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CORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 175-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE WELSH AFFAIRS COMMITTEE
Tuesday 19 December 2006 NICK AINGER MP, MR JOHN WILLIAMS, MS JANE HUTT AM and DR HUGH RAWLINGS RT HON LORD ELIS-THOMAS, MR ALED EIRUG and MR ADRIAN CROMPTON MS JENNY RANDERSON AM and MR GARETH WILLIAMS Evidence heard in Public Questions 1 - 89
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Welsh Affairs Committee on Tuesday 19 December 2006 Members present Dr Hywel Francis, in the Chair Nia Griffith Mrs Siān C James Mr David Jones Hywel Williams Mark Williams ________________ Memoranda submitted by Nick Ainger MP and Ms Jane Hutt AM and by the Welsh Assembly Government
Examination of Witnesses Witnesses: Nick Ainger, a Member of the House, Parliamentary Under Secretary of State for Wales, and Mr John Williams, Deputy Director, Wales Office; and Ms Jane Hutt, Assembly Member, Business Minister, and Dr Hugh Rawlings, Director of Department for Local Government and Culture, Welsh Assembly Government, gave evidence. Q1 Chairman: Good morning, bore da, and welcome to the Welsh Affairs Select Committee. Before I ask you to introduce yourselves for the record, could I introduce our specialist adviser who is Professor Keith Patchett, emeritus professor of law at the University of Wales. Ms Hutt and Mr Ainger, could you introduce yourselves and your colleagues please. Nick Ainger: Nick Ainger, Parliamentary Under Secretary of State for Wales. This is John Williams, one of our officials who has been dealing with the Government of Wales Act. Ms Hutt: Jane Hutt, the Business Minister for the Welsh Assembly Government and this is Dr Hugh Rawlings, who is the Director of Department for Local Government and Culture. Q2 Chairman: Thank you very much. Could I begin by simply pointing out that we have a great deal of work to do today and I am sure you will not be offended if I ask you to be brief and to the point. We would not wish everyone to have a go at every question, but please use your judgment. Could I begin by asking a question about the legislative competence orders. If one legislative competence order dealt with more than one distinct aspect of policy, incorporating several unrelated changes, there would be a risk that a lack of parliamentary support for one area would result in the loss of the whole order. Will each policy proposal, therefore, be supported by a separate legislative competence order? Nick Ainger: Basically yes. We do not envisage there being orders in council coming forward covering a whole range of issues. Clearly it would be extremely difficult for you in terms of pre-legislative scrutiny and it would also be difficult in terms of agreements throughout Whitehall. As you indicated, it would be quite possible that in perhaps one of those areas there was disagreement with a Whitehall department and the whole order was lost. In terms of scrutiny, bearing in mind the hour and a half during which the final draft order will be scrutinised in committee or on the floor of the House, it would be far better if it was a focused request rather than one which covered a range of topics. Q3 Chairman: Do you anticipate that proposals for, what we can now call in a short form, LCOs will be made without a specific measure in mind? Nick Ainger: I certainly would not envisage that. The whole purpose of the order in council process is to allow the Assembly to pass laws and make measures with a specific purpose in mind in terms of furthering a particular policy development, so no, this idea that there would be a sort of portmanteau of orders in council where things could be slotted in in the future, we do not envisage that happening. Each order in council will be accompanied by a policy statement, specifying the areas where legislation is required. Q4 Mr Jones: Minister, in terms of procedure, how do you envisage that the procedure for adding a new field will differ from that for adding a new matter to an existing field or for varying a field? Nick Ainger: Well, in terms of a new field, and this is in Schedule 5, this would have to be where executive functions had been passed to an Assembly minister, either through a transfer of functions order or through a particular piece of legislation which had gone through the UK Parliament. It would then follow that there would then be an order in council process, if it was required to pass legislation, requesting legislative powers for that minister to have, following him acquiring these new executive functions, so it would be the same process that would bring forward these new functions and new fields rather than the matters which most of the orders in council will be bringing forward to add under the fields in Schedule 5. Q5 Mr Jones: So the process would be the same? Nick Ainger: Pretty much the same, yes. Q6 Mrs James: What arrangements are being made between the Wales Office and the Welsh Assembly Government to facilitate the preparation of proposed orders which would affect Whitehall departments and how will departmental interests be ascertained and taken into account in the case of committee- and Member-generated proposals? Ms Hutt: I think that is very important, that if the Welsh Assembly Government forwarded a proposed committee or indeed Assembly Member order, for example, to the Secretary of State, then the Secretary of State would consult Whitehall on the proposal. Clearly, in relation to a Welsh Assembly Government proposal for an order in council, that consultation would have taken place before the proposed order, but it could happen if it was an Assembly Member or a committee proposal and it could happen at the proposed order stage and possibly the Welsh Assembly Government might intend to support it or after the Assembly had approved a draft order and then the First Minister had sent it formally to the Secretary of State. I think it is then about ensuring that Whitehall is consulted at the earliest stage in terms of the routes that are taken. Nick Ainger: Could I add, Dr Francis, that in fact we are now in the process of developing this guidance for all Whitehall departments and we are also organising seminars for other departments in Whitehall so that they are familiar with these new procedures and that will obviously ensure that Whitehall departments, who do not necessarily have regular contact with our Office in terms of taking through legislation, are aware of this process and that they have a role to play in giving advice and reaching agreement before a proposed order in council is laid. Q7 Mark Williams: What information and documentation do you envisage will accompany proposed and draft legislative competence orders? Nick Ainger: I assume that the memorandum was circulated with two draft memoranda or statements of policy intent, one covering the Public Services Ombudsman, which we have basically laid it out as if that piece of legislation has not been enacted and the same, I think, with the Transport Bill as well. If you look at those, the proposal covers the scope of the legislation and any other Acts of Parliament that may be affected or would have to be amended as a result of it and gives a general policy background of why the legislation is required, but the important thing is clarifying the appropriateness and the scope of the legislation. I do not know if any colleagues would like to comment on the content of that, but certainly we feel that that is a comprehensive explanation and background support to the requirement for the order in council. Q8 Hywel Williams: In terms of parliamentary scrutiny, will committees here be provided with information and perhaps documentation in regards to proposed measures, giving an early indication of the likely extent to which the existing law of England or Wales might be significantly amended, repealed or replaced? Nick Ainger: In terms of measures? Q9 Hywel Williams: Yes. Nick Ainger: Well, no, because this process comes before any major work and certainly any drafting of any measures can take place, but the supportive memorandum for the order in council would certainly touch on the issues that, if a proposed order in council to enable the Assembly to bring forward measures were going to affect other Acts of Parliament, then that would clearly be flagged up and would have been part of the discussion that Mrs James referred to with other government departments as well, so that would have all been clarified before the proposed order in council comes to you for pre-legislative scrutiny, but it would certainly be included in the memorandum which will accompany the proposed order in council. Q10 Mrs James: In any protocol governing the preparation of legislative competence orders, which I shall call 'LCOs' from now on, should guidance be provided as to the level of generality in which new powers are expressed? Nick Ainger: As I said before, and perhaps this is for Jane Hutt to respond to as well, we would hope that we are not looking at a generality, a sort of broad brush of orders in council, but we are looking at quite focused orders in council giving the Assembly powers to legislate in a particular area that they have requested and which would be set out in the order in council. In terms of a protocol, I am not quite sure what you are referring to there. Q11 Mrs James: Well, extended powers will be conferred in a range of ways, either defining the matters affected in broad terms or expressing them very specifically. I suppose what we are looking at is whether we should have some sort of written guidance or some outline of how you would like things to be prepared or put forward. Ms Hutt: This does come back to the earlier point that Mrs James made. It does go back to us seeking to have, or I hope or presume that we will be moving forward to have, powers for a purpose in terms of these new opportunities and I would imagine that orders could be brought forward, for example, where we did not have the detail, but there may have been a review in a policy area that the Welsh Assembly Government has been undertaking, or indeed that a committee might have undertaken, and it would seek the powers through an order in council, but we might not have got to the point of the full detail of the proposed measure before we knew whether Parliament was willing to agree to making them necessary legislative competence. I think it again goes back to your protocol and the Secretary of State talked in our Queen's Speech debate a lot about developing a convention and presumption that they would be supporting orders in council, the presumption to support rather than not, but the key test is appropriateness. I think this is when both the First Minister and the Secretary of State came and gave evidence in November and the issue about appropriateness, scope, vires and all those issues are surely going to be the main guideline to the kind of protocol you are talking about. Q12 Mr Jones: Is it likely a protocol will be developed and published? Nick Ainger: I do not see at this stage that there is a requirement for that. I think what we have said and what the Secretary of State has said has been quite clear, that we are looking for a development of a convention that, in principle, orders in council will be supported and that is the thrust of the Government of Wales Act, that these powers, when requested, as long as they are appropriate, within scope, not ultra vires and so on, will be granted. The Secretary of State has spoken of the idea of a convention which basically says that the principle will be that these requests will be supported as long as they are appropriate, they are within scope, they do not affect other Acts of Parliament or go outside the Devolution Settlement. With the convention, clearly we are working on, as I indicated earlier, the guidance for other government departments as well. Q13 Mrs James: Just to expand on that a bit further, it is likely that parliamentary committees would wish to see express provisions included under certain circumstances, for example, authorising significant invasions of individual rights, such as compulsory powers of entry or inspection. Are you imagining that those protocols will actually surround that sort of inclusion, specifics that committees outside this loop really might want us to include? Nick Ainger: Sorry, you are referring to things like the Human Rights Committee or that sort of issue? Q14 Mrs James: Yes. Nick Ainger: Clearly, when the order in council is being discussed and developed within Whitehall, human rights issues will be one of those things which will have to be resolved before consent is given because Whitehall will have to consent to an order in council being laid, even for pre-legislative scrutiny, by the Secretary of State, so these will be part of those discussions and agreements which will be taking place before a proposed order in council comes from Cardiff up to Whitehall. Q15 Mrs James: I think what I was perhaps trying to get at are not the generalities again because human rights are something which would be built in automatically and there are certain provisions which would have to be included, but there might, for example, be something coming from a committee which would have caused in the committee a certain concern or an action which they then, outside of this loop or outside of this process, might specifically request which had not been requested before. Are you quite flexible around that? Nick Ainger: I am trying to think, other than the Human Rights Committee, what committees you are talking about. Q16 Mrs James: Well, I talked about compulsory powers of entry or inspection and it could be not just on the human rights aspect, but maybe I have wandered off too far. Nick Ainger: If there are contentious issues which have not been flagged up by other government departments before the proposed order is laid, but during your pre-legislative scrutiny these issues then do come to light, then that is, if you like, the beauty of the process in that then amendments can be made if it is accepted that there is a particular problem. When you and the equivalent Assembly committee make your reports following the pre-legislative scrutiny and this is an issue which is flagged up, it would be sensible for the Assembly Government to then amend the order in council before they then laid it before the Assembly and then before it comes up in its draft form here to be laid before Parliament. If it is not addressed in the first consultation with the government departments, then the beauty of the pre-legislative scrutiny is that those sorts of issues can then be addressed. Q17 Mrs James: The flexibility is there? Nick Ainger: Yes. Q18 Nia Griffith: If we can talk about the fields in which it might be operating, we have been told that, on current predictions, at least five sets of matters are likely to be added to the list of fields as a result of the new procedure each year, so what arrangements will there be for the maintenance and publication of a consolidated list of fields? Ms Hutt: I think it is important that those matters obviously are inserted under the fields in Schedule 5 clearly and it is the matters conferring competence. I think the importance in terms of each order in council or bill, whatever we call it, conferring legislative competence, is that it will directly amend Schedule 5 and at any particular moment in time the extent of the Assembly's competence will be easily identified, so we need to do that by ensuring that there are links to the latest version of Schedule 5 on both the Wales Office's and the Welsh Assembly Government's websites so that anybody would be able to see at any time how we have extended the Assembly's legislative powers, and that would be crucial for the Welsh public and indeed in terms of ensuring that that extension of legislative competence has been acknowledged, maintained and updated. Q19 Nia Griffith: Could you perhaps tell us a little about the arrangements to ensure that the Welsh Assembly Government has the personnel who are trained up to be able to undertake the drafting of these new legislative competence orders? Ms Hutt: What we are doing at the moment is we are now employing a whole new raft of staff to ensure that we have got the competence and we will clearly have our own first Welsh Legislative Counsel within our Legal Services Department and I can tell you that that is initially going to comprise four lawyers, supported by translators, and that capacity will be kept under review. The recruitment of that first Welsh Legislative Counsel has been supported by the First Parliamentary Counsel so that has been very helpful that there is that interface. Indeed we are getting the support, and Dr Rawlings might want to comment here, from Parliamentary Counsel to assist the Welsh Assembly Government so that we do ensure that we have got the capacity and that in terms of senior Parliamentary Counsel, we need advice and guidance to the first Welsh Legislative Counsel and more junior Parliamentary Counsel to provide direct support, so that has already been organised and I think that is going to be the subject of a protocol. Q20 Mark Williams: Turning now to the initiation of your proposal, could we expect an annual statement, a Queen's Speech-type announcement or annual statement of the Assembly Government's legislative programme or would it be something a bit more sporadic than that? What are your plans there? Ms Hutt: We would anticipate the Welsh Assembly Government being able to make an annual statement very soon after the election in May 2007 and that would be an annual legislative programme statement. It would be a strategic and legislative programme statement, a Queen's Speech for Wales. Q21 Mark Williams: In the case of an order that has originated from a draft committee-proposed order, would there be any circumstances where you would see the preparations and any inter-governmental negotiations passing to the Welsh Assembly Government? Ms Hutt: If we look at the way in which we have operated up to this point in terms of our powers internally, we have committees which have undertaken substantive policy reviews and Welsh Assembly Government ministers of course at present are members of committees, but, with separation, that will cease to happen. At present, a committee will produce a policy review and present it to the Assembly and a government minister will respond to any recommendations and indicate the Government's recommendations and what they are going to accept. We would anticipate that, in terms of that kind of policy review informing them of the proposed order in council, that will have been in the parliamentary domain and the Assembly domain for quite some time and indeed we can envisage that there will be issues where there would be a free flow, I am sure, with Welsh Assembly Government officials and others. These are not questions for me, but for the Presiding Officer and perhaps also the Chair of the Standing Orders Committee to this Committee, but I would imagine that there are going to be, and I would think there are already, discussions about how we can work together to ensure that there is a free flow of information as there is at present and that the Government can be as supportive as possible to the Committee. Q22 Hywel Williams: Turning to pre-legislative scrutiny, will that be a standard procedure? Nick Ainger: Yes, we made that clear in the passage of the Act and it is for the Committee to decide which orders in council it wants to scrutinise, but we will be offering that and have made it clear, as in responding to Mrs James's question, that it is important. We know that the work that this Committee has done in the past has been very, very helpful in its pre-legislative scrutiny role in delivering, I think, quality legislation in a very effective way, and I am thinking particularly of the Transport (Wales) Act and so on. Q23 Hywel Williams: I am just wondering, is there any provision for a shortened or accelerated procedure which perhaps dispenses with pre-legislative scrutiny where there is a technical matter which needs attending to or if there is a case of urgent necessity? Ms Hutt: I think again, in terms of looking at developing our standing orders, we are anticipating that there might be occasions when we would need to, or our Business Committee would have the role and function of business managers and looking at whether we did need to, have pre-legislative scrutiny. That may be because there has been a thorough consultation, and I am sure the Welsh Affairs Committee has been in that position where you have felt you have already been through the consultation exercises, so I think it will be a question of that judgment as it comes to the proposed order. Q24 Hywel Williams: By the Business Committee? Ms Hutt: In terms of how we would handle it, but clearly your opportunity is with you. Nick Ainger: Here, as I indicated, we are going to be offering this Committee the opportunity to do pre-legislative scrutiny on every order in council, unless there may well be a particularly urgent order in council which we have to get through very quickly, but I think these are going to be extremely few and far between and I am sure everyone would appreciate why those circumstances do arise. Q25 Mr Jones: Minister, if, for example, the Assembly decided to recommend that a particular proposed LCO should not be the subject of pre-legislative scrutiny and the Secretary of State thought otherwise, who would have the final say? Nick Ainger: If the Assembly recommended that there be none? Q26 Mr Jones: Yes. Nick Ainger: Well, as I have said, irrespective of the Assembly, we are saying that, unless it is an emergency procedure, pre-legislative scrutiny would be offered to this Committee. Q27 Mr Jones: So the Committee would have the final say? Nick Ainger: Well, the Secretary of State, as I indicated. The process is that the Secretary of State will take these proposed orders in council and offer this Committee the opportunity to do pre-legislative scrutiny. Q28 Mr Jones: And it is then up to the Committee? Nick Ainger: It is then up to the Committee, absolutely. One of the things we have spoken of around this issue is, if you like, the capacity of the Assembly to handle, and I have seen some figures quoted of, up to 30 measures a year which I think, as a former business manager, is just unattainable. I think what your Committee has to do is also consider your own work programme and obviously you do not want to be completely inundated with taking through orders in council and the pre-legislative scrutiny as well, so there are balances to be struck throughout this process about the capacity of this Committee, Parliament and the Assembly not only to take through the orders in council process, but also then for the Assembly to take through the Assembly measures and that is the limiting factor. I think we ought to be very realistic about what the capacity is at all those stages. Q29 Mr Jones: What role will there be for other bodies in terms of pre-legislative scrutiny, for example, in the House of Lords? Nick Ainger: I do not know if you have seen the comments of the House of Lords Constitution Committee, but they have been extremely helpful in saying, first of all, that, if there is to be any pre-legislative scrutiny in the House of Lords, it should complement, rather than duplicate, the work of this Committee, that it should be concurrent rather than consecutive and also any committee that is scrutinising in the Lords should have a real knowledge of Welsh affairs. I think that is very good advice and it is up to the other place to decide its own procedures, but I think that is very good advice from the Constitution Committee who have looked at this and taken evidence from the Secretary of State. Q30 Mr Jones: But you do envisage that they have got to have a role in this? Nick Ainger: It is up to them, but I think the suggestion or the strong recommendation by the Constitution Committee is that it should complement the work of this Committee and, importantly in terms of length of time that these matters are considered by Parliament, that it should be concurrent with the work of this Committee, for example, not consecutive because then we are just adding to the problem in relation to time. Q31 Nia Griffith: To what extent then will pre-legislative scrutiny accommodate the interests of MPs who are not members of the Welsh Affairs Committee? Nick Ainger: Well, as you know, you publish what programme the Committee is going to follow and any inquiry that you are engaged in and that will be an opportunity for Members of Parliament to submit their views to this Committee. However, in addition of course, when it does return either to a committee or to the floor of the House, then every Member of Parliament has the right to attend, and speak, at that committee or on the floor of the House, but again pre-legislative scrutiny gives Members of Parliament that opportunity to feed in their views, but again it is around the issue of the appropriateness and the scope of the legislation. Q32 Hywel Williams: Can I just go back to scrutiny by the Lords. Do you envisage at all circumstances where there might be a joint committee, say, between this Committee and a committee of the House of Lords and also possibly of the Welsh Assembly? Nick Ainger: That is a matter for you, it is not a matter for me. My own view is that the advice from the Constitution Committee is very good advice and I think that there may be problems in actually trying to constitute a joint committee of both Houses to scrutinise an order in council. As I say, it is a matter for this Committee, but the important thing is that we do not want this process to be drawn out unnecessarily and my fear is that, in setting up joint committees and so on, you could be starting to extend the programme. The whole purpose behind this process is actually to get over the delays and the logjam which exist in our current processes and what we do not want to do, whilst trying to encourage pre-legislative scrutiny, is to actually go back to that position where we have in effect got a logjam happening because we are waiting for a committee to complete its scrutiny. Ms Hutt: We do not want duplication of effort obviously or the repetition of effort on consultation, but it will be such a good opportunity, as we saw with the Transport (Wales) Bill, to have joint scrutiny between the Assembly Committee and the Welsh Affairs Committee. Indeed, you can imagine that, where the Welsh Assembly Government has already laid out its programme on an annual basis, there will be a lot of understanding in Wales, public awareness, interest and input, I am sure, from the civic society and all the other interested stakeholders in how it will feed very directly into that pre-legislative scrutiny when it comes about, but it is about fast-tracking and streamlining, I think; that is what we want. Q33 Mark Williams: Not wanting to contribute to the logjam, do you see any role for the Welsh Grand Committee in the participation of pre-legislative scrutiny? Nick Ainger: I think there is a role for the Welsh Grand Committee where you have particularly complex or maybe contentious orders in council coming through and, if this Committee made a recommendation in its report that perhaps this is a matter that should be debated in the Welsh Grand Committee, then certainly I, as a Minister, would have no problem with that. Obviously the business managers may have a view, but, in principle, no, if this Committee recommends that a particular order in council should be debated in the Welsh Grand Committee, I see that as something good as part of the process. We did it, I think, in the Transport (Wales) Bill and we had a debate on the report of this Committee before we went through the full process of scrutiny of the Bill, so I do not have a problem with that at all. Q34 Mr Jones: How will the outcome of the pre-legislative scrutiny be factored into the proposed LCOs? Nick Ainger: If the Committee and the Assembly Committee will report and if they are recommending changes to the orders in council, then obviously that will be looked at very closely by the Welsh Assembly Government. Any changes, any amendments to what has gone through the pre-legislative scrutiny, the draft there, it would then be changed and laid before the Assembly which would then vote on what is then the amended proposal and it would be that draft which would then come up to the Secretary of State for him then to lay it before Parliament. Q35 Mr Jones: So, in that particular case, the scrutiny procedure would not be repeated? Nick Ainger: No. Q36 Mr Jones: Let us say, for the sake of argument, that a modified order were made which, for the sake of argument, did not incorporate all the modifications proposed by the Committee, would the Committee have a second bite at the cherry in those circumstances? Nick Ainger: That is not proposed, no, and it is the same way that pre-legislative scrutiny happens now with ordinary bills here. Again coming back to the Transport Bill or the Transport (Wales) Act, as it is now, that is a very good example where a substantial part of the recommendations that were made by this Committee were adopted and included in the Bill, but I think it is true to say that not everything was included. Now, that could then figure, as you well know, in that, where there has been pre-legislative scrutiny of any bill, often a considerable part of not just second-reading debate, but committee-stage debate focuses around why a particular recommendation that has come through from the Select Committee has not been adopted. No, we would not envisage this sort of almost ping-pong going back until agreement has been reached. The views of this Committee would clearly be taken on board, but they would also be taken on board by those members of the standing committee that were looking at the final draft as well. Q37 Mr Jones: Is there any reason why the pre-legislative scrutiny procedure was not set out on the face of the Bill when Parliament came to consider it? Nick Ainger: Quite simply because the Government cannot tell a select committee what to do, and quite right too. We cannot, as the Government, say to this Select Committee, "This is the procedure that you shall follow in terms of pre-legislative scrutiny". We cannot tell this Committee that this is the type of inquiry you should be following and, as I said earlier, it is for the Committee itself to look at the order in council and you may well decide, and I am not saying certainly in the first year or so, but, as this procedure goes on, it may well be that you become quite selective in the type of orders in council where you do go through the full pre-legislative scrutiny. Q38 Mr Jones: I understand that, but there is no mention of the role of the Select Committee, if I recall, in the Act itself. Nick Ainger: It is not on the face of the Act, but certainly, as you will recall, we had extensive discussion about this and I certainly gave, and I am sure the Secretary of State also gave, a commitment that we would be laying these proposed orders in council before this Committee for pre-legislative scrutiny. Q39 Mr Jones: So it is a question of developing conventions really? Nick Ainger: Well, we have set out quite clearly what we believe the process should be, but, as I say, we cannot, and it would be wholly wrong for the Executive to, instruct a select committee on its work programme or on the way to do pre-legislative scrutiny. We are giving that guarantee that we are offering it for pre-legislative scrutiny. Ms Hutt: Also, we have been very clear about welcoming that opportunity for joint pre-legislative scrutiny and clearly to give this a full airing in terms of pre-legislative scrutiny because it will be for us a big, important part of our new powers in terms of taking forward the orders in council. Q40 Chairman: If we could turn to the question of parliamentary approval, do you envisage any modifications to the standard procedures relating to laying and approval called for in the case of LCOs? Nick Ainger: No, other than it is unusual, to say the least, that we are having orders in council going through pre-legislative scrutiny and we have given that clear commitment, but, in terms of the hour and a half debate in both Houses, no, we do not envisage any changes there. What I can say though is that I think the pre-legislative scrutiny will enable the issues which may be contentious to be properly aired and that the possible amendment of a proposed order in council can take place. Q41 Chairman: Do you anticipate that the more substantial orders will be taken on the floor of the House? Nick Ainger: Yes, and that is a matter for the Opposition through the usual channels to make a case for a particular order in council or maybe for the early ones, because this is a new process, to be taken on the floor of the House. Again, from my experience as a business manager, when a case is made by the Opposition, clearly usual channels function in the way that they do and often deliver something which the Opposition would like to see happen, so again this is a matter not for me, but a matter for the usual channels. Q42 Mrs James: How will you ensure that the Assembly's interests are safeguarded during the parliamentary approval stage? Nick Ainger: Well, the way the process works is that the order in council has come from the Assembly, most of them will have been initiated by the Welsh Assembly Government and the proposed order in council will have had a vote in the Assembly for it to come up here. Before that has started, the Welsh Assembly Government will have embarked on a process of discussion, seeking agreement from other government departments. It then comes up here for pre-legislative scrutiny and it is then up to this Committee to make possible recommendations to change any part of that order in council and that would then be the responsibility of the Welsh Assembly Government to amend, or not, the order in council. At all stages, the Assembly and the Welsh Assembly Government are completely involved in any development of, and changes to, the order in council. Q43 Mr Jones: What arrangements have you envisaged to co-ordinate the timetabling of pre-legislative scrutiny here and in the Assembly? Nick Ainger: Well, I do not think we can actually timetable them. I know my former colleagues in the Whips' Office would love to be able to timetable this, I am sure, but what we envisage is that after the initial discussion with other government departments has taken place, before the proposed order is laid in the Assembly, from that point on we will expect the process to be completed in three to six months. That would include the pre-legislative scrutiny here and in the Assembly, it would include any amendments that may take place in the Assembly before the final draft comes up here and then it being laid and debated here in committee, so three to six months and certainly six months would be the maximum time. Q44 Mark Williams: What arrangements will there be to ensure that the parliamentary timetable can cope with this? I am aware we are talking about five or six LCOs annually, but one could envisage situations when the parliamentary timetable at this end was particularly heavy. What discussions have you had about that? Nick Ainger: I think, in terms of the number of statutory instruments and orders in council going through, adding four or five to that programme is manageable. We would expect them to be not four or five coming straight through in one lump, but that they would be phased throughout the year because, as I said earlier, this is the beginning of a process for the enactment of Assembly measures and, from the Assembly's point of view as well, they need their business to be evenly paced throughout their year, the same way as we try to have it evenly paced throughout the year, although it is often quite difficult at the beginning and at the end of any parliamentary session, as we all know here. That would be the ideal position, that we would not be having four or five coming through all at once, but that they would be phased and I think that is quite manageable in parliamentary terms. Q45 Hywel Williams: The arrangements and the procedures that you have outlined all seem to depend a great deal on goodwill and consensus, the Pecksniffian sort of assumption here, if we could term it as such. Has your thinking encompassed perhaps the Secretary of State, or perhaps the Under Secretary of State with a different strength, throwing a spanner in the works, as it were, and what conclusions have you reached? Nick Ainger: Well, as I indicated earlier, the Secretary of State has spoken of this convention that the presumption is that, as long as the proposed draft orders in council are appropriate and within scope, then they should be approved. If you got to a hypothetical situation where the Secretary of State was acting unreasonably or was refusing to lay orders on trivial grounds within the 60 days required, and the 60 days is there to ensure that any unhelpful Secretary of State cannot sit on an order ad infinitum, they have to respond to the Assembly, stating quite clearly why they are not willing to lay a particular order. For that to suddenly pop up at that stage would be very unusual, bearing in mind what I said about, before even a proposed order in council is laid before the Assembly, before it comes up to this Committee, when an awful lot of work would have been going on around different Whitehall departments to check that it is appropriate and it is within scope and so on. I do not think this is a sledgehammer to crack a nut, but at the end of the day within the Act there is the possibility, following a referendum, that in fact primary rule-making powers can pass to the Assembly. Therefore, there are those procedures set out in the Act where, if you did have a Secretary of State who was acting unreasonably regularly, then the risk for that particular Secretary of State, rather than having this current process, is that in fact that Secretary of State would have no involvement whatsoever because a referendum could be held and all law-making powers in terms of the functions of the Assembly would be passed to it. Q46 Hywel Williams: But he or she would have to give his or her approval for such a referendum of course? Nick Ainger: Well, again if they are seen to be acting unreasonably, then ---- Q47 Hywel Williams: I am using your phrase. Nick Ainger: Yes, but I think the reality is that if that convention is accepted, as is the theme and the thrust of the Government of Wales Act, that the Assembly should gain these powers, it would be, as I say, very unwise of any future Secretary of State to start acting unreasonably. Chairman: Thank you all for the very comprehensive and concise way you have answered our questions. Happy Christmas! Witnesses: Rt Hon Lord Elis-Thomas, a Member of the House of Lords, Presiding Officer, Mr Aled Eirug, Constitutional Consultant, and Mr Adrian Crompton, Head, Members Research and Committee Service, National Assembly for Wales, gave evidence. Q48 Chairman: (Through an Interpreter) Good morning and welcome once again to the Welsh Affairs Committee. Please will you introduce yourselves. Lord Elis-Thomas: (Through an Interpreter) It is a pleasure to introduce Adrian Crompton, who is the Head of the Members Research and Committee Service, and Aled Eirug, who is our constitutional consultant, and it is a great pleasure to meet in the Lloyd George Room. Q49 Chairman: (Through an Interpreter) I am sure that he has a smile on his face! I understand that you will all be presenting your evidence in Welsh. Lord Elis-Thomas: (Through an Interpreter) I do not intend to give evidence, but to answer questions. Q50 Chairman: (Through an Interpreter) Do you all three intend to be speaking in Welsh? Lord Elis-Thomas: (Through an Interpreter) Aled Eirug will be speaking in Welsh and it is my usual practice, as a matter of courtesy, to answer any question in the language that it is asked, if I understand that language, and that is what I intend to do today. Q51 Chairman: (Through an Interpreter) We will do our best and I am sure you will understand the pure Welsh of the Tawe Valley. Lord Elis-Thomas: (Through an Interpreter) Yes, always. Q52 Chairman: (Through an Interpreter) May I begin by asking this question: do you anticipate that proposals for these LCOs will be made without a specific measure in mind? Lord Elis-Thomas: (Through an Interpreter) Before I answer the question, perhaps it would be of assistance if I were to explain where I come from as a witness here today. I am very eager to be as helpful as possible. My position at present is Presiding Officer of the existing Assembly. I was not part of the process of preparing the standing orders, but Jenny Randerson, who was responsible for that, will be coming before you later on, so I do not believe it would be appropriate for me to make detailed comments about what, as yet, has not been approved by the Assembly. However, if there are any questions that impact on our activities, I will endeavour to answer them today or we could prepare written comments for you and I am very willing to present a letter on any matter of that nature, with the assistance of my colleagues. The answer to the first question is that it is most unlikely, but of course it is possible because, according to the procedures that we are likely to adopt, it will be possible for a Member to win the opportunity in a ballot to table a proposal for an order and it will also be possible for a Member to win a place in a ballot in the same manner for a measure, so it is possible for those two routes to be used, but the likelihood, I believe, for individual Members anyway, would be that the proposal, or the intention, to legislate by order and by measure would go hand in hand. Obviously from the Government's point of view, it is likely that the order will be the order first and then the draft measure following, but I would assume that it will be very important that there should be an explanatory memorandum accompanying every text involving the legislative process and that is important not only for us at the Assembly and for you in Westminster, but it is also very important for the public, for the voluntary organisations and for everybody outside Wales and beyond Wales who will be affected by whatever is prepared. Q53 Mr Jones: In terms of procedure, how do you anticipate the process for adding a wholly new field to Schedule 5 will differ from an application for an LCO in terms of an addition of a matter to an existing field or to vary an existing field? Lord Elis-Thomas: Well, I have lived with, is it three, is it four, is it five, different routes by which the Assembly accrues powers over the last seven and a half years? As far as we are concerned as to how we operate our procedure for subordinate legislation at the moment, the question is whatever form it comes in, whether it is in the form of a transfer function order, whether it is in the form of the original Government of Wales Act or whether it emerges from a Westminster Act of Parliament, the effect upon us is similar; it produces a piece of subordinate legislation which we then have been dealing with. Now, especially in our work in the Assembly Commission, the shadow commission looking at the new system as it will be from after the third Welsh general election in May, the way I try to approach it is to think, "How can we now take our current procedures, refine them and adapt them to deal with the new context?" I do not think it makes a difference how a field is redefined, as far as we are concerned, because that really is a matter that will be for inter-governmental discussion rather than for the Assembly itself to decide. Now, if the changes in fields impinge on us in the form of the nature of the measure or the breadth of the measure, then that is obviously a matter for us and there will be the facility for whomever will be the Presiding Officer at that time to declare competence as within the Act and that will be clearly a statement in the Assembly in all cases. Q54 Nia Griffith: (Through an Interpreter) What information and documentation will accompany proposed draft legislative competence orders? Lord Elis-Thomas: (Through an Interpreter) I have already mentioned the importance of an explanatory memorandum and that that is presented with each and every proposal, whether it be a proposal for an order or a measure. Of course that means that, if they are tabled by a Member or through a committee, and there may be an opportunity to discuss that in a little while, because I do see the possibility for the generation of applications for proposed regulations from committees and measures through committees, I think that could be a relatively effective way for us, considering the way we have worked to date. However, I would not want to set down exactly what should be included within a memorandum in its final form because obviously those will develop, but they will at least have to be as comprehensive as has been common practice in terms of the kind of explanatory documents produced in this House, thereby the explanation must be clear, laying out the intentions. If it is a measure, that should be done clause by clause or, if it is a draft order or a proposed order, then that too would have to be just as clear, but far briefer. What would be important, in my opinion, regarding an explanatory memorandum for an order is that it should state clearly that the proposal is competent within the areas laid out in the Act. Q55 Mrs James: (Through an Interpreter) You are not going to hear the pure language of the Tawe Valley from me, I am afraid! In any protocol governing the preparation of LCOs, should any guidance be provided as to the level of generality in which the new powers are expressed? Lord Elis-Thomas: (Through an Interpreter) Well, you have asked the question and, therefore, I am invited to enter into areas of protocol which are likely to present themselves, but I do think it is very important, and this might be the opportunity to say this, that any protocol should start by stating that it is an intention that these processes should be as open and transparent as possible. It is a difficult area, but traditionally discussions between ministers and inter-governmental discussions do happen confidentially, but ministers are also accountable for those discussions and, therefore, we have been discussing this area beforehand and I will invite my two colleagues to make additional comments here because it is an area that we are currently considering. We do believe that it could be appropriate for the First Minister, for example, to be accountable to the Assembly for anything which happens to a proposal for legislation. Now, once the Assembly has approved that, he will become responsible for it constitutionally in relation to what happens here, so any discussions which the First Minister has had with a minister, whichever minister that may be, in the Westminster Government regarding the application to legislate in such and such an area, I would predict that anyone presiding when that question was asked would believe them to be in order and, therefore, you could have an open discussion. That is just as important to me as what is included within the protocol because this is a new process, a new, legislative process and the protocols do have to be as understandable as possible. This concerns me greatly regarding this whole system and I do understand of course that this is the result of a political compromise, such as was the previous arrangement, but I do hope that it will be far more effective than the previous system, but, because of that, there is a danger that the procedures can be vague rather than transparent and that is anti-democratic, in my opinion. Now, that does not respond to the question entirely, but it does take us in a direction which might be useful. Q56 Mark Williams: It is likely that parliamentary committees may wish to see specific provisions included in certain circumstances, for example, authorising significant invasions of individual rights, such as compulsory powers of entry or inspection. Is there not a risk that the whole process of making LCOs could become attractive at this end through Westminster or Whitehall concerns? Lord Elis-Thomas: Well, I have hesitated to use the term "co-legislating" because it means all sorts of other things in the European context and in what I might call "proper federations" as opposed to the United Kingdom which is not yet a proper federation and may never be, but at least I would describe what we are talking about this morning as federal with a small 'f'. As to who does what, where and when, who influences what, where and when, it is, I believe, again a matter for how the process evolves. What is important is that the process is an open one and open to influence. Now, I will not answer in detail, it is a matter for Jenny Randerson, the Chair of the Standing Orders Committee, but I understand that the standing orders will be providing for an opportunity for pre-legislative scrutiny both of proposed and draft orders and indeed similarly of measures, so the opportunity is there, as you have heard already this morning, for you in Westminster or for us next door, both Houses, to take part in that pre-legislative scrutiny and it is possible for the Westminster input to happen at that stage. Now, I agree with you, it gets much more complicated if strenuous efforts are made to amend an order in council or a proposed order when it has finished its Assembly initial stages, as it were. If that happens, then it gets more complicated, but I would not seek to prescribe, or proscribe, in this area because I am not competent to do that, I am only competent to tell you what Assembly practices might be on the basis of certain principles, but I would not want to prescribe, or proscribe, what the House of Commons or the House of Lords might do. However, I think it is worth looking at the way in which the House of Lords in particular has looked at subordinate legislation as it has progressed through the Assembly up to now, and the view has always been, and I pay tribute to Lord Dahrendorf and his committee in the Lords for his understanding of all these issues and indeed for the quality of the explanatory memoranda produced by John Williams and others in the Wales Office, that they have established the principle that, where a matter has been scrutinised by a democratic body, it does not make much sense for it to be regurgitated, as it were, in scrutiny in another body. Now, I am not saying that that might not happen and that there might not be political reasons why certain Members might be free of course to do that if they want to, but in that situation it is for, as usual, the business managers of institutions to see how this might happen with the least disruption to other government business and so on. These are all issues of process and learning and I think it is more important that we learn how to make this system work than it is to try to prescribe in too much detail at this stage how it might work, in other words, if you felt free in your report to highlight some of the pinchpoints and some of the issues that might be problematic and then to say, "Maybe we should wait and see how Parliament, both Houses, and how the Assembly in its processes might be able to allow for these things to happen". However, I would point in particular to the importance of quality joint working, as we have already done, if we can achieve that, because that has worked very well when the Assembly Members have been involved in the scrutiny of Westminster draft bills and the same thing could happen in this more complicated process, I think. Q57 Hywel Williams: (Through an Interpreter) On current predictions, at least five sets of matters are likely to be added to the list of fields annually. What arrangements will there be in place to ensure that a consolidated list of fields will be available so that one can know exactly where one is at any given time with the very complex amendments and changes that could take place? Lord Elis-Thomas: (Through an Interpreter) This is a question that is relevant to our situation at present of course. Who knows what the law of Wales will be and the answer to the question is that David Lambert and Mario Navarro, they know. On the Wales legislation online website, it is all there, well, almost all of it, but this is not a satisfactory situation and I believe they are dutybound to ensure that this information is available in an understandable manner for everybody and it is our duty certainly within both Acts and it is a duty we will have to accomplish more effectively, namely to declare what the powers of the National Assembly are at any given time and perhaps to do this annually or perhaps reiterate it annually by setting out a clear and concise description on our website of what we can do because this is quite important for the democratic discussion and debate. It is not enough, in my view, to wait for the statements of the Presiding Officer of the day to say that this request for a measure or an order comes within the competence of the Assembly's powers. In order that the democratic process works, that information must be available to all interested parties and I will take that question home with me in order to have a think about it. Adrian, do you have any views on that, or Aled? Mr Eirug: (Through an Interpreter) I think one obvious point is the advantage of the Assembly website, which has been relaunched this month, in order to allow an opportunity to update the contents of the section of the Act and it gives a feel for what the Assembly is responsible for. Q58 Hywel Williams: (Through an Interpreter) I was just thinking that would be more than an annual statement because it would be updated at all times. Lord Elis-Thomas: (Through an Interpreter) I am sorry, I go back to the old-fashioned way of working. Yes, of course the website would be updated regularly. Q59 Mr Jones: This is possibly a question for Mr Crompton: what support will be provided for the preparation and drafting of proposed LCOs that emanate from committees or from individual Members? Mr Crompton: It would be a matter for Assembly parliamentary staff to support committees in that way. We have our own legal, clerking and research services, all of which provide support presently to allow committees to do that and individual Members to do that. Q60 Mr Jones: And you regard that as adequate or would it need to be augmented? Mr Crompton: For orders in council it is certainly adequate at present. The Presiding Officer can tell you more about the steps taken to augment the service in anticipation of drafting Measures. For orders in council I would not see a problem at all. Lord Elis-Thomas: Can I just add to that in terms of capacity. It is the responsibility, as you know, of the Assembly Commission to ensure that Assembly Members have the capacity to carry out their activities. I can make a commitment here today that we certainly intend to make sure that the support will be there for drafting because without that the entire system cannot function. That will require augmenting our present legal support. We have not yet decided how that is done because we have just appointed a new Chief Executive. The Welsh Government has already advertised for senior legal people, as no doubt you have seen. And we do intend, as far as possible, to operate a shared legal service with the Government, as happens in Scotland and elsewhere, but of course there will have to be that opportunity for advice which is not from government lawyers, whether they are seconded to us or whether they work for us under contract or as legal advisers who are not part of our direct staffing complement. We have to make sure that that is available. If you know of any parliamentary counsel who want to move to Cardiff I would like to have their email address. Q61 Hywel Williams: (Through an Interpreter) If I could ask you about Member-proposed orders. When we have reached the position whereby the Assembly has approved those orders, will it be the responsibility of the individual Member in terms of discussions with Westminster departments or will there be some support from the Assembly itself? Could you outline what the arrangements will be? Lord Elis-Thomas: (Through an Interpreter) That is an extremely interesting question and one that we have been discussing in our preparations for this morning. The legal position is relatively clear, I believe. The Member-proposed orders actually go through a process of approval in the secret ballot and then there would have to be a vote in the Assembly itself with a right to table that particular proposal according to the standing orders, as I understand them. Once they have come through that Assembly process and have been approved either as a draft proposal for an order or as a motion for a measure, then they will go through the same process whereby the First Minister has to inform the Secretary of State and then the drafts are presented here. Once they have left the Assembly, as it were, then Member-proposed orders and those emanating from committees have become proposals which have been approved by the Assembly as an elected body. There is no question that they should not have the same status but as one who suffered in this House as a result of failing to take a private Member's bill into being as an Act many years ago, I was (and am) very aware, as an individual Member, even with the support of Government as was the case in my case, of what can occur. I do think it is important that we ensure in the Assembly amongst the Commission officials, that the Clerk of the original committee that took the measure through or someone involved with the measure and who understands its context could be able to work alongside officials in this House or next door when the rest of the processes are gone through because I do not think that it would be appropriate to leave things there. Not that we intend to - and again this is all in our minds at present and I would like you to consider it - and obviously the First Minister is responsible for letting the Secretary of State know that and Wales Office officials are responsible for presenting the proposed legislation to you here, but I do think that it would be appropriate that there could be someone from our side holding the hand of the Member, as it were, or keeping an eye on what is happening. Does anyone else have a comment? Mr Crompton: Forgive me for responding in English. Lord Elis-Thomas: Do not worry, English is an official language of the House of Commons! Mr Crompton: Strictly speaking, it would be a matter for the Member in charge of the proposal to decide how and when they engaged with Whitehall departments. However, we would certainly look to provide advice to Members on taking the draft through the Assembly that they should do that appropriately, and obviously we look to facilitate that as best we can. Q62 Mrs James: Coming on to pre-legislative scrutiny, is provision to be made for a shortened or accelerated procedure that dispenses with pre-legislative scrutiny in certain circumstances, for example where a matter is merely of a technical or legal nature, is of minor policy significance, or perhaps involves a case of urgency? Lord Elis-Thomas: That is a very difficult one, the urgency one because urgency is usually determined by the Government. As somebody who was here in the early days of some of the emergency legislation in Northern Ireland, I very much regret some of the things I supported at the time, so one has to be very careful when dealing with urgency. The detail of this is obviously a question for Jenny Randerson as Chair of the Standing Orders Committee. As a matter of principle I am sure it should be possible within the standing orders for scrutiny to be dispensed with, but as a matter of democratic accountability I think it should be very exceptional. What our standing orders hopefully will provide and what arises out of the practice that we have undertaken so far is that we value scrutiny, we value having the participation, especially of civic society, of voluntary bodies and of campaigning organisations up close to our process of making secondary legislation and indeed our process of scrutiny of government policy and expenditure in the wider sense. So I would want to see pre-legislative scrutiny to be the order of the day, as it were, whenever there are proposals for orders or proposals for measures. I am suspicious of this view that is sometimes expressed that such-and-such is "only technical". I have heard so many ministers referring to clauses in bills and indeed sometimes to whole bills as if they were merely technical. Nothing in politics is merely technical. Everything has within it somewhere a democratic principle which we would need to address. I do take your point that occasionally we may not want to follow this or the Assembly may not want to follow it in future, but as a matter of principle the more the better, and the more you are involved at an early stage the better. The point of that is so as not to duplicate the giving of evidence by outside witnesses which is where, after all, the joint working between the Assembly committees and this Committee started. Q63 Mark Williams: Just to push you on a little bit further, notwithstanding what you said about the need for pre-legislative scrutiny, who is going to have the ultimate hand in saying that pre-legislative scrutiny is not to take place and if there were differences between the Secretary of State and the Assembly on that matter, how would you see those problems being resolved? Lord Elis-Thomas: It is quite clear to me that the Secretary of State's only locus in the Assembly is to make a speech once a year! There is no question about that. He or she may in future perhaps have inter-governmental relations with ministers in the Welsh Government but as far as the Assembly is concerned, as I say the Secretary of State is a distinguished visitor who makes - in case I have caused offence - very useful speeches and makes a statement and replies to questions. So who decides in the Assembly? It can only be the Assembly who decides and it would be the Business Committee. Again, this is a matter you can discuss with Jenny Randerson in greater detail. If necessary, it is a matter for the Business Committee to refer to an Assembly committee, and that is how it would happen. As regards joint scrutiny, that is a matter for you I would have thought, not a matter for government. If you insist on jointly scrutinising something with us then we would facilitate that. Our standing orders allow us to do that. I have not sufficiently refreshed myself recently on whether the procedures of the House of Lords enable that to happen yet, but I am sure it will be on its way so there could be joint scrutiny by both Houses and by Assembly Members. Chairman: I am certain that the Secretary of State was listening intently to your replies, particularly the last one! Q64 Hywel Williams: (Through an Interpreter) I think it is very interesting as regards which bodies are involved in pre-legislative scrutiny. You have answered that to some extent unless you would like to list for the purposes of the record how you see the bodies. Lord Elis-Thomas: (Through an Interpreter) As I have been invited perhaps it would be easier for us to think about what we could add in writing to that point after reading the record of this meeting because you will also receive comments from Jenny Randerson and the standing orders are already public. That is the relevant part of this discussion and work is almost complete. Once the standing orders have come before the Assembly and are adopted, it will be easier for me to discuss them. What is important to us is that the opportunity to undertake pre-legislative scrutiny is a crucial opportunity within the democratic process and it will give a new legality to the new process in the second Constitution post-2006 so that we will do this in a better manner and the people of Wales will have a greater impact on measures that will be coming out of the system and therefore an opportunity to make reference to the Business Committee, or whomsoever within the new system, to make reference to an Assembly committee. In that position there would be an invitation for committees from this place to participate in that process. Obviously two reports would be prepared. That is what we do at present; when we have a joint meeting two reports are published, and a report from the committee could be different to that which the Government in Wales intends to do or something which is acceptable to the Government here in Whitehall. Those are not matters for the Assembly because our job is to make this complex system work and to provide as many opportunities as possible for the people out there and for the organisations out there to be able to participate in the legislative process. Very recently, over the past few years it has started seriously here with the use of special select committees, as we used to call them, in order to scrutinise Acts beforehand. That is happening here but in our context there is an opportunity to discuss the propriety or the need for any legislation at all, which is a very valuable opportunity. That is what will happen in discussing proposals for possible orders. We are in a very interesting and new field in the process of drafting legislation but it is a more difficult question that we need to face up to in future to make more understandable legislation. Q65 Mr Jones: How do you envisage that the outcome of pre-legislative scrutiny be factored into the process of bringing forward LCOs? Lord Elis-Thomas: It would be in the form of a report from the committee. It would be presumably a report here as well at a particular stage. I think the timing of these issues, as I heard you discuss in earlier evidence sessions, is very germane to how effective the whole process is, but it would be in the form of a report. There is the particular case of course if something emerges from a committee. If a committee is, say, discussing a subject - and I will not take controversial ones like mental health legislation or fox-hunting, I will leave those aside this morning - so let us take a piece of countryside legislation that an Assembly committee might be looking at like countryside management in Wales and whether it might be done in a simpler manner. I will not go into detail otherwise I will become controversial again! Let us take a hypothetical countryside proposal for an order. If that is emerging from a study by a committee of a particular policy area, it would not make much sense for that committee to go back. Let me say that again so that it is clear. The committee looks at an area of policy, during the discussion it emerges would it not be a good idea to have some form of legislation in this area, so the committee then decides yes, we will do that, so of course being a committee, it does not have to go through a ballot like an individual Member and it has a route to propose legislation within the timetable of the Assembly. If it comes to that stage, obviously the Assembly committee itself will have undertaken pre-legislative scrutiny of its own as part of its policy formation work before it decided to have legislation. The question for you really here is whether it would be appropriate for you to be involved at that stage. My answer would be yes because the joint scrutiny already done between this Committee and committees of the Assembly has been very wide-ranging. The essence of the business is to allow witnesses to give evidence to a gathering of democratically elected representatives from two Houses, as it were, without having to repeat themselves on two or three occasions, as happened in the past. Q66 Mr Jones: Let us suppose that Parliament or the Secretary of State expressed severe reservations about a proposed LCO so that the draft had to be modified. Would you envisage in those circumstances that the whole process of pre-legislative scrutiny would have to be repeated? Lord Elis-Thomas: My short answer to that is hopefully not in the same year of business. Clearly these are political issues and every constitutional system produces new political questions and areas of political doubt and potential agreement and potential disagreement. We have been through all that in the seven and a half years we have worked the present system and we will go through it, I am sure, with this system. The important thing is that we go through it in an open and transparent manner so that we do not pretend that there is somehow not going to be conflict or that there are not issues that we would want to cover up. I would like to make one general comment here which is relevant to your question. I am not much entertained by this idea that the roof will fall in both in Westminster and in Cardiff Bay if there were changes of administration politically in either place. Goodness knows what the shape of the new Welsh Government and its Cabinet might be, especially after the events of last week; goodness knows what will happen here after the UK general election, but this has to work and has to be seen to be working through those elects and I am absolutely determined as far as I am concerned - and I very much hope to be re-elected as an Assembly Member although whether I might be re-elected as Presiding Officer is obviously a matter for the Assembly - and I am very keen to ensure that we make this system work. The way to make it work is to be open about these political pressures that any constitutional system generates. So I want the Secretary of State to be open when he or she disagrees with issues. I want the First Minister to be open, whomsoever he or she may be, and I want the Assembly, as it will always be, and its Members and indeed yourselves as Members of Parliament and colleagues in the House of Lords to be open about any disagreement, any constitutional issues, any principles that appear to arise surrounding any proposed legislative activity. That then is what will make this work as a transitional constitutional step. Q67 Mark Williams: Turning to the matter of the Assembly's approval of an order, if the plenary Assembly does not approve a proposed order, and the proposer wishes to continue with an amended or a replacement proposal, would the entire procedure have to be repeated? Lord Elis-Thomas: Yes, because it has fallen. It is like any attempt to introduce a private bill, any attempt to introduce a piece of legislation which does not have a majority; it presumably falls. There is no provision for doing it by the back door, is there, in standing orders? Mr Crompton: If we were talking about a private Member's proposal and the draft fell, then the Member would have no opportunity to reintroduce it. If we were talking about an Assembly Government proposal, then it would become a matter for the Presiding Officer to judge how close a reintroduced order was to the initial proposal and so whether or not the whole process had to start from scratch again or whether the pre-legislative scrutiny stage could be disapplied to that reintroduced order. Lord Elis-Thomas: And that again would be subject to agreement between government lawyers and whomsoever was Presiding Officer at the time. It is very important that we are working together on legal advice. Clearly there may be differences of emphasis - and there have been in the past even on our current powers - but that only works when that is resolved, and that is resolved by interpretation. That is ultimately for the courts if they go through those issues again, but we do not go there if we can help it. Q68 Nia Griffith: (Through an Interpreter) How would the Assembly's interests be safeguarded during the many steps of the approval stage? Lord Elis-Thomas: (Through an Interpreter) I am grateful for that question because I do think that I have been attempting to answer it in some of my previous attempts. Proposals for legislation, both kinds of proposals be they orders or measures, once they have been approved by the Assembly are under the responsibility of the First Minister and he must inform the Secretary of State. That is the constitutional position as I understand it. So there is no inter-parliamentary process between the Assembly and the two Houses here, but the interesting question for you is whether you think that there should be such a process which would support or be supportive of the political constitutional process between one government and another. If you did think that that was appropriate then how would that occur? One of the things that I have suggested - and perhaps it is minimalist on the level that we can provide it - is that one of the Commission staff, who would have been responsible for the original proposal as it travelled through the many steps in the actual Assembly, would actually follow its progress through the Houses here, but then they would also have been advised at an earlier stage, as Adrian suggested in one of his earlier answers, on the proposals being prepared for the individual Committee member or the committee so that there is an understanding of the likely processes here. That would then assist the Member in preparing something which would perhaps be acceptable. I believe there is an opportunity for discussion to take place, as Adrian suggested, or for advice to be given between the Wales Office officials who would represent the Government here and the officials or Commission staff who would advise the individual Member. This is a very complex area of course, but if the process is to succeed then I do think that it would be appropriate for us to have the kind of discussions that we have been having certainly over the last two years as we have attempted to influence the content of this compromise. I do think there has been a very good relationship between the Wales Office and the Assembly Parliamentary Office over that period. I do very much hope that that process can continue. Of course the Wales Office is part of government, it is part of the Constitutional Affairs Department in Westminster, but of course it has responsibility also for the goodwill and the benefits or interests of devolution generally, and I think the continuation of that is quite important. Q69 Chairman: (Through an Interpreter) There is only one question remaining and it is the final question and it involves timetabling. To what extent do you envisage that there will need to be special arrangements? Do you envisage arrangements to co-ordinate the timetable of pre-legislative scrutiny by the Assembly and by Parliament? Lord Elis-Thomas: (Through an Interpreter) I think this is something that I would like to consider further, Chairman, but in principle I would say that we do need to have a number of our staff in the Commission to be collaborating with officials here in Westminster in both Houses, and that does mean collaboration with those with responsibility for organising business on the Government side - on both Governments' sides - so that we can make the best possible use of time and the best possible use of parliamentary windows here. I listened to the earlier discussion and it is important that these orders are given due respect, and if there are people who are not supportive of devolution - as most of us are here in this room this afternoon and the gentleman after whom this room was named - it is important that people have the opportunity to feel that this does not undermine the United Kingdom. The way to do that is to show clearly that we can have procedures in place whereby what is contained within this Act can work on a practical and reasonable level, and that is why it is such an important question, but that is all to do with timetables of course. The window is here so that orders may be discussed. You could carry out the preparatory work required in pre-legislative scrutiny with our Committee and that is the means by which we could show people that it is possible for this new system to work up until the referendum is carried out - and neither you nor I, Chairman, know the date of that referendum as of yet. Q70 Chairman: (Through an Interpreter) Thank you very much on behalf of the Committee. We are extremely grateful to you for your concise, clear answers and on occasion eloquent answers. Merry Christmas! Lord Elis-Thomas: (Through an Interpreter) The offer is open if you do require any further written evidence from us. Witnesses: Ms Jenny Randerson, Assembly Member, Chair, Committee on Standing Orders, and Mr Gareth Williams, Clerk, Committee on Standing Orders, National Assembly for Wales, gave evidence. Q71 Chairman: Good afternoon and apologies for keeping you waiting. Could we ask you to introduce yourselves for the record please. Ms Randerson: Jenny Randerson, Chair of the Assembly's Standing Orders Committee. This is Gareth Williams who is one of the Clerks to the Committee who has done the detailed drafting of the relevant standing orders. Q72 Chairman: Could I begin by asking you a question about the legislative competence orders. How will the procedure for orders in council which add a new field differ from the procedure for those which vary an existing field? Ms Randerson: In practice they will not differ. We have put in the same procedures for both. We anticipate that it is an issue of the complexity of the specific order which is being sought that will influence the approach to pre-legislative scrutiny both here and in the Assembly. We are very much of the view when we have written our standing orders that we have written them so that we can learn a new procedure, and what we have tried to do is to produce standing orders which are as simple as possible in order to be transparent and accessible and also have a great deal of what we have called "white space" between the lines. We have done that on the recommendations of previous Clerks to the House of Commons. For that reason we have not sought to complicate matters, if you like to put it that way, by having different procedures for different types of proposal. Q73 Hywel Williams: This is a question that has already been asked of other witnesses. What information and documentation do you foresee will accompany the proposed and draft legislative competence orders? Ms Randerson: I think that the information would have to be in an explanatory memorandum. We don't have in the case of a proposed order a specific requirement as to what information will be in the explanatory memorandum. Ultimately obviously it is for members to judge what information should be included. In the case of a proposed order you would have your pre-legislative scrutiny which would involve taking evidence from witnesses, external stakeholders and so on, but in the case of a draft order we would be more explicit in relation to what would be in the explanatory memorandum. That would have to include an explanation of how account has been taken of any recommendations made by other Assembly committees and reports prepared by the Houses of Parliament and the reasons for any significant differences between the draft order and the proposed order to which it relates. Q74 Mr Jones: To what extent will parliamentary committees be provided with information on to the extent to which the existing law of England and Wales might be amended as a result of a proposed measure? Ms Randerson: The explanatory memorandum will set out what will be proposed. They are public documents and would obviously be provided to parliamentary committees. Q75 Mr Jones: To what extent will it explain the extent to which the existing law of England and Wales will be affected by the measure? Ms Randerson: The explanatory memorandum would not be doing its job if it did not set out in detail what legislation would be changed as a result of the proposal. However, the important thing is of course that it is a proposed order in council and the corresponding measure that comes from it, or series of measures which would be possible to come from it, would be a matter for the further stage, so we are looking at the competence of the Assembly at this stage and the fields of competence of the Assembly. Q76 Mark Williams: In any protocol governing the preparation of LCOs should guidance be given in terms of the level of generality in which new powers can be expressed within that protocol? Ms Randerson: Really this is not a matter for standing orders. I am sure however that the Assembly would welcome a protocol and I think that custom and practice will develop which sets out how general and how specific orders in council have to be. I listened with interest earlier on as Mr Ainger gave evidence and referred to this issue. He clearly anticipates it being fairly specific and I think probably in the early days it would certainly be that that would be the way in which the Assembly would work. Whether over a period of time one might work towards a slightly more general approach, I could not really say, but the issue is that it has got to comply with the Act. It has got to be therefore relatively specific and I cannot imagine that a proposal would be coming forward without a clearly anticipated measure coming from it, although that would not already have been drafted. The Member in charge will always have to make the decision as to whether it is specific enough to be acceptable to yourselves and to the Secretary of State. In relation to the protocol that is clearly going to be an issue from government to government. Q77 Nia Griffith: Can you tell us who will be responsible then for deciding that a proposed legislative competence order should not be subjected to pre-legislative scrutiny? How will differences between the Assembly and the Secretary of State be resolved? Ms Randerson: In relation to who decides whether there will be pre-legislative scrutiny or not that decision would be made effectively by the Business Committee and it would in many cases be something which would be initiated by the Government. I think there are probably two situations in which you would think there might not be pre-legislative scrutiny that is anticipated in the specific standing order that we have agreed. One would be in the case of an emergency and that would be for the Government to put its case to the Business Committee and the Assembly of course would have to agree that there should be no pre-legislative scrutiny because it could reject the proposal that this is an urgent matter and could require pre-legislative scrutiny. The second situation where we anticipate there might not be pre-legislative scrutiny included in the specific standing order is when effectively it has already taken place because it has been the subject of a committee inquiry. We have provision there that committees can initiate the order in council and therefore they can perhaps have already done a thorough pre-legislative scrutiny of their own, and so from the Assembly's perspective it may not be necessary to go through that process again. I think the issue here for you is that it will clearly be very wise for Assembly committees that have done an inquiry which leads them to put forward a proposed order in council for them to take evidence and information from yourselves and to take on board the views of both Houses of Parliament. Forgive me, I have forgotten the second half of your question. Q78 Nia Griffith: I think that is enough on that, we will come back to that in a second. If we could look at the issue of the involvement of other parliamentary committees when we are talking about pre-legislative scrutiny. For example, there could be instances where a parliamentary committee such as the Joint Committee on Human Rights might be particularly interested in a piece of legislation. Do you think that it is likely that other parliamentary committees will wish to, and how do you see that linking into the whole process? Ms Randerson: I think we have designed the standing orders in a way in which we leave the situation absolutely open and flexible for any committees that wish to make a report to do so. Clearly we have an issue in standing orders in terms of the timetable, so one of the positions in the standing order is that we can, with the agreement of the Assembly, go ahead without the report of a committee that has been looking at something. That is essentially there to allow government to get its business through and to ensure that a particular committee cannot hold the whole legislation up unreasonably. The Business Committee has the power to amend the timetable so if a Committee develops an interest somewhere along the line the Business Committee can take that into account and extend its timetable and so on. Within the Assembly we have an open option where any committee that feels it has an interest could put its report to the legislative committee set up to do the pre-legislative scrutiny, and in the case of Parliament it is very much up to you as to how you wish to examine the issue and to put your reports to the Assembly. Q79 Hywel Williams: When a committee proposes an order will there be any circumstances where the responsibility for its preparation and for relations with the Government here would then pass to the Welsh Assembly Government itself rather than be a matter for the committee? Ms Randerson: Can you just repeat the question. Q80 Hywel Williams: When a committee proposes an order, will there be any circumstances where it is the Welsh Assembly Government which takes responsibility for its preparation and then for any relationship or any negotiation with the Government here? Ms Randerson: I suppose there is nothing in the standing order which would prevent that happening but the standing order is written with the intention that when a committee proposes an order that it has ownership of that it nominates the Member in charge and it follows it through. I am aware that in Scotland, for example, on occasions the Government has adopted a committee proposal and has adopted a private Member's proposal and that in fact ensures that it is more or less guaranteed to go through, but the issue is of course that it will remain the committee's proposal unless there is the agreement of the committee that it hands it over. We do not specify anything like that procedure in standing orders and really it is a matter for the Assembly Parliamentary Service as it currently is, and the Commission as it will be, to ensure that it has all the resources necessary to see a proposal right the way through. However, I believe that behind the scenes there would certainly be discussion and it is important that there is a good liaison with yourselves in order to ensure that your views are fully taken into account. Gareth would like to add something. Mr Williams: Just to clarify in terms of what the standing order says. While the Government could in theory take on a proposal, a member of the Government could not be the member in charge of that proposal so it would have to be withdrawn and then taken on by the Government. Q81 Mr Jones: Will the preparation of an order proposed by an individual Member of the Assembly remain the responsibility of that individual Member? Ms Randerson: Yes it will and they have the right, if it is an order in council proposal to see it through and to see through the measure to the end. We do have provision in the standing orders that they could nominate another person to hand it to because we have envisaged that there might be situations where a Member might find, for a start, that their proposal has been so amended that they do not wish to carry it through or there could be circumstances in which someone starts a very worthwhile proposal that is making good progress and they cease to be a Member of the Assembly. We have got provision in the standing orders to ensure that it can be handed on to someone else, but the intention of the standing order is that someone who enters the ballot will see the whole thing through. There is one interesting aspect in relation to the ballot which is that when people put their names into the ballot they have to have a proposal and an explanatory memorandum prepared when they put their name into the ballot. That is really the recognition of our capacity issues in the Assembly. It has proved problematic to Assembly Members to get a fully developed legislative proposal in a reasonable timescale once their name comes out of the ballot. It is not like the situation here where if your name comes out of the ballot, I am aware that Members are besieged by proposals that are really quite well worked up for legislation. I think actually it is not just an issue of capacity in the Assembly; it is an issue of capacity in Welsh civil society. They have not yet produced lots of legislative ideas for us so we have put the idea that you will not put your name in the ballot unless you have a firm idea of what you want at the end. You can change the idea between ballots; you are not labelled with that idea forever and a day. Q82 Mark Williams: You have heard this question for the third time now but it is your turn to answer. In pre-legislative scrutiny is provision being made for shortened or accelerated procedures which would dispense with pre-legislative scrutiny, for example in the situation of an emergency or technicalities? Ms Randerson: Yes and I think actually I have touched on it earlier on when I answered Nia Griffith's question. Yes, there is a procedure in the standing orders that recognises the issue of an emergency. It does not specify urgency, it does not specify technicality, and I share the Presiding Officer's view of technicalities that what we regard as a technicality today comes to be considered an issue of basic principle tomorrow. We all recognise that emergencies do occur but the Assembly would have to agree that this is something which does not require pre-legislative scrutiny. We have built pre-legislative scrutiny in as something that we regard as a fundamental part of the process, partly because we recognise that in order to co-operate and to develop what we see as the important relationship with yourselves, we have to have a robust pre-legislative scrutiny proposal so that you are convinced that it has been well thought through and well examined. We also recognise that pre-legislative scrutiny makes much better law. Q83 Nia Griffith: You say there that the Assembly has the last say in terms of whether something should be subject to pre-legislative scrutiny, but supposing the Secretary of State disagreed on that issue? Ms Randerson: I meant within the Assembly, it would go to the Assembly as a whole rather than being a Government decision. That is to clarify my previous answer. Once of course it has left the Assembly, if you want to put it that way, then it is down to the Secretary of State who could reject the order or he could order pre-legislative scrutiny which would take place here and effectively would ensure that it took place in the Assembly. So as regards the end of the process, it lies with Parliament and therefore we would have to respect that. However, having said that, I very much hope that we would not have a position where the Secretary of State had to intervene at that late stage. I would expect a Secretary of State who had concerns to have raised them much earlier on through the regular channels of government-to-government communication, and even if it was not a Government proposal then it would be something that the Government would have to communicate. It is a case of being politically sensitive to the situation, but I was reassured by the comments earlier on of Mr Ainger that he would not regard it as a likely situation that draft orders in council would be rejected by the Secretary of State. Q84 Nia Griffith: Are you therefore confident about the Assembly's own procedures that it would give an opportunity for pre-legislative scrutiny not only perhaps to those committees which have an obvious interest but in fact to any committee across the Assembly or any Member who may have a peripheral interest in it? Ms Randerson: There are numerous ways. We are proposing the establishment of ad hoc legislative committees for each piece of proposed legislation. We would expect that all relevant committees of the Assembly - scrutiny committees and committees such as the Equality of Opportunity Committee, which is specified in standing orders, and although it has not been officially approved yet but I can be fairly confident that there is absolute cross-party support for an Equality of Opportunity Committee - to put in reports or to give evidence and information to the legislative committee. We would also expect civil society, voluntary organisations, and so on, also to be giving evidence. I think we have written the standing orders in a way which does not prevent but which enables at every stage. Q85 Mr Jones: How do you envisage that the outcome of pre-legislative scrutiny will be factored into the LCO process? Ms Randerson: I very much hope that the outcome will be a report of the committee and that will be presented to the Assembly via the explanatory memorandum. If there had been any significant changes to the proposed order in council by the time it gets to the draft stage, then the explanatory memorandum would have to explain that in detail, so that it would be factored in at every stage and you would have the full information as to why any changes had taken place. Q86 Hywel Williams: To take that point about changes further, if there was an order proposed and it had to be modified substantially because of serious reservations by the Secretary of State or because of the same thing by Parliament, would the standard scrutiny procedures then have to be repeated? Ms Randerson: The standing order does not require that but of course the explanatory memorandum would have to explain it. However, I think there would be a political judgment to take as to whether the Government decided to go back at least partially through the scrutiny procedure. You would have an ad hoc committee established to do it so there would be no reason why that committee could not look at it again. It would be a perfectly simple process to dip your toe back in the water again and see whether further work needs doing. Q87 Hywel Williams: That is going to be a matter of judgment as and when? Ms Randerson: Yes and it will a matter of judgment by the Government which will be responsible for most legislation, or the Member in charge of the committee proposal, and so on. It would be a matter of judgment as to whether they felt that they had explained enough why they had changed their proposal in order to still get the support of the Assembly as a whole. I would however say that there is no point in having pre-legislative scrutiny if you are not going to change things, and therefore I would see changes in the proposal as a sign of a strength of the process rather than of a problem. The only time it would be a problem is if in some way you have turned the whole proposal on its head and you have got an idea and you have decided to completely change the principle on which it is based as a result of the pre-legislative scrutiny. Q88 Hywel Williams: Can I ask you about approval by the Assembly itself. If the plenary of the Assembly does not approve an order, and the proposer wants to continue with an amended or replacement proposal, would the entire procedure have to be repeated? Ms Randerson: If a draft order falls - it cannot be amended of course because of the 1946 Act - then it falls and the Government would have to go through the whole procedure again as the Government and so on. In the case of a private Member's piece of legislation then there is a detail in the standing order which says a similar proposal cannot come forward for another six months, so if it falls, it falls. Q89 Chairman: Could I ask the last question and that is to do with parliamentary approval and safeguarding the interests of the Assembly. Could you make some observations about how one would envisage safeguarding the interests of the Assembly during the approval stages? Ms Randerson: I think the important thing is that if a good working relationship through joint scrutiny, which has been referred to lots of times this morning, has grown up, then the whole process will have safeguarded the Assembly's interests. In formal terms, however, the interests of the Assembly will be safeguarded by the explanatory memorandum and the report of the committee. After all, both the draft order considered here and in the Assembly will have to be identical so they should be informed by very similar information, should they not? I think that the Assembly's interest will also of course have to be safeguarded by informal relationships government-to-government and Assembly-to-Parliament. I very much hope that we will develop the habit of joint scrutiny which I regard as efficient in terms of everyone's time as well as the most effective way forward, and I think that is what will be the strongest thing that will safeguard our interests. Joint scrutiny will be useful in terms of not just hearing the same evidence but also being able to understand in detail viewpoints and concerns from one side to the other. You will have concerns and we will have concerns and it is important that those are aired and we are able then jointly to scrutinise something from the same basis. It will also save time because there is not much point in us reading your reports as well as doing our own scrutiny and you reading our reports as well as doing your own scrutiny. In terms of time saving it will be better if we did it jointly. Chairman: On behalf of the Committee, could I thank you very much for the thoroughness of your answers. I must say that this has been a most instructive and constructive session this morning and there is a remarkable degree of goodwill and willingness to work together that augers well for the future. We look forward to working with you. Merry Christmas and a Happy New Year. |