How to submit FORMAL EVIDENCE to the All Wales Convention

The Call for Evidence

The All Wales Convention wishes to broaden the debate and get opinions from people from all parts of Wales. Public engagement is central to the Convention’s work and we are committed to taking an evidence-based approach.

The Executive Committee would like to invite organisations and individuals to make formal submissions to the Convention. It will be particularly helpful to the Convention to benefit from your particular areas of interest and expertise. Opinions will be subject to robust scrutiny as we prepare the final report on the Convention’s findings.

Please send submissions in hard or electronic copy to the Secretariat preferably by Saturday 31 January 2009.

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Guidelines

The Convention is keen to hear from interested parties. It is recommended each submission be:
• no more than 3,000 words in length;
• include a short summary;
• have numbered paragraphs; and
• preferably, the document should be in Word format with as little use of colour or logos as possible.

A copy of the submission should be sent by either email to info.convention@wales.gsi.gov.uk or hard copy to:

The Secretariat
The All Wales Convention
c/o National Assembly for Wales
The Pierhead Building
Pierhead Street
Cardiff Bay
Cardiff
CF99 1NA

Evidence should be submitted to the Secretariat, preferably no later than Saturday 31 January 2009.

Consultation Questions

While submissions are welcome on any matter that falls within the Convention’s remit, we would particularly welcome your comments on the following:

1. In general, what level of understanding do you think there is in Wales of the current devolution settlement? For example ...

2. What do you think has been the practical outcome of devolution in Wales? For example ...

3. How well, in your view, does the current devolution settlement work? For example ...

4. How successful have the Welsh Assembly Government and the Assembly been in dealing with legislation for Wales? Please tell us about any experience or involvement you have had in the legislative process, and any Assembly Measures or pieces of subordinate legislation which have had an effect on any aspect of your life or work.

5. What do you think are the advantages and disadvantages of sticking with the current system, where the Assembly acquires powers to pass Measures gradually? What do you think of the process for acquiring powers to pass Measures, through either a Legislative Competence Order (LCO) or through including provisions in a UK Parliamentary Act?

What do you think are the advantages and disadvantages of moving to a system where the Assembly can pass Acts in the full range of devolved policy areas, without having to go through a process of adding powers gradually by agreeing LCOs or provisions in UK Acts?

Which of these options do you prefer, and for what reasons?

6. Do you feel that there are any bureaucratic or capacity issues, within the civil service, National Assembly Parliamentary Service, civil society or the legal community that would need to be addressed before powers to pass Acts could be transferred to the Assembly?

7. What do you think the impact of moving to allow the Assembly to pass Acts, as provided for in Part 4 of the Government of Wales Act 2006, would be on the legal system and legal profession in Wales?

8. Do you believe the time is now right for the people of Wales to be given the opportunity to make a judgment, through a referendum, on whether or not to introduce powers for the Assembly to pass Acts, as set out in Part 4 of the Government of Wales Act 2006?

Case for primary powers overwhelming says Tomorrow’s Wales
Friday, 21 November 2008

The case for giving the National Assembly for Wales primary law-making powers is overwhelming and a matter of simple common sense since the present arrangements are inherently unable to provide good governance for Wales. That is the conclusion of a document of evidence submitted by Cymru Yfory / Tomorrow’s Wales to the All Wales Convention and which is published today.

Tomorrow’s Wales’ submission looks at both the workings of current arrangements as set out under Part 3 of the Government of Wales Act 2006 and at the arrangements that would be brought into effect by the bringing into force of Part 4 of the Act and judges both sets of arrangements against five fundamental principles which we believe any satisfactory constitutional settlement must satisfy. These are based to a large extent on the principles of good governance identified by the European Commission in its 2001 White Paper on Good Governance and are that the settlements bust be:

- stable;
- effective and efficient;
- comprehensible and transparent;
- encourage maximum participation;
- respect the autonomy of the National Assembly.

It is Tomorrow’s Wales’s conclusion that the current devolution model does not live up to the standards of good governance and cannot constitute a lasting settlement. Our submission provides evidence of how the experience of working under the terms of Part 3 to date proves that it does not meet the core principles that define an acceptable system of governance, and of the difficulties it causes in practice. A further concern is that the present arrangements are likely to deter people from becoming involved in matters of public concern, rather than encourage, it and that the present constitutional structure discourages rather then encourages public participation.

Implementing Part 4 of GOWA 2006 would bring about a vast improvement on the current arrangements under Part 3. The extension of power that implementing it would bring about would constitute considerable progress toward the criteria we have identified as being necessary for an acceptable devolution settlement for Wales.

By conferring a clear and broad range of legislative powers on the National Assembly, implementing Part 4 would provide a settlement that had a meaningful prospect of being stable. It would also, in the view of Cymru Yfory, significantly improve the stability, efficiency and effectiveness, comprehensibility and transparency of devolution in Wales as well as encouraging wider public participation in the Assembly’s activities. The autonomy of the National Assembly would also be respected under the new provisions. For these reasons, Cymru Yfory supports the move to implement Part 4 of GOWA 2006, and will support a Yes vote in a referendum.

However, it must be noted that GOWA 2006 is the outcome of pragmatic political compromises based on what was achievable at a particular point in time. As a result it has several imperfections that mean it should not be regarded as the end-point of the process of devolution in Wales. We believe that a number of significant improvements will be needed in order to meet the fundamental criteria that we have set out and that each of these changes could be made either before or after a referendum. These changes are:

- an increase in the number of Assembly Members to 80;
- a review of the voting method;
- establishing Wales as a separate legal jurisdiction;
- a move to the ‘reserved powers’ model used in Scotland;
- a review of the Assembly’s fiscal powers.

We believe that the benefit from revisiting these issues would be great as we would then have a constitutional settlement that was fit for purpose and that could meet the test of time. We believe the Convention provides an unique opportunity for considered reflection on the constitutional future of Wales, and that its terms of reference give it the scope for a wider consideration that allows it to take into account issues beyond the confines of GOWA 2006. It should therefore take these issues into account as part of its work.

Chair of Tomorrow’s Wales, Archbishop Barry Morgan, said:

Having looked at how the current arrangements have operated over the past 18 months we have come to the conclusion that there is no way that the present arrangements can constitute a lasting settlement as they do not, and cannot, meet the principles that define a good system of governance. There can be no justification for remaining with the current unsatisfactory arrangements under Part 3 of the Act when Part 4 is available and already on the statute book and would constitute a vast improvement on the present situation. The precise time for holding a referendum is a matter for others, but it is Cymru Yfory’s strongly-held view that the establishment of a satisfactory system of democratic governance for Wales should not be long delayed.

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Submission to the All Wales Convention

Introduction

This submission is based on the assumption that democracy can only be effective in the long term if it relates to a community or society that regards itself as a distinct entity. There is no doubt that Wales regards itself as such a community and that it is different from other parts of the United Kingdom in terms of culture, language and sense of identity. The very fact of devolution acknowledges this reality, and the Welsh government has been given responsibility in certain areas to make decisions on behalf of the Welsh people. The issue in political terms is how this different identity should be recognised, what is the hierarchy of decision making and responsibility, and to whom the Welsh government should be primarily accountable. The question is the extent to which the democratically elected representatives of the people of Wales should have their decisions over-ruled by the democratically elected representatives of a different, larger, community. Whether this larger community is described as the English community or the British community is relatively irrelevant in view of the preponderance of elected representatives in the UK Parliament who do not represent Wales.

The current constitutional arrangements under the Government of Wales Act 2006 (the 2006 Act) can be examined from a number of different points of view:

1. What is the background to the 2006 Act? On what principles is it based?
2. How do its provisions compare to those for Scotland and Northern Ireland?
3. What is the practicality of the current situation, and to what extent does it enable efficient government to take place?
4. How would a referendum change the situation?

In brief these points can be summed up as to whether the current constitutional arrangements are sound in principle and to what extent they are sound in practice. It is the contention of this submission that they are neither.

1. Principles

a. The current constitutional arrangements do not derive from the implementation of thoroughly thought through proposals for constitutional change. The Richard Commission which consulted very widely in respect of the appropriate way of improving the constitutional settlement for Wales proposed that the Welsh government be given primary legislative powers for its devolved areas of competence, and that these latter be clarified along the lines provided for in the constitutional arrangements for Scotland. The Commission noted the comments in the Government White Paper preceding the Scotland Act 1998:

“The Government have given careful thought to the best way of building stability into the settlement. The Scotland Act 1978 provided for the transfer of specified areas of legislative and executive competence… It would have required frequent updating and might have given rise to regular legal arguments about whether particular matters were or were not devolved. This approach now seems incompatible with the Government’s objective of ensuring maximum clarity and stability. Consequently the legislation establishing the Scottish Parliament will follow the approach of the Northern Ireland Constitution Act 1973 in listing matters reserved to the UK Parliament rather than specifying devolved matters.”

b. It is wholly unclear why the lessons learnt from the abortive Scotland Act 1978, which resulted in Scotland (like Northern Ireland) having clearly defined areas of legislative competence under the Scotland Act 1998 should not have been learnt in respect of Wales. The concerns expressed in the White Paper have already resulted in further legislation for Wales in the form of the Government of Wales Act 2006, and considerable friction between Cardiff and Westminster in respect of Legislative Competence Orders, and this even when the Labour Party has a majority in Westminster, and is the larger member of the governing coalition in Wales.

c. Unfortunately the recommendations of the Richard Commission were not acceptable to the Labour Party and the Government of Wales Act 2006 (the 2006 Act) represents a compromise that was the minimum acceptable between various elements of that party. It is important to highlight the origins of the drafting approach of the 2006 Act, because its pedigree clearly shows that, unlike the Scottish political settlement, these were not grounded in a principled approach to constitutional settlement but in political expediency. As a consequence the 2006 Act is unprincipled, and the constitutional arrangements which it provides for are nothing more than a ‘fudge’ to suit the internal political dynamics of one political party. It should be recognised by members of the All Wales Convention (AWC) that a settlement based on such foundations is not only unfair in principle, but also unfair in practice, and is likely, over a period of time, to give rise to frustration and resentment which will more probably exacerbate political and other antipathies than resolve them.

d. It is clear from the above that the provisions of the Government of Wales Act 2006 pre-referendum rest on highly unstable foundations. Quite apart from the particular issues in respect of whether the current responsibilities of the Welsh Assembly Government are sufficient, the Act is permeated with an attitude of unfairness.

e. The provisions of the Act relating to the supply, resources and quality of water in England although not directly relevant to the issue of a referendum undoubtedly colour perceptions of the 2006 Act as being one-sided and unfair. Under Section 101 of the 2006 Act the Secretary of State for Wales (who may not represent a Welsh constituency), may intervene and veto any Measure of the Assembly if he or she considers that it could have an adverse impact on water resources, quality or supply in England, and the same is true in a post referendum dispensation under Section 114. Section 152 specifically empowers the Secretary of State to exercise any function of the Assembly in respect of water if he or she considers there will otherwise be an adverse effect on English water.

f. These provisions are wilfully one-sided, make no provision for the fact that the Secretary of State may not have been elected for any constituency in Wales, and provide quite clearly that a legislative act of the Welsh Assembly, passed by democratically elected members of that Assembly responsible to the people of Wales can be over-ridden by an individual in England if that person decides English interests are being adversely affected. It is notable that the Act does not refer to wider UK or British interests, merely to English interests. This in and of itself is astonishing enough. For it to be expressly written into a piece of legislation in respect of Wales where the drowning of the Tryweryn valley to provide water to Liverpool against the wishes of the Welsh people became a cause célèbre cannot be viewed as anything other than provocative. It enshrines in legislation that when there is a conflict of interest between English interests and Welsh interests, even in respect of Welsh natural resources, it will be the English that decide.


2. Comparison with other parts of the United Kingdom

a. The current constitutional arrangements for Wales are unique in the UK; the Scottish Parliament does not have to seek the approval of the UK Parliament for areas within its competence. In the case of the Northern Ireland Assembly there are some areas of competence which are ‘reserved matters’ where the Northern Ireland Assembly can only legislate with permission of the UK parliament, but these include areas which have not been devolved to Wales such as criminal law, public order, police, and civil defence and are particularly sensitive issues given the recent history of Northern Ireland. This arrangement should therefore be regarded as exceptional and reflecting Northern Ireland’s particular circumstances. It is also the case that local authorities do not have to gain the permission of the UK parliament when passing bye-laws. The Welsh Assembly is therefore uniquely disadvantaged as a legislative body in the United Kingdom, and it is incumbent on the AWC during its consultations to point out this anomalous situation. The unsatisfactory historical precedents for this UK parliamentary oversight approach lie in English rule in Ireland. It was deeply resented by the Irish and will doubtless come to be deeply represented by the Welsh unless a referendum is held soon. In 1494, Sir Edward Poynings, the Governor-General in Ireland under Henry VII introduced a law which provided among other things that no parliament could be held in Ireland until the Irish chief governor and privy council had sent the English king information of all the acts intended to be passed in it, with a full statement of the reasons why they were required, and until these acts had been approved and permission granted by the king and privy council of England they would be of no effect. Before a parliament could be called all its proposed legislation had to be approved beforehand. Even in its very early days the inflexibility of the procedure engendered by Poynings’ law caused administrative problems, and as the role of parliament grew on both sides of the Irish Sea the inherent unfairness of this arrangement caused great resentment. Poynings’ Law is the historical precedent for the current Government of Wales Act 2006; both were born from political expediency, and both express quite openly the fact that the wishes of the people of one country are subordinate to those of another country.

b. It is therefore clear from the above that the 2006 Act pre-referendum is not based on the aim to achieve a fair minded settlement between England and Wales. Neither its historical origins (both recent and in the distant past) nor its comparison with the constitutional arrangements pertaining to the rest of the United Kingdom indicate that it will be accepted on a long term basis, or that it will work satisfactorily. On the contrary although it is clear that the Assembly has been given the ability to acquire primary law making powers under the currently applicable provisions of the 2006 Act, it is through a process that is so cumbersome that it effectively emasculates the ability of the Welsh Assembly to legislate through this route without inordinate effort and delay.

3. Practical Consequences

a. The current legislative procedure is extraordinarily time-consuming, and this undoubtedly means expensive as well. The number of processes and persons involved is substantial, including the Welsh Assembly, both Houses of Parliament, the Secretary of State for Wales, and doubtless a myriad of civil servants in various different departments of State, as well as in Wales depending on the particular area, and all this before the Assembly can legislate. In its consultations the AWC should lay out clearly the number and identity of parties whose agreement is required before a Legislative Competence Order (LCO) can be obtained. Since recent experience has indicated that the UK parliament will interpret such LCO requests as narrowly as possible, it seems likely that repeated requests for LCOs will be needed even in the same general area of competence. The process is ill suited to a situation where more than one area of competence may be affected. For example, legislation in respect of higher education in agriculture with a view to economic development, all areas within the responsibility of the Welsh Assembly, might require scrutiny from various departments in Whitehall as well as various ministers and a specialised LCO which would not enable the Assembly to legislate more widely in this field.

b. Recent experience in respect of e.g. the LCOs relating to housing and the Welsh language has shown that the system does not work satisfactorily, engenders a considerable amount of frustration and ill-will (and the process depends on a great deal of good will to operate effectively), takes an inordinate amount of time and doubtless results in a substantial cost to the tax payer. In no sense could the current system be described as an efficient way of enabling the Welsh Assembly to legislate. These difficulties would be likely to increase if Labour were not also in power in Westminster.


4. How would a referendum change the situation?

a. Part of the problem of the current debate is due to the ambiguity of the word ‘powers’. What a referendum under the 2006 Act will decide is not the area of competence of the Assembly, but the way in which it can implement policies in the areas for which it has already been given responsibility. The only extra powers the Assembly would be given are primary ‘law making powers’; this is clear in the terms of reference of the AWC. The question on the AWC website – ‘Do you think that current powers available to the National Assembly are enough? is very misleading. It should ask ‘Do you think that the current procedure for obtaining primary law making powers is satisfactory?’

b. The current areas of responsibility given to the Welsh Assembly are laid out in Part 1 of Schedule 5 of the Wales Act 2006. If there were a successful referendum the areas of responsibility of the Welsh Assembly would be those described under Part 1 of Schedule 7 of the Wales Act 2006. The 20 fields of competence are the same in both cases, although in the case of Section 7 there are multiple exceptions carved out. It is a matter for close examination by legal specialists as to whether the precise powers under these two schedules are the same or how they might marginally differ. The reality is clearly that, whether the referendum is held or not, the areas of responsibility of the Welsh Assembly will remain, by and large, the same. What will change is the ability of the Assembly to legislate in respect of its areas of responsibility without undergoing the tortuous process under the current system, where the will of the democratically elected representatives of the Welsh people in areas where they have been given responsibility can be ignored or over-turned by a single individual in the shape of the Secretary of State for Wales or by a majority of non-Welsh MPs or the non-representative House of Lords.

c. Following a successful referendum under the provisions of Part 4 of the 2006 Act there would be two significant differences:

i. The democratically elected representatives of the people of Wales would be able to pass legislation based purely on obtaining a majority vote in the Welsh Assembly in those areas of competence which have been devolved, in the same way as in Scotland and Northern Ireland. Democratic accountability and transparency will then have been restored.
ii. The procedure would be much more efficient and streamlined than the current situation, would involve a lower cost, fewer resources, result in less friction between London and Cardiff, and would be less subject to party political differences in Westminster not reflected in Wales.

d. There are suggestions that the Welsh Assembly does not have the resources to pass primary legislation in this way. It seems highly likely that it requires far more resources, almost certainly deployed to less effect, under the current dispensation than it would need after a successful referendum.

e. There have been reports that the AWC would like to see suggestions of primary legislation for Wales. If true this is unfortunate since it indicates that the AWC is misguided in its approach. Although the Scottish Parliament has made good use of its law making powers, and doubtless the AWC will have informed itself about the Scottish system and legislation passed to date, that is not the issue here. The 2006 Act contemplates both pre and post referendum that the Welsh Assembly should have primary law making powers for its areas of competence. This issue is not in dispute. The only question here is how the Welsh Assembly can acquire those law making powers, through gradual piecemeal permission of the UK Parliament or through a referendum, and whether it should be uniquely disadvantaged compared to Scotland and Northern Ireland until such a referendum takes place.


Conclusion

The current procedure through which the Welsh Assembly acquires its primary law making powers is unfit for purpose and has been rejected for the other devolved institutions. It is based on political expediency rather than principle and is likely to lead to significant political and legal tensions in the future. The current procedure is also costly and time consuming, and requires input from a variety of individuals and institutions who will not be responsible or democratically accountable for the legislation ultimately passed, nor will they be accountable to the Welsh electorate if the legislative process is frustrated. The current procedure therefore flouts the most basic tenets of democratic accountability. The AWC must ensure that these issues are appropriately highlighted in its consultation with the Welsh public. The AWC should seek to make plain to all those it consults that what is at issue here is not really whether the Welsh Assembly receives new ‘powers’, but that it receives the power to carry out the responsibilities it already has in the same way as the other devolved institutions. Unless the AWC makes these points clearly and consistently in its consultations it will not be properly able to assess the level of public support for primary law making powers, nor to analyse effectively the views expressed.


Summary

1. The current procedure for obtaining law making powers for the Welsh Assembly within its area of competence is undemocratic, expensive, time–consuming and is likely to lead to friction between Cardiff and London due to lack of clarity.
2. Wales is uniquely disadvantaged compared to Scotland and Northern Ireland. The current approach was totally rejected by the Labour Government as an appropriate way to legislate for Scotland, why is it appropriate for Wales?
3. The 2006 Act already accepts that the Welsh Assembly is entitled to have primary law making powers, the only issue is whether it should receive these piecemeal with the agreement of the UK parliament over a period of time or acquire the right to legislate through a referendum.


January 2009