Examination of Witnesses (Questions 186
THURSDAY 10 NOVEMBER 2005
MP AND RT
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
recordwe 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
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 arrangementa policy,
incidentally, supported right across all the parties, a matter
of consensusneeds 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 Billto become an Act,
we hopewill 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, andprovided you
are reasonably good at interpreting statutesyou 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
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
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
senseapart from the UK Parliament being in the lead on
this, because it is a UK Parliament bit of legislationthat
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 stagewhich
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 implementedby Peter when he was
Leader of the Houseand 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 settlementwhich itself
was authorised by a referendumthat 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 Housesthat is true: there is an accelerated procedurebut
Westminster remains sovereign. Therefore, there is no case for
any referendum which would authorise the delivery of primary powers
to the Assemblywhich I have long supportedin 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 proposedparticularly 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 measuresthat is a decision of Westminster,
and once that decision is takenthe 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 referendumnot 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
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
elasticnot break the elastic, but stretch the elasticof
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.