Wales and Whitehall - Welsh Affairs Committee Contents

Conclusions and recommendations


1.  The way in which the United Kingdom is governed has changed profoundly over the last twelve years, in different ways in different nations of the Union. Whitehall has not fully engaged with the complex nature of the devolution settlements. There is a need for a proper understanding of the devolution settlements to be fully embedded within Whitehall departments. Whitehall must realise that the differences in constitutional arrangements have implications for policy and legislation. The National Assembly for Wales and the Welsh Assembly Government (including both politicians and civil servants) have a major role to play in that learning process which they appear not to have undertaken fully in the last decade. (Paragraph 17)

Memorandum of Understanding

2.  The structures for inter-governmental relations with Wales were developed during a period when the same political party was in power in both Wales and Whitehall. There will be times when relationships between the Government and devolved administrations come under strain, and during periods of "cohabitation" between different parties in government at the two levels they can be at greater risk. Adequate machinery must be in place to enable extensive negotiation and conciliation to occur between the Government and the devolved administrations. It is not enough to rely solely on the strength of informal relationships. (Paragraph 29)

3.  Formal machinery is necessary but not sufficient. Often its effectiveness lies in the informal relationships it allows to develop underneath it. Strong relationships develop if there is the political will to make them work. It is important that arrangements exist to promote and maintain strong relationships between Members of Parliament and Welsh Assembly Members. This will ensure that we learn about and understand each other's priorities. (Paragraph 30)

4.  We believe that a broad review of the machinery for co-ordinating inter-governmental relationships is necessary. An updated Memorandum of Understanding between the Government and devolved administrations is long overdue. We urge the Government to publish the agreed revised version as soon as possible. We recommend that the Memorandum of Understanding be reviewed at the start of every Parliament. The status of Devolution Guidance Notes should be strengthened after appropriate consultation. (Paragraph 31)

Joint Ministerial Committee

5.  We welcome the re-convening of the Joint Ministerial Committee and recommend that it continues to meet on a regular basis. We believe that as well as practical, problem-solving work the Joint Ministerial Committee has symbolic value in embedding the principle of mutual respect and the expectation of proper consultation across Whitehall and with the Welsh Assembly Government. This should not be regarded as an alternative to direct relationships between Assembly and Whitehall departments, in which best practice should be pursued. (Paragraph 40)

6.  Whilst we recognise that the relationship between the UK Government and the Welsh Assembly Government is not one of constitutional equals, we urge the Cabinet Office to look at the British-Irish Council as an example of effective joint working. On appropriate occasions, consideration should be given to inviting a devolved administration to take the lead on a particular issue (Paragraph 41)

The Ministry of Justice

7.  We welcome the new level of engagement taking place between the Legal Services Commission, the Welsh Assembly Government and the Wales Office. However, we would note that this new level of engagement seems to be a direct result of our intervention in this matter, and had the matter not been raised, it is unlikely that such engagement would have been forthcoming. (Paragraph 51)

8.  We are convinced that the people of Wales—and the wider interests of the people of England and Wales—would be best served by a Legal Services Commission office in Wales, particularly now that there is a growing body of distinct Welsh legislation. We await clearer answers from the Legal Services Commission on their future proposals, which must meet our concerns and the concerns of the legal community and wider civil society in Wales. The office could take on work generated in England if the Welsh case load was not thought high enough. (Paragraph 56)

9.  The case of the Legal Services Commission serves as a timely reminder for all government departments and arm's length bodies that awareness of the devolution settlement is an element of their work that must not be neglected. (Paragraph 58)

A missing centre?

10.  In the period since the devolution settlements of 1999, departmental responsibility for devolution strategy and policy has moved around between different departments. It has involved the Cabinet Office, 10 Downing Street, the Ministry of Justice, the former Department of Constitutional Affairs, the former Office of the Deputy Prime Minister, the Wales Office and the Ministry of Justice. This development has been historically contingent and has taken place in a haphazard fashion. (Paragraph 76)

11.  There is an absence of a strong centre in relation to devolution within the UK Government. Currently the co-ordination of government business for Wales is shared between three departments—the Ministry of Justice, the Cabinet Office and the Wales Office. The lack of a single office prevents the UK from taking a co-ordinated view of devolution. An effective hub is needed in central government for it to manage effectively the devolution settlement. We considered the merits of locating the central responsibility for devolution within the Ministry of Justice because of the constitutional role of that department, but concluded that this was too removed from the centre for day-to-day co-ordination, and we were also unconvinced that the department has a strong understanding of the devolution settlement embedded in its ethos. We therefore believe that the role belongs to the Cabinet Office and we recommend that this should be recognised and developed and appropriate resources allocated for this purpose. (Paragraph 77)

12.  We recognise that there are arguments for a single Department of the Nations and Regions although we make no specific recommendation on this. As the devolution settlement matures, the role of the Secretary of State for Wales may decrease. This would certainly be the case if the outcome of a referendum on primary legislative powers for the National Assembly for Wales proved in favour of such powers. The Government of Wales Act 2006 gave the Secretary of State for Wales a role in legislating for Wales and any proposals under the current settlement would need to take this into consideration. However, Wales would still need a strong voice in Whitehall to represent its interests across a range of policy areas and any new arrangements should ensure that this includes Cabinet-level representation. (Paragraph 78)

13.  An implication of the establishment of a single Department of the Nations and Regions would be that the current three national scrutiny committees would be reduced to one. However we feel that arrangements will be required for the Government to account to Parliament in respect of matters affecting Wales, Scotland and Northern Ireland. (Paragraph 79)

Current awareness of the devolution settlement

14.  The Government, in conjunction with the Welsh Assembly Government, needs to make consultation exercises more sensitive to the facts of devolution and the limited resources of key organisations. It should, for instance, not be the responsibility of Welsh interest groups—some of them small voluntary bodies—to work out for themselves whether a policy proposal in a green paper relates to reserved or devolved matters. (Paragraph 87)

15.  Civil servants cannot absolve themselves of responsibility for awareness of, and sensitivity to, devolution issues in both policy-making and service delivery. Whilst we fully acknowledge the principle of ministerial responsibility we must observe that, practically speaking, Ministers cannot be expected to monitor everything their departments do. We also note the value of strong links between Assembly Ministers and Regional Ministers, who are often closer to local cross-border issues. (Paragraph 90)

16.   We recommend that the Cabinet Office oversees the development of Welsh Language Schemes for all government departments. (Paragraph 95)

Current review

17.  We welcome the preliminary work of the review of departmental awareness of devolution. We expect its findings will be discussed by all Permanent Secretaries and looked at collectively and we expect to be informed of what actions are being taken to deal with any deficiencies. We urge both governments to ensure that the Welsh Assembly Government is fully involved in implementing actions arising from the current review of Whitehall's awareness and performance on devolution. (Paragraph 129)

Way forward for the Civil Service

18.  It is clear that awareness of the Welsh devolution settlement is not uniform across Whitehall. An attempt was made to educate Whitehall after the establishment of the National Assembly for Wales but after an initial burst of activity, there was no concerted effort to ensure that a satisfactory level of knowledge was maintained. We welcome an acknowledgement of Whitehall's failings in this area and the importance of a concerted training programme. We recommend that devolution awareness should form a core part of the training for all senior civil servants. (Paragraph 130)

19.  We recommend that devolution experts, or 'senior champions' are established in relevant departments, and are expected to have an up-to-date understanding of the devolution settlement in Wales. Their role must be clearly defined and they must not be or become a substitute for ministerial support. (Paragraph 131)

20.  Secondments provide valuable knowledge and experience to individuals and to the institutions where they are placed. We recommend that a formal mechanism for secondments between Wales and Whitehall and other devolved administrations is established. We believe that it should be seen as a positive benefit to the development of a career in the Civil Service. However this should not detract from efforts to ensure that devolution awareness is mainstreamed throughout the Civil Service. (Paragraph 132)

21.  We recommend that the House of Commons authorities seek to establish a programme of secondments and exchanges with the National Assembly for Wales and to make adequate funds available for this to have effect. (Paragraph 133)

22.  It is important to avoid failures of organisational memory which are always a danger in a service where staff move on frequently from job to job. This problem was highlighted in the Communities and Local Government Committee's inquiry into the 2009 Departmental Annual Report, which suggests that on average, an official in the department can expect to have been in his or her particular post for just 0.8 years (about 9 months). We believe that this is an example of poor management of service delivery which is wide-spread in Whitehall. The culture needs to change. (Paragraph 134)

23.  The Welsh Assembly Government must strive to establish good working relationships with Whitehall and wider civil society in Wales. We have heard criticisms that the Welsh Assembly Government has been inward looking, which is perhaps understandable in the first few years of an institution when it is trying to develop its own policies. However, it must now have the confidence to interact with Whitehall and to highlight areas of good practice with a belief that it can play a consistently leading role in the United Kingdom. (Paragraph 135)

24.  The Welsh Assembly Government must develop its long-term strategic thinking in policymaking and financial planning. We endorse the views of Andrew Davies AM that leading, managing and delivering services and the wider management of relationships are crucial rather than seeing policy-making and legislation as the hardest part of the role. (Paragraph 136)

25.  Although ministers in both London and Cardiff take the leading roles on devolution, a key official player in making the devolution settlement work is, and will continue to be, the Cabinet Secretary and Head of the Home Civil Service. We welcome Sir Gus O'Donnell's leadership in this matter and his clear commitment to making devolution work, as demonstrated for example by the review of departmental arrangements he has put in hand. But more is needed to ensure that continuity is not lost, and we therefore recommend that the Cabinet Secretary should give evidence to this Committee annually, perhaps at the same time as the Committee's autumn evidence session on the Wales Office annual report. This would be an opportunity for the Cabinet Secretary for example to set out what progress has been made in raising awareness of devolution across Whitehall and in the Welsh Assembly Government and to answer questions on the development of the Welsh devolution settlement. We also believe that the Permanent Secretary at the Welsh Assembly Government needs to take a proactive role in explaining developments in Wales to her colleagues across Whitehall. We commend the way that Dame Gillian Morgan has described her role and we recommend that she too should give evidence to the Committee annually in addition to the regular evidence from the First Minister which has become an established part of the Committee's work. (Paragraph 137)

Civil Service Code

26.  Civil servants throughout the United Kingdom need to be aware of the implications of devolution for their work which must be seen in the context of its relationship with outside bodies more generally. This principle should be enshrined in core guidance issued to the Civil Service. We welcome the Cabinet Secretary's agreement to consider including an awareness of devolution as part of the Civil Service Code next time it is reviewed. (Paragraph 143)

Legislative Competence Orders

27.  We continue to have concerns about the time it takes for Legislative Competence Orders to receive Whitehall clearance. They are frequently not given priority within Whitehall departments, which may affect the delivery of the Welsh Assembly Government's legislative timetable. In contrast, the House of Commons has shown an ability to deal expeditiously with such proposals. (Paragraph 153)

28.  As we recommended in our earlier report, Review of the LCO Process, we believe that there is a strong case for a more formal reporting system on the Whitehall clearance system. This Committee has made clear its intention to scrutinise the process from the point when a Legislative Competence Order is sent by the Welsh Assembly Government to Whitehall. The Wales Office has now agreed to provide this Committee with a monthly update on the progress of all proposed Orders together with an explanation of any delays. In the event of this Committee being dissatisfied with progress, we intend to call ministers and officials from Whitehall departments to attend a meeting of the Committee along with a minister or official of the Wales Office in order to identify the issues that remain unresolved, and to provide transparency about the process. (Paragraph 154)

29.  We are concerned about the lack of transparency of the role of the Secretary of State in determining whether or not he would lay a draft Order before both Houses of Parliament. We recommend that the Secretary of State produce a protocol outlining the principles that would inform such a decision, and to present it early in the new Parliament. This should not omit consideration of the status of backbench Legislative Competence Orders. (Paragraph 159)

Framework Powers

30.  We are concerned that framework powers are not scrutinised to the same degree as proposed Legislative Competence Orders, either within Parliament or the National Assembly for Wales. We suggest that it is appropriate for this Committee to provide more parliamentary oversight of such powers and will investigate the most effective way of doing this. It is not appropriate for two legislatures to be entirely beholden to their executives in order to converse formally, and the National Assembly for Wales should have the opportunity to make observations on any proposal to legislate at Westminster in relation to devolved matters. It is our intention to explore the development of practice in this area. (Paragraph 166)

31.  We recommend that the Standing Orders of the House provide for the Speaker to lay before it any formal communication conveyed to him or her from the National Assembly for Wales. (Paragraph 167)

Welsh Statute Book

32.  The accessibility of the law in relation to Wales and the creation of a single comprehensive reference of legislation impacting on Wales is important. We encourage the Government to support the Welsh Assembly Government to achieve this objective. (Paragraph 171)


33.  The Barnett Formula is overdue for reform. Recent reviews have highlighted its deficiencies, and the Holtham Commission has put forward a needs-based formula. Whilst we recognise the commitment given to the Secretary of State for Wales from HM Treasury that Wales will not be disadvantaged by convergence under the Barnett Formula, we urge the Government to review the current arrangements and to adopt a needs-based approach to a new financial settlement. As well as bringing about a formula which is fairer to Wales, the need for predictability for some time ahead is of enormous importance and we strongly recommend that any such formula should not be subject to year-on-year or even the three-year variations which depend on a contemporary interpretation of statistical information. This should be treated as a priority. (Paragraph 179)

34.  That such a central department as the Treasury has been criticised for a lack of awareness of and engagement with the devolution settlement is worrying. We recommend that the Treasury actively seeks to increase its awareness of the devolution settlement and its own role in that settlement. Given the concern expressed by various organisations, we support the recommendation for an independent body to administer the Barnett formula. (Paragraph 183)

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Prepared 26 March 2010