CORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 551-iii

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

WELSH AFFAIRS COMMITTEE

Evidence taken at the National Assembly for Wales, Cardiff Bay

 

 

 

GOVERNMENT WHITE PAPER: BETTER GOVERNANCE FOR WALES

 

 

 

Monday 31 oCTOBER 2005

RT HON LORD ELIS-THOMAS, AM and MR PAUL SILK

Evidence heard in Public Questions 145-186

 

 

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Oral Evidence

Taken before the Welsh Affairs Committee

on Monday 31 October 2005

Members present

Dr Hywel Francis, in the Chair

Mr Stephen Crabb

David T.C. Davies

Nia Griffith

Mrs Siān C. James

Mr David Jones

Mr Martyn Jones

Mrs Madeleine Moon

Hywel Williams

Mark Williams

 

________________

 

Witnesses: Rt Hon Lord Elis-Thomas, AM, Member of the House of Lords, Presiding Officer, and Mr Paul Silk, Clerk, National Assembly for Wales, examined.

Q145 Chairman: Good afternoon. May I extend a warm welcome from the Welsh Affairs Select Committee and ask you to introduce yourselves.

Lord Elis-Thomas: My name is Dafydd Elis-Thomas; I am Presiding Officer of the Assembly, and I am very pleased to be able to welcome you here. May I wish you well, Mr Chairman, in your new role? I am pleased to see your predecessor; we worked very closely together in a previous session. This is the Assembly Clerk, Mr Paul Silk: a number of you will know him and will have worked with him in the past.

Q146 Chairman: Can I begin by asking you some questions on the Assembly Committee Review. In September you published your report on the Government White Paper, which we have before us. I understand that that report was agreed unanimously. Does that reflect a wider consensus on the White Paper from the point of view of the whole of the National Assembly?

Lord Elis-Thomas: I am not certain whether I could claim that there was a consensus. There was a vote on some issues, and those have been noted in the record. There were a number of issues that the committee did not discuss within its remit. We did not, for example, discuss questions surrounding changes in election rules, or preventing Members from standing for election. We did not discuss those issues within the committee. However, it is fair to note that within the report and in the debate held on 21 September this year - and I think you received a copy of that debate as evidence - you will see that there was agreement on most issues. Your colleague, Gwenda Thomas, and myself had a minor disagreement regarding specific committees to deal with issues of equality of opportunity, and she participated in the debate; but we did not disagree on what we should be doing, only on how we organise committees. I would say that there was relatively widespread unanimity amongst all parties in their responses to those sections of the White Paper that we discussed in our committee.

Q147 Chairman: The Welsh Assembly Government has had a very strong input into the drafting of this Bill that will follow the White Paper. What role have you played in this process in respect of the development of the National Assembly?

Lord Elis-Thomas: Not much, is the honest answer to that question. We have not been consulted with, nor has the Assembly Parliamentary Service. There has been no consultation save for discussions, which I am not party to, between party leaders. It would not be appropriate for me to discuss those here, but I believe that the First Minister has been discussing these issues with party leaders. As I understand it, there has been very little consultation with officials working with us, and with colleagues who are committee clerks and part of the parliamentary service. I am disappointed about that because, unlike a situation where a body is to be abolished - and perhaps you would not expect consultation in that situation - you would expect political leaders of any project, be they Ministers in the Wales Office or Ministers in Cardiff and UK Ministers, to consult with the body that is to be changed and which would be most directly affected by those developments. I understand that there was a politically sensitive situation before the Westminster elections, when there were discussions on preparing the White Paper. However, I would have thought that in the period between the election of a new government and the publication of the White Paper and the bill, that it would have been most appropriate for there to have been consultation. It is also a cause for concern for me that the bill has not come to us as a draft bill. I believe that every parliamentary bill of any substance should be published as a draft bill so that detailed work can be done in gathering full evidence before it is finally published. You could say that that is what we are doing here; we are preparing for that process. However, it is not the same thing as discussing the bill as a draft bill. As it was not published as a draft bill, that is an even stronger argument for having wide consultation, including consultation with officials who work for the Assembly Parliamentary Service, apart from those of us who are political leaders. As I say, I am disappointed that that did not occur. It places us in a particularly difficult situation because it is possible that I will have to express an opinion on the bill as a Member of the House of Lords, and I would have much preferred to have expressed that opinion privately beforehand, and that would have made it easier for the Government. That is a matter for them.

Q148 Chairman: Does Mr Silk have anything to add on this?

Mr Silk: No, Chairman, I do not think I have anything to add to what the Presiding Officer has said.

Q149 Chairman: You recommended that the bill should contain provisions for the Welsh Assembly Government to change its title, should a consensus be reached. Would you welcome a similar provision for the National Assembly, to change its title should a similar consensus be achieved?

Lord Elis-Thomas: I think that it is constitutionally incumbent upon us to change the name of the government of Wales or the administration of Wales because the name that was announced was chosen by the Government itself. It was decided just as we were concluding the process of inter-party consultation in 2001. We were in the process of looking at the procedures of the Assembly, and the Government decided to launch the new image and the new name. That name, in my view and in the view of the majority of people who gave evidence to us on the White Paper - and possibly they said the same to you - has just perpetuated the confusion. I do not believe that you can couple the name of an administrative body with a parliamentary body, because to me the Assembly Government is confusing constitutionally, which reduces the possibility of rational parliamentary democracy in Wales. That is a complex issue. People are continuing in the media - I have to be careful because a few are sitting behind me - they might be stabbing me in the back! Countryside Council people are immediately behind me, so I think I am safe with them! There has been a practice of the media referring to the Assembly, when they actually mean the Government. The ordinary people of the country say, "that Assembly is not doing anything for us". With due respect, we are meeting as elected members in the Assembly in order to debate and discuss, but it is the Government that takes the action. The Government is the administration. Although the White Paper will use this term "WAG" once again, I do hope that that will change. In saying that, it is appropriate for the Assembly to have the right - or not be stopped from changing its name, if that were to occur; although I cannot see any reason for changing the name of the National Assembly, because a national assembly has the same meaning worldwide as "Senedd". If you have been to our exhibition at the Pierhead building, we have adopted the name "Senedd" for the new building in both languages. I think that it would facilitate matters if we could continue with the name "National Assembly". Having said that, I would not wish to see anything on the face of the bill that would stop our successors in this place from changing the name to whatever they believed to be appropriate; but, naturally, we would have a view on what is constitutionally reasonable, and I do not believe that we have that at present in the name of the Government.

Q150 David Davies: In section 140 apparently there is a reference to support from the Conservative Party for the name to be changed to "The Parliament of Wales". That is not something that I would recognise, and I think that many Conservatives would think that the parliament of Wales is still based in London. Section 20 states that the term "Welsh Assembly" was deliberately avoided in 1998 because of the somewhat exclusive sense in the adjective "Welsh". I would have thought that "Welsh Assembly" was a pretty reasonable start for an assembly that is based in Wales. Do you agree with that point that it is the problem with the use of the word "Welsh" in describing the Welsh Assembly?

Lord Elis-Thomas: I have always thought that there has been a problem with the use of the word "Welsh" because people can interpret it in various ways. That is why organisations use the word "Cymru" rather than the adjective "Cymrei" or "Cymrei/Welsh", which can also be used. I do think that the phrase "Cymrei" does not actually raise the same problem in the use of the Welsh. We do not have to use the adjective. We could discuss these problems of grammar in the Welsh language for hours, because you have learnt the Welsh language to a very high level, and I congratulate you for that. You have learnt the language, of course, with the resources available to Assembly Members - I will just drop that in, in passing! In response to your question, I would say that there is a question in regard to the way the word "Welsh" is understood in English. Therefore, calling an organisation "Wales" Tourist Board is more understandable than is the use of the term "Welsh"; so we should be using the word "Wales" rather than "Welsh". This was a point of argument before the inception of the Assembly; and that point was accepted by the Secretary of State and officials at that time. I would not want to see that changed.

Q151 Mr Martyn Jones: It is nice to be here again, Presiding Officer and Mr Silk, in a slightly different position but nonetheless enjoyable. In paragraph 16 of the report you suggest that the number of Ministers and deputy Ministers be regulated by the bill. Can you explain why you believe this to be important?

Lord Elis-Thomas: Numbers of Ministers in Whitehall are regulated by statutory instrument. I think there is an issue in a relatively small Assembly of the payroll vote of the numbers that would be part of government - not just the payroll vote, but there are others of us who, obviously, not being on the Government's payroll, are on the payroll of the body, whether as chairs of committees or as deputies or presiding officers. I think there is a need to have regard to how many Members out of the 60 should be involved in government or in being involved in political, democratic or constitutional roles within the body. That is the reason for that concern. There is an issue of what should be on the face of the bill and what should be in standing orders. I would say that a broad limit on the face of the bill would enable flexibility in terms of Ministers, deputy Ministers or secretaries, as it is in the original powers, if you want to use that term - Ministers or deputy Ministers or whatever. The Government, or any administration, would be able to choose the flexibility of its total complement of Ministers, the numbers in cabinet and all of that. The detail of it should be a matter for the First Minister and for the code of conduct of Ministers in the cabinet; and if any further light touch is required, it should be for standing orders.

Q152 Mr Martyn Jones: That relates to my next question, which is about the relationship between standing orders and the face of the bill. In your report you recommend that provisions be included in the bill for the Assembly to dismiss the Government on a vote of "no confidence" or to have the power of approval for Ministers. Could that not be handled by standing orders?

Lord Elis-Thomas: On an issue of dissolution, it needs to be tackled by legislation. We cannot dissolve ourselves now, and it does limit the possibilities in certain times, when there are minority governments. The Scotland Act has a provision for dissolution, and I think I am right in saying that we are recommending the equivalent of what is in the Scotland Act. Therefore, I think that that matter should be on the face of the bill. The rest of it, in relation to the relationship between parliament/government - part of that needs to be on the face of the bill. We are moving from a situation in which the body corporate, whose early demise I have long desired and whose final death I warmly greet, did provide us with its version of the traditional government and parliament. In other words, it was about delegating powers of the First Minister and reverse delegation was the weapon, as it were, that the parliamentarians had. We assume in our report what is not clear in the White Paper; that there will be a Welsh consolidated fund. We had some very useful evidence from the Auditor General for Wales, Jeremy Colman, on this very issue. Ian Summers, as Deputy Auditor, and Jeremy Colman both gave evidence to us. During the course of that evidence there emerged a very useful discussion about how the practicalities would develop for the Auditor General in his Comptroller role, signing off funds approved by the Assembly to Government and so on. That voting of supply is a clear necessity to be specified, because that is the way in which the Parliament can make the Government accountable. That perhaps is the most important issue. Conventions would establish the situation where, once a First Minister or any Minister had suffered a vote of "no confidence" or a motion of censure, that those Ministers would then understand that the message was that they no longer had the confidence of the House. That is not something you put on the face of the bill; but it is something that is established by convention. The other systems, the voting of supply, should be part of legislation. As a result of that, we might establish a finance committee, which we do not have now in our standing orders, which could oversee some of those issues and scrutinise them.

Q153 Mrs James: I would like to concentrate on the Assembly committees. Little mention is made of Assembly committees in the White Paper outside of the removal of the Ministers as Members. How do you envisage the committee structure working post 2007?

Lord Elis-Thomas: You are tempting me now! It is not that I do not welcome the temptation, because I volunteered to discuss this exact matter. In addition to being Presiding Officer, I also chair the panel of the Assembly Member chairs of all of our committees. We will be discussing this issue tomorrow night. The problem we have is that we have an Assembly of 60 people; 15 of them are either in cabinet or are party leaders or are chairs of committees. That is more than 20 out of that number to begin with. Naturally, if they are committee chairs, they are to be counted amongst committee members; but, as you all know, the role of a chair is slightly different to the role of a committee member as far as being part of a committee is concerned. In order to be an ordinary committee member, that only leaves us practically 30 plus members who would be free to carry out committee work. Assuming that we have to accept the criticism that we do not do very much legislation or law-making work, and that these new Measures are being pledged or promised to us, all the orders-in-council and all those questions, I imagine that we will need a minimum of two committees to be involved in legislation. I am not talking about subordinate or secondary legislation at present, because somebody will have to look at that, but looking at primary legislation in the new system, looking at Measures and draft orders-in-council. If two of those committees sit each week, then that would take quite a bit of people's time. If you then come to the essential committees, from the point of view of scrutiny of the Government's work the Audit Committee is obviously a strong, independent and important committee that looks not just at the Government but also audits the House Committee - or commission, as it may be in the new system. That is another separate committee, which then leaves only time or space for perhaps three select committees such as your Committee, to use a Westminster term, to scrutinise the legislation and look at measures but at the way in which the Government is trying to make policy by creating measures; and also looking at the outcomes. In any parliamentary system we do not look enough at the outcomes of what we do. Looking at all of that, I do not anticipate that we could have more than three or perhaps four committees of that nature. We then have the whole question of how we discuss non-devolved legislation, legislation that is UK legislation and in addition European Union legislation; so you will need a committee to do that as well. I believe that we will have to focus our work in much greater detail, and we will have to be willing to have smaller committees meeting more frequently and during the day whilst the Assembly is in session. That may not be unusual for yourselves, but it is for us here.

Q154 Mrs James: I am very happy on that because you have anticipated my next question. Do you believe that there will be sufficient opportunity for you and sufficient hours in the week for you to do this? How do you see the workload being shared during the week? You have spoken a little about this, but could you go into greater detail?

Lord Elis-Thomas: I am not going to be popular here, but I do think that we have to start at half past ten on Tuesday morning, which will mean that it is in time for the North Wales train; and then we will have to sit through to lunchtime, and then half past two until half past six, I would have thought. The same will be true of Wednesdays, and we will need to sit on Thursday mornings and perhaps Thursday afternoons. I would assume that the "travelling circus", if I can use that term to describe the regional committees, would be abolished. I would not have thought that they would be necessary in the future. In place of that, I would like the committees looking at the measures, and the select committees scrutinising the administration to travel regularly, as you do. I do accept the criticism that we do not meet frequently enough here - or over there, as the case will be when the Senedd building opens.

Q155 David Davies: The simple question to the Presiding Officer is this: do we have to cut the number of committees and the number of Ministers?

Lord Elis-Thomas: As I understand the White Paper, the Ministers will no longer be committee members, with the exception of those occasions when they are called to committee, according to your own procedures. Then I would believe that since the Ministers will cease to be members of committee, those committees will then be free to set their own agendas, not just to have to always respond to Ministers' agendas. They could set their own scrutiny agenda, which would be far more effective, hopefully. I am not a member of committees so I am in no position to make those statements; but that is my opinion, as one looking from the outside. You may have your own opinion as having been a member of a committee.

David Davies: This is not the time or place, perhaps, to give my opinion on that, but it appears to me that it is difficult to ensure that the agenda is relevant always. It depends very much on the committee chair.

Q156 Nia Griffith: Can I ask about your current arrangements for co-opting non-Assembly members to committees, and how you would like to see that continue with the new arrangements.

Lord Elis-Thomas: We have currently on our standing committees - and I refer particularly to the Equality Committee, which has done this very effectively - organisations like Stonewall Cymru, with which I am associated, and various other bodies. They have been part of our partnership on that committee work, and we do want to see that continue. However, I would not necessarily want to see the co-option of people who are not Assembly members on the committees for the whole of an Assembly session, although that would be possible in the way that we have couched our recommendations in our report on the White Paper, but we should be enabled to draw in expertise, as members of the committees, for periods of inquiry. That has, in the way we have been able to operate through our standing orders, both in Westminster and here, included yourselves. We have sat together on committees, Assembly Members and Members of Parliament, in particular when scrutinising pieces of legislation. The value of doing that is borne out by the fact that we all want to keep on doing it. All the voluntary bodies that have been the statutory consultees or that have been involved by being members of committees on a process, can see the value of that; and we would want that to continue. I would want it to happen in a flexible way, and I would not want anything on the face of a bill to prevent that happening. I would not want too much specification in standing orders as to how it should be done, but there should be the flexibility for us to do it. If we have fewer committees that are more concentrated in terms of the field of study, then that would work very well along with that kind of process.

Mr Silk: Chairman, may I add one small point about this, which is quite an important point that was reflected in the White Paper committee report? I understand there has been some problem in Scotland in relation to co-optees to committees in relation to their status and protection in terms of defamation and so on. The White Paper committee report mentioned the need to protect the position of these co-optees in the future, so that it was absolutely clear that they were participating in proceedings of the Assembly, and therefore covered in the protection we have from defamation for Members of the Assembly and proceedings in the Assembly.

Q157 David Davies: I apologise because I think I may have referred to you as First Minister; and if I did -----

Lord Elis-Thomas: A number of people refer to me as First Minister, and they are all wrong!

Q158 David Davies: Mr Presiding Officer, you have recommended that sections 23 to 26 of the Scottish Act be implemented by the Welsh Assembly. What impact would this have on the workings of Assembly committees?

Lord Elis-Thomas: The intention of this is to ensure that we are able to call witnesses in the same way as a parliamentary committee does.

Q159 David Davies: Will this not effectively mean that a Welsh Assembly committee will have the power to call any witness from anywhere in the United Kingdom; and is there not an argument for saying that whilst this may be the Welsh Assembly, responsible for all things in Wales, that we may be exceeding our remit if we have the legal right to drag before a committee somebody who has possibly never set foot in Wales, just because an Assembly committee has taken a dislike to them or decided that they want to interview them about something?

Lord Elis-Thomas: I am advised, as I always am, by Paul on this matter, that the relevant sections you quote in the Scotland Act apply to Ministers of the Scottish Executive, and we would expect a similar provision to apply to us. We are very keen, and have done so in the past, to have UK Ministers and European Commissioners and others appearing before our committees. I can understand of course that UK Ministers would not want to be subject to twice the grilling, as it were, in a devolved body as well; and therefore the important issue is for us to act as proper scrutineers of the powers of the Ministers who are accountable to us.

Q160 David Davies: Sections 23 to 26 - and this is wearing my Assembly Member hat - would give the Assembly the powers to call up any witness that they wanted from the United Kingdom - or would they? That is my understanding, and so therefore even a private citizen living in the UK could be subject to an invitation, which they could not refuse, from a Welsh Assembly committee.

Lord Elis-Thomas: I am not certain how these powers are working in Scotland, but I am willing to look at that and provide a note for the Committee if there is an issue here. It is not our intention to be sending our equivalent of the Serjeant-at-Arms up to Scotland to drag people down and haul them before us - although I can think of a few Scottish people I would not mind doing that to!

Q161 Mrs Moon: I would like to ask a few questions on the issue of the breakdown of parties on committees and how they would be able to work on that basis. If the ruling party has 15 Members committed to Government or presiding officer roles, how many government backbenchers would need to double-hat on committees to make them workable? Do you have a view on that?

Lord Elis-Thomas: Yes. First, we are not very familiar with having ruling parties here - we do not have them very often! We had a ruling coalition at one time - or a partnership coalition. Therefore, we have always had to deal with these issues of flexibility of members of committees. I am not part of the process, but these are all negotiated between the parties. A motion is put down by the Minister as a result of those negotiations. We are now seeking a situation, through our report, whereby it would be possible to look for party balance over the whole of the committee system rather than on individual committees, which always creates difficulties. On the other hand, I think it is important to recognise that there can be pressure on the Assembly Members who represent, shall we say, the biggest party, in a situation where half of that party's membership is taken out, or a third of it is taken out for activities involving the administration of government, as opposed to parliamentary scrutiny. That is where I look for - and it is beginning to happen here, after six and a half years - the development of a committee culture; in other words, of Assembly Members, as indeed Members of Parliament in my experience have always done, taking a particular pride in being the people that scrutinise and take on government, as it were, of whatever party, because they are committed to a particular subject area. We are beginning to get that here; members are beginning to get a name as champions of, say, mental health issues, which is a terribly important issue for us here, or equality issues, so that those members then are seen to be active members of committees pursuing those issues and pursuing the government Ministers of their own party as well as pursuing anyone else, any outside witnesses or officials who come to them, on the basis of their commitment as parliamentarians. That is something that we need to be looking for here. We have already recognised, in a small way, through remuneration, the role of chairs of committees. I am not suggesting that we would want to recognise members of committees in the same way, but we need to recognise that that is an extremely important contribution to the work of a democratic body; and therefore Members would seek to excel as committee members and not just say, "if I turn up for this committee and not ask too difficult questions, I might be made a deputy minister" or something like that!

Q162 Mrs Moon: Do you take the view that provisions in the bill will allow for greater flexibility in party representation? Will that ease potential difficulties in appointing members to committees?

Lord Elis-Thomas: We have to look at the numbers of committees that are realistic for us. That is the sort of thing that I set out earlier. Hopefully, it will not be for us in the present Assembly, but it will be for the new Assembly, the third Assembly, within a framework of legislation which is broad and flexible enough to allow it to do that within its then agreed standing orders to establish which committees it wishes to have. Mention is made of audit in the White Paper, and I understand how important it is that audit has a committee on the face of the bill; but I would not want any other committee specified. I would want that to be a matter for standing orders and a matter for us to work out in this Assembly for our successors to hopefully agree early in the third Assembly. If that is to be done, more easily rather than with difficulty, the less stipulation on the face of the bill the better. That is a general principle: do not put anything on the face of the bill that can be worked through in standing orders. That is my view.

Q163 Mr David Jones: The report recommends the introduction of a code of ministerial parliamentary accountability along Westminster lines. Would that be sufficient, in your view, or would you want to build on that or deviate from that?

Lord Elis-Thomas: I have in practice, as the holder of my office currently, not become involved directly in any standards issue, in particular any issues involving the conduct of Ministers. That has worked through the relevant code of conduct for cabinet members. We have of course a standards regime in our independent Commission on Standards, which deals with general issues in regard to standards of Members. The issue of Members acting as Ministers is very much a matter for the First Minister within the framework of cabinet responsibility.

Q164 Mr David Jones: In the case of a committee summoning a government witness, would you want the power to summon a Government Minister?

Lord Elis-Thomas: I think that follows. There are issues here about the relationship between Ministers and officials, which I would not want to get too closely involved in, in my present position. I think the argument is that if Ministers are accountable to the National Assembly, then those Ministers can be summoned to committee; and those Ministers would be accompanied by officials. I think it can be quite useful for committees to be able to examine witnesses independently of Ministers, or serially, as it were - not necessarily together. That has been the subject of much discussion, I understand, in Scotland, and there is an understanding in the Scottish Parliament, but I am not sure whether Parliament and the cabinet are fully signed up to this. Clearly, we were going to look for further information on that ourselves, and I am quite happy to provide you with further views that we have established from Scotland.

Mr Silk: It is hardly for me to remind you that it is an issue for Parliament as well. The Osmotherly rules have been asserted by Government, but I understand that they have never been agreed by the House of Commons; so there is still a dispute between the House of Commons and the Government about that.

Q165 Mr David Jones: Lord Elis-Thomas, the White Paper envisages that disputes over standing orders should be subject to the arbitration of the Secretary of State. What are your views about that? Do you think that the Secretary of State is the appropriate arbiter; or would you think that you would be the most appropriate arbiter? Have you had any discussions with the Secretary of State about this?

Lord Elis-Thomas: I do not believe that it is appropriate for anyone except the Members of the National Assembly for Wales to write their own standing orders. The same is true of the Maesteg Golf Club or whatever - a free association. We would like to select within the law, clearly, and within the tradition of parliamentary procedure; but I think it is part of the maturity of any institution that it is in charge of its own rules. I have expressed views on this before, and I do not want to repeat myself too often, but I am hoping that we can come to an understanding on these matters, and that your Committee may well be able to help us! We have now come to a position where we have produced this report; we have clearly indicated that we wish to be responsible for our own standing orders, which has cross-party support in this report; and our wish is to go ahead and begin drafting our standing orders as soon as practical. If there are difficulties about agreement in any committee which may consider the standing orders there are two ways of dealing with them. We normally do standing orders using our Business Committee sitting as a procedure committee; or we can establish, as we did in the case of this White Paper examination, a start-and-finish committee to do the standing orders. There are arguments for and against both sides. If that process comes to disagreement, then there are further ways of internal arbitration here. For example, party leaders - as we did with the Assembly procedure - could discuss and try and resolve any disagreements. There could be an argument, although I would not advance it myself, that where there is no agreement, then a presiding officer is in a more appropriate position to impose a rational solution upon the Members and elected Assembly, than is a secretary of state of another government.

Q166 Mr David Jones: Do you anticipate some resistance from the Secretary of State?

Lord Elis-Thomas: Well, it is a matter for the Secretary of State.

Q167 Mr David Jones: Do you anticipate it, though?

Lord Elis-Thomas: I do not think it is appropriate for me to go into the mind of the Secretary of State.

Q168 Mr Crabb: My question concerns the memoranda of understanding that exist between the UK Government departments and the National Assembly. Given that these memoranda will need to be amended in the light of the separation of the executive from the legislature, what new arrangements would you like to see introduced between the Assembly, the Welsh Assembly Government and Whitehall departments?

Lord Elis-Thomas: I would encourage the Wales administration, as I prefer to call it - the WAG - to have as much intergovernmental relations with Whitehall, the European Commission, the Scottish Executive or Northern Ireland Executive, when it is back, as it needs to carry out its work effectively. Some memoranda of understanding have worked better than others, I understand, between UK Government departments and the Assembly Ministers. As regards the National Assembly for Wales as a constitutional body, then our relations would not be with government; they would be with Parliament and indeed with other parliaments with other similar regional assemblies, with the European Parliament and so on. In that area, we have already developed ways of working together, including ways of working with yourselves, of which we are very proud so far - and I am sure that they work equally well in this new Parliament as they worked in the last one. We are proud of those arrangements and I would want to see us build on those for the simple reason that I was always aware that when there were two elected bodies in the queue, as it were, for the taking of evidence on different subjects, it was not really fair on the witnesses. The way that we have operated in the last couple of years is much better all round. I am also very proud that this has given our Assembly Members a mode of operating alongside Westminster Members in the public domain and different fields, in a way that I did not imagine would be possible. It has worked very well.

Q169 Mr Crabb: Can we move to legislation specifically. Under Stage 1 of the White Paper, Government departments are expected to draft Welsh clauses with the maximum level of appropriate permissiveness. In a previous evidence session I suggested that departments include in the explanatory notes to bills a statement verifying accordance with the aims of the White Paper. Even if it were only for the purposes of clarity, would you welcome such a statement?

Lord Elis-Thomas: I would welcome it indeed. I am still waiting for these framework clauses to appear. I do not think I have seen any yet, although I am told in the White Paper that it is already happening. It is of great interest to me, and I did look with particular interest at Hansard and the questions asked by Peter Law, MP, to various Government departments. The answers are fascinating. Some of them do correspond to each other! The Home Office does not say that it intends to implement the Government's policy; it only says that it is in discussion with the Welsh Assembly Government; so we will see what emerges.

Q170 Mark Williams: Turning to orders in council, are you satisfied that the National Assembly will be given sufficiently flexible powers to adequately scrutinise orders in council? How do you envisage orders in council being scrutinised by the National Assembly?

Lord Elis-Thomas: We had some very arcane discussions in our committee about orders in council and what they can be used for, and I must say it is a particularly distinctive procedure of the United Kingdom constitution where these things operate. I am sure that there are views in Westminster about the adequacy or not of the time devoted to debating orders in council. As far as we are concerned here, there are three issues. First, there are the orders in council, which I assume will be the form of request from the Wales administration to the Secretary of State for permission for the Secretary of State to present an order in council to enable the administration here to produce a Measure. That is one procedure. We assume that that is the way it will work, and not the other way. How many of those are going to be made each year? Are there likely to be delays in that process? Are we going to go through the whole rigmarole of the smoking policy? Five years down the road, we are still unable to carry out the resolution for the National Assembly for Wales. I can speak about this with a little bit of passion because I was out with the Chair and voting for that particular issue; and we are still unable to do it. I think we need a way of progressing our legislative desires in the Assembly in a way that is better than what there has been so far. I referred to legislation emanating from the administration here, but that is not the only way a legislature legislates. There is a possibility of committees looking for orders in council in order to have legislation, and clearly there has to be in any proper parliamentary body the opportunity for private members' legislation. There has to be a way in which we can pass through the Assembly a request for an order in council on the proposition of an individual member in private members' time; and that then will go to the Secretary of State, and then it appears potentially in the form of an order in council, which Parliament approves. Then I come to the final interesting point, which is the letter of refusal. This is potentially a very fascinating invent in the UK constitution, and this is the reason why we emphasise in our report on the Better Governance White Paper that that letter should be addressed to the holder of my office and not to the First Minister, because it is a letter which has, as it were, constitutional import. My understanding is that the word "trivial" is used in the White Paper. Since I do not know what is in the bill, I do not know whether that word is included, but I do say to parliamentary draftspersons that if the word "trivial" is in the bill that is trivial reasons for refusal of a request from the Assembly, it will keep those involved in judicial review busy for many years to come, I would have thought. The way I see it is that the letter would come to the holder of my office; then that would be a public document; and then there would be an Assembly debate upon the reasons for the refusal and whether they are adequate. Some of you might want debates in Parliament as to whether the reasons for refusal were adequate. I am highlighting this because the order in council route is fraught with all sorts of constitutional difficulties potentially for all concerned. If the order in council is drawn very broadly, just like the long title of a bill, then that is much easier; but if the order in council has to be preceded by some kind of submission of ten pages, saying, "please can we have an order in council?" including a draft measure and costings, then it could be very complicated.

Q171 Mark Williams: On a practical note, the White Paper envisages the possibility of individual Members and committees instigating the orders in council. Do you feel that the National Assembly has the capacity to provide the legal support that those Members and committees would require?

Lord Elis-Thomas: We have to do that. We do not currently have it and would not pretend to have it. I was about to say that we have very sharp lawyers, but that could be misread! We have constitutional lawyers and committee clerks obviously that have the required skill, and we would have to make sure that we had that resource, because without them we are not serving our members properly.

Q172 Mr David Jones: Listening to you answering those questions, Lord Elis-Thomas, would it be fair for me to conclude that you regard the whole order in council proposal as a Byzantine fiction, which is, frankly, put there for a purpose other than to deliver effective government to the people of Wales?

Lord Elis-Thomas: No, I do not think it is a fiction because I have seen it operating, obviously, in my various guises. I have seen it, for example, in the procedure of legislation now to prevent the people in Northern Ireland from killing themselves with tobacco smoke. I was very pleased that the Secretary of State for Northern Ireland was able to do that recently. The order in council procedure as set out here is an ingenious addition to our armoury of devolution possibilities. As I am a pragmatist, I will try to work at any system that I am required to by the legislation; but I will make damn sure that I work it to the bone or, to use another phrase, I will push the door until it creaks on these matters. It is part of my job to do that because I have to make sure that the Assembly Members have all the opportunities open to them.

Q173 Mr David Jones: I get the impression that you would rather move from Stage 1 straight to Stage 3, without the distraction of Stage 2 and all the additional legal processes that would be involved.

Lord Elis-Thomas: Not necessarily. If I can be a little indiscreet, I quite like the idea that Stage 3 is constructed around the question of whether or not there should be the demise of the office of the Secretary of State. There is a present irony about that, considering where we came in, in 1964.

Q174 David Davies: I do not think it is going off the subject at all, but given the extra work that orders in council might entail, has there ever been any official consideration given to a second chamber?

Lord Elis-Thomas: Have we considered a second chamber, Accounting Officer?

Mr Silk: Not that I am aware of, no.

Lord Elis-Thomas: You will know, as a close follower of the architecture of the Senate building, that there is what we call the Richard Corridor. That is not a second chamber; that is desks for twenty Members with seats.

Q175 Hywel Williams: Good afternoon. Is there a real need then for a secretary of state to sift these orders in council, or is it sufficient that the applications are deemed to be correct and could go directly to the Westminster Parliament, rather than going through that filter?

Lord Elis-Thomas: What I hope will happen is that the Secretary of State will interpret the act, if and when it is passed, as a constitution for action. Therefore, it will be the practice for an application for legislation to be processed and accepted. The only argument that I can see for the function of the Secretary of State or the Wales Office in this case is to ensure that any issues regarding the drafting are appropriate to come before the House of Commons and House of Lords in Westminster; and that that should happen appropriately. That is a matter for another step. I do hope that that is how it will be interpreted. I would be exceptionally angry if we came to any position where the Secretary of State rejected an application for policy reasons, because that would be completely contrary to the whole argument in favour of devolution; namely, if a legislative or parliamentary body in Wales asks for legislation and if that is in order constitutionally, then it is appropriate for that legislation to be considered. It would be another matter if the Westminster Parliament decided to vote it down or revise it - you could not revise an order in council anyway, but to vote it down; that would become a political issue between the two bodies. I believe it would be inappropriate for a secretary of state to reject tabling an application for an order in council because there was something regarding a difference in policy. For example, if we wanted to do something, as we wanted to do with smoking, such as planning issues, and do something that would not be completely acceptable to the Westminster Government because of their policy, then that would take us into very difficult territory indeed.

Q176 Hywel Williams: Following on from that, do you believe that the present arrangements, with the detail included at present, are robust and strong enough to withstand the situation of a government of a different hue here in Cardiff to London, when there might be a temptation to look at policy discrepancies rather than the validity of any application?

Lord Elis-Thomas: That depends on how serious the current Government is regarding setting up a working constitution for the people of Wales, speaking quite frankly. I would imagine that there is no point in reforming devolution arrangements unless they work as parliamentary arrangements and constitutional arrangements, whoever governs. I have never understood the argument that the only way that devolution works is if the same parties are in London and Cardiff. That is a rather strange way of looking at it. Politics changes government, but democracy should be something that is here to stay. You can reform it, of course, but from the procedural point of view everybody can use it, and I do not think that that argument is taking us anywhere.

Q177 Hywel Williams: Would you anticipate the act of parliament being used if the House of Lords were to disagree, for example? Secondly, would you anticipate the House of Lords honouring the convention if there was a matter that was part of the manifesto of the governing party here - that they would not reject that on the basis that it was in the manifesto?

Lord Elis-Thomas: I have attempted to answer questions as Presiding Officer, not as a Member of the second chamber, but I do not know exactly how the second chamber would respond. Since I understand that there are intentions to reform, the whole question of legislation on the reform of a second chamber is something that is likely to become more prominent very soon. I would not like to predict exactly what that situation would entail. All I would say is that crossbench Members and other Members of the House, including Lord Richard, who I know has given evidence to your Committee, have very strong opinions on this constitutional issue. They would certainly want to be given a full opportunity to discuss the bill when it is published. They will do that very critical, and I could not imagine them doing anything else - whether it be in the manifesto, because constitutional correctness is just important a principle as is a party manifesto. In terms of the use of the Parliament Act, I do not think I will go down that particular route because the last time the Parliament Act was used we saw an exceptional mess, did we not, and I would not want to see that happen again?

Q178 Nia Griffith: Turning to staffing, supposing that the current level of staff were to remain after separation of the legislature and the executive, what proportion of staff would you see as coming under the Welsh Assembly Government, and what proportion would remain in the Parliamentary Service?

Lord Elis-Thomas: Can I ask Paul Silk, the Accounting Officer, to deal with all staffing issues.

Mr Silk: We have moved towards a form of administrative separation between the Welsh Assembly Government and the rest of the staff of the Assembly at present. We have about 285 staff working for the Assembly Parliamentary Service, and about 4,200 staff working for the Welsh Assembly Government, who will shortly be joined by about 1,300 people who work currently for the Assembly-sponsored public bodies, the ASPBs. I anticipate that those staffing levels will remain in those sorts of proportions in future. I ought to draw to your attention that currently, as far as senior staff are concerned, there is a much greater predominance of senior staff working for the Welsh Assembly Government than for the Assembly Parliamentary Service; so if you take people in the higher grades, from Senior Executive Officer, as it used to be described, upwards, it is about 18% of our staff who work at that level, and about 22% in the Welsh Assembly Government, about 28% in the Scottish Parliament, and something over 40% in the House of Commons.

Q179 Mrs Moon: I assume, Mr Silk, you will want to answer this question as well. With an enhanced role and an increased workload, the report states that there would need to be an expansion of the Parliamentary Service. Who sets the limit, and who sets the budget from which this will be funded?

Mr Silk: The Presiding Officer has already referred to the probability that we would have something similar to the Consolidated Fund Procedure. We do not know yet of course because we have not seen the bill. I assume that if it is akin to the procedure you have under the Consolidated Fund Procedure in London, as they have in Scotland, then it will be for the Assembly Commission to make a bid for staffing, as for the other parts of its budget, and for that budget to be subject to the approval of Plenary as a whole. I imagine that a similar sort of process as the process we presently have will continue in the future.

Q180 Mrs Moon: Do you have any idea of the increased number of staff that would be needed?

Mr Silk: When the Assembly started, for perfectly understandable reasons some of the functions that were done here in the corporate body, people did not anticipate the need for staff at the right sort of levels, as we would perhaps anticipate if we are going to have proper legislative functions in the future. Areas therefore like research services, committee services and the Table Office, are areas where I would like to see some enhancement to staff as well as legal advice to committees and to members generally. We would probably need some enhancement of all those services. I would not see a great growth in the numbers of staff, but perhaps having more expert staff is something we could aspire to.

Q181 Mrs Moon: You do not have a figure.

Mr Silk: Not at present. We do not yet know exactly what the functions of this part of the Assembly will be in the future. We do not know whether we will have any functions, how many Measures we will have, or the obligations in respect of those Measures; so it is very difficult to make any speculative judgments now. The White Paper report stated that it would be less than honest to say that what we will have to do in the future will necessarily be done without any increase in staff numbers, and I think that is true.

Q182 Mark Williams: With that answer very much in mind, would you welcome the need for provisions in the bill to protect the National Assembly from restrictions on the legitimate increase of resources that you have implied may well come along?

Mr Silk: Obviously, the total resource for Wales - the block grant will still come from the Secretary of State. I do not imagine you are anticipating a restriction on what the Secretary of State should give as a block grant; it is about the apportionment inside the block grant. I would see that as being what happens at present; that it is a matter for Plenary as a whole. If a majority does not support the estimates that have been put before it by the Assembly Commission, then it will be for the majority to turn those down. In normal circumstances, as happens with the House of Commons budget, which is set by the House as a whole, I would expect that to be done by agreement between the parties inside the Assembly, and that it would not therefore be a matter for political dispute on the floor of the Assembly. We would certainly hope to avoid that.

Q183 Mr David Jones: Lord Elis-Thomas, the White Paper envisages that the bill will make provision at some indeterminate future time for a referendum on the granting of primary legislative powers to the Assembly. Would you wish there also to be provision for increasing the size of the Assembly from 60 to 80 members, as recommended by Richard; and can you see any impediment as to why that should not take place?

Lord Elis-Thomas: I am afraid my life is lived perpetually at stage 1 and struggling towards stage 2; I have not even thought about stage 3. I do not think that really has a direct impact on my current work as Presiding Officer. There are obviously constitutional principles here as to when and whether a referendum should be held and what should be put to the people in that referendum. I favour the principle of referendum for any substantial constitutional change, but I have tried to limit my horizons to trying to preside over an Assembly to which the people of Wales can look for proper representation. I do not think I have managed to do that yet.

Q184 Mr David Jones: So you would not feel it appropriate to express an opinion as to what sort of questions should be asked in the referendum.

Lord Elis-Thomas: If there were a referendum, I do not think at this stage - and I do not think the bill envisages - the form of a question being part of the bill, as far as I gather. Certainly we have had no discussion of that in the work of our committee. We have confined ourselves to stages 1 and 2; and that is more than enough for the moment. I think that the development of devolution depends on clear and intelligible procedures, but I would say that, would I not? My immediate concern is to make sure that we can get that through from stage 1 into stage 2. The issue of a referendum and the issue of a two-thirds majority for a referendum request for the Assembly and all these issues, I have not formed an opinion on at this stage. To mix metaphors again, I have got other fish to fry.

Q185 Hywel Williams: Returning to the subject of orders in council, do you have any view regarding the nature of those individual orders? Would that be what is termed a jumbo order, with perhaps a series with just a very long title; or are we looking at a series of them on individual issues?

Lord Elis-Thomas: There are some strange and inexplicable things in this White Paper to me regarding the distinction between areas and fields of policy. Once again, I have not been able to understand where the distinction lies. As you know, an order in council can do almost anything. It could be an administrative issue or a policy issue or it could be a change of a Minister from one portfolio or place to another, or all sorts of things. We need to attempt to look for an intelligible consistency in the process, and it should be clear to the people of Wales that what is expected in an order in council, very simply, is a permission for the Assembly to make a measure. It is a question of where you start the work. If you are seeking permission and then preparing a draft measure - for example in the mental health field, where, obviously, serious legislation will be required soon to deal with services and entitlements and rights. We do not know what is happening, but there has been sufficient talk in the media that the proposed legislation will not appear in the way originally intended. If that is true, I am very glad of that. If you are going to make laws in that field, then you do not want to set about making the first mental health bill for Wales, although I would love to see that - but you will not do that without ensuring that you are going to get permission through an order in council under this system for it to be enacted. There is a question of where the process works. I would assume that the logical process is to say that some kind of rough application will be submitted, where we say it is an area where we feel we need legislation. If it comes from an individual member, then I imagine that the draft Measure will have to come from here as well, before it becomes an application for the order in council. It could also come from a committee and it could come as an application from the committee for an order in council, and that could be returned with a tick in the box, or not, as it were. If that is the process, then what is important is that people understand that that is the system. It is permission given by the two Houses of Parliament for the Assembly of Wales to make measures. That is the most logical system, I believe. That is what I would like to see, and that permission should be given conditional on the full accuracy and detailed accuracy - what would appear at the outcome of the process - that is the Secretary of State, not as somebody intervening in the process but validating the process.

Q186 Hywel Williams: There has been some confusion in general in regard to the areas, fields or domains, as some people describe them. We asked some of the experts in our first hearing but we did not receive much enlightenment on this issue. I see that your Committee has recommended that responsibility for the Welsh language should be transferred wholly to the Assembly. Would you like to outline some of the reasons for that, for the record here?

Lord Elis-Thomas: We received a letter from Elin Jones, Assembly Member, asking to give evidence on this; and some of us had been considering this, having read the White Paper. There was an opportunity for us in committee to discuss it in some detail. It does not make any sense to me in an area which impacts only on Wales - that is the legislation on the Welsh language, that there should be some restriction on the Assembly in drafting a Measure that would be broad enough to encompass anything that should be done in that area. That was the crux of that debate. You could have two orders in council, one after the other, to ensure that the two areas would be covered, but that would be a protracted process and very strange. It would be more reasonable to say, "this is an appropriate issue", if we can avoid those two terms, areas and fields. We should say that it is an appropriate topic to ask for that to be devolved. There is an argument for including the term "measure". I am very fond of the term "measure" because it is an old term used in the Church in Wales. We should of course not forget that the Church in Wales was the first organisation in Wales to be given legislative powers, way before the Assembly; but I would like to see the term "measure" used in Wales for bills. In future, we will have Measures in the Assembly and bills in Westminster, but I would like to see the words "Assembly measure" appearing in the orders in council so that there is a clear link. In reality, the order in council is the long title of a bill in the Westminster tradition. That would then refer to the Measure which would emanate from that; and of course the glory of that would be that once the order in council is made, then that whole policy area is devolved. Then there is democratic clarity as to where power resides. The greatest problem with the current settlement, which was not drawn up as a reasonable constitution - we will not go into that now, but its main deficiency was that the electorate in Wales did not know that if they voted someone to the Assembly what those people could actually achieve. That is a terrible deficiency, and it is anti-democratic. It prevents political parties and certainly prevents the electorate from thinking of the outcome of the process that they are part of. That is why I do not want to see this process making things even more murky; I want to see this process opening the door to people. They know that an order in council will lead to a Measure that will achieve something.

Chairman: May I thank you both for your exceptionally clear responses, and congratulate your committee in its success in reaching a consensus. I hope that we will also be able to have the same kind of consensus in this Committee.