House of Commons - Welsh Affairs - Minutes of Evidence

Select Committee on Welsh Affairs Minutes of Evidence

ANNEX

SUBMISSION TO WALES OFFICE, JULY 2005

http://www.walesoffice.gov.uk/2005/bgfw/bgfw_winetrobe_barry_20050726.pdf

Better Governance for Wales: Comment on the White Paper, Cm 6582, June 2005, Barry K Winetrobe, Reader in Law, Napier University. Submitted to the Wales Office, 26 July 2005

Assembly/Parliament: The actual process of separation of the current corporate Assembly into its two constituent parts will be complex, and, for example, the detail of the rather brief proposal in para 2.20 will need to be worked out with the full co-operation of the staff concerned. More generally, it must be appreciated that the Holyrood and Westminster models of parliamentary self-regulation are not entirely equivalent for a number of reasons, including uni/bi-cameralism; legal status; parliamentary privilege and so on.[4] The arrangements for the new Assembly, and its institutional organisation and staffing in particular, should reflect what is regarded as the best of both the Holyrood and Westminster model, but in ways which are appropriate to the uniqueness of the reformed Welsh devolution scheme.

It is interesting that no direct reference is made to the possible renaming of the Assembly after separation. While it may be thought that the concept of the "Assembly" has entered the Welsh constitutional consciousness, it is also the case that this term also exemplified the confusion that the White Paper claims as the justification for the proposed separation. In particular, it is noticeable how the word "parliament" is almost totally avoided in the White Paper in reference to the Assembly, other than indirectly. Is it thought that the notion of a "Welsh Parliament" is too controversial (perhaps in relation to Westminster and Holyrood, as well as domestically?), or is purely terminological, that parliaments in the UK are bodies with primary legislative powers?[5] If the latter, would the adoption of the longer-term post-referendum primary legislative power proposal prompt consideration of a name change, and will the forthcoming legislation make provision for that possibility? Certainly the new Assembly will be a "parliament" in its wider, generic sense[6] and it may wish to use that term informally or descriptively, as in, for example, the continuation of titles such as the "Assembly Parliamentary Service". The new legislation should permit rather than proscribe the Assembly's ability to so act, if it wishes.[7]

Government terminology: On a related point, why is there a need to prescribe in statute the new government administration the "Welsh Assembly Government" (para 2.6)? If this term informally arose since 1999 principally to differentiate the "executive" from the "parliamentary", why should future Welsh devolved ministers be prevented from devising what they may regard as a more suitable name, perhaps one that does not have the word "Assembly" in it to minimise any residual confusion? The obvious solution would be to adopt something like the Scottish and Northern Irish models, of a "Welsh Executive". As in Scotland, this could be a title for everyday use, but with a statutory distinction, if required, between the "Executive" (the ministerial team)[8] and the "Administration" (the combined ministerial and official establishment).

"Ombudman" appointments: The para 2.19 proposal for "Ombudsman"-type officials to be appointed by Her Majesty on the nomination of the Assembly is welcome, and appears to follow the developing practice of the appointment of "Commissioners" by/through the Scottish Parliament. However, as in Scotland, the "new" parliamentary Assembly will have to take care that this does not impose an increasing resource burden on itself, or create new, different and potentially confusing forms of accountability and independence issues for itself and for these constitutionally important public officials.[9]

Standing Orders: The proposal in para 3.31 that creation of a set of Standing Orders for the new Assembly should be by the Secretary of State, with the assistance of an advisory committee, seems to be wholly unnecessary and inappropriate for an already functioning Assembly.[10] Whereas it may have been justifiable for initial SOs to be created by central government prior to establishment of the devolved parliament/assemblies, based on a perceived need for the new bodies to have a set of operating rules in place when they first met, this is not at all the case now in Wales. As the existing precedent in Scotland demonstrates, once an initial set of SOs is in place, future changes by the Parliament itself tend to build upon, rather than wholly replace, them, thereby entrenching, to some degree, the central government's vision of the body in operation.[11] Surely the body best, and most appropriately, placed to write the Assembly's new Standing Orders is the Assembly itself? The legislation could require it[12] to produce a new set before formal separation, and give it power (if it does not already have it) to appoint an advisory body (including those from outside its ranks) to assist it. Do Ministers fear that such an exercise could become a Welsh equivalent of the Scottish Constitutional Convention, potentially opening up a Pandora's Box of wider constitutional questions/options? Rather, it should be viewed, and so designed by the Assembly, as a Welsh equivalent of the Consultative Steering Group (CSG), which is regarded generally as a largely successful, non-partisan and inclusive exercise in 1997-99, which incorporated a wide measure of public consultation and consensus in formulating its procedural proposals.

Law-making: The legislative proposals in the White Paper are complex, and require to be fleshed out in a number of crucial areas, especially in the scope of Assembly's powers to act as a law-maker, rather than legislative scrutiniser.[13] The main purpose of any changes should be in terms of empowerment of the new Assembly itself, especially in relation to relevant legislative developments and procedures operating at UK level in Whitehall and Westminster. One of the reasons for the limited success of the existing law-making arrangements is the status of the current Assembly in these processes, as it has ultimately no formal, official "privileged status" at the "Centre", distinct from any other external lobbyist/petitioner. This is inappropriate for a representative democratic institution, and cannot be addressed solely by reliance on the good offices of intermediaries such as the Secretary of State or the relevant Westminster committees (or the future Welsh Government), or the (welcome) development of cross-parliamentary committee scrutiny procedures. As has been well-documented, Welsh devolution law-making is dependent to an excessive degree on goodwill and informality, generally at IGR levels, and so is reliant on governments of generally like mind in Cardiff and London. This is not a satisfactory or robust basis for arrangements for making the law of a country within the UK.

AMS: If the electoral system proposal is designed to prevent a candidate from standing in both a constituency and on a regional list anywhere, rather than simply where they overlap geographically,[14] this is excessive, unnecessary and undemocratic. A person should be able to stand in Constituency X and in Region Y (which does not include Constituency X),[15] and leave it up to the voters in both electoral areas to decide whether they wish to elect him/her (taking into account, if they wish, the implications of that candidate's dual candidature on his/her commitment to a particular locality).[16] Even if the proposal is simply to prevent unsuccessful constituency candidates being elected for the region comprising that constituency, this seems an unnecessary restriction on the democratic rights of potential candidates, parties and local electors to have as unrestricted a choice as possible in an election.[17] Any alleged "abuses" by regional AMs in their parliamentary activities can be dealt with internally by the Assembly through Codes of Conduct and the like. If thought desirable, voters could be informed of any dual candidatures by a notice on the relevant ballot papers stating that a candidate is also a candidate on some other named ballot elsewhere. The idea that the public feel that their will is being thwarted by "losing" constituency candidates ultimately representing them through the regional list is more one for voter/citizen education rather than draconian legislative prohibition.

If Ministers are genuinely concerned with addressing democratically harmful public perceptions, then they should consider whether such legislation will not be seen by that same public as partisan, and not something which would worry the Government if the party distribution of constituency AMs and regional AMs was different. These proposals will be of continuing interest to devolved Scotland (and the current Arbuthnott review), because, notwithstanding the rather unconvincing initial comments of Ministers, if they are "right" for Wales, they must by definition be "right" for exactly the same electoral system in Scotland.

Scotland: More generally, from a Scottish devolved perspective, the forthcoming legislation will be of interest, especially where it proposes to follow relevant Scottish precedents and practice. The policy of the White Paper appears to be to legislate with a light touch in relation to the new Assembly's structures, mechanisms, procedures and organisation. This echoes the July 1997 Scottish devolution White Paper.[18] The legislation should adhere to this approach, and Ministers should not be tempted to prescribe and proscribe unnecessarily.[19] As Ministers will know, even the apparently "flexible" Scottish legislation has given rise to some difficulties and restrictions, as in the number of deputy presiding officers; the legislative process; the powers of the SPCB; the legal basis of the Parliament; co-option of non-MSPs on Committees and other parliamentary bodies and so on. If the forthcoming legislation proves to be more flexible and permissive than the equivalent provisions of the Scotland Act, this will inevitably lead to demands for similar amendments there too.

24 October 2005

4 The relevant provisions of the Scotland Act appear largely to be a "read-across" from the Westminster arrangements (much of which is not laid down in statute), and the drafters may not always have fully appreciated the distinctions underlying the two parliaments. Back

5 The Northern Ireland Assembly is presumably so called, rather than the Northern Ireland Parliament, for obvious historical reasons. Back

6 The formal separation will remove any practical difficulties the present Assembly may have had in joining fully the family of parliaments worldwide, and their activities and organisations. Back

7 After all, the "informal" use of "Minister" and "Welsh Assembly Government" (created by devolved "ministers") is to be given statutory recognition by the new legislation (para 2.6). Back

8 Actually the Scottish position, under the Scotland Act 1998, is more complicated, as "Scottish Executive", in its statutory sense, does not include "junior ministers" (s44) and so is not the whole ministerial team, but what loosely may be thought of as the senior/cabinet ministerial team. See further, the Stair Memorial Encyclopaedia, Constitutional Law volume 2002 Reissue, paras 391-3; and two early Scottish Parliament briefings: The New Scottish Government, May 1999, SM SP10, and The Devolved Scottish Government: a Guide to the Terminology, December 1999, RN 99-54. Back

9 See O Gay and B Winetrobe, Officers of Parliament: Transforming the Role, Constitution Unit, UCL, 2003. These authors are currently undertaking further research in this area, looking at Westminster and the devolved parliaments/assemblies. Back

10 That the SOs would contain the new legislative procedures does not justify the proposal. Back

11 The position in Wales since 1999 is different because the Assembly's revisions of SOs were, in large measure, attempts to work round the inflexibilities of the "corporate body" structure and other restrictive provisions of the 1998 Act. Back

12 To foreshadow the formal separation, the Assembly, for this purpose, should not include Ministers as such, and the process should operate on a non-partisan, collegiate, rather than on a party, basis. This may include provisions for "special majorities" and other safeguards. Back

13 The notion of "Assembly-made" secondary legislation under the proposed regime appears to create a novel tier of legislation in the UK, which may have implications for judicial interpretation and review. Back

14 Paras 4.4-4.5 are not entirely clear on this point. Back