RSPB

RSPB Cymru response to the Richard Commission's consultation on the structure & powers of the National Assembly for Wales.

Introduction

RSPB Cymru is grateful for the opportunity to contribute views to the Richard Commission.

We have restricted our response on the structure and powers of the Assembly, to areas where we have direct experience of working with the new devolved government.

The RSPB is politically neutral and we have therefore focused our comments in areas where we perceive that the current system is problematic or could be improved. By this, we mean, improved for the benefit of the Welsh environment and to help the National Assembly to better achieve its sustainable development objectives.

Background on the RSPB

The RSPB promotes the conservation of wild birds and their habitats. We research environmental problems and campaign for solutions. We manage nature reserves, provide education resources and offer advice to local landowners and managers.

Birds do not exist in isolation, to conserve them we must conserve the whole environment. As well as direct management of important areas for wildlife, the RSPB works with policy makers on the wide range of issues that affect our environment. This covers almost every area of the Assembly's policy remit - from agriculture, planning and transport to energy generation, education and economic development.

The RSPB is Europe's largest wildlife conservation charity with over a million members. RSPB Cymru has over 40,000 members in Wales, including more than 6,000 junior members. There are 17 RSPB reserves in Wales covering 15,000 hectares. The first office in Wales opened in 1971 and today there are over 70 full and part-time staff based in Bangor, Cardiff and reserves across Wales.

General Points on the Assembly Structure and its Powers

1. Accessibility: RSPB Cymru believes that devolution in Wales has without doubt provided us (and other voluntary sector organisations) with improved access to policy information. It has also given us increased opportunities to feed in our ideas through consultations and committee policy reviews and evidence sessions. We believe that the structure of the National Assembly for Wales assists public access and the workings are reasonably transparent.

2. The Sustainable Development Scheme: We have worked closely with the National Assembly to draw up and develop a Sustainable Development Scheme, which is a statutory commitment under Section 121 of the Government of Wales Act. This Scheme should ensure that environmental considerations are more fully addressed in policy development. The Scheme also sets out a wider reforming agenda for sustainability, which will require a transformation in how people in Wales live and are governed.

RSPB Cymru believes that for the Assembly to achieve its vision of sustainable development as identified in the Scheme, it will require significant policy, legislative and structural changes in the way the country is governed.

We do not believe that the current powers of the Assembly are sufficient to develop more sustainable policies in all appropriate areas. The RSPB believes that the Assembly will need to have access to further powers for Wales and can identify three possible ways forward to resolve this situation.

a) A structural change in relations between the devolved administration and Westminster, to ensure increased UK Parliamentary time for consideration of the primary legislative changes necessitated by policies developed for Wales by the National Assembly for Wales.

b) Delegation of further powers to the Assembly under a regular/annual Enabling Act for Wales. We understand that this is possible under the existing Government of Wales Act.

c) Increased devolution of some primary legislative powers to the National Assembly for Wales.

Does the Government of Wales Act provide the Assembly with the powers it needs to operate effectively and meet the expectations of the people of Wales?

3. In areas where powers have been devolved to the Assembly, or where they are relatively straightforward and easy to comprehend (such as education and some aspects of agriculture), we feel that the Assembly has made some beneficial policy changes to policy affecting the Welsh environment. In areas where the extent of the powers is not apparent or where powers are retained by Westminster, there have been noticeably slower changes, if any. Examples in this area include energy and transport policies.

4. At this stage in the Assembly's development, there has been little divergence from the equivalent Westminster legislation (either primary or secondary).

a. With regard to secondary legislation, organisations such as the RSPB have yet to fully understand and explore the extent of powers available to the National Assembly for Wales. It would be helpful if all future Assembly policy documents could include a summary of the areas of action over which the Assembly has authority and those which would be dependent upon new primary legislation or amendment to legislation at Westminster.

RSPB Cymru believes that if the Assembly's regulations are to promote sustainable development, it may not always be appropriate to use the English regulations as a template, as the UK Government does not have the same duty to promote sustainable development.

b. With regard primary legislation - the current system does not seem conducive to the Assembly promoting any quantity of primary legislation for Wales to Westminster. In the four years since the arrival of the Assembly, there has been only one Wales-only Bill. We believe it is important to develop improved mechanisms for communication with Westminster, and a mechanism to ensure that there is appropriate UK Parliamentary time for Welsh Bills or for the Welsh parts of larger Bills.

5. There are areas where we believe the Assembly will require new primary legislation to achieve its sustainable development agenda. As we set out in point 2 above, we believe that this will need an improved, formal communication mechanism with Westminster, or an Enabling Act to delegate.powers for Wales in key areas, or further devolution of primary powers. Whilst the RSPB has no particular view on the best mechanism to do this, we do believe that there is a level of urgency to the sustainable development agenda. Further delegation of powers to the Assembly may bring about swifter action in key areas. We have set out below particular policy areas, currently beyond the Assembly's powers, that we believe need to be developed if the Assembly is to fulfil its sustainable development statutory duty.

a. Primary legislation is needed to improve the management of Common land in Wales, where the agricultural and environmental need for change is imperative. Problems over registration of rights on commons (Commons Registration Act 1965) make it almost impossible for graziers and right holders to come to agreement over the management of commons. This has resulted in environmental, recreational and animal health concerns, as well as limiting the ability of hill farmers to make a living from their holdings supplemented by commons grazing rights.

b. Primary legislation is needed to ensure protection and proper management of the marine environment. Whilst the RSPB is calling for improved management of marine areas around the UK, we believe that there is a case for examining the powers available to the National Assembly for Wales to define environmental designations and environmentally high risk areas in and beyond the 12 nautical mile limit.

c. Greater legislative powers are needed to allow Wales to implement a comprehensive programme for renewable energy generation in Wales. In particular, powers to make planning decisions on energy developments generating more than 50 MW and to issue Section 36 planning consents under the Electricity Act 1989, should be delegated to Wales. The UK Secretary of State for Trade & Industry currently holds both of these powers.

d. Additional powers over transport policies in Wales are desirable to allow the Assembly to pursue a truly integrated transport policy. This is a key measure of sustainable development in terms of the impacts of atmospheric emissions from road transport, direct impacts on the environment, and in terms of social mobility and accessibility. The House of Commons Welsh Affairs Committee has also raised similar concerns on this point. We would favour additional powers over the structure and authority of the Passenger Transport Authorities in Wales, and increased representation on the Strategic Rail Authority in respect to the Wales and Borders Franchise and other rail services operating in Wales.

e. A Tax Commission should be set up to examine the role of fiscal instruments in changing attitudes and behaviour towards sustainable patterns. We would support the National Assembly receiving limited tax varying powers to encourage changes in consumer behaviour towards more sustainable options. Examples of "Eco- taxes" include a tax on pesticides, tax relief on brown-field developments, and levies on unnecessary packaging and plastic bag use, revenue from which could be hypothecated to encourage recycling initiatives.

f. The Assembly has made some progress towards developing a more sustainable procurement policy for itself and for its sponsored bodies in Wales. We understand that further progress in this area will require support from the UK Government in amending primary legisation.

Structure and Working arrangements of the Assembly.

6. The present situation where the Assembly is a corporate body in law but de facto an executive and a parliament, does not lead to legislative clarity. If the Assembly is not operating the structure set out in the Government of Wales Act because it is unworkable, then the Act should be amended. This situation could result in difficulties in passing on duties to Wales from new Acts of Parliament. For example, the Planning & Compulsory Purchase Bill refers to "The Assembly will ...". We assume that a plenary vote to will be required to 'delegate' these powers to the Welsh Assembly Government. If in the future there is no majority government or a coalition, enacting primary legislation in Wales could be held up indefinitely.

7. The de facto separation between the Government and the Assembly has simplified public understanding of the governance of Wales, primarily because this is a structure familiar to most people and it seemed that this separation was beginning to evolve in any case once there was a coalition government.

8. The role of committees as scrutinisers has generally been less rigorous than we would have anticipated or hoped. When scrutinising the Minister, committees often divide on party lines, rather than working as a team to hold the Minister to account. Whilst this is to be expected to some extent, the small numbers of members and the continued likelihood of no overall party majority in the Assembly do appear to exacerbate this.

9. With regard to the committee functions, it is not always clear to the public when the committee is in scrutiny or policy development role. As a minimum, it would be useful for the agenda or the Chair to make this clear.

10. Several committees have been very active in contributing to policy development and overall we feel that this has been a very successful aspect of the Assembly Committees' workings.

11. The close balance of power in the Assembly (which seems likely to continue in the near future) and the relatively small number of members in the Assembly seem to have hindered the development of a particularly active backbench. The role of backbenchers in Westminster in raising controversial or minority group issues is well known and the development of a more active backbench is of obvious interest to voluntary sector organisations.

12. There is considerable scope for improving the clarity and openness of the mechanisms for inter-Parliamentary working and communication. This is particularly apparent over Assembly input into primary legislation that relates to Wales. Should a situation arise where we have two different parties in power in Wales and Westminster, some of the channels, which appear to have been employed so far, may not be workable. A formal procedure for the Assembly to input into primary legislation relating to Wales should be developed. Therefore, we would strongly favour the development of a more formal, transparent procedure.

13. The meeting of the UK country Agriculture Ministers does seem to work well, where the Assembly Minister provides feedback on the Joint Ministerial Meeting to the Agriculture Committee. This arrangement could perhaps be used as a model for other policy areas. Public openness, such as publicly available minutes and feedback is essential.

Relationship between Assembly and Whitehall

14. There is a need for increased cooperation between UK and Welsh civil service. There have been a number of incidents where information does not appear to be shared between various UK departments and the Assembly civil service. The most well publicised of these was confusion over a considerable delay in a DEFRA commissioned report on genetic modification being received by the Assembly.

15. In the first few years of devolution, there were several incidences where consultation documents were issued on devolved matters, from UK departments rather than from the Assembly. This may have been a teething issue, as it does seem to be less of an issue of late.

16. As with the relationship between the Assembly and Parliament, communication between the two civil services is not always open and transparent. More formal mechanisms may need to be considered.

17. The Assembly has a statutory Sustainable Development Scheme, which requires the Assembly to promote sustainable development throughout its actions. This places requirements on Assembly policy and legislation, which has implications for the work of Welsh civil servants. It may not always be appropriate to simply amend English regulations for use in Wales and this will necessitate increasing the capacity of the Welsh civil service in technical policy development and legislative drafting. The implementation of the Scheme also will require the Assembly civil service to work in new and potentially different ways from their English counterparts, for example in undertaking Sustainability Appraisals of their work and these differences may need to be reflected in management and contractual details.

18. It is not always clear whether budgetary announcements made by the UK Government also refer to Wales. Whilst some announcements do fall within the normal Assembly Budget round and therefore within the Barnett Formula, there are a number of instances where the UK Treasury announces new money and it is unclear whether sums over and above the Barnett formula will come to Wales. Confusion can arise easily if new money has been announced by the UK Government for a certain policy, which later does not receive a budgetary increase in Wales, either because the new money was for England only, or the Welsh Assembly Government has reallocated the sum to a different policy in Wales.

19. There needs to be a formal, transparent mechanism for the National Assembly to be involved in discussions regarding wider economic issues which will impact on Wales. For example should the Fontainebleau agreement be renegotiated in Europe this will have significant impacts on the amount of money available to Wales under the Rural Development Regulations of the Common Agricultural Policy.