COMMISSION ON THE POWERS AND ELECTORAL ARRANGEMENTS OF THE NATIONAL ASSEMBLY FOR WALES

MINUTES OF PROCEEDINGS

of the

EVIDENCE OF:

ROBERT BUCKLAND

held at The Courtroom, National Museum of Wales, Cardiff on Friday, 25th October 2002

LORD RICHARD: Mr Buckland, thank you very much for coming. We are very grateful to you indeed for coming to give your evidence. I wonder, for the record, if you would introduce yourself.

MR BUCKLAND: Thank you, Chairman. My name is Robert Buckland. I am a barrister practising here in Cardiff and on the Wales and Chester circuit. I am a mere 34 years of age, which surprised your secretary somewhat this afternoon, but I hope that perhaps I will add a younger voice and perhaps a slightly different perspective this afternoon. My political background is somewhat chequered. I was at one time a county councillor on the old Dyfed authority for three years before its abolition in 1996. I stood for Parliament on two occasions: at Islywn, the by-election caused by the resignation of Mr Neil Kinnock, and then at Pembrokeshire, the 1997 General Election. Needless to say I was unsuccessful on both occasions. I have also stood for the European Parliament in 1994 and latterly in 1999.

LORD RICHARD: Which party?

MR BUCKLAND: For the Conservative Party. It is as a Conservative, but a free-thinking Conservative, that I speak to you today. Obviously this is not going to be a monologue. I have prepared an outline of the essence of the submission I wish to make to the Committee, which I hope that members have all had a chance to see. I have read carefully the terms of reference and I should say at the outset that it would be foolish of me to claim an insight into all aspects of your inquiry. I speak to you as somebody who is very interested in the development of the National Assembly and very interested in Wales' position within the United Kingdom and more widely within Europe. I speak from what is old-fashionedly called a unionist perspective, that is somebody who is committed to the United Kingdom but who believes that in particular Conservatives have to accept that times have moved on and the situation is now dramatically different from the one that confronted them at the 1997 General Election, for example. In recognition of that I think it is time that we started to think imaginatively and constructively about how the Assembly can be made to work better. You may have found amongst previous witnesses, and I feel a little humbled having seen, amongst others, Professor Hazell here yesterday, a consensus that perhaps although the Assembly is a new institution and allowances have to be made, in some respects the high hopes that were expressed by those who campaigned actively for a yes vote have yet to be fulfilled.

I think most importantly in the realm of accountability, for want of a better word, the old system with the Secretary of State rubber stamping secondary legislation and running things, as it were, at his own behest was criticised, and probably justifiably so. I posit this question: have we really improved things since the dawn of the Assembly? From my analysis earlier in the year of the number of secondary pieces of legislation that were properly scrutinised, I think the answer has to be sadly no. Very few pieces of legislation have had the proper scrutiny that perhaps was within the hopes of those advocating a yes vote. I think that is worrying. I think it should be very worrying for everybody who wants to see improved law making.

The modern trend for primary legislation to be bare bones Henry VIII type legislation with the devil in the detail of secondary legislation is not perhaps a problem particular to Wales, it would affect the whole of the UK and its constituent parts. It is, in my submission, creating a deficit and I go so far as to say a democratic deficit. To answer the simple question is law making in Wales better now since the Assembly was set up, I think I would have to say no. Therefore, it is to improving the efficacy and the quality of legislation that I have been in particular drawing my mind in recent months. One of the suggestions that I came up with is outlined in essence in the body of the submission that I tendered to you in writing. I suppose you could, to coin a phrase, describe it as a particularly unionist approach to the problem that I have identified, which would be to bind the institutions here in Cardiff and processes at Westminster in a much more formal way than we see at present. I know that currently the Assembly has the power to consider what they call draft Bills and those draft Bills can then be considered either by the House of Commons and House of Lords in full session or, for example, by joint committees of both Houses considering draft legislation as they so often do in a wide variety of areas. It is really to that system that I have directed my thoughts.

I have come up with a few ideas which I accept at the moment are very much in outline but which I hope will form the basis of a real and meaningful debate about how we can improve our law making, not just within the Conservative Party but also more widely here in Wales and at Westminster. The essential suggestion that I have come up with is that, yes, the Assembly should have primary powers of law making in all areas where it currently has a remit. But along with that comes what I would submit to be the best way of dealing with primary legislation, that is to have in effect a bicameral system for Welsh legislation.

Now, a visit to New South Wales earlier in the year impressed me in the sense that the two house system that is used in New South Wales, the lower house and the senate, seems to be a very lively forum of debate and provides certainly in the form of the senate of New South Wales very good quality in terms of the input and deliberative process. I am a Conservative though and I do balk a little at creating more elected representatives and yet more Houses of Parliament or legislation. My view is that we can do the job with our existing representatives. There is an alarming perception, which is probably untrue but it is a perception nonetheless, that since we created the Assembly we now have a lot of AMs running around like white rabbits with too much to do and MPs who have now been shorn of a large part of their previous responsibility. The perception is perhaps that MPs do not have enough to do. If that is correct or incorrect, I do not know, but it does exist as a real perception.

I think one of the ways that we can abate that perception is to bring in our Members of Parliament and, as I have suggested in one part of the paper that I submitted, members of the upper house into the process of primary legislation in Wales. How is it going to work? Take the Care Standards Bill, for example. That would have started on the floor of the Assembly, would have been debated and at the end of the day after perhaps a committee stage and a report a bill would have been passed, and then passed for consideration to either a joint committee of both Houses of Parliament or a committee to all intents and purposes similar to the Welsh Grand Committee of MPs. That committee would then in effect be the second chamber dealing with the Bill as presented to it. It would have, I hope, a more deliberative role, perhaps a more considered role, a very similar role to that which is embodied in the House of Lords I think. Then the Bill comes back and it is passed and becomes an Act of the Welsh Assembly. What about the tensions between Westminster and the Assembly?

LORD RICHARD: Do you mind if we interrupt you?

MR BUCKLAND: Not at all.

LORD RICHARD: What you are envisaging is in effect the Bill will be passed here in Cardiff, the completed Bill will then go up to the Grand Committee or to a joint committee of both Houses in Westminster. They would do the scrutiny job of the Bill then and it would come back down here.

MR BUCKLAND: Yes.

LORD RICHARD: I see. So in effect you would have a bicameral nature.

MR BUCKLAND: That is right.

LAURA McALLISTER: What is the advantage of that over improved scrutiny in Cardiff?

MR BUCKLAND: I think the advantage would be this. I think the trouble with having a unicameral system is that it is all rather hasty. I think the benefits of having a second more deliberative chamber mean that there is perhaps more light shed on the subject rather than the heat of debate that inevitably we get on the floor of the Assembly. Now like it or not, although there has been much talk about the Assembly being dramatically different from Westminster in culture, we are dealing with a chamber of elected representatives and there will be at times a lot more heat than light generated in that chamber about the legislation before it. My worry is that we will have the unsatisfactory situation that we have in the Scottish Parliament - I am putting aside any views one may have about hunting, for example - where there seems to be a large body of opinion which says A This is a unicameral legislature, it does not seem to be considering the Bills before it carefully, it seems to be all terribly rushed. Is it the best way of dealing with Scots law?@ I am not holding a brief for what they do in Scotland but I think in Wales we could avoid that problem perhaps by bringing in the extra element which would be members of the Westminster Houses of Parliament. I should say they will be members of the Westminster Houses of Parliament who are either elected Welsh MPs or members of the House of Lords who are from Wales and have a Welsh connection. Can I add also that the political balance of that body - the Westminster based body - in my view would have to reflect the political balance of the lower house.

SIR MICHAEL WHEELER BOOTH: How could that be? Supposing you had a Conservative administration based on a Conservative majority in the House of Commons, your quasi Welsh Grand Committee, you said you wanted Welsh MPs on it, most Welsh MPs probably would be Labour or Plaid Cymru.

MR BUCKLAND: Yes.

SIR MICHAEL WHEELER BOOTH: How would you do that? How would you work that?

MR BUCKLAND: It would have to be a settlement as reflected upon the political outcome of the Assembly election.

LORD RICHARD: Assembly election?

MR BUCKLAND: Yes.

LORD RICHARD: Not Westminster election?

MR BUCKLAND: That is right. I think a Conservative Government would have to accept that in order to preserve the balance within the union that the Westminster based body would have to reflect the political settlement in Wales rather than the settlement at Westminster. What happens on the Welsh Grand Committee at the moment is that we have a few Conservative members of it. They are brought in - Nigel Evans was on it at one stage I think before he went into the shadow Cabinet - because there is a perceived need for some balance to reflect the number of people who have voted Conservative but do not have any representation in Wales.

LORD RICHARD: You are talking mathematical, are you not? You say look at the Assembly and see what the political balance is in the Assembly. Never mind what the political balance is in Westminster as a whole.

MR BUCKLAND: Yes.

LORD RICHARD: Then you have to reproduce the political balance of the Assembly in the Grand Committee even if you have not got enough MPs to do it.

MR BUCKLAND: Yes, because this is Welsh legislation which at the end of the day will be Assembly generated legislation.

LORD RICHARD: If it was slightly West Lothian what would you do, bring an Englishman on to the Grand Committee in order to legislate for Wales?

MR BUCKLAND: I think you would only need to do that for example if you had - wonder of wonders - a Conservative administration in Cardiff. Then you would be looking for a reflection of, say, a Conservative majority in Cardiff which may not be how it is at Westminster, for example. In theory that could happen. I think there has to be give and take and we have to start upon the premise that this is Welsh legislation generated by the Assembly and the balance of Westminster has to reflect that otherwise the tensions that even now we are seeing with governments of the same hue at Cardiff and Westminster are just going to get worse.

TED ROWLANDS: If the joint committee, whatever committee is constructed at the London end, amends the Bill in a manner which will be unsatisfactory from the Assembly where will the sovereignty lie in the legislation; will it be in Cardiff or where would it be? Where would sovereignty lie finally?

MR BUCKLAND: I think we would have a Parliament Act situation, I would suggest. I think perhaps some element of delay reflecting the 1949 Parliament Act. No remit in money bills, for example.

TED ROWLANDS: If the Bill was amended, having gone through the legislative process at Assembly level, it was sent up to this joint committee and amended there in a way which was not satisfactory, then the Bill would stand for a couple of months and then the Assembly would pass it on the nod. Who are the people who have the final say.

MR BUCKLAND: Ultimately the Assembly I think. I was jumping ahead of myself. I was thinking of an example where perhaps the Bill was voted down which would be a very different situation but amendments, as happens now, get passed in the Lords. I had the experience the other day that I drafted a nice little amendment for the Proceeds of Crime Bill, it was passed in the House of Lords and then struck down by the Commons. Well, that is life, the Commons is the elected body.

TED ROWLANDS: The Assembly would be the ultimate legislative authority?

MR BUCKLAND: Yes, I think it should be.

SIR MICHAEL WHEELER BOOTH: How is that compatible with the British theory of the sovereignty of Parliament?

MR BUCKLAND: The Assembly is a body, of course, that was created by Parliament.

SIR MICHAEL WHEELER BOOTH: It is a creature of Parliament.

MR BUCKLAND: It is a creature of Parliament. At the moment it has a rather unusual status I would accept. It is different from the Scottish Parliament, I have to accept that. With the conferral of primary powers the Assembly itself would change, would it not, in its nature, and would itself then be a legislative body with the same status or similar status to that of Westminster.

SIR MICHAEL WHEELER BOOTH: Realistically what chance do you think there would be of getting the House of Commons to agree to this suggestion you are putting before us? Realistically?

MR BUCKLAND: I am a Conservative in Wales, I have always got to be optimistic. Realistically? Well, I would like people to be imaginative and to think broadly about where we go. The current situation to me is fraught with very worrying imbalances and the sorts of tensions which play into the hands of people whose agenda is entirely diametrically opposed to the values that I believe in. I think this sort of imbalance needs to be looked at in perhaps a unique and imaginative way.

TOM JONES: I think it is so easy for us to dwell on the exact details of 1996 and 1997 when we had to move forwards so I welcome that approach. What I found somewhat contrary to that was you were saying well only primary powers for the existing responsibilities of the Assembly as if to say never shall there be any other developments or evolution of retained Whitehall responsibility with Assembly growth and development. That seems a bit of a straitjacket saying primary but only for existing and not leaving an opportunity for the Assembly to just refer to that. It is something that would develop and evolve and actually, if necessary, take on wider responsibilities.

MR BUCKLAND: Yes. I share some of the concerns about what I have described as the labyrinthine division of responsibility which we saw, for example, in the foot and mouth crisis. I think the granting of primary powers will go a long way to solve that sort of problem to begin with. I think at a stroke we would have more clarity in the existing areas that the Assembly has a remit over. I am a little cautious about broadening powers because ultimately I am a unionist. I do think that certain areas of responsibility are better dealt with now in Cardiff but my view is that I think home affairs, defence, foreign affairs, those sorts of matters are better dealt with at a UK level. I am not closing the door.

TOM JONES: Broadcasting.

MR BUCKLAND: That is a classic one, is it not, S4C. The strange anomaly in the public perception. Then we get into the sort of labyrinthine area again that if we divide off S4C, I am not averse to it, certainly I would not close the door on a widening of powers. I have described it as not wider but deeper, a deepening in the quality of the powers that the Assembly currently enjoys. I think let us go one step at a time.

LORD RICHARD: What you are really doing is going for a bicameral legislature.

MR BUCKLAND: Yes.

LORD RICHARD: That is the object of it.

MR BUCKLAND: Absolutely.

LORD RICHARD: It is nothing to do with where the powers lie, it is saying that there ought to be a second body somewhere which checks up on whether or not legislature in Cardiff is doing its job properly.

MR BUCKLAND: That is right.

LAURA McALLISTER: With respect, what Lord Richard said there is as you describe it and you have said very honestly because of your unionist perspective you want this to be in Westminster. I do not think you really answered my point about how that would improve scrutiny. This is where you are coming from but it seems to me you are being led by the unionist perspective rather than by the policy delivery perspective or the accountability perspective.

MR BUCKLAND: There is a consensus, is there not, that if the Assembly is to have primary powers then it needs more members.

LAURA McALLISTER: I do not know if there is a consensus on that. We have had lots of approaches.

MR BUCKLAND: I do not agree with that at all. I think that would be a mistake for suddenly the Assembly to grow vastly from 60 to 80 or even more. There may be a case for perhaps a slight expansion but a lot of the problem, I think, would be dealt with by the suggestion which I have come up with which is a bicameral approach using existing representatives from Wales elected by people in Wales for Wales to scrutinise legislation. This body, of course, does not have to meet in Westminster, it can meet and it should meet, I would suggest, in Wales. There is nothing to stop that happening at all. We know the Grand Committee has met in Wales on very many occasions indeed. I think the simple answer to your point A Does it improve scrutiny?@ , yes it does because instead of having one view from one chamber, you have a second view from a second body with inevitably a different set of outlooks, a different perspective. I think that has got to be good.

LAURA McALLISTER: You said a moment ago a committee as formed, which would be rather strangely formed, would have to reflect the composition of a settlement in Wales. It would be a duplicate body from a different legislature.

MR BUCKLAND: From my experience, I think the experience of AMs is quite different from that of Members of Parliament. Even members from the same parties seem to have quite a different outlook on the way things should be done. Now I think that is good and healthy. Instead of having one culture dealing with the legislation you would have two, I think that is an improvement.

PETER PRICE: Your argument for bicameralism follows the sequence that first of all you posit that there would be primary law making powers and then that in the only example we have got in the UK of that in Scotland that in a unicameral legislature it has not been very successful in the scrutiny of primary legislation. Now is it possible to give any examples of where you think the Scottish Parliament has failed?

MR BUCKLAND: I do not want to get into a debate about hunting, it is not appropriate at all, but whatever one= s views about that particular issue, I think the way in which the Scottish Parliament dealt with it was at the very least rushed I would submit and showed a remarkable lack of sensitivity to the possibility that there may be either a middle way or another point of view.

LORD RICHARD: That is not scrutinising legislation, that is politics.

MR BUCKLAND: I accept you can draw a difference but I think it had an effect in that case of resulting in, if you like, a steamroller which in practice that legislation was effectively. You have to contrast that with what is happening in Westminster and even here in Wales, although Wales does not have that particular power. The way the debate is dealt with is dramatically different and in my mind it is far more accommodating to all points of view, whether one is for middle way, whether one is for, whether one is against. You cannot say that the debate is not a proper one and that is the debate at Westminster.

LORD RICHARD: That is not scrutinising legislation in the way the Lords scrutinises legislation.

MR BUCKLAND: I think if we had had a second chamber in Scotland then perhaps some of the other viewpoints that we hear about south of the border would have come to the fore and there would have been a chance for those viewpoints to be expressed in the way that legislation was amended, in the way that it was scrutinised and it would have been a far more deliberative process and the legislation at the end of the day, in my humble opinion, would have been better.

VIVIENNE SUGAR: I am not a constitutional expert but can you explain to me why the bicameral system did not work for the Dangerous Dogs Act.

MR BUCKLAND: Good question. I was even younger than I am now but I can remember the circumstances: a spate of dog attacks and then legislation, hey presto, within a few months. I think that is an example of how not to do things. I think I have to answer your question this way: I do not think a bicameral system invariably will stop such a rash use of legislative procedure but it is a pretty good safeguard against it. Acts like that do stand out in the memory and they stand out as examples of how not to do things. What we do not want to end up with is that sort of situation becoming the norm which is what I worry would be the case if we just had a unicameral system. The very fact that it has to go through two Houses of Parliament slows it up enough to allow for greater quality of scrutiny.

PETER PRICE: The way in which you are proposing that this system would work, you would have the Assembly having actually adopted the legislation and therefore taken a thoroughly worked out position, in so far as it is convenient, and there would be a lot of political capital invested in that position before it then passes to this second chamber. Does that not put that second chamber in some difficulty given the advanced stage the legislation is in at that time except to make relatively minor drafting type changes, pointing out how something would work in practice or things of that sort?

MR BUCKLAND: That is the case in almost every major piece of legislation, is it not, a massive amount of political capital is invested in major pieces of legislation. They are heralded in the Queen= s Speech, you have flagship bills, it is part of political life, is it not? I do not think a self-respecting second chamber should be frightened at all about interfering and making things better. It does not stop the existing House of Lords from doing that, some people would say interfering, it does not stop them, I do not see why it would stop a second chamber dealing with Welsh legislation

LORD RICHARD: If I can follow this thought. It is a different sort of chamber. The House of Lords is not at all comparable to the Welsh Grand Committee. First of all the Welsh Grand Committee are Members of Parliament, they have a constituency, they have electorates, they are responsible for their electorates, whatever else I am, I do not have electorate. You are mixing fish and fowl.

MR BUCKLAND: Perhaps the suggestion that I have of a joint committee would inject that vital part of the deliberative qualities of the Lords into the second chamber. The Lords itself, as you well know, Chairman, far better than I, is undergoing great change, great change initiated when you yourself were in office. In the end that will result in a part elected chamber, at the very least, it has got to from my perspective.

TED ROWLANDS: First of all just to clarify things. A Bill has never really ever been taken to a Welsh Grand Committee for the very reason that there is no balance, the balance of the Commons in the Welsh Grand Committee, so although it has the power to do so every government has refused to use the Welsh Grand Committee. Even the Welsh Local Government legislation in the last Parliament was not carried through the Welsh Grand Committee. Who would take the Bill through this joint committee? You have a Bill that has been sponsored by Assembly ministers and then it goes to this joint committee. You cannot have a Westminster Minister doing it because presumably it is not his or her Bill. Would the Assembly Minister take this Bill through? Would he or she get attached to the joint committee? Somebody has got to carry the Bill through the committee normally.

MR BUCKLAND: In the Lords obviously it is a member of the government in the Lords who carries it through. That is an interesting point. I would have suggested the Wales Office, the minister in the Wales Office, because the Wales Office is responsible for, in effect, liaison, for want of a better word, between Assembly government, the Assembly institutions and Whitehall/Westminster.

LORD RICHARD: The two governments are different. You have one administration in London. Do you expect the Minister in London actually to take a Bill presented in the Assembly, passed by the Assembly, by his own political opponents, through?

MR BUCKLAND: Then we come to the difficulty, yes, which I accept. It is something that I am going to think about. I am not asking for a second bite of the cherry but it is something that I think deserves some consideration.

TED ROWLANDS: The assumption you have made is that the Scottish system does not work but I have to tell you Professor Hazell was here yesterday and he gave very, very vivid evidence to the effect that it had worked extremely well. I think the Hunting Bill was perhaps an exception. It was a mess by all accounts, a drafting mess as well as a policy mess. Generally speaking he was arguing that this unicameral Scottish Parliament actually handled scrutiny of legislation very deftly and successfully. Do you have any other examples where a unicameral system caused problems in Scotland?

MR BUCKLAND: I do not have any drafting examples. The Scottish Parliament has 130 members, something like that.

TED ROWLANDS: One hundred and twenty-nine.

MR BUCKLAND: I would just have to differ with the view that a unicameral system is the best system. From my viewpoint I think any piece of legislation is an important matter which should not be considered (a) too quickly or in too hurried a way and (b) deserves the benefit of scrutiny from different viewpoints, different institutions. I have to come back to my settled view that a bicameral system is better and I think would be better for Wales.

VIVIENNE SUGAR: Are you saying that the reason the Assembly is not currently scrutinising secondary legislation is a matter of time and numbers?

MR BUCKLAND: Time, I think, is a big factor in this equation. I am not so sure about numbers. I think there are plenty of Members of the Assembly who do not have any other responsibilities within government. There are not that many people with ministerial responsibility in the Assembly itself. I think also it is a question of priorities. Without wishing to criticise individual Members of the Assembly it does seem to me that there is greater interest in broad brush debates than detailed scrutiny. I think part of the problem has been the culture that committees are expected to scrutinise and to make policy. Although many people spoke very encouragingly and positively about that at the beginning, sadly I do not think that is working.

VIVIENNE SUGAR: You would recommend splitting those functions?

MR BUCKLAND: Yes, I think so. I cannot see how the two run effectively together in one meld.

LAURA McALLISTER: We heard this morning in another session that plenary sessions do not work effectively in terms of looking at secondary legislation, scrutinising it in that respect. If your argument is that there is not enough time as things stand, that is something that could be remedied fairly easily within the existing arrangements, a change in the nature of time allocation to the subject committees, plenary, shorter holidays. We have to look at all of these things. Perhaps this is unfair but why have you chosen to present this scenario, this option, rather than internal restructuring or international re-engineering?

MR BUCKLAND: I come here from a standpoint that I think the essence of law making should be primary legislation. This is not particularly a Welsh problem, this is a problem endemic throughout the UK and throughout the way we make laws now. Everything is very bare bones now and in order to find out precisely what the powers of various bodies are, what the law is, you have to trawl through secondary legislation. We know that the procedure adopted for secondary legislation is not as democratic as the system that is used for primary legislation. The approval, the way it is done, is not as democratic as primary legislation. I think we need to go back to first principles here and to encourage a culture where much more the meat of legislation is in a primary form. One way of doing that would be in the Assembly to have power for the Assembly to deal with primary legislation affecting Wales.

LAURA McALLISTER: Does that lead inevitably to the quest for fiscal responsibilities as well?

MR BUCKLAND: I have said in the past that I think it will do. Personally I have no objection to that. I think the phrase A he who pays the piper calls the tune@ is a very true one and for true accountability to be created I think a certain amount of fiscal power will be necessary.

LORD RICHARD: A certain amount.

MR BUCKLAND: I am not going to debate how many pence in the pound it should be. All I would say is income tax payers in Wales should perhaps have a commensurate drop in their UK income tax and a proportion of that should be levied by the National Assembly, for example. I am not an accountant, I am not a tax expert, that may be far too simplistic. I think an element of local Welsh based tax raising will have to come.

TOM JONES: How do you explain the assertion you made that in the old days the Secretary of state and two Ministers with a small support team of senior policy staff were more accountable than the system now four years on of 60 members plus six cabinet members with their support teams and the subject committees?

MR BUCKLAND: I was perhaps being a little facetious. What I meant was it is not really very much better in many ways than that system, certainly not as far as secondary legislation is concerned in my view.

SIR MICHAEL WHEELER BOOTH: Would not a much simpler variant of your scheme be merely if Bills affecting Wales were published in draft as a matter of course and then taken first by the National Assembly and then by Parliament, no question of override or anything like that, no running through the sovereignty of Parliament, no question about Parliament Acts in reverse because your scheme is that the Assembly would have the ultimate power in the way that the Commons has the ultimate power at Westminster? Would it not be much simpler just to go for that?

MR BUCKLAND: I think that would be a welcome development which could be fairly swiftly achieved. The draft Bill procedure exists already, it has been very much under-used so far.

SIR MICHAEL WHEELER BOOTH: It is difficult to use because you have to get drafting power and instructions and it is just a practical problem but it can be done if there is determination. If there was a draft Bill and the Assembly looked at it and the chamber suggested changes to it in the way they wanted then it could be reconsidered and then presented to Parliament.

MR BUCKLAND: I think that would ----

SIR MICHAEL WHEELER BOOTH: That would effectively be a two stage process.

MR BUCKLAND: Yes.

SIR MICHAEL WHEELER BOOTH: Well, three really.

MR BUCKLAND: I think that would be a welcome development that could be done at a stroke. It does not go so far as to enshrine primary powers in the Welsh Assembly and I think that is important. It is not a question merely of form, it is a question of substance at the end of the day. The draft Bill procedure, however useful and informative it would be, does not confer with it power and at the end of the day that is an important consideration.

TED ROWLANDS: You were one of the leading campaigners in the no campaign. Is your statement now about enhancing the powers of the Assembly a reflection of those fears you had at the time of the referendum having been released, or some have, some have not? Could you just tell us which of those fears that you felt at that time led you to oppose no longer have relevance or are no longer valid and those that you might still think are?

MR BUCKLAND: I think at the time one of the main planks of my argument was there was a very dangerous raising of expectations here by those who were advocating a yes vote. It was almost as if Nirvana would arrive with the dawning of a National Assembly. One of the arguments I put was although at that time it was an in principle vote, if you remember the Government of Wales Act then was put on the table for the 1997-98 parliamentary session, there was a White Paper which obviously we read carefully and it all seemed to me to be window dressing and terribly ineffective, the mechanisms that were being proposed, especially at that time when we were still talking about the body corporate.

TED ROWLANDS: So you opposed it because it was not strong enough?

MR BUCKLAND: No. I opposed it in principle because I did not think it was necessary. I think it was an unnecessary tier of government. It is here now and like all constitutional changes bar none - I can think of one or two I suppose, way back - it is almost impossible to turn back the tide once these sorts of things arrive. However small a majority, they are here to stay. One of the worries I had was it is not going to change anything, it is not going to create more jobs for people in Wales, it is not going to improve quality of life, and I think that argument is still sustainable now because although in creating a new culture there is a lot more debate about things amongst the political classes in Wales, for want of a better expression, people are still asking A What is the difference? Is our quality of life any better now than it was in 1997?@ Putting aside political arguments for the moment, has the Assembly made a real difference to our lives? I think at the moment the answer is no. This is why I am making these suggestions, not for the sake of arcane debate. I think that if the Assembly is to affect quality of life and make it better then its procedures need to be more effective. Many of the concerns I had at the time about the detail have spawned the approach that I am taking today.

TED ROWLANDS: I see. You were worried at the time that there was this ragged division of responsibilities?

MR BUCKLAND: Yes, very much so. I remember saying that it was not a settlement, it was a recipe for more questions and answers. Whatever it is, the current status quo is not a settlement.

TED ROWLANDS: This is an answer to one of those questions?

MR BUCKLAND: Yes.

TED ROWLANDS: You have experience as a lawyer. Have you found the way in which powers have been transferred in your professional life have caused confusion or fears?

MR BUCKLAND: I am a criminal lawyer nowadays. I used to do what is called general common law but I do crime now and I have done for the last three or four years. That is the status quo at the moment. What I can say from my experience of having worked with the RSPCA is they are finding difficulty and at the moment they have commissioned academic research as to the precise boundaries of Assembly animal welfare powers, for example. I think bodies like that want to try and test and flex the existing powers of the Assembly as much as possible by sponsoring amendments to secondary legislation. Although I am a criminal lawyer I have an active layman= s interest in this sort of thing and I, amongst others, am trying to help them draft alternatives and think about ways of challenging and creating debate at a secondary level.

TED ROWLANDS: So if, in fact, you found that around these ragged edges, taking a practical pragmatic example, to make it better and smoother and more understandable and comprehensible that it would mean some transfer of responsibilities to the Assembly you would not find yourself, as a unionist ideologically opposed to that?

MR BUCKLAND: No, I would not. If it creates clarity and balance it has got to be good from a unionist point of view.

LAURA McALLISTER: I am sure you know that we have a process whereby we are looking at the policy and legislative areas at the moment and we will be looking at the electoral side as well. You have been fairly imaginative in your ideas here about a unionist perspective on devolution, I just wondered what do you think of the electoral arrangements? Again, it is something that maybe as a Conservative you could give a different perspective on. What do you think should happen? Is the current electoral system adequate, good, effective or should it change?

MR BUCKLAND: I do not like it. I am in the common Conservative quandary of not liking a system which is actually delivering members. I do not like closed lists of any sort, I think it is bad. One of the ideas of proportionality is to give people true choice. If they like a particular Conservative but want to vote Labour for their constituency representative they should be allowed to do that but they cannot do that at the moment, they have to choose the fixed appointed party list. I do not think that is good. I think the additional system is better than a straightforward list system. I wonder if we are going to stick to the principle of proportionality, why do we not go to STV? I am not a supporter of PR in any shape or form, I think it tends to make the election won in a round of party bartering and therefore the programme you end up with is a programme that nobody has voted for. That is my fundamental approach to PR, but I am realistic, I think it is here to stay, and if we can improve its quality let us go to STV.

SIR MICHAEL WHEELER BOOTH: So you do not support PR but you do support STV?

MR BUCKLAND: Well, I do not support the principle of PR but, as I said, I am realistic. If we have to have PR, if there is no choice, then it should be STV.

PETER PRICE: You were saying something a minute ago, that the meat ought to be in primary form and the line you were putting to us then was that a lot of stuff that really ought to be in primary legislation is now at the level of secondary legislation in the Assembly and, following from that, secondary legislation did not receive proper scrutiny. Presumably with such a volume they do not pick out adequately the things that contain the meat that really belongs in the primary legislation, it needs flagging up actually in primary form.

MR BUCKLAND: That is right.

PETER PRICE: Can you give some examples of where secondary legislation has been used inappropriately for things that really ought to be the subject of primary legislation and flagged in this kind of way? Have those passed through on the nod or has it been possible to flag them up and give them special attention?

MR BUCKLAND: The example that we think about is the Care Standards Act which in some ways was a success because after some negotiation important sections dealing with the Children= s Commissioner were added to the UK legislation. From my recollection of the Act the phrase was A there shall be a Children= s Commission for Wales@ with little, if anything, about the remit of that person= s responsibilities. That then was left to secondary legislation because it was argued that this was a Welsh Assembly matter and it would be wrong for Westminster to start describing what the Children= s Commissioner should or should not do and that should be dealt with by secondary legislation. Obviously there was debate about the remit of the Children= s Commissioner. My recollection is that the Health and Social Services Committee in recent months has said A perhaps we have not done as well as we should in the past@ . On the new legislation that is coming through, I cannot remember the name of the Bill, a new Bill that is coming through to deal with health and social services provision, they have said to themselves A we are going to take care to look at all secondary legislation emanating from this and debate it properly@ , which is an acknowledgement by that committee that in the past that has not been the case.

PETER PRICE: Focusing on the Cardiff end of it rather than the Westminster end, we have got that acknowledgement in that area that the committee is going to focus on secondary legislation from the particular Bill. Are there any other examples of things which at the Cardiff end were dealt with as secondary legislation where you think the sort of principles at stake should have been dealt with in a primary Bill, and if the Assembly had primary legislative powers almost certainly would have been, and where they did not actually scrutinise it because it was, as it were, buried in secondary legislation?

MR BUCKLAND: I think, as yet, there are not that many examples. I do not have anything specific to put to you, Peter, mainly because there are not that many examples. I think I say in the body of my paper that a lot of the secondary legislation is what we can term A technical@ . It is still an alarming statistic that as of spring of this year of the 400 or more pieces of secondary legislation that went before the Assembly only ten were subject to the full scrutiny procedures. That represents a very small percentage indeed of the total. I am not saying that we should have 100 per cent full debate on every item but then I go back to my point that you picked up that it is better to flag things up at a primary stage rather than end up being snowed under with little details at the secondary stage.

TED ROWLANDS: If the Assembly has not conducted scrutiny at the secondary stage why would they do it at the primary stage? Why would they behave differently?

MR BUCKLAND: I think the very fact that it is primary legislation means that the political spotlight is going to be on that.

TED ROWLANDS: More politically sexy.

MR BUCKLAND: Exactly, for want of a better word. Plenary sessions will be dealing with an actual real Bill, the meat and drink stuff, where issues can be debated, everybody can have their say, a lot of heat perhaps will be generated perhaps rather than light. Very much from your experience as a Member of Parliament, good meaty stuff that you can get into and will be of interest to the media and of interest to members.

LORD RICHARD: We obviously understand there can be scrutiny in different ways. Scrutinising legislation to me means doing what the Lords does in committee, which is going through it line by line, word by word, making sure that each section is tidy. Scrutiny is not deciding the policy behind the Bill. What you really want, in effect, is a second political chamber of some sort which does not just scrutinise the way in which legislation has been produced but actually produces the policy on which legislation is going to be based.

MR BUCKLAND: I was very conscious when I read the terms of reference that the phrase that appears time and time again is policy making and I know, Chairman, that is what this Committee is particularly interested in. I cannot claim special insight into, for example, the Civil Service side of policy making and obviously I come here with my perspective which is bound to be a limited one not carrying a brief for anybody. It seems to me that the making of good legislation is in itself an aid to good policy enactment and good quality legislation means that the policy makers intentions will be fulfilled in a more effective way. LORD RICHARD: I would not dissent from that but parliamentary draftsmen on the whole are pretty competent.

MR BUCKLAND: In Wales, of course, there is absolutely no tradition of parliamentary draftsmen.

LORD RICHARD: On your scheme it would be best to have them here, would it not?

MR BUCKLAND: Absolutely, and a good thing too, a very good thing. I go back to the RSPCA point. The RSPCA made the point to me that there is nobody here in Wales to help them, they have got agents in London who do things for them but here there is absolutely nobody apart from a few interested members of the Bar who want to experiment and want to prove themselves.

LORD RICHARD: I am thinking of experimental members of the Bar!

MR BUCKLAND: I look at it from a younger perspective, Chairman.

LORD RICHARD: Thank you very much for coming.