Memorandum submitted by Cymru Yforu—Tomorrow's
Wales
1. This submission is made on behalf of
Cymru Yfory—Tomorrow's Wales, an all-party and non-partisan
group established following publication of the Richard Commission's
report in 2004 and chaired by the Archbishop of Wales.
2. July 2006 saw Royal Assent granted to
the second Government of Wales Act in Westminster, nearly a decade
on since the Devolution Referenda in Wales and Scotland. The evolution
of this second Act reflects the weaknesses inherent in the first,
and attempts to address difficulties encountered by both the National
Assembly for Wales and Westminster in the Assembly's First and
Second Terms. In light of the recent commencement of certain provisions
included in the Act, and the imminent commencement of the remaining
provisions following the Assembly Election in May 2007, the timing
of this inquiry falls at a crossroads in Welsh devolution. As
such, many of the points made below are made acknowledging that
we are currently in a period of flux with regard to the Welsh
settlement.
3. Cymru Yfory is greatly concerned by the
growing resource deficit between Whitehall and Cathays Park. Wales's
civil service remains very small and is often unable to pick up
the level of policy development on a complex issue. This is particularly
true of late, with examples of research on an issue and stakeholder
engagement primarily focusing on England and the legislation simply
having enabling clauses for Wales. There is no capacity in Wales
for the detailed research or discussion that has taken place for
England and the timetables for implementation are increasingly
behind in Wales. An example of this is the Commons Act 2006, on
which a Defra team of 12 plus worked. In contrast, Wales had a
team of only 1.5. A similar issue is likely to emerge on the planned
Marine Bill as there is so little resource in Wales. The likely
outcome will be a Westminster Act containing enabling clauses
for Wales; due to resource deficit however, the Welsh civil service
is unlikely to be in a position to pick up on the Act and ensure
its implementation. An issue of growing concern over the last
two terms of the Assembly, Cymru Yfory does not anticipate that
this situation will improve with the advent of the Government
of Wales Act 2006. Rather, it is anticipated that the situation
will likely deteriorate due to the parallel and increased devolution
of powers via Acts of Parliament and an increasingly heavy legislative
programme at Cardiff Bay.
4. The resource deficit outlined above leads
to Cymru Yfory's second concern regarding the way by which Westminster
deals with legislating for Wales: Wales' legislative deficit.
If Acts appear in Westminster with Welsh enabling clauses yet
the capacity does not exist within the Welsh civil service to
exercise these devolved powers, previous Acts are repealed without
provision already having been made in Wales. Often, this leaves
Wales in the unsatisfactory position of providing delayed and
hasty legislation at best, or, at worst, providing nothing at
all.
5. In relation to the role of Whitehall
and the development of effective concordats between Cathays Park
and London, Cymru Yfory would emphasise the need for increased
cooperation between the UK and Welsh civil service. As noted in
points 3 and 4 above, resource and legislative capacity issues
yield cooperation between Whitehall and Cardiff absolutely vital—without
such cooperation, we risk sub-standard legislation in Wales. As
with the relationship between the Assembly and Parliament, communication
between the two civil services is not always open and transparent.
More formal mechanisms may need to be considered to ensure public
accountability and clarity. Similarly, further development of
protocol and concordats will be required between Westminster and
Cardiff Bay to:
— inform the Welsh civil service of
decisions taken in Westminster to include certain enabling powers
and provisions for Wales within Acts of Parliament; and
— set clear guidance as to the specific
reasoning behind and circumstances required for Westminster to
devolve such powers and enabling clauses.
6. With regard to intergovernmental relations,
Cymru Yfory believes that there is considerable scope for improving
the clarity and openness of the mechanisms for inter-Parliamentary
working and communication. This is particularly apparent over
Assembly input into primary legislation that relates to Wales—it
seems that the Assembly has found it impossible to time its committees
to successfully give scrutiny input into a Westminster Bill. Such
difficulty would be compounded should a situation arise where
we have two different parties in power in Wales and Westminster.
Some of the channels which appear to have been employed so far
may not be workable; it is generally agreed that the evolution
of devolution has been a largely smooth process thus far due to
the complimentary colours of the Westminster and relevant devolved
governments. A formal procedure for the Assembly to input into
primary legislation relating to Wales should be developed. Cymru
Yfory would thus strongly favour the development of more formal,
transparent procedures with regard to intergovernmental relations.
7. In light of the role created for the
Secretary of State for Wales via the Government of Wales Act 2006,
Cymru Yfory believes that this Cabinet position must remain until
such a time as the Secretary of State is no longer the gatekeeper
between Cardiff Bay and Westminster. Cymru Yfory does believe
however that the power granted to the Secretary of State for Wales
over a democratically elected body is untenable in the long term
if his/her veto power is exercised frequently, as it could potentially
be if governments of different colours are elected in Wales and
Westminster. While there are matters that remain reserved to Westminster
however, Wales must retain representation at the Westminster Cabinet
level.
8. In relation to the appropriateness of
the arrangements for the Wales and Scotland Offices with the DCA,
Cymru Yfory would note the need to consider:
— the representation of the devolved
nations under the DCA's recently announced remit as Ministry of
Justice; and
— whether devolved bodies are suitably
placed under this new department's responsibility.
9. Although legal disputes have not featured
in the Welsh context in the past 10 years of devolution, Cymru
Yfory believes that such a situation may not prevail in the future.
Due to the lack of a consolidated list of legislation relevant
to Wales, a situation may develop in which contradictory legislation
is developed in Wales under the provisions of the Government of
Wales Act 2006. Similarly, amendments made by the National Assembly
for Wales to existing Acts of Parliament, now permitted under
certain circumstances via the Government of Wales Act 2006, will
be bilingual. Legal disputes could thus arise if such amendments
are not drafted identically in both Welsh and English.
10. Cymru Yfory does not believe that the
Government of Wales Act 2006 is any more sustainable than its
predecessor as a devolution settlement for Wales. The settlement's
complexity will serve to make navigating the powers of Wales very
complex if not impossible for civil society and may lead to even
less engagement of the public in the political process. An outstanding
issue—basic yet fundamental in nature—is the confusion
surrounding what exactly the Welsh settlement in its current form
incorporates. Awareness of what has been devolved to Wales thus
far via Wales-only Acts and Framework Powers, and what will be
devolved in the future via Legislative Competence Orders and Acts
of Parliament, is poor, and the methods by which to discover such
information are very thin on the ground. Being able to monitor
which fields are added to Schedule 5 to the Government of Wales
Act 2006 is also a great concern of Cymru Yfory in the Welsh legislative
context.
Cymru Yfory Executive Committee
April 2007
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