NWR Issue 44

Less a National Assembly, more a Glamorgan C.C. on stilts

In the eighteen months since the Welsh electorate delivered that wafer-thin majority of 6,721 in favour of establishing a Welsh Assembly in a poll of over 1.1m. votes, the sound of the middle classes in Wales scrambling to board the devolution bandwagon has been palpable.

The looming question now is whether that simple faith shown by ordinary people at large in the value of acquiring a National Assembly is going to be rewarded.

The hustings are not proving much of a guide. Almost everyone involved feels politically obliged to make positive noises, but much of the discussion has not been very informative - politicians stressing their party's commitment to making the Assembly work, joky explanation programmes and idiots' guides explaining its structure and responsibilities, plus some infantile party political attacks. All have tended to underline the immaturity of Welsh politics.

The interesting political events of the past 18 months have been those which were not meant to happen - the débâcle over the location of the Assembly building, everything to do with the resignation of Ron Davies as
Secretary of State, and the ebullient performances of Rhodri Morgan in the two Welsh Labour leadership contests in which, in his own words, he was "runner-up".

Meanwhile, outside Wales, otherwise well informed people have got it into their heads that Wales is somehow poised to break away from the UK and establish itself as an independent state. Misunderstanding reigns supreme, it seems.

However, as Aneurin Bevan once famously said, why gaze into the crystal ball when you can read the book! In this instance, one has been published by the Institute of Welsh Affairs which contains some very revealing information on what the new Assembly will actually be able to do over the coming months. The fruit of a series of seminars organised last year to discuss the Assembly's responsibilities, many of the chapters consist of wish lists - problems which experts in their respective fields would like to see tackled. Others, however, analyse the Assembly's precise powers and resources for exercising its responsibilities, and they make disturbing reading for anyone who wishes the Assembly well.

Wales's Assembly, unlike Scotland's Parliament, will have no tax-raising or primary law-making powers. That has been long-known, and accepted. But it has been emphasised - as a compensatory factor so to speak - that the Assembly will have the power to shape secondary legislation.

It comes as something of a shock therefore to learn from the contribution by Keith Patchett, Emeritus Professor of Law at University of Wales, Cardiff, that the Assembly has not been granted a general power to make secondary
legislation. On the contrary, the Assembly's subsidiary law-making powers will remain the prerogative of Westminster. They will "derive from individual Acts of Parliament and it remains unclear how Westminster intends to exercise that power or, for that matter, how the Assembly will be able to table amendments to primary legislation affecting Wales which it would like changed." In other words, if Government and Whitehall decides it knows best. Assembly members will have to lump it and carry out Whitehall's bidding even if they disagree and even if the policy is ostensibly their responsibility.

Professor Patchett sees grave danger, as matters stand, in Welsh interests and requirements being sidelined by Whitehall. This is because the Welsh dimension in the administration of parliamentary acts will no longer be of no concern to central government departments. And he knows what he is talking about, having acted as an official
adviser to governments all over the world about public law and devising new constitutions.

His warning is reinforced by Ivor Lightman, a senior civil servant at the Welsh Office before his retirement. Writing on the Assembly and Whitehall, he states that "[The Assembly]'s duties and the limitations on its powers, its working arrangements and relationships with Whitehall, with the Agencies, with Europe and with the myriad interests in between, have barely been sketched in outline."

Incredible as it may seem, such matters were not dealt with in the devolution legislation - the Government of Wales Act 1998 - but are to be the subject of a series of negotiated understandings, dubbed non-statutory concordats "embodying, political balances as well as working relationships within and between bureaucracies". At the same time, Lightman notes that up to now the only difference between secondary legislation emerging from the Welsh Office and its equivalent Whitehall department "has usually been the signatures at the end of the documents (and this may continue for many areas [of government in the future])" [my emphasis].

In short, the new Assembly may find itself frequently required to rubber stamp Whitehall decisions whether it agrees with them or not.

The case for taking a less jaundiced view of the Assembly's likely impact is to be found in remarks by Rachel Lomax, until a few weeks ago, Permanent Secretary at the Welsh Office. She is quoted as saying recently: "Believe me, a department that answers to sixty politicians who in turn answer to people from all over Wales is going to respond very differently from one that answers to one Cabinet Minister, whoever he or she is... We are going to have to get used to explaining ourselves in public. Our business will be conducted more openly than in the past, and we will almost certainly find ourselves much more actively engaged with other bodies in Wales … we will come under new and entirely different leadership. Instead of working to a Secretary of State who is a member of a Cabinet, and at best represents one Welsh constituency, most of us will transfer to the Assembly, where our political masters will be directly answerable to people from all over Wales, who will work in an entirely new and almost certainly much more open way ... We will have to listen more actively and respond more fully. We may increasingly become organisers of advice and expertise, rather than monopoly suppliers ... we will have to consciously shed the mind set - still rather engrained in civil servants everywhere - which says that the only advice worth having comes from the civil service."

On close reading however, Ms Lomax was referring to the Welsh Office civil servants who will transfer from serving the Secretary of State to the Assembly. They may have no difficulty shedding that ingrained mind-set. But it is difficult to feel the same optimism about the legions of civil servants who occupy Whitehall. Will they happily shed the mind-set of generations and adapt to the needs of the National Assembly for Wales, particularly when the new relationship lacks the force of statutory law? It seems unlikely.

Then there is the question of finance. The Assembly's annual budget of some £7.5m. will flow from Whitehall automatically in accordance with the Barnett Formula, the arrangement determining Wales's, Scotland's and Northern Ireland's share of the UK government expenditure devised by Joel Barnett when he was Chief Secretary of the Treasury in the 1970s Labour Government. The benefit of the Assembly will stem, enthusiasts tell us, from ability of its members, as politicians with clout, to spend the budget in a more dynamic and cost-effective fashion than has been open to Welsh Office civil servants.

But most of that budget is accounted for, providing little room for political manoeuvre, and, in any case, in the words of one distinguished Welsh barrister, "there is a humiliating assumption behind the provisions of the Act that anyone elected to the Assembly cannot be trusted with money".

To earn its political and financial spurs, the Assembly must, as a priority, renegotiate the basis of its annual budget, namely the Barnett formula. The present formula takes no account of the relative decline in Wales's Gross Domestic Product, vis-à-vis the rest of the UK, which has occurred since the 1970s. Professor Ross Mackay of Bangor makes the point forcibly, in his contribution to the Handbook, that such fiscal transfers are an entitlement not a subsidy between one region of a state and another.

Second, the new Assembly must secure additional funds from the Treasury to match regional assistance promised from Brussels. The recent Summit of EU Heads of Government in Berlin agreed a regional development deal that will give West Wales and the Valleys an investment injection of £1.3bn over five years through Objective One status (rather than the £2bn originally promised by Objective One designation). But without the matching funds from the UK Treasury, the Assembly will be unable to draw down the money from Brussels.

When today's Chief Secretary to the Treasury Patricia Hewitt was first asked about the matching funds, her response was that they would have to come out of the Assembly's existing resources. She failed to acknowledge that such action would be against the rules since EU regional development fund spending must be additional to budgeted national spending.

Finally, it must do something about the Assembly's inherent democratic deficit compared with Scotland. The Welsh Assembly ought to have 75 rather than 60 seats to match Scotland on a pro-rata population basis. The fact that it hasn't explains why Scotland is looking forward to enjoying the advantages of multi-party rule and Wales
is faced with a continuation of one party rule.

During the ill-fated 1970s devolution campaign, it was said that a Welsh Assembly must be more than a "Glamorgan County Council on stilts". Once the hurly-burly of the elections, the royal opening and transfer of powers is over, and Assembly members have been allocated their plethora of committees, they may find it an uncomfortably close description of their institution, and that, despite appearances to the contrary, the political power, money and influence remains with central government in London.

The reason was identified by Tom Nairn, the Scottish political commentator, at a recent conference in Cardiff. The Government's - and Whitehall's - problem, he argued, was to believe it could introduce radical constitutional reforms at the periphery - in Wales, Scotland, N. Ireland - without making any alterations or adjustments in the
way government is ordered at the metropolitan centre.

Nairn forecast what he dubbed a period of "civic conflict" between UK's constituent nations and the metropolitan centre, before Whitehall and the Government machine came to terms with the consequences of constitutional change.

It maybe that through a judicious mixture of pragmatism and goodwill on Whitehall's part, an appropriate division of powers and responsibilities will be sorted out quickly. On the other hand, there is ample scope for the forces of reaction (who haven't gone away but are merely lying low) to ferment mischief and make life so difficult for Wales's new democratic forum as to render it impotent and bring it into disrepute. For the time being, Wales's National Assembly has responsibility without power. It is going to have to box very clever to avoid disappointing its friends and giving succour to its enemies.

The National Assembly Agenda: A Handbook for the First Four Years. Edited by
John Osmond, Institute of Welsh Affairs 410pp. price £19.95


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