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

MINUTES OF PROCEEDINGS

of the

EVIDENCE OF:

NICK BOURNE,

LEADER, WELSH CONSERVATIVE PARTY

held at

The Courtroom, National Museum of Wales, Cardiff

on

Friday, 28th February 2003

LORD RICHARD: Thank you very much for coming. What we have asked witnesses to do is, first of all, to identify themselves for the purposes of the transcript - which is the easy bit!

NICK BOURNE: I am Assembly Member for Mid and West Wales and Conservative leader in the National Assembly for Wales.

LORD RICHARD: And, secondly, really to open up the subject and perhaps give us your views for a few minutes, and then if we may we will ask you questions.

NICK BOURNE: First of all, thank you very much indeed for the opportunity to give evidence which I am giving as an individual but also on behalf of the group so the views will coincide. I will say perhaps just a little bit about the history, although I am sure you are pretty well acquainted with it by now and I am sure you were before, of the party's past position and present position.

As a party, though certainly in a tolerant way because there were many individuals within the party and some at quite high levels who took a contrary view, in the 1997 election we opposed the setting up of the Welsh Assembly. It is fair to say, looking at the outcome of the referendum, that many people other than Conservative voters must have also opposed the setting-up of the Welsh Assembly unless we accept that places like Pontypool and Newport are natural Conservative havens. It was not certainly limited to Conservative voters. There was, as you know, a turnout of some 50 per cent.

Virtually immediately the outcome was known, which was a narrow vote in favour, the stance as set out by the party leader at Westminster, William Hague, changed. He recognised very early on, and I think we did in Wales too, that the Assembly was going to become a fact of life; there was no point in fighting old battles; the position had now changed, and an enormous amount of time, effort, energy and money went into setting up the Welsh Assembly. So I think as a matter of pragmatism quite apart from anything else it did not make a lot of sense to oppose it any longer but to try to make it work for the people of Wales. That has been our stance as a party from that day and remains so.

There may be individuals within the party, as I am sure there are in other parties, who take a contrary view but the great bulk of the party and certainly the official position within the party is to make it work for the good of all the people of Wales.

Then comes the question of whether it makes sense to extend the powers in line with Scotland which seems to be more or less the debate that is being focused on in Wales - does it make sense to have tax-raising powers and to have legislative powers?

If I could deal with them in reverse order, in terms of legislative powers, I would not say never - it is very dangerous for politicians to say that should "never" happen - but I do think at this stage in its history it is not appropriate. Here we are, five years on since the referendum, coming up to six years I suppose now, and barely not yet four years in the National Assembly, and the same people who say they want to change the powers are very often saying that we should not judge the institution just yet because it has not been there long enough - a view with which I agree. It is very early days to be writing any sort of definitive record of how the Assembly is working and it is too soon to do that, but by the same token we have to give it time to bed down with its existing powers and seek to implement those, to demonstrate that it can make a difference before we can talk about changing the scenario again. I think it is very dangerous to have this constant Mao revolution of saying "Things should change".

I feel there is an underlying groundswell within the leadership of certain other political parties of perhaps scapegoating the institution for some of the failures that have existed because of the way matters have been administered - partly the fault of the people running the institution and partly the fault of a hyping-up of expectations I think in an almost impossible way; that after devolution everything would be all right and that it was only a question of having a devolved Assembly and suddenly there would be no problems with the health service, education, roads, jobs or agriculture any more. Sager counsels would have seen that was not going to be the case; with the same sort of budget settlement there were going to be these same problems, and I do not think the problems we now see in Wales are really as a result of process but as a result of the way things are administered.

I think the supposed reasons for change are not real. I think I would dispute, and so would the party, that there is an overwhelming case to change the powers because of the poor performance of the administration.

At the margins, and I am sure we will talk about this, there may be some functions that should come to the Assembly. As has always been the case it has been an evolutionary process with powers transferred to the Welsh Office and I am sure that this will continue, but I think the seismic shift on legislative powers that is talked about is inappropriate.

On the tax raising side, similarly I feel that that would not be a sensible move. I think it would only result in taxes going up in Wales which I think would be detrimental to jobs and ultimately to public services, because I think jobs will just be driven out of Wales. We have seen manufacturing jobs being driven out of Wales now overseas largely, but if we had differential tax rates compared with the rest of the United Kingdom they would be driven into England as well as to Morocco, the subcontinent and so on, so I think that would be very undesirable.

They are my thoughts and those of my party. I am sure they are familiar views to you.

LORD RICHARD: Thank you very much indeed. Can I invite you to answer questions about how you see the Assembly working at the moment? What about communications between Cardiff and Westminster? At the moment it seems to me that, where you have administrations at both ends of the one political party, then there is a degree of lubrification, if you like, that the process works because there is much more of a natural contact between the two. Do you think that could continue if you had different administrations?

NICK BOURNE: There is nothing to compare it with at the moment, is there? It was certainly said during the referendum campaign and during the Assembly election campaign that Labour in Westminster and in Cardiff would be able to work well in tandem. I am not convinced that has been the case. Whether it would be any different if there were a different administration in Westminster is problematic. It may work as well, or better or worse - who knows. There may be more of an effort to make sure it worked if there were administrations of different political complexions. There have certainly been difficulties - partly, I suspect, growing pains; partly territorial between Westminster and Cardiff - and they may exist in much the same way if there were a different party in charge in Westminster. I am not sure it would be materially different, to be honest.

LORD RICHARD: Following on from that argument, there is the argument which says that if you had a clearer division between the responsibilities of Assembly and Westminster, and perhaps a clearer way of doing it would be perhaps the Scottish model where everything is devolved except that which is reserved to the centre, then in a sense you would overcome potential problems if you had different administrations in Cardiff and Westminster.

NICK BOURNE: I am not sure I accept that for two reasons. First of all, the Welsh Office existed previously and presumably there were no evident demarcation disputes there - certainly I would not have thought there was any greater difficulty ---.

LORD RICHARD: They were always the same party, were they not, by definition, because the Secretary of State for Wales was in the Cabinet?

NICK BOURNE: Admittedly, but we have established they are the same parties now really so if we are comparing then and now it is not evident that the position now should be any different than it was then. Perhaps it is played in a more public arena, that is all.

Secondly, some of this I do not think relates to clarity. The most recent dispute is on something where it is quite clear that there is no power in the National Assembly, where the power resides at Westminster on top-up fees which is purely territorial, and that could happen where there is any division because one side wants something grabbing, or is grabbing back. So I am not sure it relates to clarity; it relates to territorial disputes which, by definition, are going to happen in any devolved settlement.

PETER PRICE: May I take this up? Thinking of the way that primary legislation is currently adopted in respect of Wales, let us just spin this through if there were to be a change of government and one of very different colour in Westminster. The bids are put forward by the Assembly: there are more bids than are likely to be capable of being accommodated in the Parliamentary time available in any event: the person who has to argue for the Welsh legislation (a) to be given priority in the legislative programme and (b) to argue for it in Westminster is the Secretary of State. If he were of a different colour and did not share any of the same sort of approaches to policy, would he not be in an impossible position trying to advocate Welsh legislation in those circumstances?

NICK BOURNE: He, or indeed she, is a pivotal figure, that is quite clear, and I accept the inference of what you are saying though I am not sure it is your party's stance that I think we do need a Secretary of State for Wales --

PETER PRICE: I am not taking a party viewpoint here. All of us are of independent view.

NICK BOURNE: Nor am I and I am trying not to in answering the question. I think it is vital that there is a pivotal link which is the Secretary of State for Wales. Conservative Secretaries of State for Wales have had to work against a background of Labour domination, and I do not use that in any pejorative sense, in local authorities in Wales, and by and large have managed those relations very well. I cannot see that it would necessarily be any different with a Secretary of State for Wales who is Conservative and a National Assembly which is, let's say, Labour or Labour-led. There would have to be an accommodation but there would have to be an accommodation, as there is now. Goodness knows, if you take the St David's Day issue, for example, the requests made by the National Assembly unanimously got a pretty dusty answer from a Labour government at Westminster so I do not see that that the difference should be looked at as: How do we guard it against a position where we have presumably, from the inference of the question, a Conservative government at Westminster and a Labour-led or a Labour administration in Cardiff - I do not think it should be looked at in those terms. It should be: How do we make it work in terms of a devolved body here and a parent body at Westminster? I would not accept that the sort of difficulties we have now would be materially different if there were a Conservative government at Westminster.

PETER PRICE: Are there any changes in the way the system operates that you would think might be necessary in order to make the system work better if there were a government of a very different colour in Westminster?

NICK BOURNE: There are differences that I would like to see regardless. I have tried not to see it in terms of who runs what but perhaps in a more purist form.

LORD RICHARD: I am thinking of primary legislation here.

NICK BOURNE: In terms of the relationship between Cardiff and Westminster, I do not think it works as well as it should do - or not as well as we envisaged. On the National Assembly advisory group, which I was on, we saw that certainly the role of the Secretary of State was much more pivotal and much more proactive than is the case at the moment. Under the Government of Wales Act, and I stand to be corrected on this but I am pretty certain about it, he is entitled to attend debates on the National Assembly, and there is indeed - or was - a seat set aside for him in the Assembly chamber which was the Secretary of State for Wales' chair. That has now disappeared, rather symbolically, because he never attends - and I say "he" because it has always been a he. Other than the visit when the Queen's Speech was debated, and that was for one day when was the former Secretary of State and two for the present one, I do not think he has ever been in the chamber, never been in Committee, never met with Assembly members formally or informally, and that to me is a serious lapse in the way the two institutions get together, because it seems to be not in the interests of the institution that we have not had the chance to put questions to him or for him to ask us how he can make sure the arrangements work better - many issues that always get aired in the press and the media but we have never had the opportunity, formally or informally, to raise them with the Secretary of State, and that relates not just to primary legislation but to all sorts of budgetary issues and so on where we could have the opportunity of perhaps seeing some of these express trains coming and halting them before we hit the buffers.

TED ROWLANDS: You said earlier on that in a sense we are in uncharted territory and therefore we can only test it by kind of devolution wargames, dare I say, where we work out a possible scenario and see if the system can sustain it. Let me offer you an idea, therefore, where a newly elected Conservative administration at Westminster decides that it wants to carry much more further forward its market style of reform in education, for example, vesting powers in school governors, allowing schools to compete with other schools for children, and having a financing bidding structure around that. You can see it coming out as a policy statement - total anathema to a much more different character of administration in Wales with full education responsibilities. The Conservative government of the day puts through a new piece of legislation which enforces this and the Assembly government rejects it here and wants a different kind of legislation, creating a more collaborative arrangement, so you have two different philosophical approaches reflected in legislative terms. Do you not think in that situation it would be justifiable for the Assembly government to have that power of what it wants to do within its area of responsibility, and not have to carry through the reforms that a new piece of Conservative Westminster legislation would require?

NICK BOURNE: I do not think you have put it in unreasonable terms at all but I would say this: that sort of situation could arise now. Indeed, the scenario you paint is not vastly different from the position we are in at the moment, I have to say, with some of the positions on education and certainly foundation hospitals, where the position at Westminster is different from here.

LORD RICHARD: But there has not been legislation as such. The Westminster government has not sought the legislation.

NICK BOURNE: Exactly. Under the present position we have the option of not pursuing that course of action so I would agree with you if what you are saying is that it depends on goodwill on both sides and the personal chemistry. My party here disagrees with my party in Westminster on many issues, and it may be that the role of the Conservative party in Wales in the Assembly would become important in bridging some of the issues if there were a Conservative government in Westminster trying to liaise with the Labour administration in Cardiff, but the nature of devolution is that there are going to be difficulties that arise. I would not accept that they are more likely with a Conservative government in Westminster but they are not limited to that, as we have seen over the last three or four years.

TED ROWLANDS: Would you not think that in that case a democratically elected body for which that area has been totally devolved, and in this case we are talking about mainstream secondary or primary education, should have the power to protect its own policy or develop it in a rather different way from that emerging at the Westminster end?

NICK BOURNE: I would not, no. I think maybe there is a difference between us on this. It is not the devolution settlement that was voted on in 1997.

TED ROWLANDS: I am just testing.

NICK BOURNE: Absolutely, and I think at this point in our history there is not an appetite for that and I do not think it would do Wales any favours going down that route.

DR McALLISTER: Can I follow this up slightly and take you back to some of the points you make in the paper you submitted? You say at the very beginning that there are a number of key points you want to make. One of them is to fight to make the National Assembly work and, secondly, to properly use its existing powers. Now the tone of your paper is very clearly distinguishing between the performance of the National Assembly and the performance of the Assembly government - you make that very clear. In those statements you seem to be suggesting that more can be done by the Assembly as a whole to make the settlement work and you also seem to be suggesting that as yet it has not properly used its existing powers.

Can you elaborate on where it has not properly used its existing powers and also justify the point about fighting to make an institution work? It seems to me something of an anomaly. If you have to fight to make something work is there not something wrong with the constitutional settlement as it stands, bearing in mind this is newly designed?

NICK BOURNE: Trying to deal with that first, everybody accepted that in the early days it is going to take time to establish a new institution. That is inherent in having a new institution, and I think it is a fight and we all recognise that. We might put it in rather sporting or military metaphor but it is a struggle.

In terms of looking at how we could improve the performance of the institution, to take bald statistics 70 per cent of the secondary legislation we implement is not even subject to debate, and only about 2 per cent is considered by subject committees. That indicates to me that we are not performing the job as thoroughly as we could do and the subject committees have probably got to be beefed up.

LORD RICHARD: How would you do that? With extra members, or with a different structure?

NICK BOURNE: Certainly better time management. I do not think extra members are the answer; I do not think they use their time productively at the moment. I think they perhaps should be given a greater policy role in specific areas. A lot of it - and I do not blame the administration for it - is growing pains. It is going to be the case in any institution that some of this will take time before people appreciate exactly what is necessary. Some of the Committees work better than others but if they are given specific policy areas to look at it would be helpful.

Also, I think a dedicated policy unit within the National Assembly to set out the powers in precise terms and to look at policy options and to set them out for the Welsh Assembly Government would be helpful. I do think in terms of the constitutional settlement it would be helpful if the National Assembly were made a department of state which would then deal with that corporate entity point because at the moment there is this great confusion between the government of Wales and the Assembly, and when you go round Wales it is particularly irritating to Opposition politicians when people turn round and say, "What you have done now in the Assembly?", in a way they would not blame a parliamentarian for what the government has done. Occasionally we get credit but there should be a clearer division, and by making it a department of state, which probably would require primary legislation, that would be helpful.

LORD RICHARD: Why? I do not follow that.

NICK BOURNE: Because it would underline the fact it is a separate department of state --

LORD RICHARD: Would it have specific representation, say, at Westminster, in London?

NICK BOURNE: As you know, I think we should continue to have the Secretary of State for Wales, I do not think it would affect that, but in order that we can implement more clearly the division between the government of Wales and the National Assembly we need to get away from the point that the National Assembly is a corporate body.

LORD RICHARD: But you do not have to become a department of state in order to do that. I am not sure what the effect of becoming a department of state is.

NICK BOURNE: Whatever is necessary.

LORD RICHARD: What you want to do is break the corporate body - in other words, you have an executive and a legislature.

NICK BOURNE: Yes.

LORD RICHARD: And you would like to formalise the break?

NICK BOURNE: Yes.

DR McALLISTER: May I ask what you mean by "muscular devolution"?

NICK BOURNE: It was a phrase that was picked up by the press which I have used again but what I do think is that the government has not always been incredibly imaginative about using the powers we have got. Everyone wrings their hands and says, "We cannot do anything about this", for example tuition fees, but there was nothing to stop the government saying, "We are going to pay a hardship grant to every student in Wales in order that they do not have to pay tuition fees, or in order that tuition fees are reimbursed". That would have made sure that Welsh students did not have to pay tuition fees.

LORD RICHARD: I am not sure what the courts would have made of that!

NICK BOURNE: I can tell you now. They would have said it is highly legal!

VIVIENNE SUGAR: What are your views on whether a referendum would be needed if there were to be any further powers given to the Assembly?

NICK BOURNE: If we are talking about powers rather than functions, if we are talking about transferring powers under the Electricity Act or something like that you do not need a referendum but if you are talking about legislative powers or tax raising powers, it would have to follow in the course of recent history by convention that there would have to be a referendum. Scotland had one and it is hard to see why it should be treated differently in Wales.

VIVIENNE SUGAR: Do you think there should be functions transferred?

NICK BOURNE: Yes, certain ones, and we have accepted this in the Assembly. This has been a process that has gone on ever since the Welsh Office was established. We have certainly supported the transfer of some animal welfare functions under the Animal Health Bill at the moment, and the transfer of electricity generation greater than 50 megawatts which is the subject of negotiation at the moment and is taking an incredibly long time. Large wind farms, for example, will come to the National Assembly. All parties have agreed they want that and the government has agreed that it should do. On top-up fees we have said we are open-minded on the issue in terms of looking at it, and Damian Green and Iain are quite supportive of that provided there is a proper financial settlement for Wales within that. There are lots of questions that need to be looked at but on that, on a case-by-case basis, we are certainly willing to look at areas, and the two I have given we have said yes, we are willing to look at.

VIVIENNE SUGAR: But are there other areas, because we are trying to produce a comprehensive list of those difficult areas that have come out in the last four years of experience?

NICK BOURNE: Yes. Police funding would be a difficult one, and I have spoken to Chief Constables and others on Committees and so on and I would be loathe to see that transferred. The fire service may be one that could be looked at, for example. Broadcasting is very strange and people would die in the last ditch rather than just see that transferred - just Welsh language broadcasting and I can understand their point - so if broadcasting were transferred it would have to be all broadcasting, but there may be difficulties. So there is a taster of one or two but we are open-minded on it to the extent that often there is a case to be made for looking at particular areas. That does not mean yea or nay to those areas.

TOM JONES: The weakness of that view might be that it is a reactive view in the sense that there has to be a public concern in Wales. In one sense that is fine because you are responding to public concerns, but in terms of timetabling and getting good efficient government it means that by the time people have complained to you about something and you are trying to see where the powers lie and you have a debate between Cardiff and Whitehall where the powers lie and then say, "Well, we probably would support the issue on animal health and so on", that means that 12 months or even more have elapsed where concern is great, whereas if we took a view of saying, "Well, we will transfer everything that needs to be transferred except for identified items", that is cleaner, more efficient government.

NICK BOURNE: I do not agree. I think there is a great danger in that approach of finding you have transferred something and then seeing there is an opposite and that there are good reasons why it should reside in Westminster. I accept it may be reactive but I prefer an evolutionary approach rather than a shopping list of areas saying, "We will transfer these and hope for the best". It could go horribly wrong.

HUW VAUGHAN THOMAS: Can I take you to your views of the Committee structure? When the design of the National Assembly was discussed, Committees were seen as having a pivotal role. Taking policy and scrutiny, from your papers you seem to have doubts as to the ability of the current committee structure to deliver scrutiny, certainly of secondary legislation.

NICK BOURNE: You are right that originally in the Government of Wales Bill there was an intention that the committee structure would be much stronger. Indeed, the original intention was that the chairs of committees would be the members of Cabinet. That is how it was originally envisaged and it resulted in committee on advice from the National Assembly Advisory Group where there was a vote taken of 12:1 to alter the structure, but it was pretty overwhelming and was a view that the then Secretary of State, Ron Davies, accepted. I think there is a case for beefing up the powers of committees a little bit so they have a greater role on policy development. There have been one or two instances of where that has happened more than on others - for example, the Education Committee - but that could perhaps be formalised.

In terms of scrutiny of legislation the figures demonstrate that there has been an incredible scrutiny of legislation by the committees. I have not got any easy answers to that and I think more should be done, and that might mean looking at the timetables of the committees making sure that the time management of those committees are spent better. Also, I think we should have a finance committee and the roles of Committees need to be stronger, and less time needs to be spent on regional committees and more on the subject committees.

HUW VAUGHAN THOMAS: What would you want to do in terms more of the policy role, because we have heard others argue that in fact the committees ought to be much more concerned with scrutinising ministers than with developing policies?

NICK BOURNE: There is no reason why they should not do both but I am not sure at the moment they are doing either as effectively as they could. Part of that is growing pains: all of us have not had massive experience in the National Assembly from definition so you cannot expect these things to work perfectly on day one, but I do feel that as people develop expertise on committees, and that can only happen over a period of time, it is a shame that that expertise cannot be used on policy development. Now, that would demand a partnership there between certainly the chairs of committees and the government of Wales, and obviously that depends on personal chemistry, but it seems a great shame for Wales if we are not able to harness some of the expertise that is there within the structures we have.

HUW VAUGHAN THOMAS: Do you think it is useful to have the minister as a member of the committee?

NICK BOURNE: It is useful to have them there, but I am not sure they should be there as voting members. It is certainly useful to have them there, though we do tend to compartmentalise everything a little bit because sometimes these things are not in hermetically sealed containers, and sometimes there is a case for perhaps more than one minister being at a particular committee. I am not sure they need to be members but they should generally be there for at least some of the agenda.

LORD RICHARD: You have talked about "beefing-up" the committees. How would you do it?

NICK BOURNE: In terms of the policy development side I think it demands some sort of approach from the government of Wales of saying, "We need policy development in a specific area", secondary education or something and saying, "We would like the committee within an agreed timeframe to come up with policy options looking at how we regenerate rural communities - how we ensure the language survives, protect small schools, businesses, things like that - and give a timeframe and a reform and a full debate in Plenary".

LORD RICHARD: So considering at greater length in more detail more general subjects rather than specific policy on specific issues? You want more general issues?

NICK BOURNE: Yes.

TOM JONES: You mentioned the regional committees and in your evidence you voiced concern that the Assembly needs to be loved by everybody in Wales and this was meant to be one attempt to bring the Assembly close to different people in parts of Wales, but you hinted that the system of regional committees was not working very well. Could you elaborate on that? Have you any proposals?

NICK BOURNE: Yes. The regional committees are provided for in the Act. It says that there shall be a regional committee for North Wales, and I accept that. I think we probably spend too much energy on regional committees; there are too many meetings now and I think we need less with perhaps more focus and maybe the regional committee lasting for longer than it does. Taking North Wales, if you go to a regional committee in Caernarfon that only lasts two hours it is not terribly sensible, given the amount of Assembly time, for members and also officials to go up there.

Coming to what I would do to try to ensure wider acceptance, it has certainly been our policy to say that there should be an annual meeting, at least in north Wales, over a couple of days in existing council offices or something where we would look at specifically north Wales issues. The same could probably be replicated in west Wales. I think that would be more sensible because it would give a broader focus, where what happens now is it tends to be related to the particular community you are in - which is fine for that community. We have been to Aberporth which is great for Aberporth but I am not sure it is of great benefit for the rest of mid and west Wales which is a very large region, so I think a longer time spent as the whole Assembly might make sense in west and in north Wales.

TED ROWLANDS: I think you would agree that one thing that did change public opinion to in favour of an elected Assembly was the unease of the quango state and the need to light a bonfire - certainly to make this quango world more accountable. Do you think the Assembly is achieving this and, if it is not doing this as public expectation thought, is it because it has not sufficient power to do so or is it just lack of will?

NICK BOURNE: Trying not to be party political, quangos are not called quangos now but Assembly sponsored public bodies to make them sound warm and cuddly. The promise of the bonfire of the quango was never going to happen because what happened was there was a greater transfer of numbers into the Civil Service and a cut down on the numbers in the quangos. I am not sure it is a lack of political will: I suspect it is partly a realisation that it is easy enough to come up with the line but that the reality is a bit different. A lot of these bodies do effective work, and there are issues about control of them - indeed, there is one at the moment in relation to ELWa. One benefit we have under the Assembly is it comes under the spotlight and is subject to public scrutiny which we are doing with ELWa which did not happen before, so we do have that benefit and that may be a testing ground. There are other examples I can give you.

DR McALLISTER: The scrutiny for ELWa in particular has been rather post hoc really in that it seems to us that effectively to scrutinise quangos there needs to be a strategic approach to the scrutiny. We were told by some subject committee chairs that particular scrutiny of quangos is very low priority in their workload. Is that a systemic issue in relation to the committee's priorities?

NICK BOURNE: I am a little bit surprised by that. I do not sit on the subject committee so I do not have direct knowledge of that, but I would have thought in terms of, for example, the Welsh Tourist Board there was probably more effective scrutiny at the earlier stages. Some of it will be post hoc and things will always go wrong, but I would have thought one benefit was that we do manage to do some scrutiny at the front end.

VIVIENNE SUGAR: On the back of that, in the list that you mentioned for making the committee more effective you did not say anything about support, access to researchers or people who could help the committee to be more effective in scrutiny mode. Have you any thoughts on that?

NICK BOURNE: Yes, and apologies for not including them. We have made recommendations through the Assembly Review of Procedure Committee which I think is an agreed recommendation but has not been fully implemented yet to provide additional clerical support and separate policy clerks for each of the subject committees, who will then be effectively in the office of the Presiding Officer area rather than the Civil Service area, and I think that would be a good investment.

At the moment the support is a little bit thin.

VIVIENNE SUGAR: Over a period of time will that mean an inevitable separation between the people employed to support the Assembly and the people employed in the Civil Service to support the executive?

NICK BOURNE: Yes. That is happening de facto now and it is desirable that we do see that sort of division. It started off in terms of the corporate entity idea enshrined in the original Bill, that it was going to be a body where committee chairs were Cabinet ministers, so initially it was seen that it was much more all Assembly members participating in the legislature process. It has become much more like a Westminster-type body with official opposition and government, and that is desirable.

SIR MICHAEL WHEELER-BOOTH: Mr Bourne, you referred to the government of the National Assembly having been lacking in muscularity, I think was your word, and I think you were party to the setting up of this Commission which is spending 18 months doing its work - a lot of work and a lot of money and all the rest of it. Surely to say, "It is too early for us to reply; it is too early to have been set up", would have been pretty unmuscular?

NICK BOURNE: I was not party to you being set up. I am very grateful for the opportunity to come and give evidence here but historically I think there is no doubt that your being set up was as a result of the partnership agreement between Liberal and Labour.

LORD RICHARD: That was the impetus.

SIR MICHAEL WHEELER-BOOTH: That was parturition, but when the baby was being born --

NICK BOURNE: I was asked to be at the christening and I accepted, but I had nothing to do with you being conceived!

SIR MICHAEL WHEELER-BOOTH: But surely you must admit it would be rather wet not to go for what, so far as it can be judged at this interval of time, are seen to be the most appropriate amendments to the devolution package which most of the evidence we have received has suggested are not entirely satisfactory.

NICK BOURNE: That is a leading question, if ever I heard one. If you are asking me do I think you should be recommending extra legislative and tax raising powers, no, I do not. It is not in the interests of Wales and I do not think it would be at all wet for you to say so. It would be very dangerous to say you have been set up therefore you have to come to conclusions that indicate it was justifiable for you to be set up in the first place. I am sorry but I feel that very strongly.

SIR MICHAEL WHEELER-BOOTH: Going back to your reply to Mr Rowlands about the possible difference between an administration at Westminster and an administration in Cardiff and the examples he gave of health and education, at the end of the day under the present Government of Wales Act the last word is with Westminster because it can pass primary legislation which does not give the Assembly the power to carry out the policies it might wish. This is hypothesis, of course, but it is perfectly reasonable.

You say in your paper, "As an institution the National Assembly for Wales can scarcely be said to be popular or even respected". Well, that is quite harsh. One of the recent occasions I was down here hearing evidence I read the Western Mail and it had a review of the opinions of AMs about Iraq, and I do not think there was the same review of what Welsh MPs at Westminster thought. Really what I am asking you is where would the democratic centre be in such a situation? Would a future imaginary Mr Redwood be able to say, "No, you cannot do these things", or would the Welsh administration say, "We want this and we ask you to do it, or allow us to by means of primary legislation which gives sufficient breadth to the Assembly to carry out its policies"?

NICK BOURNE: Taking your first point about where power resides, granted you are right obviously the framing of primary legislation rests with Westminster, but sovereignty also does and it only takes legislation from Westminster to scrap it.

SIR MICHAEL WHEELER-BOOTH: But do you not think that the result of setting up a devolved Assembly, despite the Dicey Theory of parliamentary sovereignty, is that in practice some of the sovereignty has come down to Cardiff?

NICK BOURNE: No. I am not sure that sovereignty is divisible in that way but accepting the basis on which the British constitution is drawn it must be the basis on which you are acting because you are accepting that if there is going to be any extension of power, it has to be encompassed in Westminster legislation. Similarly - and I am not advocating it as a good idea at all - if the Assembly were to be scrapped it would be scrapped by Westminster legislation, not by legislation in Cardiff Bay. When you say the last call rests with Westminster, yes, it does, but a lot of these things depend on common sense and the attitude of the Westminster government. Westminster could legislate to have all blue-eyed babies killed but it will not do it, and similarly in terms of the devolution settlement I think it is dangerous to say that we fear there may be another type of government that could try and unscramble things in Wales so we had better give more power to the Welsh Assembly. That is very dangerous.

What the Western Mail puts on its front page about what Assembly members have said about Iraq is scarcely the way to proceed.

SIR MICHAEL WHEELER-BOOTH: Finally, you said earlier that the members of the Assembly do not use their time as usefully as they might, or words to that effect, and you also said that there was a lack of scrutiny of secondary legislation, I think. What specific proposals have you to improve the work of the Assembly and of its members, bearing in mind that secondary legislation is supposed to be carrying out the filling-in details of primary legislation?

NICK BOURNE: I am not sure I accept that last point firstly; a lot of secondary legislation is implementing policy in a particularly relevant way in our context within Wales so I am not sure I would accept that it is detail. A good operation of the system does depend on a great deal of discretion being left with the devolved authority. I accept that.

SIR MICHAEL WHEELER-BOOTH: But that is against the old doctrines of primary and secondary power.

NICK BOURNE: I am not sure it is. Henry VIII type clauses and so on give power through these, but whether it is or not I do accept that you have to devolve a great deal of discretion.

On the point about individual members, I was not being pejorative about individual members not making good use of their time but as a young institution it is perhaps inevitable that as we grow up we will see that time management is not as effective as it should be, and perhaps some of the debates now are not as meaningful as they could be. We are not spending enough time scrutinising the legislation.

If you analyse what is happening in Plenary now in the context of what was happening in the last 6-9 months not much time is spent looking at legislation, and it should be.

DR McALLISTER: Can I go back to Michael's first point about testing the performance of the Assembly? Given we operate in a hugely performance management climate generally, when would be the most appropriate time to assess whether the powers of the Assembly as they currently stand have been fully and rigorously tested?

I am sure you know that the Scottish constitutional convention was seen to be leading to the creation of the Scottish Act and the Scottish Parliament, and that met for around a 6-8 year period. Would you feel that the first term of the National Assembly plus at least part of the next term would be the equivalent of a Welsh constitutional convention tested at the current settlement, and if not can you tell us when you think we should be able to measure performance?

NICK BOURNE: I need to be careful not to be drawn down the line of signing up to a policy put forward by Ieuan but I think it is far too early at the moment. Scotland has a separate legal system so I am not sure it is a terribly meaningful analogy. Everybody says that this is a young institution and it has to be given a chance to work; then they turn round and say, "But let's alter all the powers because that is what is stopping it working effectively", and I do not accept that analysis. It can work effectively within the powers we have and that has to be demonstrated before you look at what is really a quantum leap. There are great dangers in meddling with the system.

LORD RICHARD: What about the Westminster queue for legislation? Accepting that you may have perfectly good ideas but in order to get them through private legislation you have to come back to Westminster, and with great respect to any Secretary of State for Wales he is not going to push to the front of the queue, so the most you can reasonably expect is one bill a year providing that is not too controversial or too long.

How can that be satisfactory?

NICK BOURNE: And miscellaneous issues. Some of the problem is not in the queue. The queue was not the problem with the St David's Day legislation, for example, but that Westminster took a completely different line - the same as the Welsh Conservatives!

LORD RICHARD: I think you submitted nine suggestions for Bills in this session, or was it eight?

NICK BOURNE: Possibly.

LORD RICHARD: A fair number, and you got one, but are you satisfied with the way in which Westminster legislates on matters that the Assembly wants, which otherwise it cannot do?

NICK BOURNE: In terms of the process, yes, by and large I am. I am not sure that all the things on that list were things we wanted anyway. From memory, I do not think they were. Some we certainly signed up to but not all, and I think we have to accept that that is the system. Maybe it can be improved but I do not think that is a good reason for throwing all the toys out of the pram and saying, "It is not working as effectively as we want therefore we want all the legislative powers down in Cardiff".

LORD RICHARD: But if you take your top-up fees point where you say, "We have to do this but there is a way round it", and therefore you produce a way out of it by I think hardship grounds --

NICK BOURNE: That was not the top-up fees; that is existing tuition fees.

LORD RICHARD: I accept that but your chances of getting a piece of legislation through Westminster are pretty slim, are they not?

NICK BOURNE: Not because of the queue but because I do not think government would want it to.

LORD RICHARD: Both. If the Assembly wanted to do it, why should it not do it?

NICK BOURNE: I think it can do. That is the point I was making.

LORD RICHARD: But it is a pretty tortuous way round it.

NICK BOURNE: But it is the point I am making. Very often there is a tendency on the part of the government here to lie back and not push it.

LORD RICHARD: They should be more inventive --

NICK BOURNE: If they say, "Right, we are going to do this unless you pass the legislation", then, "Westminster will say maybe we had better pass the legislation", but there is no evidence of that sort of approach happening. Rhodri Morgan was brought in as his unique selling point was that he was supposed to be standing up to Tony Blair but I have seen little evidence of it.

LORD RICHARD: So you want it inventive as well as muscular?

NICK BOURNE: Yes.

DR McALLISTER: Can we probe about when? Would it be at the end of the next term?

NICK BOURNE: I have given an answer insofar as I can. It is not appropriate now, I feel, which is what you are looking at. If pressed, I think we are looking at 15/20 years down the line.

PETER PRICE: That is very interesting. You were saying a moment ago when the Chairman put to you that only one of your Bills was accepted that your party was not signed up to several of the others.

NICK BOURNE: I do not believe so from memory but I have not got the list in front of me.

PETER PRICE: But the implication was that you could view therefore with equanimity the fact that the Assembly's list was not implemented.

NICK BOURNE: That is not what I wished to say. I was pressed by the Chairman as to whether I was disappointed, and I was not in the particular context in relation to all the Bills.

PETER PRICE: Let us just take this forward in terms of the situation of a different government in Westminster and the reliance on a Secretary of State who does not share the views.

You have described earlier your approach as being one where you would see institutionally a need for accommodation. To the extent that the Assembly is seeking to do something which is not a slight variation but philosophically entirely different from the direction in that policy area, are you saying that there would have to be an accommodation of a kind that the Assembly would have to come into line philosophically, or are you saying that you believe that a Secretary of State of a different colour could go to Cabinet, could go before the House of Commons and urge acceptance of a Bill which was philosophically quite different, however modified by negotiation?

NICK BOURNE: The point I have sought to make, and I come back to the point which I believe very strongly, is that the nature of devolution is you are going to have these differences even where you have parties of the same colour, and we have that at the moment.

PETER PRICE: But would they not be greater?

NICK BOURNE: Possibly, but we have had it with St David's Day, for example, and we have it on foundation hospitals. There is a drive for foundation hospitals led by the Prime Minister and Alan Milburn in Westminster that is resisted, dying in the last ditch - Rhodri Morgan and Jane Hart do not want it in Wales - so, yes, there may be more instances but it is essentially no different from what is happening now and that is going to be the nature of the devolution, for Heaven's sake. If the two bodies are agreeing all the while there would be scarcely any need for a devolved body.

VIVIENNE SUGAR: On some of the changes you would like to see to make the Assembly more effective, you mentioned the idea of a finance committee. Could you tell us a bit more about that?

NICK BOURNE: Yes. Initially it was felt that because we did not have our own tax raising powers it was not appropriate to have a finance committee and I was persuaded by that, but the more I have looked at this the less I have become convinced about that. I think it is an important area and it should have a committee to question the Minister, probe her more than in Plenary and scrutinise some of the issues like underspends in particular years and contingency planning - issues where Barnett is not appropriate. Broadly we think Barnett should be retained but there are instances where Barnett does not apply - European funding, issues like floods, foot and mouth and so on, where you may be wanting to give the Minister a greater bargaining power.

If she is able to say, "The all-party finance committee has backed me on this particular demand, Chancellor; we do need this money to tackle particular issues in Wales relating to foot and mouth" - whatever it is - it might be beneficial to the government as well as providing scrutiny and the opportunity to raise questions in a more detailed way than at the moment.

VIVIENNE SUGAR: Has this idea of the finance committee and all of the other suggestions you have made been proposed at the Assembly? Has there been a debate? If not, when would you propose to do that?

NICK BOURNE: No. There has been no debate on that particular issue but it has been raised in the Assembly by many, not just my party. I do not know whether it is Plaid policy but it is certainly well known that there is a feeling, probably across the political divide, that there should be a finance committee. It was not I think contained in the Assembly review of procedure recommendations.

VIVIENNE SUGAR: So how would you progress that and the other ideas like the time management issues and more specialisation and so on?

NICK BOURNE: That is a fair point. The forum where they can be raised is probably the business committee of the Assembly where all parties are represented. Periodically that looks at issues like this and if there were then a consensus then the business management would go away and propose this to Plenary. That is probably the best way.

HUW VAUGHAN THOMAS: Some of the responses we have received to suggestions that committees could do more are that frankly you cannot squeeze any more in than at present. There are some committees who would like to pursue items with more vigour but they cannot squeeze their meetings in because their members are on two or three committees. You are proposing to use the committees more effectively and also introduce another committee. What is the ingredient that gives that extra time to Assembly members?

NICK BOURNE: Partly better time management; probably also smaller committees. By and large they are too large at the moment, given the size of the Assembly.

SIR MICHAEL WHEELER-BOOTH: Have you been to Scotland and observed the Scottish Parliament?

NICK BOURNE: Yes, on two or three occasions.

SIR MICHAEL WHEELER-BOOTH: What were your impressions of it?

NICK BOURNE: A snapshot obviously and I have sat in on Plenary but not on committees. I have had chats with our party there and a couple of other people - one in the Liberal Democrat party and their Presiding Officer.

There are teething problems there, as we have here, which again you would expect. Many of the political issues they face seem to be similar to ours. In some ways the way they operate did not seem all that different, given these extra powers. This line between secondary and primary powers is a bit overdone because it depends on the way the legislation is framed.

SIR MICHAEL WHEELER-BOOTH: For example, on finance they have a finance committee and they also can move amendments to the budget, and they do so.

NICK BOURNE: Yes.

SIR MICHAEL WHEELER-BOOTH: It is a very sharp contrast to the lack of procedures.

NICK BOURNE: Yes. Of course, they do have tax-raising powers in addition although they have not utilised them. There are differences in their system, as you would expect, but there are parallels and the overwhelming impression I came away with from speaking to people there was that, again, it was a very new institution and "Do not judge us on what you see", which is something I can empathise with.

LORD RICHARD: Mr Bourne, thank you very much for coming. You have been helpful, revealing, and illuminating.

NICK BOURNE: I have enjoyed it. Thank you.

LORD RICHARD: You have been generous with your time, so thank you again.