Points of Law

Five years on from the achievement of primary law making powers for the National Assembly for Wales, questions can fairly be posed about whether they are being used as effectively as possible. After all, those of us campaigning fervently to gain such powers back in the 2011 referendum did so in the belief that attaining primary law making powers would be a gear change in the legal competence and effectiveness of the National Assembly. That is what we promised the people of Wales. We assured them that devolving the ability to initiate and deliver on legislation in twenty subject areas was critical to making a better Wales.

Five years on – and without getting into the whys and wherefores of any individual piece of legislation because you’re more than capable of doing that elsewhere – I can’t help feel that the central message of why legislative powers were needed and should be used actively has not been delivered upon.

So where I am going next with this? You might suspect that my beef is with the evident flaws and inadequacies of the powers of the Assembly. That position has considerable sympathy from me and pretty much everyone else in the Bubble. Not a week passes by where experts don’t call for additional bits and pieces of legal responsibility to be tagged on to the Wales Bill or introduced by other means. It is an angle that the media is also keen to spotlight.

A narrative has been developed in which the blame for any legislative shortcomings are laid at the door or Westminster and there is little or no questioning of how Cardiff Bay uses its existing legislative powers. Perhaps this is just an oversight, perhaps it’s to do with skewed reporting, or perhaps there is some other explanation, but precious little attention or challenge is given to the way the legal tools already available are utilised.

One example which leapt out in recent months was the way in which the Welsh Government is now introducing its own legislative programme. Back after the election of 2011 it produced a relatively detailed five year programme, with items of legislation matched against the anticipated date of delivery, thus providing a genuine targeted and sign posted approach against which it could be measured. The tactic now is very different.

Unveiling his legislative plans for this Assembly in June 2016, the First Minister said five year legislative planning was now ended and he would move instead to annual planning based on manifesto priorities. The First Minister said this was ‘one step in developing our practices to ensure they befit the parliamentary responsibilities of this place’. During the ensuing debate Assembly Members naturally focused on the Bills he was proposing, without really challenging the change in process. Nobody pointed out at the time that Wales’ legislative process and cycle was now being modified so that it became essentially the same as the Westminster approach, minus the woman in the horse drawn carriage with the shiny hat. It was a definite step backwards in terms of the transparency of the governing process.

Further, there are also issues on the pace and volume of legislation. The introduction of the Landfill Disposals (Wales) Bill this week brings to just three pieces of legislation introduced thus far in this Assembly. This is way better than the grand total of one Bill introduced in the first six months after the 2011 Assembly Election – a prize for anyone who remembers the early stages of the Local Government Byelaws (Wales) Act 2012 – but it can hardly be described as maximising approach which puts passing laws at the heart of what the Assembly does. Again, this was part of the appeal and message during the 2011 referendum but, I would argue, it has not happened.

But before you just think it’s the Welsh Government that lacks legislative momentum and drive, cast your eye toward the National Assembly too. The process of introducing backbench legislation is one of the most powers it possesses but that process is in danger of being wilfully under used. It can hardly be said to have a great deal of oomph behind it when the first backbench ballot of the Assembly has now been identified for 25 January 2017, which is a full three months later than the equivalent first ballot last time round in October 2011.

Further, the Assembly has been pretty thin in introducing legislation of its own through its institutional mechanisms. It only actually passed one in the whole of the last Assembly but at least that one was introduced with a purpose. By January 2012 the Assembly Commission had introduced its own National Assembly for Wales (Official Languages) Bill, but this time round there is no sight of any of the constituent parts of the Assembly availing themselves of such an opportunity.

In short, it is arguable that both Welsh Government and National Assembly are falling short in using the legislative system consistently, ambitiously and energetically, yet nobody ever seems to challenge them. It’s much easier to focus on more powers and not how powers are used. Maybe it’s time so many involved in delivering and reporting on the legislative system in wales stopped obsessing about the size of the pitch and started examining the quality of the game.