MINUTES OF PROCEEDINGS

of the

EVIDENCE OF MR WINSTON RODDICK, QC

COUNSEL GENERAL

Held at

National Museum of Wales, Cathays Park, Cardiff

On

Friday 13 December 2002

MR RODDICK: I have brought my colleagues with me because the breadth of subjects which we cover and the procedures are clearly too much for one person to hope to master. On the left is John Turnbull, Legal Adviser to the Legislation Committee at present. He has many years= experience as a government lawyer in the Welsh Office and later in the Office of The Counsel General (OCG). He is a very experienced draftsman and was draftsman of the first Transfer of Function Order. Keith Bush, on my right, who heads up the transport, planning and environment team, has been in OCG more or less from its creation. He came from the independent bar where he has 20 years= experience as counsel and he is a Recorder of the Crown Court and continues to sit as such. On my left is Huw Davies, a member of the agriculture team. He advises the Agriculture Minister. He is an expert on European law, having been seconded to Brussels to the Commission for a period. He specialised and became very involved in the GMO issue that occupied the attention of the Assembly some time ago, and for a considerable amount of time. Then on my right is Alun Jenkins. Alun Jenkins is an administrator who is responsible for the Legislation Management Unit which does what the title implies it does. My name is Winston Roddick I am the Counsel General to the Assembly which means that I am the Assembly’s senior legal adviser.

LORD RICHARD: Thank you very much. What we have asked witnesses to do is to perhaps open up the discussion with a short-ish statement, ten minutes or so, and then we will ask you some questions if we might.

MR RODDICK: Thank you. I will give you a brief overview of the written evidence which I have placed before some days ago, if that is acceptable to you

LORD RICHARD: Please.

MR RODDICK: This is the overview. The Office of the Counsel General came into existence in the circumstances described in the opening paragraphs of the written submission which I put before you. It performs a number of legal functions including advising all the divisions of the Assembly on the law relating to the subject portfolios of the divisions, it is responsible for drafting the Assembly’s legislation and the Counsel General is the Assembly’s law officer.

The nature of the work and the amount of it has changed considerably since the days of the Welsh Office. Staff levels in OCG have increased as a result of three recruiting rounds in the years 1999, 2000 and 2001. Those recruiting rounds were measured responses to the business needs of the Assembly. Shortly after I was appointed I began pruning the hedge, so to speak by reducing the number of staff especially temporary and unqualified staff who were carrying out legal work. I was not satisfied that they were value for money or that there was sufficient numbers of qualified lawyers with appropriate expertise to do the job required by the new Assembly. I then recruited new staff to meet the business demands of the Assembly. In the last four years, there have been three recruiting rounds, each of which was demand led. The demand has always exceeded, and still does exceed, the number of staff in t O C G.

The Assembly= s two most important products are its policies and its legislation. Up to December of 2002, OCG had produced 276 Statutory Instruments in 2002, an increase of several hundred per cent over what the Welsh Office produced in 1997. If I might say, you do not produce at that rate without getting blisters on your hands. I put it that way simply to make the point that OCG is a body of young people who work very hard to produce this amount of legislation.

In 2001, 31 per cent of the Assembly= s legislation was either unique to Wales or involved significant differences in its content to its equivalent in England. The process by which the Assembly makes its legislation is unique to Wales. The form of the legislation is bound to be peculiar to Wales, not only because it is making different policies but also because of the unique requirement to make it bi-lingually. There are obvious limitations on the Assembly's scope to be different in the form and content of its legislation and the greatest of those is the influence of the EU

A number of witnesses who have appeared before you have said that it is difficult to ascertain from a single Bill or Act how, if at all, it applies to Wales. In my opinion, based on the experience of nearly 50 lawyers who work this settlement day-in, day-out, that point is over-stated There is looming, however, a problem of ascertaining the state of the law (as opposed to the content of a particular instrument or Act,) t on any particular subject in its application to Wales. We have anticipated this problem because it is a common problem. It is suffered in the UK, Ireland, Canada, New Zealand and most other jurisdictions. We propose to deal with it by an electronic index which will direct the reader to the source of the law on a given subject and will tell the reader how, if at all, the Assembly= s powers in relation to that area of law have been exercised. Accessible and coherent statute law is an important sub-set of public service modernisation.

In part two of my written evidence I deal with specific issues raised before you by other witnesses.

The corporate nature of the Assembly has engaged your attention, I know. My own view is that to all practical intents and purposes the Assembly has evolved out of its corporate shell. Nevertheless, section one of the Act remains on the statute book and whilst it does the Assembly will continue to be a corporate body. It continues to have one indivisible legal personality. A number of quite important consequences flow from that and I have summarised those on pages 29 and 30 of my written evidence.

One of the consequences is that if the two sides of the Assembly are to separate, primary legislation is needed to bring that about. The two sides have gone as far as they can in developing separate identities. If they want to take the separation process further they will need primary legislative authority to do so. In my judgement, there is inevitability about that separation which arises out of the fact that the settlement does not have, nor did it ever have, an enduring quality. I explain this more fully in my written evidence.

The two questions of whether the Assembly should have primary legislative powers and whether the body should be split into two corporate bodies are distinct questions which should receive separate treatment. The one step need not wait on the other.

As to the Assembly’s capacity to make primary legislation, in my judgment the Assembly, and O C G in particular, will have the necessary capacity to make primary legislation when the time comes. If there is a constitutional case for primary legislative power the Assembly will have to acquire the capacity to make it.

A number of commentators claim that the settlement is complex and that the Assembly’s powers are uncertain. Our evidence will be that. of course there is complexity and of course there is uncertainty, as you might expect of a constitutional rearrangement, but there is not unusual complexity in the settlement, nor is there unusual or significant uncertainty as to the extent of the Assembly= s powers.

The instances of controversy on which the commentators rely in support of their views that there is significant complexity and uncertainty do not bear out their views. We believe, therefore, that the case on uncertainty is over-stated by the commentators. Our shared view is that of course it has complexity but it is not unusually complex when compared with Westminster or Scotland or any other form of devolved government.

Therefore, it seems to me that if a decision is to be made as to whether Wales should have a different kind of devolution settlement, that is a decision which needs to be made by reference to matters of principle or considerations other than the alleged complexity and uncertainty of the existing settlement.

I come then to some wider considerations which might be relevant to your consideration of the question of whether the present settlement should be replaced by some other kind of settlement and the question of whether the Assembly should have more powers. The main point I wish to make in that context is that the settlement should not be seen, in isolation from the other changes, which have been happening in Wales since devolution. For example, although the administration of justice is not a devolved matter, it has undergone some considerable change in Wales in the wake of devolution. It is a very good example of the catalytic effect of devolution in non-devolved areas and of joined up government is in Wales. Those changes in the administration of justice reflect the fact that Wales is now in its post-devolution phase. Wales now has a Mercantile Court and an Administrative Court, the Employment Appeals Tribunal sits here as a matter of course and the Court of Appeal, Civil Division, Criminal Division, and sit in Cardiff as a matter of course. Whereas previously Wales had to take its legal problems to London, it now brings them to courts in Wales.

The legal profession has also made rearrangements in the light of these developments in what is called "Legal Wales" in that they have formed specialist law associations on a Wales basis. For example, he Welsh Public Law Association, the Wales Association of Personal Injury Lawyers, and there are a number of others. The universities in Wales are offering law courses through the medium of Welsh. These changes, coupled with the fact that the law in Wales can be different in both form and content to the law in England, mean that there is developing in Wales as a consequence of devolution a Welsh jurisprudence.

Your conclusions and recommendations could therefore, affect the further development of the legal and other institutions of Wales, which are not already devolved. . For example, if primary legislative powers were to be given to the Assembly there might then arise a case for a Wales Division of the High Court. That is an example of how change in one part of the constitutional machine might precipitate changes in other parts.

Those are my opening remarks, thank you very much.

LORD RICHARD: Thank you very much indeed. Can I just ask you about the very last point you made which was if Wales gets its primary legislative powers there might then arise a case for a Wales Division of the High Court. Why? What is the connection?

MR RODDICK: The constitutional framework of Wales would be different in some important respects from that of England; the Assembly would be making primary and secondary legislation which might be different in content and form to that made for the remainder of the UK; that legislation would be in two languages each of equal validity according to the law in Wales; l law made in Wales is appropriate for a court in Wales. These are all relevant to your Lordship’s question of what is the connection. I must be careful a in this part of my evidence, because I think the topic is on the policy side of the line, and as an official I ought to make it clear that what I am describing is the connection as your Lordship calls it and not my own views as to what should obtain----

LORD RICHARD: It is just the linkage?

MR RODDICK: It is the link that I made.

LORD RICHARD: Presumably what you are saying is that you will need some body down here to deal with most judicial review primarily?

MR RODDICK: Yes.

LORD RICHARD: It is not a question of dealing with personal injury claims or things of that sort, purely administrative stuff?

MR RODDICK: If there were a division of the High Court it might as well do the whole range of work that emanates from Wales. Wales has an Administrative Court. . The administration of justice is not a devolved function. If the Assembly has primary legislative powers it would not be inconsistent with a move in that direction if there were also a move in a similar direction in the administration of justice. They are linked. That is the point I am making.

LORD RICHARD: I am not quite sure whether I have got the full flavour of the point yet but I dare say it will emerge in the course of the next hour or so. Can I come back to one of the main points you make in your paper which is that if primary legislative powers are devolved you are going to draft them in a different way perhaps than they are at present drafted in the English system. We all know that at Westminster the propensity is to dot every A i@ and cross every A t@ and if you miss the odd A i@ or the odd A t@ then that legislation is not as good as it ought to have been when it passed through the legislature. We also know that on the European side, particularly for Directives coming out of the Council, the tendency is to do it in broad terms and then leave it to the courts and perhaps governments to sort out. You seem to be postulating something in between the two and I am not quite sure how you see it working. That is the first point. Who would actually do the drafting? How do you see those principles being the motivation, if you like, for draftsmen?

Secondly, unless you have different rules of interpretation in the courts themselves is it not going to cause a certain amount of confusion if you have got two statutes in effect drafted, one in Westminster, one in Cardiff, perhaps dealing with similar points but with a totally different thrust?

MR RODDICK: Can I deal with the rules of interpretation first, I think that is the place to start.

LORD RICHARD: Yes.

MR RODDICK: The rules of interpretation are universal. The overriding objective of the rules is to ascertain the intention of the legislature and the intention of the legislature can be ascertained from the Act and from other admissible evidence. The rules of interpretation will not be any different in Wales from what they are elsewhere. The interpretation might be a more complex exercise if you have primary legislation which is in bi-lingual form and each of those versions is equal in its legal status to the other. In that situation, the Court has to construe both versions in order to ascertain the intention of the legislature, but that does not call for different rules of interpretation and nor is it a new experience, it is done in many other countries in the world.

As far as the form of the legislation is concerned, I cannot say for certain what form the Assembly’s primary legislation would take but if it was made bilingually it would be very different in its form from legislation made elsewhere in the United Kingdom.

LORD RICHARD: I know that, but why does that have such an effect upon the form of the Act itself?

MR RODDICK: My experience of bi-lingual legislatures is that they co-draft as opposed to drafting one version in English and then translating it into the other official language. Co-drafting is the process by which each of the versions of the Bill is drafted simultaneously with the other - more or less- and there is a dialogue between the one version and the other in which the wording of one informs the wording of the other. The simultaneous evolution of the two versions is bound, I would think, to manifest itself in legislation the content and form of which is quite different from that of legislation made in English and then simply translated into the other language. The Canadian experience was precisely that. The different approach required by co-drafting produced legislation that was briefer and clearer than legislation produced in English and then translated into French. The form of one influences the form of the other. When you have to give effect to something in two languages, each one as legally valid as the other, you really have to know what that something is.

LORD RICHARD: But they are supposed to mean the same thing?

MR RODDICK: Do you mean each version should mean the same thing as the other?

LORD RICHARD: Yes.

MR RODDICK: The intention of the drafter is that each of them should give effect to the intention of the legislature but in arriving at what that intention is in cases where it is not clear the Court needs to construe both versions for each one is a primary source. If there were superficial inconsistencies, it would be resolved by looking at each version. One might be found to be closer to the intention of the legislature than the other. The one version looked at alone might produce an absurdity. Both versions when read together might avoid that conclusion. The court gives effect to the instrument as construed as a whole, a well-established rule of construction.

LORD RICHARD: You would move outside the instrument to interpret it?

MR RODDICK: In certain circumstances, the court might do that but it does that with Westminster legislation.

LORD RICHARD: You would look at the parliamentary debates, the way in which it would evolve.

MR RODDICK: That is permissible with Westminster legislation but in very limited circumstances.

TED ROWLANDS: Does that mean every judge will have to be bi-lingual?

MR RODDICK: No, it does not mean that. In some cases it might be helpful if the judge were bilingual. Where the judge was not bilingual and an issue arose as to whether or not the two versions of the instrument were to like effect the judge would simply have to hear evidence on that. As I say, it is not unique. We are not treading fresh ground here; there is lots of experience of it elsewhere in bi-lingual jurisdictions.

LORD RICHARD: Canada particularly?

MR RODDICK: Canada in particular, yes but many others. I would expect all bilingual jurisdictions where both languages are official and of equal status to have a similar approach. What other approach could there be to the interpretation of such bilingual text?

LORD RICHARD: The English provinces of Canada, do they look at the French version of the statute in order to interpret it?

MR RODDICK: They do whenever an issue arises as to the interpretation of the statute.

LORD RICHARD: The English ones?

MR RODDICK: Yes, the approach would of necessity be similar If both languages of the statue are valid it follow in my view that the court would have to strive to give effect to both versions read together. It is not a situation which could arise with a monolingual statute

PETER PRICE: While we are on this point perhaps I could just press you on the two differences that you identified. This is going on the Canadian experience. These were briefer and clearer. Clearer I can see because it means that the draftsman has to think even more carefully about precisely what he means in order to draft bi-lingually, but briefer, I cannot see why it should be briefer. If one looks at this in terms of the impact on somebody trying to interpret the legislation later rather than from the perspective of the draftsman, briefer would be one difference but are there any other differences that would be apparent about the form in which it is drafted?

MR RODDICK: There is the obvious one where the legislation is in dual column form, one language version in one column and the other language version in the other. That gives bilingual legislation a very different appearance from UK legislation As to how co-drafting of bilingual text can produce a text which is briefer i.e. more succinct, than text drafted in English and translated into another language, if I might say, Mr Price, is a very interesting question. ? I asked that very question of the Canadian drafters. The answer I think is this: if you were simply translating a text produced in the style of the Westminster statutes which my Lord Chairman described a moment ago, the translated text, being a mirror of the primary text, would simply reflect precisely the same detail and style of language as that of the primary text. Once the drafter breaks away from the dominating influence of a primary text by co-drafting rather than translating, experience has shown that the resulting freedom of style and content results in a clearer and more succinct text. A translated text wields very little influence, if any, on the form of the primary text. Canadian drafters found that having adopted co-drafting and moved away from translating the primary text into French they were developing a new unfettered approach to drafting the English text as well as the French text. If, for example, you were drafting in Welsh.

LORD RICHARD: But you need very good judges, do you not, hard working judges to deal with that sort of change?

MR RODDICK: The burden falls on the drafter. If my description of the process involved in co-drafting is correct, the judge’s job becomes easier. I am not saying, my Lord, that it is skeleton legislation, I am simply saying that it is more succinct. I understood the implication of your Lordship’s opening remarks was that our English legislation is unnecessarily long.

LORD RICHARD: That is my view, yes.

MR RODDICK: If it is unnecessarily long that creates unnecessary difficulties for the judge.

LORD RICHARD: You could put it the other way around, could you not, which is the more precise the legislation is the easier it is for judges to deal with?

MR RODDICK: I quite agree. I borrow your approach, if I might, in saying that if the English language is unnecessarily long, it would lose nothing if it were to assume only a necessary length.

HUW THOMAS: In a sense, I am almost hearing the professional speaking about how legislation should be made, and of course legislation is not with the UK Parliament handled always from the point of view that Parliamentary Counsel would like because you have inconvenient points like committee stages and so on bringing forward drafting, clauses that interest groups and others are adding to legislation, so sometimes the Bill ends up in a different form from that which Parliamentary Counsel might ideally have preferred. I am wondering whether your comments are applying to the fact that within the experience of the National Assembly that same kind of amendment process is not actually taking place because most of it is being handled by straight forward secondary legislation Orders in which the hand of the professional, the draftsman, is the major hand. I am wondering whether that same principle that you are enunciating would stand the test of the Assembly acquiring primary legislation and having to go through the same processes, or perhaps varied processes, as apply in Parliament?

MR RODDICK: I do not think that the process I have described would be affected in the slightest by parliamentary models or practices of the kind to which you refer. What I have been describing is not so much how the Assembly drafts its legislation at present but to what it aspires in the way of drafting. The process is in use in countries, which have primary legislative powers and parliamentary practices similar to those of the UK Parliament on which they are modelled. That is the very model, which gave birth to the drafting process, which I have described. It could not happen in Westminster itself, of course, because Westminster does not make bilingual legislation. As for the role of the draftsmen, their business is the form and not the policy content of the Bill. They come to their task at all three stages in the evolution of the Bill, before, during and after the completion of the parliamentary process which you describe in your question. The final form of the Bill is bound to be influenced but not determined by what emerges during the parliamentary process. It is for the draftsman to decide how best to give effect to the will of Parliament. In any event, I have discussed co-drafting on a number of occasions with the Assembly’s legislation committee. It is particularly keen that OCG should develop its capacity to co-draft Assembly legislation. The form of Assembly legislation was decided upon after careful consideration by that committee. I can assure you therefore that it is not the will or the desires of the professional that you are hearing from me. What I am describing is the democratically expressed wishes of the Assembly members, to which the professionals are simply giving effect, and the experience of legislatures with primary legislative powers and scrutiny committees.

LORD RICHARD: We had one committee chairman who was here yesterday or two days ago who was very firm that they did not actually look at the legislative instrument in the subject committees, what they did was look at the concepts.

MR RODDICK: Yes.

LORD RICHARD: And introduced the policy. They did not see the actual passing of legislation as their function.

MR RODDICK: Subject committees contribute to the making of Assembly policy. And they influence the contents of Assembly legislation. If the Assembly retains its subject committees it is likely, in my view, that as they acquire more experience and authority they will have an even greater influence on policy and legislation than they do now. If the witness' point was to do with the form rather than the policy content of the legislation, form is a technical process that ought properly to be left, in my view, to qualified and experienced draftsmen but they take, and must take, their instructions from the minister. Form is simply the means of expressing the Assembly’s intentions. However, the latter are matters entirely for the Assembly Members.

SIR MICHAEL WHEELER BOOTH: Mr Roddick, I was trying to think of drafting an instrument in two languages. I cannot speak any Welsh but I can speak French, although not very well. At the time we acceded to what was then the EEC my memory is that the master text was usually in French. Can you remind me?

MR RODDICK: I cannot, but maybe others around me will know the EEC legislative process better than I.

SIR MICHAEL WHEELER BOOTH: It was the process in Brussels. The Treaty of Accession was a long document and there was certainly a French text and an English text and probably, no doubt, a German text too. The two that people were working on in 1972 were the English text and the French text but my impression is that the master one was the French text.

MR RODDICK: I am not sure, Sir Michael, of the sense in which you use the word A master@ .

SIR MICHAEL WHEELER BOOTH: If there was a point of difference between the two texts I think - this was many years past - the French was the master text. What I am getting on to is I am trying to think of drafting one of your pieces of subordinate legislation you draft at the moment and there is a reference in the papers to having taken on draftsmen, I think. Incidentally, how many have you taken on? Are they from Parliamentary Counsel?

MR RODDICK: No.

SIR MICHAEL WHEELER BOOTH: No, of course they do not have to be.

MR RODDICK: We had, if I may use the word, a batch of Welsh Office lawyers whom I inherited who had long experience of working in Bill teams and of drafting secondary legislation. They represent about a third of the workforce and the remaining two-thirds are new to the Civil Service, new to the art of drafting.

SIR MICHAEL WHEELER BOOTH: I am trying to think of the process. They are trying to draft something on agriculture, something to do with the CAP; do they draft at the same time? Do they have a piece of paper, so to speak, with a line down the middle and they write A In accordance with Directive EEC or EU, whatever it is, 227/9967 agreed at the Council on such and such a date the following provisions@ and so on? Do they do that in English and in Welsh coterminously, so to speak, or do they start with one draft and then put it into the other? I just do not understand. How does it work?

MR RODDICK: I have some experienced draftsmen with me. I shall ask them in a moment to explain by reference to their own experience how they draft. If I can just make two points of principle to begin with. If, in the context of your question, master text means, as a matter of law, that one language has priority or precedence over the other language in the interpretation of bilingual legislation that is not the case in Wales.The Government of Wales Act 1998 declares that both versions of the legislation shall be of equal standing. The principle of equality means there is not a dominant text.

PETER PRICE: Nor in the EU.

MR RODDICK: Nor in the EU? Thank you very much, Mr Price, I accept entirely what you say. Even in the most French province of Canada, Quebec, the principle of equality applies to the interpretation of the legislative text. The principle is a tool of interpretation though not a tool for drafting in Quebec. Their drafting proceeds in a much more pragmatic way that accords the French language the dominance it enjoys in the province. .

As I said in my answer to the question from MR Huw Thomas, the lawyers in OCG at the present time draft most of the legislation in English and translate it into Welsh. Some of it is co-drafted. The aim is to co-draft all of the Assembly’s legislation where circumstances permit

Keith Bush is fully bi-lingual and I would like him to contribute his experience to this discussion He can tell you if he has drafted instruments in Welsh

MR BUSH: Probably one I think. The issue that Sir Michael has been raising is a practical one and the practicality is that 90 per cent or thereabouts of people who work for the Assembly do not understand Welsh. Also the Lingua Franca when it comes to communicating between the Assembly and other organisations that may have a view on secondary legislation is English. It is totally open to them, of course, to use Welsh if they want to but in practice they do it in English. If you prepare a draft of a Statutory Instrument and then you want to see what the various partners in the process have to say about it with a view to amending it and improving it and so on, then it is the English version that they are going to look at. In practice, at the moment the normal situation would be that a draft would be prepared in English. It would then go to administrators and other bodies to have a look at. Once one is fairly confident that it is more or less right then it would be translated or, put it another way, the Welsh version prepared and there would be quite a considerable amount of interplay between the two versions because, as the Counsel General has explained, if you try and put the same idea into words in English and Welsh you sometimes notice that the English does not really convey what you intended to convey, it is the use of the Welsh that brings that to your attention. That is my experience. I can only speak from my own experience.

Of course, one has to bear in mind the fact that legislating bi-lingually in Wales is something that has only gone on now for less than four years in the whole of the history of Wales. It would be surprising if the two languages had achieved total equality in that short period of time and having regard to the linguistic balance that exists in Wales and within the Assembly in particular.

SIR MICHAEL WHEELER BOOTH: There is a reference in your paper, Mr Roddick, to the process of legislating in Ireland, making the legislation clearer. It is an Irish paper and I have not read it but it interested me, partly because I was thinking I believe in Ireland you can use either language in the Dáil and a far higher proportion of Irish citizens are English speaking only than here in Wales.

MR RODDICK: Yes.

SIR MICHAEL WHEELER BOOTH: I was wondering, if you know the answer to this, what has been the Irish experience to date because they have had much longer doing it?

MR RODDICK: I have kept in close contact with Dublin. I go there with those kinds of questions in mind because they have been a bi-lingual legislature for much longer than we have, We are just students in this art. Although the Irish language is the principal language according to the constitution, it is not a legal requirement that the legislation must be bilingual when it is made or becomes effective. The obligation is to translate it into the Irish language after it is made. . Consequently, the overwhelming majority of pieces of legislation in Ireland is in one language only with the remainder waiting to be translated. That is the point of difference between us and Ireland. Our legislation, according to the Government of Wales Act, has to be bi-lingual at the point at which it is made. Wales, therefore, will not have a backlog of legislation waiting to be translated. Wales is not very far behind, if it is behind at all, in comparison to Ireland in developing the principle of equality in its legislative processes. Their respective statutory obligations with regard to making legislation bilingually are very different. . I was invited to address a conference in Dublin last week on Better Regulation because Wales’ achievements in this field are considered to be exemplary.

LORD RICHARD: There is a difference in the languages there in the sense that Welsh is much more a bespoke language than is Irish.

MR RODDICK: That is so, my lord

LORD RICHARD: In a sense the imperative, if you like, to legislate in Irish may be there constitutionally, it may be there as a grand idea if everybody spoke it, but they do not and one has to translate. One can understand that but the Welsh situation is different.

MR RODDICK: It is, my Lord. Can I add to a new statistic to what your lordship has just said. More than 30 per cent of the population of Wales now speaks Welsh fluently.

LORD RICHARD: Really?

MR RODDICK: Yes. Over the last 25 years it has gone up f to 30 per cent. There are therefore practical and cultural imperatives as well as a legal imperative, which render the position in Wales different from the position in Ireland

LORD RICHARD: I think we ought to move on from drafting because it is becoming a conversation between the lawyers.

TED ROWLANDS: If I can take you in a slightly different direction. I found your assessment on the whole issue of complexity and uncertainty refreshing in as much as some of the causes célèbres that have been presented to us at least are put in context. There is one area which I am reasonably convinced at this moment in time needs to be addressed and that is what has become known in the vernacular as the ragged edges. That is those functions which were attached to the functional field but did not come across because of the peculiar nature of the various ways in which the Welsh Office accrued its power. Do you accept there is a problem in this area not of uncertainty, because there is certainty, it is outside the devolved responsibility, but it is the kind of power, like those animal welfare provisions, which ought to have come across as a logical part of the functional field that has been transferred? Do you accept that this area we should be developing?

MR RODDICK: I will ask Huw Davies in a moment to deal with the matter because he has had a great deal to do with the so-called ragged edges. .

TED ROWLANDS: I accept your evidence makes it clear that many of these issues have been exaggerated to say the least. I am interested in those powers, for example, like the laws as regards to foot and mouth disease that should have attached and have not been. That is what I define as the ragged edges.

MR RODDICK: I understand your definition The question of whether those residual functions which you say should logically have been transferred with similar functions within the same fields should now be transferred is a policy or political question and therefore not one for me

TED ROWLANDS: It is a political matter but I am asking you for your advice on how to resolve it.

MR RODDICK:

MR RODDICK: With our system of executive devolution, there are bound to be ragged edges, i.e. powers falling within one of the fields which were omitted from the TFO but which ought logically to have been transferred when other powers in that field were transferred. For the lawyer, the problem is to identify the powers within the ragged edges and the problem for the politicians is how to get those edges transferred to the Assembly if they are thought to be necessary or desirable. It is a matter for the politicians to get it transferred. But you are asking how that might be done using the existing Government of Wales Act

TED ROWLANDS: What I am saying is how do you do it? I am seeking your advice on whether we have to go through the convoluted process of spotting all these as we go along and then seek a Transfer of Functions Order, agreeing with Whitehall hopefully that, just like the foot and mouth, it is transferred by a Transfer of Functions Order or whether within the existing settlement, particularly within the existing Act, you can change the whole balance by saying that in Schedule 2 of the Government of Wales Act there are 18 fields - you draw attention to it in your evidence - identified for which devolution was supposed to have happened and then subsequently the Transfer of Functions Order did not transfer lock, stock and barrel but 90 per cent or 80 per cent, it left some behind?

MR RODDICK: Yes.

TED ROWLANDS: If one wanted to correct that and thereby adjust the settlement, would it be possible to do it by using Schedule 2 and simply devising a Transfer of Functions Order to say that all these fields are going to be transferred save for, except for, and then identify them, as in the Scotland Act, those which are not?

Mr. Roddick. It I may, Mr Rowlands, I would like to hear what Mr Davies wants to say on the matter and then I shall give you my view on that question

MR DAVIES: I advise the minister on agricultural matters. The domestic animal health powers effectively are nothing more than a vehicle for delivering the Common Agricultural Policy and European policy generally in relation to animal health and food safety. The main mechanism for dealing with animal health in the UK is the Animal Health Act. The original Transfer Order in relation to Wales transferred only some of the functions in that Animal Health Act. For example, general orders dealing with animal diseases must be exercised jointly by the Assembly and DEFRA ministers.

We also have powers under Section 2(2) of the European Communities Act in relation to CAP. So in some areas where the Animal Health Act would not be suitable or would not deliver the European objective we can use Section 2(2) to do it. That creates anomalies in the way in which animal health powers are dealt with. For example, in relation to transmissible spongiform encephalopathy we made a regulation this year alone in the Assembly to deal with animal health issues but in relation to the foot and mouth disease the process had to be done by the Animal Health Act mechanism which involved joint action.

There are two main ways in which you could change the situation as far as animal health is concerned. The first is a Transfer Order under Section 22 of the Government of Wales Act.

TED ROWLANDS: A specific thing that you identify and transfer that particular aspect?

MR DAVIES: Indeed, transfer those powers in the Animal Health Act 1981. Or you could do it by Bill, I suppose. If you had a completely new Animal Health Act all of the functions in that Act could be transferred to the Assembly. The difference between the position in Wales and Scotland, say, in relation to animal health is even though you might have transferred all the powers in the Animal Health Act, that framework for dealing with animal health in the European law context is fixed by the Act and the Assembly would not be able to change that, except in the limited circumstances under 2(2). So you would rework the system, if that was required, by some European law or imperative.

MR RODDICK: Mr Rowlands . Sections 21 to 24 of the Act Government of Wales Act 1998 purposely left the settlement as a fluid one so that further functions whether they fall within the fields mentioned in Schedule 2 or not can be transferred to the Assembly in the manner described in sections 21. And 22. If it is found that the Assembly is bereft of a function that more logically it should have had the only means of doing it is by further primary legislation or by another Transfer of Functions Order. Huw Davies has given a working example of how that might be done.

However, your question, as I understand, is not about using transfer of function orders to transfer specific functions from of the ragged edges on a piecemeal basis but whether the transfer of function order could be drafted in such terms as to transfer all functions in each of the fields listed in schedule 2 not transferred by the earlier transfer orders without having to identify them specifically, a kind of catch-all-order which would sweep away the ragged edges and thereby create a more logical settlement

TED ROWLANDS: Being an old Westminster hand, there is a world of difference between getting the Transfer of Functions Order through the process as opposed to changing the Government of Wales Act.

MR RODDICK: Yes.

TED ROWLANDS: In practical terms, if one wanted to get practical results not just on the Animal Health Act but we have identified a number of these so-called ragged edges, as I have defined them, in other areas of responsibility, I am asking whether it is possible to create the Scottish style of devolution, as it were, putting aside primary legislation now, by a collective Transfer of Functions Order which makes the transfer of the individual functions coterminous with Schedule 2 which says that all these fields are devolved but in the end they were not, were they, large chunks of them were left behind. Do you see my point?

MR RODDICK: Yes, I do and I have a view on it, which I will explain. I am not altogether sure that it is the correct view but I hope it is.

TED ROWLANDS: I am looking for an answer other than changing primary legislation.

MR RODDICK: Yes, I understand. , If Parliament were to transfer in the very general terms you have in mind all functions in a field listed in Schedule 2 and leave it then to the Assembly to decide what functions in that field to exercise, there is not much difference between such a broad power to make secondary legislation and primary legislative power save, of course, that the TFO is by its nature limited to functions which Parliament has already created whereas primary legislative power would enable the Assembly to create new functions.

LORD RICHARD: Yes, but Ted= s point is it would be much easier to get that through in Westminster because it is another piece of legislation.

TED ROWLANDS: I think somebody else raised this. If you did that and said A Right, agriculture, housing, everything within those fields belong to the Assembly in Welsh terms@ , that would not transfer primary legislative power as such, would it, all it would mean is that you could continue what you are now doing and that is subordinate legislation and exercise that function. You would not transfer primary legislation with it. The logic might be that you ought to be but that is another matter.

MR RODDICK: Are you saying that by that means the Assembly could introduce secondary legislation on any matter which falls within the field of agriculture and housing?

TED ROWLANDS: Yes.

MR RODDICK: This begs the question of what is the difference between primary and secondary legislation. Such a power would be as wide as a primary power in that it does not depend on there being an existing function. The Assembly could create new functions provided they were in the field of Agriculture and Housing, to take your example. It could actually do what Westminster could have done through primary legislation.

If Parliament were prepared to go that far, I am just wondering why it wouldn't be simpler to give the Assembly primary legislative powers in those fields of agriculture and housing.

LORD RICHARD: It is not part of the legislative programme in the same way.

TED ROWLANDS: It does not have to be in Queen= s Speeches. I assume if you apply the principles of Whitehall then you might as well go for it in totality. In the course of our evidence we have picked up not just on animal welfare but it is written about in the origins of the Welsh Office and how these original things started, and Mr Lambert has done some very good work on it, how it was done with a curious mixture of transfers which were the compromises of the day. The result of this is we have got a host of seeming anomalies where certain functions that were attached to the field should have come across but did not because of the nature of the original transfer of the functions to the Welsh Office.

I am trying to find a way to clean all those up in one process rather than do what you are having to do when it comes up in the case of the Animal Welfare Bill when you will go and ask about transferring it across or if you find one in housing, in health, whatever the case may be, you will gradually do it bit by bit and rather exhaustively. I am looking for a simple way to make these adjustments.

MR RODDICK: I believe Mr Rowlands is asking me about two kinds of TFOs, one which is intended to sweep up all the ragged edges (existing functions in the fields listed in schedule 2 to the Act which were not included in any previous TFO) and the other which confers on the Assembly powers to create functions in fields described in the Schedule. But whether it be both or just the former, in my opinion the answer would be precisely the same. Very briefly, I do not think it is possible to use the mechanism of a TFO under Section 22 of the Act to achieve either objective. In my opinion, an order under Section 22 can only be made in relation to functions already vested in a Minister of the Crown i.e. existing functions and the order must identify the function or functions which it purports to transfer. Schedule 2 does not identify functions; it simply lists the fields of administration from which functions might be transferred.

That is a sufficient answer to Mr Rowlands’ question in my judgement but if I were wrong in my interpretation of Section 22, I would nevertheless be of the opinion that a TFO in such wide terms as Mr Rowlands envisages, terms which do not specify the functions to which the order relates other than that it applies to all functions in the fields listed in Schedule 2 which have not been transferred by any earlier order, would create such significant legal difficulties, not the least of which would be the uncertainty as to the vires of the Assembly decisions in exercise of functions purportedly included in the TFO, as to render such an order undesirable. The uncertain ambit of such an order would create perpetual uncertainty for the Assembly as to whether its intended exercise of a function which was thought to fall within the terms of the order was lawful or not. Ministers and Parliament would also be uncertain as to which functions of Ministers were being transferred and which were not. Apart, therefore, from the legal arguments against the use of section 22 TFOs for the purpose, the uncertainty would be likely to create practical objections to its use for that purpose.

Can I invite John Turnbull to comment.

MR TURNBULL: There are reasons why it would not be possible to draft a Transfer of Functions Order which simply says A All functions under any one of these particular heads in the schedule to be transferred@ . The first point is if you simply sought to transfer all functions under legislation, take the first one on the list, Legislation relating to agriculture, forestry, fisheries and food, there would be a great area of uncertainty as to which legislation concerned agriculture, which concerned fisheries and which concerned food. There are great overlaps between various areas.

TED ROWLANDS: If I can interrupt you. I understand that there will be exceptions ----

MR TURNBULL: I am not saying that.

TED ROWLANDS: The Scottish Act that you have just claimed to be a simple piece of legislation does it itself, you have got a schedule in the Scotland Act which says A Save in this particular aspect that is a reserve power@ ?

MR TURNBULL: The existing statutory powers were not being transferred to the Scottish Parliament by that means. The Scottish Parliament has been given new powers. It has been given powers to make legislation within an area, it was not being transferred existing powers within an area. One can easily say this new Parliament will have powers of legislation in relation to agriculture but that is not the same thing as saying that this Parliament will have powers under all existing Acts of Parliament which relate to agriculture.

LORD RICHARD: You have dealt with the problem of definition, what were the other ones?

MR TURNBULL: The second problem is if you transfer en bloc like that you will inevitably transfer some powers which are inappropriate to transfer. I have been at a conference where somebody has referred to the Clean Air Act and said A This is quite ridiculous, the powers were given under Section 1 but not under Section 2, there is no logic in that@ and somebody at that conference pointed out that Section 1 relates to emissions from chimneys on buildings and Section 2 relates to emissions from vehicles and it was quite clearly a policy there that whilst in Wales a separate approach could be taken to standards of smoke emissions from chimneys, it would not be appropriate within the United Kingdom to have different standards of emissions from motor vehicles which clearly travel throughout the United Kingdom.

TED ROWLANDS: So we have painstakingly got to do it Order by Order?

MR TURNBULL: If one is transferring existing statutory powers then you have to look at them before you transfer them. Of course, in the Transfer of Functions Order where the conclusion was simply A Yes, under this particular Act all the powers can be transferred@ then the Transfer of Functions Order is quite simple because you will find listed in the Schedule just the name of the Act of Parliament and you will then know that all ministerial functions under that particular Act have been transferred. I think the Adoption Act may be one example. In the Schedule you will just find the Adoption Act named. Further than that the approach which was taken was where there were just a limited number of exceptions then those exceptions would be stated. Conversely, if it was an Act under which only a few functions were being transferred then those few functions would be identified. The aim was to make the Schedule as simple as possible given the instructions we had which were to transfer existing statutory functions to the Assembly.

TED ROWLANDS: What happened with the Transfer of Functions Order in the Scottish Executive?

MR TURNBULL: I am not sure of the exact answer to that. They have not done it in quite the same way as we have done no; they not made a lot of detailed consequential amendments.

TOM JONES: On the animal health functions, there was at a debate in the Lords on 29 October started by Lord Lipsey and basically Lord Whitty was saying A I am very willing to look at the possibility of the Welsh Assembly taking on further powers which will help them deploy that local knowledge@ . What is the process? How long will that take? It may be that we will have another foot and mouth epidemic, God forbid, by the time this happens. When will the process start? There is a willingness there to undertake discussions. What do you do in response to that, request a transfer?

MR DAVIES: Those discussions are ongoing with DEFRA on a future Transfer of Functions Order. The process that we are into now is looking at the existing animal health powers with DEFRA. There are about 100 Orders made under the Animal Health Act and we, with DEFRA, have to look at each of those Orders and think of what it means administratively to be transferring those over, what resources are going to be required in order to deliver those functions. That is the process which people are engaged on now with a view to hopefully getting a Transfer Order in place next year. That is subject to final agreement with the UK Government because it is the UK Cabinet that will decide whether or not those functions are transferred at the end of the day.

HUW THOMAS: I was interested in the example given in terms of emissions from buildings and emissions from vehicles because we have heard evidence from at least one minister that actually one of the benefits of the current system is concurrent powers, so that legislation has to have Welsh consent, in a sense. The example of the emissions from vehicles would actually fit into that by extending the remit and influence of the Assembly. I would like to press once again, in a sense, Ted= s point. What is there that would prevent a Transfer Order that said A All Secretary of State powers under a particular legislation can transfer to the Assembly@ ?

MR RODDICK: I think the answer to your question is precisely the answer which we gave a moment ago to the question raised by Mr Rowlands. I do not think I can add anything to that answer those who have to exercise the power have to be sure as to what the scope of the power is and where the boundaries are. If they do not know where the boundaries are there is a danger that the Assembly’s purported exercise of the function in question might be ultra viress. .

VIVIENNE SUGAR: I am afraid I did not understand Mr Turnbull= s response to Ted Rowlands about the transfer of functions in Scotland. I wonder whether it might be possible for you to actually submit some further written evidence on how it was done and why it could not be achieved in Wales using the devices that we have been talking about.

LORD RICHARD: It does seem to me that the structure of devolution in Scotland is so different from devolution in Wales. In Scotland anything that is not reserved is devolved.

VIVIENNE SUGAR: What I am saying is the legal work has already been done to identify the functions that are being transferred but all we are talking about is the mechanism.

MR RODDICK: Can I venture an answer to Mrs Sugar's question. My Lord, forgive me if I am interrupting.

LORD RICHARD: No, at all.

MR RODDICK: Scotland has had the power to originate primary legislation: it does not depend on the transfer to it of existing functions to give its legislation a lawful root. The Assembly relies for its authority on the transfer of existing functions or those created by the legislation, which confers the function on it. . The source and scope of the Assembly’s authority is very different to that of the Scottish Parliament. .

VIVIENNE SUGAR: My point is the power to act under existing legislation was transferred.

MR RODDICK: Yes.

VIVIENNE SUGAR: That is what we are trying to establish. Is there a mechanism for doing that for Wales?

MR RODDICK: Yes. A transfer of functions order properly made under Section 22 of the Act.

MR DAVIES: If you lift the lid on Scottish devolution I think underneath it you will find a complex series of consequential Amendment Orders, so even though the base mechanism for transferring competence in relation to primary legislative fields and then the connected mechanisms for functions transferred on to Scottish ministers may be quite simple, in order to give that clarity on the statute book the Scottish Executive had to do a complex series of consequential Amendment Orders. You do not remove the complexity, you just shift it somewhere else on to another mechanism.

TED ROWLANDS: Except that we have been presented repeatedly with the image of a complex Welsh one and a simple Scottish one. When I got to Schedule 5 of the Scotland Act it did not look all that simple to me. For example, A Reserved in road transport Section 17 Pedestrian crossings, traffic signs are reserved to the United Kingdom@ .

MR RODDICK: Yes, the Scottish one might be very different to the Welsh one but free of complexities it is not; its complexities are simply different complexities to those of the Welsh settlement.

TED ROWLANDS: Let us take the emissions point raised by Mr Turnbull. In Scotland have they made a distinction between emissions from buildings and emissions from cars? Is one the responsibility of the Scottish Executive, the other one a UK responsibility?

MR TURNBULL: I would need to research that but I would be very surprised if they have had made that distinction.

TED ROWLANDS: Have they made that distinction?

MR TURNBULL: I would be very surprised if Scotland had the power to introduce different vehicle emission standards from those in England and Wales.

LAURA McALLISTER: Is not the issue though that the settlement is complex for the policy-makers rather than yourselves as lawyers? I am not a lawyer but I am a political scientist and I can see the arguments that we have heard from the policy-makers, the politicians, the subject committee chairs and the ministers, that they find the settlement complex, that they find there is a degree of complexity in understanding the extent of the legislation as it stands and from what we have heard it seems a fairly valid point. They have an important role in terms of policy initiation at subject committee level and they often find that their policy initiation plans are stymied by complexity and uncertainty about what they are able to do. We heard from one subject committee chair who talked about the issue of free eye tests and the question of complete universality of the provision and exemptions. Looking at it from the other side of the equation, is not the real problem complexity for the policy-makers?

MR RODDICK: No, I do not think it is with great respect. The issue is whether the complexity is such as to render it necessary to replace this settlement with another or more particularly with the Scottish model. The assumption is that the latter is less complex. I do not believe there is unusual or significant complexities in the Welsh settlement. The Commission has said that it will take a very practical approach, focusing on detailed examples of how things work and how things might be improved and that it will base its conclusions on evidence – not conjecture or theory but evidence. That is what Mr Price was doing earlier this morning, probing my evidence, when he was pressing me about the advantages which I was claiming for co-drafting over translating and on the practical aspects of the Rawlings Principles. It was what Mr Rowlands was doing when he was pressing me about the ragged edges. I hope that we provided you with evidence on those points. Where is the evidence that the Welsh settlement is unusually complex? If there is any, we will try to deal with it, and accept it of course it if it is cogent. I wonder therefore if I might enquire whether any Minister has given evidence to the effect that he or she wished to introduce a policy in any field listed in Schedule 2 to the Act but was unable to do so because there was uncertainty as to whether the Assembly had the power or not to introduce the policy. I have read most if not all of the evidence put before you and I have not seen any evidence to that effect. If there was empirical experience of unusual or significant complexities and that it had caused that kind of difficulties then I think there might very well be force in the point you made. Where is the evidence really that shows that these complexities have prevented the minister from doing that which the minister wanted to do? If there were such complexities and consequent uncertainty, one might expect to see many legal challenges but there have been remarkably few and what challenges there have been did not arise out of complexities in the nature of the settlement.

In the field of transport the Minister stated in her evidence, if I recall, that she was not able to have a co-ordinated transport policy in Wales because some aspects of transport are devolved and others are not but I did not understand her to be making any point about complexity of the settlement. I understood her to be making the point that not all the powers necessary for a co-ordinated transport policy for Wales were vested in her. It is probably an example of the ragged edges point.

These are questions which, if I might respectfully suggest, need to be answered by reference to evidence. What is the value, I ask rhetorically, of someone saying this settlement is complex@ ? Unless the settlement is significantly complex then it really is not a point at all. If it is significantly complex you might thereby be driven to recommend some different type of settlement. If it is not significantly complex then a different settlement would need to be justified on some other basis. , There is some degree of complexity in every Act of Parliament, as you might expect, and there is bound to be a great deal of complexity in every constitutional settlement whatever form it takes. But those complexities diminish as those who work the settlement become familiar with it workings. Is this so significantly different?

LORD RICHARD: What do you mean by A significantly@ ?

MR RODDICK: I use the word A significantly@ in the sense of unusual. Every Act has some complexity and constitutional settlements are almost certain to have them. A lay person might say: A This Act of Parliament is difficult to understand and apply@ , whereas a lawyer might say A Well, it is no more complex than many other Acts which I have to apply day in, day out@ . Of course you require professional skills and experience in order to understand and apply the law. That is why some might find difficulty where the lawyer might not. I deal regularly with very difficult matters of law, not necessarily difficult matters of law that have been created by the devolution settlement. In fact, in practice I have dealt with problems of law and statutes that were infinitely more complex than the settlement which we have had to deal with here. That is why I can say with some confidence, reflecting on the experience of my colleagues, that we have not encountered unusual uncertainties or complexities some witnesses claim to exist. This is real evidence based on observation and practical experience.

LAURA McALLISTER: Given the nature of the ratio of the subject committees post-separation, quasi-separation, executive and legislature, are you content that the members of the subject committees receive sufficient legal information to assist them in that policy process at the early stages? What I am asking be, is there an adequate interface between yourselves as the back-up and support for the subject committees and the politicians which serve on them?

MR RODDICK: I think the subject committees are a very, important part of our whole scheme and they cannot play their part effectively unless they have effective assistance and good advice, whether it is on policy, law or anything else which is necessary if they are to function effectively. They need to know what their powers are and how to use them. They need to know the basis on which they may challenge a piece of draft legislation or a policy proposal. It is not my responsibility to say whether or not they have sufficient of that service, that is the responsibility of others. OCG has always been ready willing and able to provide whatever assistance the committees felt they needed but it can do no more than make the offer. What I have done recently is to second to the Presiding Office a very senior and experienced lawyer, Peter Jones, an Assistant Counsel General in OCG and someone who knows, for example, how to propose amendments to the subject committees when they want to come forward with amendments. He is now the standing lawyer to the committees, that is the use that is being made of him, and I understand it is something that is working very well. Without such assistance, I did not think that the committees can function effectively.

TED ROWLANDS: Similar to the role the clerks play in the Public Bill Office at Westminster who are advising Members how to draft amendments?

MR RODDICK: Yes.

PETER PRICE: I would like to probe this clarity and complexity question just a little bit further. On the issue you cited a moment ago of giving advice to committees, you said that you had never known a lawyer not being able to say to the committee what the answer was in relation to their powers. The question is how often has he had to go off and find the answer if he has not had warning that the question is going to come up? Is this something where the devolution settlement is so clear that you can simply answer a question of that nature extempore, without warning?

MR RODDICK: Huw Davies has experience of appearing before the committees and was a lawyer in the Welsh Office Legal Group.

MR DAVIES: Any adviser advising a minister of the Crown, if you ask a question about a power which is used regularly or they are familiar with they will be able to tell you off the tops of their head, the same as I would be able to tell you off the top of my head the nature of the settlement in relation to those commonly used powers but we always go back and check. The position that we are in as advisers to the Assembly is no different from the position that we were in as advisers to the Secretary of State for Wales were. The process by which we identify whether or not the Assembly has a power or not is exactly the same process you would go through in identifying whether a minister of the Crown had power or not.

LORD RICHARD: Surely the extent of the law you have now got is actually more difficult and more complex than the previous one?

MR DAVIES: No, it is exactly the same.

LORD RICHARD: Paragraph 53 of Mr Roddick= s paper says A Ascertaining the state of the law in a particular field on a particular date involves not just one Act of Parliament; it involves the whole statute book, all Acts and all instruments in exercise of the Assembly= s powers@ . And then you propose a mechanism for dealing with that which is the thing that I want to ask you about, the electronic index.

MR RODDICK: What I said in my written evidence was that the ascertainability problem was an emerging problem rather than an existing problem. That is what I say. What paragraph was it, my Lord?

LORD RICHARD: Fifty three.

MR RODDICK: I am referring there to the ascertainability problem, which if you go back to paragraph 48 ----

TED ROWLANDS: It is slicing of legislation.

MR RODDICK: Yes, it the is slicing problem

TED ROWLANDS: That was why I was trying to simplify it by mass transfer.

MR RODDICK: It is a developing problem. PETER PRICE: But in terms of trying to establish exactly what the Assembly's powers are, in the nature of the settlement you had edges between primary legislation and the different powers contained within primary legislation. Taking agriculture, for example, there must be significant areas where two acts of primary legislation meet and either do overlap or at first glance appear to meet in such a way that they may overlap. In this sort of situation where you are dependent on a very precise definition, in other words under section so-and-so of this act you have the power, or under section so-and-so of the other act you do not have a power, is it a situation that you often encounter where it is actually difficult to determine under which act you have that power?

MR DAVIES: I have never experienced a position where I have been unable to advise the minister or committee or one of the policy people, what powers the Assembly have here.

PETER PRICE: With what degree of certainty can you advise?

MR DAVIES: With certainty.

PETER PRICE: Every time?

MR DAVIES: Every time. Let me give the example of the comparison between the position the Assembly is in and the position the Secretary of State for Wales was in. It is, in fact, no different because the Secretary of State for Wales acquired his powers via a series of transfer orders under two different Minister of the Crown Acts. The Secretary of State for Wales was given specific powers in some acts, not in others, but of course in the years after the transfer of functions orders, after a certain point, Parliamentary Counsel stopped drafting in a way that defined separate secretaries of state so it referred to A secretary of state@ meaning any principal secretary of state, so in order to find out whether the Welsh Office Minister was able to exercise the power you had to know what the internal administrative mechanisms were. In terms of the complexity and the process of identifying an Assembly function, it is no different as an intellectual challenge and process to identify. It is the same position, it is no different.

MR RODDICK: That is a significant point on the complexity and uncertainty issue. Huw Davies is comparing the post-devolution position with the pre-devolution position. where the powers of the appropriate minister depended on a transfer of functions order. Going back to your Lordship’s earlier question, as to what I meant by "significant". It means complexity of a kind which distinguishes this settlement from the complexities of how Wales was governed before the devolution settlement. . The evidence is that there is not. Keith Bush has a different experience from that of Huw’s.

LORD RICHARD: I do not think I want to leave the electronic index.

PETER PRICE: Can we come back afterwards to that.

MR BUSH: I just wanted to agree totally with what Winston and Huw have said. From the point of view of the lawyers, if somebody gets on the phone to me and says, A do we have the power to do this?@ then in those cases I would be able to respond on the spot. If it were a particularly unusual power I would take a few minutes to find the answer, but within a fairly short period of time I could give a definitive and certain answer. However, we are looking at it from the lawyers' perspective. Looked at it from the point of view of politicians, the problem seems quite a different one because they are asking the question, A I want to do this, can the Assembly do it?@ and they are asking that question in a rather broader sense than in a technical, legal sense. So it may be that this question of complexity means two different things depending on whether you are a politician or a lawyer. I do not think legal complexity and certainty is an issue as far as we are concerned.

PETER PRICE: The other thing is that you have taken as your point of reference the pre-existing situation which itself had complexities. If we take the Scottish situation, it seems from what you have been saying that half-way houses, before you get to the Scottish primary legislative power, have equal complexity with the existing situation, but if you were postulating a situation of primary powers as per Scotland, would it not be easier to say to the politicians in general terms that these are areas where you have the power to act?

MR RODDICK: I cannot profess to be expert on the Scottish model but such familiarity as I have tells me that it is no less, if not more, complex a settlement with regard to ascertaining the powers of the Scottish Assembly than is the Welsh model, and if you were to move from the executive model to the Scottish legislative model, (I put my cards on the table in the first paragraph of my written evidence, , it is a move I am personally wedded to and always have been) you would simply be substituting one class or one range of complexities for another. There are enormous complexities with regard to the reserve powers of the Scottish Assembly and they regularly have Sewell motions. So the idea that the Scottish model would rid us altogether of complexities is not arguable.

VIVIENNE SUGAR: We have heard from other witnesses that Sewell was more of an administrative device so that the workload was being carried out in Whitehall and Westminster rather than it being a confusion of powers. Could you expand on why you thought what you did?

MR RODDICK: I am glad I said I am no expert on the Scottish model. I doubt I could be of much assistance to you on it. What I can do is put some supplementary evidence in if you would find that helpful.

LORD RICHARD: Can I come back to the electronic index because I am quite interested in this. From the answers you have been giving this morning, you do not see this as arising from a demand which is caused by complexity with the existing set-up?

MR RODDICK: It is simply compounded by it.

LORD RICHARD: The electronic index is there to make it easier for lawyers, they press a button and they get an answer. That is the idea.

MR RODDICK: There idea is to make it easier not only for lawyers in the Assembly but lawyers in the High Street, policy advisers, judges, teachers of law and everyone else with an interest in knowing what the law is. It is not quite as easy as pressing a button but the process will simplify their task of ascertaining where to find the current state of the law in Wales on any given matter.

LORD RICHARD: That would work.

MR RODDICK: It works elsewhere.

LORD RICHARD: What do you mean, in other countries?

MR RODDICK: In other countries. In Whitehall there used to be regular publications which updated the index but they gave up on that it is too costly to do it by paper publication because the moment you publish a book it would be out-of-date. The electronic means of doing it means you can keep regularly up-to-date. It is not a problem peculiar to Wales but it has been compounded in Wales because the devolved legislation has added another source (or slice) of law. That is why I call it the slicing problem.

SIR MICHAEL WHEELER BOOTH: You refer to Whitehall. There was a question in Parliament some years ago of whether the government was able to state, which parts of legislation had not been brought into effect and the answer from the minister, if I recall correctly, was that he could not do it.

Secondly, on subordinate legislation, as you say, there used to be publications, and then about 10 or 12 years ago it was decided that this should be put onto a computer on an electronic basis and, as far as I remember, there was some department, under I think the Lord Chancellor, which was given the responsibility for doing this. At the time that I was still in Westminster, every year the Statute Law Committee would have a report and what would happen was it was like nirvana but nirvana was always just over the water line and it was not being published. I am saying this very much from memory but I do not think I am being unfair.

MR RODDICK: No.

SIR MICHAEL WHEELER BOOTH: I think the trouble is it is incredibly demanding and difficult to do. It sounds simple but it would need a lot of resources and the only sensible way, it would seem to me, would be to do it for the lot and everybody would contribute a certain amount of money to the endeavour. This is a question; I am not confident.

MR TURNBULL: I think I am right in saying that the original Lord Chancellor= s proposal has been discontinued, but it does need to be borne in mind that there is an excellent commercial system available, the Lexis/Butterworth Directory, which is a thing which I am constantly using and it will give you the up-to-date position on any act of parliament with regard to the amendments that have been made, with regard to whether or not it has been brought into force, and similarly for statutory instruments it will give you the up-to-date position on statutory instruments which are, as you know, constantly being amended. In fact, I have to give them credit - they coped well with the phenomenon which we have now of some old England and Wales statutory instruments being amended differently for Wales as they have been England. You may have a particular Regulation 4 which may have a different text in England than that which it has in Wales, which is certainly a confusing situation. The Butterworth Directory has coped very well with that in its notes. It is a subscriber system, of course, but there is this system available.

What is envisaged for the Assembly is not a full text system like that obviously which would be beyond our resources and it would be silly to try and duplicate what is there. What is envisaged is basically an index which will list the functions of the Assembly and it will list the statutory instruments which have been made under them and it will list them under a two-tier type subject head system, so anyone searching for the title of a particular act or a general type of subject heading will have shown to them on a screen first the acts, it may not show them its powers, it will then show them the particular powers invested in the Assembly. It will show them the means by which those powers have become invested in the Assembly, whether by transfer of functions order or by direct reference to the act itself or by consequential provisions in another act, and it will list the statutory instruments that have been made by the Assembly under those powers vested in it.

TED ROWLANDS: Could we look, because you discuss it in a number of paragraphs in your submission, at the proposal to make the process of legislation of Westminster in relation to Wales simpler or clearer, or whatever it may be. I very much agree with that paragraph in your report that says we cannot bunch all the Wales clauses together because this would lead to considerable replication among other things, but what about the Rawlings principles - how feasible and viable from your collective experience do you think the Rawlings principles are or would be?

MR RODDICK: I welcome something of the kind as guides but not principles. I think principles are an inappropriate description of them because if someone acts contrary to them they are acting in an unprincipled way. They are guides and guides have to give way to the circumstances of particular pieces of legislation going through Parliament, and so you have to have a system which enables the particular circumstances of each and every bill to be taken into account by the Minister and the drafter. That is the first point I would make. I think principle 5 would make for far too much uncertainty and lead you into the framework legislation point again where you would not know where you are on the vires point. We have covered that point. Deciding whether or not something should be devolved to Wales is a political matter. That it should be decided by reference to a set of principles the effect of which is to pre-empt the will of the Minister and irrespectively of the circumstances of the particular Bill is an interesting proposition. Subject to those couple of points, I agree that the Rawlings Principles produce clearer lines for deciding what powers or functions should be devolved to Wales. ---

LORD RICHARD: What about the Henry VIIIs?

MR RODDICK: I am very much in favour of Henry VIIIs.

LORD RICHARD: In favour of it?

MR RODDICK: Yes, that the Assembly should be allowed to amend the primary legislation through secondary legislation if that stands in the way of the secondary legislation being carried into effect. S.

SIR MICHAEL WHEELER BOOTH: Your answer to Mr Rowlands (on the Rawlings Principles) might have been enunciated by the first Parliamentary Council.

MR RODDICK: I think it would - I think we see it in the same way.

PETER PRICE: But the Rawlings principles which you have talked about as guides, let us accept them as guides, to what extent are they in use, to what extent are they even known about at the Whitehall end of things?

MR RODDICK: There are seven of them. The first one is generally observed. The second one says that the Bill should only give a UK minister power covering Wales if it is intended to cover on a single basis England and Wales. Again, that is universally observed, depending on what is meant by A single basis@ of course. UK Ministers may, for instance, exercise their functions as regards to the police differently in respect of different English or Welsh forces although within the same framework of policy. That second principle is generally observed. The third principle says that bills should not confer functions specifically on secretaries of state for Wales. Where functions need to be exercised separately in Wales they should be conferred on the Assembly. That is the third principle, and it is generally observed I believe.

TOM JONES: Just one point there. The current review of the Charity Commission proposes that there should be a dedicated Charity Commissioner for Wales with an office for Wales under the Secretary of State for Wales. Would there be an objection to that under that principle?

MR ROWLANDS: Is charity devolved? I do not think it is. The Law Commissioner himself has said that it is not devolved.

MR RODDICK: It is not mentioned specifically in any field listed of Schedule 2. That does not mean it cannot be devolved because Sections 21 and 22 of the Act enable other functions to be devolved by legislation or orders in Council.

TOM JONES: Sorry to disturb you.

MR RODDICK: It is a political point as to whether or not that power should be given to the Assembly rather than to the secretary of state, and it is inconsistent with Professor Rawlings' approach. Principle 4 says that the Bill should not reduce the Assembly's functions by giving concurrent functions to a UK minister. That is generally observed, I would say. There are few examples of post-devolution joint functions. There is one in Section 1 of the Food Standards Act that requires the Assembly, UK and Scottish ministers to act jointly in appointing the chair of the Food Standards Agency. Then 5 as I have already explained, is the one I find difficult. It causes vires problems. Professor Rawlings suggests that where the Bill gives the Assembly new functions it should be in broad enough terms to allow the Assembly to develop its policy flexibly. It would, arguably create uncertainty as to the Assembly's vires.

SIR MICHAEL WHEELER BOOTH: The Assembly's review of its own procedures commended and accepted all the Rawlings' principles. Presumably you made your view known to them?

MR RODDICK: I did not.

SIR MICHAEL WHEELER BOOTH: But they thought politically otherwise?

MR RODDICK: They did.

LAURA McALLISTER: Can we go back to the question of capacity to advise the members, something that I am very concerned with.

PETER PRICE: Could we finish the remaining Rawlings principles first.

MR RODDICK: 6 says it should be permissible for the bill to give so-called Henry VIII powers. That is generally observed.

LORD RICHARD: Generally observed?

MR RODDICK: The exceptions noted in principle 1 are usually concerned with the DH powers but the normal practice is that where powers are conferred on UK ministers they are also available to the Assembly, and I can give an example, section 111 of the Education Act 2002 and section 3(1) of the Countryside and Rights of Way Act 2000.

LORD RICHARD: That gives the Assembly the right to amend primary legislation?

VIVIENNE SUGAR: Do you find that the principles are more honoured by some Whitehall departments rather than others, which was the evidence we heard from other parties?

MR RODDICK: I would imagine that there would be a difference in approach. I cannot give specific examples but I would not be surprised if they applied it differently. However, I do not deal with the Whitehall departments.

VIVIENNE SUGAR: So in terms of legal contact with individual departments, how does that happen? Is there not discussion at formative stages lawyer-to-lawyer?

MR RODDICK: On Bill work? Absolutely, there is a lot of inter-working between Assembly lawyers and lawyers in Whitehall in the process of making bills.

VIVIENNE SUGAR: So you have day-to-day experience of whether departments are trying to conform to the Rawlings principles or not?

MR RODDICK: Mr Bush has experience of working on Bills with Whitehall. MR BUSH: As far as the principles in a particular field and any ministerial power which is relevant to that field should go to the Assembly, I have never had any difficulty in relation to that at all. In relation to this idea that legislation particularly in relation to Wales should be more of a framework nature and allowing for a greater degree of discretion for the Assembly to use its secondary powers over a wider field than would be appropriate in relation to England where the Secretary of State is exercising the analogous powers, experience varies, I think it is fair to say, between different departments. I hasten to add that that is not necessarily because of any resistance within the department. I am looking at your learned chair at this point - because the House of Lords Committee on Delegated Powers and Deregulation is a jealous guardian of the prerogatives of Parliament in relation to legislation and looks very closely at all delegated powers, and I think I detect some nervousness in Whitehall about the idea of giving powers to the Assembly which would be seen as trespassing on the prerogatives of Parliament.

If you want to see an example of that that is presently before Parliament, the Waste and Emissions Trading Bill which had its second reading I think about a fortnight ago, and prior to that there was a report by the House of Lords Committee on Delegated Powers which said it is a framework bill generally as far as all UK jurisdictions are concerned and the Committee said they were really not very happy about the extent to which the filling in of the detail has been left to delegated legislation, we are prepared to tolerate it in this case because we understand that in Wales, Scotland and Northern Ireland it will be a matter for the devolved administrations in those areas. But it rather unbalances the whole thing that in England where if the Secretary of State is to have the same powers those go rather farther than we think is appropriate. So there is a tension at the moment between, on the one hand, if you have got an England and Wales bill, delegating wider powers in relation to Wales and not in relation to England. On the second reading of the bill, the debate looked, for example, at particular clauses in relation to Wales which are different in England where we have got quite wide delegated powers because we wanted them to deal with specifically Welsh problems, and a number of contributors to the debate said, A We cannot understand why there are different powers of delegated legislation in relation to Wales than there are in relation to England. Why should that be?@ I think there is a certain amount of education therefore that maybe legislators in Westminster are in need of to understand that in relation to Wales, because of the greater degree of scrutiny and the fact that you have got the devolved administration, it is appropriate to have a wider degree of delegated powers and to use them for wider purposes, which I think is the important point, than would traditionally be the case in relation to a non-devolved situation.

SIR MICHAEL WHEELER BOOTH: Two tiny points. Was the second reading debate in the Commons?

MR BUSH: No, the Lords. What I was going to sum up by saying was this: if there is a barrier, an obstacle to a bill being drafted in a way that provides the Assembly with wider powers then it may be, and I am speculating to some extent, that there is a nervousness about the attitude of Parliament to that kind of provision.

SIR MICHAEL WHEELER BOOTH: But there is another logical reason why Wales should have that and that is the provisions of the act which counsel takes everywhere he goes, the Government of Wales Act, which allows the Welsh Assembly to vary the terms of subordinate legislation in a way that is not open either to the Westminster Parliament or to the Scottish Parliament.

MR BUSH: That is absolutely correct and of course the UK government's amendment to the House of Lords Committee and indeed Lord Whitty in the second reading debate made that very point. He said that of course in Wales there is a higher degree of scrutiny, it is a devolved administration and the necessary subordinate legislation will be subject to that form of scrutiny with the possibility of amendment and so on. That is, understandably, something that not all legislators in Westminster have quite grasped yet.

SIR MICHAEL WHEELER BOOTH: Is not the rider to that that in the long term this particular procedure, one side or the other, will have to give because the idea that you have for many years this large latitude in relation to subordinate legislation in Wales but not have it in England or Scotland, the difference is going to be rather difficult to sustain logically or practically?

MR ROWLANDS: The objection surely to subordinate legislation traditionally is that it was unamendable and did not go through the rigour of scrutiny of the kind we have. If that rigour is being conducted by a democratic body then that objection falls.

MR RODDICK: Absolutely.

LORD RICHARD: At the moment the evidence we have had is that that scrutiny is not being undertaken by anybody.

SIR MICHAEL WHEELER BOOTH: So far.

LORD RICHARD: I understand committees in the Assembly do not spend much time looking at statutory instruments textually, if you like, in a way that a committee stage of a bill would be proceeding at Westminster.

MR RODDICK: They are starting to do that, especially now they have a lawyer who assists them on this. They are starting to do it and I think that is very important. It is through the Committee that AMs make their contribution to the content of legislation.

LORD RICHARD: You have been very generous with your time. I am sorry we have run on a bit. Can I raise one final issue as far I am concerned on the corporate body nature of these arrangements, this strange hybrid creature which I do not really profess to understand. You say in your written evidence that you think it has been pushed as far as it can be pushed now and that divorce would be the next step.

MR RODDICK: Yes.

LORD RICHARD: As a lawyer you might invite clients matrimonially that they should get divorce; have you similar advice for the Assembly? Do you think this split is inevitable and, if so, what effect will it have on your job? What would you have to do and how would you have to do it?

MR RODDICK: One, I do not propose to give the advice. It is essentially a political decision as to whether or not they separate. All I can say is that the two parties having lived apart for as long as they have evinced a clear intention to part permanently. Those are the facts, and I am simply observing the facts, I am not expressing any view or giving advice because it is on other side of the boundary. As to the inevitability of a split, I deal with this in my written evidence. As to the effect of a split on the role of the Counsel General, I will provide supplementary evidence on that question if the Commission wishes me to. It might take longer than the time available to us. SIR MICHAEL WHEELER BOOTH: What is the origin of the term Counsel General? It is called Counsel in Westminster and I think in Scotland.

MR RODDICK: The Westminster role you are referring to is that of Speaker’s Counsel. It is described in paragraph 26 of my written evidence. He does not advise Parliament or Government. The Counsel General is the senior legal adviser to the Assembly. He is responsible for advising the Assembly in its legislative and executive functions. That is why the role carries the title which it does. MICHAEL WHEELER BOOTH: I see.

What is the plural because in this chart we have been given by the Permanent Secretary it has Assistant Counsel Generals.

MR RODDICK: Assistant Counsel General.

LORD RICHARD: Counsel is a plural word anyway. On that slightly frivolous note ---

VIVIENNE SUGAR: I want to ask a question about staff because you referred in your introduction to the expansion in the number of lawyers employed to carry out the current role and it is about estimates of additional capacity needed for taking on primary powers and so on and also where these staff are going to come from. I was at Rhodri Morgan's lecture on Wednesday night where he talked about the idea of the new Welsh public service where a new cadre of public servant would be developed, interchangeable between different bodies and so on. It strikes me that getting the number of bilingual lawyers you might need is a longer term prospect. They are not going to be magicked into existence overnight. Could you talk about the human resource side of this and the cost.

MR RODDICK: I can talk about availability of bilingual lawyers. I have never had to stipulate in any advert that knowledge of the Welsh language is necessary for lawyers in OCG. A large proportion of applicants happen to be fluent in Welsh. It is unnecessary, therefore, to make it a requirement. There has been a sufficient number of Welsh speakers at every recruiting round so far. That is the first point.

The second point is that there is no experience in Wales, indeed in the United Kingdom, of bilingual drafting of legislation so we have to create that experience through training and practice. The only effective way to train a drafter is on the job so it is a gradual process. The last three adverts which I placed had a huge response - about 300 applications for ten places - and each time I have had very, very talented young people applying. They are really interested in joining the Assembly. They see it as a very exciting place for lawyers to work, so there is no shortage of applicants and I get bilingual applicants with high academic records applying. I am not short of talent that I can nurture and train, and that has been a very rewarding experience and also inherited very experienced government lawyers from the Welsh Office. Their experience has proved invaluable I am not quite sure how many we would need for primary legislation.

VIVIENNE SUGAR: That is one of the considerations for the Commission as to what anything we might recommend would cost.

PAUL VALERIO: Does the table in paragraph 22 contain any examples where the powers have been used to adopt policies which are substantially different from those in England, as opposed, for example, to adopting different organisational structures?

MR RODDICK: Are you asking me if the Assembly has actually used its powers to make statutory instruments which are different in their policy content from the equivalent instruments in England.PAUL VALERIO: Yes.

MR RODDICK: Yes, it has ad it has done so on a number of occasions. I can send you a list if that would help. I can say that it runs to a list, it is not just an isolated example. I have the list here but taking you through it would take up your time unnecessarily or I could let you have the actual instruments.

TED ROWLANDS: A flavour of the change, is it a simple thing to accommodate the fact that there is an agency or does it reflect a substantial policy point?

MR RODDICK: They reflect a real difference, for example prescription charges, that is a real difference. Eligibility in Wales is wider than in England. That is a very real difference. I know Keith Bush has examples as well.

MR BUSH: The one I was going to mention as a very good example is the subordinate legislation that introduced free travel on local buses in Wales. It is a Henry VIII power because it involved amending relevant sections of the Transport Act 2000 as between Wales and England. First of all, we have got the fact we are talking about free travel as opposed to half-price travel. We have got the fact that in England there are restrictions on the hours at which concessions can be employed which does not exist in Wales. Thirdly, you have got the fact, by a certain amount of ingenuity I have to say in the legislation, we put together an all-Wales scheme whereas the ones in England are essentially local authority-based schemes, so that was an example where there was a specific policy initiative by Assembly ministers where we have the legislative powers and we have used them in a way that does not have any parallel at all in England.

LORD RICHARD: Thank you very much indeed.

MR RODDICK: I am just handing it the list in. (Same handed in)

LORD RICHARD: Thank you very much indeed. It was a very helpful and interesting morning. I am bound to say many years ago I was a member of the Committee chaired by Lord Renton on the interpretation of statutes and for years he has been very enthusiastic at moving away from the Westminster system of dotting every I and crossing every T to a more conceptual type of approach. He would be delighted at what you have had to say and I will report to him. Thank you very much to you and your colleagues.