MONDAY 21 OCTOBER 2002
Mr Martyn Jones, in the Chair
Memorandum submitted by Lord Elis-Thomas
Examination of Witnesses
LORD ELIS-THOMAS, AM, a Member of the House of Lords, DR JOHN MAREK, AM, Deputy Presiding Officer, MR PAUL SILK, Clerk and MR PETER JONES, Counsel to Assembly Committees, National Assembly for Wales, examined.
Chairman: Welcome to your own Parliament building, Mr Presiding Officer. We are very grateful for you allowing us to hold this session here. I must say also I am personally very grateful to be now the proud owner - and I am proud - of this pass to the Assembly building. I am deeply embarrassed that we cannot offer you the same facility in the House of Commons.
Mr Caton: As yet.
(Lord Elis-Thomas) Good afternoon, Mr Jones. You have now got an entrance ticket to this building. I am sorry it has taken so long for these things to work. As you know I do have a pass
for Westminster Palace still as the only Assembly Member who has a dual mandate. Certainly I think that my colleague also, Dr John Marek, has a pass because of international connections. Dr John Marek is the Deputy Presiding Officer here. You will recognise him also as a former Member of Parliament. He is the treasurer of the CPA. I have with me also Mr Paul Silk, who is the Clerk to the Assembly, and Mr Peter Jones, who is our legal adviser for committees. This is my team. The first statement I would like to make is to thank you for being part of the review and note how important the review is to us as a parliamentary body and a legislative body and to thank you for what you have already said. I have looked at your report on the health service, the draft Wales report, which was published of course in July where you say - and I will quote in English - "We warmly welcome application of the draft Bill for Wales which in due course will become the standard practice not only for stand alone Wales only Bills but for clauses in the England and Wales Bills which have particular application for Wales". I take that as my text perhaps for the rest of the discussion.
(Lord Elis-Thomas) Let us unscramble the Assembly in the first place because obviously in my position I distinguish between the parliamentary body and the Welsh Assembly Government, to give it its preferred title, not the one I would prefer to give it, I prefer to call it the Government of Wales. That is what I mean when I refer to the Government of Wales. The Devolution Guidance Note discusses in some detail relationships between intergovernmental relationships, that is consultation with ministers in the Assembly Government, but there is nowhere, as far as I can see, in that note where consultation with the Assembly subject committees or consultation with the Assembly as a whole in plenary session is envisaged. What I would want to do is establish on that question the principle that when the Assembly is being dealt with by Westminster or by Whitehall that we are a co-legislator with the UK Parliament and, therefore, that member to member contact leads to parallel government to government contact. We are not just a consultee, we are not just an NGO, if I can quote one of my favourite NGOs, we are not really the RSPB, and that is not just to under value the importance of the RSPB, of which I am pleased to be a member but it is to emphasise the fact that this is a parliamentary body and therefore to talk of consulting the Assembly is not sufficient, it requires a greater input. Although this may get me into some Eurosceptic water with some people, I would draw an analogy - and I am looking at all sides of your committee - with the European institutions whereby parliamentary consultation between the European Parliament committees and the European committees of Member States' legislatures is the order of the day where consultation is not just between the Commission and the Council of Ministers and members of Government but where also the European Affairs Committee very much so in my experience in the House of Lords comment regularly as parliamentarians on the legislative activity - the draft legislative activity in particular - of the Commission and Council of Ministers. I think we are looking for the opportunity for Assembly Members to be involved. Obviously we do not expect to be involved here - we cannot because of our numbers - in every matter affecting Wales to come under our founding constitution but certainly there should be input into legislation by members of the parliamentary body, not just by government ministers here, in those aspects which affect our core activities.
Chairman: Thank you. Perhaps we should start using first name terms because we are in the Assembly building and I understand this is the done thing here. I think the point you are making about member to member contact, Dafydd, is very important. It is something as a Select Committee we have been working at since 1999. I think that this is the way forward. I do not know about my colleagues but I have a feeling most of them would agree with me when we say we want to see a working with the Assembly, not mere consultation of the Assembly. That is not the way that legislation should be drafted.
Just one bit of housekeeping. Apparently if you want to have Welsh translation you need to press the button on the microphone if anybody wants to speak in Welsh. Does anybody else want to come in? No. Mr Caton. Martin.
(Dr Marek) This is one of our points, if I can come in, where any help that you can give us would be greatly appreciated. We believe that in every Bill there ought to be, as there is I think for Scotland, a Part at the end, perhaps not the ultimate Part but the penultimate Part of a Bill, which should be headed "Wales" and there should be encapsulated, in shortened form if necessary, all the provisions that apply to Wales. Parliamentary draftsmen will probably say "no, we do not want to put the same information twice in the same Bill" but that is basically because they do not want to do more work than they have to and, indeed, if they plead that there may be inconsistencies between what they repeat in the Part under "Wales" and the previous Parts, they can easily have a section in the last Part pertaining to Wales saying that in any case of difference of interpretation the other Parts of the Bill will prevail. There are ways of getting around it. It would be very much easier, not just for us but for everybody in Wales, if they actually had very easily in every Bill in Westminster a part which showed clearly what would be legislation which would be carried out by the National Assembly for Wales. That could be done. It would probably need some lobbying or some pushing of the Government but if there was a will there I am sure they could do it. That would, of course, mean that clarity would be that much easier. One of the problems we will come to later, I will not speak about it now, is it is very difficult not just for us but I suspect for you as well to know exactly what is devolved and what is not devolved. If there is a new Bill which changes previous Bills, of course, then it will probably change subordinate legislation in those previous Bills, so it not as easy as simply going to a new Bill, you have to do that first of all but then you have to go to the other Bill to find out if there is any previous subordinate legislation which is there, and there usually is, that is changed. It is a very complicated business. We need to carry it further but the crucial point is to start off let us have a Part entitled "Wales" for any Bill that you pass in Westminster.
(Dr Marek) We think it is significant for the clarity of legislation. There are other examples available but there could be members of the public, farmers for example, who have to deal with DEFRA over some issues and with National Assembly for Wales over other issues. It is very complicated for that. Anything that we can do to make it clear would be helpful. I think we place a high weight on this.
(Dr Marek) We have thought about that. There may be a problem for you there in view of your new timetabling procedures for Bills. If the Welsh legislation in committee always comes at the end of the Bill you may not have time to be able to make it, but that is a problem you have got to address.
(Mr Silk) Yes, certainly. I agree with the point that the Presiding officer made about clarity and inconsistency. I think what practitioners here and Members of the Assembly, legal practitioners, interest groups who are affected by Welsh legislation, are concerned about is the absence of clarity, so any means, whether it is a Part in the Bill, a Clause in the Bill or part of the Explanatory Memorandum which deals with Wales which explains with clarity what those provisions are as they affect Wales and their effect, would be welcome.
(Lord Elis-Thomas) I am not certain how great a separation is achievable but wherever it is I hope we have achieved it because this is something which happened, as you know, with all-party support. There was a desire here to create a parliamentary body, not merely because that is what we are used to as a means of democracy but also because it made for greater clarity of responsibility so that a government, once there was a majority coalition government, a government came into existence and once you create a government then you have an official opposition and another opposition party, so the management of the operation became of that kind. In addition to that there was a strongly held view that the Office of Presiding Officer, what we now call the Presiding Office for short because it takes less room on the website, should be seen to be clearly functioning in the interests of all members but we should develop within that a structure which strengthened the work of committees as seen to be scrutiny but also policy influencing committees, and there we have a difference from your operation which is a fine upstanding scrutiny committee, our subject committees certainly include ministers and therefore they have a quasi policy making role in that way. We have had recently, and I ask John to come in on this because he has been leading on all these reforms, an additional resource made available for committees in order to make them more effective in terms of the advice they get. We are tied by the Act in the sense that all our staff are civil servants, ie UK civil servants. Indeed, and I have said this publicly before so I can say it again in his presence, the appointment of the Clerk of the Assembly, with which I had some involvement, was finally signed up by the Prime Minister of the United Kingdom. This we regard as totally anomalous. The next phase of our separation as far as the decisions which we can take within the Act are concerned is that we will be moving towards a resolution of the Assembly, again with all-party agreement, which will establish our house committee as a delegated committee under the Government of Wales Act which will then allow for a system of accountability for our accounting officer and a system of management for the staff who serve the Assembly rather than those who serve the Government within the existing Act. Now you might be asking whether we need to reform the Act and that is obviously a matter which is under discussion currently from the Richard Commission.
(Dr Marek) Just very quickly to add a comparison. Fourteen years ago the Comptroller and Auditor General in fact became instead of a government servant paid by the government, an officer of the House, for obvious reasons. Loyalty then is to the House and the C&AG has more independence to report to the Public Accounts Committee. In much the same way we do not want some irrevocable split between, if you like, the executive and the Presiding Office but we do want a separation so that the committees can feel that the advice they can get is always the best advice for that committee. You can just imagine, civil servants could have a difficulty, not every day, but supposing a civil servant to a particular subject committee has to produce a report for that subject committee on a particular topic but he or she knows that the minister is perhaps not keen on using that particular power or going down that particular line, it is very difficult for that civil servant then to frame a report. Of course we are strengthening our committee system. We are appointing extra support staff for each of our subject committees and part of that would be a parliamentary service. Of course, civil servants have a code which is different from the Civil Service in Cathays Park. For example, they would never say something to a member of one party that in similar circumstances they would not say to a member of any party and of course you would imagine that. If you are serving the Parliament as opposed to the executive the best way of doing it is to formulate it and enact it so that there is this separation. The problem with the corporate structure that we have at the moment is that in theory, in practice as well, it is not possible to do it legally.
(Lord Elis-Thomas) I think it is more fundamental than that. There was a view, and I think it can still be seen residually in the way the place sometimes operates, and it can still be seen in the way sometimes it was treated in Westminster, "for 'Secretary of State' read 'Welsh Assembly'." There is that cultural change which is happening more and more now that the National Assembly is seen as a different parliamentary body from an executive governmental system. I was sceptical about the hybrid committee structure for the reasons, some of which you have described, the way it appeared the Cabinet system appeared superimposed on the existing structure and because, again, we come from the same parliamentary tradition that committees are for scrutiny and government is for executing and the job of the scrutiny committee is to scrutinise as hard as possible. Having seen the committees in action I was persuaded as we went through the Assembly review of procedure that this innovation of having ministers and officials sit around the table for three hours in the morning talking about the common problems in the Government's representation of the subjects devolved here was useful. Therefore I think, as we have said in our review procedure, this hybrid activity of committees is one that we are keen to continue with and might indeed look for innovative ways of making it a general part of our architecture when we get subject devolution by subject areas with a stronger base to our activity. I do not know if you want to comment from your experience, Paul.
(Mr Silk) Chairman, I suppose that my experience of Westminster was that the select committees are largely set up to confront the minister, often that is what the outcome is, at least the committees that I worked with, not I am afraid the Welsh Affairs Committee which is rather different perhaps. There is an advantage here in the working together of the minister with committee members and it is encapsulated for me in the fact that in the Assembly review of procedure there are two recommendations which sit by side by side. First of all that Assembly ministers make their officials available to committees during policy reviews and immediately after that that in-house and other resources of the committees be strengthened to enable them to have greater access to resources. So there are two sources of advice to committees here and at its best the committees work with the minister in a very productive manner.
(Dr Marek) Can I just add very quickly to Julie's point. I do not think any of us know because of the secret nature of government in Westminster - if you will allow me to say that - I do not know what the then Secretary of State for Wales, Ron Davies, would have done if it was clear that there was going to be a Cabinet system of government from the beginning. He may well have been able to formulate it on the basis of the parliamentary service. Clearly it is likely at least that because of that changeover half way through the procedure, the committee stage was on the floor of the House, we had the change to Cabinet government but of course the rest of it could not be changed because it had gone downstream too far already.
(Dr Marek) You must ask Ron Davies, I think. Some day he may tell us.
(Lord Elis-Thomas) I think the basic question is the ability for us to create a parliamentary service. I think we have done so de facto in the way that the place is organised. I am sure that there will be arrangements which will emerge from the Richard Commission - and I would not want to anticipate what that Commission might say - obviously we are confident that with the team that we have in terms of staffing the office we are able to run a parliamentary body and a parliamentary service.
(Dr Marek) From our point of view I think yes.
(Lord Elis-Thomas) The point is that we run already also a very complicated legislative process in dealing with our supporting legislation, much more complicated than any legislative process in Westminster, if I may put that in. Again we have Peter and others who take these processes through our legislation committee, our subject committees, into our plenary sessions as well as the legal team that serve the Council general and the government in Cathays Park. So we have within the system all the elements that function in a normal parliamentary government relation.
(Lord Elis-Thomas) I do not think it would be appropriate. You see I struggle with such difficulty to be absolutely impartial and imbalanced at all times. My answer is yes, of course we want to develop the Government of Wales Act from our experience here but I am committed, also, obviously, to running the system, the Act, as it stands. I am trying to be totally even handed and talk out of our experience of the present system and its difficulties rather than perhaps to specify.
(Dr Marek) We have got suggestions about draft Bills and how we can get more co-operation and more consideration of draft Bills before they become Acts in Westminster. We have got suggestions about how devolution under the present settlement should work but as far as actually changing the Government of Wales Act I think it is probably right we should wait for the Richard's Report and give it careful consideration. We would say, I think, that if we could get a parliamentary service, I think that has all-party support, it would make life easier for us here.
(Dr Marek) We can delegate to a committee or to a person but we have this corporate structure, that is really the problem, that is one National Assembly for Wales.
(Lord Elis-Thomas) I must say I have not noticed this universal relationship of closeness between chairs and ministers. I think it varies between committees. I can think of one committee where it might be rather close, I can think of another committee where it is not so close at all. We do not intervene. The Deputy chairs the Panel of Chairs and the Panel of Chairs debates best practice and John can answer for himself on that. As a general principle my view would be that it is up to the committee chairs to develop their relationship and the way they chair the committees but also for the committees to know which mode they are in at any given time. One thing that I simply would like to see more clearly demarcated is when a committee is in scrutiny and when a committee is in policy formulation and advice. That does happen de facto but often there is a minister's report to a committee and that becomes an informal scrutiny session in most committee sessions.
(Dr Marek) Just to add with developing the best practice on this, there is the obvious question of if you are in scrutiny mode and the minister is at one end of the table, does the clerk to the committee circulate the suggested questions or points to every member of the committee, ie including the minister, or not? There are different views on that. Clearly we have to have an effective scrutiny function. I think we are developing it but we tend to leave this to the individual committee to develop how they see it because personalities have to interact with each other as well. If you come back in five or ten years I think we may have a much more definitive answer for you.
(Lord Elis-Thomas) I cannot think of an example but I would be very interested in having a look for it.
(Dr Marek) Committees do decide their programmes as a full members committee with every member attending. Clearly ministers have influence and chairs have influence but I suspect that if you have good members of that committee then I do not think that would happen.
(Lord Elis-Thomas) Perhaps we should distinguish between two types of scrutiny, the scrutiny of a regular ministerial role and the role of officials delivering executive action as part of the Government of Wales and then the scrutiny of Assembly sponsored public bodies which is on a cycle anyway inherited mainly from the old Welsh Office. Now, of course, that, with others, has come almost to the end of its cycle. There is usually a five year review of these bodies anyway but presumably the Assembly committee could prioritise which area it wanted to go towards. A lot of the committee agenda in the first year - I am talking about the tagitap(?) process in particular - was inherited from the old Welsh Office and things like the review of the Welsh language emerged very much from the necessary view of the statutory board. That was a very, very interesting process that is worth studying because there you had the ability of an Assembly committee in the face of much difficulty to reconstruct a compromise which was about to be lost, a consensus in the body politic of Wales, which concerned me as a former Chairman of the Welsh Language Board, which was in danger of being lost. But because of the work both of the chair of the committee and the minister and the board itself and the way it emerged, I think a very important policy making document emerged out of our new system. I choose that example because it is a very recent one.
(Lord Elis-Thomas) I thought it was.
(Dr Marek) Personality, I suspect in that case. I also suspect that as the National Assembly continues in existence it will have done the inquiries that it wants to do and there will probably be plenty of time to do inquiries on any subject that anybody wants to bring up after a few years.
(Lord Elis-Thomas) I would say that after Wednesday night the Welsh Board does not need an inquiry.
(Lord Elis-Thomas) There are lots of ways of doing this and you have been party, as a committee, to some of these where you have had joint sessions involving Assembly Members. The ideal model, which might horrify some Unionist parliamentarians, not that I am suggesting that you are one of course, would be to have joint scrutiny in a special committee which combined both the special standing committee of Westminster and the subject committee of the Assembly. That could be quite fascinating. I am thinking of mental health legislation, the health legislation you have done more generally. These are areas where that might indeed operate effectively and that would give impact at the pre-legislative stage. That might also involve taking evidence from NGOs, from the voluntary sector, and indeed from ministers in both Whitehall and Cathays Park and might avoid some of the double taking of evidence that might occur if you were having the same process taking place in both legislatures. It is more difficult as it goes on through the parliamentary stages because it has exercised me a lot thinking how the voice of the Assembly can be heard at later stages of parliamentary Bills. We need a six week notice because of our committee system here to deal rapidly with things, so there is a problem about the ability of Assembly Members - the Assembly Government obviously has its own intergovernmental channels - to be able to influence the legislative process. I think the emphasis should be on as much influence taking place as early as possible at that pre-legislative stage without, of course, denying the fact that we need to look for ways in which late amendments to Bills might possibly emerge out of the Assembly and presented in that way to Westminster as our primary legislature.
(Lord Elis-Thomas) I am sorry if you felt I was theoretical. I am a part-time philosopher when I do not sit here but I do believe that theory is very important because it informs practice continually. I started with the ideal model but I think we can work back from that, as it were, and look to see what forms of joint scrutiny might be practicable. Obviously that requires ----
(Lord Elis-Thomas) John is a Mathematics Don so he is more practical than me.
(Dr Marek) One way to solve it would be for Westminster to give the National Assembly general competence powers, ie primary legislation, in those areas where we already have devolved powers. That would clearly make the border very clear. I can see you laughing but that is one solution that I think needs to be considered and no doubt will be considered at some stage. If we do not go that far then it is a very difficult position. Obviously we need more draft Bills and if you can get as many draft Bills as possible before they become Bills laid on the table in your House then that gives us a chance, at least, to go for scrutiny. Even so draft Bills are semi definite. I suspect you are talking about the stage before that and that is very difficult unless the two governments, the executives, can get together and one executive could say "Well, we are thinking of having a National Health Service Bill or this Bill or that Bill next year, can you just have a debate". We could have debates but they could easily be debates in a vacuum unless there are at least some bones - sorry with these metaphors - unless the government is reasonably specific. Governments sometimes, of course, like to be very secretive so we do not know anything about it until the Queen's speech. So no easy answer to that but clearly the more information we can share the better the two way flow of views will be.
(Lord Elis-Thomas) Currently Bills are referred to subject committees. Our subordinate legislation can be, not at all times but is and can be referred to subject committees. So we have in place in our current Standing Orders a way of dealing with legislative procedure which, if I may say so, involves backbench - although I would not use the term - AMs far more than subordinate legislative scrutiny in Westminster involves yourselves. That is fair, is it not?
(Dr Marek) Whether it was subordinate or primary that would still be necessary.
Chairman: To get back, I was interested in your initial reply, Dafydd, because I think this is something I have been drumming on about ever since I got the chair of this Committee, and even before then, in 1999 but primarily after 1999, that we should be working together. I am interested to hear that you are thinking on those same lines, that some kind of hybrid standing committee of the House of Commons or subject committees here or set up committees for it here would be quite a good way forward. Certainly it is something we might think about as a Committee.
(Lord Elis-Thomas) Well, yes, and I have threatened to do this myself but I believe perhaps it would be a constitutionally suspect act as my dual mandate is not an accident but an electoral coincidence. Therefore it would be an exception that an Assembly Member would be elected to both Houses and be in a position to do so. I do believe this raises an important point, namely the general view amongst my fellow members in the second House in Westminster of all parties is that they cannot receive sufficient information about the view of the Assembly on issues. Namely what occurs is that the inter-governmental process proceeds through the ministers who actually reply on various or particular amendments but there is nobody who can stand with authority and say "These are the amendments that the Assembly desire which come because the Government of Wales has agreed amendments with the Government in Westminster". Of course that is the same process, that is true, as occurs in the House of Commons. To me that is quite a conundrum because it is intervention with the routine legislative process that some outside or external body can appear with authority to propose amendments to another parliamentary body. I would prefer the much simpler path, namely that there should be devolution according to subject and that then we should have the ability to provide primary draft legislation and we could do that but this is something we have not had the opportunity to do at all as yet. It would be possible for this Assembly to use its processes which deal with secondary legislation at present to act on primary legislation. We can prepare a draft of the Local Government Bill, for example, for Wales or maybe an Environmental Bill and then we can present that in its entirety to Westminster and say "This is the Bill we would like to see passed". That would be a fascinating process because what would happen then if Westminster were to amend it in a way which was unacceptable to the Assembly what that would do would be to open the whole democratic process to a process of discussion which would be a good thing.
Adam Price: If I could make one comment. From my own experience certainly the point you were making about the lack of transparency regarding the view of the Assembly rather than the view of the Assembly Government certainly that has been raised since I have been in Parliament and I have been on my feet in the Chamber and a minister in Westminster has announced the Assembly agrees with him rather than with me. Certainly that was news to me and certainly news to most of the Assembly Members because the thing had not been discussed by the Assembly at all at an intergovernmental level.
(Lord Elis-Thomas) For my convenience I have before me annex 5 of the Assembly review procedure which were principles which were proposed to us in evidence by Professor Rawlings. They were adopted as principles by the Assembly review procedure which was an all-party exercise and then the final report was adopted by the Assembly in full plenary session. These principles have the support of the coalition government and all other parties in the Assembly. They are important in our view because they represent certain basic principles. I would emphasise the importance in particular of not conferring more powers on English ministers than are conferred on the Assembly in legislation. We see no cause, as has happened certainly on a number of occasions recently in legislation in 2002, why certain provisions have conferred greater powers on the Secretary of State in relation to England and with greater flexibility and discretion than that given to the National Assembly. Obviously that is a very important principle. Among those principles as well is the importance of Principle 4 not reducing the Assembly's functions and where there are new functions that there should be a flexibility to develop policy. We argue, and have argued all along, for a positive view of so-called Henry VIII powers. Indeed, if there is a concern about the Assembly using Henry VIII powers to amend primary legislation then there are parliamentary ways in which that could be circumscribed which would prevent the Assembly from, as it were, behaving as a primary legislature. Those principles are ones that we would recommend to you.
(Dr Marek) Let me try and answer this. I suspect with the present incumbency in the Wales Office the answer is no, that devolution is regarded as an event and nothing more can be done but, of course, time means that there will be different people in the Wales Office and, who knows, things will change. Can I just make one other point to add to Dafydd's point, that Rawlings Principle 1 really says that when we have got devolved powers in a particular area any other powers in that area should be given to us because we already have competency in those areas. In Westminster as Bills go through there are some powers where we do get more and there are other Bills where we only get the same powers that the minister has for England and there have been one or two cases where we have fewer powers as a National Assembly than have been given to the equivalent minister in England. That latter example I think is very wrong unless there is a very good reason for it. I think we would argue that we should be given powers according to Rawlings Principle 1 and if we are not being given powers as a National Assembly then the Government in Westminster ought to provide an explanation as to why not. I am sure there are explanations, that it would not be cost-effective or there may be questions of national security or something like that, that the power is necessarily kept in Westminster, but I think an explanation would be useful. The second point is that we should not equate devolving powers to a National Assembly on a par with devolving powers to a minister because the minister, of course, has those powers as an executive function whereas when they come to the National Assembly it is to a democratically elected body where they are subject to further scrutiny and debate before they are exercised. We would argue that, if anything, we should have more powers and the presumption ought to be that we should have those powers unless there is a good reason for us not to have them.
(Dr Marek) A personal view only.
(Dr Marek) I agree.
(Lord Elis-Thomas) This has always been my view. Competence is not just something conferred on a body, it is something which a body gains and earns as it develops. I think we have shown that we are competent in terms of our way of managing scrutiny of budget and managing the legislative process. This is why, within the Government of Wales Act, I believe it is important that we should develop our competence to act to the full because that to me as a devolutionist, as a quasi European federalist, whatever, is what governance is about. It is not a problem about how far you go, it is how effectively you do it and that is what proves that you can operate.
(Dr Marek) I am not sure I can answer that actually. I think there must have been channels but perhaps they have been formed through the compacts that the executive has. I do not think it is anything other than informal through the parliamentary system.
(Lord Elis-Thomas) I am aware of a long running debate about agricultural policy and especially about animal welfare. I do not know whether it is for me to say more on this at this stage but it certainly is an issue. It was an issue during the foot and mouth crisis and it has been an issue ever since. The interesting question is how this might be resolved by the UK Government and the Assembly. We are told, at least in the devolution note we referred to earlier, that it is not the intention to confer further powers by Transfer of Functions Orders but to do it by private legislation although I have yet to see that.
(Lord Elis-Thomas) I think this is another area in which we can all co-operate, adopting the tone which Martyn, the Chairman, set for this Committee. It is for UK parliamentarians, speaking as a very part-time one currently, to work with Assembly Members to show up inconsistencies and to show up inadequacies in UK legislation as they affect the Assembly and to make it known to Government that this is not acceptable and we look to you to help us to do that.
(Dr Marek) Much obliged.
(Dr Marek) I am delighted.
(Lord Elis-Thomas) Not yet I think is the answer to that. I believe that the simplest way of doing it is devolving by subject areas or allowing the Assembly to make subordinate legislation within the framework of primary legislation being passed by Westminster for Wales, in other words giving the Assembly promotional powers to make legislation in subordinate means within the framework of the primary legislation which is being enacted by Westminster. That is the simplest way of doing it because that provides then Cardiff Bay to have the permissive powers within the framework of the primary legislation. I do not think that has been sufficiently looked at. If you look across all the recent Bills and learning skills like the Local Government Act, the Care Standards Act - these are all 2000 - the Education Act 2002, the National Health Service Reform and Care Professionals Act and so on, it is a variable geometry here, is it not, as between what is available, what applies to Wales only, what is England and Wales, what allows for flexibility, where the regulatory powers are in relation to various functions. I think therefore, because of the legislative uncertainty which is basic to this kind of operation, unless and until there is a Wales Part, as John has always argued for, for a Bill, until there are clear principles as to how Wales is described and what applies in terms of legislation it will always be difficult for individual UK departments or for the Assembly here or indeed for parliamentary drafts people to be aware of any clear principles as to what legislating for Wales means. Added to that, of course, the fact that the Transfer of Functions Orders and the Government of Wales Act provide for an uneven transfer in the first place it makes it impossible for individual Members of Parliament, I would say, or certainly individual Assembly Members to know at any given time what the Assembly's powers are in any given policy field. I am not asking about the competence of officials and ministers to know what the powers are because if the rest of us do not what chance have they got.
(Lord Elis-Thomas) These are difficult questions for me to field because in a sense I am not responsible for outcomes of legislation. Looking at it from the point of view of constitutional practice the answer is no I think.
(Lord Elis-Thomas) Well, yes, I think that getting an enabling clause even as a pilot, if you like as a constitutional experiment, within an Act to enable the Assembly to use our secondary legislative framework to ensure the purpose of primary legislation for Wales in the area of the Bill which is being prepared, those powers are worth asking for because I think, for example, in education, and that is the only area because I am just thinking about Hywel's question, where there were successes in educational legislation that is where the greatest difference appears. This is an historical fact back to the 1896 Intermediate Education Act (Wales) which established education differently in Wales for the first time. So there are differences there which are more obvious but I do not see that there is any constitutional principle in terms of the present establishment to use that term in allowing much more autonomy in, for example, education where the structures are already established here in Wales and where the difference in professions and even in the educational ethos is quite evident. I am going into policy issues now which is quite dangerous for a process person to work with.
(Lord Elis-Thomas) This obviously is the argument against what we have set out here. What we have set out is the opportunity for greater legislative flexibility. When you are talking about Henry VIII powers, they have been regularly used in the past to allow ministers in Westminster to make the equivalent of primary legislation, or at least to have a broad executive brush, which comes down to the same thing. When we make legislation here that legislation is made by a democratic body with full democratic scrutiny and if the National Assembly had broad permissive powers to make legislation within the area of a Bill then that power would be exercised by a decision of a majority of an elected body and therefore, in my view, has as great a legitimacy in constitutional theory as any action undertaken by a minister. The great hoo-ha about Henry VIII powers in Westminster relates to ministerial activity in the field of primary legislation without the scrutiny of Parliament. This is not what we are talking about here. This is a parliamentary body which has the ability to scrutinise in a very detailed way its own activity and the activity of any ministers within it. So I would say that is a qualitative difference of democratic principle and of constitutional theory and practice between giving permissive powers of broad legislative remit to an elected body and giving them to ministers.
(Dr Marek) I would like to argue that we should not look at it as to whether we should give primary powers or not give primary powers but look at it on a case by case basis. The Education Bill, for example, I do not know what the clauses are but something like 100 to 110 give the National Assembly Henry VII powers over the curriculum. Clause 110 simply says the National Assembly can vary the previous nine or ten clauses which are all to do with the curriculum and the Welsh language and the culture. I would have thought that we could all agree that that is a clear case where we ought to have a general competence over the curriculum. It cannot be right for people in Whitehall to be able to decide questions pertaining to the curriculum and that they would get better decisions there than if they were decided here: (a) they would be decided democratically and (b) they would know a little bit more about it than they do in Whitehall. I would contend that there is an example where clearly Henry VIII powers are clear and that there ought not to be any argument about them. There may be other areas and I would argue look out for those areas and where you think that there is a case in Westminster you should consider carefully giving us those powers.
(Lord Elis-Thomas) As I said in answer to an earlier question, I am not copping out but I do not want to set myself up as judicially reviewing myself or the Government of Wales or looking at legislative output. I do not think it is one for us. It is certainly one that you should ask the relevant minister of the Government of Wales about whether or not they think that legislation is functioning effectively. What I will say, hand on heart, is that it was properly scrutinised, really it was, when it went through here.
(Lord Elis-Thomas) This project, of course, is associated with the name of my very independent adviser, who I understand you may be speaking to later. I think the work that the Cardiff Law School has done in this area is of great service to us. I personally believe it is important that that sort of project does happen outside of the parliamentary bodies themselves because it allows assured independence of the activity. It has been a massive undertaking. Certainly I find it extremely useful on a daily basis. It obviously needs to be properly funded but I think that this should be seen as an independent academic legal exercise which serves both the profession in Wales and the profession outside and serves all the parliamentary bodies involved.
(Dr Marek) Under our Standing Order 30 the Presiding Office must publish all legislation other than legislation which is printed by the Stationery Office that is received by us. We have not been receiving a lot of information from the executive, however we are going to put this right. The Presiding Office will have its own website this side of Christmas and I look to a great improvement in the list of legislation, not just by date order but to make it user friendly so that any person in Wales can easily look at legislation and find out whether in a particular area there has been a debate by the National Assembly or not. Legislation, of course, is not just Statutory Instruments, it is circulars, it is directions, it could be letters to chief executives of councils, occasionally they are constrained to do something. That is also legislation. It is not an easy topic to get round but we are at present attempting to do it.
(Lord Elis-Thomas) I think the Rawlings principles as agreed by the Assembly in plenary represent what should be the basis to our current legislative process. I think these are principles that we should be arguing for with the UK Government and to the extent that we need to do that, not with our own Government here in Wales but with the Wales Office, these principles should form the basis of our activity for the coming session. I think these principles should be as clearly adhered to as soon as possible by all practitioners of devolved legislation. I cannot say it stronger than that.
(Lord Elis-Thomas) I would say not yet.
(Dr Marek) They change every time you pass a piece of legislation.
Mr Caton: I am very grateful for that answer. I am a member on the Joint Committee and it is quite a tedious process consolidating Bills, so I am grateful that you have put that off for today.
(Lord Elis-Thomas) We have made representations to the Modernisation Committee and to the Leader of the House and, indeed, to the House of Lords Committee on Constitution on these matters.
(Dr Marek) We should send you copies I think, if that would be helpful. As the Presiding Officer has already mentioned, it should not be by Transfer Order it should be by direct primary legislation.
(Mr Jones) I think there is a lot of merit to be said for greater consistency in the terminology of primary legislation. For the outsider it can be rather confusing if you refer to the "appropriate minister" in one Act and refer to the "Secretary of State" in another Act and then have another provision saying "with reference to the Secretary of State there should be substituted reference to the Assembly". I think there needs to be good reason for utilising different terminology.
Chairman: Any more questions from my colleagues? No. Is there anything that you would like to add? No. It has been a very useful session, thank you very much. I hope we will get something in the long term which will find a way forward, although I have my doubts. As you say, once we codify and once we get the legislation changed something else will move further along the line and we will be back where we started. I think most of us would agree that it is a process and not a one-off. Thank you very much.
Memorandum submitted by Cardiff Law School
Examination of Witnesses
PROFESSOR DAVID MIERS, Deputy Head, Cardiff Law School, MR DAVID LAMBERT, Research Fellow, Cardiff Law School; former Legal Adviser to the National Assembly for Wales, and MS MARIE NAVARRO, Research Associate, Cardiff Law School, examined.
(Professor Miers) With pleasure, Chairman, thank you very much. As the nameplates show I am David Miers. I am the person ultimately responsible for Wales Legislation On-line. On my right is our researcher, Marie Navarro, who does the trawling through all the SIs and all the Bills to the Acts to see what applies this side of the border. On my left is Mr David Lambert. He will confirm his current position for the record, your clerk suggested that. I believe I should also say that I am a Special Adviser to the Culture, Media and Sport Select Committee. I was advised by your clerk that I should just confirm that for the record.
(Professor Miers) Thank you very much.
(Mr Lambert) I am associated with the Wales Legislation On-line project and I am the consultant Legal Adviser to the Presiding Officer. I was the Legal Adviser to the Secretary of State for Wales in the 1990s but now I am no longer a civil servant.
(Professor Miers) The short answer to that question, Chairman, is an indisputable yes. The background to Wales Legislation On-line goes back about two years or so when David and I, with a great deal of encouragement from the then Presiding Judge of the Wales and Chester Circuit, Justice Thomas, thought that with the advent of the Assembly there would be a question of significance, constitutional, legal, practical and academic significance, for all practitioners in Wales, for people who wished to rely on Assembly Orders, for people who wished to know what the functions, the powers of the Assembly are, that there should be some source to which they could turn which would be publicly accessible, preferably free, and which would carry, as it were, or conduct a current contemporary updating so that it was always pretty much up to date. I will say a little bit more about what we do, if I may, in a moment. As to funding, we were successful in obtaining a grant from the Arts and Humanities Research Board which took effect from 1 January 2002. That grant lasts for three years and is in the order of £160,000. That grant effectively supports the salary for Marie, on my right, as well as the university's on-costs plus some technical support within the Law School. The answer to the maybe unspoken question "what happens in December 2004 when the money runs out" is at the moment the whole thing comes to a stop because it is not an enterprise which I regret that the Law School cannot out of its own resources take on. Therefore, in response to your invitation, Chairman, would it be desirable for Government support, whether the local government or the National Assembly, unquestionably the answer must be yes to that. The kind of figure I have given you suggests that it would not be unduly expensive. If you divide 160,000 by three you are looking at about £60,000 per annum by the time you get to 2004. I was very heartened to hear what the Presiding Officer had to say, "great service and extremely useful" were the words that I wrote down. He did observe that he thought it was right that it should be regarded as a legal academic exercise, I think he said. I have no difficulty with that in the sense that it is run from the Law School and the Law School is committed to this even if it cannot resource it as from December 2004. I think we would regard ourselves in that sense as being independent. That makes me make one other observation which is that we speak on behalf of Wales Legislation On-line rather than in any political capacity or any political preferences. We would say that while comfortable about it being academic, I think that Wales Legislation On-line is of immense practical value. Without going into a great deal of detail, we could evidence that and we could probably do so by letter subsequent to the meeting by reference to the number of hits we have on our website.
(Ms Navarro) We even have solicitors from the North of England calling us to know if an Act has commenced for Wales. People contact us from all different backgrounds, so it is used.
(Professor Miers) I think that is an important point to be reinforced. It is not just that this is a service for people living in Wales, it is a service for people living out of Wales but who wish to do business here, if you like, and wish to find out what the law is that applies, say, to the purchase of homes in Wales. Website records will show that we are routinely hit, for example, by government departments in Whitehall. DEFRA, for example, is a regular user, Parliament. We conducted a very substantial publicity campaign. I think I sent to you, Chairman, copies of the flier which I am holding up. Members of the Committee can see of course what it is that we are doing by checking our website. So far as what it is we do is concerned, it is set out there in the flier but, to put it very shortly, our objective is to set out the Assembly's powers in the different subject areas as well as the secondary legislation that it has made and to explain the functions that are retained by central Government in respect of those areas. It is Marie who is primarily responsible for the detailed work. I do stress that it is immensely detailed. You remarked earlier about work with SIs and you will know, Chairman, what kind of task confronts her. Perhaps I have spoken long enough there in my preliminary answer.
(Ms Navarro) Can I just add something as well. The second part of the website and our work is to provide a summary of all the SIs the Assembly has made. The Website is in two parts, the powers of the Assembly first and how it has used them. It always provides summaries of those powers, not the exact legal wording and content of Acts. We try to make it public friendly, so we try to summarise it.
(Ms Navarro) I divide my work into types of legislation, so I am nearly updated with all the new Acts for 2002. I am up to date with the Assembly until now. I have more problems with all the SIs made by central Government which apply to Wales as well. For that I have managed to do all of the 2001 and I am working backwards, so I have 2000 and 1999 to do. I am fairly up to date on 2002. Then there is another problem which is the Assembly has its powers, not only from Acts of Parliaments listed in the TFOs but also from all the secondary legislation made under all these Acts listed in the Transfer of Functions Order. We do that progressively and I have only managed to track all the SIs in the fields of agriculture, culture, economics. I am doing them by subject areas. The aim is to be completely and fully updated within the three year period, so by December 2004. I prioritise things like Acts of Parliament first, so we will be updating all the 2002 Acts within one month and then I will work backwards to what I think are the less important and the least priority.
(Professor Miers) We did speculate on that. Running subscription events is not something that even in the 21st Century universities are much into, there is an awful lot of work just checking subscriptions. In terms of my own personal commitment, my view is that this is something that ought to be free. It is of course the case that chambers, firms of solicitors, local authorities, statutory agencies and so on could readily afford a subscription but not so the user in the street, if I might use that kind of phraseology.
Chairman: If we could move on now and find your views on one or two topics that you will be able to help us with, I hope.
(Professor Miers) I give my answer in terms of, as I say, the user. The question which remains, I think, from the fact that there is consultation on all matters in respect of which central Government proposes to transfer a function is what of the rest. There are, it seems to me, two possibilities here. They could be put in terms of perhaps presumptions, and in this respect rather like Professor Rawlings' principles perhaps. One presumption might be regarded as being a strong presumption and that is that central Government when it is contemplating primary legislation in any of the fields - I pause there to say, of course, we recognise that fields are not some kind of general secondary legislative competence for the Assembly but they were at least mentioned in Schedule 2 to the Government of Wales Act - whether or not it proposes to transfer any function in that Bill or, indeed, whether or not any function in that area has previously been transferred, nevertheless there ought to be some form of consultation with the Assembly. I use the Assembly here broadly. That might be regarded as a strong presumption, presumption in favour of disclosure, if I might put it that way, full disclosure of all government plans to enact primary legislation in agriculture or education or transport or any one of the 18 fields. If that was thought unpalatable by central Government there is a weaker version, perhaps, of that presumption which is that again with the same kind of preliminary - the Government is contemplating enacting something in education or agriculture - where the Bill will contain clauses which though they will not transfer a function to the Assembly nevertheless are related to or are close to some subject which has been transferred in respect of which it might be said that the Assembly has a legitimate interest, let us say, because it has exercised functions in that specific area before, in that case Government should say "we are contemplating legislation here. We know that you have had functions in a similar area before. We are not planning anything this time but we think you ought to know".
(Professor Miers) I look to my colleagues who are better at examples than I am.
(Mr Lambert) The Animal Health Bill would be an example which is now in the House of Lords, which I do not think gives any powers at all to the Assembly. Certainly I do not think backbenchers of the Assembly are aware that there are no powers at all given to the Assembly even though it has potential considerable effects on farmers in Wales.
(Professor Miers) In putting that forward I recognise that the objection to the first strong presumption is perhaps an objection that central Government might make that "this is going to cause us a great deal of work to consult on everything that we are planning in the area of education" to which the answer might be "yes, but you have a devolved structure and you need to take that seriously". In terms of the second, the weaker presumption, there is a difficulty here which I would certainly recognise and wish to flag up and that is this: the judgment is this an area similar to, approximate to, an area in respect of which the Assembly has some transferred functions, that is clearly a political judgment or a judgment which would be made in central Government. Presumably if the judgment were no then that would not be something which would emerge.
(Professor Miers) For my own part I simply put these forward as possibilities. For my own part I have no preference as between them but they seem to me in terms of the organisation of, as it were, disclosure of ideas to the Assembly those two present themselves as reasonably clear models I think. In respect of the second there is a serious question mark over the judgment is this a similar issue.
(Professor Miers) I expect that both my colleagues may wish to say something about this. We did remark on this, Chairman, in the second set of written evidence that we submitted to the Committee. Before going on to answer your question directly, the two cases I might just draw attention to, the two statutes that were used by way of example, the Local Government Act 2000 and the Learning and Skills Act 2000, each of these presents slightly different ways in which powers are transferred, functions are transferred, to the Assembly. In the case of the Local Government Act it is quite complex and I will not go into the detail here but in essence one has a sequence of sections, some which transfer powers, some jointly, some concurrently, some powers are not transferred, and then there is a Part that is applicable to Wales. I think "variable geometry" was the phrase which the Presiding Officer used and that is certainly the case with that Act. Learning and Skills, in our view, is a rather better way of effecting a transfer in that it clearly signals at various points during the Act those Parts which apply to Wales and it uses the word "Wales" in section headings and there are two Parts which apply only to Wales, I think. It is clearly possible within the normal bounds, as it were, of parliamentary drafting for statutes to contain Parts which are signalled Wales or Wales only. As you rightly observe, the difficulty is disengaging or disentangling - this is what Marie spends a great deal of her time doing - from an England and Wales set of provisions those bits which apply to Wales, some of which are bits which apply with exceptions or exceptions to exceptions, so one is always looking at some sort of sub-set of provisions. One route I think was touched on by the Deputy Presiding Officer in his evidence earlier on this afternoon and that would be something along these lines, that for those parts of the Act which are England and Wales together, as opposed to Wales only or England only, the Clauses should only apply to England and refer, let us say, to the Secretary of State. Later on in the Act you could have a Part 6 Application to Wales which could begin something like "In this Act for references to 'the Secretary of State' read 'the National Assembly for Wales', except..." because of course there will always be exceptions, and then you would have a long list, short or long depending on what matters of policy have been decided, "except this thing for Wales or this thing". It seems to me that would have two immediate advantages. One is that it would meet, and one of your earlier witnesses remarked on this, the different use of terminology because you would be using a single terminology "for 'Secretary of State' read 'National Assembly'" or "appropriate minister" or some such. That is one clear advantage. The other much more substantial advantage would be from a user perspective, and by user I mean here also Assembly Members, Members of this Committee, Members of the Welsh Grand Committee, anyone who has an interest in what the Bill is about to do, you would be able to go direct to a part of the Bill, apart from the Wales only parts, the part you only need to go to. What of this Bill, so far as there are equivalent provisions for England, applies also in Wales? We look in Part 5 or whatever Part it might be and there it all is. Perhaps Marie can give us an example. Unquestionably one of the most difficult tasks is filleting your way through a Bill, through an Act, in order to see that this bit applies, that bit does not apply. The answer to your question - sorry, a rather long-winded answer - is yes it is possible by a device of that sort. I would have thought that is not in any way constitutionally or in terms of the conventions in the Office of Parliamentary Counsel would be regarded as being in any way unusual.
(Professor Miers) Chairman, I think the short answer to that is certainly, yes.
(Professor Miers) Because it makes it easier for the user, it must do.
(Professor Miers) I did that also to show that professors are capable of short answers.
Chairman: Now do not shock us.
(Professor Miers) They resemble the kind of strong presumption that I was talking about earlier in the sense that they all start from the proposition that once you have set in motion a devolution settlement then effectively you ought to go with it. That seems to me to be the underlying philosophy behind Professor Rawling's principles. Again, perhaps from a public lawyer's point of view I think the answer to your question is that those do form a proper context within which further devolution activity should take place.
(Mr Lambert) If I could add to what David has said. Every new Act that comes out is rather like a novel. It is as if it is written by a new person and you have to get used to the way in which that particular Act is expressed. I am sure Marie would confirm as well that really no two Acts enacted since we have had devolution are the same. You have to sit down and try and absorb page after page after page of the particular structure of that particular Act knowing that it will not be the same structure in another Act. It is extraordinarily confusing.
(Mr Lambert) Yes, I think there are, yes. There is no formal structure appearing from them at all, they are still all different.
(Professor Miers) We are not saying that. David can speak for himself.
(Mr Lambert) None from my experience at the moment.
(Professor Miers) None.
(Mr Lambert) None at all follow the principle.
(Professor Miers) They continue, as is the case with executive devolution, to be discrete, individual transfers of functions to the Assembly. Every one is separately enumerated either in the initial or subsequent TFOs or in primary legislation since.
(Professor Miers) In terms of the relationship between the Assembly and Whitehall then in concordats, it seems to me, or other Devolution Guidance Notes or the equivalent. The Committee I am sure well knows that is where there are principles regarding the relationship between central Government and the Assembly as set out. If principles similar to those which Professor Rawlings has set out were likewise to be included within them then it would be a matter of good faith for central Government to act accordingly. In some of your questions to the Presiding Officer and his team, I think their answers suggest that the difficulty lies with central Government as to whether or not it is prepared to accept those kinds of, not constraints exactly but those kinds of guidelines, principles. As a matter of law it would be possible to use the Rawlings principles - again you asked a question about this in the previous session - in terms of some sort of enabling framework legislation so that instead of - to go back to the question that was asked earlier - having parts which apply to England and Wales jointly but in respect of which there are some separate provisions for Wales you end up simply with Part 6 Application to Wales "The Assembly shall have the power to make such provision as is necessary to implement the objectives of this Act". As I understand it they were the signals made in the White Paper but which have not been followed through, clearly. That would be framework legislation in effect. Even though the Assembly would be under that formula still possessed only of secondary powers they would be secondary powers nevertheless of considerable magnitude because in effect, subject of course to what the Act says in terms of its objects, they would nevertheless have a clean sheet on which to work within the parameters of the statutory objectives.
(Professor Miers) I would say, if I may, that the answer to the framework legislation or framework sections answers that to some extent. The difficulty is this, is it not, that there may be fields, there may be discrete powers but there is no picture, as it were, there is no general competence albeit of a secondary nature for the Assembly. It must be a political decision, must it not, to transfer general competence in education or health or transport or any one of those. Would that be a desirable thing? Well, again, from the user's point of view unquestionably so because you would know as the user that you are working within, as it were, a jurisprudence, if you like, for the Assembly which is to do with education or health as the case may be whereas you are not to-ing and fro-ing between what applies in England, what applies in Wales, with or without some sort of qualification.
(Mr Lambert) It may not be generally realised that in fact in Section 32 of the Government of Wales Act we do have very general powers, albeit not supporting legislation, because it says "The Assembly may do anything it considers appropriate to support museums, art galleries, historic buildings, Welsh language, arts and crafts". So actually rather ironically the only one substantive power there is in the Government of Wales Act is in widening it so it can be done.
(Ms Navarro) The Assembly has broader powers as well as in Section 2.2 of the European Communities Act where it is allowed to make all the implementing legislation for subject areas. We have a precedence where the Assembly is a competent authority for broader subject areas as well.
(Mr Lambert) Yes. Again I do not think it is generally realised that whatever the Scottish Parliament can do the Scottish Executive can do by reference to subject areas as well. You have got hundreds and hundreds of Acts of Parliament and if they come within education then the Scottish Executive can exercise any powers under any of those Acts. They are not specified. They are very lucky they never had a Transfer of Functions Order. The Scottish Executive just took over any Acts falling within subject areas unless they are excepted.
(Professor Miers) What that means is that new legislation by a deeming provision - as has been done on a few occasions - can deem that an Act in 2005 applies as if it applied before the Scotland Act 1998. In doing that, let us say in the field of agriculture, by virtue of the 1998 Scotland Act that would automatically become part of the Scottish Parliament and Scottish Executive's competence. Again that is not possible here, as you well know, as the Committee well knows, that is simply not possible because of the nature of Executive devolution and therefore the answer to your question I think lies with central Government. It is for it to grasp that nettle, as it were, and say "We will make transfers in terms of education or health or agriculture or any of the others".
This is an interesting question and an interesting area. I am sorry, that sounds a bit vapid but it is genuinely so. The answer that you heard in the session before this was firstly that central Government should not in the allocation of Henry VIII powers equate the Assembly with the Secretary of State because the Secretary of State, being a member of the executive, goes back to Parliament for affirmative resolution procedure, let us say a short debate, whereas of course here we are talking about a devolved democratically elected body. I think there are, if you like, two further arguments which can be made here which relate not so much to the political but to the procedural points concerning instruments. The first point touched on was this: by comparison with the parliamentary procedures for Statutory Instruments generally the procedures here are very much more complex and the instrument is subject to a much greater degree of scrutiny, there is subject committee scrutiny, regulatory impact assessment, there is consultation, before it goes to debate in the Assembly. The other point that I think is worth making in this context is that the SI here would be amendable which would not be the case in Parliament. What you have in effect is in terms of the safeguards that Parliament normally expects, indeed abnormally expects, in respect of instruments apply in the National Assembly. This is the second point I wanted to make. One could almost see an equivalence between the way in which the Assembly's rules and Standing Orders apply to instruments and that and Regulatory Reform Orders and their predecessors, Deregulation Orders, where there is a very elaborate scheme for the scrutiny of instruments that amend primary legislation substantively and they end up with a recommendation to each House but there there is the same kind of scrutiny by a committee, the Deregulation Committee or Regulatory Reform Committee, of evidence, of ministers, as to why the Order should be made. It seems to me that when you are looking at Henry VIII Orders if enacted, if enacted here, they are, in short, subject to a much greater degree of scrutiny than is true of general instruments in Westminster and are, to repeat the point but I think it is a very important point, almost equivalent to that kind of extraordinary procedure that applies to the Regulatory Reform Orders. Those might be thought from a parliamentary perspective to be sufficient guard against the Assembly, as it were, overreaching itself.
(Professor Miers) That would depend, would it not, on the nature of the section which gives the Henry VIII power because the Henry VIII power can itself be circumscribed. It is not going to be "you can do anything you like to amend any Act of Parliament concerning education that you choose", it could be much more narrowly confined. I go back to something like the Deregulation Contracting Out Act or the Regulatory Reform Act. The primary Act which gives the power to ministers to bring forward proposals for amending legislation is quite specific in the scope - I think that is the key point - of those matters in respect of which a Henry VIII Order could be made. I think that is where Parliament has its hold, if that is what is being sought, on what happens here.
(Mr Lambert) The other safeguard could be to make Assembly Order Henry VIII powers subject to parliamentary procedure as the Secretary of States are. It is very strange that actually, in fact, the Assembly can make subordinate legislation for parts of England, Hereford, in relation to water and there all the parliamentary procedures are still retained. If there is that concern, and I can understand that concern, the Henry VIII powers could be subject to negative or affirmative resolution procedure in Parliament.
Adam Price: Declare an interest.
(Mr Lambert) They would only be the powers possessed by the Secretary of State. The Secretary of State cannot make primary legislative powers. We would be asking for the same subordinate legislative powers as Parliament gives the Secretary of State.
(Professor Miers) In a word, yes.
(Mr Lambert) Yes.
(Professor Miers) That is a unanimous word, I think.
(Professor Miers) We can elaborate the answer if you wish.
(Professor Miers) There are two responses to the question should there be an overarching principle. One is political and one is legal, if you like. I know the two do mesh. The political question is the question which you have addressed today on other occasions, that is to say should there just be, for example, enabling legislation for the Assembly. As I say, that is essentially a political question. If central Government adheres, and I think the Chairman indicated earlier that is likely to be the case, to the view that primary powers are not going to be devolved so that we are left with this continuing accretion of powers discretely one by one, then it seems to me there are some things that could be done ultimately to try to tidy that up I guess would be the short way of putting it. To speak broadly, the kind of thing which I have in mind, which is what we are trying to do with Wales Legislation On-line effectively, is that you take an area, say education, and you seek to produce what in another context would be called a kind of Welsh supplement to statutes in force. Statutes in force will, I think, eventually get on to a database, if I heard that correctly from the Lord Chancellor's Department recently. What is needed, it seems to me, is the possibility that you can then click on to or go to a source which says "Wales. Education" and there is listed in subject matter, not chronology, subject matter groupings, the changes that have been made by the initial TFO and subsequently and then by primary Acts which in effect amount to a kind of restatement. If I may anticipate a question, perhaps improperle, you spoke of Consolidation Bills, I would see this not so much as consolidation but as restatement of an American concept where you try, as the name readily suggests, to state what the law is in using some organising concepts like primary education, secondary education, special needs education and so on. That seems to me to be the goal to which one should aim. Now whether all of that could be encompassed at one point in a single Act, a kind of Wales Legislation (Restatement) Act, I do not know. You could say why not in one sense. You could maybe get a statement of that sort which is sort of like a consolidation which would then give you a primary Act which you could subsequently amend, not by Transfer of Functions Order but by other primary legislation in the way all other primary legislation is effected. Sorry, again a rather long answer.
(Professor Miers) I think the answer to the first part is no. There is no reason why one method could not be adopted, I think, unless I am badly mistaken. On the second I think my own preference, allowing for the political choices, would be the proposition I suggested earlier, that is that there be a separate Part in every Act of Parliament, application to Wales, as I say this is apart from any Parts which are Wales only Parts, and England only Parts. In Part I, which is England and Wales, for Secretary of State read - repeating the point I made earlier - National Assembly except . As I say if that could be done, and it seems to me that would not be any more difficult to accomplish than the present which is section by section, Section 12 "this shall be transferred to the Assembly except that" or with the exception of , it seem to me that would put it all into one place. You have got to do them somewhere. Having done them in the sections as you went seriatim through the Bill, then, as it were, you do a kind of cut and paste job and put them into separate parts. You might need to tidy them probably but that seems to me to be something that is possible.
(Mr Lambert) Most new Acts giving powers to the Assembly now actually do have a provision relating to Wales but sadly it is a very technical provision. It says what is the effect of the amendment made by the new legislation on old Acts in the Transfer of Functions Order. Interestingly enough that is a formula that seems to have now been accepted by all Parliamentary Counsel in the last year. What David has said is we think you have got the basis there already and you could build on that so that you have a totality in that Part or in that section of the whole of the effect of that legislation in Wales because we have got already a Wales provision. I turn to it excitedly and sadly find it is this extraordinary very technical thing that formula has drawn up.
Chairman: Thank you very much indeed for coming. If there is anything else you would like to let us know or you think about afterwards it is not too late. Thank you.
Memorandum submitted by the Institute of Welsh Affairs
Examination of Witnesses
MR JOHN OSMOND, Director and PROFESSOR KEITH PATCHETT, Emeritus Professor of Law, Cardiff University, Institute of Welsh Affairs, examined.
(Mr Osmond) Sure. My name is John Osmond. I am the Director of the Institute of Welsh Affairs. We do quite a lot of work in and around the National Assembly. We have, for want of a better word, a constitutional panel, and a leading figure on that is Professor Keith Patchett on my right who is Emeritus professor of law at Cardiff University. He has been in effect the main author of the paper we have presented to you. I imagine most of your questions he will provide the answers to.
(Professor Patchett) I think certainly it is a necessary step that is required. At the moment one gets the impression that the National Assembly generally as distinct from the Welsh Assembly Government is rather marginalised in its capacity to influence the content of legislative change. When it comes to the initial formulation of the policy for new legislation the Assembly at large cannot really get into the Act at a very early stage unless there has been general discussion in the subject committees on a particular subject matter which the Assembly Government then takes up and takes forward. But because of the rules of confidentiality as soon as the discussions take place between the Assembly Government and the appropriate ministerial departments necessarily the rest of the Assembly is left on the edges of that and must await the appearance of the Bill to be able to get into the Act. One can understand the thinking behind that. It means, therefore, that if there is to be a greater influence at that stage then the Assembly itself must grapple with the problems in its subject committees and ensure that it is feeding into the Assembly Government as much as it can in an order which will inform the way in which the Assembly Government goes about its task. Waiting for the Bill to come, of course, means that the Assembly is rather late in on the act. It may have views that it wishes to express generally. At the moment there is so little formal linkage with the parliamentary process that the position of the Assembly does not feed into the parliamentary process in any systematic or formally accepted way. It is hidden. What I think we were agitating for was a closer formal link between what the Assembly has to say about a piece of legislation at a time when parliament itself could be influenced by what it hears. There are problems in this respect, of course. First of all there are problems of meshing timetables between the Assembly and Parliament and that requires a lot of planning and I suspect a lot of good luck on occasions. There are also the problems in the Assembly at the moment in that, if I can call them this, the backbenchers do not receive the kind of expert support they need to analyse legislation, to understand it in a way that they can formulate their ideas in a form that might influence the way in which Parliament might respond to this. We do suggest in our paper that it would be helpful, for example, if it were possible for the Assembly to fast track its suggestions for amendments to a standing committee so that there was, in fact, a recognised acceptance by standing committees dealing with Welsh provisions that they would look at these amendments.
(Professor Patchett) A standing committee of the Commons, yes.
(Professor Patchett) I think that this is certainly desirable wherever that is practical, again. The possibilities, for example, of early discussion between the select committee or the grand committee members and the Assembly at the time when the legislative programme has been announced and there is some discussion about the impact that that maybe had, the interchange between the two institutions I think will be valuable on both sides. The involvement with members of either of those two committees with a subject committee that was concerned with a piece of legislation would help inform both sides of the problems that may be faced in either of the institutions. Certainly opportunities of that kind should be built in if it is at all feasible and if the timetable allows.
(Mr Osmond) If I could make a broader, more general, perhaps political point which is simply this: in all your considerations of how this works and can be made to work better we have an ongoing structural shift in the character of the Assembly itself, which you will be aware of. We have, in effect, the disappearance of the corporate body as envisaged in the Wales Act, it has gone, we have the emergence of the Welsh Assembly Government, which in effect is the old Welsh Office, dealing directly with Westminster and Whitehall, and we have on the other side a diminished Assembly which because of the lack of numbers means there are no effective backbenchers, no effective support for them in terms of the kind of support even that you have in the House of Commons. In a way all these kinds of issues about can the Assembly more effectively engage in a constructive manner in some sense are a bit academic really. If you just look at the situation now where you have a situation where you have a Labour administration in Westminster and a Labour administration in Cardiff, how much more difficult would this be in terms of the actual Assembly itself, the Assembly as a backbench institution if you like, having some sort of purchase if in effect the politics were the other way, that is to say we had a Conservative administration in London and a Labour administration in Cardiff. There would be much less possibility really for backbenchers to have this collaborative approach. We are recommending that there should be a collaborative approach and so on but I just wonder how realistic this is in practice, that is all. Maybe I am undermining my own paper.
(Mr Osmond) I will just briefly answer that and I will ask Keith to elaborate. I think the substantive answer is on page 15 of our submission which Keith has already alluded to in that there should be, we think, a convention whereby proposals coming from the Assembly should have some sort of automatic consideration which would give them a different locus from that of any other interest group, whether it is the RSPB or whatever it might be. That might be the fast track approach, it might be another. That would begin to build up this idea of a real sense of partnership and a measure of equality between the two institutions. Keith might like to elaborate.
(Professor Patchett) It really depends a little bit on what you mean by consultation here. There is the kind of consultation process we have recently had on the Mental Health Bill, for example, which is a purely draft piece of legislation that has not yet been accepted by the Legislation Committee for presentation to Parliament. That is at a very early stage of the process. It is interesting there that the Assembly at large was not identified particularly as a body to be consulted, although it itself took on the role of responding to a general request for consultation. Again, one would have hoped that it would become quite routine for pieces of legislation at that stage to be passed to the Assembly with a formal request that the Assembly engage in the process of consultation. It is, of course, then just consultation with the lead department in Whitehall and the Assembly but there is already consultation that takes place between Whitehall and the Welsh Assembly Government. Where our concern has been mainly expressed in our paper is the weakness of the consultation with the rest of the Assembly which has become, we suspect, more marked as a result of the bifurcation of the corporate body. There is, I think, as we have already intimated, a need for recognition, perhaps in the Commons itself, that the Assembly has something to offer at this important legislative stage. After all, the Assembly has the responsibilities for bringing transparency to policy making, for monitoring the way in which services are delivered in Wales, functions which now have moved from the Commons itself to the Assembly. Accordingly the experience of that political dimension rests with the Assembly and yet Parliament is the body that is asked to make the new rules, the necessary changes, therefore Parliament needs the experience of the Assembly and needs to draw upon that in some kind of structured formal way so that the Assembly itself feels that it is, in fact, part of the process of developing something which it itself has to see delivered.
(Professor Patchett) The Modernisation Committee has been favouring pre-legislative scrutiny and earlier preparation of Bills and opportunities for feeding into the formulation of the Bill before it ever reaches Parliament. There can be no argument that is a beneficial change. Certainly Wales would benefit from that, as I think happened on the Health Bill. It is one thing for governments at the moment to make a declaration that this is a desirable objective, when push comes to shove I wonder whether pre-legislative scrutiny on a grand scale is a realistic way forward. It changes the way in which the planning of the Government's legislative programme has to be discharged. It means that governments cannot with certain pieces of legislation move them at the timetable that governments would desire, they are controlled by factors outside their control somewhat when they pass it over for external scrutiny. It extends the timetable of the whole process. It may be that governments will find that this kind of procedure has to be restricted to a number of circumstances every year. Certainly I would have argued that if any Bills justified this kind of treatment the Welsh ones would come high on that list and one would hope that would take place. At the moment you see the pre-legislative scrutiny that took place on the Health Bill was a Wales only Bill. How far is Government going to allow more controversial combined pieces of legislation to go out for pre-legislative scrutiny in this kind of way, that remains to be seen. If, as I suspect, Wales only Bills are going to be relatively few, this is not going to make a significant contribution to what we are striving at.
(Mr Osmond) Can I just make another addendum of a more political kind which is simply that going down that route, which would be plainly desirable from a democratic point of view, to rephrase what Keith has said, how likely in a sense is it the government will supply the opposition with more opportunity to oppose. The reality is that governments undermine at every hand opportunities for opposition to oppose. I just point you to one example which happened in relation to health again here in the Assembly. Probably the most important and controversial piece of legislation which was pushed through by the administration here was on the reorganisation of the health service, which all of you will be familiar with and have your views about. The fact of the matter is that particular piece of legislation was forced through without the Assembly having a chance to scrutinise it at all. You know the history. Initially there was to be a Wales only Bill, within a matter of weeks that became an England and Wales Bill. Far from going to the Assembly first, after all this is a major piece affecting just Wales only, this bit anyway, it went to the House of Commons and was dealt with on Second Reading. On the day it was dealt with the consultation that the Assembly Government here went through, a large piece of consultation, 500 pages, was lodged in the House library on the morning of the Second Reading debate. One of your colleagues had a researcher go through it in a matter of hours on the morning. Now that seems to me more likely to be the way that legislation affecting major pieces of controversial items is going to be dealt with. I think my point is clear.
(Professor Patchett) I do not think we would argue with that but the proof will be in the cooking of the pudding, of course. It will be very interesting to see how distinctively different pieces of legislation are that have gone through the pre-legislative scrutiny when they actually appear. Will this have the reality, the bite, the capacity to introduce new thinking and new ideas or will the lead ministry continue to dictate and confine the changes to perhaps the more cosmetic, we do not know, and that remains.
(Professor Patchett) By grouping them together you allow perhaps the integrated Welsh dimension to be approached during the parliamentary process. It is much easier to understand the impact of legislative change if the related provisions are focusing upon one jurisdiction and follow each other in some kind of orderly and systematic way. That helps everybody in the process of analysing a piece of legislation and debating it. For those who come subsequently to use it it is a godsend. This is the great advantage of the kind that David Miers and his team were suggesting. I do not think I would dissent from anything that he said in that regard.
(Professor Patchett) Certainly I would like to see the Explanatory Memorandum always have a Welsh section to it. Even when it says there is nothing unique in this legislation as it applies to Wales it would be very helpful. In fact, to have an Explanatory Note explaining precisely how these provisions impact on Wales, where they differ and perhaps even why they differ, would be of great help to those who are trying to work their way through a new piece of legislation and something that is new to them. There are certain difficulties in combined legislation in putting English provisions in one Part and Welsh provisions in another, even using the referential mechanism that David Miers was talking about, because there is always the possibility that debate may wish to diverge the content of one from the other. It is feasible, of course, then to say "Section 12 applies to Wales with the following modification which has been put in by amendment" but governments do not like this, I think. If there is to be a uniform provision in their view, they would like the single provision in one place and allow that to be debated and completed in one particular circumstance. One of the functions of Parliamentary Counsel is to help those who are presenting legislation to do it in the most efficient way for getting the legislation through in the way they want and this division process might be resisted somewhat because it rather diffuses that possibility.
(Mr Osmond) Again, it also gives the opposition two chances of opposing and what government is going to want that to happen.
(Mr Osmond) I agree it is something to be applauded, I just ask how likely is it to be sustained in a systematic way. Let us hope it is.
Chairman: That is anybody's guess. At least they have started.
(Professor Patchett) They are certainly important guidelines which one would very much like to see adopted and implemented as a regular routine. They are criteria by which new legislation should be assessed, both politically and legally. I would like to see at every stage in the process of developing a piece of legislation and putting it before Parliament that questions were asked as to whether these principles had been fully accorded and if they had not been some kind of explanation of why they were not felt appropriate in those circumstances, which in some cases may be the case. As indicators of the right kind of relationship between a devolved authority and Whitehall or Westminster they do seem to me to be very much on the appropriate lines. One of the problems about this, of course, is the question of enforcement, to ensure that ministries comply with them. David Miers quite correctly said that they would have greater strength if they were incorporated in a concordat or Devolution Guidance Note, and I would certainly favour that. It would be very helpful if those things were articulated perhaps even in the Explanatory Memorandum when those principles had not been accorded.
(Mr Osmond) I would not want to depart from one word that has been said because I agree that it would be desirable but I think it would be interesting for you to ask Whitehall departments and parliamentary draftsmen have they heard of the Rawlings principles. On the answer to that question you might get the likelihood of their being applied in a systematic way. Hopefully as a consequence of the recommendations from your Committee they might have some purchase. What strikes me, to be fairly brutal about it, is reading them purely from a lay point of view, if you read through them and say if these were applied wholeheartedly, fully, with all the kind of discretion that seems to be implied by the words that are written there, as has already been intimated, you here would almost have primary legislation by the back door. How likely is that to be contemplated? In any event I do not think it is desirable to have legislation made in that way, by the back door, let us make legislation by the front door, please.
(Professor Patchett) When the process has been carried out of looking at a draft piece of legislation I would like quite formally for these criteria to be applied to that legislation by the bodies charged with the function of pre-legislative scrutiny. To some extent this, I think, was what happened with this Committee looking at the NHS Bill, there was discussion about the division between primary and secondary legislation, for example. Systematically I would like to see the other principles applied: "have these considerations carried weight in the preparation of this Bill that we are asked to look at at this early stage". It was suggested earlier on that this is the time when more change is likely to be made to the legislation and from a public standpoint it is perhaps as good an opportunity as any for applying these principles in a way that might have effect.
(Professor Patchett) Not necessarily. It really depends on the nature of the frame within which the legislation is being authorised. If the policy which is to be fulfilled by the secondary legislation is spelt out with some degree of particularity, if the limits which constitute the frame are designated with some reasonable precision, then the Assembly gets freedom of action but within a well defined area and, of course, they are subject to initial control if they exceed those limits. I think it would be highly improbable that any government would give framework legislation in the field of education but it may be quite feasible, as happened in the education legislation, to give them freedom of action in relation to development of the curriculum or in relation to alternative methods of testing children in the later stages of secondary education. There is no reason at all why, as has happened within the education legislation, that kind of principle cannot be carried across to other areas.
(Professor Patchett) I have never been a fan of Henry VIII powers, I have to say, because I find them, as they have been used in the past, distinctly undemocratic. That the executive should have powers to alter the will of the legislature always stuck in my throat a little bit. I went along with these fairly grudgingly at the beginning because they were often mechanistic and they dealt with consequential matters and minor changes and so on, but we are gradually seeing this become an executive tool of some significance. I am not happy about the extension of that. On the other hand, as David Miers was suggesting, the Assembly context puts a different picture upon it because the very controls that do not exist to a reasonable level in London do exist here and therefore there are safeguards that could be, I think, reasonably effective. It is not as if any government would turn around to the Assembly and say "You can have full powers to amend and repeal any legislation at all within a broad area". It is highly probable, I would have thought, that these powers would always be confined within the framework of a particular piece of legislation and therefore be limited to use in relation to the objectives and purposes of that piece of legislation. That being so, again there are safeguards of judicial review and there are the Assembly's own procedural safeguards. It worries me less, oddly enough, in relation to the Assembly than it does in relation to Parliament.
(Mr Osmond) Can I just add to that consideration of where the logic of the argument is leading us because Henry VIII powers, of course, are embodied in the Rawlings Principles, a basic part of them in actual fact. If one takes the view that as a general rule of actually conducting our affairs in terms of making primary legislation it is not desirable to use this method. Let us be upfront about what we are doing is what I am saying, that helps us to make the point. If for the Assembly in its current form even to work effectively and so on requires this kind of discretion to be built in to make the system work, and this is not actually a terribly desirable route, is that not sending us a pretty loud message.
(Professor Patchett) I doubt very much that there is one single mechanism which would fit all circumstances and I doubt very much whether Parliamentary Counsel would go along with that. They are showing a little bit more consistency as we have heard in some of the ways in which this is being approached. In order to accommodate very different kinds of circumstances in different types of legislation different kinds of mechanism may be necessary. For example I am not sure that the same mechanism will be appropriate in a big piece of legislation where there are huge chunks of legislation applying to Wales exclusively in comparison with a piece of legislation where only one provision has any application in relation to Wales. Therefore the drafting of the latter may be of a different nature and perform a function quite adequately and cause no problems of comprehension whatsoever. What we want is greater consistency in relation to treatment of the difficult, complex, controversial pieces of legislation where the English and Welsh provisions have tended to be intermingled making it extremely difficult to sort out the pieces of the jigsaw.
(Professor Patchett) Certainly one would like to see a more logical way in which these things are arranged but we are starting from where we are at the present time and the powers that have come to Wales have come in very different forms over a long period of time. The process of devolution in some respects has been an accidental transfer of different ranges of powers. What one needs very often is a reconsideration and a reintegration of these powers into a more coherent pattern. I heard David's argument about restatements and this is wholly desirable but I am not sure whether readily implementable in the order of priorities of resources. Some greater coherence is required wherever possible in rationalising the way in which powers have been transferred in order to get a better integration and the removal of what appear to many of us to be unnecessary exceptions.
(Professor Patchett) Certainly if we are looking forward that is right for changes in the future but we are lumbered with a chained elephant at the moment which blunders around the Statute Book and causes mayhem for the ordinary user. It is getting that part of the process into a more orderly form which will make life easier for those people who have to work with it.
Chairman: Thank you very much indeed for coming along. It has been very useful.
MR SANDY BLAIR, Director, Welsh Local Government Association, examined.
(Mr Blair) I shall be most happy to comply and respond. Would it help if I just make some very brief introductory remarks. I will not take up much of your time.
(Mr Blair) I just want to thank the Committee for its invitation to the Local Government Association. We welcome that opportunity. I want to apologise also two fold. One for the fact that a few communication glitches between us meant that you did not have the "benefit" of our written contribution until this morning I understand. I am not suggesting that is something I want to rely on to any great extent. I think there are perhaps just two or three sections in it which are germane to the core of your inquiry. I would like, however, to pass on the apologies of the leadership of the Association. You will gather that the date today clashes with their partnership meeting with the Assembly and I have left them in Merthyr Tydfil where they are with the First Minister and the Minister of Finance, Local Government and the Communities. I have to say that the special position of Parliament is pretty important to local government in Wales. What I hope that you might wish to concentrate on are some of the issues around consultation on draft Bills which we have found helpful to date but realise is a developing practice. Perhaps we can talk a little bit about some of the constraints on the Assembly's current responsibilities for local government. I have just heard the end of the previous evidence and your questions, the scope for seeing if there is any way of perhaps, shall we say, easing some of the constraints which exist at the moment without undermining the absolute privilege of Parliament. Really without further ado, I can refer to things but if there are questions which you have specifically got I will be most happy to try and answer them.
(Mr Blair) I think local government sees a very interesting balance, and in fact this is how we work as an Association because all my member authorities are members of both the Welsh Local Government Association and the England and Wales Association. The Welsh Local Government Association has autonomy over Welsh policy issues but clearly that starts in so far as it stems from statute from the role of the primary legislature. The way we operate is to try to rely fairly extensively on the Local Government Association in London to work with us on legislation which is England and Wales wide but to identify from time to time obviously those issues which are specifically of interest to Wales. I have been asked to concentrate on secondary legislation and I have to say that whilst it is very new, it is new to us as well, the opportunity to work with the devolved administration on the intensive development of secondary legislation and guidance is proving I think a rich and rewarding opportunity to improve the governance of Wales. We are learning how to do it and how best to use the time, but I think that is very positive. When we come back to the relationship between primary and secondary legislation, the early stages that we have seen in the last couple of years of the concept of the draft Bill, the concept of the draft Bill being examined both by yourselves and the Assembly, that is something we welcome but we recognise that maybe there is a bit more to be done about the business arrangements to be sure that things fit well together. I would say that is our general approach.
Chairman: Thank you very much. A couple of more specific questions. Hywel.
(Mr Blair) I am afraid you have me at a disadvantage in that I have not actually read the Guidance to which you are referring. Just listening to your description of it I would have thought that local government would wish the Assembly to have an opportunity of commenting on anything that affects local government given that it has devolved responsibility for our financing and for the overall arrangements for local government. I would have thought that if there are aspects of Bills that are handled by non-devolved departments, non-devolved ministers, but which have an impact on the way we relate, and there are one or two examples around things like the different regimes for best value between police authorities and local authorities who are both subject however to a partnership arrangement responsibility, there are probably things that one would expect. I understand that there has probably been some discussion around the wording of these notes and I do not know whether they are yet finally published but I would hope that when they are finalised they would cover the whole spectrum of responsibilities that are carried out in Wales even though not necessarily covered by the devolution settlement.
(Mr Blair) I cannot say that we have yet established any formal process inside WLGA at least to examine all prospective legislation. We are greatly indebted to the LGA to do this. We have regular discussions with them about how to alert them to things that just might be handled differently here. I think we would probably start from the perspective of identifying areas of core service activity where there is already a degree of policy divergence, so that if there are then proposals for primary legislation that might impact on that then we would see that as a first touchstone. I think the second thing probably that we need to do is to ensure that whenever they, on our behalf, are examining any area of non-devolved legislation, where there are relationships with local government, then again we need some kind of alert system, which we are trying to build into our processes and we sincerely hope that the Assembly in their developing relationships with the Whitehall departments are doing likewise. The extent of dialogue that goes on between officials and across the spectrum of local government in Wales to my mind is extremely healthy. No-one, of course, is capable of spotting everything but we do our best to try and share things, spot them, to network, and it is amazing sometimes where these things emerge from to say "have you spotted that?"
(Mr Blair) I think that we welcome the idea of there being a set of principles. I think that to a degree we might see them at this stage as being slightly aspirational. There are probably some practical issues to see how they would operate in fact. I only say that because I am conscious that the UK Parliament is sovereign and very mature and has been with us for many centuries whereas the Assembly is very new and it is learning how to do things. It is a great privilege for us to be involved with them and to work with them but I am sure that there is some way to go yet before we quite get that balance right. That is why I welcome the concepts but wonder yet how workable some of them are in practice.
(Mr Blair) I think I had better deal with that in two parts. One is the part where they have got the powers and say that it is clearly important and useful to the governance of Wales that the devolved administration has responsibility for local government and should have responsibility for exercising any adjustments that affect that constitutional arrangement with local government. We are conscious of two or three Acts of Parliament since the devolution supplement which offer Henry VIII powers but not to the Assembly and we find that rather strange. I think we have made specific reference to section 16 of the Local Government Act 1999 and section 5 of the Local Government Act 2000 where the Secretary of State has powers but that is not a power for the Assembly.
(Mr Blair) I am not a constitutional lawyer and it is a long time since I have practised. I think our line would be that we prefer to have certainty in the primary legislation but insofar as the primary legislation does extend the power of the executive to use Henry VIII powers we would argue in our area of activity where they already have responsibility for 98 per cent then they should have the responsibility for the other part as well.
(Mr Blair) I am not sure I would have used exactly the same phrase but I think it is fair to say that in the short time you have had the devolved administration the interface between primary and secondly powers and the arrangements for giving powers have been exposed as being over-complex and potentially conflicting. We would certainly agree that it would be very helpful to establish a more coherent arrangement and if the Law Society suggests that there is a logic for that then who am I to dispute that? What I do think we are saying, and I think that if my members were here they would be saying, is whilst we support wholly the devolved approach, whilst we support wholly that local government is a devolved matter, we would not wish at this stage, until things are more certain and there has been more experience, necessarily to take matters much further and, therefore, we are very conscious of the sovereignty of the UK Parliament. I hope it is a sensible if rather inadequate suggestion that we have put at the end of the paper, that there might be some way in which additional powers could be extended to the Assembly but with some kind of conditionality around the permission of Parliament. We are wondering whether or not there are ways of using some of the resolution processes of Westminster to allow for greater activity by the Assembly but still showing allegiance to the overall sovereignty of Parliament.
(Mr Blair) Yes.
(Mr Blair) I hope you did not think that the shortness of the replies was undermining your importance.
Chairman: Absolutely not. Thank you.