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LORD RICHARD: Secretary of State, thank
you very much for coming. We are looking forward greatly
to hearing from you. I wonder right at the outset whether
you would be kind enough to introduce your colleagues
so that it is on the transcript.
PETER HAIN: John Kilner is deputising
for Alison Jackson, Head of Wales Office, and Cedric
Longville is our lawyer - he shares that with you, Chairman.
They are here to guide me or answer any detailed questions
that I am not able to.
LORD RICHARD: Would you be kind enough
to open the matter for us and then the Members can ask
you any questions.
PETER HAIN: I imagine that you have all
had a copy of my opening statement which I thought might
be an advantage to you if that were circulated in advance.
If I could take that, with your cooperation, as read
into the record, then perhaps I can just highlight some
of the key points without reading it out because you
will have had a chance to look at it. I think it is
important to begin with recognising that the existing
settlement is working well. I am not saying that it
cannot be improved and I look forward to receiving the
Commission’s recommendations over areas where we
can improve it. I would like to pay tribute to all those
involved in making it work well. It is important to
recognise that the system is quite young and that there
really needs to be a very persuasive case put to justify
radical change and to underpin the case for even substantial
alterations. I think it is important too to acknowledge
from the outset in coming to a conclusion on how you
might proceed with your recommendations that, whatever
is recommended, and whatever is agreed by the Assembly,
as I am sure everybody on the Commission appreciates,
will in the end land up here, a matter for the Government,
and I think it is important to recognise and to be aware
of that.
I have identified several levels of change
which I am sure you have been into yourselves. Obviously
the first level is the organisation of the Assembly
itself and how that is to be improved and that is just
a matter for the Assembly. The second is changes in
the administrative arrangements between the Assembly
and the Government here. We just need to bear in mind
that this would mean consultation with the Scottish
and Northern Ireland Executives and, in principle, I
suppose the Scottish Parliament and the Northern Ireland
Assembly as well, and their agreement would be required
as well as that of the Government here before we could
implement any recommendations. The third level is the
transfer of functions orders which have already seen
four transfers of functions since the original one.
I think it is important that what I call the practical
delivery benchmark test is put: that where a proposal
for a change under this procedure is advocated, then
the question needs to be asked, "how will it benefit
life in Wales"? How will it improve it in practical
terms? I think this practical delivery question is pretty
fundamental and that applies to any changes which are
recommended.
I would hope that the Commission would
also bear in mind the importance of taking into account
the views of Welsh Members of Parliament in whatever
party and the fact that Welsh MPs will need to be consulted
in any subsequent process after your recommendations
and the Assembly’s judgement on them. Of course
the Cabinet as a whole through its Cabinet Committee
procedure would need to take a view on it.
There is final fourth level which might
involve either wholesale reform of or even conceivably
replacement of the 1998 Government of Wales Act and
I think it would be very helpful if the Commission considers
the democratic legitimacy for any changes that might
be proposed, bearing in mind that the current settlement
was introduced following a general election manifesto
endorsement and a referendum. I am not pronouncing on
that myself; this is a matter that I would be interested
to hear your views on as to the democratic mandate for
any substantial or radical changes. I think it is important
there again to especially bear in mind the views of
Welsh MPs in this respect since they would be invited
to introduce any legislation that was recommended or
was agreed.
May I finally say, Chairman, that I am
a great enthusiast for devolution, as everybody knows.
But I do think it is important, both in terms of getting
public support and in terms of winning support at Westminster,
that it is clearly demonstrated how any changes that
come in will actually improve things in Wales rather
than being good, in a sense, constitutional reform for
its own sake. Thank you.
LORD RICHARD: Thank you very much indeed.
I wonder if I could start off by asking one or two general
points. You probably know - I am sure you do, actually
- that we have tried to get individual ministers from
Whitehall departments to come and give evidence to us
and the view has been taken inside Government that only
one Minister can speak and that Minister is you. That
is right, is it not?
PETER HAIN: That is right, yes.
LORD RICHARD: Does that mean that if,
for example, we have specific points to raise on the
relationship of the Assembly with a particular Ministry,
you are the person to whom the question should be put?
PETER HAIN: Yes. That is not to say that
something you may ask me about later on, for example
police funding, we could not invite the Home Office
to supply a Home Office paper on, which either myself
or Don Touhig could then be quizzed on.
LORD RICHARD: But this afternoon it is
you in the chair, so to speak.
PETER HAIN: Indeed and I am speaking
for the whole of the Government. An onerous responsibility,
on an agreed basis.
LORD RICHARD: This time, it probably
is, actually! Thank you very much for that. That establishes
the status. I know that some people here have questions
to ask on conceptual questions as to the role of the
Secretary of State and perhaps we could kick off with
that.
HUW THOMAS: Secretary of State, you said
in your opening remarks that the system is working well
and you also refer in your comments to the goodwill
on the part of those who operate it. One of the consistent
points we have had put to us, and it is one that came
up in the House of Lords report and indeed in other
evidence from various parties, is that one of the reasons
it works well is because the same parties are in power
in both the UK Government and in Wales. I invite you
to consider whether in fact that actually is something
which makes for instability should it move to a different
party in power in the UK.
PETER HAIN: Not necessarily and not intrinsically
because the complexion of the Welsh Assembly Government
is different from ours; it is a coalition. So, there
is already a different regime, if you like, albeit a
majority Labour one, in Cardiff compared with here.
And, before suspension, the Government in Northern Ireland
was not of the same party as ours is in Westminster
and nobody has suggested that that relationship has
not worked well. In fact, it has as far as the delivery
of services in Northern Ireland is concerned at least.
I think one might see perhaps a different style. There
might be more formal meetings of the Joint Ministerial
Committees, for example, than the practice of doing
things informally and very effectively on that basis,
but I think that, even then, ministers would take a
public line that the real business inevitably is done
by face-to-face or telephone negotiation or e-mail or
in writing, I think it is important to acknowledge that
the Memorandum of Understanding was drafted with this
eventuality in mind and that nobody foresees a situation
- though I personally might approve of it - where there
is permanent Labour rule in Cardiff and permanent Labour
rule in London. I think the important principles of
good communication and no surprises, which are embedded
in the culture of government, so that they could carry
a change of administration, since the Memorandum of
Understanding was, as I say, drafted with this eventuality
in mind.
HUW THOMAS: Northern Ireland of course
has to be regarded as slightly different given that
Wales is the only part with executive devolution as
opposed to some degree of legislative devolution in
both Northern Ireland and Scotland. Your predecessor
said that his role was that of not presenting the views
of the Assembly but of presenting the views of Wales
and I am rather puzzled in terms of what kind of separate
legitimacy might be drawn, assuming you agree with that
statement. If, for example, one goes back to previous
Secretaries of State, John Redwood, for example, would
you hold the contention that the Secretary of State
has the role of representing Wales in contrast to the
National Assembly?
PETER HAIN: I think John Redwood was
in a box of his own, an extraordinary box to be perfectly
frank. Compared with every other Secretary of State
for Wales of whatever party, I think you will find that
Peter Walker, David Hunt and William Hague all worked
in an entirely different way from John Redwood. So,
I am not sure that you can design a constitutional system
to account for the John Redwoods of this world.
LORD RICHARD: But it was a Ministerial
box that he was in.
PETER HAIN: Yes, but I think the way
he conducted that post was very different from C
LORD RICHARD: But it was a ministerial
box and, secondly, he was occupying the box and therefore
he had been appointed by the Prime Minister of the day
to do that job.
PETER HAIN: Indeed.
LORD RICHARD: So you cannot just rule
him out as if he did not exist, whatever one thinks
about him.
PETER HAIN: No, but equally I am sure
you are not going to recommend changes which are designed
to get an eccentric Secretary of State.
LORD RICHARD: It is designed to prevent
an eccentric Secretary of State from creating too much
trouble. That would be my view.
PETER HAIN: I think that we just need
to be realistic about this. In terms of the specific
question about speaking for Wales or speaking for the
Assembly Government, there are many quite substantial
areas affecting Wales which are not devolved: tax, social
security, energy policy, macro-economic policy and all
of that range of very important areas. The Secretary
of State for Wales has to speak for Wales on those issues
at least. But I think that, whatever my private views
might be about this or that that the Assembly might
do, those are Assembly matters.
HUW THOMAS: So, if the Assembly had an
express wish to legislate in a particular area or create
changes in legislation in a particular area, do you
see it as your role to second look at those, to go through
it, or would you accept an Assembly’s recommendation?
PETER HAIN: I start off with the presumption
that I am negotiating and representing the Assembly
to the extent that it does not represent itself, which
of course it does to a considerable extent, both inter-ministerially
and between officials with Whitehall. I start off with
the presumption that I want to see the Assembly’s
wishes carried into practice. Then we seek to bear in
mind what interests, objectives and policies there might
be in the relevant Whitehall department that need to
be adjusted to meet the Assembly’s concerns. There
is a bit of give-and-take in the negotiations and often
the Assembly itself modifies its standpoint in terms
of the details, say, of a Welsh only clause in a piece
of primary legislation affecting England as well. That
is my starting point. It is as a friend and advocate
of the Assembly’s position in the Cabinet.
HUW THOMAS: If we go back to the original
White Paper, I recall part of the debate, including
where you have expressed views at the time, where it
was suggested that the Secretary of State might be a
more active participant in some of the Assembly’s
debates, the seat reserved for the Secretary of State
in the Assembly and so on. In practice, that has not
happened and the question is, do you feel that there
is a way in which the Secretary of State could become
more involved or should he become more involved in the
Assembly’s debates?
PETER HAIN: I would always want to be
in a position to help the Assembly and, as you point
out, I do have the ability to take a seat in the Assembly,
not to vote but to be there and to speak, and I have
done that on two occasions in the four months that I
have been in the job in the Queen’s speech where
there has been a routine established that the Secretary
of State reports on the Queen’s speech and then
takes part in the subsequent debate. I would not rule
out if the Assembly wished participation in other contexts.
But my instinct is that it is not really for the Secretary
of State to become involved in Assembly debates and
discussions. That is for the Assembly. That is the general
approach that I would adopt, but, if there were very
good reasons for Rhodri Morgan or the First Minister
calling up and saying, "I would really like you to come
and take part in this debate" for X, Y or Z reason,
then obviously I would want to consider that very sympathetically.
VIVIENNE SUGAR: The emphasis in your
introductory remarks is very much on the practicalities
of any change, what would it mean to the people of Wales
and the tangible benefits, but one of the things that
we have had a lot of evidence about is how difficult
it is for the people of Wales to actually understand
the current settlement. So, I would like to invite you
to talk a little more about the constitutional sustainability
of this settlement. In answer to Huw’s question,
you were suggesting that we should not legislate for
the possibility of another aberrant Secretary of State,
but in fact it is probably the example that figures
most in the popular imagination when people are thinking
about the difference post-devolution, and this issue
of the settlement relying on the goodwill of people
at senior ministerial level, regardless of party, behaving
in a gentlemanly way is not necessarily something that
could last for the next 20, 30 or 50 years. One can
imagine a situation where perhaps the Government of
the day would be seeking to actively frustrate what
the Welsh Assembly was trying to achieve. I invite you
to comment further on that.
PETER HAIN: I think we need to be mature
about this. In practice, even despite the situation
you foresee, the way governments relate to each other
involves formal mechanisms and involves formal procedures
and those are well established. I do not see that you
could justify redefining a system or perhaps going for
a Scottish model let us say - I do not rule out a Scottish
model, I am just saying if that was on the basis that
you went for it or one of the foundations that you went
for it on the basis that you wanted to protect yourself
against a John Redwood ... I do not think that is a
logical or persuasive basis to go for something. The
Secretary of State and the Government in London who
was actively at war politically with the Assembly in
Cardiff is actually going to find it very difficult
to manage Wales and is going to find it very difficult
to have Wales effectively in revolt against London,
as probably it came quite close to being under John
Redwood. I think that the nature of British democracy
in parliamentary politics means that in fact you will
find that the system adjusts to cope with that situation.
TED ROWLANDS: I always thought that you
shared Ron Davies’s view that devolution was a
process, not an event. Therefore, what further process
do you feel could be developed? For example, the whole
history of devolution has been where the burden of proof
has been on those who wish to devolve against a very
sceptical and reluctant Whitehall/Westminster structure.
I think that is not an unreasonable description. However,
since the creation of an Assembly, do you think that
the burden of proof has shifted and that as much now
the burden of proof lies with those who want to resist
any further form of devolution as opposed to those who
want to advocate it?
PETER HAIN: I think by its very nature,
especially for a system so young, it is a process, not
an event, and Government in London and Government in
Cardiff has been learning together all the time, advancing
together. For a lot of the Whitehall departments, that
has been a quite steep learning curve, to be perfectly
frank. However, I think we have gone along quite well.
I take your point about the scepticism for change and
your own account of the experience of the original Welsh
Office is very illuminating in that respect. I personally
am very open minded about the case for change. I think
it just has to be well made and very persuasive in terms
of the practical delivery results in Wales, not just
a tidier constitution of settlement to purists but actually
what difference it makes in terms of jobs and health
service delivery and in school standards and so on.
I think that should be uppermost in our minds.
TED ROWLANDS: You said in your opening
remarks that you would have to be heavily persuaded
about anything that was radical or substantial. Can
I try and search with you what is radical or substantial
and what is less than radical and substantial that you
could go along with. There has been from quite a few
quarters - I have not yet myself decided how representative
these quarters are - a fair chorus of complaint about
the complexity and the confusion of the settlement,
particularly the schedule 2 and the schedule 3 and the
complex way of transferring all the functions item by
item, bill by bill, which you are very familiar with
because we went through some of them in great detail.
PETER HAIN: I remember you asking some
very pertinent questions about them.
TED ROWLANDS: Yes. The argument was that,
if nothing else, we should try to simplify that and
follow what was in schedule 2 where there were fields
of devolution identified and in some ways to go to the
Scottish model of revising that whole system and saying,
"Here are the fields we have already accepted are going
to be devolved" and, instead of having the rather complex
arrangements we have now of going over to a Scotland
Act schedule 5 where you just list the exceptions and
the reserves. Would you consider that kind of proposal
if the Commission were minded to recommend it as radically
substantial or a sensible and practical consequence
of working the system?
PETER HAIN: You are inviting me to open
a rather dangerous door there, I think. My position
is that I am speaking for the existing settlement on
behalf of the Government - we think it is working effectively.
But my position also is that I am very interested, especially
from this Commission, in good, logical, evidence-based
arguments for either the alternative model you are suggesting
or any others. My point really was beyond that. I think
there are different levels of change. There have already
been four functions transferred since the settlement.
So it is already a process, if you like, and there is
a debate at the present time about student fees and
the question of animal health powers. That is a live
issue at the moment. So it is a process already. As
for the route you are inviting me to give a judgement
on at this stage, I would just say that it depends on
the case you make.
LORD RICHARD: Taking into account the
evidence we have received, at a seminar in Cardiff,
for example, which was packed with lawyers, solicitors,
academics etc., I think it is fair to way that the one
thing they were all agreed on was that (1) it is very
difficult to know what Welsh legislation exists and
(2) when you actually get to that stage, the Welsh statute
book is almost incomprehensible. I have not spent much
time looking at the "Welsh statute book" but I think
it is a fair point given the fact that so many of these
powers have been devolved and are dependent upon principal
acts so knowing exactly what the Assembly can do or
cannot do is a very complicated legal exercise. One
suggestion that has been made is in effect to redraft
the statute book, so that you do it in relation to devolution
of subject matters rather than devolution of individual
functions. That does not go down the road of primary
legislation but it would mean that the thing was more
accessible and more comprehensible. I do not know what
your reaction would be to that.
PETER HAIN: My reaction is, make the
case, if that is the case you want to make, and I will
look at it sympathetically.
LORD RICHARD: That slightly puts us in
the position of advocates in front of the judge!
PETER HAIN: To be perfectly frank, I
am not in a position to go beyond what the current Government’s
agreed position is, so I cannot help you at this stage.
But if at a stage in your proceedings you were making
a strategic choice as to whether you wanted to pursue
this path more systematically, in a way that Ted was
suggesting and perhaps you are supporting, and you then
wanted to talk to me about it, then I think we could
have that conversation. At this stage, my remit, as
it were, is to speak to how the existing system is working.
VIVIENNE SUGAR: I am very glad that you
said that because the tone of your remarks here today
is different, it feels to me, to the way I read the
written version. What you are saying is that you are
open to listening and you are prepared to engage further
as we develop our thinking and our ideas and we can
explore in more detail.
PETER HAIN: Of course.
VIVIENNE SUGAR: I am very pleased that
you have said that.
PETER HAIN: I am disappointed, Vivienne,
that you might have misinterpreted my opening statements.
I was just laying out what I thought was a process issue
there and setting down some principles in terms of democratic
mandate and in terms of practical delivery and in terms
of stressing that, in the end, whatever package comes
out of this exercise has to go through this place.
VIVIENNE SUGAR: I understand that but
you say, for example, "You on the Commission may not
have enough information to make such judgements" - it
has to be a two-way process for us to be able to come
to the judgement.
PETER HAIN: Of course.
VIVIENNE SUGAR: We need the information
from you about what the considerations are.
PETER HAIN: Absolutely and I would be
willing to provide you with whatever information you
need, either of a factual kind or in terms of testing
ideas. Yes, I am very happy to do that.
LAURA McALLISTER: Secretary of State,
I too wanted to take you back to some of the comments
you have made in your opening remarks, particularly
those relating to the work of the Commission itself
because, as you rightly said in your opening comments
today, we are fully mindful of the importance of your
role in carrying through the output and outcome end
of our Commission’s work and the Government itself
of course. I just wondered if you could focus for a
moment on the challenge that you lay down for us on
page 3 of your opening remarks paper where you deal
with the issue of practicality of any changes that we
might recommend. You are quite explicit in some of the
challenges that you make there in that, quite rightly
I think for all of us, you are asking us to prove that
any constitutional change that we might recommend is
not only properly costed in itself but also costed in
terms of what it would do for the Welsh economy and
for service delivery in Wales and I hope I can speak
for the Commission in saying that that issue of practicality
has governed most of our deliberations up until now.
The point I would want you to elaborate
on is, what exactly are you asking from us as Secretary
of State because you say there, "How many more jobs
would it create?" and you seem there to be pointing
us in the direction of actual empirical or quantitative
information about how any revised system would deliver
on the ground and I just wonder if that is an entirely
fair challenge to us given that the original White Paper,
A Voice for Wales, does not actually set out
any clear targets and, as I am sure I do not have to
tell you, it is very difficult to measure economic performance
within a short term of operation. Could you elaborate
on that.
PETER HAIN: That is a very fair question
and I do not want to sound too heavy about this. I did
not mean it in that way. Say, for example, it was proposed
to give Wales tax varying powers. Then, quite apart
from the fact that the Scots had a second question in
the referendum on that issue, which is a separate matter
to the one you raised, I would have thought that you
would need to demonstrate the impact on the Welsh economy.
I do not mean an exhaustive quantitative or econometric
analysis. But I think you would need to be able to show,
to have that argument listened to sympathetically, how
it was going to benefit the Welsh economy. I am not
saying that you need to show how many extra patients
would be treated if you gave, say, Wales primary legislative
powers over the health service, to that kind of that
detail, but I think you would need to address that issue
because it is partly a question of how I think the changes
would be viewed amongst the Welsh public as opposed
to the chattering classes. I think they would want to
know: "how is this going to affect my life"? That is
the point I was making, not to suggest that you have
to do an exhaustive detailed targets and detailed predictions.
LAURA McALLISTER: Please correct me if
I am wrong but I think the way that we interpret our
work as a Commission is to help to create a system that
would deliver good governance generally. Economic policy
is the responsibility of a government rather than any
system itself, as well you know, and it is well beyond
our remit as a Commission to determine what a government
would do. In a sense, it goes back to Ted’s point:
where does the burden of proof lie now? Is it with those
who are defending the existing system, its economic
performance, or does it lie with those other people
who are claiming to us that there needs to be some change
to actually improve the service delivery and economic
performance of Wales?
PETER HAIN: I think my point is perhaps
a fairly elementary one, that your Commission is considering
what changes should be made to improve it and, if you
recommend changes, you need to justify them. I am not
saying anything more than that really. I do not think
you have to climb a huge mountain of proof to do that.
If the arguments are persuasive, I think they will be
listened to sympathetically.
PETER PRICE: Underlying that point is
the distinction you made earlier between something having
a practical impact and, as you put it, constitutional
change for its own sake. I wonder to what extent constitutional
change can be said to be for its own sake in the sense
that policy is now being formulated across very wide
areas, education, health and so on, in Cardiff and yet
that then depends upon somewhere else for the decisions
about legislation. Is it not a practical matter that
if in the policy making, which is what really will determine
the outcome, that policy making is split between two
centres and, among other things, different views, different
timescales, and the initial thinking often being constrained
by what can be done within the existing legislation?
Does it not have a very practical impact on policy?
PETER HAIN: Maybe but I think we should
not belittle the achievements of the Assembly so far.
PETER PRICE: I am not in any way doing
that. I am saying that there is this constraint.
PETER HAIN: No, I am not suggesting that
you are but if you look at the achievement, whether
it is free bus passes for pensioners and the disabled
or free entry to national museums or freezing of prescription
charges for under 25s and so on, these are substantial
practical delivery changes delivered within the existing
settlement and I think there is a tendency at the present
time, when the system is only four years old, to actually
skate over what are quite considerable changes that
have been implemented in Wales, to Wales’s benefit
in my view for the most part, as well as also the devolution
settlement. So, I think we can exaggerate the difference
that would be made if, say, you did not have, as you
put it, the decisions being made by a partnership in
two centres - you can exaggerate the difference that
would be made about it. If we were starting from scratch,
we might not start here. But we are not. We are starting
in the context of an agreed settlement endorsed by a
general election and a referendum being operated, I
think, quite effectively and what we are talking about
is how we improve that system either, as it were, in
a marginal way or in a radical way.
PETER PRICE: Can I just follow that through
– supposing that the Assembly has decided that
it wants to see primary legislation. You were talking
about what your approach would be at the stage that
it then comes to you as a request and that you start
with a presumption that you want to help them get it
through. That was the starting point. Then you would
take into account objectives of policies of the Whitehall
department and, at that stage, I put a question mark.
What are the implicit criteria by which you would then
judge when, for example, the Assembly wants to do something
diametrically opposed in policy terms to something that
the Government is wanting to do?
PETER HAIN: The Assembly has indicated
that it is already doing that, say in the case of foundation
hospitals. The Assembly said, "We do not want them"
and our Government, so far as England is concerned,
is saying, "We do". That is a complete diametric opposition.
I think that, in the case of primary legislation, if
the Assembly were to say, "We went to go for a Scottish
model" let us say or something like that with primary
legislation powers, and you were to make that case,
obviously I would look at the case to be made.
PETER PRICE: I was really getting at
how the existing system is operating, not looking at
change, just looking at how the existing system operates
when you get something in front of you which is diametrically
opposed. The one example that has been given is a non-application
of a policy. Suppose that what they want is not non-application
but to do something radically different and that radically
different thing has to have primary legislation or it
cannot be carried out. How do you approach that sort
of situation?
PETER HAIN: You approach it at the present
time. You get a bid from the Assembly for a Wales Only
Bill to do things as we have done already in the case
of a Children’s Commissioner and as we are doing
currently in the case of the Welsh Health Bill at the
present time. That is the way you do it and actually
it has delivered that as well.
PETER PRICE: But all of those examples
are ones where there was no diametrically opposed policy
situation and I am pressing, how do you judge what action
to take in advancing such a bill where it demands of
Government to legislate on behalf of the Assembly for
something which, as regards England, the Government
believes is entirely wrong and wishes to go down a different
route?
PETER HAIN: You have a negotiation. We
have not happily hit that situation yet, but you have
a negotiation. I think that perhaps what is missing
in some of the consideration of this issue is that there
is a process of politics here. In the end, that is the
driving force. There is a process of partnership and
politics. I think that helps to resolve the dilemma
which undoubtedly you are very fairly putting. Even
with a Scottish Parliament, operating the Scottish system
has shown that, with primary legislative power, some
things will have to be done in partnership with the
Government of the United Kingdom. Scotland has not just
been able to go off on its own, it has often had to
do things by agreement.
PETER PRICE: Amongst the ways in which
devolution has worked well, you have talked about the
no surprises principle and have suggested that this
is something that applies irrespective of government
change and that you would need to carry on with that
sort of principle. No surprises means very early disclosure
of major new policy developments. If the two governments
were not of the same political colour, such a disclosure
would mean that it would impose, shall we say, a very
heavy burden of confidentiality perhaps beyond what
you might expect to be fulfilled. Does it not mean that,
in practice, that principle would come at the very least
under huge strain and probably be unrealistic in some
cases with governments of a different colour in Cardiff
and London?
PETER HAIN: Where is the logic of that
argument taking you? It is taking you down a position
where in fact you have separatism, is it not? So long
as you have a United Kingdom and so long as you have
constituent nations on that United Kingdom and so long
as we are part of this entity together, whatever it
may be that is reserved is going to involve these potential
arguments and I think what we are talking about here
is embedding and establishing a culture, a partnership
in negotiation, in order to resolve issues of difference.
You asked earlier what would happen if Wales decided
to do something that was diametrically opposed by London.
We had an example of that which was the issue of community
health councils where there was a bill brought through
which abolished them in England and the Assembly said,
"We are not having any of that, we are going to keep
them in Wales." So, there is actually something absolutely
in direct conflict, not just not suspending, as it were
not applying something which you could argue is the
case of foundation hospitals, but actually keeping something
that is abolished in England.
HUW THOMAS: If you take that example,
to work through that process required a delay of about
12 months because the same bill could not, for various
practical purposes like that they did not want to argue
with Westminster to abolish and create in the same bill,
so to split and, 12 months later, the bill went through.
That actually does not do much in terms of timorous
application of policy in Wales, does it? It actually
says, "Yes, good idea Wales, but it will have to meet
our timetable."
PETER HAIN: With all these things, it
is give and take, is it not? I do not know what the
alternative model is that you have in mind that would
avoid that problem. But no doubt in the fullness of
time, this will be revealed to me.
LORD RICHARD: It is a process!
PETER HAIN: Can I make another point.
There is a different political complexion of the setup
of decision making in Europe, which heavily determines,
almost year by year more determines, what we can do
and what does happen in the United Kingdom and what
happens sometimes separately in Wales from England and
so on, and we live with that on the basis of partnership
and negotiation.
LAURA McALLISTER: Is it not the case
that the European example is an interesting one that
you add in there because, largely speaking, that is
an inter-governmentalist approach in the main, but is
the not the case when we talk about devolution in the
United Kingdom that because of its asymmetrical nature,
certain constituent nations will be less powerful in
terms of negotiations with the centre or with Westminster
or with Whitehall than others and that if the Assembly
is always perceived as being a petitioner to Westminster
for time and everything else, that it might feel that
it is not getting the same kind of parity of interest
and time that the other bodies are getting where necessary?
You mentioned the Scotland case with Sewel motions and
so on.
PETER HAIN: That has not been the case
so far. Welsh Ministers have sometimes spoken for the
United Kingdom Government in the European Councils and
Ministers meetings and I have not had anybody say to
me during the four months I have been here, Rhodri Morgan
has not said to me nor has any Cabinet Minister nor
has any Member of the Assembly that we think our voice
has not been heard in Brussels or that our voice has
been less loudly heard in Brussels than Scotland’s.
On the contrary, I think people are pretty bullish about
Wales’s voice being heard in Brussels.
LORD RICHARD: I am not sure whether I
am coming back or turning to some of the legislative
process. Do you have guidance note 9 in front of you
which I think is one of the annexes to your written
submission? Annex B, the Devolution guidance note 9.
The other two things, since we are sorting papers out,
is the Government’s response to the Norton Committee
report and the Rawlings principles which are on page
37 of the Norton Committee report itself. If you look
at guidance note 9, this is what it says, "The UK Government
has agreed with the Welsh Assembly Government that they
will normally consult each other from an early stage
on the development of relevant legislative proposals,
in confidence where necessary". That is clearly sensible,
is it not?
PETER HAIN: Yes.
LORD RICHARD: "The Welsh Assembly Government
should always be consulted on Bills that confer new
functions on the Assembly; alter the Assembly’s
existing functions; or otherwise affect areas which
are the responsibility of the Assembly." Again thoroughly
sensible as indeed are the other two parts of Guidance
Note 9. That on the whole is a sensible document.
PETER HAIN: Yes.
LORD RICHARD: In the response of the
Government to the report of the Norton Committee, the
Government says this at paragraph 21, "The Government
agrees that greater consistency is desirable in the
way in which legislation in the Bill is framed and will
consider whether it would be appropriate to expand the
advice in devolution guidance note 9", which is the
one I have just read out. In what circumstances would
the Government think it appropriate to expand the advice?
PETER HAIN: Where it seemed sensible.
LORD RICHARD: A nice circular argument
but, in practical terms, does the Government have anything
specific in mind in relation to that? Do they say, "Here
is a gap and we think it should be expanded?" Otherwise,
it is a strange sentence to find in the Government’s
response.
PETER HAIN: I thought it was more of
a commonsense position, that we would obviously do that
if it were necessary.
LORD RICHARD: Do you mean that it does
not really mean a great deal?
PETER HAIN: No, it is meant to show a
commonsense, practical and pragmatic response.
LORD RICHARD: It says "will consider".
PETER HAIN: Yes.
LORD RICHARD; Not "might".
PETER HAIN: Will consider it where there
is a need arising.
LORD RICHARD: The final sentence in that
paragraph 21 is a principle set out by Professor Rawlings
of a useful contribution to the consideration of these
issues. If you turn to the Rawlings principles themselves,
which I am taking from the Norton Committee report on
page 37, I would really like your comments on them individually.
The first one is, "The Assembly should require any and
all new powers of the Bill where these relate to existing
responsibilities." That must be right, must it not?
PETER HAIN: Yes.
LORD RICHARD: "Those should only give
a UK Minister powers which cover Wales if it is intended
that the policy concerned is to be conducted on a single
England and Wales GB UK basis."
PETER HAIN: I think in broad terms, yes.
LORD RICHARD: What are the narrow bits?
PETER HAIN: If somebody discovers one,
it makes the exception, then obviously we would consider
that in a sensible fashion.
LORD RICHARD: That is a protective answer.
PETER HAIN: Indeed.
LORD RICHARD: "Bills should not confer
function specifically on the Secretary of State for
Wales. Where functions need to be exercised separately
for Wales, they should be conferred on the Assembly."
PETER HAIN: Yes.
LORD RICHARD: Again, that follows, it
seems to me, from the previous two and again makes a
great deal of sense.
PETER HAIN: As you know, the Government
of Wales Act set all this out.
LORD RICHARD: Well, not quite. It got
near it. Anyway, do you agree with it?
PETER HAIN: Again, in broad terms. In
general terms, what I would say about Rawlings is that
they seemed to describe the current process rather than
prescribing anything totally different.
LORD RICHARD: Not quite.
PETER HAIN: Then you are about to illuminate
me.
LORD RICHARD: I think there are one or
two differences. Number 4, "A bill should not reduce
the Assembly’s functions by giving concurrent functions
to a UK Minister imposing a requirement on the Assembly
to act jointly or with the UK Government Parliamentary
consent or dealing with matters which were previously
the subject of the Assembly’s subordinate legislation."
In other words, you should not call it back. Again,
that seems to me to be thoroughly acceptable.
PETER HAIN: In broad terms, yes.
LORD RICHARD: Then the next one, "Where
a bill gives the Assembly new functions, this should
be in broad enough terms to allow the Assembly to develop
its own policies flexibly." Is that all right?
PETER HAIN: Yes, so far.
LORD RICHARD: "This may mean, where appropriate"
and I assume that the word "appropriate" is defensive
stuff again, just in case, "giving the Assembly enabling
and supportive legislative powers different from those
given to a Minister to exercise in England and/or which
proceed by reference to the subject matter of the Bill."
Do you agree that, in respect of new functions which
are going to be devolved or given to the Assembly, they
should be given almost this enabling legislation which
gives the Assembly maximum flexibility?
PETER HAIN: It is in a sense running
into the next principle of ruling, the Henry VIII powers.
LORD RICHARD: It is a bit of both.
PETER HAIN: Yes, it is. The general sort
of stance I would take is that that is right for consequential
changes, in other words changes to other bits of regulations
or legislation that, in a sense, are followed through.
LORD RICHARD: It actually refers to new
functions.
PETER HAIN: New functions presumably
being...
LORD RICHARD: "Where a bill gives the
Assembly new functions..."
PETER HAIN: Yes, indeed, but again there
is a question of the knock-on effect on existing legislation.
That is the point being made there, I think, is it not?
LORD RICHARD: That is the point you are
making there.
PETER HAIN: Just to clarify what I think
we are discussing. If you have new legislation containing
new functions and it has already been applied, the Assembly
has effectively given Henry VIII powers to change other
primary legislation by regulation. That is the point.
LORD RICHARD: That is my fault, I was
still on number 5; I had not actually read down to number
6. The interesting thing about number 5 is where it
says, "Where the Assembly is given new functions" then
they should be in very broad terms and in effect should
be almost an enabling thing - a skeleton structure giving
the Assembly the power to legislate as basically they
want to legislate in respect of that particular function.
PETER HAIN: I think I would like to see
that argument made by the Commission if that is what
you are advocating.
LORD RICHARD: Rawlings has made the argument.
PETER HAIN: He has asserted it; he has
not made it. I would want to see what the framework
approach to legislation actually argued for.
LORD RICHARD: It is a question really
of how you see the Assembly, is it not? You do not need
a detailed argument on it, I would have thought. What
it is saying here is that, if you devolve functions
and powers to the Assembly, they ought to be responsible
for doing it and for filling it in and doing it in the
way they want to and not the way Westminster does it.
PETER HAIN: Indeed. I am sorry. There
is no disagreement on this point.
LORD RICHARD: Well, number 6; what about
Henry VIII? Do you have problems with Henry VIII?
PETER HAIN: It depends what the situation
is. If you are thinking simply for consequential changes,
the point that I was beginning to make earlier on, then,
fine, this is done routinely in a number of bills. For
example, the Education Act 2002 gave the Assembly substantial
powers to modify the curriculum in Wales. Then you look
at something like the Countryside Act which changed
the highways legislation and there were some areas of
highways legislation - I think I am right in saying
certain traffic controls - which are not devolved. So,
in that situation, you would not grant a Henry VIII
power, as it were. Provided that kind of distinction
is made, then I am not going to argue substantially
with point 6 of the Rawlings principles.
LORD RICHARD: And point 7 is that the
timing of commencement which in effect should be in
the responsibility of the Assembly in respect of bills
which relates to its responsibility. Again, that is
a practical matter which on the whole seems to me to
make sense.
PETER HAIN: Absolutely. That is why I
said that I think for the most part these principles
are a useful description of the kind of approach which,
in practice, tends to be followed.
TED ROWLANDS: Moving away from the procedural
to the political and practical, could we reflect on
the experience of devolution and the way the legislative
process has worked. I have very little personal experience;
I have just had one, the Education Skills Bill, but
there has now been a whole succession of bills, the
Welsh Provisions in England and Wales Bill and the current
one, the Planning Bill. I can see why we have had evidence
from Ministers in the Assembly saying that this is quite
a good system, that it is rather good, and we have had
it from yourself and others from the Westminster end
and the Whitehall that it has been pretty good, that
the consultation and the process of developing the legislative
proposals between two governments have been okay. Where
I think there is a much more serious question is the
degree of scrutiny by the Members in both places of
that legislation. Perhaps I speak out of turn because
I am no longer a Member, but I felt it myself in the
one and only bill I dealt with, and that was being told
repeatedly by Ministers from the front bench that this
was a done deal between the Assembly and the Government
and how dare you, Rowlands, suggest an amendment to
this particular provision or that particular provision
because this is an agreement. Welsh Members on the back
benches will disobey that order, but nevertheless it
is the new compelling argument and therefore reduces
and rather demeans the role of the Welsh Member at Westminster
and the whole legislative processes. I have not had
a chance to check through the subsequent experience
but we were given evidence at the Committee stage of
the Planning Bill, where there was a very distinctive
Welsh element and there was not a great deal of disagreement,
at the end the two governments agreed, and it is an
excellent example of an England and Wales Bill with
a clearly defined Welsh provision to it, but where the
scrutiny of it by Committee, by back benchers consisted
of opposition Members saying, "Why is it different?"
and the Minister saying, "This is an agreement between
the two governments." I just wonder how long that can
be satisfying for a Welsh Bank Bencher at Westminster
and indeed at Assembly level too. There is quite a lot
of evidence that the Welsh Assembly Members and Back
Benchers in the Commons have not really had much of
an effective say or proper scrutiny. Going back to your
practical test, do you think that the system is actually
working sufficiently well to justify this dual role
and yet from a parliamentary Assembly scrutiny point
of view could actually be less effective than the old
system? I am sorry that it is a long question.
PETER HAIN: I think it is a very important
one. The key point here, which goes to the heart of
your question, is the question of pre-scrutiny. Pre-scrutiny
is something which we are increasingly encouraging and
applied in the case of the current Wales Health Bill,
which was actually changed, not radically, but had a
whole series of changes: it went into the pre-scrutiny
process and came out in a very different form and I
think that has allowed back benchers here, as well as
Assembly Members, but especially back benchers here,
since that is the particular point you were addressing,
a real and substantial role, and the Welsh Affairs Committee
played a part in that too. I think that provided we
can see pre-scrutiny as a principle that is automatically
followed unless there was some emergency that prevented
it.
TED ROWLANDS: It is interesting that
you should say "... automatically followed unless there
is some emergency..." because the whole history of the
pre-scrutiny has been on bills where the party lines
are not being drawn.
PETER HAIN: That is true.
TED ROWLANDS: Pre-scrutiny on a controversial
bill has never been tested really seriously and are
you saying in fact that, in order to make this partnership
as you have described it, a legislative partnership,
work, even on controversial bills, there should be a
high degree of pre-bill scrutiny of the kind we have
seen in one or two examples on non-controversial bills?
PETER HAIN: I take your point but I think
the first starting point is that bills are Wales only
bills that the Assembly is bidding for and we saw that
with the Welsh Health Bill and I think that, when we
proceed with a Welsh Audit Bill, as we are proposing
to do, then that will be subject to the same procedure.
These do not fit into the controversial box.
TED ROWLANDS: No, they do not.
PETER HAIN: I take that point. In the
case of the wider framework, the wider sort of government
programme of legislation, I am personally very keen
on pre-scrutiny, I think it makes for better legislation
as well as for giving Welsh MPs, in this specific context,
a much more tangible role and I think we should try
to apply this principle as widely as possible.
TED ROWLANDS: From your conversation
with your back bencher colleagues, how satisfied or
unsatisfied are they at the moment with the way the
process is occurring?
PETER HAIN: They are a lot more satisfied
than our Scottish colleagues about their role here.
TED ROWLANDS: Because they feel they
still have a role?
PETER HAIN: You could say that! I think
that is the first point to make. I think my colleagues
feel out of the picture as far as what the Assembly
is doing. They have to take the consequences including
standing at elections for re-election where effectively
the voters are voting on things like health and education
typically, they feel without really substantially being
able to influence a lot of the key decisions whereas
Assembly Members might feel, "Why don’t we have
the primary legislation to do it all on our own?" So
I think there is a process of accommodation that we
need to work through rather more substantially there
and I do not think particularly those Members of Parliament
who were here before 1999 find is as satisfying as it
was before then. But then that is inevitable and then
I think many are focusing on other things particularly
UK level reserved power matters.
LAURA McALLISTER: Staying with that question
of scrutiny, what is your opinion on the issue of joint
scrutiny between Assembly Members and Welsh MPs? That
was suggested by several people to the Lords Commission
and to the Welsh Affairs Select Committee and clearly
it is not permissible by current standing orders on
Select Committees; is that right?
PETER HAIN: I think that is right.
LAURA McALLISTER: It does not allow non-MPs
to sit on Select Committees.
PETER HAIN: Yes.
LAURA McALLISTER: In principle, would
that be a way?
PETER HAIN: That does not stop something
being done informally. This is an area that you wanted
to look at, so that might be welcomed.
LAURA McALLISTER: It may be a way of
including more of the back bench as Ted referred to
them, AMs, who feel that currently they are being excluded
from the scrutiny route.
PETER HAIN: I think that is something
that should be explored, yes.
PAUL VALERIO: I noticed early on this
morning on the monitor that the Lords were discussing
devolution in England and it occurred to me what the
implications of this are for the rest of the United
Kingdom and Wales in particular - the sort of thing
I had in mind is the financing of the various regions
of Britain in any future legislation. We have gone along
with the Barnett formula as being an integral part of
it at present, but would this mean that we would have
a different system of funding and that that would lead
to tensions between the regions?
PETER HAIN: I am not advocating a change
in the Barnett formula and I think that if anybody were
to make that case, it would have to be a very, very
convincing case to avoid the kind of situation you have
in local government, which is a pretty difficult negotiation
almost on an annual basis, or even if you did it in
terms of the comprehensive spending review every two
years, I cannot see that Wales would be in a strong
position in that situation.
TOM JONES: You said at the beginning
that you speak on behalf of Wales on energy matters
for example as a non-devolved issue and it is this confusion
again amongst the electorate about issues which do not
fit in nicely and neatly into compartments and, for
example, wind farms in your constituency is one of those
issues where it seemed to take for the electorate in
Wales an awful lot longer for an issue to do with wind
farms than for comparative people living in England
in the sense that there is a planning process and there
is a devolved responsibility in environmental matters
and then suddenly a large scale wind farm application
becomes an energy responsibility. My question really
is, in terms of the Wales Office responsibility in a
non-devolved matter, how do you see a role? Is it a
role of actually being a watchdog and making certain
of the Welsh interest on an energy issue is dealt with
by Assembly officials or by local authorities with the
correct department in Whitehall and that you just intervene
where necessary or, do you see your role as making certain
that the quality of Welsh input or Welsh advice on an
energy issue as a non-devolved issue is as great as
a devolved issue in terms of environment, for example,
where there would be a proper consultation process at
local authority level and with certain bodies? In other
words, do you have the capacity in the Wales Office
to make certain that non-devolved issues are dealt with
in terms of knowledge from Wales as well as devolved
issues?
PETER HAIN: Yes, indeed. The case of
energy, obviously the Department of Trade and Industry
and specifically the Energy Minister is in the lead
on that but I would make my views clear and have done
so. I think it is a combination of a role here. Take
the Energy White Paper. I sat on the Cabinet Committee
that deliberated on that and compared with a lot of
the Cabinet committees that I guess you would have sat
on, Chairman, which are frankly a bit of a waste of
time in the sense that they are purely formal proceedings
and people are just reading out from prepared briefs,
a necessary part of the process but not real meetings,
the DAN, as it is known in Whitehall jargon, Domestic
Affairs N Committee was a very lively one. There were
some real arguments and real discussions and hard choices
to be made. I went to that both with my own views as
a former Energy Minister but also bearing in mind Wales’s
interests. So, there is a very good example of the role
of the Secretary of State being rather important.
TOM JONES: The question was, where do
you get the input for your interest? In that particular
case, you had previously experience, but actually providing
the input into the debate if you did not have the knowledge
on the subject. Do you have a capacity within the Wales
Office or do you borrow capacity from the Assembly?
Where does your advice to provide the Wales view come
from?
PETER HAIN: I have a very limited capacity
in the Wales Office: I have 55 staff and some very good
policy staff, but it is very limited. In fact I remember,
if I may spill the beans on this, as a Welsh Minister
having an argument with both my Secretaries of State
then, Ron Davies and Alun Michael, as to the size of
the Wales Office and I said that the original 25 size
was not sufficient and was proved right. There is a
capacity there for policy advice as I have got expert
advice from our senior policy official on energy for
that committee. I have to rely on alternative advice
as well because she was very stretched, but I also talked
to Andrew Davies, the Economic Minister in the Assembly,
and Assembly views were fed through to me all the time.
Say on the reform of structural funds proposed by the
Chancellor and the Secretary of State for Trade and
Industry, again there, Assembly views were fed in and
I and our officials were involved in that but we made
our own input as well.
LORD RICHARD: Did you assess the Assembly’s
views and, if so, according to what criteria? Was it
a matter of, the Assembly said this but we, on the other
hand, will take our own line and will not necessarily
agree with the Assembly? How do you assess the points
of difference?
PETER HAIN: I do not recall on any issue
of substance any difference actually on those two examples.
For example, the Assembly wants to have section 36/section
37 powers for generators under 50 megawatts brought
up to 100 megawatts. But that actually did not come
up in the context of the Energy White Paper. If there
were subsequent legislation, it could do. That is an
example. I know that the Assembly wants that. That is
an example where I, as Secretary of State, have to think
around the Cabinet table, "what are Britain’s energy
needs and what is Wales’ contribution to that"?
The long Welsh coastline, for example, ideal for off-shore
wind. How does that make a contribution to the overall
UK energy needs.
LORD RICHARD: In that situation where
the Assembly wants one thing and HMG wants something
else, do you see it as your function to try and reconcile
the two?
PETER HAIN: Yes.
LORD RICHARD: You would actually go to
the Assembly and say, "Look here, this is what we want
to do, how far can you agree with it?"
PETER HAIN: It would be a process of
negotiation and discussion and testing of the arguments.
What I do not do is simply because the Assembly says
"I want something" I just say "snap" and that is that.
LORD RICHARD: No but, as Secretary of
State for Wales, you could not deliver the Government
at Westminster to those negotiations. You could try
and settle it, like a multification process.
PETER HAIN: That is a lot of my job.
If I give you a practical example. Say the Assembly
learning grants which are now operating very successfully.
Without going into all the detail, there was - how shall
I describe it? - a stand-off there involving whether
these complied with social security regulations, whether
there would be any claw-back from beneficiaries in receipt
of benefits, lone parents for example, and the original
framing of the way that the regulation was drafted was
out of compliance with social security regulations.
So, I needed to get involved and Don Touhig, my minister,
needed to get involved in resolving that and it took
a great deal of discussion to make sure that that worked.
So, that was an absolutely crucial role played there
and there are many other examples that I could give.
In that case, what I was seeking to do, quite unashamedly,
was implement the Assembly’s views.
LORD RICHARD: If you come back to the
energy point now where there is a difference between
the Assembly and HMG C
PETER HAIN: Not necessarily.
LORD RICHARD: All right. Assume you have
the situation in which there is a difference between
the Assembly and HMG, would you expect the Assembly
to go and negotiate direct with the Department or would
it do it through you or would you try to smooth it over,
to chair any negotiation between the two governments?
PETER HAIN: It would depend. Normally,
the Assembly would deal directly with the Department,
but I would be kept in the loop and I would be brought
in if there were a problem. If there were not a problem
then, besides being kept informed, that is the best
way to do it and, for the most part, that is how it
happens. But there are issues, and the Assembly learning
grant is a very good example, which happened very early
in my term of office, where I personally had to get
very directly involved and speak, in some cases, frankly
to Whitehall colleagues about what needed to be done
and push and prod and get officials to crack the problem,
which we managed to do.
TED ROWLANDS: That leads us into one
area that I would like to explore further and I am sure
other Members will want to as well. In common Commission
parlance, it becomes what is called the jagged edges:
those areas where powers are mostly devolved but some
are not or where you have a kind of devolution. We can
think of two areas in particular where evidence has
been brought to our attention. One of them is in the
field of higher education. You have a higher education
funding council, an integral part of your original thinking
in ETAG and all the rest of it lodged as a part in the
great ELWa quango and yet you have the whole issue of
funding universities and fees, top-ups and all the rest
of it, still seemingly in a sort of UK category. That
kind of division leads to tensions, difficulties and
problems. Do you see a redrawing of those boundaries,
for example higher education lock, stock and barrel
being lodged with the Assembly in such a situation as
well as to gain a practical consequence of trying to
work in of a policy?
PETER HAIN: This is an example, to come
back to your original point about devolution being a
process and not an event - and a very live one. As regards
the Higher Education Funding Council being lodged in
ELWa administratively, I think it was just copying what
went before, what happened before. Whether that has
been a good or a bad thing given ELWa’s problems
is another matter but there is no substantial, as it
were, legislative or transfer function issue there.
Your point about student fees, which is really the nub
of the issue, and student finance is a live issue and
it is a very interesting example of my role and the
process of partnership at work. Jane Davidson, the Education
Minister, said recently that very soon after the existing
Secretary of State for Education, Charles Clarke’s
tenure of office, in fact I think within three days
of him getting the job, she met him and, in the discussion,
she said she would like to have student finance transferred
and he said, "Fine, I’ll have a look at that on
its merits." It is not something I knew about. As the
White Paper on higher education was being finalised
on the issue of fees, he called me and said, "I’m
inclined to suggest to the Assembly that this is transferred
under the normal transfer of functions procedure, what
do you think?" I was completely unsighted on it and
I rang Jane Davidson and spoke to her and spoke to Rhodri
Morgan and they seemed very keen. I just said, "We’ve
got to make sure that the costings are bottomed out
properly" because it is a hugely complex matter with
students crossing borders and all the rest of it in
either direction, and that is now being done. No decision
has been taken in principle as to whether the transfer
goes ahead. But, in the meantime, officials from the
Assembly and the Department for Education and Skills
are working very closely together to try and agree what
the sums involved would be and what the procedures involved
would be and then put us in a position as ministers
and as governments ultimately at either end to make
a decision as to whether we thought this was a good
or a bad thing.
TED ROWLANDS: There has been a sympathetic
consideration given to the concept of a transfer in
this particular function subject to working out the
number crunching and the rest of it.
PETER HAIN: The principle has not been
decided. There is sympathetic consideration given to
the proposition that this should happen and it has now
been examined in detail. In the end, apart from anything
else, apart from the principles involved here, though,
as Jane Davidson very persuasively argues, the student
fees element of higher education funding is outside
her remit and student funding generally. So, it is quite
a complex matter too because grants come into it and
particularly the proposed new student grants.
TED ROWLANDS: And the huge cross-border
transfer of students.
PETER HAIN: Yes. I think each year there
are about 8,000 English students who come to study in
Wales and about 6,000 Welsh students who go to study
in England. So, there are all these matters and it is
a hugely complex issue. Access is much wider in Wales,
we have a much better record at university and higher
education level of extending access more widely. That
means that proportionately more Welsh students do not
pay the fee, they are exempt from the fee, so how do
you forecast how that changes over time and how do you
make sure that any lump of money C
TED ROWLANDS: You do not want to get
short-changed in the transfer.
PETER HAIN: Exactly. My major concern
is that Wales should not be short-changed. So, this
is a very good example of something where the partnership
is at work here, a three-way partnership: three ministers
and three sets of officials, the majority of it being
done by the Assembly and by the DfES at official level.
The classic example of working together to try and resolve
an issue and then we see where we are before we consider
whether we make a decision on it.
TED ROWLANDS: You had there a case where
the Secretary of State for Education was open minded
and rang you and said, "Look, I am inclined to support
this."
PETER HAIN: Yes.
TED ROWLANDS: The other danger jagged
area that has been brought to our attention seems to
be the reverse. Youth justice issues and cross border
funding and the Home Office’s role and responsibility
for police functions. Here we have had very, very forthright
evidence given to us by Miss Hart that the Home Office
is just a no go area for further devolution. In a case
like that where you appear to have at official level
a pretty sort of non-devolved devolution department,
how will this discussion be processed in this partnership
arrangement?
PETER HAIN: First of all, there have
been difficulties over police funding and I think that
the Finance Minister was really talking about that and
that has a lot to do with differences of timing, the
Welsh Assembly budget being set on a different cycle
and at a much different time from when the Home Office
sets its budget and the fact that police funding is,
I think, 50/50 in terms of Home Office and Welsh Assembly
funding. So, there are a number of complexities there
and the Home Office earmarking and passporting money
for specific projects and money going into Wales and
then coming back and all this sort of complexity. So,
I think she is wanting to in a sense get a more sensible
system. Is your question just addressed to funding?
TED ROWLANDS: It runs into the whole
youth justice policy meeting, they go together. We have
had one Chief Constable who expressed very forthright
views that he now no longer sees much particular value
in having a division between his Home Office responsibilities
and operational responsibility being lodged in with
the Assembly where he has to go round getting local
authorities to pre-set their money to pay for it and
therefore that is how operational responsibilities are
answerable to the Assembly.
VIVIENNE SUGAR: It is more than that.
It is actually the practical implications on the ground
for communities where the police have been given inappropriate
targets in a Welsh context. I know it has been changed
now but a lot of money and a lot of priority was given
to street robberies which were not an issue. Money is
locked in particular ways that meant that, when the
police are operating in partnership in Communities First
Programmes or in community safety partnerships, they
are not able to be as flexible as the other agencies
sitting around the table and the other area of course
is the provision of support and accommodation - and
for young offenders in your own constituency, that is
a major issue at the moment - and the fact that we did
not seem to be able to influence in Wales the provision
of accommodation in an appropriate form and that young
Welsh offenders were being divorced from families and
support networks by having to be accommodated in an
institution in Bristol which had a very poor reputation.
It is those kinds of things which are being reported
to us by lot of different agencies involved in this
field.
PETER HAIN: Yes and that is why there
is the proposition to put a secure training centre in
Glynneath in the Neath Valley which I am actually strongly
in favour of but most of the Neath Valley seems to be
opposed to, which is an interesting position for their
MP to be in, but I think it is the right decision. I
have not had that case made in detail to me; I have
not had that case made in detail by the Assembly or
by the four Chief Constables though they have made general
remarks both to me and to others for any change in the
status quo and I think that we would have to look at
it on its merits.
PAUL VALERIO: I think it was clear at
that seminar from other bodies other than the police,
the judiciary and lawyers, that they felt that the way
ahead should be for a more distinctive Welsh legal system.
Scotland has a totally different one and it is slightly
different in Northern Ireland for different reasons.
Do you think we should go down this route? Do you think
there is a case and that there should be advantages
in Wales having a distinctive legal system to England
or do you think, frankly, that it is just the fringes
that should be altered rather than the principle?
PETER HAIN: I have not seen a persuasive
case for a separate legal system. Scotland’s history
is very different. Obviously it has had its own legal
system for 300 years or thereabouts. We have not had
that in Wales. This would seem to me to fit perfectly
into the category of something that you have to make
a very, very convincing case for to even begin to get
into that territory.
LORD RICHARD: Yes, but you are answering
it in somewhat absolutist terms. You are saying that
there is no case for a separate legal system, okay,
but the fact of the matter is C
PETER HAIN: I am saying that the case
has not been made.
LORD RICHARD: It is the same point. The
fact of the matter is that distinctions are emerging,
differences are emerging. Now you have the Court of
Appeal sitting in Cardiff, you have an administrative
court sitting in Cardiff, you have this whole corpus
of Welsh law being administered by Welsh judges in the
Welsh context. The automulticity between England and
Wales in legal terms is beginning to break down.
PETER HAIN: It is called devolution.
LORD RICHARD: Okay but, in that case,
what follows from that is that although you do not set
up a separate legal system in Wales, you do not do anything
to discourage the trends which are taking place.
PETER HAIN: No, I am not seeking to discourage
the trends that are taking place.
LORD RICHARD: That means looking at the
statute book, it means looking at the form of devolution,
it means looking at the way in which the thing has been
drafted and the way it has been constituted. There are
a fair number of problems.
PETER HAIN: In which case I would like
to see the evidence and I would like to see the case
made. I am not aware of any major logjams or policy
difficulties, although the points made on policing are
interesting. Again, with all of these things, that is
a classic case for me of my "practical delivery" test.
If you want to consider this matter, you have to show
how policing on the ground would actually be improved,
or is there another particular major piece of reform
or are we actually talking about just a better interface
and a better way that the partnership should work than
we have had up to now?
LORD RICHARD: That depends on which end
of the argument you approach it from.
PETER HAIN: Yes, of course it does, but
it also depends on actually how fundamental the problem
is and how much it is a question of practicality.
HUW THOMAS: On that practicality, we
have talked about some of the larger issues. The other
evidence we get is what I might describe as administrative
untidiness that is coming up. Take the Higher Education
Funding Council that I sat on for some time. During
our period, the Assembly wished to give us planning
powers, which was hardly a major step but which required
primary legislative change and that had to be queried
while this happened. I can quite well understand that,
in a Whitehall context, trying to find a bill into which
you can attack this is a small clause - you know, you
are hunting until finally something comes up - during
that time the Assembly cannot discharge a particular
policy area it wants to. I have used that as an example
but we have a number of others that are around. How
can we overcome this without just waiting for legislation?
I think this is part of the jagged edge that time and
again we have found people expressing frustration with
and I am really asking the Secretary of State, do you
have ideas as to how this might be overcome?
PETER HAIN: You are assuming that that
jagged edge does not exist within Whitehall, within
Government here. There are lots of frustrated secretaries
of state around the Cabinet table who cannot get their
bills in the Queen’s speech. There is always a
big negotiation, as you will remember yourself, Chairman,
as to what goes in and what there is legislative time
for and so far we have a pretty good track record of
Welsh legislation, Welsh only legislation and Welsh
clauses in legislation. So, yes, there is planning issue
which I am aware of and in fact I think the Assembly
is proposing a bill to tidy it up amongst other things
in an educational miscellaneous bill. But what I am
saying is that it does not follow that because you cannot
get everything tomorrow, the fundamental settlement
has to be altered in a substantial fashion.
HUW THOMAS: I accept that because after
all even within departments there is this argument ...
For years, I tried battling with the Department of Employment
to get some changes on disability legislation and lost
out each time each time for more important measures
going through in industrial relations. Wales is now
losing out, it seems to me, because the battle is that
there are more important issues going through in Whitehall.
The same way as the Welsh Office used to queue up in
the past and try to get its bit through. What I am trying
to say is that there is an expectation, is there not,
that, with the Welsh Assembly, there will be changes
and developments within Wales and yet, at the end of
it, you are coming against the logjam that exists as
a result of Westminster. It was put to us when we were
up in Scotland that there had been a desire to change
feudal tenancies on landholding in Scotland which had
lost out year by year because it was regarded as a non-event
in terms of Westminster legislation and the thing which
they found helpful was that at last issues which were
important for Scotland could actually go through in
a faster way. Now, if you are arguing against devolution,
then it seems to me that you have to construct a model
by which all these minor bits can actually be dealt
with quickly.
PETER HAIN: I am not arguing against
devolution. I was one of the campaigners that got it
in the first place, I think it is fair to say. Specifically
in this context, if we reached the position where the
Assembly was being really severely frustrated in its
ability to deliver something pretty important in Wales,
then we would have to address that and have to look
at parliamentary procedure here, and I think there are
roughly five bills that the Welsh Assembly Government
said the other week that it wanted and this is obviously
going to present a challenge if there is only one a
year and - in fact, I have been giving consideration
to this myself - we have been looking at how we could
deal with it at the Westminster end in a speedier fashion
without getting to the position where all the legislation
in the Queen’s speech was nearly Welsh or Welsh
only, which is not a practical proposition.
I do urge an element of caution in this
because the capacity of the Assembly itself to rush
all this stuff through might well be in question and
one of the difficulties we have at the present time
with bills is that we do not have enough parliamentary
draftsmen, it is a capacity problem. I do not know what
the capacity situation is in that respect in the Assembly.
There are practical issues of just managing political
change which, as you acknowledged yourself, may well
be the reason, as opposed to some fundamental change
needed in the Devolution Settlement. As on this area,
as on all the others, and perhaps members of the Commission
took my opening statement as a kind of hostile statement,
but it was not that at all, it was just saying "make
the case, make it well and then we will look at it."
SIR MICHAEL WHEELER BOOTH: Secretary
of State, not hostile but slightly complacent. Take
the example of the legislative process. We have had
recently the report of the Constitution Committee in
the Lords which is very fairly put and what it says
is: "We are particularly concerned by the unstructured
way in which the process of liaison", that is between
Westminster and Cardiff, "over legislation operates.
Liaison is unsystematic, almost random, highly opaque
and hard for lay people, Westminster legislators or
Assembly Members to follow. It also affords only limited
opportunity for the National Assembly’s views to
be heard in connection with the Bills affecting the
Assembly." This paragraph 123 goes on and it puts in
a very quiet way the argument that the legislative process,
what has been called to us the co-legislative process,
is not working properly. That is what they say in their
very measured way.
You say in your reply that greater consistency
is desirable and you are thinking about Rawlings, that
is what in effect you say. It does not seem to me that
you show enough awareness of the views of many people
in Wales that they have shown to us in evidence of their
unhappiness with the present situation. After all, we
have been told about the way that the Government of
Wales Act was begotten and we were told very early on
by its father, Mr Davies. It was quite clear that unlike
the Scotland Act, which was begotten by Mr Dewar as
a result of long and hard thought following on the Scottish
Convention, in the case of the Welsh legislation it
was, as somebody put it to us, tucking in behind the
Scottish legislation and it was a halfway house, you
just had to read the White Paper to see that.
Therefore, what sincerely puzzles me
is that you seem to be happy with the present situation
when in so much of the evidence we have had in Wales
from Welsh Ministers, from Welsh people and from the
many responses from different groups, admittedly some
of those were pressure groups and might have a particular
point of view, but also individual members and when,
for example, we had an open meeting in Swansea this
came out very strongly too. It just puzzles me.
The last point I would like to put to
you is you say we have got to convince you but surely
it is the people of Wales who have got to decide whether
they think it is satisfactory?
PETER HAIN: With all due respect, and
I accept a lot of what you are saying, I am an elected
representative of a constituency in Wales and in the
pubs of Neath there is not an excited chatter about
lots of constitutional reform.
SIR MICHAEL WHEELER BOOTH: No, but was
there before 1997?
PETER HAIN: A little more, a little more.
On this point of speaking for the people of Wales, I
think I have got reasonable authority to do that. It
does not mean to say that I am right but I have got
reasonable authority to do that. My point is this, and
I said it a little earlier on in these proceedings,
it is not to defend every nook and cranny of the existing
settlement or even to say that this is where I would
like to have been other things being equal. We are part
of a certain historic process where we lost a referendum
four to one in 1979 and we won it only narrowly, as
I know possibly more than anybody else in this room,
in 1997, as somebody who was passionately campaigning
for a yes vote. That is what we are dealing with. You
can argue as to why it happened and all the compromises
and all the rest of it but that is where we are coming
from.
The issue that I am saying to you is
you need to show, not necessarily to convince me as
a personal Welsh representative, but to convince the
Government and to convince Welsh Members of Parliament
and to convince the Welsh public frankly, that these
changes are necessary. If you can make that case, that
is your job and if it is persuasively put then it will
be sympathetically considered.
LORD RICHARD: The starting point is a
bit different. If you look at Norton again, the following
sentence to the one Michael read out: "It appears to
us that Wales figures in such arrangements largely as
an afterthought appended to a process driven by the
UK Government’s concerns and priorities rather
than those of Wales in general and the National Assembly".
If that is right that is pretty devastating, is it not?
PETER HAIN: What is he saying? Are they
talking about what is going on now or about the settlement
itself?
LORD RICHARD: They are saying legislative
opportunity.
PETER HAIN: But the settlement itself
is a product of political history. It is no good criticising
our government for that, that is a product of our political
history.
SIR MICHAEL WHEELER BOOTH: The report
is actually saying what you have just said, what is
going on now, that is what they are criticising. They
are criticising it in very restrained but all the more
effective terms. There is a wonderful sort of woolly
blanket of friendliness and opaqueness in reply, very
charming but it does not seem to have addressed their
arguments at all.
PETER HAIN: I do not agree with you,
I just do not agree with you. With all due respect to
the House of Lords' report, I do not think there are
substantial arguments made as to why policy delivery
is being frustrated or the quality of life impeded by
the current way the settlements are operating. I have
not seen any evidence to that effect.
SIR MICHAEL WHEELER BOOTH: The argument
is that the legislative process, and the co-legislative
process, between these two disparate but both democratic
bodies is not working well. One example we were told
in evidence - not in the report - was about the Communications
Bill some time ago when there was a pre-legislative
stage at Westminster and the Minister concerned in Wales
made her representations to the department but the Assembly
nor the Committee nor the Minister did not make any
representations to the pre-legislative scrutiny. That
was just one example.
PETER HAIN: There are failures in government
from time to time not to do things as we ----
SIR MICHAEL WHEELER BOOTH: It is also
a failure in Parliament and the Assembly, is it not?
PETER HAIN: Yes.
SIR MICHAEL WHEELER BOOTH: The process
does not lend itself well to making it work for reasons
of timetable and so on.
PETER HAIN: I hope I do not sound too
adversarial in saying so but, if I may say so, I think
this is vastly exaggerating the argument. What has the
process delivered? Thirteen Welsh only Bills or Bills
with substantial Welsh clauses in them in the last three
to four years, which is not a bad record actually. You
name one other government department apart from possibly
the Home Office that has got a hit rate like that.
SIR MICHAEL WHEELER BOOTH: But the Scottish
Parliament in the same period have put about 40 Acts
of the Scottish Parliament.
PETER HAIN: Yes, but I guess if you took
into account the issues that are not devolved to Wales
and you count the legislation that went through here
you might find a similar number.
SIR MICHAEL WHEELER BOOTH: You would
have to put in all the legislation that had been subject
to Sewel motions here relating to Scotland.
PETER HAIN: This is all very interesting
but I do not know how it actually addresses the substantial
case. What is the argument here? It is not clear to
me what your argument is.
SIR MICHAEL WHEELER BOOTH: I was trying
to put to you that what we are hearing from others does
not seem to bear out the rosy picture of the way that
the Welsh devolution is working in comparison with certainly
Scottish devolution in comparison with what they were
hoping for in 1997/98.
PETER HAIN: Just on the latter point,
I think you do hear a sort of almost reflex expression
of a desire for more powers for the Assembly more than
you did prior to 1997. I suspect that is because people
were expecting the Assembly to deliver more than it
is possible for any system of government to deliver,
to change things overnight. I think we just need to
keep this in proportion. As I say, when you come to
make your recommendations or your report where you can
show that some things are falling down, you are pushing
at an open door in terms of wanting to look at that
in a serious and sympathetic fashion, as I am sure with
my Cabinet colleagues as well.
LORD RICHARD: But within the current
structure.
PETER HAIN: Without repeating myself,
if you are going to substantially change the current
structure you have to make the case for it and you also
have to take account of what the democratic mandate
for it is.
VIVIENNE SUGAR: One of the themes of
the Commission has also been to ask about accountability.
One of the things that devolution was going to do was
to make the quangos more accountable, presumably abolition
and absorption into government so that they could be
scrutinised in a greater way. I would just like to hear
your views on the extent to which you are involved,
as Secretary of State for Wales, in looking at the budgets
and work programmes of quangos that may come under other
government departments but which operate in Wales and
the extent to which there is liaison between you and
the Assembly on how to hold these bodies to account.
I would just like to hear what you think of the progress
that has been made or lack of it.
PETER HAIN: Certainly, say, on the question
of a non-devolved function such as OFCOM, where an issue
has arisen, it is partly as a result of the discussions
that were held that we have got a Welsh person on the
Central Board, Professor Ian Hargreaves, from the Cardiff
School of Journalism. I do not know that he is a Welsh
representative as such in that clearly defined sense
- but is at least from Wales. Places have been reserved
for Welsh members on both OFCOM's Content Board and
Consumer Panel. Those discussions go on the whole time.
To be frank, I do not have the capacity to monitor every
non-governmental public body that has UK-wide functions,
including in Wales. But when an issue arises, and perhaps
if the Assembly has a concern, then obviously I get
involved, as does the relevant government department,
sponsoring department.
VIVIENNE SUGAR: So the assumption is
that it would be the Assembly's scrutiny committees
that would call both Welsh Assembly sponsored bodies
and UK agencies to come and give evidence and to be
held to account and you would only be involved on an
exceptional basis where there was an issue between a
UK based agency and something that was happening Wales,
like flooding for example?
PETER HAIN: Not necessarily because it
might come to my attention independently. A Welsh Member
of Parliament might make representations to me, quite
properly, and I might take it up that way, or my predecessor
might have done.
VIVIENNE SUGAR: But it would be on an
exceptional basis rather than a normal part of your
brief?
PETER HAIN: I think that is right, yes.
LORD RICHARD: Can I just raise one final
point with you which is again, I am afraid, part of
the original settlement, the concept of the Assembly
as a corporate body. I was wondering what your opinion
of that was now.
PETER HAIN: Well, as the Minister who
did quite a lot of the work with my colleague, Wyn Griffiths,
taking the Bill through, under Ron Davies' direction,
obviously I stand by the Bill. I always felt it was
a rather odd conception frankly, and in practice, as
I understand it, the Assembly has moved away from it
de facto, if not de jure, in the sense
of having a cabinet calling itself the Welsh Assembly
Government and so on. My view, although this is a matter
for the Assembly in the end not for me, is that is a
trend that is likely to continue.
LORD RICHARD: But you do not have any
problems in dealing with it de facto?
PETER HAIN: Yes, there are problems in
the sense and by and large these can be overcome. But
the process of government policy negotiation and formation
involves confidential discussions and the Assembly ministers
are in a sense even members of their subject committees,
I think I am right in saying, so there is an issue there:
are you talking effectively to the whole Assembly if
you are involved in a negotiation with a minister? There
have been one or two issues of timing and when something
is made public that have arisen but in real end product
terms in my four months I cannot think of anything that
has actually got in the way of that.
TED ROWLANDS: If the Commission was minded
to recommend the body corporate had outlived its usefulness
and as a result the changes de facto taking place,
and you have described them very well, would you consider
a proposition of that kind radical and substantial or
sensible and practical?
LORD RICHARD: Proved.
PETER HAIN: It might be both. A lot of
the radical changes you might or might not consider
might be sensible and practical and might win my admiration.
TED ROWLANDS: This one falls into which
bit of your category?
PETER HAIN: I would have to think about
that one. It would involve an amendment to the Government
of Wales Act. On the other hand, speaking completely
off the cuff, I cannot imagine that somebody would say
therefore we have to have a referendum in order to decide
whether the Assembly is a corporate body or not, for
goodness sake, let us be serious.
LORD RICHARD: Thank you very much indeed,
you have been very generous with your time and we are
very grateful to you. It has been an illuminating two
hours.
PETER HAIN: Thank you. It was very illuminating
to me as well. Good luck with your deliberations.
LORD RICHARD: You may regret saying that
in nine months' time.
PETER HAIN: I may get some aggro from
my colleagues.
LORD RICHARD: Thank you.
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