Examination of Witness (Questions 57-111)|
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
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 ideaand therefore a government, provided it
has a majority in Parliamentdoes 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, thenI am not saying it does not matter
a damn about the Memorandum of Understandingthat is not
a key to warm or difficult relationships. The warm or difficult
relationships mean a culture change at ministerial and Civil Service
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 fawrafter 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
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
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
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 alreadyit
has only been rolled out for sixteen monthsso 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
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
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
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 wellbut 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
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 warningwhich probably in terms
of civil servants was an early sightwhether 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
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
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
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
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
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
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
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
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
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 judiciaryheaven
help us! How would you see that working out?
Rhodri Morgan: During my timeI
am not First Minister nowwe 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,
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 governmentwe did do it in 2003, sort ofin
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
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
Mr David Jones: That is more likely to
Chairman: There are too many supplementaries
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
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 oneyou
have mentioned itand 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
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
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
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.