Memorandum by the Study of Parliament
Group Study Group on Welsh Devolution
EVIDENCE SUBMITTED BY THE STUDY OF PARLIAMENT
GROUP'S STUDY GROUP ON WESTMINSTER AND THE WELSH ASSEMBLY
1. INTRODUCTION
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.
2. THE COMMITTEE'S
CONCERNS
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. MANAGING THE
UNCERTAIN IMPACT
OF CHANGE
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).
4. A TERRITORIAL
COMMITTEE FOR
WALES
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.
5. PARLIAMENTARY
QUESTIONS
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.
6. EUROPE
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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