Examination of Witnesses (Questions 220
THURSDAY 10 NOVEMBER 2005
MP AND RT
Q220 Hywel Williams: If there were
disagreement between governments here in Westminster and in Cardiff,
would you be in favour of some kind of constitutional lock that
would offer the National Assembly for Wales a level of protection
over existing Order in Council powers?
Mr Hain: First of all, I think
it is simply a statement of constitutional fact that Parliament
is sovereign. You could not, even if you wanted to, bind Parliament.
The Assembly could not bind Parliament in its decision and, therefore,
it would always be a matter of the House of Commons and the House
of Lords making the decision that the Assembly requested of itor
not, as the case may be. But that is no different from the existing
settlement. So I do not think you can put a Bill down as saying
whatever the Assembly asks Parliament has to do it in advance.
Parliament would not carry a bill saying that. I would certainly
not introduce one saying that. I would come back to the point
I made earlier: I do not envisage that arising, and if it consistently
did arise, the case for triggering a referendum for primary powers
would become unanswerable.
Q221 Nia Griffith: Supposing something
is turned down and there is a refusal, why in particular should
that refusal come to you rather than to the Presiding Officer
of the National Assembly for Wales?
Rhodri Morgan: These are proposals
which come from the elected Government majority of the Assembly,
the administration, and therefore the refusal goes back. But there
is not an abridgment here of the ability of backbenchers in the
Assembly to use what is now Standing Order 31. As in a ballot
procedure, as you have up here, for private members" bills,
we have Standing Order 31 for private members" initiatives
then of a legislative character. They would have the same ability
to come forward, but they would be treated differently. They would
not go back to the Government side of the Assembly, because they
have not come from the Government side of the Assembly, but they
have been voted through on a free vote through a private members"
bill equivalent procedure that we have.
Mr Hain: From my vantage point
you cannot have a secretary of state with a position where he
is dealing with the whole of the Assembly, especially under the
new dispensation, unanimously supported across the parties, where
there is a clear division between the legislature (that is the
Assembly) and the executive (that is the Welsh Assembly Government).
We would deal with the Assembly on a government-to-government
basis. We would deal with the issue on a government-to-government
basis, although ultimately the Welsh Assembly Government is answerable
and accountable to the Assembly just as we are to Parliament.
Q222 Hywel Williams: Lord Richard
told us that the House of Lords would not be happy at all in respect
of the use of Henry VIII powers and the Orders in Council procedure.
Would you use the Parliament Act in the face of opposition to
the Bill in the Lords?
Mr Hain: First of all, this is
a manifesto commitment, so the Salisbury Convention applies. It
is a manifesto commitment in all the key principles in the Bill.
I do not agree with Lord Richards and my initial inquiries suggest
that assessment is not the case. I think there is a lot of support
amongst peers of all parties for this process. For the reasons
that the Richard Commission explained, the Welsh Assembly and
the Welsh Assembly Government do need to move on from where we
are now and before a referendum triggered primary powers, if and
when you got to that point. I do not think these are Henry VIII
powers because in the end Parliament decides to give the Assembly
the measure-making capacity. Secondlyand this is a crucial
point where I do not agree with Lord Richardthe Assembly
will itself have a full scrutinising legislative role of a much
larger kind than it has now. The concern about Henry VIII powers
is giving secretaries of state Henry VIII powers to do pretty
well what they like. Here you are giving the Assembly the ability
to determine its own policies and exercise its own powers of duties
as it sees fit. That is a legislative body, accountable ultimately
to the people of Wales.
Rhodri Morgan: I endorse that
very strongly. I think it is fair to say that the scrutiny procedures
in the Assembly and the degree of democratic Sturm und Drang
by which their weaknesses are teased out. The teasing out of weaknesses
in a government proposal is extremely strong in the Assembly and
I would say compares wellif "well" is the right
word herein the way it tests the validity of a government
proposal with the amount of scrutiny of a Henry VIII type of procedure
in this place. That is not a criticism, of course, of the mother
of parliaments, but I think it is fair to say the Assembly would
put things through the ringer more closely as a democratically
elected body, whereas Henry VIII powers are exercised in committee
and with less real scrutiny than you would get on the floor of
Q223 Mrs James: I would like to ask
some questions on Stage 3 of the process. This question is specifically
targeted to the Secretary of State. What further evidence of consensus
would be required to trigger a "stage 3" power referendum
in addition to a two-third's majority in favour in the National
Assembly for Wales? Why should the Secretary of State have the
power of veto over a decision by the National Assembly to hold
Mr Hain: I would not see the Secretary
of State role as having a power of veto. I think any sensible
secretary of state would wantand that is why this provision
is going into the Bill on my watch as Secretary of Stateto
be sure there was a consensus in Wales, reflected in as broad
a consensus in the Welsh Assembly as possible, hence the requirement
for a two-third's vote. Some people have interpreted this, as
it were, as a hostile act, a veto. I do not. As a passionate devolutionist
and a believer in primary powers in principle, I would want to
be clear that there was a majority for this. For example, let
us say in the current situation, in the balance of representation
in the Assembly, and the balance of power therefore, suppose that
the Opposition, almost gratuitously and for embarrassment purposes,
sprung by one voteas it is capable of doing under the current
arithmetica request for a referendum. That request in the
current party configuration would be without the support of Welsh
Labour. It is a leap of faith to imagine the Conservatives supporting
this, but they might want to support it to abolish the Assemblywho
Q224 David Davies: Do not worry on
Mr Hain: But you would need to
be sure that there was a broad consensus of at least the kind
that existed in the 1997 referendum. Even thenas many of
us around this table found to our cost, including you, Chairmanwhen
we thought we had cross-party support excluding the Conservatives,
it was a very narrow victory. When you call this referendum to
trigger the primary powers you have got to have reasonable confidence
that you are going to win it and, therefore, I would not see this
provision as being a veto in power, it would be a bit of a reality
check on being confident that the people of Wales will back you
in a vote. I think that a two-thirds majority gives you that kind
of confidence that is the case.
Q225 Mrs James: Leading on from that,
how do you think the Bill could make adequate and sensible provision
for a Stage 3 post-legislative referendum, which we know may not
happen for several years? What plans are you putting in place
for that process?
Mr Hain: The Bill will make provision
for an Order in Council mechanism to go before Parliament at the
request of the Assembly to trigger a referendum. That Order in
Council will determine the question to be framedthat is
not an issue addressed in the Billwhat the question is,
quite properly so, because that would have to await a further
decision at the appropriate time. It would make provision for
that mechanism to operate, and I think that is quite right. There
would also be provision for a period of consultation in line with
the White Paper following the request from the Welsh Assembly
Government and in turn following a vote in the Assembly for this
referendum to be triggered. There would be a period of consultation
by the Secretary of State just to assess the situation and then
the referendum decision for Parliament would follow.
Rhodri Morgan: A referendum is
not a public opinion poll. In other words you can have a public
opinion poll three times a year, you cannot possibly envisage
having three referendum a year on whether to have primary powers
and a different government would come in, then you would have
a referendum to take them away again, and then another referendum.
That is what we call an "neverendum" not a referendum!
You want there to be a consensus that the time has come and you
want broad agreement even to trigger the process: "Look,
time to make this a big shift". To put it to the people to
test it in the hope that unless something horrendous happens that
settles that issue for the next 50 years. You do not want this
to be treated in a public opinion poll sense, it is not taking
the temperature. Quebec has had this problem for years of every
couple of years they see whether they can get a referendum on
Quebec's independence through the year. If they cannot get it
through this year, they try it again next year. If they try it
again after the Canadian Government has put taxes up, then maybe
they will get it, but they do it all the time. We do not want
that. We want them to determine a big constitutional issue for
preference to settle matters for at least half a century until
an entire generation of politicians and voters have lived, died
and gone and different people are around in politics and at the
voting stage as well, not as a test of opinion just for this year.
Mr Hain: I very much endorse that
and I want to add one other brief point. If we lost a referendum
Q226 Mrs James: My next question.
Mr Hain:it would be disastrous
for the case for primary powers which is why I am being sensibly
cautious about this. We are imposing a constitutional reality
check so that those of us, who favour primary powers in line with
Welsh Labour's policies and other parties who have favoured primary
powers, are as confident as we can be in anticipation of the people's
verdict that there is wide support for it because if we lose it,
it would be off the agenda for a very long time.
Rhodri Morgan: A generation.
Q227 Mrs James: You touched on repeated
referenda; do you think the Bill may need provision in the event
of a no vote and a repeat referendum too soon, a set amount of
time or a limit to that?
Mr Hain: No, I do not think so.
That is a matter for politics. It would make provision for a referendum
to be triggered. According to the procedure two-thirds Assembly
votes, request to the Secretary of State, and the Secretary of
State passporting that request on to the floor of Parliament via
an Order in Council. If the result turns out "no', everybody
will have to take a deep breath and decide when they want to do
Q228 Mrs Moon: We have had a number
of concerns expressed to us about the extra size of the Assembly
and whether or not there will be enough Members with increased
legislative powers to perform effective scrutiny as well as government
ministers. It is a question, first of all, for the Secretary of
State: why was a decision not made to increase the number of Assembly
Members or, indeed, to give the Assembly powers at some point
in the future to decide on its own increase in numbers?
Rhodri Morgan: I think there is
zero public support for increasing the number of MPs, councillors,
MEPs, Assembly Members, any kind of elected politicians. Because
elected politicians are paid, the idea of having more politicians
is a very, very sensitive issue with the public so it would have
to be very clearly justified. My belief, very strongly, was that
by reorganising the work of the Assembly so that you did not spend
as much time on the minutiae of certain types of secondary legislation
such as the Sheep and Goat Identification Order (Wales) 2002,
the Llama Trekking Order 2003! They would have less time spent
on them and the bigger issue of possible Orders in Council would
have more time spent on them. You do not need more Assembly Members,
you simply need the existing number of Assembly Members dealing
with more important issues which they do not have the ability
to do now but they would have the ability to do under the provisions
of the White Paper.
Mr Hain: I would just add to that,
if I may, Chairmanvery much endorsing what Rhodri saidand
say that I did look at giving a power under the Bill to increase
the numbers of Assembly Members, but it is quite complex. Obviously
at the moment if there is a change in the number of Welsh MPs
there would be a read-across immediately under this Bill, as it
is under the Act, to the change in the number of Assembly Members
because that is the way the legislation is framed. But if you
provide for an ability, which is the only way you can sensibly
do it, to increase the number of list members, you change the
immediate political configurations and balance within the Assembly
between 20 list and 40 directly electedwhich in itself
is quite an important decisionbut you also change the party
balance, potentially. Even ifand initially I was inclined
to, as my officials will confirm, I will be absolutely frank,you
want to feel that you have this power and flexibility so you do
not have to come back with another bit of primary legislation
at some distant year in the future. If you do need to increase
the number for some reason, as the Richard Commission, indeed,
recommended, you get into this immediate problem and therefore
it becomes a wider issue than just more people in the Bill working
on it. It becomes a much wider political and constitutional matter.
Q229 David Davies: I was going to
ask a couple of questions anyway, and this will fit in. First
of all, I was pleased to hear you imply at least that you did
not want to see more Assembly Members, until you let slip that
your reason is it would change the political configuration in
a way that would not suit the Labour Party, which of course raises
all sorts of issues.
Mr Hain: No, not that.
Q230 David Davies: That was what
you were saying.
Mr Hain: No, you are putting words
into my mouth, if I may say so, David. I said that would be an
issue you cannot predict. Let me finish this point. It is very
important and this is an important constitutional point, it is
not a partisan point. Who knows how it will turn out in the future,
just because the current balance is more Labour first past the
post and more Opposition in the list? I am saying that a decision
to change the number has a much wider impact on the constitutional
balance, the constitutional balance between constituency members
and list members as well as potentially the political balance,
and therefore you cannot do that lightly.
Q231 David Davies: Indeed, and the
first part of that about the relationship between the constituency
and list members is a perfectly valid concern, but to take into
account the potential for causing the ruling party to change.
Mr Hain: I did not take that into
Q232 David Davies: Let me just finish,
if I may say so. It was clearly in the forefront of your thinking.
You raised the issue, you said it would have an impact on which
party was running the Assembly, that was what you said, or you
said words to that effect. That is not something which should
be a consideration when you, as Secretary of State for Wales,
consider changing a method of voting and a method of electioning.
It is not something that should be taken into account whatsoever
in my opinion. Anyway
Mr Hain: Not just "anyway",
if I may say so, Chairman.
Chairman: Order! Order! Mr Davies, could
you come to your question, please, briefly.
Q233 David Davies: Building on this,
we have heard a criticism that there are not enough Assembly Members
to man the committees, so if it is not your preferred solution
to create more Assembly Members, would you consider either increasing
the hours that are worked, or reducing the number of committees
or finding some other way of ensuring that adequate scrutiny takes
Mr Hain: This is a matter for
Rhodri. I am sorry, Chairman, I cannot allow this charge to be
made. If you make a decision on numbers, you have got to be aware
of the consequences of doing it. You cannot just treat it as a
question of arithmetic, that was the point I was making. Actually,
David, you could conceive of a situation of the next Assembly
elections if the results followed this year's Westminster elections,
where there are more Labour list members and there are fewer Labour
constituency members, and that would be the logical read-out.
A policy is not the party balance point. You cannot, as it were,
close your eyes on the arithmetical point without being aware
of the constitutional balance and potentially the political balance
however that went.
Q234 David Davies: Under a 40:40
split it is virtually impossible for Labour to have an overall
majority, even under the current electoral arrangements. It is
very difficult for any one party to get an overall majority because
the closer they get to it the more difficult it becomes to win
those extra list seats. If you have a 40:40 split I could virtually
stake my mortgage on the fact that no party
Mr Hain: Are you advocating more
Assembly Members then? Are you advocating 20 more Assembly Members?
Q235 David Davies: No, because I
say from a position of principle that even though it will probably
benefit my own political party I would not want to see any further
Mr Hain: So we are agreed?
David Davies: We are, yes. We have different
motives but we are fully agreed on that.
Chairman: Is there a question?
Q236 David Davies: Yes. Fewer committees
is something that I might suggest or longer working hours.
Rhodri Morgan: Work has to be
done and how we do it is a matter for the Assembly, to be honest.
Using the powers that are envisaged by the White Paper that will
appear in the Bill, the Bill becomes an Act, then the election
takes place and on the basis of those new powers the new Assembly,
as elected, will adapt to the potential that it has to use the
enhanced legislative powers. The exact question about hours and
numbers of committees I think is a matter to be left to the 2007
Q237 Nia Griffith: If we can return
to the role of Secretary of State. Obviously by creating an Executive
in the Wales Assembly Government in the way the White Paper proposes,
you are effectively saying that in respect of devolved issues
that it is the Executive which has the powers currently vested
in the Secretary of State. Therefore, I wonder, perhaps, if the
Secretary of State could look into explaining the new role of
the Secretary of State (a) in respect of devolved issues and (b)
non-devolved, and obviously then when they interlink which I know
you have touched on a bit already?
Mr Hain: In respect of devolved
matters, the responsibility would be much as it is at the present
time. This Bill does not change the fundamental devolution. It
does not envisage any additional functions. It does not propose
any additional functions to the Assembly covering a wider policy
area, for example. The non-reserved, that is to say Assembly powers,
and the reserved powers to Westminster remain the same. In that
sense, my function would remain the same at one level. I suppose
what the Secretary of State would have to be careful of is that
the Assembly, in making an Order in Council request, a request
for enhanced legislative competence order, would stay within its
functions and not encroach on reserved matters. Hence I gave the
example of a desire for social justice, an admirable policy if
it spilled over into tax and benefits policy, the Secretary of
State would need to spot that and resolve the matter. That is
no different from now. For example, when we were negotiating over
the powers for the Older People's Commissioner, the issue arose
there, much as it had under the Children's Commissioner, as to
what were the limits of the Assembly's powers in respect of perhaps,
say, a Welsh citizen in an old person's home just across the border
from Wales. You have that kind of role just to check that the
respect of interests is maintained.
Q238 Mark Williams: I think the First
Minister touched on this a few minute ago. Should the National
Assembly have the capacity to determine its own committee structure?
What role do you see for the regional committees in the future?
Rhodri Morgan: It does have the
power to determine its own committee structure, save for that
one point, as I recall, whereby it is obliged to have a regional
committee for North Wales and other regional committees, but they
are not specified. To be honest, I am unsighted and will have
to write to you, Chairman, to answer the other questions in terms
of the committee structure. As far as I am aware, there is no
other lack of power to change the committee structure, in terms
of a standing committee equivalent to consider the scrutiny of
proposed Orders in Council. It is very clear that there has to
be proper scrutiny in the Assembly of an Order in Council partly,
as in the answer to David Davies" question earlier, because
the political balance under the 40:20 first past the post list
system is so delicate. There is no way you are not going to get
committees vigorously scrutinising every single proposal that
comes forward from whoever has formed the Executive and bringing
forward Orders in Councils saying "We would like to do six
this year or whatever" and me saying "Well, there will
be six standing committees which will vigorously scrutinise all
of those". It is inconceivable there would be any other procedure.
Mr Hain: In general, in respect
of the committee structure the Bill is less prescriptive than
the existing legislation. For example, it does not specify that
the Assembly has to have subject committees. The only specification,
I think I am right in saying, Chairman, is that it needs to have
an audit committee, that would be in the Bill. Otherwise the Assembly
is free to establish regional committees if it wishes or not,
and establish what subject committees it wishes or other forms
Q239 Mark Williams: On the capacity
of those committees to demand government ministers and Assembly
ministers attendance, you would welcome that?
Rhodri Morgan: I think in the
light of the Secretary of State's answer, it is not prescribing
today as to whether you would have select committees and standing
committees or whether, because of the small numbers, you would
have merged select and standing committees. That is something
we have got to consider whoever is elected as members of the 2007
committee. Are they going to be committees primarily for the purpose
of looking at Orders in Council, in the way standing committees
do here, or are they primarily there to scrutinise other Executive
decisions or policies of the Executive or even to carry out studies
off their own bat, as select committees do here as well? Assembly
subject committees are much more similar to select committees
at the moment because there is not enough legislative material
for you to give them a kind of standing committee role, but there
will be after 2007. How the Assembly copes with that need for
more legislative scrutiny is a matter for the 2007 body elected.