Select Committee on Welsh Affairs Minutes of Evidence

Examination of Witnesses (Questions 200 - 219)



  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 either—but 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 snappy—that 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 Assembly—and 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 Orders—as we would clearly need to—and 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 an impasse.

  Q203  Mr Jones: Would that be a continuous process?

  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 note—of which there are many—Devolution 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 it—such as the NHS Redress Bill on banning smoking in enclosed public places, which is the first example of this—then, 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 and understanding?

  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 envisage—although I realise we are not discussing this yet—that 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 stage—maybe 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 been—and I am sure Rhodri will agree—that 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 purpose.

  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 aware—as 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 order—and this is not a flippant remark—that the officials might visit Wales on some staff development programme to get some understanding of how devolution is unfolding?

  Mr Hain: My experience—and certainly of Wales Office officials who have been there since the beginning, following 1999 and the establishment of the Assembly—is 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 fit.

  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 future—of a different colour government in London from a Welsh Assembly Government in Cardiff, that kind of cohabitation is no different—as I think Rhodri has described it—in 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 case—that 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 now—12 years or something—and 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 matter—they 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 work—and 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 factor—not enough time in the legislative programme—as 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 occurred—I do not make a partisan point, I am stating a historical fact—when 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 Wales—and I am thinking of the Welsh Language Bill, for example—how would you foresee that being dealt with?

  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 Convention—not in the written constitution, because we do not have one in this country—has lasted a long time, 100 years—and it is still lasting, so far as I know—whereby 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 Assembly—which 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 Houses—as 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 all—except 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 in place.

  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 Council powers?

  Mr Hain: Constitutional lock?

  Rhodri Morgan: What constitutional lock?

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