Select Committee on Welsh Affairs Minutes of Evidence

Examination of Witnesses (Questions 220 - 239)



  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 it—or 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. Secondly—and this is a crucial point where I do not agree with Lord Richard—the 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 well—if "well" is the right word here—in 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 the House.

  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 a referendum?

  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 want—and that is why this provision is going into the Bill on my watch as Secretary of State—to 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 vote—as it is capable of doing under the current arithmetic—a 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 Assembly—who knows?

  Q224  David Davies: Do not worry on my account.

  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 then—as many of us around this table found to our cost, including you, Chairman—when 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 framed—that is not an issue addressed in the Bill—what 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 this again.

  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, Chairman—very much endorsing what Rhodri said—and 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 elected—which in itself is quite an important decision—but you also change the party balance, potentially. Even if—and 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 account.

  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 place?

  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 Assembly Members.

  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 Assembly.

  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 of committees.

  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.

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