Select Committee on Welsh Affairs Minutes of Evidence

Examination of Witnesses (Questions 186 - 199)



  Q186  Chairman: Good afternoon. Welcome to the Welsh Affairs Committee. I wonder if our two witnesses could introduce themselves.

  Mr Hain: Peter Hain, Secretary of State for Wales.

  Rhodri Morgan: Rhodri Morgan, First Minister for Wales.

  Q187  Chairman: That is just for the record—we do know you! Secretary of State, we will be submitting some written questions to you. Hopefully you will be able to reply in the next few days. That will give us more time to ask some of the more substantial questions today.

  Mr Hain: I would be very happy to do so.

  Q188  Chairman: Could I begin at the beginning, so to speak, with the devolution settlement. It was once suggested by Nye Bevan that the constitution of the Welsh Rugby Union was Byzantine but the devolution settlement has been similarly described in more recent times as Byzantine and the White Paper proposals add to the complexity. Why was a draft Bill not published in order to give an opportunity to the public to have a better understanding of what the proposals are being submitted to us?

  Mr Hain: First of all, we published a White Paper in June. Secondly, the clock is ticking on this. These arrangements need to be in place in advance of the Assembly elections in May 2007. The new structure, particularly for abolishing the single corporate status of the Assembly and replacing it with a proper executive and legislature arrangement—a policy, incidentally, supported right across all the parties, a matter of consensus—needs to be in place from early May 2007. The Assembly needs to have time to put those arrangements in place, which involves a pretty substantial and radical restructuring of the whole way it goes about its work.

  Q189  Mr Crabb: In response to our concerns about the complexity of the proposals, Alan Cogbill assured us that the Bill will be "coherent and free standing". What do you understand that phrase to mean?

  Mr Hain: I think he meant there would be one single Government of Wales Act. There is an existing Government of Wales Act 1998 but, as my memorandum makes clear, around 120 of the clauses in the new Bill—to become an Act, we hope—will be transposing and modifying the existing legislation. There will be around 40 new clauses, mainly dealing with the enhanced powers and the reforms there. Rather than cross-referencing the whole time, the Parliamentary Council advised us it is better to have a single piece of legislation which would be, as it were, the Bible for devolution.

  Q190  Mr Crabb: A lay person would be able to understand the devolution statement just by reference to the new Act without referring back to the 1998 Act.

  Mr Hain: Indeed, with perhaps the help of the explanatory memorandum that goes alongside it.

  Rhodri Morgan: Could I endorse that. From the point of view of lawyers in Wales, political scientists in Wales, anybody interested in their rights or the political process, if you have an act which requires reference back to the 1998 Act then basically you have to have two books in front of you all the time. It is much better if you have just the one and you can get your nose on to that statute, and—provided you are reasonably good at interpreting statutes—you are at the races; whereas, if you are dodging back and forth all the time, I just think it leads to confusion. So it does make for a longer Bill this time, but I think it is a much better output even though you have that greater length. You should not measure it by how many clauses you have but how many clauses you have terminated in the old Bill in order to give you the coherent single viewpoint.

  Q191  Mrs James: My question is to the First Minister. The Presiding Officer told us when he gave evidence last week that the National Assembly for Wales had very little input into the drafting of the Bill. Can you outline in detail what role you and the Welsh Assembly Government have had in drafting the Bill?

  Rhodri Morgan: Perhaps the remarks of the Presiding Officer will be accurate for his perspective. By that he will mean that the members of the Assembly, the corporate body of the Assembly, the 60 members of the Assembly, will have had little role because it is a UK Government Bill and is part of the manifesto commitment. But that also implies that there has been a degree of tremendous teamwork between both our lawyers and Wales Office lawyers, our civil servants and Wales Office civil servants, and myself politically and the Cabinet more generally, in supporting the Wales Office's prime responsibility as part of the collective UK Government responsibility for bringing the Bill forward. We have been there as part of the team that has helped to create the set of instructions to the Parliamentary Council, but it is a UK Government Bill. There are no two ways about that.

  Mr Hain: As Rhodri says, there is a single Bill team, staffed by a majority of Rhodri's staff, drawn from the Assembly, with Wales Office staff to complement that. Obviously the Presiding Officer is being kept closely in the picture. I saw him on Monday and I think satisfactorily resolved all the queries that he had. I suppose it is also similar in this sense—apart from the UK Parliament being in the lead on this, because it is a UK Parliament bit of legislation—that the speaker does not draft government bills in our Parliament.

  Q192  Mark Williams: A large consultative exercise was undertaken by Lord Richard and he has produced a highly acclaimed report. How are the Government's recommendations in Better Governance for Wales superior to the conclusions Lord Richard reached?

  Rhodri Morgan: What Richard does not have but this Bill does have is an intermediate stage—which could in theory become the final stage: it all depends on politics long after I have retired and put my feet up. The Richard first stage has already been implemented—by Peter when he was Leader of the House—and that has been continued; namely, the principle of framework legislation. On all England and Wales Bills the normal practice of this Government and this House will be to put the Wales measures into the hands of the Assembly for filling in all the details. Then Richard goes straight to a third stage, with all the complexities of a shift in the electoral system to STV, a referendum and so forth, and a reduction probably in the number of members of Parliament and so forth following the Scottish precedent. What this Bill has but Richard did not have is the intermediate stage; namely, the Orders in Council stage, or, if you like, the parliamentary release catch, where the Assembly can apply and then the Secretary of State takes a view, and then it comes through into Parliament to request Parliament to release the powers to the Assembly to pass an Order in Council. That is not in Richard. We think that is a good thing to have added to Richard. I do not think there is anything in Richard which is not in this Bill; but there is something in this Bill of key importance which is not in Richard.

  Mr Hain: I do not want to contradict Rhodri at the start of our joint evidence, but what was not in Richard was a commitment to a referendum, I think I am right in saying. On the question of primary powers, this Bill will put on the statute book for the very first time primary powers for Wales. I think that is a very important part of it and one that I am proud of. But it has made it clear that this is a radically different settlement from the 1997/98 settlement—which itself was authorised by a referendum—that you would require a referendum to get primary powers for the Assembly, whereas you could get on with the job in the meantime and give substantial powers, as Rhodri said, to the Assembly through Orders in Council between 2007 and 2011, and of course Richard did not envisage primary powers coming in until at least 2011. So we think we have a more practically deliverable package of enhanced powers for the Assembly than the Richard Commission proposed. Of course the other similarity with the Richard Commission was the split between the executive and the legislature. We just took that blueprint that he recommended and are taking that forward.

  Q193  Chairman: Could I pursue this for a moment. Could you put on the record the reasons why you think it is so important? I assume it is in the context of what has happened in the past and the need to get the full support of the people of the Wales to move forward.

  Mr Hain: It is that. I think you have to be on the high ground here. If you are proposing a democratic extension of powers for the Assembly that is completely different from the 1998 Act, completely different from the policies put to the people of Wales in 1997, you need to get the people of Wales's endorsement for it. That is the reason. I think that has strengthened the case, and, I suspect, Chairman, if we had not as Welsh Labour and as the Labour Party have it put in our manifesto and as a government decided on this policy, the Bill would doubtless have been amended during its passage in Parliament to have included a referendum. I think we are in a very strong position of saying, "Here are the powers sitting and waiting on the statute book. When there is a consensus in Wales, beginning with a consensus in the Assembly to go for those primary powers, then we can trigger a referendum by the Order in Council mechanism we propose."

  Q194  Mr Jones: Secretary of State, does the Order in Council process itself not amount to a radical extension of the powers of the Assembly way beyond what was envisaged at the time of the 1997 referendum? Should that not also be the subject of a referendum now?

  Mr Hain: No, because the UK Parliament is in charge. The UK Parliament in respect of the powers that go to the Assembly under this new procedure makes the decision. That is exactly what the 1998 Act provided for and was endorsed by the people of Wales in 1997. Yes, it is true that we do not have the full stages of primary legislation, the whole process in both Houses—that is true: there is an accelerated procedure—but Westminster remains sovereign. Therefore, there is no case for any referendum which would authorise the delivery of primary powers to the Assembly—which I have long supported—in which Westminster would no longer make decisions to the powers that the Assembly have.

  Q195  Mr Jones: Have the people of Wales ever been consulted over the Order in Council procedure?

  Mr Hain: There was a widespread process of consultation following the Richard Commission, in which both Rhodri and I were in exactly the same position, that we wanted to see the Assembly get on with its task of having greater powers following 2007 and did not want to wait another four years, as Richard proposed—particularly bearing in mind we needed to get a referendum to get further on. Fundamentally, we are suggesting here that once the decision in principle is taken by our Parliament, by this House and by the House of Lords, to grant the Assembly the enhanced legislative competence orders that it requires to make Assembly measures—that is a decision of Westminster, and once that decision is taken—the Assembly is able to tailor its own policies much more effectively and in fact with less complexity than is the case now.

  Rhodri Morgan: If I might add to that. I do not think one should abuse or overuse the referendum mechanism. You should confine it to the major constitutional issues about who runs your country. The degree to which Parliament and the Assembly run the country is not a suitable question for a referendum. In other words, if you are introducing something new, like the Assembly, then: referendum. If you are joining the European Union and you have never been run by the European Union before, then: referendum. The degree to which Parliament runs Wales and the Assembly runs Wales, that, it seems to me, would be an abuse of the referendum mechanism.

  Q196  Mr Jones: But this was never envisaged in 1997.

  Rhodri Morgan: I do not agree with you. I believe that this implements exactly what was intended by the 1997 referendum—not the technicalities of it, but the way in which Parliament could release powers over a legislative area was envisaged and this makes the Assembly-Parliament bargain over who does what very much in line with what was envisaged throughout that time.

  Mr Jones: And you are content—

  Chairman: Could I ask members of the Committee, if they want to ask a supplementary, to do it through the Chair, please.

  Q197  Mr Jones: Forgive me Chair. You are quite content, therefore, that the people of Wales should have no say on this particular—

  Mr Hain: Hang on, David. Have no say? I mean, this is a difference between an Order in Council granting the Assembly more powers and more scope to tailor policies in the way that it ought to, and a bit of primary legislation. Are you seriously suggesting a referendum on the people of Wales on giving powers to the Assembly to choose between primary legislation and Order in Council? I do not think the people of Wales would thank you for that referendum, quite frankly, and it does not alter the fundamental relationship and the fundamental settlement endorsed in 1997.

  Chairman: We will return to the Order in Council later on in the session.

  Q198  Hywel Williams: Good afternoon. The Presiding Officer, when he was before us a little while ago, said that it would be inappropriate for the Bill to prevent either the Welsh Assembly Government or the National Assembly for Wales to change their names if they so desired. Is there a provision in the Bill to allow them to change their names? Would you think that is appropriate?

  Rhodri Morgan: No, there is no provision for any change of the name. It is a curious thing about names. I seem to remember that in the opening clause of the Government of Wales Act 1998 there are three different ways of formulating the phrase: "National Assembly for Wales" or "an Assembly for Wales" or whatever, right in the opening clause. We are not proposing any change of name, therefore there would not be legal authority for changing the name. Welsh Assembly Government was not in that Act, but clearly now you do need some name, because what you are doing is having a legal personality for the Assembly Government which is not in the original Act. But, beyond using the name that has become custom and practice over the past four or five years, there is no provision for doing that and no provision for changing the original provision of the National Assembly for Wales from the 1998 Act. I think we all accept that in the end the people rule this issue and what becomes the convention is the convention. You will all be aware here that the words "Prime Minister" had no force in law for 150 years or more. It was always " First Lord of the Treasury" and then suddenly they decided they had better regularise this and had the words "Prime Minster" enshrined in law. Likewise, I heard a very good plug for us by the managing director of BT this morning. He referred to us as "the Welsh Government" having worked well with BT on bringing broadband to Wales. I do not know what people will be saying in 10 or 15 years. None of us can predicate that. In the end, the people will rule because it is the people's convention. They decide whether to call the Prime Minister the Prime Minister or the First Lord of the Treasury, and they will decide which name to give to the Welsh Assembly Government, or the National Assembly for that matter, in 10 and 20 years and there is nothing any of us in this room, neither me nor Peter nor any of you, can do about it if that is what the people decide.

  Q199  Hywel Williams: Where did the term Welsh Assembly Government come from? What were the procedures for adopting that?

  Rhodri Morgan: It was agreed across the four parties in the Assembly that we needed to stretch the elastic—not break the elastic, but stretch the elastic—of the Government of Wales Bill of 1998, so as to make as clear as possible the distinction between the executive branch and the legislative branch, and we have to have a title, therefore. There was a bit of argument about it. People pointed out, "Welsh Assembly Government sounds quite funny if you just use the three initials: WAG." Fine. Okay. Take that on the chin. People said: "The equivalent if you applied it here would the United Kingdom Parliament Government as distinct from Her Majesty's Government." Not many people outside this Place use "Her Majesty's Government" but that is the official title. In the end, you have to decide upon the title with the fewest disadvantages, and that was done. Because you have used it then for four or five years, the best thing is to proceed with it. What the public will use in 25 years time, I have no idea.

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