Commission on the Powers and Electoral Arrangements of the
National Assembly for Wales

Evidence from John Osmond and Professor Keith Patchett, Institute of Welsh Affairs,
26 September 2002, National Museum of Wales, Cardiff.
Lord Richard: Thank you very much for coming. You know what we are embarking on. I wonder whether you would care to open up the discussion. What it is you think we should try to achieve?
John Osmond: Thank you very much indeed for the opportunity to come this afternoon. When we were invited to talk to you we thought the best thing we could do - rather than come to clear positions on the issues in your terms of reference - was to think of the matters with which you are confronted and how you might address them. That is the burden of the paper that we have put in front of you. It is the product of a seminar we held. We have access to a wide range of expertise from people who bring a view on constitutional matters, which, although they are not the mainstream concerns of the people in the street, are central to the notion of civic society.
As a preliminary suggestion it seems to me that your broad role is to examine how devolution in Wales is working in practice, to judge how to improve it and to make the intellectual case for so doing. The intellectual case will not be the deciding factor. These issues are determined by other considerations of a political kind. But in my experience unless you make the intellectual case nothing follows. When we were campaigning for an Assembly to be established, over the years we refined the intellectual arguments for change, and although when it came to the point of decision intellectual arguments were not at the forefront, without them we would have got nowhere.
Probably as important is to suggest areas where you might conduct some research - to look at options and the consequences of options both in relation to the Assembly’s powers, and how they may be improved, and the electoral arrangements.
Professor Patchett: Thank you for the invitation. In putting this paper together we thought it would be helpful both for your purposes and perhaps in our thinking to try to explore the range of options that the terms of reference seemed to suggest. We were keen to stress the point that, looking at it from the outside, we would be hoping to see recommendations that were well grounded in the realities of the circumstances that currently exist. We hope that the implications of the various options will have been explored to the proper extent so that the judgements about the options, which need to be made, will be well informed and take account of matters that do really need to count in the discussion.
We haven't attempted to provide a comprehensive survey even though the paper covers a lot of ground. We are trying to suggest an approach, which would help take the discussion forward. There is nothing that contains a set of proposals. The Institute of Welsh Affairs will probably be making a firm set of suggestions about content at a later stage, perhaps after the Commission itself has indicated the issues that are most important in your eyes.
We felt it was important to work at the relationship between the central issues to which the terms of reference refer and the consequential considerations that flow from these different options as we see them. Each option that is available seems to us to have different implications, and the impact upon the existing settlement is likely to alter according to the options that are preferred in the end result. And it may be that some of these factors will help determine the favoured option as much as the considerations which are central to that option itself.
There are implications clearly in each of the options - the structure of the Assembly, its size, and the way it works. And those are likely to differ somewhat according to the line that may be taken. Clearly one of the major factors is the financial implication, which will weigh heavily, certainly in the public mind. We are keen to encourage you to produce estimates of the cost of alternatives so that options are more soundly based than proved to be the case for the settlement itself.
I won't go into the content of our paper. I think perhaps the best way to explore this would be in response to questions on which we could elaborate. Just two points that we would want to emphasise. One was the importance in our minds of consultation, not only to help focus the attention of the public to the issues upon which you need guidance, but this seemed to be a remarkably opportune moment to stimulate a public debate about the government of Wales, which hasn't taken place. We feel there are lots of misconceptions about what happens and what is capable of happening under the present settlement. We hope that as a result of this exercise there will be a much more realistic appraisal of what the National Assembly can achieve than has been possible up to now. We place a high importance on consultation.
And secondly as John mentioned, we put some importance on research. We feel that there is considerable room for external research on a number of areas that are pertinent to the work, and particularly on some of the implications of the various options. We hope that you will consider commissioning some of this, which need not be expensive or time-consuming. We hope it will help the Commission grapple with the facts that they have to and also to put into the public domain matters which would help people judge the recommendations that the Commission make.
Lord Richard: Thank you. It seems to me that as a paper on methodology, we are all agreed. For example your appendix 2 -- as I read I ticked every suggestion. But I would also like to perhaps try to get some opinion from the two of you today on what your views are on the issues themselves. For example you mention uncertainty - what do you mean by potential uncertainty here?
John Osmond: You have heard this morning, as Ron Davies explained to you, how the powers devolved to the Assembly were previously with the Secretary of State. These powers came about and evolved gradually over 30 years, as and when laws were passed and amended. Then if you look at the Transfer of Functions Order – it’s a big document -- you have to go through hundreds of Acts of Parliaments. There have been many incidences when the Assembly has been trying to do something and then has had to ask itself whether it can do it. There have been number of occasions when there have been differing views. Just one example: there was a universal desire for the Assembly not to participate in performance-related pay for teachers. One Act suggested that perhaps they weren't allowed to do so. The Executive took a view that concurred with that. However, the Education Committee decided to ask for alternative legal advice, which suggested that under that Act they did not have to follow that course. This has been repeated in various areas such as the calf re-processing scheme. They discovered very late in the day that they weren't empowered to put it into effect. So there is a lack of clarity. This has been replicated in other instances. AMs ask what are they allowed to do.
Ted Rowlands: Any constitution has that uncertainty. The Americans have this problem with defining the rights of the States.
Professor Patchett: It’s not just that. In fact the problem will always be present where you have lines drawn. When we look at the mechanisms by which the lines have been drawn there are elements of uncertainty – in existing Acts, the new Acts of Parliament, secondary legislation and European designation orders. It’s possible that the Assembly Secretariat are well able to come to terms with this, but there are the recipients of the exercising powers too who wish to know about it. There are people who wish to ask for policy changes. And there are considerable problems in relation to this. The Law Society refers to this frequently. It is not just the fact of finding out whether the National Assembly could tackle it. There's also the problem of who can deal with the issue. The problem is compounded by the overlapping arrangements that sometimes exist.
Peter Price: Is that not an argument for a Consolidation Act, pulling together all the secondary powers, but not changing the functions?
Professor Patchett: What kind of single instrument? More than three hundred pieces of legislation are referred to in the Transfer of Functions Order,and these are changed frequently. The instrument that listed these would be in a constant process of evolution. I would recommend having a look at the University of Cardiff's on-line Legislative Database.
It’s not only the powers that have been conferred; sometimes they are conferred subject to limitations. It may be that the power is conferred but you have to exercise it with someone else. Sometimes it’s joint action that has to be taken. Instead of getting a clear picture, you have to look around to find clarity as to the exact nature of the power. Unfortunately these things change day by day as new powers are conferred and altered. That's what we mean about the uncertainty and complexity for those in government as to what can be done and can't - and what can't is what is important.
Lord Richard: The Scotland Act provisions are easier.
Professor Patchett: Yes, broad areas are devolved. It’s still a complex solution but it’s a more conventional one. Frankly, and I have had a fair experience in other jurisdictions, I have never seen this type of mechanism before it was applied to Wales. Usually lines are drawn with more clarity and have a degree of permanency about them. I described this on one occasion to be like a jigsaw of ever changing pieces where there are no straight edges.
Lord Richard: Ron Davies described it as a jagged edge. Are you saying that the way of straightening the edge is to change towards a Parliamentary model with primary powers.
Professor Patchett: Ideally. That's a personal opinion in this respect. This settlement was without precedent. It was experimental and I think the workings have revealed significant weaknesses. I would not like to see some further refinement of this so we get a second experiment. It is easier to operate in the UK mode if we have relatively familiar and balanced institutional mechanisms in legislative matters. The Wales solution is asymmetrical in the extreme.
John Osmond: If you examine the reasons why we got to where we are, it is not due to any kind of rational assessment, but rather the best that could be done at the time, given all the pressures. Regardless of the case for extending powers and so on, is what we have, in terms of what it attempts to deliver, appropriate for proper understanding? Obviously in the first instance by the AMs, but also by the general public who are supposed to have some concept of what is going on.
Ted Rowlands: Have you got a list you can submit to us of the examples where the powers are unclear. You speak as if it is happening on a daily basis. Have you a list?
John Osmond: We could put together such a list - for a fee! The Institute produces a quarterly report.
Ted Rowlands: I know of these highly dramatised ones. I haven't seen them week in week out.
John Osmond: Its fair to say that the Assembly works very hard to prevent these kinds of problems arising.
Professor Patchett: Yes, But it does add an extra burden on those who have to carry out policies. One indication is the growth in the office of the Counsel General. The number of lawyers has been increased. There are suggestions that more are needed because it is a legally focused administration. I am a lawyer. I do not think that that is always the most desirable priority.
John Osmond: The other point that occurs to me is that the kind of high profile examples tend to be concentrated before the Coalition was established in October 2000. I suspect that since then, as a result of the Assembly Government’s secure majority, quite a lot of these disputes have taken place behind closed doors and so have not emerged in public.
Ted Rowlands: But are there many examples?
John Osmond: It’s always easy to over egg the pudding. But it seems to us in our observing of the Assembly and its discussions - if you wanted to have complex arrangements it would be hard to better these.
Lord Richard: The complexity adds an extra layer of difficulty?
Professor Patchett: It might help if there were simpler mechanisms of conferring new powers. The variety of techniques that are used adds to the complexity. The various Acts of Parliament use half a dozen ways to do it, to express how the legislation affects Wales by comparison with England.
Lord Richard: How much of this is drafting?
Professor Patchett: Drafting has to take account of political factors. Every Counsel producing a draft is aware that the legislation has to go through the parliamentary process. For example if you can combine the Welsh and the English treatment into a single section then it’s much easier to debate in Parliament. You use the term ‘appropriate Minister’ and then at the back of the Act specify the appropriate Minister to mean the Assembly in the case of Wales. So you have the exact same provision applying to Wales.
Peter Price: This raises the question of where is the Welsh dimension? Should there have been separate treatments so that Parliament could focus on this? The measures could then be integrated with the existing devolution of powers.
Professor Patchett: An example is the draft Mental Health Bill. This has a policy behind it which does not integrate at all with the Welsh mental health strategy. But the legislation gives equivalent provisions to the appropriate authority in England and in Wales, which doesn't really allow the Assembly to adapt the policy direction incorporated in the legislation in the most appropriate way for Wales.
Viv Sugar: Can I ask you about the smoothness of the arrangements for consultation with Whitehall Departments? Has the mindset adapted to devolution?
Professor Patchett: If you look at the beginning of the process, when these things were being worked out, there were more significant problems than there are now. It is still not perfect by any means. There are some Ministries that have not been as ready to adapt themselves to these arrangements as others. Then when priorities come up, Wales tends to be treated as an afterthought, as has happened too often.
In dealing with Whitehall Wales is negotiating from a weak position. If you exercise primary powers you are negotiating on a different level. There is a dependency on Whitehall and the legislative process. The end decision ends up in Parliament as an issue that has been pushed through on the tailcoat of English policy priorities. If a policy has been evolved in Wales, then you are in a much stronger position when it comes to negotiating for legislative provision. However, as things are you are always reliant on co-operation from Whitehall.
John Osmond: I would suggest you look at the White Paper ‘A Voice for Wales’. After all it was what the referendum was about. A lot was made there of the Assembly's role. The firm suggestion was made in the White Paper that in future the Assembly would decide things for Wales. That was, as far as the White Paper is concerned, the intent.
When you look at the Assembly's review of procedure, which took place over the year up to February 2002, they made the point that they were not being allowed to do this in practice except in rare examples. They came up with a set of principles, to enable there to be more flexibility.
If you look at these, the so-called Rawlings principles, if they were operated fully and in a wholehearted way, in my view it would in effect give legislative powers by the back door – though I am a layperson on this. That was the intent of the White Paper, you could argue, but this has not happened. By and large this is not happening in any consistent way. If Whitehall or Westminster pushed legislation through that included what the Assembly asked on the basis of the Rawlings principles, that would allow backbenchers to have two bites at a Bill. For example in England we will do this and this, and in Wales we will give it to Wales. But this could mean that Opposition MPs might have two opportunities to oppose – first on an English, and then on a Welsh basis.
Peter Price: On powers of secondary legislation - you have been talking about limitations on powers in the way that Bills are drafted. Let's look at the use of the powers that the Assembly has. It has not been as effective as one might have expected. To what extent are you satisfied that it has used those powers and to the extent to which you are not satisfied- how much is that due to the lack of civil service backing for Ministers?
John Osmond: That's certainly true - you have to take that into account. We were starting from a very low base in terms of capacity across the board. Both in terms of politicians and their experience and certainly in the case of the civil service. You had a Department of State, which had no track record of Bill management.
We all know the number of circulars that used to be issued. The only difference between them in England and Wales was the different heading on the top. Those examples were legion. I think it’s fair to say there has been a very rapid learning curve since the creation of the Assembly. The civil service in Wales has grown quite substantially. There are some four thousand civil servants. Before the Assembly was established they had cut out a whole swathe of people who had experience but were retired. Perhaps the head was cut off. Not only have they had to get to grips with the whole business but also politically it has been a tough time. Not one of the parties has had the leader it started out with, apart from the Liberal Democrats. When you look at those circumstances, it has been not the easiest of rides. Simultaneously the administration had to deal with the establishment of the Assembly and with coping with the Objective 1 process, two major questions.
Ted Rowlands: What are the mechanics of Secondary legislation. What actually happens to the drafting?
Professor Patchett: Secondary legislation would be drafted by one of the lawyers in the Counsel General’s office who will be assigned to it. He would produce a draft. Then that goes to the Legislation Committee.
Ted Rowlands: Does it need to go to Westminster at all?
Professor Patchett: No. Secondary legislation is almost entirely with the Assembly, though there are cases where powers have to be exercised jointly. The Assembly has considerable expertise in secondary law making powers. Unusually so, because of the way they scrutinise them. There is detailed attention to secondary legislation - Parliament might take interest in this.
Ted Rowlands: Is that the case? I don't see much evidence of such real kind of scrutiny or amendment going on.
Professor Patchett: That may say something about the quality of the product. There is a reasonable amount of attention being paid to this. The Legislation Committee is fairly active. One of the problems is the absence of specialist advisers, which makes it difficult for them to bring an expert eye looking at it from a different standpoint from that of the Assembly Government which initiated it in the first place.
Ted Rowlands: How many Orders are being made by the Assembly?
Professor Patchett: Three hundred last year. There has been a rapid growth - they have strengthened this considerably. This has been an enormous learning curve. The subject committees have not been as active in bringing forward initiatives for secondary legislation as much as had had been hoped. The procedural review pointed this out. The committees themselves are hard pressed to cope with all the issues that fall upon their table.
John Osmond: The committees have three broad roles: looking at secondary legislation, holding the Executive to account, and also policy development. By and large the subject committees have tried to focus on policy development. In practice, they can't make policy, and so what they have found themselves doing is getting bogged down on large-scale, longer-term matters like the future of the language or the problems of the countryside. To an extent, what we have lost sight of is holding the administration to account. Not much of that goes on.
Eira Davies: How would you like to see the focus of the subject committees and how do you think they could do their work more effectively?
John Osmond: The logic of the way in which the Assembly is going is the separation of the Assembly Government on the one hand and the wider Assembly itself on the other. It seems to me that the subject committees ought to focus more on attempting to hold the Executive, the Assembly Government, to account and questioning Ministers. There are problems, since Ministers sit on the subject committees. In theory this means that Ministers can be interrogating themselves. It’s a kind of nonsense. In practice, at each fortnightly meeting of the subject committees, for the first 20 minutes, the Minister makes a report , which is followed by questions from other members. That is a moment when there can be some form of interface, of holding the executive to account if you like. It’s hit and miss. After that the Committees goes into their policy development mode or engage in some other activity such as interviewing a Quango.
At the start the civil service was at the call of backbench AMs but now opposition AMs do not have access to the large bulk of civil servants. They have to rely on a small number of civil servants working directly for the Presiding Office. The subject committees ought to use their over-stretched resources much more to holding the administration to account. That's my own view, given the way the institution has evolved. Having said that, in some of the long-term enquiries, particularly in the field of education, some good work has been done. But the output tends to be consequential on the calibre of the Chair.
Huw Vaughan Thomas: If we can stay with this example of policy development and the formal powers – on that the reports from the Assembly look silent. There is nothing that says this is what we can do with our powers, this is what we are prevented from doing by them. It doesn't appear that the Assembly policy process takes into account the powers and constraints. Is that because of the complexity or simply that in a sense it is too difficult and should be put to one side?
John Osmond: It’s difficult to say. It maybe that there is a hope that if a coherent policy is developed it can be put in place. If you have the powers you can do it immediately. If not, that's something, which you need to negotiate powers with Westminster. The issue, I think, is to try to develop some coherence in the policy. If you start saying you can only do this and therefore our policy must work around it, then there will be no coherence to the policy. If they try to evolve something that would achieve their objectives and then say let us explore a way in which we can execute it, that would be more coherent.
Professor Patchett: To add to that, in practice the Assembly is concerned with how much money it has got. There are many things it wants to do, but no money.
Tom Jones: What struck me from what we had this morning was that when we received the list of measures or Bills that the Assembly would wish to see being passed it was a very slight list after four years of the Assembly process. The St. David's day holiday for example. If there was a need for primary powers there would be a list of Acts that we as the people would expect to get. One would like to ask, is it because we don't have the powers, or that if the funding is in place there is a great deal that we could do that would impact on the every day?
What is the evidence on that? Is it a matter of funding or a matter of the Assembly not asking for alternative legislation or is the Assembly feeding into British legislation. Is it feeding in the views of Wales in the British Parliament?
A second point -- to what extent do those advising or lobbying Government feel frustrated by the process?
John Osmond: Sometimes they want to give their views to the Assembly, at other times they have to go to London to give their views on policy, because they feel there is a British role. There is a complexity there, whether to give views to the Assembly first or go directly to London. In many instances there is uncertainty where responsibility lies.
On funding, they are not liable to get things, which are going to involve budget changes. The amount of money is fixed.
Ted Rowlands: A great deal of research has been undertaken. There is a growing feeling amongst academics that the Barnett formula benefits Northern Ireland and Scotland but not Wales. If you look at examples in the case of Scotland, and what they have done in terms of primary legislation, the changes they have made, what comes to mind?
John Osmond: Student grants, free personal care for the elderly - there's no doubt that the Assembly would have gone down a similar road. The financial implications of that are considerable. These are great problems. Any significant change in education, health, tend to imply significant increases in public expenditure. Major changes of policy in these areas will cost money. The Assembly is going to be constrained in its capacity to spend. To a large extent this has been hidden in the first term because the Assembly has benefited from large rises in overall UK public expenditure. As a result the Barnett formula has not been tested. However, imagine the situation if money was being reduced.
Ted Rowlands: Doesn't that suggest that if you want to pursue legislative powers you have to link the capacity to raise money - so at least if you have to will the legislation you have to will the means.
John Osmond: This is not the culture of the UK. 70% of public spending is raised centrally. If you look at Sweden, which delivers it services better there, then the figures are reversed. 30% is raised centrally and 70% in the regions.
Ted Rowlands: Regional taxation would be regressive. There would have to be a measure of equalisation across the UK.
John Osmond: I think we are probably straying into areas that are not your territory. The political realities, if you look at patterns of government in all countries that have a regional tier, - Germany and Spain are the best examples -. by and large none of them has chosen to deploy revenue-raising powers. Taxation is unpopular wherever it is done. In the case of Scotland, in terms of the overall budget exercise of their present financial powers to vary income tax rates by 3 per cent up or down would have limited effect.
Lord Richard: Can we try to understand the implications of the corporate model. Can you confer primary powers on a corporate body?
Professor Patchett: I don't know that that would help. It is the local authority model that it was originally built on. When the Act was designed it was based upon the idea that there would be a single entity and this would be corporate. As the Bill was going through Parliament decisions were made that some kind of cabinet system should be in place and this was put in, but you couldn't go back to first principles. So now we have the rather artificial situation of an entity in which all power is vested but which has now to assign that power to those who are actually going to exercise it, by delegation. Ministers in fact acquire their power from delegation by the Assembly itself to the First Minister, formal delegation. And therefore strictly speaking Ministers exercise powers of the corporate body. It leaves questions as to the rest of the corporate body that enjoys limited competence in certain overall functions that have not been delegated. It comes down to things that were not spelled out clearly in the legislation.
It is a very artificial way of operating now when we have got a very clear administration separated from the rest of the Assembly. That doesn't run comfortably within an entity, which is supposed to be comprehensive of these two distinct sectors.
The corporate body is very difficult as a concept to build upon. For example if you are going to confer primary powers on a corporate body, then you have to introduce some new provisions about delegation saying that such legislative powers are one of the functions that cannot be exercised through the delegation process. Lines don't have to be legally drawn within the corporate body. When you are trying to do that you are acknowledging that that structure is really not the appropriate one for dealing with, on the one hand, executive matters and, on the other, Parliamentary matters.
New Speaker: Can there be a vote of confidence in the administration?
John Osmond: This occurred in the case of the First Secretary.
Professor Patchett: You can't have a vote of confidence in the whole entity.
John Osmond: The episode involving the resignation of Alun Michael illustrates in a way the workings of a corporate body. In the days leading up to the event, Alun Michael made it clear that if such a vote was passed the Labour Group would re-nominate him, though they did not put that to the test. You had a situation where there could have been a continual Ping-Pong, with the Assembly passing votes of no confidence and the minority Administration re-nominating their First Secretary. So the opposition came up with a resolution that if Alun Michael had re-presented himself, they would pass a resolution revoking the delegation of powers.
Another working of the corporate body which is perhaps more instructive, is the relationship of the Assembly with the EU. In the first 18 months or so, it said it would participate in the Wales European Centre in Brussels. The terms under which the Assembly was participating in the Centre were signed by the leaders of the four parties. All parties took responsibility for that decision and the four party leaders became directors of the European centre. They had representation in that form. The Assembly as a corporate body was operating to represent itself in Brussels. Earlier this year, however, and consequent upon the formation of the Coalition, Rhodri Morgan withdrew Assembly Government support for the Centre.
Professor Patchett: There are other illustrations. You will see no reference to the Counsel General in the Government of Wales Act. The office was created to serve the corporate body. This was going to be at the core of the legal entity. With the emergence of the Welsh Assembly Government, increasingly the role of that office is directed to service the government. One needs within the entity itself a legal adviser to government and a legal adviser to those who are not in government, but to put both in the same office is to draw Chinese walls that are not practicable. I don't see how a Counsel General can discharge both functions.
John Osmond: The Alun Michael resignation demonstrated this. The Counsel General presented advice to the Presiding Officer on procedures to be followed in the event of a no confidence motion being voted upon. The Presiding Officer didn't like the advice. So following the episode he appointed his own legal adviser. You have a legal adviser for the Presiding Officer and another for the Assembly Government. The corporate body is no more.
Viv Sugar: Just ask you - on the dilemma of requiring separate legal advice. Do you see any parallels with local government?
Professor Patchett: I don't know whether in local government conflicts of interest arise within the monitoring officer’s function. Patently they do within the National Assembly. I don't see how they can be resolved in the way in which these different functions are now emerging.
Laura McAllister: A more overarching question. In a lot of material you have, you talk about the possibilities of rationalising the whole scheme. You have also referred to a lot of precedents that have changed the external or internal architecture. Several have come from within the new Assembly government and within the new relationship to the new Assembly government. What's to recommend the option of moving to primary powers instead of settling things by precedent or these principles? And taking on more functions as appropriate. What are the relative merits of those approaches?
Professor Patchett: I think that then you really are moving to a new devolution settlement. I would find it difficult to see how you can patch up the institutions. I think the ramifications of that run right through the legislation. For example if you were to give the Assembly taxing powers you probably need a Consolidation Fund for Wales. Then if you have that, you have a new set of structures that have to be incorporated. If you moved to primary legislative powers I think you would probably need to reconstitute the settlement in a form of a more conventional parliamentary structure.
The rationalisation process is feasible but it becomes a further experimental mechanism. It would be possible for government in Whitehall, if it decided it was going to legislate over say, mental health, to pass to the Assembly sufficiently wide frame work powers to do whatever they like within broad limits, including Henry VIII powers which allow them to re-jig all the legislation that operates in that field and to produce coherence in that field. You could do this for every piece of legislation. But this is a fundamental change of constitutional practice. We have never used this device before. The practice has always been in legislation that you set out the rights, powers, duties and responsibilities with a high degree of prescription so that the limits are very clearly drawn. This is on the assumption that governments should only have so much power and that their powers should be capable of being reviewed. It becomes then a political question.
Lord Richard: Would that kind of shift be more likely?
Professor Patchett: As soon as you start shifting one piece, the whole thing comes into question. I would not like to see a new Government of Wales Act that produced a new piecemeal settlement.
John Osmond: You have already got the record that the Assembly across the parties has an emphatic desire to operate in parliamentary style. They also wish to have greater freedom for manoeuvre wherever possible. They have accepted the Rawlings principles which I have argued, if they were fully implemented, would imply primary legislation by the back door. Why shouldn't it be through the front door?
Ted Rowlands: Throughout the document you mention the need to cost decisions. You have experience in drafting and legislating. Legislation itself is not cheap either in drafting or policy making terms. It’s the whole process alongside the policy making process. Has anyone done any assessment of the cost? At the moment we have the costs being born somewhere else and you paint a picture of total doom and gloom. The first bill the Children’s Commissioner was an excellent piece of legislation. It didn't cost the Assembly very much money at all. How much would it cost to introduce a primary legislative process from Westminster to Cardiff?
Professor Patchett: It would certainly cost. You certainly need to do what the Assembly has already started to do, to strengthen the capacity. This is something that John was saying that has started. They are beginning quite well.
Lord Richard: What does that mean, strengthen policymaking?
Professor Patchett: More people with specialist expertise, who can offer the insights that are required. Secondly, you will need legislative counsel, who are expensive and difficult to find. Scotland has always had them and they were able to build upon that experience and capacity. This capacity would have to be created from first principles. That's a big test.
There is always a concern about the shortage of draftsmen. There are only 40 of them in Whitehall and they are tested to the extreme.
John Osmond: The amount of Welsh legislation is relatively small. That capacity would certainly have to be strengthened. The parliamentary side would have to be strengthened to provide a smaller version of the kinds of services that you have in Westminster. There is no doubt at all that institutionally this would be an additional expense. What the figures are is something that needs to be explored.
Professor Patchett: One shouldn't be over frightened of the consequences. If you look at Scotland at least half of legislation is still carried out in Westminster through the Sewell convention. If Wales is to embark on this road I would not imagine it would be a big bang approach. Maybe for the foreseeable future a lot would be handled in Westminster.
Obviously you have to build up the capacity, but you can’t do it overnight. It’s not a case where you wake up in the morning and replace Westminster.
John Osmond: It’s feasible to see a rolling process where you start with areas of high priority or those, which aren't going to be controversial. Constitutional changes have to be done from the outset. The numbers that you need to get started may not be the same subsequently. There are short and long-term costs that have to be considered.
Ted Rowlands: I read with fascination Carwyn Jones’s evidence to the Norton Committee, which seems to challenge what you said. For example he was asked whether Wales has been ignored under the new animal welfare bill, he said no, it wasn't the proper vehicle. He didn't need or require that bill which you implied has had been the basic example of Wales being ignored. We have to consider the resource implication of picking up legislative responsibility and the implication of even transferring competence, foot and mouth was a sensible one to do. It’s something we have to take into account. We are charged with that in our remit.
Lord Richard: What you have been describing now is a remaking of the constitutional settlement because it involves complete change, away from corporate body into a parliament. We heard Ron Davies argue that any change would need a referendum approach. To the House of Lords Committee you argued there wasn't a need to have referendum, do you still stand by that?
John Osmond: Yes. Though it’s not something I feel that strongly about. The view I hold (and such opinion poll evidence as exists would tend to bear me out) Is that people who voted in the referendum in 1997 were not voting on the detail of devolution arrangements being proposed. Rather they were voting on the general idea, the principle if you like, of devolution, whether to have an Assembly or not. On the whole, if you put it to them, they would say if you are going to have it, let it work properly. To move in this direction it seems to me is not changing the principle of having an Assembly. Instead, it’s simply a matter of making the Assembly work better. I would argue that that is not an argument of principle that would require a fresh referendum.
Lord Richard: Even though there wasn't an Assembly left?
John Osmond:: There is a lot in a name. When people voted in 1997, they were voting on a Welsh Assembly; the idea of the "National Assembly" came afterwards. A National Assembly has a resonance as powerful as a parliament. It seems to me that the term "National Assembly" fits better with the cultural character of Wales. That's a matter of nuance but I feel comfortable with that. You can argue that you would need a referendum to make this change. However, I don't think that you would be having a vote on principle but whether to extend its powers so as to make it work more effectively.
Huw Thomas: I was just going to make a point about personnel and calibre of evidence. You quote the idea of 20% of people in an institution that are competent to lead. If we were to move in direction of having primary legislative powers and having a stronger Assembly - how do you think we could circumvent some of the problems. I am talking about electoral systems and recruiting a better class of politician. Someone that would operate this system to deliver.
John Osmond: I would argue that given what has happened in the terms of the evolving architecture and the lack of backbenchers, the Assembly cannot operate effectively on the basis of its numbers now and the support of staff that they have. I have argued elsewhere that one result is that it’s almost as though we are reverting to the style of the Old Welsh Office. We have now nine ministers and six deputy ministers who go along to the Assembly to announce various initiatives and directions and take the odd question and there are a few debates. The real government takes place in the executive. I know of at least two AMs that are not standing again in the next election for that reason. They ask: - what's the point? If that case can be made under the present arrangements, it can be made even more forcibly if there are moves to give the Assembly more powers.
As to the actual numbers I don't know. Under the 1978 Act, which proposed an Assembly weaker than the one we have now, the number would have been 80. The only reason we have 60 is the Labour Party consideration that if they were going to have proportional representation forced down their throat, they were only going to have 40 constituency-based AMs. It was that consideration that determined the fact that there are 60 members, to limit the proportional element It seems to me that it wouldn't have made much difference. They say the new Assembly is to be built for 80 members.
Ted Rowlands: Well, I have to say I am sceptical about the notion. It is a fair bit of huff and puff in practice. It is my impression that AMs seem to work harder than MPs in Westminster and longer hours as well. Its an interesting question the role of MPs in Westminster.
John Osmonds: It’s difficult to compare. My impression is that Assembly Members work a six-day week. What is regrettable is the long summer recess, which extends from July to October. That is something you may wish to consider. In my view it puts the Assembly into ill repute.
Peter Price: Looking at this question of size, one of the issues is the lack of backbenchers to carry out scrutiny. . If you did the increase to 75 or 80, what would be the gains in your view? Looking across the board, what would be the gains of that increase in size?
John Osmond: Personally, I wouldn't think in terms of that number. I would look at 100. They have 109 in Northern Ireland, which has a population half that of Wales. In Scotland the figure is 129.. To me the gain is twofold. One is that you need sufficient numbers of people to operate the committees, particularly if we are to move in the direction of primary powers. You then have to have standing committees. One gap in the present arrangements is that we don't have a Finance Committee. How can you have an elected organisation responsible for public expenditure without a finance committee? One result is that the Minister of Finance, Edwina Hart, is very powerful.
You need people to make a democratic body work effectively. If you are going to have an executive, you have to have a large enough pool of people from which to choose - whether it’s the House of Commons or any other institution. I would say that of the people elected to a democratic organisation, perhaps 20% are pretty good, capable of holding high office; and another 20% shouldn't be there at all. In the middle you have your work-a-day people who do a reasonable job. If you apply that principle to the present National Assembly with its 60 members, what is the size of pool of people you have to draw from, not just for the cabinet, but for the Presiding Office and the leadership of the four parties and so on? It’s a pretty tough deal.
Paul Valerio: How do you suggest we could sell to the public an increase in Membership?
John Osmond: Tell them the truth and address why are they sceptical. You asked me to provide my view.
Professor Patchett: You can argue that it’s very difficult for people to build up the range of expertise and interests to the extent that they need to do to make solid contribution. Somebody may become an expert in health and be able to stay on that committee long enough to get his teeth into it. There are probably others who won't be able get expertise in any area, particularly from the minority parties. There is no scope for manoeuvre. Therefore to some people it may not be an attractive political career, in the sense that elsewhere it might be. This is why people are reluctant to put themselves forward.
The numbers game is quite at the heart of this. Governments are always going to be looking for deputy ministers. The more subject areas there are, the more people we are going to need to support them and for the new committees that may be emerging. People talk about transferring to the Assembly additional functions such as police and broadcasting. If those were to be involved, then finding people able to have expertise becomes an issue of some importance. And if it’s not there, then the backbench capacity for scrutiny will be significantly lost.
Lord Richard: Thank you. I will not try to sum it up, but you have exposed areas that we need to look at. I am very grateful. I think we might suggest that at some stage we would like to have you back to hear your opinions. Thank you very much indeed for giving us your time, we are very grateful.