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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 551-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE WELSH AFFAIRS COMMITTEE
Government White Paper: Better Governance for Wales
Tuesday 18 October 2005 MR ALAN COGBILL, MR CEDRIC LONGVILLE, MS ZENNY
SAUNDERS, PROFESSOR RICHARD
RAWLINGS, PROFESSOR DAVID MIERS, Evidence heard in Public Questions 1 - 63
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Welsh Affairs Committee on Tuesday 18 October 2005 Members present Dr Hywel Francis, Chairman Mr Stephen Crabb Nia Griffith Mrs Siān C James Mr David Jones Hywel Williams Mark Williams ________________ Witnesses: Mr Alan Cogbill, Director, Mr Cedric Longville, Legal Adviser, and Ms Zenny Saunders, Head of Legislation and Strategic Policy Branch, the Wales Office; Mr Hugh Rawlings, Director, Local Government, Public Service and Culture Department, Ms Kate Cassidy, Head of Policy, Constitutional Affairs Unit, and Mr Keith Bush, Legislative Counsel, the Directorate of Legal Services and Airbus UK, Welsh Assembly Government. Q1 Chairman: Good morning. May I welcome you to the Welsh Affairs Committee and ask you to introduce yourselves, please. Mr Cogbill: Certainly. I am Alan Cogbill, Director of the Wales Office - a role I have held since the middle of last month, so I fear members of the Committee will prove to be much better versed in what we discuss today than I am. On my right is Hugh Rawlings, who is a director in the National Assembly for Wales. I can say a little more later about how the Wales Office and National Assembly are working together on this. Beyond him is Kate Cassidy, who, as head of the Constitutional Affairs Unit within the National Assembly is, in effect, the manager for the project for the new Government of Wales Bill, following the White Paper, and Keith Bush, who is from the Assembly's legal services. On my left is Cedric Longville, who is legal advisor in the Wales Office, and Zenny Saunders, who is the head of the policy legislation team responsible for the Bill and, before that, the White Paper. Q2 Chairman: Could I begin with a question on the interrelationship between the White Paper and the proposed Bill. Which one of you will be the team leader when the Bill is published? Will it be run from the Wales Office or from the Welsh Assembly Government? Mr Cogbill: The team leader will be Kate Cassidy. We have in place an arrangement under section 41 of the last Government of Wales Act which enables the Assembly's officials to act for other public bodies, and they will be supporting the Secretary of State for Wales and the Wales Office. So it will be the Secretary of State for Wales' Bill, and the Wales Office will provide support, accountable to me, but we shall enjoy the help, advice and a substantial amount of the major work of supporting the Secretary of State and ministers here from colleagues in the National Assembly. Q3 Chairman: The White Paper sets out the Government's proposals for a new devolution settlement for Wales. Why was it not possible to produce a draft Bill, which would allow for greater pre-legislative scrutiny and for a more collaborative approach to refining the devolution settlement for Wales? Mr Cogbill: There is one strong reason why it was necessary to proceed in this way, and there is something I would like to say as to why I think that will not disable parliamentary scrutiny. The compelling reason was that the intention is to give effect to the proposals in time for the new Assembly to be elected in 2007 and to come into existence on a reformed basis. That entails having Royal Assent legislation during 2006. The White Paper was published early in the present Parliament, so the total interval available would not have allowed time for a draft Bill. The reason why I think that will not disable parliamentary scrutiny is that it is worth remembering that the Bill is essentially enabling and empowering, and for the most part, to the extent that they do not restate with modifications parts of the former Government of Wales Act, will have provisions for Orders in Council to confer greater legislative competence on the Assembly, and, ultimately, possibly after an affirmative vote in the referendum, to confer primary legislative competence. But those are subsequent stages and there would be ample opportunity for parliamentary scrutiny at each of those successive stages. Q4 Chairman: When the Bill is introduced, will it be a brand new Bill that draws together the Government of Wales Act 1998 and the proposals in the White Paper, or will it be in the form of an Amendment Bill? Mr Cogbill: It will be offered as a coherent and freestanding Bill which restates, with necessary qualifications, things from the previous Government of Wales Act, so that you will be able to go to the new Act and find everything there in a self-sufficient way. That is the contention. Q5 Chairman: The 1998 Act is generally considered to be a complicated Act and sometimes confusing to digest. If the Government introduces an Amendment Bill, how will you be able to ensure that it will represent clear legislation that is accessible to the lay reader? Mr Cogbill: That is the primary motivation behind our intention that I have just mentioned to produce a coherent and freestanding Bill. That will repeat, in some measure, with very slight modifications, material from the previous Government of Wales Act. But we would not want to make small textual amendments, so that only by looking at the 1998 Act could you understand the effect of the new Act. It will be intended to be a cornerstone piece of legislation which will be accessible to everyone. Q6 Mr Jones: Mr Cogbill, the White Paper says that the terms First Minister and Assembly Ministers will be enshrined in the statute. Will the terms National Assembly for Wales and Welsh Assembly Government also be similarly enshrined or will there be some other expressions used? Will there be powers for the Assembly to change their names if they seek it at some later stage? Mr Cogbill: I envisage that the Bill will start rather as the present Government of Wales Act does, saying that there shall be an Assembly for Wales to be known as the National Assembly for Wales. To the extent that that reappears in the next Bill, it will establish the name of the National Assembly. One of the things which the National Assembly plainly will not have power to do is to modify the new Bill once enacted, because that will be a foundation document for it and its role and powers and so on. To that extent, that will be set in statute. Q7 Mr Jones: The First Minister, I see from the Bill, will be appointed by the Crown on the nomination of the Assembly. Will the Assembly feel they have the power to dismiss the First Minister; for example, on a vote of confidence or in some other way? Ms Cassidy: We envisage that if there were a vote of no confidence in the Welsh ministers (ie, the whole collective Cabinet) that would trigger a process where the ministers would resign. But clearly there has to be provision for one minister to carry on in office, because the officials who are acting derive their authority from the minister. We therefore envisage that the First Minister would remain in office until he was replaced but the very act of a vote of no confidence would have triggered the resignation of the rest and would trigger the process for identifying a new First Minister. Q8 Mr Jones: The White Paper appears to be giving the Assembly a greater role in conducting its own affairs in relation to its Committees. Would there be sufficient flexibility built into the system to allow for the Assembly to choose for itself how best to scrutinise the Executive in Wales? Ms Cassidy: Yes. Mr Cogbill: One of the criticisms made of the present Act, I think rightly, is that it is somewhat too prescriptive and rather inflexible about matters which ought really to be in the competence of the Assembly to adjust. So that is its intention. Mr Rawlings: Of course one of the criticisms of the 1998 Act is the requirement that the relevant minister should be a member of the subject committee and the intention is that that requirement will be deleted. So committees will be able to take evidence or call ministers before them, but those ministers will not be members of the committee. Q9 Nia Griffith: I would like to talk about the implications for staffing. You talked about a formal split between the staff who service the Welsh Assembly Government and those who service the Assembly. How will the Bill reflect the potential for increased staffing resources? Linked to that is the whole enhancement of the role of parliamentary scrutiny. Again, there are going to be implications for parliamentary service, and, again, how is the Bill going to address these issues of the increased need for resources in staff? Mr Cogbill: In part this is about defining the roles separately of people who will be supporting separately the Government in the Assembly and the Assembly itself. It is a fair point that any increase in the volume of work through the Assembly - and if it is legislating in new areas, that would be new work - will require some modest staff addition. Mr Rawlings: I think to some extent this is a question of staff training for members of AGS, because, just as the Assembly will become more clearly and overtly a legislative body than it has been hitherto, so the staff support for Assembly members will need to reflect that. As I say, that may require some additional training provision for them. Q10 Mark Williams: I am turning now to the Standing Orders. The White Paper talks about the Secretary of State taking power to make a new set of Standing Orders for the Assembly. What is the rationale behind the Secretary of State presiding over that process? Why is that the case? Of particular importance, what is the role of the National Assembly in those discussions and in that process? What would be the role of the Welsh Assembly Government in that process. If they are to have a role, does that not raise the spectacle possibly of a clash of interests? Mr Cogbill: I think your last question illustrates the reason ultimately why we felt it right that the Secretary of State should have the power to make the Standing Orders, that ultimately there needs to be the possibility of someone away from the proceedings themselves deciding. There has to be a capacity to press to decision on what Standing Orders should be. That is the reason why the Secretary of State is there, to make the Orders. The Secretary of State would be advised what Orders he or she might make. Our expectation is that certainly the present Secretary of State would rely heavily on advice from the Assembly, and, if there were agreement within the Assembly, I think it extraordinarily unlikely that he would want in any way to modify what was coming forward from the Assembly. I think that probably deals with the clash of interest point as well, that we would look, first of all, for the dispute to be resolved within the Assembly and then the Secretary of State would be there to be able to decide if it was for some reason not reconcilable. Ms Cassidy: Clearly, it is the Secretary of State's Bill and he would want to see it through. He would want to see that the final bit of the jigsaw there is put in place properly, because an Assembly cannot function properly without Standing Orders that reflect the content of the Bill. But if the Assembly itself is able to agree what sort of Standing Orders it should have, then, from statements that have been made in the Assembly reflecting discussions with the Secretary of State, I do not think the Secretary of State would have any objections to taking the view of the Assembly and taking what the Assembly wanted. If the Assembly was agreed on what it wanted, then I think the Secretary of State would want to accept that. It has to have substantial support clearly from the Assembly. That is one of the points in response to the consultation, is it not, that representations were obviously made that the Assembly should have a say in the shaping of the Standing Orders after 2007? Mr Rawlings: I think it might help the Committee if they were to distinguish between the drafting or the preparation of the Standing Orders and the formal making of them. The Secretary of State I think would be expected to make them but the extent to which he would be involved in the drafting or the preparation would be, I suppose, in inverse relationship to the degree of agreement in the Assembly. If there was a full degree of agreement, then the Secretary of State's job would be very easy. Mark Williams: Thank you. That clarifies the situation, particularly that last comment. Q11 Chairman: If there is a difference of view, at the end of the day the Secretary of State will respect the will of the Assembly. Mr Rawlings: If there is agreement in the Assembly, then the Secretary of State, we anticipate, would want to make the Standing Orders very much in line with that agreement. The overriding concern is that there must be a set of Standing orders available to the Assembly from the beginning of the new regime. Q12 Mrs James: In my question I would like to concentrate on the memoranda of understanding. Currently Government departments have a series of memoranda of understanding between themselves and the National Assembly. Would a new set of memoranda be needed to reflect the new settlement? Would there be a need to have separate ones between government departments and the Assembly as well as the new Welsh Assembly Government? Would those memoranda of understanding be put on a statutory basis? Mr Cogbill: I will answer the last question first, if I may. No. These are essentially administrative arrangements between departments and the devolved Government. Perhaps I could ask Keith to elaborate. Mr Bush: It is undoubtedly the case that new memoranda of understanding or concordat (however you choose to call them) will be required. For example, one of the things that the present memorandum of understanding deals with is consultation on the part of the UK Government with the Assembly Government in relation to legislative proposals that will affect Wales. If the Assembly acquires enhanced legislative powers, clearly that will become a two-way street instead of a one-way street, as it were, so there undoubtedly will be the need to revisit the memoranda and to revise them. They will continue as they are at the moment to be essentially memoranda as between the two executives; in other words, between the Assembly Government and the UK Government, dealing with the day-to-day running of government in relation to Wales and the UK respectively. They are not legal documents (in the sense that they explicitly say they are not binding in law), and for that reason it will neither be necessary or appropriate that they will be referred to on the face of the legislation. Q13 Hywel Williams: I would like to ask you some questions about Orders in Council. The White Paper provides that Orders in Council relate to "specific matters or within defined areas of policy within the fields in which the Assembly currently exercises functions." Does this phrase describe the current scope of the devolved fields (with the possibility that others may be added) or to prescribe that they shall not extend beyond those set out in schedule 2 of the Government of Wales Act 1998? Mr Cogbill: The White Paper had an architecture of three stages. Stage 1 was possible now, under current law, which was the proposition in new Bills of framework provisions, which would give the Assembly greater legislative discretion in the application, whatever the main Bill said. There is an example of what we have in mind there, published last week in the NHS Redress Bill: in clause 17 there is a provision which is a framework provision, and that I think begins to set out how we see enhanced competence for the Assembly coming into being and the kind of broad restrictions that would apply: for example, no tax raising power; no new criminal offences. That is stage 1 of the architecture. Stage 2 is to enable Orders in Council to be made, subject to affirmative resolutions in both Houses of Parliament, which would confer a legislative competence on the Assembly to make measures in areas where now there exists an executive competence which has been conferred on the Assembly corporately by transfer of functions Orders to date and other pieces of legislation. The intention behind the second phase, which applies from 2007, is that we will take that whole range of single executive powers and try to build upon them a categorisation, if I may put it that way, so that, as of now, there is specific statutory reference and that power has gone to the Assembly as an executive power. Within the fields you mention, we should construct some general headings within which the Assembly, subject to the Order in Council, would be able to legislate, so to make a more coherent legislating power, if you like, by Assembly measure. Then there would the third stage, which would be after an affirmative resolution, which would be for primary competence. But the answer to what you are driving at is that we will take the present executive powers, and any others that may be added over the next couple of years, and construct upon them a series of categories within which the Assembly would be given power. In each case, that extension would be by Order of Council and that would be subject to affirmative resolutions in both Houses. Q14 Hywel Williams: Will it be possible for individual Assembly members (with the agreement of the National Assembly) to initiate requests for Orders in Council? Will Assembly committees also be able to do so? Mr Cogbill: Yes. The fate of any such request will no doubt depend on the degree of Assembly support, the degree of Assembly Government support and the view of the Secretary of State. But, yes, we do not see any need to restrict it. Q15 Hywel Williams: Paragraph 3.33 of the White Paper states that the Government believes that "Parliament will continue for at last some years into the future to enact 'Wales-only Bills' at the request of the Assembly." Can you explain the differences in legislation that would need both Orders in Council and Wales-only Bill for the next few years? Mr Cogbill: I find that quite hard to explain, because, as Nick Angel was reflecting last night on the Transport Bill, that is the kind of thing which certainly potentially could be dealt with under the proposed Order in Council procedure and by way of Assembly measure hereafter. I think the point we are making here is simply that it will be some time before the new regime established under Orders in Council will come into place, and obviously we cannot have an interruption in the flow of necessary Wales-only measures. So there will be a mix of the two, but there will not be any fine distinction between the two kinds of legislative process. Mr Longville: I think there may be occasions when the Wales-only Bill will be needed because it will cover non-devolved matters as well as devolved matters. Mr Cogbill: Indeed. Mr Rawlings: I think too that the White Paper is at pains to make the point that what is being done here is a rebalancing of the legislative capacity or contribution made respectively by Parliament and the Assembly to the law in Wales. Simply because there is a proposal for enhanced legislative competence for the Assembly should not be allowed to blind one to the fact that Parliament will continue to make law for Wales. In a sense, paragraph 3.33 is just reiterating that point. Q16 Chairman: Stage 1 of the new legislative proposals, as I understand, will give Wales greater legislative discretion, but how is this going to be monitored by UK government departments? There is a feeling today that there is some degree of inconsistency of understanding - and that is putting it at its most generous, I suppose - by UK government departments of what the nature of devolution settlement currently is. Ms Saunders: I would outline some of the processes we are going to put in place to pass the message on about the new legislative process. We are putting together what we call a Devolution Guidance Note which goes out to all Whitehall departments. The Secretary of State is currently seeking clearance on that and it will then go out. That will be like the bible or the first pages to which any government department will turn in looking at how to engage Wales in any legislation that they are bringing forward. Kate gave a presentation to a Whitehall contacts group to pass over the message initially. We are also engaging with the devolution unit based in the Department of Constitutional Affairs, and they will help to spread that message as well. On top of that, we have set up a legislation branch within the Wales Office as a focal point for any government department, so that they know they have one unit to contact if they need any advice, and there is a similar unit established within the Assembly that can give advice internally and also externally to government departments. Ms Cassidy: That is right. The Constitutional Affairs Unit in the Assembly Government is also liaising with departments in the Assembly that have an interest in England and Wales legislation, to discuss with them what they would be looking for in the Welsh clauses of those Bills. Q17 Chairman: There is a lot of information there that is very helpful. Could that be summarised into a statement ensuring that the approach would be included in the explanatory memorandum to the Bill? Ms Saunders: It is rather an internal working practice. This is what we are going to set up at the moment, but you may find in time that we develop different ways of engaging with Whitehall departments. We could put a general note out as to the set up that we have at the moment, but that may develop in time. Ms Cassidy: Of course, that is a stage that will not be included in the Government of Wales Bill because the Government of Wales Bill will be dealing with separating the Assembly, giving it enhanced legislative competence and setting the framework for a referendum on primary powers and primary competence. But the business of giving framework clauses in individual bills is something which is already in train. As Alan has mentioned, the NHS Redress Bill is a recent example. Q18 Chairman: I think I understand everything you have said, but it sounds to me as if we are talking to lawyers. You made the point at the very beginning that it is important for all this to be clearly understood by the public. An internal memorandum is one thing but how this is perceived and understood by the people of Wales is something altogether different. Do you get the drift of my question? Mr Cogbill: Yes, indeed. I smile, only because this is a bit of an issue for England and Wales' legislation. I used to have some dealings with the Law Commission who had exactly that set of concerns about how the people were supposed to understand what the statute book was at any point. We cannot get over the fact that if you have different bodies passing legislation applicable to different parts of the United Kingdom there may be a difference of approach, there may be an inconsistency, if you like, but that is inherent in the idea of devolution. If you are asking, "Is there any one place you can go to?" then, presently, if you try to work out what executive powers the Assembly has, you can start with the transfer of functions Order (which runs to about 30 pages and is quite hard to follow) and that is not even a comprehensive statement of law. I think I am saying that you are on a point which is, if I may say so, a very good point about the body of law in any part of the kingdom; I do not think it is one which we could offer to solve by simple memorandum. I think it is something where we expect legislation, as far as possible, to be created by those responsible in a way which allows you to see the cumulative impact. To take one example: our thoughts about Orders in Council for enhanced legislative competence of the Assembly are that those should work in a way which steadily assembles a schedule to the Bill, so that you do have a code, if you like, of what has been conferred on the Assembly. I think there are a number of things we can do which make small steps in the direction you mention. Ms Saunders: The measures that I was outlining just now are for internal use in engaging other departments. When the Bill goes through we will look at how much information we can put out to the public on our websites, both the Wales Office website and the Assembly website. We will look at what guidance can be issued at that time. Q19 Mr Crabb: Returning to the theme of Orders in Council, could you provide a bit more detail on the Orders in Council procedure and particularly on how those Orders will be scrutinised here at Westminster. Will it be a simple yes/no approach or will there be opportunities for Orders to be amended before they are approved? Mr Cogbill: Ultimately there will be an Order which is not amendable, but plainly it is our intention that there should be full scrutiny of the draft of that Order in every case. How Parliament chooses to scrutinise such drafts is a matter for you as parliamentarians, and I do not want to presume to lay down any principles around that. The Secretary of State is quite clear that in every case there will be a draft. I would imagine that this Committee, for instance, would have a substantial interest and would play potentially quite a key role for Parliament as a whole in examining in some depth what was in that draft Order. Mr Longville: The only constraint is that if amendments to a draft Order were agreed, then they would have to be approved by both the Assembly and by Parliament. For instance, if the draft started its life at a meeting of the Assembly and was approved at the Assembly, and then as a result of pre-legislative scrutiny it was thought appropriate to amend that draft, the draft would need to go back to the Assembly for approval - as well as parliamentary approval of course. Q20 Mr Crabb: Envisaging a case where the Secretary of State were to refuse an Order in Council, the Secretary of State would then write to the Welsh Assembly Government informing them of that fact. Would it not be more appropriate if he or she were to write to the Presiding Officer? Ms Cassidy: It is government to government communications. That seems to be the appropriate way of maintaining it. The Secretary of State would normally write to the First Minister on anything. Mr Bush: I think the thinking would be that it would be a duty on the First Minister then to lay the Secretary of State's reasons before the Assembly. The First Minister would be conveyed the information from the Secretary of State but it would be going pretty directly to the Assembly so that they could consider the reasons given by the Secretary of State. Mr Rawlings: I hope the First Minister and the Secretary of State would not regard this as disparaging, but it is a sort of post-box operation: the Assembly makes a decision; the First Minister will convey that message to the Secretary of State; the Secretary of State responds to the First Minister, who then informs the Assembly. Q21 Mr Crabb: Has anyone in Government undertaken an assessment of how many Orders in Council there might be in the course of a year? Mr Cogbill: We have tried, but it is a matter of speculation. You could look at the number of Wales-only Bills which might have been suitable for treatment under an Order in Council. You might think that would end up at perhaps three or four a year - more initially, I suspect. The effect of Orders in Council would be cumulative. I think we would expect more in 2007 and then eventually we would go over a peak and have a diminishing number. But it is very difficult to go much beyond that. Mr Rawlings: I think the working assumption is that an administration coming in after an Assembly election would come in on the basis of a manifesto or an agreed programme for government and that might generate early requests for Orders in Council in the first half of the Assembly and then the second half of the Assembly will be delivering the measures authorised by the Orders in Council. Q22 Mark Williams: Just returning to the point you made about notifying the Presiding Officer or the Government, could we reflect on the answer you gave to an earlier question from Mr Williams about individual members initiating Orders in Council. You talked about post-box mechanisms, and perhaps it is worth reconsidering that aspect, in view of where the Orders in Council have emanated. Mr Rawlings: Obviously, we can give thought to that. But I think the point is this: we took Mr Williams's question to mean who would be able to initiate the process for creating an Order in Council. He was probing on: Are you going to limit it to the Welsh Assembly Government? - to which the answer was no. But, whether it comes from the Welsh Assembly Government or from a committee or from an individual member, at the end of the day it would only go forward to the Secretary of State if the Assembly had endorsed it by resolution, and at that point someone has to act on behalf of the Assembly. The fact that the process was initiated by an individual member is, in a sense, neither here nor there, because, once the Assembly endorses it by resolution, the Assembly owns it and the First Minister is acting on the Assembly's behalf in then handling the correspondence. Q23 Chairman: Could I turn to proposals to change the electoral process. Is there a statutory responsibility to consult with the Electoral Commission before the Government undertakes any electoral change at all? Mr Cogbill: Not, I think, in the terms in which you put it. The Government proposed the legislation only about five years ago which established the Electoral Commission in this form. Obviously the Secretary of State wants to hear the views of the Electoral Commission on any change in electoral arrangements and also of course in the quality of the elections and on measures that might improve turnout and public interest and support in elections. I think the answer, strictly speaking, is no, but it does not matter whether he has a duty or not if he wants to hear their views - and, yes, of course he wants to hear their views and consider them. Q24 Chairman: If I could turn to the number of Assembly members. There has been a good deal of debate and discussion about increasing the size of the Assembly in the light of increased responsibilities and powers. Ignoring the merits or otherwise of such an increase, would there be provision in the Bill to allow for such an expansion in membership? Mr Cogbill: We are not proposing that. I believe the First Minister at the time of the White Paper said he did not think there was any necessity to increase the number. Guided by that, the Secretary of State, I think, is not looking to put in a provision which would allow that. Q25 Chairman: Following the consultation, do you have more details about the procedure for triggering a stage 3 referendum? Mr Cogbill: I do not think so. I am not sure what you had in mind procedurally. Ms Saunders: There have been various recommendations made in the process of consultation. I think we had about 82 responses. From that, the Secretary of State will be considering any recommendations he may want to take on. The White Paper is essentially based on a number of manifesto commitments. We do not envisage those changing, but obviously the Secretary of State will be able to update you if he is going to take on any further recommendations. Q26 Chairman: How much detail will the Bill include, given that this will be a post-legislative referendum? Ms Cassidy: Obviously the Bill will translate the commitment in the White Paper, so the White Paper does give a fair bit of detail about the triggers for a referendum and that will be replicated in the Bill. There is also the Political Parties and Referendums Act 2000 which lays down enduring rules about the conduct of referenda, and so the provisions of the Bill will be largely referring to that Act and saying it will be done like that. Q27 Chairman: Some of us are old enough to remember the trauma after the "No" vote in 1979. How will the Bill provide for a possible "No" vote in such a referendum? Ms Cassidy: Clearly the objective of having various triggers for a referendum is that people should be fairly confident that if there was a referendum there would be a "Yes" vote. But if there were a "No" vote, then it would leave the Assembly with its enhanced legislative competence, and we envisage that the Bill would be drafted so as not to rule out a referendum at some point in the future. So there will be no timescales limits set. The effect of a "No" vote would be simply that the Assembly carried on as it was. Q28 Mr Jones: Does that mean there is the potential for a succession of referenda built into the Bill? Ms Cassidy: In reality, remembering that it is not only the Assembly that would have to vote overwhelmingly for a referendum but also the Secretary of State would have to decide that he wanted to put forward a referendum Order, the chances of people wanting to do that again in short order, if ever there were a referendum vote and it failed, we think would be limited by political reality. Q29 Mr Jones: The point I was making is that it is not just one bite of the cherry. The Bill would comprehend the possibility of a further referendum even after a "No" vote. Mr Cogbill: Unless the Bill said: "You are allowed only one referendum on this," that would be the position. But, exactly as Kate says, I think people will reach a judgment, going through the preceding steps to launch a referendum, whether there is any point. The Bill would not seek to prohibit any referendum, after a first one, for all times. Q30 Chairman: Do you feel confident enough to say that the administrative arrangements of the Bill are sufficiently strong and robust to survive a period of political cohabitation? Or are you relying too much on goodwill between Cardiff and Whitehall? Mr Cogbill: The Bill will set out the new powers and procedures and so on and allow the Assembly to gain competencies, subject to Parliament's agreement, and those will then subsist whatever the change of political party that might happen. There is experience of different administrations, different public bodies of different political complexion, working together. If one thinks around England and central and local government, that may not be the happiest parallel, but usually ways are found of doing that. Your question was about administrative arrangements and the robustness of those and the answer to that is, "Yes, we are confident of that." Of course, we cannot remove the possibility of political disagreement; nor would we seek to do so. Mr Rawlings: If one is focusing on the administrative arrangements, the staff supporting the UK Government will be civil servants, as, indeed, will Welsh Assembly Government staff remain civil servants. That may assist maintaining the dialogue, regardless of the political complexion of the respective governments of the day. Mr Longville: In terms of the Order in Council process, the Secretary of State will have to give his reasons if he decides not to proceed with an Order in Council, and it might be rather difficult for him to do that if as a result of pre-legislative scrutiny it was clear that the consultation pointed towards the terms of the Order in Council. Chairman: Thank you very much for your evidence. Memoranda submitted by Institute of Welsh Politics, Professor David Miers and Professor Richard Rawlings
Examination of Witnesses
Witnesses: Professor Richard Rawlings, Chair in Law, London School of Economics, Professor David Miers, Cardiff Law School, Cardiff University, Dr Roger Scully, Senior Lecturer in European Politics and Director of the Jean Monnet Centre for European Studies, University of Wales, Aberystwyth, Dr Richard Wyn Jones, Director of the Institute of Welsh Politics, University of Wales, Aberystwyth, examined. Q31 Chairman: Good morning to you all, welcome to the Welsh Affairs Committee. Could you begin by introducing yourselves, please? Professor Rawlings: Professor Richard Rawlings, London School of Economics. Professor Miers: Professor David Miers from Cardiff Law School, Cardiff University. Dr Scully: Dr Roger Scully from the University of Wales, Aberystwyth. Dr Wyn Jones: Dr Richard Wyn Jones from the University of Wales, Aberystwyth. Q32 Chairman: Could I begin by asking some questions about developing the current settlement through granting wider legislative powers? In paragraph 3 of your paper - and thank you very much for your paper, it is very useful for the Committee - you express fears that government departments will adopt varying approaches towards the nature and extent of delegated powers to the Assembly. What further provision could be included in the Bill, in your views, to ensure consistency in the way Whitehall departments approach the conferment of powers to the National Assembly for Wales? Professor Rawlings: Thank you, chair. Obviously, I heard the comments from officials about the great work that has been going on behind the scenes to try to foster relationships between Assembly officials and Whitehall departments; in answer to your question I do not think it is so much a matter of having something on the face of the Bill, I think it would be very difficult to conceive of having separate provisions on the new Government for Wales Act setting out some kind of principles - that immediately gets you into problems with judicial reviews and so on and so forth. What I think one would be looking at here would be trying to have some more public documentation on how this process is proceeding and, if I may say so, perhaps I could pick up on the chairman's comment which was along the lines of this was all very well but it did seem to be a set of insider arrangements and what about the people of Wales, how would the people of Wales be able to find out what was going on. Picking up on your own suggestion, chairman, I took you to be suggesting that there might be an explanatory memorandum attached to Bills dealing with Wales - perhaps if we have the Sewell convention in Scotland, should we have the Francis memorandum in the case of Wales? If indeed, as I am sure it is, the UK Government and the Welsh Assembly Government is serious about this enterprise, presumably the Committee could press for explanatory memoranda to be attached to each Bill, which would first of all list the relevant clauses relating to Wales and then, secondly, explain how the government's new commitment to consistently permissive legislation has been played out in relation to those clauses. I think that would be a very fine idea, if I may say so, picking up on your own suggestion, chairman. I think it might well concentrate Whitehall minds at an early stage and of course it would help parliamentary scrutiny -for example, this Committee would immediately have a document on which it could seize in terms of scrutiny. Professor Miers: I am very happy to align myself with the observations that Professor Rawlings has made. Our comments in our written submission were in the main prompted by history and the evidence to date that some departments have been less willing to concede to allocate functions to the National Assembly than others. I entirely agree with Professor Rawlings that you would not want to see a statement on the face of the Bill about, let us say, a presumption that departments should, when looking at the functions generally that are exercised by Ministers of the Crown here and new Ministers in Cardiff, always ensure that powers are transferred to the Assembly. In other words, you might want that in the guidance note, you might want that as part of the apparatus, part of the understandings between London and Cardiff, but Richard is right, you do not want that on the face of the Bill. The point on the White Paper that the Government has produced makes it clear that it is its intention to transfer wider powers, and if I might make one observation, I manage a service called Wales Legislation On-Line which is run from Cardiff Law school, with which you may be familiar - I might say in passing that it is co-funded by the Assembly Parliamentary Service and the Welsh Assembly Government. The researchers who work on that service for me have identified, they think, a greater transparency in the way in which Acts now allocate functions to the National Assembly, and I think that is another important feature of transfer. It is not simply transfer of scope - breadth and depth - but also transparency in terms of accessibility on the part of users, broadly speaking, in Wales. There is a marked improvement in that respect. Q33 Chairman: Can we just take the argument a step further? The proposals in the White Paper will necessitate the re-negotiation of the Memoranda of Understanding between Wales and Whitehall. Would it be desirable to use this opportunity to establish them on a proper statutory footing? Professor Miers: The view I have expressed is not provided that it is a public document. Professor Rawlings: Not provided it is a public document and there is a way for this Committee and for other parliamentarians, and of course civil society and Assembly Members, to make sense of what is going on. I think colleagues around the room would share the view that it is one thing for insiders, the officials, to know, but there is a further issue about transparency for the public at large whom you represent, and that is the idea that I was trying to get over with reference to the explanatory memorandum and so forth. Chairman: Thank you. Mrs James. Q34 Mrs James: am going to continue with this theme for a while and I am going to quote from the White Paper to you the statement that "important law-making powers will be given to the Assembly, while the more conventional regulations of an executive character will go to the Welsh Ministers." What provisions do you think need to be included in the Bill to ensure clarity and consistency over which powers will be conferred on Welsh Assembly Ministers, and which to the Assembly itself? Professor Miers: That is a difficult question to answer. Professor Rawlings: You can have some very basic provisions in the Bill and you can have channels and procedures for passing powers to what, after 2007 - I think this is crucial for everyone to keep in mind - will not be one body but two; we will be talking about the National Assembly and we will be talking about the Welsh Assembly Government, the Welsh Administration, howsoever it is designated, whereas of course at the moment we are talking about a single corporate body. One starts there and clearly one can then set up different procedures for allocating in different ways. It seems to me that once again the judgment about which way things should be allocated - and the White Paper here I think talks about "important functions" going to the Assembly as against the Welsh Assembly Government or the Welsh Administration - will be a key issue of scrutiny, both in Cardiff and in London on a continuing basis. It seems to me that it is less a question of what we put in the new Government of Wales Act, it is more the dynamic work that will be done in committees like this to make sure that parliamentarians and elected representatives in Cardiff think that the on-going provisions are appropriate. Let me give you a simple example. We may all have different views about whether smoking should be banned in public places. Question: the Government says that this decision will be devolved to Cardiff; do we think it is appropriate that Welsh Assembly Government Ministers take that decision, or do we think it is appropriate that all the elected representatives of the people of Wales in the Assembly take that decision? It seems to me clear that it is the latter rather than the former; irrespective of what we think about the substance of the policy, as a constitutional issue it seems to me to be so important that it should not be simply a matter for Ministers in Cardiff, it should be for all the representatives in the Assembly. Q35 Mrs James: Thank you. In paragraph 7 of your report you mention the need for a more systematic "devolution audit". Could you elaborate a little further on this, and explain what role you foresee this Committee playing in that process. Professor Miers: That could flow from the observations that have already been made, as I understand what Professor Rawlings has said, earlier this morning. Let us suppose that you have a clear public statement on the relationship between London and Cardiff in respect of how and by what criteria importance will be determined - that will be a difficult matter, but let us assume that you have some criteria, some public statement. It is that kind of statement that provides you with the basis for an audit and, clearly, the greater the degree of elaboration in that statement the more criteria you have upon which to review legislation post the Bill being enacted. If I might add a postscript to Professor Rawlings' last observations on what counts as important, if you look at the history, if you look at what has been transferred to date, it varies enormously from the very, very specific where you might say as a committee that these things are not very important, they are matters that could quite properly be done by Welsh Ministers, to others - and the example that the White Paper itself uses and it has been used often before is the Education Act 2002 which provides the Assembly with a very wide power to make secondary legislation as it thinks fit to give effect to the purpose of that Act. You might think that that scope, that breadth, of potential legislative activity is important, so importance might lie, at least in one dimension, in terms of the scope that is left, the discretion that is left to the Assembly to act. Chairman: Mr Hywel Williams. Q36 Hywel Williams: I want to ask you about the robustness of goodwill between Cardiff and London. Professors Miers and Rawlings, in your paper you express the concern that the success of the proposed transfer of powers by Order in Council will depend on continued goodwill and that might not be sufficiently robust to operate effectively during a period of cohabitation, and there are several variations that I was thinking of earlier on about the differences between the administration in Cardiff and the Government here. What provision could be included on the face of the Bill in order to strengthen the proposed scheme during that sort of period? Professor Rawlings: Again, it is somewhat difficult because one is dealing with different political and administrative conditions, and clearly a major concern must be in relation to so-called Step 2, enhanced legislative competence orders, because whatever the current Secretary of State says about his approach to the drafting of the Orders in Council, nothing that the Secretary of State can say can prevent a future Secretary of State, perhaps a Conservative Secretary of State, taking a rather different view of how those Orders might be drafted, and clearly, as he is saying, you can construct various possible conditions of cohabitation, I have just chosen one obvious one. There is one thing that one could do to protect the Assembly - and I think we mention this in our paper - one could read across the idea of a constitutional lock. Let me explain that. At the moment, if powers are transferred to the Assembly by a Transfer of Functions Order, they come back, but only if the Assembly consents. That, of course, does not prevent Parliament - the doctrine of parliamentary sovereignty - taking the powers back, we all understand that, but it gives the Assembly a measure of protection. Likewise, one could incorporate in the Bill a provision that an Order in Council granting continuing power to legislate in the Assembly would not be repealed without the consent of the Assembly. That would be a constitutional lock protecting the Assembly, but once again that of course would not prevent Parliament at the end of the day from legislating to take powers back. Chairman: Dr Scully and Dr Wyn Jones, please feel free to make any observations that you wish as well, although of course you will becoming involved in a later part of this session. Q37 Hywel Williams: You may have been present earlier on when I asked the officials about something that you mention in paragraph 8 of your paper, and I asked the officials whether paragraph 1.25 of the White Paper - that Orders in Council are to relate to "specific matters or within defined areas of policy within the fields in which the Assembly currently exercises its function" - describes the current scope of the devolved fields or prescribes that they shall not extend beyond those in Schedule 2 of the Government of Wales Act 1998. If I understood rightly - and I am not sure if I did - the officials seemed to say that this was descriptive and also there would be a constricted list of categories. Is that your understanding, and what are the implications of this for the use and scope of Orders in Council? Professor Rawlings: I have to confess I found it a little difficult to follow the answer; perhaps that was because I was sitting behind the officials concerned. I am a little wary of commenting on that because I did not quite follow if the answer that was given was that it is the current fields under the 1998 Act, but there seemed to be a suggestion that it might also be fields that have been added since the 1998 Act. If that is right, then presumably it covers something like fire and rescue services. It is important to remember one of the answers that the officials gave you, which was that when we talk about Step 2 we must not forget Step 1, that over time one would expect Step 2 to move increasingly centre stage but there will clearly be a transition period in which things need to be built up, the new technique needs to be developed and elaborated. Were there to be matters falling outside those fields, it would of course always be possible to proceed down the more traditional route and back into Step 1. Hywel Williams: Thank you. Chairman: Mr Stephen Crabb. Q38 Mr Crabb: What in your view would be the most effective procedure for parliamentary scrutiny of draft Orders in Council? Professor Miers: That is always a good question. This might be a slightly long answer so I apologise at the beginning; the analogy that might readily come to mind is the procedures adopted by the Regulatory Reform Committee and the Delegated Powers and Regulatory Reform Committee in the House of Lords, but there are some clear differences between particularly Regulatory Reform Orders and the requests that will come from the Assembly. They will not be the same kind of trigger for action, and I might come back to that. If you think in terms of stages, it seems to me that the stages go in this kind of sequence, that the Assembly will have gone through some kind of deliberative process, which undoubtedly will involve some consultation, there will have been a democratic vote, whether initiated by the Welsh Assembly Government or Welsh Ministers or by AMs or by the public bill procedure, but at any rate it will come as a request from the Assembly. Questions arise as to what should accompany that request and you might wish to explore that with the Secretary of State, but it will come here and the question is what parliamentary scrutiny will be exercised here? It could be exercised by this committee, for example, and it would need a set of tests which, again, would not be dissimilar to those that the Lords and the Commons committees already apply, so some kind of test of appropriateness - is it appropriate that secondary legislative powers of this extent and scope be transferred? No doubt another criterion would be whether or not the proposed request is intra vires. There are a number of points in the White Paper which speak of non-encroachment by the Assembly on policy matters that are the responsibility of UK Ministers, and others about not having a transfer that is co-terminus - the White Paper says that should not happen. Those sorts of propositions which are in the White Paper, if they are in turn translated into some conditions for the Assembly - what will ultimately be Orders for the Assembly - will give this committee or whatever committee is undertaking the scrutiny some levers against which to judge the justification, let us put it that way, that the Assembly in its request has put forward. I would envisage some kind of scrutiny process using tests similar to, but not all of them, those that are used by your own and the Lords committee. Q39 Mr Crabb: You stated in paragraph 8.6 of your report that there is no indication in the White Paper that the Bill will include a procedure by which the Secretary of State could request amendments to the Order in Council. What do you think are the practical implications of this for the success or otherwise of the proposals? Professor Miers: This is rather like a question what do we mean by a field, what is the extent of the transfer, but this is a very difficult point. One needs to bear in mind the point we make in 8.6 that requests for Orders in Council are not like Wales-only Bills, they are not amendable in the standard parliamentary procedure which accompanies them, the request comes from the Assembly and if the Secretary of State or indeed the Parliamentary Scrutiny Committee formally reaches a conclusion that there is something in the proposed request that it cannot accept, it is an inappropriate allocation, or that it does indeed encroach upon a policy area that is a matter for a UK Minister, then I cannot see - at least not in the White Paper - how you resolve that, because it cannot be resolved here, it can only be resolved with the consent of the Assembly. Unlike Regulatory Reform Orders, where it just goes back to the Minister, back to the department concerned, at Stage 2 and at Stage 2 the committee looks to see whether or not the Minister has had regard to the comments made at Stage 1 as to possible changes, that is not possible, it seems to me, for Assembly requests, except as we say in the paper, maybe with some minor matters, but not if the committee or indeed the Secretary of State took the view that one aspect of the request - maybe not the whole of it - was a wholly inappropriate transfer. I do not know the answer to your question, but it is a serious question. Q40 Mr Crabb: You also said in the paper that plans to allow the Secretary of State to decline to lay an order, and to explain his reasons in a letter to the Assembly Government are "constitutionally unacceptable". Perhaps you could explain what you mean by this and what steps you think should be taken to remedy this on the face of the Bill? Professor Rawlings: I will deal with that one because it came up earlier on. The point that we were making there goes back to the comment about the post-box. Let us not labour this point, but it goes back, does it not, to the fact that after 2007 we will not be dealing with one devolved body in Cardiff, we will be dealing with two institutions: we will be dealing with the Assembly and we will be dealing with, let us call it, the Welsh administration. The White Paper states explicitly that the request will come from the Assembly. The point we are making here is that it seems peculiar, to put it mildly, that the answer does not go back to the Assembly, it goes back to what by then will be a statutorily different body, the Welsh Assembly Government. In Parliament we do not regard the Prime Minister as the titular head of Parliament, the Speaker is the titular head of Parliament to the extent that we have one. The point that we are making is that if this is a request from the Assembly, surely the answer would go back to the titular head of the Assembly who is the Presiding Officer. I suppose it may be, as officials have indicated, that the Assembly will in some way have delegated the First Minister to send and receive letters on its behalf; I merely comment that it is not for me or for officials to say how the elected Assembly in Wales decides to order its own affairs, and if elected Assembly Members decide to so delegate that task to the First Minister, that is entirely a matter for them. On the other hand, should they decide that the Presiding Officer undertakes this task, that, it seems to me, is a matter for them and it is not something officials or the White Paper should prescribe. Professor Miers: Chairman, may I add a postscript to illustrate the point in one particular respect? The proposal in the White Paper proceeds, I think, from the unstated assumption that requests will in effect have been Welsh administration initiated requests, but what if there is, as presumably there will be, some provision within Standing Orders to allow for the equivalent of Private Members' Bills - there is already, so why should that not continue? To use the equivalent here, if an Assembly Member were to promote what in effect is a Private Member's Bill or a Private Member's request, no doubt the Assembly Government or its successor will want to look at it and will conduct the usual sort of review of it to ensure that it is not incompatible with its own policy, but that request having been initiated by someone who is a member of the Assembly and approved by the Assembly, through what deliberative processes it agrees, it is surely wholly improper that that refusal to lay by the Secretary of State goes back to the First Minister. It seems quite improper to me. Chairman: Mr Mark Williams. Q41 Mark Williams: Thank you, Mr Chairman. Turning now to the consequences of enhancing the Assembly's legislative powers, in your report in clause 11 you raised some of the concerns surrounding the post-legislative referendum with regard to stage 3 and you talked in terms of, firstly, the Bill requiring sufficient detail, the concerns about a debate about something that was going to happen in the future, that it would be hypothetical in nature, and also concerns about matters of great importance, of constitutional reform, being dealt with in Orders in Council rather than being settled in Parliament. How do you propose to address some of those problems that you identified and how best could those problems be addressed at this stage? Professor Rawlings: I would make two comments in relation to that question. The first one, of course, is that it is so difficult to say at this stage because we are obviously having to write here ahead of the Bill, and in a sense what we were arguing for here was for significant detail to appear on the face of the Bill, because it seems to me how could colleagues sitting around this table properly assess stage 3 were that detail not to exist? At the same time one has to be sensible and reasonable about this; we are dealing with a situation that I call "legislative devolution in waiting". This could be 10, 20, 30 years away and, clearly, it would be absurd to think that parliamentary counsel writing in 2005 could possibly anticipate all the possibilities that may or may not happen at some indeterminate point in the future. What one is talking about is a fair amount of detail on the Bill to explain the kinds of things that are in issue here, but of course an Order in Council set of powers would be such that more precise detail of the exceptions can be added in at a later stage. The second point that I want to make relates to the next paragraph in our paper, paragraph 12, because it follows, Mr Williams, directly from your question. It does seem to me that there is one great oddity of this whole process. One of the officials talked earlier about the expectation that this process would lead to full legislative powers for Wales. If we jump forward 15 years, let us just pretend that this happened; what will people say was the most important decision that was taken at this stage? It seems to me that clearly the substance of the powers will be one but, secondly, the very basic constitutional decision about how those powers are expressed. Are they, in other words, expressed as they are expressed in the Scotland Act of 1998, whereby the Assembly is given legislative powers and powers are then reserved to Westminster, or will it be the model of the Scotland Act that failed in the 1970s whereby the Scottish Parliament would have had a prescribed list of powers, a defined functions model? That is a very important matter, it seems to me, which goes to the flexibility of the powers that the devolved Assembly would have, a capacity for judicial review, lawyers all over the place and so on and so forth, yet the White Paper skips over this entirely. It seems to me - if I may be so bold as to suggest this - that it would be entirely appropriate for this Committee to ask for a detailed memorandum from the Wales Office on the advantages and disadvantages of those models and what the current thinking is about the choice of those models, prior of course to your conversation with the First Minister and the Secretary of State. It seems to me at the moment that arguably the most important question in this whole process is being glossed over. Q42 Mark Williams: My second question is a question posed in the earlier session by the Chairman, but we would welcome your comments too, in the event of a referendum rejecting the stage 3 proposals, what provisions should the Bill make? Professor Rawlings: Again, I was struck by the fact that the White Paper had nothing to say about this and I was struck by the answer from one of the officials along the lines of "the expectation was that it would not be a problem". I do think we need to have a little bit more respect, if I may say so, for the democratic process than that, and we have to proceed on the basis that the good people of Wales may decide at the end of the day that they do not wish to go down this route. What would one then do? In our paper, clearly in the back of our minds, was a "Denmark" situation - the allusion being to asking the people of Denmark to vote again when they produced a result in the referendum on Maastricht that the powers-that-be in Brussels did not want them to produce, and they were immediately asked again to vote in the "correct" fashion. That seems to me to be a profoundly undemocratic approach that one would not wish to see visited on the people of Wales. It seems to me that a reasonable balance would be to read across the kinds of provisions that one finds in the Northern Ireland Act, whereby on the one hand one says that if you have a so-called border poll and the good people of Northern Ireland say no, we would rather stick in the United Kingdom, you accept that result and you say that for a period of years we will not revisit this question. It seems to me that it would be entirely appropriate to have in the upcoming Bill this kind of moratorium clause. Chairman: David Jones. Q43 Mr Jones: Professor Rawlings, can we revert to the point we touched upon a few moments ago concerning the model that we are going to have for devolution maybe, and you contrasted what we have in Wales at the moment with what Scotland has got at the moment, the question of reservation of powers or converging powers, and you suggested that we should ask for a memorandum from the Wales Office as to the advantages or disadvantages of the two models. Perhaps you could assist us as to the extent of your opinions on the advantages and disadvantages of the two models. Professor Rawlings: I would like to answer that in two ways. First of all, coming from the situation afresh, it seems to me that there are obvious advantages in the model of the Scotland Act 1998, and I take this to be the view of Her Majesty's Government in abstract terms in the sense of otherwise why would they have chosen the 1998 Scotland Act model? If one revisits the debate on Scottish devolution it is put very much in terms of avoidance of legal technicality and, picking up on the Chairman's comments earlier on, intelligibility. You may wish to visit the House of Commons Library and to ask the librarians there to take out for you the original Scotland Act back in the 1970s where they attempted to use the opposite model. I cannot remember which schedule it is, but they will point you in the right direction - it would charitably be characterised as voluminous. That said, it is not as clear in the case of Wales as it is in Scotland, for this reason: we are manoeuvring here within a unified jurisdiction of England and Wales and there clearly is an argument that in the context of the England and Wales jurisdiction it is particularly difficult to achieve a Scotland 1998 type model. I would like to see that argument played out in a detailed memorandum from the Wales Office because I do think that there are genuine competing views here that the Committee should consider. In short, the answer to my question is in the abstract I would clearly like the Scotland Act 1998 type model, in particular because from the point of view of the citizen it is clearer, but, question mark, is it achievable inside the England and Wales jurisdiction? Parliamentary counsel would no doubt have a view on that. Q44 Mr Jones: If we were to adopt the Scottish model, could we therefore be looking at the very drastic constitutional step of separating the jurisdictions of England and Wales? Professor Rawlings: I do not think so. This goes back to the Richard Commission and no doubt you will want to take this issue further with Lord Richard when he comes to give evidence to the Committee. It is interesting to see that the Richard Commission went for what I call the Scotland Minus, by which I mean the Scotland 1998 model minus, of course, things like criminal justice, civil law and so on and so forth. In other words, the Richard Commission chose the Scotland model 1998, but of course Lord Richard was well aware of the England and Wales jurisdiction point, so his response was to take out the most obvious things relating to the England and Wales jurisdiction. Clearly, therefore, Lord Richard took the view that this was a manageable proposition and in the light of that in particular, again, I would put the case for a memorandum from the Wales Office actually raising what I think is a fundamental issue that is being glossed over. Chairman: Nia Griffiths. Q45 Nia Griffith: Addressing in particular Drs Scully and Jones and speaking about some of the things that you have written here on the electoral issues, in particular about dual candidacy and the ability to stand for the constituency and the Regional List. You said that there is no evidence of public disquiet about the current system or public demand for such a change. Can you provide some more detailed data to support this claim? Q46 Dr Scully: We are saying two things there. First of all, in the White Paper there is a very bold, unqualified statement about public opinion, which is not backed up with any reference to evidence at all. Secondly, we say that when we go back and look at what evidence does exist that is relevant to it, it does not appear to support the statement that is made in the White Paper. I must say that in the detailed post-election study that was done in 2003 there was no specific question on the issue of should people be allowed to stand on both their constituency and list, so we do not have the nicest piece of evidence, but we do see that there is generally a fairly good degree of satisfaction with the electoral system. As we mention, we see that in North Wales - where you had the particular problem of the three losers in the Clwyd West constituency coming in through the regional list - opinion towards the electoral system was just as favourable as it is elsewhere in Wales. One thing that we omitted to put in the written evidence was that we directly asked people did you vote, did you not, and for those people who said they did not vote in 2003 we asked why did you not vote? It was an open-ended question and it gave people the opportunity to say anything they liked and we recorded as many responses as people gave. The total number of people who mentioned anything to do with the electoral system at all as a reason for not voting in 2003 in our sample was two; that is out of more than 500 who said that they did not vote. That would suggest that the electoral system was not an important factor, as the White Paper puts it, "acting as a disincentive to vote". Q47 Nia Griffith: You also mentioned a range of different countries where constituency and list members are used. What evidence is there in those countries about public attitudes to those electoral systems, what data have you actually got in that respect? Dr Scully: I do not have in front of me detailed evidence on particular public opinion polls; however, there is quite voluminous literature in heavyweight tomes, like the one I have here, about the application of various forms of mixed-member electoral systems. Generally speaking, in most countries it is reasonably popular, and the very interesting thing to note, I think, is the fact that this system has come to be adopted, or variations of this system have come to be adopted, in quite a large number of countries in relatively recent years. I think it is self-evident that if these sorts of systems were seen as malfunctioning, as dysfunctional, then they would not have become so popular and have been adopted in so many countries as they have been in recent times. Dr Wyn Jones: I have a slightly broader point that I would like to put before you. Part of the problem with the whole candidacy issue is that the debate is about the symptom rather than the problem, and the fundamental problem is that we have not quite worked out what the role of the regional list of AMs is. In particular, because the lists are based on the regions, it applies clearly a degree of territorial representation, that these people are representing a territory and, therefore, that means dealing with particular cases, because how else are you going to represent an issue without doing so through the prism of particular difficulties and problems. On the other hand, the fact that there is a degree of territorial representation then leads to resentment because people see it as stealing constituency work and so on and so forth; I should say I do not think that the public mind, they have more choice in terms of representation, but in terms of politicians this is clearly a difficult issue. I think a lot of these problems arise because these are regional lists, which implies a degree of territorial representation, and many of these issues I suggest would be removed from play if we moved to a national list system which would clarify the representation issue. Dr Scully: May I just mention one more thing, Chairman, about that? The particular regions we have originated and were used for the European Parliament constituencies, but we have not actually used those in Wales for the European Parliament elections since 1994, so in a sense one could argue what particular purpose are these regions serving? One could well argue and might wish to argue that there is perhaps a sense of North Wales identity, but it would be very difficult for instance to say that there is a South Wales centralist identity, so it is rather difficult to see that these regions have any particular logic behind them. If the purpose, as I think it originally was in the Government of Wales Act, is to have an element of proportionality in the voting system, if the main purpose of the list AMs is to be the people who introduce this element of proportionality in the voting system, that is an all Wales consideration so why not have an all Wales list? Q48 Nia Griffith: There is just one further point on that. Obviously, you will be aware that the Electoral Reform Society gave evidence to the Richard Commission and one of the things that they said obviously was that "A system in which candidates can lose elections but nevertheless win seats undermines respect for the electoral process." I do take on board your idea on the national list, but how do you respond to that actual feeling that people have now, the gut reaction that they have? Dr Scully: To be fair to the Electoral Reform Society we should be clear about their view. If I may quote directly from their own publication, the Electoral Bulletin, for June and July, page 4, where Ken Ritchie the chief executive was quoted: "We raised the Clwyd West question as an anomaly of the Additional Member system. But it is wrong to change just a single aspect of the voting system when there is so much wrong with it", and they go on then to endorse the Single Transferable Vote. The Electoral Reform Society are and have been for a very long period extremely strong, vociferous supporters of the introduction of the Single Transferable Vote system across the UK as well as for Scotland and Wales; they have criticised many aspects of the current voting system in Wales and indeed in Scotland, in line with their long-standing support for STV. To be fair to them, therefore, they are not just criticising this aspect of the system, as far as they are concerned the whole thing should be done away with and we should have STV, as the Richard Commission recommends. Chairman: Mr David Jones, I am sure you wish to ask the next question. Q49 Mr Jones: I certainly do. Drs Jones and Scully, you did issue a mild rebuke in your paper to a colleague of mine who referred to the White Paper as "the Mugabe-isation of Welsh politics". I think what my colleague had in mind was what might be described as the Clwyd West question and the Government's response to that. Having criticised him you seem to spend the next four or five paragraphs actually supporting what he said, albeit in colourful terms, but I am sure you would allow any politician a degree of hyperbole, because that is part of the trade, but would you not agree with me that the Clwyd West result was something that was entirely foreseeable in the original devolution settlement and the way that the list building was structured? You say that if it really is a problem there are other ways to address it, but how would you suggest it be addressed, if it needs addressing at all? Dr Wyn Jones: If it needs addressing at all, STV is an obvious way of going about it, but that seems to have been ruled out of court, so if we are staying within the broad outlines of the system that we have at the moment, then a national list with a 5 % threshold, plus guidelines or conventions on the roles of list versus constituency members would seem to be a sensible way forward. The fundamental problem is that the role of list AMs has never been properly worked out, in particular the territorial representation role has never been thought-through. If they are going to have the role representing a territory then it is natural to open offices and they do all these things which other constituency-based Members seem to object to, so moving to a national list would seem to be a sensible way of avoiding many of those issues and clarifying what people are there to do. Dr Scully: You asked was this foreseeable, absolutely it was foreseeable and this weighty tome here, the study of mixed-member systems around the world, indicates that it has long been a tradition in countries that have mixed-member systems that people who are going on the list do some element of some shadowing of certain constituencies. Frankly, if the Government did not realise when it brought in this White Paper that that would happen, they should have done, they were negligent in not realising that. Q50 Mr Jones: To that extent would you agree that to call it Mugabe-isation slightly went over the top, but nevertheless this has actually been brought forward for purely party political reasons? Dr Scully: My scholarly competence or expertise, such as it is, is in certain matters to do with politics, not in reading the mind of the Secretary of State and I would not wish to presume to do so. Q51 Mr Jones: Would you hazard a guess? Dr Scully: We certainly objected to the label Mugabe-isation, I think that is really unfortunate, that sort of level of intemperate comment. Given that the reasons offered in the White Paper for doing this do not stack up, frankly, are not supported by the evidence, given also that Labour currently do not have any members coming through the list so if it is going to create problems for any parties it is going to create problems for the other parties, it is difficult to rule out the hypothesis of partisan motivation. I have no particular private evidence on that matter but, as we say, even if this is not intended it is unfortunate because it is going to look deeply partisan. Whether or not that was the original intention it is going to look that way and if there is one thing that people dislike almost as much as paedophiles living nearby and bent coppers, it is politicians who seem to be stitching things up for themselves. I think that although this is not going anywhere remotely close to what Mugabe does and what other people do, it appears to be trying to adjust the electoral system in favour of one party against the interests of other parties, and it is not being done on a beneficial interest-partisan, cross-party basis. Therefore, to the extent that the public know and care about it, it is likely to be unpopular. Q52 Mr Jones: Is that what Mr Mugabe is doing in Zimbabwe? Dr Scully: He is doing a lot more than that. Q53 Mr Jones: Indeed. If I can just mention the question of the national list, you did acknowledge that there is an identifiable North Wales element, both in reality and within the body of the Act, because of course there is exclusively provision for a North Wales Regional Committee. To that extent would you not acknowledge that a North Wales area regional member might have, maybe, more justification generally and therefore ought to be preserved, because of the identity of North Wales? Dr Wyn Jones: As an Anglesey boy I have a particular view on it. The problem is that if one is going to have list members identified with a region, then one has to accept all the things that go with that in terms of opening offices, perhaps in the constituencies which are represented by a member of another party, you are going to have to accept that constituents are going to be "stolen" - I think that is the phrase often used - so all those things go with it. It is a judgment call, whether you think that the case of more members for North Wales in addition to those elected for North Wales constituencies is such that you are willing to accept all those other things and all the tension that is clearly caused. That is a judgment call, but I think that is how I would suggest that people weigh it up in terms of the balance between those two interests or issues. Dr Scully: Maybe you yourself, Mr Jones, have suggested that part of the resolution of the problem is that it is specifically through having committees in the Assembly that are concerned with particular regional issues and that rather than the electoral system is the way to deal with particular regional issues and concerns. Mr Jones: May I ask one more question on the number of Members, Chairman? Chairman: So long as it is not on Mr Mugabe. Q54 Mr Jones: I will not touch on Mr Mugabe at all, I promise. Professors Rawlings and Miers, in paragraph 17 of your report you suggest that the Bill should provide for an increase in the number of Assembly Members to 80. Could you possibly explain that further and why that should be included on the face of the Bill rather than addressed at a later stage? Professor Miers: The reason for that, Mr Jones, is our sense that under the proposed new settlement Assembly Members are going to have a very great deal of work to do. They will have a much more pronounced scrutiny function and it remains to be seen how the standing orders will be constructed and how the Assembly will go about its deliberative and scrutiny functions. They will have scrutiny functions, they will have legislative and deliberative functions and, on the evidence to date, the amount of time - if one takes, for example, the scrutiny of secondary legislation - that the Assembly has actually been able to devote to the scrutiny of measures has been very, very small. If important matters are to be transferred to the Assembly, matters which are broader and which are, in effect as primary legislation would be in its breadth and depth, then it seems to us that the Assembly will need to have the kind of procedures in place that will give proper and due consideration to those measures. If it is going to produce requests for Orders in Council - if I can come back to some observations that were made earlier on - the parliamentary consideration of those requests will need to be assured that they were given proper consideration in Cardiff. It seems to us, therefore, that in the creation of and transfer of a much more extensive set of powers to the Assembly, there will simply be more work to be done, and that more work requires, apart from AMs' time, time from currently Assembly Parliamentary Services - if you like an officers' office - so there are consequential manpower issues that flow from the proposals in the White Paper which include (a) how many AMs have you got to do the job, and (b) how many officials have you got to do the job? We share some concerns about the capacity of the Assembly to do the job that it will be enabled to do. Chairman: Mr Hywel Williams. Q55 Hywel Williams: Going back to the national list question, I do not know if I am being naļve but would it not compound or magnify the problem of constituency AMs complaining about list AMs - as if you gave them a national shooting licence rather than just a local one? Dr Scully: I suppose there is the possibility of people trying to cherry pick certain around various places, but I would have thought that is quite difficult to do across the whole of Wales. The point Richard was making earlier was that within a more defined geographical location there is the tendency to be a more defined geographical representative; yes, it is a possibility, but I would have thought that having some people who are clearly identified as being list members for the whole of Wales would probably diminish the sorts of problems that we are seeing at the moment. Dr Wyn Jones: Just as an additional thought, I did suggest that one needs connections, one needs proper understandings which are formalised in terms of working out the role of the various forms of representatives. I think that would be much simpler in that context, for reasons which Roger suggested. Q56 Hywel Williams: Do you have any thoughts at all about the national list compounding what I see as a south-east problem in Wales in that list AMs would be more likely to congregate around Cardiff rather than, say, Caernarfon? Dr Wyn Jones: I think that is unlikely, given that the parties would look very closely at who is on the list and where they are in terms of space on the list and how it will maximise votes. Parties will have a very real interest in trying to spread from their geographical base in other directions for that precise reason, so I think political calculus will develop. Caernarfon is pretty safe. Dr Scully: That is something you see in other countries which use national lists or very large regional lists, and there are obvious, patent attempts not only to balance by issues like gender, race and age to a degree but also by communities. Q57 Chairman: Could you share with us your thoughts on one vote rather than two? There has been some speculation about reducing the number of votes. Dr Scully: Are there any particular aspects of it you want us to talk about? Whether we agree with it? Q58 Chairman: Yes. Dr Scully: Personally, I feel mildly negative against it, but less so than I do with the current proposals in the White Paper. It does somewhat diminish voter choice. At the moment under the two vote system voters have, if they wish to, the opportunity to vote for one party in the constituency and another one on the list; getting rid of the second vote does diminish some scope for voter choice. However, most people vote on fairly straight party lines. Our evidence suggests that in cases where people do split their tickets they seem to use the list vote rather as an expression of second preference. So to the extent one would be somewhat reducing voter choice, I can see a certain negative aspect to it. One further factor I should say is that getting rid of the second vote, particularly if you have a national list, would have some clear electoral implications. If you had a national list and two votes, you might well start to see the sort of thing you see in Scotland where several seats go to minor parties unless you have a 5% threshold or something, so one could well see UKIP or the Greens or whatever getting seats on the list. Getting rid of the second vote is another means of stopping the fractionalisation of the Assembly into more and more parties. It is likely most people would vote for one of the big four on the constituency vote and if those are aggregated to do the listing calculations that would probably mean the existing big four parties would still retain an overwhelming dominance in terms of seats in the Assembly. That is just a factual point. Q59 Chairman: Following on that, have you done any research on the proposition, which I have not heard discussed very much, of uncoupling the two systems? If the one did not depend on the other, would there be different results? Dr Scully: Yes, massively so. I presume you mean there basically the list seats are calculated in a way which does not take account of the constituency results, and that would basically mean you would not have a semi-proportional voting system. Q60 Chairman: Even with a national list? Dr Scully: Even with a national list, you would still have a pretty small dose of proportionality introduced into the system. That would be what these sorts of tomes call "mixed member majoritarian". If you had that in the last Assembly elections, the Labour Party on less than 40% of the vote would have had a clear majority in the Assembly rather than exactly 50% of the seats. The system we have at the moment for the Assembly is not that wildly proportional by international standards, it is, as we term it, semi-PR. If you decoupled the list from the constituency in terms of denominators and so on and so forth then you would have hardly any proportionality at all. Given that was the basic principle of the White Paper, approved in the referendum, I think that would be very difficult politically to sell, but I think that is somewhere where you people have more expertise than I do. Q61 Chairman: You may have answered this question but I pose it to you at the end in a very broad, general way. Based on your research, what are the implications of the White Paper's proposals for reform to the electoral system in Wales? Dr Wyn Jones: It would give Wales an internationally anomalous system. The only country which we have been able to find which has done something similar to banning dual candidacy is the Ukraine, which is not an example to follow. It will introduce a system which, whatever the rationale is, we fear will look partisan because it impacts the opposition parties far more than the governing party. There is a real danger as well it will reduce the quality of AMs in particular, which is worrying in the context of a 60-member assembly, because one of the things which has emerged from this morning's discussions is that there is going to be nothing in the Bill about the possibility of increasing to 80. Back in July at the conference in Cardiff, the Secretary of State suggested at that stage the thinking was there might be something in the Bill which would allow that. So we are certainly looking at 60. Therefore in the context of 60, the quality of members is something which is really very important indeed, and any step which - and this is from a general perspective of the functioning of Welsh democracy - makes it more difficult for the opposition parties to get their "best members" in a 60-member assembly is I think problematic. Dr Scully: I would agree wholeheartedly with Richard and merely add, if this issue is really a problem, I think the Government has come up with probably the worst of the available solutions. Q62 Chairman: Can I end with one question. The title of the National Assembly for Wales is in the 1998 Act. The Welsh Assembly Government is here under that name in the Act. Does this Bill afford us the opportunity of providing new names and what do you think about that? Dr Scully: On the whole, I would accept the Welsh Assembly Government; my colleagues on the right may not. I prefer not to mess around with names unnecessarily; unless you have a particularly strong reason to, leave names as they are. Professor Rawlings: Chairman, I think it was to your question, the answer which was given by the officials this morning related to one of the two bodies that will be in operation in 2007 but not the second. I think you were told that the Bill would refer, presumably in Clause 1(2), to the National Assembly for Wales and personally I can perfectly well understand that. That shows the strong sense of continuity that we see here and, in a sense, I think it goes very well with the evolutionary theme in the White Paper. When it comes to the other body, the White Paper does refer to the Welsh Assembly Government. I note that the officials this morning did not say that the term Welsh Assembly Government would be in the Bill. We wait to see. My own view is to try and stand back from this. It does seem to me all colleagues around this table should actually be able to agree on what I think is a fairly simple point, and it is very well made in the report from the Assembly Committee on the White Paper. That report says that we do not refer to the UK Parliament Government, we do not refer to the Scottish Parliament Government. We have a clear differentiation in terms of the labels so that on the one hand we can all have a general sense of a legislature or a parliament comprising all parties, and on the other hand we have a clear label referring to the activity of government which is carried on by a party or parties in coalition. It really does seem to me it should not be very difficult for all colleagues around the table to agree on the label of either the Welsh legislative or the Welsh administration. Looking at Conservative colleagues over there, I do not see why Conservative colleagues should, in some sense, be implicated, as they can be in the public mind, with the policies of "the Welsh Assembly Government". That seems to me to offend basic understandings in our British democratic system. So I would be very strongly of the view, rather than have the Welsh Assembly Government, this kind of combination of government and legislative functions in one name, one would have either the Welsh executive or the Welsh administration. A note to colleagues: I have not suggested the Government of Wales because I do understand some colleagues would find that difficult to accept given this is an issue of devolution rather than another constitutional reform. Q63 Chairman: Dr Wyn Jones? Dr Wyn Jones: I would endorse what Professor Rawlings has said, and I would add a further thought. I think one of the most important things that has been said this morning was in your opening comments, Chairman, on complexity. We have been talking about the electoral system but if one is talking about democratic participation more generally, one of the big, big problems with the settlement we have is its Byzantine complexity. One of the cardinal virtues of the Richard Commission Report was it gave a clear sense of constitutional principle, which was about making things intelligible. I am afraid the White Paper, for reasons I understand, is going to add yet further layers of complexity to the governmental system in Wales. This does not help and anything which clarifies matters is to be welcomed, and I would endorse what Professor Rawlings has said. Chairman: Thank you very much. If, in light of the evidence this morning, you would like to submit a further paper, please do so. |