Select Committee on Welsh Affairs Minutes of Evidence

Written evidence from the Rt Hon Lord Richard QC



  When the statement on the White Paper was made on 15 June, I gave it a qualified welcome. It seemed to me to recognise the principle that the National Assembly needs greater legislative competence than it has at present. I am grateful that the Government has recognised this and has provided proposals to put it into effect.

  The White Paper's proposal to change the status of the Assembly from a single corporate body with its own legal personality to a structure which recognises the division of functions between the Assembly Government and the Assembly is very much in line with the suggestions in the Richard Commission Report, and I am sure it is right.

  I likewise agree that Ministers in the Welsh Assembly should no longer sit automatically on the Subject Committees. It seems to me that the scrutiny function of the Committees is lessened considerably if a Minister is actually a member of the Committee itself. There is of course a strong case for allowing Ministers to appear before Committees as and when this might be considered necessary.

  I think too that it is sensible to clarify the number of Ministers and Deputy Ministers who can form the Assembly Government. If the number of Ministers is eight and the number of Deputies is four, then it would follow that when Ministers are withdrawn from the Subject Committees, manning them adequately will become a problem. This was one reason why we concluded in the Richard Commission that with the growth in the legislative capacity in the Assembly the present membership of 60 would not be sufficient. I regret that the White Paper has rejected this recommendation.

  But the meat of the White Paper is in its suggestions for enhancing the Assembly's legislative powers.

  The proposals in the Richard Commission Report were for an interim stage between the present situation and the devolution of primary legislative powers during which framework legislation would give the Assembly greater delegated powers than it has at present. If this can be categorised as the starting point, then the addition of the Government's proposal to legislate by Orders in Council is an interesting device which will give the Assembly greater legislative competence without formally devolving primary legislative powers.

  Much of course will depend on how the Orders in Council will work in practice. As the recent Devolution Policy Paper produced by the Economic and Social Research Council and written by Mr Alan Trench observes: "When and how exactly Orders in Council would be made is far from clear. One suggestion is that they would be made as and when the Assembly seeks them. That would imply varying frequency, but with the possibility of much Parliamentary (and Assembly) time being spent on them". Another suggestion is that there would normally be only one Order in Council a year, the result of a bid by the Assembly and a bargaining process between Cardiff and Whitehall. Mr Trench suggests that this process would be replaced by an Order in Council authorising the Assembly to pass the legislation itself instead.

  There is very considerable lack of clarity in the way in which this interim stage would be managed and effected. It is by no means clear how the Assembly would formulate its requests, and to what extent this will be purely a function for the Assembly Government, who presumably will negotiate with the Secretary of State on what it considers appropriate. Indeed, this illustrates one of the dangers still inherent in the White Paper proposals. The scope the Secretary of State would have to reject a request by the Assembly is as yet unspecified. Parliamentary procedure in relation to Orders in Council is fluid to say the least, and it could well be that the Secretary of State would take the view that it would not be appropriate for the Assembly to be given the powers that it is asking for, particularly if political affiliations of the Cardiff and Westminster Governments were different. Furthermore, it is equally unclear what role the Westminster Parliament would play in considering the requests from Cardiff. The scope for debate on Orders in Council is limited. They are not capable of amendment, and it is difficult to see quite how the Westminster legislative process could be adapted to meet the requirements of this new procedure.

  The provision in the White Paper is that if the Secretary of State rejects a request by the Assembly for Order in Council powers, he should do so in a public and transparent way. This would seem to indicate that the function of the Secretary of State in normal circumstances will be merely to present the Assembly's request to the Westminster Parliament. On the one hand, the proposal is one which seems to limit the role of Westminster and the Secretary of State to the presentation of the Assembly's request, but on the other retains residual power to the Secretary of State to reject a request if he thinks it appropriate. This approach seems to me to be somewhat paternalistic. It is in effect saying to the Assembly "normally we can trust you to make reasonable requests, but there may well be circumstances in which we in London think that you in Cardiff have overreached yourselves, in which case we will intervene to prevent it".

  Nor is it at all clear what the Orders in Council will actually contain. It is envisaged that the powers transferred to Cardiff will include the right to amend existing primary legislation, and even the right to amend primary legislation which has not yet been passed. As the Committee will know, Henry VIII Clauses are not exactly smiled upon by Parliament, particularly in the House of Lords, and especially by the Delegated Powers Scrutiny Committee. I do not think that the proposal will necessarily get an easy ride through Parliament.

  Moreover, the result of proceeding by way of Order in Council will be an increase in the legislative work of the Assembly itself. Indeed, the Report on the Better Governance for Wales White Paper produced in September 2005 specifically recommends that there should be three minimum stages for Measures: a debate on the principle, consideration of detail, with the possibility of hearing witnesses, and a vote on the final Measure. Given the relatively little time the Assembly at present spends on the actual legislative process, the introduction of Standing Orders enshrining this procedure is bound to mean that the workload on individual AMs will increase. The extent to which 60 AMs, 12 of whom will be Ministers, will be able to cope with this is at this stage unknown. I really do feel that this issue of the size of the Assembly is one that will inevitably have to be resolved. If, in fact, the Assembly can be run successfully with 60 members, then so be it. But if, as we all at the Richard Commission suspected, the workload will prove too heavy, then consideration will have to be given at some stage to increasing the numbers.

  In turn that means, as the Commission Report recommended, that there will have to be some consideration given to the electoral system by which AMs are elected. The White Paper is very clear in rejecting the proposal that the Assembly should be elected through the STV system. The present system of having directly elected and list AMs is already causing strain, and this would, we on the Commission believed, intensify if the numbers were to be increased to 80. Again, this is an issue which will at some stage have to be revisited. The present system may be appropriate for a Chamber of 60, but it is difficult to argue that it will remain appropriate at all levels in the future.

  So I return to the qualified approval that I gave to the White Paper when it first appeared. I would repeat that modified approval today. The Order in Council device is an ingenious way of packaging the situation in which the Assembly gets considerable additional powers by the back door. But the proof of the pudding will be how it works in practice, and my fears of unacceptable strains between the Assembly and Westminster in the event of there being different Administrations in each capital has by no means been dispelled.

  It is disappointing that the Government have not gone as far as we in the Richard Commission recommended. The White Paper is a step in that general direction. I still believe that the logic of the situation is that Wales should be treated broadly in the same way as Scotland and that the momentum of events will in due course produce the devolution of primary legislative powers. The White Paper proposes a mechanism which is perhaps over-complicated. One has to ask the question—if the object of the exercise is to give the Assembly quasi-legislative powers, would it not be simpler to give it those powers directly?

12 October 2005

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