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

MINUTES OF PROCEEDINGS

of the

EVIDENCE OF:

Professor Richard Rawlings

held at

Caradog House, Cardiff

On

FRIDAY 13 JUNE 2003

In Attendance

Lord Richard, Chair, Richard Commission

Ted Rowlands, Richard Commission

Tom Jones, Richard Commission

Peter Price, Richard Commission

Dr Laura McAllister, Richard Commission

Sir Michael Wheeler-Booth, Richard Commission

Paul Valerio, Richard Commission

Vivienne Sugar, Richard Commission

Eira Davies, Richard Commission

Huw Thomas, Richard Commission

Professor Richard Rawlings

Proceedings

Lord Richard

Can I thank you very much indeed for coming and also for producing a paper which is extraordinarily helpful. We are very grateful indeed for the help you have given the Commission.

Can I ask you to formally identify yourself for the sake of the record and then, having done that, then perhaps you would open it up for us.

Professor Richard Rawlings

Thank you, Chair. Good morning, colleagues. I am Professor Richard Rawlings from the Law Department of the London School of Economics.

By way of introduction I would like to say that there are four key starting points to my submission to the Commission. The first concerns the nature of the evidence to the Commission. Obviously I have not read all of it, but I have had a chance to look at a fair amount of it. It seems to me that you have collected some very valuable material on the practical workings of Welsh devolution and on the various strengths of the current scheme, but I do not think that you have actually had a lot of evidence in terms of a general examination of ways forward and that is what I have tried to supply in my submission.

The second point I would like to make is that the approach I have taken is specifically tailored to the condition of Wales. It seems to me that there are many advantages to symmetry, but I am rather opposed to the idea of symmetry for the sake of it and it seems to me that the Commission needs to be thinking about an appropriate constitutional framework for Wales in the light of the history and geography of this little country.

The third point is that I would like to think anyway that my approach could be considered quite pragmatic and practical. It seems to me in particular that there is little to be gained in reinventing the wheel. At the same time, it seems to me that we can learn quite a lot from the so-called Celtic cousins in Scotland and Northern Ireland.

So if I was to sum it up I would say that my approach is about tailoring constitutional development to local conditions in the light of comparative experience.

The fourth point I would like to make by way of a starting point is that it seems to me that what I regard as the simplistic dichotomy between legislative and executive devolution has bedevilled the constitutional debate in Wales.

The first point here is that if you look at the short history of the Assembly I think what you can see is competing models of executive devolution in play. Similarly, it seems to me that the Richard Commission needs to be thinking in terms of alternative models of legislative devolution, more or less generous, complete or phased. It seems to me that one of the problems in the Welsh debate is the idea that the legislative devolution idea necessarily means the Scottish model. I think that assumption needs to be tested.

The other point that I would make here is that it seems to me that the Commission needs to be thinking in terms of a mixed approach of legislative and executive devolution, that the area of executive devolution may actually extend beyond a possible area of legislative devolution.

The second set of points I would like to make relates to the nature of my approach. As every public lawyer knows, one of the great traps when you are constitution building is to be overly prescriptive and it does seem to me that there is a danger in all of this in trying to be too detailed, trying to tie things down too much in advance. It does seem to me that the Commission needs to exercise a considerable degree of self-discipline here, because it is important actually to provide a framework in which the actors can then go on and develop it in the light of experience.

The related point is that my approach is decidedly targeted. I am interested in trying to work out those situations in which Wales could usefully enjoy a substantial what I call legislative space, so allowing for greater sensitivity to local conditions.

At the same time, I make the point that it is important not to lose sight of the parallel need for a manageable and generally comprehensible constitutional settlement. One of my concerns about the way in which Welsh devolution has developed is the sense in which it is what I call an affair of the elite; official concerns have been prioritised and that, for example, comes out I think strongly in the terms of reference of the Richard Commission where, for example, I see no mention of that basic British constitutional word, "Accountability".

Coming then to my proposals, I put forward two possible schemes of legislative devolution for Wales. What I will call Rawlings mark 1 allows for a phased or rolling programme of empowerment, one which delivers a targeted approach in the initial stages on matters to do with front line services, such as health and education. At the same time, it is designed to give the devolved administration a flexibility to legislate on specific issues in and point the general way forward to primary competence in other fields of devolved functions. So to this effect the hallmark of this model is a tripartite division. As well as the familiar designations of reserved and devolved powers the scheme incorporates a flexible category of retained matters.

The second model, Rawlings mark 2, is more conventional in character and is premised on a single flexible boundary between reserved and devolved matters. Effectively, what is happening here is that the retained matters in model 1 targeted on areas like economic development and those with a strong European aspect are being rolled over into the devolved functions.

Two points I would like to emphasise here, however: first, mark 2 is not as extensive a model as Scottish legislative devolution. This brings me back to the point about history and the point about geography. I am manoeuvring here as I believe the Richard Commission should manoeuvre within the fact that, for the time being, we have a unitary England and Wales legal system.

Also my model raises the important idea of collaboration with the UK Parliament along the lines of the so-called Sewell Convention. I would further emphasise the importance of being prepared to adapt that convention in the light of the Welsh situation. So I am going to refer to it this morning as "the putative Richard convention".

I prefer model 2, or mark 2, for various reasons, associated with the fact that it is a cleaner and more generous cut from the outset.

At the same time, like any good public lawyer, I recognise that politics is in part the art of the possible; Mark 1 is a partial solution which presents its own difficulties, but I want to emphasise that it is not being put up here simply to be shot down. I think it is feasible.

Finally, I want to emphasise the continuing importance of executive devolution in the context of the scheme of legislative devolution for Wales. As I suggested at the outset, it seems to me that the Commission needs to be thinking about the potential idea of an appropriate combination of mix and match of legislative and executive devolution.

I will stop at that point.

Lord Richard

Thank you very much indeed.

I wonder if I can launch straight into Rawlings mark 1, particularly the retained matters, or the novel concept in a sense. Who would actually make the distinction between matters which are not devolved and matters which are retained and matters which are wholly devolved? How can that be done? By an Act of Parliament?

Professor Richard Rawlings

What one starts with is - let us call it - "the putative Wales Act" and that Act would set out, along the lines of the Northern Ireland Act, those areas that are reserved. Then second, looking across to Northern Ireland but not in terms of the subject matter; in terms of the technique, and then listing those matters that would be retained. Then the third category, devolved matters, is everything which is not specified.

That is point 1. Point 2 --

Lord Richard

Sorry to interrupt you but you need a new act?

Professor Richard Rawlings

Oh yes, you must be talking in terms of --

Lord Richard

New Government law.

Professor Richard Rawlings

Of course. That must follow. Let us be clear at the outset. I think you would just have to start with a new Government of Wales Act.

The second point is you would then need to build in a mechanism for transfer as between the retained matters and the devolved matters, and if you look at the Northern Ireland Act, of course they have that mechanism, and if I can draw your attention, Chair, to annex 2, where I have tried to summarise this in terms of a model, the key technique here is transfer with the consent of Westminster. So, in other words, one is setting it out in terms of the statutory framework and then one is building into that statutory framework flexibility.

Ted Rowlands

Whereas the transfer of functions orders in the both Wales and Scotland Act are a transferred executive function, is it true that in this Northern Ireland Act it is a transfer of primary legislative powers as well, that you transfer across the right to legislate? You say, "I am going to send you an order, or transfer of order, to transfer education -- not just education, but primary legislation on education". Is that right?

Professor Richard Rawlings

Yes. That is why -- and I think this must be right -- I think one would expect the extra lock there of Parliament consenting to the operation of it. But can I just remind colleagues about the way in which this model would work, because this is very important. What do we mean by retained matters? We can talk about the subject matter, but what is the position of the Assembly under a retained matter? It can exercise primary legislative powers. It can do that already. However, the bill only goes for Royal assent with the acquiescence -- and we can talk about how we might build that in -- the approval of the Westminster Parliament, and that is the Northern Ireland model. The Northern Ireland model in relation to this intermediate category is not that the Northern Ireland Assembly cannot do anything until there is an order; it can --

Ted Rowlands

Power has been transferred.

Professor Richard Rawlings

Yes. It can, but you can only get something on the statute book subject to consent and, clearly, the reason why I am interested in bringing this across into the Welsh situation is, for example, because of the log jam argument. Suppose, for example, that the National Assembly wanted to have a local act -- I do not mean local in the technical sense, but a particular point on economic development; tourism, for example -- and it knows that it would find that very difficult to actually get that legislation in Westminster. The point about the retained matters idea is that the Assembly could do that and then it could put it up to Westminster and no doubt the negotiations would have gone on in advance, and if Westminster and Whitehall are happy with that then it can be put up for Royal Assent. So I think it is very important to see that the retained matters is not just about at some point the Assembly would get primary legislative powers in that area; it would have that power from the outset but working in partnership, in collaboration with Westminster.

Lord Richard

Yes, I am still not quite clear about the mechanism for deciding which goes into which slot: which power is retained and which power is devolved and which power is reserved. How are we to sort that out?

Professor Richard Rawlings

Do you mean in terms of --

Lord Richard

In terms of practicalities of deciding what goes into which categories.

Professor Richard Rawlings

Okay. In terms of the practicalities, in terms of the formal legal answer to that, as I have said in the statute -- the devolution statute, the Wales Act, call it what you will. Second, in terms of which areas should go into which categories, I have tried to address that in my submission and I have gone through area by area which I think would be appropriate for each of the categories.

Now let us take it one by one. In terms of the reserved categories, it seems to me that, putting to one side the Language where of course there are particular issues, but broadly the Commission if it is interested in the idea of legislative devolution can take as a working assumption that the reserved matters in relation to Wales are going effectively to be Scotland plus; that the kinds of powers that are reserved in relation to Scotland will be reserved in relation to Wales and that in addition there is -- and I think there are good arguments for this because of the history and the geography -- there will be a number of additional matters as well that are reserved in respect of Wales that are not reserved in respect of Scotland, and the obvious type of case there are the cases that are directly related to the fact of the separate Scottish legal system: civil law, criminal law, et cetera. So in other words --

Lord Richard

Prisons are a bit more doubtful.

Professor Richard Rawlings

Yes. One can have a discussion about this, so that in terms of the practicality I would be looking at the Scotland Act and then I would be thinking, "Well now, how does this play in relation to Wales?" As I have tried to emphasise to the Commission, I think one needs to think about what is the particular position of Wales, rather than simply saying, "Oh well, because the Scots have got it we should have it".

So that is the point about the reserved matters.

In terms of the retained matters and the division between retained and devolved matters, clearly that is a harder one and although it is a harder one I think it is feasible to do it, but of course this is why I personally would prefer mark 2 rather than mark 1, because if you go down the mark 2 route one you do not have to make the division between retained and devolved. But let us assume that one wants to have a more limited approach, then what I have tried to do is essentially to look at the fields of devolved functions, and I have said to myself, "Well, I think that an appropriate focus here would be on those areas of front line services: health, education, where the Assembly would have strong lines of responsibility and accountability to the people of Wales, where frankly the Assembly needs to be seen to make a difference." So what I would say is that those particular areas are strong candidates for falling in the category of devolved matters.

Then in relation to the retained matters I was struck, for example, by the evidence that you have received from Andrew Davies in relation to economic development where he was arguing that actually primary legislative powers are not of the first importance to us; there are many other things.

Similarly, in relation to areas like agriculture with a very strong European dimension, it seemed to me that those were areas where perhaps one can take a more gradualist approach and say the Assembly may wish to do particular things -- this comes back to my point about the Assembly having a particular power within the retained matters category -- but that broadly one can take a more relaxed approach in relation to those kinds of matters, but clearly one would need to go through subject by subject.

Lord Richard

I just think it is rather difficult to see one's way through the maze, that is all. Transport: why do you put that in a retained rather than a devolved, because presumably they would like devolved powers and the Welsh Affairs Committee, you quoted, says that at some stage there has been full devolution in relation to transport.

Professor Richard Rawlings

I would answer that in two ways. First, what I am suggesting I would say squares with what the Welsh Affairs Select Committee is saying, because in time, clearly, according to my mark 1 model, that would come down, so it has not been ruled out. It is actually part of the model.

The second point is that, yes, clearly "they would like devolved powers in the area of transport" but "would Central Government like to devolve those powers in the area of transport?" Transport seems to me an area where there are very, very strong cross border concerns. The idea of having retained matters is to allow or to create a situation where Westminster is still formally in the loop, but at the same time if the Assembly wants to do particular things inside Wales, it would have the primary legislative power to do that. If there are particular transport issues that do not play across the border then the Assembly would be able to do that.

Lord Richard

It would be able to do that without Westminster?

Professor Richard Rawlings

No, because according to the retained matters idea the Assembly makes the bill, it goes up to London and then it is up to Westminster if it wants to say effectively yes or no, so that Westminster retains a veto in that kind of situation. But clearly the expectation would be that where the National Assembly was doing something that was wholly inside Wales then Westminster could be expected to be more relaxed about it.

Lord Richard

So really what the scheme comes down to is giving the National Assembly power of initiating the legislation but leaving the eventual approval or disapproval of it with where it lies at the moment.

Professor Richard Rawlings

I respond to that in a number of ways: first, it allows you in a very practical way to get around the log jam problem, because the Assembly can actually do the legislation for itself and then it goes up to Westminster and there it is. It seems to me that there is a major practical difference between these two approaches.

The second point is that it seems to me to be a far stronger situation to be in where you have passed your bill, you have got it through the National Assembly and you are then putting it up to Westminster for approval. That seems to me to be a very different situation from a situation where in a sense you are negotiating with Whitehall and Westminster all along the line in relation to the provisions of the legislation which you are putting up.

Huw Thomas

Under your model does Westminster retain the power to repeal Welsh legislation? What I have in mind is yes, you create something that is particular to Wales and then the framework is changed. The power to repeal that legislation which the Assembly has made with the consent of Westminster stays with Westminster?

Professor Richard Rawlings

Right, one has to factor in Parliamentary sovereignty here. The formal answer to you must be yes. We are talking about devolved Government here and we are talking about devolved Government in a constitutional framework of Parliamentary sovereignty. The further question behind your question is would it then be possible to have a convention. We will call it the Wheeler-Booth convention for these purposes if you like, that the UK Government would operate on the basis that the UK Parliament would not go back on that without the consent of the National Assembly for Wales. In other words, you do a play on Sewell.

Tom Jones

My question is this I can see would work again with the agreement of Governments in both places and the similar then should be easier. We have constantly been told you have to prepare for the hostile day when, for whatever reasons: party dogma and so on, there are differences, and would that sort of break down because the Westminster end could be awkward?

Professor Richard Rawlings

Clearly -- I am sure colleagues around the table would all accept this -- trying to work out what would happen in a position of co-habitation is a very difficult thing, and there is an element of guestimate in it. I would make a couple of points about that. The first point I would make is that if you look at the way in which I have designed the model, what I have suggested is that this model would operate according to negative resolution procedure, so that the bill would hold and would go for Royal Assent unless in practice the UK Government moved against it. I put it like that because clearly it would be a choice for a Conservative Government, which I am assuming that scenario here, to decide whether it wanted to go down that route. But I do not think it is impossible in those situations that a Conservative Government would say, "All right, we have a general sort of looking over the shoulder role, but that essentially if that is the settled democratic will of the National Assembly we go with that." What I have not done is go down the Northern Ireland route of actually requiring the consent of the Secretary of State before you would put the bill forward, and the reason I have done that is because there is a kind of sense of not wanting to rub people's faces in it and, clearly, it might be rather more awkward for a Conservative Secretary of State actually to be seen to give consent to the relevant piece of Welsh legislation. So what I have tried to do is to draw the sting of that type of argument.

Tom Jones

I do not quite see it solely in the context of two political parties. Some of this legislation -- as you say, if it is pertinent to Wales only -- is in one sense missing the point, because some of the legislation may have economic and political advantages and that is why preserving agriculture, for example, I can imagine there was an attempt this last year to get a common land bill for Wales, which was ditched because of time, and so on. There may be some sort of tenancy, new tenancies that they would want in Wales for farming and so on, which would be something seen on the one hand to be of Welsh need, but you can also argue if you give it in Wales but in England you have to wait for 5 years there would be an advantage in stalling the process in Wales to give time for England to catch up on that issue. So it is not just simply a party political issue; it is an advantage issue, one country having an advantage and stealing a march on the other.

Professor Richard Rawlings

Sure, and that comes to my second point: I prefer the mark 2 model over the mark 1 model for precisely the kinds of reasons that you are putting forward. Mark 1 is clearly a partial solution. It has its advantages in terms of a more gradual approach. Some people would be attracted to it for that reason, but because it is a partial approach, it will have its own difficulties. My own view is that those could be solved and sorted but yes, of course, the kind of issue that you are raising is why at the end of the day I prefer the mark 2 model.

Lord Richard

Could I just ask a factual point: what you are envisaging is that in a retained matter earlier the Assembly legislates, it produces its bill, it then goes up to Westminster. That requires then Parliamentary approval in the form of a statutory instrument, or something of that sort, actually by the negative procedure gets the Parliamentary stamp; not just the Governmental stamp, but the Parliamentary one.

Professor Richard Rawlings

No, not quite. There are a number of different kind of techniques you could use, and if you look at the Northern Ireland example there is a very strong veto situation under the Northern Ireland Act, because it requires the consent of the Secretary of State and then you are into a resolution procedure.

Now I have gone, if you like, for the other end of the spectrum there, and on my approach you do not require a statutory instrument; it goes forward for the Royal Assent, unless you have a resolution in Parliament to the contrary.

Lord Richard

A resolution?

Professor Richard Rawlings

Yes. You would have a negative resolution procedure. You can see the parallel technique being used in the Northern Ireland Act, I think in sections 14 and 15 -- and, as I have said, it is different because of the Secretary of State consent requirement, but you see the general idea:

"The Secretary of State, assuming that he has consented, it shall not be submitted by him for Royal Assent unless he first laid it before Parliament and either the period of 20 days beginning with the date on which it was laid has expired and nothing has happened."

Lord Richard

But you are not going as far as that?

Professor Richard Rawlings

I am not requiring the consent of the Secretary of State.

Lord Richard

Bur you would require the Secretary of State to table it?

Professor Richard Rawlings

Yes.

Lord Richard

Supposing he did not want to table it; he decided not to. There is no way in which the Assembly could bring it in front Parliament in any other form and say, "This is what we want to do"?

Professor Richard Rawlings

Yes. But it comes back to the rubbing of the face, trying to get out of the idea -- I will come back on the party political point if I may -- that a Conservative Secretary of State has to be seen to consent to what let us say is legislation by a Labour dominated National Assembly for Wales.

Lord Richard

He does have to; under your scheme he would have to.

Ted Rowlands

He has to black ball it; that is what you are saying. It is not a policy that can be agreed with; he has to black ball it, has take an action to black ball it.

Professor Richard Rawlings

Yes.

Sir Michael Wheeler-Booth

I would like to go back and ask you, Professor Rawlings, why you do not consider in your paper at all the suggestion that has been made to us quite powerfully in evidence, namely that you should accept the Government of Wales Act as it stands and improve it in small ways and make it work and go step by step from it and you do not cover that, as far as I can see.

Professor Richard Rawlings

No.

Sir Michael Wheeler-Booth

What are your reasons?

Professor Richard Rawlings

The reason is because as a witness one can only do so much and, therefore, you have to decide where you are going to target your evidence, and it does seem to me that you have had a remarkable amount of evidence on the pros and cons of the model of executive devolution, and I know that people like Professor David Miers have talked to the Commission at length about the possibility of manoeuvring within the current Government of Wales Act. It just seemed to me that it is an added value question. One can go back through that all over again, but after 12 months I assume that the Commission is pretty well on top of (1), the strengths and weaknesses of the current model of executive devolution; and (2), what you can and cannot do within the current Government of Wales legislation.

Lord Richard

That is your principles?

Professor Richard Rawlings

Okay, my principles, and so it seemed to me that it was appropriate on this occasion to try and do something different, and it may be that the Commission is interested in what I am saying; it may be it is not, but it does seem to me on any view that the Commission must clearly consider schemes of legislative devolution. This is in the mainstream for political debate.

Sir Michael Wheeler-Booth

Can I ask another question, very much based on your presentation but it also comes into effect of your very thought provoking paper, you stress the case whatever not being over-prescriptive. I happen to have great sympathy with this view, but could you explain your reasons for saying it.

Professor Richard Rawlings

Maybe I have jumped outside my paper actually. Part of the problem with Welsh devolution so far is that we have tried to be a bit too prescriptive about the nature of the Assembly and how it might operate, et cetera, and it does seem to me that if one should try to stand back a little bit and allow the constitutional development to happen in a rather more natural way. This is not a criticism of the Commission in any way, but it is in the nature of these things is it not, that if one sits for 8 months and you end up having more and more evidence clearly the temptation must be to produce a very detailed scheme, and I am not sure that that is a very good idea. It seems to me that you have to try and stand back and to sketch more broadly and then allow the actors to fill in the sketch as the years go by.

Lord Richard

You are producing something which in terms of practicality is not going to be with us for a number of years. There is no way in which we are going to get the another Government of Wales Act in the course of this Parliament.

Vivienne Sugar

Can I expand on that and just ask you the assumptions that you have made in the paper about timescales. In paragraph 6.1 you talk about the transitional period of 10 years and so on. Can you take us through that. If you can take us through the assumptions that sit behind that.

Professor Richard Rawlings

Clearly this goes -- it is not for me to say how the Richard commission should view its mission in terms of the framework that you are trying to create, and whether you are trying to create a framework for 20 years time or whether you are trying to do a short term job, or something in between or whatever, and I put those in stark terms. That is a fundamental decision, it seems to me, that the Commission has to take.

Vivienne Sugar

We are not at the stage of that yet, but what we do need to do is to be able to put some possible time frames on all the different options, and I have tried to understand why you think it is going to take 10 years.

Dr Laura McAllister

May I add a question to this and you can deal with it at the same time: could you transfer relatively easily from mark 1 to mark 2 based on the kind of scheme you have described there using Super Sewell as well as an option?

Ted Rowlands

Could I add to that as well: you say that mark 1 is walking but not running but mark 1 actually you are running on legislation and everything: housing, education, Local Government, planning, et cetera, and the only thing you are not running on from day 1 under mark 1 is agriculture, fisheries and transport.

Professor Richard Rawlings

Shall we call it jogging! Let us have a look at footnote 52, a timetable for the Commission. I am not sure when you are intending to report, but I am assuming sometime around the end of the year, either just before or just after, sometime, but suppose one is going to go down this route then you would need a new piece of primary legislation.

Now it seems to me that that would be likely to be put in a UK General Election manifesto, and when was the last election? 2001. So we might be looking at something like 2005, and then obviously we would have to have Parliamentary proceedings to produce the relevant legislation, and then you would be perhaps thinking -- and I want to stress the way in which I have put this in footnote 52 -- one could even be thinking of -- I am not saying it would be 2010, but I am saying that one has to think through the relevant stages -- you might then be thinking in terms of a referendum -- and again, I do not know what the Commission is thinking, obviously, in relation to the electoral system -- and if one was going to change the electoral system in some way, for example, by having shall we say 20 more Assembly Members, then clearly next door in the Boundary Commission colleagues need to be given an appropriate time in which to produce the relevant proposals and that all has to get approval. So one, I would have thought, would have been talking in terms of a framework, a time frame of something like 2008 onwards. I would have thought that was a realistic kind of time.

Vivienne Sugar

You have just saved 2 years.

Professor Richard Rawlings

No, one could even be thinking -- that is my longest one -- I did not say 2010, that is my longest one.

Lord Richard

There would have to be a transition.

Professor Richard Rawlings

Yes, there would have to be an element of transition. One can go back into the history of Welsh devolution and one could say it was a bit of a rush job, and if the Civil Service had had a few more months to sort things out that might have been better.

Vivienne Sugar

So the reference on page 25 to the transitional period of 10 years, that is the mark 1 model, is it?

Professor Richard Rawlings

Yes.

Vivienne Sugar

And is it purely reflecting on the experience of 1998, 1999 and this point about the Civil Service?

Professor Richard Rawlings

Clearly one would want to take advice from the Permanent Secretary about what the Permanent Secretary's judgment was on that. But it is important to remember that Sir John Shortridge and his colleagues, yes, of course, they would need to gear up, but they at the same time have to go on making sure that the Assembly as it is presently constituted is delivering within its confines a good and efficient and effective service for the people of Wales. So one does not want to get into a situation here where the Civil Service in a sense is deflected from doing a proper job for the people of Wales in the transitional period because of having to spend all its time thinking about the next stage of constitutional development.

Dr Laura McAllister

What about this walking, jogging, running transfers that Ted and I touched on, how would that work? Would it not be inevitable that once you are jogging, as you describe it, you are going to be not far off a move to running by the two models?

Lord Richard

Speak for yourself!

Professor Richard Rawlings

This seems to me to be a judgment that the Welsh Assembly Government would have to make --I put this on record -- I do not think the Welsh Assembly Government is going to run amok. It seems to me that the Welsh Assembly Government would be in a position to take a considered view about whether it is jogging, running, sprinting, however we define these terms, and that in a sense the point about that mark 1 model is that it allows the Assembly and the Welsh Assembly Government to take that considered view in the situation in which it finds itself.

Ted Rowlands

The walking, running, I do not see much of a difference between mark 1 and 2 effectively, except for these retained matters which in many cases you are almost saying are difficult to legislate, either because they are covered by European legislation or economic development as much as legislation. You are proposing in the mark 1 that from the day the decision is taken:

"The Assembly and the Welsh Assembly Government will be legislating on health, education, personal social services, housing, local government, planning, culture and the Welsh language from Day 1."

Professor Richard Rawlings

At this point you factor in the importance of the Sewell Convention, and the key point in my paper is that I think there is a fundamental mistake being made in the public discussion here. Yes, in one sense the Assembly would be legislating on all those fields, in the sense that it had the competence to do so. It does not follow that it will be, and that is where the potential for partnership and collaboration with colleagues in Westminster kicks in, because if the Assembly finds that actually it would be finding it a bit difficult to run in all those things, then it is open to the Welsh Assembly Government with the agreement of the Assembly to look to Westminster and Whitehall in that transitional period to help carry its legislation.

Dr Laura McAllister

Can we stay with the Sewell issue for a minute. It was something that you raised very prominently, this concept of Super Sewell and something different to Sewell, and I just wonder if you can elaborate on that for us, because when we were in Scotland we were told by several people that there needed to be some alterations to the way in which the Convention worked, particularly from the point of view of scrutiny and accountability, and how would you build in some of those safeguards in something in Wales of a Super Sewell to ensure that we did not have the issue of a piece of legislation changing out of all recognition and it not being referred back to the Parliament, only to the executive and so on?

Professor Richard Rawlings

I thought we might get on to Sewell.

Can I say a few things about Sewell. First, it is important to remember that Sewell, of course, is very new and it has only been operating for some two or three years, and the kinds of issues that you are raising about scrutiny clearly have been raised in the Scottish context, and as I understand it important work is now going on in, for example, the Constitutional Unit about how you can build in that kind of safeguard, and it is being suggested, for example, that you might have a scrutiny reserve and that has been mentioned in the select committee of the House, and I will be frank --

Sir Michael Wheeler-Booth

Which was it?

Professor Richard Rawlings

This is the House of Lords Select Committee on the constitution, and so in a sense that work is going on. I think it is recognised that Sewell works very well as between governments. What you need to do is to factor in perhaps stronger safeguards on behalf of the Assembly/Parliament. It seems to me that that is an issue which the Richard Commission should be interested in. There are sources to draw on here.

The second point I would like to make is that one could do an analysis of legislation affecting Wales which would be covered by what I call Super Sewell, what might go to the Assembly and what might not, and one could have a talk about that. But I do think, you see, that in the Welsh position, because of our very long-standing tradition of England and Wales bills, Sewell, or what I call "the putative Richard Convention", is likely to have a more significant effect here than it will in relation to Scotland, even though in relation to Scotland it seems to be very important, but I think it is something that we could really adapt here to Welsh circumstances.

Dr Laura McAllister

How would it survive again in a situation of co-habitation?

Professor Richard Rawlings

Shall we have a look at some bills? I think one really needs to look at some bills. It seems to me that the Sewell Convention is clearly very well adapted to those many pieces of legislation which are essentially non-controversial. In those situations where there is a real disagreement and clear red water, or clear blue water, or whatever it happens to be, then the Welsh have their primary legislative power under the schemes that I am suggesting and they do it. Sewell does not depend on there being no co-habitation. Sewell can operate in a situation of political co-habitation in respect of that non-controversial bulk of legislation, and of course the point about Sewell is that it is always open to you if you like not to go down the Sewell route and to do your own thing.

Lord Richard

Can I come back to retained matters. In looking at the plan that you have put before us really for the three matters, reserved matters, retained matters, devolved matters, there is no really I suppose why you could not put all the items that you have in the principle of devolved matters into the retained matters box, and in effect move them to a wholly devolved issue one at a time, vote on as people thought it was sensible.

Professor Richard Rawlings

You could. In a sense that is the point of the models. I have done the models, but I could hardly turn up with the models with nothing put in. That would just be so academic, so abstract.

Ted Rowlands

It is the kind of suggestion Daffyd Edward Thomas drew our attention to.

Dr Laura McAllister.

The presiding officer.

Professor Richard Rawlings

My own sense would be that if you were going to go down that route, and obviously that is not my preferred route, but if you were going to go down that route I think it would be healthy if the Assembly was given a significant wedge at the outset. One does not want to be too narrow, too ungenerous if one goes down that route. It does seem to me -- and this raises a broader issue, does it not, about the place of the Assembly in the national life of Wales -- it does seem to me that from the point of view of all colleagues and all parties, given that we are going to have an Assembly, given that we are going to have devolution, we do want to be in a situation where the Assembly is seen as having an insignificant role in the life of Wales and, therefore, I would not want to be too restrictive, too ungenerous in terms of what the Assembly could do for Wales.

Peter Price

In terms of retained, let us focus on that type of legislation and the Parliamentary scrutiny side of it. We have heard lots of discussion about prelegislative scrutiny and information at the Westminster end and vice versa. Now assuming that you had retained legislation, would you envisage that Westminster would only receive it at the end, or do you think that the model of prelegislative scrutiny involving both democratic bodies at an earlier point would be something that would lend itself rather well and avoid the kind of potential dispute that might occur at the end?

Professor Richard Rawlings

I cannot say that I am particularly attracted to that amalgam, that way of dealing with things, because it seems to me that there is a difference, is there not, between the mark 1 model, Rawlings mark 1, and the idea of the partnership approach under the existing system.

It seems to me that the point about the mark 1 model is it reflects the idea that the National Assembly and the Welsh Assembly Government are democratic institutes responsible for their own policy, responsible to the people of Wales, and that essentially it should be for that apparatus to develop their own legislative proposals in their own course of development, et cetera.

However, clearly, this would not be going on in a sort of a void. It is not as if colleagues in Westminster suddenly pick up the Western Mail, assuming that the Western Mail is delivered to the Houses of Parliament, one day and find out, "Gosh, the Assembly has its own planning bill which is coming up in the House of Commons" and they will have to do something about it. Clearly that is not the real world, so that, yes, there would be conversations; yes, there would be discussions, no doubt with colleagues in Whitehall and Westminster about this. But I do see a a difference between the mark 1 model where essentially the Assembly is creating its own bills and the emerging partnership approach.

Peter Price

But the way that it works at the moment would be fundamentally different from your retained plus prelegislative scrutiny because all the initiative and the stages of the bill would be here not there, except that there would be this getting together, so that they were able to take account of Westminster views at an early point before carrying out those legislative stages and maybe minimise the risks of a problem at the end of the day. Does that make sense?

Professor Richard Rawlings

Yes, and clearly that would be a question. This again comes back to Sir Michael's question about being prescriptive, yes, but in a sense one sets that up. Then, of course, it would be for colleagues in the Welsh Assembly Government to decide about the amount of communication and collaboration which they wanted with colleagues in Westminster, and I do not think you can set down in advance that they must take the following steps. That would --

Peter Price

It would develop. The other question I want to ask is, assuming mark 2, or evolved legislation in mark 1; in other words, we are not now talking about the retained model, you have mentioned the much larger cross border element that affects Wales as compared with Scotland. How would you envisage that the cross border issues would be dealt with in front line service issues like, for example, health and the overlap that we have right down the border in a legislative way?

Professor Richard Rawlings

In a legislative way, clearly, the devolved government in Wales and the Welsh Assembly would have primary legislative powers in respect of everything on this side of the border. But it seems to me that in the real world there would then be discussion and communication through interGovernmental relations, through the systems of interGovernmental relations, with colleagues in England across the border as to what the appropriate responses are, and this comes back to my setup: I really do not think the Welsh Assembly Government is going to run amok. It has in the real world to operate with colleagues in the home civil service across the border, and arrangements will be made just as, no doubt, they are made in respect of Berwick-upon-Tweed. The Scottish Government knows that it has to work with colleagues.

Vivienne Sugar

I wanted to ask a question about accountability and, again, looking at the models from the citizen's point of view, if you were looking at where responsibility lay, and particularly in the context of the Human Rights Act, it just seems to me that although you might be able to do business from the Government point of view under mark 1 it would actually be terribly difficult for the ordinary person to work out what was sitting where and when and "Who do I see?" I would just like your comments about accountability for the public and understanding of a new scheme. One of the major criticisms we have heard is the confusion.

Professor Richard Rawlings

I try to see these things in terms of a spectrum. I do think it is very important -- and I know that it is very difficult for the Commission -- to try to think about these things from the point of view of the citizen and not just from the point of view of how does it go, for example, in the Welsh Assembly Government, et cetera.

These days given all the laws that surround us, given the fact that we have the European Union, UK, Local Government, territorial Government, clearly lines of accountability and responsibility are going to be much more complex than they were, and there is no getting away from that. However, it seems to me that the current Welsh settlement is open to criticism for being at one end of the spectrum, that because of the many, many sources of power of the Welsh Assembly Government and because of the fact that when you start looking at those sources of power Wales gets a bit and somebody else gets a bit, et cetera. But it really is very confused and complicated, and so then the question becomes, I suppose, how far is it appropriate to move along the spectrum? Clearly in relation to the retained matters you know as a citizen that, for example, the Welsh Assembly Government is responsible for health and for education, and that is where the buck stops and, of course, that is another reason why I have suggested the front line service type of idea might go on mark 1 in the devolved areas, because it seems to me -- and this comes back to my opening gambit as it were about the fact that accountability nowhere appears in your terms of reference -- that that is, again, a democratic thing.

Now, again -- this is why I happen to prefer mark 2 than mark 1, but I am not having to deliver it; I am seeing it from a nice constitutional viewpoint. Clearly, as I said, it is a cleaner more generous cut to go down the mark 2 route, so that from the point of view of the citizen it is a bit clearer; it is further along the spectrum if you like in terms of the various lines. But it may be that the Commission feels that for other reasons it does not want to go that far and that it wants to come back further up the spectrum, but that seems to me still to be a significant improvement on the existing position.

Ted Rowlands

I would like to pursue, if I may, the Richard Convention and the Sewell one, but just before that, can you just clarify this business of vetoing, if Westminster is meant to veto legislation, has the capacity to veto legislation, does it not have to have the capacity to scrutinise it as well, before coming to some veto? If you have a veto power on what basis would you exercise that power, unless you had been some party to the scrutiny of it all, the bill, it drags Westminster all back into it.

Professor Richard Rawlings

No. I think, clearly, the reality of it is that when would Westminster veto? Westminster would veto presumably on the recommendation of the UK Government. How else would it happen?

Ted Rowlands

On what basis would it do it if it has not been involved in the scrutiny?

Huw Thomas

The Welsh Affairs Committee would be the first port of call to scrutinise.

Ted Rowlands

We are back into some kind of co-legislation.

Professor Richard Rawlings

This is -- and you may want to take evidence on Northern Ireland on this -- this is the situation with Northern Ireland.

Ted Rowlands

Has anything happened in Northern Ireland? It has not happened yet.

Professor Richard Rawlings

Yes, but the idea of retained matters, as I understand it, does not come from the peace process agreement. It actually predates that, so that you would be able to find good practical experience on how that would happen, but I would not expect the Welsh affairs Select Committee to be kind of crawling all over this. I would expect the UK Government to be taking a general view as to whether we can live with this, whether this legislation in some way undermines the UK interest, undermines a particular situation in England, and so I would not expect in this situation --

Lord Richard

Unless there was a political confrontation going on regarding questions, surely you cannot in effect clear it in advance? It seems to me you are creating: just present them with the thing and expect agreement.

Professor Richard Rawlings

No doubt you would be hoping that colleagues in England would actually have good ideas and sensible suggestions to make as you went through.

Lord Richard

I do not think you could have a formal legislative -- I think you would have a sort of informal set of consultations.

Ted Rowlands

Could I just take you for a moment into this. Whatever models, and all your models and everybody else's models, still make an assumption there is going to be quite a large chunk of English and Wales legislation which could even fall in the devolved areas, as is happening now, and that may still go on because it may be convenient for all the parties to do it, and one of my concerns, one of the concerns is, that in fact whereas two governments can agree on all this, that the Parliamentary and the Assembly side of it gets sometimes cut out of the loop. Therefore, whatever system we adopt, whatever forms of transfer for legislation, we need some kind of co-legislation procedure to be in place to make Sewell plus, or the Richard Convention work and be meaningful. We have been looking at three categories of this. I think Carys passed that to you. Let us leave the two we are very familiar with, the Wales only bills and the substantially different views, and just look at this first category that has happened since 2001 where -- and it is categorised as acts and bills with minor differences in Wales, but in a couple of cases -- and I will just identify two -- absolute legislating in an area which is totally devolved. If we take the Community Care Delay Discharges Bill, reimbursing NHS patients who cannot be discharged for Social Service provision, totally devolved in every sense of the word, in terms of implementation, funding and the rest of it. We do not know yet what happened to that. Was this bill cleared between the Assembly and things? But more importantly, I have read the Westminster end of it, the Assembly, but how would we handle a bill like that which it is agreed somehow that it is going to go through the Richard Convention, although it is bang right in the middle of the devolved powers. They could legislate that bill on their own, the Assembly could and it could end up under mark 1 or mark 2 but it chooses not to. What kind of co-legislation procedures could be in place?

Professor Richard Rawlings

The rules of the game are different. Governmentally from the outset, because it would be for the Assembly and the Welsh Assembly Government to decide whether, for example, the delayed discharges legislation actually took the Westminster route or the Cardiff route, and that seems to me to be a major difference for Wales.

Let us then assume that it was decided down here that we wanted to go down the Westminster route, then it seems to me that the kinds of techniques that are emerging, courtesy of the Welsh Affairs Select Committee, are the kind of techniques that one would like to see applied to the legislation as it relates to Wales.

Now in a sense it is almost impossible for me to answer the question today, because my understanding is that the Government response to the Welsh Affairs Select Committee report on primary legislative process is out in two weeks time, and in the sense to answer your question properly I need to see what the Government is going to say in relation to the Select Committee's report, but broadly what I would say to you is that I think that some of the techniques which the Select Committee is proposing are very good and I would thoroughly commend them.

Ted Rowlands

Because there is a danger, is there not, that if one ships, I do not know, mark 1 or mark 2 primary legislation but is making an assumption that the system is going to work because Westminster will still take a quite large part of the legislative strain, Whitehall actually will gradually be less interested in doing it as such, for the simple reason that they have the powers, they have the thing, let them get on with it, type of thing, and we might be making an assumption about the capacity and all the rest of it which would not be valid.

Professor Richard Rawlings

Again, I just do not think it will operate like that because of the strength of the England and Wales official paradigm. I also think that the strength of the home civil service and the mutual interest which colleagues will have in producing a situation that both jurisdictions, both law districts, however one cares to describe them, would be able to live with. But, as I say, it is a difficult question to answer ahead of the Government's response to that report.

Lord Richard

Do you envisage the Westminster Government having reciprocal powers in relation to retained matters, If the thing works in reverse, or does it only work from Cardiff going up? Could Westminster legislate in the same way, which would come back to Cardiff and Cardiff could then veto it, or not?

Professor Richard Rawlings

In retained matters the word "retained" clearly is stating that the Westminster legislature has primary legislative powers in that context.

Lord Richard

But it then needs approval down.

Professor Richard Rawlings

Clearly that is something that one could insert and we could have another convention around this table and, therefore, I have not put that in my model, but clearly you could if you could convince the UK Government to operate on the basis of that convention. That is an extra which you could do.

Vivienne Sugar

I was going to change the subject.

Ted Rowlands

At various points in your paper I was wondering, because we have lost sight of this, we did earlier on start talking about this: concurrencies of power, you said in paragraph 4.3 that concurrencies of power is often a vital element. Do you see any development of concurrent powers? There used to be, in bits of legislation you did have concurrent legislation; particularly in Scotland. Scottish and English sometimes had concurrent powers in various areas. Could you tell us a little bit about concurrency?

Professor Richard Rawlings

Clearly, in relation to -- this comes on to in particular the issue of ministerial powers -- there will be questions of concurrency of powers in the Welsh context, for reasons of history, because of particular issues of geography. You cannot simply draw a line on a map in the real world and say, "That is theirs and that is theirs". Clearly, policy issues, policy developments, straddle that, so that concurrency of powers is going to be something that would need to be factored into the equation. That must be right.

Ted Rowlands

You say particular areas, which particular areas? British motorways, was it not, yesterday, canals run across borders and that sort of side of things.

Professor Richard Rawlings

Water would be one and, again, it comes back to the original question of the Chair: transport would be another. You cannot just draw lines on maps and say, "That is that then". That does not seem to me to be serious. Again, in what social scientists like to call a multilayer democracy, where there are kind of different tiers of Government, you have to build that in, I accept that. Again, can I say that it comes back to my spectrum point: I do not think that you can suddenly be simple overnight, but you do not have to have quite as much complexity as we have in the existing model.

Ted Rowlands

Is there any way at the moment we can pick a piece of paper and say, "These are the list of concurrent powers, National Assembly/Whitehall"?

Professor Richard Rawlings

I invite you to look at the Transfer of Functions order, but in a sense that makes the point.

Vivienne Sugar

Would it be your view that there is anything in the list of principal devolved methods under mark 2 which would predispose towards changes in fiscal responsibility, and in particular in taxation? I am thinking perhaps of economic development powers and business rates and the interdependency then within economic development.

Professor Richard Rawlings

I have not spoken about tax because once again you cannot cover everything and I look forward to the Richard Commission's conclusions on a tax varying power. I start from the pragmatic position that the ballpark is the Scottish tax varying power, as it seems to me to be inconceivable that Wales would end up with a broader tax varying power than Scotland. So the question then becomes, is this an appropriate way forward for Wales?

It seems to me two points: the first is that, yes, you can construct constitutional arguments for saying that there should be a tax varying power for the National Assembly, and I am perfectly happy to go on record and say that I did not understand the Secretary of State for Wales’ evidence to you on this point when he appeared to argue that you need to test that economically as a commission. I thought, for example, about the idea of children's hospitals in Wales. I do not know where we are with a children's hospital for Wales. It seem to me to be perfectly viable, shall we say for the Liberal Democrats to come along and say, "We would like to put an extra penny or two on income tax in Wales because we want a specialist children's hospital in Wales and otherwise we are not going to get one." How do you test that in terms of an economic argument? That is a political judgment that you make.

So you can clearly construct a constitutional argument.

At the same time the point I would make, being a pragmatist, is that it comes back to the geography of the country, and it seems to me to be a serious question you have to ask as to whether such a power would be likely to be exercised, in particular because of the integrated nature of local needs both in North Wales and South Wales with what is just across the border. So I do not have --

Vivienne Sugar

The reverse of that would be to say that because of the integrated nature of some of those things perhaps they should stay on an England and Wales basis?

Professor Richard Rawlings

Yes, absolutely. That is why I am saying you could perfectly happily construct a constitutional argument for saying, "A little more autonomy here in this area for your territorial Government", but you can also say, "Look at the condition of Wales. Is this a particularly serious point?"

So I do not have a very strong view on this, and it seems to me that it does not directly affect the mark 1 or the mark 2 model and that the mark 1 and the mark 2 model can run, whether or not one has a Scottish style tax varying power and, of course, that is shown by the Scottish experience, that clearly Scottish legislative devolution is proceeding in a serious way without any practical exercise of their tax varying powers.

Vivienne Sugar

Could you give me an example --

Sir Michael Wheeler-Booth

They do get far too much money.

Vivienne Sugar

Can you give me an example under economic development, which you have put in the principal devolved matters list, of a piece of primary legislation which the Assembly could pass which would not involve finance in some way?

Professor Richard Rawlings

Yes, but that assumes that -- the premise of the question is that finance means raising extra money via taxation. Finance is surely about also, to a far greater degree, frankly, given the economic position of Wales and how many people live here, it is far more about shifting resources inside your -- what are we up to now, 12 billion --

Vivienne Sugar

You would not need primary legislation to do that.

Professor Richard Rawlings

No, but what I am saying is -- perhaps I misunderstood you, but my understanding of the question was that you would have primary legislation which would require expenditures in order to be put into effect. For example, granting aid, whatever it happened to be. Where is the money coming from? What I am saying is the money is coming across -- if that is what you wanted to do.

Vivienne Sugar

I am trying to think of something which would require primary legislation which would not have the cross border impact. What is it that you would want primary legislation for in that particular field to do?

Professor Richard Rawlings

That comes back to my initial argument; that comes back to the point made by Andrew Davies, where he was saying, "Look, primary legislation is not desperately important to us" in the area of economic development, and that is why I am putting it in the retained powers list. But it seems to me, for example --

Vivienne Sugar

No, under mark 2 it is under principal devolved matters.

Professor Richard Rawlings

So you are talking mark 2 as opposed to mark 1. Okay. Suppose, for example, you wanted to set up some kind of financial resource, banking support, or particular support for a tourist accommodation in Wales, it might all fall within the rubric of economic development. By economic development I am taking, obviously, a fairly broad view of what that means. Why not regulation? Is there not a proposed bill to this effect on regulation and tourist accommodation in Wales? That is economic development.

Paul Valerio

What about the European dimension. If we accept the stronger of the two models will that make Wales's voice in Europe any stronger?

Professor Richard Rawlings

I make two points about that. It seems to me one of the success stories of Welsh devolution is the raising of the Welsh profile in Europe and I think the Welsh Assembly Government has worked very hard on that and rather well. Clearly, we are dealing here with a very fluid position, because of the Convention on Europe, et cetera, and it seems to me that looking forward what you will see is the rise of quite strong regional networks with some very significant regional players inside the European Union, and it seems to me to be advantageous from a Welsh perspective and also, frankly, for there to be a UK interest in countries like Scotland and Wales being as it were more towards the top table in those regional networks, those regional linkages.

So it seems to me that, in a broad sense, mark 2 would underpin and facilitate moves that have actually been going on here under the Welsh Assembly Government.

I do not want to exaggerate the issue. I do not want to say that the justification for the mark 2 model is that it would improve Wales's profile and position in Europe. It seems to me to be something of a consideration.

Lord Richard

Coming back to the retained again, it is fair to say that either under mark 1 or mark 2 the reserved matters are exactly the same in Scotland except for criminal law ones.

Professor Richard Rawlings

Yes, but again --

Lord Richard

The rest is all the same as Scotland.

Professor Richard Rawlings

Yes, but again, your call, it seems to me. My opening gambit was that if I was on the Commission and taking a practical view, I do not think it is really worth the Commission exploring the idea of Wales having powers that Scotland does not have. I think one can frankly start off with the Scottish situation, except, presumably, in relation to the Language, and there may be one or two specific things. So the question then becomes are there areas where there is an argument that it would not be appropriate, or not sensible, however one cares to put it, for Wales to have powers that Scotland has, and it seems to me that those are the key areas associated with the fact that we have a unified legal system in England and Wales, and of course it may be that the Commission thinks that there are other areas which might go into the reserved list. I couldn't think of any but, as I say, your call.

Lord Richard

Thank you very much.

Peter Price

Can I ask just what you might call a useful point about Northern Ireland, and you mentioned the Northern Ireland example specifically in relation to the retained matters. What we could learn from Northern Ireland would really include finding out some of their experience of how in practice people tried to avoid conflicts in those sort of retained matters; how that has been done. It strikes me also that the administration of justice is very separate there and that is another area where we can learn something. The third is that it is the part of the UK where you have proportional representation through the STV. Are there any other areas where you would see the Northern Ireland experience as being distinctive where you can learn something, and especially where it is different from Scotland?

Professor Richard Rawlings

No, those three areas seem to me to be the ones where you might want to look, and obviously I would focus very much on the retained matters type of idea because that goes to my models.

Lord Richard

Can I thank you very much indeed. I think it has been certainly refreshing, challenging and thought provoking. We are very grateful indeed. We even discovered a word that I have never heard of before, on page 6, major home grown or autochthonous development. We have not come across that before. Thank you very much.

Professor Richard Rawlings

Thank you chair and thank you colleagues; it has been a great pleasure.