Select Committee on Procedure Minutes of Evidence

Memorandum by the Study of Parliament Group Study Group on Welsh Devolution



  The creation of a number of devolved assemblies in Scotland, Wales and Northern Ireland, each with differing legislative competencies, raises fundamental questions concerning the political and legal nature of devolved regional government. Whereas the governance of Britain has largely been a matter mediated in Whitehall and Westminster, it will, from 1999, be fragmented between London, Belfast, Edinburgh and Cardiff. The Parliament in Scotland and the Assembly in Northern Ireland will exercise specified primary legislative functions. By contrast the Government of Wales Act 1998 confers on the National Assembly for Wales the power to make secondary legislation on matters transferred to it by the 1998 Act and, in future, on any other matters which primary legislation enacted at Westminster states shall apply to Wales.

  These changes raise practical questions about the manner in which the assemblies will manage their new powers; internally, that is, for their own purposes, and externally. Each assembly will be required to develop and manage a variety of relationships within the UK, the European Union, and beyond, relationships which will undoubtedly generate tensions both within and between these institutions. So far as the UK is concerned, there will, for the immediate future, continue to be a relationship between the assemblies and their respective territorial departments. The Secretary of State for Wales will be responsible for the block grant, but his relationship with the Welsh Assembly will be substantially attenuated as all non-reserved matters will now be decided upon in Cardiff, including how the grant is spent. Likewise, while there will continue to be a link between Whitehall and the Welsh Office in Cardiff, this will no longer be the only link between central and regional government. Virtually all Welsh Office staff will transfer to the Assembly, and its relationship with central government will be governed by the concordats agreed between the Welsh Office and Whitehall departments. Whereas there was formerly one formal channel between Whitehall and Cardiff, there will now be a complex network of links. As the Procedure Committee has identified, these new arrangements also call in question the role of Westminster in the governance of Wales (and of Scotland and Northern Ireland).

  Beyond these, the Assembly may have to develop a relationship with the English regions if and when new arrangements are created for their devolved government. The Welsh Assembly will also be concerned to develop external relations with the European Union in matters concerning regional grants and agricultural subsidies; with the Irish Republic in the context of the Council of the Isles; and with multi-national companies in the promotion of inward investment programmes.


  The Committee has identified three broad areas of concern:

    (a)  the extent to which the UK Parliament should restrict its consideration of (a) devolved matters and (b) reserved matters as they affect Scotland or Wales;

    (b)  the extent to which it would be appropriate to provide for consultation between Members of either the Scottish Parliament, or the Welsh Assembly and the United Kingdom Parliament and the nature of any consultation or joint operations; and

    (c)  the extent to which existing procedural arrangements at Westminster will remain appropriate, in particular, concerning Parliamentary Questions, the Grand and the Select Committees.

  This evidence addresses these only so far as they apply to the relationship between Westminster and the Welsh Assembly.


3.1 Two possible responses

(a) Structural rethinking

  It is clearly the case that these new constitutional arrangements will, in fundamental ways, permanently alter the relationship between Westminster and the devolved governments throughout the United Kingdom: things will never be the same again. What is much less clear is how, and how quickly, this relationship will alter. How should the Committee respond to change that is inevitable but whose impact is imprecisely known?

  One view suggests that the structures should be rethought in their entirety against the objectives of devolution. To answer the broad question, what role does Westminster properly have in respect of matters falling within the areas devolved to and reserved from the Welsh Assembly, a rationalist would ask:

    (a)  what Welsh matters have traditionally been the subject of scrutiny within Westminster;

    (b)  what matters wholly remain within Westminster's jurisdiction following devolution (the reserved matters);

    (c)  in respect of the devolved matters, what new issues arise in which Westminster can properly be said to have an interest;

    (d)  for what purpose should Westminster scrutinise issues arising under (b) and (c); and

    (e)  how should it exercise that scrutiny?

  But the rational option faces the difficulty that the implementation of the Government of Wales Act 1998 (and the equivalents for Scotland and Northern Ireland) will take Westminster into uncharted waters, so that planning for the future becomes unworkably speculative.

(b) Pragmatism

  A second view is that the Westminster response should be pragmatic: that those aspects of the existing arrangements that can be seen to perform a continuing function should be preserved, while those ceasing to have relevance are, over time, left to atrophy. For example, the Secretary of State will, at least in the sort term, continue to have a seat in Cabinet and will continue to negotiate with the Treasury the block grant for the Welsh Assembly; he will also be responsible for questions concerning the impact of reserved area issues in Wales. Moreover, he could be expected to answer in Parliament for aspects of the implementation of the devolved areas as they affect individuals in their capacity as parliamentary (as distinct from Assembly) constituents. Equally, while neither the Select nor the Grand Committee can continue to perform its present role, there will be matters concerning the activities of the Welsh Assembly in respect of which both Welsh and English MPs will have concerns that are properly debated off the floor of the House. To that extent, how the arrangements within Westminster develop will depend on what MPs wish to make of them—and it is to be expected that Welsh MPs in particular will not want to see their influence on Welsh affairs slip away.

  While issues concerning the administration of Welsh affairs will persist, consideration of the role of Westminster vis-a -vis the Assembly must take note of the inevitability of gradual change in the role of the Secretary of State and of the Welsh Office, and in the relationship between Westminster and Welsh MPs. The difficulty with a purely pragmatic approach is that piecemeal change may not produce that breadth and depth in scrutiny of the devolved arrangements to which Westminster is properly entitled.

3.2 New arrangements

  The Study of Parliament Group's view is that, rather than trying to resolve the imponderables implicit in the future of the devolved state, the Committee could seek to manage the change in terms either of a conscious adaptation of the existing institutional arrangements or of the creation of new arrangements, in either case, to permit debate on matters that can now be identified as properly falling within Westminster's jurisdiction. The Group envisages the possibility of a continuum of institutional change, ranging from alterations to the terms of reference of the existing Welsh Committees, their fusion in a hybrid Committee, or the creation of a new territorial committee for Wales. (We have no specific title in mind for such a Committee: the Welsh Affairs Committee is perhaps too reminiscent of what must surely be regarded as a matter of history, while the Welsh Devolution Committee may give too narrow a focus to what the Committee might do). We explore our preferred option—the creation of a territorial committee for Wales—further in section 4.

  The continuum also envisages the creation of territorial committees for Scotland and Northern Ireland and, so far as all three sets of arrangements generate common issues, the creation of a joint committee which would, in essence, have as its primary concerns the normative and hierarchical relationships between the new assemblies, Whitehall and Westminster. This would in part reflect in Westminster the standing arrangements for the devolved administrations at ministerial level announced by the Minister (Baroness Ramsay) in debate on the Scotland Bill (Hansard, Lords Debates 28 July 1998, cols. 1488-89).

  Such a joint Committee (the Devolution or the Devolved Powers Committee) would clearly have an ambitious and wide ranging agenda. It is an agenda of the first importance, but then the devolution that is about to happen is a matter of the first importance. It is arguable that Parliament should recognise this now and establish on the ground floor the institutional arrangements that it will undoubtedly have to create in the not too distant future, if it is to exert its proper role within the devolved state. It may be, for example, that a future government will combine the existing three posts of Secretary of State into one Minister having responsibility for the devolved areas. Whatever the future, the key point now is that whether viewed from Westminster or Cardiff, or from Belfast or Edinburgh, it is the same four core relationships that will both define the relationships between these bodies and be productive of disputes to be resolved: between each assembly and Westminster (and Whitehall); between each assembly; between each assembly and other relevant actors, public or private; and between each assembly and the EU.

  There is also the question whether a new Committee such as that suggested here should be a joint Committee with the Lords. It might be argued that any such development should wait until the current proposals for the reform of the House of Lords are more fully settled. The counter argument is that the delay which is bound to attend that settlement will be detrimental to the development of effective arrangements at Westminster for the scrutiny of the devolved powers. The possibility now exists for those arrangements to be introduced, even if they will shortly require modification, at the same time as the Welsh Assembly begins its work. The desirability of the creation of concurrent arrangements from the outset may be thought particularly strong in respect of EU matters. (This evidence was prepared before the publication in November 1998 of the Government's proposals with regard to the Scrutiny of European Business; Cm 4095).


  The Study of Parliament Group takes the view that there should be a single Committee with responsibility for devolved government in Wales. This should be a new Committee, rather than one merely formed from the relevant parts of the Welsh Grand and Welsh Select Committees. Any amalgamation of the existing Committees would, in effect, mean a new Committee, but we do not consider that such cannibalisation would adequately reflect the political significance of Welsh devolution. The Committee should be able to call for evidence, as any select committee. It would report to the House, with copies to the Assembly, on matters that it examines.

  One of the most sensitive issues that this proposal faces (and this is true of any reconfiguration of the existing arrangements) is how to strike the proper balance between the duty of Parliament to ensure, in broad terms, that devolution works, and on the other, the right of Assembly to take those decisions devolved to it subject only to its own scrutinising procedures. This issue is integral to the three main aspects of the committee here proposed: its relationship with the Assembly; its tasks and its composition.

4.1 Relationship with the Assembly

  The traditional relationship between a Select Committee and the department to which it relates is hierarchical: the Committee scrutinises substantive decisions taken by Ministers. But it is difficult to see how this relationship can survive devolution of substantive matters to the Welsh Assembly. Suppose, for example, that following the precedent of the Welsh Affairs Committee, this new Committee sought periodically to review the way in which the Assembly performs its devolved functions? It could be argued that as the UK Parliament will be asked each year to vote large sums to the Assembly, so it should monitor how it is spent. This argument would be unlikely to find favour with devolutionists. For a new Committee to do any more than keep a watching brief on the Assembly would probably be thought contrary to the spirit of devolution and might undermine its authority.

  Our view is that the relationship between the Committee and the Assembly should be seen as a shared responsibility to see that devolution works. The analogy is the co-operative ethos of the Deregulation Committee's approach to the implementation of the deregulation (now "better regulation") initiative. Their clearly articulated procedures provide at one and the same time both rigorous examination of departmental proposals and a successful mechanism for government to advance its policy. If the implementation of devolution in the UK is likewise seen as a co-operative venture between Whitehall and Westminster, the Deregulation Committees' procedures offer a useful model which would ensure the continuity of Westminster's role as a forum for the scrutiny of executive action. The scope of that role is explored in the following section.

4.2 The Committee's Tasks

(a) Review of the manner of implementation of devolved powers

  If it is agreed that it would, given that the Assembly will be conducting its own internal scrutiny of substantive decisions, be inappropriate for a Westminster Committee to engage in a similar process, there might still be value in a consideration of the manner in which the Assembly had given effect in law to the matters devolved to it under specific Acts. In pursuance of the "better legislation" policy being pursued by the government and the Modernisation Committee, this Committee could provide a mechanism by which the Assembly's approach to its law making is generating clear and workable statutory instruments (again, in the manner of the Deregulation Committee's deliberations). The Assembly is in any event normally obliged to subject all SIs to JCSI criteria, and to a regulatory audit. Compliance with these criteria will undoubtedly create difficulties; the Committee could therefore both assist and constitute a way in which Westminster could review the way in which the devolutionary scheme is working. Given the novel procedures specified in sections 64-66 of the 1998 Act for the enactment of subordinate legislation, there may indeed be lessons to be learnt at Westminster from the Assembly's experience.

(b) Reserved matters

  A second possibility is for the Committee to monitor the reserved matters which affect Wales. Our conception is of a Committee which, unlike Welsh Affairs, is not department- but sector-related, in the sense that it would be concerned with the way in which decisions concerning the reserved matters affected, for example, the Welsh economy or particular groups within the economy (or, as the WPA on concordats instances, women's issues or social exclusion: PQ 1241/97/98, 27 Feb 1998). This is already reflected in the increasing emphasis that the Government is putting on "cross cutting strategies", and can be seen in the announcement about the joint ministerial committee, where the particular representatives from each devolved administration will vary according to the specific issues under consideration.

  A free-ranging Committee would be able to examine, for example, the provision of social security benefits in Wales or train services or BBC reception, all matters which are—and will continue to be—the responsibility of UK-wide Departments, and which members of the Assembly will (presumably) be unable to question. There is also the possibility that this Committee might have a further role in scrutinising legislation or legislative proposals that affect Wales. There is some concern in Wales that Welsh interests will lose out at Westminster after devolution. The Committee could have a role in articulating Welsh concerns.

(c) Primary and secondary legislation

  So far as primary legislation is concerned, there will be three categories comprising the relationship between Westminster and the Welsh Assembly.

    (i)  legislation affecting Wales only (e.g., the Government of Wales Act 1998);

    (ii)  legislation dealing with reserved matters affecting the whole of the United Kingdom and thus inevitably Wales; and

    (iii)  legislation affecting England and Wales in respect of which the Welsh Assembly is to have power to make secondary legislation (the devolved matters).

  As to the third category, there is clearly a wide range of possibilities. Suppose for example that the Westminster Parliament enacted a road pricing scheme. The Road Pricing Act could provide that:

    (i)  exactly the same scheme as applies in England shall apply in Wales;

    (ii)  the Welsh Assembly shall enact a scheme based on the same principles as apply in England;

    (iii)  the Welsh Assembly may enact a scheme, and that if it does, it shall be based on the same principles as apply in England; and

    (iv)  the Welsh Assembly may (or may not) enact a scheme.

  Under any of these conditions both Welsh and English MPs have an interest in the nature of any road pricing scheme applicable in Wales: the Welsh MPs because of the impact of such a scheme on Welsh roads, and the English MPs (particularly along the border) in any differentials between the two countries. Conversely, Welsh MPs have an interest in the way in which the English version of the road pricing scheme affects their constituents (again, along a border with a predominantly rural economy). Moreover, members of the Welsh Assembly have their own interests (which may not converge with those of the Welsh MPs) in such a scheme, again, on both sides of the border.

  If, as the Government's White Paper A voice for Wales argues, Welsh MPs "will continue to be involved in considering new legislation which applies to Wales, and to represent their constituents in all matters" (emphasis added), there is no reason why they should lose the mechanisms by which they are able to do so, and the creation of a new Committee (to replace in this respect, the Welsh Grant Committee) could satisfy that need. This is particularly for those Welsh MPs who belong to a different party (or to a different wing of the same party) to the predominant party within the Assembly, or to that of which the local Assembly representative is a member.

  The Modernisation Committee has endorsed the practice of publishing Bills for the purpose of pre-legislative scrutiny. Where future Bills touch on matters that prima facie could affect the Welsh Assembly's exercise of its subordinate powers, a Welsh territorial Committee would be well placed to comment on what is proposed. More than this, there is concern that the Assembly will become side-lined in its access to the primary legislative process. The government has proposed a process of influence, but this could leave the Welsh Assembly as a formal looker-on while primary legislation is being debated, amended and enacted, which the Assembly will later have to implement. There is an argument (considered in debate) that draft amendments proposed by the Assembly must be considered by the House of Commons. This might be a task for a new Committee, perhaps on an analogy with the Deregulation Committee model, the Committee reporting to the House on Assembly sponsored amendments.

(d) Agencies

  It is not entirely clear how "British" agencies, such as the HSE or the utilities regulators, will be accountable to the devolved assemblies for their actions and decisions so far as they affect those territories. A body such as the Welsh Development Agency is directly accountable to the Welsh Assembly, but the HSE and the utilities regulators remain responsible to Parliament through the subject committees; but will they, post-devolution, demonstrate the same degree of interest in what these national bodies do in the devolved areas as they do now?

(e) "Concordats"

  Agreement within Parliament as to this Committee's remit could usefully be a matter contained in a concordat between Westminster and the Assembly (qv PQ 1241/97/98, 27 February 1998). So far as the implementation of the concordats between Whitehall and the Assembly is concerned, the Assembly itself will not be able to call Departments to account for how they behave under them (the Written Answer speaks only of the possibility of review), and the departmentally-related Select Committees are unlikely to do so. There is therefore a significant aspect of the relationship between central and the devolved government in Wales which would, in the absence of new Committee assuming the task of reviewing the implementation of the concordats agreed with Whitehall, fall outside Parliamentary scrutiny.

4.3 Composition

  The question of the Committee's composition is a difficult one. A Committee which contained all Welsh MPs would be unwieldy and, in any case, would not represent a political cross-section of the House. One solution might be to have a voting membership of the Committee which represented the political make-up of the House, with the facility for other Members to attend if they wished (as in the European Standing Committees). This would in particular allow MPs who had seats on the English side of the Welsh border to participate in the Committee. More radically, the core membership (set at a figure, perhaps, of 11) could be matched by 11 nominees of the Welsh Assembly. This would allow a formal, institutional link with the Assembly, and would match the links which the Assembly is expected to develop with Welsh members of the European Parliament.

  The adoption onto a Commons Committee of persons other than MPs raises procedural problems, but these need not be insuperable, if there is the will to proceed. And there are precedents for co-option.


  Whatever the Committee arrangements off the floor of the House, both Welsh and English MPs will wish to continue to table Questions. Welsh MPs will undoubtedly pursue their constituency interests at Westminster, in particular where these are at odds with the Assembly's. In this respect Westminster may become a forum where Assembly controversies are played out. English MPs, too, will seek to test the Secretary of State. Under the Government of Wales Act, the Secretary of State retains responsibility for all primary legislation relating to Wales. He also has the right to attend the Assembly and to receive its papers. Furthermore in respect of any of the transferred functions which are to be exercised concurrently or jointly with the Secretary of State, there must be a presumption of shared responsibility.

  Questions relating to proposed expenditure by the Assembly may present some difficulty. By analogy to local authorities, where questions are limited to the considerations underlying the calculation of the Standard Spending Assessment, the authorities themselves being answerable to their electorates for their spending decisions, questions relating to proposed expenditure under the Welsh "block" might be limited to its overall size, rather than the Assembly's spending decisions, for which it is answerable to its electorate. Such a limitation would, however, run counter to the explicit assurance in the White Paper that "Members of Parliament representing Welsh constituencies . . . will continue to . . . represent their constituents on all matters". Furthermore, and in contrast to the case of local authorities, the Secretary of State is required to be provided with all Assembly papers, and therefore, prima facie at least, with the information necessary to answer questions on the Assembly's expenditure plans.

  Under s.123 of the Government of Wales Act 1998, the Treasury may require the Assembly to provide it with information required for the Treasury's exercise of any of its functions. It may be noted that in the past, questions about local authority expenditure have been permitted to the extent that central government holds that information; arguably the same proposition should apply to information about the Assembly. Erskine May states that "Questions to . . . bodies established by statute have been restricted to those matters for which the Minister was made responsible by the statute concerned or by other legislation and to those matters in which the Minister was known to be involved." If this rule were applied to the Welsh Assembly simply as it stands, the effect in practice would be to place no greater limit on questions on devolved matters than is currently placed on questions relating to local authorities.


  The devolved assemblies will no doubt be keen to forge international links, principally within the EU. The way in which, and the extent to which, the Government involves the different Executives on European business—for example in preparing negotiating lines, or attending Council meetings—will be important. But regardless of the extent to which Assembly Secretaries are formally involved, it seems certain that the Assembly will want a voice on European business.

  The House of Commons system has been in operation for 25 years and, even without the improvements recommended by the Modernisation Committee, is now well established and working well, especially as a sifter of European legislation. It takes in a wide range of documents, and the European Legislation Committee (ELC) reports rapidly on some 400 legislative proposals and other papers each year. But this is a resource-hungry process, as is shown by the Committee demands of Government, and by the number of staff needed to support the system.

  The Assembly will want to select documents to study in greater depth on its own account; but it will have to analyse them in some detail in order to know whether they merit selection; time and resources are key factors in this process. One way in which the Assembly's scarce resources could more effectively be used is if the House were prepared to allow it access to the ELC's analysis at an early stage. A more radical option, noted in section 3.2 above, would be the creation at the outset of a shared effort between Westminster and the devolved assemblies for the scrutiny of EU legislation.

Vernon Bogdanor
Barry Jones
Nevil Johnson
David Miers
Richard Rawlings
For the Study of Parliament Group

December 1998

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