Written evidence from the Rt Hon Lord
Richard QC
WELSH AFFAIRS COMMITTEE INQUIRY
GOVERNMENT WHITE PAPER: BETTER GOVERNANCE
FOR WALES
When the statement on the White Paper was made
on 15 June, I gave it a qualified welcome. It seemed to me to
recognise the principle that the National Assembly needs greater
legislative competence than it has at present. I am grateful that
the Government has recognised this and has provided proposals
to put it into effect.
The White Paper's proposal to change the status
of the Assembly from a single corporate body with its own legal
personality to a structure which recognises the division of functions
between the Assembly Government and the Assembly is very much
in line with the suggestions in the Richard Commission Report,
and I am sure it is right.
I likewise agree that Ministers in the Welsh
Assembly should no longer sit automatically on the Subject Committees.
It seems to me that the scrutiny function of the Committees is
lessened considerably if a Minister is actually a member of the
Committee itself. There is of course a strong case for allowing
Ministers to appear before Committees as and when this might be
considered necessary.
I think too that it is sensible to clarify the
number of Ministers and Deputy Ministers who can form the Assembly
Government. If the number of Ministers is eight and the number
of Deputies is four, then it would follow that when Ministers
are withdrawn from the Subject Committees, manning them adequately
will become a problem. This was one reason why we concluded in
the Richard Commission that with the growth in the legislative
capacity in the Assembly the present membership of 60 would not
be sufficient. I regret that the White Paper has rejected this
recommendation.
But the meat of the White Paper is in its suggestions
for enhancing the Assembly's legislative powers.
The proposals in the Richard Commission Report
were for an interim stage between the present situation and the
devolution of primary legislative powers during which framework
legislation would give the Assembly greater delegated powers than
it has at present. If this can be categorised as the starting
point, then the addition of the Government's proposal to legislate
by Orders in Council is an interesting device which will give
the Assembly greater legislative competence without formally devolving
primary legislative powers.
Much of course will depend on how the Orders
in Council will work in practice. As the recent Devolution Policy
Paper produced by the Economic and Social Research Council and
written by Mr Alan Trench observes: "When and how exactly
Orders in Council would be made is far from clear. One suggestion
is that they would be made as and when the Assembly seeks them.
That would imply varying frequency, but with the possibility of
much Parliamentary (and Assembly) time being spent on them".
Another suggestion is that there would normally be only one Order
in Council a year, the result of a bid by the Assembly and a bargaining
process between Cardiff and Whitehall. Mr Trench suggests that
this process would be replaced by an Order in Council authorising
the Assembly to pass the legislation itself instead.
There is very considerable lack of clarity in
the way in which this interim stage would be managed and effected.
It is by no means clear how the Assembly would formulate its requests,
and to what extent this will be purely a function for the Assembly
Government, who presumably will negotiate with the Secretary of
State on what it considers appropriate. Indeed, this illustrates
one of the dangers still inherent in the White Paper proposals.
The scope the Secretary of State would have to reject a request
by the Assembly is as yet unspecified. Parliamentary procedure
in relation to Orders in Council is fluid to say the least, and
it could well be that the Secretary of State would take the view
that it would not be appropriate for the Assembly to be given
the powers that it is asking for, particularly if political affiliations
of the Cardiff and Westminster Governments were different. Furthermore,
it is equally unclear what role the Westminster Parliament would
play in considering the requests from Cardiff. The scope for debate
on Orders in Council is limited. They are not capable of amendment,
and it is difficult to see quite how the Westminster legislative
process could be adapted to meet the requirements of this new
procedure.
The provision in the White Paper is that if
the Secretary of State rejects a request by the Assembly for Order
in Council powers, he should do so in a public and transparent
way. This would seem to indicate that the function of the Secretary
of State in normal circumstances will be merely to present the
Assembly's request to the Westminster Parliament. On the one hand,
the proposal is one which seems to limit the role of Westminster
and the Secretary of State to the presentation of the Assembly's
request, but on the other retains residual power to the Secretary
of State to reject a request if he thinks it appropriate. This
approach seems to me to be somewhat paternalistic. It is in effect
saying to the Assembly "normally we can trust you to make
reasonable requests, but there may well be circumstances in which
we in London think that you in Cardiff have overreached yourselves,
in which case we will intervene to prevent it".
Nor is it at all clear what the Orders in Council
will actually contain. It is envisaged that the powers transferred
to Cardiff will include the right to amend existing primary legislation,
and even the right to amend primary legislation which has not
yet been passed. As the Committee will know, Henry VIII Clauses
are not exactly smiled upon by Parliament, particularly in the
House of Lords, and especially by the Delegated Powers Scrutiny
Committee. I do not think that the proposal will necessarily get
an easy ride through Parliament.
Moreover, the result of proceeding by way of
Order in Council will be an increase in the legislative work of
the Assembly itself. Indeed, the Report on the Better Governance
for Wales White Paper produced in September 2005 specifically
recommends that there should be three minimum stages for Measures:
a debate on the principle, consideration of detail, with the possibility
of hearing witnesses, and a vote on the final Measure. Given the
relatively little time the Assembly at present spends on the actual
legislative process, the introduction of Standing Orders enshrining
this procedure is bound to mean that the workload on individual
AMs will increase. The extent to which 60 AMs, 12 of whom will
be Ministers, will be able to cope with this is at this stage
unknown. I really do feel that this issue of the size of the Assembly
is one that will inevitably have to be resolved. If, in fact,
the Assembly can be run successfully with 60 members, then so
be it. But if, as we all at the Richard Commission suspected,
the workload will prove too heavy, then consideration will have
to be given at some stage to increasing the numbers.
In turn that means, as the Commission Report
recommended, that there will have to be some consideration given
to the electoral system by which AMs are elected. The White Paper
is very clear in rejecting the proposal that the Assembly should
be elected through the STV system. The present system of having
directly elected and list AMs is already causing strain, and this
would, we on the Commission believed, intensify if the numbers
were to be increased to 80. Again, this is an issue which will
at some stage have to be revisited. The present system may be
appropriate for a Chamber of 60, but it is difficult to argue
that it will remain appropriate at all levels in the future.
So I return to the qualified approval that I
gave to the White Paper when it first appeared. I would repeat
that modified approval today. The Order in Council device is an
ingenious way of packaging the situation in which the Assembly
gets considerable additional powers by the back door. But the
proof of the pudding will be how it works in practice, and my
fears of unacceptable strains between the Assembly and Westminster
in the event of there being different Administrations in each
capital has by no means been dispelled.
It is disappointing that the Government have
not gone as far as we in the Richard Commission recommended. The
White Paper is a step in that general direction. I still believe
that the logic of the situation is that Wales should be treated
broadly in the same way as Scotland and that the momentum of events
will in due course produce the devolution of primary legislative
powers. The White Paper proposes a mechanism which is perhaps
over-complicated. One has to ask the question—if the object
of the exercise is to give the Assembly quasi-legislative powers,
would it not be simpler to give it those powers directly?
12 October 2005
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