A Welsh Constitution V (a): The Legislature – Size & Shape of the Senedd

(Title Image: ITV Wales)

From the head of state, this series of articles moves to the workings of the state itself.

Assuming the Senedd isn’t abolished and we get as far as independence at some point, after independence the Senedd would switch from being a devolved legislature with limited powers to a fully sovereign one. That jump – based on how the Senedd works as it currently is – could be bumpy.

Some MSs and Welsh political commentators may well disagree, but reforms to the Senedd to date have been nothing more than window dressing – a new name, some minor changes to qualification and disqualification criteria for prospective members and some changes to the voting franchise.

Drafting a new constitution would provide the opportunity for a more thorough root-and-branch reform that creates a Senedd with the permanent capacity to act as a sovereign parliament. It could also be used to address some of the other elephants in the room in Welsh politics like the criminal justice system (Part VI) and the fundamentals of local government (Part VII).

How many chambers does the Senedd need?

Unicameralism is what we have now in (devolved) Wales – a single-chambered Senedd with 60 members.

It’s less common globally than bicameralism (which I come to next) but is the legislative set up of choice in the Nordic and Baltic countries, New Zealand, the Caribbean, the Middle East and most of the Balkans region (except Bosnia-Herzegovina and Romania). There’s a general bias towards unicameralism in smaller unitary states – the Republic of Ireland being a major exception to this rule.

If Wales stuck with a unicameral legislature then it would simply be a case of deciding how many elected members it should have (dealt with later). The thing going for it is our  familiarity with how the system works, while it would keep a lid on the total number of politicians. Politics would (hopefully) be a bit easier to understand and depending on the balance of political power within the legislature itself we could get things done more quickly.

That said, one of the biggest problems we’ve had since devolution is the inability of Members of the Senedd to build up policy expertise, while some MSs have to carry poorer-performing ones. We’ve seen laws passed which were rushed, poorly thought through or poorly applied even with the best intentions (the Wellbeing of Future Generations Act is a case in point).

The argument that there needs to be a second chamber has, perhaps, been strengthened since devolution – good law is better than fast law. The problem is it’s a hard sell to the public due to the increase in the number of politicians – though there are ways to deal with this.

Bicameralism is the most common legislative set up globally.

Second chambers tend to have a set of common features: they’re usually much smaller than the lower chamber (the UK House of Lords is a rare example of being bigger), they tend to be weaker than the lower chamber, they usually have some element of equal territorial representation and they tend to be made up of members who are there based on their personal experience and wisdom rather than popular support (meaning many second chambers are appointed rather than directly elected).

The “party wonk”/technocrat archetypal politician (as opposed to the populist) is usually well-suited to life in an upper chamber and we have plenty of that type of politician in Wales.

One of the main arguments in favour of Wales having a second chamber is that it should (but not necessarily would) lead to better laws and decision-making due to increased scrutiny and double-checking. However, the requirement for equal territorial representation is also a strong argument in favour too in Wales, particularly as many areas outside the south-east feel too distant from Cardiff. It may lend itself well to Wales developing a devolved or federal system of government within our borders or strengthened local government (Part VII).

If an independent Wales did have a second chamber, what would it look like?

A second chamber (for argument’s sake called National Council) could work very differently from the lower chamber (re-re-named National Assembly or House of Commons/Representatives), with the combined legislature called the “Senedd”.

A second chamber doesn’t need to have a fixed location and could move around the country more regularly (i.e. by using council chambers for meetings) – though in practical terms some meetings would have to stay in Cardiff.

If members are elected, then each sub-region or local authority area (possibly devolved/federal states) would elect the same number of members. They could either be elected in one go (in between elections to the lower chamber), or its members could be divided into electoral groups and elected at different times (as in the US Senate) – I’ll illustrate this better later.

If the National Council (or whatever you want to call it) was appointed instead of elected, then the appointments process would need to be completely transparent with clear ground rules to avoid it ending up as a retirement home.

There are other alternatives and possible additions beyond the simple black-and-white unicameral vs bicameral argument:

Tricameralism

A rare set-up whereby there are three legislative chambers. The third chamber could be:

  • An additional revising chamber focused solely on upholding the Constitution and keeping the other two chambers in check (instead of leaving it to a Constitutional Court). Simon Bolivar and the First French Empire had “Censors” and a “Conservative Senate” respectively to fulfil this role.
  • A chamber made up of representatives from local government and/or federal states which may perform an additional auditing role (briefly used in the pre-Communist Republic of China).
  • A permanent Citizens’ Assembly (Part IIIa) with members selected to serve annually by a form of sortition/lottery.
  • An economic/trade council made up of representatives appointed from specific industrial sectors and trade unions, focused on economic development and performing an additional auditing role.
  • A small (maybe no more than 15-20 members) monoglot Welsh language parliament to fulfil the (present) role of the Welsh Language Commissioner, scrutinise the provision of Welsh-medium education, Welsh-language culture and language standards (based on the Sami parliaments). The risk would be it would de-mainstream the use of Welsh.
  • A “third chamber” made up of a joint sitting of both chambers – similar to the Tynwald Court in the Isle of Man. It could perform the final stage in the legislative process and carry out certain constitutional functions (i.e. public appointments).

Tetracameralism involves four chambers – the traditional upper and lower chambers, with another two perhaps selected from above.

Multicameralism

This is a situation where there are no single chambers but several of them, completely decentralising the legislative functions. The decentralised chambers could perform both a local government role and a national government role – so it would effectively merge local government with the national government.

This would raise several practical issues such as the number of decentralised chambers, their respective powers and how to exert proper political authority from the centre (i.e. would there be an appointed multi-member executive selected from the multiple chambers, or a single executive president – Part IVb?).

How many members would the Senedd need in an independent Wales?

 

(Pic: Senedd Cymru, Commission Copyright)

A lot of the argument and debate around this is a lack of numbers in the devolved Senedd, but independence would present another set of challenges.

Legislatures in sub-national territories/federal states tend to be smaller because they have fewer responsibilities. So it must equally follow that legislatures of independent states need to be larger because they have all the responsibilities.

A legislature with too few members harms democracy because they often have to perform multiple roles at the same time, have an unfair workload balance an in a parliamentary system can become easily dominated by the government. Equally, too many legislators could lead to more extreme views being voiced, excessive and unnecessary legislative and regulatory work and leaves the door open to possible corrupt practices because it’s more difficult to keep an eye on everyone. Personally, I’m in favour of keeping the number of elected politicians at all levels as small a number as practically possible.

There’s no perfect way for working out the optimal number of legislators, though there are some formulas and methods about (with figures based on Wales’ estimated population of 3,138,631 in mid-2018).

  • Cube root rule – A rule of thumb whereby the optimal number of legislators is the cube root of the population (∛3138631). In Wales’ case that would put the optimum number at 146.
  • Per-head (Devolved Legislatures) – Wales currently has one MS for every 52,320 people as of 2018. If this was changed to match the average number of people-per-legislator across Wales, Scotland (42,195) and Northern Ireland (20,907) then there would be one MS for every 38,474 people, working out at 82 MSs.
  • Per-head (UK, including both houses UK Parliament) – As above, except with the UK House of Commons and House of Lords average added (46,297), which changes it to one AM for every 40,430 people, working out at 78 MSs.
  • Per-head (EU27 Average) – The EU27 mean average is 39,325 people per legislator, which at a Welsh level would mean 80 MSs.
  • Per-head (EEA Average) – Adding all the members of the European Economic Area (Switzerland, Liechtenstein, Iceland, Norway) changes the mean average to 36,501 – though this is skewed by Iceland and Lichtenstein having small populations with proportionally larger legislatures. This works out at a Senedd with 86 MSs.

The range is between 78-146 legislators and the mean average is 94 (though that’s skewed by the cube root).

Not unsurprisingly this ties in with the McAllister Review (2017 – pdf, summary) and the Richard Commission (2004 – pdf) which both recommended a Senedd with anything between 80-100 members – so that’s roughly the size we should be aiming for anyway. The number can, of course, change depending on the circumstances.

If local government were stronger, or Wales adopted a devolved or federal system of internal government (Part VII) – like Switzerland, Australia, Belgium, Canada or Austria – then the national legislature/Senedd could be smaller (closer to 80 members) because quite a lot of the responsibility would be handed down to the regional and local governments in the same way Scotland lost MPs after the formation of the Scottish Parliament and Wales is due to do so as well.

If Wales remained a fairly centralised unitary state – like the Republic of Ireland, Norway, Denmark and the Baltic states – then the number of legislators would likely be closer to the 100 figure.

In a unicameral legislature, up to 94 members should be enough and would be in line with the mean average across Europe – more on the electoral system in Part Vb. If Wales did opt for a second chamber then, as said, it would be smaller than the lower chamber. How would members be divided between the two chambers?

The Electoral Reform Society’s 2014 Size Matters paper suggested that – based on the example of the Western Australia Parliament – a second chamber would need between 30-40 members, which works out as a ratio of roughly 2.6 lower chamber members for every 1 upper chamber member.

If the number of lower chamber members was capped at 80 in a bicameral system, that would mean an upper chamber of at least 31 members, bringing the total number of legislators to 111. The  number of upper chamber members would be partially dependent on how they are elected or appointed. If we had four regions of 9 members, then it would increase to a minimum of 36 members.

Based on figures in the McAllister Review (the link to the full report is broken), each additional AM costs at least £109,000 in one-off costs and £295,000 in ongoing costs. A 94-member unicameral Senedd would cost at least an additional £10million-a-year to run, with £3.73million in one-off costs.

It’s hard to tell how much a bicameral Senedd would cost, but if the role of upper-chamber members was limited – a secretariat instead of personal staff, no office on the Senedd estate, no salary only a per-day/diem payment for attendance – then it might work out slightly cheaper to run, or not much different from a larger unicameral Senedd.

It ought to be relatively straightforward to convert Siambr Hywel (the old debating chamber) or one of the larger committee rooms – maybe even the Pierhead Building – into an upper chamber if needs be. Though, as said earlier, the upper chamber could be mobile and move around the country for a set period during the year to properly strengthen regional representation.

The one-off costs for an expanded 80-member lower chamber have been estimated at £2.4million with just under £6million in ongoing running costs each year.

Whether that happens in devolved Wales remains to be seen with MSs holding yet another inquiry/investigation into electoral reform. But, as always, it won’t be an easy sell to the public.

The relationship between the government and the legislature

This is partly dependent on what type of head of state we choose.

Presidential System

One option – a presidential republic (Part IVb) – would result in the executive/government being wholly separate from the legislature. The head of government would be directly elected and the Senedd would, therefore, play little to no role in day-to-day government, but would likely be much stronger when it comes to drafting laws and setting budgets.

In principle, the president would be able to appoint whoever they want into cabinet positions – including people from outside politics who might be an expert in a particular policy area. One way to keep some democratic control over proceedings would be for the Senedd (or an upper chamber in a bicameral system) to be responsible for holding confirmation hearings and giving final approval to any appointments.

Parliamentary System

In all the other options – constitutional monarchy (Part IVa), elective monarchy (Part IVc) and both a semi-presidential and parliamentary republic (Part IVb) – the head of government (or one of the heads of government in a semi-presidential republic) would come from the legislature. They would presumably be the leader of the largest party group or the leader of a party group who would command the confidence of the Senedd (lower chamber in a bicameral system), whether in coalition or governing alone.

As presently, the Senedd (lower chamber in a bicameral system) would vote to approve a Prime Minister who would be appointed by the head of state. If they can’t agree on a candidate within a certain period (i.e. 28 days) – including when there’s a vacancy – it would trigger another election.

The Prime Minister, as head of government, would have the authority to:

  • Recommend the appointment (or dismissal) of members of the government to the head of state.
  • Organise government departments and cabinet portfolios.
  • Move people between positions in the government/carry out a reshuffle.
  • Refer members of the cabinet to an investigation under the Ministerial Code.

Some issues which have emerged over the last few years at the UK and devolved level could also be addressed, including:

  • The Prime Minister could have to nominate a named Deputy Prime Minister (who can hold another cabinet position at the same time) to fill in when they’re temporarily absent. Though if they’re permanently absent (i.e. dead, removed from office) then a new Prime Minister will need to be appointed within a certain amount of time (i.e. 28 days) to avoid an election.
  • Cabinet collective responsibility could be written into the constitution (as it is in the Republic of Ireland to an extent) as an obligation, not a convention.
  • The total number of government appointments – excluding the Chief Whip and Attorney General but including the Prime Minister – could be capped at no more than 15% of the total number of members in the chamber (lower chamber in a bicameral system). In a 94-member unicameral Senedd that would mean no more than 14 ministers, in an 80-member lower chamber no more than 12 ministers.
  • While the decision whether to refer a cabinet member for a Ministerial Code investigation could remain an executive privilege of the Prime Minister, the investigation itself could be constitutionally-mandated to be carried out independently or by an appointed office-holder (i.e. Commissioner for Standards in Public Life).
  • Some of the government’s powers could be constitutionally restricted or only used with majority or supermajority support in the Senedd. This could include introducing new taxes, authorising emergency powers (Part VII) and a triple lock (government approval, Senedd approval and consistency with the UN Charter) on  proposed deployment of Welsh military personnel overseas which would place them “in harm’s way”.
  • Some government offices could be given formal Welsh language titles, including Trefnydd (Leader of the House) and Trysorydd (Treasurer/Finance Minister).
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