Sausages
The transcript of Episode 7 of 'Y Pumed Llawr - The Fifth Floor
.jpg)
They say that “Laws are like sausages, it is better not to see them being made”.
This messy process is one of headaches Ministers face on the Fifth Floor of Ty Hywel
My name is Lee Waters and for five years I was a member of the Welsh Government. And for this series I’ve spoken with fellow former Ministers, advisers, and civil servants to try and explain the pressures faced by those working on the Fifth Floor in getting things done.
In previous episodes I’ve focused on the themes former colleagues raised the when I asked them ‘what frustrated you most?’
The range of responsibilities, the pace of the civil service in delivering change, the relationship with local government, the weakness of scrutiny, the management of political pressures. These were all on the list. But the one consistent answer, the headache common to all, was making legislation.
[Tom Woodward]
I mean, the bills take such a long time, they generally struggle. There's problems with them, which is probably normal, but it just causes a constant blockage. I mean, it's maddening, absolutely maddening,
Tom Woodward was a Special Adviser who worked under three different First Ministers. Like the rest of us he struggled with the fact that the Government’s programme for bringing forward new legislation is full. In fact it is over-full. The pipeline is clogged.
[TW]
I spent the whole time in government, constantly being told we can't do any legislation. And every time I wanted to do a bit, I realised it would be too difficult. And on the whole, I wouldn't say that. I would say they it was completely, you know, really good people working there, but completely under-resourced. I mean, it's by far the biggest under-resourced problem that seemed to exist, as far as I could see, and absolutely not a good experience at all. And I don't know what the problem is. I don't know enough about it. Have to get more lawyers in. I don't know enough about that, but it's mind blowing, that a government just can't… it's constant, you know, ministers say ‘we can't even think about that’.
Barely a month goes by without members of the Senedd, or a campaign group, calling for a new law to be passed. But it’s a non-starter.
Far from adding to the development pipeline, the reality is that inside the Welsh Government the struggle is to hold on to Bills that have already been announced.
Ministers face the equivalent of fitting ‘a quart into a pint pot’. And it causes friction.
Ministers can see that their Bills are not progressing, but often don’t understand what the hold-up is, or what they can do about it.
Mark Drakeford, when First Minister, would get as cross as I ever saw him at the logjam even he felt powerless to break.
Sam Hadley was the special adviser trying to get the Welsh Government’s flagship Bill on bus reform to see the light of day
[Sam Hadley]
Ministers have reflected to me that, you know UK Government are in for five minutes, and they've got a Bus Bill and in Wales we've been waiting for ours for five years, and it's still delayed. So, I think that there is a real point there. If you sit in the meetings where we discuss the reasons for those delays, you'll hear a range of different views, and sometimes it's that policy officials have not instructed the legal drafters, and the legal services well enough. And then from the other side, you know, unsurprisingly, in the way these things work, there'll be frustrations around the length of time it takes to do stuff. So, I never really, and this is a bit of a frustration of mine, actually, I would have loved to have really dug in and got to the bottom of what the problem was, whether it is just numbers. I suspect that's partly it. But is there something more fundamental that we're not doing right here? I suspect so, but I don't really know what it is.
The working of the sausage machine is a process that happens away from the glare.
Every month the First Minister chairs a meeting of the legislative programme board. And every month they go through the list of laws the Government has said it will pass in this Senedd term.
But even within Government it is often not clear which Bills are on track. And which are not going to make their slot. In fact Ministers are instructed not to commit to dates in the Senedd of when they can expect a new piece of legislation to arrive for scrutiny. That’s for the First Minister to announce in their annual statement on the Legislative Programme. Once they’ve figured it out that is.
Meanwhile behind the scenes, there’s often a tussle. Bills that are off course are chivvied. And those lagging at the back of the queue are readied for the chop.
As the end of the Senedd term comes closer into view Ministers need to agree which of their promised Bills won’t make the cut.
One Bill that’s already been dropped in anticipation is that on taxi reform.
It was promised in Labour’s 2016 manifesto, but was dropped at the end of the last Senedd term because of covid pressures.
There was a fresh commitment in Labour’s 2021 manifesto, and a Taxi Bill was part of the programme for government for this Senedd term.
And a lot of work was put into getting it ready. A white paper setting out the plans for modernising the way taxis are licensed was published in 2023, and it was formally consulted on.
The lawyers had started to turn the policy proposals into a draft law.
But work was stopped. Again.
The sausage machine could not cope.
And once more taxi reform was discarded into the off-cuts bin.
Another casualty was the Bill to ensure gender balance in the Senedd’s new voting system.
As part of the reform package to increase the size of the Welsh Parliament, the Government proposed requiring political parties to ensure that at least 50% of their candidates were women.
It was a radical plan. And a controversial one.
And it pushed the devolution settlement to its limits.
A factor that Government lawyers need to consider when making Welsh law is whether the Senedd has the powers, or competence, to legislate in an area.
“Statutory gender quotas” crossed the line according to the legal advice received by the Senedd’s Presiding Officer.
Powers over Equality are what’s known as Reserved Powers - they can only be exercised by the Westminster Parliament.
The Welsh Government thought this was a grey area worth pushing. But everyone agreed that this would eventually find itself being decided on by the UK Supreme Court.
This is not a problem Ministers in London face, the Supreme Court can’t strike down their laws. But they can stop devolved Parliaments from getting too big for their boots.
Very late in the day, in September 2024, Ministers decided the risk was greater than the reward.
In a congested legislative programme the time and resources progressing a Bill many thought went beyond the Welsh Parliament’s powers would come at too high a price.
Other Bills would have to fall, and even then there was no guarantee of success.
For Dafydd Trystan, one of the Plaid Cymru Special Advisers that had been supporting the Bill as part of their Cooperation Agreement with the Welsh Government, the experience highlights a number of the challenges we’ve been looking at.
[Dafydd Trystan]
I suspect that was one bridge too far for them to take on before 2026. Now, given everything we've said about the capacity of the Civil Service, and those challenges, then you may forgive government ministers for deciding that of the dozen things they wanted to do, they were going to focus on 10 of them.
[LW]
Its tough at the top of Ty Hywel.
As we’ve heard throughout this series, life on the 5th floor is testing.
The range of responsibilities, the pace of the civil service in delivering change, the relationship with local government, the weakness of scrutiny, the management of political pressures. And the frustrations of working your way through the government’s legislative programme.
These all cause pressures in delivering change. And were all raised by the dozen or more people I interviewed to provide some rare research materials for politics students about what it’s like inside the Welsh Government - the least understood part of politics in Wales.
You can read the full set of transcripts in a volume called Cathays Conversations which Cardiff University have published online - the link is in the show notes.
As Welsh devolution enters its second quarter of a century the political pressure for it to show tangible benefits is increasing
The story from the six themes considered in this series is that there are significant challenges of capacity, capability and culture at every level.
In the next episode of the Fifth Floor I’ll try and look at the whole picture from the themes as a whole.
Until then, lots to think about on your way back down.
Mind the doors.
.jpg)
They say that “Laws are like sausages, it is better not to see them being made”.
This messy process is one of headaches Ministers face on the Fifth Floor of Ty Hywel
My name is Lee Waters and for five years I was a member of the Welsh Government. And for this series I’ve spoken with fellow former Ministers, advisers, and civil servants to try and explain the pressures faced by those working on the Fifth Floor in getting things done.
In previous episodes I’ve focused on the themes former colleagues raised the when I asked them ‘what frustrated you most?’
The range of responsibilities, the pace of the civil service in delivering change, the relationship with local government, the weakness of scrutiny, the management of political pressures. These were all on the list. But the one consistent answer, the headache common to all, was making legislation.
[Tom Woodward]
I mean, the bills take such a long time, they generally struggle. There's problems with them, which is probably normal, but it just causes a constant blockage. I mean, it's maddening, absolutely maddening,
Tom Woodward was a Special Adviser who worked under three different First Ministers. Like the rest of us he struggled with the fact that the Government’s programme for bringing forward new legislation is full. In fact it is over-full. The pipeline is clogged.
[TW]
I spent the whole time in government, constantly being told we can't do any legislation. And every time I wanted to do a bit, I realised it would be too difficult. And on the whole, I wouldn't say that. I would say they it was completely, you know, really good people working there, but completely under-resourced. I mean, it's by far the biggest under-resourced problem that seemed to exist, as far as I could see, and absolutely not a good experience at all. And I don't know what the problem is. I don't know enough about it. Have to get more lawyers in. I don't know enough about that, but it's mind blowing, that a government just can't… it's constant, you know, ministers say ‘we can't even think about that’.
Barely a month goes by without members of the Senedd, or a campaign group, calling for a new law to be passed. But it’s a non-starter.
Far from adding to the development pipeline, the reality is that inside the Welsh Government the struggle is to hold on to Bills that have already been announced.
Ministers face the equivalent of fitting ‘a quart into a pint pot’. And it causes friction.
Ministers can see that their Bills are not progressing, but often don’t understand what the hold-up is, or what they can do about it.
Mark Drakeford, when First Minister, would get as cross as I ever saw him at the logjam even he felt powerless to break.
Sam Hadley was the special adviser trying to get the Welsh Government’s flagship Bill on bus reform to see the light of day
[Sam Hadley]
Ministers have reflected to me that, you know UK Government are in for five minutes, and they've got a Bus Bill and in Wales we've been waiting for ours for five years, and it's still delayed. So, I think that there is a real point there. If you sit in the meetings where we discuss the reasons for those delays, you'll hear a range of different views, and sometimes it's that policy officials have not instructed the legal drafters, and the legal services well enough. And then from the other side, you know, unsurprisingly, in the way these things work, there'll be frustrations around the length of time it takes to do stuff. So, I never really, and this is a bit of a frustration of mine, actually, I would have loved to have really dug in and got to the bottom of what the problem was, whether it is just numbers. I suspect that's partly it. But is there something more fundamental that we're not doing right here? I suspect so, but I don't really know what it is.
The working of the sausage machine is a process that happens away from the glare.
Every month the First Minister chairs a meeting of the legislative programme board. And every month they go through the list of laws the Government has said it will pass in this Senedd term.
But even within Government it is often not clear which Bills are on track. And which are not going to make their slot. In fact Ministers are instructed not to commit to dates in the Senedd of when they can expect a new piece of legislation to arrive for scrutiny. That’s for the First Minister to announce in their annual statement on the Legislative Programme. Once they’ve figured it out that is.
Meanwhile behind the scenes, there’s often a tussle. Bills that are off course are chivvied. And those lagging at the back of the queue are readied for the chop.
As the end of the Senedd term comes closer into view Ministers need to agree which of their promised Bills won’t make the cut.
One Bill that’s already been dropped in anticipation is that on taxi reform.
It was promised in Labour’s 2016 manifesto, but was dropped at the end of the last Senedd term because of covid pressures.
There was a fresh commitment in Labour’s 2021 manifesto, and a Taxi Bill was part of the programme for government for this Senedd term.
And a lot of work was put into getting it ready. A white paper setting out the plans for modernising the way taxis are licensed was published in 2023, and it was formally consulted on.
The lawyers had started to turn the policy proposals into a draft law.
But work was stopped. Again.
The sausage machine could not cope.
And once more taxi reform was discarded into the off-cuts bin.
Another casualty was the Bill to ensure gender balance in the Senedd’s new voting system.
As part of the reform package to increase the size of the Welsh Parliament, the Government proposed requiring political parties to ensure that at least 50% of their candidates were women.
It was a radical plan. And a controversial one.
And it pushed the devolution settlement to its limits.
A factor that Government lawyers need to consider when making Welsh law is whether the Senedd has the powers, or competence, to legislate in an area.
“Statutory gender quotas” crossed the line according to the legal advice received by the Senedd’s Presiding Officer.
Powers over Equality are what’s known as Reserved Powers - they can only be exercised by the Westminster Parliament.
The Welsh Government thought this was a grey area worth pushing. But everyone agreed that this would eventually find itself being decided on by the UK Supreme Court.
This is not a problem Ministers in London face, the Supreme Court can’t strike down their laws. But they can stop devolved Parliaments from getting too big for their boots.
Very late in the day, in September 2024, Ministers decided the risk was greater than the reward.
In a congested legislative programme the time and resources progressing a Bill many thought went beyond the Welsh Parliament’s powers would come at too high a price.
Other Bills would have to fall, and even then there was no guarantee of success.
For Dafydd Trystan, one of the Plaid Cymru Special Advisers that had been supporting the Bill as part of their Cooperation Agreement with the Welsh Government, the experience highlights a number of the challenges we’ve been looking at.
[Dafydd Trystan]
I suspect that was one bridge too far for them to take on before 2026. Now, given everything we've said about the capacity of the Civil Service, and those challenges, then you may forgive government ministers for deciding that of the dozen things they wanted to do, they were going to focus on 10 of them.
[LW]
But the warning signs were there sooner, but there was, for whatever reason, a reluctance to confront them?
[DT]
[DT]
Yeah, maybe, I think it's an interesting one. I do think generally that had there been - and we come back to our civil society - had there been a broader debate around some of the principles and themes, I think we might have been in a position where politicians would have been, would have felt, more confident that the public either was quite happy to acquiesce to the proposals, or that there was a significant chunk of the public that was in favour. I was struck - I don't know how closely you follow polling commissioned by Reform UK? But I was struck by polling that they commissioned for their conference, which showed a small, albeit a small, but a small majority of the Welsh population in favour of the Senedd reform package, of increasing the number of members to the Senedd, a little surprising as a finding, shall we say. But the case was made, and you don't necessarily need people to be running down the streets in celebration at Senedd reform, but at times, if you're doing the right thing, having a level of acquiescence from the population is a help.
More Bills will have to be dropped before the end of this Senedd term in April 2026.
And Ministers are currently grappling with the tough task of which key pieces of legislation to prioritise.
Politicians and interest groups awaiting cherished Bills will have to be let down. And there will be political fallout.
It ought to provoke some searching questions about what is going wrong in the way we approach law-making.
John Howells was a senior civil servant in Cathays Park and says the law-making system within the Welsh Government has become overwhelmed
[John Howells]
More Bills will have to be dropped before the end of this Senedd term in April 2026.
And Ministers are currently grappling with the tough task of which key pieces of legislation to prioritise.
Politicians and interest groups awaiting cherished Bills will have to be let down. And there will be political fallout.
It ought to provoke some searching questions about what is going wrong in the way we approach law-making.
John Howells was a senior civil servant in Cathays Park and says the law-making system within the Welsh Government has become overwhelmed
[John Howells]
Its a tricky area. I think my personal view is that we have the system has bitten off rather more that it can chew
For a whole set of understandable reasons, we've got to a position where the amount of legislation that's being announced, thought about and promoted, is greater than the capacity of the machine to deliver.
There are two sets of challenges at play.
A question not asked enough is ‘Do you really need legislation to tackle a problem’?
Whether a Bill the best way to address a policy challenge is a test that is too often skipped. And secondly, once you’ve decided you do need to legislate, is the way the Welsh Government goes about it the best way of doing it?
Let's take them in turn.
Since getting full law-making powers in 2011 the Senedd has passed more than 60 Wales-only Acts of the Welsh Parliament.
As well as this so-called Primary legislation, even more subordinate, or secondary legislation, has gone through the Senedd dealing with the detailed implementation of laws.
After getting the ability to act like a ‘proper Parliament’ the pressure has been on to make full use of these new legal tools.
Welsh democracy is still young and maturing, and the temptation to turn to laws as a solution to policy problems is strong. Senedd Members, committees and campaigners often demand Ministers bring forward more legislation.
As the psychologist Abraham Maslow put it, “if the only tool you have is a hammer, it is tempting to treat everything as if it were a nail”.
[Tom Woodward ]
I think political parties turn to legislation too often. I'm talking about opposition parties, actually. I mean, they will get the shock of their lives if they had a majority and came in and all the bills that they've promised to do, it's just actually not possible. And I didn't know that until I got the job.
Tom Woodward came into Government as a Special Adviser to the Liberal Democrat Minister Kirtsy Williams
[TW]
I remember Welsh Lib Dems have a whole long list of bills we would have done. And then after a year in the job, I was like, ‘we wouldn't be able to do any of these because we there's not the capacity to do it’, and they're not the right approach to be doing it anyway. It's an easy press release. The campaigners are happy. Everyone's happy, but people of Wales don't actually benefit from it, necessarily.
Campaigners are drawn to the symbolic value of passing a law. It surely shows you are taking an issue seriously if you are prepared to legislate?
But while they are attracted to the poetry, they seldom think about the prose.
What will it actually achieve in practice?
This is true of the House of Commons too. Governments pass many laws that are strong gestures but don’t add a great deal to the Statute Book.
And to a point that’s perfectly valid. Signalling a direction, and setting the tone, are all parts of providing leadership.
Many of the celebrated laws passed by the Senedd have strong performative elements. Take as an example the much vaunted Wellbeing of Future Generations Act. That began as an ill-defined line in Labour’s 2007 manifesto to “embed sustainable development as the central organising principle in all our actions across government and all public bodies’.
Much head-scratching followed the 2007 Assembly elections about what to do with this promise. It was a clear policy objective. But was it a problem that needed a law to solve?
The Act which eventually emerged in 2015 - some eight years later - mostly sets expectations on others to act. But without any specific outcomes in mind. It is a framework for thinking. It doesn’t in itself lead to any different outcomes.
It certainly has value, but does it need to be in law?
Mick Antoniw was Counsel General under three First Ministers and oversaw the government’s legislative programme
[Mick Antoniw]
Yeah, there's also a history to the way in which policy has developed, and, there's also a problem, I think, in the way in which policies have developed over long periods of time with certain aspirations politically, some of them ideological and so on, and there's nothing wrong with that. But then the view comes that ‘Well, what we need now is to legislate in this area,’ and the thinking of what legislation actually should do - what you want it to do. How will it do it? What will it actually change? - is sometimes a thought that is too far down the road.
There are lots of tools a government can use to change things. Ministers can change policies, alter the way regulations work, or change guidance about how policies are implemented. Government can use incentives to behaviour it wants to encourage - It can fund projects to do new things, and set conditions to funding. And it can create disincentives to discourage. It can levy fines or penalities, to try and stop things.
All these can effect outcomes, and many of them don’t need a new law to do it.
[MA]
The first question is, ‘Why do you want to do it? What does it add beyond what you already have by way of legal obligation? Is it purely about perception and focus? If so, is that the right way to actually legislate, to do that when effectively you are not adding any additional legislative functions or responsibilities that you don't already have. Are you trying to legislate really to make up for the failure of government to actually properly focus on the responsibilities it already has legally?’
There’s no correct answer to this. Declaratory Acts which send a signal have their place.
But when the legislative programme is constrained, when the sausage machine is clogged, there is a question around prioritising.
Should Ministers be asking, ‘can this problem only be tackled through passing a law, or we can achieve similar objectives in other ways?
Just because we can, doesn’t mean we should.
John Howells again.
[JH]
I think that's an understandable thing to have happened, given understandable political desires. But what it means is that when you put that on top of policy functions that were just about getting by. Legislation is just very hungry on people and time. And whilst, I think it's understandable that politicians come into government in Wales thinking ‘well, this is one of the ways that we can achieve change’. It turns out to be quite a complicated way to achieve change, and if you're not well supplied with experienced policy makers in the area where you're trying to legislate, then that's not going to end well.
And that brings us to the second set of challenges.
Having decided to legislate, is the Welsh Government approach the right one?
An important point to make clear at this stage is that Ministers do not get to see the process of drafting Bills at work.
They obviously have to agree at the main decision points about what the legislation is setting out to achieve, but the detailed work is done away from your view.
As transport Minister I brought in a specialist adviser who was an expert on bus policy to help shape our plans for new legislation to regulate the sector. Ian Taylor had a ringside seat as the bus bill progressed very slowly through the government machine. And this is what he reported back on why things were taking so long:
[Ian Taylor]
Your officials were doing the work; elsewhere obstacle after obstacle was thrown in the way. Those that were in charge of putting the legislative program together were very keen to hear everything that was an obstacle and make the most of it and say, ‘Well, you'll just have to knock this down the pecking order, won't you?’ And this was beyond places that I could influence. Of course, you would have had to go right up to the First Minister - and you did to try to speed things along, but this is where it becomes very difficult for ministers to exert their will because you only have so much knowledge of what's going on.
For a whole set of understandable reasons, we've got to a position where the amount of legislation that's being announced, thought about and promoted, is greater than the capacity of the machine to deliver.
There are two sets of challenges at play.
A question not asked enough is ‘Do you really need legislation to tackle a problem’?
Whether a Bill the best way to address a policy challenge is a test that is too often skipped. And secondly, once you’ve decided you do need to legislate, is the way the Welsh Government goes about it the best way of doing it?
Let's take them in turn.
Since getting full law-making powers in 2011 the Senedd has passed more than 60 Wales-only Acts of the Welsh Parliament.
As well as this so-called Primary legislation, even more subordinate, or secondary legislation, has gone through the Senedd dealing with the detailed implementation of laws.
After getting the ability to act like a ‘proper Parliament’ the pressure has been on to make full use of these new legal tools.
Welsh democracy is still young and maturing, and the temptation to turn to laws as a solution to policy problems is strong. Senedd Members, committees and campaigners often demand Ministers bring forward more legislation.
As the psychologist Abraham Maslow put it, “if the only tool you have is a hammer, it is tempting to treat everything as if it were a nail”.
[Tom Woodward ]
I think political parties turn to legislation too often. I'm talking about opposition parties, actually. I mean, they will get the shock of their lives if they had a majority and came in and all the bills that they've promised to do, it's just actually not possible. And I didn't know that until I got the job.
Tom Woodward came into Government as a Special Adviser to the Liberal Democrat Minister Kirtsy Williams
[TW]
I remember Welsh Lib Dems have a whole long list of bills we would have done. And then after a year in the job, I was like, ‘we wouldn't be able to do any of these because we there's not the capacity to do it’, and they're not the right approach to be doing it anyway. It's an easy press release. The campaigners are happy. Everyone's happy, but people of Wales don't actually benefit from it, necessarily.
Campaigners are drawn to the symbolic value of passing a law. It surely shows you are taking an issue seriously if you are prepared to legislate?
But while they are attracted to the poetry, they seldom think about the prose.
What will it actually achieve in practice?
This is true of the House of Commons too. Governments pass many laws that are strong gestures but don’t add a great deal to the Statute Book.
And to a point that’s perfectly valid. Signalling a direction, and setting the tone, are all parts of providing leadership.
Many of the celebrated laws passed by the Senedd have strong performative elements. Take as an example the much vaunted Wellbeing of Future Generations Act. That began as an ill-defined line in Labour’s 2007 manifesto to “embed sustainable development as the central organising principle in all our actions across government and all public bodies’.
Much head-scratching followed the 2007 Assembly elections about what to do with this promise. It was a clear policy objective. But was it a problem that needed a law to solve?
The Act which eventually emerged in 2015 - some eight years later - mostly sets expectations on others to act. But without any specific outcomes in mind. It is a framework for thinking. It doesn’t in itself lead to any different outcomes.
It certainly has value, but does it need to be in law?
Mick Antoniw was Counsel General under three First Ministers and oversaw the government’s legislative programme
[Mick Antoniw]
Yeah, there's also a history to the way in which policy has developed, and, there's also a problem, I think, in the way in which policies have developed over long periods of time with certain aspirations politically, some of them ideological and so on, and there's nothing wrong with that. But then the view comes that ‘Well, what we need now is to legislate in this area,’ and the thinking of what legislation actually should do - what you want it to do. How will it do it? What will it actually change? - is sometimes a thought that is too far down the road.
There are lots of tools a government can use to change things. Ministers can change policies, alter the way regulations work, or change guidance about how policies are implemented. Government can use incentives to behaviour it wants to encourage - It can fund projects to do new things, and set conditions to funding. And it can create disincentives to discourage. It can levy fines or penalities, to try and stop things.
All these can effect outcomes, and many of them don’t need a new law to do it.
[MA]
The first question is, ‘Why do you want to do it? What does it add beyond what you already have by way of legal obligation? Is it purely about perception and focus? If so, is that the right way to actually legislate, to do that when effectively you are not adding any additional legislative functions or responsibilities that you don't already have. Are you trying to legislate really to make up for the failure of government to actually properly focus on the responsibilities it already has legally?’
There’s no correct answer to this. Declaratory Acts which send a signal have their place.
But when the legislative programme is constrained, when the sausage machine is clogged, there is a question around prioritising.
Should Ministers be asking, ‘can this problem only be tackled through passing a law, or we can achieve similar objectives in other ways?
Just because we can, doesn’t mean we should.
John Howells again.
[JH]
I think that's an understandable thing to have happened, given understandable political desires. But what it means is that when you put that on top of policy functions that were just about getting by. Legislation is just very hungry on people and time. And whilst, I think it's understandable that politicians come into government in Wales thinking ‘well, this is one of the ways that we can achieve change’. It turns out to be quite a complicated way to achieve change, and if you're not well supplied with experienced policy makers in the area where you're trying to legislate, then that's not going to end well.
And that brings us to the second set of challenges.
Having decided to legislate, is the Welsh Government approach the right one?
An important point to make clear at this stage is that Ministers do not get to see the process of drafting Bills at work.
They obviously have to agree at the main decision points about what the legislation is setting out to achieve, but the detailed work is done away from your view.
As transport Minister I brought in a specialist adviser who was an expert on bus policy to help shape our plans for new legislation to regulate the sector. Ian Taylor had a ringside seat as the bus bill progressed very slowly through the government machine. And this is what he reported back on why things were taking so long:
[Ian Taylor]
Your officials were doing the work; elsewhere obstacle after obstacle was thrown in the way. Those that were in charge of putting the legislative program together were very keen to hear everything that was an obstacle and make the most of it and say, ‘Well, you'll just have to knock this down the pecking order, won't you?’ And this was beyond places that I could influence. Of course, you would have had to go right up to the First Minister - and you did to try to speed things along, but this is where it becomes very difficult for ministers to exert their will because you only have so much knowledge of what's going on.
The First Minister only has so much knowledge. They have to take guidance from their officials, and if the officials are deciding to say, ‘Oh, you can't do this, you've got to consult on this, otherwise you might get legal challenges,’ this sort of thing. Well, actually, the right answer to those would have been, ‘No, we're going to do this differently.’ But to do things so differently, you would have had to do a job of taking down some imperial pyramids and rebuilding them, which is difficult to do when you're also trying to make the government function on a day-to -day basis.
.,, but) to do that level of “rebuilding the airplane whilst you're flying it”, as somebody once said to me, is difficult. And you're only there for a few years as a minister or as a government. You've got to use what's there and available for you.
Inevitably that view is contested by some - but far from all.
One of the many difficult things about being a Minister is that it’s often very tricky to identify where exactly in the system a blockage is.
And when it comes to making legislation there are multiple groups of civil servants involved. Expert policy officials, those from finance, TWO sets of lawyers - the ones that give the legal advice on the policy, and the ones that write the legislation itself.
Inevitably one group blames the other for delays. And in the Welsh Government the silos allow this blame-game to be played.
Tom Woodward again.
[TW]
The most obvious thing that it 100% needs is the policy teams and the legal teams to all be working together from the beginning - in the same meetings, all of that stuff that's obviously pretty basic, but didn't seem to happen; well it happened a bit, but it was a change we tried to bring in.
There was constant friction, which there will be, and that can be a good thing, but it means that ministers aren't getting necessarily always the full picture, and it's just not a good way of working. They need to be much more closely aligned, policy and legislation more generally, I think, for when you're working on a bill
The civil servants in your department who are sponsoring the Bill are the policy specialists. They know what the Government wants the legislation to achieve. They work with lawyers in the Legal Services department to draw up what are known as Policy Instructions.
This is the hard work of defining the setting out detailed guidance for the parliamentary counsel that actually draft the Bill in legal language.
It has been politely called ‘a process of policy development and legal analysis’.
In other words a back-and-fore between the civil servants in your department and the lawyers.
Inevitably your officials think that lawyers look for reasons why you can’t do what you want to, rather than helping you find a way though.
They often complain the process is too protracted, that legal services have too many opinions on the policy, and should wind their neck in.
Meanwhile the lawyers complain that the departmental officials haven’t thought the policy through properly, and see it as their job to find holes to improve it.
When it works this iterative process can lead to better legislation. But as Ian Taylor points out, it doesn’t always work in the way the theory suggests.
IT
Of course, kicking the tyres or whatever the phrase was, or testing the quality of the thinking, is something which at a certain level becomes hard to distinguish that from downright obduracy and putting obstacles in the way.
In my view, the issues that needed to be sorted out that were being questioned and questioned and questioned and questioned again by the same people - well, some different people, because there was an attempt to get people who were less obstructive onto the group- it was something that could have been sorted out within one meeting.
The lawyers are often portrayed as the bogeyman, but that’s too glib.
Making law requires a depth in policy thinking that most Welsh government departments struggle with.
As discussed in previous episodes, the constraint in the size of the Welsh civil service, and the barriers to recruitment, has created a shallowness in both capacity and capability when it comes to policy development.
And the rigours of turning ideas into laws can really expose that.
Bills that are heavy on gestures, and laying duties on local government are one thing, but unpicking the complexities of a privatised bus system, for example, is quite another.
It's hard and it takes time.
But, according to Ian Taylor the culture in the Welsh Government’s legal services department is too set in its ways, and doesn’t help itself
[IT]
We also had the interesting problem of dealing with the fact that the Welsh Government insisted that its inhouse lawyers should deal with this, despite not having any expertise in the area in question. Now what we had actually got, much to the irritation of the in-house lawyers, was excellent specialist legal advice covering all of the knotty issues from the UK expert on bus law and how to do franchising: very, very helpful. And the in-house lawyers said that this was not a permissible approach, and one had to go back to square one with them, and deal only with them - anything that was external legal advice, they took essentially a sort of red rag to a bull and just tried to pick it to pieces. And clearly, there is an issue there.
Clearly the Welsh Government needs lawyers who can translate policy into legal language.
But the really important ingredient is having depth in the policy teams that give the lawyers specialist instruction.
And this is in part where some of the problems lie.
Whereas in Whitehall there is a deep pool of people, experts, and experience to draw on, in Cardiff’s Cathays Park there is, inevitably, a shallower pool.
Policy teams in the Welsh Government can easily turn their hands to a strategy, or an action plan, but the depth of thinking needed to develop a complex law is an altogether tougher task.
And a session with the lawyers who are experts in drafting parliamentary bills will put anyone through their paces. For example, you may be planning a law to encourage tree planting.
But the legal drafters will ask the policy officials ‘what do you mean by a tree? Can you define it?
Can it be a seed?
Does it include a hedge?
What do mean by plant?
Does it count if a tree had been planted in England and moved to Wales?
You can fudge these questions in a policy document, but not in a Bill that faces scrutiny first by the Senedd and later by the courts.
When they are eventually agreed the Policy Instructions are handed to the specialist parliamentary drafters in the Office of the Legislative Counsel.
The OLC write the legislation, and also manage the government's Legislative Programme.
Of course lawyers often disagree with each other - as do politicians.
And 'No' is always an easier - and safer - answer than Yes. The very low risk appetite of the so-called Corporate Centre in the Welsh Government has been highlighted in previous episodes as a significant barrier to progress.
In fact, we shouldn’t be surprised that a pipeline with so many choke points is prone to blockages and delays.
Lesley Griffiths had the painful experience of taking the Agriculture Bill through the Senedd
LG
In Westminster, you have a Bill Team - that’s everybody, your lawyers, your counsel, your policy officials, absolutely everybody working together. Here we don't do that, the lawyers come in far too late. So by the time you think you've cracked it all, and ‘this is how it's going to be’, the lawyers say, ‘No, you can't do that’. It's too late.
I've spoken to at least three Permanent Secretaries about this, I don't think our legal capacity is big enough. I think Brexit took a lot away from us, and I think the UK Government just hoovered up legislative lawyers, which, you know, don't grow on trees. You know, it's a long training.
And I remember seeing Shan Morgan [Welsh Government Permanent Secretary 2017 - 2021], so you can see how long ago it was to say, you know, ‘we cannot carry on like this’. We got, I think it was 17.5 new legislation lawyers in, and it was like a drop in the ocean, because we needed so many. So I think, for me, the big issue, and I don't think it's been addressed yet, is that we need teams working on Bills, way, way before that Bill is drawn up.
This is an expert skill, and a scarce one. And while the Welsh Government’s team has grown it is still relatively small - legal drafters are not easy to find, or recruit on civil service pay scales.
But the specialists in the Office of the Legislative Counsel have a reputation for being top-notch. It is a skill that requires first class critical thinking skills and intellectual rigour.
They came into their own during the pandemic.
In his written evidence to the Covid inquiry the Director of the OLC, the Welsh Government’s First Legislative Counsel, Dylan Hughes, spells out the heroic efforts he and his team of lawyers went to.
In a crisis they made Welsh law with what he calls ‘unprecedented speed’ .
In his testimony he recalls the process for making the first set of Covid Regulations in March 2020 following a meeting in the First Minister’s Office.
Dylan Hughes said this legislation would usually take "several weeks or months". But in this emergency, as he recalled, “That meeting took place between approximately 12pm and 1 pm and the Regulations were signed at 10pm that night”.
In contrast to his opposite numbers in the UK Government, who were detached from the decision-making process, the Welsh lawyers were in the room with Ministers. They attended the daily meetings of the Cabinet and were on hand to answer questions, and push back on points of practicality.
As Dylan Hughes says in his written evidence to the covid inquiry “As somebody who has been with the institution almost from the beginning, it felt in some ways as though the Welsh Government had come of age, both in the way we worked and in the way we were perceived by the people of Wales”.
Faced with a singular focus the Welsh Government's senior lawyers can hold their own with anyone. So this is not a capability question, but as with so many others we’ve considered in this series, I am bound to ask the question, ‘is our system setting them up to succeed’?’
The way the Welsh Government handles law-making frustrates everyone: Ministers, Senedd committees, and not least the lawyers and civil servants themselves.
When you are on the Fifth Floor, and doing your best to deliver a manifesto commitment, the opacity of the often snail’s pace of the Government’s legislative programme can send your frustration levels dangerously high.
Taking on law-making powers was a big step for the Senedd and the Welsh Government. But we’re now more than 15 years in and it's not unreasonable to expect the growing pains to have ended.
As we’ve discussed in previous episodes there are signs in the Welsh Government of a caution borne from a fear of being seen to muck up devolution after such a delicate gestation.
Add in the phenomenon of politicians and governments everywhere putting too much emphasis on legislation as a way of bringing about change, and you start to get a picture of why - like sausages - it's better not to see laws being made.
These constraints are understandable to an extent. But legislation is only one part of a jigsaw, and in many ways, the other parts of bringing about change are perhaps more important. But often harder to fit together.
When I left the Fifth Floor the Taxi Bill I worked on was chopped, and the Bus Bill had been delayed yet again. But I’ll be cheering the loudest when it eventually comes to the Senedd in March 2025.
A bit like this lift, you never quite know when the bus (and a Bus Bill) is going to turn up - so get on while you can
___________
.,, but) to do that level of “rebuilding the airplane whilst you're flying it”, as somebody once said to me, is difficult. And you're only there for a few years as a minister or as a government. You've got to use what's there and available for you.
Inevitably that view is contested by some - but far from all.
One of the many difficult things about being a Minister is that it’s often very tricky to identify where exactly in the system a blockage is.
And when it comes to making legislation there are multiple groups of civil servants involved. Expert policy officials, those from finance, TWO sets of lawyers - the ones that give the legal advice on the policy, and the ones that write the legislation itself.
Inevitably one group blames the other for delays. And in the Welsh Government the silos allow this blame-game to be played.
Tom Woodward again.
[TW]
The most obvious thing that it 100% needs is the policy teams and the legal teams to all be working together from the beginning - in the same meetings, all of that stuff that's obviously pretty basic, but didn't seem to happen; well it happened a bit, but it was a change we tried to bring in.
There was constant friction, which there will be, and that can be a good thing, but it means that ministers aren't getting necessarily always the full picture, and it's just not a good way of working. They need to be much more closely aligned, policy and legislation more generally, I think, for when you're working on a bill
The civil servants in your department who are sponsoring the Bill are the policy specialists. They know what the Government wants the legislation to achieve. They work with lawyers in the Legal Services department to draw up what are known as Policy Instructions.
This is the hard work of defining the setting out detailed guidance for the parliamentary counsel that actually draft the Bill in legal language.
It has been politely called ‘a process of policy development and legal analysis’.
In other words a back-and-fore between the civil servants in your department and the lawyers.
Inevitably your officials think that lawyers look for reasons why you can’t do what you want to, rather than helping you find a way though.
They often complain the process is too protracted, that legal services have too many opinions on the policy, and should wind their neck in.
Meanwhile the lawyers complain that the departmental officials haven’t thought the policy through properly, and see it as their job to find holes to improve it.
When it works this iterative process can lead to better legislation. But as Ian Taylor points out, it doesn’t always work in the way the theory suggests.
IT
Of course, kicking the tyres or whatever the phrase was, or testing the quality of the thinking, is something which at a certain level becomes hard to distinguish that from downright obduracy and putting obstacles in the way.
In my view, the issues that needed to be sorted out that were being questioned and questioned and questioned and questioned again by the same people - well, some different people, because there was an attempt to get people who were less obstructive onto the group- it was something that could have been sorted out within one meeting.
The lawyers are often portrayed as the bogeyman, but that’s too glib.
Making law requires a depth in policy thinking that most Welsh government departments struggle with.
As discussed in previous episodes, the constraint in the size of the Welsh civil service, and the barriers to recruitment, has created a shallowness in both capacity and capability when it comes to policy development.
And the rigours of turning ideas into laws can really expose that.
Bills that are heavy on gestures, and laying duties on local government are one thing, but unpicking the complexities of a privatised bus system, for example, is quite another.
It's hard and it takes time.
But, according to Ian Taylor the culture in the Welsh Government’s legal services department is too set in its ways, and doesn’t help itself
[IT]
We also had the interesting problem of dealing with the fact that the Welsh Government insisted that its inhouse lawyers should deal with this, despite not having any expertise in the area in question. Now what we had actually got, much to the irritation of the in-house lawyers, was excellent specialist legal advice covering all of the knotty issues from the UK expert on bus law and how to do franchising: very, very helpful. And the in-house lawyers said that this was not a permissible approach, and one had to go back to square one with them, and deal only with them - anything that was external legal advice, they took essentially a sort of red rag to a bull and just tried to pick it to pieces. And clearly, there is an issue there.
Clearly the Welsh Government needs lawyers who can translate policy into legal language.
But the really important ingredient is having depth in the policy teams that give the lawyers specialist instruction.
And this is in part where some of the problems lie.
Whereas in Whitehall there is a deep pool of people, experts, and experience to draw on, in Cardiff’s Cathays Park there is, inevitably, a shallower pool.
Policy teams in the Welsh Government can easily turn their hands to a strategy, or an action plan, but the depth of thinking needed to develop a complex law is an altogether tougher task.
And a session with the lawyers who are experts in drafting parliamentary bills will put anyone through their paces. For example, you may be planning a law to encourage tree planting.
But the legal drafters will ask the policy officials ‘what do you mean by a tree? Can you define it?
Can it be a seed?
Does it include a hedge?
What do mean by plant?
Does it count if a tree had been planted in England and moved to Wales?
You can fudge these questions in a policy document, but not in a Bill that faces scrutiny first by the Senedd and later by the courts.
When they are eventually agreed the Policy Instructions are handed to the specialist parliamentary drafters in the Office of the Legislative Counsel.
The OLC write the legislation, and also manage the government's Legislative Programme.
Of course lawyers often disagree with each other - as do politicians.
And 'No' is always an easier - and safer - answer than Yes. The very low risk appetite of the so-called Corporate Centre in the Welsh Government has been highlighted in previous episodes as a significant barrier to progress.
In fact, we shouldn’t be surprised that a pipeline with so many choke points is prone to blockages and delays.
Lesley Griffiths had the painful experience of taking the Agriculture Bill through the Senedd
LG
In Westminster, you have a Bill Team - that’s everybody, your lawyers, your counsel, your policy officials, absolutely everybody working together. Here we don't do that, the lawyers come in far too late. So by the time you think you've cracked it all, and ‘this is how it's going to be’, the lawyers say, ‘No, you can't do that’. It's too late.
I've spoken to at least three Permanent Secretaries about this, I don't think our legal capacity is big enough. I think Brexit took a lot away from us, and I think the UK Government just hoovered up legislative lawyers, which, you know, don't grow on trees. You know, it's a long training.
And I remember seeing Shan Morgan [Welsh Government Permanent Secretary 2017 - 2021], so you can see how long ago it was to say, you know, ‘we cannot carry on like this’. We got, I think it was 17.5 new legislation lawyers in, and it was like a drop in the ocean, because we needed so many. So I think, for me, the big issue, and I don't think it's been addressed yet, is that we need teams working on Bills, way, way before that Bill is drawn up.
This is an expert skill, and a scarce one. And while the Welsh Government’s team has grown it is still relatively small - legal drafters are not easy to find, or recruit on civil service pay scales.
But the specialists in the Office of the Legislative Counsel have a reputation for being top-notch. It is a skill that requires first class critical thinking skills and intellectual rigour.
They came into their own during the pandemic.
In his written evidence to the Covid inquiry the Director of the OLC, the Welsh Government’s First Legislative Counsel, Dylan Hughes, spells out the heroic efforts he and his team of lawyers went to.
In a crisis they made Welsh law with what he calls ‘unprecedented speed’ .
In his testimony he recalls the process for making the first set of Covid Regulations in March 2020 following a meeting in the First Minister’s Office.
Dylan Hughes said this legislation would usually take "several weeks or months". But in this emergency, as he recalled, “That meeting took place between approximately 12pm and 1 pm and the Regulations were signed at 10pm that night”.
In contrast to his opposite numbers in the UK Government, who were detached from the decision-making process, the Welsh lawyers were in the room with Ministers. They attended the daily meetings of the Cabinet and were on hand to answer questions, and push back on points of practicality.
As Dylan Hughes says in his written evidence to the covid inquiry “As somebody who has been with the institution almost from the beginning, it felt in some ways as though the Welsh Government had come of age, both in the way we worked and in the way we were perceived by the people of Wales”.
Faced with a singular focus the Welsh Government's senior lawyers can hold their own with anyone. So this is not a capability question, but as with so many others we’ve considered in this series, I am bound to ask the question, ‘is our system setting them up to succeed’?’
The way the Welsh Government handles law-making frustrates everyone: Ministers, Senedd committees, and not least the lawyers and civil servants themselves.
When you are on the Fifth Floor, and doing your best to deliver a manifesto commitment, the opacity of the often snail’s pace of the Government’s legislative programme can send your frustration levels dangerously high.
Taking on law-making powers was a big step for the Senedd and the Welsh Government. But we’re now more than 15 years in and it's not unreasonable to expect the growing pains to have ended.
As we’ve discussed in previous episodes there are signs in the Welsh Government of a caution borne from a fear of being seen to muck up devolution after such a delicate gestation.
Add in the phenomenon of politicians and governments everywhere putting too much emphasis on legislation as a way of bringing about change, and you start to get a picture of why - like sausages - it's better not to see laws being made.
These constraints are understandable to an extent. But legislation is only one part of a jigsaw, and in many ways, the other parts of bringing about change are perhaps more important. But often harder to fit together.
When I left the Fifth Floor the Taxi Bill I worked on was chopped, and the Bus Bill had been delayed yet again. But I’ll be cheering the loudest when it eventually comes to the Senedd in March 2025.
A bit like this lift, you never quite know when the bus (and a Bus Bill) is going to turn up - so get on while you can
___________
Its tough at the top of Ty Hywel.
As we’ve heard throughout this series, life on the 5th floor is testing.
The range of responsibilities, the pace of the civil service in delivering change, the relationship with local government, the weakness of scrutiny, the management of political pressures. And the frustrations of working your way through the government’s legislative programme.
These all cause pressures in delivering change. And were all raised by the dozen or more people I interviewed to provide some rare research materials for politics students about what it’s like inside the Welsh Government - the least understood part of politics in Wales.
You can read the full set of transcripts in a volume called Cathays Conversations which Cardiff University have published online - the link is in the show notes.
As Welsh devolution enters its second quarter of a century the political pressure for it to show tangible benefits is increasing
The story from the six themes considered in this series is that there are significant challenges of capacity, capability and culture at every level.
In the next episode of the Fifth Floor I’ll try and look at the whole picture from the themes as a whole.
Until then, lots to think about on your way back down.
Mind the doors.
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