1. I am very grateful for the opportunity to submit written evidence to your Commission, and I look forward to giving oral evidence to you shortly. I regard your inquiry as extremely significant. My evidence is submitted jointly with the Deputy Presiding Officer of the Assembly, Dr John Marek AM. Our written evidence addresses a number of different themes, but is constrained (as our oral evidence will be) by our position as Presiding Officers.

2. There was a degree of idealism in the way in which the Assembly was initially conceived as a consensual body which would abjure the confrontational ways of Westminster. But the initial model also led to considerable confusion among the people of Wales as to responsibility. This came into clear focus once a coalition government was in place. When a village school was closed, that was a decision for which Ministers needed to take responsibility, not the Assembly as a whole. Conversely, the parties of government wanted to take the credit for popular decisions, not diffuse the credit across all the other parties in the Assembly. People understand the model of government and opposition: it is natural in all democracies, even those best known for consensual politics like Sweden and the Netherlands. Any attempt to act differently in Wales might have been brave and idealistic, but was always doomed. This is why it came as no surprise that on 14th February 2002 the Assembly unanimously agreed an amendment proposed by the Opposition which called for the "clearest possible separation between the Government and the Assembly which is achievable under current legislation".

3. Our view is that separation between Government and Legislature is inevitable and right, though it does not mean that what is best in the current arrangements should be rejected. For example, the way in which Ministers are members of subject committees can and does give greater influence to ordinary members of these committees than happens in models such as the House of Commons select committees where Ministers and committees often appear to be set up to confront one another.

4. There had been moves towards separation from the early days of the Assembly, not all painless. This is particularly apparent in staffing matters. The original "Office of the Presiding Officer" evolved into a Presiding Office which provides "parliamentary" services to members of all parties. The Office has its own separate budget and personnel function, and is headed by a Clerk recruited externally. Independent legal advice is now given to the Presiding Officers, and there is an agreed statement governing relations between staff of the Government and staff of the Presiding Office. One of the last but vitally important pieces of the jigsaw is soon to happen when the advisory House Committee (itself created only in October 2000) will be replaced by a Committee with delegated powers. This Committee will run the parliamentary services in much the same way as the House of Commons Commission or the Scottish Parliamentary Corporate Body do in their institutions. The powers of the Assembly will then flow in two streams – the governmental to the First Minister, and the parliamentary to the House Committee.

5. Implicit in the resolution of the 14^th February 2002 is the acceptance that the Government of Wales Act will need to be amended to achieve full separation. One obvious area would be to allow the creation of a separate parliamentary service, as exists in London, Edinburgh and Belfast, as well as in most Commonwealth and European systems. We have moved a considerable distance in this direction under current arrangements by developing a set of formal agreements between the Assembly’s Clerk and its Permanent Secretary which protect the independence and semi-autonomy of staff in the Presiding Office. It is important that Members realise that Presiding Office staff are there to support them all, irrespective of party. They do not serve the government of the day. We believe that Members do have this confidence in Presiding Office staff at present. But there remains a concern among some Members and outside commentators that staff may not be whole-hearted in their commitment to serve all elected Members impartially if they believe that their careers could be jeopardised if they, for example, help a Committee to subject senior officials of the Assembly Government – who might be their line managers in their next job – to uncomfortably searching scrutiny. There is no evidence that any pressure of this kind is or has been actually applied, but the separation between parliamentary and executive staffs which exists in most other systems is there for a good reason. Indeed, there is common acceptance by parliamentarians that legislatures must be served by a secretariat independent of the Executive if the accountability of the Executive to the legislature is to be ensured. There are also differences in the skills required and sort of work which is done in a parliamentary as opposed to a governmental institution. This means that both government and parliamentary sides of the Assembly are at present obliged to make management arrangements which try to reflect the needs of both sides simultaneously, and are therefore not as well suited as they might be to either.

6. We do acknowledge that the current system means that staff who work in the Presiding Office have better knowledge of the ways of government than staff in other parliamentary institutions where the separation is absolute. Moreover, they are able to use their links and knowledge to the advantage of the work they do for Members. But we do not believe that this outweighs the argument for a separate service.

7. There are fewer than 300 staff who work in the Presiding Office, and there are undoubtedly benefits for them in being members of a wider group, especially in terms of career mobility and development. But the difficulty in ensuring that an adequate career structure can be provided for them would be ameliorated if there were greater freedom of movement within the Welsh public service. This might incorporate Assembly Government, Assembly-sponsored Public Bodies, and possibly local authority staff and others, as well as those who serve elected members in the National Assembly. On a related matter, there already need to be amendments to the Civil Service Code which will reflect the creation of a class of staff here who serve the Welsh Assembly Government and a class (in the Presiding Office) who do not serve Ministers. The Code is at present drafted on the assumption that civil servants will have duties both towards Ministers (Assembly Secretaries) and the National Assembly as a body. This makes little sense in the current situation.

8. There are, of course, many other changes which would be necessary to achieve the Government/Assembly separation. To take the most obvious examples, the Cabinet would no longer be a Committee of the Assembly, and the way in which functions have been invested in the Assembly would need to be redrafted on a model more akin to that in the Scotland Act with powers being vested in the Government, probably as represented by the First Minister. This would obviously tie in with any change to give the Assembly primary legislative powers. But we would not see the achievement of primary legislation powers as a necessary pre-condition for the creation of a separate legislature because of the current de facto separation of the Government and the Assembly.

9. Other changes which we can identify are:

• The exercise by Ministers of their functions should be regarded as done on behalf of the Crown. At present, the Assembly as a whole is part of the Crown (see section 1 (3) of the Government of Wales Act). This change would parallel the position in Scotland.
• The Assembly might remain as a corporate body but the Government would be a separate body.
• A need to make provision for a statutory Commission to replace the House Committee: the Act was not drafted with a Commission-type body in mind. Section 21 of the Scotland Act provides a model.
• The desirability of removing the disjunction between the terms now in use in the Assembly and those set out in the Government of Wales Act (thus "Cabinet" or "Welsh Assembly Government" would replace "Executive Committee" and "Minister" replace "Secretary" and so on).
• There should be statutory provision for the First Minister to appoint Deputy Ministers.
• The provisions relating to "accountability in fields", and the strict links between these and subject committees’ responsibilities need to be relaxed (they have proved problematical in the case of the Minister for Rural Development and Wales Abroad, where a ministerial portfolio does not match that of a subject committee because of a somewhat artificial distinction between "accountability" and "responsibility").

A number of other tidying-up changes to the Government of Wales Act could be made at the same time. These would not be matters of substance. But we now know which parts of the Act work well, and which are not matters of principle but nonetheless are a hindrance to our operation.

Legislation

Involving the Assembly in the primary legislative process

10. We deal first with issues which arise from the current legislative arrangements. Our evidence here builds on what was agreed by the Assembly Review of Procedure, of which the Commission is aware. We wish to see greater Assembly involvement in the existing primary legislative process, and we look at this not from the viewpoint of government-to-government contact (where we have no direct knowledge), but Assembly to Parliament contact.

11. When we gave evidence recently to the Welsh Affairs Select Committee, we stressed the need for links to be developed between our two bodies so that our respective functions as co-legislators for Wales could be developed as harmoniously as possible. Co-operation is growing between our subject committees and the Welsh Affairs Committee, and that Committee at least may be willing to regard the Assembly and its committees as having a different status in respect of primary legislation affecting devolved matters from other bodies wishing to influence the parliamentary process.

12. There are many ways in which co-operation could develop. For example, Robin Cook has suggested in a Memorandum to the Commons Modernisation Committee that the publication of draft bills would enhance the opportunity for co-operation with the devolved bodies. Specifically, he said that "Bills which applied only in Wales could undergo pre-legislative scrutiny in parallel both at Westminster and in the Assembly for Wales". In our view, pre-legislative scrutiny of this type should not be confined to the very rare bills applying only in Wales (the only examples since 1997 are the Government of Wales Bill, the Children’s Commissioner for Wales Bill and the National Health Service (Wales) Bill). Parallel pre-legislative scrutiny of draft bills could include all draft government bills which apply in both jurisdictions and for which it is proposed that the Assembly should have responsibilities whether or not those responsibilities are the same or different from those proposed to be given to central Government Ministers as regards England. Successful pre-legislative scrutiny took place in respect of the National Health Service (Wales) Bill, which is to be introduced in this session of Parliament. However Whitehall Departments are not likely to welcome pre-legislative scrutiny of measures which are sensitive or controversial.

13. But to integrate the primary legislative process at Westminster with the secondary legislative process in Cardiff in the way that the Whitehall primary and secondary legislative processes are integrated would require radical procedural change at Westminster and in Cardiff to enable Members of Parliament and Assembly Members to work together jointly on legislation which deals with devolved matters. This would be dependent, if achievable at all, upon a level of goodwill at Westminster which exists now only among a small number of Members of Parliament, and which would be under severe strain if the dominant politics of the Assembly were at variance with the dominant politics of London. The co-legislator roles of both parties are inherently unstable.

14. We also believe that the level of co-operation which can be achieved on legislation is inversely proportional both to its level of political controversy and to the stage in the timetable in which it becomes available (which are sometimes linked matters). When a Whitehall policy idea is introduced in legislative form at report stage in the second House, there is no way in which the Assembly (at least the non-government part of the Assembly) can be involved.

15. Inside the current settlement, much more could be done to enhance the Assembly’s role. There is no consistency of practice and no clear convention on the drafting of Bills which affect Wales – indeed, as the Constitution Unit has argued, each new Bill can be seen as re-inventing devolution. That is why the Assembly Review of Procedure endorsed seven principles which Assembly Members unanimously across all parties believe should be adopted in Government Bills affecting functions of the Assembly. These are:

• The Assembly should acquire any and all new powers in a Bill where these relate to its existing responsibilities.
• Bills should only give a UK Minister powers which cover Wales if it is intended that the policy concerned is to be conducted on a single England and Wales / GB / UK basis.
• Bills should not confer functions specifically on the Secretary of State for Wales. Where functions need to be exercised separately in Wales, they should be conferred on the Assembly.
• A Bill should not reduce the Assembly’s functions by giving concurrent functions to a UK Minister, imposing a requirement on the Assembly to act jointly or with UK Government / Parliamentary consent, or dealing with matters which were previously the subject of Assembly subordinate legislation.
• Where a Bill gives the Assembly new functions, this should be in broad enough terms to allow the Assembly to develop its own policies flexibly. This may mean, where appropriate, giving the Assembly "enabling" subordinate legislative powers, different from those given to a Minister for exercise in England, and/or which proceed by reference to the subject-matter of the Bill.
• It should be permissible for a Bill to give the Assembly so-called "Henry VIII" powers (i.e. powers to amend primary legislation by subordinate legislation, or apply it differently) for defined purposes, the test being whether the particular powers are justified for the purpose of the effective implementation of the relevant policy. Where such powers are to be vested in a UK Minister for exercise in England, they should be vested in the Assembly for exercise in Wales.
• Assembly to have power to bring into force (or "commence") all Bills or parts of Bills which relate to its responsibilities. Where the Minister is to have commencement powers in respect of England the Assembly should have the same powers in respect of Wales.

16. Of all these principles, the fifth is of particular importance. We need to develop the willingness in Whitehall Departments for the Assembly to have greater freedom to make policy decisions and secondary legislation than may be appropriate for a Minister in Whitehall. We readily recognise the problems inherent in giving London Ministers wide powers to make secondary legislation. But what is an appropriate restriction on ministerial freedom in England is a less appropriate restriction when applied to powers exercised by the democratically elected National Assembly: we have a statutory system of subject committees to discuss policy initiatives and to call Ministers to account, and our secondary legislative procedures are more akin to primary legislative procedures at Westminster enabling both subject committees and plenary sessions to consider and propose amendments to the legislation. The perfunctory way in which secondary legislation is considered in Parliament is an illuminating contrast.

17. We therefore favour more frequent and wider use of enabling clauses in Bills to give the Assembly powers to make executive decisions including secondary legislation within a broad framework established in the primary Act. This is not desperately radical: it would be in keeping with the Hansard Society Commission on the Legislative Process, which proposed that the detail of legislation should be left to delegated legislation. An example of such a broad framework is section 32 of the Government of Wales Act which gives the Assembly powers to make such provisions as it considers necessary to support sport, culture, the Welsh language and historic buildings in Wales. More radically, the Assembly could be given powers to make secondary legislation to implement the subject matter of Acts passed by the Westminster Parliament – the subject matter of an Act being a concept borrowed from Schedule 5 to the Scotland Act 1998.

18. Greater clarity and consistency in drafting is also necessary. Every Bill which applies to England and to Wales and which proposes powers to be exercisable by the Assembly should be drafted in such a way that practitioners and legislators can have maximum clarity first as to which powers apply to Wales, and secondly as to which of these powers are exercisable by the Secretary of State in relation to Wales, and which are exercisable by the Assembly. The powers which apply to Wales (whether the same as or different from the powers applying to England) should be identified in a separate clause or part of the Bill. An example of where legislation clearly shows its application to Wales is the Learning and Skills Act 2000 which in two Parts of the Act sets out provisions which are only applicable to Wales. An example of an Act which makes the same provisions for England and Wales but which makes clear the application of the legislation to Wales is the Fur Farming (Prohibition) Act 2000 where powers are given in the Act to "the regulatory authority" and where the interpretation section defines this phrase as being the National Assembly as regards Wales. Conversely, the Education Act 2002 has one part (Part 7) which relates solely to Wales (the National Curriculum in Wales) and otherwise makes no distinction between England and Wales, making it necessary to read every section and sometimes subsection as well, to ascertain whether, as regards Wales, a function is exercisable by the Assembly or by the Secretary of State. We are aware that some of these issues are under active consideration at present by Parliamentary Counsel. One useful forthcoming measure will be the publication of explanatory notes to Bills which will specify their application to Wales.

19. It would not be appropriate for the Presiding Officers to comment directly on this question. But we can offer some pertinent observations.

20. First, we believe that there was a level of misconception about the importance of secondary legislation before the introduction of the Government of Wales Act. Of course some secondary legislation is important in that it fills out the skeleton provisions of an Act, and few Acts of Parliament have force without secondary legislation to fill out their detail. But much secondary legislation is politically lifeless abstruse detail. In the Assembly, we have elaborate procedures for the consideration of this material, though most does not warrant any more than cursory political attention. It need not be so, if there was a willingness to follow the principle described in paragraph 16 above, but that is the current general position. Where secondary legislation is used to give effect to real political change, we have procedures in place which allow thorough scrutiny, and we have established, as a consequence of the Assembly Review of Procedure, enhanced support for Members and Committees in discharging their legislative role.

21. Secondly, the powers to make secondary legislation which the Assembly inherited from the Secretary of State for Wales were an almost haphazard accretion of a half-century with no coherence of principle underlying them. Little or nothing has been done to introduce coherence in legislation enacted since the Transfer of Functions Order made under the Government of Wales Act. The extent of the Assembly’s powers to make subordinate legislation depends on the provisions of the particular enabling enactment. Sometimes the powers are wide, sometimes they are limited. The straitjacket in which this places Members is best illustrated by the great difficulty Members have had in using our procedures under Standing Order 29 (our equivalent of a Private Members’ Bills procedure) to bring about meaningful political objectives. Voluntary bodies have equal problems in suggesting topics to Members for incorporating in proposals under Standing Order 29.

22. Thirdly, our detailed procedures for dealing with secondary legislation (even if they could benefit from some relaxation and simplification) indicate that we would have the capacity to apply similar procedures to the consideration of the red political meat of primary legislation, if we were to have powers in that area. There is one important word of caution: if we were dealing with more sensitive legislative material, we would expect to see many more amendments tabled, and much more detailed consideration of the legislation in committee. That would have implications for Members’ time, and for the resources which we would need to provide for Members’ work in Plenary, and especially in Committees. It might also deflect subject committees from their non-legislative work, as happens in other legislatures where the scrutiny and legislative roles are exercised by the same committee – the Assembly will always be too small to sustain separate systems of legislative and scrutiny committees.

23. Essentially we believe that the Assembly’s secondary legislative role, at least as it is constrained at present, does not give us the opportunity of making legislation of which we are capable to reflect the needs of the people of Wales. There is scope for more to be done within the present framework, and we are confident that the parliamentary part of the Assembly – Members and officials – would respond with alacrity if we receive primary legislative powers. Of course, there would also be profound implications for the Welsh Assembly Government and its officials. But we believe that they are as capable as the officials of the Scottish and Northern Ireland administrations – and for that matter of the regional governments in Australia and Canada and throughout Europe – to devise and implement policies for Wales themselves, whether or not these policies need legislation to be brought into effect, and whether or not that legislation is primary or secondary. Resources are necessary as well as capability, and no doubt the Commission will be considering the resources which the Executives in Scotland and Northern Ireland have in comparison with Wales.

24. In giving the Assembly primary legislative powers, it is recognised that, as with the Scottish Parliament, there would need to be exceptions to those powers. Also, unlike Scotland, given the lack of a steady and consistent number of Acts of Parliament passed each year solely for Wales prior to devolution, it might be possible to consider limiting the powers of the Assembly to make such legislation by reference to a few subject areas at the outset, such as housing, local government and education or to aspects of these. This would give Members and officials the opportunity to acquire the skills and refine the procedures necessary for drawing up, processing and implementing legislation in these areas.

25. The Assembly’s legislative output must be seen within the context of European law, which is often a much more significant constraint on the Assembly’s actions than is domestic legislation. We have a Committee on European and External Affairs, but it does not have the capacity to monitor European legislation in the way in which the Scrutiny Committee in the House of Commons does. Though not strictly a matter relating to the Assembly’s powers, we believe that it is nevertheless important for the Assembly and its Committees to become more fully involved in the European legislation process. The organisation representing European regional legislative bodies (CALRE) has expressed its concerns at a European level that legislative Assemblies such as ours must be involved in the future governance of Europe, and given a special status in European treaties. We share that ambition.

26. The National Assembly has considerably fewer members than the Scottish Parliament or Northern Ireland Assembly, let alone the House of Commons. In Wales there are 48,400 constituents per AM; in Scotland the comparative figure is 39,300 and in Northern Ireland it is 15,600. To take a Commonwealth example, the New South Wales Legislative Assembly has 93 Members representing an average population of 43,000 each. Representing constituents, attending Plenary and committees (in both, high attendance levels are the norm), ministerial and shadow ministerial work and all the other representational, scrutiny and political activities which go with their jobs represent a formidable commitment for just 60 Assembly Members. There are advantages in having a small membership: for example, the personal links which are essential to harmonious cross-party working are easier to establish and foster; but our judgement is that these are outweighed by the pressures on just 60 Members. The stress-related ill health that several colleagues have suffered is an illustration of that. We therefore favour an increase in the size of the Assembly’s membership to 80 (one per 36,300 constituents). The case for an increase in membership becomes that much greater as the Assembly develops its role and its self-confidence, and especially as it takes its existing legislative role more seriously, but we do not believe that it is dependent on any formal increase in the Assembly’s powers.

27. It would not be appropriate for us to comment on the appropriate electoral method which the Assembly should adopt, and we therefore make no comment on the means by which the extra Members should be elected. We do, however, believe that the Assembly has been greatly enhanced by the presence of four party groups, each in reasonable strength. It has made the body more representative of the people of Wales, and brought all the principal parties inside the tent. That was the direct consequence of the electoral system provided for in the Government of Wales Act.

28. We make one further comment on the position of regional Members as seen from the Chair: we have had no problem in treating them identically to constituency Members so far as proceedings are concerned. Any concerns that they might have become in any sense second-class Members have not been realised. We also believe that constituents have benefited from having Assembly Members of various parties representing them, though we are aware of turf wars which have occasionally erupted between constituency and regional Members on representational matters.

29. We wish to end this memorandum by pointing to two areas where we are an exemplar to other democratic bodies. First of all, our use of ICT has been an unalloyed success. We are able to do our business electronically in the Chamber, in our Committee work and in our internal and external dealings – including our dealings with our constituents. We want to see this digital democracy develop further, and we are determined that the National Assembly should remain a world-leader. Democratic bodies must use the medium of the moment if they are to survive, let alone thrive. Secondly, we have an excellent public information and education service in the Assembly in which we have invested considerable resources. Their effort is devoted to countering the corrosive and all too prevalent view that the National Assembly and our work as elected politicians within it do not matter. We regard measures to improve voter education and the level of participation in the political process as crucial. We are working fruitfully with both the Electoral Commission and the Commonwealth Parliamentary Association in this area – a major Commonwealth conference will be held in Cardiff early in 2003. We would encourage the Commissioners to see for themselves what we do in our Pierhead Centre.