Select Committee on Welsh Affairs Minutes of Evidence


Examination of Witnesses (Questions 63 - 79)

TUESDAY 25 OCTOBER 2005

RT HON LORD RICHARD QC

  Q63  Chairman: Good morning. Welcome to the Welsh Affairs Committee. Lord Richard, could you formally introduce yourself to the Committee?

  Lord Richard: My name is Ivor Richard. I was the Chairman of the Richard Commission on the powers and electoral system of the Assembly.

  Q64  Chairman: Could I begin by asking you to explain briefly the remit of that Commission, the scope and the timeframe of that inquiry and the Report's key recommendations?

  Lord Richard: We were set up by the Assembly, I think as a result of an agreement between the Labour Party and the Liberal Party in Wales that between the Assembly elections there should be a review of the powers of the Assembly, how it was working, the electoral system under which it was elected, and that is really what we were set up to do. Five members of the Commission came through the Nolan procedure where we had a set of hearings. Three of us did this, Sir John Shortridge, a Professor from Cardiff University and myself. We got a large number of applications, we whittled them down to a shortlist and picked (I was picked already) four, and then we had nominations from the major political parties in Wales, and that made up the whole of the Commission; we were ten in number. What was interesting was the extent and the amount of the evidence we actually took in public and in private. We held a number of evidence sessions in various parts of Wales. I think that one of the important aspects of the Richard Commission Report is that it actually pulls together the evidence which really had not been pulled together at all before. We did not have a Convention in Wales in the way they did in Scotland therefore it was terribly important, I thought, that somebody gathered in the evidence, which we did. I think almost every organisation in Wales (the one notable exception being the WDA which for some reason, I am not quite sure why, declined to give evidence) submitted written evidence to us. I think we saw 115, if my memory serves me correctly. We had sessions at which we took evidence. We held 115 evidence sessions in front of us, so we had a spread of views. Now, the way in which we approached this—and again I have to be frank about this—the idea that in advance somebody could have persuaded me that the Plaid and the Conservative Party would both sign a common document on the future evolution of the Assembly I would have found a little fanciful. In fact, we got a unanimous report, as you know. What was interesting about it, I think, was that although some of us, including myself, had started off very sceptical about the whole approach, thinking that perhaps the Assembly had not had enough time to settle down properly and really it was a bit early to be looking at this yet again, I am bound to say that as time went on and we took the evidence, the logic of the situation pushed us all in the one direction which was—and let me use a neutral phrase at this stage at least—the Assembly needed greater legislative competence than it had got at present. It also needed some changes to the Government of Wales Act to put it constitutionally on a more sensible basis than it was. We also felt—and this was quite strongly felt on the part of the Commission—that you could not run the Assembly with 60 Members if you (i) gave it greater legislative competence and (ii) if you had a clear division between the executive side of the Assembly and the legislative side of the Assembly, you would not have enough people to run the committees and therefore there would have to be an increase in the number of AMs. If there was going to be an increase in the number of AMs then you could not do it on the basis of the existing electoral system because the strains that already existed between the elected AMs and the list AMs were there—and we all reckoned that it would be intensified very considerably if in fact you merely doubled the number of list Members from 20 to 40. So we had a look at alternative electoral systems and we came up with STV after we had looked at just about every one we could think of. It is not wholly satisfactory and although it is pretty revolutionary in a sense as far as Wales is concerned, the whole logic of the situation had been pushing us in that direction and that is really how we had approached it.

  Q65  Chairman: Perhaps you have anticipated some of the questions but if I could finish the opening part in relation to your role. In your own personal response to the White Paper which we are discussing, Lord Richard, you gave it a B, verging on a B+, I gather. What more do you think that White Paper could have said and done to merit an A or an A-?

  Lord Richard: Obviously if it had implemented the conclusions of the Richard Report I would have undoubtedly given it an A, verging on an A+, I should think!

  Q66  Chairman: Now you are being fanciful!

  Lord Richard: Yes. Can I just make two or three general points first on how I approached this White Paper. First of all, it is now trite to say that devolution is a process and not an act in itself, and that is clearly true. If that is so, then you have got to have some idea of what you want at the end of the process. As far as I am concerned, I have a very simple view on this which is that seems to me that the Scottish pattern of devolution is one which, frankly, should be applied in Wales. For the life of me I do not understand (well, I do understand actually) why we have got the system that we have got, but it does seem to me rather basic that a nation in the UK like Wales should, broadly speaking, have the same devolutionary powers as the Scots have got, and we do not have them. I think the third point I would make is if that is the end result that you want to see, which is in effect primary legislative powers in Cardiff, you have then got to go on and ask yourselves does this White Paper move in that general direction or does it not? And the answer is it does and although it does not go as quickly or as far as I would like at this stage, nevertheless, because of its move in that general direction, my view is that it should be modestly welcomed. I have got some major qualifications about it, particularly on the Orders in Council procedure where I think, frankly, the idea that that is going to get an easy ride going through Parliament in principle to start off with is doubtful. Certainly in my House the desire of the House of Lords is continually not to have Henry VIII powers. Henry VIII powers in relation to this White Paper apply not only to existing legislation but the idea behind it is that Henry VIII powers will be given to the Assembly in respect of future legislation which has not yet been passed by this Parliament. I think that is going to take a bit of swallowing by the House of Lords and I think there are going to be problems getting it through. Secondly, on the Order in Council procedure nobody is absolutely certain how it is going to work. If what is proposed is that the Assembly will ask for powers to do X, Y or Z and the Government here say, "Fine, we agree," then they have got a purely presentational role in the sense that the Government's function here is really to present the Assembly's request to Parliament and expect Parliament then to pass the Order in Council. The extent to which consultation would take place before I do not know. One thing about Orders in Council is that they are not amendable, and so the scope for Westminster intervention in the procedure is going to be limited. Thirdly, we know that parliamentary procedure at the moment is that you have an hour and a half's debate in each House on the affirmative procedure, which again is broadly what is being proposed here, so in a sense it did strike me that the more one looked at it and scratched the surface and got underneath it, it is in fact using a device to give primary legislative powers to Cardiff but it is extraordinarily complicated and it is basically only a device. It does seem to my rather naive political mind that if that is the object of the exercise why do it in such a complicated way when we could do it in a simple way?

  Chairman: Could we pause at that point because you have given us a great deal of information and to an extent you have anticipated some of our questions. First of all, could I ask Mr Davies and then Mr Jones to put their questions.

  Q67  David Davies: Lord Richard, you said earlier on that Wales should have the same settlement in terms of devolution as Scotland. Why have you come to that conclusion? Why should it not have the same as England, which is the largest constituent part of the United Kingdom? Obviously we are all agreed that the current constitutional settlement is illogical because it is giving one system of government to Scotland, another to Wales and something else to England, or rather nothing else to England. Why do you think you can iron out that inconsistency by giving yet more to Wales without addressing the problem in England?

  Lord Richard: First of all, I have a rather basic problem which is that I was charged with looking at the position in Wales, and not with looking at the position in England.

  Q68  David Davies: You cannot separate the two.

  Lord Richard: It is a serious point actually.

  Q69  David Davies: I know.

  Lord Richard: If I had been asked to look at the constitutional position of England within a federal structure obviously I would have done it and been delighted to do it. Why do I think you have got to treat Wales on the same basis as Scotland? First of all, because there is a deep sense of unfairness in Wales at the present situation. We held a number of meetings in different part of Wales. We held one in Newport. Were you there at the Newport one?

  Q70  David Davies: Yes.

  Lord Richard: I thought so. What was very interesting there is the Assembly came in for a lot of criticism and right at the end I said, "May I ask a question?" and everybody nodded and said, "Yes, of course" and I said, "How many here think that Wales should have the same powers as Scotland?" and two-thirds of the audience put their hands up. That attitude was not confined to Newport. We found really in all part of Wales that there was a feeling that somehow or other Wales had been not exactly cheated but done out of their rights because one constituent part of the UK, Scotland, had been treated in a different and more generous way than the Welsh. The other point I felt strongly then and still feel strongly now is that we are not a county council of England. Wales is, after all, a nation with a history and a language and a tradition, as the Scots have got a history, if not so much of a language, and a tradition, and if that can be recognised in one part of the United Kingdom why on earth can it not be recognised in another part of the United Kingdom? I expect the Irish would feel the same.

  Chairman: If we could pause there.

  Q71  David Davies: On the point about the meetings, I accept what you are saying as probably correct but what you may not be aware of is that most of the people who turned up at those meetings were all in favour of more powers to the Assembly. The great mass of people living in Wales who did not even bother to turn out and vote did not bother turning up at meetings about the Welsh Assembly.

  Lord Richard: I am sorry, if I could answer that, all we could do is hold the meetings and advertise the meetings. If people turned up to them, that was splendid; if they did not turn up, that was up to them. Secondly, there is some polling evidence which is very interesting. As you know the Aberystwyth School has done a poll and I have seen it; 64% of the people who voted in Wales are in favour of greater powers to the Assembly. That is a body of evidence I think you ignore to your peril.

  Q72  Mr David Jones: Lord Richard, as you may know, we took evidence last week from academics and I would like to return to your suggestion that the Scottish pattern of devolution should be applied in Wales. One of the impediments that the academics saw, and one that I see, is that we have the constitutional position of Wales and England being part of the same jurisdiction, having a unified legal system and a unified judiciary, which of course is not what prevails in Scotland. Is that not a major constitutional impediment to what you propose in terms of adopting the Scottish pattern?

  Lord Richard: First of all, there are signs—and I put it no higher than that at the moment—that the Welsh judiciary is beginning to exert a degree of independence from the rest of the UK. There are now more courts sitting in Cardiff—there is a commercial court sitting there, a court of appeal sits in Cardiff, and there is a court of criminal appeal in Wales—and they are beginning to develop a corpus of specifically Welsh law which is going to, I think, in the future differ, and may differ radically, from England. Secondly, the fact that you have got common judicial systems does not seem to me to be a great impediment to legislative competence. After all, other parts of the world—take Germany for example—they have a common judicial system, they have virtually a common set of laws, but they have a much more federal system of government in which the Länder have greater legislative competence and each of them has virtually the same legislative competence. While it is true that the affairs of Wales and England are more mingled, and the border is not so clearly defined between Wales and England as it is between Scotland and England, that is nevertheless the development of what has been called the Sewel procedure, which is an interesting device. What happened here is that in the House of Lords Lord Sewel, who was a junior minister at the Scottish Office when the Scottish Bill was going through, in an almost give-away line said, in effect of course, if the Scottish Parliament were to request it, Westminster could legislate in the devolved areas by consent. Nobody thought that this would happen very often but it is happening quite a great deal and now deals, in effect, with a large number of the border problems which we would have in Wales just as they have in Scotland. So I do not think that the absence of separate judicial systems is sufficient to justify the non-separation of the political systems. I do think that we have got more cement in a sense than the Scots do in that while they have got separate laws we have got a separate language.

  Q73  Mrs James: To take you back to your written submission, Lord Richard, you state that it would be sensible to clarify the number of ministers and deputy ministers who can form the government, and to include this on the face of the Bill. Could you give us a little more detail on that please?

  Lord Richard: It just seems to me that if you are going to talk about how big the Assembly is going to be, you have to have some idea how many ministers you want. I think the suggestion is there should be eight ministers and four deputies. 12 from 60 leaves you only 48, does it not? 48 to man the committees of the Assembly is going to be tight. I do not say they cannot do it but it will be distinctly tight. I do not think you could run an Assembly Government on less than 12 ministers and deputies because of the different portfolios that they have got. If they are going to look at specific issues like health and education and what have you, then you do have to have ministers in charge. I think the present system is very much a hangover from the existing structure in the Government of Wales Act, the corporate body idea which we did not approve of on my Commission and which the White Paper does not approve of.

  Q74  Mark Williams: I think you have touched on this in that answer and in the earlier one. There is a growing consensus, I think, that ministers should no longer sit in the Assembly subject committees in order to ensure ministerial accountability. You agreed with that. One of the fundamentals behind that was that manning of committees would remain a problem. I think you have answered that in answer to Mrs James's question. Can I ask why have you settled on the suggestion of 80 Members? Is that sufficient to alleviate the scrutinising role that we envisage for these committees?

  Lord Richard: We did a bit of rather basic and imprecise arithmetic and came to the conclusion that you needed more AMs. We could have said 75 or we could have said 85. Frankly, it was a compromise figure. We did not want to be too ambitious but we did not, on the other hand, want to leave the Assembly with insufficient backbenchers. That is the problem. If you are going to have an Assembly doing a proper scrutiny role you have got to have people who are prepared to do it. At the moment they are sitting on two or three, and some are even sitting on four committees. It is too much, they cannot do it. If you go and look at the committees operating with ministers sitting there as members of the committee, the relationship is much too cosy. The chairman of the committee and the minister, so to speak, are getting along well and therefore the amount of scrutiny is pretty small and pretty limited. Certainly that was the case in the committees I looked in on and that was the general feeling of other members of the Commission that went down and looked at it.

  Q75  David Davies: I think, Lord Richard, that last point is very accurate actually, from my own experience. If you increase the numbers and you increase the powers, as you have a bi-cameral system in Parliament, and if you are going to have full legislative powers or something approaching that in Wales, as you do in Scotland, would you not also need some sort of scrutinising body, a panel of wise men and women, or some equivalent to the House of Lords to look at what they are doing as well? What do you think of that?

  Lord Richard: I have been trying to reform the House of Lords for the last decade! It is a morass I do not think I would visit upon Wales at this stage. Yes, one of the functions of the second chamber is that it can do precisely what it is you want it to do. How you get that second chamber and whether it is appropriate for a country with three million people as opposed to one with 50 or 60 million, I do not know. It is interesting that New Zealand, for example, had a second chamber and it has got about three million people and they abolished it. Whether they are right or wrong no doubt will be seen. Certainly I do not think it is a prerequisite for the Assembly to get greater powers that you should have a second chamber.

  Q76  Mrs Moon: In your inquiry did you look at any other legislative bodies around the world to reach this conclusion about having an upper house? You have mentioned New Zealand and I am just wondering if you looked anywhere else?

  Lord Richard: No, we did not do a detailed comparison of other countries. Some of my colleagues went to Northern Ireland and had a look at that system, which again is different from the Welsh and Scottish systems—that is when the Northern Ireland Assembly is sitting—and their powers are again different. I have to say that from my point of view it seems much more sensible that if you are going to have devolution to the different parts of the United Kingdom, on the whole it should be the same sort of devolution. To have three or four different types is bound to cause confusion and has caused confusion. However, did we spend a lot of time looking at other countries? No, not a great deal. I think we all had a bit of basic knowledge about the German system, we knew a bit about Australia and a bit about New Zealand, but we did not set out to have a full international comparison.

  Q77  Hywel Williams: I would like to take you back to the question of Orders in Council. We did have some officials here last week from the Welsh Office and also some academics and we asked them about this. I have to confess I am not a great deal wiser, to be honest, but perhaps that is a deficiency on my part. You have concerns about Orders in Council in your submission and you note the lack of clarity about Orders in Council, how they could be managed and effected. Would you like to tell us more of your concerns and what is problematic? You may have already have touched on this earlier.

  Lord Richard: Sorry, I did not catch the end of that.

  Q78  Hywel Williams: You have already touched on this earlier but perhaps you could expand on your earlier answer.

  Lord Richard: I think we are in uncharted waters, frankly. Until this White Paper I do not think anybody envisaged the idea of using an Order in Council procedure to grant legislative competence to a devolved Assembly. You would not do it to county councils and they never did do it, as I recall, to council councils in this way. Let's be frank about it, it is a device to avoid having to come to Westminster and ask for primary powers to be formally devolved. It is quite an interesting device. It is quite a good device in that sense because what you end up with is a situation in which Cardiff ends up with greater powers, Westminster can say they have not devolved primary legislative powers, but depending on the way in which the Order in Council procedure is used, it could in effect be a concealed grant of almost a direct legislative competence down to Cardiff. All I am saying is that we do not know how it would be done, and we do not know who would be responsible for introducing it. We do not know whether there would be one Order in Council, for example, per year which would set out the Assembly's wish-list, or whether there would have to be an Order in Council in respect of each individual piece of legislation that the Assembly wanted. I do not know. Nor am I quite so sure, frankly, how you could have pre-Order in Council scrutiny, how that can work until you have got an Order in Council which you can scrutinise. Secondly, you cannot amend it and therefore it is a "take it or leave it" thing which even on the affirmative procedure is subject only to rudimentary parliamentary scrutiny up here. And finally you have got the Henry VIII point. I am not a purist about Henry VIII provisions but it does seem to me basic that on the whole an Act of Parliament ought to be amended by an Act of Parliament. Although there may be reasons why you give Henry VIII powers to ministers, I still do not see the purpose of doing it via this rather tortuous route of Orders in Council when if you want to give them more legislative competence you could do it in a more open and obvious fashion.

  Q79  Hywel Williams: Can I take you on to the Secretary of State's function in this. In your paper you say that the Secretary of State's power to reject a request from the Assembly is somewhat paternalistic. How do you propose that the procedure should be best managed as far as the Secretary of State is concerned? Should there be just the Commons and Lords rather than secretaries of state, Commons and Lords?

  Lord Richard: I do not know how you would manage it. With respect, you cannot ask me to say how you ought to manage it because I would not have gone down this route anyway! All I can do is look at what is said in the White Paper and ask the questions, and I do not know how he is going to do it. Lurking at the back of everybody's mind, certainly at the back of my mind is what was called in the Commission, somewhat irreverently, the "Redwood factor". If you had a Secretary of State in London who was against the whole concept of devolution and did not want any powers to go down to Cardiff and had the Assembly demanding greater legislative competence in a particular area, then the Secretary of State in London would be in a position to stop it. Quite apart from the fact that this is a somewhat paternalistic view, it does seem to me that it is wrong. If you have got an Assembly elected in Cardiff to do certain things then, prima facie at any rate, the legislature in London should be enabling them to do it, not putting up barriers in their way. If it is an enabling function that the Secretary of State has up here, again I come back to the point I made earlier, why go this route? However, I do not know how it is going to work out because nobody knows how it is going to work out.


 
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