Wales’s new constitution – the first two years.

“The Government of Wales Act 2006 … is, in effect, a written constitution for the governance of Wales.”

This is not my personal opinion, but that of the House of Lords Constitution Committee. The Committee expressed this view earlier this year in a report on one of the proposed Legislative Competence Orders, which are such a prominent feature of that constitution.

This is Wales’s fifth constitution in the last seven hundred years. We therefore have a long way to go before we catch up with the French who, in a period of two hundred years, had nine constitutions – two monarchies, two empires and five republics! It is unlikely that Wales will display the same enthusiasm for drawing up new constitutions. However, it would be foolish to believe that the Welsh constitutional question has been “settled” as some tried to claim on the basis of the defective constitution imposed on Wales by the Government of Wales Act 1998.

The first Welsh constitution came into force on 3 March 1284. It was the Statutum Walliae, a great charter proclaimed by Edward I. His aim was to impose a unified system of governance on the lands of the Principality of Wales, which he had inherited under the feudal system after Llywelyn ap Gruffydd and his brother Dafydd died without heirs.

The second constitution, the Laws in Wales Act 1536, came into force on the feast of All Saints of that year, abolishing Welsh laws overnight and tying Wales into England’s parliamentary system. It was rushed through the English Parliament without giving Members of Parliament an opportunity to consider its provisions with care. King Henry must have been in a hurry to boost the number of his supporters in Parliament during that turbulent period. However, as a result, and since civil servants’ knowledge of Wales was very imperfect, the Act was found, after it had been passed, to contain a number of defects. As a result, it was necessary to return to the Welsh constitutional question just seven years later. This was our third constitution – the Laws in Wales Act 1543 – which tidied up the system that was established by the 1536 Act and which provided the framework for governing Wales until 1999.

This brings us to the fourth and fifth Welsh constitutions – the Government of Wales Act 1998 and the Government of Wales Act 2006. The 2006 Act is far superior to any of Wales’s previous constitutions. It is not perfect by any means, but is has a unique quality, in that it has the potential to enable Wales’s constitutional system to evolve according to the will of the people of Wales. To adapt the penetrating view of the former Welsh Secretary, Ron Davies, the Government of Wales Act 2006 was not an event. Rather, it is a process.

The philosophy behind the Government of Wales Act 1998 was to make the Welsh Office accountable to a body elected in Wales, rather than to the Westminster Parliament. It was believed that it would provide Wales with measure of self-government that would be acceptable to the majority of the population. The decision was taken to create a single elected body, based on the local authority model that would operate through subject committees and would delegate decisions that had to be made on a day-to-day basis to the leaders of the various committees.

This pattern was based on a superficial and deficient analysis of the nature of contemporary government. Even before the bill completed its course through the House of Commons, the Government had to acknowledge this. It had to accept that the business of governing was so complex and called for so much speed and flexibility in decision-making that the conventional local authority model would not do at all. The bill was therefore amended to create a kind of cabinet system. A body of ministers was created, which would be answerable to Assembly Members as a whole, but which would be free to take decisions without having to ask for committee approval beforehand.

Without this change, it is doubtful whether the National Assembly, in the form that was established by the 1998 Act, could have operated effectively at all. Even after the cabinet system was grafted on to it, the unfortunate legacy of the original system laid heavily upon it. Although Wales now had a governing body and a parliamentary body to call the Government to account, both bodies were tied together in a way that was inconsistent with all normal constitutional principles. The parliamentarians had no formal control over their facilities or even their staff. They depended for advice and support in relation to the Assembly’s procedures on civil servants who were ultimately answerable to the Government’s chief adviser, the Permanent Secretary. The decision of the Members, following their review of procedures, was to insist upon the widest possible separation under the then constitution, the Government of Wales Act 1998. This was what led to the drawing up of the constitution in the 2006 Act.

However, despite the extent of the impediment to the Assembly’s development that was caused by the defective structure of the body created by the 1998 Act, that Constitution contained a far more important defect. The Assembly did not have any legislative powers.

For better or for worse, the Welsh constitution exists within a constitutional framework in the Westminster tradition, as is also the case, to a great degree, with all Commonwealth countries. This framework is described as “parliamentary democracy”. Unlike the model that was adopted in the United States of America, there is no formal separation between the executive and the legislature. The Government is drawn from the ranks of the parliamentarians and remains in power as long as it enjoys the confidence of the parliament. Ministers are members of the party or parties that have the most representatives in the parliament and therefore, on the whole, they can secure the changes in law necessary to deliver their policy objectives.

The Government of Wales Act 1998 fell far short of creating effective government for Wales. The Act established a governing body. It gave that body the duty of drawing up policies for health, education, transport, the environment and so on. It created a parliamentary body to scrutinize those policies. However, it deprived the governing body of the any ability to change the law so as to enable those policies to be implemented effectively.

I do not intend to devalue the work that was undertaken by Assembly Members and ministers during the eight years that the 1998 constitution was in force. Their contribution to the establishment of Welsh democracy was invaluable. But they had to battle against the 1998 Act’s failure to equip them with the necessary tools.

Under the old system, the only way that the government of Wales could secure changes in the law to implement its policies was by asking the UK Government to introduce bills at Westminster. Such requests had to fight for their place in that Government’s legislative programme. It is hardly surprising that during that period, there was, on average, only about one bill a year that related to the legislative priorities of Welsh ministers.

The Children’s Commissioner for Wales Act 2001, the Public Service Ombudsman for Wales Act 2005, the Transport (Wales) Act 2006, the Older People’s Commissioner (Wales) Act 2006 and the National Health Service (Wales) Act 2006 were passed under that system. But these valuable acts represented part only of the legislative programme needed by Welsh ministers. The system had several shortcomings. It was Westminster’s priorities, and not those of Cardiff Bay that decided what legislative reforms could be secured by the Welsh government. Welsh ministers could not plan a legislative programme to deliver the policies on the basis of which they had been elected. And the whole system was based on political good will between the Welsh government and the UK government – something that no-one could guarantee in the long term.

The shortcomings of the Government of Wales Act were noted by the Richard Commission, which presented its report in March 2004. The Committee recommended that the Assembly should receive primary legislative powers across the devolved fields by 2011. It was also recommended that the body established by the 1998 Act should be divided into two separate bodies – a legislative body and an executive body – in accordance with the familiar pattern of a parliament and government. The Richard Commission was of the opinion that the number of Assembly Members should be increased from 60 to 80 in order to undertake the new legislative remit effectively.

In the view of the Richard Commission, it would not be practical for primary legislative powers to be conferred upon the Assembly before 2011. Therefore, they proposed a system that would provide a bridge between the status quo and full legislative powers – that is, that the Westminster Parliament should delegate to the Assembly an increasing number of powers to legislate relatively broadly through secondary legislation.

As we know, the legislative process progressed a lot faster than the Richard Commission had predicted, and not entirely in accordance with its recommendations. The 2006 Act separated the parliamentary body from the governing body. However, the number of members was not increased. Provision was made for the Assembly to receive primary legislative powers, but only once this had been approved by a referendum. And rather than depending, in the meantime, on the UK Government’s willingness to include wider delegated powers than usual in parliamentary Bills, the controversial, yet inventive, system found in Part 3 of the Government of Wales was devised.

Parts 3 and 4 of the Act are what makes it far superior as a constitution to any of its predecessors. For the first time ever, the people of Wales, through their representatives in the Assembly, can change the law according to their political and social aspirations. And the range of subjects on which the Assembly can legislate is expanding rapidly, and that in response to calls from the Assembly rather than Westminster priorities.

In addition, provisions to bestow the right upon the Assembly to legislate generally across the devolved fields are already on the statute book, in Part 4 of the 2006 Act. All that is needed to bring them into force is the expression of the political will of the people of Wales through a referendum. That is the basis of my earlier statement that the current Welsh constitution – the 2006 Act – is fundamentally different to its predecessors because it includes a mechanism to enable self-government to evolve according to the wishes of the people of Wales.

What, therefore, has been the experience of implementing Wales’s new constitution over the last two years?

The separation of the legislative body from the governing body has been a huge success. The administration of the Assembly is now firmly in the hands of the Assembly Commission. The Commission is accountable to Members and it can plan strategically for all the facilities that Members need to undertake their work in an effective manner. The Assembly Commission has given a high priority to ensuring the resources, including committed professional staff, which will enable Assembly Members to undertake their new legislative functions in an effective manner. As we can see, this policy has already been very successful.

With new powers come new responsibilities. The Commission is currently responsible for determining Assembly Members’ pay and allowances. I am pleased to be able to draw attention to the Assembly Commission’s foresight in referring the question of how such matters should be decided to an independent panel, chaired by Sir Roger Jones. The Assembly Commission established Sir Roger Jones’s panel last year, long before revelations about the behaviour of Members of Parliament highlighted the issue.

As a result of the Commission’s leadership, the panel was able to undertake its work thoroughly and effectively and to present a detailed and authoritative report at the beginning of July. Amongst their main recommendations was the transfer of responsibility for determining Assembly Members’ pay and allowances from the hands of the Commission to an independent body. Under the new system, Assembly Members will not be able to influence their own salary levels.

The Assembly Commission accepted all of the panel’s recommendations and we will be proceeding to implement them as soon as possible. Many will come into force immediately. Even where the Assembly’s legislative powers will need to be used, for example, to establish the new independent body and to transfer the relevant powers to it, we will ensure that this takes place by the next Assembly elections in 2011.

One of the aims of the formal separation of the parliamentary and governmental bodies in the 2006 Act was to make it easier for the public to understand the devolved system of government. Under the old system, the public was confused by the fact that ministers’ actions were described as those of “the Assembly”, even though they were, at the same time, opposed by many Assembly Members.

Unfortunately, the practices developed under the old system are slow to disappear. From time to time, the media still refer, totally incorrectly, to decisions taken by ministers as “Assembly” decisions. The view of the Assembly’s external communications team is that the fact that the 2006 Act refers to the government of Wales as “the Welsh Assembly Government” in some contexts makes it difficult to get the right message across. Our practise, therefore, where possible, is to refer to the Welsh governmental body as “the Welsh Ministers” or the “Welsh Government.”

As part of our mission to ensure the highest possible level of understanding of Welsh governance among the people of Wales, the Assembly includes a brief positioning statement in its external documents:

“The National Assembly for Wales is the democratically elected body that represents the interests of Wales and its people, makes laws for Wales and holds the Welsh Government to account.”

Before considering the experience of enacting the Assembly’s legislative powers, it is important to emphasise the nature of the legislative instruments made under Part 3 of the 2006 Act – Measures of the National Assembly for Wales. They are completely different to the statutory instruments made by the former Assembly under the 1998 Act, and which are now made by the Welsh Ministers. The function of statutory instruments is to make detailed or technical provision to facilitate the implementation of primary legislation. They do not usually make important legal changes.

On the other hand, the purpose of Assembly Measures is to make fundamental changes to the law. According to section 94(1) of the Government of Wales Act 2006:

“Subject to the provisions of this Part, an Assembly Measure may make any provision that could be made by an Act of Parliament.”

If an Assembly Measure conforms with the rules of Part 3 of the Act, its effect is exactly the same as that of an Act of Parliament. Since 2007, the National Assembly for Wales has been working as a real legislature for Wales, the first democratic Welsh legislature in history. Indeed, with one exception, the procedure for legislating by Measure under Part 3 of the 2006 Act is nearly identical to the procedure for legislating under Part 4 when it comes into force.

The important distinction is that the provisions of a Measure must involve one or more of the “matters” listed under Schedule 5 to the Act. A “matter” is a particular topic within one of the 20 devolved fields of government.

When the Government of Wales Act was passed, only one of the 20 fields in Schedule 5 contained any “matters”, namely the Field relating to the internal governance of the Assembly itself. By now, there are 44 matters, in the fields of Agriculture, Education, Health, Highways, Local Government, the Assembly, Social Welfare, Sports and Planning. In the field of Education alone, there are 18 “matters” on which the Assembly can legislate, something which reflects the long history of separate statutory provision for Wales in the field of education.

To a certain extent, “matters” are similar to the long titles of Acts of Parliament. That is, they are broad declarations of a subject on which the Assembly can legislate.

For example, Matter 5.4 in the field of Education is:

“Provision about the curriculum in schools maintained by local education authorities.”

Therefore, this matter gives the Assembly complete legislative control of the national curriculum in Wales.

Matter 12.1 in the Field of Local Government is another example:

“Provision for and in connection with –
(a) the constitution of new principal areas and the abolition or alteration of existing principal areas, and
(b) the establishment of councils for new principal areas and the abolition of existing principal councils.”

Under this matter, the Assembly has the legislative power to reform the pattern of local government in Wales.

Schedule 5 to the 2006 Act can be amended to add to the list of Matters on which the Assembly can legislate in two ways. It can do so through an Act of Parliament. It can also do so through a Legislative Competence Order, which is an Order that is made formally by Her Majesty in the Privy Council but which needs the approval of the Assembly, the House of Commons and the House of Lords.

This is the most controversial part of Wales’s new constitution and, thus far, it has claimed the most attention, and it is important that it is considered carefully. However, before doing so, I would like to discuss an aspect of the new system that is ultimately more important than the Legislative Competence Order process. I am referring to the way in which the Assembly has, over the last two years, exercised its power to legislate under the competency that has already been vested upon it by those Orders.

Of course, it must be remembered that the Assembly was not able to undertake its new legislative role in earnest until after the summer recess of 2007, less than two years ago. Furthermore, it has taken time for the number of matters on which the Assembly can legislate to grow. It is therefore not surprising that the flow of legislation passing through the Assembly started slowly.

To date, five Measures have been passed by the Assembly: the NHS Redress Measure, the Learner Travel Measure, the Learning and Skills Measure, the Local Government Measure and the Healthy Eating in Schools Measure. As well as the Measures that have been passed, a further six proposed Measures are in progress.

One Measure was passed during the first year, reflecting the initial difficulties. But in the second year 4 were passed. It appears that around half a dozen more will have been passed by this time next year.

Bearing in mind the restrictions that exist on the matters upon which the Assembly can legislate and the complete absence of any Welsh legislative tradition before May 2007, the increase in the flow of legislation in the Assembly is almost miraculous. It is certainly testament to the value of the current system, whatever may be its shortcomings.

However, developing Wales’s legislature is not just a matter of how many Measures are passed. The quality of the consideration given by Assembly Members to legislation, and the extent to which the community is involved in the legislative process, must also be considered.

Under the 2006 Act and the Assembly’s Standing Orders made under the Act, a Proposed Assembly Measure must go through 4 processes, or 4 ‘stages’, before it becomes law. Stage 1 considers the general principle of the Proposed Measure. The Proposed Measure is considered by a specialist legislation committee, which will listen to evidence given by the Minister (or other Member in charge of the Proposed Measure) and by members of the public and organisations who have a special interest in the Measure’s provisions. The committee prepares a report on the Proposed Measure, which is made available to Members when they vote in Plenary Session on whether the principle of the Proposed Measure should be approved.

If the Proposed Measure is successful in Stage 1, it is referred back to the legislation committee, which considers and votes upon detailed amendments to the wording of the Measure. The Proposed Measure then goes back to Plenary in its amended form for Stage 3 consideration, when it can be amended further. Finally, it reaches the final stage, which is a vote taken in Plenary on the Proposed Measure in its final form. It is then sent for Royal Approval in a meeting of the Privy Council.

This legislative process is based on recognised Parliamentary procedure. However, it surpasses that procedure in at least one way, namely the careful and objective consideration that is given to Proposed Measures by legislation committees during Stage 1. Although the House of Commons has begun to develop similar procedures, they are nowhere near as thorough and effective as those in the Assembly.

One feature of the Assembly’s procedures is that the Stage 1 consideration, although mainly concerned with the general principle of the Proposed Measure, also gives the committee an opportunity to receive ideas on how the effectiveness of the Measure could be improved. When comments on such suggestions are included in the legislation committee’s report, it gives the Minister (or other Member in charge of the Proposed Measure) an opportunity to consider responding positively to those suggestions. This can be done by tabling sensible amendments to the Proposed Measure during Stage 2, avoiding making the issue one of political conflict.

Naturally, developing legislative skills was quite a challenge for Members to face. Initially, they had to depend heavily on the advice and support of Assembly staff who, as a result of the Assembly Commission’s preparations, were available to assist with the new function from the outset. In addition to having to deal with the demands of an entirely new kind of work, the 60 Members have had to shoulder the burden of more meetings and more preparation work. Despite all this, the standard of the debates on legislation in the Assembly has developed swiftly. They now stand comparison with those in any other legislature, as those who have followed proceedings on the television or on the internet can attest.

I have already referred to the fact that the contribution of civil society is an intrinsic part of the legislative process. Another way of ensuring that legislating is not monopolised by Ministers is our system of encouraging individual Members to take part in a ballot for the opportunity to persuade the Assembly to allow them to introduce a Proposed Measure. The fact that one of the five Measures that have been passed to date, namely the Measure introduced by Jenny Randerson AM on Healthy Eating in Schools, was initiated using this procedure is testament to the effectiveness of this process. Additionally, two of the six Proposed Measures that are currently being considered have been introduced by ordinary Members and not by Ministers.

We must not forget either that the Assembly’s committees have the right to introduce Proposed Measures. Another Proposed Measure that is being considered, namely the Measure on establishing the post of Standards Commissioner for the Assembly, has been introduced by the Assembly’s Committee on Standards of Conduct. Finally, the Assembly Commission has the right to introduce Measures and that is how the legislation that is needed to implement the recommendations of Sir Roger Jones’s committee will be secured.

As far as legislating is concerned, therefore, the Assembly has responded to the challenge of new powers with enthusiasm and commitment. Members and staff have already demonstrated that the Assembly has the ability to exercise full legislative powers, under Part 4 of the Act. That was explained earlier this year by some of the Assembly’s senior officers in their evidence to the All Wales Convention, led by Sir Emyr Jones Parry.

This brings us back to the process for Legislative Competence Orders. There are some obvious complexities to it. For one thing, the list of those who have a role to play in the process is lengthy. In order successfully to transfer the right to legislate on a new matter, the agreement of the Secretary of State for Wales (who lays the Order before Parliament), the House of Commons, the House of Lords, and of course the Assembly, must be obtained. In addition, the process requires pre-legislative scrutiny by an Assembly committee, by the Welsh Affairs Committee and, if aspects of the Proposed Order raise constitutional questions, the House of Lords Constitutional Committee.

Of course, Welsh Ministers have an important part to play in this process. They, more often than not, will have drawn up the Proposed Order, and they must usually gain the consent of the relevant Whitehall departments for the bid to have any chance of succeeding.

Finally, the Assembly’s procedures allow ordinary Members and committees to introduce Orders, but they are clearly at a disadvantage in attempting to steer a Proposed Order through such treacherous waters!

The best that can be said about the Legislative Competence Order process is that it has worked to a certain extent. During the first two years of the new process, only four Legislative Competence Orders have completed the process and have come into force. They were on Additional Learning Needs, Vulnerable Children, Domiciliary Care and the Red Meat Industry. In addition, there is an Order on carers, which is waiting to be approved by votes in both Houses of Parliament. There are also five others, including two very important ones on the environment and on the Welsh language. The Welsh Affairs Committee has just finished considering these. They will not therefore, be able to be formally approved until the autumn.

In my opinion, the process is far too lengthy and is more complicated than it needs to be. For example, it has taken ten months for the Assembly to be given the right to make provisions to fund the marketing of the red meat industry in Wales, a subject that is not contentious in any way. With a parliamentary general election approaching, there is an increasing risk that important Orders which have not completed the process when an election is called will therefore fall, and will need to start the process again following the election. Of course, the election of a Conservative majority in the House of Commons would raise questions regarding the sustainability of the process. What if a Welsh Affairs Committee with a majority of members from that party decided to recommend rejecting a Legislative Competence Order because the policy proposed to be implemented under the proposed competence was not to the liking of those Members?

If we wish to make the LCO process more effective and less open to be obstructed by irrelevant considerations, then in my opinion, whichever House of Commons’ committees that scrutinises Legislative Competence Orders must adopt an attitude more akin to that of the House of Lords’ Constitutional Committee. Although that committee of course takes note of all Proposed Orders, it does not scrutinise them unless there is some feature of them which raises constitutional questions.

Of course, another way of avoiding the complications of the LCO procedure would be to bring Part 4 of the Act into force. It may be possibly be that a situation in which there was a Conservative majority in the House of Commons will make consideration of that option a matter of urgency.

I began by talking about the various constitutions which Wales has had from 1284 onwards. I have explained why the latest is far superior to any of its predecessors. However, it has many flaws. One is the failure to make any provision for the third type of governmental power, which is just as important as the legislative and governing powers, namely judicial power.

Even when Part 4 of the Government of Wales Act is enacted, Wales will still be no more than a small part of the judicial system of England and Wales. With legislation in Wales increasingly developing in a different way to that in England, at least in some areas, this situation will become increasingly unsustainable.

A development that would give a tremendous boost to the establishment of a separate judicial system in Wales would be if legislative competence for the field of criminal law was transferred to the Assembly. Territories such as Scotland, Northern Ireland and even the Isle of Man and the Channel Islands can sustain separate criminal justice systems. It is clear, therefore, that there is no practical reason why Wales could not do the same.

In the short term, it is more likely that some administrative aspects of the criminal justice system will be devolved. Welsh Ministers are already playing an increasingly prominent role in some aspects of the criminal justice system. These include policing, parts of the criminal justice system that deal with young people and those who are addicted to drugs, and delivering health and education services for prisoners. It would not be unexpected to see this developing to the point whereby Welsh Ministers take responsibility for funding the police in Wales and the Offender Management Service, which includes prisons.

What about the courts? Until 1830, we had our own courts in Wales, namely the Courts of Great Sessions. The central government attempted to undermine them in many ways but they were extremely popular among those who used them because of their accessibility and flexibility. In the end, they were abolished, not in order to improve the service to the public but in order to save enough money to pay for an additional High Court judge in London.

Even following the abolition of the court system in Wales, the administration of criminal courts, magistrate courts, the Quarter Sessions and the Assize courts was still controlled locally. This continued until Dr Beeching was invited to do something similar to the courts of England and Wales to what he had done a decade earlier to the country’s railways. There is no practical or technical reason why Welsh Ministers should not fund Her Majesty’s Court Service in Wales. That would help to ensure that the pattern of court provision, both civil and criminal, reflects the needs of Wales.

To be fair, important steps towards achieving that aim have already been taken following the severing of the illogical link between courts in Wales and those in Cheshire. A brand new courthouse has been opened in Caernarfon. The courts in Mold have been extended. And, of course, in response to devolution, the office of the Administrative Court has been opened in Cardiff.

Tribute must be paid to the efforts of the judiciary, including the presiding judges in Wales, to secure these developments. By now, it is perfectly clear how much Wales benefits from having consistent and strong leadership of the judiciary in Wales. That is the only way of ensuring that the development of the judiciary and the courts in Wales keeps step with other constitutional developments. One way of ensuring this would be if the Lord Chief Justice were to extend the term of presiding judges in Wales from four years to six years. Furthermore, the unique importance of their position could be emphasised by designating the senior presiding judge Lord President of the Courts in Wales, with his or her fellow presider as Deputy Lord President.

Titles and symbols have a special importance. They can convey a message more succinctly and effectively than words. That is why it was so important to ensure that National Assembly for Wales Measures carried a symbol that indicates their unique status as the first indigenous Welsh legislation since the charters of the Princes of Gwynedd. It would not have been appropriate for Welsh legislation to be published under the same coat of arms as Acts of Parliament, namely the royal coat arms of the United Kingdom. That, of course, completely ignores Wales as one of the four countries of that Kingdom.

With the co-operation of the College of Arms, and the enthusiastic support of the current incumbent of the title of the Prince of Wales, Her Majesty’s approval was secured that Assembly Measures, and Assembly Acts when Part 4 of the 2006 Act comes into force, should bear a new royal emblem. It is based on the coat of arms of the Princes of Gwynedd or, in accordance with the status conferred on them by the Treaty of Montgomery 1267, of the Princes of Wales. I was particularly pleased by this, as the current incumbent of the ‘Lordship of Dyffryn Conwy’.

The new Welsh constitution has already, therefore, succeeded in re-establishing part of the resplendent symbolism of our past. The first two years of this constitution have opened a new page in the history of Wales and have been a great success. I am confident that the next two years, and the many years to come, will build on the firm foundation that has been laid.