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

MINUTES OF PROCEEDINGS

of the

EVIDENCE OF:

WELSH ASSEMBLY GOVERNMENT MINISTER FOR OPEN GOVERNMENT

CARWYN JONES

held at

National Museum & Gallery, Cardiff

on

22nd November 2002

LORD RICHARD: Minister, thank you very much for coming. The way most Ministers have been handling it is to open for the first ten minutes by giving us an overview, and then we will have some questions. If you would be kind enough to formally introduce your team for the purposes of the record, that would be helpful.

MR JONES: On my right is Peter Gregory, Director of Personnel, and on my left is Hugh Rawlings, Director of Open Government and Constitutional Affairs.

Could I thank you for the opportunity to give evidence to this Committee this morning. You will have, of course, received the written submission that has been put in in order to inform the Committee as to the background to the work that I do in the role that I have at the moment. There is one alteration that I should bring to your attention, and that is that in the written submission it does say I am the Chair of the Equal Opportunities Committee. That situation has in fact changed. The Assembly took a decision some two or three weeks ago that the Chair of that Committee and of another Committee, the European Affairs Committee, should be held not by a Minister but by a backbencher, so I will be replaced as the Chair of that Committee next week.

I hope that you found the written evidence that has been submitted useful. Obviously I welcome the opportunity to discuss the issues that have been raised there and any other issues with yourselves. As the written evidence has sought to demonstrate, the portfolio that I hold is a little different from those of other Ministers, in the sense that I have no delegated powers as such; there are no statutory functions that have been delegated to me. As a result of that, I do not need to maintain, generally, close links with any particular Whitehall department or departments, unlike, for example, the Minister for Rural Affairs, who inevitably will have a strong link with DEFRA. However, of course, I do have to have some regard to statutory provision, and indeed, I do maintain contacts with Whitehall departments, usually either the Home Office or the Office of the Deputy Prime Minister, as part of an overseeing role in terms of the work that they do in Wales. As far as my statutory duties are concerned, the evidence that I put in draws attention to the Assembly’s specific duty, governed, of course, by s.120 of the Government of Wales Act, in relation to equal opportunities, and that is an area where I have particular responsibilities.

In terms of open government as a portfolio, the preamble to our standing orders commits us to having open, democratic practice, and it is something to which we attach a great deal of importance. The Freedom of Information Act, of course, will come into force in 2005, and we have taken steps to be proactive before the Act comes fully into force. What we are trying to do is to adopt a more open approach in terms of access to information, and that is an area where I have responsibility. In many ways, we are acting as the "pathfinders" in terms of England and Wales as to how the Act will actually work, and in order to see what steps may need to be taken if there are any difficulties that are encountered between now and 2005.

Following both my equality of opportunity responsibilities and my open government responsibilities, I am usually the point of contact in the Assembly government with Whitehall Ministers who are developing policies in the field, as I mentioned earlier, for example in relation to human rights or the broader equality agenda. There is another aspect of the open government agenda which I am responsible for overseeing, and that is the possible reform of the Ombudsman services in Wales. I have mentioned that already in my evidence. We are seeking primary legislation on that point in due course if the consultation process that we have put in place confirms that the present structure of three different Ombudsman should be replaced by a single Ombudsman for the whole of Wales. In many ways, it is similar to the Collcutt review that has taken place in England in that regard. It appears, if the consultation process goes that way, that we will be looking at a single Ombudsman dealing with complaints with regard to all tiers of public administration in Wales. The Local Government Ombudsman is a full-time appointment. The other two Ombudsman tend to have a much lighter workload, so there is no difficulty practically in having one single Ombudsman for the three subject areas that they would deal with, but in order to do so, the quickest and most effective way is for primary legislation to be passed to do that. The difficulty at the moment is that there is a statutory bar to all three posts being held by the same person.

Finally, of course, there is my role as the Minister in charge of Assembly business, which is one that the Assembly has to have under its Standing Orders. I know you have already talked to Andrew Davies about his experience in that respect, and I would be happy, of course, to supplement any of the comments that he has already made, and also to answer any specific points you wish to ask me as to how the development and treatment of Assembly business will continue in the future. Therefore, in many ways, I have a responsibility to promote many areas of the Assembly’s work, such as equality of opportunity and human rights and so forth, and this is something that is done not just by way of moral support to outside organisations who promote that work, but also in terms of financial support to bodies such as the Wales Refugee Council and so on. It is not simply a question of providing supportive words; we do try and be proactive in terms of assisting organisations that are attempting to promote on the ground the policies that the Assembly as a corporate body has a statutory duty to promote, and also the policies that the Government of the Assembly would also seek to promote.

I hope that gives you some insight into the background of the work that I do in this particular portfolio. I would be happy, of course, to answer any questions.

LORD RICHARD: Thank you very much indeed. Can I start off by expressing a thought? You are fortunate in the sense that you have those powers from somewhere. Where have you got them from? What is the legal cover, for example, on freedom of information when you decide to go further than the Freedom of Information Act?

MR JONES: The Freedom of Information Act has to be implemented by 2005.

LORD RICHARD: But you go further than that, do you not?

MR JONES: Indeed, yes.

LORD RICHARD: You have reduced the number of days from 20 to 15 and you have a different test, one of substantial harm.

MR JONES: Yes. We have, in many ways, built on the framework of the Freedom of Information Act. The Freedom of Information Act will provide a minimum standard in terms of what will need to be disclosed to the public.

LORD RICHARD: I do not want to be too legalistic about this, but does the Act give you the power to go beyond the provisions of the Act?

MR RAWLINGS: No, not in terms. What we are doing is, the Assembly has adopted a voluntary code of practice, and that code of practice is informed by the Freedom of Information Act, but goes beyond it, as the Minister has said, in certain respects. It is a voluntary code, and it is one that the Assembly has adopted to guide its own conduct in these matters.

LORD RICHARD: And that is enough, is it?

MR RAWLINGS: Yes. If anyone asked the technical legal question, I suppose I would refer them to s.40, which is the one which says "The Assembly may do anything which is calculated to facilitate or is conducive or incidental to the exercise of any of its functions."

SIR MICHAEL WHEELER BOOTH: Is it not really the fact that the Government of Wales Act was drafted and thought of, and the standing orders of the Assembly were drafted at the time when the manifesto of the Labour Party in 1997 was still the flag, the standard, and it was being believed in, and before the Government in Whitehall went back, which is in fact what happened, and decided to be rather more conservative than their manifesto had said? I think that explains perfectly well why you are more open – if you agree with my analysis or history – than is the case in England.

MR JONES: I think that analysis is correct.

LORD RICHARD: You would not be the first body to be slightly – I would not say misled, but at least guided by a manifesto which turned out to be not entirely capable of being implemented. It is part of political life.

Can I come back to "substantial harm"? I seem to remember when the Freedom of Information Bill was going through there was quite a strong feeling, at least in government circles, that "substantial harm" was really not a strong enough test, and that you needed something more than that. Why do you think the Assembly came down on the side of the weaker rather than the stronger test?

MR JONES: I suppose in terms of the strength of the test, it has to be balanced by the fact that the presumption, of course, is that the information is actually released. Where there is a presumption that information is to be released, then there is an argument for suggesting that the test that governs the release of that information needs to be perhaps more flexible than it would otherwise be. If it were the case that the presumption was that the information would not be released, there may well then be an argument for saying that the test should be stronger, but because the presumption is there, in practical terms – and we have had experience of this now – what we have found is that the test as it stands is a very demanding test to be satisfied. We have had examples where on the face of it the test seems to suggest that we should be releasing, for example, documents such as emails between officials and documents that I suspect originally were not foreseen as being subject to release by the Act.

LORD RICHARD: Would a memorandum from Mr Rawlings to you, for example, be released at all? Could the Assembly not say, "We want to see this piece of paper"?

MR JONES: It is liable for release. We would have to demonstrate that the substantial harm test could be met, otherwise that document, as things stand, would have to be released.

LORD RICHARD: Is that not going to cause problems between you and Whitehall? Whitehall will say, "We can’t tell anything to the Welsh Assembly officials or Ministers because of their Information Act."

MR JONES: The position that we have adopted is that documents that are ours are open to release; documents that are provided to us, particularly documents that are provided confidentially, would not be subject to release in that regard. Otherwise, it would, quite rightly, destroy the relationship that we would have with Whitehall if documents were provided by a Whitehall department in confidence and we were obliged to release those documents. It clearly would destroy our relationship.

LORD RICHARD: I do not want this discussion to be dominated by the Freedom of Information Act, but can I just ask one further question? What is the basis for the distinction? I can see the basis in fact for the distinction between documents emanating from Whitehall and those emanating from Cardiff, but once it is in your hands…

MR RAWLINGS: The memorandum of understanding deals with that.

LORD RICHARD: Between who and who?

MR RAWLINGS: The base documents between the UK Government and the devolved administrations set out the basis on which correspondence is to be released, and you will also find in the standing orders, either 17 or 21, of the Assembly that documents which are provided to the Assembly under conditions of confidentiality are not subject to release.

LORD RICHARD: That is in the memorandum?

MR RAWLINGS: There is material in the memorandum of understanding about how correspondence between the UK Government and the devolved administrations has to be dealt with.

LAURA McALLISTER: Can I ask you about the equal opportunities brief, Minister? What I am interested in is your relationship with the three statutory equality Commissions. You mentioned in your paper that there is a UK-initiated review of that with a view to establishing one integrated Commission. You are also suggesting in a comment in that paragraph that that might offer an opportunity to reconsider the current state of affairs in terms of your relationship, which is lacking in formal powers and financial connections. First of all, I just wondered how you fed into that review, and what your opinion is on that, bearing in mind that I believe there is some concern amongst the equality groups in Wales on that. Secondly, should that happen, should there be an integrated Commission, how would that impact on Wales? How would it impact particularly on the Assembly’s powers in relation to the equality agenda?

MR JONES: It is correct to say that the relationship we have with the three statutory Commissions is an informal one. In many ways it could be argued that they have no need to liaise with us if they so choose, but the reality is that they have chosen to do so, and each Commission is represented on the Equality of Opportunity Committee, and they are standing advisors to the Committee and take part in the Committee’s deliberations, and we welcome that. It is important for us as an institution to know that we can have regular advice from the three Commissions, and it certainly governs the work that we do as an administration.

We have not yet taken a view about the single equality body. It is still a matter for consultation. I am aware of the concerns that have been expressed, particularly by the Disability Rights Commission, who naturally are concerned about the position they may find themselves in. That is something that will have to be dealt with. If there is a single equality body, it will be important at least that there is an office in Wales and that there are more formalised links between that office and the Assembly.

LAURA McALLISTER: What if the UK single Commission wants to pursue a slightly different equality agenda to that which the Welsh Assembly government wishes to pursue? If it is only a Welsh office, without funding and without formal controls, surely you cannot depart dramatically in terms of operation of equality issues on the ground with those three groups.

MR JONES: We cannot go beyond the primary legislation in any event. Clearly, we cannot legislate in terms of equality of opportunity within Wales itself, but we can set examples, with our own staff for example, and we can also provide advice and assistance to other organisations using the standing Commissions as to how they would see themselves in the future. For example, because of the influence that the Assembly has as an institution, it is possible to influence the work of the NHS in Wales, of local education authorities and so forth. The whole public sector in many ways can be influenced like that. So despite the fact that the statutory power would not be there, and inevitably we cannot depart from the central theme that would be set by the single Commission, there is scope for us to "value-add" to that policy in Wales by our own example and by encouraging others to do the same.

LAURA McALLISTER: So if the single Commission had a slightly different agenda, who would influence the ASPBs, for example, in terms of their own internal equality agenda? Would it be the Commission that was based in Wales perhaps, or would it be the Assembly?

MR JONES: If it was a question of policy rather than statutory duty, I would expect it to be the Assembly, working with the Commission’s office in Wales. If it is statutory duty, of course, clearly that Commission would have to follow whatever was laid down in the particular Act. Primary statutory duty, I should say, rather than secondary duty.

TED ROWLANDS: Can I ask a question on the Freedom of Information Act? Do I understand it that, for example, if an Assembly Minister wrote to his counterpart in Whitehall saying, "Look, I would like you to have in the next Bill this bit of legislation to cover our point," and the reply came back stamped "in confidence", the Assembly Minister could not then share the contents of that letter with any committee or with the Assembly? Is that right?

MR JONES: That is right. The contents could not be shared.

TED ROWLANDS: If Whitehall took a restrictive view of even correspondence of that kind, which would be a part of the whole process of negotiating possible inclusion of clauses in a Bill, that could actually be very constraining on the way in which the Assembly could react to Whitehall’s view on it.

MR JONES: It is a question of balance. My personal experience has been that Whitehall departments do not take an overly secretive view.

TED ROWLANDS: They do not automatically stamp "in confidence".

MR JONES: No, to be fair, they do not do that. From our point of view, we also have to ensure that if it is provided to us in confidence, it is kept in confidence. Certainly initially in the life of the Assembly there was a fear around Whitehall that whatever they gave to Assembly departments would be liable to disclosure, because of the corporate body nature of the Assembly, but that is not the case; it would seriously damage the working relationship we have with Whitehall if everything they gave us had to be released publicly.

LORD RICHARD: You raise a point that I wanted to chase, which is the nature of the corporate body. I have to tell you frankly it is a concept that I have never really understood, and I do not know how importantly we should treat it now, but it does seem to me that there are two areas of disclosure. One is disclosure by what is now the de facto government of Wales to the other members of the Assembly, and there is disclosure by the Assembly as a whole to members of the public. Are there any cases where you would disclose things to Assembly members as part of the corporate body concept but at the same time try not to disclose it to members of the public?

MR JONES: That would be impossible, quite frankly. It cannot be done. We still have a corporate body structure de facto, but that has long gone in terms of the way the Assembly operates.

LORD RICHARD: It is still there as a legal background.

MR JONES: It is.

LORD RICHARD: You say you have a memorandum of understanding with Whitehall on what should or should not be disclosed, but technically you cannot have an understanding with anybody. The Assembly as a whole can have a memorandum of understanding with Whitehall, but once you are dealing with the Assembly as a whole, presumably the obligation would be to disclose to the Assembly as a whole. I do not want to probe too deeply this sensitive issue, but it does seem to me that there is a huge gap in the legal wall that supports this particular policy.

MR RAWLINGS: If you look at the memorandum of understanding, the first thing to notice about it is that it is a memorandum of understanding between the UK Government, the Scottish executive and Welsh Assembly Ministers. That was the basis on which it was set up.

LORD RICHARD: When was this?

MR RAWLINGS: 1999.

LORD RICHARD: So the concept of Welsh Assembly Ministers was recognised?

MR RAWLINGS: Yes. The terminology may be slightly different, but it was something like "the cabinet of the National Assembly of Wales", but at that point, that is how the memorandum was set up.

LORD RICHARD: So you are bound but the Assembly is not, the Welsh government.

MR RAWLINGS: That is right, because it is about intergovernmental relationships.

TED ROWLANDS: This might seem an odd question, saying, "Please tell us what you cannot tell us in confidence." From your experience, putting aside commercial confidentiality, what kind of information in Whitehall is still marked "confidential"? What is the area that is most sensitive about information outside commercial confidentiality issues which is a bar to open government? Give us a flavour.

MR JONES: It would be to do with legislation. It would also be to do with, for example, a negotiating position that the UK Government wished to share with us but would not want to give away publicly for fear of undermining our position.

TED ROWLANDS: In the context of Europe probably?

MR JONES: Yes.

TED ROWLANDS: But this whole debate that would go on between you and Whitehall over what could or could not get into a Bill tends to be put under "confidential" to you?

MR JONES: Yes. Again, it would damage our working relationship with any other department anywhere in the UK if a debate between administrations was conducted publicly. Clearly that would not work.

MR RAWLINGS: Given the fact that formally it is only when the Queen’s Speech is announced that the world becomes aware of what the UK Government is proposing by way of legislation.

LORD RICHARD: Come on!

MR RAWLINGS: I did say "formally".

TED ROWLANDS: They are allowed to leak but you are not.

MR JONES: I could not possibly comment on that.

HUW THOMAS: Going back to the comments that you made about the fact that the corporate body has long since gone, or words to that effect, are you still comfortable with the position of Ministers being both within a committee, participating, jointly participating, and yet that same committee scrutinising Ministers?

MR JONES: It is an anomaly. What we have is a halfway house between the original intention, which was to have a committee structure, and the subsequent intention of having a cabinet structure, and in the middle we have a committee structure that also includes a cabinet Minister. I am not aware of any other government structure in Europe where that happens. It probably increases the scrutiny of Ministers, because each subject committee meets every fortnight, and the Minister is subject to scrutiny by that committee every fortnight. When I was Minister for Rural Affairs, typically the Minister’s report would be scrutinised for an hour and a half, so there would be three hours’ scrutiny every month. When I would mention this to colleagues elsewhere in the UK, they were stunned, because they would attend a committee very infrequently and they were amazed at the level of scrutiny that was there.

On the other hand, it is possible for the Minister to influence the committee by being there and making representations and to perhaps influence the committee to go in another direction, which is perhaps outside the idea of scrutiny that most people actually have.

On balance, I would have to say personally that I find it odd that a Minister should be a member of a committee that scrutinises that Minister. Despite the fact that some committees rarely take a vote, there are some committees that regularly take votes, and that Minister has the ability to vote on their own performance, which does not appear to be right on the face of it, but on the other hand, it does mean a greater level of scrutiny than would otherwise be the case.

LORD RICHARD: What about the other half of the committee’s deliberations? We heard from one Minister that she found it useful to be on the committee because of policy formulation; in other words, they actually participated in formulating policy for that Department. Do you find that?

MR JONES: Of course, at the moment I do not have a subject committee, so I am speaking from previous experience. Some committees are better in that regard, in terms of policy formulation, than others. There are some committees that are more akin to a traditional Westminster committee. There are others that are more consensual and are more willing to work with their relevant Minister. Practice does vary.

LORD RICHARD: How does it work? Would the Minister produce a piece of paper with ideas on it for policy which would then be discussed?

MR JONES: It can work that way, but the committee can also look at its own subject areas that it may want to investigate. For example, one of the first acts that an Assembly committee performed was to set up an inquiry into the beef on the bone ban. That was conducted by the committee and it was a worthwhile exercise, and the result of that inquiry then advised the Minister as to what decision that Minister should take. That is a proper function of a committee. But it varies widely. Some committees will be more proactive than others in terms of perhaps conducting a long-term review.

HUW THOMAS: Does not the involvement of a Minister in that process serve to confuse the status of the report that comes out?

MR JONES: It is a committee report.

HUW THOMAS: I appreciate that, but a Minister has actively participated in the process of preparing that report.

MR JONES: That is true. On the one hand, I suppose one could say that it shows that there is a greater sense of working together between the Minister and the committee. On the other hand, a cynic might say that it shows that the Minister is able to try and influence a committee at a stage when perhaps the Minister should not have any influence.

SIR MICHAEL WHEELER BOOTH: But you have a majority on the committee in political terms, do you not, since the agreement between the parties?

MR JONES: That is correct, which I suppose leads on to the argument that if there is a majority on the committee, the committee will more often than not do the Minister’s bidding.

SIR MICHAEL WHEELER BOOTH: Even if one did not put it quite as strongly as that, it would be rather unlikely that there would be a committee report that would go totally against Ministerial thinking.

MR JONES: I would not go that far.

SIR MICHAEL WHEELER BOOTH: I thought I was going less far than you had.

MR JONES: On the one hand, one can argue that, with a Minister on the committee and a majority for the governing parties on the committee, the committee’s report would be unfairly influenced by the Minister. On the other hand, there are other committees – and it is difficult to generalise on this point – where there are more independent-minded backbenchers who might take a different view. There is no set practice. The committees do vary tremendously as to how they deal with the Minister and how they work.

SIR MICHAEL WHEELER BOOTH: Can you say why the change from moving the Chairman of the Equal Opportunities Committee to being just a member has taken place, and does it have your support?

MR JONES: It does have my support, yes. Even though the Equal Opportunities Committee is not a scrutiny committee as such, as we would understand it, it does look rather odd that the Minister chairs the committee, and that the Minister comes too, in order for the Minister to inform that committee. It can give the appearance that the administration is trying by taking the chair of the committee to guide the committee in a certain direction. It has never actually happened in practice, but it could be open to that interpretation.

SIR MICHAEL WHEELER BOOTH: On equal opportunities, you have a strange dichotomy. In the cabinet, I believe you have the highest proportion of women in any executive in Europe. I believe that is the case.

MR JONES: That is true.

SIR MICHAEL WHEELER BOOTH: On the other hand, in the Western Mail yesterday there was a headline saying, "Women being short-changed as employers fail to close pay gap." So it looks as if the committee is more effective within the Assembly, so to speak, than within Wales as a country.

MR JONES: The question of low pay has been there for many, many years, and it will inevitably take some time to close the gap. We know that, particularly among part-time workers, the gap is very marked; it is much more marked than it is across the rest of the United Kingdom. We have to look at ourselves to set examples, and we are at the moment looking at launching equal pay initiatives in local government, in higher education and in the NHS as a way of rolling up the agenda that we would wish to see rolled out. We have a good example in terms of the Assembly’s government, in terms of the proportion of cabinet members. We have a reasonable proportion of women Assembly Members themselves, and we would hope that the example that has been set there will filter through first of all to other employers, both in the public and private sector, and we have to be proactive in getting that message across.

VIVIENNE SUGAR: I just wanted to ask about the Freedom of Information Act and the practice of the staff of the Assembly, both in terms of disclosing advice to Ministers but also – and I will plug the Western Mail as well, if I might - the announcement that the Executive Board minutes are going to be available. I have actually worked in a local authority where we tried to publish the minutes of our directors team, and they had to be so sanitised that nobody believed that that was what we spent three hours talking about. Can we talk about the difference of freedom of information as it applies to Assembly staff?

MR JONES: I suppose in staffing terms, staff are aware that we have a more open policy than has ever been the case, and they have to be aware that, in terms of the communications they have, those communications may in the future be liable to disclosure. We are working on this in terms of what concrete guidance can be given. There is a request for information that is active at the moment. We have provided what we believe is information that satisfies that request but that request may well end up with the Ombudsman. We will then be guided by the Ombudsman in terms of what view the Ombudsman takes as to what will have to be and what will not have to be disclosed. We take the view that ultimately it will be for the Ombudsman to guide us. As I mentioned earlier on in my preamble, we are in many ways a pathfinder in terms of the whole question of freedom of information, and inevitably there will be times when we take a particular view and we want to have that view either confirmed or altered by other bodies.

VIVIENNE SUGAR: What about protection for civil servants in this position, where it may be that advice that has been given in certain circumstances needs to be disclosed? How do you protect them from the personal publicity as to who were the authors of particular papers? How does it impact against their conditions of service and internal disciplinary codes and so on?

MR JONES: Individuals are never named. We have had requests to name individuals in the past, but we have not done so. My view would be that that would be most unfair given the fact that civil servants are not in a position to defend themselves, nor would it be right in any event for people to subject to that.

MR RAWLINGS: If I could add an addendum to that, it is actually quite difficult, because you only have to look in the Wales Year Book to get an organigram of the Assembly, and I think I am right in say that that, for example, identifies heads of divisions. It is quite difficult.

PAUL VALERIO: You mentioned your desire to have one Ombudsman for the three departments in Wales. You also said you might be able to improve the service, but equally you have made it quite clear that you require primary legislation to carry it out properly. It is the fact that you have to bid for this, and you may or may not get it this year or next year. How do you decide whether you are able to improve the service without primary legislation? Is this a frustration? Clearly, it is a pillar of one of your departments, and it is very important to you. If you are not able to carry it out, what effect does that have on the Assembly?

MR JONES: I had better deal with the specific example of the Ombudsman. If the consultation, as we suspect it may, comes out in support of the idea that there should be a single Ombudsman for the whole of Wales, there are two routes that we could take. One of them is to bid for primary legislation – not specific and unique primary legislation, but legislation that would be added to or piggy-backed effectively on to legislation that is already planned, which is the quickest and easiest route, or we would have to go down the route of a Regulatory Reform Order, which is a difficult route and is much more time-consuming. Clearly, the preference would be for the first route.

The point that I should make is this: that in looking at the legislation that the Assembly can influence and promote, it is not possible just to look at Wales-only legislation that is going through Westminster. There are other areas where legislation affecting only Wales has in effect been attached to legislation that is going through Parliament that affects either England or Wales or indeed the whole of GB or UK. That is often the easiest way to make a change. Because there is a statutory bar in terms of the Ombudsman to all three people holding the same post, it means we can do nothing until such time as either primary legislation is passed that removes that bar, or a Regulatory Reform Order is in place.

LORD RICHARD: Can you tell us about Regulatory Reform Orders? I have never come across that before.

MR RAWLINGS: It is a species of secondary legislation, but it is not a power that the Assembly has. It is something that would be promoted by a government department; in other words, in this particular case the Wales Office would promote it. Its origin lies in the belief that there were impositions placed on business, and that the statute book needed to be tidied up and regulations lifted and eased and whatever. But in fact, the power is much more widely drawn than that. What we are trying to do with the Ombudsman is this. There is, as the Minister said, a statutory bar on one person holding all three posts, and we are trying to remove that so that when, conveniently, next year all three posts become vacant, we might be able to appoint one person to them. But that would still leave three offices, and in order to produce a single Ombudsman’s office, we would then need primary legislation to bring the three jurisdictions together into one.

TED ROWLANDS: Could I just ask about your powers over the Ombudsman? I am not quite clear. It might sound fanciful. If a UK Department decides to reform the Ombudsman system in a manner and way which you did not think was particularly appropriate in Wales, do you have the right to opt out, or is the Ombudsman directly accountable to the Assembly as opposed to the United Kingdom Government?

MR RAWLINGS: You have to remember there are four Ombudsmen in issue here. If it were decided to reform something relating to the Parliamentary Commissioner for Administration, that would not be relevant to us.

TED ROWLANDS: Take Local Government.

MR RAWLINGS: If it were the Local Government Ombudsman, it would not be regarded as appropriate for a Whitehall department to promote legislation amending the position of the Local Government Ombudsman in Wales.

TED ROWLANDS: What about Health?

MR RAWLINGS: The same, because the Health Services Commissioner is actually funded by us, as indeed is the Welsh Administration Ombudsman.

SIR MICHAEL WHEELER BOOTH: Just as a matter of fact, is England thinking of also running the three Ombudsmen together?

MR RAWLINGS: Yes. This is the outcome of the Collcutt Report.

LORD RICHARD: Is that David Calcott, the lawyer?

MR RAWLINGS: No. I do not think it is. I think it is someone else. But that report was completed, I think, in 2001, and they have not actually decided how to take it forward yet, but if they were to take it forward, they would need primary legislation, and that would provide a vehicle for us to do what we want to do, once we decide what it is.

PETER PRICE: A few minutes ago you drew a distinction between committees in the Assembly that had a consensual approach and those which had a much more confrontational, Westminster approach. Is this largely attributable in your view to the subject matter, that in some subjects there is a wide political difference and therefore it is inevitable in those committees that there will be confrontation, or is it far more in the nature of either the chairman or the members of the committee?

MR JONES: It is a bit of both really, but it is more to do with the subject matter. For example, the Economic Development Committee is particularly renowned for being combative. The Agriculture and Rural Development Committee was certainly in that category at one time. Yet there are other committees, for example, Culture Media and Sport, which are less so. The subject matter is important. Some of it depends on who the individuals on the committee are as well.

PETER PRICE: What impact does this have on the relationship between Ministers and the committee in terms of what comes out, the influence that the committee has on policy and the way in which scrutiny is conducted?

MR JONES: The committees have no formal policy-making powers. The committees are there to scrutinise, of course. They also have this extra role in terms of developing policy areas, but the final say does rest with the Minister. So it is possible within our system, where the committee may take a particular view, the Minister is not obliged to follow that view.

LORD RICHARD: Who appoints the committees?

MR JONES: The committees are decided upon by meetings of the business managers of all the parties.

LORD RICHARD: A bit like the Westminster system.

MR JONES: Yes. The numbers allocated by each party are decided. Personalities are a matter for each party.

LAURA McALLISTER: Can I go back to the equal opportunities agenda? Something occurred to me, reading your comments about the Race Relations Act and how that fits into the s.120 of the Government of Wales Act. You mention there the creation of a function bringing all of your powers in relation to equality in line with your statutory obligation under the Race Relations Act. How might that happen? That would require new legislation.

MR JONES: I think it is fair to say it is too early yet to work out a strategy in terms of how that might happen, but it is something we are looking at at the moment.

LAURA McALLISTER: Is it a priority? The area of equal opportunities seems to me to be full of anomalies in terms of how you handle that brief. Is that one of the priorities for rationalising that?

MR JONES: It is something that is being looked at. I would not like to prejudice the position at this point, because I know it is something the committee, for example, will have a strong view on, and we do need to take account of the viewpoints of all those who are interested first.

LORD RICHARD: That is very helpful on your portfolio. I wonder whether you would mind if we turn to your previous incarnation.

TED ROWLANDS: Before we look back, could I ask the Minister to just look forward, and perhaps even do a modest bit of crystal ball-gazing in terms of your role as the business manager of the Assembly? If it were agreed that powers of primary legislation should be transferred to the Assembly, how much of an upheaval would that represent in the whole process of carrying Bills? You have experience in the concept of working with Whitehall. How do you think that would change, alter and amend the whole structure and process of the Assembly itself? Is it an addition, or could it be rather fundamental?

VIVIENNE SUGAR: When you answer that, could you sketch out to us how the scrutiny of primary legislation is working now?

MR JONES: We are looking at a system of joint scrutiny between the Assembly and parliamentary committees. It is not an ideal system, because there are occasions when neither institution is in session, is sitting; for example between March and June of next year the Assembly will be in the throes of an election process, whereas the Westminster committees will be sitting. So it is not ideal, because the electoral cycles of the institutions are not in synch. It is possible, I suppose, that they will be synchronised in certain years, but they are rarely actually synchronised. It can work but it is not a foolproof system in that regard.

In terms of what effect the transfer of primary powers might have on the structure, there would clearly need to be change. If primary powers were to arrive on our doorstep this morning, it is fair to say that there would need to be some fundamental changes in terms of how that was dealt with, because I think it is important to remember that while the Scottish Office and the Northern Ireland Office were government offices which were used to drafting primary legislation, and were expected to have a strong policy-making role, it was never the case that the Welsh Office was in the same category. So the policy-making, policy development expertise has had to be built up over the past three years or so, and that is happening now. The same would have to be done with the expertise required to draft and to process primary legislation, so it would need to be planned carefully, but it could be done.

SIR MICHAEL WHEELER BOOTH: Can I just ask a supplementary to that? You used a phrase like "the current joint process of scrutiny" or something like that, talking of the process at Westminster and the two houses, and of the Assembly, but my understanding is that there is not a procedure for joint scrutiny, and this is one of the problems.

MR RAWLINGS: That is right, and there is an element of making this up as we go along. As I understand it, parliamentary committees cannot meet jointly with other bodies. For example, under their standing orders there is no possibility of the Welsh Affairs Committee meeting jointly with an Assembly committee.

SIR MICHAEL WHEELER BOOTH: They could be given the authority to do so, but they would have to be given it specially, as they were in the case of India in the 1930s, when they were allowed to meet with Indians.

MR RAWLINGS: I do not remember that, but on the other hand, what happens with our committees is, of course, they can meet and anyone can join in. So therefore what happened in fact on the NHS Wales Bill was that the Assembly committee undertook a process of pre-legislative scrutiny in Cardiff, and some Welsh MPs, members of the Welsh Affairs Committee, came and sat in.

SIR MICHAEL WHEELER BOOTH: They took part, asked questions and so on?

MR RAWLINGS: Yes, I believe so, but I am not entirely sure.

SIR MICHAEL WHEELER BOOTH: Was there a transcript?

MR JONES: It would be minuted that they were there. There would probably be a video.

MR RAWLINGS: On the other hand, what then happened was that the Welsh Affairs Committee conducted its own scrutiny by having both the Minister for Health here, Jane Hutt, and the relevant Wales Office Minister, Don Touhig, in front of them and questioned them. So there was a process of scrutiny by both committees, but it was not really a joint process, and that is because there are barriers at the moment to this happening, but the more we get into the practice of publishing bills for pre-legislative scrutiny, the more we are going to have to get this right.

SIR MICHAEL WHEELER BOOTH: We were told yesterday that in the case of the Communication Bill, where there was pre-legislative scrutiny, there was a joint committee considering a draft and taking evidence on it, but we were told by the Minister concerned, as I understood her, that she thought it right not to make any representations to that committee because she was working through the relevant Whitehall department, and that struck me as very surprising.

MR RAWLINGS: I do not know what happened on the Communication Bill. I know that there was a process of pre-legislative scrutiny, but it is indicative of the fact that we are right at the beginning of learning this process that there is no set pattern as to how this works. At the moment we have just had pre-legislative scrutiny of two Bills, of which I am aware, the NHS Wales Bill and the Communication Bill, but I do not think they followed a consistent approach.

TED ROWLANDS: Could I just pursue a bit further what you said. You said you thought you could develop the policy capacity to prepare legislation. My question is are you going beyond that? As someone who has spent a large part of my parliamentary life legislating, and I have enjoyed it, it is hugely time-consuming, and incredibly absorbing. You do not have to borrow the arcane Westminster parliamentary legislative processes, but under any legislative process of proper scrutiny, it is hugely time-consuming and takes up considerable resources. If one is trying to visualise carrying, say, six major Bills in a year through your structures at this moment, the Assembly structures, how much will it mis-shape or alter the whole nature and character of the show? I just wonder if anybody has thought about it. Alongside the policy, the scrutiny of quangos and the rest of it comes a major new activity. Could you build that into the committee structure as it stands? Is there a structure to take it?

MR JONES: It would be exceptionally difficult with the present structure to steer primary legislation through the Assembly. When comparing the size, the numbers of Assembly Members with, for example, Northern Ireland, where there are almost twice as many for a population that is half the size of Wales, or indeed members of the Scottish parliament, it would be very difficult to envisage 60 Assembly Members being able to take on that amount of work.

TED ROWLANDS: So you would say an automatic consequence would have to be an increase in the size of the Assembly itself.

MR JONES: It would not be automatic, but it would be difficult. I do not want to go beyond the argument, but it would be difficult within the present structure to actually take on those powers.

TOM JONES (In Welsh, then interpreted): I would like to ask a question in Welsh, if I may, please.

As the Minister for Open Government, providing information to the people of Wales is extremely valuable. What the people of Wales say very often is that governing is complex, that we in a way have two governments, two levels of government. In your previous portfolio, the Rural Development and Agricultural portfolio, we felt we were dealing with DEFRA one minute and with the Assembly in Cardiff the following minute. Is there any way of simplifying the process? Do we need greater clarity, for example, from your previous portfolio, where it was difficult to work out what needed to be done and you did not have the power to do things yourself? How can we simplify the process?

MR JONES (In Welsh, then interpreted): It is very difficult. There were councils and regional councils, and the public does not understand them. There is the Assembly, local councillors, and not just the Westminster government, but also the European government. There is a difference in the structures as to who has power over what. To take an example, in Wales the legal position we had was the fact that we did not have any powers at all, and although it was MAFF, and subsequently DEFRA, DEFRA did not have anyone in Wales apart from the vets themselves, so the Assembly staff worked with the regional offices throughout Wales and they linked with the public; they were contacting the public as agents of DEFRA. For example, they were familiar with dealing with the Assembly staff. So it was very complex. A number of organisations were responsible for different things. There are means of simplifying these issues.

TOM JONES (In Welsh, then interpreted): At that time the Scottish Agriculture Minister had different powers, and after that there was the 20-day rule. That was adMinistered differently in Scotland.

MR JONES (In Welsh, then interpreted): But the difference in Scotland is they have powers over animal welfare and health. We have those in Wales as regards every animal disease with the exception of foot and mouth disease, for some reason. There is no meaningful or sensible reason for that. The difference it would have made is that it would have been easier to do things more quickly. It did not make any difference as regards dealing with the disease itself. The disease did not spread any further because of this, but very much more work had to be done because of the problem that we had, and also, the staff working in the offices themselves found it very difficult to work out exactly who they were working for. The structure we had in place was that every legal decision was made by Westminster Ministers, and it was only on one occasion that there was any disagreement or dispute.

TOM JONES (In Welsh, then interpreted): Is that likely to happen?

MR JONES (In Welsh, then interpreted): It has happened a number of times. Work is carrying on at present that Wales should have the same powers as Scotland, because it does not make any sense. We saw the Minister in Cardiff being responsible for what was taking place in Wales, although there was no legal power in force. The Minister could not stand back and say, "This is nothing to do with me. It is to do with London." For example, it is possible at present that if foot and mouth disease were to come back, the Minister in Cardiff could tell the DEFRA Minister, "You can’t use the Assembly staff at all." It might be possible for the Minister in Cardiff to say that, and then nothing would then happen in Wales as regards controlling the disease. This is an anomaly. It is not the only one, but it is a major anomaly as regards how things happen.

There was an occasion when those responsible for disposing of the carcasses of the animals wanted to use sites in Wales. I remember reading on a Sunday morning that there had been talk of how the carcasses had be transported to Trecatti. I went off and said, "There are no plans. I don’t know where this has come from." The Intervention Board had placed the carcasses in order to take them to Trecatti, thinking DEFRA was responsible, but in fact it was the Assembly that was responsible and nobody had told them. After that, naturally people did not have very much faith in what I had to say, and that was a practical problem regarding the relationship at that point in time between the Intervention Board and the Assembly.

TOM JONES (In Welsh, then interpreted): If those powers were transferred or if there was a new agreement as to how you should work, would the funding follow that arrangement?

MR JONES (In Welsh, then interpreted): This is an issue for the Minister at present, to be fair.

HUW THOMAS (In Welsh, then interpreted): The example that you have just given raises the issue that one of the things that came out of foot and mouth disease was the role of the Assembly, and I understand that since then there has been a review in order to see, if the position were repeated, how the role of the Assembly should change. How do you see the Assembly developing as a body that has responsibility for emergency plans in Wales?

MR JONES (In Welsh, then interpreted): I cannot say anything about the future. That is a matter for another person to look at in the world of agriculture, but the fact of the matter was last year it was not the Assembly that was responsible for structuring an emergency plan as regards foot and mouth disease in Wales. That responsibility lays with the Intervention Board. They were responsible and they reported to MAFF. The Assembly did not have any role whatsoever regarding the preparation of an emergency plan, but in order to implement such a plan the Assembly staff had to be used, and the Assembly offices. There was a weakness there as regards the process of where the Assembly stood on that. At present, as I understand it – I am saying this from the experience that I had when I was in the post – they are looking at formulating a new plan, but of course, the only organisation that can have an organisational plan for foot and mouth disease is the Assembly, although the Assembly has no legal powers to do so. This is something for DEFRA.

MR GREGORY: Could I add a few things? In the space of the first two to two and a half years of the Assembly’s life we have had several major emergencies. There has been the fuel crisis, FMD, floods, and as a consequence of that, the Assembly has given a lot of attention to improving the arrangements within the existing statutory framework. So, for instance, we have a Minister who takes a special interest in emergency planning. She will be chairing a national Committee which is intended to bring together the key stakeholders in emergency matters, including local government and so on. We have also recently been doing work on a national emergency plan, a strategic plan for emergency planning in Wales, which deals with the high-level issues rather than the detail of each individual sector, and there has also been some work done on the extent to which Whitehall understands the role the Assembly can play. That was particularly important in the aftermath of the terrorist attacks in America, which put emergency planning, frankly, on to a new footing in terms of the importance attached to it. The National Assembly has been closely involved with the discussions at a national level – closely Ministerially as well as officially – on improvements to emergency planning and business continuity. The First Minister has been participating in a Ministerial committee on that. We are still giving some thought to the need for greater coherence within Wales in emergency planning and improved communication with Whitehall and the emergency services on a UK basis, particularly the police, how we can improve that and whether there are statutory implications for that.

What we do not want to do is superimpose on an already existing and useful set of arrangements something that could be in the way of that, so there is still a dialogue to be had about quite what, if any, statutory change there should be. But the fact of the matter is it is anomalous, as the Minister has said, as to who the organisations and the population of Wales look to in an emergency for information or experience and help. It would be difficult to be put in that position without formally having any statutory role. So an enormous amount is being done. We have raised the profile. There has been very strong support, I should say, for this process from local government, but there are still some loose ends to be tidied up in respect of the statutory provision.

VIVIENNE SUGAR: Minister, in your reply to Tom’s question a few minutes earlier you said that foot and mouth disease was the main anomaly but not the only anomaly. Would you tell us what the others are.

MR JONES: Offhand, there is one other example which I remember very well, and this was the question of the policing of offshore waters. The Scots have responsibility for, if I remember rightly, 0-12 miles out. In Wales – I would have to check the distances – we were responsible for 0-6 miles out, and after that it was England and Wales waters, for no apparent reason other than the fact that it had just been missed in the legislative process. We contacted the Royal Naval vessel, the Lance (?) – we call it the Welsh navy – to act as a fisheries protection vessel within our own territorial waters, but that particular ship has to double-check if it does find illegal fishing as to whether it is in Wales or in England and Wales. There is no reason in logic as to what that should be, other than the fact that it was missed.

In terms of the structure that we have here, we do not have delegated and reserved powers, so it does make it more complicated. Certainly in the first year of the Assembly’s existence much time was devoted to finding out exactly what powers we had.

VIVIENNE SUGAR: Presumably complicated by the ministries and sea fisheries committees set up as well.

MR JONES: The sea fisheries committees we are not responsible for. They are local government, and they are staffed in the main by local government. But they are an anomaly that is there not as a result of devolution.

VIVIENNE SUGAR: Would it not take primary legislation to streamline all that?

MR JONES: If I remember rightly, a sea fisheries committee is not needed on a statutory basis. It is a quasi-voluntary organisation. If, for example, local authorities decided that they would no longer fund sea fisheries committees, they would not be under an obligation to do so. The difficulty is – and this is what happened last year with one particular sea fisheries committee – despite the fact that local authorities can decide whether or not they wish to be members of that committee, and they can decide how much they are going to give that particular sea fisheries committee, it is for the Assembly to approve the actual amount that is given. So although the local authorities are responsible for funding, the Assembly has the legal difficulty in terms of approving that funding. So the Assembly is involved in terms of making an order regarding the structure and financing of that particular committee, although it does not finance that committee itself. It is a complicated scenario, as we discovered last year.

VIVIENNE SUGAR: If there are any other anomalies, perhaps you could give us a note.

MR JONES: Yes.

TED ROWLANDS: Mr Gregory mentioned the fuel crisis and floods. The Minister has told us how there was a mismatch between the statutory responsibilities and the operational structures. In the fuel crisis and floods was any other such mismatch thrown up which would lead us to think we should be making new Orders in Council?

MR GREGORY: No, the point I was making was that the arrangements which were put in place – I was not in post at the time so I am relying on third party evidence – relied on a set of relationships between the National Assembly and statutory and emergency bodies in Wales, and the role of the Assembly, as it were, evolved as a consequence of the need to handle the crisis and the goodwill that went with the obvious necessity to make sure that public and other services were kept running. The point I was making was that, in the absence of any explicit statutory powers to assume that position, there is always the potential for the Assembly’s position to be at issue. It is not in fact, because the relationships are very strong. Because of 9-11, the relationship with Whitehall has been very significantly strengthened because of the amount of official and particularly Ministerial interest and participation that there has been in the deliberations there.

TED ROWLANDS: As a result of the fuel crisis, for example, there has been no consideration of applying for an Order in Council of the kind that is being sought in the case of foot and mouth disease?

MR GREGORY: Consideration has been given to whether the Assembly should have a power to co-ordinate, but that would have to be as a consequence of primary legislation.

EIRA DAVIES (In Welsh, then interpreted): With the nature of the relationship between Assembly Members and Members of Parliament in assisting the Assembly to steer legislation, and also if the Assembly were to gain additional powers, how would you envisage the functions of MPs in relation to the Assembly?

MR JONES (In Welsh, then interpreted): It is very difficult to talk of the relationship between individuals, and there are differences of opinion between MPs and Assembly Members. It depends, of course, on political parties, so it is very difficult to talk of what sort of relationship exists between individuals on both sides in that way. In my experience as a Minister, I have to say, if I can talk of the relationship with the Wales Office, that that relationship has been very strong and very supportive. My experience during the foot and mouth crisis, and also in dealing with the issue of GM crops, was that the Wales Office were extremely supportive. They did present the Assembly government’s view in Westminster, and that was very important in creating that link between both institutions.

My personal opinion is that it would be a great loss if the Wales Office were to come to an end. That is an exceptionally important office in creating that link between both institutions. Without the Wales Office, it would be very difficult to know exactly in what way we can have an influence on legislation in Westminster without there being some sort of link there actually in Parliament in Westminster. With the situation as it stands, that legislation is made in Westminster, and it is very important that we do have someone who will represent us and the people of Wales indeed in Westminster. It is exceptionally important.

LORD RICHARD: If you have a problem in co-ordinating Assembly policy with Westminster, you go direct to the Minister; you do not go to the Wales Office.

MR JONES: Normally, again drawing from experience under my previous portfolio in Rural Affairs, the link would be directly with the Minister, that is correct. Certainly there still is a meeting every month of all the Rural Affairs Ministers across the UK to look at and discuss the line that the UK itself will take at the subsequent European Council of Ministers meeting in Brussels, but where, for example, there is a need to influence at UK level, for example, if there is an impasse or a disagreement between the Whitehall department and the Assembly department, then the Wales Office is particularly important in terms of assisting in representing the Assembly’s case. So, for example, if it were the case that representations were made by the Assembly department to a Whitehall department, consideration would obviously be given to that representation, but it is extremely useful for the Wales Office to be there in order to provide day to day support regarding the case that may be made by the Assembly department. Without that, my fear would be that the amount of influence, especially in respect to primary legislation, would be much worse.

LORD RICHARD: If you got primary legislation here, presumably you would not need the Wales Office muscle?

MR JONES: It is correct to say that in many areas that influence would no longer be required, but of course, there would still be many areas, for example, criminal justice and Home Office functions, which are not devolved in any way, where there would still need to be support expressed for the viewpoint in Wales. It is for other Ministers to discuss, of course, how that viewpoint would be expressed.

PETER PRICE: I would like to ask about the process of bidding for primary legislation. Presumably the process starts with the various departments here in Cardiff working out what they themselves would like, and then that leads to some filtering before the cabinet decides what it would like to put forward to Whitehall and Westminster. What is the process of filtering? What sort of numbers of bids start the journey forward as compared with what actually ends up in the bid put to Whitehall?

MR JONES: There is no formal process in the departments so far as I am aware. Departments will look to see what primary legislation would be useful. The final decision as to what legislation or what bids are made is for the cabinet. The cabinet certainly last year did not prioritise bids. They made bids for – I could not give you the exact number offhand but I think it was in single figures – maybe seven in terms of the Bills that would be required. We are talking, of course, about Wales-only Bills in that regard. In terms of England and Wales Bills, there are other considerations that come into play. Certainly my personal experience – and I cannot speak for other Ministers in that regard – is that the number of Bills that are submitted will inevitably be tempered by the expectations of those Bills being accepted. I suppose it is a hypothetical question as to whether, if primary legislative powers were resident in Cardiff, there would in fact be more primary legislation because people would have greater expectations in that regard. It is hypothetical; it is difficult to answer that question. We have to be realistic. If we were to submit a great number of Bills, we know there would not be enough time in Parliament for them to be accepted.

PETER PRICE: Is the process of filtering very much an informal process of the Minister talking to, say, her civil servants, and informally to colleagues, or do you get a list of, let us say, 21 proposals that comes to the cabinet, and it whittles it down to six or seven?

MR JONES: The process within departments is, in my personal experience, informal. Certainly the cabinet does not necessarily whittle down. I suppose it depends on the number of bids that are actually made, but we would obviously try as a government to put in as many realistic bids as we could.

MR RAWLINGS: Could I just add an addendum to that? You should perhaps bear in mind the provisions of the standing orders here, because standing order 31, I think it is, requires the Assembly cabinet each year to put forward proposals to the Assembly in plenary as to what Bills it is seeking. The way that the standing order is worded makes it look as though what is being sought is a whole series of Wales-only Bills, and, as the Minister said, these look like Wales-only Bills but in practice one can be fairly confident that, provided that the decision is taken to approve the policy represented by those Bill proposals, quite a few of them could be taken forward in England and Wales legislation. To give you an example, earlier this year, in January or February, one of the seven proposals that went forward to plenary was a request to abolish the referendum on Sunday drinking. As it was presented to the Assembly, that would have been the Sunday Polls Drinking Abolition Bill or some such title, but in fact, there will not be such a Bill simply because we have persuaded DCMS to include the relevant provisions in the Licensing Bill which they are bringing forward anyway.

LORD RICHARD: Yes, but that is not an answer to this, because it seems to me you have identified at least seven areas in which legislation is needed in some form or another.

MR RAWLINGS: Yes, absolutely.

LORD RICHARD: Is it possible for us to have a list in some detail as to those seven?

MR RAWLINGS: Yes, absolutely. It is a document which was actually laid before plenary and plenary approved it.

LORD RICHARD: Can we see that, and see where the gaps in the legislation were?

MR RAWLINGS: Yes.

LORD RICHARD: But the situation is that you have at least seven things that need legislating about. You are applying for a Welsh-only Bill in the Queen’s Speech, and you might get one – if you got two, it would be a miracle – and the rest of it you then try and piggy-back on the back of other Bills or see if you can find a way round the fact that responsibility for primary legislation does not lie here in Cardiff.

MR RAWLINGS: Absolutely, but if you take another example, which was planning, we undertook here a consultation process about the reform of the planning system, and that was done parallel with what was being done in England, but it was done separately and differently. The proposal then came forward as one of the seven Bills last January or February, a Planning (Wales) Bill, but it was done in the fairly confident knowledge that in fact there would be a Planning Bill anyway because it would be implementing the England Bill, and so therefore we had an England and Wales Bill. In other words, I think the point is, it is not how many Wales-only Bills you get; it is how much of the legislation you want that you get.

LORD RICHARD: It is not just a mechanistic thing; it is what you need.

MR RAWLINGS: It is what you need, exactly.

PETER PRICE: But the examples that you are quoting really show a sense of priorities determined in Westminster, for example, on the abolition of the referendum on Sunday drinking. That is not the sort of thing that would have had a high priority had you not known that Westminster was putting forward a Licensing Bill.

MR RAWLINGS: No, because it was put forward the previous year as well in plenary.

PETER PRICE: To what extent is it important for you to know what Westminster are going to put forward and therefore to be able to seize these opportunities of piggy-backing? How big a part in your legislative programme does that play?

MR JONES: If it is not possible for a Wales-only Bill to be brought forward, then clearly we have to be in this position: we have to look to see whether there are other Bills going through Parliament which we can attach ourselves to, as it were, in terms of passing legislation.

PETER PRICE: My point is really the chicken and the egg and what comes first. There inevitably must be a considerable amount of reflection of what is going through in Westminster and looking at where that has some impact on Wales and therefore joining in, rather than you encountering primary legislative needs and putting forward bids, largely because that would need a whole series of Wales-only Bills, and you know you cannot get them.

MR JONES: There are some aspects of policy where a Wales-only Bill is appropriate. There are other aspects where as a matter of policy, an existing Bill can be taken through. I think pragmatically we look for the quickest route.

TED ROWLANDS: I do not know how much this list of seven is a wish list or whether the seven Bills represent really solid demand. In the Westminster legislative process any Bill coming forward has to have attached to it a financial memorandum on the public expenditure consequences on spending. Are these seven Bills at least worked up to the point that you know the resource consequences and the Assembly is aware of what it is committing itself to when it says, "We want to do this"?

MR RAWLINGS: The short answer is not in the sense of having a draft financial memorandum. There are several steps behind the scenes before the Bill is produced with a financial memorandum, and one of the steps is that all Whitehall departments are asked initially to present their bids for Bills on short pro formas. The Wales Office will be one of those departments, and so each year the Wales Office will need to consider what Bills it wants to propose. The Assembly will have a view on the basis of its earlier discussions, for example about the seven Bills, of which Bill or Bills it wants to propose, and there is then a process of discussion.

LORD RICHARD: Can I come back to the seven? Cabinet here arrives at a distillation of the whole thing and says, "These are the seven we want." How many others are there which were considered and did not make the seven, but which nevertheless reveal a need for primary legislation?

MR JONES: There would be, I suspect, a system of prioritisation within departments. It may be the case that consideration is given to a small number of possible Bills because of the reality that only a small minority of those Bills will ever come to fruition. As I mentioned earlier on, it is a very difficult question to answer as to whether if primary powers rested in Cardiff there would then be more Bills presented, because there would be more time and certain people would feel there was greater opportunity. It is difficult to assess how much of a brake that actually acts as in people’s minds, but certainly in terms of the legislation, a lot of it is important, and is important particularly in Wales. I will use one example, again, from my previous portfolio. There is an ongoing problem in terms of common land grazing, which is peculiar to Wales and peculiar to one common in particular, allegedly. The way to deal with it is via primary legislation but of course, it is very difficult to find time in Westminster to take that Bill through because it is peripheral, yet it is a problem in Wales and can only be resolved by primary legislation. So it is not a question of a wish list, but clearly the last thing that any institution would want would be to present a list of fanciful and perhaps optimistic Bills to Westminster, so the Bills that are put forward are Bills that are intended to be practical.

LORD RICHARD: One of the things the Commission has to try and do is identify where the need is for primary legislation. You have told us that after it has all been distilled down, you end up with seven bids for primary legislation. Presumably there is a weeding process which arrives at seven. You must start off with 22 or whatever it is which you then distil down.

MR JONES: That process would normally take place within departments.

LORD RICHARD: So if we asked each individual Minister about his Department, as to where there was a need for primary legislative powers identified, presumably that information would be available, particularly in view of the Freedom of Information Act?

MR JONES: Yes, I would say so. I am sure that information could be made available.

VIVIENNE SUGAR: I wanted to ask how the ordinary members of the public could find out what the Assembly had tried to achieve over the last three years, what had ended up as Wales-only Bills and what had been piggy-backed, so you could get a quick picture of what the difference has been.

MR JONES: We have just launched a publication scheme which makes it easier for people to access information via not just the internet but also the local public libraries as to what the Assembly has actually done. Within that information there would be, I suspect, information as to primary legislation, certainly in terms of Wales-only Bills, but I have not looked at it yet so I could not be 100 per cent certain in terms of providing the public with information as to what has actually been done.

VIVIENNE SUGAR: So we need to look at the website.

MR JONES: The information is certainly available and could certainly be made available to this Commission.

SIR MICHAEL WHEELER BOOTH: Can I ask a question on business arrangement? We are told that the business committee is one of the real successes of the Assembly, but a committee cannot arrange the business of the Assembly. One person has a chart with days and what things are going to be done. In the two houses, there is one official in the Commons and one official in the Lords who do this. Of course, it is subject to political controls and the whips argue, but there is one person. Who actually does it in the Welsh Assembly?

MR JONES: It is the Minister for Assembly Business, myself.

SIR MICHAEL WHEELER BOOTH: So you have a chart and you can flag such and such an order down a week or two because you want to discuss a flood in North Wales or something.

MR JONES: The responsibility for bringing business before the Assembly is my responsibility.

SIR MICHAEL WHEELER BOOTH: But do you do it yourself rather than with help from an official?

MR JONES: No. The officials will draw up a grid. I do not personally sit down and write it out myself. The way it operates is that at every business committee meeting there will be two documents generally presented: first, the draft business statement for the week, and second, the forward look, which usually takes us up to about three weeks. So the business committee are aware of what is being proposed. There are alterations that take place every week according to the need to make statements and occasions when something is not quite ready and so forth. That draft business statement will be discussed at the Business Committee. At that stage it is common for other business managers to make requests for certain items to be debated or statements to be brought forth, but in the Business Committee there is no vote of any kind in that regard; it is an informal sounding-board. Every Tuesday the business manager has the responsibility of bringing before the Assembly the draft business statement. Again, it is common for opposition business managers to put in the public domain what they had originally argued in the Business Committee, and then they have the right to refuse to adopt the business statement, in which case there is a vote on it.

LORD RICHARD: So your "usual channels" are published?

MR JONES: Yes.

LORD RICHARD: The "usual channels" in the Westminster sense, where it is all agreed between the parties.

MR JONES: It is often the case that a request is made to the business manager in plenary session when the draft business statement is presented that has not previously been made.

LORD RICHARD: Does it ever succeed?

MR JONES: Not now, because there is a majority within the chamber itself. It certainly was the case before that there were occasions when the business statement was altered.

SIR MICHAEL WHEELER BOOTH: But in practice, you are more open and accountable by far than the business managers at Westminster.

MR JONES: We would like to think so.

HUW THOMAS: Can I just go back to the seven or indeed however many more there were before the seven? Many of the illustrations you have given almost seem like short, one-clause Bills. By the time the draftsmen have got it I am sure they will grow. Has any consideration been given to a "miscellaneous provisions", an annual round-up of the anomalies that are being worked out?

MR JONES: The anomalies can usually be dealt with by Orders in Council or by other means, so it would not normally be the case that an Act of Parliament is required to iron out an anomaly. It can usually be done far more easily than that. So in terms of the Bills, they are aiming to be substantial in their effect, but the last thing we want to so is simply present Bills that are, as you put it, one-liners when there are other alternatives that can be used that are both faster and more practical.

LORD RICHARD: Minister, thank you very much indeed. You have been very generous with your time and with your comments. I have learned a lot, and I think everybody in the Commission has learned a lot. We have explored some of the more arcane corridors of the National Assembly, and I think it has been interesting and useful.

MR JONES: Thank you very much indeed.