Memorandum submitted by Cymru Yfory - Tomorrow's Wales

 

 

Implementation of the Government of Wales Act 2006

 

1. This submission is made on behalf of Cymru Yfory - Tomorrow's Wales, an all-party and non-partisan group established following publication of the Richard Commission's report in 2004 and chaired by the Archbishop of Wales.

 

2. Cymru Yfory shares the concerns expressed by many academic and expert commentators about the workability of the procedures to confer legislative powers on the National Assembly for Wales by Part 3 the Government of Wales Act 2006. In this respect, it would draw the Committee's attention to the analysis of these problems made by Lord Richard in recent speeches in Cardiff in September and at the University of Glamorgan in November 2006. (We understand this speech will be reproduced in the next issue of the Institute of Welsh Affairs Agenda magazine.)

 

3. Cymru Yfory has two main concerns about the procedures to be put in place in Westminster to deal with orders in council. The first relates to the nature of those procedures. Cymru Yfory would emphasise to the committee the value of ensuring that any procedures put in place to deal are simple, clear and comprehensible to lay people. Welsh devolution is already bedevilled by a high degree of obscurity and complexity, which greatly complicates the work of civil society in understanding how Wales is now governed, and in participating in that process. The procedures adopted by the Committee can contribute significantly to making Welsh government and law-making accessible to and comprehensible by the public at large. Cymru Yfory therefore hopes that these procedures will be clear and comprehensible in themselves, and interact in a clear and comprehensible way with procedures adopted by the Secretary of State for Wales, the Welsh Assembly Government and the National Assembly. They should have the effect of ensuring, to the maximum degree possible, that it is possible for those outside government to understand who is responsible for taking policy decisions about any particular matter.

 

4. The second relates to the relative roles of the UK Parliament and the National Assembly in legislating for Wales regarding matters which are or may be devolved under Part 3 of the 2006 Act. Cymru Yfory is concerned about the extent to which Westminster consideration of orders in council may develop into discussion of Assembly or Assembly Government policy, and (if that happens) the implications of such discussion. It appears to Cymru Yfory that discussion of the policy of the National Assembly or the Welsh Assembly Government as part of the process of deciding whether to approve the conferral of legislative powers by an order in council would raise serious issues of constitutional principle and political practice. In particular, it would confuse accountability and responsibility for any particular policy between the National Assembly and Westminster. This may be attractive to some politicians, who can thereby seek to take credit for successful policies, but it may also mean that each set of politicians have to take the blame for unsuccessful policies, and for any policies blocked (about which it will be impossible to come to a judgement). The upshot would be that it would be all the harder for the public at large to understand which level of government was responsible for what, and whom they approach regarding a particular problem. Such an approach may also lead to increased intergovernmental friction, especially if governments of different political complexions in London and Cardiff have to deal with each other.

 

5. In the interests of clarity and transparency, it therefore appears best to Cymru Yfory if the two sets of deliberations are kept as separate as possible, and that consideration of orders in council at Westminster are directed toward the constitutional rather than policy issues involved.

 

6. One practical implication of this relates to the way in which committees at Westminster and in Cardiff Bay approach the pre-legislative scrutiny of orders in council. There have been suggestions of continuing the existing practice of joint sittings to scrutinise legislative proposals emanating from the Assembly or Assembly Government. However, a continuation of that practice will risk the sort of confusion of responsibility that concerns us. It would be better for such joint sittings to cease; if they continue, there will need to be careful consideration of the remit of members of each institution's committee and their respective roles. Such a careful approach would, of course, militate against the sort of free-wheeling open discussion that characterises such committee work at its best. This would be a regrettable loss, but better than the confusion that would otherwise result.

 

7. In any event, whatever approach is recommended by the Committee, that approach will need to apply to all proposals to confer legislative powers on the Assembly. It would be inappropriate for one form of scrutiny to apply to conferrals by orders in council, and another to apply to ones coming by other routes such as provisions in Westminster bills. The attention of the committee is drawn to clause 26 of the Further Education and Training bill, recently introduced into the House of Lords, which amends Schedule 5 of the 2006 Act and confers Measure-making powers on the Assembly in relation to vocational training and post-16 education. If this approach is used in future to confer powers on the Assembly, it should be subject to the same sort of scrutiny as orders in council conferring similar powers.

 

December 2006