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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