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

MINUTES OF PROCEEDINGS

of the

EVIDENCE OF:

DAVID LAMBERT

&

PROFESSOR DAVID MIERS

held at

The Courtroom at the

National Museum of Wales, Cardiff

on

Friday, 28th February 2003

LORD RICHARD: Thank you for coming. We are grateful for this opportunity of listening to what you have to say. What we have done broadly in these procedures is have you introduce yourselves and then ask you to open up the discussion on the basis of the papers that you have submitted. I think that would be helpful.

PROFESSOR MIERS: My name is Professor David Miers. I am a professor of law at Cardiff Law School.

In respect of the Assembly my interest is, firstly, in the management of an on-line service called Wales Legislation On-line and, secondly, as a professor who teaches public law, in the public law consequences or implications of executive devolution here and, more broadly, devolution within the United Kingdom.

On my right is my colleague, Marie Navarro, who works with the Wales Legislation On-line service and is principally responsible for, I might say, the arduous and painstaking task of analysing Acts of Parliament to identify precisely the discrete powers that are transferred to the Assembly under them, and before that, the main transfer of function orders.

DAVID LAMBERT: I am David Lambert and I am in Cardiff Law School. I work with Marie and David. I am also the legal adviser to the Presiding Office. I have with me Sarah Beasley. I was her supervisor for her degree dissertation on devolution, and now she is doing her Masters on devolution, and is hoping to do a PhD. We work together on devolution matters.

PROFESSOR MIERS: Chairman, you invited some initial thoughts and perhaps I might go back to the introductory observations I made about myself and Marie.

One of the key issues it seems to us is the accurate identification of the functions that have been transferred to the Assembly, firstly under the 1999 TFO and subsequent TFOs and, secondly, under post-devolution primary legislation.

With hindsight it appears that the expectations that were raised in A Voice for Wales, namely that there would be transfers by subject area - generic, in education, in health, agriculture and so on - have been not realised. On the contrary, the mode of transfer both in the 1999 order and subsequently is by means of discrete transfer of specific functions within specific sections or sometimes subsections of Acts of Parliament. These are listed in the 1999 TFO, some 350 I think of them, and are listed chronologically rather than by any form of subject coherence.

I think it is worth stressing that this mode of transfer was not obligatory under the Government of Wales Act. Sections 21 and 22 merely provide that functions may be transferred to the Assembly; they do not specify the mode of transfer in the sense of the degree of specificity. There is nothing in those sections which would preclude, it seems to me, the United Kingdom Parliament from transferring to the Assembly functions broadly drawn in education but subject to exceptions no doubt. If you wish, later we have examples of this.

This was, for example, undertaken in the pre July 1999 days and there are examples of transfers by subject matter in indeed education, I think, and also agriculture but these are subject to exemplification. Under the Education Act 2002 there is provision for the Assembly essentially to do anything by way of Henry VIII order to advance the purposes of that Act.

I make these points to demonstrate that it is not a foregone conclusion, in other words, that the mode of transfer should be in this very specific format.

The consequence of that has exercised in particular Marie and I and David, who is part of the management team of Wales Legislation On-line, in this respect. It is a standard requirement of any constitution, that those affected by the law should be able to ascertain clearly, accurately and in an up-to-date format what their legal rights and duties are. To the extent that these differ and are beginning to differ, and will no doubt widen in extent from those rights and duties that are applied across the border, it is in our judgment not an easy task, without overstating the matter, for individuals to ascertain them. I include here professionals - not simply, let's say, trade unions or NGOs or other organisations that might have some degree of expertise on which they can draw, but even legal practitioners.

You will know from your session, Chairman, with the Circuit and the Law Society for Wales, that there is considerable concern among practitioners about their inability - not their own but that of the institutional product - to ascertain how the Assembly's functions differ, whether the Assembly has exercised any of them, and, thirdly, to advise clients.

It was for those reasons pre 1999 that we thought it would be a valuable exercise if the University, in particular the Law School, were to establish, as we have, an electronic database for which, as I briefly described earlier, Marie is primarily responsible as the researcher, and which does provide this kind of analytical framework. I will not go into detail on that yet but I might say that it is funded by the Arts and Humanities Research Board for three years. This is essentially the fund which provides Marie's salary and on costs, but that runs out in December 2004. We have slightly under two years, in other words, of grant left to us.

Leaving aside the obligations that I have as a grantholder to the AHRB, which I also might just underline for the record is taxpayer funded, the question which arises and which was put to us when we gave evidence to the Welsh Affairs Select Committee in October is what is going to happen as from 1 January 2005.

I am aware from the evidence which you have received from the Welsh Assembly Government that there are moves there to introduce some form of web-based index. I am unaware how far that has progressed apart from what I have read in the evidence you have received from the Counsel General, and I repeat here that the Law School and University would be very pleased to work with the National Assembly on the development of this kind of project. It is fair to say that we take seriously as a public institution, the capacity not just of people living in Wales but those outwith Wales, who need to know what the functions of the Assembly are and how they are performed.

Marie could give quite a number of examples of inquiries we have received from lawyers and so on, private practitioners, public bodies across the Severn, who need to know for the purposes of advising their clients what functions have been transferred here and how they have been discharged.

SIR MICHAEL WHEELER-BOOTH: I did not hear the sources of your inquiries about specific cases.

MARIE NAVARRO: It was solicitors from Durham, people from local authorities, planning bodies and individuals. I had phone calls from other universities as well. The main issue lately has been to know, and I will give you a precise example, the commencement date for the Commonhold and Leasehold Act 2002, and whether the Assembly has the power to commence it for Wales. Nobody knew outside Wales or even within Wales if it had been commenced and if the Assembly had made any commencement orders. That was crucial because that Act creates rights for people so the English people had rights which were not available to the Welsh people here. So the solicitors did not know whether their clients should buy property in Wales or not and that was the point. So I had a list of people I had to call the day the Assembly did make the order.

LORD RICHARD: But if I wanted to know, for example, whether one section of the Cycle Tracks Act 1984 was transferred or not and I pressed your computer, what do I get out of it?

MARIE NAVARRO: Cycle Tracks would be classified under ‘Highways and Transport’, so what we did first was to regroup all the Acts listed in the TFO by subject areas - that was the first main task. Then we listed all the Acts under each subject area and you click on the Act you are interested in. This links you to a page where, listed under that Act, are the powers solely exercisable by the Assembly, or those powers which are the shared powers with central government. They are exercised concurrently, jointly, after agreement, or with the consent of central government. Finally there is another part where the Assembly has no powers to exercise, but are retained by central government. The page then shows any secondary legislation made by the Assembly under that Act. By next year I will have added all the SIs made by central government under the same Act. That is my next job. So if you want to know whether a section of the Cycle Tracks Act has been transferred, you go to Highways and Transport, click on Cycle Tracks, scroll down to find your section, and you will see if it is in the sole powers, the shared powers or no powers category.

PROFESSOR MIERS: It is worth emphasising that in effect what we did was create a subject-based classification. For that purpose we used the 18 fields in Schedule 2 to the Act.

MARIE NAVARRO: Which we have applied to new Acts as well now.

PROFESSOR MIERS: That seemed to us to be the most appropriate classificatory system to impose on all of these discrete --

LORD RICHARD: But your view is that it could have been done that way in the orders?

PROFESSOR MIERS: Indeed, and we could provide you with examples from the 1960s of transfers of subject area, subject to exceptions maybe.

LORD RICHARD: I think that would be quite helpful. In other words, if we get an analysis, in effect, of the transferred functions they would be broken down into subject areas.

PROFESSOR MIERS: That is easily checkable simply by clicking on our website. You could print off pages or just navigate your way around it.

DAVID LAMBERT: We have a listing in Sarah's dissertation which sets out all transferred functions.

MARIE NAVARRO: The main problem nowadays is the search capacity on our website. Wnen we transfer completely from the current HTML pages to a database, hopefully next year you will be able to type in "ship" or "cycle tracks" and it should come up with the legislation – primary legislation and secondary legislation made by the Assembly, the enabling powers, the powers retained by central government and any secondary legislation made by central government. For that we need to work with our computing engineers to reorganise it.

DAVID LAMBERT: I have been in the Welsh Office almost since it started - I think I served with Jim Griffiths onwards. An example of a transfer of powers by subject areas was education. The 1970 Statutory Instrument No 1536 says: ‘Subject to paragraphs 3 and 4, the functions of the Secretary of State for Education and Science in connection with primary and secondary education are in matters only affecting Wales hereby transferred to the Secretary of State for Wales.’

Then the exceptions are again by reference to subject areas: ‘Nothing in this order shall confer on the Secretary of State for Wales functions in relation to the qualifications, training, supply or the remuneration of teachers.’

So what was done in that first paragraph was to transfer possibly 20 education Acts just like that, with no specification of what they were, no exceptions by section. The exceptions were again by subject description, and our contention is that that is what might have been done in the Assembly’s Transfer of Functions Order.

TED ROWLANDS: Let us move on. There has been a chorus in the evidence from almost day one saying that maintaining the whole process has been confusing and capricious, and I think we need to test this argument a little bit further - not necessarily test whether it can be done this way or that way but whether the sum total has added up to a totally confusing or capricious process.

Putting a general point to you, we have had evidence from the Counsel General which does contest this presentation from lawyers. What do you make of it, because here is a practitioner advising the Assembly who is rather counter to this chorus of complaint.

DAVID LAMBERT: I am not in any way disagreeing but let us say that I find the transfer of functions order quite extraordinary, like the example I gave and Marie has given of s.5 of the Cycle Tracks Act 1984.

TED ROWLANDS: What was in the rest of the Cycle Tracks Act? Did that make sense or not?

DAVID LAMBERT: The problem is that whatever else was in the Cycle Tracks Act, these were not powers exercised by the Secretary of State for Wales on 1 March 1999.

TED ROWLANDS: But there might have been a reason for that? Not a capricious reason, but a perfectly sensible one.

DAVID LAMBERT: Yes, or in my experience it could have been an administrative reason that there were no officials available in the Welsh Office to operate the system.

TED ROWLANDS: So the transfer of function did not take place because there was no capacity to deliver the service.

DAVID LAMBERT: Yes. The transfer of functions order proceeded purely on the basis of what the Secretary of State for Wales did on 1 March. So, because the Secretary of State for Wales was not resposnible for approving good rule of government byelaws, they were not passed over. But, strangely, we did approval byelaws in relation to dogs. There is no rationality to that at all, and in Scotland the lot went through and Scotland had no transfer of functions order.

TED ROWLANDS: It had the capacity too.

DAVID LAMBERT: Indeed, it did.

PROFESSOR MIERS: There are a variety of answers to the question; one is the policy question. Ought Whitehall to have transferred this to the Assembly? The second is the administrative issue: Does the Assembly or did the Welsh Office have the capacity administratively to exercise those functions, to be responsible for them, to monitor them and so on? Those two questions are ones about which I cannot really make any judgment because they are outwith my ken. The third question is, having decided what to transfer, how do you do it as a matter of law? In this respect the Counsel General’s comments are true. In his evidence he asserts that there is nothing very much more difficult about these transfers than is to be found in the normal complexity of legislation, and certainly having studied this for some years I would not for a moment call that into question. There is wisdom in the observation that legislation is complex and that the exigencies of particular Bills and of the law within which a new Bill has to be framed may well mean that the output is indeed complex. It would be naive to complain about this because that is just the way the legal world is.

That all said, it is not the easiest of tasks when working your way through the Education Act 2002, or the Local Government Act 2000, to work out how Wales is different and differently treated, leaving aside the policy questions.

There are two points here: one is, and I know you have been to Edinburgh, the obvious difference between the settlement there and here, although clearly there are devolution issues because the boundaries are never going to be black and white, but the clarity of transfer is much better. The other point more generally stems from the notion of devolution. If you are a United Kingdom government and you have decided that devolution is something you would like to see happen, it seems to me that the means by which it is happening leaves a great deal to be desired in terms of clarity, and the ease with which its consumers can ascertain what their rights and duties are.

I do not think it is easy for everyone: it may be easy for the Welsh Assembly Government because they are on the Bill team, they know the sequence, but this is not the case for the person looking at the product.

TED ROWLANDS: I would be more interested to look at post-1999 experience in a sense because we have had from the original Secretary of State, Ron Davies, why it has evolved in this particular way and the reasons for it but you have listed acts since 1999 which have completely bypassed the devolution settlement, and I would just like to know whether there was any rationale behind that or whether, again, it was a result of a capricious, confusing process which we need to address.

You listed the Breeding and Sales of Dogs Welfare Act, Protection of Children Act 1999, the Water Industry Act 199, Disability Right Commission Act 1999 and Pollution Prevention and Control Act, I have picked four or five from Miss Beasley's list. Has anybody looked behind that to find why these four or five pieces of legislation which you say fall in the field of Schedule 2 of the Government of Wales Act transferred no powers to the Assembly? Was it either Whitehall being in its usual mood of not wanting to do it? Central Assembly fast asleep? Or that these particular functions were not devolved by nature and were therefore held centrally because that was where it had been agreed the powers should lie?

DAVID LAMBERT: The test seems to have been would these have been powers which would have been exercised by the Secretary of State whilst still in the Welsh Office, and if the test was no, then the Assembly would exercise no functions.

TED ROWLANDS: So there was a rationale behind it?

DAVID LAMBERT: That was the rationale and it still seems to be followed in relation to the Education Act of 2002. For the first eight sections of the Act you have to read through every subsection or section to see if there is a reference to the National Assembly. You suddenly get to chapter 3, the powers to form companies, and it is only the Secretary of State who can make regulations in relation to companies carrying out edication actitvities, and that is because that is a DTI function in England and no DTI functions were ever transferred to the Secretary of State for Wales.

So interestingly enough four years into devolution we still seem to be haunted by the spectre of the test.

TED ROWLANDS: The test is the Secretary of State's test, so at least we know what it is now.

DAVID LAMBERT: Yes.

TED ROWLANDS: In that case, another four years down the road, the Assembly would have had to know all about this Bill and would have said, "Hey, we do not agree with that" or "That is a power that ought to come". Did it? Was there any particular reason why?

DAVID LAMBERT: The problem is that in this particular Bill it would be the Welsh Assembly Government only who was aware, this Bill was never debated at all in the Assembly or in Assembly committees. This is again a problem for this year where none of the bills were agreed to be committed to subject committees as a result of the debate on the Queen’s Speech in December. So subject committees and the Assembly as a whole are just at the moment not involved in scrutinising Bills.

TED ROWLANDS: But the Assembly Government would have and presumably the Secretary of State for Wales would have had a good look at this Bill first?

DAVID LAMBERT: Yes, but presumably finding it very difficult to go against this principle which now is formulated in certain explanatory notes accompanying Bills which states : "This is not a matter which is a responsibility for the Assembly, although we have consulted the Assembly in putting this Bill forward". Therefore, in the explanatory notes we are now getting this interesting concept of matters which are not the responsibility of the Assembly, and apparently are never going to be.

LORD RICHARD: Because the assumption is that in 1999 it would never have been the responsibility of the Welsh Office, ergo it never would be?

DAVID LAMBERT: Yes, apparently so. In relation to schools this must be extraordinarily confusing for school governors, who for the first eight sections of the Education Act, deal with the National Assembly and when they come to the formation of companies have to deal with the DTI. They are the same people dealing with two entirely different bodies.

DR McALLISTER: In terms of the transfer of powers by ministerial functions in separate areas, how would that ease the clarity question? Would one still have to look back at specific acts to assess the detail of Assembly power?

DAVID LAMBERT: It seems that a possibility is that you take the subject matter of the Bill and you give that subject matter or if necessary you expand on that subject matter to the Assembly as a general power. There is a precedent for this in s.32 of the Government of Wales Act where the Assembly can do anything in relation to culture. On this basis, if you have a Culture Bill, then it would be necessary for one section only to give the National Assembly powers to do anythng in relation to culture, including making such regulations as it considers necessary - that would be the subject matter of that particular bill.

If you wanted exceptions, and I agree we are going to have to have them because there are evidently now matters which for the foreseeable future are not going to be matters given to the Assembly, then the exceptions could be again by subject area. We have the 1970 Transfer of Functions Order as a precedent, transferring primary and secondary education except the training of teachers.

Now, it may be necessary to be more specific in something like the new Education Act. It is possible that the Assembly’s powers could have been summarised in one section, except for any powers relating to the formation of companies or any other exception.

PROFESSOR MIERS: You might view it this way: that as things presently are there are two steps that you would need to take in order to determine what functions the Assembly can exercise, and let us stick to education.

Under the suggestions David has put forward which relate to your first question, which was, "Yes, but surely you still need to go back to the Education Act in order to find out the functions" - well, of course, you will. The complexity or otherwise of those Education Acts whose functions, broadly speaking, have been transferred would still present the same sorts of issues as would apply across the border but, and this is the big but, the present arrangement means you have to take a second step which is that you have to look at the broad remit within the Education Act or whatever to see how many of the individual functions in that have been transferred.

LORD RICHARD: That is complicated.

PROFESSOR MIERS: Exactly, and if you went down this kind of track, you could have exceptions generically stated too, then step 2 becomes, if not wholly obviated, at least considerably reduced.

DAVID LAMBERT: But one thing you would not have to do is crawl through every section and subsection.

PROFESSOR MIERS: Though you would, thirdly, need to be able to identify accurately how the Assembly has exercised its functions under these generic transfers or discretely, in its own Assembly orders or other forms of subordinate legislation, circulars or whatever.

LORD RICHARD: Presumably vires problems would be greater if devolved by functions?

PROFESSOR MIERS: I would think that would be so.

PETER PRICE: When the Counsel General gave evidence to us he commented that there was much greater clarity about what were the powers of the Assembly than many people were suggesting and that remark at the time seemed rather surprising in the light of other evidence that we were receiving from other quarters, and at first glance appears to be in total conflict with what you have been telling us.

It strikes me that there was a remark you made, Professor Miers, earlier on which held the key to reconciling these two positions when you commented that it was perhaps rather easier for those within the Welsh Assembly Government who would serve on the Bill team. Are we really dealing with a situation where at first glance, for even a lawyer, the position is enormously complicated and not susceptible to an immediate answer but that somebody who has worked in that specialist area for some time can, either immediately or with an opportunity for study, find an answer to that question and, having researched it or having the knowledge, can at that point give a clear answer in 99 cases out of 100?

Is that a fair summary of where things stand?

PROFESSOR MIERS: I think that puts it rather well.

DAVID LAMBERT: It is interesting in his evidence he says, "Well, it does not cause my lawyers any problems", and I thought, "Well, no, it does not. It would not have caused me any problems in any Bills I have been on in my professional life", because I would have lived every subsection of that Bill. Only a few of us exactly understand the Welsh Language Act 1993 but I was a lawyer on it, and I would think it difficult for others to understand its provisions.

MARIE NAVARRO: Can I add a little point? I invite you to go to the HMSO website and look at the Animal Health Act 2002. What is amazing is, after we studied it, we agreed that there is only one power in one particular section given to the Assembly. But if you read the explanatory notes, the last sentence is: ‘All the functions vested in the Secretary of State have to be read as belonging to the National Assembly for Wales in their application to Wales.

So obviously either Parliamentary Counsel or the person who drafted the explanatory note got lost and did not understand something, or there was obviously a problem. So even people writing legislation or explanatory notes make mistakes.

That is really my only answer.

PETER PRICE: That is very helpful.

Let us move on and make an assumption that this Commission were to go down the road of recommending an approach by subject area. Two situations arise: either that we might be recommending that within the broad constitutional framework as now without primary powers, or that we do it in the context of primary powers being granted to the Assembly.

Can you just take us through the stages of what would need to be undertaken in order for an appropriate schedule to be prepared on this basis in either of those two situations?

PROFESSOR MIERS: To take first the easier of the two, which is to proceed as the constitutional framework is now established, you mentioned a few moments ago that transfer by subject area would create greater degrees of uncertainty, ragged edges as to what has been transferred or not. It might just be said in passing that once you have ascertained what has discretely been transferred, then you do have clarity in that respect.

There is a benefit in specificity because you do know that this section and this part of this section has been transferred - it may not be easy to find it out but you ought to have a good understanding of what has been transferred and what not, and this is not so easy where you are transferring generically.

What would be required is a very high degree of close co-operation between Whitehall and Ministers here in the Welsh Assembly Government as to what shall and shall not be included within the generically defined areas to be transferred.

David has much greater experience of this because of his professional background than I do but it seems government was quite capable of being able to identify, broadly speaking, areas in health and education to be transferred to the Secretary of State for Wales. Presumably these followed lengthy discussions which would now flow from the structures imposed by the devolution guidance notes and the MOUs. You might get lists of what falls within and without, rather like in devolution guidance note 11, of things that are reserved from Scotland.

In that manner you might be able to identify areas where transfer is controversial.

LORD RICHARD: This assumes that you are starting off with a clean sheet, but you have not got a clean sheet. What would you do to try and introduce this change of approach into what we have at the moment?

DAVID LAMBERT: If it were going to be executive devolution and not primary devolution, the agreement as to the areas that were going to go into the new Bills would just be an administrative agreement with Parliament and Whitehall, and the 1999 TFO couild be tidied up.

We think we have this precedent which we referred to in the back of our paper which is that, if you can get an administrative agreement with Whitehall that, generally speaking, functions in any new bill relating to education will be a matter for the Assembly in relation to Wales, then it would follow that in relation to a particular Education Bill that the Assembly would have all powers relating to the subject matters of that Bill. In the Bill when it is presented to Parliament you just have possibly one clause which says, almost like s. 217 in the Education Act 2002, that by regulations the National Assembly may do anything it considers necessary for furthering the purpose of any specific provision of this Act or for general purposes including making amendments or appeals of previous legislation, and in our opinion gradually you would be able to tidy this up.

So if you had a new Education Act the old Education Acts referred to in the TFO could be repealed as necessary..

LORD RICHARD: But if you coupled your idea, in effect reclassifying everything by subject matter, with recognition by Westminster of the Rawlings Principles, then although you have not got primary legislative power in Cardiff you would put the Assembly in a much more sensible position.

PROFESSOR MIERS: Yes. In effect you would be creating framework legislation and simply delegating to, in this instance, the National Assembly as opposed to a Minister in Whitehall powers to do essentially whatever --

LORD RICHARD: The power is in passing the Bill. The primary legislation would still remain in Westminster.

DAVID LAMBERT: Yes. What is interesting is in this Act, though we seem to have a general ideas that Whitehall does not like the Assembly exercising Henry VIII powers, s. 217 is a superb example of Henry VIII powers.

PROFESSOR MIERS: The Government of Wales Act makes it clear that it is quite possible to give functions in this way. It would not require amendment to the Government of Wales Act. The legal possibility of doing it is there; it is the political will that is required to make it happen.

TED ROWLANDS: On the recommendation, pages 9/10 of your paper, purely to clarify my own mind, you make the case in the last paragraph that there should less of a problem in doing this because you are handing over these powers to an Assembly which is a democratic body.

Does that assume that the Assembly remains a corporate body and therefore it is because you are transferring it to an Assembly as a corporate body that you have not got the same queasiness that you would have if you were transferring such powers to ministers? Do we buy this last paragraph with "body corporate" in print, or would it be to Assembly ministers that you would transfer this power?

DAVID LAMBERT: No. You would transfer the power to the Assembly. With any executive devolution on a subject area basis there would be no need to separate the body into two. There would definitely be a subordinate legislative power, but this power, as is demonstrated in s. 214, is an Assembly power.

TED ROWLANDS: So the solution you are suggesting, or proposed, within the context of executive devolution is one where the Assembly remains a body corporate?

DAVID LAMBERT: Yes.

LORD RICHARD: But it does not have to remain a body corporate?

DAVID LAMBERT: No, but, as David said, in order to implement these sorts of possibilities you do not need to amend the Government of Wales Act too.

PROFESSOR MIERS: But to take your second question - if primary powers were to be transferred to the Assembly, would you need to amend the Government of Wales Act - the answer must be yes, as presently conceived it is a body corporate. It would be constitutionally quite improper for a single legal entity both to make primary legislation and in the same breath give itself power to make delegated legislation.

I know you must be well familiar with all of this but the de facto separation of powers which has taken place here in the last three years or so would have to be translated into de jure separation.

PETER PRICE: You gave a description a few minutes ago of how there would need to be collaboration between Whitehall and Cardiff in working out a schedule, assuming that we were still in the realms of executive devolution. Is that process in any way different if we were dealing with it in the context of primary legislative powers? Is the actual business of fixing a schedule of subject areas in any way different, and if so how?

DAVID LAMBERT: We would have to have an Act of Parliament presumably listing the primary legislative competencies of the Assembly, as you have in Scotland. There it is done by giving all powers to the Scottish Parliament with exceptions retaining primary legislative powers in subject areas to the UK Parliament.

PETER PRICE: But if one thinks of the Schedules to that Act, in what way would be the process of achieving that schedule differ from the process which would give rise to a new, completely different, format transfer of functions order, if we buy the principle of subject area devolution?

DAVID LAMBERT: I do not think it would. Schedule 2 to the Government of Wales Act could be used as the guidelines on the baiss of which an amended Government of Wales Act would set out the areas within which the National Assembly could make primary legislation.

HUW VAUGHAN THOMAS: Taking you to page 8, David, you read out earlier the 1999 order. Is your argument in 4 that in fact the Assembly is exercising less power as regards primary and secondary education than the Secretary of State had?

DAVID LAMBERT: No. The attempt in the transfer of functions order was exactly to mirror what the Secretary of State for Wales was doing, but the executive in Scotland has much wider powers in relation to education because they have complete powers under every Scottish Education Act of Parliament, pre 1999.

HUW VAUGHAN THOMAS: For those of us from outside perhaps looking at this, one of the things that we thought that the Welsh Office had was quite general powers over primary and secondary education, and it is therefore strange to see that culture and arts in a sense are treated in one way and yet an area in which for long periods Wales has administratively handled things separately is circumscribed --

DAVID LAMBERT: Absolutely.

HUW VAUGHAN THOMAS: Is there a rationale as to why culture and arts was treated in that way in the transition as opposed to education?

DAVID LAMBERT: The only rationale is I was a member of the Bill team in the 74-78 Wales and Scotland Acts and culture was one of the only two general powers given to the Assembly in the Wales Act of 1978, and so it was repeated in the Government of Wales Act. It is extraordinary what a mirror image the Government of Wales Act of 1998 is of the 1978 Act.

VIVIENNE SUGAR: The Commission is hoping to visit Northern Ireland shortly. Could you just give us some headline issues that we ought to spend time exploring when we are over there?

LORD RICHARD: Could you produce a piece of paper for us?

DAVID LAMBERT: Yes.

PROFESSOR MIERS: What is your timescale?

DR McALLISTER: The visit is in June.

SIR MICHAEL WHEELER-BOOTH: I have two questions.

Firstly, your chart on page 10 of the paper by the draft chapter by Professor Miers showing the numbers where Welsh SIs are different from English ones, and you say that it is impossible to tell how important they have been.

We were hearing earlier today in evidence, or the view was expressed by a member of the Assembly, that the Assembly is failing to do its job on subordinate legislation. You if anybody, particularly you, if I may say so, in carrying out this mammoth job of indexing all the legislation and subordinate legislation, might be able to give us some indication of whether what was said to us earlier is likely to be right or wrong.

With all the caveats which no doubt you as an academic would wish to put in, what is your impression?

PROFESSOR MIERS: The direct answer is that in order to test whether the Assembly's general instruments are distinctively Welsh or badged "Made in Wales" and are different from their English counterparts, you would need, using these numbers in the Table, to take the 74 that have distinctly Welsh content and then compare them with their equivalents made in Whitehall.

We have attempted to do that, but it is not easy. This is because you need to start with a statement of those in respect of which, the Assembly Government would say, "These are the English equivalents". Then, it would be not quite like looking for needles in haystacks, but you would need to look at the entire SI range within education to try to find out what the equivalents in Whitehall are. But if you had these two lists it would not then be a particularly difficult task simply to compare them and to ask questions like, "To what extent do they differ and, if they do, do they differ in some purely technical manner, topping and tailing, or are they genuinely different in the sense that the law which applies in Wales will be different to England?"

That is not a difficult task if you have the SIs - a long task but not difficult ultimately.

SIR MICHAEL WHEELER-BOOTH: Secondly, on the other paper by Mr Lambert, going back to the last paragraph which is ever so slightly Delphic, could you spell out more clearly what is meant in this last paragraph which seems to be an indication, but not very clearly made, of what you believe was a best way forward?

DAVID LAMBERT: These are thoughts which came from a First Parliamentary Counsel. I shall not mention which one but he and I worked together on a number of bills and he said the reason why there are specific sections in most Acts of Parliament giving specific powers to Secretaries of State is that it is very difficult for Parliament to shadow and watch and question what a Secretary of State is doing. Therefore, he said, the usual concept is you give hundreds of specific powers to a Secretary of State - not general ones. That is because of the problem of Parliament controlling the executive.

In the National Assembly, he said about ten years ago when he was reminiscing about the Wales Act of 1978, you have an entirely different situation because there you have a democratic body, where the executive and the democratic body are sitting together and that is certainly true, for example, in Question Time in the Assembly. He said why therefore is it necessary to follow exactly the format of giving these specific powers to the Secretary of State? This is why to me it is so sad, using for example the Education Act of 1972, that you have these dreadful things in s.1 which says that it is for the Secretary of State or, as the case may be, the National Assembly; and s.2, it is for the Secretary of State or, as the case may be, the National Assembly.

He says why do you need that for the National Assembly? Why can you not have one general power? If this was an Act about education of children who were 3-13 you could say, "Look, over to you completely, National Assembly; you control your own executive, do what you want to do in relation to children from 3-13".

SIR MICHAEL WHEELER-BOOTH: That is very helpful but there is a supplementary to that. If you were, so to speak, divine, would you begin again and have another Act, or would you amend or modify the existing one, or use the powers which are in the existing Act to transfer --

DAVID LAMBERT: To take Mr Rowland's point, what I would like to do is start off from now, so that the next set of Bills in Parliament - we have generally failed with the 2002 Act would be to approach it from the point of view of First Parliamentary Counsel and then, using s.217 of the Education Act as an example, the National Assembly would gradually start amending all previous Education Acts so that suddenly you would have education as a subject area gradually building up. You do not need to amend anything else - you certainly do not need to amend the Government of Wales Act. You have a new start in the future.

LORD RICHARD: We now have a problem which is that the museum has been closed, so our next meeting which is at 1.00 is back in Caradoc House.

Secondly, we have listened to what you have told us this morning. I do not think we have had enough information so can we put a marker down that we would like you to come back if that is possible? I would be very interested to hear more about what you were saying right at the end on the practicalities of turning over from where we are to where we might get to, and how we would do that.

Indeed, could you produce a piece of paper to satisfy Michael and with dealt with the practicalities?

I appreciate this is a great deal to ask.

DAVID LAMBERT: And a list of transfer of functions orders as well?

LORD RICHARD: That would be very helpful.

PROFESSOR MIERS: I take it, Chairman, that you will write to us about this?

LORD RICHARD: Yes. Thank you.