Examination of Witnesses (Questions 63
TUESDAY 25 OCTOBER 2005
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
thisand again I have to be frank about thisthe 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 wasand let me use a neutral
phrase at this stage at leastthe 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 feltand this
was quite strongly felt on the part of the Commissionthat
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 thereand
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
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
Q68 David Davies: You cannot separate
Lord Richard: It is a serious
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 signsand I put it no higher than that at the momentthat
the Welsh judiciary is beginning to exert a degree of independence
from the rest of the UK. There are now more courts sitting in
Cardiffthere is a commercial court sitting there, a court
of appeal sits in Cardiff, and there is a court of criminal appeal
in Walesand 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 worldtake Germany for examplethey 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
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 systemsthat
is when the Northern Ireland Assembly is sittingand 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
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
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.