MINUTES OF PROCEEDINGS

of the

EVIDENCE OF:

CHAIR OF THE LEGISLATION COMMITTEE OF THE

NATIONAL ASSEMBLY FOR WALES,

MICK BATES, AM

held at

National Museum & Gallery, Cardiff

on

6^TH December 2002

LORD RICHARD: Could you introduce yourselves?

MICK BATES: Thank you for the invitation. I have with me Olga Lewis, Clerk to the Committee, and John Turnbull, our legal adviser.

LORD RICHARD: What we have usually done is asked people to open the discussion by making an opening statement for five minutes, and then we move on.

MICK BATES: Ladies and gentlemen, thank you very much for giving me this opportunity to address you on behalf of the Legislation Committee of the National Assembly for Wales. The Legislation Committee scrutinises Assembly subordinate legislation. It is established under Section 58(1) of the Government of Wales Act 1998. Standing Orders 11 and 22 outline the responsibility of the Committee and the procedure for the passage of Assembly legislation respectively. The grounds for the Committee to draw special attention to the Assembly to subordinate legislation are in Standing Order 11.5.

The effective working of the Legislation Committee is an important benefit which the Assembly brings to the governance of Wales. The role of the Legislation Committee is to check that the legislation coming before the Assembly is not defective and that any relevant requirements have been complied with.

The Committee meets every week to discuss pieces of subordinate legislation. If Statutory Instruments follow standard, accelerated or extended procedure, the Minister sends them to the Legislation Committee before they are considered in Plenary.

If Statutory Instruments follow the executive procedure, the Legislation Committee will consider them after they have been made. The legal adviser to the Committee makes draft reports which, together with the SIs, are circulated to the Committee members. At the meetings the members consider the draft reports and change them as appropriate. Finalised reports of the Committee are published on the intranet and the internet on a weekly basis.

The Committee considers it would be important to confer powers of primary legislation to allow devolved government in Wales to develop the political and legal capacity to give full expression to the policy requirements of Wales. As part of its review the Richard Commission will be considering the question of additional powers for the Assembly. The Commission will clearly be looking at the Westminster and Scottish Parliament models as part of its considerations.

In considering these options the following points would be relevant to the role of the Legislation Committee.

If the Assembly were to receive primary legislative powers and the present structure were split into a separate legislature and executive, the function of making subordinate legislation would be vested in the executive. The Legislation Committee would become a committee of the legislature scrutinising subordinate legislation, after it had been made in the case of the negative resolution procedure, (the majority of cases in Westminster and Scotland) and before making in the case of affirmative resolution procedure. Thus, if this were to happen, the Committee would be reporting to the legislature in relation to action taken by the executive.

It might be relevant to consider whether the Legislation Committee should have the additional function which the Scottish Committee have of reporting on subordinate legislation powers in proposed primary legislation.

Given that there is no precedent of primary legislation for Wales being drafted by persons other than the Parliamentary Counsel in London, the Commission might choose to consider whether the Legislation Committee should be given a role in advising the legislature on the drafting of primary legislation as introduced in the legislature.

I believe there are great opportunities here considering that we already have established the importance of bilingual law-making, and I also believe that there is a role to look at the regulatory impact assessment, as in many countries round the world where this role is given prominence, to assist government to make sure that its laws are effective, with the addition, possibly, of a "sunset clause".

Of course, there also are two further dimensions in this: the members of the Assembly themselves have to understand the process - and this morning I am very fortunate to have John Turnbull who does understand the full legal process, unlike the majority, I might add, of the members - and the impact of primary legislation would have a fundamental effect on Committee behaviour.

About a year ago the Legislation Committee made a submission to the Assembly Review of Procedure. Although this is not directly relevant to the Commission's consideration of powers of the Assembly, the Commission might find it helpful to be aware of the points raised by the Legislation Committee there. The table listing the proposals to the Assembly Review of Procedure is included in our written submission, which I believe has been circulated to you.

LORD RICHARD: Thank you very much indeed. A number of people have said to us since we have been taking evidence that they thought primary powers should come down from Westminster to Cardiff, but none has yet told us how the Assembly would try and handle this. How would you see your Committee participating in the passage of primary legislation? What you say in your paper is that you would merely be reporting on getting legislation to the Assembly. Would you have a greater role than that? How would it be passed? Would you have three readings of Bills? Standing Committees? Would you look at the details when the Bill is at Committee stage?

MICK BATES: The Scottish model in the general position I would recommend but the step before that is the infrastructure that is required. In Westminster there are 51 parliamentary counsel so there has to be a large infrastructure to assist with the process of drafting primary legislation.

It is my belief that acquisition of primary legislative powers will necessitate removal of the corporate body so we will have a legislature Parliament and an executive, so there has to be that necessary scrutiny and it may be that the Scottish model, where they look at subordinate legislation powers inprimary legislation, would be a role for us to take. At the moment, I believe that may be the better path to follow.

LORD RICHARD: For your Committee?

MICK BATES: Yes.

LORD RICHARD: So you would still be looking at subsidiary legislation?

MICK BATES: The straightforward analogy of how we would operate would be with the Joint Committee on Statutory Instruments in Parliament, but the Scots have gone one step further in examining the subordinate legislation powers in the proposed primary legislation.

JOHN TURNBULL: There are two points which the Committee has made in its submission: one points to the additional function which the Scottish Legislation Committee has which is, in effect, the function which the House of Lords Committee on Delegated Legislation has of looking at each Bill as presented to Parliament and reporting on the subordinate legislative powers in that Bill. That is a function which our counterpart Committee in Scotland has in addition to scrutinising subordinate legislation.

Additionally the point arising solely from this Committee is the suggestion that, because drafting of primary legislation would be an entirely new venture for Wales, the Committee might usefully have some role in looking at the drafting of primary legislation so that it would be having a wider remit perhaps to advise the legislature at the outset, whether it saw any difficulties or problems or possible scope for improvement in the drafting of legislation as submitted to the legislature.

LORD RICHARD: So even a Wales only Bill now is drafted in London?

JOHN TURNBULL: Yes.

LORD RICHARD: And instructions will go up?

JOHN TURNBULL: Instructions will come from the Wales Office, though in reality they may come from the Assembly lawyers, but they go to the Office of the Parliamentary Counsel in London.

SIR MICHAEL WHEELER-BOOTH: Chapter 5 of the Assembly Review of Procedure deals with subordinate legislation and it is impliedly rather critical of the way that subordinate legislation at the moment is considered within the Assembly. I could quote from it but I am sure you know the passages very well, and it says they should be improved.

It seems rather a leap in the dark to add significant new tasks for the Assembly and in particular for your Committee if you are not already doing to everybody's satisfaction, as is apparent from this, what is laid down by the Government of Wales Act under the Standing Orders made pursuant to that Act?

MICK BATES: I think that the reference you have made to the review is one possibly of our submission where we wanted to improve certain aspects of the process, but I think the function of the current Legislation Committee is not in question. The scrutiny that is undertaken is thorough --

SIR MICHAEL WHEELER-BOOTH: But it is scrutiny as to vires; not as to substance, the merits.

MICK BATES: Absolutely not.

SIR MICHAEL WHEELER-BOOTH: Just vires.

MICK BATES: There are various points in Standing Order 11.5 that allow you to see that the legislation is unusual or made in respect of certain powers --

SIR MICHAEL WHEELER-BOOTH: That is like the Joint Committee that you referred to which basically does not look at the merits of any piece of subordinate legislation but at the drafting and the vires, and that is what at the moment does not seem to happen altogether here - or that is the impression I get from reading chapter 5 of this report.

JOHN TURNBULL: I have not got the report in front of me but I thought the concern of the review group was that legislation was not receiving the policy consideration that one might have thought it would. I do not think there is any criticism being levied at the Legislation Committee. I think it was a certain feeling that subordinate legislation was going through almost automatically, as it were, and members were not scrutinising it for its policy content. It was not getting the same sort of scrutiny as a Parliamentary Bill does. Put shortly, I think that was the concern that was expressed.

LORD RICHARD: How often do you get a debate on the floor of the Plenary on a Statutory Instrument?

MICK BATES: Almost weekly there are debates about pieces of subordinate legislation.

LORD RICHARD: On the text? A textual debate or a policy debate?

MICK BATES: I think in all honesty they are just a debate about "This is a nice piece of legislation, let's pass it", because there have been no attempts at the moment to change the content really and I think this is the point - to change the content of the legislation. As I hinted in my opening remarks, there is a process of education for such an infant body as the Assembly to understand where you can make significant input on the policy side and then change the legislation. For example, I have been taking part in a couple of seminars on the process of how the legislation is drafted and what opportunities exist under our Standing Orders to affect it and they have been immensely useful - not only to members and their assistants but also to the voluntary sector who are also invited, because we need to make sure that in the civic society of Wales people are aware they can impact and change legislation by the Assembly itself, and I have proposed to hold a primary legislation seminar in the new year.

LORD RICHARD: How often do Statutory Instruments get amended?

JOHN TURNBULL: I do not think there have been any occasions. There is an amendment procedure in the standing orders although it is rather cumbersome because it is not the same as the Parliamentary procedure for amending a Bill. It has to go back to the Minister who has to resubmit the amended instrument.

LORD RICHARD: And that has never happened?

JOHN TURNBULL: I do not believe so, no.

TED ROWLANDS: Is it the role of your Committee to flag up those Statutory Instruments that deserve broader or greater scrutiny as opposed to those you recommend do not?

MICK BATES: As I say, 11.5 gives the reason we would say they are defective on vires.

TED ROWLANDS: So you are not identifying, "This one is deserving of debate"? That is not your job?

MICK BATES: No. The process is quite a convoluted one which operates through the Business Committee, and the Deputy Presiding Officer can ask that legislation goes to the subject committee for consideration. What has happened since the Assembly Review is that there is now a list of items of legislation sent to each subject committee and members can request that a particular piece of legislation is examined in greater detail within that committee before it goes to Plenary.

SIR MICHAEL WHEELER-BOOTH: But this has not led to any amendment of a piece of subordinate legislation within the existence of the Assembly to date?

MICK BATES: That is right.

SIR MICHAEL WHEELER-BOOTH: The wording of chapter 5 of your own Assembly's Review of these procedures is quite strong. It is shaking its head over the present situation and saying it must be improved. I think that is not an unfair summary.

MICK BATES: I think there is a general feeling that we are dealing with legislation made in Westminster and, as I said earlier, until the Assembly itself understands the process of government and how to use law - and in order to achieve that it has to have the power for primary legislation, otherwise the debates, as you hinted earlier, are really not significant debates about the content of the legislation; they tend to be about principle rather than content and changing it to the benefit of people in Wales - and until we have primary legislation powers I do not think the debates about legislation will be meaningful.

TOM JONES: Do you have any influence on the links between Westminster and the Assembly? In other words, do you campaign on behalf of the Assembly to improve the process by which Bills come into Wales to the Assembly?

MICK BATES: That is done, and I suppose the best example would be that on which you have taken evidence from the Health Committee about how the Health Committee operated a subgroup who looked at the process of legislation and how they would lobby into Westminster in order to achieve aspects of the Health Bill. Similarly on education, but time is limited and that limitation is viewed as an imposition on the Assembly, and therefore it does not have full power in order to decide for itself what primary legislation it will run through. That is a significant feature of I believe where we need to develop within the Assembly.

VIVIENNE SUGAR: At the moment the subject committees are involved in policy development and policy formulation. Do you have a view about whether that same body can then scrutinise the policy content of proposed primary legislation if it has had a hand in developing the initial contents and ideas?

MICK BATES: Currently as part of a corporate body the committees are really consensual in their operation. Taking full primary legislative power means the executive and the Parliament, will be separate so that scrutiny will be undertaken very much along the lines of the Scottish Parliament or Westminster. That I believe would become the major work of the Committee, rather than the consensual approach to formulation of policies as it is today.

SIR MICHAEL WHEELER-BOOTH: You have a very interesting sentence in paragraph 3 of your paper where you say, "It should be stressed that at the moment there is an inconsistency in an Assembly in Wales with the responsibility for implementing policy without influencing it and a Parliament in London with responsibility for legislating the policy without implementing it".

The Westminster Parliament is not the government. People often think it is, but it is not. It is a body that ministers are responsible to and they are responsible for the subordinate legislation, and subordinate legislation, as you know, can either be accepted or not. In the huge majority of cases it is accepted, and the number of cases where it has been voted down are minute.

SIR MICHAEL WHEELER BOOTH: So it is the accountability rather than the responsibility for implementing it that really is what you are saying, is it not? I should not lead you - I want to know.

MICK BATES: I think that is a very good lead, thank you very much. The process we undertook to arrive at this written submission was to discuss this with Committee itself, and there was a strong feeling that there was a gap between the responsibility for making and implementing.

The perception is, and I think it is real, that by and large without primary legislation power there is a void. You use the word accountability: I would use responsibility for implementing that policy in Wales.

SIR MICHAEL WHEELER-BOOTH: In your paper also, in paragraph 8, you talk about legislature scrutinising subordinate legislation "after it has been made in the case of negative resolution procedure, the majority of cases in Westminster and Scotland, and before making in the case of affirmative resolution procedure".

I think that is a shortened version because sometimes you have orders which take effect at once and they have to, like the awful oil leak of Pembrokeshire where I think there were orders that were laid and took effect, so I do not think that sentence is completely correct.

MICK BATES: No, you are quite correct. That would be in our terms the executive procedure. During the foot and mouth disease outbreak, for instance, there were a great many orders made under the executive procedure.

JOHN TURNBULL: This is referring to the situation which would exist if one had a separate legislature and executive in Wales. We are paralleling the situation in London. The Joint Committee on Statutory Instruments looks at a negativeresolution instrument after it has been made. SIR MICHAEL WHEELER-BOOTH: I am just querying whether it is correct to say that affirmative instruments never take immediate effect. I believe they do, sometimes.

JOHN TURNBULL: I see what you mean. I think it would normally be a negative resolution instrument which will take immediate effect.

SIR MICHAEL WHEELER-BOOTH: There are some.

JOHN TURNBULL: There are a lot of different permutations, but I can see that that may be possible.

LAURA McALLISTER: Can you tell us a bit more about the urgency procedures? We have heard in other cases that some members feel that there is a danger that that might be used as a way of circumventing some of the scrutiny processes that your Committee is meant to do. Has that been a feature of the debate?

MICK BATES: It has featured. Under the executive procedure initially ministers did not have to give a reason as to why this procedure was being used - now they do. I am informed as to the reason for the use of executive procedure and I then pass that on to other members. If I may take you back a little to what I said about the process of education and how to use this, we work closely with the Counsel General, and they have produced documents which help people understand the process of the passage of legislation.

If you looked at the operation, which I know a little about, of the Joint Committee on Statutory Instruments, they pass 500 or 600 pieces of legislation and it goes through, as I understand it, on the nod really - there is not a lot of discussion about it - and I think there is a sense that we are finding our feet on the process. There is a certain suspicion that executive procedure is being used when you want to get something through that you do not really want debated, but that is not true.

SIR MICHAEL WHEELER-BOOTH: Mr Bates, I think the reality is that the Joint Committee in committee is reasonably quick but that, in the case of certain instruments, counsel either to the Chairman of Committees in the Lords or to the Speaker in the Commons, have queries drafted and very often the department takes back the instrument and relays it - well, the minister does. That is the reality of what happens which is an effective scrutiny of vires, and it is applied only to a minority of instruments which are intrinsically of some importance, or where the drafting has gone off the rails.

TED ROWLANDS: On how many occasions have the Committee found grounds for tension in 11.5?

MICK BATES: Very few. There are reasons given in the report. There is one case at the moment - drafting defects.

TED ROWLANDS: Under the whole of 11.5 procedure?

MICK BATES: In all there are four cases in the 2000-2001 Annual Report.

PETER PRICE: In terms of the way the subject committees deal with this issue of subordinate legislation, they see in advance what is going to be scheduled and so some element of the scrutiny is carried out without a draft text in front of them, presumably - is this how it works? What is the way in which this operation is conducted? Is it a substantial one or is it in theory? For how long has this procedure of looking in advance before the subordinate legislation is tabled been in play in Committees?

MICK BATES: At the moment I could not give you an exact date as to when all the legislation was produced both on the intranet and the internet, but all legislation in its draft form is presented to members on the intranet. There is a list of legislation and the date when it was laid.

PETER PRICE: I am going back to the formative process. You were saying that the list of forthcoming legislation is sent to the subject committees. Did I understand that to have resulted from the Review of Assembly Procedure which is comparatively recent, so this is a relatively new procedure? Does this involve a substantial amount of scrutiny work by the subject committees, or is this something relatively perfunctory that exists as a possibility to be exercised, but in practice is a piece of paper that people learn to pass over?

MICK BATES: I think to some extent it has been the latter but there is an increasing interest in the legislation so it may be that the debates will become more meaningful. To give you an idea of the process, after the instructions to draft the SI there is a process of bilingual drafting which does add some time - and by the way there is a significant, although I could quantify it, financial demand to increase that as well.

SIR MICHAEL WHEELER-BOOTH: Do you translate all SIs?

MICK BATES: Absolutely. Legally everything has to be bilingual.

SIR MICHAEL WHEELER-BOOTH: All 600 or 900 a year?

MICK BATES: We have not had that many, but upward of about 200 or 300. Everything has to be bilingual. The intention on that point, before I continue the process, is that it will be a simultaneous process and in the Office of the Counsel General all drafting lawyers will eventually be bilingual and sit together and draft the SI, so that is an interesting feature which has repercussions to the training of lawyers.

EIRA DAVIES: Approximately how much time does that take?

MICK BATES: Five weeks, approximately. That is the figure I have been given. If I may continue with the process --

LORD RICHARD: How many SIs do you look at? How many times a month do you meet?

MICK BATES: We meet weekly, and I think it is around 250.

OLGA LEWIS: The 2000-2001 Annual Report quotes the figure of 202 SIs.

LORD RICHARD: Is that all the SIs?

MICK BATES: Yes.

LORD RICHARD: So anything the Assembly passes you have to look at first?

OLGA LEWIS: Yes, except if it is executive procedure when we look at the legislation after it is made. But for the rest of them there are three other procedures before it is made. We are the last instance before the Plenary looks at it.

JOHN TURNBULL: There are local instruments concerned with temporary traffic restrictions on motorways and that sort of thing which we do not look at.

LORD RICHARD: Can I understand the procedure? The subject committee decides it wants to do something and the Minister agrees that something should be done. The Minister is then responsible for drafting the SI - or the Counsel General does the drafting but presumably the Minister looks at it; it goes back to the subject committee for approval; comes to you; you look at it from the point of view of the vires and whether it is packaged properly and the legalities are right, and it then goes to Plenary who decide whether to pass it. Is that the procedure?

MICK BATES: The Deputy Presiding Officer with the Business Committee will decide if it goes to the subject committee.

LORD RICHARD: It goes back to the subject committee but the Deputy Presiding Officer will decide that.

JOHN TURNBULL: It would not be normal for legislation to be initiated by the subject committee but by the Minister.

PETER PRICE: But the subject committee would have advance warning on that schedule and it may opt to discuss it before the Minister has prepared a draft, is that the situation?

JOHN TURNBULL: That is possible.

MICK BATES: It is possible but not the situation at the moment.

PETER PRICE: It is utterly rare?

MICK BATES: Yes. On the process, after the bilingual drafting there is the consultation of stakeholders which is very important, I believe, and would be equally important when eventually I hope we have primary legislation power. I believe the regulatory impact assessments of regulations will play a critical role. As I said earlier, I believe we should have sunset clauses and that not enough attention is given to the impact of legislation. There are figures for all round the world that show that economically there is a big advantage to having a very rigorous assessment of regulations.

VIVIENNE SUGAR: Could you give us a flowchart of the process?

MICK BATES: Of course.

PETER PRICE: And perhaps a copy of the Counsel General's paper you referred to which helps members to see their way through it.

MICK BATES: Yes.

SIR MICHAEL WHEELER-BOOTH: I put it to you as Chairman of the Legislation Committee that the procedure laid down by the Government of Wales Act and indeed by the Standing Orders is extremely complicated and, frankly, unworkable. It is, I would have thought, something that should be addressed and it is said in this report of your own review of procedure quite clearly that it is very complicated and that members of the Assembly do not understand it, and to leave it undisturbed would be arguably - well, if you want it to work, you do not leave the present provisions of the Acts and the standing orders as they are.

MICK BATES: The short answer is yes.

LORD RICHARD: But that is irrespective of primary powers.

SIR MICHAEL WHEELER-BOOTH: Yes, absolutely, but they are so cumbersome.

LORD RICHARD: They seem to be passing a lot of them.

SIR MICHAEL WHEELER-BOOTH: Yes, but they are not doing anything about them.

MICK BATES: There is a process of information. When I took on this Committee I thought no one understood this, and that is why we have seminars about the process of secondary legislation, because no one did understand where you influence the process.

LORD RICHARD: Who decides for the meetings of your Committee which ones are going to go through on the nod?

OLGA LEWIS: The Business Committee prepares its agenda, first of all, and then the decision of that Committee dictates which are to go to under which procedures - standard procedure, accelerated procedure or extended procedure. If they decide that the SI is to go under extended procedure, that is when it goes to the subject committee and the subject committee discusses it. If it is standard procedure then it is debated in Plenary.

LORD RICHARD: So the decision is before it gets to you. It is only the difficult ones that are on your agenda, and the rest go through on the nod?

TED ROWLANDS: It all comes to you, does it?

JOHN TURNBULL: Yes. We see all instruments except the "local" ones.

SIR MICHAEL WHEELER-BOOTH: With the greatest respect to the ability of the members of the Business Committee, looking at all this legislation without the assistance of one or two qualified lawyers would be extremely difficult, and therefore in practice it must be to some extent one or two of the Counsel within the service of either the Government or the Assembly who has to sift, in fact, these instruments.

JOHN TURNBULL: I am separate from this because I am the legal adviser to the Legislation Committee, but somebody from the Office of the Counsel General is in attendance at the Business Committee meetings.

TOM JONES: I want to know whether your Committee has any contact with the Secretary of State's office on issues in Westminster?

MICK BATES: No. There is no contact with the Secretary of State at all.

PAUL VALERIO: You did say your Committee meets weekly. The other committee chairmen say they would dearly love to meet more often but they have neither members nor time. Obviously your subject is different to others but how do you cope with this? Is this a satisfactory arrangement? Do you have time and members to deal with it adequately? What are your views on that?

MICK BATES: I think it is of adequate procedure because it makes sure that the legislation is transparent in a sense and it is scrutinised by the Legislation Committee with its legal advice from John, and I think to meet fortnightly would be a reduction in the perception of its importance. The weekly meeting is important currently.

On average weeks I suppose we deal with half a dozen - perhaps more items of legislation.

OLGA LEWIS: It depends how many of them are timetabled to go to Plenary. It can be anything from just a couple to up to twenty or twenty-two. It is the debate in Plenary itself that sets the agenda for the weekly meetings.The legal advisers have to write their reports as well, so the draft SIs could be submitted to the Legislation Committee minimum one week before the meeting.

JOHN TURNBULL: Plenary has to have the report from the Legislation Committee before it can proceed with the legislation, so it is important that we fit in with the Plenary timetable.

LORD RICHARD: How long do the meetings take?

MICK BATES: They can be very short. John's advice is critical to the way the Committee operates and on that advice we would debate various issues that arise.

PETER PRICE: There is a situation which arises out of that comment which just illustrates the dual role of some of the civil servants and which is really, I suppose, a question for Mr Turnbull because he is employed within the Counsel General's office and serves the government, the cabinet, in that responsibility.

Mr Turnbull, you play a crucial role in the scrutiny of legislation produced by those very ministers, and there must be some degree of divided loyalties. Is it a problem in practice, and how do you deal with it?

JOHN TURNBULL: It is not a problem because my only role is that of advising the Legislation Committee. Although I am a member of the staff of the Office of Counsel General I play no role in the management of that department and I do not play any role in relation to drafting of legislation, save that I do advise on draft instruments in my capacity as legal adviser to the Committee - that is, I forewarn lawyers of points which I would be raising if it had come to me in that form.

My activities are solely concerned with the Legislation Committee and therefore I am only answerable to the Committee. Notwithstanding my position in the structure I do not have any conflicting demands.

SIR MICHAEL WHEELER-BOOTH: Following on from that, do you in practice do what counsel do in Westminster which is talk to the departmental lawyers where they have doubts sometimes just on the telephone or by correspondence, and if they win the argument - which they very often do - then the instrument has to be withdrawn and relayed in an amended form? Does that happen in practice here?

JOHN TURNBULL: Yes, because all the lawyers know that they have an open invitation to send me any draft when it is pretty well finalised. They can send it to me and I will, subject to the constraints of looking at more urgent matters, go through it and warn them of any points where I think it is defective or I will sometimes make suggestions where I think the drafting can be more satisfactory. They do not then have to withdraw the instrument because they are able to amend it before it is laid. The Committee records in the reports when the legal advisers have had an opportunity of seeing an early draft and have been able to identify points which have been taken into account.

SIR MICHAEL WHEELER-BOOTH: I see you produce two annual reports on the work of the Committee and there are also reports on specific pieces, which we have not been given a list of, of Legislation Committee reports on subordinate legislation.

MICK BATES: There is a report on each individual item of legislation.

SIR MICHAEL WHEELER-BOOTH: And obviously they are going the whole time but there have been two annual reports and it may be that the later one would give a birds-eye view of your activities - I do not know.

MICK BATES: It does.

JOHN TURNBULL: That is what it seeks to do, yes.

MICK BATES: Would you like a copy of that, too?

LORD RICHARD: I am not sure we would like it, but we ought to see it!

MICK BATES: I think you are going to be getting a lot of information as a result of this.

SIR MICHAEL WHEELER-BOOTH: It might make things clearer.

HUW VAUGHAN-THOMAS: There is a procedure whereby an individual AM has the power to move secondary legislation, which has not been very well used. Where would the AM turn for advice as to the drafting? Is it to your Committee or to the Office of the Clerk, because part of the reason that it has not been used is difficulty of understanding how to operate it.

MICK BATES: That is a very perceptive question. We do have a lawyer now to whom Members can direct matters, Peter Jones, who will offer the initial advice so that an individual AM who has the opportunity to introduce or change a piece of legislation. The AM goes to Peter Jones for advice and then it is taken up by the specialist lawyers in order to see what can be done. I think one piece was successful on housing.

JOHN TURNBULL: There was a piece of legislation which arose from initiatives taken by members, yes.

LAURA McALLISTER: Those powers are part of the presiding office then technically.

MICK BATES: Peter Jones is, yes, but taking the previous question about John's position, again, it relates back to the Government of Wales Act and to the corporate body issue, where a corporate structure is necessary although some steps have been taken to give an executive separation. But if we have primary legislation powers we have to have that, and then you will need the equivalent of the Parliamentary Counsel, fifty odd drafting lawyers, and then you have your Parliamentary officers working in John's role.

TED ROWLANDS: Can I ask you a question in your personal capacity and not only as Chairman of this particular Committee? You obviously favour the transfer of primary legislative powers to the Welsh Assembly. Have you thought about how you would accommodate the whole process of scrutinising the Bill into your current committee structure? Would you go for a system of standing committees, where the Bills are taken separately, or would you like to incorporate it into the subject committees and accommodate the whole of this legislative process within the committee structure?

MICK BATES: My own feel for it is that there would be an evolutionary process; that the existing structures could accommodate increased scrutiny of the Bill. If you look at the process so far within the Committee there has been a lot of strategic work, let's say, a lot of producing strategies, etc, and that obviously will feature less. As it features less, there will be spaces whenever this primary legislation power is given, for the subject committees to scrutinise Bills, and of course then you get into other questions of are there enough members there in order to undertake this, and having seen very small legislatures around the world I think the answer has to be yes.

TED ROWLANDS: Can you do it within sixty members?

MICK BATES: Yes.

LORD RICHARD: And keep the existing Committee structure?

MICK BATES: I think that again is a very interesting question. It may be that people would have different views about subject areas, but the process I believe could be accommodated within the committees, yes.

SIR MICHAEL WHEELER-BOOTH: What are the other legislatures you have seen?

MICK BATES: In Australia and Africa - particularly New South Wales.

SIR MICHAEL WHEELER-BOOTH: In the Senate?

MICK BATES: Yes, but I was surprised when I took on this role as chair to see how small similar legislatures are. In the case of Tasmania I think it is about 20 odd, and they undertake a full Parliamentary role.

LAURA McALLISTER: Other subject committee chairs told us that they could not arrange the additional meetings they might need for the policy development scrutiny role with the number of AMs they have. You say you meet weekly which, again, is different from the other subject committees. How do you think this additional workload of primary legislation could be handled by 60 AMs?

MICK BATES: The mindset is there is an executive who propose the primary legislation.

LORD RICHARD: Separate from the 60?

MICK BATES: Absolutely.

LORD RICHARD: So you would not have the executive sitting in the Parliament?

MICK BATES: Yes, I meant represented in terms of the process. Currently we have a corporate body --

LORD RICHARD: You are obviously not in favour of that.

MICK BATES: No.

LORD RICHARD: You want an executive and you want a legislature. Do you want the executive to sit in the legislature a'la Westminster?

MICK BATES: Yes.

LORD RICHARD: So that the 60 would accommodate both the legislature and the executive?

MICK BATES: Yes. The point about the committee structure, as I say, is open to debate for me but the process of scrutiny within the Committee structure I think can be done adequately within the existing timescale.

TED ROWLANDS: Once you took that process on and you have created a Parliamentary structure, do you think ministers should remain on these committees? That is the other issue we are exploring. Should the Ministers be members of the Committee as such? Should they be accountable to them but not members?

MICK BATES: That is a good question. At the moment I would say they should not be members.

LORD RICHARD: Do you have a Minister on your Committee?

MICK BATES: No. The standing orders say that you cannot have a chair from the largest party in the Assembly.

LORD RICHARD: But do you have a Minister?

MICK BATES: No.

LORD RICHARD: Because there is no Minister responsible?

JOHN TURNBULL: It is prohibited under the Act, because this Committee is a scrutiny committee.

LORD RICHARD: Do you haul him up in front of you?

MICK BATES: We cannot do this unfortunately. In our response to the Review of Procedure, we suggested that it would be a good power to use.

VIVIENNE SUGAR: There is one Minister with responsibility for ruling legislation through, so there may be one that you have a closer relationship with in terms of co-ordinating how the business comes through, or do you just receive what comes to you from the business committee?

MICK BATES: That is right. We are recipients of submitted legislation and then our scrutiny process takes place.

TED ROWLANDS: You have obviously looked at other models and I am interested in your quite clear view about the size of the Assembly and the capacity or capability of dealing within the existing structures. Are you familiar with what the Scots do with the famous Sewell motion by which it is possible, and exercised in about half the Bills, for a motion in the Scottish Parliament to say, "Yes, we will let Westminster legislate on this particular issue"?

MICK BATES: No, I am not, but in response to your first point about size, etc, until the experience is undertaken you cannot I think predict, because the Minister has responsibility to accept the role of policy formation currently within Committees. Reviews undertaken by Committee go to the Minister who then presents the government case back to Plenary.

TED ROWLANDS: I sense you favour really, dare I say it, more the Westminster system by which committees become more scrutiny committees, rather than the dual role?

MICK BATES: I think it would evolve. I am not able to comment on Sewell.

TED ROWLANDS: The Sewell motion of filtering is very successful. Instead of being overloaded, the Scottish Parliament says in respect of this Bill or that Bill, "We will let Westminster legislate for us".

MICK BATES: I see.

LORD RICHARD: Yes. That is broadly what Sewell does.

MICK BATES: Presumably it is a similar process with the European legislation?

LORD RICHARD: I think some of the inferences for the Sewell procedure have come from Europe because the negotiation is with the United Kingdom and not with the constituent power.

HUW VAUGHAN-THOMAS: Coming back to the point you made, I understood you would like ministers to appear and be scrutinised by your Committee as to why they bring forward legislation. Is it intended to amend standing orders to allow that? What is the block at present?

MICK BATES: I do not think we do have the power. It is an interpretation of the existing standing orders.

JOHN TURNBULL: What we have at the moment is a standing order which says that the Legislation Committee cannot report adversely to the Assembly on a particular piece of legislation without first having given to the Minister the opportunity of commenting on that or giving evidence which, at the Minister's choice, he may do either in writing or orally. So there is a procedure whereby, if a reporting issue arises, that is first put back to the Minister and the Minister's comments on it are obtained but it is the Minister's choice whether he submits those comments in writing or by appearing before the Committee.

HUW VAUGHAN-THOMAS: This is the usual comment blind in a sense but from what you said that does not seem to rule out an early appearance by a Minister to explain the position. Against the fact that you have said that subject committees are supposed to examine this, the impression I get from the subject committee chairs is that that is not taken - "seriously" perhaps is the wrong word, but not regarded as their sexiest bit of work.

MICK BATES: I think that is fair comment. To discuss reviews and strategies is an inclusive process, and the policy scrutiny of legislation requires a support system which currently we do not have.

LORD RICHARD: But you said that you would like the power to have ministers appear in front of you and be questioned on why they wanted legislation. It is not a question of why they want it; that is policy.

MICK BATES: The Legislation Committee should not question on policy. That would be for the subject committee.

LORD RICHARD: I do not know what else "why" means. Supposing the Minister says, "Yes, I need it because of this, that and the other", and you say, "No, you do not".

MICK BATES: A recent example was that there was a typographical error in a piece of legislation and there was a mistake between the translation --

LORD RICHARD: If it was leaving "not" out --

MICK BATES: No. This was leaving out a very important piece of information about stock returning from shows and being subject to all the legalities of disinfection, etc, and the Minister wrote back to us and we were not happy. He just said, "We will let the legislation go as it is without amendment because the show season will end soon", and we did not consider that was a good enough reason because it was defective.

LORD RICHARD: What did you do?

MICK BATES: We exchanged correspondence.

LORD RICHARD: What happened?

MICK BATES: We have not got to the end of the correspondence yet.

LORD RICHARD: But has it got through Plenary yet?

JOHN TURNBULL: It was a piece of legislation made under the executive procedure.

LORD RICHARD: So it is there?

JOHN TURNBULL: There is a discrepancy between the Welsh and English texts --

LORD RICHARD: You have a problem.

JOHN TURNBULL: -- Which the Minister felt was not an important issue. The legislation is due to expire at the end of January and the point was made that it only concerns agricultural shows.

LORD RICHARD: Have you done anything about it?

JOHN TURNBULL: We have written back in reasonably strong terms saying that it is the firm view of the Committee that an amendment should be made to correct this, and if the Minister does not agree with that he would be invited to attend our next meeting so that the issue can be discussed further.

LORD RICHARD: Supposing you cannot agree?

JOHN TURNBULL: We have no powers. Our report will lie as our report and will be there on the record.

LORD RICHARD: To Plenary?

JOHN TURNBULL: It is not a report to Plenary in this case because it has been made under the executive procedure, but in terms it is a report to the Assembly, yes.

VIVIENNE SUGAR: Did you say you were not allowed to report adversely?

JOHN TURNBULL: Not without first giving the Minister the opportunity of commenting.

VIVIENNE SUGAR: But after they have had that opportunity, then you can?

JOHN TURNBULL: Yes.

SIR MICHAEL WHEELER-BOOTH: You said a little earlier that the chairman of your Committee or chair cannot be a member of the majority party, but at the moment there is an accord between Labour and Liberal Democrats and I believe you are a Liberal Democrat.

MICK BATES: As yet not the majority party!

SIR MICHAEL WHEELER-BOOTH: But is not that rather against the sense?

MICK BATES: I do not have the exact wording in front of me.

SIR MICHAEL WHEELER-BOOTH: It just says "majority party".

PETER PRICE: Or "largest".

MICK BATES: Yes. There are lots of interesting adjustments one can make.

JOHN TURNBULL: The Legislation Committee may not be chaired by a member who represents the largest party with an executive role. Section 59 says, "For the purposes of this Act a party is the largest party with an executive role if an Assembly member representing the party is a member of the executive committee and it is represented by more Assembly members than any other party represented by an Assembly member who is a member of that committee".

LORD RICHARD: Thank you very much. We have lifted a few veils.

MICK BATES: There are many of those. Thank you, and we will forward the rest of the information to you.