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Commission on the Powers and Electoral Arrangements
of The National Assembly for Wales
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MINUTES OF PROCEEDINGS
of the
EVIDENCE OF MR RON DAVIES AM
held at
National Museum of Wales, Cathays Park, Cardiff
on
Thursday 26 September 2002
|
Lord Richard
Thank you very much for coming. You are one of the parents
of devolution so it will be very useful for us to listen
to what you have to say. |
| Could you for the record introduce yourself
please. Then I would be obliged if you would perhaps give
us a two or three minute introduction. |
Ron Davies
Thank you for the opportunity to give evidence. Before
I start I'd like to say that I have submitted a paper
called "A Question of Attitude" it's a paper
I prepared 2 years ago looking at the way the National
Assembly handled legislation and I'd like to present that
as evidence. Currently I am a member of the National Assembly
representing the Caerphilly constituency - I was the Member
of Parliament for Caerphilly until the last General Election.
I was Shadow Secretary of State for Wales from 1992
to the General Election in 1997, and then Secretary
of State from 1997 to 1998 and responsible for the Devolution
Act itself.
I think it’s probably as well that I recall for
you a conversation that I had in the Autumn of 1992
when I was elected to the Shadow Cabinet and appointed
Shadow Secretary of State for Wales by the then Leader
of the Party, John Smith. He spent the first five minutes
of our conversation raving at those people who didn't
support devolution. After five minutes he stopped and
looked at me and said "You are in favour of devolution
aren't you Ron"? and of course I was in favour
of devolution. He made it clear that what he wanted
was devolution for Wales in exactly the same way as
Scotland. So it was clear right from the outset that
my brief was to deliver a parliament for Wales along
the same lines as Scotland was getting. Of course the
task was not quite as easy as that because the Labour
Party in Wales - as you heard from the previous speaker
- has had a rather ambivalent attitude towards devolution
throughout the 20th Century. What I had to
do was try to ensure that we had agreement within the
Labour Party that allowed us to go forward into the
General Election in 1997, and the almost inevitable
referendum afterwards, with the Labour Party not having
been split as it had been in 1979. I was satisfied that
when John Smith was leader of the Labour Party I would
get the backing I needed for what he wanted.
What then happened was that the leadership of the Labour
Party changed and the present leader was much more cautious,
the robust form of devolution that John Smith wanted
was not what he was looking for. So the proposals were
developed to reflect his attitude rather than John Smith's
and they were put to the Labour Party in the 1995, 1996
and 1997 Conferences here in Wales and they were accepted.
They were agreed unanimously by the Labour Party so
in that sense we had done very well, we had achieved
agreement. So we went into the 1997 election with agreement
and I think the narrowness of the referendum result
showed that had the Labour Party been divided we might
have lost the referendum. So my strategy was to get
as much agreement as possible within the Labour Party
and to get that we had to make a lot of compromises.
Again, having listened very carefully to the previous
evidence, the big issue at the time - as it is now -
was the question of primary legislation. That was what
separated the idea of an Assembly from the idea of a
Parliament. And it was that issue of primary legislative
powers that became the main battleground within the
Labour Party. The powers that be within the party were
not convinced of the case for primary legislative powers
and the compromise was settled on therefore, that we
would have an Assembly without those powers of primary
legislation.
|
Lord Richard:
When it came to getting some of the proposals through
Cabinet Committees, and enshrined in legislation, was
there any attempt then to enlarge it to primary legislation? |
Ron Davies
No, largely because I had an understanding with the party
leader prior to the 1997 election that included an agreement
on things that I think were novel and pushed the boat
out a little further in terms of where the party leader
wanted to go: things like Henry VIII powers and proportionality
on which the party leaders were still undecided but we
had agreement on that in the document which was then called
The Road to the Manifesto. Having got agreement that that
would be enacted I didn't attempt to go further but in
exchange I would get what had been agreed enacted in legislation.
There were matters - which I am sure you will recall
- on which there were discussions in the Committee that
was dealing with legislation but they weren't essential
matters, they were things like whether Ministers in
the Assembly should be called Ministers or Secretaries.
I was so confident that I pushed this issue to a vote
and I lost and the term Secretaries was put into the
Act. Of course in spite of this, as you know, one of
the first things that happened in the National Assembly
was that the titles were changed to Ministers.
|
Lord Richard
Given that background and the blueprint if you like of
the Act that you were responsible for, has it worked out
the way you thought it would? |
| Ron Davies
No, the construction that we had was very much an Assembly,
it wasn't an attempt to replicate a Parliament, it was
an Assembly, and therefore the architecture of the Assembly
was very clear, it was about inclusivity, it was about
power sharing, it was about having a system of Committees
where information, power and decision making would be
shared. It was based on a degree of proportionality
so that the elected representatives from all parties
in Wales would be included. It was based on the idea
of partnership so we wrote into the Act partnerships
with business, with local government, with the voluntary
sector and we ensured that we would at least have a
committee for the North and the other regions.
The construction therefore was an inclusive Assembly
- a unique model of government designed for the particular
circumstances here in Wales. What happened of course,
particularly since the coalition government was established
some time ago, what happened is that we are increasingly
seeing now the development of a parliamentary style
operation with the de facto separation of powers within
the corporate body between the Office of the Presiding
Officer on one hand and then the self-named Welsh Assembly
Government on the other.
|
Lord Richard
Could you help me on this - what was the thinking behind
the corporate body? |
Ron Davies
There are two parallel, linked strands, the first one
would be to fit the legal requirement that there had to
be a Body to which the powers would be devolved, so we
had to create some sort of entity. In the case of Scotland,
that was the Executive. Within the initial planning period
of 1995-97 there were all sorts of coded words within
the Labour Party to describe what we were planning and
the idea of a corporate body was more reassuring to people
who didn't want to go down the Parliamentary road because
it didn't smack of a Parliament. As I think the previous
speaker made clear there were two arguments with the Labour
Party, there weren't three, nobody was saying we wanted
an Assembly. On the one hand you had people saying we
want a Parliament and on the other hand people were saying
we don't want any Body. So a compromise between the two
was found and the idea of a corporate body gave reassurance
to those people. |
Lord Richard
It’s creaking now. |
Ron Davies
Certainly I think the operation is creaking now because
what we have is a single parliament, we have a government
which acts as a government, we have an institution that
tries to act as a parliament, but it isn't constructed
to act as a parliament. Members don't have the capacity
or research support to challenge the government. We have
a committee structure that is hybrid: Ministers sit on
them as of right and the committees have notionally a
power of policy development. Ministers feel very pressured
if they are questioned Select Committee style - they feel
that somehow the Committee is being unfair to them, that
that is not part of a inclusive process, so yes it is
creaking. |
Lord Richard
What else hasn't worked out the way you thought it was
going to? |
Ron Davies
I think the point is worth making again that the form
of government we have now is infinitely better than we
had before 1997 and in that sense I am very proud of it.
But that doesn't mean to say it couldn't be better. So
the question is in what ways. I think we have improved
governance in Wales as you have already explored, there
are a number of reasons why we had devolution, one of
those clearly was the idea of the democratic deficit.
There were others relating to the performance of public
services and indeed the national question: identity and
image and nation building. But the question that really
resonated with the public during the 1990s was the question
of the democratic deficit, the issue of quangos, the issue
of the Secretary of State, the issue of legislation going
through Parliament. I think that we have done that, I
think we do have a form of government now that, despite
its imperfections, despite the sense of isolation that
comes from its distant geography, I think we have opened
up Wales. I think if you ask people in local government,
in the voluntary sector, industry, the universities, there's
a general sense of much more open, transparent, democratic
form of government. That we have achieved.
I think where we are not yet punching our weight is
in the development of policies which are unique and
distinctive, which are made in Wales and I think that
is impacting on the public consciousness, I think that
is one of the reasons that public attitudes in Wales
are changing and people are saying…well, if we
are to have devolution lets have it with real powers.
I think that the Conservative Party must take some credit
for that change, because they had at a very early stage
to come to terms with devolution and decide what their
attitude was going to be. And several of the Tories
have said, if we have to have devolution, let’s
make it work, and on issues such as agriculture particularly,
on the issue of crops, the Conservative Party in the
National Assembly were arguing that the Assembly should
have primary powers. I think that was an indication
of how attitudes are changing, and I think there is
a public perception outside the Assembly that the Assembly
isn't yet doing the things that it could be doing and
people are saying well, if it’s there to stay let’s
make sure it’s got the proper powers.
|
Lord Richard
That’s a more generalised feeling as opposed to a
focused thing on individual policies. |
Ron Davies
I was expressing a general impression. |
Lord Richard
Are you surprised at the poll this week? |
Ron Davies
No I'm not surprised at all, I thought that was precisely
what would happen. I try not to be one of the devolution
anoraks because I do talk a lot about devolution, because
people want to talk to me about devolution. That is the
sense that I've got, that even though the institution
is not greatly loved, there is a sense of ‘since
we've got it let’s make it work’, I guess the
same thing applies to Westminster or to European institutions. |
Lord Richard
And the ‘let’s make it work’ point is let’s
give it powers of primary legislation….. |
Ron Davies
That’s not the form of words which is on the lips
of every man that I speak to in the Machen Working Men’s
Club. The issues we are talking about of primary or secondary
powers are only talked about by those of us who take an
interest in devolution but I think when you see issues
such as the crisis facing the countryside, issues like
education, crime, and the police service, I think people’s
perception, quite rightly is ‘why doesn’t the
Assembly do something about it?’, I think they are
prepared to leave it to the chattering classes to construct
what is necessary to allow the Assembly to do something
about it. I think there is a sense of frustration that
we can’t do something about it, not ‘why can’t
we have primary powers?’ |
Lord Richard
What about tax powers? |
Ron Davies
Taxation has never been an issue as far as I am concerned,
for a number of reasons. The big issue as far as I'm concerned
in the 1990s was getting over the hurdle of creating an
institution, that was a big single issue. In a sense the
question of powers was not the central issue, the big
issue was are we going to break the log jam that had existed
by then for almost 100 years and create a democratic institution.
I looked at the question of tax raising powers in that
context and I took the view that it was going to be difficult
enough to win the referendum anyway. If we argued the
case for home rule for Wales, and at the same time raised
the spectre of extra taxation that wouldn't have helped
us. There were two other elements. First of all I think
at the time we would only have raised something like £40
million or something of that order compared with an overall
budget of, at that time, something like £4 billion. The
other element was the position of the Welsh economy, we
have a very integrated, long border with England - if
you look at the economies of South East Wales and North
East Wales, they are very integrated with the economies
of Severnside and Deeside. There was always the prospect,
particularly in the light of the referendum that we would
have had, of big firms, big companies, big employers,
individuals saying: ‘do you think I would live one
side of the Severn and pay extra tax when I could move
the other side… you must be joking.’ Now it
just wasn’t worth engaging in that argument and of
course as public expenditure has increased in Wales and
central government increasingly over the last 4 or 5 years
has found methods of taxation other than income tax the
issue of personal taxation through income tax has assumed
less importance. |
Huw Thomas
You referred a number of times to Kevin’s comments
to us and I got the sense from what you were saying, that
you were genuinely surprised to find that in the end that
there weren’t blocks of policy being allocated to
Wales, it was very much a question of whatever stood as
the Secretary of State powers at the time moved to the
Assembly. Was that one of the compromises you had to go
through, or did you believe that there would actually
be blocks of responsibility passed say for education?
|
Ron Davies
We took the decision fairly early, it was important in
terms of the strategy that I had in opposition and afterwards
in government, to ensure we could move with minimum delay.
It's an important point that the incoming Labour government
wanted to fight the referendum as quickly as possible
for two reasons. One of which I am proud and one of which
I am less proud. The one of which I am less proud is that
we wanted to catch the public mood after the election
- we wanted to get the referendum out of the way as quickly
as possible. The other was perfectly legitimate, we thought
we might have come to Parliament (and we were planning
this in 1995, 1996, 1997, not knowing what the result
of the general election was going to be) having to rely
perhaps on a dozen Lib Dems to get a majority, thinking
that there might be rebels on our own side. So we wanted
to get it out of the way as soon as possible, we wanted
to legislate as soon as possible after the general election
so we could get it on the statute book and the government
of the day could get on to the other real issues that
mattered to ordinary people. The issue that I faced was
that if I said in opposition and in Cabinet Committee,
look all I want to do is transfer my powers to the National
Assembly, powers which have already been devolved to the
Secretary of State, nobody could really argue and that
was what happened. I knew that was going to form a very,
very ragged edge in the powers - as we have seen time
after time since. But had I argued then – let’s
take the case of DEFRA , for example - that on this issue
of animal health we really need to have a serious look
at the extent to which we can devolve some powers and
we need to tidy up this ragged edge, we'd still be talking
today. I just couldn’t afford it because it didn’t
fit with the Parliamentary timescale. Equally with the
Department of Education and the Department of Health,
if we’d engaged in that debate we would have started
a whole series of turf wars across Whitehall. This would
have invited everybody there not only to say why we couldn’t
have any more powers, but actually to reverse the telescope
a bit and then say: ‘oh well we were prepared to
devolve these matters to the Secretary of State, because
bear in mind the Secretary of State is subject to collective
Cabinet responsibility and English Ministers could always
gang up on the Secretary of State for Wales and bring
him into line but if those powers are devolved than you
can’t exert collective responsibility’. So had
you opened up that debate at that time it would have been
a whole series of turf wars right across Whitehall and
therefore, even though it was going to create this very
ragged edge across the competencies, I took the view that
if we accept the powers as they are it would be much easier.
|
Huw Thomas
In fact the powers that you devolved, the Secretary of
State's powers themselves, were often exercised on a joint
basis with England. So if you weren't actually looking
at something that was a clean break you were looking at
things where the Assembly from the very beginning had
to start working with Westminster and in going for that
you must have had very clear understanding that it was
going to go up against the buffers very quickly |
Ron Davies
No, not that it would run against the buffers, no. But
the issue that we had to face shortly after the Election
was actually to write the White Paper. I had met the Permanent
Secretary before the election several times to discuss
what would happen in the event of a Labour Government
but after the election, in the early summer of 1997, we
had to produce a White Paper very quickly. That had to
go before Parliament in July in order for us to meet our
provisional timetable and that meant that we only had
a couple of months to produce our White Paper. And when
you’re up against that sort of timetable, time was
of the essence - you had to take very focused decisions,
and therefore the focused decision at that time was the
principle that you devolved the Secretary of State's powers,
of course there would be problems, but those problems
would have to be solved afterwards. So I accept the fact
that there was a very ragged edge across all the powers
and functions: some were devolved to Cardiff, some were
retained, some were with the Secretary of State for Wales
and some were exercised jointly. That was certainly the
case in Agriculture and Animal Health. So of course those
were difficulties but at the time, because of the way
Parliament and Government operates, they were difficulties
that could be put off for another day. |
Huw Thomas
Would it be fair to say that you always thought there
would be a Government of Wales Amendment
Act ? |
Ron Davies
No, that would be giving me a degree of foresight that
I didn’t have at the time. The process of Government
I’m afraid is not that sophisticated - it really
is a question of saying I've got two months to get a White
Paper before Parliament. I can recall having discussions
with the other departments who were going to lose some
sense of control over certain areas and I would always
say, ‘well of course you understand that devolution
will mean the capacity for policy difference’ and
it would just seem their eyes would glaze over. I think
their attitude was either ‘it doesn't matter because
it’s in Wales’ or they were thinking to themselves
‘if you think that’s a problem we’ll sort
it out in Cabinet after devolution’. So if you’re
asking me was there a carefully considered analysis of
the powers that would be devolved and the impact that
would have on other Government Departments and whether
that could be put in the context of a set of arrangements
to allow for dispute resolution - that was not the world
we were in and Government’s not like that. |
Lord Richard
My recollection of those meetings within Government is
that the main focus of attention was on the pattern of
Scottish Devolution and the effect of that and that you
managed, so to speak, to tuck yourself behind it and avoid
a great deal of argument which would otherwise have taken
place on the basis that what we’re doing is devolving
Secretary of State powers and it’s just a matter
of working out how you would do it. |
Ron Davies
That's absolutely right and the result of that of course
is that we managed to get the Welsh White Paper before
the Scottish White Paper. The Scottish Referendum came
first for constitutional reasons but after that we were
able to get the Government of Wales Bill before Parliament
before the Scottish Bill. Certainly the tactic was just
to tuck behind Scotland - let the Scots handle the big
issues and for us to benefit. |
Tom Jones
Diddorol iawn oedd y ffordd roeddech chi’n esbonio
yr anghenion gwleidyddol i greu Papur Gwyn ar frys ac
yn y blaen. Mae pob un ohonom ni’n derbyn bellach
fod yna gymlethdod yn y system, ac i bobl tu allan, etholwyr
a phobl sy’n delio hefo’r llywodraeth mae gynon
ni fyd cymleth dros ben. Does neb yn siwr iawn lle mae’r
cyfrifoldeb yn gorwedd – gyda’r Cynulliad, neu
yn y byd amaethyddol ydy o’n gorwedd hefo DEFRA ynglyn
ag iechyd anifeiliaid neu ynglyn â pholisiau amgylcheddol.
Beth ydych chi’n feddwl sy’n rhaid digwydd rwan
i neud y system yn fwy syml, fel bod pawb yn deall yn
union lle mae’r cyfrifoldeb’. Ai mater o newid
anghenion a phwerau cyfreithiol a phwerau primary neu
mater o ddealltwriaeth newydd rhwng adrannau o’r
llywodraeth?
[The way you explained the political requirement to
produce the White Paper quickly was very interesting.
We all now accept that the system is complex and to
people outside, electors and those who deal with Government
it is a very complex world indeed. No-one is sure where
responsibility lies – with the Assembly or, in
the agricultural sphere, does it lie with DEFRA on animal
health or on the environmental policy side. What do
you think needs to happen now to make the system simpler
so that everyone understands where the responsibility
lies – is it a matter of changing the legal requirements
and powers or is it a case of a new understanding between
government departments?]
|
Ron Davies
Dwi’n deall y cwestiwn ond fe hoffwn i ateb yn Saesneg
os mae hynny’n iawn.
[I understand the question but I would like to answer
in English if that's all right]
The question of perception of people outside is very
important and is one of the reasons I think that has
impacted on the Aberystwyth study to which reference
has been made before. I think this issue of clarity
is very important, its also very important for people
outside to get that degree of certainty. It's also important
for the self perception of the Assembly. You will recall
the Calf Processing Scheme which I think hit the image
of the Assembly. There was something that was a good
idea which had been worked up with agricultural interests
and then the Assembly found that it couldn’t do
it. I think that was so damaging to the prestige of
the Assembly. How can we get this greater clarity? I
think that what we have to do is look both at the areas
which are devolved and at the extent of the powers.
In terms of the areas I think that we do need to have
a serious debate about the animal health powers. I was
one of those in government who was in favour of conceding
animal health powers because I never took the view that
if you think in terms of us discharging European obligations
particularly in the field of animal health, I just could
never envisage a situation where you would have a different
regime in Wales for example for dealing with BSE. It
just didn’t seem to be logical to create separate
regimes for dealing with Animal Health powers given
the extent of cross border trade and stock movements
and therefore I think that there is a strong case for
rationalising those powers. Even though the Assembly
is asking for those powers I would be very surprised
if they were conceded by DEFRA - I think we won’t
get those powers.
I’ll give you another example which I think is
a better one and that is a question of Police and Home
Office powers. Everybody now talks about a holisitic
approach to government services and the need to get
communities working together and to create a relationship
between housing, economic development, education, health,
strong communities. The problem is how can you have
integrated cross-cutting government when the bulk of
the services are devolved, certainly health and education
and community development are, and one of the central
services, police, is not devolved. As it happens the
police have been very pragmatic and are working very
responsibly almost as democratic partners in the various
initiatives that are taking place. But the police are
actually unhappy now, they don’t get any political
direction from the Assembly although part of their funding
comes from the Assembly. They can see that there is
this close relationship between the National Assembly
and the other organisations and some of the Chief Constables
will tell you, off the record or on the record I don’t
know, that some of their colleagues in England look
jealously at their colleagues in Wales where people
can be very close to Ministerial decision making. So
I think that's a better example, of those areas and
functions - I think police powers will go a long way
towards tidying up that ragged edge.
The other issue is, of course, legislative powers and
specific primary legislative powers. I think there are
a number of faults in the present system. We're not
dealt with in a common way in Bills which affect Wales,
you might have a Health Bill which devolves more powers,
you might have an Education Bill which doesn't devolve
any powers, you might have an Environment Bill which
gives some powers to the Secretary of State for Wales.
There's just no consistency between Government departments
and that can't be right. And the other problem we have
is that there isn't actually a process which is open
to democratic scrutiny. If I can give you the example
of the Education Act which went through this year there
were some 30 clauses in that Bill relating to Wales,
some 30 clauses on the face of the Bill which dealt
with the curriculum in Wales including provision for
the Welsh language, which were actually dealt with in
the Westminster context. We didn't have a debate in
the National Assembly, those proposals didn't come before
us on a matter which is completely devolved. Because
it was devolved I understand a lot of Parliamentarians
took the view well, this is a matter for the National
Assembly we don't have to try to second guess the government
or to tell the National Assembly what to do. I just
can't understand the rationale for having an Education
Act with 30 clauses relating to Wales on devolved matters
such as the National Curriculum without either consultation
or giving powers to the National Assembly. There are
other examples where it is necessary to tidy up that
ragged boundary - I think some powers, notably police,
should be devolved as well as other areas where there
is not that policy impact on the English departments
for example, local government. Indeed John Redwood thought
that because he created Unitary local government here
in Wales when they didn't have it in England - so we
had devolution in that respect under Mr Redwood. So
as long as what is happening in Wales doesn't impact
on England I think Government departments are covered.
Therefore I would argue very strongly that on matters
which are entirely discrete to Wales - reorganisation
of the Health Service, delivery of education, environmental
protection, transport, policing, community regeneration
- in all those things which don't impact on England
(in fact we might have initiatives in Wales, with beneficial
lessons for England) I think that’s as far as I
would want to see the ragged boundary tidied up - by
some functions and by some powers.
|
Ted Rowlands
I'd like to come back to that in a moment - it sounds
like a bit more than tidying up Ron. Let’s just go
back to something you said at the beginning, because you
described the compromise that was created to bring the
Devolution Bill through and that’s where the body
corporate came from. I can remember during the devolution
debates which you led and also you repeated in the Gregynog
lecture that ‘the body corporate doesn't weaken,’
you said, ‘the political process but strengthens
it.’ I mean I never saw you describing that to us
as an unhappy compromise that had to happen to get the
thing through, but as something very positive to create
a new kind of spirit and political life, not to ape or
copy the Westminster parliamentary model. Now do you still
stand by that ideal that the body corporate construction
was essentially an integral institutional part of the
new politics and therefore there's this drift towards
a parliamentary structure that is in fact going away from
the spirit of the original concept. |
Ron Davies
Well, certainly, on the latter part of your question the
answer to that is absolutely yes . It is not drifting
away from it is departing from it absolutely. The question
is an absolutely fair one - it's down to the political
realities. I was very much an artisan in these matters,
I had my marching orders. It seemed to me that an idea
of a corporate body - not just the corporate body per
se but the things that went with it in terms of the structures
and the idea of inclusivity - that’s what we constructed
and that’s what I wanted to see. I believe that that
could have worked and I believe that it could work but
what's happened is the exigencies of politics I suppose.
I think the civil servants deserve tremendous credit for
the way they worked hard to make the corporate work as
best they could. But once the decision was taken two years
ago to create, a coalition, I noticed myself, and I've
certainly been told by other senior people within the
National Assembly, that the attitude of the civil service
changed. Within the committee it was no longer ‘we're
all in it together, let’s try to work out a synthesis’.
Now the situation was ‘we now have a Minister to
service, back to the old Whitehall style, we now have
a Minister to protect, our job is to protect the Minister’.
How do you protect the Minister? well one way is to make
sure nobody has access to the same information, that you
are able to pull a rabbit out of the hat at a particular
time.
That really has had, I think, a substantial effect
on the operation of committees, that was not what I
envisaged when we were developing a consensual politics,
that is personally not what I would have wanted to have
seen. But in a sense we have now gone down that road
and that is what is making the system now creak. It
can go either way, you can go back to the consensual
politics but I think the parliamentary idea is too strong
in the minds of a lot of people, whereas a lot of politicians
who have 30 or 40 years service might see the merits
of a rather more consensual approach. But the political
system places a premium on confrontation and those were
the pressures on the ideal of a corporate body
|
Ted Rowlands
I think that is a very helpful answer. For me one of the
central questions that we are going to have to ask ourselves
is that if that is the case then the type of committee
structure that you've got which hasn't got access to all
the information, which is unsupported even by comparison
with Select Committees in the House of Commons, things
have to change one way or the other. Which way would you
advocate to this Commission that it should go? Which type
of political structure would you advise us to follow? |
Ron Davies
Well I'm not sure if it is my role to be an advocate but
if you are asking what the options are - I think one of
the options is that we keep the body that we've got and
somehow learn to live with that problem. But we're not
learning to live with it at the moment because we've got
this division between OPO and WAG which is creating tensions
which are not providing for the effective government of
Wales. So we could go back to try to recreate that consensual
approach and I think there is great virtue in that consensual
approach, by the way and certainly my experience in the
Assembly didn't deter me from that but there are crucial
issues that we could address: I will give you three. We
could address the issue of the economy. I think there's
a pretty broad consensus about the sort of things that
we could be doing, and if we could get out of the confrontational
mode I think we could reach pretty broad agreement about
that. The issue of the countryside is another one where,
apart from the issue of fox hunting, there's broad agreement
across the piece about the need to sustain family farms,
the need to build sustainability into the process of agriculture,
the need to reduce food miles and have accountability
in food production and so on. There could be broad agreement
there but we haven't got it because we concentrate on
the things that divide us. And the other that is perhaps
more sensitive is the Welsh language. There's very broad
support across the piece for the Welsh language but of
course, politicians being what politicians are, when there
is an election coming up if you see your political opponent
making a mistake you jump on that and that’s what
happening within the National Assembly. Issues like that
are becoming politicised when they needn't be politicised.
You can find a different way of doing things more akin
to a Select Committee in the House of Commons where that
degree of partisan difference finding is minimised. I
think we could have done that and that was one option
and that means the Government also being much more open
with the Assembly and sharing information. |
Ted Rowlands
Almost a right of the Assembly to have information - I
mean that’s the difference isn't it? In a body corporate
as I understood it Assembly officials actually had to
service the Assembly not the Ministers - is that right?
That was the concept? |
Ron Davies
That was my intention certainly. Very early in the Assembly's
life it emerged that Committee papers were being vetted
by Ministers - that was the first time to my knowledge
that that happened. I found out that the papers that were
being written by officials to inform the deliberations
of Committees were then being vetted by Ministers to make
sure there was nothing that was out with the agreed position,
the Government line as it were. The free flow of information
is very valuable. We were talking about legislation earlier
on - the Memorandum of Understanding between the Cabinet
and the Government in Whitehall requires confidentiality
so when a Government Minister in Wales is making a bid
for a legislative slot there will be a lot of correspondence
and a lot of argument between departments in London as
to the merits of the legislation, why it should be accepted
why it shouldn't be accepted and so on, and all of that
is subject to rules of Cabinet confidentiality. In that
sense, and I think this is a very important point, the
National Assembly has some characteristics of actually
a Government department. It isn't a freestanding, independent
legislature it is actually tied in, as the old Welsh Office
was, to Cabinet collective responsibility because if the
Minister can't get the agreement of the relevant Ministry
in Whitehall for legislation, then the Minister can't
go back to the Assembly and say "look I really wanted
to do it, but these reasons, time or policy differences
I can't do it". In that sense what we've got at the
moment in the National Assembly is a body which is constrained
by lack of information and lack of resources.
Coming back to the question which invited me to say
which of the options I would advocate, I declined to
answer that and said that there were two ways, one is
to recreate that idea of a consensual Assembly, which
I think can and could work. The other alternative is
to say: ‘politics being what politics is, we can't
do that - we've now got to move forward towards a more
parliamentary system’. I think that would require
new legislation, clearly new primary legislation at
Westminster and that would have implications for the
powers of the Assembly. For example, you could take
a knife to it so that those functions that are devolved
would now carry primary powers as in Scotland but that
would have implications for the size of the Assembly
for example because, we have 60 at the moment which
could work in an Assembly but I don’t think 60
could work in a Parliament which has the Parliamentary
institutions which are necessary to challenge an Executive.
|
Lord Richard:
Would you accept that the more powers the Assembly has,
the more likelihood it is that the body corporate principle
won’t work? If you give it Parliamentary powers it
will act as a Parliament rather than as a corporate body. |
Ron Davies:
I think that’s inevitable, yes, but I’m not
surprised at that because the corporate body still exists
in the sense of its first purpose of having a body to
which powers are devolved. But in the second sense, you
know, it no longer functions as a corporate body. There
is this attempt all the time, I don’t want to comment
on that or criticise it, it’s an attempt all the
time to distinguish the Government of the National Assembly
from the National Assembly itself. |
Viv Sugar:
Could I raise the question of inclusivity? When you were
talking earlier you seemed to be using ‘consensual
model’ and ‘inclusivity’ as almost interchangeable
words. In the Western Mail last week you were quoted as
saying that, ‘reviewing progress since the referendum,
there have been many positive improvements, but in other
areas the progress hasn’t been as rapid as I would
have hoped, it’s not as inclusive as I would have
wanted.’ Are there any points about the constitutional
and electoral arrangements that we’re looking at
which you would want to make from that point of view -
what do you mean by inclusivity? |
Ron Davies
I think the best example I can give is to refer back to
the previous answer I gave about developing an economic
development strategy, developing the response to the Welsh
language, developing a coherent strategy for the rural
areas, easily identifiable areas where an inclusive approach
could provide a strategy which is agreed not only across
the parties, but across the stakeholders as well. I think
that’s what I meant by being disappointed that we’re
not more inclusive, and the areas which I’m disappointed
about are also key policy areas. But that may well be
a product of the fact that the National Assembly internally
has been climbing back over the issues which have arisen
from its corporate body status. There have been attempts
all the time to try to decide how we’re going to
deal with that and there is this inherent tension between
the Government and the opposition and that has pushed
the Assembly down the road of more confrontational politics,
less inclusive politics. |
Viv Sugar:
What about inclusiveness in terms of the mix of AMs -
occupations, race and so on. What about the regional dimension
to inclusiveness as well? |
Ron Davies:
Well, at the end of the day people will elect who they
want to elect and it is very difficult for politicians
to try to construct something that will have a mix of
people representing the whole cross section of society.
The only way to do that is by having very large numbers
of constituencies and then political parties trying to
ensure that they’ve got someone from this valley
and that valley, they’ve got a farmer, they’ve
got a baker, they’ve got a manager and so on, and
I think that introduces an element of artificiality into
politics. It certainly doesn’t guarantee that you
will necessarily get the most effective representatives.
But it has another drawback as well and that is that it
causes enormous distance between the elected and their
electorate. You asked about the list members, the regional
members. I think that they’ve made a very useful
contribution to the National Assembly in that they have
introduced the political balance that we were looking
for because I think the National Assembly would be a less
representative body, and I swallow hard when I say this,
if it didn’t have seven or eight Conservatives there.
They do bring a dimension and if 25% of the people of
Wales vote Conservative, under one argument they are entitled
to have that degree of representation. I think that has
actually produced an Assembly which represents Wales as
a whole but that system has some defects, and the principal
of those defects is the sense that those list members
have not really identified with a regional interest, they
are representing a political interest.
I think that you can probably address that in other
ways but the lesson I have learnt is that the National
Assembly now needs a different type of representation.
We use the parliamentary constituencies for a very good
reason, by the way. I mentioned right at the outset
how people are frustrated in getting the legislation
on the statute book. One of the issues that we considered
way back in 1995-96 was the question of multi member
constituencies, of creating new constituencies. Had
we done that of course we would have had to have had
a Boundary Commission and that process would have taken
forever and a day and that would have frustrated our
overall political timetable. So we had to settle on
the existing constituency arrangements, parliamentary
constituencies and European Constituencies. However
if you are trying to move away from those existing arrangements,
as I think you have to move if you are looking for a
larger body, I think that you could say "well maybe
instead of having 40 constituencies we will perhaps
have 80 constituencies". I’m not going to
have 2 members per constituency because that dilutes
it down, but perhaps have a Boundary Commission and
create 80 smaller constituencies, dividing the existing
constituencies into two. I think - I have not done the
sums - but I would hazard a guess that if you were to
create 80 small constituencies, (bearing in mind that
we are now talking about the creation of a Parliament
and contingent upon that we understand that representation
at Westminster would be affected as it has been in Scotland)
I think that you would probably build in a greater degree
of proportionality than you’ve got at the moment.
I think you would find that a lot of constituencies,
if they were halved, would produce 2 elected members
from different parties. That would move away from the
rigid proportionality that we’ve got at the moment,
but if you’re going to recommend changes to the
electoral arithmetic you have to accept the fact that
you can do it in a radical way.
|
Laura McAllister:
Might it also be the case that if you do move to a different
electoral system that it might aid inclusivity in terms
of moving away from party influence in the way the Additional
Member System works. You mentioned a moment ago that people
will elect who they want, well they will elect who the
party’s put up for them to want in many respects
under AMS. If you had a slightly different electoral model,
there’s a possibility for smaller parties and non-aligned
people to offer themselves up for election in a very realistic
way. Is that something that may aid the inclusivity part
of the representation remit? |
Ron Davies:
I haven’t thought about that. My instinct however,
is that if you have smaller constituencies it would be
easier for people with a strong local cause to be elected,
like the GP in Kidderminster. If you have a small constituency
of 30-35,000 people then you would get people who are
much more robust and independent and seen to be representing
that particular locality rather than a big political party.
They actually get it in local government, even though
there are broad swings in favour of political parties.
If you have strong candidates of, whichever party, they
can be elected in local government and I suspect that
what we will see in future elections to the National Assembly
is people being less committed to the parties and I think
that might free up the system, if that’s what we’re
looking for. |
Peter Price:
The first stage of our exercise is to look at how the
existing powers are working and to do that on the basis
of evidence. Do you think that the Assembly has sufficiently
settled down in the way it works that one can now take
evidence and say "this is how it is working?"
To what extent is it still evolving and where would you
point us in terms of the kind of evidence we should be
looking at? |
Ron Davies:
On the question of an evolving institution, I don’t
take the view that there is a settled state in constitutional
relations. Particularly in terms of the European context,
the Post-Nice Agenda, we can see rapid development of
regional government of whatever sort within the EU and
certainly if you look at the 1000 years of Parliamentary
democracy, or eight hundred years, there was never a period
where people have sat back and said "oh, well this
is fine, we’ve achieved the polished model we need
not go any further.’ Constitutions are not like that
because constitutional arrangements and political institutions
have to serve people and the needs of the day not historical
events. So I don’t think that there’s much substance
in the argument that we should not look at the institution
yet because the potential danger of that is that if it
isn’t working people will say "oh, it’s
not working, why bother to keep it, why not just get rid
of it?" But I think that would be a retrograde step.
So certainly I don’t take the philosophical view
that we shouldn’t look at it.
We can come back if you want to the changed nature
of relationships both within Britain and within Europe,
but on the question of evidence, one of the difficulties
we have is that if you have a Government Minister giving
evidence, the Government Minister would not be able
to tell you what they were experiencing because of constitutional
limits, because of the requirement imposed by the Memorandum
of Understanding not to disclose areas of conflict as
legislation is being discussed between Cardiff and London.
So I think that is a real difficulty. I would ask you
to ask yourself the question though: ‘how satisfactory
is the arrangement, and what are the principles underlying
the argument whereby Westminster has to legislate in
detail for the national curriculum in Wales, without
the National Assembly being involved. What is the rationale
for that, and equally, what is the rationale for the
National Assembly having to ask the Westminster Government
for primary legislation to allow the National Assembly
Government here in Wales to give powers to Community
Health Councils in Wales or create a Welsh Centre for
Health. What is the rationale? Where is the consistency
between the approach?’ I don’t think there
is a rationale, I don’t think there’s a consistency.
One of the difficulties that you have as a Commission
is that you’re trying to create an evidence-based
set of recommendations when at the end of the day these
are political judgements. Because if I took the view
that the most important thing – this isn’t
my view – but if it were the most important function
of the National Assembly to create a nation here in
Wales with all that involves, including self government
and independence of spirit, self confidence and doing
things ourselves, no amount of constitutional tinkering
or radical, imaginative recommendations from yourselves
is going to deflect me from that inherent view that
the purpose of the National Assembly is nation building.
That is, I think, the difficulty you have as a Commission.
So if you ask for evidence, I would say I can’t
give you evidence. But look the existing system isn’t
very rational, the existing system isn’t producing
the sort of results we want, it doesn’t meet the
tests of democracy, it isn’t responsive. And I
would be critical on this point, the pressure is bearing
down on the Government in Wales in such a way that it
lacks imagination. If you have a look at the Bills,
I’m sure that the evidence will come before you,
which have been suggested by the National Assembly to
the Westminster Government for putting into the legislative
programme. They include creating St David’s Day
as a statutory bank holiday, which is fine, creating
the right of the National Assembly to have a census
tick box, which is fine, getting rid of referendums
for Sunday opening, which is fine, creating a Children’s
Commissioner, which is fine, but that was actually a
decision which we took in the Welsh Office back in 1998.
So if you look at those, with the best will in the world,
does that represent the most imaginative, constructive
leap forward in our democracy that human intelligence
can construct? I don’t think it is, and part of
the reason for that is that we have an administration
which is inward looking, and when it is constructing
its bids for legislation, it doesn’t go out to
local government and say, "hey, we’ve got
these bright ideas", it doesn’t go to the
WDA and say "how can we improve your structure?",
it doesn’t go to the Tourist Board and say "what
can we do to make your task easier?", it doesn’t
go to the voluntary sector, it doesn’t go to all
of these non government organisations and collect the
latest thinking for Wales and say "what can we
do - to raise economic activity in Wales?", to
meet the needs of society?’ We don’t have
that open constructive approach, what we have is a secret
conversation which takes place between Ministers.
|
Peter Price:
Can I pursue that, you’re focusing very much on the
style of government and the way that policy making takes
place. Can I change it to capacity in terms of things
like the numbers of civil servants with policy functions,
with executive and administrative branches. If you look
back to your period as Secretary of State, did you feel
at that time, that across your functions you had sufficient
backup in policymaking? And given the much greater responsibilities
now, do you think that Ministers have sufficient backup
in policymaking terms? |
Ron Davies:
Well, we have over 2,000 Civil Servants, and so if they
cannot organise 2,000 people to ensure that they have
sufficient policy backup, then there’s something
lacking in the organisation. I do believe that the capacity
for good management exists in the civil service, as I
said earlier on I’m a great admirer of the civil
service. I have no doubt at all that if the direction
given to the Permanent Secretary to restructure the Civil
Service to ensure that there was this policy capacity,
then that what the Permanent Secretary will do.
We talked briefly about the time of the previous Secretary
of State when John Redwood required 300 – 400 jobs
to be lost from the then Welsh Office and those 300 –
400 were lost and the Civil Service managed to accommodate
that. You do it by changing priorities and that is how.
What we have within Cathays Park, is the executive arm
of the National Assembly, essentially it’s still
a civil service structure, we have the same sort of structure
as served the old Welsh Office and their job really is
to look at what’s happening in health and education
in England and by and large to administer that in Wales.
So we have a very large number of very good people who’re
carrying out an executive culture in Wales. If the lack
is of policy advice, of a new style of research, then
it’s because the question hasn’t been asked
of the Permanent Secretary "I want to create structures
which will achieve that" except for the Policy Unit
which I created in 1998 in the hope that it would serve
the Assembly as a whole. Unfortunately the Policy Unit
is now serving the Government of the National Assembly,
and so is looking at the way the Government operates,
not in the way that the National Assembly operates. If
that Policy Unit were, it consists of very able, very
clever people, if it were linking out into Welsh Universities,
to Welsh industry, to Welsh local government, into the
Welsh intellectual arena and looking for new opportunities
for us, it would perform far different tasks from that
it is currently doing. What it is currently doing is looking
at the role of one Minister as compared to the role of
another Minister to ensure that there’s consistency
and as far as possible there is the development of a consistent
and holistic approach. I don’t believe that that
is the best use of the most high powered policy research
unit that we have in the National Assembly. So the answer
is yes, we’ve got however many thousand, Civil Servants,
by and large doing administrative tasks. If we are serious
about developing new styles then some of those people
will have to change and I think that people will find
that there will be lots of volunteers. That’s certainly
my experience of the civil service in Wales, people actually
want to do that, they want to move away from an administrative
function, and they want to get on to creating a new more
inclusive, more democratic society. |
Peter Price:
Lastly, can I extend that to the Members of the Assembly
themselves, the backup that they have to do their work
in Committees and elsewhere, those who’re not Ministers
being able to question and themselves contribute to policy
formation. The backup issue. |
Ron Davies:
It’s very difficult, obviously, I’m conscious
of the fact that I’m privileged having been in Parliament,
having had the experiences that I have, but for new Members
coming in it’s very difficult because there’s
a very steep learning curve in terms of representive democracy.
We basically have a resource which allows you to employ
two people and typically we have one person working in
the constituency, dealing with constituency issues, the
sort of things with which you would be familiar, and then
the other person helps within the National Assembly to
do all the sort of things which need to be done, which
can be as mundane as answering telephone calls and seeing
people, visitors and that sort of thing or as effective
and high powered as doing a piece of research. But it’s
very difficult for one person to do that. We have very
committed staff in the National Assembly library, who
will help on research but the quality of the research
they are able to do is far, far different from the research
which is done in the House of Commons library for example
where you can put in a very detailed technical question,
and you will get in the space of a week or so a very full
answer. The National Assembly library does not have the
resource or staff to do that sort of work, the best that
you’ll get is a series of website references so that
you can go away and do it yourself. The capacity isn’t
there for members to develop ideas of their own, new policy
ideas, on top of all the other things you have to do as
a National Assembly Member, and coupled with the fact
that if you’re sitting on the Health or Education
Committee that the papers you get are reflecting not the
best intelligence of the National Assembly but the filtered
view of the administration through the eyes of Ministers. |
Lord Richard:
I still don’t quite understand the corporate body
point. It does seem to me that in the situation where
you say you’ve got a ‘ragged edge’, which
was the phrase you used, that ragged edge can be cured
by increased consultation or by acquiring powers. The
object of curing the ragged edge, to make it straight,
is that the Assembly should operate more competently and
efficiently. I don’t see how you can expect all the
political parties to operate as one in a situation in
which more power is being given and being devolved. How
is the Assembly going to govern? I mean it’s inevitable
isn’t it that there’ll be a division between
those people who’re taking the initial decisions
and are responsible for initiating legislation and the
rest of the Assembly which is responsible for discussing
and analysing it. |
Ron Davies:
If we move down that road, yes. |
Lord Richard:
Well I don’t see any other road you can move down?
That’s the point. |
Ron Davies:
Well, I did say that there were two alternatives, but
there was a choice of an alternative, and the choice was
to go back to the truly inclusive body. |
Lord Richard:
But how could you? |
Ron Davies:
I think that the question is better suited to me to ask
you. I mean how could it be made better? |
Lord Richard:
Once you’ve devolved the powers, how can you not
have a division between the Executive, if you like, and
the Parliamentary. |
Ron Davies:
Because I think it’s possible to develop a policy
framework within which those executive actions are taken.
Take the question of rural communities, I’m confident
that if we had the inclusive approach it would have been
possible for the Agriculture Committee or the Local Government
Committee to develop a policy framework on the basis of
discussion. My conversations suggest that it would be
relatively easy for the political parties to reach agreement
on a strategy for the development of the rural communities
in Wales. I might be wrong but I believe there is enough
common ground for that. It would then be the Minister’s
responsibility for actually taking his administrative
decisions, taking the executive action necessary to implement
agreed strategy. Now there may well be occasions when
the Minister is unable to do it, and on those occasions,
the Minister has to go back to the Committee and say,
"well, I;m sorry but for these reasons I can’t
do it". |
Lord Richard:
But that’s actually a civil service role isn’t
it. The Ministers cease to be Ministers and become implementers. |
Ted Rowlands:
Assembly Secretaries. |
Ron Davies:
It is the case that the Civil Service have a major role
over the development of policy. |
Lord Richard:
Of course they do. But the division is clear to what they
are. I mean they’re not elected, they’re administrative
people who are employed in order to administer. Ministers
are elected and are members of political parties and all
the rest of it. I mean you’re expecting them to be
super human in a sense that at one level they’re
supposed to be acting as politicians, at another level
they are the servants and objective administrators of
the particular committee. I think that is very difficult. |
Ron Davies:
I don’t see any problem. Certainly when I look at
the ways that the National Assembly’s operated over
the 3 years I think it is possible that the relationship
does develop, it is possible to develop a more structured
rural strategy for example. Civil servants who are very
familiar with the nuances of political differences will
understand the policy objectives and would be able to
bring forward the range of policy options, the range of
detailed executive actions as recommendations to the Minister
and then it’s the Minister’s job to take decisions
on that basis. When you are running a department, such
as the ones that we’re talking about you do rely
very, very heavily on the Civil Servants, it isn’t
a question of politicians going in first thing in the
morning and saying "hey look I’ve got a bright
idea, let’s do this", the whole agenda is very
much one which is based on the work of the civil service. |
Ted Rowlands:
Could you list for us those ragged edges, we haven’t
seen this paper that you’ve presented unfortunately,
does that paper tell us what the ragged edges are? |
Ron Davies:
No, the purpose of the paper wasn’t to do that. |
Ted Rowlands:
But could you anyway? |
Ron Davies:
Only one side of the ragged edge, has been described.
Because the powers which have been devolved have been
codified in the various Transfer Orders but the powers
which remain haven’t. |
Ted Rowlands:
But as a witness, you have a unique insight. You knew
from when you drafted the Devolution Bill that there were
ragged edges in the devolved powers, we’ve identified
one, the Animal Health Act 1981. You mentioned education.
I’m talking now about the devolution of competence
under existing legislation. Are there any others in that
category that you would advise us to look at? |
Ron Davies:
Well, the whole system is fearfully complex. It really
dates back from 1964, and even then the position is not
that clear, because you have to have a look at legislation,
you have to look to see what powers have been given under
various pieces of legislation to the Secretary of State
for Wales, which have then subsequently been given to
the National Assembly. But you have to take away from
that any powers which have been repealed by subsequent
legislation. So all you could do really is to look at
the Transfer Order and say, "right, now in the case
of education, we know that that power and that power and
that power, has been transferred". In the absence
of a definite statement of that power, let’s take
the case of raising the school leaving age or lowering
the school leaving age, just as an example. If the power
to vary the school leaving has been transferred, well
then you know that you’ve got that power, if you
can’t find reference to that power, there’s
no indication that you have that power, that power might
be retained, it might be exercised jointly with the Secretary
of State for Education, it might rest with the Secretary
of State for Wales. So the power might have been given,
might not have been given, might have been given and taken
back. |
Ted Rowlands:
Okay, but over the period since the Assembly was established
- what other examples? We’ve got one, the Animal
Welfare Act of 1981, but have you got any other examples
where existing legislative competence remains with Whitehall
and should be transferred to enable integrated policymaking
to occur? |
Ron Davies:
It is a question of giving the whole field of activity.
In the case of education, I don’t think the arrangement
whereby Parliament legislates and passes 30 separate clauses
and then gives those individual clauses to the National
Assembly and says "some of them are duties some of
them are powers you can implement some of them but as
you don’t have to implement others" is sensible
I think it would be far better, for example, in education
for the Westminster Parliament to say "these are
the provisions for England", and then have a one
clause provision to say "in the following matters
competence shall pass to the National Assembly for Wales".
Then, allow the National Assembly for Wales to implement
those powers, if it wishes by Order. The alternative is
for Westminster to pass a new Act that says that education
is a devolved function and then the National Assembly
could pass its own legislation in all matters relating
to education. |
Lord Richard:
Yes, but on the first of those two alternatives you don’t
need to look at the structure of the National Assembly
– it’s a matter of Parliamentary drafting in
Westminster. |
Ron Davies:
I think it’s more than a matter of Parliamentary
drafting. I think there are principles at stake. I’m
sorry that we’ve got to get into the details, but
I sense that the Westminster Government is happy to allow
some areas to be devolved to the National Assembly. It
was happy, for example, to pass legislation for the Children’s
Commissioner, which is the only Act that we’ve actually
got so far. |
Ted Rowlands:
Well, a huge chunk of the Learning and Skills Act is entirely
a Welsh provision, perfectly good, clearly defined. |
Ron Davies:
In terms of a discrete Act the Children’s Commissioner
is the only one. Certainly there is other legislation
that has large Welsh sections but, interestingly, what
they have in common is that most of them relate to organisational
structures rather than policy. So I suspect that the Westminster
Government and the Whitehall machine, is happy to say
" they want a Children’s Commissioner for Wales,
fine", they want a re-organisation of the national
health service in Wales, fine, they want to re-organise
ELWA in Wales, fine, because those are dealing with structures.
We haven’t yet had an issue where the National Assembly
wishes to impinge on policy and I suspect that if we had
a big issue on policy, that’s when we would get a
conflict. This is complex, there are some areas where
capacity to vary policy has already been devolved, obviously
prescription charges for example. I am sure that the Department
of Health was absolutely furious when the National Assembly
administration decided that it was going to have a different
regime for prescription charges, and I’m sure that
had we been in the position now where we had to go to
Whitehall and say "can we have these powers to vary
prescription charges?" the answer would be a very
dusty "No", but because those were the powers
that were devolved back in 1997 they had to accept that
we could do it. My suspicion, it is no more than that,
but evidence suggests that when it comes to dealing with
structures which don’t challenge what you’re
doing in Whitehall, Whitehall will say "Yes".
If we were to get into the position of saying "hang
on, we want to do something differently in terms of policy",
then I think that the National Assembly would be disappointed
at the response from Whitehall. |
Ted Rowlands:
Transfer of police is more than a ragged edge, it is a
major decision because it’s tied to a justice system.
You’re saying move the police because you want a
cross cutting, integrated policy making structure, but
alongside the police is a whole justice system, which
at the moment is an England and Wales justice system,
Home Office based. How much more than the police would
come across under your proposal? |
Ron Davies:
Well, I’d rather suspected that at the end of my
evidence I could be asked by you if there were other areas
that you felt that you should look at, and this is one
of them. I believe that it is possible, I’m no constitutional
lawyer, but I believe that the existing system of justice
in England and Wales could cope without any changes in
its structure, because something which would be law in
Wales could be enforced in any courts within England and
Wales. The transfer of police functions would not, per
se, require any further changes to the system of justice.
It may well be however again this is and area that I think
you would have to look at with constitutional lawyers,
it may well be that the transfer of substantial new powers
of primary legislation as for Scotland, would involve
a restructuring of the justice system in England and Wales,
because unlike Scotland we don’t have our own separate
justice system, although we do have our own defined justice
system in Wales. |
Ted Rowlands:
What would be the impact upon the role of the Secretary
of State of this package of changes that you propose,
plus primary legislative powers? We’ve already broadly
agreed that if primary legislation went to the Assembly,
there would have to be a reduction in Welsh representation
in Westminster. There’s the question then of the
function of the Secretary of State for Wales, his role
really becomes of even less full. Legislation is one of
his major roles, as it is for Welsh Members at Westminster,
so what impact do you think that would have on the Secretary
of State’s job, would he become redundant? |
Ron Davies:
Well, if I may say so, you said that these changes that
you propose. I’m not proposing these changes, I’m
saying these are the options. |
Ted Rowlands:
Ok but assuming that was the package, you’re in a
unique position as an ex-Secretary of State and Assembly
Member to tell us whether you think that the Secretary
of State’s job would be one worth having. |
Ron Davies:
I’m proposing it as an option which is as equally
as valid as the other option which is reverting to what
was originally designed. In terms of the Secretary of
State, there was of course a discussion on this at the
time of the devolution proposals. It was certainly a strong
runner, prior to the last election that the office of
the Secretary of State for Wales would disappear. I think
that the view probably prevailed that it was too early
to do away with the office. The best example is the Secretary
of State for Scotland, I’m not saying that post is
redundant but if anyone were to be redundant it would
be the Secretary of State for Scotland, because unlike
Northern Ireland and Wales, there have not been residual
powers. It’s a difficult one to call but it was my
view, that as long as we had the existing arrangements
with the Secretary of State acting as an intermediary,
particularly on legislation, that there remained a powerful
case for a Secretary of State for Wales. I suspect however
that the further down the road of devolution we went,
particularly if it were to develop in England, then we
would see the development of a Secretary of State for
the Territories.
I think it has to be the case that if the existing
set-up were to change in a way which diminished the
role of the Secretary of State as the outpost of the
Assembly in London, accessing the legislative machinery
in Whitehall, if that were to be the case, then the
case for maintaining the Office of the Secretary of
State obviously would diminish. If you then had something
compable between Scotland, Northern Ireland and Wales,
then the idea Minister for the Territories, or some
other name, would come to the force.
|
Lord Richard:
Yes, well I’m happy to say that this Commission isn’t
here to enquire into the Secretary of State. |
Ted Rowlands:
But if we come to recommend a series of changes to the
responsibilities and powers of the Assembly would the
role of the Secretary of State not then fall into our
terms of reference? |
Lord Richard:
It’s within our terms of reference but I don’t
think the crystal ball is capable of being looked into
with that degree of accuracy. |
Ron Davies:
That is precisely the answer that I had to give some time
ago when you asked me "well didn’t you consider
in May or June of 1997 what was going to happen",
and my answer was "no, you have to deal with the
issue in hand". You may well decide that you can’t
resolve the issue of the Secretary of State, that would
be for somebody else to deal with in two or three years’
time. |
Ted Rowlands:
One final question if I may. If in fact this combination
of changes (you say you’re not advocating them but
you’ve certainly been presenting them forcefully
in one way or another), if legislative change is proposed
has there got to be a referendum to endorse it? |
Ron Davies:
The answer is yes. It is my view that there would have
to be a referendum. But the answer’s not as clear
cut as that, there are arguments either way. You can say
that the big decision in 1997 was the creation of an all
Wales institution, it was the creation of home rule. Whatever
happens after that is merely building on that. That’s
a perfectly valid argument. My personal view however,
is that what is now being proposed is such a move away
from what was created in 1997, that it would be better,
it would avoid a lot of argument apart from anything else,
as well as probably being constitutionally proper, to
have a referendum and to acknowledge that at the outset.
The referendum would then be on those proposals. It wouldn’t
be a question of saying "well, we could go forward
with this or we could go back to that, or we could have
another thing." I think it’s got to be a yes/no
on the proposals and I would view the prospect of that
referendum with absolute equanimity. I think that if the
people of Wales were given the choice of the Assembly
that we have or a new Parliament with substantial new
functions and powers then the answer would be a resounding
"yes" provided that the concomitants are also
dealt with, principally of course the Barnett formula,
a fair distribution of resources. I think that if we go
down the road that we’re talking about that is absolutely
essential to the issue. |
Tom Jones:
Cyn drafod y Barnett formula, oes na bwerau cyllidol eraill
sydd ddim gan y cynulliad, y gallu i fenthyg arian er
enghraifft, fel dwi’n deall sy’n perthyn i’r
cynulliad yng Ngogledd Iwerddon? Ynglyn â pherthynas y
cynulliad ag Ewrop – oes na siomedigaethau, oes na
gyfleoedd sy ddim yn cael eu cymeryd oes na ddiffyg i
ddylanwadu ar bolisiau Ewropeaidd ar hyn o bryd? [Before
discussing the Barnett formula, are there any other financial
powers that the Assembly lacks – to borrow money
for example, as I understand the Northern Ireland Assembly
has the power to do? In respect of the relationship with
Europe – are there disappointments, opportunities
that are not being taken, is there a failure to influence
European policies at the moment?] |
Ron Davies:
One of the interesting relationships is the relationship
between the National Assembly and the Treasury, because
the Treasury will always use its power over what a government
department does, and the more that we’re seen as
a government department the easier it is. So the Treasury,
for example, will take the view, if I can use the jargon:
"this money is for modernising the National Health
Service", there will be a lot of pressure then on
the National Assembly when those additional resources
become available through Barnett, to use those monies
in pursuit of the Treasury’s objectives, ie for modernisation.
So it’s not a question of other sources of finance,
it is rather the case that a lot of the resources that
are currently made available have come with strings attached.
There are opportunities of course for the National Assembly
to try to seek other money, the question of match funding,
or rather the approval to spend European money for Objective
One was an important part of that, and there will be other
occasions when separate projects will be announced by
the Treasury, which will allow the National Assembly to
make bids. I think the best example I can think of might
be the investment which went in to the WOAD offices from
the Modernisation Fund. That was outwith the Barnett formula,
a separate bid had been made for programmes of that sort.
The issue is very, very difficult for us in the National
Assembly. I was talking earlier to Ted about the operation
of the Barnett formula and the problems that we have and
since the existence of the National Assembly we’ve
actually spent £70m more on the National Health Service
than we’ve received from the Treasury for the National
Health Service. That’s quite a lot of money, and
of course, if you’re spending more on a service it
means you have to spend less somewhere else, and you could
quite legitimately ask "where are you spending less?".
There are a limited number of areas, environment, transport,
education, economic development, where perhaps the money
isn’t being spent. There are no other pots that we
could look at and unfortunately the pot that we’ve
got is pretty complex as the nature of legislation is
as well.
Europe I think has been one of the success stories
of the National Assembly. I was surprised at the willingness
of Government, when I was responsible, to allow Ministers
from the National Assembly to be incorporated in delegations.
I think that has been successful and I think that generally
the relationship which exists through the National Assembly
office in Brussels, setting aside the controversy about
WEC, and representation through the British Government
civil service in Brussels, has worked well. There is,
I guess, an interest which the British Government, the
Foreign Office, has as well, in the unfolding post-Nice
agenda, the development of a regional dimension in Europe.
So they will want to involve Scotland, Wales and Northern
Ireland in their discussions. I think Europe is one
of the success stories.
|
Laura McAllister:
I just wanted to probe a little bit more on what you said,
Ron, about referenda because going back to the period
before the General Election of 1997, I think I’m
right in saying that you weren’t in favour of the
referendum on the White Paper. Surely there’s a case
as well to say that the major referendum was on whether
there should be any form of devolved institutional framework
within Wales and that we’ve had that. Why do we now
need to consider a referendum on a change – albeit
a potentially significant one. One could set that in the
context of some very major changes that have come about
through the European Union on which we haven’t had
referenda. I’m talking about Nice there but you could
say the same about the Amsterdam Treaty or the Maastricht
Treaty. Our political system doesn’t lend itself
to referenda necessarily but it seems on the issue of
devolution and constitutional change we’re all very
caught up in the idea of referenda. Can you explain why
you think that is so? |
Ron Davies:
The question could be about the case of having more referenda
on our relations with Europe rather than having fewer
on constitutional issues, but I’ll let that pass
for the moment. I took a very pragmatic view about the
initial referendum. I felt that it wasn’t necessary.
I thought we could have justified going ahead with devolution
if it was in our manifesto. However, in Scotland the decision
was taken by the then leader of the Labour Party and George
Robertson that they would have to have a referendum and
the key to that lay in politics as these things do. There
was going to be the question of taxation powers in Scotland.
There was the English question and I think that the view
that the party leadership took was "look if we are
going to propose something which is going potentially
to destabilise the constitutional arrangements in the
United Kingdom, we need to reassure people in England
that this is going to be done in a way that is fair and
above board". The issue was very much about winning
seats in middle England as well as constitutional legitimacy
in the case of Scotland. So the decision was taken in
respect of Scotland to hold a referendum. The question
then arose whether we should have a referendum in Wales.
I frankly felt that once the decision had been taken to
have a referendum in Scotland, it was not politically
practicable to argue that we should not have one in Wales.
It would have blighted the whole process. |
Laura McAllister:
But that wouldn’t apply next time. |
Ron Davies:
No, that was what happened in 1997. I think it’s
important to understand what happened then. Why next time?
I did say in the reply to the earlier question that, and
this is the point that you make, the big question in 1997
was whether we were to have our own form of democratic
government for Wales. I think that the problems however
is that in 1997 we put a very specific proposition to
the people of Wales in the White Paper. So it wasn’t
a broad concept that we were putting forward, in fact
it was a very detailed construct with all the things that
we’ve talked about so far - inclusivity, regional
committees, partnership arrangements and so on, and we
asked people to endorse that as a package by means of
a referendum. So having done that, I personally would
feel somewhat uneasy, and this is a personal view, if
we were now to say "that didn’t work and what
we’re going to pick out of that 1997 package is the
principle of creating an all-Wales tier and now we’ll
discard everything else and put on that principle a full-scale
legislative parliament. It is just my instinctive view
that looking at it like that, you would have to concede
that it would be right to have a referendum. But there
is also the tactical point of view that if you tried to
do it the other way you would engage yourself in a whole
series of arguments as we argued endlessly in 1997. The
argument then is not about the merits of why we’re
having this change, it is about whether there should be
a referendum or not. Therefore in terms of practical politics
I personally would be in favour of having a referendum.
But that is a case that is capable of being argued both
ways. |
Peter Price:
Going back to the architecture of the Government of Wales
Act as compared with the Scotland Act where in the Government
of Wales Act the powers were devolved in the specific
areas scheduled, whereas in Scotland the boot is on the
other foot completely. If there were to be primary legislative
powers given to the Welsh Assembly, would you see a very
strong argument for the Act to be designed to parallel
the Scottish situation? Secondly, suppose that there were
a stopping point, short of broad primary legislative powers,
would a change of that sort make any sense? |
Ron Davies:
I’ll answer the first question first. The Scotland
Act was based largely on the Government of Ireland Act
in 1921. The idea was that you would define broad areas
of activity health, education and soon and they are responsible
for that. If we were to re-cast the Government of Wales
Act, clearly we would have to repeal large sections of
the 1998 Act. I would have thought it would be eminently
sensible now, just as the Scotland Act was based on the
Government of Ireland Act, that the Wales Act would be
based on the Scotland Act. You would create an Executive,
create a Parliament, you would give it those broad areas
of activity and in so doing you would then repeal all
but fifteen clauses of the 1998 Government of Wales Act.
I would envisage that that is how it would be done.
Turning to your second question, it’s thrown be
a bit because it invites me to imagine a stepping stone
somewhere between where we are now and somewhere else.
The problem that we’ve got now is that we have
created a stepping stone and I think everybody realises
that it is only a stepping stone. The next logical step
is to a Parliament, not to start compromising again
and create another stepping stone before we get to the
final stepping stone. I mean we’ve had difficulty
with ragged edges, and constitutional lawyers and all
these intricate constructions, in creating the first
stepping stone. I’m just wondering what sort of
camel it is that the Committee would be designing which
would give us this second stepping stone. So I’m
afraid Peter, that vivid though my imagination is capable
of being at times, I actually can’t imagine how
it would be possible to construct such a stepping stone
even if it were to be sensible or desirable. That is
why I think the choice is either we make what we’ve
got work or we go for a different model.
|
Lord Richard:
You have been very generous with your time and in the
way that you’ve answered questions, the Commission
is very grateful to you, thank you very much. |
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