Supplementary memorandum to the Ivor Richard Commission.

Dafydd Wigley

This memorandum is presented by me personally, not in a capacity of being either a Member of the National Assembly (which I am no longer) nor in the context of my previous chairing of the Audit Committee. They are remarks which I put forward against the backdrop of having served both in the House of Commons and in the National Assembly and specifically in the context of the recent changes made by Tony Blair to government structures, which has implications for the Wales Office and the way in which legislation may be handled at Westminster in relation to Wales.

1. It would appear that the Prime Minister, in making changes relating to both Scotland and Wales, did so in a manner which reflects an equivalence of approach to the two countries. This may well herald an approach to both Wales and Scotland (and possibly in due course, Northern. Ireland) on a quasai federal model. The creation of a Department under Lord Faulkener dealing with both countries, including matters relating to legislation, suggests such a move.

2. Under the present constitutional settlement legislation passed at Westminster has a different dimension for Wales to that of Scotland. As far as Scotland is concerned, Acts of Parliament in devolved matters do not apply - in the same way as legislation for England and Wales prior to devolution, often did not apply to Scotland and parallel acts were drawn up and passed in Westminster to deal with the Scottish situation on such subjects.

3. Wales has a need for a linkage into legislation that is passed in Westminster for two reasons:

a). There is legislation requested each year by the Government of Wales - only a small proportion of those items requested have so far been delivered by Westminster and this is disappointing;

b). Legislation passed at Westminster to cover both Wales and England need to be carefully scrutinised to ensure that the Welsh dimension is appropriately covered.

4. If the pressure of legislation at Westminster is perennially going to prevent primary legislation requested by the Government of Wales, from being even considered - or being delayed for many years before time being found - then there must surely be some alternative means of dealing with primary legislation needed in Wales. Otherwise the credibility of the Government of Wales, in requesting such legislation, is erroded. There is evidence, from the recent election, that this is already happening. I heard it stated during the campaign 'Even when Rhodri Morgan's Government ask for legislation, London takes no notice".

5. The need for a more responsive approach with regard to the provision of unique primary legislation needed in Wales can be tackled in two ways, accepting that the present system is so overloaded that the conventional route is just unable to provide the time. The first way is by means of giving the National Assembly the power to vary existing primary legislation by order (Henry VIIIth powers) in relation to certain specific Acts of Parliament such as the Local Government (Wales) Act 1994; The Welsh Language Act 1993; various education acts; various health acts, and other miscellaneous legislation where there is already a specific Welsh dimension. The principle of using the order-making function to vary primary legislation, as a principle, was already covered in the 1997 Referendum and therefore this is not stretching the existing constitutional settlement beyond that framework.

6. The alternative way for Westminster to speed up the dealing with Welsh legislation is for Second Reading and Committee Stage to be covered by the Welsh Grand Committee, and the building in of a special committee stage at Assembly level, whose proposed amendment to legislation could thereafter be considered either by the Welsh Grand Committee or at Report Stage in the House of Commons or House of Lords. This would be a constitutional innovation, but in the tradition that Westminster tries to adapt itself to new circumstances, it would not seem to be unreasonable.

7. If this is to happen, it will require a substantial understanding of the legislative needs of Wales within either the existing Wales Office (which presumably is not now intended), within Lord Faulkener's Department or within the National Assembly itself. It would seem that both Lord Faulkener's Department and the National Assembly will need to have some augmented legislative capacity to deal specifically with the requirements of Wales, and for there to be a formal working relationship between Lord Faulkener's Department and legal people in the National Assembly to this end. This will also be the case in the context of the National Assembly formulating and amending legislation, which will be an useful base, if, in due course, full primary legislative power is to be transferred to the Assembly.

8. In considering legislation going through the House of Commons to deal with both Wales and England, there will be a specific need for in depth scrutiny of the implication of such legislation as far as Wales is concerned. This is not only with regard to specific new provision to meet developments in Wales and the requirements of the Government of Wales: it also requires a much more organised and focused approach to the 'knock-on' implications of legislative change. Instances have been quoted in the past of changes in Westminster legislation actually reducing Assembly powers without that necessarily having been the intention. Quite clearly therefore there needs to be a close co-operation between the sponsoring department of legislation at Westminster, Lord Faulkener's Department, the relevant department in the National Assembly and any specialist legislative unit in the National Assembly. This again underlines the need for such a specialist unit to be created.

9. From my experience of the House of Commons I must admit that I have-some considerable doubt as to whether it has the political will to reorganise itself in a manner which will allow primary legislative changes to be undertaken in Wales on a reasonable timescale, in line with the wishes of the Government of Wales. Quite clearly that timescale must take into account the electoral cycle in Wales, since any Government of Wales has the reasonable right to expect its programme to be rolled out within the timeframe of its own period of government.

If this is the case, then the question of giving the National Assembly for Wales primary law-making power, analogous to that in Scotland, becomes overwhelming. It is only when such an equivalence of capability of the devolved regimes emerges, that the logic of the creation of Lord Faulkener's Department becomes fulfilled. The comments made by the Secretary for Wales, Peter Hain, indicating that he is quite prepared to consider proposals for the devolving of full legislative power "if a strong case is made to him" is surely a signal that this avenue must now be explored in greater depth and with greater urgency.

10. It would therefore be my suggestion that the Ivor Richard Commission should recommend that full law-making powers be devolved to Wales in due course. This should be accepted now as a principle and if so, might be included in the election manifesto of the Labour Party for the next General Election for Westminster. If it is ratified by that election I would suggest that it is adequate mandate without having to have recourse to yet another referendum, which could be a destabilising experience for the Assembly itself - and certainly could shift focus away from the programme of government of the Government for Wales. If there had to be another referendum (which I do not believe is necessary under British constitutional practice).

11. If a General Election takes place, say in 2005 (the expected date) then it would be possible for legislation to provide for a change of powers for the National Assembly to proceed through Parliament in the year 2005/6, in good time for the next National Assembly - to be elected in May 2007 - to be one that comes into being knowing that it has primary legislative power for those areas that have been devolved to it. That enables the political parties then to put forward manifestos that are appropriate to the circumstances.

12. In the meantime urgent attention should be given to the strengthening of the team in the National Assembly that has a competence to deal with legislation, and their first responsibility should be to scrutinise all legislation going through Westminster relevant to Wales, together with the formulation of draft bills - included in the Government of Wales's programme submitted to Westminster - so that the House of Commons not only has a shopping list of legislation from the Government of Wales but also specific recommendations for the formulation of legislation to achieve such a programme. It is suggested that this augmented legislative team should be set up before the end of 2003.

I hope that these observations are of some further assistance.

Dafydd Wigley

10 07 03