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

MINUTES OF PROCEEDINGS

of the

EVIDENCE OF:

LORD THOMAS OF GRESFORD

held at

St George's Hotel, Llandudno

on

28th March 2003

Proceedings

Lord Thomas

Martin Thomas, Lord Thomas of Gresford, the Liberal Democrats, spokesman for Wales in the House of Lords.
In my room in the House of Lords I have a photograph of Llandudno in 1962 of the whole Liberal party on the stand led by Joe Grimond, Emlyn Huwson, and Jeremy Thorpe. It is nice to be back in Llandudno. That was the first Assembly I ever went to in ‘62. In ’64 I fought West Fincher as a Liberal candidate, and I called for proportional representation, a Parliament for Wales and abolition of the hereditary House of Lords. We have come quite a long way in the last 40 years. In 1967 I drafted a Bill on Parliament for Wales which Emlyn Huwson presented on 1st March 1968. In that Bill it is interesting to see that almost everything in the Welsh Liberal Democrats paper that you received was contained, including legal system and legislative powers and all the rest of it. I gave evidence for the party with the Welsh Liberals to the Crowther Commission in 1972, and I played my part in the devolution campaigns of 1997 and later in ‘98. So you can say that I am a committed devolutionist.
You have received the Welsh Liberal Democrat policy document. I don't propose to rehash party policy at all. I will take my own line based on my own experiences in the House of Lords and focus on the question of the relationship between Cardiff and Westminster to which you refer in your issues and questions documents. I apologise for not being able to present you with a paper beforehand. I have not had time to prepare it. But I would be very happy if anybody wants to interrupt me at any time for clarification or for comment.
What I want to see from this Commission, what I would like to see, what I would hope to see is that you grant primary legislative powers to the National Assembly, that there be some movements of that. Because it seems to me that there we have a democratically elected body; the problem is how does it express its voice? It replaces the Welsh Office, but not just as an executive body, it replaces the Welsh Office in order to form policy and in order for its Cabinet to carry out that policy.
My experience in the House of Lords suggests that it isn't all that easy for the voice of the Assembly to be properly expressed. It’s quite interesting that when the first legislation came out after devolution the drafters of the Bills that concerned Wales were happy to put in clauses which said for Secretary of State read the National Assembly. That tendency still continues. I made a speech the other day on the Community Care Delayed Discharges Bill in which there was a clause which said something to the effect that the National Assembly shall have no more than the powers of the Secretary of State. Which, considering health is devolved to the Welsh Parliament, I thought was a breach of the devolution settlement. But there could be an argument about that. Where you have these "for Secretary of State read the National Assembly" what is happening is that whereas the Minister has certain executive powers the National Assembly, as I have already said, has more than executive powers. It’s not just an executive body. It consults and it forms its own policy. Therefore, the two things are not alike.
In the early days of devolution when these clauses were appearing in the Bills I was constantly on my feet saying, ‘Can we please have separate Wales sections in the legislation?’ That was duly followed and we have as you know had separate Wales sections in the number of Bills. There are some problems about it, however, because where you do have a Wales section you also have a large numbers of clauses put into Bills which are mixed, which apply to both England and Wales. There is a disinclination by the parliamentary draftsman to repeat the English sections where they apply to Wales word for word in a separate Welsh section. But in so far as there is only legislative power for Scotland that's not the case; you do tend to find in Bills relating to Scotland that they do set out everything all over again under a section headed ‘Scotland’.

Ted Rowlands

Could you give some illustrations of that Scottish Bill example?

Lord Thomas

I unfortunately do have the professional habit of wiping my mind after I have dealt with something. There is a particular Bill where there were large portions that devoted simply to Scotland.

Ted Rowlands

They were replicated the England and Wales, or the England clauses put them in a Scottish section?

Lord Thomas

Yes, that's right, so when we had amendments debated and they were grouped they would group the English and Scots because the wording was exactly the same. Our Scottish spokesman, the Earl of Marr and Kelly would be saying his piece on behalf of Scotland.

Lord Richard

Presumably so there were Sewel Bills where Scottish Parliament had asked Westminster to do this for them.

Lord Thomas

Yes. Presumably that is so.

Ted Rowlands

That experience seems to knock out the whole Parliamentary Council's idea that you should not do that.

Lord Thomas

It’s his view that you should not do it.

Ted Rowlands

Yes. I think it is.

Lord Thomas

You should not repeat things? Yes. There is a lot to be said for not having Bills too long if you are going to maintain primary legislative power. But it makes it very confusing, as you have found for those who have to deal with the legislation, to have a Wales section but also to have to pick many clauses out which have a dual function. And it must be confusing; not simply for the legislators but for those who have to deal with legislation afterwards, the Civil Servants and lawyers before whom those matters come. I don't think that this Wales section, although better than the "for Secretary of State read National Assembly", has resolved the problem at all.
I think the other problem is that particularly where you have mixed clauses; the National Assembly really has no voice in the process anyway - certainly not on the floor of either House. Maybe representations are made to Ministers behind the scenes, I don't know, but the National Assembly may be faced with a Bill which has a Wales section in it, it may be that a Minister or maybe a Member of the National Assembly would want to have some particular aspect clarified or discussed or amended, but there is no machinery whereby amendments can be put down by the Members of the National Assembly. Always on every single Bill it is very necessary for me as the spokesman for Wales - and maybe in some Bills there is only one clause that has this - to take instructions and to find out if you want me to say anything or to do anything. I have to be in contact constantly with my colleagues in Cardiff in order to ascertain if there is anything they want me to deal with.

Sir Michael Wheeler-Booth

Have you seen this, it has only just recently appeared the Welsh Affairs Committee of the House of Commons, Select Committee of the House of Commons - their report on the primary legislative process as it affects Wales. Because it has in it some specific proposals for ameliorating the not co-legislative, the legislative process and they are quite specific, in default on having primary legislative powers.

Lord Thomas

I do have in front of me here the evidence that was given to that Welsh Affairs Committee on 21st October by Dafydd Elis Thomas, John Marek, Peter Jones and others, I have read that. I assume that this report has recently come out as a result of that.

Sir Michael Wheeler-Booth

Yes.

Lord Richard

Part of the investigations of that evidence.

Sir Michael Wheeler-Booth

It does have quite specific proposals.

Lord Thomas

I am delighted to hear that. Perhaps you can tell me what they are, so that I can consider it?

Sir Michael Wheeler-Booth

They are reasonably long. Basically they suggest that there should be the power, that there should be the Rawlings Principles. The Government should apply that, there should be use of pre-legislative scrutiny and that there should be special standing Committees applied to certain Bills and a Welsh grand Committee debate with the Assembly about the whole programme. It is a whole series.

Lord Thomas

I shall read that with very considerable interest. Can I say just say that they are identifying, are they not, the same point that I am making to you; that really once the legislation (which is promoted by the Secretary of State and not the Assembly), once that legislation is under way or if it is a departmental Bill, then of course it may come from any department? Once that is under way the National Assembly are forced to rely on people like me to raise issues at the moment and no doubt the Members of Parliament in Wales, although I do not see very much evidence of it, but there we are, from any party.

Tom Jones

When you say the National Assembly, you mean the opposition.

Lord Thomas

Well, anybody. Any Member can- should - be able to have some sort of input, I would have thought, into a Bill which affects their remit. I mean these issues are devolved to them. I am only talking about matters that are devolved which require primary legislative powers and that the elected representatives whose responsibility it is to formulate policy on those matters are not in a position to influence the legislation in any formal way. They have to do it in an informal way at the moment.
So we come on to the all Wales Bills. We have had two I think: the Children’s Commissioner and the Health Wales Bill. That was not satisfactory. I am not going to be satisfied with anything less than primary legislative powers for the National Assembly. I will tell you what I thought were the weaknesses in it. So far as the Children’s Commissioner Bill was concerned the Home Office had clearly interfered. There was a huge row in the House of Lords about it. The Bill bounced about a bit until finally there was a compromise reached. The Home Office refused to allow the Children’s Commissioner to look at any issues concerning children over which the Home Office had the power. For example, prisons or youth offenders or probation services. The sort of area where you would expect there to be problems for children. In the end the compromise that was reached was that the Children's Commissioner would report any concerns he had about Home Office matters, that he would have access to Home Office establishments, but that he could not take the matter up with the Home Office. He would have to report to the National Assembly who would then take a decision as to whether to take the matter up with the Home Office. That was the compromise, which to my mind, was unsatisfactory. It did indicate in that particular department a failure to understand the principles of devolution altogether.
Somebody referred to the Rawlings Principles. When I raised the Rawlings Principles on one occasion the Ministers had not heard of the Rawlings Principles. This was something entirely new to them, notwithstanding the fact that the National Assembly had agreed to promote the Rawlings Principles, or whatever it was they precisely agreed. There were Ministers charged with taking the Bill through Parliament who had not heard of it at all and had to be informed. That is the Children's Commissioner Bill. The interference by the Home Office in what was an all-party Bill. There was absolutely no dispute down in Cardiff as to what should happen and what sort of remit the Children's Commission should have. It was regarded as leading the way in the UK. Everybody was very proud of it. But that didn't stop central Government from interfering. The Health Wales Bill that we have just finished-

Ted Rowlands

Is there not a serious principle behind the suggestion that in fact the Assembly has primary legislative powers and would have passed the Children's Act, that they should have the power to legislate and give power to a Commissioner over institutions that are not devolved?

Lord Thomas

You make a very good point because it is true that the Home Office - those aspects of the Home Office are not devolved. But on the other hand I would have thought that they would have worked out a solution which would have avoided the sort of clash that we had in the House. That is my point.
The Health Wales Bill. As Bills go it was really rather a small effort; three main points were sought. It was published on 17th May of last year by the Secretary of State, not by the National Assembly, but no doubt he was acting as an agent for the National Assembly who had debated the particular matters that they wanted and formulated their policy thorough the Cabinet which the Bill encapsulated.
So the Bill is published in May. It is discussed by the Health Committee of the National Assembly in May, and then later discussed in plenary session. Then the Welsh affairs Committee did an extremely good job of it. The Welsh Affairs Committee took evidence in Cardiff and evidence in Westminster and they produced a report on 23rd October which led to amendments being made in the provisions in that Bill.

Sir Michael Wheeler-Booth

Were the amendments made in the Commons or Lords?

Lord Thomas

The Members amendments before the Bill were actually presented. It was produced as a draft Bill, so this was all pre-legislative scrutiny which is something I am pleased see the Government taking up and relating to a wide range of Bills now. I was talking to Gareth Williams the other night about it. He has been to Scotland and Wales and in a sense he is following along a path of pre-legislative scrutiny that we laid out ourselves.
So the Welsh Affairs Committee had a good look at it and did a very useful job and it was then discussed by the Welsh Grand Committee on 16th July. This was presumably alongside the Welsh Affairs Committee investigation: it came to the House of Commons and I have actually totted up the hours just as a matter of interest. There are three points in this Bill; the second reading took four hours forty-five minutes. The Committee stages were over a day and a half and six hours were devoted to it.

Sir Michael Wheeler-Booth

That is in the Standing Committee?

Lord Thomas

Yes. Then it came back for report and a third reading, they took an hour over it there, so they had given it nearly 12 hours of Parliament time and something like six hours on the floor of the House. No, I am looking at this wrongly. There were a further two hours on 9th December, so it took 13.84 hours altogether in the House of Commons. Something like eight hours, as I said, being on the floor of the House. If you read that debate, nobody is seriously seeking a change of principle. Why should they? Whereas in the ordinary run of the mill, if a Bill comes before Parliament, amendments are put down in order to change Government policy, in order to bring in a different form of settlement, to alter things in all sorts of ways. But why would 13.84 hours be spent in the House of Commons on a Bill which was coming from Cardiff, that was seeking to change Cardiff policy?
There really, in my very respectful view to the House of Commons, as we always are, there have been no serious issues or principles or matters of changes of policy to be discussed. Everybody is standing up and making party political points with each party seeking to say that it is all down to them. The Liberal Democrats lead the way of course on anything that is good, and the usual stuff.
Well, it comes up to the House of Lords. We gave it three hours in a second reading. One hour fifty-five in Committee and fourteen minutes at third reading. I took the principle that we were not going to seek, so far as the Liberal Democrats were concerned, to amend this Bill just because we thought we would like to make a few speeches. We had no instructions from our friends in Cardiff to see any amendments to it. The Conservatives put down amendments which enabled Lord Roberts of Conwy to demonstrate his considerable Ministerial experience and expertise and he has always been very good to listen to because of that experience and expertise on Welsh affairs. But the sort of amendments that he did put down were about the constitution of CHCs, who should be Chairman, who should be on it and one or two other matters, none of which were pressed to a vote. Altogether we have spent the best part of 19 hours in Parliament discussing a short Bill without any amendments being made to it, and in my view to no good purpose.
So, where do we go from there? I'm not here to suggest that we go straight to the Welsh Liberal Democrat’s solution of a pan-Parliament for Wales elected by STV, legislative powers and all the rest of it. What I am here to say is what I think is a way forward on this matter. Which is to include the experience of Westminster, but in a positive way.
It seems to me that the Welsh Affairs Committee did all that was needed to be done in the scrutiny of this Bill. I remember when I first started at the Bar there were some old timers who had started in the early 50s who told me a story of how they sat in chambers for six weeks until a plea of guilty from the Court of Sessions turned up for one of them and they spent five days examining it and suggesting what could be said by way of mitigation because they had nothing else to do. So much of this-

Ted Rowlands

Can I interrupt you? If I am not a Member of the Welsh Affairs select Committee I might have views to the community health Councils. I have got to have the opportunity to have a go at a particular clause or two in that Bill other than the Select Committee Members. You are saying for a Member of the Welsh for Welsh affairs - that's it? I would not have the right to have a view, even if I wasn't a Member of the community Council?

Lord Thomas

I am saying it can be done in a constructive way and at a different stage. So I certainly believe in the publication of draft Bills and in pre-legislative scrutiny, but I think that the primary legislation in this area could easily have been started off in the National Assembly whose procedures I think are superior in terms of discussion and consultation and so on. The Welsh Bill, this Health Wales Bill, went out to 302 consultees. Fifty replies were receives and evidence was taken. They really examined it. I think all that is very helpful. I think that at some stage in the procedures it should be sent up to a joint Committee on Welsh Members of Parliament and Welsh peers in Westminster who could scrutinise the legislation. They could consider the question of whether it is within the devolution settlement or not, could consider policy matters and amend it, and with those amendments and their comments and report, send it back to the National Assembly for further consideration, and for it there to receive its final form and to pass into legislation.

Lord Richard

So you would have the legislative passage, if I can put it that way, in Cardiff rather than Westminster?

Lord Thomas

Yes.

Lord Richard

Although you would let Westminster have a good look at it.

Lord Thomas

I was impressed by the Welsh affairs Committee who had a look at the Health Wales Bill and had made useful comments.

Lord Richard

It would not have reached Westminster if Cardiff had had the right to do it.

Lord Thomas

Not under the existing situation, no. But I am saying that we should have as our principle primary legislative powers or Cardiff in devolved matters, but that it should not be allowed simply to go through unicamerally into final legislation.

Lord Richard

So you would have in effect two legislative bodies, one in Cardiff, one in Westminster considering one piece of legislation which was part of the devolved subject matter, which would then become more-

Lord Thomas

Yes. I think that a joint Committee of peers and MPs from Wales could be a useful check on that primary legislative power.

Lord Richard

What’s in it for Cardiff?

Lord Thomas

They are getting primary legislative powers.

Lord Richard

Assume they have got those. If you' have primary legislative powers, why should they want to go along with a joint Committee Minister acting as a check?

Lord Thomas

Two points. I don't think what is in it for Cardiff? I think what is in it for the people of Wales? Let's make the political point. But-

Lord Richard

Let's not!

Lord Thomas

Okay. Secondly, from Cardiff’s point of view they will benefit from the wider perspective of Members of Parliament and peers in my view, who will add their experience to the Bill. It is very interesting, you have been up to Scotland, you have seen David Steel. You know that he proposed sometime in December, that there should be a sort of second chamber which was greeted with huge hostility. He seems to have rode back from that. But in the speech that he made at the end of January, he was denying that he wished to set up a Scottish House of Lords or second chamber, but that he thought post-legislatively where there is a month’s delay while their law officers look see whether the legislation is compatible, that it should go to Committee which should be appointed from all sorts of people. I'm not suggesting that. I am suggesting it should go through an elected body.

Dr McAllister

Was David Steel's comment based on the flaws in the scrutiny roles of the Committees in Scotland? Didn't he link into that in some shape or form?

Lord Thomas

My impression was - I have to study his speech in more detail - that he regarded it as a safeguard on unicameral legislative power of the Scottish Parliament. I spend a lot of time in Scotland. I tell you my sons are Andrew, Jamie and Gavin. My grandson is Angus. You will realise there is a certain Scottish element in my family, I'm there for about a quarter of a year a year. I hear a lot of what is going on there on a comparable basis. Some of the Bills, for example, dealing with land reform and hunting have gone through, particularly hunting, in a way that makes them almost unworkable. Had there been a second look at those Bills they might have been very much more effective than they actually are. I think David Steel, I haven't spoken to him about it, I suspect he's responding to that sort of thing.

Peter Price

Can I ask you about the composition of the joint body that you are suggesting should exist in Parliament? How would this be constituted in terms of party balance, in terms of the balance between the two Houses? What would be the sort of composition that you would envisage?

Lord Thomas

I think it’s one to which all Members of Parliament should be entitled to attend. Maybe the parties and cross-benchers in the Lords could nominate a number of people to represent them.

Lord Richard

The Welsh MPs?

Lord Thomas

Yes. Gives them something to do.

Lord Richard

But the problem with the Lords is it is very difficult to find any Welsh peers.

Lord Thomas

Is it?

Lord Richard

Yes, it is.

Lord Thomas

It’s very difficult to find a Welsh peer that is not a Queen's Counsel.

Lord Richard

That's true. You are down two or three people.

Lord Thomas

I am not suggesting that one is seeking a balance between the Commons and the Lords. Was it forty Members of Parliament or thirty-eight? It used to be thirty-eight. Forty in Wales balanced by six or eight or ten peers.

Lord Richard

Big division.

Ted Rowlands

You have the take the payroll out of vote out of the forty. They would not be on the Committee.

Tom Jones

What level of expertise would Welsh MPs, let alone the peers, bring to the equation, as more and more of the detailed information about the devolved matters becomes Assembly Members’ responsibilities? Therefore Welsh MPs put a lighter touch on the understanding.

Lord Thomas

I agree. You are making the case for primary legislative powers being in Cardiff. I do think that Members of Parliament are democratically elected and have a wider perspective; they deal with other legislation in addition to the particular specific legislation that's going through. I am looking at this Committee as a check, as a balance, not as something that is absolutely crucially necessary. It is just a filter in which people with a broader perspective can play their part. There is a new Bill coming forward which is all Wales. It is public trustee. Something like that. I had a notice of it this week, two days ago. A new all Wales Bill.

Ted Rowlands

New Audit.

Lord Thomas

Public Audit Bill it could be.

Lord Richard

Starting with us or in the Commons.

Lord Thomas

It’s pre-legislative scrutiny. It is going to the Welsh Affairs Committee so we have made representations that we should be permitted to have a representation on that Committee as peers. That we should put the two together and let's you have all the expertise that we can get. I have referred to Lord Roberts of Conwy as a person with a considerable amount of experience. We can take a view that perhaps he is a little cautious in some regards. Nevertheless that’s maybe what you want. I am not looking for party balance. I am looking for something to act as a check on primary legislative powers. At this stage it may ultimately change, but if you take our simple policy - primary legislation in Cardiff – then, save in a unicameral system, you run the same risk as they have in Scotland.

Peter Price

I get the impression that you would not give this stage of that joint Committee any actual power. They would need to be consulted, but at the end of the day, if the National Assembly, having regard to the advice received from that Committee, decided to the override it they could do so.

Lord Thomas

Absolutely. I think the same principle would apply, as applies between the House of Lords and the House of Commons, that at the end of the day, there may be a bit of a struggle, the Government gets it’s programme.

Peter Price

There are rather more powers.

Sir Michael Wheeler-Booth

Which Government?

Lord Thomas

I am talking about the current situation between the House of Commons and House of Lords.

Sir Michael Wheeler-Booth

On a Welsh Bill, which Government?

Lord Thomas

The National Assembly gets its own way.

Sir Michael Wheeler-Booth

Over the Secretary of State's for Wales?

Lord Thomas

Yes certainly. I don't envisage the Secretary of State for Wales playing much of a part in this. He could possibly Chair the joint Committee that I am talking about. I don't suppose he would want to do that.

Peter Price

As I understand it you are suggesting rather less power for the joint Committee than the House of Lords has because the House of Lords in terms of formal powers, whether it uses it or not, does have the delaying power, and only if in special circumstances is overridden in effect it can block legislation. You are suggesting there would be no blocking, time delay or anything of that sort, just that it had to go through that procedure, the advice had to be given, and then the Assembly would be utterly free to take it on board or not.

Lord Thomas

That is a matter for discussion I think. I don't underestimate the power of public opinion on the impact upon the Assembly. If they were to simply disregard suggestions that were given significant publicity by a Westminster Committee-

Peter Price

But it facilitates the membership issues if they do not have power. If you say they have some power, blocking power or any other power, then you are into a major argument about the composition of that Committee. Whereas some flexibility about membership and not necessarily being balanced between the two Houses or the parties or whatever, is less significant if at the end of the day; it is merely advisory.

Lord Thomas

That is right. What we are looking for is something that will work without friction. Where there are different political persuasions in power in Westminster and in Cardiff, and it would be impossible to set up something that would simply block Cardiff even just with the delaying powers. I think you have to rely upon public opinion, which would hear what the Westminster Committee said.

Ted Rowlands

Pre-legislative processes, which are in its infancy even in Westminster, have not been tested on a controversial Bill really.

Lord Thomas

No.

Ted Rowlands

That is going to be the test, when a Bill arises where there is a contention, whether the pre-legislative processes can wear that and carry.

Lord Thomas

I say no but think there have been significant moves in the House of Lords about other matters that Ministers do come on controversial or difficult Bills and seek the views of all parties beforehand. I think of the Sexual Offences Bill where Charles Faulkner has had us all in. We had discussions. We made representations to him, as a result of which he has put down about one hundred and fifty amendments to his own Bill before we have got to the first day of Committee. So…

Ted Rowlands

That is a beginning of experience of handling them.

Lord Richard

I think that is genuinely happening in Westminster as a whole.

Lord Thomas

I do not know about the Commons but I am saying in the Lords we have a much greater ability to talk, to influence people, than we had.

Lord Richard

What it would be like if the parties in the Commons were more evenly matched I do not know. But at the moment everybody agrees that okay, sensible legislation should go through. That is very good. .

Dr McAllister

Looking ahead a bit to your preferred option of primary legislative powers. I wonder if you could comment about the use of the Sewel Convention in Scotland; how you feel about that in terms of scrutiny rule role in terms of Parliament as a whole. Could you imagine that being routine in a Welsh situation and what might be the issues there?

Lord Thomas

That is a very big question which I have not given my mind to. Can I think about it and write a note on that question?

Dr McAllister

Yes of course.

Lord Thomas

I was involved in the Scottish Devolution Bill, Lord Sewel was presenting or promoting it and it was virtually in answer to a question one day that he suddenly gave life to a doctrine on a convention which had not existed before.

Lord Richard

Nobody expected it to be used in the way that it has.

Lord Thomas

No no.

Lord Richard

Thank you very much. Very grateful to you for coming and letting us explore these ideas with you.

Lord Thomas

Thank you.

Lord Richard

You will let us have a piece of paper.

Lord Thomas

I will let you have a piece of paper on the whole thing.

Lord Richard

If you can that would be helpful. If you cannot we will understand. Thank you very much.

 

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