News of Wales - Issue 1
October 2005
BMA Cymru Wales Assistant Secretary Andrew Cross examines the implications for Wales of the Government white paper: ‘Better Governance for Wales’ and the continuing saga of lawmaking powers for the National Assembly
Introduction
When considering the lawmaking powers of the National Assembly, one is reminded of the Irishman who when asked by a visitor the way to Dublin replied: “Well I wouldn’t have started from here”. So how precisely did we get to where we are today?
To quickly recap on history, the September 1997 Devolution Referendum offered Welsh electors the single model of “executive” devolution only. The (then) Secretary of State for Wales, Rt Hon Ron Davies MP, explained that his model was a compromise solution adopted to ensure the support of both pro and anti Devolutionists in the Welsh Labour Party. The new Assembly would (simply) “assume responsibility for Policies and Public Services currently exercised by the Secretary of State for Wales” (1).
Meanwhile, in Scotland and Northern Ireland respectively, a Scottish Parliament and Northern Ireland Assembly were to be established with full primary law making powers in the devolved areas – including Health; Wales however was to be denied such primary lawmaking powers. For example, health related legislation such as that on prescriptions would be reserved to Westminster, on the basis it was Primary Legislation. However, the level of prescription charges and the categories for exemption from charges would be implemented through Secondary legislation, which from 1999 became the province of the National Assembly (2).
Secondary legislation
In 1998, the last full year before devolution the former Secretary of State for Wales made just 66 general Statutory Instruments. By 2003 however, the new National Assembly was making 196 pieces of general subordinate legislation – a threefold increase in the first four years of the National Assembly’s existence. The National Assembly’s activity in such secondary legislation is heavily orientated towards the delivery of public services in Wales in the fields of Health, Education, Social Care and Local Government, although Agriculture and Highways also get a look in. Such legislative gems as the “Food (Pistachios from Iran) (Emergency Control) (Wales) Regulations 2003 (3) are perhaps very unlikely to engender much interest from the medical profession, but the NHS (Travelling Expenses and Remission of Charges) (Wales) Regulations 2003 just might.
A Corporate Body – not a Parliament
The Government of Wales Act 1998 created the National Assembly for Wales as a single corporate body. This meant that one organisation was responsible for discharging both the legislative and executive functions, rather than separate organisations being responsible for each of these as in the traditional Westminster/Whitehall model (4). This corporate structure was apparently favoured when the original legislation was drafted because it drew upon existing practice in Local Government at that time.
Under the existing arrangements, the executive functions are not conferred on Ministers as happens in the traditional Westminster/Whitehall model. Instead, they are conferred on the Assembly as a whole and are then delegated to the First Minister. This lack of a clear separation between the Assembly itself and Assembly Ministers and Civil Servants working for them has created considerable confusion. While those closely involved in the system may understand how it works, the wider public in Wales has been confused about who is responsible for decisions that affect them (5).
Equally, policy makers and interest groups who wish to engage Assembly Members and Civil Servants working for them in initial discussions about matters of mutual concern are concerned about confidentiality. They assume that because the Assembly is a corporate body, what is said to Ministers must immediately be passed on to Assembly Members. This can lead to Assembly Members not being consulted until proposals are ready for public consultation, which can result in unnecessary controversy (6).
The Richard Commission (2002-2004) – ‘we can’t go on as we are’
In July 2002, the First Minister, Rhodri Morgan appointed a Commission under the chairmanship of Lord Ivor Richard QC to report on the Powers and Electoral Arrangements of the National Assembly for Wales (“The Richard Commission”). Lord Richard reported in March 2004. He concluded that the status quo was not a sustainable basis for future development of the National Assembly.
The legislative relationship between Cardiff, Whitehall and Westminster remains dependent upon particular situations and even individual departmental inclinations. The status quo is also dependent on goodwill between the Administrations in Cardiff and Whitehall. Accordingly, the present settlement offers scope for delay or obstruction. Even with goodwill on both sides, there are practical constraints upon the achievement of the Assembly’s legislative requirements.
In order to overcome this, the Commission recommended that the legislative competence of the Assembly should be enhanced (7). Lord Richard’s preferred method for doing this was by way of a legislative Assembly for Wales, along the lines of the Northern Ireland Assembly and Scottish Parliament. Had the National Assembly has such powers, the Assembly itself (rather than Westminster) might have passed measures such as the Children’s Commissioner for Wales Act 2001; the Health (Wales) Act 2003 and related Reforms in the NHS Reform and Health Care Professions Act 2002 (8); and legislation to create a single Public Services Ombudsman for Wales (9).
Since its creation, the National Assembly has made 23 bids for Primary Legislation, no fewer than 17 of which have resulted in legislation or proposals for legislation. However, as the Richard Commission noted “even with goodwill on both sides, there are practical constrains on the achievements of the Assembly’s legislative requirements”. The particular problem is that the Assembly has to compete alongside Whitehall departments when bidding for administrative time at Westminster. This has meant that on occasion, the Assembly Government has been unable to take prompt action in an area of policy where the Welsh public expects it to be able to do so (10).
Better Governance for Wales
In September 2004, the Welsh Labour Party held a special conference to reach a compromise over the way forward for the Assembly. The Labour Party Manifesto for the following May 2005 General Election included a commitment to “enhance” the National Assembly’s legislative powers (11). Following the return of Labour in the May 2005 general election, on 16 June 2005, the UK Government published its proposals for reform of the National Assembly in its White Paper “Better Governance for Wales” (12).
Three steps to Legislative Heaven
The UK Government are proposing a three step approach. Firstly, they will delegate to the National Assembly maximum discretion in making its own provisions using the existing secondary legislative powers. This will not require any change to the provisions of the Government of Wales Act 1998 (13).
Secondly, the Government will legislate at Westminster to give the National Assembly powers to modify existing primary legislation within its competence (e.g. Health) or to make new provisions on specific matters or within defined areas of policy. Orders in Council conferring these Powers would be made at the request of the National Assembly, but would still be subject to specific authorisation by Parliament. They would relate to specific pieces of legislation or clearly defined topics which could cover a wide or a narrow area.
Thirdly, in the long term, following a positive referendum result, the Government would give the National Assembly general powers to make primary legislation in those areas were functions have already been devolved (e.g. Health). The Government of Wales Act Amendment Bill, due in six months time, will make provision for a referendum and it will be possible for this to be triggered following a 2/3 vote by the Assembly and a majority vote by the UK Parliament.
Will it work?
Lord Richard – whose view on these matters is to be respected – has assessed the Government’s White Paper as a “B verging on a B+” (14).
David Lambert of Cardiff University’s Law School (and a former legal adviser to the Welsh Office) believes that the White Paper has much to commend it. Once an Order in Council has been approved by one debate in the House of Lords and one debate in the House of Commons, the National Assembly for Wales will actually be able to make Law. Under the new arrangements, that Law could include disapplying an existing Act of Parliament insofar as it applies to Wales, or enabling the National Assembly to set out its own legal provisions in a new and comprehensive way, which it has never been able to do before. That is very exciting.
From September 2005, the National Assembly will have the power to amend, repeal or revoke certain Acts of Parliament in order to give full effect to those Acts in Wales. Mr Lambert believes that the publication of the White Paper marks a significant moment in Welsh political history. It may be that the National Assembly will not (as yet) have equal powers to that of the Scottish Parliament, but the White Paper marks significant changes in the National Assembly’s powers. These changes promise to be very interesting for the future (15).
By Order in Council, the National Assembly will be able to legislate over specified areas of law to the de facto exclusion of the United Kingdom Parliament. In fact, the National Assembly will have legislative powers to make primary legislation in Wales, so that it will be able to amend or repeal and set out a whole new system of legislation for Wales. Proposals for legislation will come from the National Assembly for Wales. For the first time ever, the National Assembly for Wales will have a legislative job to do. This is revolutionary.
The legislative process will start at the next Assembly General Election in 2007. Westminster will no longer be involved in Welsh legislation and there will be no more “Welsh Acts” made in Westminster following these changes. The weakness of the new system will however, be in the “scrutiny” role of the National Assembly. The National Assembly for Wales has never had to properly scrutinise legislation in the way that MPs do in the UK Parliament (16). Further, nobody in Wales has an in depth knowledge of drafting primary legislation. Parliamentary Counsel from London will need to be seconded in to Wales to do this job. There is also a question over the ability of Assembly Members to effectively carry out the vital role do the job of legislative scrutiny to the same standard achieved by backbench Westminster MP’s. Intensive training of AM’s will undoubtedly be urgently needed before 2007.
To return to our Irishman asking directions for the way to Dublin, no constitutional lawyer would have started from where we are today, but in terms of direction, both the Report of the Richard Commission – and (as an exercise in the art of the politically possible) – “Better Governance for Wales” - provide a compass (or should we say “GPS” these days) to get the Welsh Devolution Project back on track.
Notes
- Richard Commission, Chapter 2, paragraph 34
- Richard Commission, Chapter 5, paragraph 7
- Bush K, Legal News, May 2004
- Better Governance for Wales, paragraph 1.7
- ibid paragraph 1.10
- ibid paragraph 1.10
- Richard Commission, chapter 14, paragraph 19
- ibid, Chapter 13, paragraph 17
- Better Governance for Wales, paragraph 3.18
- ibid, paragraphs 1.20-1.21
- ‘Britain Forward Not Back’, Wales Labour Party Manifesto 2005, page 108
- Better Governance for Wales Cm 6582
- ibid, paragraph 1.24
- Hansard House of Lords Debates
- Politics Show, BBC1, 19.6.05
- ibid