House of Commons - Welsh Affairs

Select Committee on Welsh Affairs First Report

1 INTRODUCTION

Background to the Government's Proposals

1. Following the conquest of Wales by Edward the First in the 13^th century, the Acts of Union of 1536 and 1543 formalized the assimilation of Wales into England, establishing the single legal jurisdiction of England and Wales.[1] It was not until the 19^th century that a cultural awakening in Wales, alongside the issue of Home Rule for Ireland, raised the issue of devolution for Wales.[2] Whilst Parliament rejected this pressure, the Liberal Government of 1880-1885 succeeded in passing the Welsh Sunday Closing Act 1881, the first piece of legislation that set out different principles of legislation for Wales and England.[3] The 1920s and 1930s saw renewed pressure for devolution, partly as a result of the creation of Plaid Genedlaethol Cymru in 1925. However, devolution was rejected as a distraction from the harsh economic realities of life in Wales during the interwar recession.[4]

2. The Conservative Government of 1951 established a Ministry of Welsh Affairs, later upgraded to a Minister of State in 1954.[5] The first Secretary of State for Wales, Jim Griffiths, was appointed by the Labour Government in 1964.[6]

3. During the 1970s devolution resurfaced as significant political issue. Parliament passed legislation for devolution which was put to the Welsh public in a post legislative referendum on the 1^st March 1979, and was rejected by a majority of 4-1.[7]

4. Following the failed referendum, the focus of pro-devolution campaigners largely shifted to cultural and linguistic issues. The 1980s witnessed a flurry of publications of Welsh history texts,[8] and a dramatic increase in Welsh medium education provision in Wales.[9] In 1982, S4C, the Welsh language television channel was established.[10] The Welsh Language Act, establishing the Welsh Language Board was passed in 1993.

5. At the same time administrative devolution continued to expand dramatically. By 1997, the Welsh Office employed over 2500 civil servants, administering a range of policy areas from agriculture to education.[11] Between 1979 and 1994 the number of QUANGOs (Quasi Autonomous Non-Governmental Organisations) in Wales doubled from 40 to 80. By 1995, an estimated 1,400 people had been nominated to Quangos, which were responsible for an annual expenditure of around £2000 million a year.[12]

DEVOLUTION IN WALES

6. In 1994, the Labour party made democratic devolution for Wales a manifesto commitment. Six months after its 1997 General Election victory, the Welsh public voted in favour of devolution in a referendum by a margin of 6,721 votes.[13] In November 1997, the Labour Government introduced the Government of Wales Bill. That Bill provided for the establishment of the National Assembly for Wales; a Corporate Body, which would work along similar lines to that of local Government. The corporate body was a single executive body, setting and implementing policies in Wales within the frameworks created by primary legislation passed in Westminster. This structure was intended to reflect and promote the principles of inclusiveness and power sharing in the new Assembly.[14] The Bill received its second reading on 8^th and 9^th December 1997 and received Royal Assent on 31^st July 1998. As a result, the Secretary of State for Wales' powers passed to a democratically elected body of 60 members, the first body of its kind to exist in Wales for over 600 years. Following the first National Assembly elections on 6 May 1999, it was formally opened by Her Majesty Queen Elizabeth II on 26 May 1999.

ASSEMBLY REVIEW OF PROCEDURE

7. A consensus quickly grew that while the Corporate Body model was adequate, it was not the most effective form of devolution for Wales. During July 2000, after the first year of the National Assembly, Rt. Hon. Rhodri Morgan AM, the then First Secretary of the National Assembly, instigated an Assembly Review of Procedure.[15] That Review among other things considered "the Corporate Body vs. separation of the 'executive' and 'legislative' arms - roles and relationships".[16] It recommended the widest possible split between the "Government" and "Legislature", which was possible within the Corporate Body model contained within the 1998 Act.[17] The result was the creation of the term Welsh Assembly Government. The First Minister explained that the title "was agreed across the four parties in the Assembly that we needed to stretch the elastic - not break the elastic, but stretch the elastic - of the Government of Wales Bill of 1998, so as to make as clear as possible the distinction between the executive branch and the legislative branch".[18] The title First Secretary (which was contained within the 1998 Act) was replaced by the term First Minister. While this did go some way to making clear the delineation between the Executive and Legislative functions, the continued existence of the Corporate Body in Statute meant that a high level of confusion remained.

RICHARD COMMISSION

8. In July 2002, the First Minister followed up the Assembly Review of Procedure with the establishment of the Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (hereafter known as the Richard Commission). The Commission was chaired by Lord (Ivor) Richard; and was given a wider remit to consider the powers of the National Assembly and its electoral arrangements.[19] The Commission's Report was published on the 31 March 2004.[20] It set out a series of recommendations for reform of the National Assembly of Wales. Those recommendations included the abolition of the Corporate Body status of the National Assembly, the creation of an 80 Member Assembly (elected by proportional representation, based on the Single Transferable Vote (STV) model), and a proposed timetable for the transfer of primary legislative powers by 2011.[21]

9. Although the Government did not formally respond to the Richard Commission-it was a National Assembly commissioned Report-it acknowledged the need for a revised settlement. A commitment to a revised settlement was set out in the Labour party manifesto for the 2005 General Election. The manifesto stated that:

10. On 15^th June 2005, the Government published the White Paper: Better Governance for Wales. Rt. Hon. Peter Hain MP, the Secretary of State for Wales, described the publication of the White Paper as putting devolution on "a road towards a better Wales with our devolved government more accountable, more participatory and more effective, giving more powers to the Assembly".[23]

Scrutiny of the White Paper

Wales Office Consultation

11. Following the publication of the White Paper,[24] the Government sought comments from interested parties and set a closing date for the receipt of submissions of 16 September 2005. The responses to that exercise can be found on the Wales Office website.[25]

NATIONAL ASSEMBLY FOR WALES: COMMITTEE ON THE BETTER GOVERNANCE FOR WALES WHITE PAPER

12. The most significant response to the consultation exercise was that from the National Assembly for Wales, which established a Committee to scrutinise the White Paper (hereafter referred to as the National Assembly Committee).[26] The Committee's terms of reference were to:

i. Consider the proposals set out in the White Paper so far as they relate to the proposed new structure and its proposed legislative powers;

ii. Take evidence from organisations and individuals with a direct interest in the proposed new structure of the Assembly and its proposed legislative powers.[27]

The terms of reference excluded the issues in Chapter 4 of the White Paper (electoral matters). The Committee published its report on 16 September 2005 and that report was considered in Plenary on 21 September 2005.[28] We refer to its recommendations during this Report.

WELSH AFFAIRS COMMITTEE INQUIRY

13. This Committee was reconstituted on 19^th July 2005, following the 2005 General Election. At its first meeting it agreed to undertake scrutiny of the White Paper, announced the inquiry and sought written evidence.[29] However, the fact that the summer recess commenced two days after the Committee's first meeting resulted in the evidence sessions beginning in October. The importance of publishing this Report in time for the Second Reading debate necessitated a truncated programme of evidence sessions. However, we were able to draw upon both the evidence provided to the National Assembly Committee and the responses to the Wales Office consultation exercise, in addition to the evidence presented directly to our Committee.

14. During the inquiry we took evidence from both Wales Office and Welsh Assembly Government Officials;[30] Professor Richard Rawlings, Chair in Law, London School of Economics; Professor David Miers, Cardiff Law School, Cardiff University; Dr Richard Wyn Jones, Senior Lecturer and Director of the Institute of Welsh Politics, and Dr Roger Scully, Senior Lecturer in European Politics and Director of the Jean Monnet Centre for European Studies, University of Wales, Aberystwyth;[31] Rt. Hon. Lord Richard QC, Chair of the Richard Commission;[32] Glyn Matthias, Electoral Commissioner for Wales and Kay Jenkins, Head of Office, Wales, Electoral Commission;[33] Rt. Hon. Lord Elis-Thomas, AM, Presiding Officer and Paul Silk, Clerk, National Assembly for Wales;[34] and Rt. Hon Peter Hain MP, Secretary of State for Wales and Rt. Hon. Rhodri Morgan AM, First Minister of the Welsh Assembly Government.[35]

15. In addition to our witnesses we also received a number of written submissions and we offer our thanks to everyone who contributed to our inquiry.

16. The reconstitution of our Committee and the Parliamentary timetable meant that our inquiry concluded outside of the consultation period set out for the White Paper. However, we trust that the Government and Members of the House will wish to draw upon our Report and its findings during the Second Reading debate and the debate in Committee on the Bill during its passage though Parliament.

Production of a New Government of Wales Bill

The benefits of stand-alone legislation

17. The Government of Wales Act 1998 defined the constitutional powers and functions of the National Assembly; while Schedule 2 of the Act listed the eighteen "fields" in which functions were originally to be transferred. Those fields are described in very general terms such as "highways" and "social services".[36] In 1999, the National Assembly for Wales (Transfer of Functions) Order 1999 transferred to the National Assembly specified statutory powers within those fields, in terms of functions exercisable by a Minister of the Crown under a specified list of enactments.[37]

18. Since the original Transfer of Functions Order, further powers and functions have been conferred on the National Assembly in a variety of ways. A second Transfer of Functions Order was passed,[38] and further entries have been added to the Transfer of Functions Orders by direct amendments contained in the provisions of new Acts.[39]

19. In addition to those amendments, changes have been made indirectly to the Transfer of Functions Order by treating a reference to a particular Act listed in the original Order as including a reference to textual amendments to that Act contained in a later, usually differently named Act.[40] Further powers have also been conferred directly on the National Assembly by new primary legislation; both in respect of England and Wales legislation[41] and "Wales-only" legislation.[42]

20. Changes to the functions of the National Assembly have also been made by amending the Government of Wales Act;[43] while additional functions have been conferred by delegated legislation made by the National Assembly,[44] by the National Assembly and a UK Government Minister acting together,[45] or by the Secretary of State for Wales.[46]

21. During our predecessor Committee's inquiry into the Primary Legislative Process as it affects Wales, Keith Patchett, Emeritus Professor of Law at Cardiff University, described the ability to identify Welsh law as akin to being "lumbered with a chained elephant…which blunders around the Statute Book and causes mayhem for the ordinary user".[47] Should an additional raft of legislation be added to the already complex devolution settlement, there was a risk that it would only serve to increase that mayhem.

22. We questioned the Wales Office about their intentions for the new legislation and the form in which it would take. Alan Cogbill, Director of the Wales Office told us that the Bill would be "offered as a coherent and freestanding Bill which restates, with necessary qualifications, things from the previous Government of Wales Act, so that you will be able to go to the new Act and find everything there in a self-sufficient way".[48] The Secretary of State acknowledged that an Amendment Bill would not have been the best route forward and that it was better to have a single piece of legislation which he described as being "the Bible for devolution".[49] Rt. Hon. Rhodri Morgan AM, the First Minister of the Welsh Assembly Government, confirmed that the approach would make for a longer, but better Bill that would give the reader of devolution a "coherent single viewpoint".[50]

23. We welcome the intention of the Wales Office to introduce a coherent and freestanding Bill and hope that it will bring a greater level of clarity to the devolution settlement for Wales.

DRAFT LEGISLATION

24. Given the breadth and complexity of this constitutional legislation, the Presiding Officer of the National Assembly expressed his concern that the Bill had not been published in draft form, and argued that while one could undertake scrutiny of the White Paper, it was not the same thing as scrutinising a draft Bill. He argued that "as it was not published as a draft bill, that is an even stronger argument for having wide consultation, even consultation with officials who worked for the Assembly Parliamentary Service, apart from those of us who are political leaders. As I say, I am disappointed that that did not occur".[51]

25. The 1998 Government of Wales Act began its Parliamentary progress at the end of November 1997, and received Royal Assent at the end of July 1998.[52] The Bill was large and complex containing 159 clauses and 18 schedules.[53] It was considered in a long session of Parliament which, in common with this Session, followed a May General Election.[54]

26. The Secretary of State explained that the new Bill would contain around 160 Clauses. Around 120 of the clauses in the new Bill would be transposed, in some cases with modifications, from the Government of Wales Act 1998, with the remaining 40 clauses being new clauses, dealing with the enhanced powers and the reforms.[55]

27. The Secretary of State told us that a draft Bill was not possible within the Government's timeframe. He explained that the proposals contained within the White Paper would need to be in place in advance of the National Assembly elections in May 2007. Furthermore, the National Assembly would need time to address the substantial restructuring of its practices and procedures.[56] However, the length of the current Session -from May 2005 to November 2006 - should have been sufficient to provide for both a draft Bill and a Bill for Parliament, even if the length of Parliamentary consideration of the 1998 Act was repeated this time around.

28. The Government could have published a draft Bill for consideration in July 2005, with a closing date for consideration of the beginning of December. Even allowing for amendments, the Bill could have been introduced in February and with a similar amount of Parliamentary consideration, be enacted by November 2006.

29. Whilst we welcome the publication of the White Paper, it is short on the detail necessary for proper pre-legislative scrutiny. A draft Bill would have been more appropriate. We are not convinced that the deadline of the 2007 National Assembly elections would have debarred the Government from publishing a draft Bill and still completing the Parliamentary process for the Bill in this very long session. Given that it is a constitutional Bill, we are disappointed that the Government have shied away from its commitment to publish draft legislation on this occasion.

WELSH STATUTE BOOK

30. Our predecessor Committee's report on the Primary Legislative Process as it affects Wales, considered the accessibility of Welsh legislation. It came to the conclusion that

"In our view, a clear and comprehensive register of Welsh legislation is not merely desirable, it should be a requirement of the devolution settlement".[

The National Assembly Committee also considered this issue in its Report and recommended that "the Governments in both London and Cardiff agree on the means by which a "Welsh statute book" can best be made available".[58] We agree that a "Welsh statute book" would be highly beneficial and reiterate our predecessor's view that a clear and comprehensive register of Welsh legislation should be a requirement of the devolution settlement. Furthermore, we add our voice to that of the National Assembly Committee in recommending that the Governments in both London and Cardiff agree on the means by which a "Welsh statute book" can best be made available.

1 John Davies (1992), Hanes Cymru: A History of Wales in Welsh, (Penguin, London), pp 225-226. Back

2 K.O. Morgan (1981), Wales 1880-1980: Rebirth of a Nation (Oxford University Press), p 32. Back

3 Further Acts followed, including: Intermediate Education Act 1889; the Welsh Courts Act 1942; the Disestablishment of the Church (Wales) Act 1920 and the Welsh Language Act 1967. Back

4 John Davies Op cit pp 526-527. Back

5 K.O.Morgan Op cit p 379. Back

6 John Davies Op cit p 641. Back

7 Gwyn Alf Williams (1985), When was Wales? (Penguin, London), p 294. Back

8 E.g. Morgan (1981), Williams (1985) and Davies (1992). Back

9 Gareth E Jones (1997), The Education of a Nation (University of Wales Press, Cardiff). Back

10 John Davies, Op cit pp, 680-81. Back

11 See the Report of the Richard Commission, p 8 for a full list. Back

12 See John Osmond (1995), The Contradictions of Welsh politics, in Scottish Affairs, no.11, pp 31-47. Back