Members present:

Mr Martin Jones, in the Chair
Mr Martin Caton
Dr Hywel Francis
Julie Morgan
Adam Price
Mr Mark Prisk
Mr Bill Wiggin
Mrs Betty Williams
Mr Roger Williams


GEOFFREY BOWMAN CB, First Parliamentary Counsel, and DAVID COOK, Deputy Parliamentary Counsel, Parliamentary Counsel, examined.


  1. Good morning, Mr Bowman. We are very grateful for your coming here this morning. Could you introduce your colleague and say a few words about yourself and the role of the Parliamentary Counsel?
  2. (Mr Bowman) Certainly. This is Mr David Cook, who is a Deputy Parliamentary Counsel in my Office. The Parliamentary Counsel consists of 51 professional drafters, plus support staff; all the drafters are qualified lawyers. We are called Parliamentary Counsel because our business is to draft Bills and to help to see that they get enacted. We are not servants of either House, although we work very closely with both Public Bill Offices. We are civil servants, and so essentially we draft Bills for the Government of the day. We operate in small teams of two or three counsel, and the head of each team is a senior member of the Office, and the others are junior members. It takes about seven or eight years for a recruit to learn the job, working as a junior for different teams in succession. I became the First Parliamentary Counsel in August this year; that means I am the Head of the Office, and the post carries the rank of Permanent Secretary. I should just mention that we are not concerned with the formulation of policy; we are essentially very specialised technicians. It is part of our job to point out any logical flaws in the Department's proposals, but in the end the policy is for others, and, of course, ultimately, for ministers, not for us; our job is to turn the proposals into workable, legal rules. We receive instructions to draft Bills from lawyers attached to Government Departments, and if a Bill affects Wales the Assembly's civil servants will liaise with the civil servants in the relevant UK Department, maybe DEFRA, or DTI, or whatever, and we will then receive the Welsh material from that Department's lawyers. But, if everyone agrees, we are very happy to receive instructions directly from the Assembly's lawyers on matters affecting Wales, and the policy of the Parliamentary Counsel Office is to be helpful and flexible, and that is how we go about our business.

  3. Thank you very much indeed. The Assembly has some limited powers to amend primary legislation in the secondary legislation way; do you review any SIs that are made by the Assembly to primary legislation?
  4. (Mr Bowman) A few years ago, it became evident that there were an increasing number of powers to amend primary legislation by secondary legislation, and the work was not being done all that well, to be honest, and our Office instituted a procedure whereby we were to vet any secondary legislation which amended primary legislation; this was with the full consent of the Whitehall Departments, and the system has been working smoothly. The same procedure operates if the Assembly, secondary legislation amends primary legislation, and we are very happy to do that, and so far we have done a few of those, in the same way as we would do for anybody else. It is really up to the Assembly officials whether they want to consult us, and so far they seem to have felt that they would like to consult us.

    Chairman: That is encouraging.

    Mr Caton

  5. Several methods are currently used to confer new powers on the National Assembly in primary legislation: amendments to the Transfer of Functions Order, amendments made directly to Acts listed in the Transfer of Functions Order, powers that are conferred on the Assembly directly by new Acts, and amendments to the Government of Wales Act. Could you explain to us why different methods are used for different Bills?
  6. (Mr Bowman) Yes. I have done some background reading for this. I was given some material by the Clerk, to whom I am very grateful, and this issue is dealt with in a paper prepared by Professor Keith Patchett and John Osmond, and, in fact, the Parliamentary Counsel Office has undertaken its own internal review of the matter. Now the issue is rather technical, but I will try to keep it fairly simple. Of course, we start with the fact that many functions were transferred to the Assembly by the main Transfer of Functions Order of 1999. To take just one isolated example, certain functions under the Highways Act 1980 were transferred to the Assembly. I know that the Order has been criticised on account of its piecemeal nature and its complexity; that is an issue of policy and, of course, outside my sphere, but certainly people were expecting many of the functions to be transferred in that way, and since then other subordinate instruments have conferred further functions on the Assembly. When we get to primary legislation, certainly many functions have been conferred directly by such legislation, and an example occurs in Part II of the Learning and Skills Act 2000; it establishes the National Council for Education and Training for Wales, and it also provides for the Assembly to appoint the members of the Council, it allows the Assembly to make grants to the Council, and so on; it is an entirely Welsh part of the Statute. Now we really get to the technical bit. Sometimes an Act is referred to in the Transfer of Functions Order of 1999, and it is amended by a later Act, and the new provisions inserted by the amendments may confer functions on a minister, and suppose the policy is that they should be conferred on the Assembly, so far as Wales is concerned. To secure that, the amending Act might provide that the reference in the Order, the 1999 Order, to the original Act, is to be construed as a reference to the Act as amended. So, for example (it is easier to take a concrete example) the Countryside and Rights of Way Act 2000 amends the Highways Act 1980, to which I referred a moment ago, and provisions inserted by the amendments confer functions on a minister; the Act of 2000 provides that the reference to the 1980 Act, in the Order, the original Order, includes a reference to the 1980 Act as amended, therefore securing that the powers are exercised by the Assembly, as regards Wales, and this secures that the 1980 Act referred to in the 1999 Order is treated in a consistent way, as regards Wales. Occasionally, an Act amends the 1999 Order by slotting in a reference to the Act itself, and I know of only two cases; people seem to make a bit of a meal of this, because I do know of only the two cases; each one is very specialised and the solution is also almost demanded by the special circumstances. And you mentioned the amendment of the Government of Wales Act itself, I think. It is true that sometimes functions are conferred on the Assembly by amending the Act of 1998. For instance, the Act contains quite a lot of provisions about the Assembly's finances. Then an Act of 2000, the Government Resources and Accounts Act, came along and amended the 1998 Act directly by inserting further provisions about the Assembly's finances; and it seems to me that is a perfectly legitimate thing to do, because all the functions relating to the Assembly's finances are then in the same place. And I can summarise the position like this. Different functions are conferred on the Assembly in different ways because, in some cases, the background is different from the background in other cases; each drafter is not necessarily facing the same problem; he, or she, will adopt the solution which appears to be the most apt in the circumstances concerned.

  7. I thank you for that very interesting answer. Accepting what you are saying, that that is the situation at present, do you think there is any way that we can move towards what will be clear to the layman as something, a much more consistent approach for empowering the Assembly?
  8. (Mr Bowman) The short answer is, I do not know. I think that we are in a position where it is too early to say. I think that, after four years, we have seen the system develop, and I think it has got a bit further to go. I would certainly like us to be able to adopt a more consistent approach, but I do not think we are ever going to get a single approach. I think the ideal would be if we could always confer functions directly by the primary legislation; and I certainly propose to discuss this with my colleagues and see whether there is a more consistent approach. But I would not like to hold any great promise on that at the moment; we will have to look into it. Can I just give you a quotation from Richard Rawlings, in his paper Quasi-Legislative Devolution: Powers and Principles. He says: "One could hardly envisage uniformity in legislative style and substance, such are the multifarious situations or policy contexts of contemporary public administration." I think that is a very telling comment.

  9. I think we will come back to Professor Rawlings a little bit later. From what you are saying, you do not see us ever reaching a state where you could have just one method of transferring power?
  10. (Mr Bowman) No, I do not, because we have got the Transfer of Functions Order in place, and we may always have to tinker with that, or gloss it, or whatever; and then we have got the possibility of many pieces of primary legislation coming along later, and it will be up to the draftsman concerned to adopt the solution he considers best. That is as far as really I am prepared to go, at the moment, I am afraid.

    Mr Caton: Thank you, Mr Bowman.

    Dr Francis

  11. To what extent do you think it is feasible or desirable to group provisions together relating to Wales in a separate Part of each Bill?
  12. (Mr Bowman) Can I answer this firstly by looking at, again, the Learning and Skills Act 2000. Its approach seems to have found very much favour in Wales, which pleases me because I was the draftsman in charge of the Bill. Part I of that Act sets up the Learning and Skills Council for England, and contains a number of provisions dealing with the Council; then Part II does the same for the National Council for Education and Training for Wales. Part III deals with inspections in England, and Part IV deals with inspections in Wales; and then Part V contains miscellaneous provisions, and, on the whole, it deals with any special provisions about England and Wales, separately, as they come. In other words, the Act proceeds by reference to the subject matter; as each subject is dealt with, any separate provisions for England and for Wales are included. The question that you are asking seems to imply that the Act should deal with all the English material together and all the Welsh material together, irrespective of the subject matter. I think that that would produce a somewhat distorted picture, because what really matters to the reader is the subject matter, not that it happens to be English or Welsh. In other Bills, it is not possible or desirable even to go as far as the Learning and Skills Act goes, and to divide up the material in such a clear way. For instance, you might get long provisions whose legal effect is to be exactly the same in England and Wales, except for some possible differences; one might be that the Assembly is to exercise powers in Wales and the Minister is to exercise them in England, and another might be that the definition of local authorities is to be different, for example; the drafter will deal with those variations as he, or she, comes to them. It would be wasteful to set out the provisions for England and then virtually to replicate them for Wales; you would get an Act that was twice as long as it needed to be.


  13. I am sure you are right, Mr Bowman, but I think, in terms of scrutinising the legislation, it would be much, much easier for those of us who are concerned about legislation affecting Wales if that were the case. I can understand the argument against it.
  14. (Mr Bowman) I agree entirely with that; but it is a matter of balance, I think, and judgement, and what is best for ministers in trying to get the Bills through the House is a very pertinent factor. If we were to say that all Bills affecting England and Wales from now on are going to be twice as long as they need to be, to set out the provisions separately, I do not think we would be thanked by ministers, who have to take the Bill through the House.

    Chairman: The Opposition would probably be quite happy with that though.

    Mr Wiggin

  15. Obviously, as Opposition Members, we are concerned with the best possible legislation, rather than the ease with which it goes through, we want the best for both England and Wales. Would you say that the current situation probably delivers that, and that tinkering with it, in the way that you are having suggested to you, is actually going to be detrimental?
  16. (Mr Bowman) What, setting it out separately for England and Wales?

  17. Yes?
  18. (Mr Bowman) I am not sure that I am the person who should give you the answer, but I can tell you the factors on both sides of the equation. Would it be better for the ultimate consumer to have the thing set out separately? Because he, or she, would have to compare them for England and Wales and discover the differences, and you might discover, in fact, that there are none, or you might discover that there are two tiny differences; and I think it would be frustrating to have to do that. That is one factor. The other factor is getting them through the House. On the whole, we take a pragmatic approach. If the differences are significant then, on the whole, we would go for setting them out separately, as in the Learning and Skills Act; if the differences are not significant, on the whole, we would not go for separate provisions, we would go for unified provisions but setting out the differences as we came to them. And I think that that is as far as I can go on that one. It illustrates the first rule of legislative drafting, which is that the draftsman can never win, he can never satisfy everybody, but he can do his best. I hope that is a reasonably satisfactory answer, that we have just got to take each case as it comes.

    Mr Williams

  19. But the ultimate consumer will be interested in situations as they arise in England or in Wales, and will not necessarily be interested in comparing the differences between them?
  20. (Mr Bowman) They may not, necessarily, but some may be.

    Dr Francis

  21. You have been very, very helpful in distinguishing between the role of the technician and the policy role, but I suspect, and this is just an observation, that we are now in new territory, because of devolution, and that your role is spilling over into a kind of policy area, because you are suggesting to us that the ways of drafting it are better one way rather than another, which seems to hint at the fact that you are actually moving into a policy area. That is not a criticism; what I am saying is that it needs to ensure that people like ourselves need to be vigilant about this, and there are great opportunities for transparency and clarity and, as everyone has said here, the need to ensure that we get the very best possible legislation. There are different views on that, are there not?
  22. (Mr Bowman) Certainly, yes. I think that presentation is what we are talking about, essentially, how to have it presented to the reader, how it is most helpful to the reader. It is scarcely policy, yes, but, ultimately, the form of a Bill is something on which ministers will have a view, and if there is an issue we will have to answer them. But, subject to that, it is for the drafter to decide, to balance the issues and to take the most pragmatic line in the circumstances concerned; you have got to have an eye not only on the ultimate consumer of the Act but also those who have got to look at the Bill as it goes through Parliament. It is two documents, in other words, two different documents, and you have just got to take all these considerations into account. Perhaps I could just add something on this, on this particular issue. I admit that the result is that, often, the provisions relating to Wales will be scattered throughout the Bill. And sometimes we are asked the question, should the provisions in the Bill which affect Wales be pulled together, or should there be an informative provision in the Bill, say, at the end, saying, "All the following provisions affect Wales," and then just listing them; we do not like that sort of thing, it has no effect in law, it is merely informative, explanatory, and, on the whole, we think this explanatory material should be kept out of Bills, it always creates problems. Just to take one small illustration. Supposing a last-minute amendment affecting Wales was put into the Bill, and everybody forgot about the explanatory provision at the end and that was not amended, the explanatory provision would be wrong, and therefore misleading, and, in my opinion, worse than useless. But we do have a solution, and it involves explanatory notes, and I think you have been given a document about this; I do not know whether you want me to discuss this now or you would rather leave it till later; shall I deal with that now?


  23. Yes, I think that would be appropriate.
  24. (Mr Bowman) As you know, Bills are now accompanied by explanatory notes, and once a Bill is enacted the notes are revised and become explanatory notes for the Act; they are not part of the Bill or the Act, but the reader is helped considerably if the notes contain an explanation of the way in which Wales is affected. The notes are prepared once it is known what the final text of the Bill or Act will be, so there is time to consider the Welsh implications and state them fully in the notes; you do not get the same sort of problem as you do taking a Bill through very quickly, so you have got time at the end to consider them. Now this question of including something about the Welsh implications has been under consideration for some time, and there have been discussions between the Parliamentary Counsel Office and the Counsel General to the Assembly; and these discussions were concluded last week, when I asked the Cabinet Office to secure that something about Welsh implications, in fact, should be included in the notes; and you have got that in front of you, I believe, what is proposed to be put in the guidance. Now, as I understand it, the agreement is this, that Departments are going to be required to include something in notes prepared after 1 January 2003, and they are going to be urged to do something before that time, and I think the ultimate effect will be that all the Acts of the 2002-2003 session will have explanatory notes, setting out the Welsh implications. So that should be a great step forward, I hope. So that, even if you have not got the guidance in the Bill itself, you can just look at the notes, and there you will see, fairly near the front, a provision setting out what the implications for Wales will be, and I hope that is an attractive solution.

  25. That sounds very helpful. Who would be drafting the explanatory notes; would it be still yourselves, or would it be in conjunction with the Wales Office, or with the Assembly, or all three of you?
  26. (Mr Bowman) The notes are not our instrument, they are not a document of the Parliamentary Counsel Office, they are a document prepared by the Department in the lead. So far as Welsh material is concerned, I have no doubt that they will consult the Assembly civil servants. The notes are vetted by us because they have to be accurate, and there are certain conventions in drawing them up; for instance, they should not contain anything political or argumentative, they should be fairly deadpan, just giving a straight explanation; and we vet them to secure that there is no objectionable material and to secure that they are accurate, but they remain the Department's document.

    Mr Prisk

  27. Some people might argue there may be a case, possibly, for consolidating the Assembly's legislative powers, and I think you may have touched on this in some ways. Could I turn that round and ask whether you feel, from the draftsman point of view, that a Consolidation Act would actually help in any way, or, for that matter, hinder the drafting of Bills in the future, or is it actually simply an irrelevance?
  28. (Mr Bowman) It is certainly not irrelevant, no. I think we start off with the proposition that the Assembly's powers are scattered throughout the Statute Book, as we have illustrated. It arises from the nature of the devolution settlement, the way that the Assembly acquires its functions, it is on an incremental basis, and the Assembly can no doubt expect to acquire further functions in the same way; so there is a problem, that we have got this vast array of functions. I assume we are talking about the Assembly's legislative powers, mainly, are we, rather than its general powers?

  29. We are, yes; that is, within your purview.
  30. (Mr Bowman) So the problem is, how to identify these powers, that is essentially the problem, is it not; how you find out whether they have been exercised, that is another problem; how do you find out what the law is once the powers have been exercised? I suppose those are the problems, but the essential one you are dealing with is how do you identify the Assembly's powers in the first place. This problem, of course, is separate from the one we have just been dealing with, identifying the provisions of an individual Bill or Act which apply to Wales, and that can be dealt with in the explanatory notes; this is looking at the Statute Book as a whole, that is all the Acts, and all the secondary legislation, for that matter. Sorry about that long prelude, but I just thought I had better establish the precise grounds on which we are operating. Should there be a consolidation then? I have thought about this and I honestly doubt whether it would be of much practical use; but something else which I am going to mention would be of greater use. Firstly, the consolidation. When you consolidate, normally you expect the consolidated law to stand still for a while, otherwise the consolidation is out of date almost as soon as you have prepared it, and that tends to defeat the object. So normally we embark on consolidation when we are pretty sure that the law has settled down, or is about to settle down. In the case of the Assembly's powers, they are by nature unlikely to settle down, they are bound to grow.

    Mr Wiggin

  31. Why?
  32. (Mr Bowman) Because each time you get a new Act, relating to England and Wales, the question will be how is the Assembly to come into this, is the Assembly to have any powers.

  33. That is not the same; that implies that the Assembly will then have more powers?
  34. (Mr Bowman) It may be that it will, or it may not.

  35. That is not necessarily a given, is it?
  36. (Mr Bowman) No, it is not, necessarily, at all. It is not for me to say, it is for ministers to say.

  37. But you just did; that was the problem. You just did imply that?
  38. (Mr Bowman) No. I said, realistically, I think it is likely that the Assembly will continue to acquire new powers. Do you think that that is straying into a policy area and I should not have said it?

  39. I am going to ask you a question about that, which is that, if you really feel that, because of the way that the legislation is spread across the Statute Book at the moment, and that you want, or you may not want but, as you say, it will not make much practical use to consolidate, if such a consolidation did take place, that would therefore, potentially, increase the powers of the Assembly; do you not think that we ought to have a referendum before that is done, because that is not what was spread across the Statute Book in the first place?
  40. (Mr Bowman) I am not going to answer any questions about referendums, or anything like it. Can I just correct you on one issue of fact.

    Chairman: I will defer to Mr Wiggin with pleasure.

    Mr Wiggin: I wanted to hear his reply.


  41. Now you can hear Mr Bowman's reply. But I will say to Mr Bowman, he does not have to answer, unless he wants to, questions about referenda.
  42. (Mr Bowman) I am not going to answer anything about that, no. One point you made was, you said that if we had a consolidation that would increase the Assembly's powers?

    Mr Wiggin

  43. That was what I understood.
  44. (Mr Bowman) No, it would not. The nature of a consolidation is that it does not change the law one jot, generally speaking; it reproduces the law; all that consolidation does is pull the powers together in one document, and state what they are, but it does not increase them, it does not diminish them, it does not do anything to their actual substance, the powers remain exactly the same. So this is not a political document at all, it is purely one of legislative drafting housekeeping, keeping the place tidy. Does that help; this is what you meant, is it not, by your question?

  45. I am quite happy with that reply, to start with, particularly as the sort of final part is whether or not this will help or hinder future legislation. But, from what you said earlier, which suggested that you felt that the powers of the Assembly would grow, which I believe is the intention of the Government, my problem with that, so to speak, is that if a Consolidation Bill, or a power-enhancing Bill, were to be put, would that be something that would require this Parliament to revisit the powers that were originally given to the Welsh Assembly?
  46. (Mr Bowman) No; and I take issue with the phrase that you used, a consolidation being a power-enhancing Bill; it would not be.

  47. I heard your reply. It was you who suggested that the Assembly powers would grow, and that is where perhaps our disagreement has appeared from?
  48. (Mr Bowman) Right. Well, in that case, I apologise, if I have been misleading, I did not actually think I had; but, nevertheless, there we are, I am sorry about that. But the position is this. Let us say the Assembly has, just for the sake of argument, 500 powers and they are scattered all over the Statute Book; all that we want to do is pull them together into one place, so that people can see where they are. There remain 500 at that stage. All I am saying is that at this time next year there may be 550, I do not know, I have no idea; this time ten years hence there may be 1,000, who knows. The likelihood is, looking at it realistically, that there are going to be more powers in ten years' time than there are now, so they are going to keep growing. And what I am saying is that it is very unlikely that you will come to a situation, in the foreseeable future, where you can say, "Right, the Assembly has now got all its powers, it's not going to change for a while, we can pull them all together in one document." So that, from a consolidator's point of view, it would not be a sensible thing to embark on, because you are always having the ground moving under you. Is that clear? Thanks; that was what I wanted to get across.

    Mr Wiggin: A Point of Order to the Chairman later.

    Chairman: A Point of Order. A Point of Order, Mr Wiggin. I am so interested in this.

    Mr Wiggin: I am just curious as to why you overruled my question and said he did not have to answer.

    Chairman: As I made quite clear at the beginning, Mr Bowman is not responsible for policy, and you were straying into policy areas, Mr Wiggin.

    Mr Wiggin: A referendum, as I am sure you would accept, Chairman, is actually a legal thing.

    Chairman: It is a matter of policy, for the Government.

    Mr Wiggin: Whether or not we held one; but the actual legitimacy of the laws behind it would be drafted.

    Chairman: I have ruled on a Point of Order, Mr Wiggin; so, belt up.

    Mr Caton: We seem to be making heavy weather of this. You were going to tell us, I think, an alternative to consolidation, and I think that is what we would really like to hear.

    Mr Price

  49. Before we get on to the alternative, and to give you some respite from this anti-devolutionary nonsense here, could I just ask, would it not be possible - and maybe this is tautological, and apologies - to have a Consolidation Bill which sets out the current position, and then, in any future Bills, which confer new powers, which is likely, and desirable, in my view, that those Bills could also amend the Consolidation Bill, and then you could still have - do you follow my argument?
  50. (Mr Bowman) I do; but the trouble is that you do not have the one single text, as a consolidation gives you, you have still got to look at the amending legislation to update your original text. And the idea of the consolidation is to get one, consistent, original text; that is the problem. That is the first issue relating to any possible consolidation, that, because you have always got the ground potentially moving under you, it is not a very sensible thing to embark on. The other is that I imagine that the reader would want to discover not only what the Assembly's powers are but, in the case of any given power, whether they have been exercised, and that would not appear from a straight consolidation. And then there is a third matter, and that is that consolidation is a difficult technical exercise, and it needs resources; it needs at least one drafter, it needs somebody servicing it in the Department, not only a lawyer but also a policy-maker, because often anomalies tend to creep out of the woodwork when you get going with a consolidation, and you sometimes have to have a policy input. Now all these resources are fairly scarce. I am not saying they would not be available, by any means, but they would have to compete with other calls on those resources, particularly the drafting resources. So, on the whole, I would say a consolidation is not a particularly attractive way forward, largely because it would be out of date almost as soon as you had done it. So what is this alternative solution I have mentioned, of identifying the Assembly's powers? I understand that you have actually had informal words with the Counsel General to the Assembly and the Permanent Secretary, and I believe that they have come up with an idea to produce something, probably in electronic form, that would tell the searcher what the Assembly's powers are on a given subject, and I think it would probably also say whether they had been exercised, and the Instrument by which they had been exercised, and, who knows, there may be a link electronically to the Instrument itself. I do not know, it is too early to say precisely what form this device would take. But they are undertaking, as you know, I think, a scoping study on this, and it is heartening to know that there has been a clear recognition that there is a problem. But I think that that is the way forward, to try to produce some sort of electronic thing which is constantly updated so that you know at any given time what the Assembly's powers are, and I would have thought that was a much better way forward.

    Julie Morgan

  51. Mr Peter Jones, Counsel to Assembly Committees, highlighted the variations in terminology which are used when referring to the National Assembly in a Bill. And he told us that: "I think there is a lot of merit to be said for greater consistency in the terminology of primary legislation. For the outsider it can be rather confusing if you refer to the 'appropriate minister' in one Act and refer to the 'Secretary of State' in another Act and then have another provision saying 'for references to the Secretary of State there should be substituted references to the Assembly'. I think there needs to be good reason for utilising different terminology." And I wondered if you could explain to us whether there were any legal reasons behind using this terminology, or are they just a difference of drafting style?
  52. (Mr Bowman) I think that what essentially we are dealing with are the two main approaches. One is, as you say, to refer throughout a piece of legislation affecting England and Wales to something called, let us say, 'the relevant authority' or 'the appropriate authority', or whatever, and then you define it, as regards England, as the Secretary of State, and, as regards Wales, the National Assembly. And the other approach is to refer throughout to the Secretary of State and then you have a glossing provision at the end, to say, "Oh, no, I don't mean the Secretary of State when you're thinking about Wales, I mean the Assembly." Those, essentially, are the two different approaches. The short answer to your question is that these differences are largely a matter of taste, and they have no legal difference, no legal significance. On the whole, I prefer the first approach to the second. And, prompted by the researches I have been doing to prepare for today, I propose to put this to my colleagues to see if we can arrive at something a bit more consistent and helpful.


  53. It is nice to know that we have prompted something.
  54. (Mr Bowman) Certainly, you have prompted a lot; you have caused me to look at this in some depth and I am very grateful, actually, to have the opportunity.

    Chairman: It is nice to have an immediate effect, as it were.

    Mrs Williams

  55. My colleague mentioned, she quoted Mr Peter Jones, Counsel to Assembly Committees. Just for my information, does such Counsel serve on secondment from the PCO?
  56. (Mr Bowman) No, they do not. This is a Committee of the Assembly, and the suggestion is that Parliamentary Counsel should go and serve on secondment; that would be the equivalent, I suppose, of somebody from our Office coming to serve a Committee of the Commons, would it, which has never been done, as far as I know?


  57. I think it would be slightly different. Our Committees, of course, are different from theirs.
  58. (Mr Bowman) Yes, I realise that.

  59. Obviously, this is Mrs Williams' point, but it could be that their Drafting Committees, their Secondary Legislation Committees, might benefit from that?
  60. (Mr Bowman) Yes. In fact, I am going to Cardiff shortly, I think in early December, so maybe I will get a better idea of how the Assembly functions, and so forth. I am quite looking forward to that. I am sorry I cannot be more helpful on that.

    Mrs Williams

  61. But your immediate answer is, no?
  62. (Mr Bowman) That is correct, yes.

  63. Can I go on to another point now. Would there be merit, do you think, in having a particular team of draftsmen who handled all Wales-only Bills; and what about a team who handled the clauses of England and Wales Bills which dealt with Wales?
  64. (Mr Bowman) This is a team within the Parliamentary Counsel Office?

  65. Yes.
  66. (Mr Bowman) Can I just explain. Parliamentary Counsel do not generally specialise in particular subjects. We are expert in the sense that we are all drafters, but we are expected to be able to turn to any subject, and if we did specialise the consequences would be rather grim, in some cases. For instance, just supposing that somebody specialised in intellectual property, he, or she, may have nothing to do for several years, and then, suddenly, if there was a Bill on intellectual property, may have far too much to do. So we have found that the non-specialisation of subject matter is the best way of running the Office; and the beauty is that anyone can turn to the work as it comes in. There is one exception to that, and that is finance or tax legislation, and the exception arises partly because it is so incredibly difficult, but partly because there is a Finance Bill every year and there is a certain continuity, predictability, about it, which does not arise in the case of other matters. Now going on to your question, the amount of legislation affecting Wales, of course, is not constant; so if you had a dedicated team of drafters of Welsh matters, we would probably find that they either had too much to do or too little to do, so, on the whole, I do not think it would be a very good idea. Now you mentioned Bills affecting England and Wales, and, of course, the truth is that most Bills do not affect just England or just Wales but both; and it would be very difficult sometimes to split the work on a Bill between the two lots of provisions. And sometimes, as I have mentioned, the provisions affecting England and Wales are exactly the same, except that you might get some subtle variation, important variation, such as the Secretary of State exercises powers in England, and the Assembly exercises the powers in regard to Wales, so if you had two separate drafters they would be duplicating the work, except for this tiny difference, so it would not be a very economic way of proceeding. So, on the whole, I do not think it would be a good idea to have a specialist team of drafters on Welsh matters in the Parliamentary Counsel Office.

    Mr Williams

  67. If we could turn now to Professor Rawlings and his Principles, his set of principles, the Assembly has adopted the set of principles which it believes should govern new legislation which affects its powers. Are there any technical difficulties with drafting legislation in relation to such a set of principles?
  68. (Mr Bowman) Again, I have been thinking about this, the Rawlings so-called Principles. Can I just introduce this by saying that Governments do tend to adopt certain conventions in relation to legislation. There is a convention, for example, that legislation does not generally take retrospective effect, but, of course, in certain circumstances, it does; they are fairly limited circumstances but they do arise. Again, there is a convention that legislation will not generally come into force until two months after Royal Assent, but, again, there are exceptions to that, in the case of an emergency, for example. The difficulty with adopting principles you do not need to adopt is that you may find that you want to set them aside in a given situation. Let us look at Rawlings Principle No.4, that a Bill should not reduce the Assembly's functions by giving concurrent functions to a UK minister; now there may well be a situation where it is Government policy that the functions should be conferred concurrently; it is not for me to say, it is ultimately for ministers and then for Parliament, and it might be embarrassing or awkward if you had adopted a principle that that should never be the case. In other words, to my mind, speaking as a drafter, I would have thought the Principles a bit too rigid; it seems to me that it should perhaps be recognised that they may be subject to exceptions, and it might help if a word a bit less dogmatic than 'principles' were used, perhaps 'convention', or 'guidance', or something like that. But taking all this into account, the short answer to your question is, I cannot see any technical difficulty in adopting the Principles, except that I think they ought to yield, probably, to specialised circumstances, and not be too rigid. Now whether ministers would find the Principles acceptable, whatever you call them, and even if you watered them down in that way, by saying they were subject to exceptions, I cannot say, of course; that is entirely a matter of policy. So I have just tried to tell you what the position is, as I see it, speaking entirely as a drafter.

  69. In the drafting process, as it now takes place, in relation to items of legislation that affect Wales, is the draftsmen's attention drawn to the Rawlings Principles?
  70. (Mr Bowman) No. I had never heard of them, to be honest. I am being frank with you, I had not. I have now. Clearly, if it became Government policy to adopt the Rawlings Principles, I would hear about them very quickly indeed, but they are not Government policy at the moment. So I am better informed, and no doubt I could draw them to the attention of those instructing me, if I felt they ought to be, but they are not Government policy.

    Mr Price

  71. The Assembly review procedure does not form part of my bed-time reading, so I am not sure which Rawlings Principle, I think it is Number 5 which refers to the transfer of Assembly functions. And if I could just quote the relevant Principle: "Where a Bill gives the Assembly new functions, this should be in broad enough terms to allow the Assembly to develop its own policies flexibly. This may mean, where appropriate, giving the Assembly 'enabling' subordinate legislative powers, different from those given to a Minister for exercise in England, and/or which proceed by reference to the subject-matter of the Bill." Can you foresee any tension, or any technical difficulty, between conferring powers on the Assembly in a more flexible way and, at the same time, ensuring clarity about exactly what the Assembly's powers are?
  72. (Mr Bowman) The short answer is, yes, I can see a tension, and I suspect that the question actually implies that answer. Perhaps it would help if I take a hypothetical case; we are dealing with, essentially, I think, the power to make legislation by reference to subject matter, that is the easiest case to take. Suppose that the Assembly is given power to make legislation prescribing a curriculum for secondary education, and supposing there is no general power for the Assembly to legislate in relation to people with special needs, and then suppose that the Assembly wants to legislate in relation to secondary education generally, including the education of people with special needs. The question is, does it have that power or does it not? And it is not a very easy question to answer. And that is the sort of problem you get when you do express powers in general terms. There is a problem in exercising the power, because you have to decide precisely what the power is, and there is equally a problem when you come to apply the power, or the legislation made in exercise of the power, to put it more accurately, and that is because you are never quite sure whether, and to what extent, the power has been exceeded, and therefore that the legislation can be struck down by the courts. The problem is that you are never quite sure what the boundaries of the power are. To my mind, you are less likely to get that problem if the power which is conferred is precise and confined and not as broad. But, on the other hand (and this is a problem we are always getting in drafting) if the power is confined you get the problem that when you come to exercise the power you find that, in order to give full effect to the policy, you really need to go a bit further. So sometimes we try to cover that by giving power to make supplementary provisions, but then you get the question, what is supplementary and what is not. So, in other words, the drafting of powers can be very difficult, you have to try to ensure that you are conferring sufficient power, and you have to ensure that you are not conferring more than the policy requires. I am not saying it is impossible, or unwise, or wrong, to confer wide powers, it is a matter of policy in the end; all I am saying is that you have to be careful that the powers are not too vague, and in the case where you do confer broad powers there is a danger that they might be too vague. So the short answer to your question is, yes, I think there is a tension between conferring powers in the flexible way envisaged by Rawlings Principle 5 and, on the other hand, ensuring clarity about exactly what the powers are. Sorry that was a long answer.

  73. Do you think there are any lessons to be learned from the situation in Scotland, where powers are conferred on the Parliament in much more general terms?
  74. (Mr Bowman) Yes, there are. Problems can arise there, when it is not clear whether a particular matter is within what is known as Scottish legislative competence and, as you say, the powers are conferred in a wide way. There are provisions in the Scotland Act to help in determining the Parliament's competence, and there is a long-stop provision for referring the issue to the Judicial Committee of the Privy Council. And I believe that there have been occasions when the issue of precisely whether the power is there or not has arisen, and you would expect that, it is in the nature of that particular devolution settlement, but I believe they have always been resolved without the need to go to the Judicial Committee. So, yes, there are lessons to be learned from any devolution in that form, and, no doubt, if Wales were to be given devolution in that form, the Scottish position would be looked at.

    Mr Caton

  75. Mr Bowman, you said that you would only have to take into account the Rawlings Principles if they became Government policy; is there any other set, or any existing set, of guidance, or convention, whatever you like to call it, that is Government policy, that applies to empowering the Welsh Assembly, or the powers of the National Assembly?
  76. (Mr Bowman) Not that I know of. Do you?

    (Mr Cook) No. There is various guidance that I am aware of for consultation between Departments and the Assembly, and general guidance. I am not aware of any specific guidance in relation to drafting of the powers.

    (Mr Bowman) Yes. I think, what David is talking about is that there is a way of proceeding when policy is formulating, and, as you are well aware, I think, there is a question as to the time precisely at which the Assembly is consulted on ministers' proposals, but this tends to be done either before we are consulted or quite separately from instructing us; it is nothing that directly affects the draftsman, as far as I know.

    Mr Williams

  77. I think, in some evidence we were given, in Cardiff, that the Assembly should not have an expectation that the Principles should be reflected in legislation, they should have an aspiration, but, having listened to your evidence, I think that is a bit optimistic as well. Is there any way in which the Assembly could take its wish to have these Principles reflected in legislation forward, and what sort of action could they take?
  78. (Mr Bowman) I think there are a number of questions there. You mention enshrining the Rawlings Principles in legislation, do you mean that they should be set down as a rule for Parliament to follow?

  79. I meant actually legislation as it comes forward now, to comply or reflect their role?
  80. (Mr Bowman) Yes; so should you adopt them or not, when you are thinking about legislation. I am sorry if I gave you the impression that there is no hope. I did not mean to give you that impression at all. As I emphasised before, the policy is certainly not for me, and I have no idea what ministers would think, it would be presumptuous of me to say. As to the means by which you pursue that, I think that that is really in the political arena, if I may say so, and I think that you would have to pursue that, presumably, through a minister or the minister's private secretary, or something like that. I am really not equipped to answer that question, I am afraid.

    Chairman: I think the route would be from the Assembly to the Westminster Government, for them to implement or not, presumably, and we are going to address that to the Secretary of State for Wales and to the First Minister of Wales shortly.

    Mrs Williams

  81. Several of our witnesses have called for Wales-only Bills, and other Bills which have a significant impact on the Assembly's powers, to be published in draft form before they are presented to Parliament; one example is the draft NHS (Wales) Bill. Assembly Committees argue that, in order to give proper consideration to a draft Bill, they would need six to eight weeks. Would it be possible, do you think, routinely to publish draft Bills to such a timetable as that?

(Mr Bowman) I think there are two questions; firstly, is it possible to have a general principle that you publish draft Bills, and then there is the timing. I am sure you are aware that the Leader of the House of Commons has stated that the Government wants to secure that pre-legislative scrutiny is to be the norm rather than the exception, and he also made it clear that because of capacity constraints, including those regarding drafters, it will take some years to achieve that aim; and the recent vote in the Commons on modernisation underlined the move towards more pre-legislative scrutiny of Bills; so there is quite a hope there, I should have thought. But, of course, the Government must remain free to introduce Bills that have not been previously published in draft, for instance, in the case of emergency. Again, I am afraid it has emerged quite often in the course of this morning that in my business you tend not to have strict rules, you tend to have guidance and you have always got to be able to blow in the wind a bit. So, on the whole, I think that there is some hope for you there, in the Leader's statement. As for the time allowed, it depends on the circumstances; and the present approach is one of flexibility again; the arrangements are negotiated on a Bill-by-Bill basis; of course, some Bills are longer than others, some are more complicated than others, some are subject to public consultation as well as scrutiny in Parliament or the Assembly, the pre-legislative scrutiny. And, of course, one considerable constraint is the amount of time available to fit in with the Government's legislative programme; if it wants a Bill for its programme at a particular date then it may have to curtail the amount of time that a Bill is sent out for scrutiny. So it all depends on the circumstances. Again, I hope that is not too unhelpful, but there is hope that that is going to become the norm within a few years.

Chairman: Thank you very much indeed, Mr Cook and Mr Bowman. It has been a very interesting session.