Devolution: A Decade On - Justice Committee Contents

Memorandum submitted by Public Affairs Cymru

  Public Affairs Cymru (PAC) was established in October 2006 to enable networking, organise events and to promote good practice among the many organisations that are involved in public affairs or political lobbying in Wales. We are akin to the Government Affairs Group in London and the Northern Ireland Government Affairs Group in Belfast. We are communication professionals who have regular dealings with government in its widest sense. Our dealings with government are not restricted to lobbying, but embrace all aspects of public affairs.

  Members of PAC have made a collective contribution to this submission which aims to represent a holistic voice for all who work in the public affairs industry in Wales.

1.  Westminster: How does Parliament deal with devolution issues, eg legislating for Scotland and Wales

  For individuals involved in lobbying it is very difficult to establish what exactly is devolved. There needs to be greater clarity as to the extent of devolution on all issues. It is difficult to establish who is responsible for what so therefore difficult to establish who to target and with what information. There seems to be a tendency, especially on partially devolved subject areas for there to be an element of buck passing on more controversial issues. There needs to be a greater understanding amongst politicians, MPs in particular, of the extent of devolution and it may be an option for them to accept that they will also be lobbied by professionals as well as constituents whilst they are spending time in their constituencies.

  Prior to the Government of Wales Act 2006, devolution in the Welsh context was markedly more complex than in the Scottish case. The absence of primary powers left the National Assembly in the position of hoping that primary legislation bids were included in the Queens speech. Inevitably the already gridlocked Westminster legislative timetable meant regularly only one out of four bids for Wales's legislation was successful. Once formalised the proposed instruments laid out in the 2006 Act lends itself to a far more amicable way for the National Assembly to propose its new laws.

2.  What issues remain outstanding, eg "The English Question"

  The "West Lothian" question is one of the most difficult to answer and will be perennially difficult whilst there is a Union as we know it today. The main difficulties arise where part of a Whitehall Department's responsibility is devolved and another not, also where particular issues pass between one department's responsibility and another. A lasting and clear devolution settlement is the only way to settle this. Another suggested way of improving this is closer working between Select Committees in Westminster and Cardiff and some form of clear joint decision making process on partially devolved issues.

  The West Lothian Question is not so apparent in the Welsh case. As the absence of primary legislation has meant that a voice is still needed by Welsh MPs in Westminster. With the coming into effect of the 2006 Act this will be even more crucial. One outstanding issue will be the means that the National Assembly is allocated its budget. At present this is decided by the Barnett Formula, although there is opposition party pressure for this to be on a needs based budget allocation.

  The West Lothian Question hasn't been such a political hot-potato in Anglo-Welsh relations as it has been in Anglo-Scottish relations. For a start, fewer Welsh Ministers dominate the UK Government, and with fewer powers devolved to Wales than to Scotland, then there are fewer policy areas that Welsh MPs cannot legislate over. As more and more powers are devolved to Cardiff, however, then this may come to change, and calls for "English-only" votes in the Commons on devolved matters may intensify.

  The new Government of Wales Act, however, throws a potential spanner into the works. From 2007 onwards non-Welsh (ie English, or possibly Scottish, or even Irish) MPs will be able to scrutinise, comment on and perhaps delay legislative proposals originating from the Welsh Assembly that are on their way to the Welsh Secretary as part of the "Orders in Council" procedure. As this could potentially involve MPs without a mandate in Wales influencing Welsh Assembly Government policy; this would be almost like the West Lothian Question in reverse the case of Wales. With Welsh MPs then being able to vote on matters in England that have been devolved to Wales, the situation has the potential to become farcical on both sides of the border.

3.  Whitehall: What impact has Devolution had on Whitehall? Has there been a change in culture? How have they responded to the divergence in policy making? How have the Concordats developed, and are they working?

  On issues such as health, which again are partially devolved, there are examples where concordats are not as working as well as they should. An example is the recent Government White Paper Trust, Assurance and Safety—The Regulation of Health Professionals in the 21st Century. The paper applies to regulation in all parts of the UK but was written by the Chief Medical Officer for England and it is widely accepted that the way the suggestions for future regulation could be applied in Wales, Northern Ireland and Scotland were very much an afterthought. There needs to be closer working between departments with partially devolved/shared remits on order to ensure that the voices of the Welsh public are heard. Closer working between departments would also help ensure that policy development, developed in Whitehall, applicable to whole UK is fit for purpose in the 3 devolved administrations.

4.  Intergovernmental relations: How are bodies such as the British Irish Council working? What about representation at the EU level?

  We feel that this is outside the remit of Public Affairs Cymru.

5.  What is the future of the current Secretaries of State for Scotland, Wales and Northern Ireland? Are the current arrangements for the Wales and Scotland offices within the DCA appropriate?

  At present, the Secretary of State for Wales is also Secretary of State for Northern Ireland. This impacts adversely on both roles and should be discontinued. The Secretary of State for Wales has an important role within the Cabinet. However, Wales' interests cannot be championed together with the interests of another country of the UK.

  It is also vital that a formal mechanism of reporting to the Assembly and scrutiny by an Assembly committee is put in place with regards to the activities that the Secretary of State for Wales undertakes. If in the future there is a different political party in power in Westminster to the Assembly then a formal and binding system of interaction between the Assembly and the Secretary of State will be even more important.

6.  Devolution and the Courts: have there been legal disputes in the context of devolved/reserved issues and policy divergence?

  The new constitutional settlement for Wales has several implications for the current legal system. For example, at present, if a law is repealed in Westminster it could still be valid in Wales but there would be no record. It is therefore essential that adequate funding is allocated to ensure monitoring and recording of Assembly powers (through transfers of function orders or Orders in Council) and the information should be freely available online. There needs to be clarity in all areas of devolution and certainty that the Assembly is not allowed "to pull itself up by its own boot straps" which could lead to legal conflict between Governments in Cardiff and London.

7.  What are the other outstanding issues around reserved and devolved issues? How could these be best resolved? Is the UK's model of asymmetric devolution sustainable?

  Any form of asymmetrical devolution depends on the flexibility of the overarching legislature and government to accommodate autonomy. Whilst a form of devolution for at least some English regions is desirable, more clarity in terms of Welsh Assembly powers and any eventual English regional assembly is needed. Under the new constitutional arrangements, Wales receives primary legislative powers on specific matters without any reference to a timetable or rationale. Both civil society and the Welsh political class require clear knowledge of the powers the Assembly has. Assembly legislators and officials will require time to test the primary legislative powers the Assembly has so far been transferred. The current arrangement of Orders in Council and transfer of function orders is not sustainable, especially outside a time framework. There is an ethical issue relating to different powers being devolved to different geographical parts of the UK.

8.  What are the broader consequences of devolution for the future of the UK's constitution?

  Differences in policies are inevitable and are not necessarily negative. However, there are two issues of fundamental importance:

    (a) the provision of different services seems to be dependent not so much on policy, rather on the financial resources available. Wales is being adversely affected by the Barnett Formula, which needs to be replaced with a form of funding that would guarantee equality.

    (b) there are situations where English citizens in Wales have not the same rights as Welsh citizens in Wales. Such policies are discriminatory and would be illegal if applied to EU citizens. This anomaly needs to be resolved.

  It follows that a constitutional charter with fundamental rights would ensure the equality of all citizens of the UK regardless of their "region" residence.

Russell Lawson


April 2007

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2009
Prepared 24 May 2009