1 ‘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.
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1
‘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‟).
3
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
4
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.
5
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.
7
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).
8
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.
9
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-