Examination of Witnesses (Questions 200
THURSDAY 10 NOVEMBER 2005
MP AND RT
Q200 Hywel Williams: Forgive me for
pursuing what might be a minor point. Should there be agreement
between the four parties and the other two members in the Assembly
that the name change was required if, according to this Bill,
there is no way for them to do that.
Rhodri Morgan: No, that is true,
but neither was there for using Welsh Assembly Government eitherbut
it came into being. The formal legal titles are set out here:
"Welsh Assembly Government" and "National Assembly
for Wales" and their Welsh equivalents (which fit rather
better). Informal titles, of the Prime Minister type before that
became a legal title, can emerge from nowhere. You do not know
really what the public get used to and what the public choose
to like and what they choose not to like and what they choose
to use, which has to be short and snappythat can be used
on a building site, supermarket checkout or whatever. Sometimes
formal titles do not suit. Informal titles which emerge up here
and in Cardiff there is no control over what the public in the
end deicide to call a particular body in their constitution.
Q201 Hywel Williams: The Bill does
not appear to give the National Assembly for Wales the powers
of dissolution. Will that be provided? I am thinking now in terms
of possible confusion in the public's mind if there are discussions
between the parties and the Assembly and it is unclear what is
happening down there. Will there be powers of dissolution?
Mr Hain: There will be procedures
in the Bill for these circumstances. Of course it is a fixed term
Assembly but if there were some kind of impasse and the Welsh
Assembly Government could not be formed, then there would be procedures
specified in the Bill.
Q202 Mr Jones: Secretary of State,
who is best placed to be final arbiter of negotiations over the
National Assembly's Standing Orders, the Presiding Officer or
the Secretary of State for Wales?
Mr Hain: Let me start by saying
I have no inclination, let alone any enthusiasm, for drawing up
the Assembly Standing Orders. I do not think that is my job. I
think that is the job of the appropriate mechanism in the Assemblyand
Rhodri could perhaps advise us of his thoughts on that. I made
that clear to the Presiding Officer on Monday. However, we have
used the same provision as in the 1998 Act, that, if there were
some kind of impasse over either the total package of Assembly
Standing Orders or perhaps a narrower part, the fallback would
be an order for the Assembly to start afresh with Standing Ordersas
we would clearly need toand it would fall to me to resolve
that matter. I hope that will not be the case. I hope there will
be a consensus on it because I do not to exercise that power.
It is simply, as it were, a statutory fallback in the case of
Q203 Mr Jones: Would that be a continuous
Mr Hain: No, once the Standing
Orders are agreed they can then be amended by, I think, two-third's
majority in the future. That is not a matter that the Secretary
of State will want to hear about, let alone be involved in.
Rhodri Morgan: You have to start
from somewhere, because you have a new Bill; you cannot use the
old Standing Orders. I think the formal legal point is that in
all circumstances the Secretary of State makes the Standing Orders
but if there is a two-third's majority in favour of a set of Standing
Orders, the Standing Orders that he makes are the ones that Assembly
have already determined. If, however, the Assembly simply cannot
agree on a set of Standing Orders, we are in difficulty and then
you have this fallback power for the Secretary of State to do
more than make them, but legally have to make them (in other words,
write them), because the Assembly cannot do it itself. I am sure
it will not come to that, but you have to have a fallback, otherwise
you could finish with an Assembly with enhanced legislative powers
but no modus operandi.
Mr Hain: It is a powerful incentive,
as I see it, Chairman, on the Assembly to agree, so that I am
not troubled by this! I have enough to do.
Q204 Mark Williams: Without wishing
to add to the Secretary of State's workload, you responded to
Mr Roger Williams in a written answer last week that the Devolution
Guidance Note 9 has been revised to take account of the White
Paper. I think Mr Williams described them in Welsh questions as
a "Bluffer's Guide to Devolution" but we will not go
into that now. What steps has your office taken to ensure that
there is a more consistent and accurate approach in giving the
Assembly "wider and more permissive powers"?
Mr Hain: Exactly that. We have
a manifesto commitment to doing this. Very soon after the election,
having got agreement before it to this approach from the Government,
I initiated the procedure whereby the Department for Constitutional
Affairs subsequently issued a devolution guidance noteof
which there are manyDevolution Guidance Note 9, which specified
that in drafting primary legislation of an England and Wales character,
if there were to be clauses devolving power in itsuch as
the NHS Redress Bill on banning smoking in enclosed public places,
which is the first example of thisthen, instead of a series
of, as it were, clauses which specify in some detail what the
Assembly could or could not do, it simply said the Assembly will
have the power to do as it wishes in detail on this policy. That
guidance is now to be followed by a new Whitehall Department on
drafting primary legislation and drafting bills affecting Wales
as well as England.
Q205 Mark Williams: Are there any
monitoring arrangements in place to ensure that guidance is being,
in the first place, looked at and then followed?
Mr Hain: I guess your Committee
might want to take an interest in that! The procedure is that
all legislation affecting Wales is monitored extremely closely.
Indeed, we helped draft it by the Wales Office, and, as often
as not, working in partnership with the Assembly. It is often
Assembly officials who provide the expertise, because they are
the lead officials, and Wales Office officials and ministers if
needs be will be involved in some brokering and extra assistance
at the Whitehall end of things, so that process will occur. If
there were any attempt, as it were, to depart from it, then we
have the Devolution Guidance Note to assist us in making sure
that the new regime is kept to.
Q206 Mrs Moon: I wonder if I could
ask you a different question, about aiding communication between
Whitehall civil servants and Assembly civil servants, if I could
put it that way. It has been suggested that to assist understanding
and to aid scrutiny an explanatory memorandum be attached to Bills
explaining which clauses were relevant to Wales and which clause
were going to be enacted differently in Wales. Would you find
this a useful proposal? Do you think it would aid both scrutiny
Mr Hain: I think there is an explanatory
memorandum attached to all clauses at the present time. That would
make it clear where there were Welsh-only clauses. We could perhaps
look at making that even clearer, given the new framework powers
that are being granted. We also envisagealthough I realise
we are not discussing this yetthat when an Order in Council
comes before the House of Commons and the House of Lords there
will be an explanatory memorandum attached to that, explaining
exactly what its purpose is and exactly how it will operate.
Rhodri Morgan: In relation to
this Bill itself, whereas it would be a huge burden of time to
get it translated into Welsh around the time of publication, we
do think it might be practical to have the explanatory memorandum
(which would be 20 pages, say) translated into Welsh at a pretty
early stagemaybe not before second reading but possibly
well before your committee stage starts here.
Mr Hain: Perhaps I may make one
other point that I perhaps overlooked in answering the question.
My experience has beenand I am sure Rhodri will agreethat
our officials in the Wales Office and the Assembly work very closely
together. There is a common purpose. Sometimes issues have to
be resolved in the nature of the situation but they have a common
Q207 Mrs Moon: I do not think the
suggestion was that there is a problem in the Wales Office. I
think the suggestion was that some other government department
is perhaps not aware of issues in the Wales Office.
Mr Hain: Our job in the Wales
Office is to make them awareas we do when we need to.
Rhodri Morgan: And I have suddenly
lost the power of speech!
Mrs Moon: Indeed.
Q208 Chairman: Should you ensure
that there is some sort of statement by those departments that
they would do that? There is the recent example of DCMS not undertaking
certain things in relation to the Welsh language. Is there any
request that you should explore that?
Mr Hain: The Parliamentary Under-Secretary
of State made it clear that that had been a less than desirable
procedure. Sometimes there are slip ups, but we usually put them
right or spot them coming and make sure that things are done in
the way that was intended.
Q209 Chairman: Would it be in orderand
this is not a flippant remarkthat the officials might visit
Wales on some staff development programme to get some understanding
of how devolution is unfolding?
Mr Hain: My experienceand
certainly of Wales Office officials who have been there since
the beginning, following 1999 and the establishment of the Assemblyis
that whereas Whitehall was on a very steep learning curve at the
beginning at official level, and, dare I say it, occasionally
at ministerial level as well, that has largely receded. So I am
not sure there is a problem here, but you are free to make any
observations, Chairman, and your Committee, on this as you see
Q210 Mr Crabb: Going back to the
Orders in Council procedure, you kindly submitted a memorandum
which outlined in detail how the procedure would work. It is clear
from reading the document that you both get on well and agree
on the big issues. Do you envisage any potential problems for
the Order in Council procedure, should we perhaps have a Secretary
of State and First Minister who do not have the same kind of goodwill
that you both enjoy?
Mr Hain: What a suggestion! It
is an important question that I think we would both be pleased
to address. If you are envisaging a situation which is quite conceivable
in the futureof a different colour government in London
from a Welsh Assembly Government in Cardiff, that kind of cohabitation
is no differentas I think Rhodri has described itin
respect of primary legislation. Let us be clear, if there are
going to be difficulties of cohabitation, then they are even more
difficult under primary legislation, the existing settlement,
than they would be under Orders in Council, because a hostile
London government could refuse to put a request for primary legislation
in the business programme, pleading no time/pressure/no opportunity
in the Queen's Speech. That may be, as it were, an excuse because
there was an objection in principle. Parliament is sovereign and
that is the case now as it will be in the future. But I think
the Order in Council procedure allows for a better accommodation
and an easier accommodation, and an easier accommodation between
difficulties of politics, simply because you do not have this
roadblock in the way of having to squeeze in Welsh Bills, as we
have had to fight for space over recent years. We have been very
successful, by the way, very successful indeed, but you have to
fight for space in the Queen's Speech in the legislative programme.
An Order in Council is not really going to trouble the legislative
programme to a great extent. It is an hour-and-a-half debate on
the floor of the House compared with going through all the stages
of a bit of primary legislation.
Rhodri Morgan: Obviously I have
a completely split personality over this. In the end, the true
test of devolution is how it has coped with cohabitation. With
any settlement at all, it is how it has coped with different political
parties in power. Because it is, in a way, too easy when the same
party is in power. Although you have the odd bit of argy-bargy
from time to time, naturally, it is, by and large, the same party,
the same manifesto, the same set of values. It would be nice in
theory to be there. On the other hand, in partisan terms, you
do not want that to happen. You want to be winning elections in
Wales and you want to be winning elections at the UK-wide level.
Robustness, therefore, of the settlement, in readiness for the
time or the moment at which this cohabitation of different parties
in control has to be put to the test, is very important in any
settlement. I believe that what is proposed here is as robust
as you can make it. Until it happens, you will not really know
that, but I think it is devised so that you can establish a set
of conventions, possibly with the same party in control, and then
with whatever happens at Assembly elections in 2007 or 2009 or
whatever. At general elections we cannot really predict what will
happen, but the key thing is this: Is the convention and the understanding
of how the Orders in Council procedure will work when there are
different parties in control going to work on the basis that the
Secretary of State, initially, and then Parliament will decide
what you call the "appropriateness of releasing this bit
of legislative power" not on the merits of the casethat
is, do we like it or not?but on whether it is appropriate?
If we can get that convention working and up and running, then
it is, I think, robust. There is not a devolution settlement anywhere
in the world that has not had cohabitation. We are unusual here.
Australia had the absolute opposite, where the Federal Government
has been Conservative for years now12 years or somethingand
all the States and the Northern Territories are mainly Labour.
There you have this complete clash of political parties, but because
they have had devolution for 100 years or so, it does not matterthey
still blame each other for who has left the other short of resources
for doing this, that or the other. Of course you will always get
that. On the other hand, it does not put the devolution settlement
to the test. Because devolution has only been around for six years
here, not 100 years, there will be some fairly testing times,
but it is very important that this settlement is seen to be robust.
It is up to everybody from all different political parties that
might be in power in Cardiff or in London to be able to workand
to work on how it would work. The point Peter has made is very
important, that the present settlement lacks a certain element
of robustness, because when the Assembly now makes a Bill bid
for primary legislation here, you will never know whether the
Secretary of State was being sincere in saying, "Sorry, you
chaps down there. Very fine Bill, but we do not have time to put
it in. You always know the struggle we have. The Home Office have
six Bills this year, so there is no time for yours," You
will always be wondering, "Was he having us on? Was he using
the time factornot enough time in the legislative programmeas
an excuse for the fact that he does not like the Bill?"
Mr Hain: I never have Rhodri,
of course. It is my view that, in the future, any government in
Westminster of a party hostile to the Government in Wales, if
it consistently defied the Assembly, would find itself run out
of Wales in subsequent elections, as happened on the previous
occasion this occurredI do not make a partisan point, I
am stating a historical factwhen the conservatives lost
all their MPs in 1997. I think this will be a learning process
for everybody. I would have thought any sensible United Kingdom
Government, acting in its own party's interests as well as the
interests of the nation, would want to work in partnership with
the Assembly, as we have done, because otherwise there are political
consequences for that particular party in Wales.
Q211 Hywel Williams: If the party
or parties in the Assembly have a manifesto commitment to a particular
course, and that is endorsed by the National Assembly but is refused
by the minister here, even if the major parts of expertise might
reside in Walesand I am thinking of the Welsh Language
Bill, for examplehow would you foresee that being dealt
Rhodri Morgan: This is all part
of the predictive process of what then happens when you have to
face up to cohabitation. Partially, we can draw on the long history
of the relationship between Labour governments elected with majorities
in the House of Commons, but with adverse voting majorities in
the House of Lords. The Salisbury Conventionnot in the
written constitution, because we do not have one in this countryhas
lasted a long time, 100 yearsand it is still lasting, so
far as I knowwhereby the House of Lords with a Conservative
majority, let us say, or an anti-Labour vast majority, does not
block a measure of a Labour majority coming in if it is a manifesto
commitment. You then say, "Okay, if the Assembly winning
party has a manifesto commitment, then that is a pretty strong
argument." The only slight difficulty one can see is if you
do not have a single-party majority and you have a rainbow coalition
of several smaller parties, one of them has a manifesto commitment
but the others do not. Are we in Salisbury Convention territory
there? To be honest, I do not know, but I do not think so. If
all three opposition parties form a rainbow coalition, all have
the same manifesto commitment, well then it has the same effect
as if one party wins a majority with a manifesto commitment in
the Assemblywhich does have the same moral force. But we
are talking about moral force here, as we are with the Salisbury
Convention, because none of this is written down, and because
the British Constitution depends on not writing things down but
on custom, practice and convention.
Q212 Hywel Williams: You would assume
that something like the Salisbury Convention would apply in one
case but there might be a second case where one party in a group
of three might only have a manifesto commitment.
Rhodri Morgan: Absolutely.
Q213 Hywel Williams: But there would
be a different class of commitment from the others, even if they
happened to agree with the lead party.
Rhodri Morgan: But did not put
it in their manifesto. No, if you did not put it in your manifesto,
it does not have the same force really. Everything in relation
to quoting the Salisbury Convention is based on something being
in a manifesto. It has to be in a manifesto to have any ability
to read across from the Salisbury Convention, as it operates between
the two Houses here.
Q214 Hywel Williams: So, even though
we are in new territory, the convention as it applies in this
Place is the one you foresee coming into force.
Rhodri Morgan: There is nothing
else to go on. We do not have written constitutions. we do not
have referenda to change written constitutions, because we have
not had one in the first place. We have conventions. We want conventions
which work. They work very well and have done since 1688.
Q215 David Davies: This discussion
is getting pretty hypothetical at the moment. I firstly have to
welcome the recognition that there may well be a situation where
we have different government in Westminster from one in the Welsh
Assembly. I suspect it would be in no party's interest to undermine
the relationship between those two bodies, although I am not sure
it will be quite as good as it is at the moment. It is in the
interests of both organisations to work together and I am sure
everyone would recognise that. My first question is almost superfluous,
given the way the conversation has developed, and it may sound
a little pedantic, but, as the Secretary of State for Wales said
earlier on, giving full legislative powers would create further
problems or the potential for further problems. I am bound to
throw back to him the obvious rejoinder, that not giving Orders
in Council and keeping things as they were would create less potential
problems if we arrive at a situation where there are two different
parties running the two different legislative bodies.
Mr Hain: I am not sure I understood
the question as you interpreted my answer. My point earlier was
that under primary legislation there tends to be more problems.
Q216 David Davies: Yes, so under
no Orders in Council potentially less problems.
Mr Hain: Yes, I think so. Let
me give you an example, as it might be helpful for the Committee,
of the sort of problem that might need to be resolved. It is not
an issue of principle but an issue of detail, in a sense. Suppose
you took nursery education and the Assembly requested an Order
in Council enabling it to make provision in relation to nursery
education to ensure maximum flexibility and the request was broadly
framed, and the Secretary of State would be concerned that the
request might be too broad and might allow future Assembly administrations,
for example a grand opposition coalition involving the Conservatives,
to re-introduce nursery vouchers. In those circumstances, the
Secretary of State would ask the Assembly to narrow the scope
of the Order to prevent a potential clash there. You might have
those kinds of discussions but the process would encourage you
towards a consensus in the partnership. As I think you well put
it, the organisations would want to: it would be in both Parliament
and the Assembly's interests to work closely together. If, however,
you got a series of log-jams as a result of political confrontation,
if you did do this in future years then I think the case for triggering
a referendum and going to primary powers would become unassailable.
Any party in Westminster which was seeking to consistently thwart
the Assembly would be inviting it to trigger the process for a
referendum, to get the primary power which would not allow any
blockage or log-jams or roadblocks to be put in the way.
Q217 Mark Williams: Returning to
Lord Richard's views on these matters, he described the White
Paper's proposal to give the Secretary of State the power to reject
a request from the Assembly for Order in Council as "somewhat
paternalistic". Can you explain the rationale for proposing
this role for the Secretary of State rather than letting Parliament
decide on the merits of the Order? And, following on from that,
would you not consider a limitation of your proposed power, whereby
your role would be limited to checking whether the Order in Council
is in order?
Mr Hain: I am happy to go into
the process where, by the time it came to that decision, you would
know it was in order because both sets of officials would have
been involved in checking that and clearing it, including with
other Whitehall departments. I think there are two points here.
First of all, it is not Parliament that, as it were, lays its
own Orders; it is the Secretary of State. That is the way our
system operates. Secondly, I do not think it is a question of
a paternalistic role; I think it is the necessary intermediary
between Welsh Assembly Government making a request ultimately
to Parliament and a secretary of state transmitting that request
to the floor of both Housesas would be the end result after
a process of pre-scrutiny, which you may, Mr Chairman, want to
look at. I do not think it is a patronising role, a paternalistic
role at allexcept in the sense that, given that you do
not have a separate parliament for Wales able to make its own
primary legislation, you could argue that everything that Westminster
does is in one sense patronising towards the Assembly. But that
clearly is nonsensical, and I do not see it as any different really
from the present situation. I put down primary legislation as
the current Secretary of State, just as I would do to Orders in
Council if I still hold that post when this new dispensation is
Q218 Nia Griffith: If, Secretary
of State, you see that role as a transactional role, as you transmitting
something from the Assembly to Parliament, why did you say you
should have the right to refuse an Order in Council and therefore
pre-empt a decision by Parliament?
Mr Hain: I do not see it as a
purely transactional role. I think it is a question of getting
the Order in Council in the sort of shape that Parliament is likely
to want to endorse. I gave an example on education and I will
give another one on tax and benefits. If the Assembly, say, requested
an Order in Council within its existing devolved competence, for
example, social justice, but the Secretary of State was concerned
that the proposed policy would have serious implications for the
tax and benefits system, which is not a devolved competence, and
it would not be possible to draw up a measure without encroaching
into reserved matters, then you would perhaps want to tweak the
Order in Council and you would want to enter into discussion.
I would envisage this taking place at a very early stage, when
the First Minister first came to the Secretary of State and said,
"Look, we want to do this. Our officials need to get together
to work out a satisfactory and suitable mechanism in the form
of an appropriate Order in Council in order to effect this,"
and you would immediately be working in partnership on it.
Rhodri Morgan: It is something
more than vires but something less than merit. In other
words, if I ring Peter up and say, "We are thinking of bringing
in the slaughter of the first-born miscellaneous provisions Bill,
Order in Council 2006"or 2007 or 2008 or whatever,
and Peter's first reaction is, "I think that is a fairly
challenging proposal to do in an Order in Council, Rhodri,"
you can see that there is an exercise of judgment going on, not
merely on the vires, because the lawyers you hope will
have sorted that out, but it is something less than the merits
of the case. It is an in-between stage.
Q219 Hywel Williams: Would you be
in favour of some kind of "constitutional lock" to offer
the National Assembly for Wales some protection if a government
of a different stripe appeared in respect of existing Order in
Mr Hain: Constitutional lock?
Rhodri Morgan: What constitutional