UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 246-ivHouse of COMMONSMINUTES OF EVIDENCETAKEN BEFOREWELSH AFFAIRS COMMITTEE
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Transcribed by the Official Shorthand Writers to the Houses of Parliament: W B Gurney & Sons LLP, Hope House, Telephone Number: 020 7233 1935 |
Oral Evidence
Taken before the Welsh Affairs Committee
on
Members present
Dr Hywel Francis, in the Chair
Nia Griffith
Mrs Siān C James
Mr David Jones
Alun Michael
Hywel Williams
Mark Williams
________________
Memorandum submitted by Mr Alan Trench
Examination of Witness
Witness: Mr Alan Trench, Honorary Senior Research Fellow, Constitution Unit, University College London, gave evidence.
Chairman: Good morning, Mr Trench.
Mr Jones: Chairman, before we start, may I declare an interest: I am a member of the Law Society.
Alun Michael: Guilty.
Q328 Chairman: Welcome to the Welsh Affairs Select Committee. For the record, could you introduce yourself, please.
Mr Trench: Good morning.
I am Alan Trench. I am an Honorary
Senior Research Fellow at the Constitution Unit,
Q329 Chairman: Thank you for that. Could I begin by thanking you for the written memorandum you have prepared for us, it was very helpful in preparing for this session. You have recently described the Welsh settlement as dysfunctional. Can you explain what you mean by this?
Mr Trench: Yes, and I ought to say that I consider it
dysfunctional as a result of two sets of work that I have done, or two sets of
approaches. The first is trying to think
about how government should work in a democratic society; and that means talking
about the relative place in particular of executive and directly elected or
legislative elements within that. The
other is to look at it in a comparative context and compare how devolution for
Q330 Chairman: That is your first point?
Mr Trench: That is my first criticism.
Q331 Chairman: Could you just give us bullet points, because I am sure we will be coming back to many of the points you raise.
Mr Trench: The second issue is that the solutions that
are found to the political problems that that throws up are themselves often
very messy and complicated, and sometimes even unworkable. The third problem that I would identify is
the way that powers are conferred upon the devolved institutions within
Q332 Chairman: Thank you for those initial observations. The complexity that you have just described does that, I assume, add to the problems of public understanding of devolution currently?
Mr Trench: Hugely.
Q333 Chairman: How does that compare with other countries? Have you studied other countries - for example, the asymmetrical devolution in Spain?
Mr Trench: I have studied
Q334 Alun Michael: Could I put it to you that actually you are wrong about the advantages and disadvantages of having a permeable boundary in legislation; that is actually the strength of the system in Wales; the fact that you can have movement that does not require primary legislation or constitutional change in order to make adjustments that are necessary. Can I put it to you also that nobody really understands the respective responsibilities of settled situations, like between local government; it could be between London government and the boroughs, for instance, or other arrangements of that sort. It sounds to me as if you are arguing for tidiness for the convenience of academics rather than for something that is of use practically on the ground?
Mr Trench: I would argue it is actually the opposite. Academics do very well out of the present confusion - it gives us a great deal to write about! The people who are the real losers here are the general public who want to understand how they are governed, what principles and rules govern them and, most particularly, who is responsible if things go wrong.
Q335 Alun Michael: With respect, you ignored the second part of my question.
Mr Trench: You asked me two questions and I am trying to answer them. The issue about permeable boundaries is that that is a very good argument on the level of principle. It depends on how the system is in fact practised. The problem with the practice of a system is that that confusion has ramified, I would say, throughout all aspects of how Welsh devolution works.
Q336 Alun Michael: On what evidence?
Mr Trench: If politicians, both here and in
Q337 Alun Michael: Perhaps you would like to supplement outside the meeting with some evidence about that. There is a massive amount of assertion which is hardly recognisable.
Mr Trench: If you want to consult my writings about this you will find huge amounts of details set out in the footnotes in various writings about the Government of Wales Act, going back to something I wrote about the White Paper in 2005, saying these were exactly the problems that could be foreseen if this system were put in place; and I am very sorry to find out that I have been right.
Q338 Alun Michael: Is it rather more about the nature of debate about both legislation and constitutional issues and the nature of media coverage of those in Wales?
Mr Trench: I would not have said so. The problem starts with the fact that we are talking about something that is constantly changing and can, at best, be known by people with extensive training and professional skill. It is not readily accessible and it is a highly confusing situation; and it is a confusing situation at any moment in time. If I might answer your second point: you said, do people not understand settled constitutional orders? Very often it is true they do not. Equally, it is very often again because of how those systems operate in practice, because there is an incentive, if we take your London example, for the Mayor of London and for the GLA to seek to muscle in on functions that are formally, properly speaking, those of the boroughs, and to claim credit for actions of the boroughs; to seek to influence the actions of the boroughs in order to be able to do so. So you put money on the table in order to persuade another level of government in order to do something that you want them to do?
Q339 Alun Michael: Is that bad?
Mr Trench: It is not necessarily bad in many respects; but what it is bad for is accountability.
Q340 Alun Michael: Is it good for results?
Mr Trench: It may produce good outcomes but it will produce confusion.
Chairman: That is the longest series of supplementaries allowed for a very long time!
Q341 Mrs James: In your blog Devolution Matters you say there are differences in how Scotland and Wales are treated in Whitehall. If so, is this due to the nature of the settlements or for other cultural or political reasons?
Mr Trench: I would say it is due to both. On the one hand we have a different set of
constitutional arrangements - the Welsh arrangements being particularly
intricate, particularly going back to the 1998 Act. The very intricacy of those itself means that
it is hard for civil servants in
Q342 Mrs James: Do you believe there is a lack of clear procedure for handling intergovernmental relations; and are they robust enough to survive different governments in power possibly in Wales and Whitehall?
Mr Trench: That is a very big question, and it manifests
itself in a lot of ways. One has to work
out, first of all, quite what one means by "intergovernmental relations";
whether you are talking about peak level relationships between first ministers
at the summit, or you are talking about day-to-day interactions between civil
servants who ring one another up in a fairly sort of ad hoc way to discuss
things. By and large, intergovernmental
relations in the
Q343 Hywel Williams: I just want to ask about the Memorandum of Understanding which has not changed since 1999, and is explicitly a statement of political intents, not circulating legally binding obligations. Do you think this actually works, or would you prefer to have a document with a quasi-legal basis?
Mr Trench: I think that the most valuable thing about the Memorandum of Understanding is the process of drafting it - which is of course more than a decade in the past now - because that made people across government, both politicians and civil servants, think about how relationships were going to work and set out what they thought that might look like. The problem with a Memorandum of Understanding is that, by and large, it is very, very unspecific, and it deals primarily with issues of process rather than with issues of substance or with guiding principles that apply to how devolution should work. I am told that that is somewhat improved in the draft that is presently on the table. A revised draft was apparently proposed nearly a year ago now, but has yet to be formally approved and was referred to in somewhat sceptical terms by the Scottish First Minister when he gave evidence a couple of weeks ago to the Scottish Affairs Committee. He said changes had been proposed, we think they are an improvement but we have not agreed them and they do not go as far as the Scottish Government would like. The most substantive things that are set out in the Memorandum of Understanding are what are called the four Cs that are supposed to underlie relationships between governments: confidentiality, consultation, communication - and I am forgetting what my fourth C is.
Q344 Chairman: Confusion!
Mr Trench: Communication, consultation, cooperation and confidentiality are the four Cs. I would regard those as being the outcome of good relations, rather than something that needs documenting in order to record that. That said, I am not sure that a more detailed quasi-legal document would necessarily serve the function of the Memorandum of Understanding. For one thing, it would be impossible to have something that is legally binding. It would simply be constitutionally impossible to do that. Having looked at intergovernmental agreements as used in federal and decentralised systems across the world, very often - at least many of them are drafted in very legal-looking terms - they are not legally binding. The only thing that tells you they are not legally binding is the clause that says, "This document is not legally binding". This agreement, however, has been disregarded on quite a number of occasions. For example, there is an annual commitment in the Memorandum of Understanding that the plenary Joint Ministerial Committee, the prime minister, first ministers and secretaries of state, would meet annually. It did not. It did not meet annually for a protracted period from 2002 to 2008. There is no remedy for that. There are occasional complaints - some of them have been aired in evidence before yourselves; some of them have been aired in evidence before other committees - about breaches of confidentiality by both governments, but particularly by the UK Government. Again, there is no consequence; there is no sanction. It would be impossible, I think, for the Memorandum of Understanding to set out sanctions, but if you are going to have an agreement that is binding in honour only it must be binding in honour; and, frankly, that seems not always to be the case.
Q345 Hywel Williams: You said that there is a draft revision in train. Would you be in favour of revising it annually or every parliament or at some convenient point?
Mr Trench: I think it would be a very wise thing. Indeed I advised, as you may know, the House
of Lords Constitution Committee some years ago when it produced a report on
devolution into institutional relations in the
Q346 Hywel Williams: Can I ask you about the Joint Ministerial Committee, which you referred to earlier on, with its responsibility for promoting dialogue. Do you think that would help improve the UK Government's relations with devolved governments' administrations?
Mr Trench: I know there has been quite a lot of tension
around meetings of the Joint Ministerial Committee since it was
revived. I am not sure that all the
issues that could have been aired before it have been and there are tensions at
both ends. The particular value that I
have always seen to the Joint Ministerial Committee is that it signals the
engagement of the UK Prime Minister, the highest political levels of UK Government,
in understanding what devolution is about and in managing the territorial
structure of the
Q347 Mr Jones: To what extent has the Prime Minister actually taken an interest when things have gone wrong, which clearly they have?
Mr Trench: The present Prime Minister unsurprisingly appears to be rather more sensitive to devolution concerns because he is Scottish by background and he has been very concerned about Scottish issues throughout his career. I am not so sure that Welsh issues have figured very highly on his agenda, however. Everything I see, have seen, suggests that was, if anything, more emphatically the case for Tony Blair when he was Prime Minister.
Q348 Mr Jones: Do you mean he took very little interest at all?
Mr Trench: Yes. He
was very substantially unengaged from his point of view, it appears to me
particularly. The line, of course, of
Ron Davies was that devolution was a process, not an event; but for
Q349 Mr Jones: I am having difficulty remembering where the rhetoric was!
Mr Trench: He will occasionally make speeches and statements that will say nice things about devolution, about Wales; he will make the usual sorts of comments that people make when they give a speech somewhere; if he happens to be giving a speech in Wales then it will be nice comments about Wales; but that is about as far as it goes, I am afraid.
Q350 Mrs James: In your opinion?
Mr Trench: In my opinion.
Q351 Alun Michael: Reflecting on your last comment, it seemed to me that you were describing Whitehall as a single place, whereas one of the problems is that Whitehall is a series of places in which it is difficult to know what is happening in each one of them. There is a tension, is there not, between something you mentioned a few minutes ago, the importance of confidentiality and confidence and, on the other hand, in earlier answers you placed a great deal of emphasis on transparency. What could be done more to make more transparent the relationships, the negotiations, between either government generally or government departments and the Welsh Assembly Government?
Mr Trench: I obviously absolutely agree that
Q352 Alun Michael: There is the benefit of experiential learning!
Mr Trench: Absolutely. There is a value to some of the things that have gone wrong. However, the big problem that I would identify in devolution is a great big gap between a very big principle that certain things are devolved to Wales, Scotland and Northern Ireland and certain things are not; and, as I have said, a very, very detailed legal and technical understanding of how that is operationalised; and there is not much in the middle. There is not much in the way of general principle to say that if you are going to do X, the expectation is that Y and Z should follow; and that if you are going not to do Y and Z, as applied in your particular instance, there needs to be a jolly good explanation why; and here are the important acts to whom you must explain yourself.
Q353 Alun Michael: Is that about processes, or is it more about relationships? One of the interesting things is the evidence we had that, for instance, the need to have a single approach to agriculture in relation to European negotiations means there has been a lot more sensitive interrelationship between Defra and the devolved ---
Mr Trench: Indeed, and agriculture is an interesting example in many ways of good practice as a result of that. Of course, the fact that agriculture is so largely determined at EU level means that there is that external actor.
Q354 Alun Michael: You mean there is a common enemy? I mean a common relationship!
Mr Trench: There is a common relationship and there is a
need for the
Q355 Alun Michael: It perhaps takes us on to the next question I want to ask about. In theory, the Department of Constitutional Affairs transmogrified into the Justice Department; but in practice evidence we have heard suggests that there is not a single point of responsibility for devolution, and if there is it is not necessarily the Department for Justice. Do you think there is a gap there? Is there a need for a clear lead within Whitehall?
Mr Trench: I would emphatically say, yes. The Ministry of Justice's capacity was beefed-
up to try and take a more synoptic overall view of devolution in about
2007. This was directly in response to a
political event. It was directly in
response to the election of the
Q356 Nia Griffith: Do you think there is a bit of a danger that people pigeonhole devolution: "Oh, it's for them to deal with", if you have just, say, one department? If you look at the example of Defra - Defra is an outstanding example in many ways. If we look at the Marine Bill, it was extremely complex because obviously the four different component countries obviously had different devolution settlements and different issues about the jurisdiction over the sea, and obviously that was dealt with from the very, very beginning. Then you get other departments that are completely unaware: a classic example being last week we had an announcement from the MoD which involved DCLG; and if it had come from DCLG they would have been devo-aware; but they because it came from the MoD they were not. I think the danger is that if you have it all in one place everybody else says, "Oh, well, that's it; it's done; devolution's done". Do you think there has got to be a much, much broader training and understanding in every single department?
Mr Trench: Yes, I would certainly agree emphatically with that. I am slightly surprised you mentioned the Ministry of Defence as a problematic department. The Ministry of Defence was one of two departments that kept a specific devolution desk running within Whitehall (there is an argument about a third) after all departments across Whitehall wound down their constitution units or devolution teams in around 2001-2002. The Ministry of Defence kept its and thought that it was doing its coordination of the devolved administrations very effectively, certainly up to a couple of years ago. The Foreign Office was the second; and there is an argument about the Home Office. There is a person who has the responsibility in the Home Office; the question is quite what they do and how it combines with other functions. I am slightly surprised that problems have arisen with the Ministry of Defence, because the Ministry of Defence used to be rather good at this sort of thing.
Q357 Nia Griffith: Essentially it was a housing issue, which obviously would be an Assembly issue in Wales, and it might have been something that could have been prepared in advance rather than left to be dealt with afterwards?
Mr Trench: Part of the problem, I would say, is actually the opposite of what you are saying. There needs to be a central centre of expertise. The problem is that that is seen as existing and being the Wales Office. People remember that there is a problem; they know that they have got to ring the Wales Office. Various devolution guidance notes and other bits of information they put on government websites and so on say very emphatically if you have got an issue it is the Wales Office you pick up the phone to. The other side of that though is the policy of mainstreaming responsibility for devolution. I think that is where I would identify the problems arising. After about 2001/2002 the idea was that devolution had been delivered; it had been successfully mainstreamed across Whitehall; it was, at least formally, one of the core competences in which civil servants were expected to be knowledgeable, and very often they would have done sufficient to tick the box on whatever training records needed to be kept in order to do that; but it was a less pressing and less urgent one than even, for example, human rights or EU matters, which would similarly be seen as core competences.
Q358 Mr Jones: You will lament the absence of a strong centre for devolution. You have touched on the point that the Cabinet Office in fact provides secretarial back-up for the Joint Ministerial Committee. Would you say that the Cabinet Office, given its proximity to the Prime Minister, would actually be the appropriate place for that strong centre, or should it be the Ministry of Justice?
Mr Trench: There are a number of options. The Cabinet Office would be one place. There is a question about quite how effective a policy-issuing Cabinet Office is, because an awful lot of the Cabinet Office's work is process management and coordination, rather than necessarily them developing a policy steer, although it also plays a very important role in that. There may be a parallel in the way that the European secretariat works within the Cabinet Office, as an example. To an extent, that is the function that the former constitution secretariat within Cabinet Office had, until that was dissolved in about 2002. Another option, which is the one recommended by the Lords committee I advised, was the idea of a free-standing department, a Department of Nations and Regions; which would be a small department at the centre of government that would bring together devolution, coordination and the role of thinking about the territorial nature of the UK as a whole. That would be another option. I suspect that subsuming it within the Ministry of Justice is not the way to secure a strong centre, if that were your goal; because the Ministry of Justice is concerned with so many things. It has got serious policy operational responsibilities when it comes to Prison Service, offender management and the Court Service. It has got some significant policy coordination functions in relation to the legal system. It is very likely to find its concerns crowded out. If it is also supposed to think about devolution, devolution would be in danger of being yet again the last box to be ticked on a long list and not getting the attention, in my view, it would need.
Q359 Mr Jones: Getting back to the Cabinet Office, you have mentioned the importance of an engaged prime minister in all this process. Is that not the strength of the Cabinet Office as the centre, that it is physically close?
Mr Trench: That is one of the strong arguments for it, yes.
Q360 Hywel Williams: I am just thinking of small departments getting marginalised; and subsuming a small matter in a large department which then gets lost in the agenda. I suppose there is a tension there all the time. You have already referred to the patchiness and standing of devolution within Whitehall. Would you say it is the same for the Civil Service in Wales?
Mr Trench: This is emphatically a case of asymmetry. It is a question of which end of the
telescope you are looking out of. When
you are looking from the centre outward
Q361 Hywel Williams: You already suggested some ways of changing this, but we have had suggestions, for example, from Sir Jon Shortridge the other day suggesting that we might have a "devolution expert", as it were, specifically in each department; and also the idea of having secondments has been suggested - both ways actually. Do you have any observations on those ideas?
Mr Trench: In principle devolution experts exist. It is some time since I looked at this in any
detail, but when I did in early the 2000s, about 2003/2004, what I found was that
every department had a departmental contact and, in principle, that person was
the devolution expert; and in reality they received circulars and were supposed
to pass them on to the relevant individuals; sometimes they did and sometimes
they did not. The extent to which they
were an engaged departmental devolution expert was very, very limited, with the
exceptions I mentioned already of the Foreign Office, MoD and the Home
Office. It is a good idea but it has not
worked in our recent experiences; and I think that is because it needs a very
strong political signal that this is important and that officials are expected
to have thought hard about devolution matters before they take any significant
action on a policy file, legislative initiative or whatever it is. Secondment would certainly be a valuable
thing. One of the consequences of
devolution - and I am unclear about the extent to which there was ever very
much interchange between the old Welsh Office and Whitehall departments - there
used to be a fairly substantial interchange between the Scottish Office and
Whitehall departments, particularly the Cabinet Office. It was an important part, in the old days, of
the Scottish Office for someone who aspired to a high position within the
Civil Service to have had some significant
Q362 Mrs James: Turning now to the review of the guidance on devolution. What importance do you think they have and how do you rate their quality?
Mr Trench: The Devolution Guidance Notes are in some ways the most useful documents I find to understand how devolution is at least meant to work. They are the closest thing that comes to the mid level guidance about principles and their normal application in practice that exists. I suspect they are far less often consulted in reality that they should be, so the guidance is fine but no-one actually notices it is there. It is not always terribly clear and their status is rather peculiar, I find; because of course they are simply internal guidance notes that are published but are issued by one government for the benefit of its own officials. They are discussed between governments but what they say is purely a matter for the UK Government. Trying to clarify those, I think, and at least some of the material that is presently set out in Devolution Guidance Notes in a successor intergovernmental agreement, a sort of manual for managing intergovernmental relations, would be the sort of thing I would like to see happen. If I may give you another Scottish example: the clearest guidance to what the Sewel Convention actually means - the principle by which Westminster legislates for devolved matters with the consent of the devolved legislature - is set out in a Devolution Guidance Note; it is set out I think in Devolution Guidance Note 10 on post-devolution primary legislation for Scotland. There is a significant difference between the version of the Sewel Convention as set out there and that which is set out in the Memorandum of Understanding which was stated in Parliament during debates on the Scotland Act. It seems to me that it would be more than desirable - it would be really exceptionally useful - for that to be set out in a document that was expressly specifically agreed by governments.
Chairman: We have a large number of witnesses. All your evidence is extremely valuable and appreciated but could you begin to start to give shorter answers, please.
Q363 Alun Michael: Just on the point you were mentioning about the reluctance of officials to spend time in Whitehall, there is not a great difference, is there, between that and sometimes the reluctance of Whitehall officials to spend time, for instance, in Europe; and yet the value of officials that have undertaken that sort of experience is often recognised and palpable.
Mr Trench: It has clearly got value for civil servants on
a particular career path within the UK Government. There may also be a degree of attraction for
the idea of living in
Q364 Alun Michael: I was thinking rather more of the value to the institution than of the enhanced capabilities of people from having that sort of experience. It suggests that something needs to be done in order to make it more attractive, does it not?
Mr Trench: It suggests that; and it needs to be clear -
if you are going to make secondment attractive to individuals - what the gain
to their personal career profile is going to be if they go and they spend the
six months, three years, or whatever it is in
Q365 Alun Michael: The other side of that is the liaison between officials in the Welsh Assembly Government and their counterparts in central government, whether it is on specifics or whether it is on generals. Would you agree with the proposition that has been put to us that Assembly Government officials need to do more to liaise with their Whitehall counterparts?
Mr Trench: I would agree much more strongly with the
converse. It is
Q366 Alun Michael: Yes, but at the moment I am asking you about the Assembly's behaviour rather than about Whitehall's behaviour - we have done that.
Mr Trench: The interview that I have done with Assembly Government officials suggests that they are generally pretty good at coordinating with Whitehall officials; that the problem is not a problem that lies in Cardiff; it is a problem that lies much more at this end.
Q367 Alun Michael: Did you get a sense at all that there is sometimes an emphasis on the separateness of policy, rather than a question of how to do it best?
Mr Trench: Yes, but that is an inevitable consequence of a distinct government. That is what devolution is meant to secure.
Q368 Alun Michael: I put to you that actually most people think devolution is about doing things best rather than doing it necessarily differently?
Mr Trench: People are necessarily going to take a
different view about what is best. What
is best in Greater London is not necessarily what is going to be best in rural
Q369 Alun Michael: Indeed, which is why the judgment about what is best for Wales is best taken in Wales?
Mr Trench: Indeed.
Q370 Mr Jones: How would you say that the Civil Service in Wales has changed, has evolved, since devolution?
Mr Trench: It is again a little while since I have looked
at the figures, but when I did last look it was more than twice the size that
it had been in 1999. That is not a great
wonder given the dramatic change in its role and its organisation and, from
what I have seen also, its self-confidence since 1999. It has moved from being essentially a
transmission belt for initiatives and policies largely decided in
Q371 Mr Jones: Given that it has doubled in size, is there now sufficient capacity to deal with the policy challenges that it faces?
Mr Trench: I would like to think so but I am not qualified to say whether there is or is not.
Q372 Mr Jones: Can we turn to the role of the Wales Office. You have said that it plays an important role notably in relation to legislative powers for the Assembly. Do you think that the Wales Office plays a positive role in the devolution settlement, or do you think that it may possibly hamper efforts of the Assembly and of the Assembly Government and Whitehall to deal directly with each other?
Mr Trench: I do not think that it is in itself a cause of difficulty, in a way that the Scotland Office has become a source of difficulty in relations between the UK Government and the Scottish Government since 2007, and particularly since 2008. As I have mentioned in my memorandum, there is a significant problem now in relation to the Scotland Office of the Office being seen as having a political role, and an adversarial political role, as a result of the difference in political administrations at each end of the A1.
Q373 Mr Jones: Could I just pause there. It was surely inevitable from the outset of devolution that you would not indefinitely have governments of the same stripe in London and in the devolved administrations?
Mr Trench: Absolutely.
Q374 Mr Jones: Is this therefore something that is inherently a risk within the system?
Mr Trench: In my view it is. Putting such heavy emphasis on what are necessarily going to be politicised roles creates an inevitable risk of that. It has been a longstanding matter of concern to me, given the inevitability of different parties coming to office, that mechanisms were not put in place to deal with that effectively at an early stage in devolution when they would have had plenty of time to have bedded in by the time they came to be tested around 2007.
Q375 Mr Jones: Could we turn to the role of the Wales Office with regard to legislation. You may or may not be aware that there were significant problems with the Planning Bill some time ago where the Wales-only clauses were not actually tabled until well into the committee stage; the consequence was that they were not debated at any great length at that stage and in fact were not debated at all at report stage and third reading. I think it is acknowledged that that was a fault. Who should take the lead role for ensuring that Welsh legislation is properly presented in a timely manner? Is this the Wales Office, or is this the Welsh Assembly Government?
Mr Trench: If one is talking about legislation at Westminster, it surely has to be a matter for a part of the UK Government; it cannot be for the Welsh Assembly Government to seek to table legislation to a legislature that it is not engaged with, that it is not part of.
Q376 Mr Jones: Do you believe that the Wales Office has sufficient capacity to undertake that function, given the large amount of legislation that is passing through this Place every year?
Mr Trench: It has been a longstanding puzzle to me why,
since 2001, the Wales Office has been so much smaller than the Scotland
Office when it has had so much more to do; because it has still had an
engagement with the legislative programme for
Q377 Mr Jones: It is your view therefore, do I take it, that really the capacity of the Wales Office should be built up?
Mr Trench: If that is the system that you have got in place, then you need to have the resources to make it work.
Q378 Mark Williams: My question is about resources to make devolution work. You touched on the Calman Commission earlier on and now we turn to Barnett. In your view, is Wales being disadvantaged by the current funding arrangements via the Barnett Formula?
Mr Trench: I am not qualified to answer that question directly. It is fairly plain from the work I have been involved in, including advising the Lords committee that has been looking at the Barnett Formula, that Wales has significantly higher levels of need than most of the other devolved administrations, and many other parts of the United Kingdom. There is an ongoing debate about the extent to which that is reflected in the current allocations of funding through the Barnett Formula. You will be well aware of the work done by the Holtham Commission that has identified the current level of spending in Wales as being at about 112% of the per capita average in England for comparable functions, but the level of need justifying 114% or 115%; so that suggests a degree of under-funding but it is important to note quite probably one within the margin of error. That is a very, very difficult question to answer.
Q379 Mark Williams: We took evidence from Mr Holtham last week and one of his conclusions in the Holtham Report was that any new needs-based funding model should be jointly (and I emphasise that) agreed between ministers from both the UK Government and all the devolved administrations concerned. How do you envisage this agenda being taken forward? On the one hand the need for dialogue between the devolved administrations and then ultimately of course with the UK Government?
Mr Trench: Many of the problems that arise - and these
are not just problems for Wales but for Scotland and Northern Ireland as well -
arise because of the very considerable power that the Treasury has within the
system. Effectively the system we have
at the moment on the administrative level is whatever the Treasury says
goes. The statement of funding policy
that operationalises the working of the Barnett Formula is purely a statement
of Treasury policy. The policy can
change; it is a unilateral statement that is issued by the Treasury. We had a very strong complaint by John
Swinney, the Scottish Finance Secretary, when we were taking evidence in
Q380 Nia Griffith: You will obviously be aware that the Chief Secretary to the Treasury spoke to the Wales Finance Minister quite recently and talked about an open-mindedness about some sort of reform, and sort of change; and you obviously will have heard Peter Hain saying similar. What would you see as possible practical outcomes that could be implemented? What sort of timescale might we be looking at? What sort of changes might be able to be implemented easily, and what would take much longer?
Mr Trench: That is an extremely large question to ask! My usual talk for that goes for about 30 minutes, I am afraid, and I do not think I have got time to give that.
Q381 Nia Griffith: Just a summary?
Mr Trench: This is a cataclysmically bad time to be trying to review devolution finance. The constraints that public spending is going to face in the coming years and the demands that there are going to be for public services mean that it is really a very, very difficult point in the cycle at which to do so. The common point at which you try and do this in most other federal decentralised systems is when times are good, because then you have money in order to cushion the transition and ensure that those who will ultimately lose out do not lose out in the short-term.
Q382 Nia Griffith: Are you suggesting that we postpone it or are you suggesting that it is all the more urgent that we get it right for Wales?
Mr Trench: I am suggesting that whatever happens is going
to be painful and difficult. The second
question that the UK Government is going to have to decide is how it
understands this new system is operating, assuming it does bring in a new
system. Does it understand it was
operating bilaterally between the
Q383 Chairman: Could I halt you on that point. We will be receiving witnesses next week that will be addressing these issues, including of course the Secretary of State for Wales and Peter Hain. Could I thank you for your evidence today; it has been very full and very comprehensive. I apologise for cutting you off but if you feel - as I am sure you will - that you would like to accept our invitation to write a further memorandum, if there are points that you have not been able to cover today, we would be delighted to receive them.
Mr Trench: If there any particular issues that members of the Committee would like me to cover that I have not been able to do so, it would be very helpful if I could have a note from the Clerk to advise me of that and I will gladly deal with that.
Chairman: Thank you very much.
Memorandum submitted by Swansea Law School
Examination of Witnesses
Witnesses: Professor
Tim Jones,
Q384 Chairman: While our witnesses come forward I should mention on the record, I suppose, that I am an Emeritus Professor at Swansea University. Welcome to the Welsh Affairs Committee. For the record, could you, from my right, introduce yourselves, please?
Ms Palko: My name is Christina Palko, a member of the Welsh Governance Centre, working with Professor Jones and David Lambert.
Professor Richard Wyn Jones: Bora Da. My name is Richard
Wyn Jones; I am Director of the Wales Governance Centre at
Professor Tim Jones: Tim Jones, I am a Professor
of Public Law in
Mr Williams: My name is Huw Williams; I am
a member of the Law Society's Wales Committee and also its planning and
environment committee, and also a practising solicitor with a firm of
solicitors in
Ms Shellens: I am Tessa Shellens, I am a
consultant in health and public sector law in Morgan Cole in
Q385 Chairman: Thank you very much and thank you for introducing yourselves. Could I, on behalf of the Committee, convey our good wishes to Professor Lambert for a speedy recovery, and also, thank you for stepping in at such short notice, Professor Jones. Could I begin by asking this very simple question - and please do not feel that you have to all respond to every single question. We did have the misfortune of having four chief constables before us once and they all wanted to answer every question, even though they were agreeing with each other. How has the devolution settlement affected the administration of justice and the body of law in Wales? Perhaps you could put it into the context of our most recent experiences and our recent inquiry into the Legal Services Commission.
Ms Shellens: I think, by and large, we
have welcomed it as a body, as lawyers in
Q386 Chairman: Any other observations, Professor Jones?
Professor Richard Wyn
Jones: Can I make one observation here? As part of the Governance Centre we run Wales
Legislation Online, which is, I guess, the most accessible source of knowledge
about the legislation which applies in
Q387 Chairman: Professor Tim Jones, would you like to add to that?
Professor Tim Jones: It is quite clear, of course,
that devolution has had considerable impact on law and the administration of
justice, and we have seen an increasing divergence in areas of law between
Q388 Mrs James: I want to turn to intergovernmental relations. Do any of you have concerns that intergovernmental relations are of a non-binding, non-statutory nature, or are you content that they should be based on the relationship between two governments?
Professor Tim Jones: We heard some of what Alan Trench was saying before. I think it is difficult to conceive how these relationships could be governed by statute. I think there is a way in which the system has developed over the last few years which tends towards strengthening the role of the Executive, and increasing the role of the Secretary of State, because when we are talking about these relationships then we are talking about relationships between two governments, between two executives, which can have the consequence of marginalising the role of the legislature. If we think about the LCO process, for example, then it has developed very much in terms of the relationship between two executives. The role of the Secretary of State in that is a non-statutory role, in many ways, but it has become critical. We are looking at the way that practices have developed rather than the law as reflected in the Government of Wales Act.
Professor Richard Wyn
Jones: Could I respond to that? I have two worries on this particular score.
First of all, in terms of relying on relationships, the fact that it is a very
unequal relationship. My background is
in international relations, before I started taking an interest in Welsh
politics, and the Realpolitik of this
is that
Q389 Chairman: Could I just come back to Professor Tim Jones and could I refer to your paper that you prepared jointly with Ms Jane Williams. Do you have it before you? (Copy handed to witness)
Professor Tim Jones: Yes.
Chairman: Could I just refer to one part? We have been bedevilled with this word "confusion" and I must say that both media and academics sometimes add to that confusion. Could I just read out a passage (and I am not taking it out of context) where there is clear confusion: "Parallel to these developments is the apparent strengthening of the UK Government's control over the Welsh Assembly Government in relation to Welsh policy. In one instance, this tendency produced a potential illegality. When considering the draft LCO on housing, the Welsh Affairs Committee objected to the LCO conferring power to abolish, as opposed to simply suspend, the right to buy." There are two errors there: somehow or other the UK Government is conflated with the Welsh Affairs Committee, and they are two very separate bodies. We are very proud of our role that is distinct from and sometimes in contradiction to the Government, but also we never, ever, at any stage, stated that we were actually opposed to the right to buy; what we were trying to do was clarify the position on policy. Would you like to make any observation on my quoting your statement and respond to the fact that you have added to the confusion and merely repeated what the media has been saying or was saying at the time?
Alun Michael: A media-driven academic quirk (?).
Chairman: Perhaps you could reflect on what I have said and write to us.
Q390 Mrs James: Do you want to give a practical example of that, when you talked about the confusion?
Professor Richard Wyn Jones: What aspect of the confusion, did I refer to? Sorry.
Q391 Mrs James: You talked about where there was the confusion between the Executive and some anomalies arising from legislation.
Professor Richard Wyn Jones: I am not sure that we mentioned confusion. Christina did the work on this particular issue.
Ms Palko: Just before I go on to that I
want to say that I have analysed the existing perspective of the legislative
powers of the National Assembly. In
doing this I considered the nature of the powers which are proposed to be given
to the Assembly by Legislative Competence Orders and by framework powers by UK
Acts. One of the concerns raised in our
evidence paper was that the Assembly has no current machinery by which it can
influence the contents over the powers granted to the Welsh Assembly Government
by Acts of Parliament. So we have got a
Parliament that decides to what extent, if any, the Assembly will control the
Welsh Assembly Government's powers under a particular Act. The same is true in relation to powers given
to the Assembly to make laws. So we have
got LCOs initiated by the Welsh Assembly Government or by an individual
Assembly member, and considered by the National Assembly of Wales and
considered by the Welsh Affairs Select Committee, but we have got these
framework powers in the Act of Parliament which are not initiated in the
Assembly and there is little control of the nature of the powers given to the
Assembly through these framework powers.
Since the commencement of the Government of Wales Act 2006 we have
noticed that the powers come more from the Acts of Parliament rather than the
Legislative Competence Orders, whereas we think that the aim should be more
powers should come from the Legislative Competence Orders, and the reason for that
is because the Assembly will be able to control the content. We do know that the Assembly does not
expressly monitor the Acts of Parliament; we have to be fair about it, they
have got a big, heavy workload; they have got LCOs to monitor and look at and
other measures, and the only committee which is actually looking at some of the
Acts really is the Subordinate Legislation Committee or, from Thursday, if the
motion will be approved to change the name, the Constitutional Affairs
Committee. So they have looked at some
Acts but what is not very clear is: what is the practical input of these
recommendations? Where do these
recommendations go? What we think is
that it is unacceptable that the Assembly has so little control in relation to
the legislative powers of the Assembly or the powers of the Executive. So far, in the paper presented there is an
annex which shows that three LCOs have been fully completed in the
parliamentary session 2008-2009, and we have got nine Acts of Parliament
completed in that parliamentary session, of which two give legislative and
executive powers, and we have got seven executive powers. As regards these executive powers, they are
very wide and cover a considerable number of subject areas. In the current parliamentary session,
2009-2010, we have identified six areas potentially giving powers to
Chairman: Could you pause at that point? You have made your points very well and what you have said, in terms of the emerging Constitutional Affairs Committee, is an indication that the Assembly rather the Welsh Assembly Government is very well aware of the challenges before it, really. We will revisit that, I think. I am about to give evidence myself to that Committee in February.
Q392 Mrs James: The Holtham Commission has recommended an independent advisory body to administer the operation of the Barnett Formula. What impact would this have on the constitutional arrangements?
Professor Richard Wyn Jones: Sorry to give an academic answer but I guess it would depend on the form that the Committee takes and where it would fit into the system, really, before I can talk about any constitutional implications. It all depends on what form that takes and where it fits into the system. That is a very difficult question to answer, I am sorry.
Q393 Alun Michael: I have listened to what has been said here and it strikes me that there is considerable muddle about the different nature of different pieces of legislation. Primary legislation does not appear in the year out of nowhere; there is a trail back. So that if you simply compare what is happening within a parliamentary year in one type of legislation and another you get a completely false picture. Secondly, is it not the case that the best example arises out of something that was in the hands in the Welsh Assembly Government and, indeed, the Welsh Assembly itself? So that, for instance, propositions could have been put by Legislative Competence Orders that were not. A prime example is the sprinklers outcome, which sat around in the administrative system in the Welsh Assembly Government for more than a year, waiting for primary legislation, which was totally unnecessary and was criticised by this Committee. So is there not a power for initiation on the part of the Welsh Assembly Government and the Assembly were they to use it?
Professor Richard Wyn
Jones: Yes.
However, perhaps I have not explained the point that I was trying to
make clearly enough. What I am trying to
draw attention to here is, in a sense, the figures are indicative of a general
trend, and what I am interested in is the overall, aggregate effect of what is
happening. What I am suggesting to the
Committee Members is what we are seeing is that powers are being passed to the
Executive in
Q394 Alun Michael: This is a different point.
Professor Richard Wyn Jones: I am referring to the point, or what I took to be your point where you were disputing the statistics.
Q395 Alun Michael: No, I was suggesting that the statistics are based on a muddle, in terms of the understanding of legislative processes. It is a little bit like the table in the Jones Parry report which is a complete misrepresentation of the comparative timescales of primary legislation and the LCO process - the point being that if you get the facts right then you can make a genuine comparison. You may reach the same conclusion but at least should we not have from academics and from journalists in Wales an accurate representation of the processes that have been dealt with?
Professor Richard Wyn Jones: I can apologise on behalf of my friends and colleagues in academia that we have offended you. I will not speak for journalists.
Q396 Alun Michael: Very wise.
Professor Richard Wyn Jones: I think there is a serious point here about executive dominance in a system which is actually ----
Q397 Alun Michael: I was not arguing about that; I was asking you about the processes and the transfer of the powers. I accept your point about dominance, and I was going to ask a question about that, which is: does that not suggest that one of the big issues ought to be the strengthening of the Welsh Assembly in general terms in its methodologies and powers of scrutiny?
Mr Williams: Can I perhaps assist there because it is a topic on which Tessa and I gave some evidence recently to the Subordinate Legislation Committee, as it then was, and indeed to their previous inquiry as well. It has struck us that the Assembly itself should really be more interested in the Westminster legislative process because there are, it strikes me certainly, various points when they could engage with the process because there are a number of Bills now, of course, which first see the light of day as draft Bills before they enter the legislative programme. We have pointed out that there seems to be more of an opportunity there that is not being exploited at the moment to actually engage with the drafting process then. When I was in front of the Subordinate Legislation Committee I drew attention to the draft Heritage Protection Bill, for example, which has a very large element of conferring executive power on the Welsh Assembly Government; it is basically for "Secretary of State" read "Welsh Ministers in Wales", and there is no territorial section in the legislation. It struck me: why is that the case? One can see the argument for the Assembly Government saying: "Yes, we want this reform of Heritage Protection" but, at the same time, should we be looking at ensuring that the next time there is a reform it is done in Cardiff Bay and not in Westminster? Equally, before coming here this morning, I looked at the - admittedly fairly briefly - report of the Culture, Media and Sport Committee on that draft Bill. There is no reference there that I could find to considering the territorial aspects of that at this end of the process, even in the sense of why is it just, as I say, for "Welsh Ministers" read "Secretary of State", or vice-versa.
Q398 Alun Michael: I am sorry if my questions were not clear but I was trying to tease out a different point to the one that has originally been made, and I found that very useful. Is the suggestion that, in fact, there ought to be some sort of form of scrutiny by the Assembly and, perhaps, by the Welsh Affairs Select Committee linked to it, in the way that there is in LCOs, when consideration is being given to primary legislation that affects Wales? Is that what you are suggesting?
Professor Richard Wyn Jones: That would be a possible way of operating. One of the things which does come out, I hope, very clearly in the evidence is that the Subordinate Legislation Committee - it is very unclear or opaque how it has actually dealt with suggestions or recommendations on the things that it manages to look at and it does not have the capacity to look at everything.
Q399 Alun Michael: Which committee are you referring to?
Professor Richard Wyn Jones: The Subordinate Legislation Committee. This is the only body in the National Assembly which actually tries to follow these things.
Q400 Alun Michael: Not the Committee in the Lords?
Professor Richard Wyn Jones: No, I do apologise. I should have made that clear.
Q401 Mark Williams: Would you see an enhanced role for that Committee? I think we are well used to, when framework powers emerge, Welsh Members of Parliament summoned off to a committee room and the Welsh Minister will be there and the Wales Minister will be there to give us some general explanation as to the framework powers that often have been requested by Assembly Ministers in legislation. What other methods would you envisage improving that communication - accepting what you say about how powers are going off to the Executive, and the powers of scrutiny that are seemingly lacking at the Assembly level? Is it just a role for that Subordinate Committee in the Assembly?
Professor Richard Wyn Jones: There is a slightly facetious point, but I would not start from here, I guess. I think it is a system which has this inherent problem. I think it is inherently unlikely that even with the best will in the world and all the resources that one could summon up, it is very difficult, in the end, to envisage how a National Assembly committee could have a meaningful impact on legislation passed in this place, particularly if it is contentious legislation. I am going back to my Realpolitik point.
Q402 Mark Williams: You have identified the problem, and some of us would share your facetiousness in these matters. There is a problem there which I think you have identified. There has been an acknowledgement; Mr Michael has acknowledged that there is an issue there about powers going to the Executive, but in terms of good government, accountable government, the role of Assembly Members in scrutinising framework powers which hitherto have been left to this place. Perhaps the other witnesses could give us some suggestions for how we could improve this.
Mr Williams: It strikes me that there is
possibly an argument about the overall capacity of the National Assembly in terms
of the numbers of Members. There is a
question though about how they divide up their time and whether they make time
to actually look at what is emerging from the
Chairman: Mr David Jones, you have been very patient. You wanted a supplementary.
Q403 Mr Jones: Yes, Chairman, thank you very much. I would like to go back to the issue of the relations between central government and the devolved administrations being non-binding but comprising of concordats, memoranda, and protocols and what-have-you of a non-binding nature. Where does this leave the citizen - usually the Welsh citizen but perhaps the English citizen - who may possibly want to sue, to assert his rights? Is there a break in the nexus which could actually prejudice the system? I am thinking, in particular, most practically, of the problems that we are all aware of in cross-border healthcare, where the arrangements between the Welsh Assembly Government and the Department of Health are of a non-binding nature. Is it not the case that the Welsh citizen might be prejudiced because of the non-binding nature of these arrangements?
Ms Shellens: Our concern is that the
citizen is disadvantaged primarily because it is so complicated. And the citizen in
Q404 Mr Jones: Sir Emyr Jones Parry does not like the word "byzantine", but it seems to me that you are talking about a byzantine process.
Ms Shellens: It is a challenging Act.
Q405 Mr Jones: It is really a muddle that, frankly, is not working to the benefit of the citizen, though, is it?
Ms Shellens: Certainly the Law Society agrees with that.
Q406 Hywel Williams: Can I ask a question of the Law Society, first, please? Do you see a lack of engagement by the Ministry of Justice with the legal profession in Wales as far as policy is concerned? If so, what difficulties have arisen because of this?
Mr Williams: I must say I heard Mr
Trench's comment in his evidence about the way that the performance had dropped
off from 2002 onwards, and I think that very much echoes our experience. In the run-up to the Government of Wales Act
and then, subsequently, the old Lord Chancellor's Department, I think we felt,
was very engaged in the whole process and in preparing for devolved institutions. Of course, we have subsequently, obviously,
had the constitutional debate about the separation of powers, but the Lord
Chancellor's Department was a very different creature from the current Ministry
of Justice, and of course they have benefited from the considerable engagement
of the judiciary and ensuring that the judicial system in Wales, as it were,
reconfigured itself to match what was happening. I think it is very interesting that the
progress that has been made in relation to the way that the court system and
the administration of civil justice, in particular administrative justice, has
continued to develop. Tessa has already
referred to the very welcome advent of the
Q407 Hywel Williams: What I am getting at is that it is somewhat haphazard and contingent on individuals actually doing something other than what they be would be really doing - taking up causes and pressing particular points.
Mr Williams: Do you mean from the MoJ side?
Q408 Hywel Williams: Yes.
Mr Williams: Yes, it is obviously part of
the work of the Law Society's Wales Committee to be alert to these things and
to make sure that heed is paid to the interests of the administration of
justice in
Q409 Hywel Williams: That reflects what Mr Trench was saying earlier on about the nature of the relationship between London and Cardiff; that the attention is taken away from Cardiff on what happens in London.
Mr Williams: Yes, this, of course, is a
fact of population and geography.
Professor Tim Jones: There is a particular issue
here in terms of being part of the England and Wales jurisdiction, the England
and Wales legal system, which means that one has to be vigilant all the time as
to the movement, perhaps, of activities, because if one thinks of something
like the Legal Services Commission, then they have an England and Wales
focus. One has to keep an eye on all
these
Q410 Mark Williams: Turning specifically to work of the Legal Services Commission, I think Ms Shellens touched on this earlier, but could you elaborate a bit more on how the role of the Legal Services Commission differs in Wales from that in England?
Ms Shellens: It is interesting. I have done a lot of work for the Law Society in the last year in training up lawyers on devolution issues and I was actually training lawyers on devolution and the opportunity for lawyers when the news was text through about the Legal Services Commission. It suddenly undermined my lecture for the day about the opportunities, and they also said: "That surely cannot happen now". So there was complete astonishment that this decision had been made, and that they were not aware that it was going to be made. Why it was so particularly important is that, in particular, in the Law Society we have done a lot of work in identifying areas where there is poor service of legal advice in major rural areas, so people have to travel long ways, for example, to get legal advice, and where they cannot get the services that they need. In addition, as you can see from the evidence that we are giving, there will eventually emerge areas of public law challenge, as your colleague, David Jones, pointed out, and we were concerned that the Legal Services Commission needs to be aware of these Welsh issues. We were worried that in making this decision without consultation those specific issues have not been taken into account, as the expectation would have been they would have been automatically taken into account, given the devolution settlement.
Q411 Mark Williams: You pre-empt my second question, which was the extent to which the Welsh situation is not taken into account by arm's length bodies. Welcome as it was that the Ministry of Justice held an event on 24 August to raise awareness of devolution, there is a long way to go. You would agree with your colleague, therefore, when he used the phrase "devolution-blind", it is still very worrying?
Ms Shellens: It is interesting because on
the train we were looking at a very helpful document by the Institute for
Government on shaping up a
Q412 Alun Michael: Can we turn to your views on how the processes develop with regard to the Legislative Competence Orders? Obviously, we see it from the point of view of this Committee, and I think we have now dealt with 15. Only one of those has fallen by the wayside because of comments in the House of Lords on drafting rather than as a result of our comments on the policy. The sixteenth is near the end of the process, so we are doing rather well. How is the process, as a whole, bedding in, in your view?
Mr Williams: Can I offer a couple of comments? First of all, I think that, from the outside looking in, there is no clarity as to what happens with some aspects of the pre-legislative scrutiny of these things. The environmental LCO is a classic example. The point has already been made that when it came to its formal stages in Cardiff Bay and, also, in this House, it went through relatively speedily but, of course, there was two years when it sat somewhere in the governmental machine between Cardiff and Whitehall, and one saw press comments on it in the environmental press. It just said it is sitting there and there is dialogue going on. I am sure there is a very interesting piece of academic ----
Q413 Alun Michael: You read the comments in our report on that?
Mr Williams: Indeed, yes, and there is a
very interesting piece of academic work on government to be done there, I am
sure, if only the papers could be accessed, in terms of what went on between
Q414 Alun Michael: Would you agree with the suggestion that has been put to us that the transfer of a draft Legislative Competence Orders ought to be from the Assembly to Parliament rather than between the Welsh Assembly Government and the Wales Office?
Mr Williams: I think it is an attractive
proposition, but I think that inevitably - and this goes for the private
legislation context - the executive impact of Legislative Competence Orders
when they are proposed is an essential aspect of it. The point about transmitting LCOs directly
from
Q415 Alun Michael: If I may, I think it goes back to the point that was made earlier about transparency and responsibility. I think it would not do away with the need for Whitehall departments to comment or the Wales Office to have a role in that process, but what it would do, though, would be to make a clear starting point when it arrives here and allow greater oversight by this Committee in terms of scrutiny of the processes and discussion within Whitehall.
Mr Williams: I think it would open up the whole process if the debates that would undoubtedly have gone on that resulted in these, however many pages it is, of exceptions in the environmental LCO had been opened up to the light of day, because I am not aware that any of the processes anywhere benefited from officials in the Whitehall departments which contributed to this process explaining why they were so concerned about these exceptions. This does lead, of course, to the question about the whole evolving shape of Schedule 5 of the Government of Wales Act, which I think already is in need of an oversight exercise in itself to see whether some of the drafting can be tightened up and whether matters within fields can be amalgamated.
Q416 Alun Michael: So there would be a form of consolidation rather than tearing it all up.
Mr Williams: A sort of consolidation, but probably more a sort of going through it with a sharp drafting pencil to try and come up with something that is crisper and more comprehensive to the citizen.
Q417 Chairman: Could I ask you to pause at that point? It has been suggested to us in defence of the way in which the two executives dealt with the environmental LCO that we were dealing - they were dealing - (a Freudian slip there) with highly complex issues, very complex policies, and it does take time to deal with that. I am just saying that as an observation. By contrast, could I tempt you to make some observations about the way in which we, as the Welsh Affairs Committee, dealt with the Welsh Language LCO, because it was constantly predicted in the press that there would be mayhem here, when in fact, with all due respect to everyone else that was involved - and everyone played their part - the matter was resolved here, not elsewhere.
Mr Williams: Can I come back briefly on the environmental LCO, because it happens to be an area close to my own areas of practice. If you were going to tackle an area of complexity the environment is probably at the top of the list; any environmental legislation is phenomenally complicated, and in that sense the environmental LCO simply reflects other bodies of law. The biggest concern is that if all these exceptions had to be applied in relation to Schedule 5, if we then move on to Part IV in Schedule 7 all these exceptions can certainly drop away and these concerns are going to evaporate. Moving on to the Welsh Language LCO, which I have not studied quite as closely as the environmental one, I think you are quite right; I think blood on the wall was predicted and it did not appear, and I think that it appears to have gone through relatively smoothly in the event. If one was to offer a comment, and again one is conscious about "Don't believe what one reads in the press" as opposed to the actual inquiry report, I will take my life in my hands and make the point that there was possibly an issue in terms of the question of asking the Assembly Government what did they intend to use the powers for, rather than why did they need them in the first place. In terms of things like the Royal Charter bodies and the £200,000 of public funding points, whether having those set as limits and whether that is then synonymous with the Assembly immediately going off and legislating up to those limits, I think, is a point perhaps to an outside observer.
Chairman: I really must apologise to Sian James because many of these points she would have been wishing to raise. I must allow Mrs James to ask the next two questions.
Q418 Mrs James: The All Wales Convention urged greater transparency in the LCO process. In your opinion, how could that current system be further improved?
Mr Williams: Again, we have had a number of LCOs of varying degrees of complexity and precision. I think that in terms of the transparency point, it is, as I said a few moments ago, trying to open up to the light of day this process that evidently goes on between government in Cardiff and in Whitehall at the pre-legislative stage in terms of the shape of the drafting and, in particular, what is carved out and what are the concerns. I think it is that aspect of it that is of concern, and I think that clearly it is unfortunate in that it potentially lengthens your inquiries, but it might do no harm on a suitable occasion to try and have a good, hard look at what went on at that stage before the LCO saw the light of day and actually get officials from the relevant Whitehall departments that have had input into the drafting of the LCO to come and talk to you about what they saw as being their role. I think that would certainly lend a degree of transparency into how these things get formulated.
Q419 Mrs James: Just building on that, a greater emphasis on the pre-legislative scrutiny.
Mr Williams: I think, as I said - and bear in mind it is a fairly novel process - when it has hit the formal part of the parliamentary procedure it has moved fairly reasonably crisply, given the potential complexities. As I say, you have these periods of time when nothing seems to be happening to it on the outside, and clearly something is going on within the machine. As consumers of the legislative product, or the measures that might ultimately eventuate, I think we would like to have a better understanding of what goes on there, and perhaps this Committee is a means of doing it.
Professor Richard Wyn Jones: Can I respond to a couple of the questions very, very briefly? First of all, Mr Michael made a really intriguing suggestion that the LCO process, in a sense, be a legislature procedure, which I have to say, instinctively, I warmed to immediately because I think that is how I would like to think democracy works and I would very much like to see backbench Members of this place, in a sense, act as champions of the sister parliament in Cardiff. "Sister Parliament" was a phrase which Sylvia Heale used at the opening of the new senate programme (?) and I thought that was an interesting and potentially productive way of thinking about it. However, I do worry about the practicalities of that, to be honest, as it would, I suspect, inevitably be executives who do all the work in the end, but symbolically I could certainly see the value. In terms of the role of this Committee - you asked specifically about its role in the LCO process - maybe I am just restating the problem, in a sense, but I think this Committee has a very difficult role, because it is a fine line between pre-legislative scrutiny and double scrutiny, if I can use that distinction. Double scrutiny is obviously what my colleague here was referring to in the sense of looking at what the Assembly intends to do with powers, which is problematic in lots of kinds of ways in terms of democratic mandate, but pre-legislative scrutiny is your job and I am not quite sure where that line is. I think it is a very tricky one, and if we do move to a different party in government at this end of the M4 then I think that is going to become a really live issue, and I think this is a very, very delicate one, because that line is not so obvious.
Alun Michael: I am very interested in that response, because, actually, the legislators here acting as champions for the Assembly is something that has happened. Actually, there is developing, certainly, I can see within my own party (other colleagues can speak for theirs) a much better understanding of the potential for mutually supportive roles in the two places. Actually, the Welsh Language Order, which the Chairman asked about, is a case in point. I want to put to Huw Williams, because I know, Huw, way back from the days of drafting of the Cardiff Bay Barrage Bill, how meticulous you are in what you say, to suggest that you go back and look at what happened with the Welsh language LCO, both the evidence and the report and the commentary that we made subsequently. Actually, what happened is that this Committee asked what is being proposed? What is being attempted to be achieved? Does the drafting actually deliver on the intentions? We proposed back to the Assembly (that is both to the Welsh Assembly Government and to the Assembly itself) things that actually met the concerns of the Welsh Assembly Committee in what they expressed in their report, and actually was more ambitious in terms of the extent of devolution of powers. That seems to me a good point. The reason I made it is that I find quite an intriguing discussion going on in this evidence session, Chairman, which might be worth pursuing in some other way.
Chairman: This is a rhetorical question, and Mr Williams can respond in writing, I think.
Alun Michael: The final point is that scrutiny committees in this place, the Standing Committees, take evidence before they go on to do the normal ping-pong between both sides. That is a considerable development in the nature of legislation here, which might be worth reflecting on.
Chairman: You have brought your conclusions to a comment. I do not think they require a response immediately now.
Mr Jones: I would like to explore the
discussion we have just been having a bit further, but before doing so I would
like to turn to the issue of Private Members' LCO applications. It strikes me that the LCO process does not
actually lend itself terribly well to a backbencher's proposal. Can we go back to the sprinkler application,
which was really, in essence, a very simple application? The Assembly Member in question had a
proposal that there should be sprinklers installed in every new-build house -
very straightforward. We went through
years before the LCO was actually passed, and it seems to me that in that
particular case it would probably be far preferable if the application for
competence actually had a draft of the proposal annexed to it, so that the
Assembly was, in that particular case, empowered to enact an Assembly measure
in the form attached to the draft. It
seems to me that that would actually achieve what the backbench member wanted
and would probably work a lot more quickly because
Q420 Chairman: Professor Tim Jones, would you like to respond to that, because it has been a dialogue between us and Mr Williams for a long time.
Professor Tim Jones: It is an interesting suggestion, and while you were putting it forward I was trying to think of what the potential objection to it might be. I think the objection might be that if it is to (however helpful it might be) cross this line of principle between conferring legislative competence and actually knowing what that competence is going to be used for.
Q421 Mr Jones: Is that not posturing, in reality?
Professor Tim Jones: I am not sure that it is. Of course, you would have to ask the people who might make that objection. I am thinking what it might be.
Q422 Mr Jones: It strikes me that you want to arrive at a practical conclusion swiftly. That is the way to do it. Most backbench LCO applications would be similar to Private Members' Bills in Parliament; very short pieces of legislation aimed at a particular mischief. It seems to me that if we put aside what I would refer to as the posturing and actually have a look at the meat of what we are trying to achieve, that is a practical method of arriving at a satisfactory conclusion.
Professor Tim Jones: The objection that might be taken to that idea is that an LCO confers an enduring legislative competence. It is quite possible that a differently constituted assembly could decide that it is too much of a burden on the building industry to have sprinklers and were no longer going to insist upon it.
Q423 Mr Jones: They would have the power to revoke it if necessary.
Professor Tim Jones: They would, in any case.
Q424 Mr Jones: Precisely. If that was taken specifically on the face of it. It is just a suggestion. It appears to me that a lot of these backbench proposals are probably going to result in a very lengthy period before actually they are converted into an Assembly measure, and this might be a practical way of dealing with it. I just put it forward as a suggestion. Could I go back to your memorandum, please, Professor Tim Jones? You put forward a principle that the Assembly had the right to promote extension of its powers in a clear and transparent way without first seeking permission from the United Kingdom Government. Whatever we think of that as a principle, do we not fall foul of Professor Wyn Jones' Realpolitik, which is essentially that if the rules, if you like, were changed and an LCO proposal were put forward which was not acceptable to the United Kingdom Government, they would not be approved by Parliament, because of course the Government would be in the majority. So do you not think that whatever your principle it is going to founder on Realpolitik?
Professor Tim Jones: That may be the case because
that is the way that the process has developed.
If we go back the best part of three years, the Welsh Assembly
Government did publicly announce the first couple of proposals, and subsequent
to that there has developed this process called clearance (for want of a better
phrase) before the LCO sees the light of day.
It may be that that is the Realpolitik
of the situation, but I think it may present difficulties or greater
difficulties when at some future point the government in
Q425 Mr Jones: That is clearly the case, but we know as a matter of fact there have probably been similar problems going on behind the scenes in the current process where the government in Cardiff and the government in Whitehall are of the same political hue. We know that is certainly the case, do we not?
Professor Tim Jones: Yes, but I think it is a question to ask of the Welsh Assembly Government whether it is happy with the current process; whether it is happy with not being able to make public proposals.
Q426 Hywel Williams: Can I ask you a specific question? The Government of Wales Act does not specify that the Secretary of State must say yes or no to the laying of a Legislative Competence Order before both Houses of Parliament. Do you think that this is a weakness?
Professor Tim Jones: That it does not?
Q427 Hywel Williams: Yes.
Professor Tim Jones: It may suggest that the process was intended to work in a slightly different way than it actually has. I am not sure that it is necessary for that to be put in the statute; it is a matter of practice that has developed, and since it is a practice it can change and it may be necessary at some future point for there to be a departure from it.
Q428 Hywel Williams: If, as might be the case, the Government in Cardiff and the Secretary of State took a certain decision, can you envisage a judicial review being applied for on that particular decision?
Professor Tim Jones: Theoretically it is possible, yes.
Mr Williams: Could I perhaps comment briefly on that? The Secretary of State, if he were to refuse to lay, has to give reasons. So, therefore, once you are into the field of a duty to give reasons, you, by its nature, have to discuss the potential for judicial reviews. My feeling for it would be that if such a claim were mounted (a) it would be part of a wider controversy that had a political element to it. Secondly, I suspect, on the basis of the lines taken by the courts in other instances (the GCHQ case comes to mind), is that they would probably agree that in principle they had power to review to the Secretary of State because, at the end of the day, he is a Minister and not laying is a Ministerial act, but I suspect that they would then reach the threshold at which the courts would say: "We are now into the matter of politics" and would probably tread very carefully unless the Secretary of State had done something totally egregious.
Q429 Nia Griffith: Can we move on then and talk about the capacity in Wales in terms of the Civil Service? If people say: "How are we going to cope then if we have not had the training? Are we getting the people - can we attract in the staff? Have we really got the full capacity that we need?" what would you suggest, if you think there are any shortcomings, that we do about it?
Mr Williams: At the risk of starting
again, if you look at the evidence given to the All Wales Convention the
assurance is given there that
Q430 Nia Griffith: There is quality and quantity, is there not? There may very well the necessary quality but the issue is the time, and the capacity. You are actually saying there would be an issue on the amount of time.
Mr Williams: If you said: could they take on responsibility for development control legislation in Wales without increasing the number of civil servants able to think that aspect of policy, then I might question whether that is the case. Tessa may have an example in her area of specialism as well.
Ms Shellens: As part of the paper that we submitted to you we are particularly concerned about the legislative deficit between England and Wales where the policy is exactly the same and where there may be delay in secondary legislation coming through for no obvious and apparent reason. We do not know whether that is due to lack of staffing, or what it is, but in established fields where Huw and I are involved, in planning and health, respectively, there should not really be a significant legislative deficit where there is no disagreement in terms of policy, because you should be expecting, say, in mental health law, that if there are regulations coming out in England and Wales they are either going to be exactly the same or very similar indeed. They would be coming out on a par with each other.
Q431 Nia Griffith: So, from the public perspective, it is something which actually does not play well.
Ms Shellens: It does not.
Q432 Nia Griffith: They are going to have to wait quite a long time before something comes through.
Ms Shellens: It has been said to me by
lawyers from
Q433 Mr Jones: In terms of capacity, one recent matter that caused me significant concern was the transfer to the Welsh Assembly Government of competence for the building regulations, which is a huge responsibility, coupled with a very ambitious timetable on the part of the Welsh Assembly Government. Do you feel that in that particular case there is the capacity within the Welsh Assembly Government to produce new building regulations for Wales?
Mr Williams: I do not know enough about
how they are proposing to staff up to deal with it. I can fully understand the case as to why
they have asked for the power, because if you look at the way the climate
change agenda has developed in
Q434 Mr Jones: It just appeared to me that from a practical point of view, the Assembly Government may well have bitten off more than it could chew in respect of building regs.
Mr Williams: As I say, I do not know
exactly how they are proposing to staff it up and I do not know what
arrangements they would have put in place to draw on expertise in Whitehall in
relation to this area, but it does in principle raise this question about its
inherent capacity: to what extent should you, or should you in practical terms,
take material that has been produced in Whitehall and say: "That is good enough
for Wales so we will use that". We can
focus the resource on something else where we really want
Q435 Alun Michael: You have said in your memorandum that you have been arguing (this is the Law Society) consistently for a Wales statute book. Could you explain to us what you mean by Wales statute book, who should take the lead in drafting it and how would it help both lawyers and non-lawyers?
Ms Shellens: Our point, I suppose, is that
yes we can ascertain the LCOs; where we are having more difficulty is in
ascertaining the various Acts with various powers in them, and it is almost
impossible to scrutinise whether powers are going to be taken up by the
Assembly or not and whether they are going to be left redundant, and is England
moving one way and are we not moving anywhere at all? So we have come to the view that the only way
that you can have a proper body of law is by a form of statute book which gives
direct access not simply to LCOs and Assembly measures but, more importantly,
the statutes where powers are given to
Q436 Alun Michael: Would that go on to - because you touched on the question of where powers are taken up - implementation? I have some experience of consolidation because I had to deal with company law reform legislation for a period, and it is actually a moving target, very often, is it not? Is the suggestion, therefore, not so much having a book (perhaps that is slightly misleading) as having an electronic and constantly updated body of information about where the law stands which, in some ways, would be quite a new form of repository, would it not?
Ms Shellens: We think it would but we just
think there is such an important need for it, and we cannot see other than it
would have to be publicly funded because it is part of the access of citizens
to the law that has been now established in
Professor Richard Wyn Jones: A very quick point, and I am sorry if I sound as if I am advertising, but Welsh Legislation Online does part of this job already, but there is a bigger job needed and we need proper resource to do that, because it is hand-to-mouth at the moment.
Q437 Alun Michael: So it is moving from what is there to something much more comprehensive.
Professor Richard Wyn Jones: The bare bones are there; it just needs to be staffed up - was the phrase used?
Ms Shellens: Where it would be a part of an obligation to be kept up to date.
Q438 Alun Michael: Could I ask about the accommodation of the Welsh language within the Welsh statutory process? Two things, I suppose: how would you see it accommodated? The other one is: how do we avoid it causing delay? For instance, one of the things that I am aware of is the subsidiary to legislation under the Clean Neighbourhoods Act, which actually was a piece of legislation designed on the experience in Wales rather than England, and yet Wales had the secondary legislation a year later than England. Are there ways of having proper accommodation of the Welsh language within the legislative system, but not allow it to become a cause of delay, if you like?
Professor Richard Wyn Jones: In terms of things like Wales Legislation Online, we are currently engaged in a project to ensure that that is fully bi-lingual but I think that question, in a sense, Mr Michael, is directed at the people who are drafting and all that kind of thing. I am not qualified to respond to that.
Mr Williams: Tessa and I gave evidence
about ten days ago to the Subordinate Legislation Committee in
Q439 Alun Michael: You suggest that should be our bedtime reading?
Mr Williams: I was about to say, if you do feel insomnia then I can recommend it.
Chairman: On that very serious note, could I thank you all for your evidence today and for your forbearance as well, because it has been a very long, two sessions. If you feel that you wish to add anything further, please feel free to write to us. I am sure that out of the evidence that you have given you may well wish to reflect on other matters which you have not had the opportunity to develop today.