Submission from UNISON CYMRU/WALES to the

Richard Commission
1.     INTRODUCTION
1.1    This paper sets out the position of UNISON Cymru/Wales on devolution in Wales. It argues that the current settlement falls somewhat short in terms of the ability of Welsh Assembly Government to develop a distinctive and integrated policy making capability for the people and communities of Wales. It favours amendments to the existing constitution to allow the Assembly greater freedom and flexibility to act as an independent nation.
1.2    Whilst the Commission have been given specific terms of reference UNISON would like to take the opportunity to link its comments to more general observations about democracy and citizenship. UNISON have historically been supportive of devolution and played a key role in the campaign for the creation of the Assembly. We therefore come to this current debate with a supportive policy position and recognise that devolution could never be static. It would develop and mature over time.
1.3    The opportunity to re-examine the devolution settlement should also be linked with the broader question of the health and vibrancy of the political process. Without wishing to overstate the case, UNISON and others believe there is a crisis in the democratic process. There is a common perception that the Assembly is no more than a talking-shop. It fails to convince the people of Wales that it is relevant and effective. In summary it is failing to get its message across. The Assembly does need to reach out and communicate its message and advertise its successes. This can be done through the formal education process, community initiatives and working with young people. Effective communication is only one part of the equation. Additionally, the Assembly needs to be equipped with the necessary powers and resources to make devolved government effective.
1.4    UNISON strongly supports the principles of proportionality and that the makeup of the Assembly should be a reflection of the diversity of the population. We note the current arrangements do not adequately address this issue. Potential solutions to develop greater proportionality via proportional representation are hindered by the financial and structural obstacles, particularly the numbers of Assembly Members not being sufficient to realise many of the objectives.
1.5    It should not be forgotten that the Assembly’s creation was in part about addressing the democratic deficit. Participation in elections particularly Local Government elections are at an all-time low. Recent opinion surveys show high levels of cynicism and disengagement from the political process, particularly amongst young people.
1.6    The comments in 1.2 –1.4 are not tangential to the issue of Assembly powers. We believe that they are inextricably linked. The Assembly’s powers, and its standing amongst the people of Wales, are central to the objective of democratic renewal. We hope the Commission will take this into account in its formal report.
2.    BACKGROUND
2.1   The Government of Wales Act 1998 imposes a particular form of devolution on Wales. It does not include the authority to instigate primary legislation as in Scotland, nor is it capable of varying taxes, and there are important limitations on other aspects of its powers in relation to UK Government. The Scottish Parliament can vary income tax by up to 3%; it can make laws in relation to Scotland for health, education, the environment and local government. In sharp contrast, Welsh Assembly Government can only implement rather than make laws in these areas (although it can effect secondary legislation.) In Wales, UK Government is required to consult before legislating on devolved policy areas but the decision rests in Westminster. In Scotland, in theory, the Parliament can over-ride UK laws that affect devolved policies.
2.2   The legislative competence of Welsh Assembly Government is confined to making subordinate legislation under powers transferred to it by the Secretary of State or directly delegated to it. "These powers will enable the Assembly to implement Acts of Parliament by making instruments where none exist at the moment, or to replace or amend existing instruments where a policy change or factual circumstances require. But the authority to make primary legislation on the subject areas within the Assembly’s responsibility is to remain with Parliament" (Pratchett, 1998: 82). The power to make secondary legislation is through the means of statutory instruments.
2.2   The consultation document refers to the structure and working arrangements of the Assembly. UNISON continues to support a model of working which is inclusive, transparent and consensual. This is not just about the Assembly itself. The process and conduct of the way the Assembly works sets the tone in the wider political community, ie. NHS Trusts, Local Authorities and other agencies. The numerous partnerships which involve the Assemblies and other bodies such as the Wales TUC must be sustained by a new and inclusive political model. An example of this positive approach is the recent partnership agreement between the Scottish Executive and the Scottish TUC. A copy of this is attached to this submission.
We believe that in supporting the case for additional powers we are seeking added value in revitalising the democratic process.
2.4   The basis of funding between UK Government and the Assembly is the Barnett Formula (first introduced in the 1970’s) and it is based on a needs assessment. The objective of this is "horizontal equity, equal treatment of similar citizens no matter where located. The inevitable outcome is regional transfer, public expenditure above tax in regions with a less healthy tax base" (MacKay, 1998:38). The argument is that within a nation state, people have rights and obligations of citizenship irrespective of geography and the welfare of each person should be weighted on a broadly equal basis. However, the scale and form of this transfer is more complicated and controversial with devolution.
2.5   Wales continues to suffer significant deprivation in many areas with low pay and poor quality employment. Despite pockets of economic growth and success Wales will continue to need the additional financial support provided in the Barnett Formula for the foreseeable future.
2.6   The Barnett Formula sets the level of the Welsh Block budget and the Assembly is empowered to distribute that budget to the various policy heads. Although the UK statutory framework will significantly shape the level and form of that allocation process, there is some potential for the Assembly to target and address specific problems and priorities in Wales. Hence, the success of some Welsh initiatives such as the abolition of prescription charges for under-25’s; free dental check-ups for under-25’s and over-60’s; free bus passes for pensioners and disabled people; and the introduction of means-tested student support grants. However, the UK, and Wales’ position in it, has changed dramatically since the Barnett Formula was established. Our economy in Wales has been characterised by a seemingly inexorable downward drift and the accompanying social problems of educational underachievement, sub-standard housing and poor health are now clear indicators of the chronic social difficulties we are facing as one of Europe’s poorest economic regions. The Barnett Formula has not kept pace with these changes and the allocated spending to Wales is not based on the current needs of Wales and so we are missing out on both economic and social development. In the absence of a review and revision of the Barnett Formula the only way to avoid the National Assembly falling into the habit of ‘robbing Peter to pay Paul’ to meet its targets for social development is to demand tax and revenue raising powers in order to raise the necessary shortfall in central funding.
2.7   The financial freedom the Assembly has under existing arrangements varies considerably as is illustrated in the following table.
Financial Freedom

% spending developed
Forestry 100
Health 99.7
Law 0
Housing 94.9
Culture, media and sport 87.5
Education 82
Crime and punishment 0.6
Agriculture 84.3
Transport 67.1
Trade and industry 19.5
Agriculture price support 0
Social security 0
Defence and foreign policy 0
2.8   This highlights particular anomalies. For instance, the Home Office is responsible for crime and punishment and the management of the Police Forces. Chief Constables are not accountable to the Assembly but to Home Office ministers and their national performance targets. The Assembly’s ability to influence macro - economic policy is very limited, and there is also room for manoeuvre in the areas of transport and agriculture.
3. PROPOSED AMENDMENTS
3.1   UNISON Cymru/Wales strongly of the view that devolved arrangements in Wales should at least be on par with those in Scotland. There is no justification for a ‘more diluted’ form in Wales. Harmonisation of arrangements between the two countries, in particular, will enable Welsh Assembly Government to institute primary legislation for Wales. This would represent the single most important improvement to the existing constitution. Although the Assembly has been able to develop some policies to reflect particular Welsh needs and aspirations, it is limited in its ability to forge radical change through its inability to initiate primary legislation. It needs to break away from its dependency on Westminster for policy making, and it is essential that legislative powers and executive powers be brought together so that Welsh citizens can clearly understand responsibilities and accountabilities between the different tiers of governance.
3.2   UNISON Cymru/Wales supports the new anti-discriminatory legislation being introduced by government, which begins to tackle discrimination in employment being experienced by lesbian and gay workers.
3.2.1   The Employment Equality (Sexual Orientation) Regulations 2003, and a proposed new Code of Practice (to be published March 2003) will extend to lesbian and gay workers for the first time a legal right not to be discriminated against in employment. UNISON Cymru/Wales and nationally has long campaigned for new laws to protect lesbian and gay workers from discrimination and harassment in the workplace.
UNISON Cymru/Wales has a long-established lesbian and gay self-organised networking group in Wales.
UNISON’s self organised group notes that the proposed Regulations do not cover discrimination experienced by lesbians and gays in the provision of goods or services. Neither do the Regulations cover anything on equalising occupational pension provision for lesbian or gay workers.
UNISON nationally and regionally in the Cymru/Wales Region is recommending to government that the new anti- discrimination legislation on sexual orientation be extended to cover the provision of goods and services, and the realisation of equality in all occupational pension schemes for same sex partners.
3.2.2  Alongside this new anti-discriminatory legislation outlawing discrimination against lesbian and gay workers is new legislation extending the provisions of the Disability Discrimination Act l995, and new Regulations on Religion or Belief Discrimination, accompanied by a new Code of Practice.
The Employment Equality (Sexual Orientation) Regulations 2003 and the proposed Code of Practice which has yet to be published offers to government a real opportunity to champion the cause of equality for this excluded group. The Regulations also offer an opportunity to identify, examine and research the levels and extent of discrimination being suffered by lesbians and gays across the UK.
The government regretfully has no proposal to require any of the existing Commissions, the EOC, CRE or DRC to oversee these new Regulations when they come into force in December 2003. UNISON has been disappointed that no regulatory or enforcement provision is being recommended by government.
3.2.2   UNISON Cymru/Wales recognises and recommends to the Richard Commission that the Welsh Assembly Government use its powers to make arrangements under S.l20 Government of Wales Act l998 to develop a new inclusion of anti-discriminatory legislation in the following ways:
That the Equal Opportunities Commission in Wales is provided with resources by the Welsh Assembly Government to extend the EOC’s remit in Wales to include The Employment Equality (Sexual Orientation) Regulations 2003, and the proposed Code of Practice (to be published March 2003) by:
(i)   providing advice and guidance to employers and service providers on the impact and implementation of anti-discriminatory legislation on sexual orientation, and the proposed Code of Practice;
(ii)  informing and supporting individuals who complain of discrimination arising out of their sexual orientation;
(iii)  researching and developing best practice and anti-discriminatory practices in employment;
(iv)  by working in partnership with a wide range of stakeholders, including trade unions as social partners to develop anti-discriminatory workplaces in Wales;
(v)  to work with the LGB Forum Cymru, and networks for lesbian and gay workers provided by social partners to support and empower lesbian and gay workers, their employers and unions to tackle discrimination in employment.
3.2.4. UNISON Cymru/Wales also recommends to the Richard Commission that the Welsh Assembly Government use its powers to make similar arrangements under S.l20 Government of Wales Act l998 to extend the CRE’s remit in Wales to include the Employment Equality (Religion or Belief) Regulations 2003 and the accompanying Code of Practice by;
(i)   providing advice and guidance to employers and service providers on the impact and implementation of anti-discriminatory legislation on religion or belief and the proposed Code of Practice;
(ii)  informing and supporting individuals who complain of discrimination arising out of their religion or belief;
(iii) researching and developing best practice and anti-discriminatory practices in employment;
(iv) by working in partnership with a wide range of stakeholders, including trade unions as social partners to develop anti-discriminatory workplaces in Wales;
(v)  to work with the REC’s, networks and forums for black workers provided by social partners to support and empower tackling of discrimination on grounds of religion or belief in employment.
3.2.5. UNISON Cymru/Wales recommends to the Richard Commission that should the Welsh Assembly Government extend the remit of the EOC and CRE in Wales, that regular reporting, assessment, and monitoring of that be considered in the Welsh Assembly Government’s meetings on Equality of Opportunity as well as reported in the meetings of each Commission.
3.2.6        UNISON Cymru/Wales also recommends that the Welsh Assembly Government consider the early integration of a unified Equality Commission for Wales to support and report on best practice on equality.
3.2.7        UNISON Cymru/Wales believes that one integrated Commission, with a unified voice, as a new Equality champion and new unified voice for Equality for the people of Wales should be considered by the Welsh Assembly Government.
3.2.8        UNISON Cymru/Wales has identified low pay and the effects of poverty for low paid workers. The Equal Pay Act has been in force for almost 30- years, yet there is still a material difference between the pay enjoyed by male workers and their female counterparts.
AGENDA FOR CHANGE: the new unified pay structure for NHS workers has been developed to bring an end to unequal pay in the NHS.
The Welsh Assembly Government has already used its powers under S.l20 to identify discriminatory pay structures for Welsh Assembly government employees and has recommended Equal Pay Action plans to end discriminatory pay practices to its Assembly Supported Bodies (WDA, et al). It can extend its powers to include such a process to all public sector bodies and providers of services.
UNISON Cymru/Wales recommends to the Richard Commission that the Welsh Assembly government consider extending those processes and requirements to all public sector bodies and providers of services in Wales.
The Welsh Assembly Government can require that every public sector provider of service to the communities of Wales identifies and then action plan to tackle discriminatory pay.
The financial implications of tackling unequal pay has to be examined over the short, medium term and longer term – but a new process of developing action planning to end discrimination experienced in pay system impacting on women working in the public sector in Wales would create a ‘bottom up’ regeneration of our communities across Wales.
UNISON believes that a requirement within the public sector to action plan and undertake equal pay audits will not only identify discriminatory pay structures which adversely impact upon on women workers in Wales, but it will uncover what UNISON believes are areas of double discrimination being experienced by workers who are from BOME communities.
It is only by identifying what is wrong, can we begin to work together to make a difference. The Welsh Assembly Government in partnership with its social partners can then develop action plans for change to equalise pay between male and female workers.
3.3 Although there are various concordats in place between UK and Welsh Assembly Governments concerning legislation and consultation, there are no guarantees that these will remain in perpetuity with different changes of government and political persuasion. Therefore, the powers of the Assembly need to be placed on a proper legal footing.
3.4 There is evidence of a lack of clarity in relation to the exact responsibilities of Westminster and Cardiff respectively. This is caused primarily by the method used of transferring the powers originally held by the Secretary of State for Wales to the Welsh Assembly, rather than a rational approach covering each area of policy and responsibility. The approach suggests political and administrative convenience as opposed to one grounded in research and evidence. The Assembly inherited a large number of statutory instruments – many of which are contradictory and are in urgent need of rationalisation and clarification. The procedural complexities of the current arrangements and the lack of transparency of the system does not encourage good governance, and reinforces the points we have made earlier in this submission particularly the negative images that many Welsh citizens have on the ability of the Assembly to make a difference to their quality of life.
3.5    The Union believes that there is a fundamental problem with a system of governance that separates democratic accountability from the power to levy taxation, as is currently the case with Welsh Assembly Government. "The Welsh Assembly will be a beggar until it can raise at least some of its income without seeking someone else’s permission and without having to answer save only to those who have elected the Assembly and who will have to pay the taxes" and "with the right to tax will come the necessity for the Assembly to look at both sides of the balance sheet whereby the Assembly will acquire greater responsibility and dignity". An ability to vary the level of income tax, as is the case in Scotland, would appear to have some attractions.
3.6    Devolution offers the potential for creating a new style of policymaking process – one that is modern, inclusive, participatory and integrated – and one that reflects the culture and the needs of the population being governed. The case for additional powers needs to be located and firmly grounded in a real ability to make a difference and to have distinct policies which meet the needs of Wales. UNISON has long argued the case for properly funded, quality public services through its Positively Public campaign. Additionally the public sector needs to set an example to the rest of the economy in promoting quality employment with decent pay and conditions and the end of low pay. Contract compliance and the eradication of the two-tier workforce would be a significant and tangible example of the Assembly using additional powers to make a real difference. The realisation of such a distinctive new system would be greatly improved by a more independent Civil Service, one that is accountable, responsible, and has its allegiance to Wales, its people and institutions. There is a case for development a new breed of ‘civil’ or ‘public servant’ in Wales that is separated from the UK Civil Service and we would commend this to the Commission.
4. Further Information
Further information about this paper can be obtained from:
Howard Marshall
Senior Regional Officer
UNISON CYMRU WALES
3RD Floor
1, Cathedral Road,
Cardiff, CF11 9SB
Tel: 02920398333
Fax: 02920220398
E-Mail: h.marshall@unison.co.uk