How to submit VIEWS to the All Wales Convention

Dear All Wales Convention,

I welcome the establishment of the Convention and believe it will be a valuable exercise in communicating with the people of Wales the current settlement and the implications of a move to primary legislative powers.

I would like to express my views on the questions that the All-Wales Convention are putting to the people of Wales.

Are the current powers available to the National Assembly sufficient?

I believe that the current constitutional arrangement is too constraining to be completely effective. While some good has been achieved with the limited powers now at our disposal, in order to truly benefit Welsh people and promote real devolution, primary legislative powers need to be devolved to the National Assembly.

The main disadvantage of the current arrangement is bureaucracy. The current process in place for devolving primary legislative powers, the LCO system, is inefficient and complex, frustrating the Welsh Assembly Government’s ability to deliver for the people of Wales. This has been demonstrated recently by the deadlock over the “right to buy” order. As Housing is a devolved issue, how can it be right that a committee of Westminster MPs can block the implementation of policies that the Welsh Assembly Government was democratically elected to pursue?

Is it the right time for Wales to take the next step towards full law making powers?

Yes, Wales needs these powers as soon as possible.

The key to democracy is accountability. The muddle of responsibility between Wales and London means that the lines of accountability are lost, leaving the electorate confused and frustrated with the system. In order to move forward, we must clarify the role of both Parliament and the National Assembly so that it is easy to understand. The public should know who to hold to account, how their democracy is run and how and who to appeal to. A successful referendum would be an important step in clarifying this confusing situation.

I believe the referendum should be held before the 2011 Elections to the National Assembly for Wales. I believe that this referendum can and will be won if the process is explained clearly and the changes to the current system are represented honestly.

The achievements of the Welsh Assembly Government have been done in spite of the constitutional arrangements, and it is high time that we moved out of the nonsensical half-way-house we now occupy. For people, such as myself, who care about health, education, housing and ensuring a sustainable future, the move to primary powers is of vital importance. How can the National Assembly deliver for the people of Wales with one hand tied behind its back?

I want further powers for the Welsh Assembly to be devolved as soon as possible and I hope that the Convention will recommend that a referendum be held before the end of the current term.

Yours sincerely,

A Submission to the All Wales Convention

I welcome the opportunity to offer my views on the two questions the Convention has asked.


Are the current powers available to the National Assembly sufficient?

I think it is widely recognised by the majority of people in Wales that responsibility for the currently devolved areas is a good thing. It has enabled us to adopt policies which are more suited to the democratically expressed wishes of the people of Wales than a "one size fits all" UK wide approach would have allowed. However, in order to do that job the Assembly needs the ability to change or make new laws in these areas of devolved responsibility. Although the LCO process is a means by which the Assembly can acquire lawmaking powers, I believe that the process is flawed and, as such, will not prove robust enough to continue to do so when political circumstances change.

This is because the LCO system only capable of transferring competence to make laws with the agreement of all the parties involved, namely the Assembly, both Houses at Westminster and the Secretary of State for Wales. At present the same political party is in power in Westminster and Cardiff. Should future elections result in differing political parties being in power, it seems highly likely that the LCO process would be thwarted. This would be a disaster for democracy.

When the 2006 GoW Act was passed, the principle of Westminster's involvement was that it should exercise joint scrutiny with the Assembly. However scrutiny is not the same thing as a veto. The process of scrutiny, as exercised by various committees in Westminster, is to improve proposed legislation. These committees make recommendations, but ultimately their recommendations can be overruled. However, what we have clearly seen over the past year is the Welsh Affairs Committee using the process of scrutiny as a means of vetoing a proposed policy. I believe that this was not the intention of the Act, and amounts to Westminster misusing its powers. It was never the intention that Westminster should approve or disapprove the specific details of policy involved in any proposed legislation, but instead to consider the more general issue of whether the Assembly should have the competence to legislate (in either one way or another, both immediately and in the future) in that particular area.

Another weakness is the sheer bureaucracy of the LCO system. It is a model of over-intricacy that can only be described as Byzantine. If we judge it against the criteria of openness, simplicity and value for money it fails on all three. It is not a model for good governance.


Is it the right time for Wales to take the next step towards full lawmaking powers?

Yes. For the reasons given above I believe it is time to for Wales to take the next step. However, I find the wording of the AWC's question a little disconcerting. The next step is not to for the Assembly to gain "full" lawmaking powers, but the very much smaller step of it gaining primary lawmaking powers in a limited range of areas. I believe the time is right to move on for the following reasons:

• There is no issue of principle about what should be devolved to Wales

The 20 areas or "subjects" on which the Assembly would have power to legislate are set out in Schedule 7 of the GoW Act, together with fully detailed exceptions. Obviously this list was "hammered out", but nonetheless it is a firm agreement as to what the Assembly can legislate on and, conversely, what it cannot. It seems pointless (a waste of time, effort and money) to go through the LCO process dozens of times when a list of subjects on which the Assembly can legislate has already been agreed.

• The Assembly has shown itself fully capable of scrutinizing proposed legislation

It is understandable that would have been some concern over the Assembly's ability to scrutinize, and this is what led to the current joint scrutiny arrangement for LCOs. However I believe that the Assembly has risen to show itself entirely capable of doing the job of scrutiny. In fact there are some ways in which Assembly's form of scrutiny, with greater openness and transparency through scrutiny in plenary session as well as in committee, and especially through commissioning surveys of public opinion, is an improvement on the traditional Westminster model.

• Limited primary lawmaking powers would lessen the asymmetry of devolution in the UK by making the situation in Wales closer to that in Scotland

Although devolution in Wales and Scotland is overwhelmingly thought of as a good thing (only a very small minority in either country would want to reverse it, according to opinion polls) the unequal nature of devolution has proved a source of resentment, not least in England. For any who are concerned with preserving the UK, the need for fair and equitable devolution arrangements is paramount, so any move that makes the Welsh settlement more equal to that in Scotland should be welcomed.


In my opinion the crucial issue is timing. The process by which a referendum will be triggered depends on four factors: the Assembly, the Westminster Parliament, the Secretary of State for Wales and, most importantly, the Welsh people.

I have little doubt that there it would get the required two-thirds majority in the Assembly. Two parties (Plaid Cymru and the Lib Dems) are unequivocally in favour, and one party (Labour) has agreed to support it as part of the One Wales programme of government. So even if there were to be a few rebels, the two-thirds would easily be achieved.

Nor do I have any doubt over the outcome of a referendum when the politicians finally agree to give the people of Wales the chance to vote. Although there have been comparatively few polls, those that have been conducted all show more support for "more powers" for the Assembly than against. In fact some of them even show support for more powers than the Assembly would get after this referendum; for example tax raising powers, or having the same powers as the Scottish Parliament. The polls also show that a very substantial majority believe that the Assembly should have more influence over their lives than Westminster.

The crucial factor is Westminster. It is highly unlikely that a Conservative Government would pass such legislation since they have not made any statement indicating they would, even though their Roberts Review gave them the opportunity to make their position clear. Therefore the only realistic hope of getting the referendum through Westminster is while there is a Labour majority (and therefore also a Labour Secretary of State). Of course the timing of a Westminster election is not fixed, but it seems safe to assume that Labour will remain in power until at least May 2010 since, if they call an election before then, it will only be if they think they will win it.

Thus the only safe way of getting the referendum through its Westminster stages is to do it before May 2010. If we do not take this opportunity now, we will have lost it for probably another five or ten years. The AWC has indicated that it will report late in 2009, so a "Yes" recommendation given then will allow the referendum to be approved by both Cardiff and Westminster within that six month window.

As for the date of the referendum itself, there would need to be a proper interval for the "Yes" and "No" campaigns to set themselves up and engage with the public. Therefore a referendum either late in 2010 or early in 2011 would seem entirely appropriate.

Finally, I see no reason why the referendum should not be held on the same day as the Assembly elections in 2011. In fact I think there are many good reasons for holding it then, not least because it will tend to maximize turnout and thus be more representative of public opinion. I do not accept that holding different types of vote on the same day is in any way undemocratic or likely to confuse the minds of voters. It is common practice in many countries, and has been done before in the UK. In fact, because of the relatively small amount of coverage Welsh politics receives in the newspapers and broadcast media, holding the two votes on the same day is likely to increase understanding of the issues involved because, in this case, the issues are inextricably linked.

MH
December 2008

I would like to express my views on the questions that the All-Wales Convention has put to the people of Wales.

Are the current powers available to the National Assembly sufficient?

Not entirely. The widely held belief is that the Assembly has the powers to make legislation in areas of devolved responsibility such as Health, Education and Housing. But in reality the Assembly only has those powers if it can persuade MPs and the Secretary of State for Wales to grant it permission to legislate on a case by case basis. This split responsibility damages the political process because most people believe the AMs they elect are ultimately responsible for the way these key areas are run, when in fact MPs in Westminster can prevent them running these services in the way they were elected to do.

Moreover the process by which law-making powers can currently be passed to the Assembly is cumbersome, expensive and has not worked as well as anticipated. As evidence of this, about a dozen LCOs were proposed in the first year of this Assembly term but only one managed to make its way through the system. The Wales Office then unilaterally announced that it could not deal with more than about four or five LCOs a year, meaning that it would take a whole Assembly term to pass what was originally thought of as a year's legislation. It is intolerable that the people of Wales should have to wait for morsels to be rationed out in this way. The whole system is like some Heath Robinson contraption to cut the top off a boiled egg: after hours of pedalling, lever pulling and cranking it finally achieves the desired result—one time in ten. Everyone celebrates and pats each other on the back. But using a knife or spoon would have produced the same result far more simply every time—and while the egg was still warm enough to eat!

Is it the right time for Wales to take the next step towards full law making powers?

Yes. For the reasons given above, I believe Wales needs to have a simpler and more straightforward means of legislating in areas for which it has devolved responsibility.

I would prefer that the Senedd had the same powers and responsibilities as the Scottish Parliament. I believe the people of Wales also support this idea, because polls over the last few years have consistently shown more people want a proper Parliament with tax setting powers than the status quo. However this is not what is on offer under GOWA 2006.

This brings me to my major concern. It is unfortunate that the debate on the issue still has people believing that a Yes vote in the referendum will actually give us more than is on offer, for example taxation powers. One of the prime tasks of the AWC must be to make it clear that what we will be asked to vote Yes or No to is not greater areas of devolved responsibility, but simply the ability to pass laws in the areas of responsibility the Assembly already has without having to seek permission on a case by case basis. If this were more clearly understood by the general public, the support for a Yes vote would be very much higher than the polls indicate.

In essence, a Yes vote in the referendum would give a black and white list of what the Assembly is responsible for (schedule 7). I believe it both necessary and desirable for us to be able to elect our AMs on the basis of clearly defined responsibilities, so that they can be held to account for their actions rather than be given the excuse of saying that Westminster prevented them from doing what they promised. We must elect AMs to do one job and MPs to do another, but at present we have a recipe for muddle and confusion which can only further alienate people from the democratic process.

For this reason I think it essential that the referendum is held either late in 2010 or early in 2011, so as to allow at least two months before the Assembly election in May 2011. This would give the political parties time to formulate manifestos based on what they are actually empowered to deliver.

Yours sincerely

Are the current powers available to the National Assembly sufficient?

In terms of detail, the constitutional situation of Wales is not easy to understand. But in contrast the principle of devolution is well understood: namely that the National Assembly, rather than the UK Parliament, should be responsible for key areas such as Health, Education, Housing and Transport. In the ten years in which we have had the Assembly, public acceptance of it has grown. Now only 15% would want to return to the situation we had before, and 49% (if we include the 10% who want independence) want the Assembly to advance to the situation where it not only has primary lawmaking powers, but also tax raising powers similar to those of the Scottish Parliament (1). Moreover 61% are of the opinion that the Assembly, rather than Westminster, should have most influence over people in Wales (2).

However the current constitutional settlement for Wales is lopsided. While it is undoubtedly true that the government formed from those we elect to the Assembly has responsibility for policy in the devolved areas, the Assembly does not have a corresponding ability to make laws in those same areas. This is a fundamental flaw, since the ability to legislate is one of the main tools that any government, anywhere in the world, should have at its disposal. At present our Assembly has responsibility without power.

This is very dangerous for democracy. The principle of democracy is that the politicians we elect should be accountable to us, and that there should be clearly defined areas of responsibility so that one set of politicians cannot hide behind or blame another set of politicians for failing to fulfill the commitments on which they were elected. It is intolerable to elect a government which wants to reform, say, Transport or the Health Service if they are then prevented by another set of politicians from legislating to bring about such reform.

We therefore need a single defined list of those areas in which the Assembly can legislate. Schedule 7 of the Government of Wales Act 2006 is that list, agreed with Westminster, and now only requiring endorsement by the people of Wales in a referendum.


Is it the right time for Wales to take the next step towards full law making powers?

When the GOWA was passed, there was every possibility that the intermediate way of gaining lawmaking powers on a case by case basis through LCOs might work. The Assembly would apply for an LCO, and the Westminster Parliament would grant it if it believed that the lawmaking power sought was commensurate with the Assembly's area of devolved responsibility.

In objective terms, the granting of an LCO could have been a comparatively simple process. Indeed, both the Assembly and Westminster thought it would be, as the intention to make about a dozen requests for the first year was announced in June 2007.

However the reality has proved to be very different. It has become increasingly clear that Westminster has no intention of passing LCOs within the timescale originally envisaged. Westminster has declared it will not process more than four or five a year, has effectively prevented the Assembly from releasing the wording of ELOs without them first being agreed with the Wales Office, and has now (in January) introduced the concept of a veto by the Secretary of State for Wales on proposed legislation, even once the LCO has been granted. This is completely alien to the GOWA.

In short, it is clear that the current administration in Westminster wants to use the LCO process as a way of slowing down, if not preventing altogether, the move towards giving the Assembly primary lawmaking powers. As exactly the same Government that passed the GOWA is still in power at Westminster, it is almost impossible to come to any conclusion other than that this was how they intended to LCO process to operate.

For that reason, as well as the overriding reason of principle, I think it has now become clear that we must ditch the LCO process and replace it with the single list of areas within which the Assembly can legislate, i.e. Schedule 7.

As the saying goes, if something ain't broke, don't fix it. But the corollary is that if something is broke, it needs to be fixed. The LCO process is not working ... in fact, it is almost unworkable. It is bureaucratic, time consuming and expensive. The people of Wales need to be given the opportunity of replacing it with a simpler defined list of areas in which the Assembly can legislate.

This needs to happen as soon as possible. I humbly submit to this Convention that it should recommend that the referendum on primary lawmaking powers be held at the earliest opportunity, either before or at the same time as the 2011 Assembly election.


Footnotes:

1. National Assembly Survey, Sept 2008: 10% Independence, 39% Parliament with full law making and tax raising powers, 31% Status quo, 15% Abolish the Assembly, 6% Don't know
http://www.assemblywales.org/newhome/new-news-third-assembly.htm?act=dis&id=97755&ds=9/2008

2. BBC Wales/ICM Poll, 28 Feb 2008: 61% Assembly, 22% Westminster, 11% Local Councils, 2% EU
http://news.bbc.co.uk/1/hi/wales/7269460.stm

Are the current powers available to the National Assembly sufficient?

No. I think it is unfair that Wales should have an Assembly without the ability to make laws on its own, while Scotland has a full Parliament with the ability to make laws.

We elect our Assembly Members to be responsible for running things like the Health Service and Education. They need to have the necessary tools with which to do that job, which include being able to pass laws within areas of devolved responsibility.

In my opinion the LCO system is a hopelessly convoluted system by which to gain the power to legislate. The Assembly is perfectly capable of deciding for itself whether legislation is appropriate, without having to ask permission from MPs in Westminster every time. We have elected them to do a job, and if we don't like the decisions they make we can get rid of them at the ballot box. It is to us, the voters of Wales, that our AMs are accountable, not to MPs at Westminster. Westminster should adopt a hands off approach to areas which have been devolved to Wales.


Is it the right time for Wales to take the next step towards full law making powers?

Yes. In my opinion the Assembly should have had full lawmaking powers at the outset. Failing that we should have had them as a result of what the Richard Commission recommended. Each time we were let down. We now have a third opportunity to gain full lawmaking powers by means of a referendum. Perhaps the previous disappointments were only to prove the truth of the saying, "Tri chynnig i Gymro" ... neu Gymraes!

In my opinion the Welsh public is now more ready than ever to endorse full lawmaking powers in a referendum. The polls certainly confirm a growing margin in favour of this. In June 2007 the margin was 3 percentage points, in February 2008 the margin was 7 percentage points (1). That margin can only continue to widen, especially because we have since then seen the LCO process virtually grind to a halt, and now descend into farce over the Right to Buy issue. Westminster also refused to allow us to introduce a law to ban smacking, even though there was a clear majority of AMs in favour of it.

If we believe in a democratic society, we must not be afraid of letting the people vote on the issue in a referendum. The parties we have elected to government in Wales have committed themselves to holding that referendum by 2011. That commitment must be honoured.


Footnote:

1. BBC, 28 Feb 2008
Feb 2008: 49% in favour, 42% against, 9% undecided
June 2007: 47% in favour, 44% against, 9% undecided
http://news.bbc.co.uk/1/hi/wales/7269460.stm