Points of Law

Five years on from the achievement of primary law making powers for the National Assembly for Wales, questions can fairly be posed about whether they are being used as effectively as possible. After all, those of us campaigning fervently to gain such powers back in the 2011 referendum did so in the belief that attaining primary law making powers would be a gear change in the legal competence and effectiveness of the National Assembly. That is what we promised the people of Wales. We assured them that devolving the ability to initiate and deliver on legislation in twenty subject areas was critical to making a better Wales.

Five years on – and without getting into the whys and wherefores of any individual piece of legislation because you’re more than capable of doing that elsewhere – I can’t help feel that the central message of why legislative powers were needed and should be used actively has not been delivered upon.

So where I am going next with this? You might suspect that my beef is with the evident flaws and inadequacies of the powers of the Assembly. That position has considerable sympathy from me and pretty much everyone else in the Bubble. Not a week passes by where experts don’t call for additional bits and pieces of legal responsibility to be tagged on to the Wales Bill or introduced by other means. It is an angle that the media is also keen to spotlight.

A narrative has been developed in which the blame for any legislative shortcomings are laid at the door or Westminster and there is little or no questioning of how Cardiff Bay uses its existing legislative powers. Perhaps this is just an oversight, perhaps it’s to do with skewed reporting, or perhaps there is some other explanation, but precious little attention or challenge is given to the way the legal tools already available are utilised.

One example which leapt out in recent months was the way in which the Welsh Government is now introducing its own legislative programme. Back after the election of 2011 it produced a relatively detailed five year programme, with items of legislation matched against the anticipated date of delivery, thus providing a genuine targeted and sign posted approach against which it could be measured. The tactic now is very different.

Unveiling his legislative plans for this Assembly in June 2016, the First Minister said five year legislative planning was now ended and he would move instead to annual planning based on manifesto priorities. The First Minister said this was ‘one step in developing our practices to ensure they befit the parliamentary responsibilities of this place’. During the ensuing debate Assembly Members naturally focused on the Bills he was proposing, without really challenging the change in process. Nobody pointed out at the time that Wales’ legislative process and cycle was now being modified so that it became essentially the same as the Westminster approach, minus the woman in the horse drawn carriage with the shiny hat. It was a definite step backwards in terms of the transparency of the governing process.

Further, there are also issues on the pace and volume of legislation. The introduction of the Landfill Disposals (Wales) Bill this week brings to just three pieces of legislation introduced thus far in this Assembly. This is way better than the grand total of one Bill introduced in the first six months after the 2011 Assembly Election – a prize for anyone who remembers the early stages of the Local Government Byelaws (Wales) Act 2012 – but it can hardly be described as maximising approach which puts passing laws at the heart of what the Assembly does. Again, this was part of the appeal and message during the 2011 referendum but, I would argue, it has not happened.

But before you just think it’s the Welsh Government that lacks legislative momentum and drive, cast your eye toward the National Assembly too. The process of introducing backbench legislation is one of the most powers it possesses but that process is in danger of being wilfully under used. It can hardly be said to have a great deal of oomph behind it when the first backbench ballot of the Assembly has now been identified for 25 January 2017, which is a full three months later than the equivalent first ballot last time round in October 2011.

Further, the Assembly has been pretty thin in introducing legislation of its own through its institutional mechanisms. It only actually passed one in the whole of the last Assembly but at least that one was introduced with a purpose. By January 2012 the Assembly Commission had introduced its own National Assembly for Wales (Official Languages) Bill, but this time round there is no sight of any of the constituent parts of the Assembly availing themselves of such an opportunity.

In short, it is arguable that both Welsh Government and National Assembly are falling short in using the legislative system consistently, ambitiously and energetically, yet nobody ever seems to challenge them. It’s much easier to focus on more powers and not how powers are used. Maybe it’s time so many involved in delivering and reporting on the legislative system in wales stopped obsessing about the size of the pitch and started examining the quality of the game.

Daran Hill is the Managing Director of Positif Politics and in 2011 was the Campaign Director of the Yes for Wales campaign for greater powers for the National Assembly for Wales.

9 thoughts on “Points of Law

  1. I think blaming the Assembly for not delivering Private Members Bills let’s the Welsh Government off the hook. And they should be firmly on it.

    Just like in Westminster, PMBs rarely ever get through because of tribal party politics. The Welsh Government wouldn’t want a Plaid Cymru member’s Bill to go through because it would give Plaid Cymru ammunition and show the WG in a bad light. So even if it’s a good Bill, like Bethan Jenkins’ Financial Literacy Bill, it gets blocked by the Welsh Government. In Westminster at least, the failed Bill would often find itself in statute through a government amendment to a Bill at a later stage, at least. Not so in Wales because the Welsh Government has no Bills to amend!

    You’re right that the quality of the game must be the focus, but it’s the Welsh Government that’s playing

  2. On the 5 yr legislative programme my sympathies are with the Welsh Govt. Unlike 2011 this one is a coalition and has no majority or mandate to implement any single manifesto. Moreover the Welsh Govt knows that it will have to introduce unprecedented volumes of legislation post Brexit to implement whatever policies they decide on in areas from the continued provision of some sort of agricultural price subsidy to the regulation and certification of medicines. About all the WG can predict is that they WILL have urgent business that would crowd out the Byelaws Wales Bill or whatever.
    There is little point in the WG trying to bring forward a five year plan, or the Assembly adopting it (or not) before it becomes clear what legal consequences Brexit will bring.and what response is necessary.

  3. This is a tough call to make. The passage of law in an Assembly requires a roll out of ancillary law, regulations, policies and programs to ensure that the law works. I was disappointed with the content of the Historic Environment (Wales) Act, which incorporated existing laws without considering options that might suit the needs of Wales. The roll out of regulations shows signs of promise in terms of content related to the needs of Wales, but I have yet to be convinced that the fine tuning will be effective.

    Part of the reason for my discomfort is that civil society/third sector seems to have been by-passed in the process of getting the law passed. “Engagement” may have happened during the early stages its preparation, but I have yet to hear of any discussion of the law and its implications among the several history/family history/civic groups in Wales.

    Two years ago, Huw Bowen published an article “The Strange Death of Welsh History:”

    http://www.iwa.wales/2014/12/the-strange-death-of-welsh-history/

    This article inspired me as a member of local history groups in Wales to take greater interest in the proposed bill on the historic environment and the outcome of its passage. Placing the proposed bill in the context of “sustainability as an operating principle” added greater incentive to recommend a collaborative approach to the management of the historic environment, which I advocated from the outset of my involvement in the consultation process. The process rolls on as top-down exercise.

  4. i welcome the sparsity of legislation. The Welsh government has much to do in setting priorities, planning expenditure and optimising procurement. it has also to raise the quality of public services on a tight budget, which seldom requires legislation. We don’t need aspirational laws like the Future Generations Act, which sets out vague objectives with no means to achieve them but makes everyone responsible for “considering” them. Then we have yet another commissioner to make sure boxes are ticked. That is not government but tokenistic displacement activity.
    Legislative powers are there for when needed, not to be exercised for the mere sake of it. The government needs clear strategies for the economy. health, education and the environment. Let us see and debate those strategies. if any require legislation for implementation, that will be the time to pass laws. Daran Hill puts the cart before the horse.

  5. Good read.

    I think to a large extent the first question is over whether legislation is always a good thing? There is that school of thought (I can’t be bothered to look up its academic lineage) which suggests that it should always be the last resort of government. Not unlike war oddly – unsure what that suggests.

    Nonetheless, I would agree that AMs and Committee’s don’t use all avenues available to them to explore legislative ideas as frequently as they should. I suspect this is largely down to capacity. I would like to see the Committee’s do more in this regard. Suspect the Assembly’s legal team would likely buckle under any additional pressure. But again that’s a capacity thing.

    One thing that we can be fairly confident about is that good legislation takes time. Otherwise we end up in the Supreme Court with bad Bills such as the AWB.

    Since 2011 there have been some genuine attempts to be ambitious – WFG being the obvious one. However, more concerning is growth in this framework nonsense which fail to give said Bills any meaningful clout in of themselves. It also diminishes scrutiny and transparency through all that negative resolution business – there is a good article on here from Eluned Parrott about that from a while back.

    This latter point stems from Welsh Labour’s consistent inability to plan across Assemblies. While I appreciate it’s impolite to admit you’re going to be the largest party after the election, the least they could do is appear to have a plan for that eventuality.

  6. Alexander appears to believe that Labour won the May Assembly election. May I suggest he tries explaining to Leighton Andrews why all the work that went towards his local government re-organisation bill has been jettisoned. Had Labour held Rhondda then we would be seeing major legislation on this front as implied in Welsh Labour’s manifesto. This is because LG reorganisation on any pattern other than the current 22 LAs must in due course require amending various parts of the 1994 Act.
    My concern with the Assembly’s legislative process is not related to volume but quality. Brexit on any model bar the Norwegian will inevitably entail considerable overhaul of both devolved and non-devolved legislation, with quite a few laws needing to come into force at the point when EU laws cease to apply if, for example, welfare payments to farmers can continue to be paid from whatever moment we exit the common agricultural policy (probably March 2019). If they make a hash of it then the consequences will be far more serious than whether or not we continue to maintain an AWB which has been rendered largely redundant by the Minimum Wage and probably by the introduction of migrant worker restrictions post-Brexit.

  7. Responding specifically to John Davies, I agree with you it was disappointing that Bethan Jenkins’ Bill didn’t pass in the last Assembly, and I also despair of the “automatically oppose” mentality of the civil service & legal teams in Welsh Government which ministers are all too happy to sign off. The article specifically points to where the Welsh Government is weak but also – and crucially – lays some of the responsibility for the lackluster approach with AMs and the Assembly too. Not everything is the Welsh Government’s fault and it seems your default mode is automatically to assume and argue that position.

  8. Hi Dave,

    If you read my first comment it is clear I don’t believe what you say I do.

    The big issue with post-Brexit legislation (assuming London doesn’t do a power grab) is the lack of capacity and competency within the Welsh Government and related bodies to deal with it. Would suggest their do more hiring from outside their team support work streams at levels lower than Directors.

  9. Time to think outside of your boxes
    The point of Law is that Wales was annexed to Wales by England
    We are only bound to this annexation if we the people of Wales accept this bondage.
    In God’s Name I do not and never will

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