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LORD RICHARD: Mr Buckland, thank you
very much for coming. We are very grateful to you indeed
for coming to give your evidence. I wonder, for the
record, if you would introduce yourself.
MR BUCKLAND: Thank you, Chairman. My
name is Robert Buckland. I am a barrister practising
here in Cardiff and on the Wales and Chester circuit.
I am a mere 34 years of age, which surprised your secretary
somewhat this afternoon, but I hope that perhaps I will
add a younger voice and perhaps a slightly different
perspective this afternoon. My political background
is somewhat chequered. I was at one time a county councillor
on the old Dyfed authority for three years before its
abolition in 1996. I stood for Parliament on two occasions:
at Islywn, the by-election caused by the resignation
of Mr Neil Kinnock, and then at Pembrokeshire, the 1997
General Election. Needless to say I was unsuccessful
on both occasions. I have also stood for the European
Parliament in 1994 and latterly in 1999.
LORD RICHARD: Which party?
MR BUCKLAND: For the Conservative Party.
It is as a Conservative, but a free-thinking Conservative,
that I speak to you today. Obviously this is not going
to be a monologue. I have prepared an outline of the
essence of the submission I wish to make to the Committee,
which I hope that members have all had a chance to see.
I have read carefully the terms of reference and I should
say at the outset that it would be foolish of me to
claim an insight into all aspects of your inquiry. I
speak to you as somebody who is very interested in the
development of the National Assembly and very interested
in Wales' position within the United Kingdom
and more widely within Europe. I speak from what is
old-fashionedly called a unionist perspective, that
is somebody who is committed to the United Kingdom but
who believes that in particular Conservatives have to
accept that times have moved on and the situation is
now dramatically different from the one that confronted
them at the 1997 General Election, for example. In recognition
of that I think it is time that we started to think
imaginatively and constructively about how the Assembly
can be made to work better. You may have found amongst
previous witnesses, and I feel a little humbled having
seen, amongst others, Professor Hazell here yesterday,
a consensus that perhaps although the Assembly is a
new institution and allowances have to be made, in some
respects the high hopes that were expressed by those
who campaigned actively for a yes vote have yet to be
fulfilled.
I think most importantly in the realm
of accountability, for want of a better word, the old
system with the Secretary of State rubber stamping secondary
legislation and running things, as it were, at his own
behest was criticised, and probably justifiably so.
I posit this question: have we really improved things
since the dawn of the Assembly? From my analysis earlier
in the year of the number of secondary pieces of legislation
that were properly scrutinised, I think the answer has
to be sadly no. Very few pieces of legislation have
had the proper scrutiny that perhaps was within the
hopes of those advocating a yes vote. I think that is
worrying. I think it should be very worrying for everybody
who wants to see improved law making.
The modern trend for primary legislation
to be bare bones Henry VIII type legislation with the
devil in the detail of secondary legislation is not
perhaps a problem particular to Wales, it would affect
the whole of the UK and its constituent parts. It is,
in my submission, creating a deficit and I go so far
as to say a democratic deficit. To answer the simple
question is law making in Wales better now since the
Assembly was set up, I think I would have to say no.
Therefore, it is to improving the efficacy and the quality
of legislation that I have been in particular drawing
my mind in recent months. One of the suggestions that
I came up with is outlined in essence in the body of
the submission that I tendered to you in writing. I
suppose you could, to coin a phrase, describe it as
a particularly unionist approach to the problem that
I have identified, which would be to bind the institutions
here in Cardiff and processes at Westminster in a much
more formal way than we see at present. I know that
currently the Assembly has the power to consider what
they call draft Bills and those draft Bills can then
be considered either by the House of Commons and House
of Lords in full session or, for example, by joint committees
of both Houses considering draft legislation as they
so often do in a wide variety of areas. It is really
to that system that I have directed my thoughts.
I have come up with a few ideas which
I accept at the moment are very much in outline but
which I hope will form the basis of a real and meaningful
debate about how we can improve our law making, not
just within the Conservative Party but also more widely
here in Wales and at Westminster. The essential suggestion
that I have come up with is that, yes, the Assembly
should have primary powers of law making in all areas
where it currently has a remit. But along with that
comes what I would submit to be the best way of dealing
with primary legislation, that is to have in effect
a bicameral system for Welsh legislation.
Now, a visit to New South Wales earlier
in the year impressed me in the sense that the two house
system that is used in New South Wales, the lower house
and the senate, seems to be a very lively forum of debate
and provides certainly in the form of the senate of
New South Wales very good quality in terms of the input
and deliberative process. I am a Conservative though
and I do balk a little at creating more elected representatives
and yet more Houses of Parliament or legislation. My
view is that we can do the job with our existing representatives.
There is an alarming perception, which is probably untrue
but it is a perception nonetheless, that since we created
the Assembly we now have a lot of AMs running around
like white rabbits with too much to do and MPs who have
now been shorn of a large part of their previous responsibility.
The perception is perhaps that MPs do not have enough
to do. If that is correct or incorrect, I do not know,
but it does exist as a real perception.
I think one of the ways that we can abate
that perception is to bring in our Members of Parliament
and, as I have suggested in one part of the paper that
I submitted, members of the upper house into the process
of primary legislation in Wales. How is it going to
work? Take the Care Standards Bill, for example. That
would have started on the floor of the Assembly, would
have been debated and at the end of the day after perhaps
a committee stage and a report a bill would have been
passed, and then passed for consideration to either
a joint committee of both Houses of Parliament or a
committee to all intents and purposes similar to the
Welsh Grand Committee of MPs. That committee would then
in effect be the second chamber dealing with the Bill
as presented to it. It would have, I hope, a more deliberative
role, perhaps a more considered role, a very similar
role to that which is embodied in the House of Lords
I think. Then the Bill comes back and it is passed and
becomes an Act of the Welsh Assembly. What about the
tensions between Westminster and the Assembly?
LORD RICHARD: Do you mind if we interrupt
you?
MR BUCKLAND: Not at all.
LORD RICHARD: What you are envisaging
is in effect the Bill will be passed here in Cardiff,
the completed Bill will then go up to the Grand Committee
or to a joint committee of both Houses in Westminster.
They would do the scrutiny job of the Bill then and
it would come back down here.
MR BUCKLAND: Yes.
LORD RICHARD: I see. So in effect you
would have a bicameral nature.
MR BUCKLAND: That is right.
LAURA McALLISTER: What is the advantage
of that over improved scrutiny in Cardiff?
MR BUCKLAND: I think the advantage would
be this. I think the trouble with having a unicameral
system is that it is all rather hasty. I think the benefits
of having a second more deliberative chamber mean that
there is perhaps more light shed on the subject rather
than the heat of debate that inevitably we get on the
floor of the Assembly. Now like it or not, although
there has been much talk about the Assembly being dramatically
different from Westminster in culture, we are dealing
with a chamber of elected representatives and there
will be at times a lot more heat than light generated
in that chamber about the legislation before it. My
worry is that we will have the unsatisfactory situation
that we have in the Scottish Parliament - I am putting
aside any views one may have about hunting, for example
- where there seems to be a large body of opinion which
says A This
is a unicameral legislature, it does not seem to be
considering the Bills before it carefully, it seems
to be all terribly rushed. Is it the best way of dealing
with Scots law?@
I am not holding a brief for what they do in Scotland
but I think in Wales we could avoid that problem perhaps
by bringing in the extra element which would be members
of the Westminster Houses of Parliament. I should say
they will be members of the Westminster Houses of Parliament
who are either elected Welsh MPs or members of the House
of Lords who are from Wales and have a Welsh connection.
Can I add also that the political balance of that body
- the Westminster based body - in my view would have
to reflect the political balance of the lower house.
SIR MICHAEL WHEELER BOOTH: How could
that be? Supposing you had a Conservative administration
based on a Conservative majority in the House of Commons,
your quasi Welsh Grand Committee, you said you wanted
Welsh MPs on it, most Welsh MPs probably would be Labour
or Plaid Cymru.
MR BUCKLAND: Yes.
SIR MICHAEL WHEELER BOOTH: How would
you do that? How would you work that?
MR BUCKLAND: It would have to be a settlement
as reflected upon the political outcome of the Assembly
election.
LORD RICHARD: Assembly election?
MR BUCKLAND: Yes.
LORD RICHARD: Not Westminster election?
MR BUCKLAND: That is right. I think a
Conservative Government would have to accept that in
order to preserve the balance within the union that
the Westminster based body would have to reflect the
political settlement in Wales rather than the settlement
at Westminster. What happens on the Welsh Grand Committee
at the moment is that we have a few Conservative members
of it. They are brought in - Nigel Evans was on it at
one stage I think before he went into the shadow Cabinet
- because there is a perceived need for some balance
to reflect the number of people who have voted Conservative
but do not have any representation in Wales.
LORD RICHARD: You are talking mathematical,
are you not? You say look at the Assembly and see what
the political balance is in the Assembly. Never mind
what the political balance is in Westminster as a whole.
MR BUCKLAND: Yes.
LORD RICHARD: Then you have to reproduce
the political balance of the Assembly in the Grand Committee
even if you have not got enough MPs to do it.
MR BUCKLAND: Yes, because this is Welsh
legislation which at the end of the day will be Assembly
generated legislation.
LORD RICHARD: If it was slightly West
Lothian what would you do, bring an Englishman on to
the Grand Committee in order to legislate for Wales?
MR BUCKLAND: I think you would only need
to do that for example if you had - wonder of wonders
- a Conservative administration in Cardiff. Then you
would be looking for a reflection of, say, a Conservative
majority in Cardiff which may not be how it is at Westminster,
for example. In theory that could happen. I think there
has to be give and take and we have to start upon the
premise that this is Welsh legislation generated by
the Assembly and the balance of Westminster has to reflect
that otherwise the tensions that even now we are seeing
with governments of the same hue at Cardiff and Westminster
are just going to get worse.
TED ROWLANDS: If the joint committee,
whatever committee is constructed at the London end,
amends the Bill in a manner which will be unsatisfactory
from the Assembly where will the sovereignty lie in
the legislation; will it be in Cardiff or where would
it be? Where would sovereignty lie finally?
MR BUCKLAND: I think we would have a
Parliament Act situation, I would suggest. I think perhaps
some element of delay reflecting the 1949 Parliament
Act. No remit in money bills, for example.
TED ROWLANDS: If the Bill was amended,
having gone through the legislative process at Assembly
level, it was sent up to this joint committee and amended
there in a way which was not satisfactory, then the
Bill would stand for a couple of months and then the
Assembly would pass it on the nod. Who are the people
who have the final say.
MR BUCKLAND: Ultimately the Assembly
I think. I was jumping ahead of myself. I was thinking
of an example where perhaps the Bill was voted down
which would be a very different situation but amendments,
as happens now, get passed in the Lords. I had the experience
the other day that I drafted a nice little amendment
for the Proceeds of Crime Bill, it was passed in the
House of Lords and then struck down by the Commons.
Well, that is life, the Commons is the elected body.
TED ROWLANDS: The Assembly would be the
ultimate legislative authority?
MR BUCKLAND: Yes, I think it should be.
SIR MICHAEL WHEELER BOOTH: How is that
compatible with the British theory of the sovereignty
of Parliament?
MR BUCKLAND: The Assembly is a body,
of course, that was created by Parliament.
SIR MICHAEL WHEELER BOOTH: It is a creature
of Parliament.
MR BUCKLAND: It is a creature of Parliament.
At the moment it has a rather unusual status I would
accept. It is different from the Scottish Parliament,
I have to accept that. With the conferral of primary
powers the Assembly itself would change, would it not,
in its nature, and would itself then be a legislative
body with the same status or similar status to that
of Westminster.
SIR MICHAEL WHEELER BOOTH: Realistically
what chance do you think there would be of getting the
House of Commons to agree to this suggestion you are
putting before us? Realistically?
MR BUCKLAND: I am a Conservative in Wales,
I have always got to be optimistic. Realistically? Well,
I would like people to be imaginative and to think broadly
about where we go. The current situation to me is fraught
with very worrying imbalances and the sorts of tensions
which play into the hands of people whose agenda is
entirely diametrically opposed to the values that I
believe in. I think this sort of imbalance needs to
be looked at in perhaps a unique and imaginative way.
TOM JONES: I think it is so easy for
us to dwell on the exact details of 1996 and 1997 when
we had to move forwards so I welcome that approach.
What I found somewhat contrary to that was you were
saying well only primary powers for the existing responsibilities
of the Assembly as if to say never shall there be any
other developments or evolution of retained Whitehall
responsibility with Assembly growth and development.
That seems a bit of a straitjacket saying primary but
only for existing and not leaving an opportunity for
the Assembly to just refer to that. It is something
that would develop and evolve and actually, if necessary,
take on wider responsibilities.
MR BUCKLAND: Yes. I share some of the
concerns about what I have described as the labyrinthine
division of responsibility which we saw, for example,
in the foot and mouth crisis. I think the granting of
primary powers will go a long way to solve that sort
of problem to begin with. I think at a stroke we would
have more clarity in the existing areas that the Assembly
has a remit over. I am a little cautious about broadening
powers because ultimately I am a unionist. I do think
that certain areas of responsibility are better dealt
with now in Cardiff but my view is that I think home
affairs, defence, foreign affairs, those sorts of matters
are better dealt with at a UK level. I am not closing
the door.
TOM JONES: Broadcasting.
MR BUCKLAND: That is a classic one, is
it not, S4C. The strange anomaly in the public perception.
Then we get into the sort of labyrinthine area again
that if we divide off S4C, I am not averse to it, certainly
I would not close the door on a widening of powers.
I have described it as not wider but deeper, a deepening
in the quality of the powers that the Assembly currently
enjoys. I think let us go one step at a time.
LORD RICHARD: What you are really doing
is going for a bicameral legislature.
MR BUCKLAND: Yes.
LORD RICHARD: That is the object of it.
MR BUCKLAND: Absolutely.
LORD RICHARD: It is nothing to do with
where the powers lie, it is saying that there ought
to be a second body somewhere which checks up on whether
or not legislature in Cardiff is doing its job properly.
MR BUCKLAND: That is right.
LAURA McALLISTER: With respect, what
Lord Richard said there is as you describe it and you
have said very honestly because of your unionist perspective
you want this to be in Westminster. I do not think you
really answered my point about how that would improve
scrutiny. This is where you are coming from but it seems
to me you are being led by the unionist perspective
rather than by the policy delivery perspective or the
accountability perspective.
MR BUCKLAND: There is a consensus, is
there not, that if the Assembly is to have primary powers
then it needs more members.
LAURA McALLISTER: I do not know if there
is a consensus on that. We have had lots of approaches.
MR BUCKLAND: I do not agree with that
at all. I think that would be a mistake for suddenly
the Assembly to grow vastly from 60 to 80 or even more.
There may be a case for perhaps a slight expansion but
a lot of the problem, I think, would be dealt with by
the suggestion which I have come up with which is a
bicameral approach using existing representatives from
Wales elected by people in Wales for Wales to scrutinise
legislation. This body, of course, does not have to
meet in Westminster, it can meet and it should meet,
I would suggest, in Wales. There is nothing to stop
that happening at all. We know the Grand Committee has
met in Wales on very many occasions indeed. I think
the simple answer to your point A
Does it improve scrutiny?@
, yes it does because instead of having one view from
one chamber, you have a second view from a second body
with inevitably a different set of outlooks, a different
perspective. I think that has got to be good.
LAURA McALLISTER: You said a moment ago
a committee as formed, which would be rather strangely
formed, would have to reflect the composition of a settlement
in Wales. It would be a duplicate body from a different
legislature.
MR BUCKLAND: From my experience, I think
the experience of AMs is quite different from that of
Members of Parliament. Even members from the same parties
seem to have quite a different outlook on the way things
should be done. Now I think that is good and healthy.
Instead of having one culture dealing with the legislation
you would have two, I think that is an improvement.
PETER PRICE: Your argument for bicameralism
follows the sequence that first of all you posit that
there would be primary law making powers and then that
in the only example we have got in the UK of that in
Scotland that in a unicameral legislature it has not
been very successful in the scrutiny of primary legislation.
Now is it possible to give any examples of where you
think the Scottish Parliament has failed?
MR BUCKLAND: I do not want to get into
a debate about hunting, it is not appropriate at all,
but whatever one= s views about that particular issue,
I think the way in which the Scottish Parliament dealt
with it was at the very least rushed I would submit
and showed a remarkable lack of sensitivity to the possibility
that there may be either a middle way or another point
of view.
LORD RICHARD: That is not scrutinising
legislation, that is politics.
MR BUCKLAND: I accept you can draw a
difference but I think it had an effect in that case
of resulting in, if you like, a steamroller which in
practice that legislation was effectively. You have
to contrast that with what is happening in Westminster
and even here in Wales, although Wales does not have
that particular power. The way the debate is dealt with
is dramatically different and in my mind it is far more
accommodating to all points of view, whether one is
for middle way, whether one is for, whether one is against.
You cannot say that the debate is not a proper one and
that is the debate at Westminster.
LORD RICHARD: That is not scrutinising
legislation in the way the Lords scrutinises legislation.
MR BUCKLAND: I think if we had had a
second chamber in Scotland then perhaps some of the
other viewpoints that we hear about south of the border
would have come to the fore and there would have been
a chance for those viewpoints to be expressed in the
way that legislation was amended, in the way that it
was scrutinised and it would have been a far more deliberative
process and the legislation at the end of the day, in
my humble opinion, would have been better.
VIVIENNE SUGAR: I am not a constitutional
expert but can you explain to me why the bicameral system
did not work for the Dangerous Dogs Act.
MR BUCKLAND: Good question. I was even
younger than I am now but I can remember the circumstances:
a spate of dog attacks and then legislation, hey presto,
within a few months. I think that is an example of how
not to do things. I think I have to answer your question
this way: I do not think a bicameral system invariably
will stop such a rash use of legislative procedure but
it is a pretty good safeguard against it. Acts like
that do stand out in the memory and they stand out as
examples of how not to do things. What we do not want
to end up with is that sort of situation becoming the
norm which is what I worry would be the case if we just
had a unicameral system. The very fact that it has to
go through two Houses of Parliament slows it up enough
to allow for greater quality of scrutiny.
PETER PRICE: The way in which you are
proposing that this system would work, you would have
the Assembly having actually adopted the legislation
and therefore taken a thoroughly worked out position,
in so far as it is convenient, and there would be a
lot of political capital invested in that position before
it then passes to this second chamber. Does that not
put that second chamber in some difficulty given the
advanced stage the legislation is in at that time except
to make relatively minor drafting type changes, pointing
out how something would work in practice or things of
that sort?
MR BUCKLAND: That is the case in almost
every major piece of legislation, is it not, a massive
amount of political capital is invested in major pieces
of legislation. They are heralded in the Queen=
s Speech, you have flagship bills, it is part of political
life, is it not? I do not think a self-respecting second
chamber should be frightened at all about interfering
and making things better. It does not stop the existing
House of Lords from doing that, some people would say
interfering, it does not stop them, I do not see why
it would stop a second chamber dealing with Welsh legislation
LORD RICHARD: If I can follow this thought.
It is a different sort of chamber. The House of Lords
is not at all comparable to the Welsh Grand Committee.
First of all the Welsh Grand Committee are Members of
Parliament, they have a constituency, they have electorates,
they are responsible for their electorates, whatever
else I am, I do not have electorate. You are mixing
fish and fowl.
MR BUCKLAND: Perhaps the suggestion that
I have of a joint committee would inject that vital
part of the deliberative qualities of the Lords into
the second chamber. The Lords itself, as you well know,
Chairman, far better than I, is undergoing great change,
great change initiated when you yourself were in office.
In the end that will result in a part elected chamber,
at the very least, it has got to from my perspective.
TED ROWLANDS: First of all just to clarify
things. A Bill has never really ever been taken to a
Welsh Grand Committee for the very reason that there
is no balance, the balance of the Commons in the Welsh
Grand Committee, so although it has the power to do
so every government has refused to use the Welsh Grand
Committee. Even the Welsh Local Government legislation
in the last Parliament was not carried through the Welsh
Grand Committee. Who would take the Bill through this
joint committee? You have a Bill that has been sponsored
by Assembly ministers and then it goes to this joint
committee. You cannot have a Westminster Minister doing
it because presumably it is not his or her Bill. Would
the Assembly Minister take this Bill through? Would
he or she get attached to the joint committee? Somebody
has got to carry the Bill through the committee normally.
MR BUCKLAND: In the Lords obviously it
is a member of the government in the Lords who carries
it through. That is an interesting point. I would have
suggested the Wales Office, the minister in the Wales
Office, because the Wales Office is responsible for,
in effect, liaison, for want of a better word, between
Assembly government, the Assembly institutions and Whitehall/Westminster.
LORD RICHARD: The two governments are
different. You have one administration in London. Do
you expect the Minister in London actually to take a
Bill presented in the Assembly, passed by the Assembly,
by his own political opponents, through?
MR BUCKLAND: Then we come to the difficulty,
yes, which I accept. It is something that I am going
to think about. I am not asking for a second bite of
the cherry but it is something that I think deserves
some consideration.
TED ROWLANDS: The assumption you have
made is that the Scottish system does not work but I
have to tell you Professor Hazell was here yesterday
and he gave very, very vivid evidence to the effect
that it had worked extremely well. I think the Hunting
Bill was perhaps an exception. It was a mess by all
accounts, a drafting mess as well as a policy mess.
Generally speaking he was arguing that this unicameral
Scottish Parliament actually handled scrutiny of legislation
very deftly and successfully. Do you have any other
examples where a unicameral system caused problems in
Scotland?
MR BUCKLAND: I do not have any drafting
examples. The Scottish Parliament has 130 members, something
like that.
TED ROWLANDS: One hundred and twenty-nine.
MR BUCKLAND: I would just have to differ
with the view that a unicameral system is the best system.
From my viewpoint I think any piece of legislation is
an important matter which should not be considered (a)
too quickly or in too hurried a way and (b) deserves
the benefit of scrutiny from different viewpoints, different
institutions. I have to come back to my settled view
that a bicameral system is better and I think would
be better for Wales.
VIVIENNE SUGAR: Are you saying that the
reason the Assembly is not currently scrutinising secondary
legislation is a matter of time and numbers?
MR BUCKLAND: Time, I think, is a big
factor in this equation. I am not so sure about numbers.
I think there are plenty of Members of the Assembly
who do not have any other responsibilities within government.
There are not that many people with ministerial responsibility
in the Assembly itself. I think also it is a question
of priorities. Without wishing to criticise individual
Members of the Assembly it does seem to me that there
is greater interest in broad brush debates than detailed
scrutiny. I think part of the problem has been the culture
that committees are expected to scrutinise and to make
policy. Although many people spoke very encouragingly
and positively about that at the beginning, sadly I
do not think that is working.
VIVIENNE SUGAR: You would recommend splitting
those functions?
MR BUCKLAND: Yes, I think so. I cannot
see how the two run effectively together in one meld.
LAURA McALLISTER: We heard this morning
in another session that plenary sessions do not work
effectively in terms of looking at secondary legislation,
scrutinising it in that respect. If your argument is
that there is not enough time as things stand, that
is something that could be remedied fairly easily within
the existing arrangements, a change in the nature of
time allocation to the subject committees, plenary,
shorter holidays. We have to look at all of these things.
Perhaps this is unfair but why have you chosen to present
this scenario, this option, rather than internal restructuring
or international re-engineering?
MR BUCKLAND: I come here from a standpoint
that I think the essence of law making should be primary
legislation. This is not particularly a Welsh problem,
this is a problem endemic throughout the UK and throughout
the way we make laws now. Everything is very bare bones
now and in order to find out precisely what the powers
of various bodies are, what the law is, you have to
trawl through secondary legislation. We know that the
procedure adopted for secondary legislation is not as
democratic as the system that is used for primary legislation.
The approval, the way it is done, is not as democratic
as primary legislation. I think we need to go back to
first principles here and to encourage a culture where
much more the meat of legislation is in a primary form.
One way of doing that would be in the Assembly to have
power for the Assembly to deal with primary legislation
affecting Wales.
LAURA McALLISTER: Does that lead inevitably
to the quest for fiscal responsibilities as well?
MR BUCKLAND: I have said in the past
that I think it will do. Personally I have no objection
to that. I think the phrase A he who pays the piper calls the tune@
is a very true one and for true accountability to be
created I think a certain amount of fiscal power will
be necessary.
LORD RICHARD: A certain amount.
MR BUCKLAND: I am not going to debate
how many pence in the pound it should be. All I would
say is income tax payers in Wales should perhaps have
a commensurate drop in their UK income tax and a proportion
of that should be levied by the National Assembly, for
example. I am not an accountant, I am not a tax expert,
that may be far too simplistic. I think an element of
local Welsh based tax raising will have to come.
TOM JONES: How do you explain the assertion
you made that in the old days the Secretary of state
and two Ministers with a small support team of senior
policy staff were more accountable than the system now
four years on of 60 members plus six cabinet members
with their support teams and the subject committees?
MR BUCKLAND: I was perhaps being a little
facetious. What I meant was it is not really very much
better in many ways than that system, certainly not
as far as secondary legislation is concerned in my view.
SIR MICHAEL WHEELER BOOTH: Would not
a much simpler variant of your scheme be merely if Bills
affecting Wales were published in draft as a matter
of course and then taken first by the National Assembly
and then by Parliament, no question of override or anything
like that, no running through the sovereignty of Parliament,
no question about Parliament Acts in reverse because
your scheme is that the Assembly would have the ultimate
power in the way that the Commons has the ultimate power
at Westminster? Would it not be much simpler just to
go for that?
MR BUCKLAND: I think that would be a
welcome development which could be fairly swiftly achieved.
The draft Bill procedure exists already, it has been
very much under-used so far.
SIR MICHAEL WHEELER BOOTH: It is difficult
to use because you have to get drafting power and instructions
and it is just a practical problem but it can be done
if there is determination. If there was a draft Bill
and the Assembly looked at it and the chamber suggested
changes to it in the way they wanted then it could be
reconsidered and then presented to Parliament.
MR BUCKLAND: I think that would ----
SIR MICHAEL WHEELER BOOTH: That would
effectively be a two stage process.
MR BUCKLAND: Yes.
SIR MICHAEL WHEELER BOOTH: Well, three
really.
MR BUCKLAND: I think that would be a
welcome development that could be done at a stroke.
It does not go so far as to enshrine primary powers
in the Welsh Assembly and I think that is important.
It is not a question merely of form, it is a question
of substance at the end of the day. The draft Bill procedure,
however useful and informative it would be, does not
confer with it power and at the end of the day that
is an important consideration.
TED ROWLANDS: You were one of the leading
campaigners in the no campaign. Is your statement now
about enhancing the powers of the Assembly a reflection
of those fears you had at the time of the referendum
having been released, or some have, some have not? Could
you just tell us which of those fears that you felt
at that time led you to oppose no longer have relevance
or are no longer valid and those that you might still
think are?
MR BUCKLAND: I think at the time one
of the main planks of my argument was there was a very
dangerous raising of expectations here by those who
were advocating a yes vote. It was almost as if Nirvana
would arrive with the dawning of a National Assembly.
One of the arguments I put was although at that time
it was an in principle vote, if you remember the Government
of Wales Act then was put on the table for the 1997-98
parliamentary session, there was a White Paper which
obviously we read carefully and it all seemed to me
to be window dressing and terribly ineffective, the
mechanisms that were being proposed, especially at that
time when we were still talking about the body corporate.
TED ROWLANDS: So you opposed it because
it was not strong enough?
MR BUCKLAND: No. I opposed it in principle
because I did not think it was necessary. I think it
was an unnecessary tier of government. It is here now
and like all constitutional changes bar none - I can
think of one or two I suppose, way back - it is almost
impossible to turn back the tide once these sorts of
things arrive. However small a majority, they are here
to stay. One of the worries I had was it is not going
to change anything, it is not going to create more jobs
for people in Wales, it is not going to improve quality
of life, and I think that argument is still sustainable
now because although in creating a new culture there
is a lot more debate about things amongst the political
classes in Wales, for want of a better expression, people
are still asking A
What is the difference? Is our quality of life any better
now than it was in 1997?@ Putting aside political arguments
for the moment, has the Assembly made a real difference
to our lives? I think at the moment the answer is no.
This is why I am making these suggestions, not for the
sake of arcane debate. I think that if the Assembly
is to affect quality of life and make it better then
its procedures need to be more effective. Many of the
concerns I had at the time about the detail have spawned
the approach that I am taking today.
TED ROWLANDS: I see. You were worried
at the time that there was this ragged division of responsibilities?
MR BUCKLAND: Yes, very much so. I remember
saying that it was not a settlement, it was a recipe
for more questions and answers. Whatever it is, the
current status quo is not a settlement.
TED ROWLANDS: This is an answer to one
of those questions?
MR BUCKLAND: Yes.
TED ROWLANDS: You have experience as
a lawyer. Have you found the way in which powers have
been transferred in your professional life have caused
confusion or fears?
MR BUCKLAND: I am a criminal lawyer nowadays.
I used to do what is called general common law but I
do crime now and I have done for the last three or four
years. That is the status quo at the moment.
What I can say from my experience of having worked with
the RSPCA is they are finding difficulty and at the
moment they have commissioned academic research as to
the precise boundaries of Assembly animal welfare powers,
for example. I think bodies like that want to try and
test and flex the existing powers of the Assembly as
much as possible by sponsoring amendments to secondary
legislation. Although I am a criminal lawyer I have
an active layman=
s interest in this sort of thing and I, amongst others,
am trying to help them draft alternatives and think
about ways of challenging and creating debate at a secondary
level.
TED ROWLANDS: So if, in fact, you found
that around these ragged edges, taking a practical pragmatic
example, to make it better and smoother and more understandable
and comprehensible that it would mean some transfer
of responsibilities to the Assembly you would not find
yourself, as a unionist ideologically opposed to that?
MR BUCKLAND: No, I would not. If it creates
clarity and balance it has got to be good from a unionist
point of view.
LAURA McALLISTER: I am sure you know
that we have a process whereby we are looking at the
policy and legislative areas at the moment and we will
be looking at the electoral side as well. You have been
fairly imaginative in your ideas here about a unionist
perspective on devolution, I just wondered what do you
think of the electoral arrangements? Again, it is something
that maybe as a Conservative you could give a different
perspective on. What do you think should happen? Is
the current electoral system adequate, good, effective
or should it change?
MR BUCKLAND: I do not like it. I am in
the common Conservative quandary of not liking a system
which is actually delivering members. I do not like
closed lists of any sort, I think it is bad. One of
the ideas of proportionality is to give people true
choice. If they like a particular Conservative but want
to vote Labour for their constituency representative
they should be allowed to do that but they cannot do
that at the moment, they have to choose the fixed appointed
party list. I do not think that is good. I think the
additional system is better than a straightforward list
system. I wonder if we are going to stick to the principle
of proportionality, why do we not go to STV? I am not
a supporter of PR in any shape or form, I think it tends
to make the election won in a round of party bartering
and therefore the programme you end up with is a programme
that nobody has voted for. That is my fundamental approach
to PR, but I am realistic, I think it is here to stay,
and if we can improve its quality let us go to STV.
SIR MICHAEL WHEELER BOOTH: So you do
not support PR but you do support STV?
MR BUCKLAND: Well, I do not support the
principle of PR but, as I said, I am realistic. If we
have to have PR, if there is no choice, then it should
be STV.
PETER PRICE: You were saying something
a minute ago, that the meat ought to be in primary form
and the line you were putting to us then was that a
lot of stuff that really ought to be in primary legislation
is now at the level of secondary legislation in the
Assembly and, following from that, secondary legislation
did not receive proper scrutiny. Presumably with such
a volume they do not pick out adequately the things
that contain the meat that really belongs in the primary
legislation, it needs flagging up actually in primary
form.
MR BUCKLAND: That is right.
PETER PRICE: Can you give some examples
of where secondary legislation has been used inappropriately
for things that really ought to be the subject of primary
legislation and flagged in this kind of way? Have those
passed through on the nod or has it been possible to
flag them up and give them special attention?
MR BUCKLAND: The example that we think
about is the Care Standards Act which in some ways was
a success because after some negotiation important sections
dealing with the Children= s Commissioner were added to the UK
legislation. From my recollection of the Act the phrase
was A there shall be a Children= s Commission for Wales@ with little, if anything, about the
remit of that person=
s responsibilities. That then was left to secondary
legislation because it was argued that this was a Welsh
Assembly matter and it would be wrong for Westminster
to start describing what the Children= s Commissioner should or should not
do and that should be dealt with by secondary legislation.
Obviously there was debate about the remit of the Children= s Commissioner. My recollection is
that the Health and Social Services Committee in recent
months has said A
perhaps we have not done as well as we should in the
past@ . On
the new legislation that is coming through, I cannot
remember the name of the Bill, a new Bill that is coming
through to deal with health and social services provision,
they have said to themselves A we are going to take care to look
at all secondary legislation emanating from this and
debate it properly@ , which is an acknowledgement by that
committee that in the past that has not been the case.
PETER PRICE: Focusing on the Cardiff
end of it rather than the Westminster end, we have got
that acknowledgement in that area that the committee
is going to focus on secondary legislation from the
particular Bill. Are there any other examples of things
which at the Cardiff end were dealt with as secondary
legislation where you think the sort of principles at
stake should have been dealt with in a primary Bill,
and if the Assembly had primary legislative powers almost
certainly would have been, and where they did not actually
scrutinise it because it was, as it were, buried in
secondary legislation?
MR BUCKLAND: I think, as yet, there are
not that many examples. I do not have anything specific
to put to you, Peter, mainly because there are not that
many examples. I think I say in the body of my paper
that a lot of the secondary legislation is what we can
term A technical@ . It is still an alarming statistic
that as of spring of this year of the 400 or more pieces
of secondary legislation that went before the Assembly
only ten were subject to the full scrutiny procedures.
That represents a very small percentage indeed of the
total. I am not saying that we should have 100 per cent
full debate on every item but then I go back to my point
that you picked up that it is better to flag things
up at a primary stage rather than end up being snowed
under with little details at the secondary stage.
TED ROWLANDS: If the Assembly has not
conducted scrutiny at the secondary stage why would
they do it at the primary stage? Why would they behave
differently?
MR BUCKLAND: I think the very fact that
it is primary legislation means that the political spotlight
is going to be on that.
TED ROWLANDS: More politically sexy.
MR BUCKLAND: Exactly, for want of a better
word. Plenary sessions will be dealing with an actual
real Bill, the meat and drink stuff, where issues can
be debated, everybody can have their say, a lot of heat
perhaps will be generated perhaps rather than light.
Very much from your experience as a Member of Parliament,
good meaty stuff that you can get into and will be of
interest to the media and of interest to members.
LORD RICHARD: We obviously understand
there can be scrutiny in different ways. Scrutinising
legislation to me means doing what the Lords does in
committee, which is going through it line by line, word
by word, making sure that each section is tidy. Scrutiny
is not deciding the policy behind the Bill. What you
really want, in effect, is a second political chamber
of some sort which does not just scrutinise the way
in which legislation has been produced but actually
produces the policy on which legislation is going to
be based.
MR BUCKLAND: I was very conscious when
I read the terms of reference that the phrase that appears
time and time again is policy making and I know, Chairman,
that is what this Committee is particularly interested
in. I cannot claim special insight into, for example,
the Civil Service side of policy making and obviously
I come here with my perspective which is bound to be
a limited one not carrying a brief for anybody. It seems
to me that the making of good legislation is in itself
an aid to good policy enactment and good quality legislation
means that the policy makers intentions will be fulfilled
in a more effective way. LORD RICHARD: I would not dissent
from that but parliamentary draftsmen on the whole are
pretty competent.
MR BUCKLAND: In Wales, of course, there
is absolutely no tradition of parliamentary draftsmen.
LORD RICHARD: On your scheme it would
be best to have them here, would it not?
MR BUCKLAND: Absolutely, and a good thing
too, a very good thing. I go back to the RSPCA point.
The RSPCA made the point to me that there is nobody
here in Wales to help them, they have got agents in
London who do things for them but here there is absolutely
nobody apart from a few interested members of the Bar
who want to experiment and want to prove themselves.
LORD RICHARD: I am thinking of experimental
members of the Bar!
MR BUCKLAND: I look at it from a younger
perspective, Chairman.
LORD RICHARD: Thank you very much for
coming.
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