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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
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In Attendance
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Lord Richard, Chair, Richard Commission
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Ted Rowlands, Richard Commission
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Tom Jones, Richard Commission
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Peter Price, Richard Commission
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Dr Laura McAllister, Richard Commission
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Sir Michael Wheeler-Booth, Richard
Commission
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Paul Valerio, Richard Commission
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Vivienne Sugar, Richard Commission
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Eira Davies, Richard Commission
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Huw Thomas, Richard Commission
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Professor Richard Rawlings
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Proceedings
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Lord Richard
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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.
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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.
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Professor Richard Rawlings
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Thank you, Chair. Good morning, colleagues.
I am Professor Richard Rawlings from the Law Department
of the London School of Economics.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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".
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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.
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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.
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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.
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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".
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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.
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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.
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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.
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I will stop at that point.
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Lord Richard
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Thank you very much indeed.
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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?
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Professor Richard Rawlings
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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.
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That is point 1. Point 2 --
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Lord Richard
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Sorry to interrupt you but you need a new
act?
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Professor Richard Rawlings
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Oh yes, you must be talking in terms
of --
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Lord Richard
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New Government law.
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Professor Richard Rawlings
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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.
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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.
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Ted Rowlands
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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?
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Professor Richard Rawlings
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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 --
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Ted Rowlands
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Power has been transferred.
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Professor Richard Rawlings
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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.
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Lord Richard
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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?
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Professor Richard Rawlings
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Do you mean in terms of --
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Lord Richard
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In terms of practicalities of deciding
what goes into which categories.
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Professor Richard Rawlings
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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.
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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 --
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Lord Richard
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Prisons are a bit more doubtful.
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Professor Richard Rawlings
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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".
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So that is the point about the reserved
matters.
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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.
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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.
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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.
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Lord Richard
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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.
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Professor Richard Rawlings
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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.
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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.
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Lord Richard
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It would be able to do that without Westminster?
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Professor Richard Rawlings
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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.
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Lord Richard
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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.
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Professor Richard Rawlings
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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.
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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.
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Huw Thomas
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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?
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Professor Richard Rawlings
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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.
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Tom Jones
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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?
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Professor Richard Rawlings
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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.
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Tom Jones
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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.
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Professor Richard Rawlings
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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.
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Lord Richard
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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.
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Professor Richard Rawlings
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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.
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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.
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Lord Richard
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A resolution?
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Professor Richard Rawlings
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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:
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"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."
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Lord Richard
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But you are not going as far as that?
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Professor Richard Rawlings
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I am not requiring the consent of the
Secretary of State.
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Lord Richard
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Bur you would require the Secretary of
State to table it?
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Professor Richard Rawlings
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Yes.
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Lord Richard
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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"?
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Professor Richard Rawlings
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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.
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Lord Richard
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He does have to; under your scheme he
would have to.
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Ted Rowlands
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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.
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Professor Richard Rawlings
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Yes.
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Sir Michael Wheeler-Booth
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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.
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Professor Richard Rawlings
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No.
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Sir Michael Wheeler-Booth
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What are your reasons?
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Professor Richard Rawlings
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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.
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Lord Richard
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That is your principles?
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Professor Richard Rawlings
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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.
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Sir Michael Wheeler-Booth
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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.
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Professor Richard Rawlings
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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.
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Lord Richard
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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.
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Vivienne Sugar
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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.
|
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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.
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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?
|
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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.
|
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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.
|
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Vivienne Sugar
|
|
You have just saved 2 years.
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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.
|
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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.
|
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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.
|
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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?
|
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Lord Richard
|
|
Speak for yourself!
|
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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.
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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.
|
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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?
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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.
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So you can clearly construct a constitutional
argument.
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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 --
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Vivienne Sugar
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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?
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Professor Richard Rawlings
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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?"
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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.
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Vivienne Sugar
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Could you give me an example --
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Sir Michael Wheeler-Booth
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They do get far too much money.
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Vivienne Sugar
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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?
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Professor Richard Rawlings
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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 --
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Vivienne Sugar
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You would not need primary legislation
to do that.
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Professor Richard Rawlings
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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.
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Vivienne Sugar
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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?
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Professor Richard Rawlings
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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
--
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Vivienne Sugar
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No, under mark 2 it is under principal
devolved matters.
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Professor Richard Rawlings
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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.
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Paul Valerio
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What about the European dimension. If
we accept the stronger of the two models will that make
Wales's voice in Europe any stronger?
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Professor Richard Rawlings
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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.
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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.
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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.
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Lord Richard
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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.
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Professor Richard Rawlings
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Yes, but again --
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Lord Richard
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The rest is all the same as Scotland.
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Professor Richard Rawlings
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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.
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Lord Richard
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Thank you very much.
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Peter Price
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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?
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Professor Richard Rawlings
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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.
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Lord Richard
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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.
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Professor Richard Rawlings
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Thank you chair and thank you colleagues;
it has been a great pleasure.
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