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‘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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„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‟).

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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

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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.

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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).

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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.

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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).

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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-

legislative devolution: powers and principles‟ (2001) 52 Northern Ireland Legal Quarterly 54.

21

the overly pragmatic basis that each bill must be drafted in the light of the policy

decisions made in that particular case,64

could first be persuaded to mend its ways.

As for the appropriate constitutional way forward, we have seen how the many

institutional developments since 1998 pointed firmly in the direction of primary powers,

and thence how the Commission‟s vision of the role of the Assembly served to confirm

this. The succinct explanation given by Lord Richard speaks volumes. „A legislative

assembly is the most logical and straightforward way to enable the Assembly and its

government to do the job it has been elected to do‟.65

Going direct

As to the preferred model of primary powers, the choice ultimately came down to a

tripartite model of reserved powers, devolved powers, and an intermediate and temporary

category of retained powers where the assembly could legislate but only with London‟s

consent, and a dual model of reserved and devolved powers. In effect, this was a choice

between a phased or rolling programme of empowerment, one that incorporating

comparative lessons from Northern Ireland would echo the strong evolutionary element

in Welsh devolution, and a more conventional or Scottish-style design offering a cleaner

and more generous cut from the outset.66

The tripartite model was no „Aunt Sally‟. For a Commission minded to conclude that

full-sized devolution was too much for the territorial administration to take on all at once,

it offered another framework for organic change. Effectively, a „map‟ would be provided

of the areas that over time the devolved administration could be expected to colonise for

the purposes of exercising primary lawmaking powers. Meanwhile, allowing the

assembly to make particular pieces of statute law would give members and officials the

64

HC 989, Session 2002-03, p 5. 65

Richard speech. 66

As explained in my evidence to the Commission; reprinted as R. Rawlings, „Of Primary Powers, Etc. Two

Schemes of Legislative (and Executive) Devolution‟ (2003) 2 Welsh Law Journal 408.

22

opportunity to acquire the skills and refine the procedures necessary for drawing up,

processing and implementing primary legislation more generally.

The sub-text was delivery. Might not the powers-that-be prefer this type of phased

approach, so underscoring the role of the Secretary of State for Wales and the importance

of legislative partnership with the Welsh MPs, and blunting the argument for another

devolution referendum? With a view however to loosening the chains, the Commission

proved more brave-hearted and rejected the tripartite model as too complex. In Lord

Richard‟s words, „the Northern Ireland middle category is there for reasons specific to

them and we didn‟t see the need to go down that route in Wales.‟67

The alternative model of reserved and devolved powers in fact offers solid advantages

from the viewpoint of constitutional design. It thus fits both in terms of clarity and

legislative „space‟ with the Commission‟s vision of the role of the Assembly. Some basic

lines of political responsibility and accountability would be etched on the face of the

devolution statute; there would also be reduced dependency on, and correspondingly less

potential for enervating disputes with, Whitehall and Westminster. Likewise, in providing

more scope for innovative and rounded approaches to policy development and

implementation by the devolved administration, this model sits comfortably with the

increasing pursuit of the positive opportunities for „made in Wales‟ policies available

under the current – interim – constitutional arrangements. On the basis – as illustrated in

figure 1 – of the fields of devolved functions originally listed in the Government of

Wales Act, Richard duly recommended it.68

One aspect the Commission omitted to mention is the legal technology needed to sustain

such a scheme. In addition to the „horizontal‟ restrictions on devolved competencies such

as EU obligations, key features in the Scotland Act 1998 would no doubt be read across,

for example interpretative guidance to courts on dealing with devolved primary

legislation and devices for securing constitutional compliance like prior legal scrutiny of

67

Richard speech. 68

GWA schedule 2; Richard Report, pp 248-250.

23

bills.69

Indeed, the day a devolution statute solemnly declares that it „does not affect the

power of the Parliament of the United Kingdom to make laws for Wales‟70

will be the

day this little country comes of age.

Figure 1: legislative devolution for Wales - reserved and devolved powers

Timetable – tooling up

The report pays careful attention to the constitutional and administrative processes

involved in achieving a legislative assembly. Its illustrative timetable71

– culminating in

2011 with primary powers – stands in marked contrast to the recipe for early operational

difficulties that was the rush job of 1997-1999. Considered in terms of functions, this in

69

Scotland Act 1998, ss. 31-33, 101. 70

As adapted from the Scotland Act 1998, s. 28(7). 71

Richard Report, p. 261.

24

fact is Richard‟s alternative to the idea of a rolling programme of legislative devolution:

an extended first stage involving rapidly expanding responsibilities for the devolved

administration, but short of primary powers, and the second stage of the complete

Scottish-style design. To this effect, the timetable stands for a delayed and muted

constitutional „big bang‟.

Figure 2: Richard‟s illustrative timetable for implementation

2005 Possible UK General Election

2005 Drafting approval for new Wales Bill

2006 Bill published for pre-legislative scrutiny

May 2007 Assembly election

November 2007 Wales Bill introduced

July 2008 Royal Assent

2008-2010 Boundary Review

2011 Election of new body with 80 Members and

primary powers

The Rawlings principles, which encompass the use by the devolved administration of

broad enabling powers and in particular of generous „Henry VIII‟ type powers to repeal

and amend statutory provisions, would clearly have an important role to play here.

Originally conceived as a way of realising the potential of the GWA and so affording the

infant body space to grow, Richard‟s two staged approach would see them explicitly

directed to the end-game of a stable and robust devolution settlement. With a view to

promoting local expertise in broad policy development and law making and providing for

a smooth transition, the model of framework legislative powers was therefore preferred

„in the interim, and as a bridge to full legislative competence‟, to more of the same.72

72

Richard Report, pp 256-257.

25

So according to this scenario the devolved administration would move to – and through –

a kind of „quasi-legislative devolution‟ involving the making of the type of policy rules

traditionally expressed in, but without the proper status of, primary legislation.73

As

Richard sees it, „this would involve the progressive transfer of delegated powers in

respect of devolved services, allowing the maximum scope for the Assembly to exercise

its secondary legislative powers to implement its policies without further recourse to

Westminster.‟74

Or what the report calls „a new legislative partnership‟, perhaps

expressed as „soft law‟ in the form of a memorandum of understanding to emphasise the

commitment.75

As well as demonstrating the Commission‟s radical edge, this proposal would neatly

avoid immediate amendment of the GWA. It is however vulnerable to the classic

Whitehall objection of too much legal and administrative trouble for fleeting purpose.

Geo-politics

Welsh devolution serves in its own small way to highlight the interplay in the UK

constitutional development of the twin elements of symmetry and asymmetry or

uniformity and diversity. Whereas it is part of the Welsh condition to seek to piggyback

on Scotland in matters of institutional advancement, the novel interface of national

devolution with deep-rooted practices and understandings that have scant regard for

Offa‟s Dyke generates its own very strong cross-currents.

Simply put, a centuries long process of legal, political and administrative assimilation

with a powerful neighbour cannot be wished away. Taking a view on primary powers

more in tune with the concept of a „National Assembly‟ is fine, but the Commission also

had to factor into the equation what I described in evidence as „the uniquely powerful

73

As envisaged in R. Rawlings, „Quasi-Legislative Devolution: Powers and Principles‟. 74

Richard Report, p. 256. 75

As part of the paper construction of intergovernmental relations in UK devolution: R. Rawlings,

„Concordats of the Constitution‟ (2000) 116 Law Quarterly Review 257.

26

geo-political concept of “England and Wales”‟.76

Famously expressed in, but not

confined to, the overarching unity of a legal system, it is of the essence of the idea - in

Lord Richard‟s words - of a „model specifically tailored to Welsh circumstances‟.77

This is not to say that the old „cross-border‟ paradigm is somehow set in stone. While

there will surely be many situations where integrated policy and delivery systems of this

kind continue to hold sway, and for good reason, it would be strange indeed if the pull of

national devolution did not strengthen over time and across a broad range of public and

private institutions. It is nonetheless idle to think of Richard with a blank sheet of paper

here.

So, reverting to the recommended model of legislative devolution, the basic division of

reserved and devolved powers clearly needs fleshing out in the light of the peculiar

history and geography of Wales. While grounding primary powers in the original fields

of devolved functions would amount to a wide-ranging constitutional dispensation across

much of public law, it is also designedly more limited than the Scottish scheme. As a

terse treatment in the report makes abundantly clear, legislative devolution in core areas

of the administration of justice, both civil and criminal, was not seriously on the

Commission‟s agenda.78

In similar vein, the Sewel convention as developed in the Holyrood context, whereby,

with the agreement of the legislative assembly, Westminster would operate as Wales‟

„other Parliament‟ by legislating on devolved matters, has special resonance. As the

report explains, „such legislation is likely to be even more extensive in respect of Wales

than it has been for Scotland. This would reflect cross-border issues as well as Wales‟

closer historic and institutional relationship with England.‟79

No doubt the resulting

„balance‟ between Wales-only legislation, passed in Cardiff, and England and Wales

76

See further, Delineating Wales, especially chapter 11. 77

Richard speech. 78

Richard Report, pp 193-194. See for general discussion of the developments associated with „Legal

Wales‟, T. Jones and J. Williams, „Wales as a Jurisdiction‟ [2004] Public Law 78.

27

legislation, passed at Westminster, would also change over time, according not only to

political circumstance but also – in suitably evolutionary fashion – the increasing

capacities of the devolved administration. For its part, in the face of such close

„partnership‟ in the Union State, the Commission could afford to be more relaxed about

legislative devolution than it might otherwise have been.

Following in the footsteps of the Scotland Act 1998, the Commission carefully avoided

the legal minefield of a devolved scheme of defined functions, opting instead for a

general model and presumption that primary powers pass unless reserved. However,

because once again of the peculiar pull to uniformity, the list of specific reservations in

the Scotland Act is clearly apt to be magnified in the case of Wales.80

As that statute also

reminds us, they could take the form not only of subject area designations but also of

specific references to statutes. In this regard, the original Transfer of Functions Order

empowering the Assembly – a minefield of particularity - should never be forgot.

As direct engagement with the individual Whitehall departments would no doubt have

revealed to the Commission, there is no magic wand. Looking forwards, this kind of „turf

wars‟ is however an intergovernmental struggle that will have to be endured if Wales is

ever to have a governmental framework of tolerable clarity and stability. To this effect,

there is much to be said for charting a broad constitutional design, so meeting the demand

for a manageable and generally comprehensible set of arrangements, and then working

outwards, which is effectively what the Commission proposes. Perhaps hopefully, the

particular constraints of statutory drafting would also operate to limit the listing of

specific reservations in any „Wales Act‟.

A variation on a theme, there is a special need in the Welsh context for „bridging

provisions‟, whereby – on the Richard scenario – local cabinet ministers would have

secondary powers beyond the realm or reach of the primary powers given to the

79

Richard Report, p 257. See for comparative discussion, A. Page and A. Batey, „Scotland‟s other

parliament: Westminster legislation about devolved matters in Scotland since devolution‟ [2002] Public

Law 501. 80

As discussed by Lord Elis Thomas under the rubric of „Contingencies of Devolution‟.

28

legislative assembly. Consent and consultation provisions, whereby London is required to

work in partnership with Cardiff on a cross-border basis, are an obvious example. In this

way, the geo-politics of the situation is also indicative of a mixed form of legislative and

executive devolution for Wales.

(IV) Consequentials and side-steps

Reflecting the demand for an holistic approach to constitution-building for Wales, the

report demonstrates a clear-cut line or direction of „consequentials‟, whereby the core

recommendation on powers signals the end of the corporate body and grounds the case

for a larger Assembly and in turn for a different electoral system. Bound up with the

golden thread in the report of political accountability, the coherence or powerful internal

logic of this alternative model of a legislative assembly cannot be gainsaid.

That Richard merely had to sign the death warrant of the corporate body is a tribute to the

scale of the home grown constitutional development since 1999. Looking forwards, a

local version of the Scottish parliamentary corporation already is on the horizon: the

conventional model of a distinct legal entity charged with ensuring the service and

support of the parliamentary process and associated activities. As the official

announcement of the new Assembly Parliamentary Service put it, „though the change has

been agreed by Members independently of the recommendations of the Richard

Commission, it reflects the Commission‟s view that the structure of the Assembly should

be reconstituted with a separate legislature and executive‟.81

APS is in fact the Welsh

parliamentary corporation in waiting.

Back to the future

As part of the remit on electoral arrangements, the Commission was required to consider

the size of the Assembly from both angles: adequacy under the existing set up and case

for change – increase – in view of its recommendations on powers. Yet, as Richard

81

Presiding Office, press release 26 April 2004.

29

observed, there is no „correct‟ size for an assembly or parliament.82

As well as the

functions and powers and jobs to be done, there are some more intangible factors that an

independent Commission could reasonably consider, such as the scope for

„representativeness‟, likely scale of the „payroll‟ vote, and the local reservoir of talent.

As for the history of the matter, there is no particular operational reason for an Assembly

shrunk from the headcount of 80 Members originally contemplated in the ill-fated Wales

Act 1998 and thence in Labour policy making up until 1997.83

Another triumph of

delivery over constitutional product, this was driven by a different political choice of

electoral system: no longer „first past the post‟, but an additional member system (AMS)

which would demonstrate „inclusiveness‟ - including for the purpose of a referendum -

while being calculated to produce a Labour working majority.84

In adopting the otherwise

unremarkable principle that „size follows function,‟ the Commission was thus directly

challenging a train of thought in the constitutional construction that had originated in

another internal Party compromise - and happily so.

In light of the first term, the Commission was able to identify much slack in the workings

of the Assembly as a deliberative body. This is not only a function of short hours and

long holidays, but also links to a general sense of aimlessness in many of the debates in

plenary, which in turn reflects the basic lack of legislative substance in this „virtual

parliament‟. Again, elaborating on the greater focus on scrutiny that subject committees

might bring once freed from their ministerial chains, the Commission pointed up the

untapped potential of smaller size arrangements, as also of rigorous priority setting and

more flexible working methods.85

Simply put, by facing up to the evident failings in

political accountability under the current arrangements, the Assembly could do better.

Nonetheless, given the evident need in a legislative assembly for a stronger culture of

challenge and scrutiny, Richard emphasises that enhancing existing capacities would not

82

Richard Report, pp 63-64. 83

See especially, Welsh Labour Party, Shaping the Vision: A Report on the Powers and Structure of the

Welsh Assembly (Cardiff: 1995). 84

See Delineating Wales, chapter 1.

30

be sufficient to cope with primary powers. To the contrary, a combination of efficiency

gains and extra members would be „necessitated by the additional scrutiny workload‟.

More particularly, with a view to where much of the additional burden would

undoubtedly fall, the opportunity for individual Members to develop subject expertise,

and the regularity of committee meetings, are rightly prioritised by the report.86

This in short is a refreshing vindication of the view that in a new constitution for Wales

the empirical truth that government usually gets its way should not be allowed to obscure

the importance of the debating and legitimating functions. Surprise, surprise: it was also a

case of „back to the future‟. Neatly fitting a gleaming Assembly chamber in prospect, as

also the current electoral map of 40 constituencies in Wales, the recommended expansion

to help complete the unfinished business of accountability was from 60 to 80 Members.

Last man standing

It is in the nature of the beast that whatever Richard recommended on electoral

arrangements, would be controversial. Such are the many unresolved tensions in the

Welsh body politic between the long-standing political dominance of Labour and the

plural dynamics of having four major political parties. Indicative of considerable

movement inside the Commission, the fact of a unanimous recommendation in favour of

the single transferable vote (STV) system of elections for a larger assembly truly is

remarkable.

Richard faced two particular complications. First, with a view to implementation, the

Commission clearly had to keep in mind the broader UK dimension and especially the

ongoing public discussion over appropriate electoral arrangements for devolved

government „north of the border‟. Take the precept of „coterminosity‟, currently

embedded in the GWA,87

whereby the boundaries of the parliamentary constituencies and

the Assembly constituencies should be either identical, or at least not inconsistent, with

85

Richard Report, pp 68-71. 86

Richard Report, pp. 258-259. 87

GWA, Schedule 1, paragraph 1.

31

each other. Of the essence of the Scottish debate88

for understandable reasons of voter

awareness, constituency representation and party political organisation, Richard also

hints at it for the purpose of STV.89

Already touched on, there was secondly the great unwritten assumption underlying the

GWA that the Assembly electoral system should be one which both brings all the

principal political parties inside the tent and – in contrast to Scotland90

- offers Labour a

reasonable expectation of forming a majority government. How far - in either direction -

could Richard reasonably go away from this design element of genuine electoral

competition? Alternatively, how should the Commission respond in light of the practical

workings of AMS, including the absence so far of clear working majorities for the

dominant interest?

Whereas the Liberal Democrats clearly had been influential in flagging up „the degree of

proportionality‟ in the terms of reference, it was notably a case in the evidence gathering

of Labour elements hammering away at AMS.91

Given the fundamentalist objection of

two classes of member, and voting patterns that have so far produced just one Labour

„list‟ AM, it was perhaps inevitable that Richard should conclude that this system could

not sustain an expansion to 80 AMs. „If there were substantially more regional [list]

members, the scope for competition and argument about their activities seems likely to

increase‟.92

The report then shows little interest in fine tuning existing arrangements,

most obviously to prevent dual candidature or the Labour bete noire of election via a list

of constituency losers.93

88

See especially, Scottish Affairs Committee, Coincidence of Parliamentary Constituency Boundaries in

Scotland and the Consequences of Change, HC 77, Session 2003-04. 89

While leaving open the alternative of shared boundaries with local government areas: Richard Report, p.

237. 90

By reason of the greater proportion of list to constituency members prescribed in the Scottish devolution

settlement: see Delineating Wales, chapter 1. See further, Independent Commission on Proportional

Representation, Changed Voting, Changed Politics, Lessons of Britain’s Experience with PR since 1997

(London: Constitution Unit, 2004). 91

See Richard Report, pp 35-39. 92

Richard Report, p. 233. 93

A familiar source of complaint in Cardiff Bay: see for example, Assembly Record, 28 January and 3

February 2004. See also, J. Bradbury, O. Gay, R. Hazell and J. Mitchell, Local Representation in a

Devolved Scotland and Wales (London: ESRC, 2003).

32

The Commission‟s rejection of „first past the post‟ (FTPT) for Assembly elections is

compelling. Given that the results would be much less proportional than under AMS -

perhaps 75% of seats on 40% of the vote for Labour94

- the report once again highlights

the major implications in terms of political accountability as compounded by the fact of

an essentially four party system. The „capacity for opposition and challenge‟ as well as

„the Assembly‟s claim to represent Wales as a whole‟ would thus be seriously

prejudiced.95

Another telling point, the report carefully distinguishes these conditions of

small country governance from Westminster, where of course FTPT does not rule out the

election of sufficient opposition Members to make possible effective scrutiny. For those

with a genuine care for the health of Welsh democracy as against a narrow interest in

„strong government‟, the Commission‟s stark language makes the point admirably. FTPT

„would not be defensible‟.96

And so, essentially on the basis of „last man standing‟, Richard opted for STV.97

The

system clearly has many attractions in the context of devolved government: a strong

element of local representation and single class of member, the factors of proportionality

and enhanced voter choice including between the candidates of a party. The Commission

could not be accused of lack of valour here. Not so much „red flag‟ as „red rag‟ would be

one way of describing the plural party representation across Labour strongholds apt to be

engendered by STV.

‘Real’ and ‘virtual’ STV

Of course much would depend on the precise contours of the system. Since it could

conceivably come back into the equation post-Richard, the importance of the choice

between multi-member constituencies and dual member ones where the dynamics of

94

Extrapolating from the votes cast on in the first ballot of the 2003 Assembly elections: Richard Report, p.

234. 95

Richard Report, p 234. 96

Richard Report, p. 239.

33

proportionality would scarcely have room to operate deserves a special emphasis. It

represents - to coin a phrase - the difference between „real‟ and „virtual‟ STV.

Given the particular demography of Wales, a diverse mix of urban and rural, the

Commission understandably chose a middle path. „A range of four to six Members (and

exceptionally of three Members in some areas) per constituency should make possible a

reasonable balance between local accountability and proportionality.‟98

Technically

speaking, in terms of the work on boundaries etc, this would not be difficult to chart.

However, such a system would be a shot in the dark, the exact electoral consequences of

it being very difficult to model.99

One might reckon on a similar party division of seats to

that produced by AMS or – more probable – some lessening in the chances of one party –

Labour - gaining an overall majority. There is more than one reason why this part of

„Richard‟s radical recipe‟ is prone to cause political indigestion!

Don Quixote in Cardiff Bay

Paper may yet be laid on paper. Just as the Commission had completed its deliberations,

the UK government announced a review of the electoral arrangements for Scottish

devolution, whereupon the Secretary of State for Wales seized the opportunity to reserve

the option of doing likewise once the Welsh Assembly Government had responded to

Richard‟s recommendations.100

Review or no review, the prospect opens up of the current Assembly electoral

arrangements continuing,101

subject to tighter regulation or no dual candidature. From the

viewpoint of the official architects, there would be advantages in terms of continuity and

97

The advocacy of the Electoral Reform Society and the Parliament for Wales Campaign was influential

here: Richard Report, p. 225. Other alternative systems like Alternative Vote (AV) received short shrift:

Richard Report, pp 234-235. 98

Richard Report, p. 239. 99

See now, R. Wyn Jones and R. Scully, STV in Wales (ESRC Devolution and Constitutional Change

briefing No. 9, 2004). 100

Wales Office press release 9 February 2004. 101

As discussed below in the context of no change to the size of the Assembly and/or no primary powers.

34

- in light of Richard‟s extended timetable – the brevity of reform. History then may yet

record that following a „shoot out‟ - non-proportional system recommended against by

the Commission, proportional STV disowned by a hegemonic Party that still can „win‟ in

Wales - the amalgam that is AMS remained in post as „last man standing‟. Put another

way, could it just be that in assailing current arrangements under the tattered banner of

FTPT local Labour representatives have been tilting at windmills?

Eye on the ball

As well as serving to highlight the „consequentials‟, the following figure points up a

series of major issues about which the report is effectively silent or determinedly soft-

edged. Some good old-fashioned Welsh sidestepping is clearly in evidence.

Figure 3: consequentials and side-steps

35

Take the financing of devolved government – „the fiscal constitution‟ – and in particular

the role and place of the much criticised Barnett formula.102

Effectively warned off this

very sensitive topic by the Assembly finance minister,103

the Commission in dealing with

only one part of the UK devolutionary development was in any case poorly placed to

consider it. In the event, Richard was reduced to summarising the advantages and

disadvantages of the present funding arrangements against the background of the

102

See for discussion in the local context, Delineating Wales, chapter 2. 103

Richard Report, p. 203.

36

comparative weakness of the local economy or strong continuing financial dependency

on central government.104

The finding that, in the case of a legislative assembly, Scottish-style tax varying powers

would be desirable, though not essential, not only smacks of a compromise but also has

much to commend it. Constitutionally speaking, there is a good argument for this element

of fiscal autonomy, as in the very direct form of democratic accountability familiarly

associated with it. Then again, in view of the particular history, geography and economics

of Wales, the aphorism of „too much pain for little gain‟ rings true. The First Minister in

evidence to the Commission was notably unenthusiastic.105

Playing it long

Richard could not entirely avoid the vexed issue of Welsh parliamentary representation.

One could well argue that Wales is over-represented at Westminster under the current

arrangements;106

in the event of a legislative assembly, the case for retaining all 40 Welsh

MPs would be wafer thin. As the report says, „in the case of Scotland, it was accepted

that the devolution of primary legislative powers would lead to a reduction of Scottish

representation at Westminster. It is likely that a similar expectation will arise if such

powers were devolved to the Assembly.‟107

Constitutionally speaking, a proportionate reduction in the number of Welsh

parliamentary constituencies, to around 32, would not be frightful. There would still be

ample scope for effective local representation and span of party political opinion, as also

sufficient backbenchers to staff parliamentary machinery like the Welsh Affairs Select

Committee. As is well known however, the Secretary of State for Wales - operating here

as the shop-steward of the Welsh Labour MPs, as well as gatekeeper to the Westminster

104

Richard Report, pp 206. 105

Rhodri Morgan, oral evidence to the Commission, 12 December 2002. 106

The electoral quota for Wales being substantially lower than the UK average (and the English quota in

particular). 107

Richard Report, p 261.

37

legislative process - had ruled out any such reduction even before publication of the

report.108

Perhaps then the best the Commission could do was to play it long.

To this effect, with a view to softening the blow, or combatting a self-preservation

instinct, Richard‟s extended timetable is more extended than at first appears. Since the

resulting boundary changes at Westminster would be post-2011, the earliest evictions

would be happening fully a decade after the Commission reported. Another measure of

the sensitivities, the report carefully highlights the important continuing role that Welsh

MPs would play in the event of a legislative assembly, for example in terms of a Sewel-

type convention. In fact, once the Commission had determined to take its own

constitutional vision seriously, it is hard to see what more could have done to

accommodate the Welsh (Labour) MPs.

Treasure ship

To summarise, the Commission in executing various side steps clearly was concerned not

to overreach. Concentrating instead on the key issues for implementation of legislative

power and internal architecture, and of composition and electoral system, Richard thus

kept an eye firmly on the ball. To mix metaphors, members of the Commission would

naturally have been concerned to see the good ship „Richard‟ successfully depart the

harbour. But was she already over-laden with treasure?

(V) National devolution – the next phase

At one and the same time, the Commission in presenting the case for a legislative

assembly has sent a powerful message, and by virtue of the radical nature of its proposals

has afforded local actors a certain freedom of manoeuvre. Meanwhile, the Secretary of

State for Wales has been given „plenty of food for thought‟.109

In the next – post-Richard

– phase of national devolution there obviously is much to play for.

108

See for example, House of Commons debates 25 February 2004 column 270. 109

Wales Office press release, 31 March 2004.

38

While Richard, as an independent Commission, could not say so, a Labour victory in the

looming UK general election clearly underwrites its timetable. Presumably the

calculation was that by 2009 matters would be so far down the track that a potential

incoming Conservative Government would go with the flow. Of course the strong sense

of contingency in the Welsh constitutional development becomes pervasive once the

initial assumption is put in issue.

Take the story line of Lib/Lab coalition or „partnership government‟ at Westminster. No

doubt the Welsh Liberal Democrats would be impressing on colleagues in London that

part of the price should be „Richard uncut‟, that is including „real‟ STV. Further vistas

then include Lib/Lab coalition in Cardiff and the truly radical measure of STV in Welsh

local government elections.110

Alternatively, factor in a majority Conservative

Government in 2005. It should not simply be assumed that no devolution legislation

would follow. To the contrary, a Government of Wales (Amendment) Act, designed to

kill off the corporate body, is a plausible scenario. Conservative representatives, from the

original parliamentary proceedings on the devolution legislation onwards, have an

excellent track record on this particular issue of constitutional design.111

Discount

But let us reckon like Richard on what currently appears the likely UK electoral outcome.

Turning to the art of the possible, the question that naturally arises is the scale of the

discount required for winning agreement in Labour circles for another round of local

constitutional reform, if indeed this is achievable. „Rowing back‟ on Richard, with a view

to catching the Party tide, would be par for the course in the not so great game of Welsh

devolution.

110

As recommended by the majority of members on „the Sunderland committee‟: Commission on Local

Government Electoral Arrangements in Wales, Improving Local Democracy in Wales (2002). 111

See Delineating Wales, chapters 3-4.

39

Notably, whereas the core recommendation on powers has attracted many plaudits inside

Wales,112

it evidently took the local political establishment by surprise. Prior to

publication, the smoke signals suggested an internal Party compromise on the basis of a

phased approach, the constitutional weakness of this then being seen as a political

strength, with different Labour factions being able to take a more or less expansive

view.113

In the event, „positions,‟ to use the Presiding Officer‟s word, have had to be re-

evaluated and modified or reasserted ahead of the special Wales party conference on the

matter previously scheduled.114

Such once again are the many contingencies of Welsh

devolution!

Numbers game

When introducing the first of the Assembly‟s major debates on Richard, the First

Minister proffered no fewer than 15 questions that Members should consider.115

Rapid

inspection, however, reveals that the great majority of them relate to two matters, the first

one being the appropriate size of a legislative assembly.

In the immediate aftermath of the report, the question of size took on the character of

Welsh constitutional question of the day, so displacing the „big issue‟ for the Commission

of primary legislative powers. „One of the more thinly argued sections‟ is how Rhodri

Morgan described the case for 80 AMs in the light of primary powers,116

maintaining to

the contrary that the present complement „can do the job if we do it more effectively‟.117

Challenging the way in which the independent commission had gone about its business,

the local political and administrative machine is seen here reverting to type. According to

the First Minister, Richard should have focused - in narrow technocratic style - on the

„net calculations‟ and „substitution effects‟ entailed in a limited legislative programme, as

112

J. Osmond (ed.), End of the Corporate Body, pp 9-14. 113

For example, BBC Wales news report 29 March 2004. 114

For 11 September: at the time of writing, the Party is canvassing the views of members. A full

Assembly debate, on an amendable motion, is promised for the autumn. 115

Assembly Record 28 April 2004. 116

Assembly Record 28 April 2004.

40

also on possible new procedures, such as sending subordinate legislation „upstairs‟

Westminster fashion. Happily however, the Commission‟s broader constitutional analysis

also provides a benchmark for testing the evidential base and methodology, and

assumptions and deductions, of a rival examination by Welsh Assembly Government

officials that the First Minister has established in consequence.118

Any such study is apt to be little more than window dressing. In the continuing quest for

primary legislative powers, going for 60 Members is an obvious line of less resistance.

Hold down the numbers of AMs, so break the Richard „consequential‟ of STV, and so

reduce the local mathematics of the case for fewer Welsh MPs, and – lo – the prospects

for internal Party compromise may be improved. A popular distaste for „more politicians‟

would also be satisfied.

This will not do. To reiterate, Richard makes clear that there would be considerable

operational problems in a legislative assembly of 60 Members, not least given the

retarded culture of scrutiny and challenge in current arrangements. The demands in terms

of accountability on the representational side would scarcely diminish as the new Welsh

polity matured and a local statute book developed, and might well prove acute in the

political conditions of „cohabitation‟. Fortunately, such a design could also be expected to

provoke strong opposition in the parliamentary proceedings on a Wales bill, not least in a

revising chamber which knows all there is to know about the role and importance of

scrutiny and which would be losing business.

Of course in the long view „60 v 80‟ may itself appear a false dichotomy. Both sets of

figures are rendered plausible by a political geography of 40 parliamentary

constituencies. Richard we have seen directly raises the question: will that continue? For

his part the Secretary of State for Wales can do many things, including „red lining‟ the

size of Welsh parliamentary representation. It is beyond even his powers however to

suppress the doctrine of parliamentary sovereignty.

117

Assembly Record 4 May 2004. 118

Assembly Record 11 May 2005.

41

Referendum

Reverting to the First Minister‟s exam paper for AMs, the second main part relates to a

referendum.119

Not having one – people avoidance – appears in fact a cardinal principle

of the local constitutional policy.120

The Labour divisions that famously arose during the

devolution campaign in 1978 evidently cast a long shadow. Filling the gap in Richard‟s

recommendations, other political forces have of course expressed a different view: not

only the Conservatives in Cardiff Bay and at Westminster, but also a substantial number

of Welsh Labour MPs.121

„No referendum means no primary powers‟ clearly is a

powerful equation for the devolution-sceptic.

Let us unpack things. Given the Scottish precedent, it is hard to see the basis on which a

separate referendum vote on tax-varying powers could be resisted in Wales. All the main

players are in fact agreed on this, which also underscores the First Minister‟s disinterest

in the policy.122

Of more immediate relevance is the electoral option of „first past the

post‟ for a legislative assembly, given the continual lusting in this direction in Labour

Party circles as shown at the most recent Wales TUC conference.123

The requirement here

of another referendum vote not only fits with Richard‟s rejection of the option as

indefensible but also squares with the constitutional process for establishing the

Assembly. In my view, in light of the assurances on „representativeness‟ in the

devolution white paper124

and popular assent afforded in the referendum, it would be

119

Assembly Record 28 April 2004. 120

See for example the First Minister‟s „Bangor speech‟: Rhodri Morgan, „Making Wales Work?‟ public

lecture at the Welsh Institute for Social and Cultural Affairs, Bangor, December 2003. 121

As illustrated in the Welsh Grand Committee proceedings 6 July 2004. Opinion polling suggests broad

popular support for a referendum before greater powers are ceded: J. Osmond (ed.), Richard Commission

Sets Agenda, pp 50-52. 122

See Assembly Record 4 May 2004. 123

With the proverbial fig leaf of dual gender representation for each of 40 constituencies: The Western

Mail 30 April 2004. 124

A Voice for Wales, chapter 4.

42

nothing less than a fraud on the people of Wales to move to „first past the post‟ for the

assembly elections without consulting them directly.125

As for awarding wide-ranging primary powers, the objections that one hears to holding a

referendum sound hollow. Take the patronising idea, prevalent in Cardiff Bay, that the

people of Wales could not be expected to vote on the difference involved in a legislative

assembly. Odd it is then that they can apparently be trusted to vote on a draft Constitution

for Europe several hundred pages long. Nor is it sufficient to say, as the First Minister

does126

, that the referendum is a most exceptional device in our unwritten constitution.

Understandings clearly are changing in this regard, as the fact of the establishment in

2000 of the Electoral Commission with major supervisory functions serves to illustrate.127

The First Minister has also summoned up „the spirit‟ of the devolution referendum to

deny the need for another such vote on primary powers. In his words, „the Assembly

which emerged… has legislative powers in a series of policy areas…Proposals which

flow from Richard, and which lie within that essential framework seem to me to fall

within the umbrella of the original process.‟128

And again: „the extent to which we are

governed by the UK Government and by the Assembly is not a fundamental issue and,

therefore, not a matter that one should put to a referendum.‟129

It has to be said: these are extraordinarily broad propositions, which could even

encompass a body with considerably greater legislative powers than the Scottish

Parliament. It is also revisionist history, which does not square with the way in which the

matter was presented to the people of Wales in 1997. This was a specific proposition, one

that established a framework for organic change but also imposed certain overarching

125

The First Minister has evidently been thinking along similar lines: see Assembly Record 23 March

2004. 126

Assembly Record 4 May 2004. 127

Political Parties, Elections and Referendums Act 2000. 128

Rhodri Morgan, „Making Wales Work?‟ 129

Assembly Record 4 May 2004.

43

constraints through the model of executive devolution.130

A Voice for Wales, Scotland’s

Parliament: the distinctive titles of the two devolution white papers is no accident.

With a view to securing legitimacy, there are solid arguments for holding another

referendum on primary powers. At the high political level, factoring in the inevitability

one day of „cohabitation‟, as also the honourable record of the Conservatives in Wales in

adjusting to an unwelcome result in the devolution referendum, a democratic form of

entrenchment has major attractions. Of course a referendum vote might also be usefully

deployed to show Welsh Labour MPs that a legislative assembly is now the „settled will‟

of the people of Wales, if indeed it is. „Catch 22‟: the Assembly is held back under the

devolution statute from forcing the issue and going it alone with a referendum on

legislative devolution.131

Speaking more generally, a decision not to allow the people of Wales to vote for or

against a legislative assembly itself would be a recipe for controversy. It would also risk

blighting the new arrangements, with the perceived lack of popular consent a breeding

ground for cynicism. Turning the argument round, if the result of another referendum

vote was that government should not „be brought closer to the people‟ through the

qualitative difference in status, legislative initiative and delivery that primary powers

connotes, the matter could fairly be considered settled for a couple of Assembly terms.

Richard has convincingly made the contemporary case for Home Rule. But why should it

be rammed down people‟s throats?

‘Virtual parliament’ – mark II

But will the Party line encompass primary powers? Another option, which is not so much

cherry picking as rewriting Richard, and so smacks of an official salvage operation in the

face of entrenched opposition among the Welsh Labour MPs, has latterly been suggested

130

As the former Secretary of State for Wales Ron Davies confirmed in oral evidence to the Commission,

26 September 2002. 131

See especially GWA, s. 36 (provision for poll specifically tied to exercise of Assembly functions).

44

by the First Minister.132

A model of framework legislative powers writ large, it would

involve implementing Richard‟s interim approach to powers on an open-ended basis, and

doing this generally and backwards as well as forwards in new primary legislation.

In light of the First Minister‟s oft-stated preference for primary powers, the taunts of „U-

turn‟ and „caving in‟ were only to be expected.133

In fact, the official justification turns

the Commission‟s reasoning upside down, such that its extended timetable – far from

easing the path – is seen as a problem. To quote the First Minister, „one of the things I am

keenest to avoid is a lengthy period in which the powers of the Assembly – rather than

what it can achieve with its powers – is always at the forefront of political debate. Ten

years in which the Assembly talks more about itself than what it can do for others seems

to me a very high price to pay for progress.‟134

A twist in the tail, this „new thinking‟ or „fourth way‟ (forward) is also explained by

reference to the evidence led – and so limited – basis of the Commission. As the First

Minister tells it, Richard was not in the business of coming up with its own solutions and

so left a space in the range of options since none of the witnesses had suggested an idea

that stems from „some very clever minds‟ in the devolved administration.135

Notably far

from the public gaze, officials in close consultation with the Wales Office have in turn

been busily engaged on working up what in the peculiar jargon of Welsh devolution is

the unprepossessing constitutional option of „13.2 plus‟.136

This approach could take various forms and much would depend on which was chosen.

For example the devolved administration might be armed with widely drawn „Henry

VIII‟ powers to repeal and amend provisions in a list of statutes or in designated fields of

devolved functions. In light of the politics, and perhaps as part of a phased programme of

empowerment, the approach could also involve fewer policy domains than Richard

132

Rhodri Morgan, speech to ESRC devolution conference, Cardiff, 24 June 2004. 133

Assembly Record 13 July 2004. 134

Rhodri Morgan, speech to ESRC conference. 135

Assembly Record, 26 June 2004. 136

A reference to the „box‟ in the report that summarises the (initial) model of framework legislative

powers: Richard Report, p. 244.

45

envisages for primary powers, for example social services and local government but not

(yet) the environment. A litmus test of the capacities of the devolved administration in

the new modalities of intergovernmental negotiations this most certainly would be!

Conceptually speaking, „13.2 plus‟ is a particularly striking type of „quasi-legislative

devolution‟. Reading across from the constitutional rise at UK level of Henry VIII

powers,137

and reflecting earlier expectations of more generously drafted Assembly

order-making functions,138

the idea thus represents the maximal scenario of Welsh

constitutional development under the existing – modest - devolutionary scheme. In

practical terms, by so providing the devolved administration with a greater legislative

„space‟ in which to deliver „joined up‟ and distinctive „made in Wales‟ policies, it would

correspondingly reduce the problem for the Assembly of the Westminster legislative

bottleneck.

A different but related point: this approach would not only build on the Assembly‟s

distinctive machinery for scrutinising subordinate legislation but also underscore the case

for a formal separation of functions in the local polity. It could in fact be easily combined

as part of a Government of Wales (Amendment) Act with putting the corporate body out

of its misery. In light of the short history of the Assembly it is then aptly characterised as

the mark II model of a virtual parliament.

From the standpoint of a First Minister looking to move things forward while seeking to

help preserve Party unity there are major attractions. Precisely because „13.2 plus‟ wears

an evolutionary character there is, in Rhodri Morgan‟s words, „no Rubicon to be crossed,

in terms of primary powers and all that goes with it‟.139

Politically speaking, this

approach would therefore trump the arguments for more AMs, fewer MPs, and a

referendum. Likewise, it might allow leading actors to claim a compromise: „a new

legislative partnership‟ between MPs and AMs, with the door ajar for Richard-style

137

N. Barber and A. Young, „The Rise of Prospective Henry VIII Clauses and Their Implications for

Sovereignty‟ [2003] Public Law 112. 138

See Delineating Wales, chapter 2. 139

Rhodri Morgan, speech to ESRC conference.

46

primary powers one day. And of course, if „13.2 plus‟ did not in his words „prove to be

the best idea on offer‟, the First Minister could always go back to arguing for primary

powers.

However the problems and limitations of this „solution‟ should not be glossed over.

Technically speaking it is not easy to deliver, given the many diverse statutory sources

from which the Assembly draws its functions and the particular difficulty involved in

designating fields of legislative power in the absence of legal technology like the general

presumption that (primary) powers pass. Since the basic constitutional framework of the

GWA would still underscore the not so little matter – in the geo-political context of

„England and Wales‟ - of specific reservations, the all too familiar problems in Welsh

devolution of clarity and intelligibility would also be played up.

As an open-ended „solution‟, „13.2 plus‟ is lacking in both political and administrative

robustness. Take the formula of „maximum scope‟ in the construction of framework

powers. The prior experience in Welsh devolution only serves to highlight the

vulnerability to more cautious interpretations reflecting entrenched Whitehall

understandings and preferences, and Westminster dogma. As well as remaining

dependent for different types of primary legislation affecting Wales, the devolved

administration would not have the new beginning of a „Wales Act‟ by way of formal

legal guarantee and no clear democratic „entrenchment‟ for this kind of „quasi-legislative

devolution‟ in a situation of political cohabitation. Such after all is the logic of not

crossing a „Rubicon‟.

Constitutionally speaking, the approach is open to criticism both for being too little and

too much. Grating with the concept of a „National Assembly‟, it is obviously not

designed to win the plaudits of Plaid Cymru and the Liberal Democrats. Whether it

would be sufficient to win over those substantial sections of the Welsh Labour Party that

have previously expressed support for primary powers is another calculation entirely. On

the other hand, hollowing out the role of the centre – a strong measure of „legislative

47

devolution by the back door‟ – would be the litmus test of a full and effective

implementation.

Perhaps then it is not surprising that no one in civil society came up with the idea. Indeed,

„13.2 plus‟ would hardly be likely to satisfy the First Minister‟s desire for a quiet

constitutional life in the next phase of Welsh devolution. Of course Richard can be

consigned to the long grass. But it cannot be pulped.

Conclusion – the big message

Greeting publication of the report, the First Minister declared that it was „a red letter day

for Wales‟. There was, he said, „ good reason to be proud of what this signifies in terms

of growing maturity in the political process, and above all, in the level of engagement

with society in all parts‟ of the country.140

By the same token, one might hope for a

constructive, open and inclusive set of deliberations on Richard. However, past form

suggests the opposite. „A closed and elite form of constitution making‟ was how I

described the internal political and administrative dealings last time round.141

Historians

of the next phase of national devolution may well find that the interplay between the twin

processes of UK government and Welsh Labour Party policy making repays a careful

scrutiny in this regard.

There is much to admire in the work of the Commission. At one level, in getting to grips

with a poorly planned or excessively pragmatic and piecemeal constitutional framework,

Richard shows a refreshing willingness to challenge or innovate that sits comfortably

with the popular, radical traditions of Wales. In contrast, it has to be said, to the innately

conservative view of a presumption against further change voiced by certain Labour

elements.142

At another level, the Commission has rightly resisted the temptation to seek

after a firmly symmetrical approach to the UK constitutional development, seeking

instead an approach best suited to local conditions and particularly the geo-politics. In so

140

Assembly Record 31 March 2004. 141

R. Rawlings, „The New Model Wales‟. 142

As in the written evidence to Richard from the North Wales Group of Labour MPs.

48

doing it has once again taken the distinctive legal, political and administrative concept of

„devolution‟ seriously.

Richard also speaks an unfamiliar language in the Welsh context: and happily is very

unsettling as a result. So another sign of growing maturity in the new model Wales is the

beginnings of a rich constitutional discourse, one that can not only inspire but also inform

practical developments as in the ending of the corporate body and the prescription of

ample legislative space. Indeed, whatever happens in the short term, Richard as a

reservoir of understanding and ideas will take on a life of its own in the ongoing struggle

to move Wales more into the mainstream of comparative constitutional development. A

standing rebuke to those who would seek to slow the devolutionary process, it provides

its own dynamic.

In contributing to the process of constitution building for Wales, this independent

Commission has naturally prioritised the element of design over that of delivery. This too

is a pleasant reversal on so much that has gone before. Likewise, there are obvious

parallels here with the work of the Scottish „Constitutional Convention‟:143

save of course

that the devolutionary development and the public discussion are back to front. In turn, an

inevitable result of the routing through an interim constitution, the old adage of it being

easier to set up something from scratch than to reform it once it is in place will now be

closely tested in the political and administrative laboratory of Welsh devolution.

Paradoxically, it is when bowing to the demands of delivery that the report shows an

Achilles heel. So while Richard‟s extended timetable cleverly blunts the objection of

unripe time and massages the difficulty over Welsh parliamentary representation, it

clearly is vulnerable to insider arguments in favour of a quick fix that achieves some of

the cake while avoiding those bits that (party-wise) are harder to stomach. Simply put,

when the First Minister starts saying that „the key issue will concern timing versus

powers‟,144

the auguries for Richard are not good. Alternatively, the constitutional

143

Scotland’s Parliament: Scotland’s Right (Edinburgh: Scottish Constitutional Convention, 1995). 144

Assembly Record 13 July 2004.

49

machinery of a referendum could be used to enable the Party to deal with this divisive

matter, and move on. But of course that requires the governors to trust the governed.

So interim constitution may well be piled on interim constitution: which would a

disappointing outcome but also one that in further enhancing the local political and

legislative opportunities is hardly unknown in comparative constitutional development.

No doubt much will depend on whether key Party players hold to the view that it is all

too soon or opt to avoid the risk to the good governance of Wales of a prolonged period

of political cohabitation under the existing constitutional framework, howsoever

reworked. Courtesy of the Richard Commission they cannot say but that they have been

warned.

Let us not be under any illusions. The road to a proper devolution settlement for Wales,

robust and user-friendly, generous and energising, will not be easy. As well as sign

posting a way forward and exposing major hurdles, the big message that Richard sends

out however is that sooner or later it will be travelled. In this regard, a sense of proportion

is important. What in view of a peculiar territorial history represents a radical set of

proposals is also comparatively speaking a modest package, one that in the form of a

legislative assembly simply seeks to maximise the advantages of small country

governance as part of the constitutional „family‟ of the Union State. It should not be

surprising therefore that the great weight of evidence pointed in this direction.

To conclude, in the words of Arthur Hugh Clough‟s famous poem, „Say Not the Struggle

Naught Availeth‟.145

Perhaps hopefully, there is strange prescience in the determinedly

Victorian final verse:

„And not by eastern windows only,

When daylight comes, comes in the light;

In front the sun climbs slow, how slowly!

145

A. Quiller-Couch (ed.), The Oxford Book of English Verse: 1250-1900 (Oxford: Clarendon, 1919), 741.

50

But westward, look, the land is bright!‟

51