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

MINUTES OF PROCEEDINGS

of the

EVIDENCE OF:

PRESIDING OFFICER AND DEPUTY PRESIDING OFFICER OF THE

NATIONAL ASSEMBLY FOR WALES

LORD DAFYDD ELIS THOMAS & DR JOHN MAREK

held at

National Museum & Gallery, Cardiff

on

8^th November 2002

LORD RICHARD: Thank you very much for coming. I wonder if, for the sake of the record, you could say who you are?

LORD ELIS THOMAS (In Welsh, then interpreted): May I introduce the team? The Deputy Presiding Officer, John Marek, you will know. Paul Silk is the Clerk to the Assembly and David Lambert is an independent legal adviser who has been working and continues to work as an adviser to the Presiding Office. Thank you for the invitation to present evidence.

LORD RICHARD: We have had an opportunity of reading the paper and looking at what you said to the select committee. Could you give us a brief run down?

LORD ELIS THOMAS (In Welsh, then interpreted): I will present in Welsh but answer questions in the language in which they are posed. Dealing with this paper, a constitutional development has occurred in the Assembly over the past three and a half years. Rather than creating any misunderstanding here, this is not something which we in the Presiding Office have done; we have done this in response to a resolution of the Assembly because, once a change occurred in the person of the First Secretary and the majority government was formed by coalition, there was a very strong desire amongst Assembly members, including the First Minister and party leaders to create a parliamentary body.

In the project we have been undertaking, the appointment of a parliamentary clerk with extensive experience in another Parliament in this kingdom-the creation of such a post and the appointment of such a person was a key part of that development. Part of that also is the Assembly Review of Procedure. I know that you have read the Assembly review procedures which this document is based upon. It was a document that was supported across all parties and when that document was passed by the full plenary on 14 February 2002, as I say in paragraph two of the evidence, the Assembly was committed to the clearest possible separation and divide between the government and the Assembly as can be allowed under present legislation. We have created a parliamentary body within the framework and that is something which has occurred with the agreement of members.

The main reason for that, I would assume, apart from the fundamental, democratic principles, namely that you cannot have a body which has an executive and operates as a government and is also representative of its members, is the confusion which continues amongst the public in Wales and beyond regarding the term "the Assembly", namely, what is the Assembly?

Is it an assembly or an executive? I believe that the phrase "the Assembly Government" which is used by the Welsh Assembly Government has exacerbated the confusion because I certainly cannot understand a statement which sets the words "parliamentary assembly" side by side with the word "government" in the same phrase. The population out there is still confused. I was called recently at a meeting "the Presiding Officer of the Welsh Assembly Government". Such a thing is a complete constitutional nonsense and is something that I was not happy to hear politically either, but that is the difficulty that we have been working with and we hope that it will be possible for you as a Commission to help us in this direction to explain and clarify, from the point of view of the legislative framework, what is the Assembly and what is the government. I will leave it at that.

LORD RICHARD: Thank you. That raises a pretty fundamental issue. From your paper, you obviously think that the separation is now inevitable. Is that right?

LORD ELIS THOMAS: Yes. It is the will of members and I do not see that you can do anything else about it. You may have a constitutional framework but my view is that the Act has been misinterpreted quite often or interpreted too tightly. I always took the view – and this was the view that I took in private discussions with the officials, with the previous Secretary of State and the debates we had in the Commons and the Lord – that the body corporate was a description of the body as a legal entity, nothing to do with the internal architecture of it. It was just about how it could be sued. Thank goodness that has not happened yet.

LORD RICHARD: I think the intention was more than that.

LORD ELIS THOMAS: That is my view.

LORD RICHARD: The idea was that you would get a new corporate body in Cardiff, much more resembling a local authority than a parliament.

LORD ELIS THOMAS: Yes, but that was changed half-way through the Bill process so you had a Cabinet system superimposed upon whatever the architecture was originally and, once you do that, you create an opposition and a distinction between the legislature and the parliamentary body. That is what the members voted for, in any event, and I have always taken the view that the role of a presiding officer in any organisation is to serve all the members within the Constitution.

LORD RICHARD: How do you see your role as a separate entity?

LORD ELIS THOMAS: It is similar to presiding officers throughout the Commonwealth or presidents in European Regional Assemblies, or somewhere between the two. When in the chair, we are duly impartial in terms of ensuring balance of debate and in our decisions relating to matters of order we are advised by our officials in relation to the conduct of business. We have very detailed standing orders and we have changed those as we have progressed. My main role is as the interpreter and guardian of the standing orders. The process of the Assembly and the Deputy Presiding Officer’s role has grown immensely. The role of deputy extends to ensuring effective operation of the Business Committee which is a wondrous mystery to me. I have never attended one and I do not particularly want to. We are very much a dynamic duo.

DR MAREK: On the separation point, the House of Commons some ten or twelve years ago did set up a House of Commons Commission on a separate basis. The Comptroller and Auditor General used to be paid out of government funds and that post was changed. He is now paid out of a charge on the consolidated fund directly from Parliament so there is no doubt that the C&AG has a loyalty to Parliament as opposed to government. Officials do an excellent job but there must be occasions when official loyalties are not clear. For example, if an official is asked to provide a paper for a Subject Committee, he or she will do that but if the minister is not happy with that policy what is the official to do? Is he or she going to miss out those aspects of a briefing? It is not a serious issue but it would not arise in a parliamentary service, albeit where the officials are still civil servants. Those carrying out scrutiny would have confidence that they are getting the best available advice.

LORD RICHARD: What staff did you have when you started?

LORD ELIS THOMAS: I am not sure. The current order of staff in the Presiding Office is just under 300.

LORD RICHARD: Is that natural growth or was that the intention when it was set up?

LORD ELIS THOMAS: I do not know.

LORD RICHARD: Mr Lambert is giving legal advice direct to you.

LORD ELIS THOMAS: Mr Lambert was not working for me until the constitutional crisis because I had no legal advice at that stage. We do not need to go into that.

LORD RICHARD: What is interesting from our point of view is the way the Assembly has moved and your position is pivotal. You are engaged in the parliamentary side.

LORD ELIS THOMAS: Yes, but I am doing it at the behest of members.

LAURA McALLISTER: Is there not a resource issue here? If you have under 300 members of staff in your Presiding office and 3,500 in the rest of the official court, surely there is an issue of scrutiny in terms of Subject Committee backup for members?

DR MAREK: You have the submission from the Panel of Chairs which I chair and you will see that we do value the Subject Committees where the minister is a member of that Subject Committee. We are still learning as to when the Subject Committees are in scrutiny mode and policy forming mode. We wish to continue the liaison we have with Subject Committees calling upon officials in Cathays Park to produce reports. I do not think we are suggesting we should provide our own experts or have scrutiny committees as they are in the House of Commons. We need to use the resources in Cathays Park and we need to supplement them by having some independence where the loyalty of the person is to the Presiding Office as opposed to the Assembly Government as there are bound to be from time to time different views.

LAURA McALLISTER: How would it work in terms of answerability because civil servants would be answerable to the Permanent Secretary?

DR MAREK: That does not change.

LAURA McALLISTER: There is still the same accountability?

DR MAREK: Yes.

VIVIENNE SUGAR: In local government, officials serve the council even though it is now split into the Cabinet and the Presiding Office and the process is managed successfully. It has never been suggested that somebody’s loyalty or career prospects were questioned because there are different component parts of a local authority. Are you saying you want a formal secondment arrangement so that at a period of time it is clear who somebody is working for, even though that somebody can develop a career across public service? What is the problem at the moment? I am not sure I understand.

LORD ELIS THOMAS: I have had some discussions with officials and members in local authorities about the modernisation they have been going through. They are suffering from exactly the same kinds of tensions currently as we have been suffering from in that the people who are advising in scrutiny mode are having great difficulty in operating because it is a new experience for them.

We want to recruit people from throughout the public service in Wales as well as those with parliamentary experience. That direction has developed quite quickly, the culture of parliamentary work and loyalty to all members. It was not ever thus in the early days. I do not want to rake over the past and the serious constitutional conflicts that took place but a lot of that was down to the fact that it was perceived that certain officials were not working equally for all members and they saw it as part of their role to provide information to government that was not available to all other members of the Assembly. That to me is anathema.

Therefore, there has to be a culture of parliamentary responsibility to elected members equally, which applies across the service. There are other ways of doing that. You can have a formal secondment, even a secondment over a brief period of less than a year. The important thing is for it to be clear that a period working in the parliamentary service of the National Assembly for anyone in the public service in Wales is something that would enhance a career and that would be a useful experience.

We can offer some prizes like a visit to New South Wales. We have developed a relationship with sister bodies in other parts of the Commonwealth so that our officials in the parliamentary body can look to some career enhancement outside that body in their parliamentary role.

MR SILK: The development of a parliamentary service in the United Kingdom is something I know that the clerks of the House of Commons and the House of Lords and the clerks in Scotland and Northern Ireland would like to see. It is difficult to motivate people to work in London but it is something we have an aspiration for.

VIVIENNE SUGAR: Is it about the transparency of the role of the official at a moment in time? Whilst they are working in the Presiding Office their loyalty is to the whole of the Assembly but that would not bring them back into mainstream Civil Service career development in other areas; or is it a question of the numbers available for the scrutiny role and the tasks that need to be supported?

LORD ELIS THOMAS: It is both. There are all sorts of practical arrangements which need to be put in place within the present Civil Service structure if this is to happen. We are the only Assembly where parliamentary service is provided by civil servants and therefore we are in a different position from the other bodies, but we have had very useful discussions. I only have the highest praise for the present Civil Service Commission and the way they have understood from day one what the needs are of a devolved body that operates with civil servants as its parliamentary servants.

I can see that the Civil Service Commission itself will want to address this issue. We are to have further discussions with them because it does affect recruitment issues and how we operate. There are all sorts of issues.

LORD RICHARD: Have you had people moving in and out of the parliamentary side?

LORD ELIS THOMAS: Yes.

DR MAREK: The Subject Committee has just had clerks assisting up to now. Now we are appointing people out of the Presiding Office budget for dedicated research help for the various Subject Committees. That has been replicated elsewhere in the United Kingdom.

I am not sure that Cabinet government in local government is working well but I would not like to think that you are comparing us with local government. We are attempting to be a Parliament. I know we are called the National Assembly; we have a legislative role and hold scrutiny sessions. Statements are made by Ministers and we are very different from the processes that you might see in most of the town halls.

PETER PRICE: I would like to try and marry the two things you said a moment ago. One was the issue of the official’s role to provide information to all on an equal basis and what you said about using Cathays Park officials to prepare reports. When they are preparing those reports for a committee in the Assembly are they intending to disclose all the information at their disposal? In that role, precisely at that moment in time, how are the loyalties to be divided?

LORD ELIS THOMAS: I cannot comment on committees because I do not take part in them except when I watch them avidly on our internal television on Wednesday and Thursday mornings. The hybrid committee system is something to which I am a late convert. Being an old-fashioned, Westminster sort of guy, I did not see how you could possibly have a select committee, standing committee, subject committee and scrutiny committee in one. However, certain committees have developed a very good practice so you would have the standing item in the report from the minister. That could be discussing a specific topic but more often than not it is like a mini-question time with the minister about current issues.

If there is a hot issue, the minister will use the committee to report back when there has been a statement in plenary – sometimes when there has not – and when that happens the officials will be in support of the minister. Once discussion opens up and the chair invites a comment, then officials and members sit around the same table, having a discussion very often with members representing the public or bodies and there will be a debate taking place between ministers and officials with members and the representatives of organisations.

That is quite a unique forum which the Assembly has created. That is the joy of visitors from NGOs in London who think this is amazing, that you can have this open, public access on live television where officials are answering questions from their own information in discussion.

LORD RICHARD: That could only be a very early stage of policy formation. Once you get further down and the government tends to get committed to a certain line, you are not going to get much change.

LORD ELIS THOMAS: It is the view of some ministers, I understand, that they do not very much approve of Subject Committees taking a detailed role in the scrutiny of subordinate legislation because that is seen as unpicking what the government Cabinet has produced. I do not share that view. I think that should be a developing role whereby the Subject Committee becomes the standing committee for those purposes.

TOM JONES (In Welsh, then interpreted): I believe it would be very complex for the public if this separate body and the Assembly Government do not always receive credit and yet within the committees anyone from the opposition parties can contribute to the start of policy formulation. They feel they want a little credit for this but they cannot get it when the policy is announced and the government takes the credit.

I wanted to return to the question of staffing. Are your 300 staff all in Cardiff? If you are talking about creating an Assembly team, are there any Assembly staff out there or not?

MR SILK: Of the 300 staff, about 50 are translators who work for the Assembly Government and the Presiding Office. They have a dual role and some of them work outside Cardiff, but we do not have any other staff at present working outside Cardiff, although we will be opening an office next year in North Wales.

SIR MICHAEL WHEELER BOOTH: Could I go back to the staff relationship? In your very distinguished written evidence, you use the phrase, "semi-autonomy of staff in the Presiding Office". When you gave an oral introduction, you were slightly more cosy about this, but it seems to me that these words in writing here are the truth of the matter. At the risk of being personal, some years ago performance pay was introduced for civil servants going up to Permanent Secretary in Whitehall. At the time, the question arose whether the clerks to the two Houses at Westminster should get performance pay and, if so, who should award it. We had discussions with the Cabinet Secretary. The outcome was that it was accepted by the government that it would be improper for anybody in government service, or even the minister, to give it, so the arrangement was made that the clerks to the two Houses should be paid like High Court judges. No damned nonsense about merit.

It seems to me that what you say in your paper points to a real uncertainty about the lines of accountability. How does a person who is a clerk or legal adviser to you get their performance pay? I cannot see that logically you can escape from some kind of arrangement as exists at Westminster, rather than the frankly rather muddled arrangements which exist under the Government of Wales Act.

LORD ELIS THOMAS: When it came to the appointment of the present clerk, his appointment was finally signed off by 10 Downing Street. That again to me is constitutional anathema.

LORD RICHARD: Why is that?

LORD ELIS THOMAS: Because he is in a senior Civil Service position of the kind that finds itself being signed off by the Prime Minister.

LORD RICHARD: That would be done by the Cabinet Secretary. Could they have said no?

LORD ELIS THOMAS: Yes, of course. Like the Archbishop of Canterbury, they could have said no but they would be very silly to do so.

LORD RICHARD: Downing Street or the Cabinet Office is entitled to tell the Welsh Assembly who they should appoint as their clerk?

LORD ELIS THOMAS: The appointment is finally signed off in Downing Street. There was a sturdy, firm negotiation for a protocol on the appointment between the Presiding Office and those making the appointment. The role of the Civil Service Commissioners and the Commissioner responsible for this appointment in particular was exemplary in that she ensured that that protocol was followed and that there was a role for us, for myself directly, in that process, which there was not according to the form.

This goes to the heart of the issue. In my view, you cannot have a system which ties in a parliamentary service ultimately to Civil Service pay conditions. Although we need reciprocity, that reciprocity would apply across the whole of public service.

SIR MICHAEL WHEELER BOOTH: You may wish to structure your body in a way, for example, that you would have fewer clever, more highly paid people rather than a large substructure or you might want to go the other way and have a wide pyramid. At the moment, the structure of your office is very much presumably done by negotiation. It must be effectively.

LORD ELIS THOMAS: We have restructured the office and will be creating before the end of this year our first delegated committee within the Act.

SIR MICHAEL WHEELER BOOTH: That is the House Committee you referred to in your paper?

LORD ELIS THOMAS: Yes.

SIR MICHAEL WHEELER BOOTH: Who will be on the House Committee?

LORD ELIS THOMAS: It will be a party balance plus the Presiding Officer and the Minister for Business representing the government.

DR MAREK: We are not arguing that the Presiding Office should appoint the clerk. There need to be checks and balances and I think the clerk to the House of Commons is appointed by the Prime Minister.

LORD RICHARD: By the Queen?

DR MAREK: Yes, on the advice of the Prime Minister.

LORD RICHARD: And the advice of the Speaker?

DR MAREK: Yes.

TED ROWLANDS: Originally, the whole idea was that as a body corporate the Assembly officials were answerable to the Assembly as a whole and therefore these were staffed on that assumption. Then the constitutional crisis occurred and you started to create Presiding Officer staff which have grown to about 250 plus the translators and their job is to service Assembly members as a whole plus the committees in particular, to give them the kind of backing up that should have been supplied originally by the Assembly officials as a whole. Is that roughly how the situation has developed?

LORD ELIS THOMAS: Yes, except that the tension was always there in the model.

TED ROWLANDS: Once you have the Cabinet structure and the parliamentary executive structure, you have to build up an alternative staff as a countervailing force to the government.

LORD ELIS THOMAS: These issues were all there in the debates in the Commons and the Lords.

TED ROWLANDS: I have taken part in them. Let us look forward. In your draft not only are you firmly saying that this divorce should be formally recognised by changing the Government of Wales Act; you are recommending the statutory right to appoint deputy ministers, so you end up not with nine ministers but 18, presumably bound by collective Cabinet responsibility, 18 members of the Assembly who will be collectively responsible in a pretty firm way, as much as any other.

Then presumably you will have to have various staff from the committee structure to monitor and scrutinise the development of this enlarged Cabinet or ministerial structure. Add to that the possibility of primary legislation. Would you not create a sort of public Bill office to service the members of the Assembly, not the policy makers or drafters for the Assembly but public Bill officials, like Westminster has, to service the members in dealing with primary legislation?

The whole logic of your paper is not a staff of 300 but of a much more powerful, enlarged parliamentary staff as a countervailing force to the Assembly Government and its extra ministers. Is that right?

MR SILK: I do not think a model of select committees and standing committees is one that I would personally see as a good one for the Assembly. I would see committees remaining both scrutiny and legislative as is the model in most other European countries but inevitably, if there were primary legislative powers that the Assembly had, even in a small area, that would necessarily mean that there would need to be a certain increase in the number of staff. I would not envisage a massive increase but perhaps one or two people for each of the Subject Committees.

TED ROWLANDS: The Presiding Officer does hint that if you added primary legislative powers to the committee structure it could radically alter the whole nature of the committee work. You already have an interesting hybrid of the scrutiny committee and a policy making committee. You say that you can add to that committee structure the whole of the processes of primary legislation and maintain and sustain it?

MR SILK: The committees would necessarily have more work to do. There would be more sitting times for the Assembly plenary and more committee meetings.

TED ROWLANDS: It would have to be properly staffed. You have huge experience of public Bill and select committee work in Westminster. Would you not have to have a public Bill staff on a smaller scale but of the kind you have at Westminster?

MR SILK: My recollection is that the French committees, for example, in the National Assembly have around six or seven staff and they have both a scrutiny and a legislative role.

TED ROWLANDS: And policy making?

MR SILK: Yes, helping policy formation in the sense that our committees do.

DR MAREK: There are five deputy ministers, not nine. They are unpaid because of the Act. Secondly, we always had a share of secretariat, even before the Presiding Office was separated. Previously, I guess they were working to the Assembly Government. Now they work to the Presiding Office. It was not that we created a whole new staff once this decision was taken.

I agree with Paul. We have already been given primary powers in areas such as the curriculum in education and that could be continued gradually. It would involve committees with a bit of extra work but committees now do look at the secondary legislation and any Subject Committee is entitled to ask a minister for details of a proposed statutory instrument after it has been discussed in principle.

LORD RICHARD: Does that happen?

DR MAREK: It does, but perhaps not as much as I would like.

LORD RICHARD: They look at the drafting and the detail of it?

DR MAREK: They look at it in principle more than they look at the drafting but there are occasions where they say, "Let’s have a look at it."

LORD RICHARD: Can they amend a statutory instrument?

DR MAREK: In plenary, yes. You cannot do it in Westminster.

SIR MICHAEL WHEELER BOOTH: In looking at subordinate legislation, they can call on the services of the lawyers serving the government as well as your own lawyers. I think we were told at an earlier meeting that there are something like 40 government lawyers and there is one lawyer serving the Presiding Office?

LORD ELIS THOMAS: We have a dedicated counsel to committee, Peter Jones, and we also have a senior counsel, John Turnbull, who works for the Legislation Committee. Committees dealing with subordinate legislation would have the advice of other lawyers as well.

PETER PRICE: This is another example of where you would foresee the continued use of Cathays Park staff. There is to some extent a difficulty which seems to me to be significant in that you are putting a case for expanding the separation and clarity of roles between the staff of the Assembly itself in Cardiff Bay and the Cathays Park staff on the one hand, so people would be clear which institution they were really working for. Was it the government or the Assembly? The key functions, seeking to cross the barrier which has now become a bigger barrier between those two and to seek advice from the people who will now to a greater extent perceive themselves as working for the government. How is that going to work?

LORD ELIS THOMAS: I would hope the lawyers would see themselves as working for the law rather than for the government and in that sense I would hope that, at the level of senior legal advice, the advice would be sound.

PETER PRICE: My point is not just about lawyers but the writers of reports that the Presiding Officer was foreseeing. You would draw across a fairly wide sweep policy of advice on legislation and legal advice. This is quite an extensive drawing on a resource which you would be separating to a greater extent than currently is the case in terms of how people feel about their jobs.

LORD ELIS THOMAS: I can only go on what has happened. Where there has been disagreement, say, a chair of committee or a committee clerk or a lawyer took a different view in interpretation of the Government of Wales Act from a view circulating in a certain other building in this city, not far from here, they sought further advice. As far as policy officials are concerned, when they are working closely with ministers, developing policy, in that role, when that policy is taken to committee and they sit there as officials who are policy officials, they are advising the minister in committee. That is the unique arrangement we have.

The minister in committee is not just there defending the government’s line on amendments to a Bill or in scrutiny mode responding to questions from members. He is part of a policy discussion and process.

For that, we would have also our own resources which we have recently created so that the committee will have a number of staff as well as the counsel to the committees and possibly a technical resource person who will provide advice to the committee.

DR MAREK: The committee in session is a very different animal to what you get in Westminster where you tend to get legislation drawn up and plonked on the table in the House. Ministers tend to defend that legislation but it is completely different here.

LORD ELIS THOMAS: The best example we had recently has been the amazing effort on the part of the government and the Culture Committee to develop a policy on bilingualism and the Welsh language which has turned up with substantial investment. It was taken through committee with consensus. There was a serious debate and there were disagreements, but the emerging study produced a report by the committee, a response by the government and millions of pounds of public investment in a new direction. That to me is proof of the way that the system can work.

TED ROWLANDS: There is a slight difference in emphasis between Mr Silk’s reply earlier about the impact of adding primary legislative powers to the whole committee structure and your own evidence in paragraph 22. You draw attention specifically to the quite significant change that could occur. One of our jobs is to assess the question of transfer of primary functions and its impact consequences. You say, "It might also deflect subject committees from their non-legislative work, as happens in other legislatures where the scrutiny and legislative roles are exercised by the same committee …". I think there is a more fundamental, radical consequence of the transfer of primary legislative powers to the whole of the committee structure and the staffing and backing up of it than perhaps you are indicating.

LORD ELIS THOMAS: I do not think so. What we are flagging up there is that it is different from what we do now. It is not that the committees are not capable of an enhanced legislative role; I believe they are but that does have implications on time, how often committees sit. It has an implication for the number of Assembly members and whether there are enough to staff all the committees. Unlike Westminster, you cannot be an Assembly member and not turn up for committees. If you miss more than three committees, you have to grovel and apologise before the Presiding Officer and find good cause. In Westminster, you swan around the lobbies, not doing any work.

LORD RICHARD: It seems to me there is a basic equation or balance here. The more power is devolved from Westminster to Cardiff, the more powerful by definition the government in Cardiff becomes in relation to the Assembly. The deeper the division between the Assembly on the one hand and the government on the other hand grows, there will probably be more party activity in the future than there is now. You will be moving almost inexorably in the direction of a quasi-parliamentary assembly of a Westminster style.

LORD ELIS THOMAS: Not necessarily. The important difference is proportional representation. I am committed to that, not just from the point of view of ensuring representation for all parties but also from the point of view of creating a pluralistic and balanced Assembly and operation.

On the current electoral system it seems to me that we are looking, whatever parties may say at election time, at coalition in the foreseeable future. The electorate is very sophisticated and will become as sophisticated as the electorate in Ireland and they will learn even better how to use the system to produce the result they want.

The nature of the activity in the Assembly will not necessarily lead to greater party political activity than we have now. It may be operated in different ways and even where you have coalition governments, as in most of mainland Europe, the party system still operates in the classic European and Commonwealth parliamentary model. That is what we have been trying to ensure in our first term, so that that machinery is there for members to use in the future.

SIR MICHAEL WHEELER BOOTH: In a sense, you are co-legislators in that you deal with subordinate legislation, Westminster Bills and primary legislation. You have drawn attention to the different voting systems that results in having almost only Labour MPs in the House of Commons for Wales. The composition of the National Assembly is much more in proportion. How can you work long term a system of co-legislation if you have a different electoral system?

LORD ELIS THOMAS: I am not going to be drawn on the question of the electoral system for either the Commons or the Lords.

SIR MICHAEL WHEELER BOOTH: It was a comparison with the National Assembly.

LORD ELIS THOMAS: I take your point entirely which is why I favour proportional representation and direct elections for all levels of representative governance. It seems to me the only way to make sure that you have that accountability directly to the electorate as well as the responsibilities of advising on legislation. The role of co-legislating is something which Westminster has not taken seriously.

SIR MICHAEL WHEELER BOOTH: How should it be taken forward?

LORD ELIS THOMAS: There are a number of ways we suggest. There are some matters for government and some for Parliament here. I would like to see far more effective discussion on primary legislation affecting Wales in both Houses of Parliament, involving the Assembly. This has happened. The Health Act is a good example. The Welsh Affairs Select Committee has worked very closely with the Assembly from the beginning. I praise both the officials and Martyn Jones in the chair for the way that they have wanted to do this.

I am not sure how far we are down the road of all government departments in Westminster and all parliamentary counsel being fully appraised or having fully embraced the Rawlings principles. We set them out very clearly as agreed views of the Assembly and we have had some exchange and discussion with the First Minister about this. The First Minister recently told me that these principles "continue to have my strong support and that of my colleagues". We were then surprised to find that the first parliamentary counsel had not been formally asked by Her Majesty’s Government to look at these principles.

There are issues here about how co-legislation does work. The view I have is that we could very simply move to more effective legislating for Wales by the Assembly if we were to have Henry VIII powers, general powers, of competence within Bills as they pass through Westminster. That could be piloted in certain areas where there always has been different legislation. It is interesting that in this area of education, even the transfer of functions orders for executive devolution refer to a general competence of the then Secretary of State system, even in the 1970s.

The notion of a general competence in Wales in legislation was there, but we do not have it in the way the Assembly does and there are areas where we could begin to move without any change in the Government of Wales Act.

SIR MICHAEL WHEELER BOOTH: Specifically, there is a recommendation that the explanatory memorandum accompanying Bills now should make clear if Wales is covered and, if so, how, to make it easier. Is that being done?

LORD ELIS THOMAS: Yes, but I think it is a C-plus.

SIR MICHAEL WHEELER BOOTH: That is pretty remote.

LORD ELIS THOMAS: All right; C-minus then.

TED ROWLANDS: Could we check the experience we have had to date? In the Rawlings principles at the bottom of page seven and the top of page eight, "Where such powers to be vested in a UK minister … should be vested in the Assembly in Wales" – have there been any examples since the establishment of the Assembly in the devolved areas where the power has not been vested in the Assembly?

MR LAMBERT: The most recent example is the Agriculture Act in the last session where we had no powers at all.

TED ROWLANDS: How did that come about? You were presumably bombarding the Ministry of Agriculture for such responsibilities?

LORD ELIS THOMAS: No. We were not involved with the Ministry of Agriculture. That is an intergovernmental matter. I think you should address that question to the First Minister. I am not able to sit in the House of Lords and in the Assembly so I am not able to do as much on these issues as I would like, but there are a number of colleagues, in particular Baroness Finlay, who have championed this whole issue of clarity in relation to legislation and it was in response to her pressure that this explanatory memorandum position was developed. I am very grateful to colleagues in the Lords and in the Commons who have taken an interest in the whole question of how legislation is framed to enable the Assembly to legislate more effectively. I am disappointed at the progress.

DR MAREK: We get legislation given to us very much on a grace and favour basis and it is different for different Bills. We would argue for some consistency in the way it is done.

TED ROWLANDS: The last Bill I took part in at Westminster was the Skills Bill where it was quite a good model. The powers were clearly defined and there was no problem with commencement orders. As far as Wales were concerned, they were the responsibility of the Assembly. Have there been any other examples where you have commencement orders reserved to the United Kingdom in devolved areas?

MR LAMBERT: Yes, many Acts. The problem is there is no concept of devolved areas. Every Act has a different context and you have to read every Act to work out exactly what our powers in the Assembly are and what are the powers given in relation to commencement orders. There are no principles at all.

DR MAREK: It is important to recognise that we are a devolved body and a democratic body where we have scrutiny. We should not necessarily be on a par with the giving of powers to a minister. A minister can be given executive powers to exercise personally but the powers we have devolved to us are devolved to a democratic body.

VIVIENNE SUGAR: Was there a debate in the Assembly about whether the Welsh Assembly government minister should have equivalent powers in the Agriculture Act?

LORD ELIS THOMAS: We did not debate the Agriculture Act in the Assembly.

VIVIENNE SUGAR: The Assembly did not voice any opinion about ----?

LORD ELIS THOMAS: Yes, in committee but there was not a debate in plenary on the Westminster legislation because we do not work in that way. There were questions asked in plenary about the legislation and there was discussion in committee about the impact of the legislation.

VIVIENNE SUGAR: Can you explain the context of that particular example? You were clarifying that each Bill will give powers to Wales as well and someone said the Agriculture Act did not. Can you expand on that?

MR LAMBERT: The Animal Health Act 2002 gives a lot of powers in relation to farms in England and Wales. It is unusual, given the fact that on previous matters relating to agriculture we have had certain powers in the Assembly but there is no mention of the Assembly at all in this Act. We have no principles by which we can go to the UK and say, "We have to have these powers." There is nothing accepted that in agreed areas we automatically have powers. The Agriculture Act is a very recent example of the lack of any agreement as to any structure regarding the powers that we should have.

TOM JONES (In Welsh, then interpreted): Who would you expect would defend the process of devolution in the face of a number of examples since the inception of the Assembly, creating new bodies from London and new Acts where there is not sufficient voice given to the Assembly? We have mentioned earlier in the discussions, not today, about OFCOM being created and that has maybe been seen as creating a new situation less devolved than previously.

You suggested to begin with that it must be a matter between the Assembly First Minister and members in Westminster but who is defending or protecting the devolved process in the face of creating such new Acts?

LORD ELIS THOMAS (In Welsh, then interpreted): I think we are all defending that process. Certainly I see it as part of my responsibility to protect the present settlements and to try to ensure that the intentions of the Government of Wales Act and the aspirations of members are heard at least when such matters arise as what happened in the case of this Act and the Agriculture Bills.

A number of questions were raised to the First Minister on this and there were discussions going on with DEFRA on transferring some of those powers in due course but they have not been transferred in the Act. I think that is the point.

Our responsibility in the Presiding Office is to make sure that there is an opportunity at all times for members, either in committees, through the chairs or in the plenary sessions, to raise these matters and to have an opportunity to express their opinion within the framework of the Assembly, so that the government and ministers who have responsibility for discussing with Westminster can do so.

There is one other process that I should mention in terms of Westminster legislation which is very interesting, which is the visit from the Secretary of State. We have recently had such a visit and we treat the Secretary of State in the same manner as we would treat any other Assembly minister. In our discussions, we had a statement on the Queen’s Speech and I understand that the Welsh Grand Committee are discussing it again today. Next week there will be a further debate in the presence of the Secretary of State by the Assembly where the Assembly minister will open the debate and the Secretary of State will contribute on behalf of the Westminster government to the debate.

Within that framework, members can raise questions on why something is not in the Act and why does not this Act include Wales in this particular way. That is the framework to open up direct discussion and we in the Office have been bringing pressure to bear to make sure the Secretary of State is present at the Assembly during these discussions because that is what is included in the Act and in our standing orders.

TOM JONES (In Welsh, then interpreted): To do this protecting work, do you need particular, specific powers to make sure that at all times full consideration is given to the needs of Wales in the England and Wales Act or is it a matter of the influence of individual ministers? Is it possible to strengthen the powers of the Secretary of State to include Bills in Parliament? Where is the answer?

LORD ELIS THOMAS (In Welsh, then interpreted): The most important thing is to have a clear statement of principle from the government in Westminster that they intend this to happen. We have visited the Leader of the House, Robin Cook, on this matter. We have emphasised the relationship between the Assembly and Westminster and the need for clearer legislation, not just on the matter of Bills which are known as Welsh Bills, but more important than the Welsh Act are the Welsh clauses or even just a sentence or a sub-clause related to Bills which is in the middle of legislation for England.

The fundamental principle here is that we are in a situation which is very strange. In any kind of comparative study of federalism, where primary legislation is made across the field by another House, there is nowhere else that I know about on the mainland of Europe or the Commonwealth where such a system exists. That to me, as far as I can see, is the situation.

Under that system, in my opinion, we have to be able to use this system fully. If we are co-legislators, then we are equal co-legislators in the sense that we should be able to have our bit of the action in all cases where that is possible.

TED ROWLANDS: Was the Animal Health Act an England only Act?

MR LAMBERT: No. As a first test of the Rawlings principles, the Assembly should acquire any and all new powers in the Bill where these relate to its existing responsibilities. We had existing responsibilities in relation to agriculture under the previous legislation and we did not get it here.

LORD RICHARD: What was the argument against not doing it?

MR LAMBERT: I do not know.

TED ROWLANDS: I do not remember Mike German raising this Act with us.

LORD RICHARD: It is a new Act, is it not, that has just come in?

DR MAREK: Co-legislation runs in parallel. We have concordats between our Welsh Assembly Government and Westminster and I have been reading that some of our ministers have been saying that they have enough on their plate and do not want to do any more by way of powers. On the other hand, you must ask them as how these concordats work but, as far as we are concerned, co-legislation is very difficult.

It is all right when you have an all Wales Bill such as the one establishing a Children’s Commissioner. That has been done. Where the Westminster government produces a draft Bill, that is not too bad because it allows our committees to get involved and to make representations. There is still a lot of legislation that affects Wales where there is not a draft Bill and the first we know of it is when it is plonked on the table in Westminster. It is very difficult for subject committees to have any meaningful input into that process.

It is not just that. I do not know how we can do this but there must be occasions where it would be useful, if not for subject committees certainly for our government, to have input into the thoughts that officials and civil servants have in a department in Westminster when they are thinking about what the Bill should contain.

LORD RICHARD: I cannot believe they could produce an Agriculture Bill without civil servants in London talking to civil servants in Cardiff.

TED ROWLANDS: It is not the Animal Health Act?

MR LAMBERT: I think so .

EIRA DAVIES (In Welsh, then interpreted): Can I follow on the discussion on the relationship between the Assembly and Westminster? How do you view the role of the Select Committee on Welsh Affairs developing?

LORD ELIS THOMAS (In Welsh, then interpreted): As I said earlier, I congratulate the Welsh Affairs Committee on their willingness to collaborate and cooperate in preparing reports that have been very useful to the Assembly in the process of discussing policy and supporting legislation, for example. I am speaking slightly politically now, maybe out of turn, because I do have a great interest in the environment and in railways. The fact that the select committee had looked at transport measures and the SRA at a time which made it possible to affect deliberations in the Assembly was most useful. The fact that AMs were included in joint discussions with the Welsh Select Committee was very useful. The committee has been meeting regularly.

We have secured the right for Members of Parliament who visit our building regularly to come in and out. They have one of these parliamentary passes for our building and therefore that has meant that there has been a substantial level of collaboration. Perhaps I can ask Paul to comment on the very close collaboration between the clerks on the Welsh Select Committee and our committee.

MR SILK: Yes. The clerk of the Welsh Affairs Committee has close working relationships with the clerks of all the Subject Committees in the Assembly.

SIR MICHAEL WHEELER BOOTH: You have talked about cooperating between the Welsh committees and members of the National Assembly but there is no procedural arrangement at the moment, as was the case on the Indian Constitutional Committee in the 1930s to allow your members to go as of right to play an equal part. They help the Welsh Select Committee in their deliberations formally, I imagine?

LORD ELIS THOMAS: Yes.

SIR MICHAEL WHEELER BOOTH: Is any thought being given to the possibility of developing something slightly more akin to the arrangements in the 1930s?

LORD ELIS THOMAS: I shall have to study the joint committee on constitutional reform from the 1930s with care. Our members sat in on the Welsh Select Committee scrutiny session. Our Subject Committee and the Welsh Affairs and Health Committees were very keen not to duplicate evidence from the same people. It was an informal arrangement; there was no parliamentary procedure that would allow for a joint committee in that way. As long as we have this system of co-legislation and primary powers, there is an argument for much more joint committee work. This is something that could be instituted by parliamentary procedural changes very easily.

SIR MICHAEL WHEELER BOOTH: You referred to passes for MPs to come to Cardiff Bay, but have passes been given for AMs to go to the Palace of Westminster?

LORD ELIS THOMAS: Except for those of us who happen to have them, no.

DR MAREK: We have tried but they always plead pressure of numbers. The latest request that we have put in is for one day passes which civil servants can have. I am not sure whether a decision has been made on that yet by the committee that decides on these matters in the House.

SIR MICHAEL WHEELER BOOTH: With a friendly leader of the House, it might be the time now rather than later.

LAURA McALLISTER: In your suggestions, you talk about acquiring primary legislation by reference to a few subject areas. It immediately made me think: is there not a danger of replicating some of the problems with acquiring secondary legislation through the Government of Wales Act in a piecemeal way? Would it not be better to acquire primary legislation in a fuller way but to act within primary legislation as appropriate? We have seen that already within the Scottish enactments.

Secondly, you mentioned some potential subject areas which could be devolved in terms of primary legislation: housing, local government and education. They are quite selective in that the Education Minister when she came here told us there was not any conflict in terms of primary legislative capacity. Is there not a problem of duplicating what we have now with reference to primary legislation and does this not preclude any joined up thinking in terms of policy areas? Is it not a silo mentality?

LORD ELIS THOMAS: I have never understood what joined up thinking is supposed to mean. Those areas were selected because they were areas in which there is already extant serious Welsh legislation, education going back to 1896, the Welsh Intermediate Schools Act, and the Welsh Local Government Act, the final will and testament of the great Tom Ellis; as well as substantial housing legislation relating to Wales which was part of the Housing Acts of various governments.

What we are suggesting to you is that there are things here which could be implemented without waiting on parliamentary timetable to do the Government of Wales (No. 2) Bill. From our experience, it is tidier to have devolution by subject areas on the Scottish model, where the powers are devolved. According to Schedule 2 to the Government of Wales Act, those subject areas listed there become the areas of primary legislative activity.

TED ROWLANDS: I do not think you need the Government of Wales (No. 2) Act to do that, do you? You need another transfer of function order.

LORD ELIS THOMAS: Exactly. That is the other way of doing it. The other way of doing it again is by having your Bills with that Welsh clause, as education for example, which would be a repeat of the preamble which says that the National Assembly for Wales may make legislation in this area. Using our existing powers, we could make the equivalent legislative action happen within the area of that Bill and I do not understand the point that the Minister for Education is making.

LORD RICHARD: Can you have a transfer of functions order by subject matter?

MR LAMBERT: Not in relation to primary legislative powers but you could have a transfer of functions order in relation to existing Acts coming within subject areas because that is what the Scottish Executive has.

LORD RICHARD: There was a national transfer of the powers in primary legislation?

MR LAMBERT: Yes.

LORD ELIS THOMAS: I believed very firmly that that schedule two of the Government of Wales Act is what we were going to have. Nobody will admit this yet. It is all set up neat and tidy and suddenly it all gets narrowed into the powers of the Secretary of State.

MR LAMBERT: Under a previous transfer of functions order in 1970, all functions of the Secretary of State for Education and Science in connection with primary and secondary education and matters only affecting Wales were transferred, with specific exceptions.

LORD RICHARD: That could be done by statutory instrument at Westminster?

MR LAMBERT: Yes.

DR MAREK: Or in a Bill.

LORD RICHARD: I had always assumed that we needed an Act in Westminster to do it.

LORD ELIS THOMAS: I have always been fascinated with the actual wording of schedule two as it stands in the Act now: "fields in which functions are to be transferred".

SIR MICHAEL WHEELER BOOTH: On the progressive and procedural change, I think the Welsh Grand Committee was set up in Lloyd George’s day, but the trouble is that when Lloyd George departed from the scene Conservative minded administrations at Westminster were not very inclined to make the Welsh Grand Committee do very much. Is that true?

LORD ELIS THOMAS: It never used to do very much when I was there.

SIR MICHAEL WHEELER BOOTH: If you do it in the progressive way with a favourable situation now, it is awfully easy to undo it later if you are in a different situation.

LORD ELIS THOMAS: I would be very surprised if the Welsh Conservative Party would allow their colleagues in England to undo any of their current powers in the Assembly or their opportunity for co-legislating. Although the Conservative party have a position in relation to the future development of the Assembly, I know they are firmly in support of the existing structures because obviously they are signed up to the Assembly procedures.

TED ROWLANDS: It was a Conservative transfer of functions order that transferred the whole theme of education.

LORD RICHARD: Do you have any general reaction from Westminster to this corpus of ideas in Rawlings?

LORD ELIS THOMAS: I dealt with this directly through the First Minister because he signed up to the Rawlings principles as set out in the Assembly review procedure. I am happy to let you see the exchange of letters we had about this recently, where he emphasised that the principles "have my strong support and that of my colleagues." He goes on to explain that he could not let me be party to some intergovernmental mysteries that had gone on between Cathays Park and Whitehall. You would have to ask the First Minister what is the reaction in Whitehall.

My general observation is that it is not clear yet that there has been substantial and warm endorsement for these principles.

MR SILK: The Welsh Affairs Committee is doing an inquiry into legislation at present and the first parliamentary counsel gave evidence to them. He had not seen the principles before he gave evidence but he said there was no technical obstacle to the implementation of them.

PETER PRICE: In terms of legislation being clear to the people who have to implement it, whether they be members of the public or the legal profession who have to advise, if we went down the road of extensive use of secondary legislative powers so that in the primary legislation there was some oblique reference and no more, or even more if you were to use Henry VIII powers so that something that appeared to be the case from the primary legislation had subsequently been changed by subordinate legislation, would that not create, in principle, a major problem in terms of the clarity of law?

LORD ELIS THOMAS: I think it is a problem of principle which arises if you look at England and Wales as a unitary state. The UK is no longer a unitary state. Therefore, what has to be understood by the legal profession is that, when dealing with law in Wales, there is an expectation that there may be diversity, as in Scotland, and more substantially so in Northern Ireland. I do not want to anticipate any evidence David Lambert may want to give in another capacity but he has been very involved in ensuring that, through information technology, the legal profession is aware of what happens in terms of Welsh legislation and we strongly support it in the Assembly.

MR LAMBERT: The very fact that the Assembly does have subordinate legislative powers does increase problems for the profession because, instead of the time when I was legal adviser to the Welsh Office where normally we would make subordinate legislation together with central governments and the United Kingdom Minister for England, we are making a tremendous number of statutory instruments – 892 so far – so the problems are already there as a result of devolution.

I do not think they would necessarily become any worse if we were given wider subordinate legislation powers.

LORD RICHARD: Who does that?

MR LAMBERT: The office of the Counsel General .

LORD RICHARD: How many of those were debated?

TED ROWLANDS: Is it right that 35 per cent are substantially different from the English ones?

MR LAMBERT: You use the word "different". It is qualitative as to what you might say is substantially different, but different, yes.

DR MAREK: Over half are debated.

LORD ELIS THOMAS: We will table the statistics for you.

LORD RICHARD: Do you know how many amendments are made to the committee which are accepted by government?

DR MAREK: Committees tend to discuss these statutory instruments at the formative stage, not at the later stage when they have the instrument before them. It is difficult to answer your question.

LORD ELIS THOMAS: Six amendments were tabled to orders in accordance with standing order 22.15. Five were selected for debate and all were defeated, thanks to the forces of the government. It is hardly better than the record of the House of Commons in accepting amendments.

VIVIENNE SUGAR: In your evidence on page 12, paragraph 26, you talk about an increase in Assembly member numbers to 80 and that not being dependent on any formal increase in the Assembly’s powers. Could you say a little more about the current workload which would justify this increase to 80 and whether it would be capped at 80 even if there were primary powers?

LORD ELIS THOMAS: It is not a case of capping. This is a matter for debate with the Electoral Commission and the Boundary Commission in relation to the electoral system. The number of members is a factor in the electoral system. You try to balance, as we do now. We have 40 first past the post and 20 list members. We have assiduously struggled in this Office to ensure that members, once elected, are treated equally. The regional members are not top-ups. They are constituency members for regions. They have the same rights in practice as members outside the building as well, which is not always the case. Sometimes regional members are not treated equally with constituency list members.

There is the need for effective and adequate representation. The workload pressure on regional members, especially the ones that I know well in north and mid-Wales, is substantial because they represent such a wide area.

Although I am entitled to serve on two regional committees, I have not attended, except for two committees because I found it impossible and the pressure currently on regional committee work with regular meetings all over Wales, something which no other parliamentary body of its kind does in the United Kingdom, and there are Subject Committee meetings. Currently members have to serve on at least two, usually three, and we have had difficulty, particularly recently, about electing members to a certain committee because of the unwillingness of members generally to serve on more committees than the minimum because of the workload.

LORD RICHARD: You have avoided a clear distinction between the constituency and the top-ups. That has worked, has it?

LORD ELIS THOMAS: I think it has worked, yes. If somebody complains to me about the Assembly as people sometimes do outside of Cardiff, I tell them, "What is your problem? You have five Assembly members. If you do not like one, go to the other one."

DR MAREK: Members are stretched. The workload is much higher than it is in Westminster. Ideally, I would not want to see members on more than one Subject Committee but there are members on two and we also have standing committees and regional committees, which again require Members to serve . Then we have the House Committee and the Business Committee which again need membership.

SIR MICHAEL WHEELER BOOTH: What is the rationale of putting up numbers of members here but putting down the number of Welsh MPs at Westminster?

LORD ELIS THOMAS: That is not a matter for us.

VIVIENNE SUGAR: You say that the way the Assembly conducts its business outside Cardiff is currently restricted to the regional committees and you have indicated that every effort is made to support the regional members but obviously they have constituencies of getting on for a million people. Could all Assembly members be assisted by more personal support in terms of dealing with constituency complaints or perhaps having more presence in the region? Could the Assembly do more to promote its presence by conducting more business outside of Cardiff?

LORD ELIS THOMAS: I am personally opposed to moving plenary about because we are a very sophisticated organisation. We are the most ICT progressive body of any parliamentary body anywhere. We are very proud of that. When we travel around, we have to have our television facility which is very complicated and computerised, our voting system, our translation systems, which again are very sensitive. Also, our ICT in the chamber, because we are entirely dependent for our operation in the chamber on electronic communication. To move that around Wales would be terribly expensive. There has been an Assembly resolution for considering a plenary outside Cardiff. The only place where we could possibly have it would be in a television facility, where all the IT would be there. You could not go into a regular council chamber. I and the ARP are keen on making the regional committee system work.

It is quite exciting to follow the work of the regional committees because we have large numbers of the public turning up, expressing their views, and now we have a facility for exporting those views back under our standing orders.

As regards support for members, the Assembly does fund, out of the Presiding Office budget, the ICT and the constituency office. We fund support staff. Subject to recent discussions in terms of review of salaries and, more particularly, allowances, we do pro rata provide at least as effective a support as is provided in Westminster and we go much further in providing the ICT hardware.

DR MAREK: This is governed by the Senior Salaries Review Board to whom we turn for advice and that is done every three years. You have touched upon one recommendation two years ago that members should be given an allowance for staff of £32,000. However, since we can decide these matters for ourselves, it was increased to £40,000 so members can employ two members of staff.

VIVIENNE SUGAR: When the Assembly started, finance was made available to put video conferencing facilities into all localities across Wales so that members of the public could easily contact their Assembly member and make representations and so on. I am not aware that much use has been made of that or whether it has been developed.

LORD ELIS THOMAS: There are video conferencing facilities on all our desk tops through Wales.

TED ROWLANDS: I appreciate your pride in the ICT sophistication. When preparing for this Commission, I sat down and read through a year’s committee hearings. They were perfunctory. I could not say who had said what in committee. They seemed to be just a very bald summary of what had gone on.

LORD ELIS THOMAS: That is committee. We do not do verbatim reports of committees.

TED ROWLANDS: Why not? If one of the key functions is to scrutinise quangos, I would like to know what my Assembly member has said, particularly if we move into the whole field of legislation. One would like to know what stance your Member of Parliament is taking on a clause in a Bill. I have to say that, outside of reading the committee report, you do not get anything like the flavour of the debate that has gone on. You get a summary of conclusions.

LORD ELIS THOMAS: If you want to find out what went on in committee you have to look at the tape because we have a master electronic version on digital tape of everything that has happened in all the committees.

MR SILK: I would like to have many more verbatim records of what happens in committees but we simply are not able to recruit the staff.

TOM JONES (In Welsh, then interpreted): You have a paragraph here about your links with Europe and the lack of the Assembly’s ability perhaps, in the fact of great increase in legislation emanating from Brussels. What would you wish to see as additional powers for the Assembly in the way in which it collaborates on a European level?

LORD ELIS THOMAS (In Welsh, then interpreted): This is quite timely because the nature of the European and External Affairs Committee has changed in the sense that by now it is chaired by an Assembly member who is not a government minister. As it happens, there will be a meeting this afternoon of the European Committee.

This is a matter not only of access but of legislative, regional Assemblies throughout Europe. There is room for greater collaboration in the case of the United Kingdom with Scotland and Northern Ireland to observe and scrutinise European legislation that will have a direct impact upon us, obviously in environmental areas particularly.

I also believe there is scope to share more information. Excellent scrutiny has been carried out by the Westminster committees. I had the honour of being a member of the European Communities Committee now the European Union Committee. There is substantial material there that could be of use to ourselves and to the European Affairs Committee of the Assembly where work has been carried out in analysing European legislation.

We are also continuing in negotiations as regards the representation of a European Committee in Brussels and how we can organise that more effectively so that part of this new resource that we have will be a mobile one so that there will be an opportunity for us to be the eyes and ears of Assembly members and members of the European Affairs Committee within the structures of the European Union.

MR SILK: The European Committee here does not have the resources to do the full monitoring of European legislation Quite a lot of European legislation is only tangentially relevant to Wales. It is the role of each Subject Committee to monitor European legislation so far as it affects the central committee area. To help that, we hope to have a member of staff from the Presiding Office based in the Welsh Assembly Government offices in Brussels, who will be the eyes and ears of each Subject Committee in Brussels. That will up our committees’ game in monitoring what comes out of Brussels.

TOM JONES (In Welsh, then interpreted): I happened to be in Brussels this week and one is very aware of the difficulties of our farmers complaining about the European Act. Where do you officially turn to for your salvation? Are you going to work through the Assembly to try to ensure that Acts are going to be created in a manner which is sensitive to regional needs across Europe? Perhaps scrutiny is something which occurs too late on in the process. We must ensure that there is a Welsh voice in preparing European Bills in addition to Westminster and Cardiff Bills.

The question that then arises is does the Assembly have the powers or the resources to do that? What was said in Brussels the other day was, "You have the Wales Office which is part of the Member State so that you can contribute through the ministers in Westminster and that is the way to bring influence to bear on European legislation." Perhaps the Assembly might have an alternative view. Do you have any suggestions on how we could strengthen the voice of Wales in the preparation of European legislation?

LORD ELIS THOMAS(In Welsh, then interpreted): I hope that our Subject Committees, certainly under the new system with representation from amongst committee staff in Brussels, could be much more active. I will not go on to discuss the issues surrounding the mid grade in particular but I am sure it is prudent to say that the mid grade farmers are not scared of expressing their opinions either in Brussels or in Blaenau Ffestiniog or wherever.

This is a very central issue, I believe, because in the case of environmental and agricultural legislation the primary legislation is European legislation and the United Kingdom enacts that and the Assembly implements it. That is an area where we have to implement these frameworks, whether it is conservation or environmental control or whatever it may be. As we implement that, it is very important that we can influence the legislative framework and that should be done early on.

What I would like is that we should have the ability to see and hear what is likely to occur, if it is very relevant or is going to have a detrimental effect on us and of course environmental designations are very important because Wales is the country with the largest numbers of diverse designations in the whole of Europe. Having early influence on that is essential and I would like to think that we could pick and choose and say, "This is the document which at present will have the greatest impact on Wales, so we will study this and respond to it as quickly as possible."

TOM JONES (In Welsh, then interpreted): Not as thoroughly as the House of Lords European Union Committee would.

LORD ELIS THOMAS (In Welsh, then interpreted): Yes, but it was good to listen to your deliberations having a voice through any particular channel. You could discuss for ever and a day but you have to be able to have influence.

Focusing on Denmark, it instructs ministers on Friday what they should say in Brussels on Monday and I would like to have that kind of standing order here which would state that ministers entering into negotiations have to discuss these issues with the European Affairs Committee and then they would have an opportunity for Assembly members to influence our ministers. Our ministers are naturally part of the UK team of ministers but of course, as you know full well, we have a great deal in common with the agriculture of Scotland and Northern Ireland and that access has been a very strong one already.

SIR MICHAEL WHEELER BOOTH: It seems to me you are more or less saying in your paper that it has not been a great success to date. Standing order 15 gives the Committee on European Affairs very wide powers if they choose to use them. The Lords Committee you referred to have gone particularly for certain subjects like environmental pollution and a lot of help has come from Wales. The National Assembly and its Subject Committees and European Committees – if they were to go for just a few subjects that they could be accurate about and produce a report which was properly justified and worked out, it seems to me you could have considerable influence. If you are all over the place, saying, "We want more money for Wales" you will get nowhere.

LORD RICHARD: What they want is European legislation coming out of the machinery in Brussels. One of the ways I can think of for doing that is to go and talk to the Commission early in the process because the earlier you can get your thoughts into the Commission the better chance you have of influencing the shape of any directive or legislation. The Commission is a transparent, open body and it is always ready to listen to people.

Can I ask one final question? What is the Panel of Chairs? What does it do?

DR MAREK: It is not a formal committee. It is the chairs of the seven Subject Committees under my chairmanship and we meet from time to time to discuss matters such as best practice. For example, we have had an inquiry into waste, with government money but we used best practice guidance for any other inquiry by another Subject Committee.

LORD RICHARD: Thank you very much for coming. It has been a very useful and a very helpful session. I hope we have a better insight into some of the problems.

LORD ELIS THOMAS: We wish you well with your deliberations.

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