House of COMMONS









Thursday 10 November 2005


Evidence heard in Public Questions 187 - 267





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Oral Evidence

Taken before the Welsh Affairs Committee

on Thursday 10 November 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

Mrs Madeleine Moon

Hywel Williams

Mark Williams


Witnesses: Rt Hon Peter Hain, Member of the House of Commons, Secretary of State for Wales, Wales office, and Rt Hon Rhodri Morgan, Member of the Welsh Assembly, First Minister for Wales, the National Assembly for Wales, examined.

Q187 Chairman: Good afternoon. Welcome to the Welsh Affairs Committee. I wonder if our two witnesses could introduce themselves.

Mr Hain: Peter Hain, Secretary of State for Wales.

Rhodri Morgan: Rhodri Morgan, First Minister for Wales.

Q188 Chairman: That is just for the record - we do know you! Secretary of State, we will be submitting some written questions to you. Hopefully you will be able to reply in the next few days. That will give us more time to ask some of the more substantial questions today.

Mr Hain: I would be very happy to do so.

Q189 Chairman: Could I begin at the beginning, so to speak, with the devolution settlement. It was once suggested by Nye Bevan that the constitution of the Welsh Rugby Union was Byzantine but the devolution settlement has been similarly described in more recent times as Byzantine and the White Paper proposals add to the complexity. Why was a draft Bill not published in order to give an opportunity to the public to have a better understanding of what the proposals are being submitted to us?

Mr Hain: First of all, we published a White Paper in June. Secondly, the clock is ticking on this. These arrangements need to be in place in advance of the Assembly elections in May 2007. The new structure, particularly for abolishing the single corporate status of the Assembly and replacing it with a proper executive and legislature arrangement - a policy, incidentally, supported right across all the parties, a matter of consensus - needs to be in place from early May 2007. The Assembly needs to have time to put those arrangements in place, which involves a pretty substantial and radical restructuring of the whole way it goes about its work.

Q190 Mr Crabb: In response to our concerns about the complexity of the proposals, Alan Cogbill assured us that the Bill will be "coherent and free standing". What do you understand that phrase to mean?

Mr Hain: I think he meant there would be one single Government of Wales Act. There is an existing Government of Wales Act 1998 but, as my memorandum makes clear, around 120 of the clauses in the new Bill - to become an Act, we hope - will be transposing and modifying the existing legislation. There will be around 40 new clauses, mainly dealing with the enhanced powers and the reforms there. Rather than cross-referencing the whole time, the Parliamentary Council advised us it is better to have a single piece of legislation which would be, as it were, the Bible for devolution.

Q191 Mr Crabb: A lay person would be able to understand the devolution statement just by reference to the new Act without referring back to the 1998 Act.

Mr Hain: Indeed, with perhaps the help of the explanatory memorandum that goes alongside it.

Rhodri Morgan: Could I endorse that. From the point of view of lawyers in Wales, political scientists in Wales, anybody interested in their rights or the political process, if you have an act which requires reference back to the 1998 Act then basically you have to have two books in front of you all the time. It is much better if you have just the one and you can get your nose on to that statute, and - provided you are reasonably good at interpreting statutes - you are at the races; whereas, if you are dodging back and forth all the time, I just think it leads to confusion. So it does make for a longer Bill this time, but I think it is a much better output even though you have that greater length. You should not measure it by how many clauses you have but how many clauses you have terminated in the old Bill in order to give you the coherent single viewpoint.

Q192 Mrs James: My question is to the First Minister. The Presiding Officer told us when he gave evidence last week that the National Assembly for Wales had very little input into the drafting of the Bill. Can you outline in detail what role you and the Welsh Assembly Government have had in drafting the Bill?

Rhodri Morgan: Perhaps the remarks of the Presiding Officer will be accurate for his perspective. By that he will mean that the members of the Assembly, the corporate body of the Assembly, the 60 members of the Assembly, will have had little role because it is a UK Government Bill and is part of the manifesto commitment. But that also implies that there has been a degree of tremendous teamwork between both our lawyers and Wales office lawyers, our civil servants and Wales Office civil servants, and myself politically and the Cabinet more generally, in supporting the Wales Office's prime responsibility as part of the collective UK Government responsibility for bringing the Bill forward. We have been there as part of the team that has helped to create the set of instructions to the Parliamentary Council, but it is a UK Government Bill. There are no two ways about that.

Mr Hain: As Rhodri says, there is a single Bill team, staffed by a majority of Rhodri's staff, drawn from the Assembly, with Wales Office staff to complement that. Obviously the Presiding Officer is being kept closely in the picture. I saw him on Monday and I think satisfactorily resolved all the queries that he had. I suppose it is also similar in this sense - apart from the UK Parliament being in the lead on this, because it is a UK Parliament bit of legislation - that the speaker does not draft government bills in our Parliament.

Q193 Mark Williams: A large consultative exercise was undertaken by Lord Richard and he has produced a highly acclaimed report. How are the Government's recommendations in Better Governance for Wales superior to the conclusions Lord Richard reached?

Rhodri Morgan: What Richard does not have but this Bill does have is an intermediate stage - which could in theory become the final stage: it all depends on politics long after I have retired and put my feet up. The Richard first stage has already been implemented - by Peter when he was Leader of the House - and that has been continued; namely, the principle of framework legislation. On all England and Wales Bills the normal practice of this Government and this House will be to put the Wales measures into the hands of the Assembly for filling in all the details. Then Richard goes straight to a third stage, with all the complexities of a shift in the electoral system to STV, a referendum and so forth, and a reduction probably in the number of members of Parliament and so forth following the Scottish precedent. What this Bill has but Richard did not have is the intermediate stage; namely, the Orders in Council stage, or, if you like, the parliamentary release catch, where the Assembly can apply and then the Secretary of State takes a view, and then it comes through into Parliament to request Parliament to release the powers to the Assembly to pass an Order in Council. That is not in Richard. We think that is a good thing to have added to Richard. I do not think there is anything in Richard which is not in this Bill; but there is something in this Bill of key importance which is not in Richard.

Mr Hain: I do not want to contradict Rhodri at the start of our joint evidence, but what was not in Richard was a commitment to a referendum, I think I am right in saying. On the question of primary powers, this Bill will put on the statute book for the very first time primary powers for Wales. I think that is a very important part of it and one that I am proud of. But it has made it clear that this is a radically different settlement from the 1997/98 settlement - which itself was authorised by a referendum - that you would require a referendum to get primary powers for the Assembly, whereas you could get on with the job in the meantime and give substantial powers, as Rhodri said, to the Assembly through Orders in Council between 2007 and 2011, and of course Richard did not envisage primary powers coming in until at least 2011. So we think we have a more practically deliverable package of enhanced powers for the Assembly than the Richard Commission proposed. Of course the other similarity with the Richard Commission was the split between the executive and the legislature. We just took that blueprint that he recommended and are taking that forward.

Q194 Chairman: Could I pursue this for a moment. Could you put on the record the reasons why you think it is so important? I assume it is in the context of what has happened in the past and the need to get the full support of the people of the Wales to move forward.

Mr Hain: It is that. I think you have to be on the high ground here. If you are proposing a democratic extension of powers for the Assembly that is completely different from the 1998 Act, completely different from the policies put to the people of Wales in 1997, you need to get the people of Wales's endorsement for it. That is the reason. I think that has strengthened the case, and, I suspect, Chairman, if we had not as Welsh Labour and as the Labour Party have it put in our manifesto and as a government decided on this policy, the Bill would doubtless have been amended during its passage in Parliament to have included a referendum. I think we are in a very strong position of saying, "Here are the powers sitting and waiting on the statute book. When there is a consensus in Wales, beginning with a consensus in the Assembly to go for those primary powers, then we can trigger a referendum by the Order in Council mechanism we propose."

Q195 Mr Jones: Secretary of State, does the Order in Council process itself not amount to a radical extension of the powers of the Assembly way beyond what was envisaged at the time of the 1997 referendum? Should that not also be the subject of a referendum now?

Mr Hain: No, because the UK Parliament is in charge. The UK Parliament in respect of the powers that go to the Assembly under this new procedure makes the decision. That is exactly what the 1998 Act provided for and was endorsed by the people of Wales in 1997. Yes, it is true that we do not have the full stages of primary legislation, the whole process in both Houses - that is true: there is an accelerated procedure - but Westminster remains sovereign. Therefore, there is no case for any referendum which would authorise the delivery of primary powers to the Assembly - which I have long supported - in which Westminster would no longer make decisions to the powers that the Assembly have.

Q196 Mr Jones: Have the people of Wales ever been consulted over the Order in Council procedure?

Mr Hain: There was a widespread process of consultation following the Richard Commission, in which both Rhodri and I were in exactly the same position, that we wanted to see the Assembly get on with its task of having greater powers following 2007 and did not want to wait another four years, as Richard proposed - particularly bearing in mind we needed to get a referendum to get further on. Fundamentally, we are suggesting here that once the decision in principle is taken by our Parliament, by this House and by the House of Lords, to grant the Assembly the enhanced legislative competence orders that it requires to make Assembly measures - that is a decision of Westminster, and once that decision is taken - the Assembly is able to tailor its own policies much more effectively and in fact with less complexity than is the case now.

Rhodri Morgan: If I might add to that. I do not think one should abuse or overuse the referendum mechanism. You should confine it to the major constitutional issues about who runs your country. The degree to which Parliament and the Assembly run the country is not a suitable question for a referendum. In other words, if you are introducing something new, like the Assembly, then: referendum. If you are joining the European Union and you have never been run by the European Union before, then: referendum. The degree to which Parliament runs Wales and the Assembly runs Wales, that, it seems to me, would be an abuse of the referendum mechanism.

Q197 Mr Jones: But this was never envisaged in 1997.

Rhodri Morgan: I do not agree with you. I believe that this implements exactly what was intended by the 1997 referendum - not the technicalities of it, but the way in which Parliament could release powers over a legislative area was envisaged and this makes the Assembly-Parliament bargain over who does what very much in line with what was envisaged throughout that time.

Mr Jones: And you are content ----

Chairman: Could I ask members of the Committee, if they want to ask a supplementary, to do it through the Chair, please.

Q198 Mr Jones: Forgive me Chair. You are quite content, therefore, that the people of Wales should have no say on this particular ----

Mr Hain: Hang on, David. Have no say? I mean, this is a difference between an Order in Council granting the Assembly more powers and more scope to tailor policies in the way that it ought to, and a bit of primary legislation. Are you seriously suggesting a referendum on the people of Wales on giving powers to the Assembly to choose between primary legislation and Order in Council? I do not think the people of Wales would thank you for that referendum, quite frankly, and it does not alter the fundamental relationship and the fundamental settlement endorsed in 1997.

Chairman: We will return to the Order in Council later on in the session.

Q199 Hywel Williams: Good afternoon. The Presiding Officer, when he was before us a little while ago, said that it would be inappropriate for the Bill to prevent either the Welsh Assembly Government or the National Assembly for Wales to change their names if they so desired. Is there a provision in the Bill to allow them to change their names? Would you think that is appropriate?

Rhodri Morgan: No, there is no provision for any change of the name. It is a curious thing about names. I seem to remember that in the opening clause of the Government of Wales Act 1998 there are three different ways of formulating the phrase: "National Assembly for Wales" or "an Assembly for Wales" or whatever, right in the opening clause. We are not proposing any change of name, therefore there would not be legal authority for changing the name. Welsh Assembly Government was not in that Act, but clearly now you do need some name, because what you are doing is having a legal personality for the Assembly Government which is not in the original Act. But, beyond using the name that has become custom and practice over the past four or five years, there is no provision for doing that and no provision for changing the original provision of the National Assembly for Wales from the 1998 Act. I think we all accept that in the end the people rule this issue and what becomes the convention is the convention. You will all be aware here that the words "Prime Minister" had no force in law for 150 years or more. It was always " First Lord of the Treasury" and then suddenly they decided they had better regularise this and had the words "Prime Minster" enshrined in law. Likewise, I heard a very good plug for us by the managing director of BT this morning. He referred to us as "the Welsh Government" having worked well with BT on bringing broadband to Wales. I do not know what people will be saying in 10 or 15 years. None of us can predicate that. In the end, the people will rule because it is the people's convention. They decide whether to call the Prime Minister the Prime Minister of the First Lord of the Treasury, and they will decide which name to give to the Welsh Assembly Government, or the National Assembly for that matter, in 10 and 20 years and there is nothing any of us in this room, neither me nor Peter nor any of you, can do about it if that is what the people decide.

Q200 Hywel Williams: Where did the term Welsh Assembly Government come from? What were the procedures for adopting that?

Rhodri Morgan: It was agreed across the four parties in the Assembly that we needed to stretch the elastic - not break the elastic, but stretch the elastic - of the Government of Wales Bill of 1998, so as to make as clear as possible the distinction between the executive branch and the legislative branch, and we have to have a title, therefore. There was a bit of argument about it. People pointed out, "Welsh Assembly Government sounds quite funny if you just use the three initials: WAG." Fine. Okay. Take that on the chin. People said: "The equivalent if you applied it here would the United Kingdom Parliament Government as distinct from Her Majesty's Government." Not many people outside this Place use "Her Majesty's Government" but that is the official title. In the end, you have to decide upon the title with the fewest disadvantages, and that was done. Because you have used it then for four or five years, the best thing is to proceed with it. What the public will use in 25 years time, I have no idea.

Q201 Hywel Williams: Forgive me for pursuing what might be a minor point. Should there be agreement between the four parties and the other two members in the Assembly that the name change was required if, according to this Bill, there is no way for them to do that.

Rhodri Morgan: No, that is true, but neither was there for using Welsh Assembly Government either - but it came into being. The formal legal titles are set out here: "Welsh Assembly Government" and "National Assembly for Wales" and their Welsh equivalents (which fit rather better). Informal titles, of the Prime Minister type before that became a legal title, can emerge from nowhere. You do not know really what the public get used to and what the public choose to like and what they choose not to like and what they choose to use, which has to be short and snappy - that can be used on a building site, supermarket checkout or whatever. Sometimes formal titles do not suit. Informal titles which emerge up here and in Cardiff there is no control over what the public in the end deicide to call a particular body in their constitution.

Q202 Hywel Williams: The Bill does not appear to give the National Assembly for Wales the powers of dissolution. Will that be provided? I am thinking now in terms of possible confusion in the public's mind if there are discussions between the parties and the Assembly and it is unclear what is happening down there. Will there be powers of dissolution?

Mr Hain: There will be procedures in the Bill for these circumstances. Of course it is a fixed term Assembly but if there were some kind of impasse and the Welsh Assembly Government could not be formed, then there would be procedures specified in the Bill.

Q203 Mr Jones: Secretary of State, who is best placed to be final arbiter of negotiations over the National Assembly's Standing Orders, the Presiding Officer or the Secretary of State for Wales?

Mr Hain: Let me start by saying I have no inclination, let alone any enthusiasm, for drawing up the Assembly Standing Orders. I do not think that is my job. I think that is the job of the appropriate mechanism in the Assembly - and Rhodri could perhaps advise us of his thoughts on that. I made that clear to the Presiding Officer on Monday. However, we have used the same provision as in the 1998 Act, that, if there were some kind of impasse over either the total package of Assembly Standing Orders or perhaps a narrower part, the fallback would be an order for the Assembly to start afresh with Standing Orders - as we would clearly need to - and it would fall to me to resolve that matter. I hope that will not be the case. I hope there will be a consensus on it because I do not to exercise that power. It is simply, as it were, a statutory fallback in the case of an impasse.

Q204 Mr Jones: Would that be a continuous process?

Mr Hain: No, once the Standing Orders are agreed they can then be amended by, I think, two-third's majority in the future. That is not a matter that the Secretary of State will want to hear about, let alone be involved in.

Rhodri Morgan: You have to start from somewhere, because you have a new Bill; you cannot use the old Standing Orders. I think the formal legal point is that in all circumstances the Secretary of State makes the Standing Orders but if there is a two-third's majority in favour of a set of Standing Orders, the Standing Orders that he makes are the ones that Assembly have already determined. If, however, the Assembly simply cannot agree on a set of Standing Orders, we are in difficulty and then you have this fallback power for the Secretary of State to do more than make them, but legally have to make them (in other words, write them), because the Assembly cannot do it itself. I am sure it will not come to that, but you have to have a fallback, otherwise you could finish with an Assembly with enhanced legislative powers but no modus operandi.

Mr Hain: It is a powerful incentive, as I see it, Chairman, on the Assembly to agree, so that I am not troubled by this! I have enough to do.

Q205 Mark Williams: Without wishing to add to the Secretary of State's workload, you responded to Mr Roger Williams in a written answer last week that the Devolution Guidance Note 9 has been revised to take account of the White Paper. I think Mr Williams described them in Welsh questions as a "Bluffer's Guide to Devolution" but we will not go into that now. What steps has your office taken to ensure that there is a more consistent and accurate approach in giving the Assembly "wider and more permissive powers"?

Mr Hain: Exactly that. We have a manifesto commitment to doing this. Very soon after the election, having got agreement before it to this approach from the Government, I initiated the procedure whereby the Department for Constitutional Affairs subsequently issued a devolution guidance note - of which there are many - Devolution Guidance Note 9, which specified that in drafting primary legislation of an England and Wales character, if there were to be clauses devolving power in it - such as the NHS Redress Bill on banning smoking in enclosed public places, which is the first example of this - then, instead of a series of, as it were, clauses which specify in some detail what the Assembly could or could not do, it simply said the Assembly will have the power to do as it wishes in detail on this policy. That guidance is now to be followed by a new Whitehall Department on drafting primary legislation and drafting bills affecting Wales as well as England.

Q206 Mark Williams: Are there any monitoring arrangements in place to ensure that guidance is being, in the first place, looked at and then followed?

Mr Hain: I guess your Committee might want to take an interest in that! The procedure is that all legislation affecting Wales is monitored extremely closely. Indeed, we helped draft it by the Wales Office, and, as often as not, working in partnership with the Assembly. It is often Assembly officials who provide the expertise, because they are the lead officials, and Wales Office officials and ministers if needs be will be involved in some brokering and extra assistance at the Whitehall end of things, so that process will occur. If there were any attempt, as it were, to depart from it, then we have the Devolution Guidance Note to assist us in making sure that the new regime is kept to.

Q207 Mrs Moon: I wonder if I could ask you a different question, about aiding communication between Whitehall civil servants and Assembly civil servants, if I could put it that way. It has been suggested that to assist understanding and to aid scrutiny an explanatory memorandum be attached to Bills explaining which clauses were relevant to Wales and which clause were going to be enacted differently in Wales. Would you find this a useful proposal? Do you think it would aid both scrutiny and understanding?

Mr Hain: I think there is an explanatory memorandum attached to all clauses at the present time. That would make it clear where there were Welsh-only clauses. We could perhaps look at making that even clearer, given the new framework powers that are being granted. We also envisage - although I realise we are not discussing this yet - that when an Order in Council comes before the House of Commons and the House of Lords there will be an explanatory memorandum attached to that, explaining exactly what its purpose is and exactly how it will operate.

Rhodri Morgan: In relation to this Bill itself, whereas it would be a huge burden of time to get it translated into Welsh around the time of publication, we do think it might be practical to have the explanatory memorandum (which would be 20 pages, say) translated into Welsh at a pretty early stage - maybe not before second reading but possibly well before your committee stage starts here.

Mr Hain: Perhaps I may make one other point that I perhaps overlooked in answering the question. My experience has been - and I am sure Rhodri will agree - that our officials in the Wales Office and the Assembly work very closely together. There is a common purpose. Sometimes issues have to be resolved in the nature of the situation but they have a common purpose.

Q208 Mrs Moon: I do not think the suggestion was that there is a problem in the Wales Office. I think the suggestion was that some other government department is perhaps not aware of issues in the Wales Office.

Mr Hain: Our job in the Wales Office is to make them aware - as we do when we need to.

Rhodri Morgan: And I have suddenly lost the power of speech!

Mrs Moon: Indeed.

Q209 Chairman: Should you ensure that there is some sort of statement by those departments that they would do that? There is the recent example of DCMS not undertaking certain things in relation to the Welsh language. Is there any request that you should explore that?

Mr Hain: The Parliamentary Under-Secretary of State made it clear that that had been a less than desirable procedure. Sometimes there are slip ups, but we usually put them right or spot them coming and make sure that things are done in the way that was intended.

Q210 Chairman: Would it be in order - and this is not a flippant remark - that the officials might visit Wales on some staff development programme to get some understanding of how devolution is unfolding?

Mr Hain: My experience - and certainly of Wales Office officials who have been there since the beginning, following 1999 and the establishment of the Assembly - is that whereas Whitehall was on a very steep learning curve at the beginning at official level, and, dare I say it, occasionally at ministerial level as well, that has largely receded. So I am not sure there is a problem here, but you are free to make any observations, Chairman, and your Committee, on this as you see fit

Q211 Mr Crabb: Going back to the Orders in Council procedure, you kindly submitted a memorandum which outlined in detail how the procedure would work. It is clear from reading the document that you both get on well and agree on the big issues. Do you envisage any potential problems for the Order in Council procedure should we perhaps have a Secretary of State and First Minister who do not have the same kind of goodwill that you both enjoy?

Mr Hain: What a suggestion! It is an important question that I think we would both be pleased to address. If you are envisaging a situation which is quite conceivable in the future - of a different colour government in London from a Welsh Assembly Government in Cardiff, that kind of cohabitation is no different - as I think Rhodri has described it - in respect of primary legislation. Let us be clear, if there are going to be difficulties of cohabitation, then they are even more difficult under primary legislation, the existing settlement, than they would be under Orders in Council, because a hostile London government could refuse to put a request for primary legislation in the business programme, pleading no time/pressure/no opportunity in the Queen's Speech. That may be, as it were, an excuse because there was an objection in principle. Parliament is sovereign and that is the case now as it will be in the future. But I think the Order in Council procedure allows for a better accommodation and an easier accommodation, and an easier accommodation between difficulties of politics, simply because you do not have this roadblock in the way of having to squeeze in Welsh Bills, as we have had to fight for space over recent yeas. We have been very successful, by the way, very successful indeed, but you have to fight for space in the Queen's Speech in the legislative programme. An Order in Council is not really going to trouble the legislative programme to a great extent. It is an hour-and-a- half debate on the floor of the House compared with going through all the stages of a bit of primary legislation.

Rhodri Morgan: Obviously I have a completely split personality over this. In the end, the true test of devolution is how it has coped. With any settlement at all, it is how it has coped with different political parties in power. Because it is, in a way, too easy when the same party is in power. Although you have the odd bit of argy-bargy from time to time, naturally, it is, by and large, the same party, the same manifesto, the same set of values. It would be nice in theory to be there. On the other hand, in partisan terms, you do not want that to happen. You want to be winning elections in Wales and you want to be winning elections at the UK-wide level. Robustness, therefore, of the settlement, in readiness for the time or the moment at which this cohabitation of different parties in control has to be put to the test, is very important in any settlement. I believe that what is proposed here is as robust as you can make it. Until it happens, you will not really know that, but I think it is devised so that you can establish a set of conventions, possibly with the same party in control, and then with whatever happens at Assembly elections in 2007 or 2009 or whatever. At general elections we cannot really predict what will happen, but the key thing is this: Is the convention and the understanding of how the Orders in Council procedure will work when there are different parties in control going to work on the basis that the Secretary of State, initially, and then Parliament will decide what you call the "appropriateness of releasing this bit of legislative power" not on the merits of the case - that is, do we like it or not? - but on whether it is appropriate? If we can get that convention working and up and running, then it is, I think, robust. There is not a devolution settlement anywhere in the world that has not had .... We are unusual here. Australia had the absolute opposite, where the Federal Government has been Conservative for years now - 12 years or something - and all the States and the Northern Territories are mainly Labour. There you have this complete clash of political parties, but because they have had devolution for 100 years or so, it does not matter - they still blame each other for who has left the other short of resources for doing this, that or the other. Of course you will always get that. On the other hand, it does not put the devolution settlement to the test. Because devolution has only been around for six years here, not 100 years, there will be some fairly testing times, but it is very important that this settlement is seen to be robust. It is up to everybody from all different political parties that might be in power in Cardiff or in London to be able to work - and to work on how it would work. The point Peter has made is very important, that the present settlement lacks a certain element of robustness, because when the Assembly now makes a Bill bid for primary legislation here, you will never know whether the Secretary of State was being sincere in saying, "Sorry, you chaps down there. Very fine Bill, but we do not have time to put it in. You always know the struggle we have. The Home Office have six Bills this year, so there is no time for yours," You will always be wondering, "Was he having us on? Was he using the time factor - not enough time in the legislative programme - as an excuse for the fact that he does not like the Bill?"

Mr Hain: I never have Rhodri on, of course. It is my view that, in the future, any government in Westminster of a party hostile to the Government in Wales, if it consistently defied the Assembly, would find itself run out of Wales in subsequent elections, as happened on the previous occasion this occurred - I do not make a partisan point, I am stating a historical fact - when the conservatives lost all their MPs in 1997. I think this will be a learning process for everybody. I would have thought any sensible United Kingdom Government, acting in its own party's interests as well as the interests of the nation, would want to work in partnership with the Assembly, as we have done, because otherwise there are political consequences for that particular party in Wales.

Q212 Hywel Williams: If the party or parties in the Assembly have a manifesto commitment to a particular course, and that is endorsed by the National Assembly but is refused by the minister here, even if the major parts of expertise might reside in Wales - and I am thinking of the Welsh Language Bill, for example - how would you foresee that being dealt with.

Rhodri Morgan: This is all part of the predictive process of what then happens when you have to face up to cohabitation. Partially, we can draw on the long history of the relationship between Labour governments elected with majorities in the House of Commons, but with adverse voting majorities in the House of Lords. The Salisbury Convention - not in the written constitution, because we do not have one in this country - has lasted a long time, 100 years - and it is still lasting, so far as I know - whereby the House of Lords with a Conservative majority, let us say, or an anti-Labour vast majority, does not block a measure of a Labour majority coming in if it is a manifesto commitment. You then say, "Okay, if the Assembly winning party has a manifesto commitment, then that is a pretty strong argument." The only slight difficulty one can see is if you do not have a single-party majority and you have a rainbow coalition of several smaller parties, one of them has a manifesto commitment but the others do not. Are we in Salisbury Convention territory there? To be honest, I do not know, but I do not think so. If all three opposition parties form a rainbow coalition, all have the same manifesto commitment, well then it has the same effect as if one party wins a majority with a manifesto commitment in the Assembly - which does have the same moral force. But we are talking about moral force here, as we are with the Salisbury Convention, because none of this is written down, and because the British Constitution depends on not writing things down but on custom, practice and convention.

Q213 Hywel Williams: You would assume that something like the Salisbury Convention would apply in one case but there might be a second case where one party in a group of three might only have a manifesto commitment.

Rhodri Morgan: Absolutely.

Q214 Hywel Williams: But there would be a different class of commitment from the others, even if they happened to agree with the lead party.

Rhodri Morgan: But did not put it in their manifesto. No, if you did not put it in your manifesto, it does not have the same force really. Everything in relation to quoting the Salisbury Convention is based on something being in a manifesto. It has to be in a manifesto to have any ability to read across from the Salisbury Convention, as it operates between the two Houses here.

Q215 Hywel Williams: So, even though we are in new territory, the convention as it applies in this Place is the one you foresee coming into force.

Rhodri Morgan: There is nothing else to go on. We do not have written constitutions. we do not have referenda to change written constitutions, because we have not had one in the first place. We have conventions. We want conventions which work. They work very well and have done since 1688.

Q216 David Davies: This discussion is getting pretty hypothetical at the moment. I firstly have to welcome the recognition that there may well be a situation where we have different government in Westminster from one in the Welsh Assembly. I suspect it would be in no party's interest to undermine the relationship between those two bodies, although I am not sure it will be quite as good as it is at the moment. It is in the interests of both organisations to work together and I am sure everyone would recognise that. My first question is almost superfluous, given the way the conversation has developed, and it may sound a little pedantic, but, as the Secretary of State for Wales said earlier on, giving full legislative powers would create further problems or the potential for further problems. I am bound to throw back to him the obvious rejoinder, that not giving Orders in Council and keeping things as they were would create less potential problems if we arrive at a situation where there are two different parties running the two different legislative bodies.

Mr Hain: I am not sure I understood the question as you interpreted my answer. My point earlier was that under primary legislation there tends to be more problems.

Q217 David Davies: Yes, so under no Orders in Council potentially less problems.

Mr Hain: Yes, I think so. Let me give you an example, as it might be helpful for the Committee, of the sort of problem that might need to be resolved. It is not an issue of principle but an issue of detail, in a sense. Suppose you took nursery education and the Assembly requested an Order in Council enabling it to make provision in relation to nursery education to ensure maximum flexibility and the request was broadly framed, and the Secretary of State would be concerned that the request might be too broad and might allow future Assembly administrations, for example a grand opposition coalition involving the Conservatives, to re-introduce nursery vouchers. In those circumstances, the Secretary of State would ask the Assembly to narrow the scope of the Order to prevent a potential clash there. You might have those kinds of discussions but the process would encourage you towards a consensus in the partnership. As I think you well put it, the organisations would want to: it would be in both Parliament and the Assembly's interests to work closely together. If, however, you got a series of log-jams as a result of political confrontation, if you did do this in future years then I think the case for triggering a referendum and going to primary powers would become unassailable. Any party in Westminster which was seeking to consistently thwart the Assembly would be inviting it to trigger the process for a referendum, to get the primary power which would not allow any blockage or log-jams or roadblocks to be put in the way.

Q218 Mark Williams: Returning to Lord Richard's views on these matters, he described the White Paper's proposal to give the Secretary of State the power to reject a request from the Assembly for Order in Council as "somewhat paternalistic". Can you explain the rationale for proposing this role for the Secretary of State rather than letting Parliament decide on the merits of the Order? And, following on from that, would you not consider a limitation of your proposed power, whereby your role would be limited to checking whether the Order in Council is in order?

Mr Hain: I am happy to go into the process where, by the time it came to that decision, you would know it was in order because both sets of officials would have been involved in checking that and clearing it, including with other Whitehall departments. I think there are two points here. First of all, it is not Parliament that, as it were, lays its own Orders; it is the Secretary of State. That is the way our system operates. Secondly, I do not think it is a question of a paternalistic role; I think it is the necessary intermediary between Welsh Assembly Government making a request ultimately to Parliament and a secretary of state transmitting that request to the floor of both Houses - as would be the end result after a process of pre-scrutiny, which you may, Mr Chairman, want to look at. I do not think it is a patronising role, a paternalistic role at all - except in the sense that, given that you do not have a separate parliament for Wales able to make its own primary legislation, you could argue that everything that Westminster does is in one sense patronising towards the Assembly. But that clearly is nonsensical, and I do not see it as any different really from the present situation. I put down primary legislation as the current Secretary of State, just as I would do to Orders in Council if I still hold that post when this new dispensation is in place.

Q219 Nia Griffith: If, Secretary of State, you see that role as a transactional role, as you transmitting something from the Assembly to Parliament, why did you say you should have the right to refuse an Order in Council and therefore pre-empt a decision by Parliament?

Mr Hain: I do not see it as a purely transactional role. I think it is a question of getting the Order in Council in the sort of shape that Parliament is likely to want to endorse. I gave an example on education and I will give another one on tax and benefits. If the Assembly, say, requested an Order in Council within its existing devolved competence, for example, social justice, but the Secretary of State was concerned that the proposed policy would have serious implications for the tax and benefits system, which is not a devolved competence, and it would not be possible to draw up a measure without encroaching into reserved matters, then you would perhaps want to tweak the Order in Council and you would want to enter into discussion. I would envisage this taking place at a very early stage, when the First Minister first came to the Secretary of State and said, "Look, we want to do this. Our officials need to get together to work out a satisfactory and suitable mechanism in the form of an appropriate Order in Council in order to effect this," and you would immediately be working in partnership on it.

Rhodri Morgan: It is something more than vires but something less than merit. In other words, if I ring Peter up and say, "We are thinking of bringing in the slaughter of the first-born miscellaneous provisions Bill, Order in Council 2006" - or 2007 or 2008 or whatever, and Peter's first reaction is, "I think that is a fairly challenging proposal to do in an Order in Council, Rhodri," you can see that there is an exercise of judgment going on, not merely on the vires, because the lawyers you hope will have sorted that out, but it is something less than the merits of the case. It is an in-between stage.

Q220 Hywel Williams: Would you be in favour of some kind of "constitutional lock" to offer the National Assembly for Wales some protection if a government of a different stripe appeared in respect of existing Order in Council powers?

Mr Hain: Constitutional lock?

Rhodri Morgan: What constitutional lock?

Q221 Hywel Williams: If there were disagreement between governments here in Westminster and in Cardiff, would you be in favour of some kind of constitutional lock that would off the National Assembly for Wales a level of protection over existing Order in Council powers?

Mr Hain: First of all, I think it is simply a statement of constitutional fact that Parliament is sovereign. You could not, even if you wanted to, bind Parliament. The Assembly could not bind Parliament in its decision and, therefore, it would always be a matter of the House of Commons and the House of Lords making the decision that the Assembly requested of it - or not, as the case may be. But that is no different from the existing settlement. So I do not think you can put a Bill down as saying whatever the Assembly asks Parliament has to do it in advance. Parliament would not carry a bill saying that. I would certainly not introduce one saying that. I would come back to the point I made earlier: I do not envisage that arising, and if it consistently did arise, the case for triggering a referendum for primary powers would become unanswerable.

Q222 Nia Griffith: Supposing something is turned down and there is a refusal, why in particular should that refusal come to you rather than to the Presiding Officer of the National Assembly for Wales?

Rhodri Morgan: These are proposals which come from the elected Government majority of the Assembly, the administration, and therefore the refusal goes back. But there is not an abridgment here of the ability of backbenchers in the Assembly to use what is now Standing Order 31. As in a ballot procedure, as you have up here, for private members' bills, we have Standing Order 31 for private members' initiatives then of a legislative character. They would have the same ability to come forward, but they would be treated differently. They would not go back to the Government side of the Assembly, because they have not come from the Government side of the Assembly, but they have been voted through on a free vote through a private members' bill equivalent procedure that we have.

Mr Hain: From my vantage point you cannot have a secretary of state with a position where he is dealing with the whole of the Assembly, especially under the new dispensation, unanimously supported across the parties, where there is a clear division between the legislature (that is the Assembly) and the executive (that is the Welsh Assembly Government). We would deal with the Assembly on a government-to-government basis. We would deal with the issue on a government-to-government basis, although ultimately the Welsh Assembly Government is answerable and accountable to the Assembly just as we are to Parliament.

Q223 Hywel Williams: Lord Richard told us that the House of Lords would not be happy at all in respect of the use of Henry VIII powers and the Orders in Council procedure. Would you use the Parliament Act in the face of opposition to the Bill in the Lords?

Mr Hain: First of all, this is a manifesto commitment, so the Salisbury Convention applies. It is a manifesto commitment in all the key principles in the Bill. I do not agree with Lord Richards and my initial inquiries suggest that assessment is not the case. I think there is a lot of support amongst peers of all parties for this process. For the reasons that the Richard Commission explained, the Welsh Assembly and the Welsh Assembly Government do need to move on from where we are now and before a referendum triggered primary powers, if and when you got to that point. I do not think these are Henry VIII powers because in the end Parliament decides to give the Assembly the measure-making capacity. Secondly - and this is a crucial point where I do not agree with Lord Richard - the Assembly will itself have a full scrutinising legislative role of a much larger kind than it has now. The concern about Henry VIII powers is giving secretaries of state Henry VIII powers to do pretty well what they like. Here you are giving the Assembly the ability to determine its own policies and exercise its own powers of duties as it sees fit. That is a legislative body, accountable ultimately to the people of Wales.

Rhodri Morgan: I endorse that very strongly. I think it is fair to say that the scrutiny procedures in the Assembly and the degree of democratic Sturm und Drang by which their weaknesses are teased out. The teasing out of weaknesses in a government proposal is extremely strong in the Assembly and I would say compares well - if "well" is the right word here - in the way it tests the validity of a government proposal with the amount of scrutiny of a Henry VIII type of procedure in this Place. That is not a criticism, of course, of the mother of parliaments, but I think it is fair to say the Assembly would put things through the ringer more closely as a democratically elected body, whereas Henry VIII powers are exercised in committee and with less real scrutiny than you would get on the floor of the House.

Q224 Mrs James: I would like to ask some questions on Stage 3 of the process. This question is specifically targeted to the Secretary of State. What further evidence of consensus would be required to trigger a "stage 3" power referendum in addition to a two-third's majority in favour in the National Assembly for Wales? why should the Secretary of State have the power of veto over a decision by the National Assembly to hold a referendum?

Mr Hain: I would not see the Secretary of State role as having a power of veto. I think any sensible secretary of state would want - and that is why this provision is going into the Bill on my watch as Secretary of State - to be sure there was a consensus in Wales, reflected in as broad a consensus in the Welsh Assembly as possible, hence the requirement for a two-third's vote. Some people have interpreted this, as it were, as a hostile act, a veto. I do not. As a passionate devolutionist and a believer in primary powers in principle, I would want to be clear that there was a majority for this. For example, let us say in the current situation, in the balance of representation in the Assembly, and the balance of power therefore, suppose that the Opposition, almost gratuitously and for embarrassment purposes, sprung by one vote - as it is capable of doing under the current arithmetic - a request for a referendum. That request in the current party configuration would be without the support of Welsh Labour. It is a leap of faith to imagine the Conservatives supporting this, but they might want to support it to abolish the Assembly - who knows?

Q225 David Davies: Do not worry on my account.

Mr Hain: But you would need to be sure that there was a broad consensus of at least the kind that existed in the 1997 referendum. Even then - as many of us around this table found to our cost, including you, Chairman - when we thought we had cross-party support excluding the Conservatives, it was a very narrow victory. When you call this referendum to trigger the primary powers you have got to have reasonable confidence that you are going to win it and, therefore, I would not see this provision as being a veto in power, it would be a bit of a reality check on being confident that the people of Wales will back you in a vote. I think that a two-thirds majority gives you that kind of confidence that is the case.

Q226 Mrs James: Leading on from that, how do you think the Bill could make adequate and sensible provision for a Stage 3 post-legislative referendum, which we know may not happen for several years? What plans are you putting in place for that process?

Mr Hain: The Bill will make provision for an Order in Council mechanism to go before Parliament at the request of the Assembly to trigger a referendum. That Order in Council will determine the question to be framed - that is not an issue addressed in the Bill - what the question is, quite properly so, because that would have to await a further decision at the appropriate time. It would make provision for that mechanism to operate, and I think that is quite right. There would also be provision for a period of consultation in line with the White Paper following the request from the Welsh Assembly Government and in turn following a vote in the Assembly for this referendum to be triggered. There would be a period of consultation by the Secretary of State just to assess the situation and then the referendum decision for Parliament would follow.

Rhodri Morgan: A referendum is not a public opinion poll. In other words you can have a public opinion poll three times a year, you cannot possibly envisage having a referendum, whether to have primary powers and a different government would come in, then you would have a referendum to take them away again, and then another referendum. That is what we call an "everendum" not a referendum! You want there to be a consensus that the time has come and you want broad agreement even to trigger the process: "Look, time to make this a big shift". To put it to the people to test it in the hope that unless something horrendous happens that settles that issue for the next 50 years, you do not want this to be treated in a public opinion poll sense, it is not taking the temperature. Quebec has had this problem for years of every couple of years they see whether they can get a referendum on Quebec's independence through the year. If they cannot get it through this year, they try it again next year. If they try it again after the Canadian Government has put taxes up, then maybe they will get it, but they do it all the time. We do not want that. We want them to determine a big constitutional issue for preference to settle matters for at least half a century until an entire generation of politicians and voters have lived, died and gone and different people are around in politics and at the voting stage as well, not as a test of opinion just for this year.

Mr Hain: I very much endorse that and I want to add one other brief point. If we lost a referendum ---

Q227 Mrs James: My next question.

Mr Hain: --- it would be disastrous for the case for primary powers which is why I am being sensibly cautious about this. We are imposing a constitutional reality check so that those of us, who favour primary powers in line with Welsh Labour's policies and other parties who have favoured primary powers, are as confident as we can be in anticipation of the people's verdict that there is wide support for it because if we lose it, it would be off the agenda for a very long time.

Rhodri Morgan: A generation.

Q228 Mrs James: You touched on repeated referenda; do you think the Bill may need provision in the event of a no vote and a repeat referendum too soon, a set amount of time or a limit to that?

Mr Hain: No, I do not think so. That is a matter for politics. It would make provision for a referendum to be triggered. According to the procedure two-thirds Assembly votes, request to the Secretary of State, and the Secretary of State passporting that request on to the floor of Parliament via an Order in Council. If the result turns out "no", everybody will have to take a deep breath and decide when they want to do this again.

Q229 Mrs Moon: We have had a number of concerns expressed to us about the extra size of the Assembly and whether or not there will be enough Members with increased legislative powers to perform effective scrutiny as well as government ministers. It is a question, first of all, for the Secretary of State: why was a decision not made to increase the number of Assembly Members or, indeed, to give the Assembly powers at some point in the future to decide on its own increase in numbers?

Rhodri Morgan: I think there is zero public support for increasing the number of MPs, councillors, MEPs, Assembly Members, any kind of elected politicians. Because elected politicians are paid, the idea of having more politicians is a very, very sensitive issue with the public so it would have to be very clearly justified. My belief, very strongly, was that by reorganising the work of the Assembly you did not spend as much time on the minutiae of certain types of secondary legislation such as the Sheep and Goat Identification Order (Wales) 2002, the Lama Trekking Order 2003! They would have less time spent on them and the bigger issue of possible Orders in Council would have more time spent on them. You do not need more Assembly Members, you simply need the existing number of Assembly Members dealing with more important issues which they do not have the ability to do now but they would have the ability to do under the provisions of the White Paper.

Mr Hain: I would just add to that, if I may, Chairman - very much endorsing what Rhodri said - and say that I did look at giving a power under the Bill to increase the numbers of Assembly Members, but it is quite complex. Obviously at the moment if there is a change in the number of Welsh MPs there would be a read-across immediately under this Bill, as it is under the Act, to the change in the number of Assembly Members because that is the way the legislation is framed. But if you provide for an ability, which is the only way you can sensibly do it, to increase the number of list members, you change the immediate political configurations and balance within the Assembly between 20 list and 40 directly elected - which in itself is quite an important decision - but you also change the party balance, potentially. Even if - and initially I was inclined to, as my officials will confirm, I will be absolutely frank, - you want to feel that you have this power and flexibility so you do not have to come back with another bit of primary legislation at some distant year in the future. If you do need to increase the number for some reason, as the Richard Commission, indeed, recommended, you get into this immediate problem and therefore it becomes a wider issue than just more people in the Bill working on it. It becomes a much wider political and constitutional matter.

Q230 David Davies: I was going to ask a couple of questions anyway, and this will fit in. First of all, I was pleased to hear you imply at least that you did not want to see more Assembly Members, until you let slip that your reason is it would change the political configuration in a way that would not suit the Labour Party, which of course raises all sorts of issues.

Mr Hain: No, not that.

Q231 David Davies: That was what you were saying.

Mr Hain: No, you are putting words into my mouth, if I may say so, David. I said that would be an issue you cannot predict. Let me finish this point. It is very important and this is an important constitutional point, it is not a partisan point. Who knows how it will turn out in the future, just because the current balance is more Labour first past the post and more Opposition in the list? I am saying that a decision to change the number has a much wider impact on the constitutional balance, the constitutional balance between constituency members and list members as well as potentially the political balance, and therefore you cannot do that lightly.

Q232 David Davies: Indeed, and the first part of that about the relationship between the constituency and list members is a perfectly valid concern, but to take into account the potential for causing the ruling party to change.

Mr Hain: I did not take that into account.

Q233 David Davies: Let me just finish, if I may say so. It was clearly in the forefront of your thinking. You raised the issue, you said it would have an impact on which party was running the Assembly, that was what you said, or you said words to that effect. That is not something which should be a consideration when you, as Secretary of State for Wales, consider changing a method of voting and a method of electioning. It is not something that should be taken into account whatsoever in my opinion. Anyway ---

Mr Hain: Not just "anyway", if I may say so, Chairman.

Chairman: Order! Order! Mr Davies, could you come to your question, please, briefly.

Q234 David Davies: Building on this, we have heard a criticism that there are not enough Assembly Members to man the committees, so if it is not your preferred solution to create more Assembly Members, would you consider either increasing the hours that are worked, or reducing the number of committees or finding some other way of ensuring that adequate scrutiny takes place?

Mr Hain: This is a matter for Rhodri. I am sorry, Chairman, I cannot allow this charge to be made. If you make a decision on numbers, you have got to be aware of the consequences of doing it. You cannot just treat it as a question of arithmetic, that was the point I was making. Actually, David, you could conceive of a situation of the next Assembly elections if the results followed this year's Westminster elections, where there are more Labour list members and there are fewer Labour constituency members, and that would be the logical read-out. A policy is not the party balance point. You cannot, as it were, close your eyes on the arithmetical point without being aware of the constitutional balance and potentially the political balance however that went.

Q235 David Davies: Under a 40:40 split it is virtually impossible for Labour to have an overall majority, even under the current electoral arrangements. It is very difficult for any one party to get an overall majority because the closer they get to it the more difficult it becomes to win those extra list seats. If you have a 40:40 split I could virtually stake my mortgage on the fact that no party ---

Mr Hain: Are you advocating more Assembly Members then? Are you advocating 20 more Assembly Members?

Q236 David Davies: No, because I say from a position of principle that even though it will probably benefit my own political party I would not want to see any further Assembly Members.

Mr Hain: So we are agreed?

David Davies: We are, yes. We have different motives but we are fully agreed on that.

Chairman: Is there a question?

Q237 David Davies: Yes. Fewer committees is something that I might suggest or longer working hours.

Rhodri Morgan: Work has to be done and how we do it is a matter for the Assembly, to be honest. Using the powers that are envisaged by the White Paper that will appear in the Bill, the Bill becomes an Act, then the election takes place and on the basis of those new powers the new Assembly, as elected, will adapt to the potential that it has to use the enhanced legislative powers. The exact question about hours and numbers of committees I think is a matter to be left to the 2007 Assembly.

Q238 Nia Griffith: If we can return to the role of Secretary of State. Obviously by creating an Executive in the Wales Assembly Government in the way the White Paper proposes, you are effectively saying that in respect of devolved issues that it is the Executive which has the powers currently vested in the Secretary of State. Therefore, I wonder, perhaps, if the Secretary of State could look into explaining the new role of the Secretary of State (a) in respect of devolved issues and (b) non-devolved, and obviously then when they interlink which I know you have touched on a bit already?

Mr Hain: In respect of devolved matters, the responsibility would be much as it is at the present time. This Bill does not change the fundamental devolution. It does not envisage any additional functions. It does not propose any additional functions to the Assembly covering a wider policy area, for example. The non-reserved, that is to say Assembly powers, and the reserved powers to Westminster remain the same. In that sense, my function would remain the same at one level. I suppose what the Secretary of State would have to be careful of is that the Assembly, in making an Order in Council request, a request for enhanced legislative competence order, would stay within its functions and not encroach on reserved matters. Hence I gave the example of a desire for social justice, an admirable policy if it spilled over into tax and benefits policy, the Secretary of State would need to spot that and resolve the matter. That is no different from now. For example, when we were negotiating over the powers for the Older People's Commissioner, the issue arose there, much as it had under the Children's Commissioner, as to what were the limits of the Assembly's powers in respect of perhaps, say, a Welsh citizen in an old person's home just across the border from Wales. You have that kind of role just to check that the respect of interests is maintained.

Q239 Mark Williams: I think the First Minister touched on this a few minute ago. Should the National Assembly have the capacity to determine its own committee structure? What role do you see for the regional committees in the future?

Rhodri Morgan: It does have the power to determine its own committee structure, save for that one point, as I recall, whereby it is obliged to have a regional committee for North Wales and other regional committees, but they are not specified. To be honest, I am unsighted and will have to write to you, Chairman, to answer the other questions in terms of the committee structure. As far as I am aware, there is no other lack of power to change the committee structure, in terms of a standing committee equivalent to consider the scrutiny of proposed Orders in Council. It is very clear that there has to be proper scrutiny in the Assembly of an Order in Council partly, as in the answer to David Davies' question earlier, because the political balance under the 40:20 first past the post list system is so delicate. There is no way you are not going to get committees vigorously scrutinising every single proposal that comes forward from whoever has formed the Executive and bringing forward Orders in Councils saying "We would like to do six this year or whatever" and me saying "Well, there will be six standing committees which will vigorously scrutinise all of those". It is inconceivable there would be any other procedure.

Mr Hain: In general, in respect of the committee structure the Bill is less prescriptive than the existing legislation. For example, it does not specify that the Assembly has to have subject committees. The only specification, I think I am right in saying, Chairman, is that it needs to have an audit committee, that would be in the Bill. Otherwise the Assembly is free to establish regional committees if it wishes or not, and establish what subject committees it wishes or other forms of committees.

Q240 Mark Williams: On the capacity of those committees to demand government ministers and Assembly ministers attendance, you would welcome that?

Rhodri Morgan: I think in the light of the Secretary of State's answer, it is not prescribing today as to whether you would have select committees and standing committees or whether, because of the small numbers, you would have merged select and standing committees. That is something we have got to consider whoever is elected as members of the 2007 committee. Are they going to be committees primarily for the purpose of looking at Orders in Council, in the way standing committees do here, or are they primarily there to scrutinise other Executive decisions or policies of the Executive or even to carry out studies off their own bat, as select committees do here as well? Assembly subject committees are much more similar to select committees at the moment because there is not enough legislative material for you to give them a kind of standing committee role, but there will be after 2007. How the Assembly copes with that need for more legislative scrutiny is a matter for the 2007 body elected.

Q241 Mr Jones: Secretary of State, I would like to turn to the White Paper proposals for electoral reforms, specifically the Government's proposals to outlaw dual candidacy. The Electoral Commission have pointed out that this would render Wales unique and said that "...if you are going to operate outside international democratic norms, then you have to have particularly compelling reasons to do so". In fact they were wrong. It would not make Wales unique because we were told by two other witnesses, Dr Wyn Jones and Dr Scully, that after extensive investigations they had discovered one system where this did apply and this was in Ukraine prior to the 2002 parliamentary elections. They pointed out this change was introduced by the same party who more recently attempted to fix the result of the presidential election and poison the main opposition candidate. Can you explain to the Committee why you consider that the most appropriate model for Wales is that of pre-Orange revolution Ukraine?

Mr Hain: It is not, and indeed the two academics are wrong because I researched this very carefully. The issue of dual candidacy is one that has proved controversial in many other jurisdictions that have introduced additional member systems, and there are not many that have. This is a fairly unusual system. For example, it was considered by New Zealand's independent commission on electoral systems and two Canadian Provinces that are planning to introduce the additional member systems and are committed to banning dual candidacy. I draw from that that in those British-type parliamentary systems, New Zealand and specifically in Canada, they are committed to doing this. The somewhat gratuitous reference to Ukraine is wrong, and I suggest the academics get better researchers in the future, similar to the ones I have got.

Q242 David Davies: I was enjoying this, Chairman. Since the Secretary of State for Wales has done a great deal of research into this himself, perhaps he could tell us in the examples cited in the two states in Canada where the voting system is being changed, is it the case that the governing party who are behind the changes are likely to benefit from the changes as the governing party behind the changes in Wales are going to benefit from those changes?

Mr Hain: These changes are recommended by an independent commission so that knocks that one on the head. The idea that this is a party-biased proposal is simply flatly wrong. There are six Labour Assembly Members, currently, including three ministers, who are in directly elected constituency seats who are vulnerable to losing those seats on swings of less than 3%. Now you could say that as a Government and Welsh Labour as the party and the author of that policy, we are effectively discriminating against at least six of our own members but we do not have the ability to give them the lifebelt of standing in both categories. If I can say this as well, Chairman, I was one of the ministers who introduced this system in the 1998 Act. I had absolutely not the faintest idea that it would be subject to the kind of systematic abuse for party advantage by Opposition parties in this instance and, secondly, abuse of taxpayers' money as evidenced by the fact that in the case of 15 of the 20 list members - 15 of the 20 list members so this is not an isolated accident - they have set up constituency offices in the target seats that their party, and in some cases they, want to contest next time, mostly in the seats that they lost last time. What they are doing there is abusing their position as list members, establishing themselves in the light of the local electorate, using taxpayers' money, quite a lot of it, to fund constituency offices and effectively campaign offices against the sitting constituency member they were defeated by in many instances. That is the abuse, that I never anticipated, as a Welsh Minister back in 1997-98 introducing this system, which we have got to stop. We propose in this Bill to do that in two ways. First of all, by banning the ability of candidates to stand in both categories, you make a choice. If it discriminates against anyone, it discriminates against Labour members as much as any other party. Secondly, you will not be able any more to call yourself the constituency member for a particular constituency if you are a list member for the region.

Q243 David Davies: I think the second point you make is far less controversial because there needs to be clarity about where people represent, and personally I have no problem with that second part. To say that people are systematically abusing the system for party political advantage is surely nonsense. People are using the system as it is. I understood the system with no constitutional background after about an afternoon of reading the White Paper, I could see people who were clearly doing this. To say the that taxpayers' money should not be used to put an office in a constituency because it gives an opposing candidate an advantage is also unfair because clearly the candidate who has won that constituency can also use taxpayers' money to set up an office in the constituency and arguably to campaign against.

Mr Hain: They are the elected member for that constituency, like you are the elected member in Westminster.

Q244 David Davies: They are the elected Member for that constituency who should submit themselves to election against a candidate from another party who does not have the advantage of having a taxpayer funded office in the constituency.

Mr Hain: I am sorry, Chairman, either as an Assembly Member or a Westminster Member you win an election or you do not.

David Davies: It is very important that the same rules apply to everybody.

Chairman: Order! Order! Mr Davis, you are taking advantage of the Chair. You must bring your conclusions to a comment. Somehow or another you must pose a question briefly, pose that question now.

David Davies: I want to make a point of order to you, Chairman. The Secretary of State for Wales was out of order to say that any political party has abused the electoral system, that is a very serious charge, when all political parties have followed the rules as far as the current system of voting is concerned.

Chairman: If you wish to raise a point of order you should have done so at that time. Please proceed and ask a question.

David Davies: I am raising a point of order with you, Chairman. My point of order is that no political party has abused the electoral system and the only abuse of the electoral system is going on by the Labour Party at the moment.

Chairman: I have heard the point of order and I am ruling it out of order.

Q245 Mr Jones: Secretary of State, to return to the point you made about never having foreseen the consequences of people setting up their own operations in the first past the post constituencies. This was a point raised again with the academics who appeared before this Committee on 18 October. Dr Scully in response to that, said this: "There has been a long tradition in countries that have mixed member systems that people who are going on the list do some element of shadowing of certain constituencies". He went on to say: "Frankly if the Government did not realise when it brought in this White Paper that it would happen, they should have done, they were negligent in not realising that". Did you never not foresee this would happen?

Mr Hain: What I never foresaw - at the danger of repeating myself - was this absolutely consistent and systematic abuse of the system, and I stand by that statement. The evidence is plain for anybody to see as an active politician in Wales. It was provided graphically in the memorandum from the Assembly Member Leanne Wood, the Plaid Cymru Member, who explained that this was the very purpose of it all, and I am happy to provide a copy of that memorandum to the Committee, if you wish. I do not agree with the academics who made that point. I think that what is quite evident - and it is interesting that Canadian Provinces have anticipated the problem on recommendation of the independent commission - is not just in Wales but in Scotland, where the former presiding office, the former Presiding Officer, Lord Steel, made it absolutely crystal clear in, again, a quote I am happy to provide the Committee with, that he saw the practice of list Members in Scotland, even though there was a code of practice in the Scottish Parliament, where there is not one in the Welsh Assembly, as just absolutely flagrant abuse of the system. I agree with him and the Arbuthnott Commission has taken quite a lot of evidence itself to that effect.

Rhodri Morgan: If I could add something to that. The key sentence which I think sums this up best comes from the independent Province of New Brunswick Commission on Legislative Democracy. It says: "The Commission is of the view that if a candidate chooses to run in a single-member constituency the voters in that constituency should determine whether that candidate is elected and that there should be no back door to the legislature." That is the key to all of this, and I think there is widespread support across all parties, and across non-political people in Wales, for that proposition.

Q246 Hywel Williams: I do not raise this for any really partisan reasons, but I hope the Secretary of State will also confirm that the judgment in the Leanne Wood case confirmed that no illegality had happened? Can the Secretary of State confirm that in respect of his earlier statements?

Mr Hain: I never said that there was any illegality in it. I said an abuse of the system was clearly laid out, a route map was laid out in that memorandum which, as I recall, Chairman, Plaid Cmyru disowned and distanced itself from, and I am not surprised given its content. There is an elementary principle here - and we all know that as people who have been elected by our constituents - we have been elected by our constituents and we are accountable to them. If they do not like us, they can get rid of us as directly elected Members. We have a protocol in the House which I think might be borne in mind that Members from outside the constituency cannot interfere in constituency matters because otherwise the whole system would break down. I fear that has not happened and I am afraid, I might have been misguided in this, we did not anticipate that that would happen when we brought the legislation in.

Chairman: Mr Jones, Mr Hywel Williams wants finally to make another supplementary.

Q247 Hywel Williams: I am concerned about something that the Secretary of State said earlier on and I wrote it down so I could be sure what he said. He said the constituency offices were being effectively used as campaign offices. Now I am very careful in my own constituency office to separate those matters which are party related from my Parliament duties and I should imagine that would be the case for every hon Member here and, also for Assembly Members. Does he have evidence for what I understand to be illegally happening in Wales and has he put that evidence before the proper authorities?

Mr Hain: I think it is significant that in the case of 15 of the 20 list Members, it just so happens by an absolutely remarkably astounding coincidence that their constituency offices are in their party's target seats, often the ones that they lost in last time and in some cases are on the record as wanting to contest again in the constituency seats next time.

Rhodri Morgan: The next time is the principle involved.

Q248 Hywel Williams: That sounds like no evidence to me.

Mr Hain: I have just given evidence.

Q249 Mr Jones: Secretary of State, in your ministerial foreword in the White Paper you say that voters are confused and concerned about the way the Assembly's electoral system and its candidates who lose first past the post still become Assembly Members representing the same area. You have just cited the Arbuthnott Commission. Is it not the case that the Arbuthnott Commission concluded that while the current voting system has "... the potential to add to existing cynicism ... current disengagement was not the result of voting systems"?

Mr Hain: I do think it encourages cynicism. It is very hard to be absolutely, as it were, scientifically certain about a particular reason for a lower turnout. I do think it encourages cynicism, indeed, and lots of people have said this to me.

Q250 Mr Jones: Do you not think these proposals are deemed to be partisan?

Mr Hain: No, I have given an example of six Labour Assembly Members who will lose out by the system because they will not have the option of a safety belt, a lifebelt, of standing in both categories. They will have to make a choice and I think they have all decided to re-stand in their constituencies, so I do not think it is partisan at all. I agree it is in the interests of Opposition parties in the Assembly to present it as partisan because it is a bit of a smokescreen for what has really been going on here.

Q251 Mr Jones: Forgive me, I would be uncharitable, would I, if I was to suggest that these proposals are nothing more than a disreputable attempt to gerrymander the system to the electoral advantage of the Labour Party?

Mr Hain: But how can you gerrymander a system when the people have the ultimate verdict here? They either decide to elect a Conservative Assembly Member in David's case or they decide to elect a different Assembly Member, that is their verdict. All I think people do not understand, as has happened in Clwyd West, as it happens, where Members lose, Members they have kicked out stop winning and then set themselves up as rival constituency Members, people do not understand that. Losers become winners by the back door.

Q252 Mr Jones: You mentioned Clwyd West and it is rapidly becoming known as the "Clwyd West question".

Mr Hain: Indeed.

Rhodri Morgan: That is because it is.

Q253 Mr Jones: Again, this was put to the Electoral Commission witnesses who appeared before this Committee a couple of weeks ago. We were told by Miss Kay Jenkins, one of the witnesses that "There is no evidence that the Clwyd West so-called problem has had any impact on voter participation".

Mr Hain: I think it is has had an impact. As I said, there are lots of different reasons for voter participation and a lot of them are quite complex, probably to do with macro and political factors. It is quite clear people do not understand how people who lost can suddenly have won, they do not understand that.

Rhodri Morgan: I think this is not the Electoral Commission's finest hour, and as regards the academics you quoted it was not their finest hour as well. We have had some poor unsupported claims made by the Electoral Commission. I accept the Electoral Commission is an independent body, but I do not think it was their finest hour in accumulating evidence. Likewise in terms of international evidence from the academics, this business about being only the Ukraine when in fact it is Ukraine, Thailand, Mexico and, to a lesser degree, Japan as well. In terms of devolved parliaments they did not look at it all, they were completely unaware of the evidence from Prince Edward Island and New Brunswick's independent commissions and I do not think that is really geared up to that.

Q254 Mrs James: I am going to talk about this confusion a little bit and then I have a particular question I want to ask about it. The public are very confused when they hear quotes like "Each regional AM has an office budget and a staff budget of some considerable size. Consideration should be given to the location of their office. Where is the best place in the region. Is this a target area". When the public hears hear comments like that they are confused, they are puzzled about why people are placing offices in various places. Lord Richards himself, when we took evidence from him, said there was a deep sense of unfairness. What are we going to do about this confusion? Do we need a code of conduct at the Assembly, regulating the relationship between the list and constituency AMs? Would this be a simpler way of engaging the problem?

Rhodri Morgan: Yes, sort of; that is one of the areas where we hope there will be a protocol in the Assembly and we hope that will be part of the Bill, to have some sort of regulation of the relationship to avoid confusion so that there is the obligation to do the same amount of constituency work in all parts of a regional list, shall we say, to make sure you cannot cherry-pick issues, to make sure you cannot use your office for partisan purposes in the way described in Leanne Wood's memoranda almost blaming her predecessor who was a constituency AM for doing too much casework and so forth. Something along the Scottish lines which does not seem to regulate, it is not the last word on these matters and you can never just take something from Scotland and put it in Wales, it is not as easy as that, but they do have a protocol, so something workable along those lines saying what you have to do and what you must not do in terms of avoiding the potential conflict and confusion for casework and representational work as an AM. I think we should be going down the Scottish road and one of the proposals is to have such a thing.

Mr Hain: Except, Chairman, if may I add to what Rhodri said in agreeing with him, when you are aware of what Sir David Steel, the former Presiding Officer of the Scottish Parliament said, where they did have a code, he said - and I think it is as well to get it on the record - "The system as operated had led to a confusing and expensive proliferation of parliamentary offices throughout the country; in at least one town there are four. They have become a thinly disguised subsidy from the taxpayer for local party machines. In my view they are a serious waste of public money". He added: "Quite the most distasteful and irritating part of my job as Presiding Officer was dealing with complaints against list Members' behaviour from a constituency, Members of the Scottish Parliament, Westminster MPs and local authorities. I could not understand at first why we had such problems until it dawned on me that what some were determined to do was misuse their position to run a permanent four-year campaign as candidate for a particular constituency". That is coming from Lord Steel, as it happens a Liberal Democrat not a Labour functionary.

Mrs James: One of the things we should be looking at is a report that has recently come out into constitutional law at the University of Wales, Swansea, looking at the work of Scottish MPs and MSPs which was published in May 2005 which says that there is a strong and extensive focus on a single constituency within a regional framework. This is something that is clearly happening in Scotland and is causing some concern.

Q255 Mr Crabb: In a previous answer the First Minister sounded like he was trying to trash the evidence provided to us by the Electoral Commission. Perhaps I can put it to you, First Minister, the Electoral Commission said to us that they are "...worried that in the run up to the elections if there are accusations about partisanship, which we think is very likely, that could have an adverse impact on voter participation at the next election". Do you regard that claim as poor and unsupported?

Rhodri Morgan: I cannot see how it would work in that way because, as I think I said earlier and Peter has said as well, there is a wide range of cross-party support for this separating out of people who are standing on the list and who are standing in the single-member constituency, including your own predecessor, Lord Crickhowell, not your own predecessor but three ---

Q256 Mr Crabb: Different seat.

Rhodri Morgan: --- four, whatever, up to 1987, who said the present arrangements are unsupportable. Lord Carlile said the same thing and David Steel from his own particular perspective as first Speaker of the Scottish Parliament. I think people see this as clarifying in the first place how you stand and having clarified how you stand then clarifying the roles. I think that is for everybody's benefit. Sometimes we even have difficulties between Members of Parliament and Assembly Members, not in David's case because he is both, but in other circumstances you can get "That is a case for me, now it is a case for you". Sometimes you want to pass all the cases over, particularly the difficult ones. Sometimes you want to grab all the cases because you think that might be good for your reputation. That is between MPs and AMs without any complication from the list. It is very important to have the clearest possible view, at the point of election and after election, when it comes to the question of to whom do you go for somebody to help you when you have a difficulty with Executive decisions.

Q257 Mr Crabb: I would like the Secretary of State to comment as well. You do not think it is irresponsible in a way for the Government to press ahead - ignoring the Electoral Commission's concerns - with a measure which many people will regard as self-interested?

Rhodri Morgan: How can it be self-interested when it is supported by your predecessor, a former Conservative secretary of state; by Alex Carlile, a former Liberal Democrat MP; by Lord David Steel, a former Liberal Democrat leader and then Speaker of the Scottish Parliament. Other Members from the Conservative Party who I will not quote here because that would not be fair, I have not asked their permission, very prominent, have said the present arrangements are unsupportable.

Q258 Mr Crabb: I am asking about the evidence the Electoral Commission has given this inquiry.

Mr Hain: I am happy to respond directly to that. I think the Electoral Commission plays a very valuable role but it can get things wrong, and I think it has got this wrong. Some of the evidence that it gave to this Committee and elsewhere is almost politically unworldly, and does not really take account of what is going on on the ground. I think the Electoral Commission should continue to perform its important role but take account of political reality from time to time; in this instance clearly it has not.

Q259 Mr Jones: Do you not think it is important to gain a consensus over electoral reform so that this charge of partisanship can be properly refuted?

Rhodri Morgan: I cannot see how anybody can make a charge of partisanship in the light of the support that has been given to this clarification of the roles of list and constituency MPs by a former Conservative Secretary of State, by a former very senior Liberal Democrat MP, by a former Liberal Democrat Leader and Scottish Parliament Speaker. It is absolutely clear that there is widespread support from senior figures from across all departments which shoots down your charge of partisanship.

Mr Hain: And I think by, if I am not wrong, Preseli Pembrokeshire Conservative Association which has also criticised this policy. Is that not right?

Mr Crabb: I think they favour abolition.

Q260 Mr Jones: There is clearly no consensus. Respected commentators think it is partisan and frankly you do not care.

Rhodri Morgan: There is no consensus for the present system.

Q261 Mr Jones: There is no consensus for the proposal.

Mr Hain: I am sorry, to put it in that provocative way I think is unacceptable. We fought a General Election on a particular manifesto which explicitly had this provision in for banning candidates from having the best of both worlds and standing in both listed constituency sections. We won that election, and we have a mandate from the people, and that is why this Bill will take that mandate through.

Q262 Hywel Williams: We have heard of alternative ways of vesting these problems, for example a single national list or perhaps a candidate standing in a constituency in one region and standing on a list in another region, or alternatively all candidates being required to stand on both the list and in the constituency, as I understand the proposal in Quebec. Have you given consideration to those alternatives and why do you think that your preferred solution is superior?

Mr Hain: We have looked at the whole electoral system, both when considering the policies as a Government and also in drawing up the Bill. In a variety of different electoral systems on offer, the one proposed by the Richard Commission a single transferable vote system, which is another difference in that this Bill is not proposing that, multi-member constituencies, increasing the number of members and different alternative arrangements, we thought we would have a system with all its imperfections. If you took a partisan Welsh Labour view today you would probably have an entirely different electoral system but that would involve departing from a settlement endorsed in 1997 and it is very difficult to justify doing that.

Rhodri Morgan: Keeping the number of changes to the minimum necessary I think was a big driving force in this. It is a small change which solves a substantial problem. The national list has got a huge objection to it and unless you set quite a high threshold, obviously as in Germany, where we and the Americans wrote the constitution for them back in the post-war ruins of Hitler's Germany - and that has stood the test of time although it is going through a pretty testing moment at the present time - where you have to have 5% support in order to prevent a new Nazi party coming into being on the back of getting a minimum of 5%, a national list would tend to lead to a proliferation of minor parties getting in which is not in the interests of workability of the Assembly elections. You could set a threshold and have a national list, but then you are into all sorts of other problems: how do you decide what the threshold ought to be?

Mr Hain: On this point, Chairman, we did some modelling on the 1999 and 2003 Assembly elections, and the Committee may want to have a look at what it showed. Basically it does not alter the fundamental balance in terms of the list system between the parties. In the case of the 2003 Assembly elections if you had no threshold, Labour would be the same; Conservatives would lose one seat to UKIP; Plaid Cmyru would lose one seat to the Liberal Democrats and one seat to the Greens. In the 1999 Assembly elections, Labour would have lost under the national list one seat to the Greens, other parties would have remained the same. In the 2003 Assembly elections with a 5% threshold, you get basically a seat switch of one seat between Plaid Cmyru and the Liberal Democrats, the Liberals gaining. In the 1999 Assembly elections with a 5% threshold Labour loses one seat, Liberal Democrats gain one seat, the other parties remain the same. It does not change the overall party balance at least on those two elections, but there are other important disadvantages, I think.

Q263 Hywel Williams: I do not want to go down the road of discussing the alleged partisan nature of this, but are you confident you will be able to persuade the Welsh public, who certainly I want to be supporters for changes, and that they will not see the proposals as being in some way partisan, whether they are or not?

Mr Hain: I am because there have been lots of complaints to me from individuals across Wales about this system where losers become winners. People do not understand.

Q264 David Davies: You have spent quite a lot of time, obviously, looking at what political results you will end up with under different electoral systems. Why was this necessary if it was not a consideration in deciding what electoral system to use?

Mr Hain: Simply because if there was some big benefit from it, if you wanted to go to a national list system as opposed to a regional list system, the votes being accumulated in a different way, you want to know the consequences of doing that or what is the case for it. I do not know the case for it except if you are a small party and you want a fragmentation of representation in the Assembly, and more difficulty forming a government as a result, then maybe that would be a motive. The way I would go into it, Chairman, is with my eyes wide open, you would like to know the consequences, and this was a bit of research I had done to check that out. Nobody has made a strong case for going to a national list system in any event, but it is of interest.

Rhodri Morgan: I think it would be fairly badly perceived in North Wales if you did not have a North Wales region and you had an all-Wales region.

Q265 Mark Williams: From the competing mandates that we have heard about, would that not have been alleviated by having a closer analysis of the single transferable vote system to retain that important regional dimension plus a constituency element as well? It was, as you say, suggested by Lord Richard and it seems to have been dismissed out of hand very abruptly in the White Paper.

Mr Hain: We did not dismiss it out of hand, we do not dismiss anything out of hand abruptly or non-abruptly. For the reason I explained earlier this was an electoral system endorsed in 1997 and I think it needs a powerful argument to depart from it. I do not think the people in Wales would understand losing their ability to dismiss Assembly Members that they did not want to re-elect in the individual constituencies. Once you move to a single transferable system you lose the individual relationship between the constituency and the elected member, that is what you do. It may produce a more proportional result but it breaks that link which I think is a terribly important feature of parliamentary democracy and, as it happens, of the emerging Assembly democracy of being able to vote in or vote out the Assembly Member or the party as you choose. You would lose that under a multi-member STV system.

Q266 Mark Williams: Can I just place on the record the logical link after lots of quotes from David Steel and Alex Carlile. The next logical step from what they have said about the competing mandates, region versus constituency, was a uniform system of a single transferable vote across Wales?

Rhodri Morgan: That means, in being give a choice between a good clear system of representation and a bad one with a bit of confusion, you completely go for 100% confusion instead of 100% clarity. There would be no clarity about who you should go to. Presuming you would have therefore multi-party representation in all areas, the salutary experience of having Conservative supporters going to take their constituency cases to Labour AMs or MPs, in my own past history, and Labour supporters going to Conservative AMs would be completely lost. I think that would be quite unhealthy really. I know that it works extremely well in Ireland and I do not want to take anything away from an extremely successful Irish political history over the last 75 years, but I have exactly the same opposition to it as Peter does that you break the constituency thing.

Q267 Chairman: May I thank you both for your evidence and thank you, also, for your memorandum. Secretary of State, you mentioned other documentation; we would be very pleased to receive whatever else you wish to give us. As I said at the beginning, we have submitted some written questions to you and I hope you will be able to respond fairly soon to us.

Mr Hain: Chairman, I am very grateful and I have enjoyed the experience of being grilled by the Committee. May I say I would be very grateful, especially, if the Committee was inclined to look at the pre-scrutiny of Orders in Council because I do think there is an interest, if not a demand, from members of the House of Commons, given that in some respects this is a more compressed process of legislation, to look at pre-scrutiny. It may be this Committee, which has performed a valuable pre-legislative scrutiny role in the past, could look at its role extending to Orders in Council in the future very well, and perhaps working with the relevant Assembly Committee as this Committee has done in the past on Welsh primary legislation so the same role could be applied to the Orders in Council with great benefit.

Rhodri Morgan: May I add a final word, just simply to thank you for your courtesy today and to say it is very nice to be back, but now I know what it is like to be on this side rather than where you are sitting on your side. Thank you very much for your courtesy. I think there are a couple of points which we will pick up in writing also.

Chairman: Thank you both for your observations. We will take those matters seriously certainly. Can I thank my Committee for their robust questioning and I look forward to the next session. It has been suggested that the Welsh Affairs Committee perhaps is not as lively as other committees. I think this session has been very, very lively and at least we have a consensus on that.