UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 246-i

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

WELSH AFFAIRS Committee

National ASSEMBLY FOR WALES, CARDIFF

WALES AND WHITEHALL

MONday 11 JANUARY 2010

SIR JON SHORTRIDGE

RHODRI MORGAN

Evidence heard in Public Questions 1 - 111

USE OF THE TRANSCRIPT

Oral Evidence

Taken before the Welsh Affairs Committee

on Monday 11 January 2010

Members present

Dr Hywel Francis, in the Chair

Mrs Siān C. James

Mr David Jones

Alun Michael

Hywel Williams

________________

Memorandum submitted by Sir Jon Shortridge

Examination of Witness

Witness: Sir Jon Shortridge, Former Permanent Secretary, Welsh Assembly Government, gave evidence.

Q1 Chairman: Good morning, Sir Jon. Welcome to this the very first session of our inquiry into Wales and Whitehall. For the record, could you introduce yourself?

Sir Jon Shortridge: Good morning, I am Jon Shortridge. I was Permanent Secretary in Wales from 1999 until I retired in May 2008.

Q2 Chairman: Could I thank you on behalf of the Committee for your very helpful and very frank paper; it was extremely helpful to us in preparing for today's session. Prior to you being Permanent Secretary in the Welsh Assembly Government, what were you doing? You were Permanent Secretary in the Welsh Office.

Sir Jon Shortridge: Yes. Perhaps I should explain. At the election in May 1997, that coincided with my being appointed Director of Economic Affairs at the Welsh Office and I was given responsibility then to establish the Assembly; so I spent two years, amongst other things, working on the establishment of the Assembly. Then in March 1999 I became Permanent Secretary for the Welsh Office so I took the Welsh Office through devolution. At the time I was both Permanent Secretary of the Assembly and the Welsh Office.

Q3 Chairman: You were therefore in a very pivotal position. Were there similar senior civil servants in similar positions across the United Kingdom, particularly in Scotland?

Sir Jon Shortridge: In Scotland my colleague was Muir Russell, and he was going through an identical process to the one I went through, although he had been appointed Permanent Secretary of what was then the Scottish Office quite a lot earlier than me.

Q4 Chairman: I was intrigued in your paper that you mentioned it was your view that the new Wales Office should only have a kind of temporary existence. Does its continued existence - not disappoint you - mean a failure on your part that it is still there?

Sir Jon Shortridge: No, I think there was always going to be a Welsh Secretary of State and therefore a Welsh department of state in Whitehall once devolution got underway in Wales; but my personal view is that, as the settlement matures, the engagement will be increasingly with the individual departments of state, policy departments, and that the need to have a Wales Office, which in part has a role for brokering relationships between policy departments, should just wither away.

Q5 Chairman: In your period how frequently were Permanent Secretaries meeting to discuss devolution and the part that you could play in raising awareness amongst Permanent Secretaries?

Sir Jon Shortridge: I can recall very few occasions when the issue of devolution was discussed at plenary meetings of Permanent Secretaries; perhaps two or three occasions either on a Wednesday meeting or one of our away-days at Sunningdale. Obviously, when the particular devolution arose which was either of concern to me or of concern to my permanent secretary colleagues, that would be raised at a Wednesday morning meeting, but again rarely because normally issues of concern were bilateral issues of concern and they would be dealt with bilaterally between me and the other Permanent Secretary. What did happen increasingly was that the top officials of the three devolved administrations of Northern Ireland, Scotland and Wales came together for seminars about twice a year latterly in my time. Those were very valuable occasions because this was an opportunity for us to take the learning not so much from how devolution was being administered in our three countries, but how we were tackling common problems, often in a different way, so that we could learn from each other about whether or not we should be taking a different approach to certain policy issues, informed by what had been successful elsewhere.

Q6 Chairman: In the very early days, particularly just prior to the setting-up of the National Assembly, would it be the case - certainly according to anecdotal evidence it was the case - that the main preoccupation in Whitehall was the future of the union and the relationship with Scotland, and that Wales was something of an afterthought?

Sir Jon Shortridge: I think it has always been the case that Whitehall's focus has been much more on Scotland than on Wales.

Q7 Chairman: What would your role have been, then, given that you were the new Permanent Secretary, in raising awareness very sharply if that was a lacuna?

Sir Jon Shortridge: I do not know whether I would necessarily describe it as a lacuna; that was a fact of life and I do not think I am ever going to change the fact that for ministers and for the media, and therefore for senior civil servants, their focus is always much more on Scotland than on Wales. My approach was to accept the reality of that, but then to use my influence and my increased status, I suppose, within the permanent secretaries' group, to make sure that any issues of concern that I had were being raised and dealt with effectively.

Q8 Chairman: Can you give us an example of problems caused by Whitehall officials' lack of knowledge of the Welsh settlement and failures of liaison generally, particularly in the early days? How did you address that? In a way, I suppose, we are asking you not only to be frank but also to be self-critical.

Sir Jon Shortridge: The problem I have on that is that I tend not to bear grudges, and I was always looking to the future rather than the past, so there were a number of occasions when others here and I got really angry, but I do not think I can recall them sufficiently to put them on evidence here. What I can say is that ---

Q9 Chairman: Organise your grumbles.

Sir Jon Shortridge: The sorts of issues which emerged early, and I think continue to emerge, are press releases being issued from Whitehall departments which are not making it clear that the policy they are referring to applies to England only; confused policy documents. To take a recent example, a fair chunk of Building Britain's Future is about building England's future. If you were not actually an insider and thinking about devolution and you were just an ordinary member of the public, would you necessarily realise that? That is a continuing problem.

Q10 Chairman: Did you and the ministers in the Welsh Assembly Government make representations about that?

Sir Jon Shortridge: Building Britain's Future was after I left as Permanent Secretary in Wales, but ironically it was issued when I was Interim Permanent Secretary in a Whitehall department, and certainly at official level things were being said, but I think there was just a ministerial override on the consonance, or whatever it is, around the title, so something that they really just wanted to retain.

Q11 Chairman: You became Interim Permanent Secretary in that department?

Sir Jon Shortridge: No, this was a Number 10 publication. I became Interim Permanent Secretary in the Department of Innovation, Universities and Skills in May. It was abolished shortly after I arrived - I am sure there was no causal connection - and I became Interim Secretary in the Department of Business, Innovation and Skills, and I stayed there throughout the summer and then left. Building Britain's Future was issued at that time. I was aware that the title did not properly convey the content of that document. That is an illustration of the sorts of continuing problems that exist. If I could just continue the answer, another thing that would cause irritation was when a Whitehall department would introduce a devolved delivery structure for part of its non-devolved policies but not respect the boundary of Wales. That was pretty much a nonsense. There were lots of problems, as I am sure the Committee is aware, around legislative competence orders. Finally, there was the failure to inform us in advance of major announcements, and that is obviously a difficult area. Sometimes it was safe to inform us about major announcements and they just forgot; other times there would be, I am sure, a political override and the sensitivities were such that ministers did not want to risk a leak-back from Wales on a major announcement and I think that is understandable. It goes to the heart, I suppose, of how you make the devolution settlement work; you just have to have sufficient trust and understanding on both sides so that officials on both sides are prepared to take the risk of releasing information on a need-to-know but not-to-be-devolved basis.

Q12 Chairman: In your early days I recall that the strategy was not unconnected with your own approach of development of a kind of democratic partnership, presumably based on what you have just said, on trust.

Sir Jon Shortridge: Yes.

Q13 Chairman: Looking back now on that ten years, I suppose you could be a lot more self-critical about the fact that we have not achieved that fully, given what you have just said!

Sir Jon Shortridge: Certainly, with the benefit of hindsight, I would have done a number of things differently. I think that I would perhaps have made myself more vocal and sought to get the issues discussed more regularly at the permanent secretaries' group, and I think with hindsight I would have pressed for the sort of thing I put in my memorandum to you about trying to get a network of experts across Whitehall departments. I do think with hindsight that it is unrealistic to expect the majority of civil servants in Whitehall, amongst everything else they have to be thinking about and doing, to retain and maintain a full appreciation of the governance of Wales and what it means for their work. Getting just a few people whose job it is within a department to keep up to date with the Welsh settlement and the politics of Wales means that when something crops up on someone's desk they had some opportunity; and that could have been introduced earlier, and that would have been better. I should say to the Committee that I produced my memorandum at some speed over my Christmas holiday. I subsequently spoke to Jill Morgan and I think that perhaps, since I departed, the Cabinet Office has become much more active in providing leadership on issues like this, so when you take your evidence from Jill Morgan she will be able to amplify hopefully some of the points I have put in my evidence, which are now slightly out of date.

Q14 Alun Michael: Just on the point about officials having confidence to take risks, your answers to the last few questions moved between comments about ministers and officials. Would you accept that the lack of trust between departments is deeply embedded in the culture of Whitehall and the depth of that distrust of other departments is not just of previously the Welsh Office and now the Assembly but inter-departmentally is part of the problem?

Sir Jon Shortridge: Yes, I think that the departmentalism in Whitehall means that it is built in to certain civil servants' DNA that they have to be very cautious about what they say to each other. That is amplified, I think, when they realise they are talking to officials in a different jurisdiction.

Q15 Alun Michael: When Defra was created we discovered there was a team of people within the old DETR - I think it was DETR, the initials change from time to time - whose main responsibility was keeping an eye on the Ministry of Agriculture, finding out what they were about to do and stopping them, whatever it was. That obviously is not a devolution issue. You make the suggestion that each department should have a devolution expert who should be available to advise. Can you describe the expertise you think that person should have and how would you ensure that they would ask for advice when it was needed?

Sir Jon Shortridge: I am sorry, to help me I did write down what expertise I thought I was looking for and I cannot find it in my notes here. I think the expertise I would be arguing for is a good understanding of the existing settlement and the politics of Wales. That means an active engagement with what is going on in the political life of Wales.

Q16 Alun Michael: Is not the problem that very often people are not aware that there is a question to be asked? They are focused on whatever the policy is that the department is producing and they can see as far as the boundaries that they are responsible for, and unless they realise and have a good understanding of devolution, they are not going to realise that they need to ask the question. To put it in another way, if you have an expert with that responsibility, does that not give permission to everybody else to abrogate responsibility for understanding the necessary relationships?

Sir Jon Shortridge: I think where I am coming from is that in the real world in which we are operating, the majority of civil servants in Whitehall will not be, as part of their normal working day, seeking to keep themselves up-to-date with Wales, not least because if they are just relying on the London-based media, they will be told nothing.

Q17 Alun Michael: I am trying to get clarity about the role. Does that mean you are envisaging somebody who would have a responsibility to challenge people within that department about whether on any particular policy area they have understood the knock-on effect or the implications?

Sir Jon Shortridge: I think challenge may come into it as well. I have in mind someone with sufficient seniority in the organisation or the department who would, as part of their responsibilities, be expected and required to have an up-to-date understanding of the devolution settlement in Wales, the political issues, the substantive issues in Wales, particularly those engaged on that department's responsibilities, so they would know what the department needs to know; and then the expectation would be that if you were some luckless desk officer who suddenly has a Welsh issue across their desk, rather than making it up as they go along or putting it to one side because it is all too difficult, you would know the first thing you had to do was go and talk to this person and get his or her advice on how to handle it.

Q18 Alun Michael: With respect, in your own evidence it is suggested it was a lack of understanding of the settlement and the nature of the relationship rather than specific Welsh issues coming out of the woodwork that is the issue. Is it not mostly an issue of day-to-day activity rather than a big issue emerging? You said somebody senior. Are you talking therefore of the person with that responsibility being like at director-general level within the department?

Sir Jon Shortridge: I would think certainly at director level, to provide the necessary leadership, and he or she would have someone on the staff who would have a more operational role. Perhaps I was not communicating sufficiently clearly in my submission, but I was really talking about a Welsh issue that emerges. It could be that someone finds themselves caught up in a piece of Welsh legislation, or it could be that there is a very difficult, non-devolved issue that they are having to deal with which actually affects Wales. A good civil servant will probably, or might well, be competent to deal with that, but I think, with the benefit of my experience, there needs to be someone in the department who just has the knowledge and expertise associated with Welsh settlement who that person can engage with so that it is dealt with in a consistent and appropriate manner. We have had lots of experiences where things have gone wrong because people who have had to deal with the issue at the Whitehall end have not sufficiently understood the context and the circumstances.

Q19 Alun Michael: Just to balance that, you did say that officials in Cardiff should do more to build up relationships with their key opposite numbers in Whitehall. I was reflecting on your career. In fairness to you, you were normally kept back in Cardiff because there was a crisis and you were the person to handle whichever crisis was on at the time; but do you think you left your experience of Whitehall a little late?

Sir Jon Shortridge: Me personally?

Q20 Alun Michael: Yes.

Sir Jon Shortridge: I started off in Whitehall in 1969 as a researcher, left government and became a local government planner in 1975, and returned to the Welsh Office as a direct entrant in 1984; and so from 1984 all my Whitehall experience was in Cardiff, if I can put it that way.

Q21 Alun Michael: That is my point.

Sir Jon Shortridge: Although I did spend 18 months supporting Secretaries of State in the House.

Q22 Alun Michael: Would you and the Welsh Office have benefited had you had a period working in a Whitehall department in the sense at least of knowing the enemy? Perhaps I should not put it in those terms!

Sir Jon Shortridge: Possibly. There are two things on that. I think that it is good for organisations occasionally to grow their own leaders and that could be more helpful than having someone parachuted in from outside. I do think, though, looking forward, that there is a potential problem that civil servants in Cardiff do not have the same degree of experience of operating physically from Whitehall than happened in the old Welsh Office days. I think this is something which Gus O'Donnell and Jill Morgan are seeking to address, and you may want to ask Jill Morgan about that.

Chairman: We will want to ask Gus O'Donnell as well.

Q23 Hywel Williams: I should say first that I have no experience of the civil service, possibly thankfully so, but I have been the Welsh person on a UK committee in the past, several times. One of the difficulties is that you have to have a person who has not only knowledge of the workings of departments but also how things are back in Wales, back at the ranch as it were, and you are looking for someone with a highly developed grasp of things; so you are looking at a fairly senior person as you said earlier on.

Sir Jon Shortridge: Yes.

Q24 Hywel Williams: But as you also said earlier on, within departments there is not sufficient priority given to Welsh affairs anyway, so are you looking for the impossible there, that is a person who is sufficiently senior to grasp both ends, but that person would not exist anyway?

Sir Jon Shortridge: I am not looking for perfection; I am looking for a significant improvement on what we have here. My basic approach or position is that a solution which is seeking to train the majority of civil servants in a government department to be able to deal competently and confidently with Welsh issues is more likely to fail than one where you have just a very few people in the department who have that expertise; then they are deploying that expertise for the benefit of the whole department.

Q25 Alun Michael: That is fair enough. I just want to ask a supplementary very quickly. If a person or persons are nominated as the people with this particular expertise, is there any danger bunker walls would be built around them fairly quickly and would they be isolated as being either a person who is suspect because they have this knowledge or, otherwise, the person on whom all the responsibility is devolved? If there is a Welsh issue, "Well, Mr Jones will deal with these and we can go on our merry way", and they ignore it all.

Sir Jon Shortridge: I hope there is not that risk. Certainly it is not my intention or expectation that this expert will do all the work; the expert will be there to provide assurance that the person doing the work in the department concerned was doing it in an appropriate and properly informed manner.

Q26 Mr Jones: Sir Jon, is it fair also to say that there is an insufficient understanding at ministerial level of the Welsh dimension and the consequences of devolution?

Sir Jon Shortridge: I think "probably" is the answer to that, although I do not have sufficient evidence really to comment on the relative knowledge of government ministers on the Welsh settlement; but I do indicate in my evidence that I think if there is a better knowledge and expertise available to ministers at an official level in departments, then they are likely to get better-informed advice when those issues emerge. I do think there is a general problem that in the United Kingdom as a whole Wales just tends not to feature much outside Wales. If you read, as I do, the London-based newspapers - I read The Times every day - to the best of my knowledge the only occasion in which The Times has acknowledged that Carwyn Jones is now the First Minister in Wales was last week when there was an article when he was identified as one of the five political figures to watch; but there has never been a news article in the London Times about Carwyn Jones. That would just not happen in the case of Scotland. When I was in Scotland, the day after the Scottish Government published its draft budget, it was the lead article on the front page of the Scottish edition of The Times. There has never been article in the London Times about the Welsh budget. That encapsulates the fact that Wales is always going to be on the back foot when important issues are being discussed in Whitehall and Westminster that affect it.

Q27 Mr Jones: Is that not a fault of the media rather than a fault of government?

Sir Jon Shortridge: I am certainly making a pretty significant criticism of the media because I think the media tends to widely lead debate. I suppose other things could be done to compensate in Whitehall and Westminster for a media that is failing in this regard.

Q28 Mr Jones: Your memorandum is not only critical of Whitehall and Westminster but is also critical of Cardiff. You say in your memorandum: "Ideally officials in Cardiff should do more to build up relationships with their key opposite numbers in Whitehall but often the sheer range of these and their own work pressures in Wales make this far from easy." To what extent would you say that apparent unwillingness to make contact with their opposite numbers is sometimes prompted by a reluctance to giving priority to building up such relationships because they wish to emphasise the separateness of Welsh policy pursuant to devolution?

Sir Jon Shortridge: I am not aware of any evidence that is the case. It may be the case to some extent, but I am not aware of any evidence. I think it is the physical barrier of two and a half hours there, two and a half hours back, and lots of pressure on you to be dealing with business here and then the fact that if you are a desk officer in Wales, you are dealing with issues which are the responsibility of a substantial number of desk officers in Whitehall by definition; so it is a big ask actually for officials to build the kind of relationships that are ideally required for those two reasons. Having said that, I think it would be wrong of me to be sitting here and saying problems about Cardiff/Whitehall relationships are all down to failures in Whitehall; clearly they are not. There are things which could be done like officials here being given greater encouragement to spend time in London or invite people back from London, and for more leadership around secondments to Whitehall so that we maintain a sufficient critical mass of people working in Cardiff who have worked in Whitehall, understand Whitehall ways and have got good contacts built up in Whitehall in that way.

Q29 Mr Jones: I recall this Committee taking evidence from the Welsh Transport Minister some months ago when he told us that there had been no liaison or co-ordination of road freight policy between Cardiff and the Department of Transport in Whitehall, which appears extraordinary given that most road-freight journeys either end or begin in England. In that particular case would the fault be on the part of officials in Cardiff who did not seek to co-ordinate policy or is it the case that they were simply being overlooked in Whitehall?

Sir Jon Shortridge: I cannot comment on a particular case like that, but I would acknowledge that in Cardiff we could deal with certain things better.

Q30 Mr Jones: There appears to be a degree of co-ordination and liaison between Cardiff and Defra for example, where there is a large overlap of functions, so possibly officials in both departments find it more natural to work together. Is it possibly more difficult to achieve that level of co-ordination in other departments where contact between Cardiff and Whitehall might be much less frequent?

Sir Jon Shortridge: In the case of Defra, as Mr Michael will know, one of the things that has always driven that strong set of relationships is the fact that a lot of the policies we implement here in agriculture are driven by the European Union and, therefore, as far as possible there needs to be a consistent and unified approach across the United Kingdom to dealing with agriculture matters. That is what has driven that set of relationships. In other cases where there is less of an external need imposed upon departments and upon us, it is much more down to personalities, I think, saying, "Yes, we will have regular meetings on health and social care matters either across the four jurisdictions or bilaterally with Whitehall and, similarly, with the Treasury on financial matters." If ministers, in particular, but also top officials feel that that would be necessary and useful, it will happen in those cases. Where there is a change of personnel there are examples of meetings like that ceasing to happen and wither away.

Q31 Alun Michael: You refer to the experience with Defra. You may recall that immediately before the Assembly came into being the discussion between the four departments that were then responsible for agriculture were sometimes very negative experiences, with the officials in particular at the Ministry for Agriculture resenting having to have any discussion with their counterparts in Wales, Scotland and Northern Ireland. It was not anti-Welsh; it was against everybody outside London, one rather felt. That was at an official level. Can you show us how we managed to move from that situation to a situation where clearly you have been very positive about the relationships that have been built up in that topic over 12 years; and are there lessons to be learnt there for the way that other policy areas are dealt with?

Sir Jon Shortridge: Oh dear! I think when MAFF was running agriculture, relationships were not good. I think at official level there were quite serious problems within MAFF. It was one of the reasons why MAFF ceased to exist. Since then, there has been this continuing relationship, which is really a requirement because of the EU issues, it seems to me, and on some occasions the relationship has been better than others. When people change, that will always affect a relationship, but sometimes the new personnel have not been able to get back to the level of trust and understanding that existed before; and then sometimes there are political issues like the way decisions were being taken in Whitehall on foot and mouth, which temporarily caused a real freeze in those relationships. It is the real world intervening in what might be an idealised model. You are never going to get it perfect all the time.

Q32 Mrs James: Turning to the role of the Wales Office, you say in your memorandum that you see it as a temporary role, but in the memorandum from the Secretary of State he calls it "absolutely pivotal". Do you think there might be a danger that if we did reduce the amount of work that the Wales Office did, that would add to the burden in some way, that we would become sidelined and possibly there would be a neglect of Welsh matters on a Whitehall level?

Sir Jon Shortridge: I think that is a risk. The other way of looking at it is that at the moment, if you are sitting in Cardiff, you have got at least two sets of relationships to manage with Whitehall: one is the Wales Office and one is the policy department. That creates, or can create, some ambiguity and complexity, which from your own personal perspective you may think is an unnecessary complication and you just want to get on talking to the Department of Health about this issue and you do not really see that it is necessary for the Wales Office to organise the meeting for you. I think there is an issue there. I have expressed a strong personal view. You tell me that understandably the Secretary of State has expressed his official view. We will just have to see how the debate goes. I do think that, as the settlement matures, the need for the Wales Office diminishes, with this one exception about legislative competence orders where they have a big role. If the process around legislative competence orders is maintained - and I have given a comment on that - then I can see that there is a role for the Wales Office around those; but then there may be a referendum in years to come and at that point if the Assembly were able to get full primary legislative powers, the Wales Office's role in relation to LCOs by definition would fall away.

Q33 Mrs James: What about the overlapping in policy? Speaking as the ex-director of Welsh Women's Aid, I read with interest their memorandum about the Westminster drag and the position that they were in particularly with domestic abuse issues and protection of women. There is one set of legislation for England and one set of legislation for Wales and then there are overlapping areas of legislation. How do you see the role of the Wales Office ameliorating that and making it easier?

Sir Jon Shortridge: On the technical issue about legislation, officials and parliamentary counsel can determine as a matter of fact how that should be managed if there are any residual issues that need to be dealt with politically, so I do not see necessarily there is a particular role for the Wales Office there. In terms of advocacy for Wales within Whitehall and Westminster, clearly there is a role for what is now a Secretary of State for Wales. The issue is whether the ministerial advocate for Wales needs to have an exclusive department for Wales.

Q34 Alun Michael: Siān James and I are members of the Justice Select Committee, and that Committee called for the Ministry of Justice to have a clearly recognised and developed holistic role in constitutional issues in respect of devolution matters within the UK. What is your view? Do you think the Department for Justice should be given such a strengthened role, and perhaps we ought to ask if they would be capable of fulfilling it?

Sir Jon Shortridge: I think one of the things that you will find when you speak to Jill Morgan and Sir Gus, if he comes before you, is that the Cabinet Office is now taking a much stronger role in relation to the devolution settlement for the United Kingdom. I am very pleased that they are doing that because I have always thought that issues relating to the management of relationships between different jurisdictions in the United Kingdom should come under the umbrella of the Joint Ministerial Committee, and any governance issues associated with the Joint Ministerial Committee should be handled as a machinery of government issue within the Cabinet Office.

Q35 Alun Michael: Are you saying that there should not be, therefore, that structured role for the Ministry of Justice, it should be with the Cabinet Office?

Sir Jon Shortridge: I am 18 months out of date, so I am giving you what I understand may be the issue, but you need to clarify it. If that is the way it has gone, then I think that the Ministry of Justice's role in relation to devolution pretty much withers away. It would continue to have a series of roles in relation to constitutional issues.

Q36 Alun Michael: But the direct responsibility for constitutional issues, including devolution, lies with the Ministry of Justice.

Sir Jon Shortridge: Yes, but my impression is from talking to Jill Morgan that there have been some initiatives recently where the Cabinet Office has taken back some of those responsibilities. I may be wrong, but if that is the case I would welcome it because I think they sit better within the Cabinet Office.

Q37 Alun Michael: In general, you feel the focus on devolution ought to be in the Cabinet Office rather than the Ministry of Justice, the lead responsibility.

Sir Jon Shortridge: Yes.

Q38 Alun Michael: Does it worry you that, given the responsibilities for devolution in the Ministry of Justice at the moment, they appear to have misunderstood their own responsibilities on a number of occasions in relation to legislation, sometimes thinking things are devolved when they are not and at other times failing to recognise, or their agencies failing to recognise, the need for discussion about the impact on Wales and particular issues?

Sir Jon Shortridge: I have not read the Justice Select Committee's report so I am not aware of particular problems that have arisen. I would say it would not surprise me because I personally do not think that the Ministry of Justice was in the best position to address these issues. If it is now moving back to the Cabinet Office at least to some extent, I think that would be a good thing for settlement.

Q39 Alun Michael: I was asking you about things within your period, so that would fit with what you are saying.

Sir Jon Shortridge: I was always of the view when I was performing the role here that the Cabinet Office should have this function. The function went to the Ministry of Justice and so my evidence reflects what I thought to be the reality, that the Ministry of Justice had that responsibility. I think you will find that some of this is moving back to the Cabinet Office, which I would welcome.

Q40 Mrs James: In your experience have the inadequacies in civil service resources in Wales caused a legislative deficit with inadequate consultation, research and a slow timetable for implementation?

Sir Jon Shortridge: Are you saying failings in the civil service are causing these things?

Q41 Mrs James: Having inadequacies. We have touched on a few of them today, have we not?

Sir Jon Shortridge: You can always do things better. As a generalisation, I have always taken the view that the quality of the civil service in Cardiff is at least as good as in Whitehall, so I do not think personally that one can lay the blame for any inadequacies or slowness in process at the door of civil servants here. I think that to a significant extent the problems that have arisen with the settlement, particularly following the latest Government of Wales Act, are down to the complexities that are involved in getting ministers and officials in particular in Whitehall to understand the nature of the new systems that need to be put in place, and being prepared to put the time and effort into handling these issues in a way that meets the timely needs of Wales. That is a big change that, sadly but perhaps inevitably, is taking a considerable time for the culture of Whitehall to adjust to, because this is entirely novel to them. They are not really thinking Wales; they are thinking either England or the United Kingdom.

Q42 Hywel Williams: You referred earlier on to secondments from Wales and Edinburgh and perhaps from London down to Edinburgh and down to Wales. Would that be sufficient to address this particular problem? I think you are describing an awareness problem in Whitehall. Does there need to be some more fundamental shift? It seems to me that it is always a one-way street, that Cardiff should be aware of what happens in Whitehall, and it does not work in the other direction.

Sir Jon Shortridge: It is easier for us to be aware of what is going on in Whitehall because we read it in the papers every day. Whitehall civil servants do not read in the papers every day what is going on in Wales. That is a reality. I think certain things need to be done to compensate for that reality, and in my memorandum I have given an indication that I think you need to deal with it by just focusing on having a small number of people in Whitehall who at any one time across Whitehall do understand the situation so that they can be used as a resource to facilitate the better management of working relationships and the management of business that affects both Wales and Whitehall.

Q43 Mr Jones: My fellow member of the Justice Committee has already referred to some of the Justice Committee's proposals, but would you support the proposal for a single civil service code that would be accepted and observed by all the administrations of the United Kingdom?

Sir Jon Shortridge: I think essentially there is a single civil service code. The key words are the same in different codes. But you cannot have civil servants in Cardiff owing allegiance to ministers in the United Kingdom Government; so you do have to have subtle changes made to the different codes to reflect the critical ministerial/governmental context in which civil servants are operating in different jurisdictions. Subject to that, I would be very surprised if there is any difference at all in the critical wording which determines the conduct and behaviour of civil servants in the different jurisdictions.

Q44 Mrs James: Do you think it is worth promulgating the details and implications of devolution settlement and actually reiterating it as part of it, so reminding everybody at that point that there is this important thing?

Sir Jon Shortridge: I need to refresh my memory of the code, but I think if all the codes placed a duty on civil servants to have appropriate regard for whatever that means in the different jurisdictions, that might well help to drive behaviour. In my experience, if you impose a statutory duty on a civil servant, they take that pretty seriously.

Q45 Mr Jones: I take it, Sir Jon, that you are in favour of continuation of a unified civil service in this country!

Sir Jon Shortridge: Yes, I am, although I am pretty neutral on it actually. The main case for having a unified civil service is that it is one of the few things which holds the United Kingdom together, or it is one of the few United Kingdom institutions that still exists, so it is worth it in that sense. I think it also helps these relationships; so if you are a civil servant in Wales talking to a civil servant in Whitehall and vice versa, there is a certain commonality which probably helps that relationship. I would not die in a ditch on it personally; I think there is a strong case for building - and I always have thought this - a stronger Welsh public service. I think the more you can have a unified public service in Wales, that would help to deliver better unified policies in Wales and remove some of the frictions that exist between different organisations in Wales. There are counter-arguments as well. I am neutral on it. I would not be an advocate of getting rid of a unified civil service, but I would not regret it that much if it ceased to exist.

Q46 Mr Jones: What strains do you think would be put upon that unified civil service if and when there is a change of government in London, and for the first time since devolution there are governments of different hues at either end of the M4?

Sir Jon Shortridge: I do not think the strains would be so much on the civil service as on the governmental institutions.

Mr Jones: Those seem to exist at the moment. It just occurs to me that it might be exacerbated once there is a change of government.

Q47 Chairman: Would you like to declare an interest there?

Sir Jon Shortridge: We will see, will we not? As you will know, the Conservative Party is the unionist party or the party that stands for the union, and they would not want to do anything which undermines the union.

Q48 Mr Jones: I understand that but I wanted to know what stresses that would place upon a unified civil service. In other words, you have got a civil service in Cardiff and Whitehall serving political masters of different hues.

Sir Jon Shortridge: We have got civil servants in Whitehall dealing with civil servants in Cardiff who are serving both Plaid and Labour ministers here. I think civil servants are very professional and will get on with it. The strain will be on these issues of trust that we talked about earlier. Certainly in the early days there will be civil servants in Whitehall thinking, "Can I really share this with civil servants in Cardiff?" That will happen. If there is the political leadership from Conservative ministers, if that is what they are saying, "Yes, we think it is really important that this communication continues at a high standard", they will be more inclined to take the risks than if the ministers are saying, "You get that wrong and you will be in trouble." Then they will not take risks.

Q49 Alun Michael: You made what seems to me to be a very sensible suggestion in your memorandum that legislative competence orders should go straight from the Assembly to Parliament, rather than to UK Government or a Whitehall department. What would the practical effect of that be from your perspective?

Sir Jon Shortridge: I should say first that this is a personal view and I do not think I ever managed to persuade anyone in my formal organisation of its merits; but I still hold to it. The practical implications would be that Parliament would have to change certain of its basic conventions because by convention bills are introduced by the Government into Parliament. Legislative competence orders are legislation, so I think Parliament would have to provide a different device for taking legislative competence orders through Parliament, and that would be a matter for the Speaker, who would have to decide who he wanted to nominate to undertake that role. If that procedural hurdle could be overcome, then it would make life easier for the UK Government because they could decide through a transparent political process what they were going to support and whether they were going to support it. There would also be the merit from the Cardiff point of view that you would not need to go through two sequential sets of negotiations, one to get the Government's agreement and then Parliament's agreement. Obviously, if you get the Government's agreement then I would say it diminishes the opportunity of Parliament to challenge because you have got majority support for it as it goes through. It is an idea that is worth thinking about, but it is pretty radical, I suppose.

Alun Michael: It is interesting because in many ways it addresses some of the issues that this Committee has been concerned about.

Q50 Chairman: That applies equally to the Welsh Assembly Government, does it not? If there were a situation where the Assembly spoke to Parliament and Parliament spoke to the Assembly, that raises the question whether or not the Welsh Assembly Government could step to one side and allow the straight passage - straight in.

Sir Jon Shortridge: What I am saying is that legislative competence order proposals coming from either Assembly members themselves or from the Assembly Government, should go straight to the Assembly and should not go straight to Parliament and should not go via the UK Government.

Q51 Mr Jones: You have touched previously on the issue of whether or not the functions of the Wales Office would wither away in due course. Would you be in favour of a single constitutional minister to take over the responsibility for the function of devolution, or would you think that is a task best left to the Cabinet Office as we discussed previously?

Sir Jon Shortridge: I would be very disappointed if there was not a Cabinet minister responsible for the wider constitutional issues, including devolution. I think there is a case in addition for having a minister who is representing in our case Wales but also ministers representing Scotland and Northern Ireland so that their voice is heard within government. Where a department for constitutional affairs exists, I do not know. My own personal preference would be to have it out of the Ministry of Justice and either freestanding or associated with the Cabinet Office, but these are political judgments and are not really ones for me.

Q52 Mr Jones: Do you think that the revival of the operation of the Joint Ministerial Committee for devolution with a new responsibility for promoting dialogue will help improve the Government's relations with devolved administrations?

Sir Jon Shortridge: I think there is a continuing role for the Joint Ministerial Committee. I think, though, from my perspective as a civil servant the greater value would be if the Joint Ministerial Committee had put in place stronger official structures under it, and officials from the four jurisdictions would in effect be instructed to manage the complexity of devolution and the operational aspects of devolution more effectively and report back into the Joint Ministerial Committee. I think the Joint Ministerial Committee itself - the person sitting behind me will be better able to comment than I am - cannot do much business, can it, because if Wales has a particular issue with the UK Government, it is not going to raise it at a Joint Ministerial Committee meeting with Northern Ireland and Scotland sitting there? I do not think the Joint Ministerial Committee has much of a practical role, but the fact that it exists as a way of leading and driving the operationalisation of the settlement is a good thing. If the devolution guidance notes are being amended or if the memorandum of understanding is being updated, then obviously the Joint Ministerial Committee needs to sign that off, and it can probably be signed off in correspondence unless there are contentious issues.

Q53 Mr Jones: Your last observation, it seems to me, is a good argument for the retention of the Wales Office to give Wales more clout in the heart of Whitehall.

Sir Jon Shortridge: There is obviously a case for the retention of the Wales Office, and I would not disagree with that. It is a judgment to be made. I think unless everyone is certain that the Wales Office is going to continue to exist for all time, it is well worth making contingency plans within government for how you would operate without it.

Q54 Mrs James: Turning to the review of Whitehall guidance on devolution that you mentioned in your memorandum, you say how the original concordats work at departmental levels between the devolved administration and the departments; but given this constant flux of changes in departments, et cetera, do you think there is a need to maintain the overarching memorandum of understanding, making sure that on a day-to-day basis civil servants heed it and maintain it?

Sir Jon Shortridge: At the time of course the value of the concordats forced everyone to think what the establishment, in my case, of the Assembly meant for the conduct of business in Whitehall; so the production of the concordats threw up issues and created a basic level of understanding that was really important. I thought their value was in the process rather than in the product, so I do not think people now continually refer back to concordats, and rightly so because you should be just establishing ways of working and getting on with it. For me the most important documents are having the memorandum of understanding and the devolution guidance note, or whatever it is called, underneath it. Those documents have to be kept up to date. I think a requirement, or pretty close to a requirement, on all civil servants to comply with them is really important.

Q55 Mrs James: How do we maintain it?

Sir Jon Shortridge: I would maintain it by having leadership coming from the heart of the jurisdictions, the governments, so that these things are maintained and kept up-to-date on behalf of the Joint Ministerial Committee. That is why I think there is a role, not a particularly onerous role, for the Joint Ministerial Committee; but if there is nothing at the heart of the governance of the United Kingdom that is taking ownership and giving clear leadership on all of this, it will just wither away because people will be doing what they regard as following more important political priorities.

Q56 Chairman: Thank you very much, Sir Jon, for your evidence this morning. It has been a most productive session. Thank you for your written memorandum. In the light of evidence given later on further down the road, you may wish to give more written evidence, but we shall see.

Sir Jon Shortridge: The Clerk will be in touch with me if she wants me to do more. Thank you.

Witness: Rhodri Morgan, AM, former First Minister of Wales, gave evidence.

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 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 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 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 Jones: You had the advantage as an Assembly Member and as First Minister of, obviously 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 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 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 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 in 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 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 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 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 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 it 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 Whitehall." 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 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 not 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 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 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.