Unfinished business at the Assembly

After all the build up to Prime Minister Cameron’s appearance in the Senedd yesterday, when he was billed to announce a new Commission to review the workings of Welsh devolution, the result was a damp squib.

We were told nothing more than appeared a year ago in the coalition agreement between the Conservatives and Liberal Democrats at Westminster. In effect, this stated that if there was a Yes vote in the referendum, “we will establish a process similar to the Calman Commission for the Welsh Assembly”.

In the Senedd yesterday afternoon Cameron added precisely nothing to that commitment, except to reiterate it.  What we were looking for was, if not the full terms of reference, then at least something to indicate the parameters of what the Commission’s agenda will be. Will it be confined to strictly financial matters, such as borrowing powers and the need to make the Assembly more accountable by requiring it to raise at least some of the taxes it spends? Or will it be able to take a more rounded view of the way devolution is working, by revisiting the unfinished business of the 2004 Richard Commission’s recommendations?

If the Calman Commission’s terms of reference is any guide then there would be a positive answer to this second question. Its remit was as follows:

“To review the provisions of the Scotland Act 1998 in the light of experience and to recommend any changes to the present constitutional arrangements that would enable the Scottish Parliament to serve the people of Scotland better, improve the financial accountability of the Scottish Parliament, and continue to secure the position of Scotland within the United Kingdom.”

It’s been reported that the Secretary of State for Wales Cheryl Gillan had a busy schedule of meetings last week trying to bottom out a remit for the Welsh Commission. But it seems these were not enough to arrive at a settled position by yesterday afternoon.

Certainly, Cameron’s statement was capable of conflicting interpretations. He said, first, that following the referendum result, “along with this new level of power you now hold, should come new levels of accountability.” This, presumably, could be taken to mean that the Commission will focus on giving the Assembly tax raising powers as a means of strengthening its accountability. On the other hand, immediately afterwards Cameron added:

“As we promised, we’ll establish a process similar to the Calman Commission in Scotland.”

If this is the case then the Welsh Commission’s remit will be the same or analagous to the Calman Commission, opening the door to a wider ranging inquiry. However, Cameron then hinted that the terms of reference might be open to negotiation between the parties in the Assembly. As he put it:

“I am therefore asking the political parties – all the political parties – to seek a consensus on the future direction of devolution.”

Why is all this important? For three reasons:

1. To complete the constitutional architecture that has been slowly creating a proper Parliament in place of the botched institution that was established by the 1998 Wales Act, followed by the 2006 Act.
2. To give the Assembly an adequate number of AMs to engage effectively with primary law-making powers.
3. To create a fairer electoral system.

The Richard Commission not only recommended that primary law making powers should be conferred on the National Assembly, but also that that should be done by following the model adopted for the Scottish Parliament, where all powers are devolved unless specifically reserved to Westminster. As I’ve argued before here, this would replace the present highly unsatisfactory situation where all the Assembly’s powers are specifically conferred, leading to endless confusion about what it is entitled to do.

This recommendation that Wales should adopt the Scottish model was generally lost in the ensuing debates that concentrated on the Richard Commission’s headline proposals for:

• Primary legislative powers.
• Legal separation of the Welsh Government from the National Assembly.
• Increasing the Assembly’s membership and electing them by STV.

Primary powers have now been devolved, following the referendum, but by a laborious process of itemising all devolved powers in complex legislation. The result has been to leave a good deal of confusion around the Assembly’s powers and the extent to which they are limited and remain intertwined with the prerogative of Ministers at Westminster.

The Richard Commission also proposed an increase in the size of the National Assembly from the current 60 members to 80. It presented a cautious and carefully argued case to support this proposal, based on an assessment of how the Assembly works now, what additional tasks primary legislation would bring – in particular on scrutiny – and how ‘efficiency’ gains on current practices could be made. Its conclusion, drawing on a comparison with the working of the Scottish Parliament, was that

“… the existing size and structure of the Assembly would be placed under considerable strain if the Assembly’s powers were significantly broadened”.

Since the Richard Commission reported at least four developments have occurred which would make a reassessment of the Commission’s conclusions timely:

1. Four years of operation of the system of legislative competence orders, obliging the Assembly to devote more time to legislation, and possibly impacting on the time available for scrutiny.
2. The move to full legislative powers, following the 2011 referendum.
3. The abolition of dual candidacy in both first past the post constituencies and regional lists during Assembly elections.
4. The UK Government’s decision to equalise the size of constituencies, thereby reducing the number of Welsh MPs from 40 to 30 at the forthcoming 2015 UK General Election.

The case for increasing the size of the Assembly and changing its electoral system has been significantly strengthened by these developments. That’s why it is now timely for the proposed Calman-style Welsh Commission to be able examine them. If its terms of reference are drawn so tightly as to prevent it from doing so then  an opportunity will be lost.