC
The Commission on the Powers and Electoral Arrangements of the National Assembly for Wales
Commission Secretariat
Room 21-1 Cathays Park
Cardiff
CF10 3NW

November 2002

I am pleased to set out my written evidence to your Commission. The material below follows the structure and order suggested in your letter.

1. Please describe the range of issues covered within your Ministerial portfolio and include in that a summary description of the powers that you have available to implement new policies.

The Portfolio

1.1 As Minister for Culture, Sport and the Welsh Language, my portfolio covers the following issues:

• Policy responsibility for the arts and culture in Wales, and sponsorship of the Arts Council of Wales.
• Responsibility for general Welsh language policy, and sponsorship of the Welsh Language Board;
• Policy responsibility for museums and galleries, and sponsorship of the National Museums & Galleries of Wales, and the Council for Museums in Wales.
• Responsibility for public libraries in Wales, and sponsorship of the National Library for Wales.
• Responsibility for Sports policy in Wales, and sponsorship of the Sports Council for Wales.
• Overview of the work of lottery distributors in Wales in general, and specific policy responsibility for Welsh lottery distributors.
• Responsibility for publishing policy and funding of the Welsh Books Council.
• Supporting the film industry in Wales (although film policy is a non-devolved issue)
• Overview of broadcasting issues in Wales (although broadcasting is a non-devolved issue)

Powers available to implement new policies

1.2 The main powers available to me to implement new policies to support and develop culture, sport and the Welsh language are contained in Section 32 (and Section 85) of the Government of Wales Act 1998 (hereafter GoWA). Section 32 states that:

"the Assembly may do anything it considers appropriate to support

[a] museums, art galleries or libraries in Wales,
[b] buildings of historical or architectural interest, or other places of historical interest, in Wales,
[c] the Welsh language, or
[d] the arts, crafts, sport or other cultural or recreational activities in Wales."

1.3 These broad, and extremely helpful, powers afford me a great deal of flexibility in developing and implementing policies in support of culture, sport and the Welsh language.

1.4 Section 85 of the Act, amongst other things, enables the Assembly to incur expenditure in the exercise of any of its functions, and to attach conditions to the giving of financial assistance to help secure any of its objectives.

1.5 These powers have been delegated to the First Minister, the Finance Minister and myself as Minister for Culture, Sport and the Welsh Language.

1.6 In addition to the extremely broad powers contained in the Government of Wales Act 1998, there are other powers available to me to implement new policies. The Public Libraries and Museums Act 1964 imposes a statutory duty on me to superintend and promote the improvement of the statutory public library service provided by local authorities. The Ministerial powers include issuing directions to authorities and, at their strongest, taking over the running of a public library service. Local authorities must also have their library bye-laws confirmed by myself as the Minister for Culture, Sport and the Welsh Language, by virtue of the Local Government Act 1972.

1.7 The Local Government Records Act 1962 and the Local Government (Wales) Act 1994 respectively impose a duty on local authorities to seek my consent to depositing their records with other persons; and to consult me before modifying their local records schemes.

1.8 There are currently five lottery distributing bodies operating in Wales. They are the Arts Council for Wales, the Sports Council for Wales, the Community Fund (the operating name for the National Lotteries Charities Board), the Heritage Lottery Fund (the operating name for the National Heritage Memorial Fund) and the New Opportunities Fund. The last three are UK bodies. Under the National Lottery etc Act 1993 (as amended by the National Lottery Act 1998), I can issue policy directions to the ACW and the SCW relating to their Lottery functions. I also have limited powers of direction (some of which are exercised concurrently with the Secretary of State) in relation to the functions of the Community Fund, the Heritage Lottery Fund and New Opportunities Fund insofar as initiatives which apply only in relation to Wales.

1.9 Powers contained in Section 6(1)(o) of the Welsh Language Act 1993 allow the Assembly to designate any body which I consider to be exercising functions of a public nature in Wales. Bodies so named can be notified by the Welsh Language Board that they must prepare a language scheme detailing how the intend to give practical effect to the principle that in the conduct of public business, Welsh and English should be treated on a basis of equality. Section 6(1)(o) of the Act allows me to apply the principles of the Act to all bodies exercising functions of a public nature or providing services to, and on behalf of the public in Wales.

1.10 It should be noted that a number of bodies within my portfolio have been set up by Royal Charter. I refer specifically to the National Museums of Wales, the National Library, the Sports Council for Wales and the Arts Council for Wales. As a consequence, I have no power to change, for example, their governance structures (this would need to be effected by the Privy Council following petition to Her Majesty the Queen, by the Royal Charter body, for the amendment of its Charter). However, the Assembly Government provides the bulk of the funding to these bodies and such funding is subject to the fulfilment, by the sponsored body, of conditions attached to that sponsorship. The Royal Charters do confer on the National Assembly certain powers. For example, I do have the power to appoint members of the Councils and to remove members from office.

1.11 Similarly, I have virtually no statutory powers to change the structure of the Welsh Language Board, which was established under the Welsh Language Act 1993. Such changes could only be effected through primary legislation. However, there are powers relating to its functions in Section 28 of the GoWA and Schedule 4 to that Act. For instance, this would allow the National Assembly to absorb the Board’s functions, or to transfer them to another organisation. Section 28 of the GoWA also enables the National Assembly to determine that the Board lose some of its functions, or gain new ones. It also contains the one power to change the Board’s structure – to make an order to alter the membership of the Board as a consequence of any changes in function. The Board’s function is also very broadly defined in Section 3(1) of the Welsh Language Act 1993, which, taken with the Minister’s power to give directions under Section 4(1) of the Welsh Language Act, provides considerable flexibility.

1.12 Section 28 and Schedule 4 of the GoWA also contains powers relating to the statutory functions of the Arts Council for Wales, the National Library for Wales, the National Museum of Wales and the Sports Council for Wales. These would allow the National Assembly to transfer functions to these bodies, with their consent.

1.13 Finally, I am also able to implement new policies through the remit letters to the Assembly Sponsored Public Bodies for which I am responsible. These letters allow me to detail the policies which I expect each ASPB to deliver.

 

2. Can you give examples of policy development using these powers in the Assembly’s first term.

2.1 The development of my Culture Strategy, Creative Future: Cymru Greadigol (hereafter CF:CG), established a template for the development of the arts and culture for the next five years. This document would not have been able to be developed in the same way as it was if I did not have powers delegated to me under Section 32 of the GoWA. CF:CG identified a number of key policy areas where I wished to see improvements during the life of the strategy. Falling from the strategy, I have developed policies on chamber music, considered the need for a Welsh Sporting Museum, established a cultural consortium "Cymru’n Creu" that brings together the cultural and economic ASPBs, ELWa, the broadcasters and the British Council. This has helped them to work more effectively together.

2.2 In addition to the above, I have used the powers delegated to me under Section 32 of the GoWA to achieve a number of other policy aims. They are, for example, being used to support the development of ‘Culturenet Cymru’ – a network of online ICT cultural services to be delivered by the cultural ASPBs. I established a Task and Finish Group to look at the Publishing Industry in Wales, and I am in the process of implementing a number of the Group’s recommendations. I am also in the process of establishing a Film Fund for Wales under the powers accorded to me by Section 32 of the GoWA.

2.3 It should also be noted that Section 32 of the GoWA provides me with the opportunity to determine who receives funding to carry out work on behalf of the Assembly Government. I have made it clear that I no longer regard the ASPBs as having a monopoly in providing funding for the development of culture. I have funded local authorities to take forward initiatives, such as those relating to chamber music, and have made direct funding to other organisations such as Arts in Architecture and the Chess Union.

2.4 The powers under the Public Libraries and Museums Act have been used to introduce Public Library Standards and Plans in Wales and establish arrangements for their monitoring and review.

2.5 The Assembly has used its powers under s.6(1)(o) of the Welsh Language Act 1993 to approve 2 statutory instruments, naming a total of 42 bodies. The named bodies are required to prepare Welsh Language Schemes, which need to be approved by the Welsh Language Board.

 

3 Can you give examples of policy aspirations where either the breadth or the depth of the Assembly’s powers have been a constraint?

3.1 Plan for Wales 2001 and the Culture Strategy both include a commitment to ensure that all Lottery funding streams have a distinct Welsh direction. Under the current legislation, the UK distributors take their directions from DCMS. While the Assembly is consulted on them, and can include specific Welsh directions with the agreement of the DCMS Secretary of State, invariably Whitehall sets the overall direction. This is a major barrier to delivering strategic direction that is sensitive to the needs and priorities of Wales.

3.2 The Assembly Government is committed to ensuring that in the conduct of public business, Welsh and English should be treated on a basis of equality. Due to the way the Welsh Language Act has been drafted, the Assembly Government depends on the goodwill of Crown bodies to adhere to the spirit of the Welsh Language Act when they are responsible for providing and delivering public services in Wales. (Crown bodies, including Whitehall Government Departments, were excluded from many of the provisions of the Welsh Language Act). Successive Governments have given a commitment that these bodies would prepare Welsh Language Schemes as if they were required to do so by the Act and that those Schemes would be prepared to the same standard as the Schemes of named bodies. (Section 21 of the Act details provisions that will apply where Crown bodies do prepare Schemes).

3.3 Until recently, this has worked relatively effectively but we are now faced with a situation where one of the Home Office’s executive agencies, the Criminal Records Bureau (CRB), is refusing to provide bilingual services of the quality expected by the Assembly Government and the Welsh Language Board. Consequently, the Welsh Language Board has refused to endorse the CRB’s draft Welsh Language scheme. If the CRB was a public rather than Crown body, the Assembly Government would be able to order it to comply. However, since the CRB is defined as a Crown body, there is no legal mechanism available to the Board or the Assembly Government to require the CRB to provide bilingual services of the appropriate quality. Creating a legal mechanism to enable the Assembly Government to ensure that all public and crown bodies in Wales provided bilingual services of the appropriate quality would require either an amendment to the current Act, or a new Welsh Language Act. Therefore, whilst the Assembly Government is responsible for Welsh Language policy, any change in the current statutory powers contained within the Welsh Language Act would require the consent of the UK Parliament.

 

4. To what extent have you been able to promote those policy aspirations by influencing Westminster?

4.1 Until recently, there has been little opportunity for me to ensure that all Lottery funding streams have a distinct Welsh direction. However, the review of Lottery funding currently underway provides us with a unique opportunity to seek major change to the way funding is distributed in Wales.

2. The First Minister has written to the Home Secretary (the Home Office is the CRB’s sponsor department) regarding the shortcomings in the CRB’s Welsh language provision. However, the Home Secretary has not, thus far, accepted the arguments presented by the Assembly Government and the Welsh Language Board, and consequently the CRB’s provision of Welsh language services remains inadequate.

5. Have you been able to influence policy on non-devolved matters which are relevant to your portfolio?

5.1 Although Broadcasting is a non-devolved issue, the Assembly Government is keen to ensure that Welsh views and concerns are taken into account in the development of broadcasting policy, especially since broadcasting clearly impacts on devolved issues such as economic development, culture and the Welsh language. The recent Communications White Paper and the subsequent Communications Bill propose a major reform of the broadcasting and telecommunications regulatory environment. The Assembly Government is particularly anxious to secure strong Welsh representation on the new regulatory body, OFCOM. In preparing responses to both the White Paper and the Bill, the Assembly Government consulted widely within Wales, and also worked closely with the other devolved administrations, who shared similar concerns. The final responses were debated in the Assembly and received general cross party support.

5.2 The Assembly Government, along with the other devolved administrations, has had some degree of success in influencing the content of the Bill and ensuring that it takes some of our concerns into account. Overall however, it has proved very difficult to get the UK Government to take account of Assembly Government policy interests, and to get these reflected in the Bill. The Assembly Government has found itself in the position of having to lobby hard to ensure that Wales secures the same degree of representation within the new regulatory body as it currently has on the existing regulatory broadcasting bodies.

 

6. Are there areas of policy where responsibilities are divided between the Assembly and Whitehall in ways which have [a] worked well, [b] presented practical problems?

6.1 The freedom to develop culture in Wales in any way the Minister pleases provided by Section 32 of GoWA means that there are no areas of policy where responsibilities are shared between the Assembly and Whitehall. However, the UK Government retains responsibility for European issues and they have worked with the Assembly on European Cultural issues, to the extent that Culture Minister has attended European Culture Committee meetings and spoken at them on behalf of the British Government.

6.2 Under the present arrangements there are complexities around the respective accounting officer roles in the relation the five national lottery distributing bodies. They prevent a clear understanding of accounting officer roles and responsibilities.

6.3 The situation described in paragraphs 3.2, 3.3 and 4.2 in relation to the Welsh Language Act and the CRB serve to illustrate the practical problems which can arise from this division of responsibilities.

 

Conclusion

I hope this evidence provides a broad range of issues which will be of interest to the Commission in taking forward your work. I look forward to presenting evidence in person on 21^st November.

Yours sincerely

Jenny Randerson AM

Minister for Culture, Sport and the Welsh Language

Copyright Act 1911 (c.46)

Development of Rural Wales Act 1976 (c.75)

Government of Wales Act 1998 (c.38)

Literary and Scientific Institutions Act 1854 (c.112)

Local Government (Wales) Act 1994 (c.19)

Museums and Galleries Act 1992 (c.44)

National Heritage Act 1980 (c.17)

National Lottery etc. Act 1993 (c.39)

Physical Training and Recreations Act 1937 (c.46)

Public Libraries and Museums Act 1964 (c.75)

Public Libraries and Museums Act 1992

Royal Charter 1972 – Sports Council for Wales

Royal Charter 1988 – National Library of Wales

Royal Charter 1994 – Arts Council of Wales

Welsh Language Act 1993 (c.38)