BGW2 EV7

Evidence to the Committee on Scrutiny of the White Paper "Better Governance For Wales"

4th July 2005
Laura McAllister,
Professor of Governance, University of Liverpool and a Member of the Richard Commission

Introduction

It was with great interest that I - and, I think, all members of the Richard Commission - read last month’s White Paper. Sir Michael Wheeler-Booth and myself appear at this Scrutiny Committee as a double act. We have discussed the Paper’s contents in some depth and are of one mind in saying we commend progress towards a greater measure of devolution for Wales. However, we remain convinced that a more measured and sustainable blueprint for improvement is offered in the Richard Commission report, published last year. The Commission’s report has no discernible shelf life, for it contains a set of robust and thorough recommendations which will, we feel, act as the benchmark for future constitutional change. Therefore, as Sir Michael says in his paper, "two cheers" to progress (I might moderate that to a cautious "one and a half" cheers!).

I offer here an evaluation of the White Paper proposals, building on Sir Michael’s analysis, and focusing on my areas of interest in the hope of adding value to this Committee’s deliberations.

Clearly, there can be no teleology to constitutional arrangements; by that, there is no perfect, settled, end point towards which we should work. Constitutions should change as societies and public expectations change. This means there is no perfect "solution" or steady state for Welsh devolution as we cannot predict changes in expectations. Nevertheless, the history of devolution has been a steady evolution towards more powers. On the one hand, the White Paper is to be commended for recognising and internalising this trajectory; on the other, it offers another (possibly unnecessary) interim constitution. If I may offer an analogy, a car’s broken fan belt can be temporarily repaired with a pair of tights, which would just about allow you to get to the nearest garage where you would naturally replace the tights with the real thing. My concern with this White Paper is that we may have already reached the garage and are now replacing our pair of tights with a used, rather frayed and untested fan belt.

The Status of the Assembly

The first key area of the White Paper on the dismantling of the corporate body will have few dissenters and indeed, recognises substantial shifts that have already taken place within the National Assembly’s own operation. The word "innovation" is used in the White Paper to refer to the devolution settlement generally. I consider the real, critical innovations to have been self-generated by you as an Assembly, slowly and steadfastly transforming yourself into a parliamentary body in the knowledge that clarity and accountability are the watchwords of a good and proper democracy. Thus, the formal separation of the Assembly from an official government offers greater clarity and, simultaneously, an opportunity to shed the ugly and, at times, confusing term, Welsh Assembly Government. The "Government of Wales" would offer a more accurate and understandable nomenclature for the executive.

A word of caution here however: at its inception, the Assembly was rightly lauded for striving to operate in a new political style. A change in status poses challenges for the further development of more consensual, co-operative, participatory politics. Whilst recognising the difficulties with operationalising these values, there is a very real danger of throwing the baby out with the bathwater in this respect, and it will need serious and mature consideration in the redrafted Standing Orders.

Legislative Powers

The second area (the meat of the White Paper, as Sir Michael rightly says) is set out in Chapter Three. Increasing the legislative powers of the Assembly as a concept is to be warmly welcomed; the route map set out here less so for it contains some road works, diversions and possible dead ends. I concur with all of the potential difficulties outlined in Sir Michael’s paper. I focus here on two others that reflect my areas of interest:

• The question of the initiation or request of Orders in Council: who will initiate in the main and how many Orders are likely to be accepted? Does the White Paper imply government-to-government dialogue or does the Assembly have a right to contribute directly (as paragraph 1.25 suggests)? If the recommendations originate in the Assembly, what are the real powers and discretion of the Secretary of State (especially given the built-in safeguards with the Order in Council procedures, and precedents for insisting that orders are laid- for example, the Boundary Commissions) and what is the reality of the right to veto? What of the future- will this arrangement function after 2009 when there might be a Conservative government in power at Westminster? There seems to me to be a real danger of executive dominance of this process.
• The scope of the coverage of Orders in Council: there needs to be better clarification of the "wide" or "narrow" descriptors referred to in paragraph 1.25. The Orders cannot refer to "the whole of any of the fields listed in Schedule 2 of the GWA", therefore, the way in which they are framed and their essential limitations are likely to be the really critical issues and the site for most debate. Could an Order include the bulk of one devolved field listed in Schedule 2 of the GWA, with the tactical omission of a minor specific to ensure it meets these conditions? This might allow, for example, for a review of local government finance (although substantial changes here might have an impact on non devolved areas like the Inland Revenue) or general powers over the Welsh language. The wider the coverage the more likely there is to be effective, innovative, joined-up policy-making. This, of course, would effectively be the acquisition of full primary powers in the Schedule Two fields without the transparency and clarity of formal legislative change.

Clarity and Equality

Underpinning both of the above points is a conviction that the driver for any change to devolution in Wales should be to improve clarity and intelligibility. Any political system that is not readily understandable to its citizens can scarcely be termed democratic. A cleaner-cut framework where general powers for making primary legislation in the devolved areas is infinitely preferable to that said out in the White Paper. The Electoral Commission report on the 2003 Assembly elections drew attention to the links between clarity, provision of information and public awareness.

The issues of equality and accountability also loomed large in the rationale for the Richard recommendations. These, we decided, was better delivered by the primary model, ahead of the various "half-way houses" that we discussed and rejected. In football parlance, there was a strong sense in which Scotland had a Premier League Parliament, whilst Wales had one not much above Nationwide Conference status! Critically, that message came loud and clear from the Welsh people (the constituency that really matters) through a proper and far-reaching consultation exercise. There is little doubt that elements within the existing settlement would have most constitutional planners scratching their heads and wondering why a national institution should have fewer powers, in certain respects, than a parish council or a regional assembly. As the Assembly prepares to move to its splendid new home, it is timely to remind ourselves that this is our national institution and we are discussing here national devolution, not a local or regional authority.

Scrutiny

This was an underlying concern in the Richard Commission deliberations and there will need to be careful consideration as to how this will be safeguarded and developed within the new arrangements, given their potential for creating an imbalance between the WAG and the Assembly. This can only be counterbalanced by more muscular scrutiny mechanisms.

My ongoing research on the committee structure here in the Assembly, making some comparisons with Scandinavian committee models, underlines the point that lessons do not have to come exclusively from Westminster or local government. The existing (unique) dual roles for the Assembly Subject Committees - policy development and scrutiny - are far from contradictory, it is entirely possible to make significant contributions to policy innovation whilst also scrutinising effectively. Indeed, the two might be seen as part of the same linear activity, with a single objective.

It is eminently sensible for procedural mechanisms to be removed from the remit of the amended legislation and its prescriptions. Nevertheless, there will need to be some serious and well-thought rebalancing of the overall committee structure to cope with the extra legislative load, as well as the time, agendas and approaches to manage its scrutiny. In terms of party balance, it would seem more sensible for the new Standing Orders to manage a new committee structure in a holistic way, seeking to ensure party balance across the piece rather than individually. This will permit more streamlined, focused committees with more frequent meetings and better-crafted agendas. There will also need to be better alignment of the committees here with those at Westminster.

Standing Orders

I too have serious reservations about the tone and the motive for a new Standing Orders advisory committee set up by the Secretary of State. This strikes me as unnecessary and patronising. It is right and constitutionally regular for this institution to take charge of the process of making its procedures work effectively in future. Neither should such procedures be static, and the authority to amend and improve them should rest with this body.

The Referendum and Future Primary Powers

The inclusion of a mechanism for moving to a cleaner cut (and, in my view, better) settlement is to be welcomed. However, the details of the transfer need clarification. With regard to the "devolved fields", I would strongly advocate drawing on the Scottish model, with the Assembly acquiring primary powers over all, except specifically reserved areas. This will add greater simplicity and clarity to the new settlement (see my earlier remarks). It is regrettable that no serious rationale is presented for excluding the possible future transfer (incrementally and on the basis of a cost benefit analysis- see the Richard Commission report, chapter nine) of powers over new fields.

I am also concerned with the lack of a clear timescale for this element in the devolution route map. The rationale presented here for not moving to the preferable option of a cleaner-cut settlement is a lack of consensus amongst the Welsh people. Consensus is difficult to measure, although my belief - backed up by some credible, longitudinal opinion polling - is that a public consensus already exists. That said, I would merely point out that future measurement is unlikely to get easier if the variables and indices for gauging support are not known. Indeed, it may be even harder to time a referendum if the Orders in Council are maximised or used in an expansive manner.

Furthermore, there seems no sensible reason why such a trigger would need to be supported by two thirds of the National Assembly (where the impetus should, in truth, lie), but by a simple majority at Westminster.

The Size of the Assembly

I am frankly baffled by the jettisoning of a very conservative recommendation in the Richard report for a minimal increase in the number of AMs. In my view, 60 AMs is an unworkable figure now and will become even more so in an enhanced legislative body. I searched the White Paper for an intellectual or practical case for preserving the current under resourced state and found none. Whatever other tactical reasons there may be for not pursuing the logic of a larger Assembly to manage an increased load, maintaining the current number of AMs will pose serious problems first, for managing the additional scrutiny function, second for managing the enhanced opportunities for policy divergence, and finally, the role and status of the Deputy Ministers will exacerbate problems by further reducing the number of "backbenchers" to deal with i and ii.

The Electoral System

This does not come within the terms of reference of this committee but features prominently in the White Paper so requires some comment. Chapter Four is short, reflecting the inevitable difficulty of defending the indefensible. "Solutions" (such as they are in politics) should be designed to "solve" problems. These amendments deal with some specific symptoms. There are many weaknesses in the Additional Member System (AMS) - these are clearly set out in chapter twelve of the Richard Report - most fundamental of which is that it internalises two types of elected member. Admirable efforts have been made (by the Presiding Officer and the Assembly Parliamentary Service, in particular) to assuage the impact of this but it will remain an intrinsic feature of AMS. In Richard, we adopted a more organic approach closely linked to the previous point on size. More powers need more members, which itself presents an opportunity for unearthing a better electoral system measured against some clear criteria. The Single Transferable Vote (STV) came out on top for us (and remember this conclusion was reached by consensus by some staunch advocates of the FPTP system). No electoral system is perfect but the change recommended in the White Paper to prevent individuals standing in both parts of the ballot will have serious "unintended consequences" as follows:

• There will remain two "types" of AM;
• The "best" party candidates will avoid marginal seats, being kept back for the regional lists. Given these are party lists, the stellar candidates have no real incentive to actively campaign or publicise themselves;
• This might lead to low levels of political campaigning in many parts of Wales, especially where there are few marginal seats. This is an unwelcome phenomenon at a time of low level public engagement with the electoral progress as the Electoral Commission report on the 2003 Assembly elections rightly points out;
• The human rights/civil liberties angle;
• It raises issues for Scotland where problem has scarcely been raised (neither has it incidentally in Germany and New Zealand), possibly due to the spread of seats gained on each ballot by different parties there.
• The emotive use of a "winners and losers" debate. This is certainly not as simple as has been suggested- for example, in Llanelli, where the Plaid Cymru candidate "lost" by 21 votes to Labour, Plaid candidate was elected on the party list meant the electorate, most of which was almost evenly split, effectively "won" in AMS; equally, Labour "won" 50% of the seats in 2003 with 38% of the vote.

On the basis of the above, I repeat my cautious one and half cheers for the White Paper. The proposals draw on the Richard recommendations but appear more concerned with the consequentials of the measured, sustainable blueprint in Richard rather than debating its intrinsic logic. These measures are clearly an improvement to the status quo and give considerable potential for capacity building and greater autonomy for our national institution, which is to be welcomed. Nevertheless, it has the impression of another temporary arrangement using some proven, but some entirely untried procedures and, like all interim measures, is likely to throw up as many new issues as it will provide solutions to current ones.

Laura McAllister

4 July 2005