Wales and Whitehall - Welsh Affairs Committee Contents


Examination of Witness (Questions 57-111)

RT HON RHODRI MORGAN, AM

11 JANUARY 2010

  Q57  Chairman: Good morning. Welcome to the Welsh Affairs Committee for this particular evidence session on Wales and Whitehall. For the record, could you please introduce yourself, Rhodri?

  Rhodri Morgan: (In Welsh: no interpretation): I think this is an absolutely fascinating subject you have chosen. What I am not quite sure about is how you are going to give marks out of ten for the quality of consultation and co-operation between Whitehall and Westminster on the one side and the Civil Service and the political world of the Assembly Government, of the Assembly and the wider legislative body down here. Let me make just one very brief opening remark at your inquiry. That is, looking back over the past ten years you may want to look at some of the official formalities of the Joint Ministerial Committee and the Memorandum of Understanding, but really I do not think the JMC and the Memorandum of Understanding and Concordats are the key thing. The key thing is whether a relationship is warm or cold, and that is what is so hard to measure. It is a matter of attitude rather than the formality of the machinery, and that is quite difficult to get at. The political perspective, the ministerial perspective, may well be quite different from the Civil Service perspective, and that is why I was very interested to pick up on the memorandum that Sir Jon Shortridge has given to you, and also his answers to some of your questions. I was hearing him refer from time to time to the fact that my perspective might well be different from his on political matters, and I think this is the difficulty. I do not think Sir Jon can talk with all that much authority on inter-ministerial relationships at the political level any more than I can really talk with any great authority from my past experience about Civil Service relationships. I think that is difficult. The key thing is that the benefits of devolution as we saw them were that we could evolve different policies, which were then part of the four living laboratories that would be available within the United Kingdom, for different solutions to different problems. That to us is a good thing because in the USA you have 50 living laboratories, and we have got four living laboratories in the United Kingdom. On the other hand, as well as the advantage of the different policies that are available and that have been generated through Scotland, Wales and Northern Ireland, having the ability now through their democratic machinery and their Civil Service to generate different policies, that is a good thing because then each person, each different dispensation, can copy or follow another dispensation, and you do not have to re-invent the wheel. On the other hand, you have also got the issue that it can be seen as a threat as well as a challenge to the authority of the United Kingdom Government; and then you get a negative effect.

  Q58  Chairman: Rhodri, you have anticipated most of the questions I was about to ask you; but could I ask you to pause for a moment and reflect on what you have just said! Basically, you are saying that in terms of inter-government relations, the fact that they are non-binding and non-statutory is not of as great importance as what I would describe and characterise as a culture change that is necessary as a consequence of what you have characterised as the four living laboratories. That is essentially what you are saying.

  Rhodri Morgan: Yes.

  Q59  Chairman: There is a culture shift that needs to take place.

  Rhodri Morgan: Yes.

  Q60  Chairman: Reflecting on your time, how do you measure that over the last ten years? Have you achieved much in getting that culture shift in the light of what Sir Jon said in terms of the difficulty in Whitehall understanding what we mean by devolution?

  Rhodri Morgan: We were never sure. If there was a negative reaction in Whitehall to something that we were doing, or wanted to do, it was quite difficult for us to guess where the problem lay. In other words, was the problem rogue behaviour by middle-ranking civil servants who had a bit of a thing against devolution because they thought it was a threat to the English regions or something like that; or had they had ministerial instructions to be pretty obstreperous or suspicious of Welsh initiatives or Welsh wishes? It is quite hard. How are we supposed to know whether it is a matter for Sir Jon to take up with the Permanent Secretary in Whitehall and say, "Hey, haul off that person there who is blocking something or other on this initiative because surely this has not got ministerial backing"; or should they call a particular minister in, or worst of all call me in if I was First Minister, and ring the Prime Minister or possibly Jack Straw or whoever is in charge of inter-governmental relations, saying, "We have a problem in the relationship between one of our departments and one of your departments and we do not know whether it is political or it is in the Civil Service or how high up the Civil Service, or if it is rogue behaviour at a middle-ranking level."

  Q61  Chairman: In the light of that, you started off by saying that these ad hoc arrangements would suffice as long as we have a culture shift but, that said, given that there are still problems, is it surprising that the Memorandum of Understanding has not been altered since 1999 to take account of that?

  Rhodri Morgan: No. To be honest, it is a very British way of doing things to try to operate in an informal capacity. We do not have a written constitution. We do not have a constitutional court that rules on disputes. The Privy Council does a little bit of it more recently, and the ONS has been prayed in aid to act as a body responsible now to Parliament and not to Government and to rule on figures; but by and large Westminster wishes to adhere, and will do for a long time I believe, to the idea that if you are elected and you have a majority you are basically in charge for the next four or five years. The elected dictatorship idea—and therefore a government, provided it has a majority in Parliament—does not want to submit to anybody else for ruling on whether a devolved body is right or whether they are right on a definition of something where there is a financial resource issue or whether it is a "who should do what" issue. I think the only way round that is to establish what is called a good broad working relationship and try to take the heat out of issues as best as you can; or you make an entire shift to the kind of constitution that we wrote for the Germans in the immediate post-war period, and we wrote it all down very, very formally for them because it was seen as part of the de-Nazification. We do not need de-Nazification in the United Kingdom; we have muddled through very well since the 1688 Bill of Rights, and long may we continue to do so; but I do not rule out, however, having a written constitution at some stage. I think you either have informal methods or you have formal methods. If you have informal methods, as we do, then—I am not saying it does not matter a damn about the Memorandum of Understanding—that is not a key to warm or difficult relationships. The warm or difficult relationships mean a culture change at ministerial and Civil Service level.

  Q62  Chairman: It sounds a little bit like what we would call in Welsh cael gair bach [having a little word].

  Rhodri Morgan: Yes, indeed.

  Q63  Chairman: And reflecting on the great Glanville Williams in his descriptions of the Tudor Court.

  Rhodri Morgan: Yes, cael bach yn y set fawr—after the service is over, yes.

  Q64  Mr David Jones: The plenary session of the Joint Ministerial Committee did not meet for about six or seven years. What effect, if any, did it have on relations between Cardiff and Whitehall?

  Rhodri Morgan: Not very much. I do not think it either hindered relationships nor did it mean that everybody was getting on with the job. You had probably the same amount of success or difficulty over misunderstandings or disagreements over policies whether you did have a formal meeting of the JMC or not. It has now come back into action. We had a meeting in the bowels of the House of Commons three or four months ago. The Prime Minister and Jack Straw chaired it. The Prime Minister attended for about half of it. I thought that was a good thing because you now have an SNP administration in Scotland, and I thought it helped to warm up again relationships which had got pretty frosty, particularly between the Scottish administration and the Westminster and Whitehall Government. I do not think the absence of a formal JMC would make that much difference.

  Q65  Mr David Jones: Would you think that a potential change of government at Westminster would make the continuation of plenary sessions all the more important, or again would you think it would make little difference?

  Rhodri Morgan: I always envisaged at the start of my period in charge down here that you wanted the devolution settlement to be robust to cope both ways, with a change of leadership down here and a continuing Labour Government in Westminster, or the other way round. I hoped it would not happen during my tenure but, on the other hand, we did have to have a robust enough system to be able to cope with it. There is no point in having a devolution system that could not cope with cohabitation, to use the French expression. Obviously, Scotland has had it; we have not. We have had a coalition obviously for half of the last ten years, but we have not had a non-Labour or non-Labour-led administration; we have not had a non-Labour government in Westminster, but we have now got that for Scotland so that probably was a good reason for reinstituting the JMC machinery. My memory of the JMC plenary is that we made a huge fuss about it in the first couple of years. The Prime Minister always attended. Then Robin Cook or John Prescott chaired it and then it stopped meeting altogether. In a way that was a sign that things in devolution terms were going fairly well, and therefore it did not need this formal machinery; but in the first couple of years it was a very good thing to have these rotating meetings in Scotland and Wales. At that time the Northern Ireland settlement was in abeyance so it never did meet in Belfast; but having the meetings here and in Scotland, with the Prime Minister chairing them, probably was a good kick-off for devolution. In a way the downgrading then of the Prime Minister's attendance to Robin Cook's attendance or John Prescott's attendance was taken as a sign, "Things are going fairly well; we do not really need the Prime Minister to be devoting his time to this question".

  Q66  Mr David Jones: You have touched on this briefly already, but if during your time as First Minister you or any of your ministers had any policy or legislative concerns, practically would you approach the Wales Office or the relevant minister in Whitehall; or would you approach possibly the Ministry of Justice? What were the practical ways that you could deal with it?

  Rhodri Morgan: I do not think we ever approached the Ministry of Justice. My civil servants may have done. It would be jointly: you would not approach the individual ministry without mentioning it to the Wales Office; but certainly you would not rely usually on the Wales Office alone; you have to get to the source of the problem, and the source of the problem usually in a particular ministry. Therefore, you would approach the particular ministry and usually pray in aid the Wales Office at ministerial or Civil Service level to give you a hand as well to find out where the source of the problem is and see if it is a really difficult issue or not.

  Q67  Mr David Jones: You had the advantage as an Assembly Member and as First Minister of, previously having been both a civil servant and a Member of Parliament, so you would have had the opportunity of building up networks and contacts which, as you have already said, are extremely important in oiling the machinery of relations. We are now moving to an era where senior Welsh ministers, including the First Minister, have no experience of Westminster at all. Do you think that will be a disadvantage and, if so, what could be done to improve relations between Welsh ministers and Whitehall?

  Rhodri Morgan: My civil service experience really was only minimally relevant because I stopped being a civil servant in 1972, so that is a long time ago, although it did teach me this lesson about the different ways in which Scottish and Welsh interests are regarded and the way in which Scottish civil servants appear to me to be aiming to be promoted because they have given Whitehall a bloody nose, whereas Welsh Office civil servants aim to get promoted on the basis that they have not caused any upset in Whitehall. I think that is probably still true today. It taught me that, but that is a long, long time ago. In terms of my departure, what has happened was always going to happen, as it did in Scotland much earlier after the resignation of Henry McLeish. I do not know whether there are a few MPs left, but they are certainly not in senior governmental positions. Alex Salmond is an MP; sorry, on the Labour side. After Jack McConnell came in, although there were ex-MPs around, they were not in senior ministerial positions. It is going to happen. I think it was useful that 10% of the Assembly were ex-MPs or were MPs when we started off ten and a half years ago; but it was always going to happen that there would be a growing-away from that. That was a transitional phase, and now that that phase is over I do not think it is going to be a problem. Lack of experience can also be assumed to mean that you are a captured agency as well. You could equally be open to that accusation; so in a way eventually you know that it is going to be Assembly Government ministers who have not really been part of the culture of the hallowed halls of Westminster. We knew that was going to happen, and now it has happened.

  Q68  Hywel Williams: We have had evidence from a couple of voluntary organisations about what they see as a patchy awareness of devolution in Whitehall. One of them said, for example, that at a consultation event held here in Cardiff the civil servants had not taken devolution into account and would not answer the questions relating to devolution. Do you think there is a lack of awareness of devolution in Whitehall, or perhaps even a lack of interest; and, if so, what problems does that provide for the administration here?

  Rhodri Morgan: I do not think that ever caused us a problem. I noted that point in Sir Jon's memorandum. Lack of awareness is something you can deal with; that is simply a matter of filling in the information gap in Whitehall or Westminster. It is negative awareness that you do not want; in other words, where somebody is watching you like a hawk to try and prevent a development happening that they see as inconvenient for Whitehall or Westminster. Whether that is civil servants doing it off their own bat, or whether it is civil servants doing it with ministerial authority, or whether it is ministers actually saying, "They have had their Assembly now; that is their lot, they are not having anything else", that kind of attitude, which we did perceive in one or two departments back in 1999, it is the avoidance of negative awareness that to me has always been the key issue. If it is there, what do you do to solve it?

  Q69  Hywel Williams: Years ago, when Gareth Edwards started to play for Wales, I recall a BBC commentator saying, "This man will be a bloody nuisance for years."

  Rhodri Morgan: An English commentary.

  Q70  Hywel Williams: Precisely! Is there a case for the administration here being—

  Rhodri Morgan: I do not remember anything about Gareth Edwards. Will Carling said about Jonah Lomu: "The sooner that man is packed off to Rugby League the better."

  Q71  Hywel Williams: I was just thinking of the case of him being more of a "bloody nuisance", you were talking about negative awareness.

  Rhodri Morgan: This is looking at cultural questions. You see, Scotland has always been accepted as not a foreign country but another country; and, therefore, if they do something different from what happens in England, it is not a problem because there is no read-across between Scotland and England. The problem about Wales is that it is not seen as another country; it is seen as, if you like, the last colony in the Empire problem, because people still have a perception of an England and a Wales set-up. Of course that is not really compatible with devolution 100%, so this is the difficulty, since they see there is read-across from Wales but no read-across from Scotland. If Scotland does something different; the Scots have always done something different. If Wales does something different, then people will point the finger and say that people will use this to say: "You should be doing in England what they are in Wales", whether it is the foundation phase, the Baccalaureate or free prescriptions or whatever. If Scotland did that, they would not worry about it because Scotland is perceived as another country. If you have devolution and you do not want devolution to be a talking shop and you want it to be doing something, not just talking about things, then inevitably from time to time Wales will come up with a policy that is different from England, or England will make a shift in policy that Wales does not follow, which has probably been more common over the last ten years. The problem is the read-across because people still have an "England and Wales" psychology. Sometimes it is an England and Wales policy on policing and law and order, but in other areas not. The psychology is still there of being worried about the read-across to England or finger-pointing by people in England who do not agree with the policy in England and say, "They have done it in Wales, why can't you do it in England?" which they do not say about Scotland. That is the problem really, and that is not fully compatible with devolution.

  Q72  Alun Michael: It is just a matter of attitude, though, in the sense that the geography is quite different. In relation to Scotland and the northern parts of England, there is a narrow border, and cross-border issues arise perhaps in places like Berwick but not really to any large proportion of either the Scottish or the English population. However, we have a long border where, as a Gog myself, I can say my family lived abroad for three generations in Birkenhead but had not left North Wales in terms of attitude and understanding. You remember that that sort of issue came up when we discussed health, when you were before us not so long ago.

  Rhodri Morgan: Yes.

  Q73  Alun Michael: This Committee has been looking at cross-border issues specifically because there are communities on either side of the border or sometimes straddling the border. Is it just a question of Whitehall attitudes and differences of perception? Are there not some real issues about the way in which we make the border a positive attribute rather than a negative one?

  Rhodri Morgan: Absolutely. There is every reason for us learning good practice, successful initiatives, in England and importing them shamelessly into Wales, as there is for either English regions, or England as a whole, by way of the United Kingdom Government importing shamelessly ideas in Wales, or letting them run for a bit to see if they are successful. With the foundation phase, nobody can say that that is a success already—it has only been rolled out for sixteen months—so let it roll for a while and then see if you want to do it in England. Shameless copying seems to me to be part of this advantage of having the four living laboratories. Let me take another example of the BSE epidemic. It was of enormous value that we had four separate dispensations in crisis management in BSE when the BSE epidemic was believed by United Kingdom Government scientists to have transmitted itself to sheep, to have made the big jump that everybody had feared from cows to sheep, and BSE had become TSE. But it was our ability to challenge that which detected the fact that the alleged sheep brain stored in a laboratory in Edinburgh was, in fact, a cow brain mislabelled as a sheep brain. We do not know what the incalculable consequences would have been had there not been devolution around at that time, insisting, "I want that re-tested. My minister will not let me back over the border into Wales if I do not get that alleged sheep brain re-tested." They did re-test it and found it had been a cow brain all along with the wrong label on it. That could have had incalculable consequences if people had believed in the end that BSE had jumped to become TSE because you could have had to wipe out the entire sheep flock of the United Kingdom, if not Europe as a whole, and start off again with clean stock from Australia. Luckily, because it was not one dispensation we had in the United Kingdom but four, one of which insisted on the sheep brain being re-tested to see if it really was one, unfortunately finding out it was a wrongly-labelled cow brain, which meant obviously that BSE had not jumped. That is an example of the benefits of having different ministerial responsibilities, different administrations, all of which have the right to say certain things of that kind in terms of dealing with a crisis.

  Q74  Mrs James: Turning to the role of the Wales Office, you mentioned earlier one take on the relationship, but do you think the Wales Office continues to have a role to play in the devolution settlement, or does the existence of a Wales Office hamper efforts to deal directly with government departments?

  Rhodri Morgan: The Wales Office has a far greater role than the Scotland Office because it has a role in legislation. The broad roles of the Scotland Office and the Wales Office have been the Government's voice in Wales and Scotland; and Wales's and Scotland's voices in the Cabinet are comparable, similar. On the other hand, in terms of the legislative function of the Wales Office, that is a function that is unique to it and does not exist for Northern Ireland or the Scotland Office. So it does have a specific issue, which would have to be replaced if you took away the Wales Office; somebody else would have to do that job as regards LCOs. What the consequences of that are on the broader issue of whether the Wales Office has got a long-term future as a full-time Cabinet job or as a solo Cabinet job, not shared with other roles, I do not know. It is for others to judge.

  Q75  Mrs James: Do you think the Wales Office is taking the lead in ensuring that the Civil Service in Whitehall has a greater awareness of the devolution settlement?

  Rhodri Morgan: It is one of their absolutely key jobs, but they cannot do it if our civil servants and our ministers do not have direct access to the actual function or the department where the problem may be lying. In other words, you cannot say, "The Wales Office will do this all for you", because otherwise the only awareness that Whitehall departments have of what is going on in Wales is the Wales Office's awareness of it, and really you have to use the Wales Office as a channel, but you also have to have direct access to the Department for Transport or the Department of the Environment, Food and Rural Affairs, or whatever it might be. You have to use both. You cannot have a monopoly on communications between us and Whitehall and Westminster being via the Wales Office, that will not work.

  Q76  Mrs James: It cannot act as a filter. It is very important that if we are to grow devolution and we are to get that maturity that there has to be that interaction, does there not? The Wales Office cannot act as a filter.

  Rhodri Morgan: Not as a filter, no, not as a blocking filter; but as an enhancement of the relationship, because they are Whitehall but they are Wales. Therefore, they can put a Welsh perspective on it and get to the source of the problem and say, "That is the person you need to see"; or "That is a political problem; you are not going to get that because the minister is not going to let you have it"; or "It is the civil servants acting off the wall here, so therefore just get hold of the minister and tell their civil servants to back off".

  Q77  Alun Michael: Can we look now at the way Whitehall engages with its own responsibilities with regard to devolution at a strategic level? It has been suggested that the Ministry of Justice should have a clearly recognised and developed holistic role in constitutional issues in relation to devolution right across the UK. Do you agree?

  Rhodri Morgan: I do not think it matters all that much really because in a way the Prime Minister has got a primus inter pares role on the broad shape of the British constitution. If there was a decision to go for a written constitution at some stage, that clearly would not be a matter for the Ministry of Justice. They would probably have to execute it, but it is Cabinet Office ministers. I do not think you can say the Ministry of Justice has some huge over-arching obligatory role that could not be done by anybody else.

  Q78  Alun Michael: It does include the old Department of Constitutional Affairs, which is why, I suppose, we start off being pointed in that direction; they have a director-general with specific devolution responsibilities.

  Rhodri Morgan: I was just going to say that you have a choice in a way. If you did say at some point that you cannot have a Wales Office, a Scotland Office and a Northern Ireland Office as full-time jobs in Cabinet, then you have two choices: whether you have a Secretary of State for constitutional affairs who is Wales, Scotland, Northern Ireland and maybe English regions as well in the future, or you have part-time Secretaries of State from Wales, Scotland and Northern Ireland. There is always going to be a difficulty because the mainstream parties do not stand there, but you will have at least in Wales and Scotland a part-time Secretary of State, as we did for three years between 2004 and 2007 whenever it was that Peter Hain and Jim Murphy went back to being full-time Secretaries of State in Gordon Brown's cabinet.

  Q79  Alun Michael: Jon Shortridge emphasised that his experience may be a bit out of date, but he suggested there is a shift to a greater role for the Cabinet Office; and neither he nor you appear to have seen the Justice Department as being crucial in the relationships you referred to as being important. Does that argue for a building-up of the role of the Cabinet Office, do you think?

  Rhodri Morgan: The Cabinet Office is always going to have a critical role because they are responsible for being at the centre of Government for the smooth functioning of all Government machinery, not the constitution but the smooth functioning of inter-departmental co-ordination, inter-administration co-ordination. If there is something wrong, the Cabinet Office is supposed to put it right and make sure the wheels are oiled. They will always have a role. Between the Prime Minister, the Cabinet Office and the Ministry of Justice there are three responsibilities here, so big changes in the constitution are inevitable. For example, moving to a written constitution would inevitably be a matter for the Prime Minister. Oiling the wheels of Government is the Cabinet Office and the constitution, strictly speaking, is the Ministry of Justice. It is not for me. I cannot get into the nitty-gritty of who should carry that responsibility; it would all depend on what the particular issue was at some point in the future, would it not?

  Q80  Alun Michael: I suppose so, but after a period of years as First Minister it is interesting that you do not seem to have a very strong view about where the lead should lie, and rather indicate that it is in a kind of Bermuda Triangle between the Department of Justice, the Cabinet Office and Number 10. Would that be a reasonable characterisation?

  Rhodri Morgan: Yes. We do not want to be the hypotenuse in a Bermuda Triangle, definitely. It is perfectly appropriate if you have JMCs or the plenary session of the JMC should be chaired by the Secretary of State for Justice and the Lord Chancellor, Jack Straw. I think that is right and proper. It is a problem-solving body, not a disputes arbitration body. Initially the Prime Minister attended all and then did not attend any. He did attend for part of the last meeting to show that the Prime Minister is interested in making sure that relations with Wales, Scotland and Northern Ireland are as good as they can be. I am not trying to say that the Department of Justice is not working or not doing its job; I think it is doing its job, but they are not going to take over the Cabinet Office function for oiling the wheels of inter-departmental or inter-administration machinery. They have to have that role.

  Q81  Alun Michael: You mentioned a moment ago the English regions, and the likelihood of responsibility for English regions and the responsibility linked to the devolved administrations being in the same place. Going back to your reference to living laboratories earlier, we do have a living laboratory in London, as was pointed out by the Justice Select Committee. It has got a far greater population than Wales, and a lot of resources; indeed greater than Scotland. As First Minister, did you regularly study what was happening in the living laboratory of the London Government in order to—

  Rhodri Morgan: The Livingston laboratory!

  Q82  Alun Michael: —inform thoughts in Wales? Did you borrow things from there?

  Rhodri Morgan: No, I do not think we did. I have given evidence to a session of the Greater London Assembly. Links with the Mayor's Office have been very, very thin indeed. It is quite difficult for us to work out, vast though London is in comparison with the Welsh population, and far bigger than Scotland's population as well—but should we be seeing it as another form of devolution or should we be seeing it as simply a ginormous unit of local government? I am not sure. Clearly, we do not have the option of a directly-elected First Minister; that is seen as a local government option. Ceredigion voted against it in the same way that London voted on it and voted for it, and any local government unit in the United Kingdom so far as I know can opt to have an elected mayor like London. They would have to have a scrutiny committee of some sort. It is so big, bigger than Wales or Scotland, but it is still given a structure more like local government, so it is a bit like "neither fish nor fowl" from which we have not really sought to borrow, and they have no legislative functions at all so cannot pass bye-laws.

  Q83  Alun Michael: I cannot resist asking whether you think it would make the UK more interesting if we had another eight or nine living laboratories in the English regions!

  Rhodri Morgan: Undoubtedly. To a very modest extent, it was a terrible shame that the north-east of England crashed in the way that it did, as Wales did in 1979, and it would have been great to have the north-east. Then maybe if they had voted for it, perhaps Yorkshire and Humberside would have said, "If they are having one, we would like to have one as well"; we do not know what would have happened. One way or another, they did not come close, in exactly the same way as we did not come close back in 1979.

  Q84  Chairman: I would like to follow up with a supplementary in relation to the performance of the Ministry of Justice. You seem to me a little coy about choosing between the Cabinet Office and the Ministry of Justice. This Committee is quite unequivocal in its criticism of the Ministry of Justice's failure of the devolution test over the Legal Services Commission, and there is almost a conflict of interest really that they decided against Wales on that matter, although the jury is still out. What are your observations on all of that?

  Rhodri Morgan: That is a different issue really because that is non-constitutional; that is in their operation function in terms of running the legal aid system, that they took no account of the potential that a Wales office would have, or that a substantial presence in Wales would have. They did not take account of the fact that if you are going to have fewer regional offices, then you can run an area of England from Wales much more easily than you can run Wales from an area of England, where they will have no idea about any distinct features of Wales. Obviously, if you run it from Wales, they can very easily pick up on what is happening in mainstream England. They just did not understand that until a huge hoo-hah had to be created to help them understand that, which caused a partial reversal of the original decision. That is in respect of their operational function; but I do not think there is read-across between that and what the split between them and the Cabinet Office ought to be on constitutional coordination.

  Q85  Mr David Jones: Returning to the practicalities of Government, as First Minister, how were you able to ensure that Welsh interests were taken fully into account in Parliament's legislative programme, for example in relation to the inclusion of framework powers in Bills?

  Rhodri Morgan: We would be given an early sight or an early warning—which probably in terms of civil servants was an early sight—whether ministers were given an early sight of what the department was bidding for. Each year, very early in the year, possibly February or March, for the following November's Queen's Speech, departments are starting to trawl through their wish-lists of ideas. Two-thirds of those are not going to make it into the Queen's Speech. There are usually about 75 bids and about 25 Bills appear in the Queen's Speech. It was quite a mish-mash in terms of departments at the stage where they have still got 75 ideas coming forward, although they know two-thirds of those are not going to get there. Our civil servants would have an awareness of what was in those 75 likely bids, and they would tell us, as ministers, if they could see some potential. You were very reliant on civil servants and their intelligence mechanisms with opposite numbers in Whitehall and being able to tip off ministers whether there was the potential for a desirable framework power if this Bill went through this Darwinian process, when they went from 75 bids to 25 successful bids being in the Queen's Speech. I thought we had pretty reasonable intelligence on those. In the end, it is not a matter for us as to which Bills make the cut and which two-thirds get thrown back and they say, "We are not doing that" or "Leave that until next year."

  Q86  Mr David Jones: Is it fair to say that sometimes this process did not work as smoothly as you would have liked? I recall in particular the Planning Bill, which did contain Welsh framework powers, but they were not included in the first draft of the Bill and did not appear until well on in the committee stage. They were only briefly debated. I think that Alun Michael was a member of the same committee. They were not debated at all at the Report stage and Third Reading. Is it fair to say that in that particular case, and possibly in others, the system did not work as smoothly as it might?

  Rhodri Morgan: I think probably that question of looking back to see whether that is a typical example or an atypical example is better directed to Hugh Rawlings, as a civil servant who would have been in charge of our unofficial specifically network or intelligent network in communication with Whitehall departments. I think that example you quote was atypical, but it is probably best not to put that question to me.

  Q87  Mr David Jones: To what extent would you rely on and liaise with the Wales Office on what was included in Bills?

  Rhodri Morgan: It is an absolutely critical role.

  Q88  Mr David Jones: Again, would you expect the Wales Office to be proactive in that regard and draw your attention to these opportunities?

  Rhodri Morgan: I would not expect them to be proactive but simply to be a very useful transmission device to say, "The Assembly government would like to put in a bid for some framework powers to be included in this area of potential legislation, which is now forming itself within the Whitehall machinery."

  Q89  Mr David Jones: Turning to the LCO procedure, would you say that has created greater understanding between Cardiff and Whitehall?

  Rhodri Morgan: I think it probably has created an understanding. Because one individual civil servant in Whitehall is in charge of writing a Bill, steering a Bill, getting it into usable form, and has probably never dealt with an LCO before and may never have dealt with Wales before, the machinery does creak when that civil servant realises, "Oh, my God, I have got to deal with something that has come in from Wales. What am I going to advise my ministers?" I think it is quite likely to have gone into the pending tray on the ground, "I have never come across one of those before, and if I can avoid dealing with it I will, and I hope it will go away", because it is something new and unique and, therefore, you do not find a lot of enthusiasm. People think, "Can't I get back to my normal day job?"

  Q90  Mr David Jones: Is that a common state of affairs?

  Rhodri Morgan: I think it is an inevitable state of affairs. That is how human beings work. They have got what they think of as a day job and suddenly a new fish lands in the net and they think, "What am I going to do with that?" They have to be told, "Right, do it by Friday afternoon", because otherwise it will go into the pending tray because it is not part of the norm. I think you have to accept that.

  Q91  Chairman: Does that raise the more general point about transparency of relationships between Whitehall and the Welsh Assembly Government? A classic example is that we were concerned about the length of time it took to deal with the Environment LCO. If we had greater transparency, the public would be able to make a better judgment of the process.

  Rhodri Morgan: Yes. The Environment LCO was far bigger and broader than all the other LCOs and always intended to be a test case for how it would be if a really significant, broad-thrust LCO were presented to the Whitehall machine. You have two lead ministries in that, the DTI, as it was when it began, and DBIS at the end and the Environment. Those had a huge interest in it. There was no lead ministry, but we knew we were taking a big risk in producing a big LCO alongside a much narrower one. We knew there was a risk that we were taking but that we would have to take it to the machinery in Whitehall. Occasionally you would solve the problem on the Environment side and think it is going swimmingly, and then somebody in DTI or DBIS would throw up a block and say, "I am not advising my minister to transfer those legislative powers to Wales." You solve that problem, and then suddenly another civil servant within Environment would say, "I am not advising my minister to transfer that bit." We knew that was a risk if we had a broad LCO, and it is the only broad LCO we put in, but it was essential to try out the theory on a broad issue of that kind.

  Q92  Chairman: You are describing a hidden process. If you just take another example, the fire sprinkler LCO, that took an inordinate length of time.

  Rhodri Morgan: Yes, the fire sprinkler, the backbench one, yes.

  Q93  Chairman: That took a long time.

  Rhodri Morgan: Yes, it did.

  Q94  Chairman: Surely, if there was greater transparency, politicians and civil servants would sort themselves out? This is just a suggestion. Do you think that is a possibility? I am giving an illustrative example of a more general point about the need for greater transparency of the relationship between the two governments.

  Rhodri Morgan: I am finding it difficult to put a meaning on the word "transparency" with regard to LCOs; in other words, I cannot imagine an investigative reporter from the Western Mail, the BBC or the Daily Post going to somebody's desk in Whitehall, looking in the pending tray and saying, "That has been sitting there for three weeks now and you have not done anything with it."

  Chairman: Do not underestimate it. They seem to be more obsessed with that than anything else.

  Q95  Alun Michael: Would not one answer be to take up the suggestion that Sir Jon Shortridge made, which is that Legislative Competence Orders should go straight from the Assembly to Parliament?

  Rhodri Morgan: I think in the end the machinery has laid its eggs and given birth to a fair bit of legislation, or a fair bit of LCO power, which is now in the process of being turned into legislation. I do not know whether there is sufficient concern about the blockages or the length of time or the trimming back of the initial proposals to say therefore you need to re-write it and take out the role of the Secretary of State. It is something for the future. As a learning process it has creaked, but it has given birth and has worked in the end, and the more frequently we use it and the better the oiling of the machinery, the speedier it will become. You will have the chance of people having dealt with two LCOs rather than one civil servant in Whitehall, working in Whitehall in the bowels of the Government machine for 40 years, who will only deal with one LCO ever.

  Q96  Alun Michael: The Chairman pointed out that the delay, for instance, in the fire sprinkler LCO was the best part of a year.

  Rhodri Morgan: It was the first backbench LCO.

  Q97  Alun Michael: The point is that if once something is agreed by the Assembly it goes to Parliament, then there would be the transparency over the processes in Whitehall which have caused a problem in relation to other LCOs.

  Rhodri Morgan: I see.

  Q98  Alun Michael: This Committee already said it is going to take oversight of that process.

  Rhodri Morgan: I do not think that is a matter for me because in a way what you are then saying is that the Civil Service concern would be not working for government ministers and—

  Q99  Alun Michael: I am not saying that at all.

  Rhodri Morgan: How would the transparency work? This is not a matter for me, it is a matter for Whitehall and Westminster, but I am just trying to picture it now. It goes straight to Parliament, but it has to have some sort of winnowing out of the weaknesses as perceived by the department of Whitehall that is responsible for transferring the power or advising on the transferring of the power at a technical level, but they are not working for ministers in this respect, they are working for Parliament.

  Alun Michael: They would come forward as ministerial recommendations to be considered by Parliament, which is effectively what happens but without the transparency at the present time.

  Chairman: This Committee has a particular view especially in relation to the housing LCO and the Welsh language LCO. Certainly we have the view that it was we who did the work and not Whitehall and elsewhere, but there we are, that is rather subjective.

  Q100  Hywel Williams: Could I draw your attention to one particular way that things might be going wrong and might be improved. The Government of Wales does not specify when the Secretary of State should say "yes" or "no" to a particular LCO being laid before the Houses of Parliament. Is that a weakness? They disappear into the black hole and nobody knows when they are going to reappear. If they were specified, would that be better?

  Rhodri Morgan: We have the culture issue. I have always said, and I have said it so many times that I am sick of saying it really, that in the end the culture change you have to achieve for the LCO system to work in the way it is intended is for Whitehall ministers to have the ability in their DNA to say, "I do not like what legislation is going to emerge back in Cardiff from the transferring of this power, but I still accept that it is appropriate for Whitehall to release the legislative power to Cardiff for a purpose that I disapprove of." That is much as in the House of Lords: when there is a Labour Government it holds its nose, and provided that it is in the party manifesto of the Labour Government, it abides by the Salisbury Convention and does not block things of which it disapproves, it nevertheless says, "It was in your manifesto; you can proceed and we are not blocking it." Likewise, it is the holding of the nose culture: "We do not like it, but we think it is appropriate for legislation in this field to be done in Cardiff rather than in London".

  Q101  Hywel Williams: I like the analogy of how it works between the House of Lords and the Commons; one is directly elected by the people and the other is appointed. It is that element of democratic support that, from my understanding, leads to the House of Lords holding its nose. Here we have two possibly competing democratically elected bodies.

  Rhodri Morgan: Yes. Before the Salisbury Convention and the constitutional crisis of 1910 over the Lloyd George People's Budget, the House of Lords did consider itself the full equal of the House of Commons and they would block finance Bills or block legislation merrily as a complete legal House; and following that, to avoid social revolution in the streets or abolition of the House of Lords, they said: "Okay, we will find a very British way round it; we will not block Bills that have got the backing of the party manifesto that has won a majority in the election." Likewise, it cannot be exactly the same; for us we need a similar culture change in which ministers do not have to agree with the purpose to which you are putting it, but to answer the question of whether it is more appropriate for legislation in this area to be done "down there in Cardiff, even though we do not like what they are probably going to do with it, than for it to continue to be done in Westminster", that is quite a big cultural change, but it is an essential part of the cultural change of making the LCO system work.

  Q102  Hywel Williams: Lloyd George brandished quite a large cudgel at the House of Lords to get them to agree after all with the creation of—

  Rhodri Morgan: I cannot recall personally, Hywel! There were two general elections, I think, to do it, were there not?

  Q103  Hywel Williams: The creation of lots of peers. If that did happen, if there was a government of a different hue down in London and a different one in Cardiff and there was a dispute, could a judicial review be brought against the Secretary of State's decision? There are all kinds of implications, not least the possible politicising of the judiciary—heaven help us! How would you see that working out?

  Rhodri Morgan: During my time—I am not First Minister now—we would never have contemplated the idea of judicial review against a minister. I am not sure it is possible. In any case, it is not the right way for administrations to conduct their relationships. You want to see a culture change, but—

  Q104  Mr David Jones: Taking on the Salisbury Convention analogy, if Westminster is to hold its nose and allow the bid to go through, would that presuppose that in those circumstances the intention to bid for such powers as are comprised in the LCO bid should have been flagged up in the manifesto of the relevant party?

  Rhodri Morgan: Yes, unless there was an emergency LCO not based on a manifesto commitment. No, there is no moral authority or political authority behind an LCO bid that has not been mentioned in a manifesto. Agreed, that with proportional representation in the Assembly elections, the likelihood of a majority government—we did do it in 2003, sort of—in the Assembly will be a relative rarity and, therefore, that you could say it needs to be in the manifestos of both parties in a coalition to say that is sufficient authority, but I think that would be seen as rather a narrow point, given the difference between proportional representation systems and first-past-the-post systems in Westminster.

  Q105  Mr David Jones: I am intrigued by your reference to an emergency LCO. I find it hard to comprehend how the LCO process could ever work sufficiently quickly to cope with any emergency.

  Rhodri Morgan: I am thinking of public health crises, animal health crises, something of that sort. Agreed, the speed with which LCOs have been passed in the past has not made it a very promising route for dealing with a crisis, but—

  Mr David Jones: That is more likely to be the—

  Chairman: There are too many supplementaries now.

  Q106  Hywel Williams: Could I ask you about the moral authority of a backbench LCO, which has not been mentioned in either party's manifesto and might be entirely novel.

  Rhodri Morgan: Backbench LCOs are in an entirely different category. They are making progress. It has been slow. You will be aware of the fire sprinkler one—you have mentioned it—and the mental health one, which I think is one that the Assembly Government took over in effect. It is just a matter really for the Westminster and Whitehall machine to decide how brutal, how co-operative, how trendy or how warm they want to be to the backbench LCO concerned. So far the record is not bad. There is some recognition that if you have a private member's Bill at Westminster, this is the equivalent of a private member's Bill but without the power to do it and, therefore, you have to get the power from Westminster. I do not think the record of those has been too bad.

  Q107  Mrs James: Looking at the other way the law-making powers come to the Assembly, there is the role of the Supporting Legislation Committee. They consider the powers proposed to be granted. Are you concerned that there is no formal mechanism for its findings to be brought to the attention of the relevant committees either in the House of Commons or here at the Assembly?

  Rhodri Morgan: I am not sure I am the best person to answer that question, to be honest. In a year's time I will have much more experience of legislation committees and the work of backbenchers. I have not yet acquired that experience, so ask me again in a year. I am starting tomorrow.

  Q108  Mrs James: It is something the Wales Government sent us in their memorandum. Going to the Civil Service capacity in Wales, how do you think the Civil Service has changed over the last ten years in Wales?

  Rhodri Morgan: I think it has become much more attuned to the idea that there may be legislative answers to social problems, maybe. It did not have that consciousness before in the way that the Scottish Civil Service has always had, because even before there was a Scottish Parliament or in the 297-year long gap between the old Scottish Parliament and the new Scottish Parliament, there was never a lack of consciousness that there should be legislative answers to problems, and they would throw up five Bills a year before devolution. In Wales it was one Bill every five years, so it was a rarity for the Welsh Office civil servants in their legislative way of thinking. They are much better now than they were. In relation to Whitehall, I think we have a greater capacity now to generate really good quality civil servants and to maintain and keep those good quality civil servants so that they rise gradually through the tree, whereas, being in London, Whitehall suffers from the problem that when there are boom times in the economy, and the City especially, they lose a lot of their really good civil servants at 30. When the City is doing badly obviously they recruit and maintain good civil servants in Whitehall, but they certainly cannot in the boom times.

  Q109  Mrs James: Are you happy that there is sufficient capacity to deal with the legislative process as more and more powers transfer to Wales?

  Rhodri Morgan: It is incomparably greater than it was ten years ago.

  Q110  Mrs James: Are those inadequacies in the Civil Service resources? A few people have been telling us about the legislative deficit with inadequate consultation and poor research and timetables of implementation. Is that something you recognise?

  Rhodri Morgan: No government is perfect. I am sure there are examples of all of those things, but I do not think it is common in Wales. I would have said we have built up our capacity. This is the point I was making right at the beginning. When you build up your capacity in the Civil Service, we regard that as a good thing, but if you regard transferring powers to Wales as a threat, that is a bad thing because we are saying, "We have built up the Civil Service capacity". I believe we have built up the legislative capacity of backbenchers as well to scrutinise legislation, as I hope I will find out starting from tomorrow, as I will be one of them! If you regard that as a threat, not as an opportunity, to transfer more powers to Wales, then that is a problem. As far as we were concerned, we would like to use devolution to solve problems in Wales, and that requires building a bigger, better, higher capacity pool of ability in ministers, backbenchers, lawyers, draftsmen or women, and civil servants who think in that way. If you do that, then you could take on more powers. But there is a school of thought in Whitehall that people who have not made the culture change say, "We do not want that to happen. They have got their devolution and that is their lot." That is the culture change we have to be working against, this idea that it is not a good thing for Wales to be building up its capacity to be more like Scotland, if you like, because they do not want to see any transfer of powers post the setting-up of the Assembly in 1999.

  Q111  Chairman: Diolch yn fawr. Thank you for your evidence this morning and this afternoon. The fact that we have overrun is an indication of the success of the session. I was intrigued at the outset when you characterised the culture challenge in terms of recognising Wales as a country. I am sure you would agree with me that all senior civil servants and politicians should have as recommended reading that premature devolutionist, as the English would describe him, Raymond Williams's seminal work Border Country.

  Rhodri Morgan: Diolch yn fawr.





 
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