Commission on the Powers and Electoral Arrangements of the National Assembly for Wales
Evidence from Welsh Assembly Government Minister for Education & Lifelong Learning to the Commission

LORD RICHARD: May I start by thanking you very much for coming. One knows Ministers are busy people and this is interrupting your work. We are very grateful to you for giving us the time. We are also grateful to you for the full answers you gave us to the questions.

I think some members of the Commission will obviously wish to follow up individual bits of that.  Perhaps I could start by asking one or two general points.

You have seen our mandate. You know what it is we are supposed to be looking at. Looking at the earlier structure of your department in relation to Westminster, it seems that everything is devolved except for two or three bits which are retained. Is that a fair way of putting it? What is the difference between that and the Scottish model ?

MS DAVIDSON: I have to say I have not done a direct comparison with the Scottish model.  Could I could make a few remarks because we certainly did try, in the evidence we have given you, to be very clear about where we are now and how we have reached this point. It has been by a number of routes, as you will have seen in the papers.

What has been extremely interesting – and I think it is appropriate that today I do pay tribute to my until recently colleague, Estelle Morris in this – is that we were able to develop devolution in general and education in a way that I think was novel to Parliament by ensuring that, prior to the legislation going into the Bill, we had already determined on which areas the two countries were going to go in different directions. I was able to have a great deal of discussion with her and my officials with her officials prior to the Bill in terms of the areas that we wanted either England only or Wales only or England and Wales together. I am sure we will want to explore that a bit further.

Certainly, I feel that in the education agenda we have been able to make very full use of the powers that have been available to us. Of course it has not just been in terms of the Education Act that was passed this year; we had a period in the interim of the Learning and Skills Act 2000, which started our new provision in different directions as well as directing how we were going to look at our training support.

This has been very much about taking forward an agenda which we feel is appropriate to the people of Wales and it is one that we have developed in partnership. It has very much been on the back of the document I published last year, The Learning Country, in September 2001. That in itself, as some people around this table I know have heard me say before, was almost like an annual report on my first year as Minister, having gone the length and breadth of Wales to look talk to people about the way we should be developing a learning agenda.

The partnerships that we have been able to develop about where we should be going in the agenda have then taken expression in a range of both legislative and policy differences from our colleagues across the border.

It is also important to say that therefore our engagement with our colleagues in education in Whitehall has been very positive because we have had to work very closely together on taking this agenda forward. We have been exploring new possibilities, new conventions, but there has been absolutely no occasion when there has been any sharp difference of view about the powers that our colleagues and I need to enable the Assembly to act effectively within the field covered by my portfolio.

The only areas in which we had very publicly sought powers were, for example at the end of our review on higher education and we came to the view in that review that we then echoed in our strategy, for example on planning powers in higher education, to drive our collaboration agenda forward. They were outside the scope of the Education Act because that was totally schools focused.

I think we have been able to deliver a very imaginative, Welsh agenda within existing powers. I very much want to pay tribute both to colleagues here and in Westminster for doing that. I hope I have been able to cover that in the written note. I wanted in the written note to you also to make clear the areas where we have had to go through some pretty extraordinary leaps and loops in terms of how we have made legislation work. But, at the end of the day, we have. I think probably I bring specific experience to bear on this because for the first 18 months in the Assembly I was Deputy Presiding Officer and therefore looking at these issues from the Presiding Office perspective and the role of Members in participating in the legislative process, et cetera. I think it has been quite useful to me to have had both sets of views and to have looked very much at the way in which when I first became an Assembly Member some of the issues around understanding the range of powers we had and our capacity to use them were very much in their infancy. It is now bread and butter stuff because we are all so much wiser in terms of what we have available to us and the way that we can use that in the future as well.

LORD RICHARD: Thank you very much indeed. Could I ask you about the nuts and bolts of the process? Presumably you decide in Cardiff that there is a certain policy you want to pursue, which needs primary legislation in one from or another. We will leave that for the moment and come back to that in due course. What do you actually do? Do you pick up the phone and speak to the Minister in London or does the Minister pick up the phone? Do you have difficulty speaking to opposite numbers?

MS DAVIDSON: If we take this last piece of legislation, the Education Act, which I have been fully involved with all the way through, it started with The Learning Country laying out the agenda that we wanted to deliver. We consulted on that document and we had very good responses to the agenda.

LORD RICHARD: Did this come as a surprise to Whitehall?

MS DAVIDSON: No. We have this protocol between us on the terms in which we operated on a "no surprise" basis. That document was published on exactly the same day as Schools Achieving Success, which is the Secretary of State's document that was focusing on what legislation would be coming through in the Education Act for England. At that time, I think we had one ministerial phone call and then generally it was between officials in terms of looking at that document and saying different things and taking forward the agenda in the two countries.

The next stage was to talk to the Committee about the areas on which I would be seeking to influence the legislative agenda. Then that was fed into the process. At that point, all the dialogue happened between officials. We dedicated a specific senior official and a very small team to actually then work up the Bill and monitor the Bill as it went through its parliamentary stages. At a number of stages, I then took it back to committee and made statements to Plenary to keep members in touch with what was happening on the progress of the Bill, and then the Bill completed its passage and was given Royal Assent at the end of July.

LORD RICHARD: Did the Welsh Office play any part in this?

MS DAVIDSON: Yes, very much so.

LORD RICHARD: Was your liaison with the Welsh Office basically or was it with the Department of Education

MS DAVIDSON: We had both. Don Touhig was the Minister who steered the Welsh clauses of the Bill through the committee stages and I had regular meetings with Don to discuss the matter. I had a couple of phone calls with Estelle over areas we highlighted in one of the papers where I was keen to see regulations in terms of junior class sizes. She rang me to say that was not a priority for their agenda. I knew there were other ways in which I could do that in Wales. It was good dialogue. If there was a reason why something which in the ambit of the Bill could not be put in, it was on the basis of dialogue between us as Ministers. In fact, that was the only area, junior class sizes, and I reported that to the Committee at the time. In fact we are using money as a lever on that one, and a very powerful lever it is in terms of the policy agenda.

I suppose one other point from my perspective – and Richard will obviously comment better from the officials' dialogue – is that we also had the Wales Office Minister coming to the meeting. Don Touhig came to the Committee and talked about the passage of the Bill and took questions from Members as well, so we integrated the members of the Wales Office in the legislative process in relation to our Assembly ambitions as well.

LORD RICHARD: Who drafted it? Was it drafted in Cardiff or in London or between the two?

MS DAVIDSON: Between the two.

LORD RICHARD: You produced the draft, it went out, went to the draughtsmen in London and back again?

MR DAVIES: First, who gives the instructions? Obviously we drafted the instructions and the policy divisions within the Assembly, the Training and Education Department, did that for those clauses where there was a very clear policy remit that distinctive provisions should be applied for Wales - sought for Wales. The lawyers then take over and suitable instructions then go forward to the Parliamentary Counsel. Counsel then drafts the language for submission to the Commons, and there is almost invariably dialogue between policy divisions, lawyers, draughtsmen, as to whether the draft that is emerging from the draughtsmen's pen actually captures what is intended in policy terms. That dialogue is by no means one way. Draughtsmen are muscular.

LORD RICHARD: That is true but the dialogue is between you in Cardiff and the Parliamentary draughtsmen in London?

MR DAVIES: Not necessarily directly; it would be, as the Minister has said, coming from the Wales Office through to the DfES who, in the case of the Education Act 2002, had lead responsibility for management of the Bill and development of the Bill. I think I am right in saying – and I may have to correct this – that even those clauses that were Wales only were routed through the DfES but the DfES played no part in that. There was policy agreement.

LORD RICHARD: In the rest of the Bill which applies to both England and Wales, what was your input into that?

MR DAVIES: The first thing that Ministers sought advice on was whether what was emerging in policy terms was likely to be appropriate in Wales, and we took our own view about that. Then there was dialogue with the Secretary of State as to what it would be appropriate, given the current state ---

LORD RICHARD: The Secretary of State of Wales?

MR DAVIES: The Secretary of State for Wales - as to how far it would be right to cast provisions for Wales where they were crafted on an England and Wales basis, given the development that the Assembly had by then reached. Discussion on that – the Minister will correct me if I have got this wrong – essentially was out of regard for the development of the Assembly as an institution.So where perhaps in the past clauses might have been instituted on a mandatory basis – you must, you shall – the decision was taken that for Wales the powers would be crafted on a permissive basis for England and Wales. So Wales clauses are Wales only; where it is England and Wales, rather than "you must, you shall" – the Assembly must do this, that and the other – it was by agreement, "the Assembly may". The novelty there was that for a very large part of the England and Wales Bill the Assembly gained what I think are regarded as permissive powers to do or not to do things enacted.

LORD RICHARD: In the same clause you have a mandatory clause imposed and there would be specific mention of Wales, that it was permissive?

MR DAVIES: Yes, or where England was content with permissiveness jointly.

MS DAVIDSON: There are 217 sections in the Education Act and there are a similar number of clauses that are England only and a similar number Wales only. One of the very important areas for Wales was to ensure that we had our own National Curriculum in Wales, for example, and so the Act separated the national curricula.

We have given you examples in the letter of the kind of powers we were looking for in the education legislation, which was about the partnership agenda between our primary schools and secondary schools. There are Wales-only powers there. That is appropriate for us as a country which is supporting a very strong comprehensive education agenda where largely children would go to their local schools to get the right partnership between primary and secondary schools. That was not an appropriate clause for England where different arrangements operate in very large parts of the country. Having our own Special Education Needs Tribunal for Wales is a Wales-only clause. Looking at the partnerships between the local education authority and the governing body of the school in order to be absolutely clear about whose responsibility that is and how to develop the school's improvement agenda is a Wales-only clause. The establishment of the new foundation curriculum aged 3 to 7, a very important part of our early years policy and strongly supported by all parties in the Assembly, all these things have been supported across the board, it is fair to say, and they come through as support from the committee as well as in the legislation. Once again, these are Wales-only powers because they were taking us in different policy directions.

In some of these areas there was not a corresponding clause because there already is a foundation curriculum in England in operation for 3 to 5s and so they did not need a corresponding new clause, but we needed a corresponding new clause for 3 – 7s. Because it is permissive legislation, we had that discussion prior to the delivery of the Act. It was a very important piece of legislation in terms of the devolution agenda because it really is the first big piece of legislation, as I said at the outset, that not only enables the country to go in a different direction, and Wales has sought to plough its own furrow in the past and often in the education field on the back of permissive legislation, but the legislation was designed to help us deliver that agenda because we said beforehand there were things we were not going to support. We were not going to support specialist schools in Wales. We wanted to maintain the comprehensive agenda, for example; we wanted our schools to be community resources. It very much enabled us to carry forward two different agendas in two different countries, which are related to the needs as identified by the officials and people in the country.

SIR MICHAEL WHEELER BOOTH: May I ask a follow-up question about drafting of instructions for the Bill? My memory is, and I may be wrong, that there is in the concordat, or whatever it is called, the protocols for England and Wales effectively, a sentence to the effect that all instructions are given through the departmental lawyers in this case. Although you can help and indeed do all the work in preparing the instructions in the same way that the administrators, as I call them, in the London department, you cannot actually tell the draughtsman direct what he is to put in the Bill. You may think this is a rather niggly point but it is quite important because you have given the impression in your paper very strongly that relations between you as Minister and your department, and indeed the committee of the Assembly and the Secretary of State at our department, have been exceptionally good.

Another piece of evidence that was produced for today's meeting was from your colleague in finance and from that it appears that perhaps it is a little bit more difficult in the case of the Home Office and the Treasury and the DTI, or whatever it is called now. If that impression is right, this point about the instructions for the content of the Bill is a very important one.

MR DAVIES: I think it is. I also think we were extremely fortunate; people make an enormous difference. It was widely known that in Wales we had one of the leading education lawyers in the country. He has just retired. The respect that he commanded, quite frankly, echoed round Whitehall. So we were in a position to honour the memorandum in the breach.

VIVIENNE SUGAR: On the point about control of committees, you said that Don Touhig was able to report the progress of the Bill and so on, which is a very different flavour of the relationship to the evidence we have heard from others where there was a feeling that, although members of the Assembly committees were to be involved in developing a strategy document or foundation, once it goes into the law-making process, it goes into the clause. Were you just lucky that you were able to orchestrate it in a way that the Committee felt, i.e. had a continuous involvement, or is that supposed to be part of the structure and role of the Committee that you or somebody like Don Touhig would be able to report back on that basis?

MS DAVIDSON: There is no prescription in the model in legislative terms. I think it is a very good one, not least because, as Don Touhig was the Minister in charge with responsibility in the Wales Office to take this Bill through the legislative process, it was important that he heard views of Committee members on the range of provisions that were going to be in the Bill. It was also very helpful in terms of being able to inform Committee members about some of the areas that were not in the Bill and why, when we move on outside the ambit of the Bill because the Bill was focussed on the schools issues very clearly, we will be looking subsequently for other specific education matters.

LORD RICHARD: Does that mean you would like the Bill to have been wider?

MS DAVIDSON: The difference between the document The Learning Country and Estelle's document Schools Achieving Success was that Schools Achieving Success was totally focused on the schools agenda and that was the basis of the Bill, whereas The Learning Country was the first ever strategic document for education, training and lifelong learning we had had in Wales and it goes through to 2010. Being ambitious that everything is done yesterday, it would have been very convenient for me had we been able, in a sense, to ride on the back of that legislation and have a range of other areas as well, but I do not think the Bill would have got through in Parliamentary time had we done so because we would have been literally looking at all points in the education, training and lifelong learning agendas. But we have separately bid for an Education (Wales) Act in which we will be able to pick up those other areas that were not covered by the schools focus at that point.

LORD RICHARD: You are subject to the imprecisions of the Parliamentary timetable in Westminster. If you do not get a slot, you will not get your legislation.

MS DAVIDSON: That is absolutely true. I think it would also be true to say that Wales has done rather well in the last few years in increasing its Parliamentary time. Certainly, I would like to see a guaranteed slot for Wales' Parliamentary time for the future. That has been very much a tribute to devolution. I could not comment on how many Wales-only pieces of legislation we had before, but I think it is not very many, whereas we have had at least one a year since devolution. I think we are looking at something very important here in terms of recognition of devolution among our Parliamentary colleagues.

TED ROWLANDS: The description you have given was interesting because this Bill has 118 clauses that are Welsh only, so a very large proportion of the Bill was Welsh laws; is that right?

MS DAVIDSON: England and Wales clauses, including our Welsh-only clauses.

TED ROWLANDS: I read through the minutes of your meeting with DonTouhig in the Education Committee and he said 181 of the then 211 clauses related to Wales.

MS DAVIDSON: Yes, related to Wales; that is what I mean. They were either England and Wales clauses or they were Wales-only clauses.

TED ROWLANDS: The alternative, for those bits you could not get into the Bill, if you had been responsible for primarily legislation, you would be able to carry in a Bill of that size through a Welsh Assembly Committee structure. Do you have any idea what that would mean in terms of resources such as cost, effort and time? In other words, did you have the best of both worlds in the burden of scrutinising the Bill and taking the Bill through elsewhere while the content of the policy was preserved?

MS DAVIDSON: I have no doubt at this point in time that we had the best of both worlds in this piece of legislation, no doubt whatsoever. It was hard for us to find a couple of officials to dedicate, in a sense, solely to doing the work. Legislation is a very complex issue. As you said, the vast majority of clauses were England and Wales related. In fact, had we had a Wales-only Bill and just looked at that inside Wales, of course we would have had many more clauses relating to other aspects of the agenda as well. We are not in an administrative legislative position at this point in the Assembly where we could take on that sort of effort ourselves.

TED ROWLANDS: You say that one of the sacrifices you had to make was that you could not get in the planning powers for Higher Education. Is that a reference to what Professor Kevin Morgan told us when he came before us, that in fact you do not have the power, as it were, to direct mergers of university colleges? Is that the provision that we you looking for?

MS DAVIDSON: It was not so much that. We have made a very clear agenda around reconfiguration and collaboration, of which merger is one part of the agenda but not the sole part. That is terribly important. This was supported in the Committee, and so all parties supported the idea that since we only had 13 institutions in Wales, if we ended up with two or three which were just not prepared in a sense to engage with the agenda, there needed to be all sufficient safeguards in place in terms of the autonomy of institutions, et cetera, as a power that could be used to direct collaboration, and that was supported by all committee members.

As you can imagine, that would be a very long and well-debated issue in any piece of education legislation. I am very pleased to say that the Sector is showing willingness to collaborate at the moment without that power being in place, but what was important was the ambition that where the Committee fully identifies what it wants to happen on an all-party basis and the Minister then responds to that in the strategy delivered by the Assembly government and agrees with the recommendation, we needed to feel that there was a legislative opportunity for us to take that forward.

TED ROWLANDS: Would that be therefore an Education Part 2 Bill? You would need that sort of provision?

MS DAVIDSON: Yes because what we also have to remember is that it would be far more appropriate in a Wales-only Bill, because it is very much related to having a very small sector in Wales, and needing to capitalise on the strengths of the sector and wanting to be able to deliver a sector that has world-wide support. We have big ambitions in our Reaching Higher strategy about bringing more research money into Wales, and all those sorts of issues. We very much want to take a carrot approach to this. In fact a lot of our agenda in education is about incentivising. We have incentivised collaboration with additional money over and above core costs. We have incentivised widening participation. We do feel that it is also important to have a back-up power in terms of delivery of the government agenda, and that is what the Committee was keen to see delivered.

TED ROWLANDS: Can I ask you just one more question about what you have gained in the new powers. You say you have got powers over the National Curriculum. Does that mean that if, for example, you decided as part your new strategy on 14 to 19 year-olds that you wanted to strip down the strategic responsibility of the core curriculum, you can now do that within your existing legislative powers? You now have the powers to do something as radically different as that?

MS DAVIDSON: I would still have to ask for legal advice as to the full extent of the powers, as it were, because there are aspects, for example, in the basic curriculum ---

TED ROWLANDS: Say you decided you did not want to include science or Welsh as a statutory core requirement?

MS DAVIDSON: We could do that.

TED ROWLANDS: You could do that under the existing arrangements?

MS DAVIDSON: I am saying that there is the basic curriculum, which has subjects like religious education in it. As a result of this legislation, now for Wales only although DfES took this power as well, we will have work-related education for our 14 to 16 year-olds and PSE as a statutory part of that for 5 to 16 year-olds. That needed primary legislation to amend the basic curriculum in that way. We would not be able to change that without going back. The National Curriculum is now totally in the hands of Wales, which is where it should be.

PAUL VALERIO: You laid stress on the good working relationship with the Secretary for Education and said you had had the best of both worlds with the previous experience. How would this have affected Wales and the passage of that Bill if you did not have the same political philosophy in Wales and in England at the same time? There would not, in those circumstances, necessarily be the same spirit of support and co-operation. How would this affect us in Wales with your present Bill?

MS DAVIDSON: I think that is a very important question. What we did have in this Bill was the same philosophy but different strategic action, as it were, on how to deliver a philosophy. That was about ensuring all children achieve to the best of their ability, giving every child a flying start, a change in the school sector to accommodate that, supporting teachers, all those issues, and applying that in all four different parts of the UK. We would all do things slightly differently according to our local communities, the way we take forward that agenda. I think you will find in all four parts of the UK there is a similar philosophy.

The only difficulty I would have had is with a hostile government that decided to make everything mandatory and that therefore it had to be delivered in all areas not devolved. When you go back to the initial question that Lord Richard asked me, the number of areas not devolved is very small indeed. I am sure we will want to talk a bit about those in a moment. A hostile government would have to take the powers back from the Assembly in order to affect our agenda in this way.

LAURA McALLISTER: Can I ask a more general question which follows on from some of Paul's points there? There are two parts to it. Reading your evidence, this is a clear example of a portfolio where you have been able to make some very hard policy outputs. We do not know the outcomes yet but certainly the outputs are very clear, and very distinctively Welsh in many respects. It would be possible to argue that this is a successful policy area in terms of the wholly devolved package. I just wonder: psychologically have there been any instances where you may have felt constrained by the existing powers of the National Assembly in terms of your overall vision for education? I know there is not an enormous amount of areas which are not devolved but when we talk about something like student support, clearly your option there for addressing that very significant issue was clearly constrained by what you were able to do within the confines of devolution as it stands now. If you compare the Cubie Report in Scotland with the Rees Report on Student Support in Wales, there are clear differences in terms of ambition and scope. That is the first part of the question.

The second part really follows up on something that Paul has touched upon. When I read through your evidence, there were a lot of very important and valuable points listed there, but you use words like "creativity" in terms of your liaison with Whitehall and Westminster. At the risk of being flippant, in football terms the creative midfield player is often the big problem because you cannot rely on him. I wonder to what extent you do see creativity as a novel phenomenon that would exist only in the first years of devolution. Is this going to be lasting? I suppose what I am touching upon is: is not all of this very arbitrary and can it be sustained on the same basis post 2003, or even post 2007, with the existing powers?

MS DAVIDSON: To take your first point, I do think we have had a pretty successful agenda in education. It is one to which a lot of people have signed up. It is one that has been developed in partnership. I do think also that when we talk about creativity, it is very much about being a new institution. I said a few moments earlier that we obviously had to learn what powers we had in terms of looking at how well we could use them, and we are still learning what powers we have.The Welsh Office as a previous institution I only dealt with from the outside, not from the inside.But Richard is regularly reminding me of the step change that in a sense an active Minister puts on the Department in terms of the ways they have to look at things, things that were not looked at in the same way before.

I think a lot of this is about learning what powers we have and learning how to use them effectively. As Ministers, we are probably at different stages in that because you start finding that out a lot more when you run a legislative programme, and I have done that in education. You start testing what you can do. I think with the Assembly Learning Grants in particular we had to keep a piece of legislation that actually the DfES was going to abolish in the Education Act – and the Assembly has no powers to make student grants directly – in order to ensure that the Assembly had the powers to work with the local authorities, which did have the powers to make education grants. But it is not a bad route, if you see what I mean. That had a creativity which is just about us ensuring that we know what our powers are and then we can use them effectively.

Sometimes, we might decide that we need new powers, but then we have to see whether we can deliver what we want to deliver within the existing powers. It is true to say that the only area where I would say that we have had any real difficulty has been over the issue of Assembly Learning Grants, which is a very active one, promoting the policy of the Assembly, incentivising learning – the interpretation of the Assembly Learning Grant by the Department of Work and Pensions – which we are still working to resolve. I would not be advocating that, as a result of that quirk in the system at the moment, we should be devolving all benefits arrangements to Wales. I think it is terribly important that those sorts of issues remain UK-wide because people move around. We have got to ensure that people are treated commonly across the country. I think we will continue to work as a devolved and a non-devolved partner in terms of looking at how we can resolve that, because I know my colleagues in Whitehall and Westminster are very sympathetic to the issue. It is a similar issue in Scotland because grants are being counted against a benefit disregard there as well.

In terms of the outcome of the Rees report, we are still waiting to hear what the outcome is going to be in student support from Westminster. I was asked, and I was very happy to do so, to go and seek support from my colleagues in Westminster in terms of that agenda. The work of the Commission is very interesting in that student support is the single area where all three devolved nations have all done something different post-devolution. I have to say as an egalitarian, at the end of the day it might be better if we could work out something that we could all sign up to in a sense together in terms of student support.

So we do not know at this point in time fully what is going to come out of Westminster because the DfES higher education strategy, which was on the timetable to come out at the end of November or thereabouts, may be affected by changes in arrangements in Westminster today. It will have a recommendation about student support. I do not feel there is any area where I have been constrained. I can honestly say that. The only one which I wanted to see in the Act which was not there is this issue about junior class sizes. We put substantial investment into that. I can tell this Commission today that the numbers of junior class sizes in Wales over 35 have disappeared and we are getting down to below 30 now, on target for September 2003, and we will do it via investment. If we get a Wales Education Act, which I am confident we will, I would propose to preserve it in statute.

PETER PRICE: I am going to invite you to take a step backwards into your Cabinet role rather than just specifically in the education area. You mentioned that it would be very nice if there was a guaranteed slot for Welsh primary legislation at Westminster. Would that single slot roughly equate to what you think the needs are for primary legislation? If it did occur, presumably then it would be simple to prioritise because it would be the cabinet here that would decide how to use the slot. Since we do not have that situation at the moment, how does that prioritisation of Welsh primary legislation or Welsh and/or primary legislation occur, if it is not simply the opportunistic piggy-backing of what is going through already?

MS DAVIDSON: There are two things there. One is that we should always use the opportunistic piggybacking on what is there already. There are distinctive pending entitlements in the agenda. Wales is the only part of the UK to have put youth support mechanisms in place, which your Secretary can inform you about in great detail as she was involved in writing the original policy document. That agenda, which has been held up as a beacon across Europe, was piggybacked on the Learning and Skills Act 2000, but the powers were only taken for Wales. We must always use the opportunistic agenda. Because there is always such a wide range of legislation going through Parliament in the parliamentary timetable, where there are specific things we need to do, we will often be able to do them. When we are talking about wanting a big piece of legislation ourselves, obviously we not only need to ensure that we bid for it in sufficient time for inclusion in the Queen's Speech, but that we have sufficient resources here because in Wales-only legislation there is a far greater onus on the departments here in terms of developing that. We have to make sure that we have the resources here to deliver that as well.

Richard will be able to comment on the absolute mechanism that we use. As a cabinet, we prioritise. Cabinet members will, in a sense, put a bid in for areas in which in their portfolios they would like to see primary legislation, and we discuss those at the cabinet and we come up and prioritise the priorities that we then feed to colleagues in Westminster. What I am not sure about at the moment is whether we do it through the Secretary of State's Office.

MR DAVIES: I think I am right in saying that once a year the Secretary of State for Wales invites proposals from the First Minister, who then consults his Cabinet colleagues, and a list is drawn up and tested and then discussed with the Secretary of State for Wales, who then must discuss it in turn with business managers. I think I am right. That is a sort of snapshot of what happens.

Another thing is that a lot turns on developing a public policy culture in Wales. Developing a process of policy formation is relatively in its infancy. But linking that to manifesto commitments and putting manifesto commitments into action and consultation thereafter - that process of engagement; more than the emerging political culture, is a policy development culture.In time I am certain that will have a bearing on the narrow procedural issues about who consults whom, when and on what.

PETER PRICE: In terms then of use of primary legislation, there are two mainly limiting factors: one is the lack of Parliamentary time in Westminster; but the second is in policy development terms that even if you had unlimited time, you would certainly be greatly limited by the resources of actually putting together primary legislation, both in policy development terms and in Parliamentary drafting terms.

Can I follow that through, because I take that to be the sense of what you are saying? To what extent have you been able in your Department, for example, to change the staffing nature of the Department ratios there to be able to support your policy development work; to what extent has this required a substantial change; and are there limiting factors that prevent you making that change to establish and support those new policy developments and legislative support?

MS DAVIDSON: In terms of policy standards, the mechanism I use in terms of developing policy with the department is by what we call our Policy Board, which brings all the heads together from different parts of the Department . We focus very much on how we are developing The Learning Country. That is the agenda we have laid out. People have responded positively. It is a long-term agenda. That is the mechanism we use in policy standards, which is also able to identify where there is any necessity for legislation. That is what we did prior to the Education Act or prior to the Bill being published; we identified where that new legislation was needed and took that to Committee and then put it into the process. I do not manage the department; Richard does.

MR DAVIES: There are limitations, of course, in the sense that resources are finite and one has to be sure that, in investing in civil servants, you are going to get a decent return. These limitations are not actually insuperable. You do not necessarily need a large cadre of full-time civil servants permanently employed to deliver on the list of issues. For example, I think the coming of the Assembly and the impetus it has given towards bespoke policy making for Wales has healthily compelled us officials to think outside the box - to use secondments, attachments and willing hands to actually help us get things done. We have extended the advice and policy development process and, from my perspective, that has been a very lively and beneficial thing. There are limitations. Those limitations are very often proper ones bearing on the proper use of public money and keeping resources under firm control.But they are not necessarily insuperable. Some of the innovative work, the lively work, the Assembly has urged on us has been delivered in new ways. We are having to find new ways of doing new things.

PETER PRICE: Where are the willing free hands that you found most useful? I do not mean categories of types.

MS DAVIDSON: Secondments.

MR DAVIES: HE (Higher Education) has been very willing. The Rees Inquiry was itself enormously assisted by one or two graduates to do research and investigatory work; for career development reasons, deputy head teachers and head teachers……..

TED ROWLANDS: Monitoring project teams, and I have just been on one for the 14 to 19 year-olds.

MS DAVIDSON: I think that is right. Actually, we are using as wide a group of people as possible. If we were to go through the membership, for example of the 14 to 19 project team, we had all interests on there from people who spend their lives in schools, to people who deliver and support training to businesses, to people involved in the youth policy agenda. We use the model of task and finish groups a lot. We have just had a task and finish group that reported today to the Committee on truancy, chaired by Professor Ken Reid, who is an internationally renowned expert on truancy. We are just about to commence work on the School of the Future, which is a Committee policy study. It, for the first time, is going to use a reference group rather than a special adviser because of how effective our arrangements are for bringing together experts who want to contribute towards the development agenda. I think that is what enables me to say with some confidence that this is not my agenda; it is "our" agenda in Wales. We are developing it with such a wide range or people and we have been very lucky to have this marvellous, committed group from all sides who want to contribute towards making this work for Wales.

TOM JONES: There are two things. First of all, building on what you have just said about "our agenda", to what extent has the Welsh people's agenda been stifled by this Parliamentary competition? I can imagine that both health and education over the year of an Assembly would get a Wales-only Bill opportunity. I think of transport, the environment and other cabinet responsibilities; would the spectrum of opportunity be a lot further from them and would there be a need to discourage creative policy-making in Wales because you could not deliver through primary legislation? Is that a problem, do you think?

The second question is something I ask in ignorance. Is there anything to learn from the issues that were involved with the Criminal Records Bureau? Is that a Home Office responsibility? Therefore, there is a third department – yourselves, the Education Department and another Whitehall department – involved. To what extent did devolution actually make working with that bureau difficult? Have there been any problems or lessons learnt from that?

MS DAVIDSON: To pick up the last point first, we had very good dialogue with the Criminal Records Bureau, once we all reached crisis point! Right at the end of the summer holidays, we obviously all wanted to make sure that our teachers were in our schools as quickly as possible and that they had the proper checks in place. We had both official and ministerial dialogue over those few days. It was extremely helpful and useful. We had named people in the Criminal Records Bureau to whom we could have access. We worked with our local authorities here. I think that sometimes, once a problem has been identified, you can very easily find a solution. In that case, I think the problems with the Criminal Records Bureau are well documented. The systems were not adequately in place to tackle the numbers of people involved. Timescales slipped and that affected particularly those people coming in as new teachers.

In actual fact, had all authorities in Wales operated the Assembly guidance without reinterpreting it – and only one authority reinterpreted it – we would have had no difficulties. The key issue was about the fact that if you were in a maintained school anywhere in the UK, and in a sense had already been through those existing checks and moved to another maintained school without a break, you did not need to be re-checked at that point. That caused problems to one authority but in all other authorities the Assembly advice was just reproduced as Assembly advice. There were no problems with that. The Criminal Records Bureau was obviously still having to look very hard at the way it delivered its service, but that is not a devolved/non-devolved matter; that is a specific issue for the Home Office.

TOM JONES: Since the devolution settlement in the new Acts of Parliament created by non-devolved departments, that means that you have to be constantly vigilant about "how would that affect our responsibility in education?"

MS DAVIDSON: We are constantly vigilant.

TOM JONES: How do you feed that in?

MS DAVIDSON: We are constantly vigilant. We have had a dialogue for many months over concerns that have been expressed almost universally about whether or not the Criminal Records Bureau was going to be able to deliver on its target time of three weeks for a settlement.

Can I return to the other point you make? It goes back, in a sense, to my answer to Laura, which is about the fact that we are still learning about the use of our powers. We do not always need primary legislation in terms of doing what we want to do in the policy agenda. In that sense, I could use that junior class size issues again in a way: what we and future Assemblies undoubtedly will do is to look at the powers we have got and use them as effectively as possible. I think we have done that. We have tested some of the boundaries of that as well in terms of the education agenda. But it is very important that that is properly done. I know that is going to be a very important part of your remit to test how effectively that is done.

As a Cabinet, although I would say as a Labour Minister the political priorities are going to remain health and education, the majority of my agenda does not require primary legislation; it requires delivery, not least because so few powers are actually retained centrally, and most of the powers are devolved to Wales. There are very few areas on which I would actively need to seek primary legislation. At this point in time, were I able to get a Wales Education Act, I would be able to pick all the ones up that we have identified at the moment

LAURA McALLISTER: Can I just probe that issue? On the areas which are not devolved, two very important ones, particularly teachers' pay and the main student support scheme, you say that you do not need primary legislative powers, but those are two areas where primary legislative powers might actually affect your policy agenda. If you think about the shortage of teachers in key areas, the issue of pay is obviously a question there. If we take the under-representation of key groups in higher education in Wales, then possibly a different student support scheme might be a policy incentive there. I just wonder what you might have done differently had those areas been devolved?

MS DAVIDSON: Nothing, and I can honestly say that, in both those areas because, if you take pay and conditions of teachers, it is very important that although your party has an ambition to devolve those powers, that is not supported by ---

LAURA McALLISTER: It is not my party, I hasten to add.

MS DAVIDSON: You are here as a party nominee.

LAURA McALLISTER: Nominee, yes, not representative. I am not a member of Plaid Cymru.

MS DAVIDSON: The party that nominated you has an ambition to devolve those powers but that ambition is not shared by others in the development of the Welsh education agenda, I think not least because I see my job as Education Minister to protect teachers. Actually, the powers are there at the moment if you wanted to encourage differential pay, but I have to say ---

LORD RICHARD: I am sorry, how would you do that?

MS DAVIDSON: They are in the Education Act.

LORD RICHARD: You have got the right to encourage differential pay?

MS DAVIDSON: Yes.

LORD RICHARD: But they have reserved all the other functions. Is that right?

MS DAVIDSON: No. The Education Act allows schools to offer different pay to teachers in terms of attracting them. The power is already there in the education legislation but we actually feel quite strongly that as an area, particularly an area where economically we have some catching up to do with the rest of the UK, we would be betraying our teachers if we were to take them out of the national settlement, and our teachers feel that as well. I think one very important point is that, certainly while I am Education Minister, I would not want to be doing things in those terms to teachers that the profession was not seeking. I think it is terribly important that we give the profession confidence.

It is also very important to say that there is enormous fluidity, which is not always fully realised, across the border. We have a very long border between England and Wales and there are a lot of teachers who live in Bristol and teach in Wales, who live in the eastern parts of Wales and teach across the English border, and even more so in north Wales. It is terribly important that we do not go awry on pay and conditions issues.

That is in terms of areas which have constrained functions. However, we have, in policy terms, been able, for example, to put a performance management system in place that is far gentler than the one across the border. So in policy terms we have been able to deliver that agenda and that has been very much welcomed by the teaching profession in Wales as has the announcement we made yesterday about workload. I think we all welcome the new contractual provisions which are about releasing teachers to teach and developing the timescale in which they can have 10 per cent of their time directed for planning, preparation and assessment. But the ambition in England to introduce specific sorts of new posts to deliver that is not an agenda that we are likely to follow in Wales, and there is no compulsion on us to do so.

Even though pay and conditions are not devolved, at this point in time I think it is absolutely appropriate that they remain an England and Wales issue because it is about protecting our teachers as well as about ensuring that they can flow across the border.

There are some issues which we have identified in the paper where, for example in England, they have a single induction year and we are looking at induction plus two in terms of early professional development. Therefore, we will end up with teachers being trained slightly differently in their early years. We have had the dialogue with the Department for Education and Skills about that. That will be brought into line.

There are areas where we can lead in terms of taking forward agendas that are very positive about supporting the teaching profession. The way we deliver continuous professional development is another one with an entirely different policy. Although teachers' pay and conditions are not devolved, the policy by which we support the teaching profession is devolved. That has been very positive to us in Wales as well.

LAURA McALLISTER: What about the statement issue? Would you have done things differently in terms of learning grants?

MS DAVIDSON: In terms of learning grants, the importance of that is that we are very pleased to use the expertise within Wales. That is why we established the Rees Commission and that is why we undertook to deliver on their recommendations.

In terms of the Assembly Learning Grants, I would not have done anything differently because I think they are a fantastic new tool in terms of incentivising learning, and they have been welcomed across the board as well, apart from, as I say, this very small group of people which we do have actively to address in terms of those who are in receipt of benefit and whom we want to incentivise into learning and who are not at the moment able to make full use of an Assembly Learning Grant. That is an issue we are following up very actively at the moment. I will be making a statement to the Assembly next week when we have a final outcome from the Department of Work and Pensions.

In terms of other student support mechanisms, as I say, until we get the outcome of the Government's review of student support, which is influenced by the Rees Commission, which is influenced by what is going on in Scotland and Northern Ireland as well, we will not be able to see how well, in a sense, that influenced the UK policy agenda, which is another important question for this Commission.

TED ROWLANDS: To follow up on Laura's question and to wrap up this section, could I have some further clarification about what was the problem with the Teacher Remuneration Scheme. There is a slightly different emphasis in the two documents you presented. The one we received on performance-related pay concentrated, and I quote, on saying that it was pressures being put on school budgets and head teachers who were faced with difficult decisions because of lack of clarity in pay. That was the explanation for the problem that arose, whereas in the document you have given the Commission you say that it was the Education Committee of the Assembly which specified the limits of the powers of the Assembly in a way which it was not possible for The National Assembly for Wales to make separate provision from England on the criteria to be met for teachers 'support by professional performance-related pay. There is a difference between those two statements.

MS DAVIDSON: They are two different things. If I take them in chronological order, this is an interesting area. I was actually Deputy Presiding Officer in the Assembly when the pre-16 Education Committee, as it was at the time, thought that they would be able to use the Assembly's devolved powers to make regulations on performance management arrangements and that the Assembly could determine the threshold standards. The Presiding Officer determined basically that they should be able to have independent legal advice to advise them on this. But Counsel's opinion, provided to the Committee, confirmed the view that had been given by the Office of the Council General at any rate that, whilst the Assembly may establish a system for the assessment of teachers' performance, which we have done - and that is what I was referring to when I said we had a gentler system as it were in Wales, which is strongly supported by the teaching profession and had no opposition as it went through it regulatory process - the Assembly does not have the power to establish a scheme for the determination of teachers' pay by reference to performance. That power is retained by the Secretary of State for Education and Employment. That was the first issue which I referred to in the paper.

TED ROWLANDS: As a Minister, would you have liked that power to do a scheme or, from what you are saying to us today, you would not want to have deviated in a way and manner that such a scheme would require?

MS DAVIDSON: I think that is the point. While we had the power to have a system of delivery, which I felt was a really important one, I was not there as Minister at the time. It is important to say that. I was not privy to all the discussions at the time. I do not really feel I can comment on that specific issue there and then, other than in the broader context. I have meetings with the unions both individually and jointly – individually twice a year and jointly twice a year. I meet the unions four times a year and they have never put to me that they want these powers devolved to Wales, because they are concerned that, if they did so, it would be much more difficult for teachers who live in Wales to work in England or vice versa.

TED ROWLANDS: If the Committee had wished for you, as Minister, you would not wish to have that power?

MS DAVIDSON: I cannot comment on that specific episode because I was not Minister at that time. It would be inappropriate for me to have done that. In a sense, what that particular episode demonstrated was a new body struggling with how it was going to interpret the powers it had available to it. The outcome of the episode was that the Presiding Officer had an independent legal adviser. It was not an education outcome; it was an inside Assembly outcome. I was involved in the discussions from that side.

On the issue of the post-threshold pay, which is the second issue that you were talking about, the guidance was too general in terms of the way the way it was framed. In England the Secretary of State instructed a hard interpretation of that guidance, and there was insufficient money fully in the system in terms of all teachers who had reached that point in a sense to pass through the upper pay band point.

In Wales what we determined to do was not to limit this by finance. We felt that if it was going to be a performance-related scheme, that is what it should be and we should not, in a sense, put an extra barrier in by limiting the finance. We worked very closely with the local authorities to put a total of £18.7 million additionally in to ensure that no teacher in Wales would not be able to go through the upper pay band point because of insufficient money being put in place by the Assembly government. We worked very closely with the local authorities and they distributed the money by formula, and that money was distributed at the end of May.

We had indicated from January that we were prepared to look at this and from March that we were going to do this, but it took quite a long time to get the information in from local authorities in terms of numbers and people until we could actually deliver the right amount of money into the system. It does mean that in Wales, even on something which is non-devolved, we are in a slightly different position because we have put sufficient money in to the system to make sure that all teachers can proceed to that point on performance criteria.

There is an issue about the performance criteria which we have raised with the DfES as others have. It is going to be researched by the School Teachers' Review Body as well in terms of clarification because it was felt to be slightly too general to be helpful, so there were two different issues.

SIR MICHAEL WHEELER BOOTH: First of all, can I put a question to your civil servant, which he may not answer. The implication is that there is more going on, there are more policy initiatives, there is more work. Would you say that it has been more fun working in the Welsh Office since devolution or not?

MR DAVIES: I look for fun wherever I can find it! The straight answer is that there are days when it is absolutely exhilarating and wonderful and remarkable and days when you wonder why you joined. On the last point, I must say that I have had days like that in other Whitehall departments in other parts of the UK as well.

If you are testing me on "is it professionally more demanding or more interesting or more engaging" I am perhaps not the right person to ask but, from my personal point of view, the answer has to be affirmative – yes.

SIR MICHAEL WHEELER BOOTH: Could I ask, Minister, two or three questions based on your admirable paper, which makes this much clearer to me as a novice than it was before. Firstly, on page 1 you talk about how you give directions to local authorities in Wales and the division of youth support services. That made me wonder; it seemed strange that an Assembly elected by PR is in a position in which it makes local authorities, elected in another way, spend money on objectives which the local authorities may well not or might not, depending on their political complexion, agree with. There is a logical difficulty about this situation. Unlike a parish council in England, you in the Assembly cannot raise a penny on the rates, or whatever they are not. It just does seem logically very odd.

MS DAVIDSON: There are two answers to that. The first one is that I do not think we would have this particular piece of legislation in Wales had Alun Michael not been First Minister or First Secretary for Wales at the time. Alun and I shared one thing in common, which is that we both were youth workers at times of our lives. One of the things that I think those of us who have worked in the youth service feel very strongly is that when it was decimated over the last two decades, what we lost was a lot of informal support for young people that had been very valuable indeed. The work that was carried out by the policy group which wrote the Extending Entitlement document made it absolutely clear that actually informal support is one of the best possible mechanisms for delivery if you want, in a sense, to engage with the disengaged and particularly to re-engage with the disaffected. We were very keen to tie this in, not to a leisure agenda but to a learning agenda, which is why the powers were taken under the Learning and Skills Act. I am absolutely clear that it is because of Alun's vision as the first Secretary of the Assembly and because he worked so long in youth support services that we had that in Wales.

Then you have to look at how best to deliver it. Another area that Alun and I had in common was that we had both worked in local authority youth service provision, and it was good, and it delivered. It was the best focal point, particularly with the very important role that local authorities have as community leaders. It was very important that we aligned issues around young people and learning in less formal ways with the important role of community leadership of local authorities, plus many of them were still struggling to deliver the support activity from a very tiny base. So local authorities were not in any way to us an illogical argument but a totally logical argument, that there should not be powers where the Assembly directed the establishment of youth partnerships which did not have a local base. The local authority areas are discrete areas; in most ways they are community-based but not all. Youth partnerships bring together the statutory sector and the voluntary sector and providers and aspirants. They must take account of the views of young people. All this is best done at the local authority level, not least because all our partnership agendas between the Assembly and local authorities in education and delivery are done at the local authority level as well. It is done in parallel and I think this part of it is going exceptionally well, and this is the right place for it to be.

SIR MICHAEL WHEELER BOOTH: May I ask another question based on your paper?

LORD RICHARD: On that point, you had to get legislation from Westminster in order to be able to deliver. Is that right? In other words, if it had not been done in Westminster, you could not have done it here?

MS DAVIDSON: No, we would have had to use a policy agenda rather than a statutory power.

LORD RICHARD: What does that mean?

MS DAVIDSON: What we have done is required the local authority by statute to set up young people's partnership, a very ambitious agenda about the way we can extend their entitlement. Some of those local authorities were already doing very good work in terms of supporting young people but without the legislative direction, we would not have been able to cover the whole of Wales. We believed that it was important enough in our overall learning agenda to require that to happen. They did gain a bit of extra money for new burdens.

SIR MICHAEL WHEELER BOOTH: The next question is based on your page 2 of your paper. You have all these initiatives and powers to make regulation and so on listed. It does seem that if they are all going to be acted on, it means more and more bureaucracy if one wants to be doubtful about it. Are proposals being made on the one hand to cut down on bureaucracy? Academics in Oxford complain terribly about the administrative workload. It seems that if you are going to try and do these things – and I am afraid I do not know and there are probably very good objectives – you cannot just go on raising it all the time without cutting down somewhere.

MS DAVIDSON: First of all, perhaps I should say that obviously the contractual stuff on teachers' workloads that came out yesterday will contribute very much towards reducing the workload, not least because the 25 administrative tasks that at the moment are nearly always carried out by teachers, and have been identified as more appropriately carried out by support staff, will be progressively removed from the teachers' agenda between 2003 and 2005. In addition, Wales was well ahead of England in setting up a Bureaucratic Burdens Working Group. It reported on its first year in August this year. We gave additional money to schools last year in terms looking at how to tackle bureaucratic burdens, not least because we have the largest number of small schools in the UK, and that is an important issue when you load the paperwork; it is a disproportionate burden on a very small school with a teaching Head.

We have now, following on from that report, a Bureaucratic Burden Advisory Group, which tests in a sense every policy initiative as to whether it is beneficial to the education agenda or whether it is going to contribute to bureaucracy. This agenda is one that we advocated in The Learning Country. I am very happy to explain, if you want me to, a bit about each of these provisions to demonstrate that they are not bureaucratic provisions. Would you like me to do that?

SIR MICHAEL WHEELER BOOTH: No, because it is a very long general point about cutting down. There is a new regulation or Act – and I have forgotten the exact title – but the whole rationale is that Parliament allows a quick procedure for getting rid of unnecessary regulations on business because they became aware that there were too many regulations. Those only had partial efficacy. It is nevertheless an objective in Whitehall to cut back as well as to build up.

MS DAVIDSON: We have exactly the same objectives. One of the things our Bureaucratic Burdens Working Group has identified and delivered on is in terms of all information, for example, coming out of the Assembly. We used to be in the position where different departments of the Assembly would send questionnaires off to schools, or whatever, and they would have to fill in similar information three times. What we have done is to make sure that we do not have to look through all those kinds of issues. What we have not cracked yet is the devolved and the non-devolved.

The Home Office, for example, requires information as well and we have to look effectively as to how we deal with that, but we carefully looked at every single one of these provisions and determined that this not a bureaucratic burden. In many cases the new powers are about a clarification of responsibility that schools and local authorities welcomed in terms of determining partnership arrangements for school improvement, for example. When we are looking at the partnership between primary and secondary schools, this is one of these extraordinary situations where you realise in your travels around Wales that schools have become quite self-contained and that secondary schools do not always use the information from the primary school effectively. What we want to do is send a strong message about how schools should be jointly developing strategies to deliver an agenda that actually is about improving achievement, and that has been welcomed as well.

We are not going to spell out a strategy in 20 pages of civil service inhospitable text. What we are going to require is that a sense strategy between the secondary school and the primary school is about delivery. It is not about a bureaucratic burden; it is about educational enhancement.

LORD RICHARD: Can I just put to you what seems to me to be emerging from what you are saying and what you have put in as evidence. On the whole, you are dependent upon getting a regular slot in Whitehall as far as legislation is concerned. If you do not get the slots, you do not get the powers. If you do not get the powers, you cannot do what you want to do.

Secondly, you use a nice phrase, if I may say so, in your paper when you say that problems can generally be resolved through the creative use of the transition provisions. I take that to mean two things: one, very careful drafting of regulations; and, secondly, good relations between your Department and the ones in Whitehall. In that context, may I say to your colleague that it does seem to me that the pressure towards your getting Henry VIII powers for certain pieces of legislation is irresistible under the present structure.

Thirdly, it seems to me that it depends a great deal upon personal relationships between the people in Cardiff, both ministerial and others, and the people in Whitehall dealing with Wales. That depends, as you said yourself, on having some kind of common philosophy or at least a common approach to departments in Whitehall.

Are you fortunate enough to have a common approach to all the departments in Whitehall or just with the Education Department? Do you have more difficult ones to deal with?

MS DAVIDSON: The answer would have to be "yes", but one of the difficulties is that the Home Office is such a big department and it is not devolved. There are lots of areas of the Home Office that impact upon us regularly. For example, we have very good relationships with the police services in Wales. I am sure you will explore some of these issues when you talk to my colleague, Edwina Hart. There are certainly times when, for example, I find out after the press release has gone out that there is a new range of drug initiatives taking place in schools. I am always happy to welcome money for drug initiatives in schools in Wales, but this is still in its infancy, I would suggest, in terms of getting those kinds of relationships right.

You are absolutely right in your analysis. We have been able to deliver a great deal, but I think it is important also to go back to the point that so little of what I do is not devolved but actually one can get on and do it in Wales. I could not comment on the degree to which other Ministers' portfolios are or are not.

LORD RICHARD: If you turn what I said before on its head, you end up with the situation that virtually everything is devolved except that which is retained. The only bits that are not retained are the ones you have set out in your paper. They are important but there are only two or three bits. In a sense, the legislation which set up Welsh devolution is predicated on going in exactly the opposite direction of the reality you see.

MS DAVIDSON: I am not sure that I understand the point.

LORD RICHARD: I am sorry. What I was saying was: if you look at the structure of Welsh devolution, it is that you devolve certain powers from London to Cardiff. If you look at the Scottish initiative, it is that all these go to Edinburgh except that which is retained. What I am saying is that the way in which you are operating in your Department, the structure that you have got, is almost the second model rather than the first.

MR DAVIES: It rests on a transfer of powers, not a devolution of function.

LORD RICHARD: I am not sure what the difference is.

MR DAVIES: It rests on transfer of powers on the statute book, individual strands.

LORD RICHARD: Certainly, and that is way it should be done.

MR DAVIES: Parliament has not said that the responsibility for education and in future all aspects of education, come what may, attach to the National Assembly for Wales. That whole function is yours. Yours is the right to legislate in that functional field.

LORD RICHARD: I am asking whether that makes sense. The Commission is here to try and find that out.

MS DAVIDSON: My understanding of the devolution settlement, and I have no legal background, is largely that what was devolved, apart from small bits at the edges, was what was in the existing role of the Secretary of State for Wales, which of itself was not a strategic group of powers because they had been devolved over different periods of years, different Secretaries of State, different times and for different reasons. I have never, in a sense, subscribed to an argument that suggests that we need more powers just for the sake of it. What we need are powers to do our job. Certainly in terms of my job as Minister for Education, I have had the powers to do the job.

LORD RICHARD: But a bit precarious?

MS DAVIDSON: Not precarious, but then I would not have been able to do the job as quickly had there not been a piece of education legislation on which I could lean. That is an important point. I was very lucky there. I think that when people talk about the fact that the education agenda is one of the most developed in devolution terms, that is because we had the legislative opportunities as well. We certainly do need to think about the way we create legislative opportunities for Wales in order to deliver the agenda of Wales.

TOM JONES (In Welsh, then interpreted): To cope with this new dynamic within your own Department, to what extent do we need to look at the ability of the Assembly Committee to respond? Is the size of the Committee and its ability as it stands at the moment of assistance to you? You mentioned the agreement that was in place when you passed the measure or the Bill and that the committee were entirely in agreement with your ideas, but to what extent does the size of the Assembly, as far as the number of members concerned, split into a number of sub-committees, a hindrance to this?

MS DAVIDSON (Answering in English): Thank you for the question. I find that quite difficult to answer because I actually find the Committee about the right size to do the job we have. It is large enough to have a range of points of view to make sure that all parties are represented on it, but it is small enough to get on with the job.

I think that members of the Committee would say that we have been able to reach a greater deal of consensual agreement, other than on major political platforms, about the way forward. The Committee report on the early years, which led to the establishment of our foundation agenda in Wales, had all-committee support. The Committee report on ICT and how that fits in with the very exciting broad band of the expanding agenda in ICT for learning, both in schools and elsewhere, had all-committee support. We are embarking on a very exciting project called School of the Future. Certainly what came out the first meeting on that today would indicate that we will be able to do some really exciting work, and the Committee is the right size to deal with it.

Where the difficulty comes is that because there are relatively few members of the Assembly as an institution, the kinds of things that also influence the agenda in Westminster are not able to happen as effectively; for example, all-party groups, those sorts of more informal mechanisms that bring the interests of members together, where you need to ensure that you have members of all political parties to make it work, in developing consensual agendas on issues on which it would be really useful to inform the committees.

We struggle here because there are so few members and you will find that a number of members – I was Joint Chair of the All-Party Group on Cycling but we have not met for some time – are involved in other groups.

There are some real issues about how you get that other important membership base where you engage with the external community in Wales so that they can feel they do not have to come just to a committee but they are engaged with members who are very interested in specific issues. In a group with a membership of 60 like the Assembly, that is immensely hard. I really commend the ones that have survived, but it is interesting that the ones that have survived are almost all in the major social policy issue area. There are not many others. There are probably only five or six doing any kind of operation. I think that is an issue.

My personal view, because you asked me the question and we have no view as a Cabinet, as it were, is that the Assembly will need more members, that devolution is a process, not an event, that we will need a strategic agenda over a period of time and that will need more members to deliver it. That is a personal view.

TED ROWLANDS: Can I deal with another aspect of this? Do you think that as we go through Assembly Secretaries, Ministers should be on Committees? Should it be a committee of backbenchers and, as you become a Minister, things are channelled through you to a committee now rather than in the original concept where Ministers are supposed to be answerable to the whole Assembly rather than going through you to the Assembly?

MS DAVIDSON: I think that we have the mechanisms in place for the Committee to report to the whole Assembly. All the Committee reports are introduced by the Chair to the Assembly. The Minister only has a very short time in which to make any kind of contribution in that plenary debate. The Minister will then respond to any of the recommendations in the report at a later date.

I would have to say that in education so far I think it has been a remarkably innovative way of dealing with the development of policy and has worked extremely well. Interestingly enough, only today we had an observer from Party Quebecois who was watching the Education Committee and commented to the Chair after the meeting how this arrangement is totally different to the arrangement that exists there. Both the Chair and I were both saying that we thought it worked very well. The Minister is able to hear all the arguments in terms of the development of policy and be fully engaged in listening to that as the Committee develops its report and to make views known in terms of whether there are areas of the report the Minister finds difficult as to how to take them forward. You will also see remarkable unanimity between the reports themselves and what the Minister has been able to respond to, which indicates how effective the Committee has been able to be on development, as a result of the Minister sitting on the Committee. Of course, there is an hour every month when the Committee goes into complete scrutiny mode. We are experienced enough at that to treat that differently.

TED ROWLANDS: I will not pursue scrutiny mode. I had better declare an interest, Chairman in my line of questioning. I am a non-advisory member of the National Training Federation and also I advise a local charity on training.

Can I ask you about accountability of quangos. It was the biggest issue, in a sense, that in some ways changed public opinion towards devolution. It is a separate issue. We are going to bring the large quangos under a degree of real genuine democratic reform. I am going to ask you about the Assembly and your powers over quangos. Within your remit of probably one of the largest quangos of them all, ELWa is huge in terms of its budget, in terms of the fantastic range of power that is accumulated within it. How effective are the scrutiny and accountability powers you have over a quango of that size?

MS DAVIDSON: Perhaps Richard could talk about the legislative aspect of that and then I will talk about the delivery.

MR DAVIES: I think the powers are – and this is not the right word – absolute. Of course the National Council is a creature of statute but the Minister has extremely important, critically important, leverage functions and these are to direct, the responsibility to fund, and the responsibility to appoint. That covers the basics. In addition to that, there is the Accounting Officer framework, which provides for certain procedures of regular review against issues of compliance or issues of performance which sometimes involve officials, the Accounting Officer, and sometimes involve the Minister directly.

TED ROWLANDS: But those are roughly the same powers as the Secretary of State would have had over the Welsh Development Agency or any other agency. I am trying to find out what is new about this system of accountability because one of the big themes of the whole campaign for devolution was that we were going to make these large quangos and the quango scheme more accountable. You have got one of the largest quangos of all. How are you making it more accountable than the formal statutory body? Of course this is in a different form.

MS DAVIDSON: Of course what was also there before was a placing of friends on quangos. We have totally removed that from the system. That was a very important removal. We ensure that everybody goes though a proper appointments procedure in terms of being appointed to the National Council, ELWa, and that they have the right skills for the task.

I have the Higher Education Funding Council of Wales as well in my portfolio. Exactly the same mechanisms are used there. I think that is one of the very important issues in terms of the public feeling confident that people who are in charge of the large organisations have the right skills to do the job.

Also, I have the job of appointing the Chair; the Chair goes through a rigorous appointments process, not carried out by myself personally but independently, so that there is no patronage, as it were, from the Minister. That then comes to me with recommendations in terms of quality of applicants.

LORD RICHARD: Can you remove people?

MS DAVIDSON: Yes. I can hire and fire. The remit letter is absolutely crucial because that lays out the requirements for the Assembly Minister. What the Assembly demands to be delivered is sent to the Chair of the National Council or the Chair of the Higher Education Funding Council. As Richard said, then you have issues around the Accounting Officer functions and the delivery of the required agenda. We have an annual review of the Council as well. In between that, there are various monitoring meetings. Our officials attend these meetings as well, so that if there are any issues, they can report back to us early.

PETER PRICE: May I ask something from a different angle about secondary legislation and the powers of the Assembly in that area ? One of the criticisms made is that it has not really been able to get to grips effectively with its scrutiny of roll-over secondary legislation. It is something where you had particular insight when you were Deputy Presiding Officer. What are the limiting factors in the size of the Assembly?

MS DAVIDSON: That is a very interesting question, not least because I think when the Assembly first started, there was an ambition among members that they wanted to scrutinise every piece of secondary legislation, the Height of Pylons (Wales) Order, and such like, because they had the power to do so, as it were. The way the system operates is that there is as Business Committee of the Assembly and, as you probably know, there are party representatives and a business manager for each individual party. That sits with the Deputy Presiding Officer to determine how each piece of legislation should be managed. There is a range of opportunities. The executive procedure is sometimes used by cabinet in terms of legislation that needs to be taken forward very quickly. That is often in terms of making sure there are parallel regulations to England. I generally do not use the executive procedure. I am keen that the legislation I put forward is able to go through the Assembly scrutiny mechanism.

The accelerated procedure is used when the Business Committee has determined that because the order is technical, it can go to the Assembly without debate, and so Members are asked to vote on the order. There is the standard procedure, which is where it goes to the Assembly for debate, and the extended procedure, which is where the committee will seek to have a specific view on the legislation prior to it going to the Plenary. I suppose the two points that might be worth noting are that I think I have only had one piece of extended legislation, only once where the Committee has wanted to have a look at that. That was one where the parties were happy but the Deputy Presiding Officer determined that it should go to the Committee. I do not think I have had an executive procedure yet because, as I say, I try to avoid that in scrutiny terms.

The only constraint is not a number of members constraint; it is a constraint on time. Of course, in Westminster, these regulations are just made and do not go through the Assembly scrutiny mechanism. What the Assembly is still having to learn is in a sense which parts of the regulations it wants particularly to scrutinise in order to make sure the agendas are delivered but that the whole of the Assembly time is not taken up scrutinising legislation that should be nodded through and would be nodded through in any other place.

EIRA DAVIES: If I may ask the final question in Welsh. (Speaking in Welsh, then interpreted) You have described your success in developing a different agenda for Wales. Now, it is obvious that issues such as health and education are extremely important to the people of Wales and to the electorate in general. What will the effect of your initiatives be on the population as a whole and do you think that the Assembly is actually making a difference to Wales?

MS DAVIDSON (Answering in Welsh, then interpreted): Thank you very much for your question. I am sure that the Assembly will make a difference in the education agenda and I very much hope that we will be able to say that with certainty this afternoon because the agenda contained within my report are the different things we are doing, an agenda different to what is going on in Scotland, England and Northern Ireland. I believe that the Assembly will make a significant difference in Wales. It is starting to do so already.

EIRA DAVIES: (Speaking in Welsh, then interpreted): Do you think that people actually see that difference?

MS DAVIDSON (Answering in Welsh, then interpreted): People working in the education system certainly know. They tell me every day that they do realise the differences that are coming about because of the Assembly, but I am not sure about the other subject areas. I am sure you will be asking the same question of other Ministers appearing before you and other Members. But I do think that we now have a different method following devolution and the establishment of the Assembly. It does take time and it will take more time to actually tell the people or show the people of Wales the differences that we are making, but now people can see that there are differences. The greatest problem, in my opinion at least, is the problem not in terms of the responsibility of the Assembly but of the media. For example, many Welsh people do not actually receive Welsh media. I hope you can understand me. They do not receive signals from Welsh transmitters and so on.

Yesterday when the announcement on workloads for teachers was made, the BBC in London were saying that it was an England and Wales statement, and now you can go to the regional output. That is the regional output in Liverpool or Birmingham which actually covers people living in mid-Wales or in north Wales. For many the difference is hard to know because they do not get media coverage from Wales. I think we also need to find other ways of working with the BBC, in particular to convey a clear message about the policies that we are effectively implementing.

EIRA DAVIES: (Speaking in Welsh, then interpreted) Thank you for responding in Welsh, and congratulations to you.

LORD RICHARD: Minister, thank you very much indeed. You have been very generous with your time and very frank with your answers. I have learnt a lot.