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COMMISSION ON
THE POWERS AND ELECTORAL ARRANGEMENTS OF THE NATIONAL
ASSEMBLY FOR WALES
MINUTES OF PROCEEDINGS
of the
EVIDENCE OF:
WELSH ASSEMBLY GOVERNMENT FIRST MINISTER,
Rt Hon RHODRI MORGAN
held at
National Museum & Gallery, Cardiff
on
12TH December 2002
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| LORD RICHARD: Thank you for coming. I wonder
if we can start off by asking you to identify yourselves
and colleagues for the sake of the record. Mr Rawlings
we know quite well now, and we shall know him better by
the time we have finished this Commission. |
| MR MORGAN: I am Rhodri Morgan and I am
the First Minister. On my left is Hugh Rawlings. On my
right is Steve Pomeroy. They are my constitutional experts,
and they fill in the huge lacunae in my knowledge of constitutional
law and the relationships between Whitehall in a technical
sense. |
| If you would like me to go straight into
my opening remarks, I will proceed by spending two or
three minutes on what I think are the essential elements
of background that colour my views of the relationship
between the Assembly and Whitehall, the Assembly and other
public bodies in Wales and the key issues which I think
the Commission has been set up to look at, namely would
it work better if it were any different in this way or
that way? My views are coloured by the fact that I have
the perspective of a former Welsh Office civil servant
as well as being a minister and then First Minister in
the Assembly. |
| I say that because of the need to see a
kind of comparison with Scotland and the system that they
have now and to try to work out how different things would
be in Wales if aspects of the Scottish dispensation were
in some way translated into Wales. My experience as a
civil servant in the old Welsh Office in the mid and late
Sixties, early Seventies, and my experiences of the relationship
between Wales and Scotland and Whitehall then were that
the Welsh Office in its early years, the first six or
seven years when I was there, was very much walking before
it could run and was very much an imitative body, not
an initiative-taking body. The psychology of civil servants
in the Welsh Office at the time, until 1972 – I had
no experience after that really, although a bit of experience
when I was with the DTI – was always that in the
Welsh Office it would be assumed that you would get your
promotion, if you like, by keeping your nose clean with
Whitehall, and that Scottish Office civil servants got
their promotion by giving Whitehall a bloody nose, the
complete opposite. That was related, I think, to a bit
of psychology, national culture, but also to the fact
that the capabilities for policy making within the Scottish
Office had been accumulating not only back to the 1870s,
when the Scottish Office had been set up as a separate
department of state, but also really to the separate corpus
of law which had survived the Act of Union and went back
to the Middle Ages and which was clearly not the case
in Wales. So this question of whether to be innovative
or imitative was a very sharp distinction even when I
was a civil servant back in the Sixties and Seventies. |
| That has a bearing on the question of the
Assembly and its powers, and whether, if we had taken
a different model of devolution through the Government
of Wales Act, we would have different, and not just different
but better results now. It was not just a matter within
the Labour party, but obviously that was the party that
I belonged to. There were five or six schools of
thought which produced a compromise which produced the
Government of Wales Act, both as regards what happened
within the Labour party to give us the Act in its original
form, and then a final compromise version which emerged
at the end of the day, with the one major change then
giving clearer ministerial responsibility following the
amendments in the House of Lords. But if you think of
the compromise from within our own party from the late
Nineties, through the election, the referendum and the
bill, and then the Act, I suppose there were five
or six schools of thought. There were those who said there
should be absolutely no devolution – I suppose Llew
Smith would be the most obvious holder of that view, and
he continues to do so. Then there would be the minimalist
view, executive-only devolution or sometimes expressed
more crudely that there would be no devolution in Wales
that gives the new Assembly any greater powers than the
old Glamorgan County Council. That was school two. There
was the third school, which said that we should have an
Assembly and that it should have secondary legislative
powers. There was a fourth school which believed in what
you would call extensive devolution, where you would have
primary legislative power but not tax-varying powers,
and then finally there was the Welsh Labour Action/Scottish
Labour Action school of thought, which I think John Smith
was said to have believed in during his period as leader
of the Labour party, that Wales and Scotland should have
exactly the same dispensation, and that it should be the
model that you can see in Scotland now, namely primary
legislative and tax-varying powers. |
| The interesting point is that the model
which we got was the one in the middle, namely three,
but even within three, you could see two schools of thought.
One was that three would be it and it would remain three,
namely moderate devolution, secondary legislative powers,
and then that could evolve; in other words, it could evolve
if there were an extensive amount of agreement with Whitehall
about the use of Henry VIII powers or some form of flexibility
that might happen over time. But again, looking back to
the history of the old Welsh Office, it did start when
I worked there, and it started as a very small body,
with 250 civil servants. It was really the branch office
of the old Ministry of Housing and Local Government in
1964, with a bit of advisory capability to help Jim Griffiths,
as the first Secretary of State, meet deputations and
delegations over coal mine closures or whatever it might
be, but it evolved over time by the acquisition of additional
powers extensively. Once every five years some major bit
of Whitehall power, Trade & Industry or Education
or Agriculture or Health, would gradually be acquired
by the Welsh Office, so it finished up probably ten times
bigger than it started back in 1964. |
| Would the same thing happen with the Assembly?
Would there be the same evolution, or was it seen as the
guillotine coming down and a transfer from Whitehall and
Westminster to Wales of the kind of ultimate power of
not any longer having one single locus of power of "the
Cabinet", and that within Scotland and Wales you
would have alternative sources of power which did not
have, in the end, to do what the collective decision of
the Cabinet was, but that the process of evolution stopped
at that point, because that was the historic compromise
which you were reaching, if you like; in other words,
you were not going to extend the powers after devolution,
because, for Heaven’s sake, you had got devolution,
and the act of transferring the power away from the Cabinet
and the single source of power was enough, and then it
should stop; no more. Or you could take the other view,
exquisitely described by Jean-Paul Sartre in talking about
de-Stalinisation, when he said, "It is de-Stalinisation
which will de-Stalinise the de-Stalinisers," which
I have never quite understood but which I assume means
that in the end, you cannot stop the tide when it is flowing
in, and if something is flowing, it is better to go with
the flow and it is not a matter of intent, and there is
nothing you can do about it; it is just a fatalistic thing
which just happens, and if you have an institution, it
will acquire additional powers and there will be the tide
going that way. |
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| My last point in terms of the background
coloration here is what happened during the passage of
the Government of Wales Bill, namely we start off with
an executive model in style, a local government model,
if you like, in which power is very much shared across
the political parties, based on committees, pre the recent
reforms of local government. Then the strange thing happens
that the party which stands to lose most from a change,
namely the Conservative party, in the person of Wyn Roberts,
as I recall, in the House of Lords was saying, "No,
this is never going to work. You must have clear ministerial
responsibility among the Cabinet, and you must have clear
functions for ministers, and they must stand or fall by
their decisions. You must inject an element of the classic
parliamentary model into it," and so quite late in
the day really – and it often happens with parliamentary
bills, changes and concessions made in the Lords, which
you will be only too familiar with, Lord Richard –
a bit of the classic parliamentary model is then put on
top of the basic pre recent reform local government Cabinet
structure local government, and probably it is a very
good thing that that did happen, because it would be thoroughly
anomalous now if the Government had legislated to change
local government so as to separate the powers of the executive
from the scrutiny powers of the backbenchers in local
government and that that had not taken place in the change
made in the Lords in the Government of Wales Act, giving
us the hybrid model that we have now, where we do have
ministers – secretaries as they were originally,
but that confused everybody so we changed the name to
minister so that people had some idea what ministers were
there for – but you do have this element of hybridity
in the model in that ministers sit on committees, they
are fully participating members of the committees though
they do not chair them, so that there is this blend, if
you like, of the old local government structure with the
classic parliamentary model. |
| The reason why I mentioned that it was
the Conservative party that brought this in was that,
if you like, the philosophy behind the referendum campaign
was certainly to try and persuade everybody that this
was not going to be a sinecure for hack Labour politicians,
who would be able to walk in there and automatically get
majorities in every election, it did not matter how tempting
the temptations of a monopoly of one-party power going
on into the great blue yonder was, and that there would
be considerable hurdles put in the place of one-party
power, single-party in Scotland, but there had to be,
as it were, an ability to bring the other parties in.
Yet the party that perhaps had the least chance ever of
being in a governing coalition decided that it was better,
for the sake of constitutional clarity of the model, that
there must be ministerial responsibility, even though
it meant that they would probably, for all the historical
reasons that we know of, be least likely to benefit from
that change in the sense of participating in power. Obviously,
being in permanent opposition is just as bad as being
permanently in power in a way, but the constitutional
clarity argument won out over this "Who’s going
to have a share of the power?" argument. |
| In the first three and a half years of
our existence we have attempted to take that one step
further, that clarification of the relationship between
the executive and the backbench role of the Assembly,
the separation of powers, through the Assembly review
of procedures, when again, with all-party backing, it
was said, "What can you do to stretch within the
Government of Wales Act?" and in particular that
first line of the first clause, which says, ‘There
shall be a body corporate called the Welsh Assembly’
to which there is no equivalent in the Scottish Parliament.
The Scotland Act simply says, "There will be a Scottish
Parliament" and does not define it as a body corporate;
it just assumes that parliaments are sui generis
anyway and you do not have to define them. So why do you
have to define the Welsh Assembly? I was never clear
about that, but anyway, it is defined, and that is what
we live with. It is in the law, and that first clause
and everything else is subsidiary to that. |
| Within that, to what degree can you stretch
further, without breaching the Government of Wales Act,
the distinction between the executive side and the backbench
side, the legislative side, the scrutiny side, the democratic
accountability for the decisions side of the Assembly?
That is what we have sought to do now, with all four parties
in support. That is not to say that there are some people
who do not hanker after the old model, the old local government
model, but it would have been thoroughly anomalous if
we had been the only body operating on the old local government
model of committees taking decisions on a committee cycle
when local government itself, on which it was based, had
been ordered by the Local Government Act to dispense with
that model. So I am very pleased that that decision was
made to change the Act during 1998. |
| Lastly, can I make some observations on
the relationship between us and Whitehall. There is a
kind of notional league table, which is not rocket science
to pose in terms of the relationship. This is not really
about legislative rights. It is frequently about working
relationships. Those Whitehall departments with which
we do not compete and have a parallel relationship have
a very good relationship with us, and they have set out
very determinedly to be our Foreign Office as well as
the Foreign Office for HMG and to be our Treasury as well
as the Treasury of HMG, because we do not have a tax-raising
function, we do not have a foreign policy. They have been
very good to us and they have set out very consciously
to be good, and to make it clear to us that we should
never entertain ambitions to have our own foreign policy
or tax-raising function, and I think our relationship
there has been very good indeed. |
|
Then working through the government
departments to those which carry out parallel functions
in England, there is always a much greater tension.
Finally, you have those bodies where there really is
a ragged edge: within transport between road and rail,
where we have some functions. We certainly have functions
in relation to road, and we have a sort of function
in relation to rail, but we do not have a general policy
of clear responsibility. That is a ragged edge. The
police and fire issue, which I think has been referred
to before, is a very ragged edge, and when you are on
different budget timing cycles, it does undoubtedly
cause problems.
|
| My last remark is that some of the problems
are related to the fact that ministers in Whitehall in
the departments where the functions are in parallel to
us frequently think they are not, and as a result just
assume "Wales – oh, that’s devolved. That’s
off my radar screen" whereas the civil servants know
that we are on the radar screen, because they still hold
the budget purse strings or the policy purse strings without
the budget purse strings, as in the case of fire. As a
result, we are held up sometimes by the fact that the
civil servants are taking an interest, which is perfectly
proper, because they know the law and they know that they
have to, but the ministers do not take an interest, so
we go to the ministers and say, "You have got to
sort this out," and the minister says, "What
have I got to sort out? It’s all down to you, isn’t
it?" and we say, "No. We’re having a problem,
such and such." They think it is devolved when it
is not, and their civil servants know it is not, and the
civil servants cannot get it on to the ministerial radar
screen because it is not important enough, but they know
the law is that they have got to, and so they tend to
take a very protective attitude in case they breach some
area where they could finish up in front of the Public
Accounts Committee or somebody for not having indicated
that some resource was not being provided, or had been
provided but improperly budgeted for. That can be the
ultimate ragged edge in the relationship between us and
Whitehall. |
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LORD RICHARD: Thank you very much indeed.
It seems to me that, as the First Minister, you are
in the best position of anybody to be able to tell us
how the thing is actually working at the moment. In
the evidence we have heard from various witnesses, it
is clear that an awful lot of the way in which it works
at the moment depends upon the relationship between
individual ministers in the department here and individual
ministers in the departments in London. It may be that
up to now the Assembly has not been in existence long
enough for there to be major divergences between what
goes on in Cardiff and what goes on in Whitehall. Do
you think those divergences are going to increase? Last
night you said you thought there was going to be a divide.
There are three points, I think. One is how it is working
at the moment, and secondly, do you think there will
be an increasing divide between Cardiff and Whitehall
on the policy side, and if there is, how do you think
that has to be corrected in the constitutional set-up?
|
| MR MORGAN: We cannot control whether there
is a divide or not because obviously we do what we think
is right, and then we will notice that Whitehall is going
down another path. I suppose you could say that is the
emergence of a divide, but it is not the deliberate creation
of a divide; it is simply that that is what happens over
time if there is more than one source of initiative taking
and power. You then turn back to the issue which I raised
right at the beginning of my remarks, namely how capable
is the Welsh machine, if you like, of being innovative
rather than imitative? Although the Welsh Office that
we inherited in 1999 was very different from the one that
I left in 1972 – still a baby really then –
it was not a baby in 1999, but still much less innovative
than the Scottish Office. Therefore, you say, "Let
us not try and develop policies when we haven’t got
the policy-making capability to do it." So that is
a fairly simple point, that you should not run before
you have learned to walk, but I think certainly we are
walking at a fast pace, and we are not stumbling. That
is the really important thing: taking it at a healthy
pace that you can manage, and that is in line with your
innovative capability, and gradually dispensing with the
instinct to imitate that was developed by the Welsh Office
of signing all those bills over all those years, where
it was exactly the same as the Secretary of State for
the Environment and it was the Secretary of State for
Wales instead, with certain exceptions. |
| TED ROWLANDS: You can over-egg this argument.
I think your experience stopped before 1974. If you had
been in the Welsh Office from 1974-1979, for example,
you would have seen a very different mood. I was there
briefly, and the Community Land Act of 1975 or 1976 is
as good a model of a modern dual legislation as you have
in 2002. |
| MR MORGAN: I would not deny that for one
minute. I left on 1 January 1972. I had a lot of dealings
with them through till 1974, because I was still a civil
servant although I was seeing it from the other end, Whitehall.
Not post 1974, as you pointed out, Ted. |
| TED ROWLANDS: One Secretary of State sent
a minute to his minister saying, "Thou shalt justify
conforming. Thou shalt non-conform otherwise." |
| MR MORGAN: Ted and I have had many interesting
conversations on the London Paddington to Cardiff train
about that Act and other things relating to that period,
when we were both Members of Parliament. As I say, I do
not want to over-egg that particular pudding, but I would
still say, relative to the Scottish Office, the policy-making
capability and the instinct, if you like, to be imitative
rather than innovative was still only modestly developed,
and we have pushed that ahead, because it is very important
that people realise that if you are going to be given
this car of devolution, you want to take it out of the
garage for a spin occasionally, and use the powers and
see what you can make of it that adapts the policies to
the needs as you perceive them of the people of Wales,
and then if Whitehall decides occasionally to copy you,
that is fine, because that was our first experience, funnily
enough. The very first bill which we thought that we would
get through the Whitehall machine as a Wales-only bill,
the Learning and Skills Bill, was simply taken over by
Whitehall’s interest in it, and it is not a Wales-only
bill now; it is an England and Wales bill, but essentially
it is a Wales-origin bill although it is not a Wales-only
bill, which is a very odd example. That was proof of Bill
Clinton’s famous remark about the federal system,
with the 50 states in the USA, meaning that you have a
living laboratory, if you like, where you get points of
initiative that can come from anywhere, and if another
state wants to copy what is going in Wisconsin, and so
on, they are free to do it, because you have so many different
examples you can draw from. In the legislative initiative
sense, the Learning and Skills Bill was the last example
that any constitutional lawyer predicting the consequences
of devolution would ever have foreseen, but it did happen
in the first 18 months of the existence of the Assembly,
of a borrowing by a Ministry. That is imitation being
the sincerest form of flattery. We were being innovative,
and on that occasion it was Whitehall that was being imitative. |
| VIVIENNE SUGAR: Could you stay on the Bill
Clinton quote and the federal relations in the USA, and
describe the difference about a United States state having
the freedom to run the car in a different way, and the
question which Lord Richard was asking really was about
what happens when the Assembly wants to do something and
needs the active co-operation of Whitehall to be able
to do it, and that co-operation is not forthcoming? |
| MR MORGAN: I am trying to think of an example.
These are not necessarily about trying to frame bills
now. They may be things which we are doing which are perfectly
within our powers, but where there is an interception
with, say, the benefits system. The Scots have this big-time.
There is no difference between Wales and Scotland where
it relates to the benefits system, because the benefits
system remains a UK preserve. There is the example of
what happened as regards the Scottish introduction of
free personal care, which meant a reclaiming by the benefits
system of Incapacity Benefit on a fairly large scale,
and we were trying to avoid that on the Assembly learning
grants when we brought those in. We had very delicate,
long-drawn-out, quite tough negotiations with the Department
of Work and Pensions before we could get them to disregard
the small number of students that there would be who were
already on either Income Support or on another form of
benefit, but we did not want them to lose that benefit,
in the same way that people do not lose the benefit when
they are on hardship payments and so on. I think it was
fortunate, really, that we were able to look at the Scottish
experience in the classic United States manner and say,
"Right, they have a serious problem, and in a way
they are subsidising the Treasury to some degree now in
paying for personal care which if you were previously
on Incapacity Benefit or some other form of benefit now
comes out of the Scottish budget, not out of HM Treasury."
This was not an idea that we thought we should copy when
we brought in the Assembly learning grants, for obvious
reasons, so we did take a lot of care to use the Scottish
example and not follow it, but it took us a long time
of hard negotiations. |
| LORD RICHARD: With Whitehall? |
| MR MORGAN: With the Department of Work
and Pensions, yes, to make sure that the benefit disregard
was 100 per cent, whereas it was not 100 per cent for
an analogous although different piece of initiative by
the Scottish executive in the previous year. |
| LORD RICHARD: If Whitehall had said no,
that would have been it. |
| MR MORGAN: Nothing is ever final. We might
have been able to find another way round it. |
| TED ROWLANDS: Could you have taken the
matter to the Joint Ministerial Council? |
| MR MORGAN: Yes, that is possible, but that
was not really what I was thinking of when I said there
were other ways round it. That is the formal dispute resolution
procedure, that you can go to the Prime Minister. You
must not do that, because you must not ever take anything
to the Joint Ministerial Committee final court of arbitration
unless you are absolutely sure you are going to win. There
would be nothing worse than setting a precedent in which
the first case that you take to the Prime Minister for
dispute resolution you lose, because you will lose every
subsequent one for the next 50 years. You must make sure
you win the first one, so do not go. |
| TED ROWLANDS: That means you will never
go. |
| MR MORGAN: No. That was not what I was
thinking of. I was thinking more that there would be other
ways of refunding any benefits which had not been successfully
disregarded. It did not get that far. |
| LORD RICHARD: It still raises the same
point, which is that at the moment an awful lot depends
upon the personal relationships between ministers here
and ministers in London, and officials here and officials
in London. |
| MR MORGAN: Yes. |
| LORD RICHARD: So you have to sort out the
problem within the framework you have. |
| MR MORGAN: That is right. |
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| LORD RICHARD: If the framework were different,
a number of questions arise. One is, would it be easier
to sort the problems out? Would the problems not have
arisen in that way? The second thing that I am interested
in is this: nobody is suggesting that Cardiff is looking
for divergences or is deepening differences, but as time
goes on, there are bound to be increasing differences,
it seems to me, between policies in Cardiff and policies
in London, particularly if you do not have to co-ordinate
them at an early stage. |
| MR MORGAN: Yes, I am sure that is true,
but I would not like you to think that this is caused
by initiative taking. The emphasis in the speech that
I made last night was where it was Whitehall that was
taking the initiatives, with us staying in the same place,
if you like, and therefore the deviation, as you described
it, was caused by particular initiatives by Whitehall. |
| LORD RICHARD: It is the existence of it
that is important, not the origin of it. |
| MR MORGAN: No, it could happen. I am sure
it is bound to happen. It is almost inevitable as time
goes by. I do not think one should draw the conclusion
from that that if you had a different dispensation, you
would have a better method of solving problems; in other
words, that problems would arise less because you had
a clearer break. There is an example as regards Scotland.
You cannot get a more semi-detached constitutional settlement
than Scotland has, but nevertheless, the intersection,
say, with the benefits system, which is really still central,
still causes exactly the same problems as are caused for
Wales by the Welsh dispensation. So moving to the Scottish
dispensation, or borrowing a bit of the Scottish dispensation,
would not take that kind of problem away. It just means
it might occur less often. I do not know. |
| TED ROWLANDS: You will have read some of
the evidence that we have been receiving and the illustrations
of ragged edges. Frustrations with the Home Office came
through very clearly. Do you think these are part of the
problems of a learning curve at both ends, and a teething
period? After all, 1999 to 2002 is nothing in constitutional
terms. Or do you think there is something systemic in
the system that is going to continually throw up these
types of arguments and issues that seem very strong at
the moment in the views of ministers or the views of the
Assembly? |
| MR MORGAN: I wish I knew. I think there
is probably a teething element in it, but there is an
argument against that as well really. If it is a teething
problem, then the assumption behind that is that the existence
of the rights and responsibilities of a devolved Assembly
with its own government in Cardiff will actually rise
up the Whitehall radar screen, so that they will have
it on their checklist, and they will say, "You had
better check with them before you do that, because you
are supposed to consult them on this because it says so
here," and that they would learn to do that more
automatically as the years go by. However, the counter-argument
is that they will tend to forget about the existence of
Wales and consider the functions which remain on an England-only
basis, such as secondary education, let us say, apart
from teachers’ pay, and they would forget about Wales
more as time went by. |
| I would not like to express complete confidence
that it is just a teething problem, because what we tend
to find is that ministers – I have never been a Whitehall
minister, so I do not know but I would imagine that they
are terribly busy people, and they have 150 per cent worth
of problems to deal with 100 per cent of the time that
they have, so they are always under pressure. So the thought
that on top of the pressures that they have, they would
like quite happily to spend a bit of time every week thinking
about the implications of what they are doing in relation
to Wales and the Assembly and our policies and so on,
that is the last thing they want to have on their minds.
So the fact that we slip off the radar screen does not
surprise me. But I think we will get paid and they will
get paid for solving the ragged edge problems. I do not
think they are going to go away. |
| MR POMEROY: I think Ted Rowlands is right
in the sense that there was a learning curve that officials
and ministers in Whitehall and here have been going up
very rapidly over the past few years. One thing that has
changed is the tendency that we saw in the first year
of devolution for disputes and disagreements to be elevated
into great constitutional crises. Something happens there,
so it proves that the Assembly is this or proves that
the government is that, and harsh words were exchanged
on both sides on a number of occasions. That is perhaps
a natural tendency to make a large point to mask a detailed
ignorance, whether that ignorance was in Whitehall or
here. There are still certain differences of view that
can become difficult, as, for instance, on Assembly learning
grants and the benefits system, but the negotiation there
is about the detail of benefit disregards. It is not about
devolution or the Assembly’s trustworthiness or the
UK Government’s recognition of our role or anything
like that, so that is certainly an improvement. |
| MR MORGAN: I agree with Steve’s observations
there. The problem in terms of the DWP and the benefits
disregard for the introduction of Assembly learning grants
was getting it into the ministerial box in Whitehall,
because civil servants would say, "Sorry, the Minister
is terribly busy with a parliamentary paper tomorrow or
a green paper or something and that has taken up all the
time and more, and we daren’t put it in the box,"
etc. So it was the problem of getting it on to the ministerial
radar screen, not the fact that it was on the ministerial
radar screen and there was a major punch-up going on because
of a fundamental disagreement of principle. That was much
more a characteristic of something that happened during
1999. |
| LORD RICHARD: Do you believe that? Do you
believe the civil servants when they say "He’s
too busy"? |
| MR MORGAN: I do not know whether to. I
am not in a position to make any other observations. |
| LORD RICHARD: My modest experience is the
better the minister, the less busy he is. |
| VIVIENNE SUGAR: Can we compare that with
the Scottish situation, where we have had evidence that
the Parliament in Westminster is still producing a lot
of primary legislation that affects Scotland and something
called the Sewel device is used? |
| MR MORGAN: This is why I have Hugh and
Steve here, because I still do not understand what the
Sewel thing is. |
| VIVIENNE SUGAR: What I am interested in
is the mechanism for liaison between the Scottish Parliament
in order to deal with this body of legislation when you
are saying fairly clearly that, certainly in the early
days, you could not get a Welsh perspective into ministers’
consideration in Whitehall. Do you know what the mechanism
is? |
| MR MORGAN: I do not think that is what
I said, to be honest. I do not think I was First Minister
at the time, but there were a few fundamental clashes
with one or two Whitehall ministries where there was a
lot of overlap between their functions and ours, for instance,
over whether to concede Henry VIII powers to us in certain
areas. Those very much were bang in the middle of the
ministerial radar screen in 1999, but I cannot actually
give you chapter and verse because I was Economic Development
Minister and slightly off centre, but I picked some of
that up, and it was just about finishing as I became First
Minister. |
| PETER PRICE: Can I pick up from a bird’s
eye view perspective the whole issue of powers. In the
light of your experience in the last three and a half
years, two things. First, how would you sum up the arguments
for and against on the issue of primary powers? The second
thing is, our terms of reference refer to breadth as well
as depth. What areas of the powers of the Assembly at
the moment do you think need to be extended in breadth? |
| MR MORGAN: Those are fairly fundamental
questions. I have tried to describe in my opening statement
really my view on this, but let me try to repeat it and
make it a bit more pointed. The important thing to me
was to observe and assist the process of developing the
innovative capacity of our machine, our machine in terms
of ministers, our machine in terms of committees, our
machine in terms of engagement with civil society to produce
ideas, and then engagement with our civil servants to
turn that into legislative form and then the assistance
that they would get from Whitehall, First Parliamentary
Council and all the rest of it, to knock it into shape
in terms of being a bill and then an act, and the double
scrutiny that it now gets through the draft bill procedure,
which I thoroughly approve of. I was always a strong advocate
of that when I was still an MP, but it does mean everything
takes two years instead of one year, but that is perhaps
an inevitable but not undesirable consequence of the settlement
that we got. |
| Have we moved forward together, namely
built the capacity at the same time as getting the bills
through that we wanted? That is not to say every bill
has gone through, but we think that we have had a healthy
ratio of what we have put in for accepted into the Whitehall
machine. I mentioned the Learning and Skills Bill, the
Children’s Commissioner Bill and the Health (Wales)
Bill. Both the Health (Wales) Bill and the Children’s
Commissioner Bill had a very strange history, as did the
Learning and Skills Bill. There is no such thing as a
standard bill any more. With those bills, half of them
was taken out and taken a year early by being put into
an England and Wales measure and the remainder was done
as a Wales-only bill the following year. That is a bit
strange, but that is the way it happened. Had it been
a year later, we would have objected and been a bit unhappy,
but as they took some of the bills’ most exciting
bits out and attached them to England and Wales bills
so they would go through earlier, you cannot complain,
can you? So the Children’s Commissioner was set up
a year earlier than it otherwise would have been by being
attached to the Care Standards Bill – I cannot remember
the exact title – and that is good, not bad, but
it meant that the bills, when the Wales-only bills eventually
emerged, had been partially filleted by the best bits
going in a year earlier. |
| Is this an unsatisfactory state of affairs,
that we have only had two bills in three years compared
to previously? Is it an unsatisfactory state of affairs
by comparison with a Whitehall department bidding into
the legislative hopper? I suppose probably –
I do not know – that if you add up all the Whitehall
bids in a year, there are probably about 60, and out come
25, 26, 27, depending on the length of the year or maybe
before an election they might have 25 bills but they will
all be very short ones, or maybe 15 bills of average size
if there is an election and you are finishing in May instead
of November. Have we been reasonably treated by comparison
with other Whitehall departments? I think probably we
have. I do not think there is any real basis for a complaint
there. |
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| You could say Scotland have done a dozen
bills a year, where we have been doing one per year, but
there again, Scotland always were doing five a year through
Westminster, so they have only just more than doubled
whereas we have gone up by 500 per cent by comparison
with the previous 25 years. There were four bills, a little
burst in the mid Seventies with the WDA bills and a little
burst around 1994 with the Local Government (Wales) and
the Welsh Language bills. But really, those are the only
Wales bills which went through from 1974 to 1997, 23 years.
That is one every five years compared to five every year
for Scotland. That is the question of the inherited corpus
of Scottish legislation, which always needs modernising
– bankruptcy, fostering and adoption, or whatever
it is – five bills per year from Scotland, Scotland-only
legislation through Westminster. So they have just more
than doubled that to a dozen a year since setting up the
Assembly. So we have had a bigger improvement from a smaller
base, but we must not get too obsessed with the question
of Wales-only legislation when the bulk of the new legislative
power that responds to requests from us is in fact six
clauses here, ten clauses there, two clauses here in England
and Wales legislation, and occasionally a huge corpus
of Welsh legislation as in the Learning and Skills Bill,
which was overtaken by Whitehall wanting it to apply to
England as well. There were over 70 clauses on Wales in
that particular bill. |
| Just a very brief observation. Some of
these areas as regards the ragged edges, in relation to
rail, fire, police, and animal health, and the over 50
megawatt [DN: mW means "milliwatt"] power
stations, the transfer of functions procedure, you could
say in the history of the Welsh Office, in the early days,
the transferred powers were big. There are not that many
of them left now, but they are big in that sense, although
obviously the whole Home Office or Lord Chancellor’s
functions, if you wanted to go the whole hog of the Scottish
functions, would be very big: police, prisons, fire, the
courts. That would be a massive transfer of functions
to the Assembly. I think that may be a long way away,
but some of the ragged edges in relation to police and
fire are of some interest because of the local government
revenue settlement element in which we are involved, or
sometimes we do the revenue and the Home Office or the
Office of the Deputy Prime Minister does the capital,
and that includes the loan charges becomes revenue so
we do not know anything about the loan charges, which
we will have to pay for, because the ODPM has funded the
capital. I think you have heard all this before from Edwina Hart
– but you can see there is a case for transfers of
functions there to tidy up some of those ragged edges,
but I am sure whatever you do to try and tidy up ragged
edges, there will always be others. |
| LORD RICHARD: If you had had a blank sheet
at the point of devolution, would you have tried to do
it on the Scottish model, in which everything is devolved
except that which is reserved, or would you still have
tried to do it on the basis that we have done it? |
|
MR MORGAN: I think that is a technicality
really, to be honest, where you have to take advice
from Parliamentary Counsel as to what was the cleanest
way of actually wording the legislation. I think there
is a separate issue, which is, should the opportunity
have been taken to extend the powers, or should some
of those ragged edges have been tidied up at the time
in relation to police funding, fire funding, regardless
of the policy function? Then possibly some minor adjustments
should perhaps have been made. But you will recall just
how controversial the whole devolution issue was, and
therefore they thought, "Let’s just get devolution
through and get a working system, and then you can look
at these problems afterwards, through a Transfer of
Functions Order." To be honest, I think that was
probably the right way to handle it.
|
| LORD RICHARD: That would get something
through, I agree, but in terms of constitutional euphony,
if I can put it like that, it seems to me an extraordinary
position. |
| MR MORGAN: It is a matter of parliamentary
drafting on which, to be totally honest, I feel totally
unqualified to comment. Everybody was surprised by it
at the time, that we had this marathon Act which specified
what you got, and the Scottish Act was much simpler by
specifying what you had not got. I am not qualified to
comment on the reasons for that, but we were convinced
at the time that parliamentary counsel had spoken, and
they had undoubtedly spoken wisely, and we could not question
that, and that was that. |
| MR POMEROY: To a certain extent it is inevitable
when you are talking only on an executive basis when you
say the Assembly has the power to do this, that or the
other by reference to the existing statutes or the Assembly
does not have the power to do this, that or the other.
You are invariably going to get into detail and questions
as to what is specifically devolved or is not specifically
devolved. The first Transfer Order covered around a third
of the statute book, we think. If you are talking about
another arrangement, it will cover around two-thirds of
the statute book. Whether it would have been any easier
I doubt because of the very painstaking and occasionally
very difficult negotiations. |
| MR MORGAN: I am sure some things inevitably
were left out. We have had a few of those in the period
since. |
| TOM JONES: (In Welsh, then interpreted)
First of all, a comment. This comparison we have heard
before and just now, that Wales has done relatively well
in competition with individual departments of the UK government
in the competition for time for bills and so on, is not
a fair comparison, is it? The Government of Wales includes
all of the individual departments, so you will have competition
within the government for, say, an education bill, agriculture,
health and so on. To compare a state that has already
chosen its priorities as against a single department of
another government I do not think is a comparison that
makes much sense when you compare the Education Department
of the Assembly with the Education Department in London.
You could say they are in competition for a bill. That
is a fair comparison. |
| We are talking of good government, and
what I wanted to ask was what would assist the people
of Wales in the longer term, hopefully. What I want to
know is what you want from us as a Commission. Are you
looking for a short-term solution to certain ills that
exist at the moment? Are you looking in the short term
for suggestions for the next 10 or 15 years in the European
context, or are you looking for certain quick fixes? If
we have to respond to a problem over time by saying, "Here
is the solution to this problem, but first of all we have
to reorganise the power so things will take two or three
years longer to deal with it," are the people of
Wales going to say that it is a drawn-out process that
would have been relatively simple if you had had the powers
from the outset? |
| MR MORGAN: (In Welsh, then interpreted)
First of all, I do not accept your comment that it is
an unfair comparison, but we will leave that. In the second
instance, as far as this question of whether you are looking
for a long-term solution rather than just finding a quick
fix, I think that I am trying to give you evidence from
my own experience. That is all I can do. The intention
– and I can only reiterate this in response to your
question – was that you build capacity to legislate
and to make decisions on the implementation side as well
as you can, and if you do find difficulties, can you actually
solve those difficulties? Do you feel you are being fairly
treated by Whitehall? Maybe not initially, but after discussion
and fighting perhaps, do you achieve your aims or are
there difficulties? Are those difficulties caused by the
system itself? Those are the big questions. |
| All I can say from the point of view of
my evidence is that we are starting by walking, then you
walk more quickly, and then hopefully you can start running.
Do we have the mechanism to allow us to do that without
building that capacity? Do we expect in the medium to
long term to hit the buffers, these barriers put up by
Whitehall when they feel we are cutting across their responsibilities?
I am not sure about that. We cannot anticipate what might
happen, but so far I do think we are pushing at the door.
Most of the time the doors are not open, but they are
not locked, so we do not have to attack those doors with
axes, but we can find ways round most of the difficulties.
Eventually the question arises as to whether you believe
that there is still change required, and is that change
a fundamental change or is it something where you can
have more flexibility within the existing system, or do
you have to change fundamentally? If you do want fundamental
change, will you have to return to the people of Wales
with a referendum, or is there more flexibility you can
find within the existing system? |
| Following the Assembly review of procedures,
everyone accepts that we ought to separate the scrutiny
side from the executive side, and we have done that in
our own actions, but the question as to whether we want
a more fundamental change is the burning issue. Do we
need another change to the Act, and would that change
raise the moral question as to whether we should go back
to a second referendum before taking those steps, or it
is in the spirit of the Act, although it is not implicit
in the wording? Could you make those changes to give us
more scope without changing the Act, and without another
referendum? I do not think the people of Wales are interested
in a second referendum. |
| PAUL VALERIO: We are very pleased to be
here, but we are also interested to know what are the
factors that determine the timing of the establishment
of the Commission? Can you elaborate a little bit on that? |
| MR MORGAN: It arose from the Partnership
Agreement, which was in October 2000, and it was part
of the negotiations which resulted in the signing of the
Partnership Agreement, and, if you like, it arose from
the fact that the view taken by the Liberal Democrat party
had been very strongly in favour of the Scottish model
of devolution. So Labour naturally, having a sense of
pride in their own baby, were quite pleased with the fact
that devolution under the third model, not the fifth model,
had got through, and I suppose you could say a review
was sought as to whether on the basis of the evidence
of the early experience of devolution some sort of different
compromise might serve the people of Wales better. |
| PAUL VALERIO: Do you think perhaps, with
the short time that the Assembly has been in existence,
in view of the good evidence that we have had, would it
not have been better had we waited perhaps a bit longer? |
| MR MORGAN: Before completing your work
or before starting your work? |
| PAUL VALERIO: No, before starting. |
| MR MORGAN: You will have to tell me that
really, as members of the Commission, but we took the
view that it was not unreasonable to use the full first
term of the Assembly to examine whether there was a case
for saying, on the basis of the evidence, that such and
such a problem was a teething problem, such and such a
problem was not a teething problem but a fundamental problem,
that the changes that had been made with all four parties’
support in terms of the so-called classical model, that
is, the split between the executive and ministerial side
and scrutiny and legislative side, which we are implementing,
with the strong support of the four parties in the Assembly,
that that principle could be extended further but only
after an independent review which could look at it in
the mode of taking evidence rather than in the mode of
permanent arguments about whether Wales had been treated
worse than Scotland or whether, as I have said, there
are at least five schools of thought about devolution,
and that is within my own party alone. If you throw in
other parties, you get other views as well. We did not
think it was unreasonable to look back at the first term
by the time the Richard Commission finished its work and
say such and such would be able to work better if such
and such a change were made, on the basis of the evidence
and on the basis of your discussions. |
| LAURA McALLISTER: Can I probe a little
more on the issue of additional powers? In the evidence
you gave to the House of Lords Select Committee you were
very clear about seeking primary legislative powers in
your own opinion, but you also say that you have never
taken the view that we should have tax-varying powers.
Clearly, with a constitutional and legal framework it
is quite easy to separate the two areas, but in practical
terms, nearly every institution that resembles a parliament
in the world has tax-varying powers and particularly legislative
powers, and I cannot think of any one that does not as
a parliament. Could you explain to us why you are so clear
that you would not wish to see tax-varying powers and
whether you can envisage any alternative fiscal arrangement
which would create a framework for accountability? It
is a unique situation, obviously. |
|
MR MORGAN: Indeed. I do not think you
have given a fair account of what I said to the House
of Lords, actually. If I can put it in the context in
which I said it, what I said was that I had always held
the view and did not now resile from the view that we
could have primary legislative powers, and obviously
I have mentioned earlier in describing the different
strands of thought within the Labour party everything
from no devolution, the Llew Smith view, across to the
Wales Labour Action view, which at least one member
of my Cabinet was a member of. So you had a full strand
of opinion. If you ask me what my view was, then I was
of the primary legislative powers but no tax-varying
powers, and then when it was not that but was three,
it was that middle version but possibly capable of expansion
via use of some of the Henry VIII power.
|
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| So those were my views, but we all compromise,
do we not? When you are a member of a political party,
you are not necessarily going to get your way if you stand
under that banner. You are not going to win every time
in a political party. You are going to become part of
a manifesto programme and you stand on it. It is not as
easy as saying, "Oh, yes, now I am in power I want
to chuck away what we stood on as a manifesto," because
you become loyal to the position which actually got through,
and that is part of being in party politics. |
| As for your second observation, to be honest,
I do not know what countries you have looked at,
because as far as I am aware, the German Länder governments
do not have tax-raising powers. They are extremely powerful
legislatively but they do not have tax-raising powers. |
| LAURA McALLISTER: They have local income
tax powers. |
| MR MORGAN: I do not think you are right
about that. My information is that they do not have tax-raising
powers. The German Länder are not tax-raising bodies,
although they are extremely powerful in legislative terms.
Even if I were wrong about that, and I do not think I
am, I have never seen a problem with having primary legislative
powers without tax-raising powers. People see the two
as in some way morally linked; in other words, it is irresponsible
to have the ability to legislate without the ability to
pay for the legislation, but again, the Scottish experience
tends to counter that, in that they have tax-varying powers
and they are not using them. They do not find it necessary
to use them, and they have passed, as I say, some 36 Acts
of Parliament and a few private bills since coming into
being, without use of tax-varying powers that they have.
It tends to make them look like a dead letter. |
| LAURA McALLISTER: To come back on that,
the German Länder clearly are not national parliaments.
They are federal, locally based institutions, and clearly
here we have a national institution in the Assembly which
may or may not evolve into a national parliament. The
other thing I wanted to bring your attention to –
and I am sure you are familiar with it – is the report
the Fabian Society published on taxation and citizenship.
They make the case very strongly there for a link between
taxation and democratic accountability, and they say very
strongly that the Commission believes it to be a principle
of citizenship and democratic accountability that elected
governments should have the ability to determine their
own expenditure levels, taking into account the wishes
of the electorate. What I was putting to you in the second
part of my question was, if you do not have tax-varying
powers, how would you ensure that there are fiscal structures
to determine some kind of independence over your budget? |
| MR MORGAN: Again, to go back to the German
point, I do not accept your dismissing of the German Länder
as being in some way local type bodies. |
| LAURA McALLISTER: They are not national
bodies. |
| MR MORGAN: Their position in the German
constitution is extremely strong. It is a written constitution,
and our finest constitutional lawyers wrote it for them
along with the finest American constitutional lawyers,
but it is one which gives a very high degree of powers,
including powers in international matters and EU negotiations
which we certainly do not have, although we manage to
get round that in the context of an unwritten constitution.
But I do not accept your dismissing of them in that way.
|
| The issue I mentioned earlier is that I
accept that you can run a moral case for associating law-making
powers with tax-raising powers, but, given the lessons
from Scotland, I do not see the basis for saying that
you cannot have primary law-making powers without tax-varying
powers. If they have them, and they do not use them, and
they are passing primary legislation at the rate of a
dozen bills being turned into acts every year, it does
tend to speak for the proposition that you do not have
to associate the two. There is nothing immoral about it. |
| SIR MICHAEL WHEELER BOOTH: Is it not historically
true that the Scottish financial settlement within the
United Kingdom prior to 1997 was exceptionally generous,
more generous per head, in fact, than it was to Wales
and its inhabitants? So the Scottish are in a position
in which they have much more money than you have, but
even they are having trouble, as I understand it, on,
for example, care for the elderly, in financing their
proposals on that. I rather agree with the proposition
that was put, that it does seem odd that, if you are going
to spend a lot of money on care for the elderly, you do
not at the end of the day have to raise or justify to
the electorate raising this money. The same is true of
student fees, education, all sorts of things, where there
has been a difference of view between Westminster, Whitehall,
and Cardiff or Edinburgh. It is the rationale which I
find rather difficult to follow. |
| TED ROWLANDS: No representation without
taxation. |
| MR MORGAN: I know that you can run the
moral case…. |
| SIR MICHAEL WHEELER BOOTH: It is not moral;
it is practical. |
| MR MORGAN: .…that it is irresponsible
to have law-making powers without tax-raising powers,
but I do not think it is right in the British context.
As it happens, we operate in terms of international law.
We do not have a written constitution, so whereas the
German Länder, the Spanish devolved parliaments for Catalonia
and the Basque country – the Basque country in particular
has an extraordinary degree of tax-raising power; even
your income tax is paid to the Basque parliament, and
they give to central government what they think Madrid
is supposed to get, but they do not have rights in international
law. They cannot attend Council of Ministers’ meetings,
whereas occasionally we do, and we have from time to time
even led UK delegations. Why? Because we have all the
flexibility of an unwritten constitution. What goes with
that is that it is not laid down in law that there will
be a resource transferring mechanism specifying that Wales
should get X and that Scotland should get Y and that Northern
Ireland should get Z. It is all dependent on an informal
convention between the Treasury and the former Welsh Office,
Scottish Office, and Northern Ireland Office, which has
survived into a devolved settlement. You might say that
is a nonsense too, but it has worked for 25 years. People
do not want to re-open it. It is a can of worms, so leave
it alone. That is the last thing you want to do just before
devolution. There is always an election in Westminster
or there is an election in Wales and Scotland, so do not
open up this can of worms, because it is working well. |
|
It would never happen in any country
other than Britain, but in a British context there is
no more reason for saying that you should have primary
law-making powers and tax-varying powers and that that
link must never be broken than to say that you should
never have devolution without a prescribed resource
transfer mechanism specifying exactly what Scotland
should get and exactly what Wales should get. We do
not have that. We have an informal convention; that
is all. It is not laid down in law that we should get
the power before the money. That is nothing involved
that says it. There is not even a law that says we should
get any other sum of money either. It is just dependent
on good will and convention. Is that right? It may or
may not be, but it is very British. We do not always
want to open all the cans of worms at the same time.
|
| LORD RICHARD: You draw a clear distinction
between having tax-raising powers and not using them,
and not having tax-raising powers. |
| MR MORGAN: Yes. |
| LORD RICHARD: It seems to me that the Scottish
situation we have, in which you do not use it but it is
there in reserve, in some ways is a more powerful situation
than the one in Wales. |
| MR MORGAN: Did you say more powerful? |
| LORD RICHARD: Yes, powerful from the point
of view of the government in Edinburgh itself, that they
have that power as opposed to what you are advocating,
that you should never have that power. What is the difference? |
| MR MORGAN: I think that the issue that
Sir Michael raised earlier is much more acute for the
Scots, particularly in adjoining areas of England, where
they might say, "Yes, that is fine for the Scots
to provide free personal care and abolish student fees,
but why don’t they use their tax-varying powers to
pay for it? Why should we be cross-subsidising it when
we in the north-east of England are much poorer than they
are anyway?" You can see that is a much more acute
argument because they have the tax-varying powers. If
they did not have them, that question would not arise. |
| VIVIENNE SUGAR: You do not think it will
come up as England moves towards regional assemblies itself? |
| MR MORGAN: Depending exactly where English
regional devolution goes, but certainly stage one of English
regional devolution is very much regional development
agency democratisation, if you like, and we are not talking
about the big, across-the-board transfers of funding for
things like health and education as a result of which
I think for the north-east of England, which is slightly
smaller than Wales in population now that Cumbria has
been sheared off, they would only be talking about a budget
of £500 million to cover the functions transferred, compared
to the £10 billion that we have for slightly more
population, so it is a very different model. Yes, English
devolution at a regional level, if it takes place, if
the dominoes all fall in that direction, the North East,
Yorkshire, Humberside, Lancashire, Midlands, etc, and
it ceases to be a regional development function, devolved
and becomes similar to our powers, then that would pose
the need for what you call the legislation formula for
all the English regions and Wales and Scotland and Northern
Island, which then has to be given a mathematical treatment
by annual negotiations. That is roughly what happens in
Spain and Germany. |
| PETER PRICE: You have talked about the
way in which primary legislation has been achieved, in
your terms quite successfully, through the relationship
with Whitehall, but at the moment that relationship depends
upon the rather benign conditions, indeed positive conditions,
of the government there that actually created devolution
and has some commitment to making it work, and hitherto,
the largely similar parties in power in both places. Suppose
that the differences increased in outlook between Westminster
and Wales either along the lines of the clear water that
you were talking about in your speech last night, or because
following a future general election at some time a government
of a very different political complexion came to power
in Westminster. How could these primary legislative arrangements
serve the interests of Wales in those conditions? |
| MR MORGAN: This is the $64 trillion question
really of the robustness of the settlement in the circumstances
of different colours of governments in Cardiff, Edinburgh
and Westminster. It has obviously already occurred in
Northern Ireland. It has to occur in Northern Ireland
because UK parties do not stand in Northern Ireland and
Northern Ireland parties do not stand in the UK. Stormont
was a complete oddity for the 50 years of its existence.
You can hardly study the Northern Ireland executive for
form yet. I do not think it is a useful example to use,
to be honest. So we do have to face up to that question.
I put it in the past that if the third David Lammy administration
in 2052 or something finally collapses and another party
takes over in Westminster, and Labour are still in power
in the Assembly or whatever, what happens? Is the settlement
robust enough to cope with that? In other words, what
happens when the Assembly says it desperately wants a
piece of legislation and that piece of legislation is
regarded as anathema by a Conservative government that
has eventually come in Westminster? It is bound to happen
some time. |
| I am not sure how different that is in
a way to the problem of the House of Lords now. What you
would need is something like a Salisbury Convention, something
where it is in the manifesto and the manifesto is clear,
and people have won power on the basis of that, and yes,
they do not like it in Westminster but they have to accept
it because it is in the manifesto, so rather similar to
the way we have operated the House of Lords known as the
Salisbury Convention, which has been in existence since
1946, in which the House of Lords agrees not to block.
It holds its nose, it does not like it, but it will pass
it anyway because it is in the manifesto, and you cope
with the fact that you have a Labour government in the
House of Commons and a Conservative majority in the House
of Lords. |
| LORD RICHARD: That is a bit frail. Do not
push the analogy too hard. |
| MR MORGAN: OK. |
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| SIR MICHAEL WHEELER BOOTH: It is a powers
issue on that, because at the end of the day the House
of Commons in 1945, when this Convention was set up, had
the Parliament Acts as a fallback, but in the other case,
between the two governments, the fallback power really
is to Westminster, because they can pass primary legislation
which has in detail what should be done in Wales. So in
a sense, the cannon has wheeled round to face in the other
direction, and although there may be a practical argument
why that should not be done, if you think of some of the
legislation passed by the Conservative government under
Mrs Thatcher in respect both of Wales and Scotland, they
were not very well received, I think. |
| MR MORGAN: Now, you must not frighten little
children in Wales by talking about the return of conditions
like that! I think the important thing in what you are
almost positing is that no country can survive without
a written constitution, and that no element of the British
constitution can cope with changes of government, that
we do not have a procedure which prevents you changing.
You have not got the situation where 75 per cent of all
the states, all the Länder, in Germany must approve any
change to do something regarded as a constitutional change.
I think that is much too extreme a view, and I perhaps
should not have mentioned the Salisbury Convention, but
what I meant was something like the Salisbury Convention
as adapted to the circumstances of devolution. |
| LORD RICHARD: That is a written understanding
of the constitution. |
| MR MORGAN: Absolutely. There is nothing
under the British system that can prevent an elected government
with a parliamentary majority, provided it can get things
through the House of Lords, doing whatever it wants. It
could wind up the Assembly. It could do anything it likes,
to be honest. There is nothing there to guarantee that
that is not going to happen, but you have to say, is this
something we should get worked up about now, or should
we allow the process of time to entrench the institutions
in Scotland and in Wales? We should rely on the fact that
they survived their referendum hurdles, and therefore
without a referendum, one imagines they would not be reversed,
but there is no guarantee of that at all. Yes, never mind
future Westminster governments. They are elected dictatorships
in theory, but do we need to worry about that? It is a
matter for everybody to put their finger in the air and
look across the next 50 years and decide whether that
is worth worrying about or not. I am in favour personally
of a written constitution, and I think once the House
of Lords and Euro issues have been solved, one way or
another, there is a case for saying we have had so much
constitutional change since 1997, with European human
rights and devolution and English devolution and so on,
why not try to write all this down? That is an entirely
separate argument, which could take us a long time to
discuss. |
| TED ROWLANDS: If that sort of situation
arose under the existing structures or the structures
laid down post devolution, that is where the Joint Ministerial
Council will kick in at some stage. If that situation
arose, does a British Prime Minister, a United Kingdom
Prime Minister, have the right to override the views of
the Scottish and Welsh First Ministers in the Joint Ministerial
Council? What is the procedure? It has not arisen, but
if you describe a situation where an issue of that kind
is taken to a Joint Ministerial Council, a piece of legislation
which is anathema to Scotland or Wales and therefore would
trigger the dispute, what is the procedure? |
| MR MORGAN: I am not sure it was envisaged
to deal with legislation, to be honest, but with executive
disputes of some sort. "You are pinching our money
for this, that or the other," whatever argument of
that nature. It has not been put to the test. We have
not had that formal usage of the JMC. It is a convention
which is there in theory but has not yet built up any
custom and practice. We are totally reliant on the evolution
of custom and practice. |
| TED ROWLANDS: What does it say? If a dispute
is brought to a Joint Ministerial Council, it has to be
resolved by a consensus? It does not state that the UK
Prime Minister can overrule his two colleagues? |
| MR MORGAN: No, but if there were a strong
parliamentary majority which urged him to do that, I am
not sure what you could do to stop it, to be honest. It
is not meant to block legislation. |
| MR POMEROY: The JMC does not have any leverage
systems at all. It certainly does not have any decision-making
powers. It is a typical situation where "good chaps"
sit round the table and come to a decision, a consensus.
Ultimately, the power would lie where it lay. If it were
a matter of the UK government wanting to put legislation
through, it could walk away and still do it. If it is
a matter devolved to Wales or Scotland, the Assembly or
the executive could walk away and still do it. It is simply
a forum for consensus and compromise. |
| PETER PRICE: So the best that has yet been
proffered by way of answer to the question "What
would you do relating to primary legislation if there
were major differences between Wales and the UK Government?"
seems to be ultimately to work towards a Salisbury-type
convention, but if you had a Salisbury type convention,
the timescale that would be involved would be lengthy
in getting legislation there, because unless you had quite
precisely defined what it was you were going to try and
legislate about in a manifesto, and moreover, in the manifestos
of parties represented by a majority of AMs in the Assembly,
unless those pre-conditions were there, you would have
to wait till the next Assembly elections and then be able
to start pushing through that legislation. Are we not
talking about a convention that does not exist, and if
it did, a six-year timetable of potential blockage to
get your legislation through? |
| MR MORGAN: I am not sure I have understood
the second part. It is certainly true that there is no
such convention at the moment, because there is no such
problem at the moment. Is the devolution settlement sufficiently
robust to cope with a change of government, either in
Cardiff or in Westminster? As things stand now, you can
see that there could be problems, but how would they be
resolved? You look back at Stormont and it is not terribly
relevant. You look at British ways of doing things in
an unwritten constitution context really. We have always
operated without a written constitution. Nobody would
devise the House of Lords in a written constitution. You
could not have a written constitution until you had completed
the reforms of the House of Lords, so you operate by trying
to devise methods which get round problems, even when
those problems, we think, would normally cause civil wars
in other countries. |
| MR MORGAN: I am not sure I have understood
the second part. It is certainly true that there is no
such convention at the moment, because there is no such
problem at the moment. Is the devolution settlement sufficiently
robust to cope with a change of government, either in
Cardiff or in Westminster? As things stand now, you can
see that there could be problems, but how would they be
resolved? You look back at Stormont and it is not terribly
relevant. You look at British ways of doing things in
an unwritten constitution context really. We have always
operated without a written constitution. Nobody would
devise the House of Lords in a written constitution. You
could not have a written constitution until you had completed
the reforms of the House of Lords, so you operate by trying
to devise methods which get round problems, even when
those problems, we think, would normally cause civil wars
in other countries. |
| LORD RICHARD: This is a plus, is it? I
have never understood this British passion of a constitutional
mess, that somehow or other we muddle through. |
| MR MORGAN: It has had great benefits for
us, it has to be said, because the doors have been half-open,
and when I compare our experiences with those of the Catalans
and the Basques and the German Länder in terms of getting
access to European Councils of Ministers and so on, our
experience has been much, much better than theirs, despite
their having very heavily protected, entrenched, constitutional
positions that are written down and so on. |
I am not sure I understood the point about the six
years.
|
| PETER PRICE: Perhaps I can elaborate. If
shortly after an election you sought to achieve primary
legislation, and were refused, there not being a clear
enough commitment by sufficient parties in their preceding
manifesto, you would have to wait four years till the
next election, and then have the negotiations and potential
blockages, in practice a couple of years to achieve it,
i.e. total maximum six years – it could be less,
of course, but typically somewhere in the four to six
years timescale would be the blockage in the system. |
| MR MORGAN: People will have learned the
trick really of saying you have to be pretty specific
in the manifesto if you do not have a government of your
strength in Westminster. |
| PETER PRICE: Which could change, of course,
during the course of the term, even very shortly after
you have held your election. |
| MR MORGAN: That is conceivable. |
| PETER PRICE: The question is the robustness
of the system, and at the moment it seems that that system
depends very much on a good working relationship between
Cardiff and Westminster. |
| MR MORGAN: Yes, but also, do not underestimate
the power of entrenchment over the years in getting people
to work a system and then to work round ideological differences.
That could happen, yes. Post-war consensus did break down
in the Eighties, as we know, and that is one of the fascinating
aspects of post-war history. Everybody seemed to have
agreed on everything in the Forties, Fifties and Sixties
and Seventies, and then it suddenly stopped. You have
to cope with shocks to the system of that nature. It could
happen again. I do not know. The normal experience is
not there. |
| SIR MICHAEL WHEELER BOOTH: Just to qualify
one of your responses, you referred to the European experience,
that you have done so well in European matters, you have
led delegations. |
| MR MORGAN: I have not, but ministers have,
our Cabinet ministers. |
| SIR MICHAEL WHEELER BOOTH: You have particular
knowledge of Europe because of your own career, but we
have been told that in other areas, which are more domestic
to the UK, some ministers have been pretty successful
and others have not – that is what it has really
come down to – in getting what they wanted for all
sorts of reasons, which have been slightly implied to
us. Does one not have to qualify this success story and
say in certain areas you have done awfully well, especially
Europe and with certain departments, but in other areas
– and one which has been noted is relations with
the Home Office. I do not know whether that is true but
this is what has been suggested – the Welsh administration
has been less happy, less fortunate. That is actually
one of the reasons, I suppose, why we are here. |
| MR MORGAN: Yes, I do not disagree with
that. There are ragged edges and there is a league table,
and the Home Office would probably be quite proud to be
somewhere near the bottom of it. It is one of those things. |
| LAURA McALLISTER: Can we go back to the
issue of powers and finance? I did not feel we had had
a complete answer to the second part of my original question,
which was about what would happen if you did not have
tax-varying powers but you did have primary legislative
powers. You are aware of our terms of reference –
you and your colleagues wrote it for us – and that
is a very important part of our deliberations. What I
am trying to get at is, what would happen if there were
a clash between your policy objectives with the primary
legislation you were seeking to pursue and your financial
capacity? What kind of new fiscal/financial arrangements,
disciplines and so on would be necessary? Looking at the
Fabian Society report, the Commission’s report on
public spending, taxation and so on, there are various
things mentioned there, and a lot relate to local government,
but if you are arguing the case – you see to be from
your House of Lords evidence – that tax-varying powers
are not necessarily linked to primary legislative powers,
what might change? |
| MR MORGAN: I am not trying to argue the
case. I was merely re-stating the position that I had
held in the run-up to the compromise on which my party
fought the 1997 election and the 1997 referendum and the
1999 Assembly campaign, and saying you do not get everything
that you want in politics. But the issue of the range
of possibilities from the one that we have now to the
one that we have now plus some greater flexibility of
the Henry VIII clause implied type, or something of having
the position that I privately held during the arguments,
namely law-making powers, no tax-levying powers, to the
full Wales Labour Action view of tax-varying powers and
primary law-making powers – the Scottish model, if
you like – what is the implication for all of those
of making any change in that range at all? |
| I think your question seemed to be based
on the fact that there is always a quantum of money which
is changed by legislation, and if you have a quantum of
money of X, and you pass a law, then you are going to
need X plus one, or if you pass two laws you are going
to need X plus two, to pay for the consequences of the
laws that you pass. I do not think it works like that. |
| LAURA McALLISTER: It may do, it may not
do. If you do not have powers, you do not have the capacity
to remain in the situation. |
| MR MORGAN: That is right, but if you think
of the Westminster equivalent of that, and you say, OK,
every time Westminster passes a law they may need additional
taxes in order to pay for the consequences of those laws,
it does not actually work like that at all. You raise
taxes, and you engage in public borrowing on what you
regard as prudent, and you estimate what you think that
will be, and the legislative process is quite independent
of that. It is very hit or miss. I think this sort of
fixed quantum idea of the need for a law to either result
in you having an extra million in taxes or 2 million in
taxes is really quite unrealistic, and you cannot find
a parallel for that in the Westminster taxation process
and the Westminster legislative process. I do not think
they move in parallel at all. |
| EIRA DAVIES: First Minister, if I may ask
some questions in Welsh. The first one is about the corporate
body. |
| (In Welsh, then interpreted) With the body
corporate, the powers have been separated between the
Assembly and the Assembly government. How much life is
left in the body corporate? |
| MR MORGAN: (In Welsh, then interpreted)
I do not quite accept the statement. I accept the question
exactly as it has been posed, apart from the preamble,
because the problem is to the contrary, that is, the body
corporate does not mean there is a split. It means there
is no split or separation in the legal sense, and therefore,
if you wanted to take a case before a court of law against
the Assembly, it would be against the body corporate.
You will have seen the use of the phrase "corporate
body" in Scotland, but they are just talking about
the parliament and the new building. They use the phrase
"Scottish Parliament corporate body" when they
consider the parliament rather than what the executive
is actually doing. We have extended or stretched the elastic
as far as we possibly can within the law, but does it
actually entail a fundamental frustration to what we are
trying to do? |
| EIRA DAVIES: (In Welsh, then interpreted)
Is there scope for having separation there then? |
| MR MORGAN: (In Welsh, then interpreted)
Yes, more than now. I would never try to deny that
it is a nuisance that the first sentence of the first
clause of the Government of Wales Act has the phrase "corporate
body" in it. Everybody accepts that there is a nuisance
element to that, and there is not that kind of narrow
definition in the Scottish Act. I am not saying it is
not a corporate body. They have had to develop a body
corporate regarding the parliamentary issues solely, and
everything else comes under the law of the corporate body,
but there is flexibility. We have tried to develop that
flexibility to the maximum, with the support of each one
of the four parties represented in the Assembly. |
| EIRA DAVIES: (In Welsh, then interpreted)
Assuming that there were a split or separation, at present
the subject committees have a dual role: they scrutinise
and contribute to policy formulation. Would they be able
to achieve this work if there were a separation or a split? |
| MR MORGAN: (In Welsh, then interpreted):
I will bring Hugh in to answer that question in greater
detail than I could do. It must be said that the subject
committees themselves, I think, find it inconvenient occasionally
and from time to time, but not all the time, because they
are able to move from the scrutiny role to the policy
formulation role in the same session, with the minister
sitting amongst them as a full member, but the minister
is in the dock during the scrutiny session. Should you
have separate scrutiny session so that everybody understands
that the minister would have to sit as I am now, on this
side of the table, and with the other committee members
on the opposite side? We are not saying that. To be honest,
there are a number of examples you could name where the
subject committee has contributed greatly, for example,
on the Learning and Skills bill that I named yesterday,
as the most important thing that we have accomplished
during the first 12-18 months of the existence of the
Assembly, and recently, from the point of view of the
Economic Development Committee carrying out an inquiry
into sustainable energy and energy generation in Wales.
They are freelancing more in doing that side than they
are doing at present in the sustainable energy policy
study in Wales. We are not responsible for that because
there is much greater freedom to freelance when you are
dealing with a subject that has been decided upon in Westminster,
not in the Assembly government. The subject committee
could have three functions therefore, namely scrutiny,
contributing to the Assembly government policy or the
Assembly corporately, or freelancing from the point of
view of making recommendations in a non-devolved subject
although all the strategic decisions are taken in Westminster
or Europe. Would we be at a loss if we were to change
things? I am not sure. |
| EIRA DAVIES: (In Welsh, then interpreted)
Is it a healthy thing that the minister is part of the
subject committee? |
| MR MORGAN: (In Welsh, then interpreted)
Sometimes it is a disadvantage, and I do not think that
you could say that it has been a total failure, but from
the point of view of the original bill, the Learning and
Skills Bill, certainly the contributions came from a committee
and the government side. They were all contributing together
to a bill and at the end of the day, and Westminster liked
the bill so much that they implemented it in England as
well. |
| MR RAWLINGS: Can I unpack a couple of things
from a historical perspective? First of all, so far as
the corporate body was concerned, can I explain what we
thought we were doing when we said we needed a corporate
body. You have to go back to the fact that this was a
scheme of executive devolution, and that the powers were
being conferred on the Assembly. The Assembly therefore
had to be given legal personality. Ministers have legal
personality; they are corporations sole. Local authorities
have legal personality; they are corporations aggregate.
What we were doing was simply giving the National Assembly,
as the recipient of the functions, the legal personality
to discharge them, to enter into contracts and so on and
so forth. To sue and be sued. That is why in exactly the
same way the Scottish Parliament corporate body has been
established. It is a body which, in the absence of that,
could not enter into contracts, for example, to put up
large palaces at the bottom of the hill there. They are
the body which enters into the contracts. That is their
nature. |
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| There was historically no connection between
that purely legal necessity, as we thought it, and the
question of ministerial membership of the subject committees.
That was motivated by a quite different political proposition,
which was that the Assembly had to be inclusive. Inclusivity
was achieved by, on the one hand, the electoral system,
which enabled a broad range of people to be elected, but
on the other hand, we needed to have within the Assembly
itself mechanisms to enable al the parties to contribute,
and it was therefore thought the best way of doing that
was, rather than having the committees work as they do
in the Westminster context, only tangentially touching
the ministerial policy-making function, to have the ministers
there all the time so that all the parties could be putting
their views to the minister and then the minister reached
the policy. |
| That inclusivity idea, as I say, was a
distinctive political objective at the time, which was
widely shared across the board, I think. I remember when
the bill was going through, no discussion was complete
without the stress on the need for inclusivity, but it
had nothing to do with the corporate body. That was a
technical thing, but where I think we got it wrong, with
the benefit of hindsight, was that we needed to give the
Assembly legal personality so that it could effectively
discharge its executive functions, but that did not really
take adequate account of the Assembly operating in deliberative
mode as distinct from executive mode. That is I think
where the problem was. |
| LORD RICHARD: That tendency has grown. |
| MR RAWLINGS: Yes. |
| LORD RICHARD: And is likely to continue
to grow. |
| MR RAWLINGS: Yes. |
| LORD RICHARD: So the corporate body concept
is going to creak increasingly as time passes. |
| MR RAWLINGS: So much depends on the nature
of the settlement. If the settlement stays as it is, various
inventive ways have been found to make the corporate body
not be a terrible constraint. If you change the nature
of the settlement, if that were the outcome, the corporate
body would presumably go. The corporate body is a consequence
of the settlement; it is not any more than that. |
| TED ROWLANDS: Can we explore that? Let
us say, for example, we are asked to consider the implications
of any change of powers. Let us take the example of transferring
primary legislative powers and look at the consequences
of that on the system. Do I take it from your remarks
this morning that if you grafted, for example, a primary
legislative function on to the committee structures and
the rest of it, that that would make the body corporate
concept creak more? |
| MR RAWLINGS: I suspect it probably would. |
| TED ROWLANDS: In what respect? |
| MR RAWLINGS: I think the question you would
have to ask is from what authority do ministers get their
powers? |
| TED ROWLANDS: Ministers would come and
take the bill through a committee presumably whatever
the system; you do not have to go down the Westminster
system. There will be a lead minister taking a bill through
a committee in one form or another, and that will raise
additional questions over the status of that minister.
Is that what you say? |
| MR RAWLINGS: I think that is right. One
of the other aspects to this is that under our system
at the moment, ministers operate on behalf of the National
Assembly. That is not their relationship to the UK Parliament,
for example. |
| TED ROWLANDS: So if legislation were added,
it certainly would mean some significant change to the
whole concept of the body corporate. It would be the last
nail in the coffin. |
| MR RAWLINGS: It would continue to creak. |
| MR POMEROY: There are different aspects
to that. Not to make any predictions about what Assembly
primary legislation might look like, but at the moment
statutes of any length include powers to make subordinate
legislation. I would say that the proposition that
the Assembly would, in enacting primary legislation, confer
powers on itself is a little bit circular. Take clause
X: "The Assembly may by order do something." |
| TED ROWLANDS: A divorce would have to take
place. |
| MR POMEROY: Yes. |
| TED ROWLANDS: The Assembly conferring powers
on ministers to actually carry out subordinate legislation. |
| MR POMEROY: Which at the moment ministers
do not have, because they are part of the body corporate. |
| LORD RICHARD: De facto, in the absence
of a written constitution, that is what is happening.
It is, is it not? Ministers are pretty autonomous, although
they sit on the individual committees. |
| MR MORGAN: Do you mean in Westminster or
with us? |
| LORD RICHARD: No, here. |
| MR MORGAN: I am trying to think of what
is the legal personality of a minister, and you could
say it is defined by the first clause of the Act, but
on the other hand, what defines the powers of ministers
in Westminster or in the Scottish Parliament? In Westminster
it is custom and practice, deriving from the transfer
of powers from the Crown to the government over the centuries,
bit by bit; when the people stopped being the Lord High
Admiral of the Treasury and becoming Prime Minister, whatever.
It all just happens over the centuries and nobody quite
notices it or challenges it but it just happens, and then
you know, and it is sui generis. Nobody sets it
out; it is never defined. The Scottish Parliament is not
defined. It just says, "There shall be a Scottish
Parliament," full stop. |
| LORD RICHARD: That was not meant to define
anything. |
| MR MORGAN: Absolutely. So why are we defined?
We are, and we have to accept that, but you can un-define
it; you do not have to define it in another way. You just
say these are the same sui generis powers and everybody
understands what they are by custom and practice, even
though they are not set down. They are not set down in
Scotland. They are not set down in Westminster. But they
are set down in Wales, and that is the restriction. |
| TED ROWLANDS: We know there is a body corporate,
and we have created this system. The assumption that a
lot of witnesses have told us is that immediately you
have primary legislative powers, you have to increase
the size of the Assembly. Secondly, it would have an implication
for both the numbers at Westminster and the role of the
Secretary of State at Westminster, because the evidence
that we have received is very much that one of the central
roles of the Secretary of State is being a broker of legislation
between Westminster and the Assembly. Could we explore
the consequences? Do you feel from your experience that
if you had legislative powers transferred, you would have
to increase the size of the Assembly? Do you think that
is an automatic consequence? |
| MR MORGAN: No, I do not think so. It is
not a consequence at all. The right numbers of MPs and
the right numbers to cope with the work and the right
number of Assembly members is a complete mystery to me.
I was an MP for 14 years. My work as a backbencher
doubled in a year, in 1992, with the Child Support Agency,
Disability Living Allowance, and the rise in immigration
cases. I did not know why, but we were snowed under
in a year. You could say, "Twice the number of MPs
then, please, increasing to 1,172," or whatever,
but that is not going to happen. Or you could say, if
you can cope with it on the basis of your 1992 workload,
why was it not previously only half that, with 330 MPs?
It just does not happen like that. It is never as fixed
and clear as that. So I do not see why there is any consequence
that a so-called increase in work equals increase in numbers
required. It is not the experience of the House of Commons
at all |
| LORD RICHARD: That may be so, that there
is no automatic link between increasing the workload and
the number of Members. Do you think you have enough Members
now? |
| MR MORGAN: I do not think it is a problem,
to be honest with you. It is occasionally a problem. I
have heard distinguished backbenchers saying the workload
is far higher for a backbencher in the Assembly than it
is for a backbencher in Westminster, because you are tied
down, you cannot pick and choose what you do, you cannot
decide to run a campaign on X, Y or Z, which you can do
in the House of Commons. Backbenchers in the House of
Commons have the freedom to develop campaigns on subjects
that interest them, and the person concerned, who has
experience of both, said you just do not have the time
to do that. They said there is more work. I cannot verify
that, not having been a backbencher here in this context. |
| Turning to the second half of your question,
Ted, obviously the role would change. The role of the
Secretary of State is threefold, it seems to me. One is
promoting legislation. Clearly, the Secretary of State
for Scotland does not do that, and the Secretary of State
for Wales does, and is the main one in the Legislation
Committee to argue for one bill, more bills or whatever,
or the incorporation of the Welsh clauses in England and
Wales bills. The third function is the financial settlement.
Obviously, the Secretary of State’s function in Scotland
and Wales is identical there. You are promoting the budgetary
interests of Wales and Scotland respectively. |
| TED ROWLANDS: You would lose one of three
functions. |
| MR MORGAN: That is right, yes. Then you
mentioned MPs. I think that is one of these peculiar things
where there is a bit of custom and precedent. It is not
laid down in law, but in Britain we always go on custom
and precedent. When Stormont was established, Northern
Ireland representation was cut by a third, as I seem to
remember. There was no particular reason for a third;
it could have been half or seven-eighths, but it was thought
a third was about right because of Stormont. Again, with
the Scottish Parliament, it is much smaller than that.
About a 15 per cent cut is going through the House now. |
| TED ROWLANDS: The figures given to us were
that if we did the equivalent of Scotland, we would have
to cut 7 Members of Parliament. Do you think that is a
reasonable consequence… |
| MR MORGAN: …of the Scottish model,
the full Scottish model? |
| TED ROWLANDS: Yes. |
| MR MORGAN: I think it would be very difficult
to avoid that if we went for a Scottish model, because
of custom and practice. There is nothing laid down. There
is no mathematical consequence of it to say, "Well,
you will be doing less work, because you would not be
able to ask questions on so many subjects," but with
the Stormont and Scottish precedent, could you ever avoid
that? |
| TED ROWLANDS: The West Lothian question. |
| MR MORGAN: It is arguable that it is a
load of nonsense, but it is very difficult given the British
reliance on custom and precedent, but if it happened in
1922 in Stormont, if it is happening in 2002 in Scotland,
then it would have to happen in Wales if we had the Scottish
model or the Stormont model. I have never been an advocate
of those, so it is not a matter I have ever discussed
with my Westminster colleagues. |
| LORD RICHARD: How does your position differ
from the Scottish one except for the tax-raising? |
| MR MORGAN: That is a fairly fundamental
difference. |
| LORD RICHARD: That is the big difference? |
| MR MORGAN: Yes, but with the Scottish model
you are also talking about the breadth thing. You would
be talking about the prisons, the courts, and the police
and fire and things out of that bag. |
| LORD RICHARD: I thought you were in favour
of fire and police coming to Cardiff. |
| MR MORGAN: That is an issue which you take
on its own. Is the time ripe for an acquisition of what
you might call a major additional function like prisons
and other Home Office functions, policy matters in relation
to police, policy matters in relation to fire, which are
with the ODPM, and eventually administration of the courts?
That is the equivalent in the history of the Assembly
at some stage in the future – do not ask me when
– of some of the major changes that occurred in the
life of the old Welsh Office without the implication for
the numbers of MPs, when you transferred, say, Trade &
industry or Health or Agriculture or Education, which
occurred in the late Sixties/Seventies/Eighties, or whatever,
once every five years. There are not many left now, but
those are the two obvious ones, police and courts. When
it should be done, and what the implications are to bring
us into line with Scotland, obviously that is one of them.
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| LORD RICHARD: You would approve of that
package coming to Cardiff at some stage in the future? |
|
MR MORGAN: I am First Minister. I am
not going to argue for less functions of the Assembly.
Now and again we are offered functions which we do not
take, such as S4C. We were asked did we want the function
of administering S4C and we said no, but there are examples
where we have rejected functions because we did not
want them. There are functions which we got which we
did not ask for but which we did accept, like health
matters relating to prisoners, because that has been
a very longstanding Labour proposal, to have the Department
of Health in England and us in the Assembly looking
after the prisons. We said "Give us the money,
and obviously we will do it," because it is a very
longstanding manifesto commitment going back about 40
years. We could hardly say no to that. But the big stuff
like that is a big chunk to be taken when you think
that the time has come to take that chunk, depending,
again, on what Whitehall and Westminster think about
it. Is that something that you are ready for? It is
not something that was difficult at all. It probably
did not require legislation, Orders in Council for all
the transfers of functions that took place in the old
Welsh Office. I do not think any of those required legislation,
but it is a much bigger issue when it is a transfer
to a different body with a different chain of command
which does not at the top finish up with the British
Cabinet.
|
| SIR MICHAEL WHEELER BOOTH: You have been
arguing very persuasively about the way we do things within
the British Isles. |
|
MR MORGAN: I am First Minister. I am
not going to argue for less functions of the Assembly.
Now and again we are offered functions which we do not
take, such as S4C. We were asked did we want the function
of administering S4C and we said no, but there are examples
where we have rejected functions because we did not
want them. There are functions which we got which we
did not ask for but which we did accept, like health
matters relating to prisoners, because that has been
a very longstanding Labour proposal, to have the Department
of Health in England and us in the Assembly looking
after the prisons. We said "Give us the money,
and obviously we will do it," because it is a very
longstanding manifesto commitment going back about 40
years. We could hardly say no to that. But the big stuff
like that is a big chunk to be taken when you think
that the time has come to take that chunk, depending,
again, on what Whitehall and Westminster think about
it. Is that something that you are ready for? It is
not something that was difficult at all. It probably
did not require legislation, Orders in Council for all
the transfers of functions that took place in the old
Welsh Office. I do not think any of those required legislation,
but it is a much bigger issue when it is a transfer
to a different body with a different chain of command
which does not at the top finish up with the British
Cabinet.
|
| SIR MICHAEL WHEELER BOOTH: You have been
arguing very persuasively about the way we do things within
the British Isles. |
| SIR MICHAEL WHEELER BOOTH: If you think
of the role of the Secretary of State, going back to precedent,
when people have stopped having very much to do, they
generally in the long term have gone or been put together. |
| MR MORGAN: There has been so much talk
of merging the three Secretaries of State, and people
had thought that it might happen post 2001. It did not.
Whether if Northern Ireland became a totally peaceful
area it would then get back on to the agenda, I do not
know. It is probably less on the agenda now than it was
in the year 2000 or 2001, to be honest. |
| SIR MICHAEL WHEELER BOOTH: It would be
in accord with your general approach, would it not? |
| MR MORGAN: I would not resist that change.
Provided Northern Ireland is in a completely integrated,
peaceful, happy state, you can see why Northern Ireland
would not require its own Secretary of State. If you could
find the right person, with antecedents in Ireland, Scotland
and Wales, who would promise to do chapel, church and
so forth…. |
| LORD RICHARD: You would lose your advocate. |
| MR MORGAN: You would have a third of the
time with the advocate. You would not have lost the advocate.
My recent experience, for instance, with the Department
of Work and Pensions over the disregard has tended to
re-emphasise the value of the Secretary of State, and
leaving aside the Northern Ireland problem, it is just
off the agenda, you have to have a Secretary of State
for Northern Ireland. The Good Friday Agreement produced
a sense of euphoria that peace in Northern Ireland was
just around the corner and being able to fully devolve
things to the Northern Ireland Executive and Assembly
does not look as promising now as it looked in 1999. Remember,
they were set up six months before us, but they are back
off the agenda now. Obviously we all cross our fingers,
but it would be a very brave man or woman who would predict
now that Northern Ireland was ready for full devolution,
without having its own Secretary of State. |
| TED ROWLANDS: The other implication is
the financial one. Is there any possible financial implication
arising from any of our proposals? It will be quite difficult
to explore what is going to be a financial implication
of transferring primary legislative powers. The Voice
in Wales: if you look now at those figures, the figures
of the cost of the Assembly, the figures of what the new
Welsh Office was going to be, an extra £172 million –
it is, what, £440 million? It is nearly double. The cost
of additional running costs of the Assembly was going
to be between £15-20 million, and I suspect that has been
a bit of an under-estimate. One would therefore have to
be sceptical about any suggestion that it was not going
to cost very much more to transfer the powers and therefore
create an additional resource. Have you any idea how we
are going to work that out? |
| MR MORGAN: How many additional civil servants
do you need in order to generate more policies and bills?
I would find it impossible to calculate, to be honest. |
| TED ROWLANDS: In our remit you have asked
us to do it. |
| MR MORGAN: I guess that the way to do it
would be to try to get an estimate from the Scots as to
what part of their running costs arises from the function
of generating bills per se, and then you give us
costs related to how many bills you think we would be
generating. I do not know. |
| MR POMEROY: I was speaking to a colleague
in Edinburgh earlier this week. He tells me that the increase
in Scotland has been almost entirely within their Legal
Department. They used to have 50-odd lawyers; they now
have 83. You have to add to that the Lord Advocate’s
Department, which is a separate department up there, in
terms of core legal expertise, but in terms of policy
officials, the extra work has been largely absorbed from
existing resources. That is not hard and fast fact. |
| TED ROWLANDS: They were fulfilling legislative
functions before. |
| MR POMEROY: Indeed, and that is the position,
as I understand it, in Scotland. |
| SIR MICHAEL WHEELER BOOTH: A Labour government
was manna from Heaven for lawyers. |
| PETER PRICE: Can I ask a general question
about process? If you looked at the constraints which
you face day in, day out, what are the main constraints
on achieving the objectives of the Assembly? |
|
MR MORGAN: It is the law of unintended
consequences. It is not the relationship with Whitehall
and Westminster; it is what Harold Macmillan called
"Events, dear boy, events." It is the firefighter’s
strike or foot and mouth disease or Corus announcing
their closure programme, the Hatfield train crash, Cabinet
ministers who cannot agree with each other on who is
supposed to be responsible for what. The function of
Prime Minister or First Minister only exists because
things do not run smoothly, and therefore somebody has
to help to oil the wheels and make sure they run smoothly
or respond to a crisis and decide whether it is a Force
8 crisis, a Force 7 crisis, a Force 10 crisis or whatever,
and you have to get involved and do it. That is what
I am paid for.
|
| PETER PRICE: But you oil the wheels of
a system. What is there in the system that provides the
constraints? |
| MR MORGAN: I do not think I can deliver
some great gnomic proverb to cover the problems of the
system, because I enjoy trying to find a way of delivering
something that does not involve knocking down the walls
of the system but involves operating within the system,
with a lot of creative effort and thought. That is what
I think I am good at, and that is what I think has been
the characteristic of the Assembly, to find a way around
the problems, and by and large we have. |
| PETER PRICE: Is that also true when, for
example, you are putting together your legislative bids,
that they are calculated according to the capacity of
Whitehall or the willingness of Whitehall and Westminster
to accept those bids rather than a reflection of what
in the idea world you would want for Wales? |
| MR MORGAN: I did not think that Westminster
was going to accept the bid for St David’s Day to
be made a Bank Holiday, and I was right, but we had voted
on it and so it was put forward, and it was, after a great
deal of deliberation, rejected. If we had thought, "Right,
don’t put anything forward which you think is going
to cause a fluttering in the hen coops in Whitehall,"
we would not have put that forward, because we would have
said, "Look, on a range of 80 per cent likelihood
of getting passed to 40 per cent likelihood, that would
have definitely have been below 50 per cent," but
it had been voted on, it is an important issue, inevitably,
in terms of patron saints’ days a somewhat emotional
issue – it always is; well, it is not in England,
but in Wales and Ireland it is, less so in Scotland, and
non-existent in England – so we put it forward, but
we knew, because of the disparate treatment, that employers
would say, "Hang on a minute. One day extra off in
Wales. A very bad thing for business in Wales." That
view was then taken by those in charge of the Bank Holidays
Unit within the Home Office or DTI, or whoever runs policy
on Bank Holidays. |
| LORD RICHARD: First Minister, I think you
have been very generous with your time. We have had a
very interesting morning. We have learned a great deal.
Thank you very much for coming. |
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