BGW2 EV17

Paper to the Assembly Committee on The Better Governance for Wales White Paper by Ieuan Wyn Jones AM Group Leader Plaid Cymru-The Party of Wales in the National Assembly

Introduction

The White Paper stage 2 proposals for enhanced legislative powers (the use of Orders in Council) fall substantially short of what my party called for in our evidence to the Richard Commission, namely the creation of a Parliament with primary law making powers, limited powers to vary taxes, and an extension of the fields of competence. Whilst the stage 3 proposals envisage primary powers after a referendum, it is clear that the UK government does not see this as an option to be considered for a number of years. The thrust of my comments in the first part of this paper will therefore be a critique of stage 2. It is hardly necessary to repeat the arguments as to why the new constitutional settlement proposed by us would be a vast improvement on the current settlement. These were well rehearsed and, in the main recognised by the Richard Commission itself. However, it may be opportune to remind ourselves that the main advantages are clarity, in that the Assembly’s functions would be based on discrete policy areas rather than on what might be contained within pieces of legislation, and the ability through greater autonomy to move from policy development to legislation without seeking the consent of the Secretary of State for new laws or fighting for legislative time at Westminster. It would also in our view raise the status of the Assembly as improve its standing as a body which 'could get things done’ in the eyes of the electorate.

The Legislative Proposals

The White Paper stage 2 proposals are a sort of half-way house between the current settlement and primary powers, but contain some major defects and drawbacks. I acknowledge that a novel approach to legislation is proposed through the use of Orders in Council to circumvent the legislative logjam at Westminster. However it is not clear how the Secretary of State would exercise his powers of veto over the proposed legislation, and the extent to which both Houses of Parliament would react to a piece of legislation which they objected to on policy grounds or with which they had philosophical differences. I will deal with these issues later. It seems to me that this half way house approach is born not of a desire to find a settled constitutional arrangement, but rather as in the case of the original Government of Wales Act, it represents political expediency. In our evidence to the Richard Commission, we referred to the fact that the proposals which became enshrined in the Scotland Act had been subjected to rigorous appraisal before reaching a broad cross-party consensus in a National Convention. Had such a Convention been set up in Wales prior to the 1998 legislation, or immediately following the Richard Commission many of the shortcomings of the current settlement or the proposed amendment to it could have been overcome. Although the plan to use Orders in Council is an 'enhancement’ of the Assembly’s current legislative powers, they do not deal explicitly with one of the main drawbacks of the current settlement, namely the lack of clarity in the Assembly’s areas of responsibility. The White Paper refers to this in para 3.5 when it describes the existing powers as being 'too fragmented’. Yet the enhancement provisions do not deal effectively with this problem, in that the kind of new legislation envisaged (paras 3.9-3.13) are similar to those which have been secured through the present arrangements. The only difference appears to be in that the new procedure adopts a simpler and quicker method of legislating and possibly a more liberal approach to the drafting legislation to give the Assembly greater scope. The White Paper proposals include a limiting provision in para 3.17 which prevents the Assembly from being given the powers to legislate in whole fields of competence. This is a major drawback in that the Assembly would have to seek Orders in Council for every legislative proposal within the field. If this limitation were removed, it would begin to address, but not entirely eliminate the fragmented nature of the Assembly’s powers. The proposed Orders in Council will need the prior consent of the Secretary of State and be subjected to the Affirmative Resolution in both Houses of Parliament. In addition, it is envisaged that the Orders would need to be considered (presumably a form of prior scrutiny) by parliamentary committees or a joint committee of both Houses prior to the Affirmative Resolution debate. The Order would also be subjected to considerable scrutiny in the Assembly as well. The introduction of a double Westminster veto, and the kind of pre-legislative scrutiny envisaged would mean that it would take a considerable period of time before policy initiatives were enacted. The White Paper (para 3.33) envisages greater use of joint Assembly/Parliamentary Committees to scrutinise legislation. I have considerable doubts about the practicality of this proposal given the additional legislative responsibilities of Assembly Members and our current limited numbers. It could also operate in practice as a brake on the Assembly’s freedom to innovate and be flexible. One could make a reasonable case in support of the Order in Council procedure where governments of the same political party are elected in Cardiff and London. However, where there are governments of different political parties or coalition in one place and a majority government in another, the advantages become less clear. The procedure has so many checks in place that one could easily envisage a Westminster government, if it chose, using delay and prevarication to frustrate the programme of an elected Assembly government. That situation could of course lead to endless constitutional wrangling, and call into question the value of the mandate secured by an incoming Assembly government. I am working on the assumption that in the run up to the 2007 Assembly election all parties will be preparing manifestos which will contain a number of pledges that could only be implemented through legislation. If one takes para 3.20 at face value, then an incoming government might take the view that a Secretary of State would be prepared to give his consent to the vast majority. Nevertheless, there are many ways in which a Secretary of State, whilst not appearing to be outwardly hostile to a particular proposal could make it extremely difficult for it to be enacted. He could, for example, call for extensive 'consultation’ before a request is approved, and even after approval, there could be considerable delays in securing 'parliamentary time’ for pre legislative scrutiny by a joint committee. The opportunities for prevarication and delay are there aplenty. In short therefore, the White Paper, in its stage 2 proposals for enhanced legislative powers fails to address the lack of clarity issues in the current settlement, and whilst the Order in Council procedure is undoubtedly an advance on the current position, it could well lead to conflict between governments of different parties. Such a constitutional stand-off would demonstrate that such a settlement would be unstable and could only be a temporary hiatus until full primary powers are granted albeit subject to a referendum. I am tempted to conclude that the White paper proposals in this area have been framed on the basis that Labour remains in power in London and Cardiff well beyond 2007 and 2009. No such political certainty exists. The stage 3 proposals, i.e. full primary powers can only happen following a yes vote in a referendum. My party accepts that a referendum is a political necessity. But the trigger to move to a referendum is a two-thirds majority in favour in the Assembly and a simple majority in Westminster. The First Minister seems to accept that such a requirement has no constitutional precedent. In our view, a simple majority in the Assembly is all that is required as a trigger. Surely, a government elected in the Assembly on the promise to hold a referendum is entitled to give effect to its promise.

Ending the Corporate Body

The proposals to end the corporate body status of the Assembly carry a number of substantial benefits. It enables the Assembly to have a distinct and separate parliamentary service, and its staff would no longer be civil servants. It clarifies the role of the executive and legislature, although I believe that the continuing use of 'Welsh Assembly Government’ rather perpetuates the current confusion in the mind of the public. I still receive letters addressed to me as a member of the 'WAG’ even from organisations who should know better. My preference is for the adoption of the term 'Welsh Executive’. The proposals strengthen the role of Assembly Members in scrutinising Ministers. When Ministers are no longer automatic members of committees it is easier to adopt a collegiate approach to scrutiny, something that has been missing to date. Nevertheless, the benefits from separation come at a significant cost. A major weapon available to the opposition, namely the withdrawal of the First Minister’s delegated authority will have been sacrificed. Whilst this weapon would only ever be contemplated in exceptional circumstances-no such attempt has been made to date-it could serve as an useful 'backstop’ when a government simply refused to listen to the will of the Assembly on an important issue. In addition, the role of Assembly Members in the introduction of subordinate legislation is being reduced, with Ministers acting as pre-devolution Secretaries of State. Whilst there is a case for this in a body with primary powers, the case is less clear cut in with the current stage 2 proposals. I agree with the proposal that the Assembly itself should determine the number of committees it wishes to set up. Given the enhanced legislative programme envisaged, and the need for extensive scrutiny of such legislation, the workload of individual Assembly Members will increase substantially. It is doubtful that such scrutiny would be effective with a large number of committees. I would suggest (and this is a personal view) that some committees would need to embrace more subject areas than the rather prescriptive approach which pertains at present. Not only would there be fewer committees but it would also lead to more collaboration across policy areas and a better crosscutting approach. There are many approaches to grouping policy areas, but I believe that we could cut the number of scrutiny committees to four or five. It seems to me that the only subject area which would need a dedicated committee is Health and Social Services.

Standing Orders

I cannot understand the requirement that the Secretary of State should hold the responsibility for agreeing the Assembly’s new Standing Orders. Assembly Members, with their experience of the workings of the existing arrangements, and a clear appreciation of the practical drawbacks of many of the current SOs are best placed to undertake this task.

Electoral Issues

I do not intend to dwell on the proposal that candidates cannot stand for election both in constituencies and on the regional lists, save to say that it should be quietly dropped.