House of COMMONS









Tuesday 25 October 2005



Evidence heard in Public Questions 64 - 144





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Oral Evidence

Taken before the Welsh Affairs Committee

on Tuesday 25 October 2005

Members present

Dr Hywel Francis, in the Chair

Mr Stephen Crabb

David T C Davies

Mrs Si‚n C James

Mr David Jones

Mr Martyn Jones

Mrs Madeline Moon

Hywel Williams

Mark Williams



Memorandum submitted by Lord Richard QC


Examination of Witness


Witness: Rt Hon Lord Richard QC, a Member of the House of Lords, Chair of the Richard Commission, examined.

Q64 Chairman: Good morning. This is the Welsh Affairs Committee and welcome to it. Lord Richard, could you formally introduce yourself to the Committee?

Lord Richard: My name is Ivor Richard. I was the Chairman of the Richard Commission on the powers and electoral system of the Assembly.

Q65 Chairman: Could I begin by asking you to explain briefly the remit of that Commission, the scope and the timeframe of that inquiry and the Report's key recommendations?

Lord Richard: We were set up by the Assembly, I think as a result of an agreement between the Labour Party and the Liberal Party in Wales that between the Assembly elections there should be a review of the powers of the Assembly, how it was working, the electoral system under which it was elected, and that is really what we were set up to do. Five members of the Commission came through the Nolan procedure where we had a set of hearings really. Three of us did the chief structural bridge, including a Professor from Cardiff University and myself. We got a vast number of applications, we whittled them down to a shortlist and picked (I was picked already) four, and then we had nominations from the major political parties in Wales, and that made up the whole of the Commission; we were ten in number. What was interesting was the extent and the amount of the evidence we actually took in public and in private. We held a number of evidence sessions in various parts of Wales. I think that one of the important aspects of the Richard Commission Report is that it actually pulls together the evidence which really had not been pulled together at all before. We did not have a Convention in Wales in the way they did in Scotland therefore it was terribly important, I thought, that somebody gather in the evidence, which we did. I think almost every organisation in Wales (the one notable exception being the WDA which for some reason, I am not quite sure why, declined to give evidence) submitted written evidence to us. I think we saw 115, if my memory serves me correctly. We had sessions at which we took evidence. I think it was 115 people who gave evidence in front of us, so we had a spread of views. Now, the way in which we approached this - and again I have to be frank about this - the idea that in advance somebody could have persuaded me that the Plaid and the Conservative Party would both sign a common document on the future evolution of the Assembly I would have found a little fanciful. In fact, we got a unanimous report, as you know. What was interesting about it, I think, was that although some of us, including myself, had started off very sceptical about the whole approach, thinking that perhaps we had not had enough time to settle down properly and really it was a bit early to be looking at this yet again, I am bound to say that as time went on and we took the evidence, the logic of the situation pushed us all in the one direction which was - and let me use a neutral phrase at this stage at least - the Assembly needed greater legislative competence than it had got at present. It also needed some changes to the Government of Wales Act to put it constitutionally on a more sensible basis than it was. We also felt - and this was quite strongly felt on the part of the Commission - that you could not run it with 60 Members if you (i) gave it greater legislative competence and (ii) if you had a clear division between the executive side of the Assembly and the legislative side of the Assembly, you would not have enough people to run the committees and therefore there would have to be an increase in the number of AMs. If there was going to be an increase in the number of AMs then you could not do it on the basis of the existing electoral system because the strains that already existed between the elected AMs and the list AMs were there - and we all reckoned that it would be intensified very considerably if in fact you merely doubled the number of list Members from 20 to 40. So we had a look at alternative electoral systems and we came up with STV after we had looked at just about every one we could think of. It is not wholly satisfactory and although it is pretty revolutionary in a sense as far as Wales is concerned, but the whole logic of the situation had been pushing us in that direction and that is really how we had approached it.

Q66 Chairman: Perhaps you have anticipated some of the questions but if I could finish the opening part in relation to your role. In your own personal response to the White Paper which we are discussing, Lord Richard, you gave it a B, verging on a B+, I gather. What more do you think that White Paper could have said and done to merit an A or an A-?

Lord Richard: Obviously if it had implemented the conclusions of the Richard Report I would have undoubtedly given it an A, verging on an A+, I should think!

Q67 Chairman: Now you are being fanciful!

Lord Richard: Yes. Can I just make two or three general points first on how I approached this White Paper. First of all, it is now trite to say that devolution is a process and not an act in itself, and that is clearly true. If that is so, then you have got to have some idea of what you have want at the end of the process. As far as I am concerned, I have a very simple view on this which is that seems to me that the Scottish pattern of devolution is one which, frankly, should be applied in Wales. For the life of me I do understand (well, I do understand actually) as to why we have got the system that we have got, but it does seem to me rather basic that a nation in the UK like Wales should, broadly speaking, have the same devolutionary powers as the Scots have got, and we do not have them. I think the third point I would make is if that is the end result that you want to see, which is in effect primary legislative powers in Cardiff, you have then got to go on and ask yourselves does this White Paper move in that general direction or does it not? And the answer is it does and although it does not go as quickly or as far as I would like at this stage, nevertheless, because of its move in that general direction, my view is that it should be modestly welcomed. I have got some major qualifications about it, particularly on the Orders in Council procedure where I think, frankly, first of all, the idea that that is going to get an easy ride going through Parliament in principle to start off with is doubtful. Certainly in my House the desire of the House of Lords is continually not to have Henry VIII powers. Henry VIII powers in relation to this White Paper apply not only to existing legislation but the idea behind it is that Henry VIII powers will be given to the Assembly in respect of future legislation which has not get been passed by this Parliament. I think that is going to take a bit of swallowing by the House of Lords so I think there are going to be problems getting it through. Secondly, on the Order in Council procedure nobody is absolutely certain how it is going to work. If what is proposed is that the Assembly will ask for powers to do X, Y or Z and the Government here say, "Fine, we agree," then they have got a purely presentational role in the sense that the Government's function here is really to present it to Parliament and expect Parliament then to pass the Order in Council. The extent to which consultation would take place before I do not know. One thing you know about Orders in Council is that they are not amendable, and so the scope for Westminster intervention in the procedure is going to be limited. Thirdly, we know that parliamentary procedure at the moment is that you have an hour and a half's debate in each House on the affirmative procedure, which again is broadly what is being proposed here, so in a sense it did strike me that the more one looked at it and scratched the surface and got underneath it, you are in fact using a device to give primary legislative powers to Cardiff but it is extraordinarily complicated and it is basically only a device. It does seem to me to my rather naive political mind if that is the object of the exercise why do it in such a complicated way when we could do it in a simple way?

Chairman: Could we pause at that point because you have given us a great deal of information and to an extent you have anticipated some of our questions. First of all, could I ask Mr Davies and then Mr Jones to put their questions.

Q68 David Davies: Lord Richard, you said earlier on that Wales should have the same settlement in terms of devolution as Scotland. Why have you come to that conclusion? Why should it not have the same as England, which is the largest constituent part of the United Kingdom? Obviously we are all agreed that the current constitutional settlement is illogical because it is giving one system of government to Scotland, another to Wales and something else to England, or rather nothing else to England. Why do you think you can iron out that inconsistency by giving yet more to Wales without addressing the problem in England?

Lord Richard: First of all, I have a rather basic problem which is that I was charged with looking at the position in Wales, and not to look at the position in England.

Q69 David Davies: You cannot separate the two.

Lord Richard: It is a serious point actually.

Q70 David Davies: I know.

Lord Richard: If I had been asked to look at the constitutional position of England within a federal structure obviously I would have done it and been delighted to do it. Why do I think you have got to treat Wales on the same basis as Scotland? First of all, because there is a deep sense of unfairness in Wales at the present situation. We held a number of meetings in different part of Wales. We held one in Newport. Were you there at the Newport one?

Q71 David Davies: Yes.

Lord Richard: I thought so. What was very interesting there is the Assembly came in for a lot of criticism and right at the end I said, "May I ask a question?" and everybody nodded and said, "Yes, of course" and I said, "How many here think that Wales should have the same powers as Scotland?" and two-thirds of the audience put their hands up. That was not confined to Newport. We found that really in all part of Wales that there was a feeling that somehow or other Wales had been not exactly cheated but done out of their rights because one constituent part of the UK, Scotland, had been treated in a different and more generous way than the Welsh. The other point I felt strongly then and still feel strongly now is that we are not a county council of England. Wales is, after all, a nation with a history and a language and a tradition, as the Scots have got a history, if not so much of a language, and a tradition, and if that can be recognised in one part of the United Kingdom why on earth can it not be recognised in another part of the United Kingdom? I expect the Irish would feel the same.

Chairman: If we could pause there.

Q72 David Davies: On the point about the meetings, I accept what you are saying as probably correct but what you may not be aware of is that most of the people who turned up at those meetings were all in favour of more powers to the Assembly. The great mass of people living in Wales who did not even bother to turn out and vote did not bother turning up at meetings about the Welsh Assembly.

Lord Richard: I am sorry, if I could answer that, all we could do is hold the meetings and advertise the meetings. If people turned up to them, that was splendid; if they did not turn up, that was up to them. Secondly, there is some polling evidence which is very interesting. As you know the Aberystwyth School has done a poll and I have seen it; 64% of the people who voted in Wales are in favour of greater powers to the Assembly. That is a body of evidence I think you ignore to your peril.

Q73 Mr David Jones: Lord Richard, as you may know, we took evidence last week from academics and I would like to return to your suggestion that the Scottish pattern of devolution should be applied in Wales. One of the impediments that the academics saw, and one that I see, is that we have the constitutional position of Wales and England being part of the same jurisdiction, having a unified legal system and a unified judiciary, which of course is not what prevails in Scotland. Is that not a major constitutional impediment to what you propose in terms of adopting the Scottish pattern?

Lord Richard: First of all, there are signs - and I put it no higher than that at the moment - that the Welsh judiciary is beginning to exert a degree of independence from the rest of the UK. There are now courts sitting in Cardiff - there is a commercial court sitting there, a court of appeal sitting in Cardiff, and there is a court of criminal appeal in Wales - and they are beginning to develop a corpus of specifically Welsh law which is going to, I think, in the future differ, and may differ radically, from England. Secondly, the fact that you have got common judicial systems does not seem to me to be a great impediment to legislative competence. After all, other parts of the world - take Germany for example - they have a common judicial system, they have virtually a common set of laws, but they have a much more federal system of government in which the lšnder have greater legislative competence and each of them has virtually the same legislative competence. While it is true that the affairs of Wales and England are more mingled, and the border is not so clearly defined between Wales and England as it is between Scotland and England, that is true, nevertheless the development of what has been called the Sewel procedure, which is an interesting device (and what happened here is in the House of Lords Lord Sewel, who was a junior minister at The Scottish Office when the Scottish Bill was going through, in an almost give-away line said, "Of course, if the Scottish Parliament were to request it, Westminster could legislate that England devolved it and grant their request. Nobody thought that this would happen very often and it is happening quite a great deal) now deals, in effect, with a large number of the border problems which we would have in Wales just as they have in Scotland. So I do not think that the absence of separate judicial systems is sufficient to justify the separation of the political systems. I do think that we have got more cement in a sense than the Scots do in that while they have got separate laws we have got a separate language.

Q74 Mrs James: To take you back to your written submission, Lord Richard, you state that it would be sensible to clarify the number of ministers and deputy ministers who can form the government, and to include this on the face of the Bill. Could you give us a little more detail on that please?

Lord Richard: It just seems to me that if you are going to talk about how big the Assembly is going to be, you have to have some idea how many ministers you want. I think the suggestion is there should be eight ministers and four deputies. 12 from 60 leaves you only 48, does it not? 48 to man the committees of the Assembly is going to be tight. I do not say they cannot do it but it will be distinctly tight. I do not think you could run an Assembly Government on less than 12 ministers and deputies because of the different portfolios that they have got. If they are going to look at specific issues like health and education and what have you, then you do have to have ministers in charge of it. I think the present system is very much a hangover from the existing structure in the Government of Wales Act, the corporate body idea which we did not approve of on my Commission and which the White Paper does not approve of.

Q75 Mark Williams: I think you have touched on this in that answer and in the earlier one. There is a growing consensus, I think, that ministers should no longer sit in the Assembly subject committees in order to ensure ministerial accountability. You agreed with that. One of the fundamentals behind that was that manning of committees would remain a problem. I think you have answered that in answer to Mrs James's question. Can I ask why have you settled on the suggestion of 80 Members? Is that sufficient to alleviate the scrutinising role that we envisage for these committees?

Lord Richard: We did a bit of rather basic and imprecise arithmetic and came to the conclusion that you needed more AMs. We could have said 75 or we could have said 85. Frankly, it was a compromise figure. We did not want to be too ambitious but we did not, on the other hand, want to leave the Assembly with insufficient backbenchers. That is the problem. If you are going to have an Assembly doing a proper scrutiny role you have got to have people who are prepared to do it. At the moment they are sitting on two or three, and some are even sitting on four committees. It is too much, they cannot do it. If you go and look at the committees operating with ministers sitting there as members of the committee, the relationship is much too cosy. The chairman and the committee and the minister, so to speak, are getting along well and therefore the amount of scrutiny is pretty small and pretty limited. Certainly that was the case in the committees I have looked in on and that was the general feeling of other members of the Commission that went down and looked at it.

Q76 David Davies: I think, Lord Richard, that last point is very accurate actually, from my own experience. If you increase the numbers and you increase the powers, as you have a bi-cameral system in Parliament, and if you are going to have full legislative powers or something approaching that in Wales, as you do in Scotland, would you not also need some sort of scrutinising body, a panel of wise men and women, or some equivalent to the House of Lords to look at what they are doing as well? What do you think of that?

Lord Richard: I have been trying to reform the House of Lords for the last decade! It is a morass I do not think I would visit upon Wales at this stage. Yes, one of the functions of the second chamber is that it can do precisely what it is you want it to do. How you get that second chamber and whether it is appropriate for an Assembly with three million people as opposed to one with 50 or 60, I do not know. It is interesting that New Zealand, for example, had a second chamber and it has got about three million people and they abolished it. Whether they are right or wrong no doubt will be seen. Certainly I do not think it is a prerequisite for the Assembly to get greater powers that you should have a second chamber.

Q77 Mrs Moon: In your inquiry did you look at any other legislative bodies around the world to reach this conclusion about having an upper house? You have mentioned New Zealand and I am just wondering if you looked anywhere else?

Lord Richard: No, we did not do a detailed comparison of other countries. Some of my colleagues went to Northern Ireland and had a look at that system, which again is different from the Welsh and Scottish systems - that is when the Northern Ireland Assembly is sitting - and their powers are again different. I have to say that from my point of view it seems much more sensible that if you are going to have devolution to the different parts of the United Kingdom, on the whole it should be the same sort of devolution. To have three or four different types is bound to cause confusion and has caused confusion. However, did we spend a lot of time looking at other countries? No, not a great deal. I think we all had a bit of basic knowledge about the German system, we knew a bit about Australia and a bit about New Zealand, but we did not set out to have a full international comparison.

Q78 Hywel Williams: I would like to take you back to the question of Orders in Council. We did have some officials here last week from the Welsh Office and also some academics and we asked them about this. I have to confess I am not a great deal wiser, to be honest, but perhaps that is a deficiency on my part. You have concerns about Orders in Council in your submission and you note the lack of clarity about Orders in Council, how they could be managed and effected. Would you like to tell us more of your concerns and what is problematic? You may have already have touched on this earlier.

Lord Richard: Sorry, I did not catch the end of that.

Q79 Hywel Williams: You have already touched on this earlier but perhaps you could expand on your earlier answer.

Lord Richard: I think we are in uncharted waters, frankly. I do not think anybody has yet envisaged the idea until this White Paper of using an Order in Council procedure in effect to grant legislative competence to a devolved Assembly because devolved Assemblies did not exist. You would not do it to county councils and they never did do it, as I recall, to council councils in this way. Let's be frank about it, it is a device to avoid having to come to Westminster and ask for primary powers to be formally devolved. It is quite an interesting device. It is quite a good device in that sense because what you end up with is a situation in which Cardiff ends up with greater powers, Westminster can say they have not devolved primary legislative powers, but depending on the way in which the Order in Council procedure is used, it could in effect be a concealed grant of almost a direct legislative competence down to Cardiff. All I am saying is that we do not know how it would be done, and we do not know who would be responsible for introducing it. We do not know whether there would be one Order in Council, for example, per year which would set out the Assembly's wish-list, or whether there would have to be an Order in Council in respect of each individual piece of competence that the Assembly wanted. I do not know. Nor am I quite so sure, frankly, the idea that you could have pre-Order in Council scrutiny, how that can work until you have got an Order in Council which you can scrutinise. Secondly, you cannot amend it and therefore it is a "take it or leave it" thing which even on the affirmative procedure is subject only to rudimentary parliamentary scrutiny up here. And finally you have got the Henry VIII point. I am not a purist about Henry VIII provisions but it does seem to me basic that on the whole an Act of Parliament ought to be amended by an Act of Parliament. Although there may be reasons why you give it to ministers, I still do not see the purpose of doing it via this rather tortuous route of Orders in Council when if you give them the legislative competence you do it in a more open and obvious fashion.

Q80 Hywel Williams: Can I take you on to the Secretary of State's function in this. In your paper you say that the Secretary of State's power to reject a request from the Assembly is somewhat paternalistic. How do you propose that the procedure should be best managed as far as the Secretary of State is concerned? Should there be just the Commons and Lords rather than secretaries of state, Commons and Lords?

Lord Richard: I do not know how you would manage it. With respect, you cannot ask me to say how you ought to manage it because I would not have gone down this route anyway! All I can do is look at what he said in his White Paper and ask the questions, and I do not know how he is going to do it. Lurking at the back of everybody's mind, certainly at the back of my mind is what was called in the Commission, somewhat irreverently, the "Redwood factor". If you had a Secretary of State in London who was against the whole concept of devolution and did not want any powers to go down to Cardiff and had the Assembly screaming for greater legislative competence in a particular area, then the Secretary of State in London would be in a position to stop it. Quite apart from the fact that is a somewhat paternalistic view, it does seem to me that it is wrong. If you have got an Assembly elected in Cardiff to do certain things then, prima facie at any rate, the legislature in London should be enabling them to do it, not putting up barriers in their way. If it is an enabling function that the Secretary of State has up here, again I come back to the point I made earlier, why go this route? However, I do not know how it is going to work out because nobody knows how it is going to work out.

Q81 Mrs Moon: You have touched a little bit on what I wanted to ask you about which was your comment about the unacceptable strains that could develop if you had a different government in Westminster to that in Wales. I wondered could you be a bit more detailed and specific about what you see some of those strains being and what you feel could be done to alleviate them? I appreciate I am asking you to project into the future, but it would be helpful if from your experience you could outline what you see as the particular problems.

Lord Richard: There are two areas actually. One is that the sort of fears that I am expressing are illusory and the alternative is that you do not need to worry about it because the system is now so bedded in that it would be very difficult for any Secretary of State or any government up here to reverse the process. I am not as optimistic as that. It does seem to me that if you had an administration up here of a different political complexity to Cardiff then, to put it at its lowest, the Westminster administration could act as a brake upon the Assemblies doing what it is they want to do. Take smoking, which is a very good example actually, the Assembly want to ban smoking in public places in Wales; they cannot. Scotland just did it and the Secretary of State for Wales actually did it in Northern Ireland in his other capacity. It seems to me that is a bit crazy that you have got a situation in which the Assembly wants to do something, everybody knows they want to do something, everybody agrees that it should be able to do something in Wales, but it cannot and in order to get it done they have to depend upon, in effect, the goodwill of the Westminster Parliament, and Westminster inevitably will look at it on an England and Wales basis not just on a Wales basis. I think the danger is the brake point, that it could act as a brake upon the legitimate aspirations of a properly elected Assembly in Wales. I do think that if you start down this devolution route you have got to recognise the fact that as a nation Wales has got certain rights. If you want to treat it as if it were a glorified county council, okay, that is another matter, you treat it like a glorified county council. If you want to treat it as a nation you have to treat it as a nation and if you treat it as a nation it has certain rights, and one of those rights seems to be basic, that on the whole it ought to be able to pass the legislation that it thinks right.

Q82 David Davies: Lord Richard, you talk about an administration, presumably you mean in London, acting as a brake on the Welsh Assembly. Is it not the case, though, that at the moment Welsh Members of Parliament can act as a brake potentially on an administration which has a different view. You talk about rights but you do not mention the responsibilities. Surely the point here is if Wales is to be given the power to go off and do its own thing, then it cannot be right that Welsh Members of Parliament can go along to Westminster and vote on matters that affect only England - because at the moment that is what is happening and they are the ones who are potentially putting the brake on English aspirations?

Lord Richard: I am not going to deal with the West London question any more than I can deal with the West Lothian question.

Q83 David Davies: It is intrinsically a part of this, is it not?

Lord Richard: It is an issue that at some stage will no doubt have to be resolved by discussion between the constituent parts of the United Kingdom. That is the point. At the moment if you talk to Welsh MPs (and I expect this is true sitting around this table here) you would take the view in relation to Welsh affairs you play a valuable role at Westminster in helping to govern Wales properly. You obviously take the view that in relation to English matters you play a responsible part in helping to govern England.

Q84 David Davies: These are not English matters per se, are they, they are Welsh matters because it is Welsh MPs who are going over to England. The problem is whenever the West Lothian question is put to you, you say, "I am only interested in Wales." I am putting to you that Welsh MPs can act as a brake on England and you are saying that is nothing to do with me, however you are highlighting the fact that a potentially different administration could act as a brake on Wales. Surely you cannot separate the two issues; they are one and the same issue?

Lord Richard: Except there is this distinction, is there not: I am talking about an administration in Westminster; you are talking about Members of Parliament in Westminster. I am saying if you have got a government in Westminster that can be a pretty effective brake. If you have got a group of MPs in Westminster, I do not think that has the effect of a brake because there is no secretary of state and administration here saying no to the administration in Cardiff. That is a slightly constitutional-type answer to a question. At the moment I am bound to say I think your question is unanswerable. I have always taken that view over the West Lothian question and I think it applies just as much to Wales as it does to Scotland.

Q85 Mr Crabb: Given what you said earlier about your view on the state of public opinion in Wales with regard to devolution, would you therefore disagree with the Government who said that they do not believe there is a consensus within Wales about giving full legislative powers to the Assembly?

Lord Richard: That is an interesting question. I would like to see more evidence but I do not accept the fact that there is none. In other words, it does seem to me that there is some evidence which shows that the people of Wales would like greater legislative competence. Whether that is sufficient at this stage to fight a referendum campaign I am not entirely convinced but I do think the evidence is capable of being gathered.

Q86 Mr Crabb: How do you view that stream of public opinion in Wales, and it is a significant stream, that would either keep the status quo as regards the Assembly or even favour abolition? In your enquiries did you just ignore that stream of opinion?

Lord Richard: We did not ignore it. We looked very hard to find people who wanted to abolish the Assembly and go back to the old status. There were some but there were not very many. Most people in Wales now accept devolution and the Assembly as part of the fabric of the way in which Wales is run.

Q87 Mr Crabb: Maybe we are peculiar in Pembrokeshire but there is a significant strain of opinion ---

Lord Richard: Well, it did not surface in Haverfordwest and we had a good meeting in Haverfordwest.

Q88 Mr Crabb: At what point do you feel it would be useful to test public opinion in Wales with a referendum?

Lord Richard: When the Government has decided what they want to do in Wales. If the Government decide that they are going to grant legislative powers to Wales, there ought to be a referendum, but I do not think you could have a referendum on a referendum. I do not think you could go and ask the people of Wales, "Do you want a referendum on primary powers?" I do think there is evidence that can be gathered which would indicate what the state of opinion in Wales was and at the moment the latest poll I have seen is the one which Aberystwyth did which was 64%. I would like to see a more recent one.

Q89 David Davies: Lord Richard, what aspect of these proposals to enhance the Assembly legislative powers, if any, would be most contentious in the House of Lords?

Lord Richard: On the White Paper questions?

Q90 David Davies: Yes?

Lord Richard: I think the Order in Council procedure. Their Lordships will not like that. They will find it odd. First of all, they do not like being disturbed too much and this I think will disturb them quite a lot and, secondly, they really have a feeling, particularly with the Delegated Powers Scrutiny Committee, which is a powerful committee in the House of Lords, that Henry VIII powers on the whole are not acceptable, that you can perhaps use them in exceptional circumstances but to found a constitutional settlement on that basis, I think their Lordship will have problems with that. The other thing one must say about the White Paper proposals is if you see them as a transition then you can approach them in one light, which is the light that on the whole I think I have. If you see them as an end in themselves you approach them I suppose with a much more critical view and you ask yourself, "Is this going to be the final constitutional settlement?" Does that make sense?

Q91 David Davies: Yes, it does. Have you had any indication whether the changes to the voting system, which we are probably going to ask you about in a minute, are going to be contentious in the House of Lords?

Lord Richard: Yes I think it probably will be.

Q92 David Davies: I do not know whether the Chairman wishes to come in.

Lord Richard: Not violently I would have thought because it says the second stage in the process.

Q93 David Davies: That begs the question is it not the case that it is going to be contentious because it is such an illogical thing to do?

Lord Richard: Illogical?

Q94 David Davies: I think so, to change the voting system. You were making the case earlier on that we need a bit of consistency in the devolution system, and we need the same powers in Wales as we have in Scotland (although not in England of course), but surely what we are now doing is to change the voting system once again and it is a system that the public currently do not understand that well. They are going to understand it even less well and it is going to be a completely different system to the one that is being used in Scotland or in Northern Ireland or of course in England. I will tell you straight, I think the only reason it is being done is because the current voting system favours parties other than the Labour Party and the only reason it is being changed is that it will cause a certain amount of inconvenience to the minority parties particularly the Conservative Party.

Lord Richard: Let's be clear what you are asking about. Are you asking me how did we come to the conclusion on STV, do I think that is going to be contentious, or are you asking me about the abolition of the right to stand?

Q95 David Davies: The abolition of the right stand on both. The STV effectively is not going to go through the House of Lords, is it, because it has not been accepted?

Lord Richard: Let me go back a bit. The basis of our argument on the electoral system was the size of the Assembly. In other words, we said - and I have said it quite often since - that if the Assembly can run itself on 60 then problems with the electoral system tend to be withdrawn, tend to be slightly subsumed. If, on the other hand, you have got to put the number of AMs up because you cannot run the Assembly on 60, given that 12 are ministers and therefore you have not got enough people to do the job, if it goes up to 80 people, how are you going to elect the 80. Your arithmetic then does not work if you want to keep the existing constituency boundaries.

Q96 David Davies: But it is not at present going to go up to 80, is it? The only change that we are going to see in the electoral system is the change to prevent people from standing both for the lists and for the constituencies.

Lord Richard: I will not avoid that, I promise you, but I thought you wanted me to justify the STV thing first.

Q97 David Davies: I think that is a very interesting point and I would love to have that debate with you some time but that was the not question, the question was more about the changes that are being proposed. Perhaps you could tell us what your view is on the changes being proposed. Do you think it is constitutionally right, given your view that we should have more consistency, that we are going to make these systems more inconsistent?

Lord Richard: There is something wrong in a situation in which five people can stand in Clwyd, none of them can be elected, and then they all get into the Assembly. On the face of it that does not make sense. I think a lot of people in Wales find that it does not.

Q98 David Davies: That is a good argument for first past the post rather than STV.

Lord Richard: First past the post is what?

Q99 David Davies: I said that is a good argument for the first past the post system rather than the STV one which you actually propose in your report?

Lord Richard: Not if you are going up to 80, it is not.

Chairman: Could we pause a moment there and ask Hywel Williams to come in.

Q100 Hywel Williams: As you said earlier, stage three full powers is the end point and if stage two is so complicated and difficult, for me at least to understand, what possibly could be the argument in favour of having a stage two at all?

Lord Richard: I think you must ask the Secretary of State that. I suspect one of the arguments is sitting in this room actually. It avoids difficulties over the number of Welsh MPs, over the size of constituencies in Wales, it avoids all those difficulties, but it is actually an interesting and complicated device. I am not against devices if they work, but I am against devices if they look as if they are going to be difficult to run and if the end result is as yet unclear, and it is to me.

Q101 Hywel Williams: I think I have concerns about the understandability of it all for the public in Wales and therefore the difficulty of recruiting them as supporters eventually, from my stand point in particular.

Lord Richard: I think there is something in that. One of the objects of my report was to try to simplify matters, not to complicate them. That was why we were very much in favour of severing the Assembly Government away from the rest of it, in other words moving away from this concept of the Assembly being a corporate body because people did not understand what that meant. As you know, there was confusion as to whether the Assembly was doing it or whether the Assembly Government was doing it. I think to move into a situation in which, if it is being done by Orders in Council, people will not be sure (i) whether the Assembly have asked for power and (ii) whether the refusal of power is because they have not got through to Westminster or for some other reason, and (iii) whether what is being operated is basically a Westminster power in Wales or a Welsh power in Wales. I think that is going to be a source of some confusion. I do not think it is insuperable but it is an additional hurdle.

Q102 Mark Williams: Can we turn to the electoral system and STV. You have explained the logic which led you to reach the conclusion of STV. Why would you have ruled out an extension, if you like, of the additional Members system?

Lord Richard: It is very difficult to do, 40 list and 40 constituencies. The existing strains that there are with 40/20 we have heard about and to double the number of list Members, which is what you would do, you increase those strains.

Q103 Mark Williams: Did you look in terms of the boundaries that would operate of the regions within the STV? We heard from some of the academics last week that it was time to update the boundaries under which the system is undertaken, given that we are working on boundaries that were European election boundaries some years ago?

Lord Richard: Yes, we looked at that.

Q104 Mark Williams: What did you find?

Lord Richard: Can I make the point again that I have just been making because if you can run it on 60, you do not need to do anything with the electoral system; if you cannot run it on 60 and it goes up to 80, you do need to do something with the electoral system. You have then got to decide what it is you want to do with it. You cannot have first past the post clearly. You cannot have a list which is equal to the number of the constituencies, so you have got to have another one. We looked at the different types of electoral systems that were on offer.

I have to tell you I am not an expert on the details of proportional representation systems so you must forgive me if you are. It did seem to us that the most logical one was STV.

Q105 Mark Williams: What consideration did you give to replacing the system with a single national list?

Lord Richard: We looked at that. The problem with the single national list is that you do not have any relationship then between the individual and a recognised geographical entity. We did think that it was important to try and preserve as much of a geographical link as you reasonably could. So how do you do it? I suppose in theory you could double up on everything but I do not think that is particularly fair politically nor would it be particularly efficient. The other thing you can do is that you can enlarge the number of constituencies but have more Members per constituency. If you do that, what new constituency boundaries do you have? You cannot just double up on the parliamentary ones. On the other hand, if you take the European ones, then you can probably have a sufficient number in each of those constituencies to make STV reasonably workable, because we did hear quite strong evidence that you have got to have about four or five Members as a minimum for STV to work properly and then is STV too complicated? There are certain parts of Western Europe however where it has not proved too complicated. The Irish seem to get along well with STV. It takes a bit longer to announce the results of their elections but people seem to be able to grade them in the order in which they wish them to be graded, first, second, third and fourth, so we came to the conclusion that although STV is a considerable mouthful to gulp down to start off with (and I understand the politics of this) nevertheless, once you have actually got the meal down, on the whole, it might be fairly palatable. At least, it would not prove unpalatable, let's put it that way.

Q106 Mr David Jones: Continuing with this discussion, last week, as I said earlier, we had evidence from a panel of academics who told us that the White Paper's proposals for reform of the electoral system, particularly with regard to list Members, look deeply partisan (whether or not that was the intention behind it) and this may have a negative impact upon public confidence in the system. In fact, one of the academics said words to the effect of - and I paraphrase - if there is one thing that the public dislike almost as much as a bent copper or a paedophile living down the street, it is a politician who seems to be stitching up the electoral system to his own advantage. What are your views on that?

Lord Richard: I certainly agree with every syllable of that remark.

Q107 Mr David Jones: Is that the way it looks to you?

Lord Richard: No, I do not think it does. Do you mean the abolition of the right to stand on the list and the right to stand in the constituency?

Q108 Mr David Jones: The motives behind the proposals?

Lord Richard: I do not know what the motives are because I am not in the government, but I think there is a basic logic in asking people to choose where they want to stand and how they want to stand. If you just let people double up you get this absurd situation, as I said before, of people being rejected by the electorate but nevertheless ending up sitting in the Assembly. If at the beginning of the process they say, "We are not going to stand for the constituency, we are going to stand for the list," okay, I accept that.

Q109 Mr David Jones: You mentioned earlier the Clwyd West result. Was not the Clwyd West result always foreseeable having regard to the form of devolution settlement that we had?

Lord Richard: The electoral system as then present?

Q110 Mr David Jones: Yes?

Lord Richard: Yes, it probably was. I do not know the details of Clwyd West but, yes, I think it probably was.

Q111 Mrs Moon: Sorry to interrupt you. An interesting comment about stitching up the electoral system. I think part of the problem that we have at the moment is that the regional AMs refer to themselves - and it is a linguistic issue - as the Member for a constituency rather than a Member for a constituency. I do think that that is part of the problem that we have and certainly one that the public finds difficult when they have people representing themselves as the Member when in fact they are a Member. I just wondered what your comments on that would be?

Lord Richard: I can see that it could be a problem. I have to tell you when we probed a bit talking to AMs about this particular issue and we did not find that the AMs themselves were particularly worried by this. We found Members of Parliament rather more worried than AMs seemed to be. Everybody said if you are an AM you are an AM and therefore you should be treated in exactly the same way, and the jurisdictional fights, if I can put it that way, between the individuals did not seem to be all that great. That was certainly my impression. I may be wrong about that but, on the other hand, it is a relationship - this comes back to a point I was making earlier about the strains - it has a relationship which has strains built into it and it does require a certain amount - a considerable amount - of tact, to put it politely, on both sides for the thing to work properly. In most cases I think it probably has; in some cases it has not.

Q112 Mrs Moon: Finally, you said the Government's proposals are over-complicated. I think you have said that several times today and we are quite clear that you are not happy with that. You have outlined some of your preferences but just as your final submission could you tell us what you feel would be the simple and effective means, very briefly, for giving that?

Lord Richard: Along the lines of something similar the Scottish settlement, that everything is devolved except that which is reserved, and where Cardiff would have a power to pass legislation in the way the Scottish Parliament does. For the life of me, doing the best I can with the argument, I do not see the argument against that. It seems to me basic, quite honestly, that if you are going to have a devolved Assembly then it ought to have powers. At the moment it does not have powers to do what it wants to do and it ought to have the powers to do what it wants to do, broadly speaking, within sensible limits and all the rest of it. To leave it in semi limbo, in which it is, dependent upon whether or not it can get time at Westminster to get the bills in the legislative programme there is a good example of what is wrong. When it comes to competition for parliamentary time at the moment, what happens? It is treated in exactly same way as any other government department so it has got to compete against the Home Office, the Department of Health, the Department of Trade and Industry, and all the rest of it, for legislative time to introduce a measure. First of all, it should not be treated as if it were a government department because it is rather more than a government department or a county council. It is basically a nation, one of the nations of the United Kingdom, so it deserves to be treated differently from that point of view. Secondly, so long as legislation remains confined to Westminster, you are bound to have these strains on parliamentary time. Having sat on these committees at one stage to decide what bills go in and what bills do not go in, the horse-trading is extraordinary. It is inevitable, but I do think that Wales is a bit different and deserves to be treated a bit differently than an ordinary horse coat.

Chairman: Lord Richard, thank you very much for your evidence.

Memorandum submitted by the Electoral Commission

Examination of Witnesses


Witnesses: Mr Glyn Mathias, Electoral Commissioner for Wales, and Ms Kay Jenkins, Head of Office, Wales, the Electoral Commission, examined.

Q113 Chairman: Good morning and welcome to the Welsh Affairs Committee. Could you begin by introducing yourselves please?

Mr Mathias: My name is Glyn Mathias, and I am Electoral Commissioner for Wales.

Ms Jenkins: I am Kay Jenkins, Head of the Wales Office in the Electoral Commission.

Q114 Chairman: Could we begin by examining the role of the Electoral Commission. Could you tell us whether the Government has a statutory duty to consult with you with regard to the proposed changes to the electoral system?

Mr Mathias: No, there is no statutory obligation on the part of the Government to consult us. The powers which are given to us under Section 6 of the Political Parties, Elections and Referendums Act do give us the power to comment on electoral issues where we think it is appropriate. Perhaps it is useful to describe our role in the electoral process in Wales. We did produce a statutory report on the December 2003 Assembly elections which included widespread research into public attitudes, which is particularly relevant to this discussion. In addition, the Welsh Assembly Government asked us to report on the combined elections of 2004, and one of the recommendations we have made and is now being implemented is the establishment of an Elections Planning group to co-ordinate the planning of elections across Wales, in which we are actively involved and my colleague Kay is represented on that group. So we are actively involved on a continuous basis in the electoral process in Wales. That is perhaps more relevant than the statutory basis which you are asking about in commenting on this particular situation.

Q115 Chairman: Can I thank you for the evidence that you have provided us with. In particular in paragraph 16 you stated: "Our priority is that electoral arrangements should create the best possible conditions for political parties and candidates to engage with the electorate." Based on this point of your criteria is there a case for reform to the electoral arrangements for elections to the National Assembly for Wales?

Mr Mathias: We have looked at the particular proposal in the White Paper for a ban on dual candidacy really from the point of view of the voter and public confidence in the electoral process. I entirely understand the tensions that exist between list Members and constituency Members of the Assembly and I entirely understand that Clwyd West is not perhaps the best example of how the AMS system works. However, there is a serious danger that an attempt to resolve one particular anomaly or injustice will actually serve to create other anomalies and injustices and that is the basis really of the conclusion we have come to. There are about 30 other countries around the world which have additional Member systems as their electoral system. No other country currently bans dual candidacy on the lines of the proposal in the White Paper. We therefore feel that reasons for going down this road have to be more compelling than if there were those other examples. If you are going to operate outside international democratic norms then you have to have particularly compelling reasons to do so. We carried out extensive public research, as I described, for our statutory report for the 2003 elections. This issue did not figure in that research. We asked a whole series of questions and sought unprompted replies and this issue did not arise. I think also, as you heard partly in the last discussion, that the ban is perceived widely as disadvantage to opposition parties in its effect if not its intention. It is likely to favour incumbents in constituencies because opposition parties basically have to choose where to put some of their best candidates, whether in constituencies or on the list, and therefore they may have to put weaker candidates in constituencies and that is likely to favour incumbents. It is perceived, rightly or wrongly across the political spectrum, as partisan and there is a danger that if it is perceived as partisan it might undermine public confidence in the process. Above all, what concerns us is that there is no evidence whatever in the White Paper to back up this proposal. There is no evidence at all to back up this proposal and therefore we came to the conclusion that we do not think the case for change has been made.

Chairman: Stephen Crabb?

Mr Crabb: I think Mr Mathias has just covered the question I was going to ask, thank you.

David Davies: Yes, I was going to ask you about the advantages and disadvantages but you seem to have outlined them very well. I can only echo what you say that it is seen as partisan. Certainly as somebody who is stepping down from the Welsh Assembly (and therefore I have no further interest in it personally) I think it is completely partisan and I think it is an absolute disgrace, and many other people feel the same way, and that it is being done purely for political reasons.

Chairman: Is that a question?

Q116 David Davies: What do you think, Glyn?

Mr Mathias: That is clearly not a comment I am going to make. I am sure the intentions are to resolve a particular problem. What we are pointing out is if you think it through as to what the net effects will be, other anomalies in the system will be created. If you look at Scotland in comparison with Wales and the Scottish Parliament in comparison with the Welsh Assembly, to take this particular example, in Scotland there are four Labour Assembly Members who are list Members including one of them a Minister in the Scottish Executive. This particular proposal for a ban on dual candidacy has therefore probably not arisen in Scotland. It has arisen in Wales partly because the divide between the constituency Members and the list Members runs straight along party lines. All Labour Members are constituency Members and the list Members are other political parties. It is that party political divide between constituency Members and list Members which has exacerbated the problem in Wales. It does not mean the additional Member system is inherently defective.

Q117 Mrs James: I wanted to take you back to your comment about extensive public research. Could you give us some background on that, the demographic breakdown, who undertook it for you?

Ms Jenkins: Yes, I can fill you in on that. We have conducted quite a lot of research across Wales. Before the National Assembly election in late 2002/early 2003 we published Wales Votes, which was looking at the likelihood of people voting at the Assembly election and probing voter attitudes towards the National Assembly, and that was based on focus groups conducted across Wales and, in fact, one of those was in the Clwyd West constituency. What we found from that research was the most compelling issue emerging was the public information deficit about public understanding about what the Assembly's powers and responsibilities were. Immediately following the election we conducted public opinion research, a sample of thousand adults across Wales which is the recognised statistically valid sample. We had another series of focus groups across Wales probing voter attitudes to try and get under the skin of what people felt about voting. As Glyn mentioned earlier, we had unprompted questions during that research so that if we were not asking the right question about what made people vote or not vote they had the opportunity to raise issues, so if dual candidacy was an issue for voters it could have emerged during any of that research. In addition to that, we had constituency observations in about ten constituencies at the National Assembly elections where we had commissioners and our own staff on the ground in constituencies talking to party activists, voters and so on. Again, we actually had somebody in Clwyd West by coincidence and it was not something that came up there. We had a post election seminar where we had people from across the political spectrum. Anybody who has anything to do with elections in Wales was at that seminar - political commentators, media, academics and so on. It was not an issue that emerged around election time at all. We also have a huge amount of public correspondence and public inquiries with our office. As you can imagine, people write to us on any electoral subject they care to raise, and it is not something that has emerged during that research. Again, we reported on the 2004 elections in Wales, the local elections and European Parliament election. We have had audits of political engagement across Great Britain in between elections, where again we probe voter attitudes. So we have got a very extensive body of research on what makes people vote and not vote across Britain and particularly specifically in Wales, and it is on that basis that we say it is not an issue we could say that has ever been raised with us or that voters are clamouring to have resolved.

Q118 Mrs James: I have never met anybody who has taken part in this research. Certainly there has not been huge interest in coming to ask the people of Swansea East. I am really concerned that you are getting to a variety of places.

Ms Jenkins: Absolutely.

Q119 Mrs James: I have been involved in focus research and believe you me the same people pop up every time.

Ms Jenkins: Definitely because we make sure that we have our focus groups in a spread across Wales to reflect the geographical and political spectrum and also each time we have had focus groups we have had them in different places.

Q120 Mrs James: Do you pay people for attending focus groups?

Ms Jenkins: No, we do not. Our focus groups are done following a competitive tendering exercise. We use MORI or NAP or those types of people and the volunteers do not know they are coming to a focus group with the Electoral Commission. They know it is going to be a focus group about elections and they are not paid.

Q121 Mr Martyn Jones: Did the Commission's research not pick up any indication of voter confusion about what additional Members are?

Ms Jenkins: It certainly picked up voter confusion about the electoral system, that is undoubtedly the case.

Q122 Mr Martyn Jones: I thought it might be.

Ms Jenkins: People do not understand the electoral system and how people are elected. As you know, many people working in elections do not understand it either. There is undoubtedly a level of voter confusion about the electoral system, but that does not impact on whether or not they vote, interestingly. The issue is getting people into the polling station. Once they are in the polling station they will vote whether or not they understand the electoral process.

Q123 Mr Martyn Jones: That I am sure is correct but in this modified de Hondt system that we have in Wales there is an additional vote. Did any confusion come out about what the additional vote was for? Did they think they might have to vote for some other party? Did that not come out?

Mr Mathias: I think it is true to say that the research revealed an element of ignorance that there were going to be two votes and indeed what they were supposed to do with the second vote, that is certainly the case. We were also asked specifically by the First Minister Rhodri Morgan to look at the issue of changing to one vote rather than two because people were so confused about it, if you like, and that was the rationale for us to look at it, that there was an element of confusion in the public mind. Indeed, if you went to one vote rather than two you would remove that element of confusion. On the other hand, the disadvantage would be that there was already a second vote, and a percentage of voters (we do not know how many) take advantage of that second vote and use the second vote tactically or consciously to vote for the same party or a different party, and to take it away from them would be depriving them of that vote which they have already got. Also it is arguable that one vote rather than two would further disadvantage minor parties and independent candidates, which is certainly a consideration to bear in mind. However, the arguments for and against one vote rather than two are less clear-cut, I think, in our minds anyway, than the other issue.

Q124 Mr Crabb: Just so I am clear, are you saying therefore that the proposed changes in the White Paper, particularly relating to electoral arrangements, could lead to voter turnout falling below the 38% which we saw in 2003?

Mr Mathias: What we are saying is currently, as you have heard, there is a degree of ignorance and lack of awareness about the voting process, which is probably why this particular issue amongst others has not come to the fore in the public consciousness. If however there is a great political battle about this particular proposal and it does come to the fore in the public mind then I think it could serve to undermine public confidence and could serve to foster distrust of politicians, which we know already exists out there to a considerable degree, so that is the danger.

Q125 Hywel Williams: Can I just confirm with you, however, that in terms of any confusion that you might have discovered in the research that confusion does not concern what is called the Clwyd West problem? It is about a number of other things but not about that particular issue?

Mr Mathias: Yes, that is correct.

Q126 Mrs Moon: I wonder if I could just take you back to your focus groups. It is very striking in relation to this 38% and the impact on turnout. Turnout for an election involves commitment to the democratic process, as in some respects does turning out for a focus group. Did you look at how many people who came to your focus group failed to turn up to elections? Have you carried out any research into the majority of people who are not turning out for elections as to whether or not the electoral system has an impact on why they are not turning out? Have you looked at that issue?

Ms Jenkins: Yes we have because the focus groups are not randomly selected. We particularly looked at people in different groups so for example we selected voters and we selected non-voters and we selected what the researchers describe as "differential" voters, that is, people who vote, for example, at the general election but not at the Assembly elections, so that we could probe why they are voting in one election, why they are not voting in another, why they have never voted. So we look at those different aspects to try and get a full view. Can you remind me of the second part of your question?

Q127 Mrs Moon: It was whether or not the electoral system impacted on whether or not people turned out. There was the complicated issue of people voting for a list but that was not impacting?

Ms Jenkins: It has no impact at all. We particularly looked at whether or not the electoral system impacts on turnout and our view is that it does not have any impact. I think there has been quite an extensive body of research done on that. The Independent Commission on PR was looking at that because there is an argument that proportional representation encourages people to vote, but in Wales and Scotland so far the experience has been that it has not impacted on voter turnout either way.

Q128 Mrs Moon: Can you tell us why they were not turning out? What were you being told was the reason people do not turn out for Assembly elections?

Mr Mathias: A whole host of reasons. It is easier for us to ask the question why is the turnout in Wales lower than the turnout say for parliamentary elections to Westminster. One of the prime reasons there is lack of knowledge about what the Assembly is doing, which is at least in part down to the media structure in Wales, but an ignorance about the Assembly and ignorance about the electoral process supporting the Assembly, which is one of the reasons why we recommended (and we are very pleased to see our recommendation included in the White Paper) that the Assembly should be given powers to publicise its own elections. There is legal doubt about this at the moment and we are very grateful that is going to be in the White Paper because this could be a means of helping to address that particular problem.

Q129 Hywel Williams: Some of the thinking about the Assembly sees it that Assembly elections are second-order elections. Does the voting system mark it out as being a second-order election and would first past the post impact it differently and increase the perceived importance?

Mr Mathias: I do not think so. As Kay has been saying, we do not believe from our research that the method of election has any particular impact on turnout. It is far wider issues about engagement with the political process and engagement with the political process in the Welsh Assembly as distinct from Parliament. Those are much more important issues in terms of the turnout than the method of election.

Q130 Mrs Moon: We heard from Lord Richard prior to your submissions and, as you know, the Richard Commission recommended an increase of Members from 60 to 80. If that had been followed what impact would that have had on your preferred system of Assembly elections, if we were looking at 80 Members?

Mr Mathias: We felt it was not within our remit to look at the structure or the powers of the Assembly. We are here to comment on specifically electoral issues. So the straightforward answer to your question is this is not something we have considered and not something we have a view on.

Q131 Mrs Moon: The Richard Commission also recommended a different electoral process, however. Did you not look at that?

Mr Mathias: No, we have not looked at that and there is a very good reason for that. There are currently five different electoral systems in operation across the United Kingdom. It is the role of the Electoral Commission to give guidance on and in some sense regulate aspects of all those elections. It is therefore not appropriate for us, we feel, to state a preferred system of election one against another because we have a responsible role in connection with all of them. So we do not state a preference and we have not considered whether one system is better than another.

Q132 Mrs Moon: But you are saying that the system that is being recommended in the White Paper is not one that you would see as being positive so you are making a comment on one system.

Mr Mathias: We are making a comment on a change to an existing process, not whether one whole electoral system should be changed to another. We feel that is a different issue because the additional Member system operates, as I have said, around the world and the proposal here is moving outside how any other country operates, and we felt that was a legitimate question to comment on, quite distinct from suggesting that STV is better than AMS or vice versa.

Ms Jenkins: I think as well one reason why we considered it important to comment was that the White Paper justifies the proposed change in the electoral system as being reported voter confusion and concern and indeed refers to reports of the Electoral Commission on the 2003 elections, and so we felt it was important to look at the issue from the point of view of voter participation and how we thought it would impact potentially on voter participation at the 2007 election.

Q133 Mrs Moon: Thank you. Just very briefly, are you able to comment on the change potentially to the turnout and to the result of the 2003 election if we had had the 80 Members?

Mr Mathias: Obviously that is not something we have looked at it. We have not looked at the issue of the structure of the Assembly or any consequences that flow from it. It is our job to comment on any proposals that specifically are made by the Government and we look at it from the voters' point of view. We did not feel that was within our remit to do.

Q134 Mark Williams: In your written submission in paragraph 20 you set out four points which were your criteria for evaluating any potential changes in the electoral arrangements. You talked in terms of the reasons for change should be comprehensible to voters, changes should be fair and seen to be fair, the need to avoid accusations of partisanship which could affect participation (which we have talked about) and the need to consider the broader context. In your view, do the Government's proposals meet those criteria?

Ms Jenkins: We have already partly gone to that question in that we are talking about low public understanding of the whole issue. What we have looked at particularly is how it would impact on voter participation, and our concern is that voter understanding of the whole issue of electoral arrangements is very low. We were worried that in the runup to the elections if there are accusations about partisanship, which we think is very likely, that that could have an adverse impact on voter participation at the next election. Also one of the criteria is that we have said in terms of arrangements for political parties then they should be the best possible arrangements for political parties and candidates to participate, and obviously if there are strong views by some parties about those electoral arrangements those, in our view, could not be the best idea of arrangements. I think there is another issue about the proposed changes and how they might be understood by voters. If it is said that the concerns about the Clwyd West problem are about the issue of dual candidacy. We would really like to know more about the basis for that confusion and concern because we do think there is a possibility that voters are confused and concerned about the additional Member system as such rather than dual candidacy per se in that if you prevent dual candidacy you will still have the situation that parties which have lost in the constituency election will be seen to have won in the regional election. The additional Member system is a compensatory system. It is specifically designed to correct the advantage in the constituency election through the regional list so it may be that what is said to be confusion and concern about dual candidacy might in fact be about the additional Member system as such, which we feel has not been probed sufficiently in the White Paper.

Q135 Hywel Williams: I seem to remember reading in the paper that in some countries list candidates are also required to stand in constituencies. Is that not an equally elegant answer to the Clwyd West problem as the one proposed?

Mr Mathias: You are referring to the situation in Quebec which has recently reviewed its electoral system and come to the conclusion that in the additional Member system they would wish to require all candidates to have stood in constituencies. You cannot be elected on a list unless you have stood in a constituency which is precisely the reverse of what is proposed in the White Paper. Here I think what the rationale is if you have a two-tier system of Members, constituency and list, the conclusion they came to was it is better to integrate the two tiers as much as you can by requiring all list Members to have fought a constituency battle, whereas the net effect of the proposal in the White Paper is that it further distances list Members from constituency Members and makes them even more second tier than they are at the moment and that is one of the risks, but it is a contrast, you are right, between the conclusion in Quebec where they did a thorough review of all the international systems before they came to their conclusions and what is in the White Paper, for which there is no evidence at all.

Q136 Mr David Jones: In paragraph 25 of your submission you caution that "there should be compelling reasons for introducing a change to an electoral process that is as yet untested over a period of time." Would you say that the Government has actually shown any such compelling reasons? I have particularly in mind the comments you make in paragraph 19 of your submission where you observe that the same electoral arrangements apply to the Scottish Parliament. Do you not think it anomalous that the Government should perceive this to be a problem in Wales but apparently not a problem in Scotland?

Mr Mathias: As I mentioned earlier, the situation is slightly different in Scotland because there are four Scottish MSPs on the list who are Labour MSPs and where there are tensions between list and constituency Members it tends to be more cross-party than one party against the others. So the situation is slightly different. The point we are making there is the fact that Wales might be different in its process than Scotland is not an absolute reason why it should not go that way but that regard should be had to the situation in Scotland and consultations should be had with the Scottish Parliament to ensure that no unnecessary differences and anomalies are created.

Q137 Mr David Jones: I would like to touch on what everybody keeps describing as the Clwyd West problem. I must say I take it rather amiss that my constituency is described as a "problem"! In your view has what happened in Clwyd West had any impact on voter turnout and participation? Also perhaps could you comment on the fact that, as I seem to recall, in Clwyd West, the Conservative Party which came second in the first past the post election secured a bigger share of the vote in the regional list. Does not that show a degree of sophistication on the part of the electorate rather than it being a problem?

Ms Jenkins: There is no evidence that the Clwyd West so-called problem has had any impact on voter participation. We do not believe it has. I can only refer back to the research we have already talked about about what makes people vote or not vote in any election (but in an Assembly election particularly) and we have not got any evidence that that has been the case.

Q138 Mrs James: I am very interested in the Arbuthnott Commission and it has been quoted quite widely by you in a number of places. While the final report says the current voting system has "potential to add to existing cynicism (about politics and politicians) current engagement was not the result of voting systems." How do you interpret this research?

Mr Mathias: It largely backs up what we have said.

Ms Jenkins: I was just going to say it is very similar findings to that which we have found out ourselves. There are a whole host of reasons as to why people vote or do no vote and they relate generally to disengagement with the political process. People feel very strongly about issues but they do not necessarily translate those into party political issues or as to why they should vote in any election. All those background issues are going on but also going on are issues related to particular election short-term factors, to do with the election campaign and whatever the issue is at the moment which then affects people as to whether or not they turn out. However, in all of that the voting process has not emerged as something that makes people vote or not. In that context we would agree with the findings of the Arbuthnott Commission research.

Q139 Hywel Williams: Just to sum up - and this is a statement rather than a question perhaps - it seems to me that you are saying it is possibly unwise to base a change in the long term electoral system on the outcome of one election, as it were. Indeed, a geographical or party split might be different in the future.

Mr Mathias: Yes.

Q140 Hywel Williams: Can I just turn to the question of the national list. Is a single national list a viable alternative to the present regional list?

Mr Mathias: This is not an issue which we have looked at because it is not an issue that has been presented to us to look at. In principle, there is nothing wrong with a national list but, as I understand it, it could operate in a number of different ways and we would have to look at exactly what the proposal is before making any comment. I would say this: if the Government wished to develop that or any of these proposals we would be happy to co-operate with research and development of such a proposal if it was appropriate, but we have not looked in detail at the issue of a national list.

Q141 Hywel Williams: Given what you know at present without doing any further research, would the national list address any of the concerns the Government seems to have over the regional list and the Clwyd West question, et cetera? Perhaps you are not in a position to answer that?

Mr Mathias: I am not in a position to answer that question. I would be speculating and making it up on the hoof and I do not think that is advisable.

Hywel Williams: Thank you.

Q142 Chairman: Could I ask the last question and it is about postal voting. Is there any evidence in your research about a falling away in the returns, so to speak, where if you apply for postal votes, when the forms arrive they appear to be so complex - the voting system and also how to vote - that is there is a disproportionate number of people not returning their votes?

Mr Mathias: In the Assembly elections.

Ms Jenkins: No, actually the contrary is true because postal voting in Wales has been taken up at a higher level since its introduction as postal voting on demand. In 2001 we had a higher number of postal voters in Wales compared with England and Scotland and that has continued to rise. The rise has just about bottomed out at this year's election in that now in Wales there are only about 1% more postal voters compared with England and Scotland, but in 2003 it was still very much on the rise. We had about 11% of the electorate who asked for a postal vote compared with an average across Britain of about 7% and there was a high rate of return at the 2003 election. So although people did find the forms complicated to fill in, that is undoubtedly true, they did return them.

Q143 Chairman: Is there a great deal of variation across Wales then?

Mr Mathias: The levels of postal voting certainly vary across Wales and perhaps quite surprisingly in that some of the lowest areas of postal voting are some of the rural areas and some of the highest are in the conurbations. I do not think that is particularly relevant to the issue that we are discussing.

Q144 David Davies: I may be going off track here but one of the huge concerns that I had over postal voting was that I could never get a clear answer from the returning officer as to whether it was acceptable to go around with forms to people and then to collect them back again. The returning officer's advice was that this was inadvisable and she at the time would recommend against it, but she was not able to give a clear set of rules. It came to my attention - and I do not want to talk about particular constituencies - that in a constituency one candidate for one party was doing that whilst another candidate from another party was being advised that it was not a good idea but because there was not a clear ruling on it that candidate could not be certain whether to follow the recommendation and be completely safe or to do what the other candidate was doing. There need to be clear rules that we can all follow, surely, on that?

Mr Mathias: In advance of the last general election the Electoral Commission did draw up a code of conduct in conjunction with all the main political parties and they all signed up to it. That code of conduct, with which I am sure some Members are familiar, did specify that it was inadvisable for candidates or agents or party workers to handle postal ballots, and that was quite clear. I got the impression that, by and large, this code of conduct was abided by during the election.

Mrs James: Certainly I was given that advice and I circulated that to every one of our party workers. Our advice was you do not touch a postal vote.

David Davies: I was not talking about Bridgend when I was talking about that constituency, I can assure you. Sorry, you are not Bridgend.

Mrs James: Swansea East.

David Davies: Not that one either, nor Bridgend!

Chairman: Can I thank you both for your evidence and for the clarity of your evidence. It was very helpful.