A case-study of what’s wrong, or an example of what’s right?

Last Tuesday, on the day that Assembly voted on the penultimate stage of the Well-being of Future Generations Bill, IWA Director Lee Waters was quoted on BBC Wales saying the bill was “a case study of what’s wrong with the way we’re making laws in Wales”. The Bill had ‘gaping holes’  in it after key sections were removed in its committee stage but not replaced. “The reason we’ve had a slight farrago in the assembly is that there’s not enough depth of thought behind this bill and what it’s trying to do,” Lee Waters said. “We’ve ended up with a bill that doesn’t really know what it’s about” he told the BBC.

Later that day the Bill was strengthened by the Assembly and Wales’ Commissioner for Sustainable Futures and Chair of the Climate Change Commission, Peter Davies, tweeted “Disagree most strongly with @Amanwy [Lee Waters] re #FGBillWales inaccurate ill informed Should not detract from hard work and positive outcome”.

The two agreed to debate their views in greater detail by email over the days that followed. Here is the exchange in full:

Lee Waters [LW]: Dear Peter, my critique of the Future Generations Bill was quite specific: it stands as an example of the weakness of the way political parties prepare their manifestos. The Programme for Government was based on a commitment in the Labour manifesto for a Sustainability Bill. But there was very little detail or thought behind it and, as you know, this has been seen within Government as a ‘Bill looking for a cause’ for a number of years. Your valiant efforts at generating a conversation about ‘the Wales we want’ underlined the fact that despite committing to passing a law there was no clear idea in advance what the law would do.

Lee

Peter Davies [PD]: Dear Lee, As an independent Commissioner I am not privy to the process of drawing together the political manifestos! However what I do know is that there was clear evidence prior to the last election that the existing structure of delivering our commitment to sustainable development in the Government of Wales Act was not working effectively.

This had been highlighted by independent reviews of the Sustainable Development scheme, a specific Wales Audit Office report and my annual commentary in the Government’s Annual Sustainable Development report. There were a range of consistent weaknesses which were well documented and needed to be addressed, including the fact that the SD Scheme ran parallel to the programme of Government, was not central to policy development, applied only to Government not the rest of the public sector, and did not connect  policy to the key sustainable development indicators. So I would argue there was a strong evidence base for the proposals to introduce legislative change in the Labour manifesto.

Since the election there has been an extensive period of engagement with an initial discussion paper, leading to a White Paper and then the Bill. Your reference on the BBC, that it started life as an Environment Bill repeats a misunderstanding of sustainable development as purely an environmental issue. I think there has always been a clarity in what we are trying to achieve through the legislation in establishing a framework for “our long term development as a nation”. The same objective as being pursued by the United Nations in setting global Sustainable Development Goals.

The national conversation on the Wales we Want was initiated as part of the process, to both inform the legislation and pilot elements in the proposals. There is no greater cause than the wellbeing of future generations – so I do not think there was any sense of searching for a cause!

Of course the process has not been without its challenges and I certainly agree there are lessons. Happy to discuss further

Peter

LW: There are two separate issues – the way laws are made, and the substance of the Future Generations Bill.  Lets come back to the latter.

The first issue is what I was addressing in the BBC interview (which was recorded several weeks ago as part of a longer interview on the IWA’s Constitutional Convention). Now that we have law making and tax raising powers we are firing with ‘live ammunition’. So the process of drawing up manifestos needs to be thought through far more. My argument is that all parties need to raise their game in policy development, and in making the point I am trying to draw attention to the considerable challenge they face.  The Welsh parties are all very small and, with the obvious exception of Plaid Cymru, have little tradition of policy development at a Welsh level – they have been largely administrative / organisational outfits.  The number of people they have to draw on to come up with new policies is tiny, and Welsh civil society is weak, Government dominated and largely delivery focused. So, we have a problem.

It was in this context that I cited the Future Generations Bill as “a case study of what’s wrong with the way we’re making laws in Wales”.

At the time of speaking there were ‘gaping holes’ in the Bill after the Government had withdrawn key clauses at a very late stage and couldn’t get the votes to replace them with anything. Hence my quote,”The reason we’ve had a slight farrago in the assembly is that there’s not enough depth of thought behind this bill and what it’s trying to do…We’ve ended up with a bill that doesn’t really know what it’s about.”

PD: You are probably in a better position than I am to talk about the political party manifesto process, and there is some logic in your argument about the challenge of policy development within relatively small devolved party structures.

Obviously organisations such as the IWA itself has a key role in informing this process, as do the wider business and civil society organisations. I do not  accept that we have a weak Welsh civil society, having spent much of the last year working with vibrant community groups and organisations on the Wales we Want, while I would also highlight the work of the SD Alliance around the Future Generations Bill as an example of active civil engagement.

However as the new Chair of WCVA I do accept we need to both build the capacity for innovation and to focus on the processes by which successes can be embedded in policy. The biggest challenge though which came through from the Wales we Want was that people felt disengaged and done to not listened to. I think there are plenty of practical ideas out there if we listen more!

In respect of your specific reference to the FG Bill, I would repeat my disagreement with your assertion of the “lack of thought behind the Bill”. I chaired the Reference group for the Bill and so had first hand experience of the contribution of a wide range of stakeholders and international expertise. This is not to say that there are not lessons from the process. The Bill as drafted did not fully reflect many points that were felt to be critical and we could have improved the process to get it right first time, but nevertheless the scrutiny process of the Assembly worked to good effect. There were strong submissions to the Committee and active engagement to produce amendments from both the Government and the other political parties which have produced a much stronger Bill.

So I would argue that while there are lessons, the FG Bill is in fact a good example of the law making process, and has a very clear view of what it is trying to achieve.

LW: The thinking took place after the Bill was announced in the programme for Government, not before – and that’s my point. And as to the strength of civil society, we both know that very many NGOs and campaigners had deep concerns about the ambition and scope of the proposals, but how many felt confident to say so publicly?

PD: All I would say is that there was a clear evidence base for the proposals in the manifesto and guess that the challenge of translating manifesto commitment into legislation is nothing new. However I think that is very different from saying that there was a lack of thought behind the Wellbeing of Future Generations Bill.

In my view there has been a process of really open and honest exchange with Government on the development of the legislation since the election, not least through the Wales we Want national conversation and the establishment of the SD Alliance which brought together civil society organisations to actively and openly challenge on the scope and ambition of the Bill.

LW: I admire your positivity but I’m afraid I’m unconvinced. The whole ‘Wales We Want’ exercise seemed engineered to disguise the fact that the Government wasn’t clear what problem the promised Bill was designed to solve.  I appreciate you had a delicate balancing act between your insider role sitting on the Bill team (an unusual arrangement) and as an independent scrutineer of the Government’s performance on Sustainable Development an interface with civil society organisations. Your sunny account aside, I know there were lots of frustrations amongst the NGOs with what they perceived to be a weak commitment by the WG to meaningful acts at tackling climate change. But, as is so often the case, Welsh civil society self-censors – either because of understandable concerns about the security of their funding, or in this case I detected a feeling that the political salience of climate change had become so low that they dare not push their luck too much. Something was better than nothing.

It seems we don’t agree on the thrust of my critique of the way laws are made, lets see how far we get on the second of the points I was making – the substance of the Future Generations Bill.  There is much in the final – amended – version of the Bill that is worthwhile (regardless of how we got there), but, essentially, this is a process Bill.  As the former Director of Oxfam Cymru, Chris Johnes put it in article for the IWA, “Subtly, but critically, it has changed from putting sustainable development at the heart of Government decision making to focusing on how public policy maximises wellbeing. In other words, it is now primarily concerned with the outcomes of operating in a sustainable way rather than with achieving a sustainable development path for Wales”. Sincere implementation is what will decide if this Bill is meaningful, and how confident are you of that?.  Perhaps you can answer this – had this Bill been in place at the start of this Assembly term would the Welsh Government still be going ahead with building a new section of the M4?

PD: We just need to get some clarity here. I did not sit on the Bill team and had no “insider” role. I was independent chair of the Bill Reference Group which brought together stakeholders from across the sectors and met regularly over 12 months with Welsh Government to inform the  development of the Bill. The Wales we Want  was  pilot  of a process which will be incorporated into the legislation as part of the function of the new Commissioner, while also playing a role informing the proposed goals in the Bill.

As I have said there were clear weaknesses in the Bill that emerged from this process and lessons that need to be applied in getting it right first time. However we have had a robust scrutiny process and strong civil society engagement in producing an amended Bill, which puts a clear sustainable development duty on the public sector.

I do not therefore agree with Chris’ interpretation, which I think you will find was made before the final amendments, as the  Bill puts in place a clear structure to underpin that sustainable development duty with long term goals, the setting of milestones, and a set governance principles to be applied in decision making. The Bill now includes clear reference to climate change and the Government have agreed to incorporate climate change targets within the Environment Bill. I certainly have seen no sense that civil society organisations have been reticent in coming forward throughout this process!

I do agree it is  all about implementation and we have made an important start with the early adopter network of 11  local authorities and 3 National Parks who have been working in preparing for implementation over the last year. I have been really encouraged by the positive involvement from right across the public sector particularly the health service, to the Bill as “a framework for the whole public service in Wales” to quote the White Paper on Reforming Local Government. The Bill also includes a key delivery structure through Public Service Boards that should enable  integrated public service solutions to better meet local needs.

The Bill will not provide set piece answers to specific questions such as the M4 relief road, but does provides a legal framework for better decision making and includes clear roles for Wales Audit Office and the new Future Generations Commissioner to ensure delivery.

It is nothing to do with a sunny disposition but an acknowledgement that this is the most ambitious piece of legislation to go through the National Assembly, and which is recognised outside of Wales as  being of international importance. As a participant in the national conversation said “it is amazing how bad Wales is at telling its stories”

LW:  Your distinction between Chairing a Bill Reference Group rather than sitting on the Bill team is noted. I think there is a broader debate to be had about how Independent Commissioners interact with Government and I hope this is something the IWA will look at later in the year. There is no doubt that you played an important and trusted role in shaping the final version of the Bill, and I’m certain it is stronger because of it.

Ultimately I think we’ll have to agree to disagree about the Bill.  I’m less interested in frameworks and processes and more concerned with the solid actions we’re taking to tackle climate change to give meaning to the ‘groundbreaking’ duties and strategies we already have. The Williams Commission report noted last year that there are already nine Duties and requirements that Local Authorities and public bodies have to take into account. It concluded “the practice of legislating to require public bodies to ‘have regard’ to a specific concept or objective in their decision-making processes simply complicates those processes without necessarily achieving anything in terms of the objectives concerned”. It was also pretty sceptical about the efficacy of service board in achieving ‘integrated public service solutions’.

It is simply too soon to say whether this is “the most ambitious piece of legislation to go through the National Assembly”. But one thing it is hard to dispute – a point I heard  Anthony Giddens make at Hay a few years ago – Governments across the World find it easier to talk about what changes need to take place in 50 years to tackle climate change than they do taking firm action now.

PD: I am sure we could continue this conversation but no doubt time will tell as to the effectiveness of this legislation if it is voted through this week. The annual reviews of progress will provide important benchmarks and I am sure the IWA will  play a constructive role going forward. I am sure we agree that it is not simply Government’s responsibility to make the changes needed and we each have a role to play