Government and Politics

Cymraeg

Slow progress: The National Assembly for Wales's developing role as a legislature

Alan Trench


The National Assembly for Wales's developing role as a legislature

 

If we are to assess the National Assembly for Wales as a legislature, we need to look at two sets of issues. The first involves thinking about the functions of a legislature - what one is and what it does. The second is to look at what that means in a Welsh context, and consider what the Assembly was meant to do when it was established and how it has developed since it came into being in 1999.


What is a legislature?


The role of legislatures is somewhat different in parliamentary systems (like the UK or Germany) compared to presidential ones like the United States, but everywhere, a legislature is, first and foremost, a body that makes laws. Only a legislature can do this, and because the legislature is elected by the public at large, it has a democratic mandate to do so and the laws it passes will be accepted as legitimate by the population as a whole. Passing laws is only one of a legislature's functions, though. The other key ones are holding the executive to account and scrutinising its actions, and deliberating about what should be done about particular problems. These roles may often overlap in practice, and may be exercised in several ways - through meetings of the legislature as a whole, when all the members can take part in debates about a specific issue, or through meetings of committees, where fewer members take part but there is more time to examine it in detail. In addition, there is a fourth function - of casework for individual constituents or electors, who ask their elected representatives for help with problems they have.


If we want to see these functions at work, we can look at how the UK Parliament at Westminster tackles them. MPs there will take part in legislative business, discussing proposals for laws (called 'bills' while they are before Parliament, and 'Acts' once they are made). They scrutinise what government does, through Question Time for ministers and the Prime Minister, and through select committee inquiries. They deliberate on what should be about, either through debates 'on the floor of the House', or sometimes again through select committees. And they will have a caseload of questions brought to them by their constituents, with problems over social security, immigration or the health service.


Law-making: 1999-2007


The National Assembly had very limited legislative powers when it was established in 1999. Indeed, it is arguable whether it had law-making powers at all. The functions it was initially given were executive functions - a huge range of specific, statutory powers and duties that had been conferred on the Secretary of State for Wales over many years, which were therefore very tightly defined. Over the next few years, these powers were increased as new powers were conferred directly on the National Assembly, which were often broader and more permissive than the comparable powers conferred in the same Act on UK Ministers who made policy for England.


This created a legal framework for the National Assembly to develop a different approach to policy-making. Although some of the policies endorsed by the Assembly between 1999 and 2007 were substantial departures from those proposed in London, often this did not show this very clearly in the 'orders' and 'regulations' made by the Assembly. Such legislation was considered only once by the Assembly as a whole, and could not be amended - just approved or disapproved, so it lacked the sort of detailed consideration that Westminster legislation receives. The public could be forgiven for not understanding this as the sort of role played by a legislature, even if the Assembly had a growing impact on policy in other ways.


Law making since 2007


The way Welsh laws are made changed after May 2007, when the Government of Wales Act 2006 came into force. The present arrangements allow for the Assembly to pass legislation called Assembly Measures, which 'may make any provision that could be made by an Act of Parliament' provided the Assembly has the 'legislative competence' to pass that law. The Assembly's law-making powers - its legislative competences - weren't set out in the Act itself, but in Schedule 5 to the Act which kept changing as powers were added to it, either by Acts of Parliament passed at Westminster, or by Legislative Competence Orders. These orders were passed at Westminster but requested by the Assembly, usually at the initiative of the Welsh Assembly Government, but sometimes proposed by an individual assembly member or a committee.


The procedure for considering Assembly Measures is a bit more complicated than at Westminster. It has four 'stages':

  • Stage 1: initial consideration of the principles of the proposed Measure, by a legislation committee (there are five of these), followed by consideration of its principles by the Assembly as a whole

  • Stage 2: detailed consideration of the proposed Measure by a legislation committee, and of any amendments to it

  • Stage 3: detailed consideration by the Assembly as a whole, including consideration of further amendments to it

  • Stage 4: approval of the Measure, as amended, by the Assembly as a whole

 

Stages 2 and 3 can involve very long, complex consideration of the proposed Measure, unlike stages 1 or 4, so the 'stages' don't give a clear indication of how long a Measure might take to become law. But the lengthy process of acquiring legislative powers needs to be added to it, and that takes 9-10 months for even simple, non-contentious orders and can take two and a half years for more difficult ones. By contrast with legislatures like the Scottish or UK Parliaments, this makes the Welsh legislative process a very long-drawn out one, even though it only has one legislative chamber, not two like the Westminster Parliament. These procedures are likely to be used for Assembly Acts as well, though with some extended public scrutiny at earlier stages.


Since the 2006 Act came into effect, the Assembly has passed a total of 17 Measures, concerning such issues as dealing with allegations of negligence by the NHS, school curriculums, improving the treatment of carers, the organisation of local authorities, and the Welsh language. Both the scale of the legislation, and the policies it implements, have developed even over this short period. The Assembly has clearly become more assertive and self-confident in the legislation it considers and how it uses the powers available to it.


The system by which the Assembly acquires law-making powers piece by piece has been widely criticised, by journalists, academics and inquiries like that of the All Wales Convention. The 2006 Act offered another way for the Assembly to exercise legislative powers and make laws for 20 'subjects' set out in Schedule 7 to the Act, if approved in a referendum. These 'subjects' are the same as the 20 'fields' in which the Assembly can acquire legislative powers under the old arrangements - areas like health, education, culture or the environment. That referendum took place on 3 March 2011 and resulted in a clear 'Yes' vote supported by 64 per cent of those voting, with the new powers to come into effect from 5 May 2011. There is now a clear public expectation that laws only affecting Wales should be made by the National Assembly, without needing to obtain legislative powers first. However, making the new system work may be quite tricky, as there will be questions about just how far the powers set out in Schedule 7 go, and there will be questions about how the courts approach the boundaries of the Assembly's legislative powers and how flexible the UK Government and Parliament may be about adjusting the settlement.


Scrutiny


The National Assembly's role in scrutinising government has developed slowly. The work of its committees was initially hampered by the fact it was a single body in law, and this was reflected in an 'inclusive' way of working that was supposed to enable ministers and back-bench members to co-operate with each other. Ministers sat on committees that were meant to scrutinise their actions; policy making was partly a matter for committees as well as ministers; and civil servants were unclear who they were working for - whether that was particular ministers, the cabinet as a whole, Assembly committees, or someone else. The result may have been cosy and comfortable for those involved, but it did not lead to the sort of challenging scrutiny that UK ministers experience at Westminster, and it did not suit politicians on either side. Government ministers could not claim sole credit for their policies; opposition politicians could not easily oppose what the government did. For that reason, a consensus quickly developed on all sides that the 'inclusive' approach was not practicable, and the Assembly soon moved away from it, with an internal split between the parliamentary and executive sides from March 2002 (when the name 'Welsh Assembly Government' was first used). This took legal form with the 2006 Act, at which time ministers ceased to be entitled to sit on Assembly committees.


Since 2002, the Assembly's committees have slowly developed their forensic and scrutiny role, becoming more adept at asking tough questions about important issues. This reflects not just institutional factors, but also the skill, expertise and self-confidence of assembly members, and the sort of support they receive from the Assembly's staff. All these areas have developed during the last few years. One further substantial change has been the development of committees not just concerned with 'corporate' matters like audit or equal opportunities, and subjects like health or education, but also with important strategic matters. A finance committee was created in 2007. The Assembly's subordinate legislation committee developed an increasing role in relation to Assembly Measures, the powers these conferred on the Assembly Government, and Westminster legislation affecting devolved matters. In 2010 it renamed itself the 'Constitutional Affairs Committee' to recognise this. The upshot is that since 2007 it has gained a capacity to look at the major strategic issues that affect the devolved Assembly and government, not just policy matters. That reflects a wider change in the understanding of the Assembly's role.


The other place scrutiny happens is on the floor of the Assembly, in plenary sessions. It includes question time for the First Minister and other ministers, which provide opportunities for AMs to raise questions of interest to them, their constituents, and the wider world, and sometimes more general debates about matters like the working of policies to attract inward investment by overseas businesses. As First Minister's Questions is televised, it provides perhaps the best opportunity for an AM to raise an issue in public.


Assessing the Assembly's success at scrutiny is hard. One problem is the limited number of AMs to do it, with an Assembly of only 60 members, of whom 14 are ministers or deputy ministers, and another is the presiding officer. That leaves only 45 'back bench' AMs, and one of those is the deputy presiding officer and two more lead the opposition party groups. Another factor is the limited experience of Assembly Members and their staff, and the need to build the capacity for this from nothing. While the Assembly might have done better in this respect, it has had to work hard to build up its capacity to do so.


Deliberation


Deliberative work sometimes overlaps with scrutiny work, as both happen in the same places. There is clearly a difference between the sorts of debate the Assembly had about the reports of the Holtham Commission or All Wales Convention, or the way the Finance Committee considers the financial implications of proposed Measures, and scrutiny of something after it has happened. Measuring success of this sort of work is hard. However, one indicator is the extent to which Assembly Committees have sought to change things by introducing their own legislation (rather than leaving it to ministers or individual back-benchers). Here, the record shows only limited use of the power: there has been only one Committee-proposed measure to date, and one LCO. In this area, there seems to be much work left to do.


Casework for individuals


It is hard to assess the political importance of casework by AMs. To judge by what they say about themselves, it's an important role for them, but it seldom comes into Assembly meetings - it is largely something that AMs do behind the scenes, in correspondence or perhaps by phone calls. But it has become important enough for tensions about the role to become significant, with the result that the electoral system was changed in the 2006 Act to stop a person running as a candidate for the Assembly as both a constituency member and on the regional list. Part of the reason for this was a suspicion that regional list members were basing themselves in one part of their region and 'stealing' casework, to build up a reputation so they could run for the constituency seat. This fuelled the campaign that led to the prohibition on 'dual candidacy' (running for both a constituency and regional list seat in the National Assembly) set out in the 2006 Act.


Conclusions


The National Assembly that was established in 1999 was barely recognisable as a legislature. It lacked not only the power to make laws, but the internal organisation and resources to fulfil the other functions that legislatures commonly have. In a short time, the shortcomings of that approach have become plain, with the wholesale changes made by the Government of Wales Act 2006 and the prospect of wider legislative powers after a referendum. Not only has the Assembly now started making laws, but it has taken on the other functions as well, and in doing so shows increasing capability and self-confidence in that role. Welsh devolution since 1999 has been a journey to an undecided destination, but it is clearly in the direction of a legislature that is capable of doing what legislatures in many other self-governing regions do too.