Developing the National Assembly

Evidence From Plaid Cymru The Party Of Wales to the Commission on the Assembly’s Powers and Electoral Arrangements (The Richard Commission)

The establishment of a Parliament or Assembly for Wales has been a subject of debate, on and off and with varying degrees of urgency, since the end of the nineteenth century. The first serious attempt to give the idea substance ended in the disastrous debacle of the 1979 Referendum. For reasons which we do not need to elaborate upon in this document, pressure in favour of some form of devolution grew throughout the eighties and nineties. However, the actual delivery of devolution in Wales, following the election of the Labour Government in 1997, was carried through with a minimum of in-depth public debate and consideration of alternatives.

In Scotland a National Convention with membership taken from political parties, the social partners and civic society had deliberated at length, identified a consensus and brought forth detailed proposals for legislation. These later found expression in the Scotland Act. In Wales, on the other hand, the specific proposals for devolution emerged from a trade-off within the dominant party, Labour, between those who would have preferred a model similar to that enacted for Scotland and those who were vehemently opposed to any devolution at all as an unnecessary concession to "separatism".

The resulting proposals were for executive devolution which was presented to the people of Wales, by and large, as a simple democratisation of the existing Welsh Office. Administrative devolution, it was asserted, already existed. The substitution of democratic accountability to Members of Parliament in Westminster by Assembly Members in Cardiff would add minimal costs or complexity to government and that which would be added would be more than outweighed by benefits in efficiency and responsiveness to the electors and to Welsh needs.

However in the course of the debate and the campaign, aspirations were raised that the establishment of the National Assembly would usher in a process of devising and implementing a whole range of policies designed specifically to meet the needs of Wales and its communities. Thus the Assembly would be able to contribute to releasing the nation’s potential which had lain dormant as a result of its centuries-long domination by the priorities of the major partner in the Union, England.

It is the gap between this set of aspirations on the one hand, and the reality of the constitutional arrangements put in place through the Government of Wales Act 1998 on the other, that has engendered the intense frustration, and it has to be said not inconsiderable disenchantment, experienced by the public at the National Assembly’s failure to bring about change for the better.

The phenomenon should in fact cause no surprise. For the very nature of the Welsh Office meant that it could never be a Welsh government-in-waiting. It was a territorial department whose function was to administer, in Wales, the same functions as the Whitehall ministries whose functions it replicated in Wales. The possibility that it could start developing distinct Welsh policies was unthinkable. Such a course would have been totally at odds with the principle of collective responsibility under which ministers sign up to one uniform set of UK policies. Although a degree of variation in certain areas, such as Education, was allowed, this was always to the extent that it did not challenge the driving principles of UK policy, including for example the marketisation of the school system and the removal of Further Education from local authority control. The other area where there could be some scope for formulating a distinct Welsh policy was where there was no scope for any UK policy to be developed, namely that of the Welsh language. Beyond these limited exceptions the duty of the Welsh Office and of Welsh Office Ministers was emphatically not to question UK policy, still less to develop alternative Welsh policies. Its role was loyally to implement UK policies in Wales.

If the intention then were really to develop a distinctive Welsh policy agenda, it is reasonable to claim that a National Assembly, based on the transfer to it of the functions of the former Welsh Office and its ministers, is quite simply not fit for purpose.

The public response to this situation is highly significant. The principle that Wales should enjoy some degree of self-government is now increasingly taken as read. The widespread frustration with the governmental process in Wales is accompanied, not by any demand for the reversal of devolution, but by an appetite for more. The great majority of the people of Wales now support either the maintenance of the status quo or the establishment of legislative devolution on the Scottish model, and the strongest growth is to be seen in support for the second of the two options

Richard Wyn Jones and Roger Scully, ‘lets make it work’ in Agenda, Winter 2002/2003 based on data from the Welsh Election Study (Wales Life and Times Study), 2001

The argument for moving swiftly to an improved model of government for Wales seems to us to be conclusive in light of the alignment of public support and constitutional good practice, one might say sheer constitutional common-sense, that is now becoming manifest.

2. Executive Devolution – a Recipe for Frustration and Stagnation

The current model of devolution, we have claimed, is unfit for purpose. However, this is by no means tantamount to claiming that nothing could be achieved within the context of these arrangements. On the contrary, given a vigorous policy-development process, political will and a great deal of ingenuity, much could be achieved. The point is that any such achievements would have to be brought about despite the structural deficiencies in the current model.

The Assembly is a body which exercises executive powers. These comprise both purely administrative powers and powers of subordinate legislation, where Parliament has, by primary legislation, delegated those powers.

The importance of the first of the two should certainly not be underestimated. They include huge powers of patronage. The Assembly’s present budget is about £12bn, equal to £4,000 per annum for every person living in Wales. Although the consistent demands of keeping the public services turning over mean that most of that expenditure is already committed well in advance, the Assembly still has tremendous power to influence life in Wales by directing expenditure and investment towards key priorities and supporting public and voluntary organisations which can assist in delivering its policy agenda.

The power to make secondary legislation attracts far more attention but is in fact of far less practical importance. Although this is legislation, it is delegated legislation. Whilst major legislative reforms involve secondary legislation in order to work, its traditional function has in fact been strictly limited. Primary legislation changes the law. Secondary legislation implements the law. Its role is essential, but its subject-matter is usually abstruse and technical. The parameters within which it can be exercised are usually tightly drawn by Parliament, which views attempts to grant wider discretion to make law by secondary legislation, with suspicion.

The following weaknesses can be identified in the current secondary legislative powers of the Assembly

1. Even within the areas devolved, the powers to make legislation are incomplete and in some areas fragmentary. Where an Act of Parliament grants ministers delegated legislative powers these become vested in the Assembly either because a post-devolution Act delegates them to it directly or, in the case of pre-devolution statutes, by an Order under Section 22 of the Government of Wales Act 1998, transferring that function from the Secretary of State to the Assembly.

   Although there has been a tendency post-devolution for all ministerial powers in relation to a "devolved" subject to be granted to the Assembly, the approach has not been uniform. In pre-devolution statutes, powers have been transferred piecemeal so that there are commonly: (a) powers transferred to the Assembly in relation to Wales, (b) powers retained by the Secretary of State on an England-and-Wales basis, and (c) others which are exercisable concurrently in relation to Wales by both the Assembly and the Secretary of State.

   This kind of arrangement involves enormous complexity and gives rise to huge frustration, together with uncertainty as to whether the Assembly has the power to act in a particular way. An example of this was seen in the case of the new teachers’ performance management system, where it was originally assumed that the Assembly would have the power to reject any linkage between teachers’ pay and pupils’ performance, but this was subsequently found not to be the case.

   Recently, we experienced serious confusion during the foot-and-mouth outbreak when Ministers in Westminster thought that certain responsibilities lay in Cardiff, but when enquiries were made of the Welsh Executive, they were clear in their view that the responsibility remained at Westminster. This caused delay and considerable anxiety to countryside people and thousands of farmers in particular.

2. The sheer complexity of the current system raises significant issues for democratic accountability. Democracy involves the delegation by the individual citizen of the right to make decisions to an elected member of a representative body. If elected members are themselves unsure as to what powers they actually wield, how is the citizen to know who should be held accountable for what decision. The current model of devolution prevents the identification of a clear line of accountability, and therefore presents a significant deficiency in the democratic process.

3. Any ability to act autonomously according to Welsh preferences is far too dependent on the goodwill of the relevant UK Government department. This may or may not be forthcoming, according to the attitudes of particular civil servants or ministers. The teachers’ performance management system is one case in point. Edwina Hart in her written evidence to the Commission stated that in her experience UK Government departments often treated the Assembly "like some sort of large local authority that it is a nuisance to have to consult". On the other hand it may be that the relatively sympathetic attitude of a particular UK Minister of Education assisted in making possible the distinctive provisions for Wales in the 2002 Education Act.

4. Further transfer of functions that would facilitate coordinated policy-making can be frustrated by uncooperative attitudes in UK government departments. One learns of behind-the-scenes wrangling, with Whitehall departments fighting to retain powers which could perfectly well have been transferred to the Assembly. In relation to the difficulties with foot-and-mouth mentioned above, Plaid Cymru MPs in the summer of 2002 tabled amendments to the Animal Health Bill to devolve certain functions to the Assembly. This was supported by both farming unions in Wales. The amendment was summarily rejected by the Government, only to reappear as a recommendation in the independent report commissioned by the Government into the outbreak. Devolution of animal health responsibilities is called for by the Assembly as a whole, but there has so far been no action

5. The option of seeking primary legislation specifically for Wales in Westminster is entirely dependent upon (a) any such proposals being acceptable to the UK Government of the day and (b) parliamentary time being made available for the passage of such legislation. The refusal to introduce legislation to establish St David’s Day as a bank holiday in Wales is a case in point. On the issue of parliamentary time, suggestions for the establishment of a fast-track mechanism for Welsh legislation at Westminster for example by making use of the Welsh Grand Committee have come to naught.

6. By being confined to secondary legislation, the Assembly is denied one of the essential characteristics of good government, namely the ability to move smoothly from policy development and consultation to legislation and subsequently to implementation and monitoring.

7. The introduction of new primary legislation at Westminster often involves the repeal of previous legislation. During this process, powers delegated to the Assembly under the repealed legislation are lost. The new legislation, depending on the goodwill, and perhaps alertness, of government departments and draftsmen, may or may not delegate powers to the Assembly. In this way, the current arrangements make possible the loss of significant powers to the Assembly, thus reducing further the possibility of developing a specific Welsh policy agenda.

What we currently have therefore is a form of devolution which is a recipe for frustration and stagnation in the short term. In the longer term, there could emerge an inherent inability to function if the policy direction of a Welsh government were seriously unacceptable to that of a UK Government.

3. Reforming the Present Model

Granted the political will, both in the Assembly and at Westminster, there are possibilities for improving the effectiveness of the present model, and a Plaid Cymru the Party of Wales administration would wish to explore these to their full potential.

3.1 Framework Legislation

One possibility would be for a formal agreement, by way of a Statement of Principle, that new primary legislation in the areas of the National Assembly’s competence be always drawn up so as to allow the Assembly maximum discretion in policy implementation. Ideally, new pieces of legislation would simply provide a framework within which the Assembly would have the greatest possible freedom to draft secondary legislation.

For example, in relation to the Countryside and Rights of Way Act, a clause within the Bill could have stated: "For Wales the National Assembly may by Order make new provision for public access to the countryside; to amend the law relating to public rights of way; to enable traffic regulations to be made for the purpose of conserving an area’s natural beauty; to make provision with respect to the driving of mechanically propelled vehicles elsewhere than on roads; to amend the law relating to nature conservation and the protection of wildlife; and for connected purposes"

This would have enabled the development of provisions specifically tailored to the particular circumstances of Wales which are arguably significantly different from those of England.

There is no constitutional obstacle preventing this solution from being adopted immediately. The National Assembly would remain restricted to subordinate legislation and so the essence of the current settlement would be respected. The Government of Wales Act does not specify the pattern of powers to be bestowed on the National Assembly in the future and a constitutional precedent for this approach already exists in the way legislation is delivered in Northern Ireland during the imposition of direct rule.

A Statement of Principle could encompass issues such as an undertaking not to claw back any powers from the Assembly in the course of enacting new legislation

3.2 Expansion of Executive Powers

Two options offer themselves to this end. One is to add to the existing executive powers on a piecemeal basis. The other is to transfer all executive functions in a particular subject area.

(i) The transfer of further functions on an ad hoc basis can be done within the framework of the Government of Wales Act 1998 by a further order or orders under section 22. The decision whether to make such a transfer is of course entirely in the hands of the Westminster government. The Assembly and the Government of Wales have made various pronouncements in favour of acquiring further powers in certain fields but so far these have not been delivered. Experience shows that the acquisition of further powers by this method is likely to be agonisingly slow. The very complexity of the jungle of devolved and non-devolved powers is itself a brake to the process since it is only when it becomes clear that the Assembly lacks a specific power to do something which it wishes to do that the difficulty becomes evident. By that time it is too late to do anything.

(ii) Although functions have, until now, been transferred by reference to specific statutory powers, there seems to be no reason why powers could not be transferred by reference to general areas of competence. It is not clear whether the present power under section 22 of the Government of Wales Act 1998 would permit this. It authorises the transfer of "any function" without specifying how that function is to be identified. It is possible that an order under section 22 could identify functions by reference to general fields. If that is not the case than a very simple amendment to the Government of Wales Act 1998 would put the matter beyond doubt.

There could well be merit in pursuing all or some of the options considered above. However these would be short-term measures. What they amount to is in effect an attempt to make an inherently deficient system work better, quite simply to make the best of a bad job. We do not believe that this is the best way of tackling the issues of good governance and autonomy for Wales.

4.1 Full Legislative Powers

In considering how best to proceed, there is one fundamental question to be answered. Should Wales through the National Assembly be free to develop and implement its own policy agenda according to its own priorities and values, at least in those areas currently within its competence? A second question follows. Should the National Assembly have available to it the instruments, specifically full legislative powers, commonly regarded as necessary to enable the implementation of an autonomous policy agenda? The Party of Wales’s answer to both of these questions is an unequivocal Yes

The case, therefore, for proceeding expeditiously to full legislative devolution in the areas of the National Assembly’s competence seems to us to be overwhelming, even unanswerable.

Before discussing this in more detail, it would be as well to dispose of an often-repeated objection, namely that the Assembly has not yet acquired the skills or experience necessary to deal with the responsibilities of a fully legislative body.

We regard the objection as spurious and the metaphor of having "to learn to walk before we can run", entirely inappropriate. The reality is, as we have argued above, and as constitutional experts have pointed out, that the current model, with its "illogical and opaque" powers, a "recipe for complexity and confusion" (Richard Rawlings), is in fact far more of a challenge to operate effectively than a fully legislative assembly or parliament, with its clear demarcation of functions and definition of powers. The question of how ambitious a programme of legislation such a parliament would wish to undertake is a separate matter from whether it should have the power to do so.

Hazell and O’Leary put it thus: "If the…Assembly had legislative power it would be able to get round the Westminster logjam. Without it, it won’t. It will be dependent on the legislation passed by Westminster and prepared by Whitehall, where the Government will have a different agenda and other priorities. An Assembly with executive powers risks incurring the worst of both worlds. It will create high hopes in Wales of independent action which the Assembly may not be able to fulfil; but it will be a permanent supplicant in Whitehall, leading to continuous tension between London and Cardiff."

Plaid Cymru the Party of Wales therefore urges the Commission unequivocally to call for the establishment of a legislative assembly or parliament.

In the interests of good government and the development of Wales we call for the Welsh general election of 2007 to be to such a body. It is perfectly feasible for legislation to be enacted in Westminster and for practical arrangements to be made in good time for this to be possible. We do not believe that Wales should be obliged to limp along with a fundamentally deficient model of national government until a further Assembly term has come to an end in 2011.

The model for the Westminster legislation necessary for the change already exists in the Scotland Act which gives general law-making competence to the Scottish Parliament while reserving certain specific matters at Westminster. This provides far greater clarity and simplicity than the convoluted complexities of the 1998 Government of Wales Act.

4.2 Extending the Fields of Competence

In moving as we recommend to legislative devolution, the opportunity arises to transfer other areas of competence to the National Assembly. One of the priorities should be responsibility for the police. This would provide significant benefits in terms of the integration of police activity with other aspects of social policy. Another advantage would be that it simplifies the annual funding merry-go-round between the Home Office and the National Assembly which takes up a great deal of time. There is good reason to believe that the police themselves would welcome this development. Several senior officers and at least two of the Chief Constables are on record as being in support. This transfer should be accompanied by responsibility for the probation and fire services.

The development of an integrated transport policy requires the responsibility for railways to be transferred, along with a proportionate share of the railways budget.

A new Wales Act should make provision, as is the case with the Scotland Act, for the transfer, by Order in Council, of further functions over time, as appropriate, without the need for primary legislation.

Naturally the Party of Wales will always act on the basis of a presumption in favour of further devolution. The following would be relevant in the reasonably close future: Criminal Justice, the Courts (Lord Chancellor’s Department); internal aspects of Trade; Energy and the Media.

4.3 Wales in the European Union

Whereas the introduction of legislative devolution would not fundamentally alter the ability of Wales to influence European decisions, it would certainly raise Wales’s status among the European regions, in the European family generally, and in its involvement with UK Government departments in seeking to ensure that Welsh needs and priorities are protected.

4.4 Finance

Legislative Devolution should of course be accompanied by the power to raise revenue through taxation. The most obvious mechanism would be the power to vary the standard rate of income tax, as is the case in Scotland. However, other options should be considered, including possibly some environmental taxes and Corporation Tax.

Economic reality in much of Wales, itself, we would argue, the product of the unequal distribution of power within the British state, constitutes a persuasive case against imposing a higher personal tax burden than in wealthier England. The same reality constitutes an overwhelming case for an urgent review of the Barnett Formula which seriously disadvantages Wales. This should be undertaken as part of the preparation process for the new devolution legislation. We draw attention at this point to the Constitution Committee of the House of Lords, Devolution: Inter-institutional Relations in the United Kingdom.

The National Assembly should also be given the right to borrow for investment in strategic infrastructure. Such borrowing powers have already been awarded to the Northern Ireland Assembly and are mooted for the proposed English regional assemblies. It is vital that the Assembly be not fettered in its ability to raise finance for its strategic priorities

4.5 Membership

The expansion and development of the Assembly’s powers described above would be impossible to contemplate without an increased membership.

A fully legislative National Assembly of Wales would certainly need 80 members.

In the circumstances envisaged here it would be reasonable to accept a reduction in the number of Welsh members of the House of Commons. This would reduce the additional cost incurred in increasing the number of Assembly Members.

4.6 A National Public Service for Wales

A strengthened civil service would also be necessary in order to cope with the preparation and processing of primary legislation and the more ambitious policy-development work that would accompany it. However, one would also need to bear in mind the greater clarity and simplicity of the proposed new model as compared to the current one. To some extent the gross inadequacy of the Welsh Office civil service transferred to the Assembly is already being addressed. The Scottish Executive plus the Scottish Parliament at present employ 4500 civil servants and the number is still growing. This suggests that, whereas an increase in the size of the Assembly civil service would be necessary, it would not be a major one. Not simply the question of numbers but also experience and seniority would have to be considered in preparing for legislative devolution.

Progress should be made as soon as possible to the establishment of an autonomous Welsh civil service, drawing on the successful example of Northern Ireland. We see this as essential in order to develop a distinctive policy agenda tailored to our national priorities. The transformation of the National Assembly into a fully legislative body seems to be an opportune moment for this key development to be put in place.

An integrated public service would include public servants working for local authorities and other public bodies, including the health service and ASPBs, as well as the Assembly’s own civil servants. This would make possible the creation of career paths for public servants within Wales, broader experience of government at all levels, and strengthen mutual understanding between those levels. It would entail the establishment of a National Public Service College.

This development would open up opportunities for exchanges with public/civil services in the different nations and regions of Britain, as well as secondments/exchanges with the European Commission and indeed administrations in other European nations and regions.

4.7 Method of Election

It is impossible to divorce the issue of the number of elected members from that of the means of their election.

If we envisage an increase in the number of AMs from 60 to 80 this could be accomplished fairly easily by doubling the number of regional ("additional") members from 20 to 40. This would have the added advantage of making the system more proportional.

However, we would argue that the opportunity should be taken to introduce the Party of Wales’s preferred option of multi-member constituencies and the Single Transferable Vote (STV). This system, as well as ensuring proportionality, also tends to empower voters at the expense of the political party machines, which must be seen as good for democracy. To those who argue the importance of the linkage between the individual elected member and her/his constituency, it should be pointed out that the current system already means that every constituent has in effect five Assembly Members.

4.8 The Secretary of State and the Wales Office

Under legislative devolution Wales would certainly still need to be represented in the Westminster Cabinet, though as has already been mentioned the Secretary of State’s ability to represent the interests of Wales is limited by the principle of collective responsibility. We believe that negotiation between the Government of Wales and the UK Government should increasingly be conducted on an inter-governmental basis. Bearing this in mind, there may well be a case for the creation of a Secretary of State for the Territories responsible for all the devolved administrations. This would provide administrative savings in costs that are currently met out of the National Assembly’s budget.

Plaid Cymru the Party of Wales’s aspiration is that Wales should, in the fullness of time, achieve full national status as a member-state of the European Union.

However, we believe that this is best achieved through an evolutionary process during which further functions and powers are transferred over time to the Welsh level. There is every reason to believe that such a process will coincide with increasing devolution upwards from the UK to the European level. Already the EU role in Defence, Foreign Affairs, macro-economic affairs, external trade, international development, social security and employment is increasing. Whereas it is impossible to predict the extent or the speed with which this process will occur, the status of what have misleadingly been called "nation states" may well be far less in the future than applies presently, much less one or two generation ago. That is why Plaid Cymru the Party of Wales regards the term "full national status" as more appropriate and accurate in the European context than the term "independence".

Nevertheless, the distinction between devolution, however far-reaching, and the entrenchment of powers involved in full national status, is an essential one. The step from the former to the latter would be a momentous one. Plaid Cymru the Party of Wales, believing as it does that it is for the people of Wales to decide upon the constitutional status of their country, regards a positive result in a Referendum as a necessary precondition for such a step.

6. The Short Term

Having set out our aspirations for the long-term future, we wish to make it clear that we do not regard legislative devolution as a mere staging post to full national status. It is a perfectly valid constitutional state of affairs in its own right, which is far more than can be said of the present arrangements.

True, the National Assembly has already begun to make a positive contribution to the life of Wales. Its main weakness is structural. Its form and powers were devised to solve a political dilemma not to deliver the most effective and efficient form of government. Whilst an expansion of Assembly powers into new areas and a more comprehensive transfer of powers in those areas where it already has powers would be an improvement, the structural weakness would remain.

Only a legislative Assembly, along the same lines as the Scottish Parliament, with more powers in already devolved subject areas plus some key further areas, will be able to provide a stable and equal relationship between Wales and other parts of the UK, as well as providing the platform for the implementation of policies that can release the potential of Wales and improve the quality of our people’s lives. It would also strengthen the position of Wales in ensuring that our perspective and interests are represented in increasingly important discussions in the European Union.