John Osmond unpicks the terms of reference of the Welsh Commission on Devolution announced yesterday
The Secretary of State for Wales Cheryl Gillan yesterday made her long awaited statement to the House of Commons on the membership and terms of reference of the Commission on Devolution in Wales. As I revealed here just over a fortnight ago, the Commission’s Chair will be the former Clerk to the National Assembly, Paul Silk.
Cheryl Gillan also confirmed that the party nominees on the Commission will be former Conservative leader in the National Assembly, Professor Nick Bourne; former Labour Welsh Government Finance Minister, Sue Essex; former Welsh Liberal Democrat President, Rob Humphreys, currently Vice Chancellor of the Open University in Wales; and Plaid Cymru’s economics adviser Dr Eurfyl ap Gwilym, who is also chairing the party’s internal commission on its future.
In addition the Secretary of State has appointed two independent commissioners: Dyfrig John, Chairman of the Principality Building Society; and Professor Noel Lloyd, a former Vice-Chancellor and Principal of Aberystwyth University.
In her Statement to the House of Commons Cheryl Gillan confirmed that the Commission will work on a first phase between now and Autumn 2012, on the case for greater fiscal powers for the Assembly; and then a second phase, reporting during 2013, on the wider constitutional settlement:
“In Part I, the Commission will look at the case for the devolution of fiscal powers to the National Assembly for Wales, and recommend a package of fiscal powers that would improve the financial accountability of the Assembly, and which are consistent with the United Kingdom’s fiscal objectives. In Part II the Commission will look at the powers of the Assembly, and recommend modifications to improve the present constitutional arrangements.”
This all sounds reasonably flexible, allowing the Commission to judge its own direction and how far it should go. However, the detailed terms of reference, published on the Wales Office website are more restrictive. They are contained in the box below. The key paragraph comes at the end.
“The Commission will not consider
in part I, the Holtham Commission’s proposals for funding reform in Wales, including Welsh Ministers’ existing borrowing powers, which are being dealt with through a separate bilateral process between the United Kingdom Government and the Welsh Government;
and in Part II the structure of the National Assembly for Wales, including issues relating to the election of Assembly Members.”
This means it won’t be looking at any proposals for reforming the Barnett formula or whether the Welsh Government should be allowed borrowing powers. This is a bizarre restriction, since taking a view of the desirability of fiscal powers surely presupposes some view of the alternative, and the availability or non-availability of borrowing powers. Improved financial accountability cannot be viewed without some regard for the potential adequacy of funding. It seems the Commission is debarred from viewing things in the round.
The Commission has also been warned off revisiting the unfinished business of the 2004 Richard Commission. This involved the twin recommendations that the number of AMs should be increased from 60 to 80, to enhance accountability, and that they should be elected by the STV system of proportional representation. This is another missed opportunity that puts political expediency before intellectual rigour.
Surely, any reasonable person would conclude that the bestowing of greater legislative powers, post the March referendum, requires the revisiting of Richard’s critique of the Assembly’s powers of scrutiny, not least in a context where the UK Government is insisting on reducing the number of Welsh MPs from 40 to 30.
These blocks on the Commission’s remit, especially the second, are opportunities missed. Indeed, it looks as though the Conservative Secretary of State has bent to pressure from the Welsh Government in Cardiff Bay. Carwyn Jones’s Labour Government wants to keep any advance towards greater fiscal autonomy and borrowing powers within its own control as far as it can. Equally, it doesn’t want the Silk Commission to re-open the Richard Commission’s agenda on the number of AMs and the way they are elected, not while some in his party – notably, Peter Hain – are disposed to get rid of even the limited proportionality of the present system. It looks as though we will have to await another coalition between Labour and either Plaid Cymru or the Liberal Democrats before this essential territory for the health of Welsh democracy is re-opened.
So, in examining the way the devolution settlement is working, what undoubtedly will become known as the Silk Commission appears to have one hand tied behind its back. Not only that, being asked to report on the second stage of its brief during 2013 means it will have to do so before the Scots have decided in their referendum in 2014 or 2015 whether to go for ‘devolution max’ – full fiscal autonomy – or independence. Either choice would have profound consequences for Wales and will probably force the Commission to put forward a series of scenarios rather than a single recommendation that could be derailed by the Scots.
Undoubtedly, in considering what the terms of reference refers to as “the boundary between what is devolved and non-devolved”, a major issue the Commission will need to address is the way powers are presently conferred on Wales. This is a relatively obscure but nonetheless extremely important matter which I discussed at some length in an article I published back in May here. At present nothing is devolved to Wales except functions which are specifically conferred in a succession of Transfer of Functions orders. Critics, including the Richard Commission, have said that this makes the settlement unnecessarily complex and also makes it almost impossible for lay people, not least many AMs, to readily comprehend the extent of the Assembly’s powers.
Instead, the Richard Commission proposed something much closer to the Scottish model in which everything is devolved except those functions which are specifically retained at Westminster, for example in the defence and foreign affairs fields. The recent referendum in Wales has improved matters, but the issue has not gone away. It needs to be at the centre of the Commission’s work.
|Commission on Devolution in Wales ‐ Terms of Reference
An independent Commission will be established to review the present financial and constitutional arrangements in Wales. It will carry out its work in two parts:
Part I: financial accountability
To review the case for the devolution of fiscal powers to the National Assembly for Wales and to recommend a package of powers that would improve the financial accountability of the Assembly, which are consistent with the United Kingdom’s fiscal objectives and are likely to have a wide degree of support.
Part II: powers of the National Assembly for Wales
To review the powers of the National Assembly for Wales in the light of experience and to recommend modifications to the present constitutional arrangements that would enable the United Kingdom Parliament and the National Assembly for Wales to better serve the people of Wales.
In undertaking Part I, the Commission should:
Part I will be completed before work on Part II begins.
In undertaking Part II, the Commission should examine the powers of the National Assembly for Wales, and in particular:
The Commission will not consider, in part I, the Holtham Commission’s proposals for funding reform in Wales, including Welsh Ministers’ existing borrowing powers, which are being dealt with through a separate bilateral process between the United Kingdom Government and the Welsh Government; and, in part II, the structure of the National Assembly for Wales, including issues relating to the election of Assembly Members.