Panel of Subject Committee Chairs - Submission to Richard Commission

1. The following submission covers those issues within the remit of the Richard Commission which are considered by the Panel of Subject Committee Chairs to be common to all subject committees. Separate submissions are being produced covering the Assembly's powers in relation to the seven subject committee portfolios.

2. The structure of this submission follows that of the Commission's terms of reference.

i. Whether the Assembly's powers are sufficiently clear to allow optimum efficiency in power-making

3. Examples of occasions where a lack of clarity as to the Assembly's powers in a particular subject area has created difficulties for subject committees will be included in the individual committee submissions.

ii. Whether both the breadth (ie the range of issues over which it has control) and the depth (ie the capacity to effect change within those issues) of the Assembly's powers are adequate to permit integrated and consistent policy making on issues where there is a clear and separate Welsh agenda.

4. Specific examples will be provided in the individual committee submissions.

iii. Whether the mechanisms for UK Government policy making as regards Wales, and the arrangements for influence by the Assembly on these, are clear and effective and in particular whether they correct any apparent shortcoming from the previous item.

5. There is not a clearly laid out structure of formal mechanisms for the Assembly to influence UK government policy making. Influence by the Assembly on UK Government policy making as regards Wales is effected primarily via Assembly Ministers', and their officials', relations with Whitehall Ministers and Departments and thus takes place in private. Assembly subject committees do not generally have direct contact with Whitehall Ministers, although they have on occasion invited Whitehall civil servants to make presentations to committees on UK developments relevant to the committee porfolio. Subject committees rely on Assembly Ministers to keep them informed of, and consult them on, developments in Whitehall and to communicate committees' views back to Whitehall. For subject committees to influence Whitehall policy making effectively, it is vital that committees have plenty of advance notice of forthcoming initiatives and a meaningful consultation period.

6. As regards more formal mechanisms for influencing UK Government policy making, these are probably most visible in relation to primary legislation. The Panel would make the following observations in relation to primary legislation and policy making for Wales:

• If committees make recommendations which require primary legislation for their implementation, delivery of the recommendations depends on the ability of Assembly Ministers and the Secretary of State for Wales to negotiate with Whitehall for parliamentary time.

• We welcome the publication of draft bills - which allows sufficient time for meaningful consultation with the Assembly, and detailed consideration within the Assembly, without the constraints of the parliamentary timetable and the limited scope for amendment to legislation consequent upon it. It goes without saying that meaningful consultation with the Assembly prior to the draft bill stage is equally important. It is also important for committees to have advance notice of draft bills so that scrutiny of them can be included in the committee's forward work programme in ample time.

• Where primary legislation affecting Wales is delivered through an England and Wales bill, we would welcome greater flexibility within the primary legislation for the Assembly to implement the legislation differently in Wales.

• There would appear to be more scope for primary legislation to meet the specific needs of Wales where it is delivered through a Wales-only bill. Wales-only bills would also appear to offer more scope for publication of draft bills on which the Assembly can be consulted formally and for the timing of consultation on the draft bill to be arranged to suit the Assembly's and committees' business arrangements.

7. On subordinate legislation, we would express concern at the apparent lack of awareness within Whitehall that the Assembly's subordinate legislation procedures involve greater scrutiny and are more extended than in Westminster, thus requiring draft subordinate legislation to be available well in advance of the target date for its making.

iv. Whether the division of responsibility between the Assembly and the UK Government places inappropriate constraints on Whitehall policy-making, both on matters over which the Assembly has control and otherwise.

8. The Panel is not in a position to comment on this question.

v. Whether the size of the Assembly is adequate to allow it to operate effectively within a normal working week, and without placing undue pressure on Members.

9. At present the Assembly does operate its formal business within a normal working week. (Needless to say, a great deal of activity - meetings with constituents and external organisations; preparation and research; informal meetings such as those of the Panel of Chairs, regional committee chairs, and committee party spokespersons - takes place outside of the 9.00-5.30 formal business hours.) There are many arguments in favour of the principle of undertaking formal business within a normal working week - apart from the commitment to seeking to secure work/life balance for Members and staff, it can be argued that the quality of decision making would be likely to deteriorate towards the end of a working day which extended well into the evening. In operating its formal business within a normal working week, the Assembly obviously has to prioritise how it uses its time. This also applies to committees which, in the case of subject committees, are required by standing orders to notify plenary of their forward work programmes for at least the next 12 months. This requirement is useful in assisting committees to be clear about their priorities and to decide well in advance how they propose to use their time to best effect.

10. The number of AMs in the Assembly does, of course, place certain constraints on committees but these constraints carry with them some advantages as well as disadvantages. The Panel would offer the following observations to the Richard Commission:

• The number of subject committees in the Assembly is determined by the allocation of subject portfolios to members of the Assembly Cabinet by the First Minister. Standing orders are required to set the maximum number of Cabinet members which the First Minister may appoint.

• The number of additional committees (standing committees) which the Assembly can realistically establish is then limited by the number of AMs available. An increase in the number of committees would lead to an increase in the incidence of dual (or triple) committee membership among AMs.

• Dual membership of committees carries with it a number of practical problems but does enable AMs who are members of more than one committee to make the connections between the work of those committees and help to counteract the risk of a "silo" approach to policy development.

• To avoid timetable clashes for individual committee members, committee meetings have to be arranged to a fixed pattern and timetable. The disadvantage of this is the lack of flexibility to arrange additional meetings at short notice to deal with unexpected issues which are both urgent and important. There are, however, advantages. Once future term dates have been decided by Business Committee, and provided there are no unexpected membership changes, the committee timetable can be fixed many months in advance. This means that Members know their diary commitments well ahead.

• The frequency of committee meetings is constrained by: the time available for committee business each week; the number of committees; and the incidence of dual committee membership among AMs. (Given that party balance on committees is a requirement of the Government of Wales Act, it would be inappropriate to undermine that balance by arranging committee meetings at times which create timetable clashes for individual committee members. It is also considered inappropriate to arrange committee business at the same time as plenary sessions.) Subject committees hold three and a half hour formal meetings on a fortnightly basis (ie about 5 or 6 meetings a term, generally on Wednesdays) and have the opportunity to arrange additional informal sessions, off-site meetings, or visits once or twice a term on Thursday afternoons.

• These constraints on the number of meetings which subject committees can hold each term, while limiting the number of topics which they can cover in a year, encourages them to take a very disciplined, focused and strategic approach to their work, concentrating on those matters where they can add most value.

• The requirement on committees to maintain 12 month forward work programmes, together with the availability of a fixed meeting timetable, permits committees to agree their detailed forward work programme for the following term well in advance - eg a couple of weeks before the end of the previous term. This enables external organisations and members of the public to identify well in advance when committees will be discussing information of interest to them and allows committees to give presenters plenty of notice of invitations to speak at committee.

• It should be emphasised that moves to increase the number of committees which can be established or the number of committee meetings which can be held would need to be accompanied by an increase in the staffing resources (and consequently accommodation resources) for committees.

11. In short, there is no doubt that the small size of the Assembly places constraints on the amount of work which committees can undertake and places pressure on individual AMs. However it also obliges the organisation to adopt a disciplined and focused approach to its use of time and to operate effective forward planning arrangements. There are also less tangible benefits in terms of closer working relationships between Members and excellent informal communication networks. It could also be argued that the small scale of the Assembly encourages an "esprit de corps" among Members: AMs take their responsibilities very seriously as evidenced by the high attendance levels at committee meetings (which the Commission may wish to compare with attendance levels in other legislatures).

12. The Panel recommends that the Commission seeks to identify the benefits which arise from the small scale of the Assembly and consider how these positive elements could be protected in moving to any different arrangement which might be proposed.

vi. Whether the means of electing the Assembly, including the degree of proportionality, adequately and accurately represents all significant interests in Wales.

13. There is no specific committee angle to for the Panel to comment on under this heading.

vii. Whether any changes which may be recommended to the Assembly's powers make either necessary or desirable changes to the size of the Assembly or the means of electing it.

14. The potential change to the Assembly's powers which would have most impact on committees would be the introduction of primary legislation powers. Committees are already making sustained efforts to focus more on scrutinising subordinate legislation than they have in the past and to make the most of the opportunities which arise to influence primary legislation. Balancing these aspirations against their existing workloads in relation to policy reviews is a challenge, particularly in view of the timetable constraints outlined above. The Panel is aware that in other devolved legislatures committees can find themselves unable to pursue their chosen priorities (for example undertaking policy reviews and scrutiny sessions) due to the volume of primary and subordinate legislation with which they are faced. The Panel places great value on the policy development role of committees and on the opportunity for cross-party influence of Ministers and their developing policies at an early stage of the policy making process. The Panel would be anxious to protect this role if the legislative role of committees were to be expanded.

15. It is difficult to see how, with the present number of committees and frequency of meetings, committees could both contribute to policy making before the legislative process began and scrutinise legislation on a "line by line" basis, particularly if they also lost their current ability to be selective about the secondary (and indeed primary) legislation which they choose to look at in detail. Before recommending a move to a new constitutional settlement, the Commission would need to think carefully about the role of committees under a new arrangement, the workload associated with that role, and the consequences for: the number of committees, the frequency of meetings (both of which are closely linked to the number of AMs), and the staff resources required. In looking at these issues, the Commission may wish to consider the advantages and disadvantages of the Westminster standing committee/select committee split compared with the multi-functional subject committees of the Scottish Parliament, together with the associated workload and resource implications.

viii. Other Issues Relevant to Subject Committees

16. The Commission may find it helpful to have the Panel's thoughts on how certain requirements of the Government of Wales Act affect the operation of subject committees. (We have not commented on the impact of Standing Orders on the operation of committees as a) this fell within the remit of the Assembly Review of Procedure group which reported in February this year and b) Standing Orders can be changed by the Assembly if it so wishes.)

Power of Summons

17. Unlike in Westminster, Assembly committees' power of summons is limited. Committees have the power to summons only persons belonging to those bodies listed in Schedule 5 to the Government of Wales Act to appear before them as witnesses. While it has not been necessary to use the power to summons persons covered by Schedule 5, the Panel can envisage circumstances in which it would be an advantage for committees to have the same authority as Westminster committees to summons witnesses if required.

Ministers' membership of committees

18. The Commission may well hear arguments that Ministers should not be members of the Assembly's subject committees, as required by the Act. The Panel recognises that ministerial membership of committees does make the relationship between Ministers and committees more complex than it appears to be in other legislatures. However we also believe that it carries a significant advantage by securing regular and extended exposure of Ministers to committees. It helps to ensure that committees are well informed of emerging issues and initiatives and provides regular opportunities for committees to influence Ministers' thinking. This is not a feature of other legislatures where Ministers make relatively infrequent appearances before committees.

19. The Commission may hear arguments that committees are unable to scrutinise Ministers effectively due to their membership of committees. There is, of course, a need for committees to agree that it is acceptable for committee staff to provide briefing which assists other committee members in questioning the Minister during scrutiny sessions and for that briefing to be withheld from the Minister in the same way that briefing provided for the Minister by their officials is not shared with other committee members. Other than that practicality, there is nothing within the existing settlement to prevent committees undertaking extended scrutiny of Ministers if they choose to do so - indeed the Agriculture and Rural Development committee's scrutiny of the Minister in relation to the handling of foot and mouth disease is a good example of this.

20. If the Commission decides to pursue the question of Ministerial membership of committees in more depth, the Panel would recommend that the Commission seeks out views on the advantages of the current situation as well as the disadvantages. We would encourage the Commission to identify how the advantages of the current position could be protected in any proposed move to a new arrangement.

21. The Panel hopes that the above submission covers all the committee issues which are of relevance to the Commission's terms of reference. The Panel would of course be delighted to provide additional information and respond to more detailed questions if that would be of assistance to the Commission. Informal requests for factual information can be directed to Marie Knox, Head of Members' Research and Committee Services, who will be happy to assist.