A shorter post on the Richard Commission
How the debate unfolded in 2004.
I thought it might be helpful to pull out the material on the Richard Commission in 2004 and post it on its own as a single post. The Richard Commission published its report on future constitutional arrangements for Wales in April and Welsh Labour developed its policy response and agreed it in September. The run-up to Richard, in the immediate aftermath of its publication, and in the period to the agreement of Labour’s position at its Special Conference, was an intense period and deserves more attention overall. Here I will just bring together the elements relating to Richard from my longer post earlier in the week.
At the Cabinet meeting on 29 March, the First Minister reminded colleagues of the imminent publication of the Richard Commission’s report. He would make a statement to the Assembly on Wednesday 31 March. This would come to dominate discussions in the Assembly over the next year. There were extensive differences within Welsh Labour and within and between the other parties.
The Richard Commission report was published two days later:
Cabinet next met on 26 April. Ministers discussed the paper on the Report of the Richard Commission on the powers and electoral arrangements of the National Assembly. Ministers noted the possibly limited impact on the Assembly’s workload of acquiring primary legislative powers. There was a need to communicate what this recommendation would mean in practice. Ministers requested an analysis of the use made by the Scottish Parliament of its powers and an initial assessment of the potential Bills that the Assembly Government might want to consider if the Assembly had primary legislative powers in the future. The papers raised a number of questions which would have to be resolved in any future legislation. An Assembly debate was due to take place two days later.
Labour discussions on the Richard Commission
It makes sense to pause here and outline the discussion within the National Assembly Labour Party (NALP). The NALP had appointed three members to a ‘contact group’ to meet with three members of the Parliamentary Party to discuss issues and identify areas of difficulty. I was one of those three, and I had regular discussions with MPs both in and outside the contact group, as well as with Peter Hain as Secretary of State and other interested parties like Eluned Morgan MEP. One of the difficulties was that Richard had raised the question of the number of MPs in Wales, and this inevitably provoked a reaction. The NALP had a special meeting on the Richard Commission Report prior to the Cabinet discussion on 26 April. I was pro more powers, but also in favour of having a referendum in support of that, which I believed we would win. Others, including some who had been prominent in the 1997 referendum, were neither as sure we could win it nor in favour of a referendum at all. Some who had been supportive in 1997 said they would campaign for a no vote on more powers.
In terms of the Labour group, the contemporaneous note I took at the time suggested that of those who spoke, the majority were in favour of more powers. but a majority who declared themselves were against a referendum. As any likely response to Richard would require a further Government of Wales Act, it would clearly feature in the next UK Labour General Election Manifesto, and there was a tight timetable for this. Labour’s position was subsequently resolved at the Special Conference held in September 2004, taken forward in the 2005 General Election manifesto, and thereafter we had the 2006 Government of Wales Act, which gave Wales the dreaded LCO process, eventually dropped after the successful Referendum on legislative powers in 2011. For the 2004 position, the report below from the House of Commons Library is useful, as is the following volume of the UCL Assembly Monitoring Report:
Little has been written by academics on the political background to the shaping of Labour’s proposals and eventual legislation, aside from some commentaries on the Richard Commission as a process and on the eventual passage of the 2006 Act. There is certainly scope for a historical article on Welsh Labour from the Richard Commission to the 2006 Act, which looks at the party’s internal tensions in this period, including the alternative proposals put forward by amongst others Rhodri as First Minister. It would be a more rounded article when we have the UK Cabinet Papers from 2004-6.
Labour’s response to the Richard Commission
In my diaries I note the growing tensions in Welsh Labour in the period between the Richard Commission Report’s publication and the Labour September Special Conference. Rhodri Morgan, seeking to avoid a further Welsh referendum, suggested a compromise in June in a speech which would involve giving the Assembly framework powers in the areas where it already had responsibility, allowing it to amend existing legislation retrospectively:
Richard envisages all future legislation in devolved areas of responsibility being made in a way which gives the Assembly wide-ranging powers to decide if and how that legislation would be implemented in Wales. The new thinking suggests that the same principle could be applied to previous legislation, thus opening up new scope for the Assembly to legislate for Wales, in a year of its own choosing, rather than relying upon Westminster for legislative time in the Queen’s speech, provided of course it was in a devolved field, such as health and education.
At the basis of this approach is a shift away from the outdated thinking which portrays primary and secondary legislation as the polar opposites of the constitutional law. In modern Parliamentary practice, no such clear dichotomy exists. Different legislative forms exist along a continuum, rather than in a set of separate boxes. The space along the continuum between primary and secondary has been progressively filled in, over more than twenty years, by Order making powers, delegated by Parliament to Ministers. This Order-making approach has gathered pace over this period, being used both more frequently as time has gone on, and being applied over a wider scope of powers and functions.
What those who have suggested a strengthened form of 13.2 powers for the Assembly seem to me to be proposing is an approach which is thus well-precedented, but now applied in a uniquely crafted way to meet the particular set of circumstances in which we find ourselves in Wales.
In this evolutionary way it proposes a natural extension of the Government of Wales Act, while remaining within its essential parameters.
There is no rubicon to be crossed, in terms of primary powers and all that goes with it. What could be secured would be a set of workable and reliable powers for the Assembly, allowing it to work more effectively and with greater legal clarity, within the basic scaffolding of the present structure.
The main problem that Richard identified in the legislative powers of the National Assembly lies not in the fact that the legislative powers are subordinate but in the fact that they are not clear, secure and stable. What a ’13.2 plus’ model appears to offer is not to convert subordinate powers into primary powers but to define with clarity, security and stability the fields within which the Assembly may legislate. If it works, it could well provide the transparency and accountability which Richard identifies as a gap in current practice.
Let me be clear that my purpose in outlining this idea is not because I want to suggest that it has any of the qualities of the Holy Grail. Like any possible compromise, it ends up giving nobody with a partisan position everything which she or he might have wished for.
The full speech in which Rhodri set out this proposal is here:
Peter Hain explained Rhodri’s idea in brief in the House of Commons:
Under the proposal, it is not just prospective or current legislation that would be dealt with; the Assembly would also have powers over retrospective legislation. We are looking at that idea and discussing it in detail.
My diaries note conversations with MPs and AMs, as well as Peter Hain as Secretary of State, suggesting that Rhodri’s compromise suggestion of framework powers seemed to satisfy no-one, and aroused considerable anxiety that he was allowing the case for primary powers to fall by the wayside. I have also found some of the documents from the Contact Group meetinghs between MPs and AMs. Again, the internal discussions within Welsh Labour have not had sustained academic study, and the best public record remains in the UCL Assembly Monitoring reports and more recent autobiographies.
It was, as the quote from Peter Hain suggests, not entirely clear how Rhodri’s proposal would work in practice, and it was widely seen as an example of ‘Henry VIII’ powers, which gives someone power to amend acts of Parliament by delegated legislation.
In August, Welsh Labour’s response to Richard was published. This happened on the eve of the Eisteddfod, and my diary records that I was on the Welsh Labour stand where a Plaid Cymru demonstration unfolded against Labour’s refusal to endorse immediately primary law-making powers, with Dafydd Iwan denouncing “Leighton Andrews a’i griw’. The document is here
The August 2004 UCL Devolution Monitoring report records how this was approved unanimously by Welsh Labour at a Special Conference in Cardiff on September. Following publication of a consultative White Paper after the next election, and assuming it wins, Labour would amend the Government of Wales Act to:
Develop enhanced legislative powers for the Assembly, with the White Paper setting out options.
Change the voting system by preventing candidates from standing for election in both a constituency and on a regional list.
End the corporate body status of the Assembly.
The document ruled out tax varying powers, any reduction in the number of Welsh MPs at Westminster, and the STV proportional representation system. Options for enhancing the legislative powers of the Assembly were:
Primary law making powers following a post-legislative referendum.
Allowing the Assembly to amend or repeal existing legislation in those areas of policy for which it already has responsibility.
The document was a compromise, not least over a referendum, which Rhodri Morgan had hoped to avoid. Rhodri’s compromise option was described as follows in the document:
One option would be to grant the Assembly enhanced Order-making powers to make new legal provision for Wales in defined fields within the responsibilities currently devolved to it, including a power to amend or repeal relevant earlier legislation in these fields. This would in effect apply the principle of framework legislatively retrospectively. Parliament would continue to be the appropriate body to pass Wales-only primary legislation outside the areas covered by these Order-making powers (for example, the proposed Bill to create an older People’s Commissioner for Wales) and Sewel- type measures on an England and Wales basis. As with the ending of corporate body status, this option would require a Government of Wales (Amendment) Act. This sort of Order making powers could be extended gradually over the devolved fields, or related to specific pieces of legislation.
I will come back to these internal Labour debates on other occasions, as the Government of Wales Bill proceeds in 2005 and 2006. I have a lot of unpublished material, probably too much for my own purposes, which I will be happy to make available to other researchers, and will pass on to the Welsh Political Archive in due course.