‘say not the struggle naught availeth.’ - … · ‘say not the struggle naught availeth. ... 8...
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‘SAY NOT THE STRUGGLE NAUGHT AVAILETH.’
THE RICHARD COMMISSION AND AFTER
RICHARD RAWLINGS*
* Law Department, London School of Economics and Political Science. Professor
Rawlings is the author of Delineating Wales. Constitutional, Legal and Administrative
Aspects of National Devolution (Cardiff: University of Wales Press, 2003). This essay is
an expanded and updated version of the fifth annual lecture of the Centre for Welsh Legal
Affairs, University of Wales, Aberystwyth, delivered on 18 June 2004.
2
„The Assembly is very rapidly out growing the existing structure‟.
Lord Richard1
So it was that the chair of the independent Commission on the Powers and Electoral
Arrangements of the National Assembly introduced findings and recommendations that
are of major significance in the history of Wales. The words bear testimony both to the
extraordinary institutional development since the country first achieved its own
democratically elected and accountable administration under the scheme of executive
devolution, and to the continuing search for an appropriate form of Welsh governance in
the new millennium. So far have we travelled: yet not so far.
Angles of approach
The work of the Richard Commission merits consideration from a number of angles. The
obvious starting place is the constitutional and administrative context of the report,
especially in terms of the scale of, and limits to, the various processes of devolution
happening within the framework for organic change that is the Government of Wales Act
1998 (GWA). A set of dynamics, that is, which largely drives the Commission‟s central
recommendation of a legislative assembly - whisper it gently, a parliament for Wales.
How does the Commission‟s working method and style of assessment measure up?
„Evidence based‟ and „evidence led‟ is a major part of the story, but emphatically not the
whole one. Not before time in Welsh devolution, the report evidences some serious
constitutional thinking, especially in terms of a second main driver of the
recommendations, the case for greater political accountability as in a stronger culture of
scrutiny and challenge. In this regard, demonstrating a robust independence, the
Commission has crossed swords effectively with the Secretary of State for Wales.
1 Speech to launch the Report of the Richard Commission on the Powers and Electoral Arrangements of the
National Assembly for Wales, 31 March 2004 (hereafter, „Richard speech‟).
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The proposals themselves demonstrate the healthy ambition that Wales should now
achieve a „devolution settlement‟ worthy of the name. The recommendations on powers
obviously are at the heart of this and in turn repay a careful constitutional and legal
analysis. A twin model of reserved and devolved powers, the proposed scheme borrows
much from Scotland, but also needs to be sensitive to the peculiar history and geography
of this little country, not least in terms of the administrative paradigm of „England and
Wales‟.
The linkages or otherwise between, on the one hand, the recommendations on powers
and, on the other hand, a series of constitutional design features ranging from internal
architecture, composition and electoral arrangements to funding and Welsh representation
at Westminster, is another important angle of approach. At one and the same time, the
report demonstrates a powerful internal logic in this regard and leaves major issues
unresolved. „Consequentials and side steps‟ is a suitably provocative characterisation.
Reading political runes is never easy; and the more so, experience teaches, in the case of
Welsh devolution! In view of the many immediate challenges and uncertainties
associated with the report, it does not do to engage in boundless speculation. In view
however of what may now be called „Richard‟s radical recipe‟ – a refreshing concoction
that is also a somewhat rich brew for key political elements to digest – several
possibilities are worth considering by way of contribution to the public debate. As ever in
constitution building, the interplay of the twin elements of design and delivery is seen
here at the root of the matter. At the same time, one should not lose sight of the broader
historical dimension. As the title portends, the discussion concludes on what I hope is a
suitably uplifting note.
(I) An interim constitution
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The Richard Commission has been confronted, in the guise of a so-called „devolution
settlement‟, with the fact of an interim constitution for Wales.2 For those of religious
disposition this may be accounted a form of purgatory, whereby in view of a parochial
and fragmented history, and of the centuries-old process of political, legal and
administrative assimilation with England, local actors should first suffer, and thence
make the best of, a most peculiar arrangement. At one and the same time, said Labour in
1997, Wales should have a democratic „voice‟ especially to address the democratic
deficit of the Conservatives‟ local „quango-state‟,3 and was not ready to join the great
family of state and sub-state parliamentary systems across Europe and around the
common law globe.
Pointing up several key sources of instability, the Commission was commendably clear
that the status quo is not a sustainable basis for future development. The so-called
„jigsaw‟ of Assembly powers, a product of the strong obfuscating element in Welsh
devolution which sees lawmaking powers divided not only horizontally but also spottily
via (bits of) individual statutes, pointed firmly in this direction. „Not founded upon any
agreed policy… but… dependent upon particular situations and even individual
departmental inclinations‟:4 in suitably paradoxical fashion, the typically conservative
approach of central actors to the novel demands of Welsh devolution is seen here giving
the dynamics of the devolutionary process an extra twist.
Likewise, the Commission could scarcely overlook the political diseconomy affecting
Wales and Westminster: the growing demand for, and restricted supply of, distinctive
forms of primary legislation. „Practical constraints on the achievement of the Assembly‟s
legislative requirements‟ loom large in the report: as a recipe for frustrated aspirations,
the Westminster bottleneck is hard to beat.5 Given the Assembly‟s responsibilities across
some 18 fields of devolved functions, as also some new areas starting to be colonised, the
2 A major theme elaborated in R. Rawlings, Delineating Wales. Constitutional, Legal and Administrative
Aspects of National Devolution (Cardiff: University of Wales Press, 2003). 3 A Voice for Wales, Cm. 3718 (1997), paragraph 1.4.
4 Richard Report, p 255
5 Richard Report, pp 175, 255.
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official justification of a comparable bidding strength with individual Whitehall
departments in the annual legislative round is fundamentally flawed.
As many have pointed out,6 the inevitability one day of political „cohabitation‟ between
Cardiff and London, otherwise referred to in the Welsh political lexicon as „the Redwood
factor‟, casts a long shadow. As Richard puts it ever so delicately, „the present settlement
offers scope for delay or obstruction‟.7 It is in other words a flimsy construction, one that
is excessively dependent for effective operations on administrative and political goodwill.
There is in fact a more deep-rooted problem, namely the lack of constitutional „fit‟
between a political and administrative form of „national devolution‟, Wales now being
authoritatively recognised as one of the four countries of the Union, and the exceptional
form of dependency entailed in the current arrangements. Part of an historical process
that I call „delineating Wales‟, we see how devolution is not simply „applied to a nation‟,
but operates to elaborate and underscore, commonly in concrete institutional terms across
the broad local range of public and private bodies, the particular sense of an imagined
political community.
Nevertheless, while there was much to be said for going direct to a form of legislative
devolution, the 1998 Act bears the accolade of having broken a political log-jam over
Welsh devolution lasting a century or more. One should not gloss over the positive
aspects of an interim constitution for a country that in many ways – from the historical
lack of a vibrant policy making culture to a retarded sense of civil society and absence of
distinctive public law tradition – was starting from a long way back.8
Practical concerns of policy development and implementation, laced with bouts of
constitutional controversy: local political and administrative actors have in a very real
6 Not least the House of Lords Select Committee on the Constitution, Devolution: Inter-Institutional
Relations in the United Kingdom, HL 28, Session 2002-03. 7 Richard Report, p 255.
8 Sir David Williams, „Wales, the Law and the Constitution‟ 31 (2000) Cambrian Law Review 51; see also,
L. Paterson and R. Wyn Jones, „Does civil society drive constitutional change?‟ in B. Taylor and K.
Thompson, Scotland and Wales: Nations Again? (Cardiff: University of Wales Press, 1999).
6
sense got on with the job, so laying the groundwork - subconsciously or otherwise - for a
more thoroughgoing „devolution settlement‟. All part of the novel form of „democratic
dynamic‟ operating above and beyond the long-standing but necessarily muted dynamic
of „administrative devolution‟ that culminated in the work of the Welsh Office,9 this
general feature has struck a powerful chord with the Commission.
A bit of a struggle
Some of the most significant developments have happened behind the scenes, courtesy of
hardworking officials, whereby a tolerably efficient and effective administrative
apparatus has been elaborated with a view to realising the potentialities of flexibility and
responsiveness inherent in small country governance. The very fact of the production of
Wales: A Better Country, the Labour Administration‟s strategic plan and forward work
programme for 2003-2007, which builds in turn on a plethora of cross-cutting proposals
gradually emerging in the first term of the Assembly,10
speaks volumes in this context.
„Devolution by evolution‟: even the most casual observer would recognise however that
it has not been a smooth passage. The Presiding Officer, Lord Elis Thomas, recently
highlighted the many contingencies of (Welsh) devolution: the central role in what has
been a remarkably strong autochthonous or home grown constitutional development since
1998 of individual „positions… political powers and related struggles.‟11
Future historians of Wales will surely remark on the rapid emergence in the first term of
the Assembly of „a virtual parliament‟. The development inside the formal legal shell of
the corporate body12
of two sides of the „House‟ - greater autonomy for the Presiding
Office and a hardening of the political centre in the form of the Welsh Assembly
Government – has brilliantly sign-posted the constitutional path to primary legislative
9 Delineating Wales, especially chapters 1 and 5.
10 Delineating Wales, chapter 4.
11 Lord Elis Thomas, Contingencies of Devolution, public lecture at the Institute of Welsh Politics,
Aberystwyth, (May 2004). 12
GWA, s.1.
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powers.13
Whereas the speed and pattern of events was not reasonably foreseable, as in
the defenestration of the first chief minister (Alun Michael), the uniquely powerful
tradition of parliamentary government in Britain reasserting itself in these novel
surroundings was eminently predictable.
As Richard puts it ever so charitably: „whatever hopes there may have been that the
corporate body concept would promote a new kind of inclusive and open style politics, it
seems that it is no longer a sustainable structure.‟14
Sad to relate, however, it is premature
to declare the end of the corporate body.15
As the Commission also observes, the legal
concept enshrined in the devolution statue still has a significant influence on the
Assembly‟s operation, particularly in terms of direct ministerial presence on the subject
committees.
Given the Commission‟s remit on powers, attention naturally focuses on the role and
development of the Assembly as a legislature.16
At one level, we see a modest output as
befits a modest scheme of executive devolution: some 700 pieces of general subordinate
legislation in the first term, and some 200 more in the most recent session. While many of
them are driven from over the border and others again by Brussels, the evidence to
Richard from the Office of Counsel General (OCG) rightly pointed up the significant
element of difference in subject-areas like education and local government.17
At another
level, a microcosm of the internal processes of tooling up and learning by experience that
characterises much of the Assembly‟s early life, we find a myriad of micro-developments
in business practice and formal procedure, the sheer detail of which fortunately need not
detain us here.18
A mark of the ingenuity shown by local actors in circumnavigating some
13
The subject of my earlier O‟Donnell lecture in the University of Wales: R. Rawlings, Towards a
Parliament – Three Faces of the National Assembly for Wales (Swansea: University of Wales, 2002),
reprinted in 15 Contemporary Wales (2002) 1. 14
Richard Report p. 79. 15
J. Osmond (ed.), The End of the Corporate Body (Cardiff: Institute of Welsh Affairs, 2004). 16
J. Williams, „The Assembly as a Legislature‟ in J. Barry Jones and J. Osmond (eds.), Building a Civic
Culture: Institutional Change, Policy Development and Political Dynamics in the National Assembly for
Wales (Cardiff: Institute of Welsh Affairs, 2002). 17
See W. Roddick, „Doing business with the Assembly: defining the parameters and utilising the
opportunities‟ (2002) 1Wales Law Journal 305. 18
See generally, D. Miers, „Law Making‟, in J. Osmond and J. Barry Jones (eds.), Birth of Welsh
Democracy (Cardiff: Institute of Welsh Affairs, 2003).
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of the legal difficulties associated with what is an overly prescriptive framework in the
devolution statute, suffice it to note that recent versions of standing orders have only a
passing resemblance to the original.19
Yet the sense of a legislative sausage machine is a pervasive one. Notwithstanding claims
to the contrary at the time of the devolution referendum, the unique statutory provisions
facilitating debate and amendment in plenary, and indeed the working assumptions of the
then UK minister‟s procedural advisory group,20
this should occasion little surprise.
Richard does not in terms make this point, but where is the political theatre in the great
mass of dull and technical subordinate legislation for something called a „National
Assembly‟?
By definition, the scheme of executive devolution undercuts the idea of a single process
of creating, administering and amending laws: how then to preserve the best of an
integrated system? Whereas the extensive intergovernmental process is said generally to
have worked well21
- that is, in the favourable conditions of Labour Party hegemony -
there clearly have been particular difficulties concerning „a voice for Wales‟ in primary
legislation. „No presumption that the Assembly will get the legislation, including the
subordinate powers, that it wants‟; „belated recognition in Whitehall that the Bill‟s
growing impact would impact on Assembly responsibilities‟; „the Assembly
Government… involved at a relatively late stage‟: Richard adequately conveys the
flavour.22
The report further highlights the constitutional and practical problems of relations
between the Assembly as a deliberative body and Parliament. Who could gainsay the
informal attempts previously made by the Welsh Affairs Select Committee (WASC), in
tandem with the Assembly Presiding Office, to promote exchanges of information and
19
Standing Orders of the National Assembly for Wales (April 2004). And see GWA 1998, ss. 64-68.. 20
National Assembly Advisory Group (NAAG), Recommendations (Cardiff: Welsh Office, 1998). 21
See for example, K. Patchett, „The central relationship‟ in J. Barry Jones and J. Osmond (eds.), Building
a Civic Culture: Institutional Change, Policy Development and Political Dynamics in the National
Assembly for Wales (Cardiff: Institute of Welsh Affairs, 2002). 22
Richard Report, pp 148-150.
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ideas – splendidly envisioned, a process of „co-legislation‟23
– in the cause of legislative
oversight? The inefficiencies however have been made brutally clear; likewise the
problem of a „scrutiny deficit‟ associated with the prevalent legislative methodology of
combined „England and Wales‟ bills. „Some proposals are scrutinised in great detail in
both places, while others fall between the two; and the initiators are not present to explain
their policies in the forum that scrutinises and legislates‟.
In summary, it has been a bit of a struggle, in more ways than one. Perhaps not
surprisingly, Lord Richard when launching the report accentuated the positive aspects. „It
is precisely the success of the Assembly and the Welsh Assembly Government in
establishing itself as the government of Wales in key public policy areas that creates the
pressure for change‟.24
Elsewhere, however, he has castigated the existing arrangements
as „grotesque‟ and „a lawyers‟ nightmare‟.25
A not insignificant feature, all sides in the
local political process can find something in the report with which to identify.
Continuing dynamics
Richard never could be the only show in town. Such is the logic of the many sub-
processes of national devolution that are now whirring away to greater or lesser effect.
Elsewhere in the forest, the dynamics far from slackening appear to have been
intensifying.
The replacement of the „partnership government‟ or Lib/Lab coalition with a bare Labour
working majority following the 2003 elections has naturally served to underwrite the
movement towards a more parliamentary „face‟ for the Assembly. „Government and
opposition‟: such is the not so subliminal message of an adversarial seating-plan and a
reduction of meetings of the all-party subject committees to a three-week cycle.26
Again,
23
Welsh Affairs Select Committee, The Primary Legislative Process as it Affects Wales, HC79, Session
2002-03; and see, K. Patchett, Developing a Partnership Approach to Primary Legislation Between
Westminster and the National Assembly (Cardiff: Institute of Welsh Affairs, 2002). 24
Richard speech. 25
Institute of Welsh Affairs, „Responding to Richard‟ Conference, 23 April 2004. 26
See for details, J. Osmond (ed.), The End of the Corporate Body.
10
one of the many changes of title that marks the internal constitutional development, the
Presiding Office is now reborn as „the Assembly Parliamentary Service‟ (APS) so putting
the Members‟ support function on a clearer comparative footing with „other
legislatures‟.27
A working party of House of Commons and Assembly officials has also been busy
working up the idea of formal arrangements for joint working.28
The organising concept
is one of „reciprocal enlargement‟, which enthusiastically applied would allow the full
Assembly and the Welsh Grand Committee, and Assembly and select committees, to
invite members of the other institution to participate in their debate or evidence sessions.
So typical however of much of the constructive endeavour in the Welsh constitutional
development, the work further serves to highlight basic difficulties. It is not simply that
the invitees cannot vote, or that there are unequal rules on privilege. A distinct lack of
enthusiasm elsewhere in the House for so accommodating the Assembly is shown in the
report of the Procedure Committee, limiting „reciprocal enlargement‟ to an experiment
with WASC.29
Joint working as a serious alternative to a generous scheme of legislative
devolution for Wales, this is not.
The ongoing allocation of powers to the Assembly as new statutes come on stream has
quickly become a familiar part of the constitutional landscape. So much so that whereas
Richard „started off with the expectation that we probably would make specific
recommendations either for or against possible extensions‟, the Commission eventually
gave up on the idea of tackling such a fast moving target.30
From animal health to student
support, and on through fire service powers to housing and child protection, Richard was
also much struck by the fact of „the Assembly Government … already pressing against
the boundaries of devolution‟. Notably, however, the Commission was less impressed by
the commonly adventitious and reactive nature of the process; one that offers scarce relief
in terms of the „jigsaw‟ of powers and efficient and effective conduct of devolved
27
Presiding Office press release 26 April 2004. 28
With a view to making the best of a tepid reply to the original WASC report: see HC 989, Session 2002-
03. 29
Procedure Committee, Joint activities with the National Assembly for Wales, HC582, Session 2003-04.
11
administration. „Looking to the future, the Assembly Government should determine and
explain its priorities for extending the breadth of its powers in a more strategic way than
has been possible hitherto, with a realistic appraisal of the pace and likely impact of
change‟.31
To pursue the theme, the sources of Assembly powers continue to multiply. A recent
parliamentary survey,32
for example, identifies no fewer than 12 bills or draft bills
intended to confer functions on the Assembly, some of a major kind, as in planning and
transport,33
others not. At the same time, particular bills usefully serve to highlight the
limitations of the current devolutionary scheme: most notably the Smoking in Public
Places (Wales) Bill, a measure denied UK Government support, and the Children Bill,
establishing a separate Commissioner concerned with the many non-devolved matters
affecting children in Wales. Constitutional friction is in this regard part of the quickening
process.34
The shape of the local administrative apparatus, already much larger and far more geared
to policy-making than were the structures of decentralisation under the Welsh Office, is
also set to become increasingly governmental in character over the next few years.
Beginning with three major players in the Welsh economy – the Welsh Development
Agency (WDA), Education and Learning Wales (ELWa), and the Wales Tourist Board –
the devolved administration has thus embarked on a major programme of public service
reform that includes absorbing many of the local executive agencies. „More firepower,
more critical mass, more ability to generate distinct Wales-oriented policies‟:35
let us
hope the practical delivery matches the First Minister‟s rhetoric. Constitutionally
speaking, this is another important milestone in Welsh devolution: demolition of the
institutions of the „local quango-state‟ using exceptionally wide powers given in the
30
Richard speech. 31
Richard Report, p. 195. 32
J. Osmond (ed.), Richard Commission Sets Agenda (Cardiff: Institute of Welsh Affairs, 2004), pp. 28-36. 33
Planning and Compulsory Purchase Act 2004 especially Part 6; draft Transport (Wales) Bill. 34
See for graphic illustration, Assembly Record 17 March 2004 and 27 April 2004. 35
Assembly Record 14 July 2004.
12
devolution statute;36
replacement of the arm‟s length model of public bodies responsible
to appointed boards in favour of direct lines of accountability to ministers. In turn, the
case for an internal Assembly architecture that prioritises efficient and effective forms of
scrutiny is effectively underscored.
(II) The Commission at work
It goes too far to describe Richard, as has First Minister Rhodri Morgan, as „a people‟s
commission‟.37
Unless, that is, one believes that the many local quangos have somehow
been colonised by the commons. Nonetheless, a broad mix in the membership of
individuals nominated by the four main political parties in Wales, and – to the exclusion
of those with „form‟ on devolution – of people selected through the public appointments
system, clearly lends the report rhetorical power.
In light of the difficult history of the matter, and especially the muddying of the waters
produced by the divided opinions of the Kilbrandon Commission in a previous
generation,38
securing a unanimous report has been at a premium. The fact that, subject to
a letter of reservation from the Labour nominee,39
all ten commissioners signed must be
attributable in part to the considerable personal and diplomatic skills of Lord Richard. As
one would expect, there is also a certain price to pay, in the form of various „joins‟ or
places in the report where the case is not fully developed. It is, we shall see, the broad
themes that commonly sustain the argument.
It is important to keep in mind the variety of audiences the report has been required to
address. It is not simply that the local political landscape has altered: from the coalition
that engendered the review to a solely Labour Administration. As well as the need to
strike a chord amongst civil society in Wales, the Commission in bringing forward major
proposals obviously knew it would be an uphill struggle at Westminster, as broadcast in
36
GWA s. 28 and Schedule 4. 37
Assembly Record 31 March 2004. 38
Report of the Royal Commission on the Constitution, 1969-1973, Cmnd. 5460 (1973). 39
Ted – now Lord - Rowlands: see Richard Report, annex 8.
13
the more or less sceptical voices of Welsh Labour Members.40
An early sign of trouble
ahead was what did not happen, a review established jointly by the Assembly and central
government.
Evidence base
In Lord Richard‟s words, „I had no preconceived views except perhaps the thought that it
was early days to be rethinking the settlement... It was only in response to the evidence
that the need for change became clear in my mind.‟41
The Commission only being able to
propose and not dispose, the twin facts of a voluminous evidence base and evidence led
approach could also be reckoned useful devices in the public discussion. Some eighteen
months hard labour in the cause of Wales is less easily discounted.
After a slow start in the shadow of the 2003 Assembly elections, the public process
engaged in scores high. Some 300 written submissions, 115 evidence sessions and 9
public meetings across Wales: the scale of the interaction not only speaks for itself but
also to the growing strength of Welsh civil society in the context of national devolution.
Kilbrandon once again suffers by comparison.42
However, there is a downside. With no designated research capacity or special advisers,
and provided only with a tiny civil service secretariat, the Commission could not properly
self-start. Nor should the volume of evidence obscure the lack of a vibrant public law
tradition in Wales and what this implies in terms of the presentation and close analysis of
a wide variety of constitutional choices and combinations.43
Simply put, Richard was not
well placed to cover all the bases, especially since the official evidence from the Welsh
40
R. Hazell, „If Ivor Richard says Yes, will London Still Say No?‟ in J. Osmond (ed.), Second Term
Challenge. Can the Welsh Assembly Government hold its Course? (Cardiff: Institute of Welsh Affairs,
2003); and see, by way of confirmation, Welsh Grand Committee proceedings, 6 July 2004. 41
Richard speech. 42
J. Osmond, „Nation Building and the Assembly‟ in A. Trench, Has Devolution Made a Difference?
(London: Constitution Unit, 2004). 43
See for an exception that proves the rule: M. Laffin, A. Thomas and I. Thomas, Future Options. An
Assessment of the Powers of the National Assembly for Wales (Cardiff: Glamorgan Policy Centre, 2003).
14
Assembly Government was largely descriptive in nature. Future historians may see this
point as coming back to haunt the Commission.
Public opinion
One major contribution deserves singling out, since without it the Commission may not
have been so bold. Let us remember that the choice of an assembly, not a parliament as in
Scotland, was officially justified on the ground of less popular consensus for change.44
The Commission was naturally concerned to draw, and to be seen to draw, on the views
of ordinary people in Wales, including as a form of reality check.
Enter the Institute of Welsh Politics, Aberystwyth, armed with detailed survey findings
on public attitudes to devolution and the changes since the (wafer-thin majority achieved
in the) 1997 referendum. The Commission took particular note of two aspects: a doubling
in support for a parliament in Wales (to 38%), coupled with a halving in support for no
electoral body (21%); and, contrasting with London, a high level of trust in the Assembly
to act in the best interests of Wales.45
To push home the point: in the face of this
methodologically rigorous evidence it must have been extra-hard inside the Commission
to argue that a legislative assembly still lacked popular support and so was premature.
The findings also gelled with a key theme – and critical constitutional distinction -
emerging from the public meetings. „Many people support further devolution without
being over impressed by what has been achieved so far‟.46
Official mismatch
There is however a major mismatch in the official evidence. Whereas, portfolio by
portfolio, the Commission received a mass of evidence from the local administrative
machine, as a non-UK sponsored body it was prevented from engaging directly with the
individual line departments in Whitehall, having to make do instead with the midget
44
R. Rawlings, „The New Model Wales‟, (1998) 25 Journal of Law and Society 461. 45
Richard Report, p. 41 46
Richard Report, p. 44
15
Wales Office. Consideration of the opportunities and constraints involved in the UK
legislative programme, a central element in the Commission‟s inquiry, was thus missing
the chief drivers.
This is no idle point. According to Richard, the legislative relationship is „based
increasingly on the expectation that, in principle, the needs and wishes of the Assembly
should be met… It is recognised that the Assembly Government is the initiator of policy
on devolved matters and a major stakeholder on non-devolved issues as well… This is
the position that has evolved, through practice and precedent, since the establishment of
the Assembly‟.47
Yet if we do what the Commission could not and canvass the opinions
of senior Whitehall officials used to dealing with the Assembly, the picture appears less
rosy. We hear for example that the devolved administration „has not matured‟; and that, if
primary powers were granted, the centre would have to retain a power to intervene „if the
Welsh duffed up‟. Meanwhile, Richard‟s own assessment „should go down a notch‟. The
Assembly „is only a major stakeholder on devolved issues‟. Again, after some five years
of „democratic devolution‟, it said that a „one legal system‟ attitude largely prevails in
Whitehall as regards Wales.48
Central government not being a monolith, some departments will be more „devolution-
friendly‟ than others. It is also reasonable to expect that official attitudes will soften over
time as devolution becomes part of the fabric and a new generation of civil servants
occupies the bridge. Nonetheless, in charting the future of Wales‟ constitutional
development, one should beware underestimating the capacity for administrative politics
or „turf wars‟, as also the powerful countervailing tendencies or centripetal force
associated with Whitehall.49
The vision thing
47
Richard Report, p. 253. 48
Interviews conducted in May-June 2004 as part of the Constitution Unit‟s „Law and Devolution‟ project
for the ESRC‟s rolling research programme „Devolution and Constitutional Change‟.
16
A clear constitutional vision – how the different elements fit together, and where
devolution is supposed to be leading in Wales – is a critical benchmark for evaluating the
work of the Commission. How could it be otherwise, given the overly pragmatic and
piecemeal approach that has obtained, a typical product of internal Labour Party
compromise and a recipe for muddle and confusion and for popular incomprehension?
More particularly, would the Commission go for a quick fix or take the opportunity as an
independent body to look at the matter more long-term? Credit where is credit is due,
Richard cannot be accused of shirking an historic responsibility.
So, much to be applauded from the viewpoint of constitutional design, the Commission
set about developing recommendations on the basis of an agreed understanding of what
the Assembly‟s role and purpose should be. The roots may be said to lie in a concept of
legislative and administrative „space‟: one which, subject to the many practical
constraints of contemporary multi-layered governance, connotes „an Assembly that has a
real job to do and has the powers to govern Wales in an effective way‟.50
„The Assembly is the democratically elected representative body for the whole of Wales.
The Welsh Assembly Government should be able to formulate policies within clearly
defined fields and should have the power to implement all the stages for effective
delivery, in partnership with the UK Government and other stakeholders. The Assembly
Government should be able to set its own priorities and timetables for action. It should be
accountable to the people of Wales through the elected Assembly for its policies and their
implementation.‟51
The striking feature is just how unremarkable this is from the viewpoint of comparative
constitutional development. It is about bringing Wales into the mainstream, as opposed to
the insular path – „the strange anatomy‟52
of the corporate body, etc – previously
followed. The clues to a generous scheme of legislative devolution jostle for attention in
49
A key theme elaborated by A. Trench, „The More Things Change, The More They Stay The Same‟ in A.
Trench (ed.) Has Devolution Made a Difference? (London: Constitution Unit, 2004). 50
Richard Report, p. 241. 51
Richard Report, p. 241.
17
this passage. That is to say: „within clearly defined fields’, not a jigsaw of powers; „all the
stages‟, not the horizontal division of functions; „in partnership‟, for which read
especially the well-known Sewel convention; „own priorities and timetables, not the
Westminster bottleneck; and „accountable‟, as in formally separate legislative and
executive branches.
Constitutional values
A typical product of the local political and administrative machine, the Commission‟s
terms of reference directed it to take a very practical focus.53
How were things working?
How might they be improved? There clearly was much to be said for this: to make an
impact, the recommendations had to be grounded in fact, as well as being workable and
realistic. Yet there was an obvious danger: failure to see the wood for the trees.
Bureaucratic myopia would be another way of describing the terms of reference. Full of
insider‟s concerns like the technocratic concept of „optimum efficiency‟, it was all put in
terms of policy making or outputs to the exclusion of constitutional or citizenship values
like transparency and intelligibility. Bizarre as it may appear in the light of what follows,
the concept of accountability was likewise nowhere to be seen.
Happily, Richard rose above this, cleverly combining practical concerns with some
familiar constitutional ideas. „We held on to some key principles – is there clear
accountability, is the system open and transparent, can it deliver, is there strong and
effective scrutiny, can people understand it sufficiently to get involved and have an
impact?‟54
Again, as might have been predicted given the inchoate nature of much in the
so-called „devolution settlement‟, the pervasive sense of the report is the more the
Commission looked the more it was driven to invoke basic constitutional values. To this
52
Delineating Wales, chapter 3. 53
Discussed further in Delineating Wales, chapter 15. See also, C. Jeffery, „The Report of the Richard
Commission: An Evaluation‟ (ESRC Devolution and Constitutional Change briefing No. 12, 2004). 54
Richard speech.
18
effect, the report cuts a broad swathe through the evidence from Assembly cabinet
ministers, which was determinedly about nuts and bolts questions.55
In particular, the Commission faced its own struggle: how to stay on course in the face of
seriously unhelpful interventions by the Secretary of State for Wales? By which is meant
the attempt to visit on Richard a „practical delivery benchmark test‟ or assessment of
individual recommendations for their contribution to particular domains like health care
and education.56
It is not simply that this was beyond the resources of the Commission to
perform, or indeed that it was open to the basic constitutional objection of appointees
presuming to say what the democratically elected representatives of the people of Wales
might do with any additional powers allocated. Tasked to consider the framework of
devolved government and not substantive policies, the Commission could quite properly
avoid doing what the minister wanted. Far from saying that the good government of
Wales consists of making trains run on time, Richard worked on the pleasant
constitutional assumptions that gains in democracy and accountability are valuable in
themselves and that more open, participative and responsive governance is likely to
produce better policy outcomes.57
The Commission in other words took the devolutionary
promise of „bringing government closer to the people‟ seriously.
Golden thread: accountability
Accountability in its standard political forms is aptly described as the golden thread of the
report. In this sense the findings and recommendations can be seen expanding on the
original devolutionary rationale of combatting the democratic malady of the
Conservatives‟ local „quango-state‟, now itself mutating into a major parallel process of
public service reform. Especially in terms of strong and effective forms of scrutiny
reflecting the diversity of party politics in Wales, Richard thus confirms that
accountability is unfinished business in Welsh devolution, not only as regards current
55
Richard Report, chapter 5. 56
Peter Hain, „Changing for Good – Devolution: the Silent Revolution‟, Constitution Unit public lecture 28
January 2004. 57
Richard Report, pp 1, 241.
19
workings but also as an essential constitutional argument for, and design feature of, a
legislative assembly.
Take the issue of the basic internal architecture. Reflecting and reinforcing the logic of
the strong autochthonous constitutional development, the Commission has sanctioned a
move beyond the mere cosmetics of a „virtual parliament‟ to adopt the standard
parliamentary structure of a formally separate executive drawn from the assembly. „On
grounds of accountability and clarity, there is a strong case for changing the Assembly‟s
legal structure with the powers it has. With enhanced powers, the case is indisputable‟.58
Then there is the day to day workings of political accountability inside the Assembly.
Rightly, the all-party subject committees, the proverbial „jewel in the crown‟ of the
original design of the Assembly, came in for a roasting. „Sessions were not sufficiently
rigorous or challenging‟. There was „insufficient opportunity to probe key issues‟. The
committees „have not focused on their quango scrutiny function.‟ Ministerial
membership, which „suppresses the development of a scrutiny culture… and obscures the
lines of accountability‟, should no longer be prescribed in the devolution statute. „The
over-riding imperative is for clarity of responsibility for scrutiny and challenge, and for
the independence of committees from the Government‟.59
As for Wales and Westminster, „the fundamental problem is one of split accountability –
proposals are initiated in one representative body and scrutinised and adopted in another.‟
A variation on a theme: „it is hard for the public and lobbying organisations to know who
is responsible for legislation under these arrangements‟.60
Richard in other words well
understood that the efforts at joint working between the two sets of representatives are
constitutionally-speaking only a palliative.
(III) Heart of the matter
58
Richard Report, p 258. 59
Richard Report pp 57, 79, 131, 258. See for comparative discussion, M. Sandford and L. Mair, Scrutiny
under Devolution: committees in the Scottish Parliament, Northern Ireland Assembly and National
Assembly for Wales (London: Constitution Unit, 2003).
20
Radical edge
Turning then to the core issue of legislative power, the Commission in considering major
change was required to answer several related questions. Should the basic canon of the
1998 Act, howsoever generously interpreted, be abandoned in favour of primary powers?
If so, what should the model of legislative devolution for Wales look like? How should
matters proceed in the short or medium term ahead of full implementation? Key to an
understanding of the recommendations is that at each stage Richard chose the most
radical option.
The way ahead
Rejecting the status quo - involving ad hoc, piecemeal development - as unsustainable
was the easy bit. Once the matter was looked at more long term the constitutional defect
of excessive dependency on Whitehall and Westminster could not be glossed over.61
Nor
was the smug insider‟s view that ministers and officials were quite capable of handling
the intricacies of the powers apt to endear itself to Richard. „Complexity… remains a
central issue for accountability to, and engagement with, the people of Wales‟.62
A model of framework legislative powers or the stretching of existing arrangements via
an application of the so-called „Rawlings principles‟, adopted by the full Assembly in
2002 and standing for greater consistency and generosity in the allocation of devolved
functions in primary legislation,63
also offered no clear permanent solution. Even
assuming that the UK Government, which so far has resisted endorsing the principles on
60
Richard Report, p 180. 61
Richard Report, p. 255. 62
Richard Report, p 118. See further, D. Miers and D. Lambert, „Law making in Wales: Wales Legislation
on-line‟ [2002] Public Law 663. 63
Assembly Review of Procedure: Final Report (February 2002) annex 5; and see, R. Rawlings, „Quasi-
legislative devolution: powers and principles‟ (2001) 52 Northern Ireland Legal Quarterly 54.
21
the overly pragmatic basis that each bill must be drafted in the light of the policy
decisions made in that particular case,64
could first be persuaded to mend its ways.
As for the appropriate constitutional way forward, we have seen how the many
institutional developments since 1998 pointed firmly in the direction of primary powers,
and thence how the Commission‟s vision of the role of the Assembly served to confirm
this. The succinct explanation given by Lord Richard speaks volumes. „A legislative
assembly is the most logical and straightforward way to enable the Assembly and its
government to do the job it has been elected to do‟.65
Going direct
As to the preferred model of primary powers, the choice ultimately came down to a
tripartite model of reserved powers, devolved powers, and an intermediate and temporary
category of retained powers where the assembly could legislate but only with London‟s
consent, and a dual model of reserved and devolved powers. In effect, this was a choice
between a phased or rolling programme of empowerment, one that incorporating
comparative lessons from Northern Ireland would echo the strong evolutionary element
in Welsh devolution, and a more conventional or Scottish-style design offering a cleaner
and more generous cut from the outset.66
The tripartite model was no „Aunt Sally‟. For a Commission minded to conclude that
full-sized devolution was too much for the territorial administration to take on all at once,
it offered another framework for organic change. Effectively, a „map‟ would be provided
of the areas that over time the devolved administration could be expected to colonise for
the purposes of exercising primary lawmaking powers. Meanwhile, allowing the
assembly to make particular pieces of statute law would give members and officials the
64
HC 989, Session 2002-03, p 5. 65
Richard speech. 66
As explained in my evidence to the Commission; reprinted as R. Rawlings, „Of Primary Powers, Etc. Two
Schemes of Legislative (and Executive) Devolution‟ (2003) 2 Welsh Law Journal 408.
22
opportunity to acquire the skills and refine the procedures necessary for drawing up,
processing and implementing primary legislation more generally.
The sub-text was delivery. Might not the powers-that-be prefer this type of phased
approach, so underscoring the role of the Secretary of State for Wales and the importance
of legislative partnership with the Welsh MPs, and blunting the argument for another
devolution referendum? With a view however to loosening the chains, the Commission
proved more brave-hearted and rejected the tripartite model as too complex. In Lord
Richard‟s words, „the Northern Ireland middle category is there for reasons specific to
them and we didn‟t see the need to go down that route in Wales.‟67
The alternative model of reserved and devolved powers in fact offers solid advantages
from the viewpoint of constitutional design. It thus fits both in terms of clarity and
legislative „space‟ with the Commission‟s vision of the role of the Assembly. Some basic
lines of political responsibility and accountability would be etched on the face of the
devolution statute; there would also be reduced dependency on, and correspondingly less
potential for enervating disputes with, Whitehall and Westminster. Likewise, in providing
more scope for innovative and rounded approaches to policy development and
implementation by the devolved administration, this model sits comfortably with the
increasing pursuit of the positive opportunities for „made in Wales‟ policies available
under the current – interim – constitutional arrangements. On the basis – as illustrated in
figure 1 – of the fields of devolved functions originally listed in the Government of
Wales Act, Richard duly recommended it.68
One aspect the Commission omitted to mention is the legal technology needed to sustain
such a scheme. In addition to the „horizontal‟ restrictions on devolved competencies such
as EU obligations, key features in the Scotland Act 1998 would no doubt be read across,
for example interpretative guidance to courts on dealing with devolved primary
legislation and devices for securing constitutional compliance like prior legal scrutiny of
67
Richard speech. 68
GWA schedule 2; Richard Report, pp 248-250.
23
bills.69
Indeed, the day a devolution statute solemnly declares that it „does not affect the
power of the Parliament of the United Kingdom to make laws for Wales‟70
will be the
day this little country comes of age.
Figure 1: legislative devolution for Wales - reserved and devolved powers
Timetable – tooling up
The report pays careful attention to the constitutional and administrative processes
involved in achieving a legislative assembly. Its illustrative timetable71
– culminating in
2011 with primary powers – stands in marked contrast to the recipe for early operational
difficulties that was the rush job of 1997-1999. Considered in terms of functions, this in
69
Scotland Act 1998, ss. 31-33, 101. 70
As adapted from the Scotland Act 1998, s. 28(7). 71
Richard Report, p. 261.
24
fact is Richard‟s alternative to the idea of a rolling programme of legislative devolution:
an extended first stage involving rapidly expanding responsibilities for the devolved
administration, but short of primary powers, and the second stage of the complete
Scottish-style design. To this effect, the timetable stands for a delayed and muted
constitutional „big bang‟.
Figure 2: Richard‟s illustrative timetable for implementation
2005 Possible UK General Election
2005 Drafting approval for new Wales Bill
2006 Bill published for pre-legislative scrutiny
May 2007 Assembly election
November 2007 Wales Bill introduced
July 2008 Royal Assent
2008-2010 Boundary Review
2011 Election of new body with 80 Members and
primary powers
The Rawlings principles, which encompass the use by the devolved administration of
broad enabling powers and in particular of generous „Henry VIII‟ type powers to repeal
and amend statutory provisions, would clearly have an important role to play here.
Originally conceived as a way of realising the potential of the GWA and so affording the
infant body space to grow, Richard‟s two staged approach would see them explicitly
directed to the end-game of a stable and robust devolution settlement. With a view to
promoting local expertise in broad policy development and law making and providing for
a smooth transition, the model of framework legislative powers was therefore preferred
„in the interim, and as a bridge to full legislative competence‟, to more of the same.72
72
Richard Report, pp 256-257.
25
So according to this scenario the devolved administration would move to – and through –
a kind of „quasi-legislative devolution‟ involving the making of the type of policy rules
traditionally expressed in, but without the proper status of, primary legislation.73
As
Richard sees it, „this would involve the progressive transfer of delegated powers in
respect of devolved services, allowing the maximum scope for the Assembly to exercise
its secondary legislative powers to implement its policies without further recourse to
Westminster.‟74
Or what the report calls „a new legislative partnership‟, perhaps
expressed as „soft law‟ in the form of a memorandum of understanding to emphasise the
commitment.75
As well as demonstrating the Commission‟s radical edge, this proposal would neatly
avoid immediate amendment of the GWA. It is however vulnerable to the classic
Whitehall objection of too much legal and administrative trouble for fleeting purpose.
Geo-politics
Welsh devolution serves in its own small way to highlight the interplay in the UK
constitutional development of the twin elements of symmetry and asymmetry or
uniformity and diversity. Whereas it is part of the Welsh condition to seek to piggyback
on Scotland in matters of institutional advancement, the novel interface of national
devolution with deep-rooted practices and understandings that have scant regard for
Offa‟s Dyke generates its own very strong cross-currents.
Simply put, a centuries long process of legal, political and administrative assimilation
with a powerful neighbour cannot be wished away. Taking a view on primary powers
more in tune with the concept of a „National Assembly‟ is fine, but the Commission also
had to factor into the equation what I described in evidence as „the uniquely powerful
73
As envisaged in R. Rawlings, „Quasi-Legislative Devolution: Powers and Principles‟. 74
Richard Report, p. 256. 75
As part of the paper construction of intergovernmental relations in UK devolution: R. Rawlings,
„Concordats of the Constitution‟ (2000) 116 Law Quarterly Review 257.
26
geo-political concept of “England and Wales”‟.76
Famously expressed in, but not
confined to, the overarching unity of a legal system, it is of the essence of the idea - in
Lord Richard‟s words - of a „model specifically tailored to Welsh circumstances‟.77
This is not to say that the old „cross-border‟ paradigm is somehow set in stone. While
there will surely be many situations where integrated policy and delivery systems of this
kind continue to hold sway, and for good reason, it would be strange indeed if the pull of
national devolution did not strengthen over time and across a broad range of public and
private institutions. It is nonetheless idle to think of Richard with a blank sheet of paper
here.
So, reverting to the recommended model of legislative devolution, the basic division of
reserved and devolved powers clearly needs fleshing out in the light of the peculiar
history and geography of Wales. While grounding primary powers in the original fields
of devolved functions would amount to a wide-ranging constitutional dispensation across
much of public law, it is also designedly more limited than the Scottish scheme. As a
terse treatment in the report makes abundantly clear, legislative devolution in core areas
of the administration of justice, both civil and criminal, was not seriously on the
Commission‟s agenda.78
In similar vein, the Sewel convention as developed in the Holyrood context, whereby,
with the agreement of the legislative assembly, Westminster would operate as Wales‟
„other Parliament‟ by legislating on devolved matters, has special resonance. As the
report explains, „such legislation is likely to be even more extensive in respect of Wales
than it has been for Scotland. This would reflect cross-border issues as well as Wales‟
closer historic and institutional relationship with England.‟79
No doubt the resulting
„balance‟ between Wales-only legislation, passed in Cardiff, and England and Wales
76
See further, Delineating Wales, especially chapter 11. 77
Richard speech. 78
Richard Report, pp 193-194. See for general discussion of the developments associated with „Legal
Wales‟, T. Jones and J. Williams, „Wales as a Jurisdiction‟ [2004] Public Law 78.
27
legislation, passed at Westminster, would also change over time, according not only to
political circumstance but also – in suitably evolutionary fashion – the increasing
capacities of the devolved administration. For its part, in the face of such close
„partnership‟ in the Union State, the Commission could afford to be more relaxed about
legislative devolution than it might otherwise have been.
Following in the footsteps of the Scotland Act 1998, the Commission carefully avoided
the legal minefield of a devolved scheme of defined functions, opting instead for a
general model and presumption that primary powers pass unless reserved. However,
because once again of the peculiar pull to uniformity, the list of specific reservations in
the Scotland Act is clearly apt to be magnified in the case of Wales.80
As that statute also
reminds us, they could take the form not only of subject area designations but also of
specific references to statutes. In this regard, the original Transfer of Functions Order
empowering the Assembly – a minefield of particularity - should never be forgot.
As direct engagement with the individual Whitehall departments would no doubt have
revealed to the Commission, there is no magic wand. Looking forwards, this kind of „turf
wars‟ is however an intergovernmental struggle that will have to be endured if Wales is
ever to have a governmental framework of tolerable clarity and stability. To this effect,
there is much to be said for charting a broad constitutional design, so meeting the demand
for a manageable and generally comprehensible set of arrangements, and then working
outwards, which is effectively what the Commission proposes. Perhaps hopefully, the
particular constraints of statutory drafting would also operate to limit the listing of
specific reservations in any „Wales Act‟.
A variation on a theme, there is a special need in the Welsh context for „bridging
provisions‟, whereby – on the Richard scenario – local cabinet ministers would have
secondary powers beyond the realm or reach of the primary powers given to the
79
Richard Report, p 257. See for comparative discussion, A. Page and A. Batey, „Scotland‟s other
parliament: Westminster legislation about devolved matters in Scotland since devolution‟ [2002] Public
Law 501. 80
As discussed by Lord Elis Thomas under the rubric of „Contingencies of Devolution‟.
28
legislative assembly. Consent and consultation provisions, whereby London is required to
work in partnership with Cardiff on a cross-border basis, are an obvious example. In this
way, the geo-politics of the situation is also indicative of a mixed form of legislative and
executive devolution for Wales.
(IV) Consequentials and side-steps
Reflecting the demand for an holistic approach to constitution-building for Wales, the
report demonstrates a clear-cut line or direction of „consequentials‟, whereby the core
recommendation on powers signals the end of the corporate body and grounds the case
for a larger Assembly and in turn for a different electoral system. Bound up with the
golden thread in the report of political accountability, the coherence or powerful internal
logic of this alternative model of a legislative assembly cannot be gainsaid.
That Richard merely had to sign the death warrant of the corporate body is a tribute to the
scale of the home grown constitutional development since 1999. Looking forwards, a
local version of the Scottish parliamentary corporation already is on the horizon: the
conventional model of a distinct legal entity charged with ensuring the service and
support of the parliamentary process and associated activities. As the official
announcement of the new Assembly Parliamentary Service put it, „though the change has
been agreed by Members independently of the recommendations of the Richard
Commission, it reflects the Commission‟s view that the structure of the Assembly should
be reconstituted with a separate legislature and executive‟.81
APS is in fact the Welsh
parliamentary corporation in waiting.
Back to the future
As part of the remit on electoral arrangements, the Commission was required to consider
the size of the Assembly from both angles: adequacy under the existing set up and case
for change – increase – in view of its recommendations on powers. Yet, as Richard
81
Presiding Office, press release 26 April 2004.
29
observed, there is no „correct‟ size for an assembly or parliament.82
As well as the
functions and powers and jobs to be done, there are some more intangible factors that an
independent Commission could reasonably consider, such as the scope for
„representativeness‟, likely scale of the „payroll‟ vote, and the local reservoir of talent.
As for the history of the matter, there is no particular operational reason for an Assembly
shrunk from the headcount of 80 Members originally contemplated in the ill-fated Wales
Act 1998 and thence in Labour policy making up until 1997.83
Another triumph of
delivery over constitutional product, this was driven by a different political choice of
electoral system: no longer „first past the post‟, but an additional member system (AMS)
which would demonstrate „inclusiveness‟ - including for the purpose of a referendum -
while being calculated to produce a Labour working majority.84
In adopting the otherwise
unremarkable principle that „size follows function,‟ the Commission was thus directly
challenging a train of thought in the constitutional construction that had originated in
another internal Party compromise - and happily so.
In light of the first term, the Commission was able to identify much slack in the workings
of the Assembly as a deliberative body. This is not only a function of short hours and
long holidays, but also links to a general sense of aimlessness in many of the debates in
plenary, which in turn reflects the basic lack of legislative substance in this „virtual
parliament‟. Again, elaborating on the greater focus on scrutiny that subject committees
might bring once freed from their ministerial chains, the Commission pointed up the
untapped potential of smaller size arrangements, as also of rigorous priority setting and
more flexible working methods.85
Simply put, by facing up to the evident failings in
political accountability under the current arrangements, the Assembly could do better.
Nonetheless, given the evident need in a legislative assembly for a stronger culture of
challenge and scrutiny, Richard emphasises that enhancing existing capacities would not
82
Richard Report, pp 63-64. 83
See especially, Welsh Labour Party, Shaping the Vision: A Report on the Powers and Structure of the
Welsh Assembly (Cardiff: 1995). 84
See Delineating Wales, chapter 1.
30
be sufficient to cope with primary powers. To the contrary, a combination of efficiency
gains and extra members would be „necessitated by the additional scrutiny workload‟.
More particularly, with a view to where much of the additional burden would
undoubtedly fall, the opportunity for individual Members to develop subject expertise,
and the regularity of committee meetings, are rightly prioritised by the report.86
This in short is a refreshing vindication of the view that in a new constitution for Wales
the empirical truth that government usually gets its way should not be allowed to obscure
the importance of the debating and legitimating functions. Surprise, surprise: it was also a
case of „back to the future‟. Neatly fitting a gleaming Assembly chamber in prospect, as
also the current electoral map of 40 constituencies in Wales, the recommended expansion
to help complete the unfinished business of accountability was from 60 to 80 Members.
Last man standing
It is in the nature of the beast that whatever Richard recommended on electoral
arrangements, would be controversial. Such are the many unresolved tensions in the
Welsh body politic between the long-standing political dominance of Labour and the
plural dynamics of having four major political parties. Indicative of considerable
movement inside the Commission, the fact of a unanimous recommendation in favour of
the single transferable vote (STV) system of elections for a larger assembly truly is
remarkable.
Richard faced two particular complications. First, with a view to implementation, the
Commission clearly had to keep in mind the broader UK dimension and especially the
ongoing public discussion over appropriate electoral arrangements for devolved
government „north of the border‟. Take the precept of „coterminosity‟, currently
embedded in the GWA,87
whereby the boundaries of the parliamentary constituencies and
the Assembly constituencies should be either identical, or at least not inconsistent, with
85
Richard Report, pp 68-71. 86
Richard Report, pp. 258-259. 87
GWA, Schedule 1, paragraph 1.
31
each other. Of the essence of the Scottish debate88
for understandable reasons of voter
awareness, constituency representation and party political organisation, Richard also
hints at it for the purpose of STV.89
Already touched on, there was secondly the great unwritten assumption underlying the
GWA that the Assembly electoral system should be one which both brings all the
principal political parties inside the tent and – in contrast to Scotland90
- offers Labour a
reasonable expectation of forming a majority government. How far - in either direction -
could Richard reasonably go away from this design element of genuine electoral
competition? Alternatively, how should the Commission respond in light of the practical
workings of AMS, including the absence so far of clear working majorities for the
dominant interest?
Whereas the Liberal Democrats clearly had been influential in flagging up „the degree of
proportionality‟ in the terms of reference, it was notably a case in the evidence gathering
of Labour elements hammering away at AMS.91
Given the fundamentalist objection of
two classes of member, and voting patterns that have so far produced just one Labour
„list‟ AM, it was perhaps inevitable that Richard should conclude that this system could
not sustain an expansion to 80 AMs. „If there were substantially more regional [list]
members, the scope for competition and argument about their activities seems likely to
increase‟.92
The report then shows little interest in fine tuning existing arrangements,
most obviously to prevent dual candidature or the Labour bete noire of election via a list
of constituency losers.93
88
See especially, Scottish Affairs Committee, Coincidence of Parliamentary Constituency Boundaries in
Scotland and the Consequences of Change, HC 77, Session 2003-04. 89
While leaving open the alternative of shared boundaries with local government areas: Richard Report, p.
237. 90
By reason of the greater proportion of list to constituency members prescribed in the Scottish devolution
settlement: see Delineating Wales, chapter 1. See further, Independent Commission on Proportional
Representation, Changed Voting, Changed Politics, Lessons of Britain’s Experience with PR since 1997
(London: Constitution Unit, 2004). 91
See Richard Report, pp 35-39. 92
Richard Report, p. 233. 93
A familiar source of complaint in Cardiff Bay: see for example, Assembly Record, 28 January and 3
February 2004. See also, J. Bradbury, O. Gay, R. Hazell and J. Mitchell, Local Representation in a
Devolved Scotland and Wales (London: ESRC, 2003).
32
The Commission‟s rejection of „first past the post‟ (FTPT) for Assembly elections is
compelling. Given that the results would be much less proportional than under AMS -
perhaps 75% of seats on 40% of the vote for Labour94
- the report once again highlights
the major implications in terms of political accountability as compounded by the fact of
an essentially four party system. The „capacity for opposition and challenge‟ as well as
„the Assembly‟s claim to represent Wales as a whole‟ would thus be seriously
prejudiced.95
Another telling point, the report carefully distinguishes these conditions of
small country governance from Westminster, where of course FTPT does not rule out the
election of sufficient opposition Members to make possible effective scrutiny. For those
with a genuine care for the health of Welsh democracy as against a narrow interest in
„strong government‟, the Commission‟s stark language makes the point admirably. FTPT
„would not be defensible‟.96
And so, essentially on the basis of „last man standing‟, Richard opted for STV.97
The
system clearly has many attractions in the context of devolved government: a strong
element of local representation and single class of member, the factors of proportionality
and enhanced voter choice including between the candidates of a party. The Commission
could not be accused of lack of valour here. Not so much „red flag‟ as „red rag‟ would be
one way of describing the plural party representation across Labour strongholds apt to be
engendered by STV.
‘Real’ and ‘virtual’ STV
Of course much would depend on the precise contours of the system. Since it could
conceivably come back into the equation post-Richard, the importance of the choice
between multi-member constituencies and dual member ones where the dynamics of
94
Extrapolating from the votes cast on in the first ballot of the 2003 Assembly elections: Richard Report, p.
234. 95
Richard Report, p 234. 96
Richard Report, p. 239.
33
proportionality would scarcely have room to operate deserves a special emphasis. It
represents - to coin a phrase - the difference between „real‟ and „virtual‟ STV.
Given the particular demography of Wales, a diverse mix of urban and rural, the
Commission understandably chose a middle path. „A range of four to six Members (and
exceptionally of three Members in some areas) per constituency should make possible a
reasonable balance between local accountability and proportionality.‟98
Technically
speaking, in terms of the work on boundaries etc, this would not be difficult to chart.
However, such a system would be a shot in the dark, the exact electoral consequences of
it being very difficult to model.99
One might reckon on a similar party division of seats to
that produced by AMS or – more probable – some lessening in the chances of one party –
Labour - gaining an overall majority. There is more than one reason why this part of
„Richard‟s radical recipe‟ is prone to cause political indigestion!
Don Quixote in Cardiff Bay
Paper may yet be laid on paper. Just as the Commission had completed its deliberations,
the UK government announced a review of the electoral arrangements for Scottish
devolution, whereupon the Secretary of State for Wales seized the opportunity to reserve
the option of doing likewise once the Welsh Assembly Government had responded to
Richard‟s recommendations.100
Review or no review, the prospect opens up of the current Assembly electoral
arrangements continuing,101
subject to tighter regulation or no dual candidature. From the
viewpoint of the official architects, there would be advantages in terms of continuity and
97
The advocacy of the Electoral Reform Society and the Parliament for Wales Campaign was influential
here: Richard Report, p. 225. Other alternative systems like Alternative Vote (AV) received short shrift:
Richard Report, pp 234-235. 98
Richard Report, p. 239. 99
See now, R. Wyn Jones and R. Scully, STV in Wales (ESRC Devolution and Constitutional Change
briefing No. 9, 2004). 100
Wales Office press release 9 February 2004. 101
As discussed below in the context of no change to the size of the Assembly and/or no primary powers.
34
- in light of Richard‟s extended timetable – the brevity of reform. History then may yet
record that following a „shoot out‟ - non-proportional system recommended against by
the Commission, proportional STV disowned by a hegemonic Party that still can „win‟ in
Wales - the amalgam that is AMS remained in post as „last man standing‟. Put another
way, could it just be that in assailing current arrangements under the tattered banner of
FTPT local Labour representatives have been tilting at windmills?
Eye on the ball
As well as serving to highlight the „consequentials‟, the following figure points up a
series of major issues about which the report is effectively silent or determinedly soft-
edged. Some good old-fashioned Welsh sidestepping is clearly in evidence.
Figure 3: consequentials and side-steps
35
Take the financing of devolved government – „the fiscal constitution‟ – and in particular
the role and place of the much criticised Barnett formula.102
Effectively warned off this
very sensitive topic by the Assembly finance minister,103
the Commission in dealing with
only one part of the UK devolutionary development was in any case poorly placed to
consider it. In the event, Richard was reduced to summarising the advantages and
disadvantages of the present funding arrangements against the background of the
102
See for discussion in the local context, Delineating Wales, chapter 2. 103
Richard Report, p. 203.
36
comparative weakness of the local economy or strong continuing financial dependency
on central government.104
The finding that, in the case of a legislative assembly, Scottish-style tax varying powers
would be desirable, though not essential, not only smacks of a compromise but also has
much to commend it. Constitutionally speaking, there is a good argument for this element
of fiscal autonomy, as in the very direct form of democratic accountability familiarly
associated with it. Then again, in view of the particular history, geography and economics
of Wales, the aphorism of „too much pain for little gain‟ rings true. The First Minister in
evidence to the Commission was notably unenthusiastic.105
Playing it long
Richard could not entirely avoid the vexed issue of Welsh parliamentary representation.
One could well argue that Wales is over-represented at Westminster under the current
arrangements;106
in the event of a legislative assembly, the case for retaining all 40 Welsh
MPs would be wafer thin. As the report says, „in the case of Scotland, it was accepted
that the devolution of primary legislative powers would lead to a reduction of Scottish
representation at Westminster. It is likely that a similar expectation will arise if such
powers were devolved to the Assembly.‟107
Constitutionally speaking, a proportionate reduction in the number of Welsh
parliamentary constituencies, to around 32, would not be frightful. There would still be
ample scope for effective local representation and span of party political opinion, as also
sufficient backbenchers to staff parliamentary machinery like the Welsh Affairs Select
Committee. As is well known however, the Secretary of State for Wales - operating here
as the shop-steward of the Welsh Labour MPs, as well as gatekeeper to the Westminster
104
Richard Report, pp 206. 105
Rhodri Morgan, oral evidence to the Commission, 12 December 2002. 106
The electoral quota for Wales being substantially lower than the UK average (and the English quota in
particular). 107
Richard Report, p 261.
37
legislative process - had ruled out any such reduction even before publication of the
report.108
Perhaps then the best the Commission could do was to play it long.
To this effect, with a view to softening the blow, or combatting a self-preservation
instinct, Richard‟s extended timetable is more extended than at first appears. Since the
resulting boundary changes at Westminster would be post-2011, the earliest evictions
would be happening fully a decade after the Commission reported. Another measure of
the sensitivities, the report carefully highlights the important continuing role that Welsh
MPs would play in the event of a legislative assembly, for example in terms of a Sewel-
type convention. In fact, once the Commission had determined to take its own
constitutional vision seriously, it is hard to see what more could have done to
accommodate the Welsh (Labour) MPs.
Treasure ship
To summarise, the Commission in executing various side steps clearly was concerned not
to overreach. Concentrating instead on the key issues for implementation of legislative
power and internal architecture, and of composition and electoral system, Richard thus
kept an eye firmly on the ball. To mix metaphors, members of the Commission would
naturally have been concerned to see the good ship „Richard‟ successfully depart the
harbour. But was she already over-laden with treasure?
(V) National devolution – the next phase
At one and the same time, the Commission in presenting the case for a legislative
assembly has sent a powerful message, and by virtue of the radical nature of its proposals
has afforded local actors a certain freedom of manoeuvre. Meanwhile, the Secretary of
State for Wales has been given „plenty of food for thought‟.109
In the next – post-Richard
– phase of national devolution there obviously is much to play for.
108
See for example, House of Commons debates 25 February 2004 column 270. 109
Wales Office press release, 31 March 2004.
38
While Richard, as an independent Commission, could not say so, a Labour victory in the
looming UK general election clearly underwrites its timetable. Presumably the
calculation was that by 2009 matters would be so far down the track that a potential
incoming Conservative Government would go with the flow. Of course the strong sense
of contingency in the Welsh constitutional development becomes pervasive once the
initial assumption is put in issue.
Take the story line of Lib/Lab coalition or „partnership government‟ at Westminster. No
doubt the Welsh Liberal Democrats would be impressing on colleagues in London that
part of the price should be „Richard uncut‟, that is including „real‟ STV. Further vistas
then include Lib/Lab coalition in Cardiff and the truly radical measure of STV in Welsh
local government elections.110
Alternatively, factor in a majority Conservative
Government in 2005. It should not simply be assumed that no devolution legislation
would follow. To the contrary, a Government of Wales (Amendment) Act, designed to
kill off the corporate body, is a plausible scenario. Conservative representatives, from the
original parliamentary proceedings on the devolution legislation onwards, have an
excellent track record on this particular issue of constitutional design.111
Discount
But let us reckon like Richard on what currently appears the likely UK electoral outcome.
Turning to the art of the possible, the question that naturally arises is the scale of the
discount required for winning agreement in Labour circles for another round of local
constitutional reform, if indeed this is achievable. „Rowing back‟ on Richard, with a view
to catching the Party tide, would be par for the course in the not so great game of Welsh
devolution.
110
As recommended by the majority of members on „the Sunderland committee‟: Commission on Local
Government Electoral Arrangements in Wales, Improving Local Democracy in Wales (2002). 111
See Delineating Wales, chapters 3-4.
39
Notably, whereas the core recommendation on powers has attracted many plaudits inside
Wales,112
it evidently took the local political establishment by surprise. Prior to
publication, the smoke signals suggested an internal Party compromise on the basis of a
phased approach, the constitutional weakness of this then being seen as a political
strength, with different Labour factions being able to take a more or less expansive
view.113
In the event, „positions,‟ to use the Presiding Officer‟s word, have had to be re-
evaluated and modified or reasserted ahead of the special Wales party conference on the
matter previously scheduled.114
Such once again are the many contingencies of Welsh
devolution!
Numbers game
When introducing the first of the Assembly‟s major debates on Richard, the First
Minister proffered no fewer than 15 questions that Members should consider.115
Rapid
inspection, however, reveals that the great majority of them relate to two matters, the first
one being the appropriate size of a legislative assembly.
In the immediate aftermath of the report, the question of size took on the character of
Welsh constitutional question of the day, so displacing the „big issue‟ for the Commission
of primary legislative powers. „One of the more thinly argued sections‟ is how Rhodri
Morgan described the case for 80 AMs in the light of primary powers,116
maintaining to
the contrary that the present complement „can do the job if we do it more effectively‟.117
Challenging the way in which the independent commission had gone about its business,
the local political and administrative machine is seen here reverting to type. According to
the First Minister, Richard should have focused - in narrow technocratic style - on the
„net calculations‟ and „substitution effects‟ entailed in a limited legislative programme, as
112
J. Osmond (ed.), End of the Corporate Body, pp 9-14. 113
For example, BBC Wales news report 29 March 2004. 114
For 11 September: at the time of writing, the Party is canvassing the views of members. A full
Assembly debate, on an amendable motion, is promised for the autumn. 115
Assembly Record 28 April 2004. 116
Assembly Record 28 April 2004.
40
also on possible new procedures, such as sending subordinate legislation „upstairs‟
Westminster fashion. Happily however, the Commission‟s broader constitutional analysis
also provides a benchmark for testing the evidential base and methodology, and
assumptions and deductions, of a rival examination by Welsh Assembly Government
officials that the First Minister has established in consequence.118
Any such study is apt to be little more than window dressing. In the continuing quest for
primary legislative powers, going for 60 Members is an obvious line of less resistance.
Hold down the numbers of AMs, so break the Richard „consequential‟ of STV, and so
reduce the local mathematics of the case for fewer Welsh MPs, and – lo – the prospects
for internal Party compromise may be improved. A popular distaste for „more politicians‟
would also be satisfied.
This will not do. To reiterate, Richard makes clear that there would be considerable
operational problems in a legislative assembly of 60 Members, not least given the
retarded culture of scrutiny and challenge in current arrangements. The demands in terms
of accountability on the representational side would scarcely diminish as the new Welsh
polity matured and a local statute book developed, and might well prove acute in the
political conditions of „cohabitation‟. Fortunately, such a design could also be expected to
provoke strong opposition in the parliamentary proceedings on a Wales bill, not least in a
revising chamber which knows all there is to know about the role and importance of
scrutiny and which would be losing business.
Of course in the long view „60 v 80‟ may itself appear a false dichotomy. Both sets of
figures are rendered plausible by a political geography of 40 parliamentary
constituencies. Richard we have seen directly raises the question: will that continue? For
his part the Secretary of State for Wales can do many things, including „red lining‟ the
size of Welsh parliamentary representation. It is beyond even his powers however to
suppress the doctrine of parliamentary sovereignty.
117
Assembly Record 4 May 2004. 118
Assembly Record 11 May 2005.
41
Referendum
Reverting to the First Minister‟s exam paper for AMs, the second main part relates to a
referendum.119
Not having one – people avoidance – appears in fact a cardinal principle
of the local constitutional policy.120
The Labour divisions that famously arose during the
devolution campaign in 1978 evidently cast a long shadow. Filling the gap in Richard‟s
recommendations, other political forces have of course expressed a different view: not
only the Conservatives in Cardiff Bay and at Westminster, but also a substantial number
of Welsh Labour MPs.121
„No referendum means no primary powers‟ clearly is a
powerful equation for the devolution-sceptic.
Let us unpack things. Given the Scottish precedent, it is hard to see the basis on which a
separate referendum vote on tax-varying powers could be resisted in Wales. All the main
players are in fact agreed on this, which also underscores the First Minister‟s disinterest
in the policy.122
Of more immediate relevance is the electoral option of „first past the
post‟ for a legislative assembly, given the continual lusting in this direction in Labour
Party circles as shown at the most recent Wales TUC conference.123
The requirement here
of another referendum vote not only fits with Richard‟s rejection of the option as
indefensible but also squares with the constitutional process for establishing the
Assembly. In my view, in light of the assurances on „representativeness‟ in the
devolution white paper124
and popular assent afforded in the referendum, it would be
119
Assembly Record 28 April 2004. 120
See for example the First Minister‟s „Bangor speech‟: Rhodri Morgan, „Making Wales Work?‟ public
lecture at the Welsh Institute for Social and Cultural Affairs, Bangor, December 2003. 121
As illustrated in the Welsh Grand Committee proceedings 6 July 2004. Opinion polling suggests broad
popular support for a referendum before greater powers are ceded: J. Osmond (ed.), Richard Commission
Sets Agenda, pp 50-52. 122
See Assembly Record 4 May 2004. 123
With the proverbial fig leaf of dual gender representation for each of 40 constituencies: The Western
Mail 30 April 2004. 124
A Voice for Wales, chapter 4.
42
nothing less than a fraud on the people of Wales to move to „first past the post‟ for the
assembly elections without consulting them directly.125
As for awarding wide-ranging primary powers, the objections that one hears to holding a
referendum sound hollow. Take the patronising idea, prevalent in Cardiff Bay, that the
people of Wales could not be expected to vote on the difference involved in a legislative
assembly. Odd it is then that they can apparently be trusted to vote on a draft Constitution
for Europe several hundred pages long. Nor is it sufficient to say, as the First Minister
does126
, that the referendum is a most exceptional device in our unwritten constitution.
Understandings clearly are changing in this regard, as the fact of the establishment in
2000 of the Electoral Commission with major supervisory functions serves to illustrate.127
The First Minister has also summoned up „the spirit‟ of the devolution referendum to
deny the need for another such vote on primary powers. In his words, „the Assembly
which emerged… has legislative powers in a series of policy areas…Proposals which
flow from Richard, and which lie within that essential framework seem to me to fall
within the umbrella of the original process.‟128
And again: „the extent to which we are
governed by the UK Government and by the Assembly is not a fundamental issue and,
therefore, not a matter that one should put to a referendum.‟129
It has to be said: these are extraordinarily broad propositions, which could even
encompass a body with considerably greater legislative powers than the Scottish
Parliament. It is also revisionist history, which does not square with the way in which the
matter was presented to the people of Wales in 1997. This was a specific proposition, one
that established a framework for organic change but also imposed certain overarching
125
The First Minister has evidently been thinking along similar lines: see Assembly Record 23 March
2004. 126
Assembly Record 4 May 2004. 127
Political Parties, Elections and Referendums Act 2000. 128
Rhodri Morgan, „Making Wales Work?‟ 129
Assembly Record 4 May 2004.
43
constraints through the model of executive devolution.130
A Voice for Wales, Scotland’s
Parliament: the distinctive titles of the two devolution white papers is no accident.
With a view to securing legitimacy, there are solid arguments for holding another
referendum on primary powers. At the high political level, factoring in the inevitability
one day of „cohabitation‟, as also the honourable record of the Conservatives in Wales in
adjusting to an unwelcome result in the devolution referendum, a democratic form of
entrenchment has major attractions. Of course a referendum vote might also be usefully
deployed to show Welsh Labour MPs that a legislative assembly is now the „settled will‟
of the people of Wales, if indeed it is. „Catch 22‟: the Assembly is held back under the
devolution statute from forcing the issue and going it alone with a referendum on
legislative devolution.131
Speaking more generally, a decision not to allow the people of Wales to vote for or
against a legislative assembly itself would be a recipe for controversy. It would also risk
blighting the new arrangements, with the perceived lack of popular consent a breeding
ground for cynicism. Turning the argument round, if the result of another referendum
vote was that government should not „be brought closer to the people‟ through the
qualitative difference in status, legislative initiative and delivery that primary powers
connotes, the matter could fairly be considered settled for a couple of Assembly terms.
Richard has convincingly made the contemporary case for Home Rule. But why should it
be rammed down people‟s throats?
‘Virtual parliament’ – mark II
But will the Party line encompass primary powers? Another option, which is not so much
cherry picking as rewriting Richard, and so smacks of an official salvage operation in the
face of entrenched opposition among the Welsh Labour MPs, has latterly been suggested
130
As the former Secretary of State for Wales Ron Davies confirmed in oral evidence to the Commission,
26 September 2002. 131
See especially GWA, s. 36 (provision for poll specifically tied to exercise of Assembly functions).
44
by the First Minister.132
A model of framework legislative powers writ large, it would
involve implementing Richard‟s interim approach to powers on an open-ended basis, and
doing this generally and backwards as well as forwards in new primary legislation.
In light of the First Minister‟s oft-stated preference for primary powers, the taunts of „U-
turn‟ and „caving in‟ were only to be expected.133
In fact, the official justification turns
the Commission‟s reasoning upside down, such that its extended timetable – far from
easing the path – is seen as a problem. To quote the First Minister, „one of the things I am
keenest to avoid is a lengthy period in which the powers of the Assembly – rather than
what it can achieve with its powers – is always at the forefront of political debate. Ten
years in which the Assembly talks more about itself than what it can do for others seems
to me a very high price to pay for progress.‟134
A twist in the tail, this „new thinking‟ or „fourth way‟ (forward) is also explained by
reference to the evidence led – and so limited – basis of the Commission. As the First
Minister tells it, Richard was not in the business of coming up with its own solutions and
so left a space in the range of options since none of the witnesses had suggested an idea
that stems from „some very clever minds‟ in the devolved administration.135
Notably far
from the public gaze, officials in close consultation with the Wales Office have in turn
been busily engaged on working up what in the peculiar jargon of Welsh devolution is
the unprepossessing constitutional option of „13.2 plus‟.136
This approach could take various forms and much would depend on which was chosen.
For example the devolved administration might be armed with widely drawn „Henry
VIII‟ powers to repeal and amend provisions in a list of statutes or in designated fields of
devolved functions. In light of the politics, and perhaps as part of a phased programme of
empowerment, the approach could also involve fewer policy domains than Richard
132
Rhodri Morgan, speech to ESRC devolution conference, Cardiff, 24 June 2004. 133
Assembly Record 13 July 2004. 134
Rhodri Morgan, speech to ESRC conference. 135
Assembly Record, 26 June 2004. 136
A reference to the „box‟ in the report that summarises the (initial) model of framework legislative
powers: Richard Report, p. 244.
45
envisages for primary powers, for example social services and local government but not
(yet) the environment. A litmus test of the capacities of the devolved administration in
the new modalities of intergovernmental negotiations this most certainly would be!
Conceptually speaking, „13.2 plus‟ is a particularly striking type of „quasi-legislative
devolution‟. Reading across from the constitutional rise at UK level of Henry VIII
powers,137
and reflecting earlier expectations of more generously drafted Assembly
order-making functions,138
the idea thus represents the maximal scenario of Welsh
constitutional development under the existing – modest - devolutionary scheme. In
practical terms, by so providing the devolved administration with a greater legislative
„space‟ in which to deliver „joined up‟ and distinctive „made in Wales‟ policies, it would
correspondingly reduce the problem for the Assembly of the Westminster legislative
bottleneck.
A different but related point: this approach would not only build on the Assembly‟s
distinctive machinery for scrutinising subordinate legislation but also underscore the case
for a formal separation of functions in the local polity. It could in fact be easily combined
as part of a Government of Wales (Amendment) Act with putting the corporate body out
of its misery. In light of the short history of the Assembly it is then aptly characterised as
the mark II model of a virtual parliament.
From the standpoint of a First Minister looking to move things forward while seeking to
help preserve Party unity there are major attractions. Precisely because „13.2 plus‟ wears
an evolutionary character there is, in Rhodri Morgan‟s words, „no Rubicon to be crossed,
in terms of primary powers and all that goes with it‟.139
Politically speaking, this
approach would therefore trump the arguments for more AMs, fewer MPs, and a
referendum. Likewise, it might allow leading actors to claim a compromise: „a new
legislative partnership‟ between MPs and AMs, with the door ajar for Richard-style
137
N. Barber and A. Young, „The Rise of Prospective Henry VIII Clauses and Their Implications for
Sovereignty‟ [2003] Public Law 112. 138
See Delineating Wales, chapter 2. 139
Rhodri Morgan, speech to ESRC conference.
46
primary powers one day. And of course, if „13.2 plus‟ did not in his words „prove to be
the best idea on offer‟, the First Minister could always go back to arguing for primary
powers.
However the problems and limitations of this „solution‟ should not be glossed over.
Technically speaking it is not easy to deliver, given the many diverse statutory sources
from which the Assembly draws its functions and the particular difficulty involved in
designating fields of legislative power in the absence of legal technology like the general
presumption that (primary) powers pass. Since the basic constitutional framework of the
GWA would still underscore the not so little matter – in the geo-political context of
„England and Wales‟ - of specific reservations, the all too familiar problems in Welsh
devolution of clarity and intelligibility would also be played up.
As an open-ended „solution‟, „13.2 plus‟ is lacking in both political and administrative
robustness. Take the formula of „maximum scope‟ in the construction of framework
powers. The prior experience in Welsh devolution only serves to highlight the
vulnerability to more cautious interpretations reflecting entrenched Whitehall
understandings and preferences, and Westminster dogma. As well as remaining
dependent for different types of primary legislation affecting Wales, the devolved
administration would not have the new beginning of a „Wales Act‟ by way of formal
legal guarantee and no clear democratic „entrenchment‟ for this kind of „quasi-legislative
devolution‟ in a situation of political cohabitation. Such after all is the logic of not
crossing a „Rubicon‟.
Constitutionally speaking, the approach is open to criticism both for being too little and
too much. Grating with the concept of a „National Assembly‟, it is obviously not
designed to win the plaudits of Plaid Cymru and the Liberal Democrats. Whether it
would be sufficient to win over those substantial sections of the Welsh Labour Party that
have previously expressed support for primary powers is another calculation entirely. On
the other hand, hollowing out the role of the centre – a strong measure of „legislative
47
devolution by the back door‟ – would be the litmus test of a full and effective
implementation.
Perhaps then it is not surprising that no one in civil society came up with the idea. Indeed,
„13.2 plus‟ would hardly be likely to satisfy the First Minister‟s desire for a quiet
constitutional life in the next phase of Welsh devolution. Of course Richard can be
consigned to the long grass. But it cannot be pulped.
Conclusion – the big message
Greeting publication of the report, the First Minister declared that it was „a red letter day
for Wales‟. There was, he said, „ good reason to be proud of what this signifies in terms
of growing maturity in the political process, and above all, in the level of engagement
with society in all parts‟ of the country.140
By the same token, one might hope for a
constructive, open and inclusive set of deliberations on Richard. However, past form
suggests the opposite. „A closed and elite form of constitution making‟ was how I
described the internal political and administrative dealings last time round.141
Historians
of the next phase of national devolution may well find that the interplay between the twin
processes of UK government and Welsh Labour Party policy making repays a careful
scrutiny in this regard.
There is much to admire in the work of the Commission. At one level, in getting to grips
with a poorly planned or excessively pragmatic and piecemeal constitutional framework,
Richard shows a refreshing willingness to challenge or innovate that sits comfortably
with the popular, radical traditions of Wales. In contrast, it has to be said, to the innately
conservative view of a presumption against further change voiced by certain Labour
elements.142
At another level, the Commission has rightly resisted the temptation to seek
after a firmly symmetrical approach to the UK constitutional development, seeking
instead an approach best suited to local conditions and particularly the geo-politics. In so
140
Assembly Record 31 March 2004. 141
R. Rawlings, „The New Model Wales‟. 142
As in the written evidence to Richard from the North Wales Group of Labour MPs.
48
doing it has once again taken the distinctive legal, political and administrative concept of
„devolution‟ seriously.
Richard also speaks an unfamiliar language in the Welsh context: and happily is very
unsettling as a result. So another sign of growing maturity in the new model Wales is the
beginnings of a rich constitutional discourse, one that can not only inspire but also inform
practical developments as in the ending of the corporate body and the prescription of
ample legislative space. Indeed, whatever happens in the short term, Richard as a
reservoir of understanding and ideas will take on a life of its own in the ongoing struggle
to move Wales more into the mainstream of comparative constitutional development. A
standing rebuke to those who would seek to slow the devolutionary process, it provides
its own dynamic.
In contributing to the process of constitution building for Wales, this independent
Commission has naturally prioritised the element of design over that of delivery. This too
is a pleasant reversal on so much that has gone before. Likewise, there are obvious
parallels here with the work of the Scottish „Constitutional Convention‟:143
save of course
that the devolutionary development and the public discussion are back to front. In turn, an
inevitable result of the routing through an interim constitution, the old adage of it being
easier to set up something from scratch than to reform it once it is in place will now be
closely tested in the political and administrative laboratory of Welsh devolution.
Paradoxically, it is when bowing to the demands of delivery that the report shows an
Achilles heel. So while Richard‟s extended timetable cleverly blunts the objection of
unripe time and massages the difficulty over Welsh parliamentary representation, it
clearly is vulnerable to insider arguments in favour of a quick fix that achieves some of
the cake while avoiding those bits that (party-wise) are harder to stomach. Simply put,
when the First Minister starts saying that „the key issue will concern timing versus
powers‟,144
the auguries for Richard are not good. Alternatively, the constitutional
143
Scotland’s Parliament: Scotland’s Right (Edinburgh: Scottish Constitutional Convention, 1995). 144
Assembly Record 13 July 2004.
49
machinery of a referendum could be used to enable the Party to deal with this divisive
matter, and move on. But of course that requires the governors to trust the governed.
So interim constitution may well be piled on interim constitution: which would a
disappointing outcome but also one that in further enhancing the local political and
legislative opportunities is hardly unknown in comparative constitutional development.
No doubt much will depend on whether key Party players hold to the view that it is all
too soon or opt to avoid the risk to the good governance of Wales of a prolonged period
of political cohabitation under the existing constitutional framework, howsoever
reworked. Courtesy of the Richard Commission they cannot say but that they have been
warned.
Let us not be under any illusions. The road to a proper devolution settlement for Wales,
robust and user-friendly, generous and energising, will not be easy. As well as sign
posting a way forward and exposing major hurdles, the big message that Richard sends
out however is that sooner or later it will be travelled. In this regard, a sense of proportion
is important. What in view of a peculiar territorial history represents a radical set of
proposals is also comparatively speaking a modest package, one that in the form of a
legislative assembly simply seeks to maximise the advantages of small country
governance as part of the constitutional „family‟ of the Union State. It should not be
surprising therefore that the great weight of evidence pointed in this direction.
To conclude, in the words of Arthur Hugh Clough‟s famous poem, „Say Not the Struggle
Naught Availeth‟.145
Perhaps hopefully, there is strange prescience in the determinedly
Victorian final verse:
„And not by eastern windows only,
When daylight comes, comes in the light;
In front the sun climbs slow, how slowly!
145
A. Quiller-Couch (ed.), The Oxford Book of English Verse: 1250-1900 (Oxford: Clarendon, 1919), 741.
50
But westward, look, the land is bright!‟
51