Devolution: A Decade On - Justice Committee Contents

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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