Examination of Witnesses(Questions 20-40)|
MONDAY 21 OCTOBER 2002
AM, DR JOHN
MAREK, AM, MR
20. That is the bit I am after, what would be
(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 bonessorry
with these metaphorsunless 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 backbenchalthough
I would not use the termAMs far more than subordinate legislative
scrutiny in Westminster involves yourselves. That is fair, is
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
(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.
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
(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.
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
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 OfficeI
am not sure it was called the Wales Office but what is now the
Wales Officeand 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.
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
(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.
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
(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 Actthese
are all 2000the 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.
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
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.
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.
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
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.
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
(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
(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