Select Committee on Welsh Affairs Minutes of Evidence

Examination of Witnesses(Questions 20-40)



  20. That is the bit I am after, what would be practicable.
  (Lord Elis-Thomas) John is a Mathematics Don so he is more practical than me.
  (Dr Marek) One way to solve it would be for Westminster to give the National Assembly general competence powers, ie primary legislation, in those areas where we already have devolved powers. That would clearly make the border very clear. I can see you laughing but that is one solution that I think needs to be considered and no doubt will be considered at some stage. If we do not go that far then it is a very difficult position. Obviously we need more draft Bills and if you can get as many draft Bills as possible before they become Bills laid on the table in your House then that gives us a chance, at least, to go for scrutiny. Even so draft Bills are semi definite. I suspect you are talking about the stage before that and that is very difficult unless the two governments, the executives, can get together and one executive could say "Well, we are thinking of having a National Health Service Bill or this Bill or that Bill next year, can you have a debate". We could have debates but they could easily be debates in a vacuum unless there are at least some bones—sorry with these metaphors—unless the government is reasonably specific. Governments sometimes, of course, like to be very secretive so we do not know anything until the Queen's speech. So no easy answer to that but clearly the more information we can share the better the two way flow of views will be.


  21. I am being devil's advocate now, John. I do think perhaps we ought to be thinking about devolving a bit more power in certain areas possibly or even primary legislative powers in the areas which are devolved, given that it still does not answer the question how you involve backbench AMs because those primary legislative powers might be then in the hands of the government not the Assembly. I am just wondering if you have any thoughts on that? It would require a lot of change, I think, in terms of the Government of Wales Bill for that to go ahead in that way. Have you had any thoughts on that?
  (Lord Elis-Thomas) Currently Bills are referred to subject committees. Our subordinate legislation can be, not at all times, but it can be referred to subject committees. So we have in place in our current Standing Orders a way of dealing with legislative procedure which, if I may say so, involves backbench—although I would not use the term—AMs far more than subordinate legislative scrutiny in Westminster involves yourselves. That is fair, is it not?

  22. Certainly I would agree with it being fair. Absolutely. I am not sure that many of us would want to be involved that much in subordinate legislation. It is pretty much a mind numbing experience.
  (Dr Marek) Whether it was subordinate or primary that would still be necessary.

  Chairman: To get back, I was interested in your initial reply, Dafydd, because I think this is something I have been drumming on about ever since I got the chair of this Committee, and even before then, in 1999 but primarily after 1999, that we should be working together. I am interested to hear that you are thinking on those same lines, that some kind of hybrid standing committee of the House of Commons or subject committees here or set up committees for it here would be quite a good way forward. Certainly it is something we might think about as a Committee.

Adam Price

  23. Thank you, Martyn, and good afternoon. To some extent I believe you have touched upon my question, namely to what extent with the exception of the scrutiny of pre-legislation or preparatory legislation you can secure more influence on the journey of legislation through Parliament. Do you believe, for example, that Assembly Members should have the right to propose amendments at the time of standing committees of the Parliament in London?
  (Lord Elis-Thomas) Well, yes, and I have threatened to do this myself but I believe perhaps it would be a constitutionally suspect act as my dual mandate is not an accident but an electoral coincidence. Therefore it would be an exception that an Assembly Member would be elected to both Houses and be in a position to do so. I do believe this raises an important point, namely the general view amongst my fellow members in the second House in Westminster of all parties is that they cannot receive sufficient information about the view of the Assembly on issues. Normally what occurs is that the inter-governmental process proceeds through the ministers who actually reply on various or particular amendments but there is nobody who can stand with authority and say "These are the amendments that the Assembly desire which come because the Government of Wales has agreed amendments with the Government in Westminster". Of course that is the same process, that is true, as occurs in the House of Commons. To me that is quite a conundrum because it is in contravention with the routine legislative process that some outside or external body can appear with authority to propose amendments to another parliamentary body. I would prefer the much simpler path, namely that there should be devolution according to subject and that then we should have the ability to provide primary draft legislation and we could do that but this is something we have not had the opportunity to do at all as yet. It would be possible for this Assembly to use its processes which deal with secondary legislation at present to act on primary legislation. We can prepare a draft of the Local Government Bill, for example, for Wales or maybe an Environmental Bill and then we can present that in its entirety to Westminster and say "This is the Bill we would like to see passed". That would be a fascinating process because what would happen then if Westminster were to amend it in a way which was unacceptable to the Assembly what that would do would be to open the whole democratic process to a process of discussion which would be a good thing.

  Adam Price: If I could make one comment. From my own experience certainly the point you were making about the lack of transparency regarding the view of the Assembly rather than the view of the Assembly Government certainly that has been raised since I have been in Parliament and I have been on my feet in the Chamber and a minister in Westminster has announced the Assembly agrees with him rather than with me. Certainly that was news to me and certainly news to most of the Assembly Members because the thing had not been discussed by the Assembly at all at an intergovernmental level.

Mr Caton

  24. The Assembly has adopted a set of principles which it believes should govern primary legislation affecting the Assembly's powers. They were developed by Professor Richard Rawlings at the LSE. Could you explain briefly the background to those principles: how they became adopted by the Assembly and what benefits they will bring?
  (Lord Elis-Thomas) For my convenience I have before me annex 5 of the Assembly review of procedure which were principles which were proposed to us in evidence by Professor Rawlings. They were adopted as principles by the Assembly review procedure which was an all-party exercise and then the final report was adopted by the Assembly in full plenary session. These principles have the support of the coalition government and all other parties in the Assembly. They are important in our view because they represent certain basic principles. I would emphasise the importance in particular of not conferring more powers on English ministers than are conferred on the Assembly in legislation. We see no cause, as has happened certainly on a number of occasions recently in legislation in 2002, why certain provisions have conferred greater powers on the Secretary of State in relation to England and with greater flexibility and discretion than that given to the National Assembly. Obviously that is a very important principle. Among those principles as well is the importance of Principle 4 not reducing the Assembly's functions and where there are new functions that there should be a flexibility to develop policy. We argue, and have argued all along, for a positive view of so-called Henry VIII powers. Indeed, if there is a concern about the Assembly using Henry VIII powers to amend primary legislation then there are parliamentary ways in which that could be circumscribed which would prevent the Assembly from, as it were, behaving as a primary legislature. Those principles are ones that we would recommend to you.

  25. They seem to me to be a very sensible set of principles to make the present settlement function as effectively and as well as it should. When we first began to take an interest in this subject we corresponded with the Wales Office—I am not sure it was called the Wales Office but what is now the Wales Office—and certainly the response that we had from the junior ministers did not indicate that they were thinking along the same lines as Professor Rawlings and yourselves. Since then has the UK Government taken an interest in these principles?
  (Dr Marek) Let me try and answer this. I suspect with the present incumbency in the Wales Office the answer is no, that devolution is regarded as an event and nothing more can be done but, of course, time means that there will be different people in the Wales Office and, who knows, things will change. Can I just make one other point to add to Dafydd's point, that Rawlings Principle 1 really says that when we have got devolved powers in a particular area any other powers in that area should be given to us because we already have competency in those areas. In Westminster as Bills go through there are some powers where we do get more and there are other Bills where we only get the same powers that the minister has for England and there have been one or two cases where we have fewer powers as a National Assembly than have been given to the equivalent minister in England. That latter example I think is very wrong unless there is a very good reason for it. I think we would argue that we should be given powers according to Rawlings Principle 1 and if we are not being given powers as a National Assembly then the Government in Westminster ought to provide an explanation as to why not. I am sure there are explanations, that it would not be cost-effective or there may be questions of national security or something like that, that the power is necessarily kept in Westminster, but I think an explanation would be useful. The second point is that we should not equate devolving powers to a National Assembly on a par with devolving powers to a minister because the minister, of course, has those powers as an executive function whereas when they come to the National Assembly it is to a democratically elected body where they are subject to further scrutiny and debate before they are exercised. We would argue that, if anything, we should have more powers and the presumption ought to be that we should have those powers unless there is a good reason for us not to have them.

  26. I was interested in what you said about the present incumbents in the Wales Office.
  (Dr Marek) A personal view only.

  27. And the creation of the National Assembly was an event rather than a process. What attracts me actually about the Rawlings Principles is that they can be embraced by those people who do regard the creation of the National Assembly as an event and those of us who prefer to think of it as the beginning of a process. They are a set of principles which you should be able to rally more than just one side of that argument around, I would say. It is about effective government, is it not?
  (Dr Marek) I agree.
  (Lord Elis-Thomas) This has always been my view. Competence is not just something conferred on a body, it is something which a body gains and earns as it develops. I think we have shown that we are competent in terms of our way of managing scrutiny of budget and managing the legislative process. This is why, within the Government of Wales Act, I believe it is important that we should develop our competence to act to the full because that to me as a devolutionist, as a quasi European federalist, whatever, is what governance is about. It is not a problem about how far you go, it is how effectively you do it and that is what proves that you can operate.

Mr Williams

  28. I think both Dafydd and John hinted at the fact that some of the recent legislation has not fully complied with all the Rawlings principles. Has that been an issue that has been taken up at any level by the Assembly or even comments made to the Wales Office or other levels of Government?
  (Dr Marek) I am not sure I can answer that actually. I think there must have been channels but perhaps they have been formed through the concordats that the executive has. I do not think it is anything other than informal through the parliamentary system.
  (Lord Elis-Thomas) I am aware of a long running debate about agricultural policy and especially about animal welfare. I do not know whether it is for me to say more on this at this stage but it certainly is an issue. It was an issue during the foot and mouth crisis and it has been an issue ever since. The interesting question is how this might be resolved by the UK Government and the Assembly. We are told, at least in the devolution note we referred to earlier, that it is not the intention to confer further powers by Transfer of Functions Orders but to do it by primary legislation although I have yet to see that.

  29. Unless that issue is addressed formally at some stage or by some process then there is a great difficulty in resolving it.
  (Lord Elis-Thomas) I think this is another area in which we can all co-operate, adopting the tone which Martyn, the Chairman, set for this Committee. It is for UK parliamentarians, speaking as a very part-time one currently, to work with Assembly Members to show up inconsistencies and to show up inadequacies in UK legislation as they affect the Assembly and to make it known to Government that this is not acceptable and we look to you to help us to do that.

Dr Francis

  30. Before I ask the question I have before me could I just follow on with a supplementary picking up on the Deputy Speaker's point which I should not lose sight of and that is this caricature, I think, of counterposing process and events. I think that what the Secretary of State said in 1999 was precisely that we had achieved what he called a settled question and what he meant by that was there was no going back and that settled question had been achieved by the best possible way and that was legitimacy had been delivered through democratic means and that our process here now is a process of actually trying to resolve some of the critical questions in the light of our experience over the last three years. I think that we will achieve a kind of process through co-operation and partnership and that this Select Committee is here in order to achieve that kind of progress. If it results in primary legislative powers coming to the Assembly then so be it. I suspect that our inquiry here and now is actually assisting that, if you like, and we should not be fearful of it.
  (Dr Marek) Much obliged.

  31. So you agree?
  (Dr Marek) I am delighted.

  32. To move on to greater flexibility for the Assembly in the spirit of that settled question. The Government said in A Voice for Wales that, as a general principle, Bills that confer new powers and relate to the Assembly's functions would "provide for the powers to be exercised separately and differently in Wales". It is also the fifth of the Rawlings principles that powers granted to the Assembly should be in broad enough terms to allow the Assembly to develop its own policies flexibly. In your view, is this generally being achieved with primary legislation?
  (Lord Elis-Thomas) Not yet I think is the answer to that. I believe that the simplest way of doing it is devolving by subject areas or allowing the Assembly to make subordinate legislation within the framework of primary legislation being passed by Westminster for Wales, in other words giving the Assembly powers to make legislation by subordinate means within the framework of the primary legislation which is being enacted by Westminster. That is the simplest way of doing it because that provides then Cardiff Bay to have the permissive powers within the framework of the primary legislation. I do not think that has been sufficiently looked at. If you look across all the recent Bills and the Learning and Skills Act, the Local Government Act, the Care Standards Act—these are all 2000—the Education Act 2002, the National Health Service Reform and Care Professionals Act and so on, it is a variable geometry here, is it not, as between what is available, what applies to Wales only, what is England and Wales, what allows for flexibility, where the regulatory powers are in relation to various functions. I think therefore, because of the legislative uncertainty which is basic to this kind of operation, unless and until there is a Wales Part, as John has always argued for, for a Bill, until there are clear principles as to how Wales is described and what applies in terms of legislation it will always be difficult for individual UK departments or for the Assembly here or indeed for parliamentary drafts people to be aware of any clear principles as to what legislating for Wales means. Added to that, of course, the fact that the Transfer of Functions Orders and the Government of Wales Act provide for an uneven transfer in the first place, it makes it impossible for individual Members of Parliament, I would say, or certainly individual Assembly Members to know at any given time what the Assembly's powers are in any given policy field. I am not asking about the competence of officials and ministers to know what the powers are because, if the rest of us do not, what chance have they got?

  33. I think you have answered my second question. Can you point to any specific examples where it has been achieved?
  (Lord Elis-Thomas) These are difficult questions for me to field because in a sense I am not responsible for outcomes of legislation. Looking at it from the point of view of constitutional practice the answer is no I think.

Adam Price

  34. To go back to Principle 5 my colleague Hywel referred to earlier, this principle does suggest that powers might be conferred by reference to the subject matter of a Bill. In that suggestion, if I understand it correctly, there is some small definition of general powers for the Assembly. Is there a danger there without a new settlement that we could add to the confusion about what exactly are the range of powers of the Assembly?
  (Lord Elis-Thomas) Well, yes, I think that getting an enabling clause even as a pilot, if you like as a constitutional experiment, within an Act to enable the Assembly to use our secondary legislative framework to ensure the purpose of primary legislation for Wales in the area of the Bill which is being prepared, those powers are worth asking for because I think, for example, in education, and that is the only area because I am just thinking about Hywel's question, where there were successes in educational legislation that is where the greatest difference appears. This is an historical fact back to the Welsh Intermediate Education Act 1889 which established education differently in Wales for the first time. So there are differences there which are more obvious but I do not see that there is any constitutional principle in terms of the present establishment to use that term in allowing much more autonomy in, for example, education where the structures are already established here in Wales and where the difference in professions and even in the educational ethos is quite evident. I am going into policy issues now which is quite dangerous for a process person to work with.

Mr Wiggin

  35. Devolution Principle 6 suggests that it should be permissible for the Assembly to be given powers to amend or repeal primary legislation provided that "the particular powers are justified for the purpose of the effective implementation of the relevant policy". Is this not a rather broad test which could in principle enable the Assembly to acquire quite extensive Henry VIII powers? Given that the decision was taken, when the Government of Wales Act was passed, not to grant the Assembly primary legislative powers, is there a danger that the granting of Henry VIII powers would represent the transfer of primary legislation through the back door?
  (Lord Elis-Thomas) This obviously is the argument against what we have set out here. What we have set out is the opportunity for greater legislative flexibility. When you are talking about Henry VIII powers, they have been regularly used in the past to allow ministers in Westminster to make the equivalent of primary legislation, or at least to have a broad executive brush, which comes down to the same thing. When we make legislation here that legislation is made by a democratic body with full democratic scrutiny and if the National Assembly had broad permissive powers to make legislation within the area of a Bill then that power would be exercised by a decision of a majority of an elected body and therefore, in my view, has as great a legitimacy in constitutional theory as any action undertaken by a minister. The great hoo-ha about Henry VIII powers in Westminster relates to ministerial activity in the field of primary legislation without the scrutiny of Parliament. This is not what we are talking about here. This is a parliamentary body which has the ability to scrutinise in a very detailed way its own activity and the activity of any ministers within it. So I would say that is a qualitative difference of democratic principle and of constitutional theory and practice between giving permissive powers of broad legislative remit to an elected body and giving them to ministers.
  (Dr Marek) I would like to argue that we should not look at it as to whether we should give primary powers or not give primary powers but look at it on a case by case basis. The Education Bill, for example, I do not know what the clauses are but something like 100 to 110 give the National Assembly Henry VIII powers over the curriculum. Clause 110 simply says the National Assembly can vary the previous nine or ten clauses which are all to do with the curriculum and the Welsh language and the culture. I would have thought that we could all agree that that is a clear case where we ought to have a general competence over the curriculum. It cannot be right for people in Whitehall to be able to decide questions pertaining to the curriculum and that they would get better decisions there than if they were decided here: (a) they would be decided democratically and (b) they would know a little bit more about it than they do in Whitehall. I would contend that here is an example where Henry VIII powers are clear and that there ought not to be any argument about them. There may be other areas and I would look out for those areas and where you think that there is a case in Westminster you should consider carefully giving us those powers.

  36. Can I ask you about the ones which have already happened and the Assembly already has some Henry VIII powers, for example, under section 7 of the Local Government Act. How has the exercise of these powers worked in practice?
  (Lord Elis-Thomas) As I said in answer to an earlier question, I am not copping out but I do not want to set myself up as judicially reviewing myself or the Government of Wales or looking at legislative output. I do not think it is one for us. It is certainly one that you should ask the relevant minister of the Government of Wales about whether or not they think that legislation is functioning effectively. What I will say, hand on heart, is that it was properly scrutinised, really it was, when it went through here.

Mr Williams

  37. Since the original Transfer of Functions Order, further powers have been conferred on the Assembly in a variety of ways: by amending the original Order; by primary legislation; by amendments to the Government of Wales Act; and indirectly by amending the Acts which are listed in the Transfer of Functions Order. We have heard evidence of that from the IWA. The Law Society has described the result as "a rapidly expanding and incoherent mass of statutory powers with no overarching logic." What is your view of Wales Legislation On-line, the project to maintain a comprehensive, codified guide to the Assembly's powers? Is it the kind of project that the Assembly itself or central Government should be undertaking?
  (Lord Elis-Thomas) This project, of course, is associated with the name of my very independent adviser, who I understand you may be speaking to later. I think the work that the Cardiff Law School has done in this area is of great service to us. I personally believe it is important that that sort of project does happen outside of the parliamentary bodies themselves because it allows assured independence of the activity. It has been a massive undertaking. Certainly I find it extremely useful on a daily basis. It obviously needs to be properly funded but I think that this should be seen as an independent academic legal exercise which serves both the profession in Wales and the profession outside and serves all the parliamentary bodies involved.
  (Dr Marek) Under our Standing Order 30 the Presiding Office must publish all legislation other than legislation which is printed by the Stationery Office that is received by us. We have not been receiving a lot of information from the executive, however we are going to put this right. The Presiding Office will have its own website this side of Christmas and I look to a great improvement in the list of legislation, not just by date order but to make it user friendly so that any person in Wales can easily look at legislation and find out whether in a particular area there has been a debate by the National Assembly or not. Legislation, of course, is not just Statutory Instruments, it is circulars, it is directions, it could be letters to chief executives of councils, occasionally they are constrained to do something. That is also legislation. It is not an easy topic to get round but we are at present attempting to do it.

  38. Should there be an "overarching logic" governing the allocation of powers to the Assembly? Do the Rawlings principles represent the basis for this or is there something much more detailed required?
  (Lord Elis-Thomas) I think the Rawlings principles as agreed by the Assembly in plenary represent what should be the basis to our current legislative process. I think these are principles that we should be arguing for with the UK Government and to the extent that we need to do that, not with our own Government here in Wales but with the Wales Office, these principles should form the basis of our activity for the coming session. I think these principles should be as clearly adhered to as soon as possible by all practitioners of devolved legislation. I cannot say it stronger than that.

Mr Caton

  39. Following on from that question about identifying the Assembly's powers, is there a case for a Consolidation Bill to codify the Assembly's powers?
  (Lord Elis-Thomas) I would say not yet.
  (Dr Marek) They change every time you pass a piece of legislation.

  Mr Caton: I am very grateful for that answer. I am a member on the Joint Committee and it is quite a tedious process consolidating Bills, so I am grateful that you have put that off for today.

Dr Francis

  40. Is there any impediment that you can see to Parliamentary Counsel adopting only one method for conferring powers on the Assembly, rather than the several which they use at present? Which method should it be?
  (Lord Elis-Thomas) We have made representations to the Modernisation Committee and to the Leader of the House and, indeed, to the House of Lords Committee on the Constitution, on these matters.
  (Dr Marek) We should send you copies I think, if that would be helpful. As the Presiding Officer has already mentioned, it should not be by Transfer Order it should be by direct primary legislation.
  (Mr Jones) I think there is a lot of merit to be said for greater consistency in the terminology of primary legislation. For the outsider it can be rather confusing if you refer to the "appropriate minister" in one Act and refer to the "Secretary of State" in another Act and then have another provision saying "with reference to the Secretary of State there should be substituted reference to the Assembly". I think there needs to be good reason for utilising different terminology.

  Chairman: Any more questions from my colleagues? No. Is there anything that you would like to add? No. It has been a very useful session, thank you very much. I hope we will get something in the long term which will find a way forward, although I have my doubts. As you say, once we codify and once we get the legislation changed something else will move further along the line and we will be back where we started. I think most of us would agree that it is a process and not a one-off. Thank you very much.

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