Wales and Whitehall - Welsh Affairs Committee Contents


3  Whitehall responsibility for devolution

42. Since the advent of the devolution settlements, overall responsibility for devolution strategy has moved between a number of departments. It initially rested with the Cabinet Office, moving to the Office of the Deputy Prime Minister in 2002. In June 2003, the then Prime Minister announced a number of machinery of government changes. A new Department for Constitutional Affairs was formed by the merger of the Wales Office, the Scotland Office and the Lord Chancellor's Department.[50] The resources and other assets of the Wales Office transferred to the new department, although accountability remained with the Secretary of State for Wales. Responsibility for devolution strategy was also transferred. In May 2007, following further machinery of government changes, the Department of Constitutional Affairs became the Ministry of Justice.

43. Dr Jim Gallagher, appointed as Director General of Devolution in September 2007, indicated that there were three aspects to the work of central government in relation to Wales post-devolution:

—  first, to ensure that the interests of Wales were represented within the UK Government;

—  second, the co-ordination of government business and the management of the relationship with the devolved institution; and

—  third, responsibility for devolution policy and strategy.[51]

These functions are now spread across three institutions: the Wales Office, the Cabinet Office and the Ministry of Justice. Dr Gallagher commented that: "This allocation of responsibilities I would freely admit is something which is historically contingent: it has grown up like that".[52]

The Ministry of Justice

44. The Ministry of Justice is the lead department within the UK Government on constitutional matters. Devolution within the Ministry forms part of the Departmental Strategic Objective of "strengthening democracy, rights and responsibilities".[53] The Secretary of State for Wales described the Ministry of Justice's role as having:

    … responsibility for devolution strategy […] able to consider the overall position of Wales within the constitutional framework of the United Kingdom.[54]

The Secretary of State for Justice provides an overview of Government's handling of devolution.[55]

45. Alan Trench of the Constitution Unit at University College London stated that the Ministry of Justice's role had been "beefed-up" in 2007:

    … to try and take a more synoptic overall view of devolution […] It was directly in response to the election of the SNP Government in Scotland and the political challenge that seemed to represent. There has been a huge amount of initiative that has focussed on Scotland; and, as far as I can make out, that has been the main focus of the Ministry of Justice's concerns since then as well.[56]

46. During this period, the post of Director-General for Devolution Strategy was established. Although some witnesses welcomed the role, we have found it difficult to see what value the post has added. Dr Gallagher described his role as "essentially a Civil Service line management post for the territorial offices, including the Wales Office".[57] He described his regular meetings with opposite numbers in the Cabinet Office, the territorial offices and colleagues from the Treasury Office to ensure that devolution issues were recognised across government, but acknowledged that there was "no guarantee we spot them all every week".[58] He explained that there were two full time staff in the Ministry of Justice dealing with devolution policy, neither of whom were wholly allocated to Wales.

47. Alan Trench criticised the current role of the Ministry of Justice, saying it: "simply does not have the resources or the weight to try and deal with the sorts of issues that a more general coordination would call for".[59]

LEGAL SERVICES COMMISSION

48. We have previously criticised the Ministry of Justice for not fully understanding the devolution arrangement. In May 2009, we published a report on the Legal Services Commission, criticising its proposal to reduce the operation of the Commissions' Cardiff office, with functions being transferred to process centres in England. Our report concluded that:

    The Legal Services Commission failed to include the Wales Office in any form of consultation regarding the proposed changes to its Cardiff office. This is unacceptable and betrays a poor understanding of the devolution settlement on the part of the Commission.[60]

49. We also noted that:

    This is not the first time that the Ministry of Justice (or in this case one of its agencies) has demonstrated a surprising lack of awareness about the devolution settlement and the protocols which are in place in relation to legislation, and, as the Department has overarching constitutional responsibilities, we find this disturbing.[61]

We recommended that "the Ministry of Justice undertake a review of the protocols in relation to the devolution settlement and its observation throughout government"[62] and that "no change to the function of the Cardiff office should be implemented until thorough consultation has taken place to determine its likely impact of levels of service".[63]

50. The Government's response and a letter from Lord Bach, the Parliamentary Under-Secretary of State at the Ministry of Justice were received on 23 June 2009. The Government response noted that:

    More care could have been taken by the LSC in considering who to consult during the decision making process and lessons will be learned from this. The LSC acknowledges that it failed to include the Wales Office in any form of consultation, and also apologises for this.[64]

51. As part of this inquiry, we revisited the case of the Legal Services Commission. Both written and oral evidence from the Legal Services Commission referred to greater levels of "engagement, consultation and liaison with stakeholders"[65] and regular meetings with the Welsh Assembly Government and Wales Office. We welcome the new level of engagement taking place between the Legal Services Commission, the Welsh Assembly Government and the Wales Office. However, we would note that this new level of engagement seems to be a direct result of our intervention in this matter, and had the matter not been raised, it is unlikely that such engagement would have been forthcoming.

52. We were keen to hear further about the Legal Services Commission's restructuring plans. The letter from Lord Bach received on 23 June 2009 noted that:

    The LSC has postponed the planned removal of processing work from the Cardiff Office from 2009-10 to 2010-11. This will enable sufficient time for them to conduct further discussions with the Wales Office and the Welsh Assembly Government, to fully explain the proposals and ensure that appropriate measures are in place to maintain the quality of service for Welsh clients and providers.[66]

53. Written evidence from the Legal Services Commission received in January 2010 stated that plans to restructure the organisation had been delayed due to a number of factors, including the redefinition of IT proposals, additional procedures in the process for securing funding from the Ministry of Justice, additional work volumes, further budgetary challenges and external reviews, including the Magee Review.[67]

54. In oral evidence, Mr Phil Lambert, Executive Director of Business Support from the Legal Services Commission, confirmed that the Legal Services Commission is "in a holding pattern"[68] and that "No decisions have been made and therefore it is pretty much business as usual as we speak for the Cardiff office".[69] When pressed, Mr Lambert stated that "our earlier plans in terms of the numbers that automation will take out of our business" were "still on course but [...] further down the line"[70] with the number of clerical positions to be lost estimated at 15.

55. Concerns were raised regarding the Legal Services Commission's understanding of issues relevant to Wales by the Law Society and the Legal Services Commission Trade Unions. The latter stated in written evidence that "although the LSC have not provided any indication as to when they plan to re-announce redundancies in the Cardiff office, it seems clear that they are still planning to remove all 'business delivery' work from the Cardiff office some time after April this year [2010]".[71]

56. We are convinced that the people of Wales—and the wider interests of the people of England and Wales—would be best served by a Legal Services Commission office in Wales, particularly now that there is a growing body of distinct Welsh legislation. We await clearer answers from the Legal Services Commission on their future proposals, which must meet our concerns and the concerns of the legal community and wider civil society in Wales. The office could take on work generated in England if the Welsh case load was not thought high enough.

57. Finally, we asked Mr Lambert about the lessons learnt by the Legal Services Commission and any thoughts on the awareness of devolution in government departments in general. Mr Lambert acknowledged that lessons were learnt not just in the Legal Services Commission "but also in MoJ as well. There was an element of confusion around what a non-departmental public body could do. We were autonomous; we made our decisions; we told people, and away we went".[72] The Secretary of State for Wales stated that "It is a good example of a failure—I would hold up my hands to that, and we need to learn from it. The Commission has learnt from it, the MoJ has certainly learnt from it and all these glitches that occur from time to time are points of improving the situation".[73]

58. The case of the Legal Services Commission serves as a timely reminder for all government departments and arm's length bodies that awareness of the devolution settlement is an element of their work that must not be neglected.

Cabinet Office

59. The Cabinet Office has "responsibility for co-ordination of policy […] it […] sits at the centre of Government, co-ordinating policy and getting clearance for cross-departmental policy agreements".[74] Sir Gus O'Donnell KCB, Cabinet Secretary and Head of the Home Civil Service, described the Cabinet's Office role as a "brokering role," not only between Whitehall departments but between the devolved administrations on devolved and non-devolved issues.[75]

60. Gus O'Donnell agreed that the Cabinet Office's role was a "developing process".[76] He used the example of the establishment of the National Economic Council in 2008 to provide a new approach to co-ordinating economic policies across Government:

    It was an issue where we were trying to bring in devolved authorities in an area where they may not have been involved previously. That worked quite well. We learned from each other the different approaches to those particular programmes for helping business during a recession.[77]

Wales Office

61. The Wales Office is "responsible for maintaining the relationship between UK Government and the Welsh Assembly Government and addressing policy issues that have an implication for Wales".[78] In its written evidence, the Wales Office stated that it did not "just play a reactive role, but [...] is a proactive negotiator, facilitator and broker".[79] Witnesses welcomed this role, Carwyn Jones AM commenting that the "Wales Office is crucial in terms of its ability to talk to other Whitehall departments".[80]

62. While recognising the role played by the Wales Office, witnesses agreed that this could not replace direct bilateral relations between the Welsh Assembly Government and Whitehall departments. Rhodri Morgan AM stated:

    ... you cannot say, 'The Wales Office will do this all for you', because otherwise the only awareness that Whitehall departments have of what is going on in Wales is the Wales Office's awareness of it, and really you have to use the Wales Office as a channel, but you also have to have direct access to the Department for Transport or the Department for Environment, Food and Rural Affairs, or whatever it might be. You have to use both. You cannot have a monopoly on communications between us and Whitehall and Westminster being via the Wales Office, that will not work.[81]

Carwyn Jones AM agreed, noting that "It is essential that we have direct contact [...] with Whitehall departments, but quite often the Wales Office adds that extra support to a point that we might make to a Whitehall department".[82]

63. The Government of Wales Act 2006 gave the Wales Office and the Secretary of State for Wales a specific role in "piloting" Legislative Competence Orders through Parliament and in checking, through representation on the Ministerial Committee on Legislation, that any "outstanding issues with the Welsh Assembly Government regarding the Welsh content of Parliamentary Bills or draft Bills are resolved before introduction or publication".[83] Carwyn Jones commented on its importance in this role:

    The Wales Office is absolutely essential, given the current settlement. It is very difficult to see how Legislative Competence Orders could be progressed without the Wales Office being there to take the Legislative Competence Orders through Parliament, it is difficult to see what other mechanism might exist that would have the same kind of drive [...] so the situation we have at the moment where we have Legislative Competence Orders does very much require the existence of both the Wales Office and the position of Secretary of State for Wales in order to ensure that LCOs have a smooth and timely passage through Parliament.[84]

We agree, although the focus of the Wales Office should be to speed up the processes in Whitehall as Parliament has dealt expeditiously with each proposal presented to it.

64. Alan Trench questioned the influence the Wales Office could have, given the size of the Office in relation to Whitehall departments:

    With the best will in the world a free-standing Wales Office is a small and not high-ranking department in Whitehall. It is therefore inevitable that this structure will lead to Welsh devolution remaining at best a secondary consideration in Whitehall.[85]

The Secretary of State for Wales disagreed, and said that:

    The Wales Office is a midget in Whitehall terms but it is a pretty feisty, powerful midget in batting for Wales [...] we are always fighting Wales' corner and that is true for all our officials.[86]

65. Sir Jon Shortridge, former Permanent Secretary of the Welsh Assembly Government stated that he had "always seen the Wales Office as having a temporary role",[87] although this was not a view shared by the majority of our witnesses. He argued that while a strong Welsh presence had been important in the early years of the devolution settlement, it would not be the case in the future:

    I do think that, as the settlement matures, the need for the Wales Office diminishes, with this one exception about Legislative Competence Orders where they have a big role. If the process around Legislative Competence Orders is maintained [...] then I can see that there is a role for the Wales Office around those; but then there may be a referendum in years to come and at that point if the Assembly were able to get full primary legislative powers, the Wales Office's role in relation to LCOs by definition would fall away.[88]

66. In describing his role, the Secretary of State explained that:

    My primary duty is to support the Welsh Assembly Government in making sure that objectives which it sets and the Assembly wants to achieve are supported in Whitehall. That is my main responsibility in respect of the Welsh Assembly Government; it is not my job as Secretary of State to second guess the Welsh Assembly Government.[89]

However, Alan Trench identified the future danger of the politicisation of the role of the Secretary of State, and the Wales Office if there were governments of different political hues in Wales and Whitehall, and compared it to the current situation with the Scotland Office:

    Since 2007, and particularly since 2008, the Scotland Office has become increasingly politically active and assertive, taking on more emphatically the role of the voice of the UK Government in Scotland. Its work has come to be seen as increasingly party-political, and therefore as involving opposition to the present Scottish Government [...] It is seen by the Scottish Government as being a political adversary, and so not only Scotland Office ministers but the officials working for them are trusted very much less [...] It would be seriously destabilising constitutionally, and cause serious damage to the working of devolution and so the delivery of public services, if the work of the Wales Office were to be compromised in a similar way.[90]

A missing centre?

67. Alan Trench argued that there was "an absence of any 'strong centre' relating to devolution within UK Government".[91] He described the current arrangements for the co-ordination of government business relating to devolution as a "fragmentation of responsibilities"[92] between the Ministry of Justice, the Cabinet Office and the Wales Office:

    The lack of any one office within government with responsibility for devolution overall is, in my view, a serious deficiency in how the UK Government deals with devolution.[93]

68. Dame Gillian Morgan, Permanent Secretary to the Welsh Assembly Government, highlighted the three types of relationships that the Welsh Assembly Government had with Whitehall due to this fragmentation:

    There is a big constitutional issue which is where does devolution go, which is the type of debate we should have with the Ministry of Justice. There is the nitty-gritty debate we have on a day-to-day basis with the Wales Office and individual departments and then there is a strategic co-ordination role sitting in the middle which is no different really from devolution in pulling together what happens between DEFRA and DECC in terms of the different perspectives around energy policy or animals.[94]

69. The Secretary of State for Wales defended the current settlement, stating that the different roles of the departments worked well together with the "MoJ focusing on the strategy of devolution and the Cabinet Office focusing on the co-ordination, almost day-to-day and certainly week-to-week, of policy development".[95]

70. Many witnesses argued that a lack of a single office prevented the UK from taking a co-ordinated view of devolution, with Rhodri Morgan AM commenting that there was a danger of Wales becoming the "hypotenuse in a Bermuda Triangle" between the different departments in Whitehall. [96] The Welsh Assembly Government stated that:

    … somewhere in between general constitutional policy and inter-governmental relations there should be a focus within Government for its policy on devolution. The means of ensuring that […] issues are considered in the round is not transparent.[97]

71. Dr Jim Gallagher admitted that there were alternative ways of organising devolution across government "which would be potentially at least as good, or even potentially perhaps better, than what we have got".[98]

72. Sir Jon Shortridge stated that he felt that the focus of devolution within the UK Government should sit in the Cabinet Office.[99] Alan Trench also considered that the Cabinet Office could be the strong centre of devolution in government. Although he had some initial reservations about the Cabinet Office as a policy centre, rather than its current role as process management and co-ordination, he saw the possibility of a devolution secretariat, similar to the current European secretariat.[100]

SINGLE CONSTITUTIONAL MINISTER

73. In 2003, in its report Devolution: Inter-Institutional Relations in the United Kingdom, the Lords Constitutional Committee recommended that a single 'department of devolution,' or 'department of the nations and regions' be established.[101] This would combine the Scotland and Wales Offices and relevant parts of the Ministry of Justice and Cabinet Office. Alan Trench felt that this would allow a "broader, more synoptic view of devolution as a whole to be taken at UK level, while maintaining (and even developing) the expertise on the specific settlements that exists within the Wales and Scotland Offices by incorporating them within the new department".[102] He also believed that as a department with a larger remit "it would be more likely to carry the necessary weight within government and around the UK Cabinet table".[103]

74. Carwyn Jones AM recognised that this development was a possibility as the "role of the Wales Office would change significantly if the Assembly had primary powers because, of course, there would then be no need to take forward the Legislative Competence Order process, and much of the work that the Wales Office does now would not need to be done".[104]

75. The Secretary of State for Wales commented:

    There would still be a need for a Wales Office, whether it is sited within the MoJ or sited elsewhere. There will always be a Wales Office, even if there were to be an activation of the Part 4 powers in the 2006 Act after a successful referendum.[105]

Sir Jon Shortridge recognised the need to ensure that there was a minister to represent Wales in addition to the devolved administrations "so that their voice is heard within government".[106] Carwyn Jones AM also commented on the importance of ensuring that Wales's interests were represented in Whitehall "when it came to the financial settlement and in terms potentially of non-devolved areas".[107]

76. In the period since the devolution settlements of 1999, departmental responsibility for devolution strategy and policy has moved around between different departments. It has involved the Cabinet Office, 10 Downing Street, the Ministry of Justice, the former Department of Constitutional Affairs, the former Office of the Deputy Prime Minister, the Wales Office and the Ministry of Justice. This development has been historically contingent and has taken place in a haphazard fashion.

77. There is an absence of a strong centre in relation to devolution within the UK Government. Currently the co-ordination of government business for Wales is shared between three departments—the Ministry of Justice, the Cabinet Office and the Wales Office. The lack of a single office prevents the UK from taking a co-ordinated view of devolution. An effective hub is needed in central government for it to manage effectively the devolution settlement. We considered the merits of locating the central responsibility for devolution within the Ministry of Justice because of the constitutional role of that department, but concluded that this was too removed from the centre for day-to-day co-ordination, and we were also unconvinced that the department has a strong understanding of the devolution settlement embedded in its ethos. We therefore believe that the role belongs to the Cabinet Office and we recommend that this should be recognised and developed and appropriate resources allocated for this purpose.

78. We recognise that there are arguments for a single Department of the Nations and Regions although we make no specific recommendation on this. As the devolution settlement matures, the role of the Secretary of State for Wales may decrease. This would certainly be the case if the outcome of a referendum on primary legislative powers for the National Assembly for Wales proved in favour of such powers. The Government of Wales Act 2006 gave the Secretary of State for Wales a role in legislating for Wales and any proposals under the current settlement would need to take this into consideration. However, Wales would still need a strong voice in Whitehall to represent its interests across a range of policy areas and any new arrangements should ensure that this includes Cabinet-level representation.

79. An implication of the establishment of a single Department of the Nations and Regions would be that the current three national scrutiny committees would be reduced to one. However we feel that arrangements will be required for the Government to account to Parliament in respect of matters affecting Wales, Scotland and Northern Ireland.


50   Q 116 Back

51   Q 113 Back

52   Q 113 Back

53   Ev 129 Back

54   Q 585 Back

55   Q 585 Back

56   Q 355 Back

57   Q 123 Back

58   Q 128 Back

59   Q 355 Back

60   Seventh Report from the Welsh Affairs Committee, Session 2008-09, Legal Services Commission Cardiff Office, HC 374, para 18 Back

61   HC (2008-09) 374, para 18 Back

62   HC (2008-09) 374, para 20 Back

63   HC (2008-09) 374, para 21 Back

64   Sixth Special Report from the Welsh Affairs Committee, Session 2008-09, Legal Services Commission Cardiff Office: Government Response to the Committee's Seventh Report of Session 2008-09, HC 825 Back

65   Q 529 Back

66   HC (2008-09) 825 Back

67   In October 2009 the Ministry of Justice announced a review of legal aid, to be conducted by Sir Ian Magee. Sir Ian will assess the delivery and governance arrangements of the legal aid system and make recommendations on how it can be improved. The report is expected to be delivered to the Government in early 2010. Back

68   Q 529 Back

69   Q 529 Back

70   Qq 532-3 Back

71   Ev 123 Back

72   Q 547 Back

73   Q 587 Back

74   Q 585 Back

75   Q 565 Back

76   Q 566 Back

77   Q 565 Back

78   Ev 129 Back

79   Ev 129 Back

80   Q 442 Back

81   Q 75 Back

82   Q 452 Back

83   Ev 146 Back

84   Q 450 Back

85   Ev 127 Back

86   Qq 599- 600 Back

87   Ev 125 Back

88   Q 32 Back

89   Q 608 Back

90   Ev 127 Back

91   Ev 127 Back

92   Ev 127 Back

93   Ev 127 Back

94   Q 511 Back

95   Q 585 Back

96   Q 80 Back

97   Ev 146 Back

98   Q 117 Back

99   Q 39 Back

100   Q 358 Back

101   Lords Constitution Committee, Second Report of Session 2002-03, Devolution: Inter-Institutional Relations in the United Kingdom, HL 28, para 68 Back

102   Ev 127 Back

103   Ev 127 Back

104   Q 493 Back

105   Q 622 Back

106   Q 51 Back

107   Q 493 Back


 
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