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

 MINUTES OF PROCEEDINGS

of the

EVIDENCE OF:

Mr Gareth Thomas MP

held at

 The Boothroyd Room, Portcullis House, Westminster

on

 THURSDAY 12 JUNE 2003

In Attendance

Lord Richard, Chair, Richard Commission

Ted Rowlands, Richard Commission

Tom Jones, Richard Commission

Peter Price, Richard Commission

Dr Laura McAllister, Richard Commission

Sir Michael Wheeler-Booth, Richard Commission

Paul Valerio, Richard Commission

Vivienne Sugar, Richard Commission

Eira Davies, Richard Commission

Huw Thomas, Richard Commission

Gareth Thomas MP

Proceedings

Lord Richard

Thank you very much for coming. Could you formally identify yourself for the purposes of the transcript and we will open up the discussion and respond to you.

Gareth Thomas

My name is Gareth Thomas, Labour Member of Parliament for Clywd West, first elected in 1997, currently Parliamentary Private Secretary to the Secretary of State for Northern Ireland and prior to that serving in the same capacity to the Secretary of State for Wales until last year when there was a reshuffle and, of course, there may be a reshuffle today, so I am going to be very careful about what I say about the role of the Secretary of State for Wales, but it is a pleasure to be here today. I have taken a very keen interest in your work. I would regard myself as being a very strong and active campaigner for devolution. I was actively involved in the referendum campaign in 1997, seeking a Yes vote in North Wales. It was a very, very difficult job. In my own constituency the vote was substantially against the idea of setting up an Assembly and that is an experience shared by many of my colleagues in North Wales and, as you know, the North Wales group of Labour MPs will be giving evidence this afternoon.

My starting point is that in spite of the disdain expressed by certain members of what might be described as "the chattering classes" in Wales and the academic community, I believe the present settlement -- and I use those words advisedly -- is sustainable, and I do not think one needs to be defensive about it at all.

As far as the division of powers is concerned, I think they are working satisfactorily. I think the Assembly has genuinely added value to the administration in Wales. I do not think there is a case for, certainly at the moment, conferring primary legislative powers upon the Assembly. I think public opinion would be very much against that, in spite of what certain people might say about recent polls.

I think the PR system which I was a keen advocate of in 1997 is problematic, but I think we should probably stick with it because speaking personally I do not particularly want to see a Government of Wales Amendment Act so soon after the major piece of legislation embraced by the Government of Wales Act 1998. So I would advocate and would seek to persuade you that the current arrangements are working satisfactorily. I will say something about scrutiny in a moment. There is no strong case for change at the moment. Having said that -- the current settlement is a process in the sense that when Parliament in this place enacts legislation it does very often involve a conferment of secondary legislative powers upon the Assembly, so it is not written in stone and, of course, under section 22 of the Act it is possible to transfer further powers upon the Assembly, and that indeed has happened. It may well be the case that once we have seen a change of Government, both here and in Cardiff, perhaps in 15 years time, perhaps in 20 years time, it may be the time to confer greater powers upon the Assembly, including primary legislative powers.

Can I say a word about the PR system. It is fair to say that members of my own party are extremely concerned about the operation of the system. They are not at all happy with it. I can tell you that members of my own constituency party are up in arms about it. In my own constituency of Clywd West every candidate belonging to the four major parties was elected. It led to the bizarre and perverse situation whereby my Assembly Member colleague, the Assembly Member, Alun Pugh was elected under the First Past the Post vote, but the other three candidates for the Liberal Democrats, Plaid Cymru and the Conservative Party got into the Assembly and under the list system because they were on their parties' lists. It is bizarre and it does bring the system into discredit in my view if losers are seen to become winners in that way.

Having said that, I think we have to bite the bullet. I think we have to accept the settlement, warts and all, for the time being. I cannot see that there is a case for changing either the PR system or the present arrangements as far as powers are concerned. I know this committee is particularly concerned about scrutiny. Can I say this, that I know that some concern has been expressed about the quality of scrutiny given to the Welsh sections of Bills, or Wales only Bills. My view is that the current arrangements for scrutiny are satisfactory. There may be overriding problems with the way in which this house scrutinises legislation, but my view is that the level of scrutiny given to the Wales only Bills or Wales sections of Bills is certainly no worse than it was under the previous dispensation when we had a Secretary of State for Wales and a Welsh Office. But, of course, I suppose the problem is under the present dispensation there is understandably always going to be a tendency for the Welsh Assembly Government to formulate different policy solutions, whereas previously very often I suppose the Welsh Office would not have done so. It would not have gone out on a limb for instance, on something like foundation hospitals. It probably would have followed the English pattern, And I suppose in that respect the question of scrutiny is brought into stark relief, given that there is very often a stark difference in treatment between Welsh policy and policy in England.

I accept that some people think that there is a closed and a very narrow loop whereby political decisions are made, let us say on foundation hospitals, let us say on the decision apparently made between the Welsh Assembly Government and the Welsh Office here whereby the inspection and audit system for the Welsh Health Service is apparently to be a Wales only rather than an England and Wales system. In the view of many of my colleagues that will lead to a less robust system of inspection, but the fact of the matter is that was a political decision. It is capable of being amended in committee. It is a decision which is debated and, as I say, the level of scrutiny is no worse and probably better than it was before, given the advent of prelegislative scrutiny and the welcome innovation of having Bills prepared in draft which, I believe, does improve the quality of scrutiny. Of course we have a bicameral system and I suppose you could argue -- and I defer to Lord Richard's experience on this -- it is the case that in this Palace of Westminster we have the two houses operating in tandem and if adequate scrutiny is not given in the House of Commons it most certainly is in the House of Lords.

Lord Richard

I certainly agree with the last sentence!

Sir Michael Wheeler-Booth

The inference of your interesting evidence was that, as you said, if things were not being done wonderfully here at Westminster they are no worse than they used to be, but the trouble is now there is the National Assembly in Wales which has subject committees, which is able to call in expert witnesses and discuss issues in depth in a way that the standard committee is not able to do here, and the disparity, the potential disparity, therefore, of the scrutiny process is getting larger and that over time may produce difficulties. An allied point is, of course, that the working of the electoral system, the two disparate electoral systems, means that in one place there is a big majority for one party while in the other place you have much more proportional political representation, which is likely to lead to more focused scrutiny on legislative proposals. Would that be a fair reading from what you are saying? Or would you not go along with it?

Gareth Thomas

This place makes the law in the sense of primary legislation. The 1998 act does not provide for co-decision as it were in terms of drafting the legislation. Members of Parliament sit on standing committees to scrutinise the legislation. That legislation will very often affect Wales. That legislation is capable of being amended, and I know the arithmetic of Parliament at the moment is such that more often than not the Government has its way, but at least the opposition has its say. I know it is a cliche with which you will be very familiar, Sir Michael, but that is the way this place operates.

I cannot see that there is a real problem frankly. I may be missing something, but there may be a weakness on the other end, that the Assembly Legislative Committee is not brought into the loop sufficiently by the Welsh Assembly Government and is not given access to information and perhaps is not questioned sufficiently about the reasons for adopting policy decisions and the reasons why they are asking for legislation from this place to be drafted in a certain way. I think there is perhaps a need to cast more light on that process, but that is really a matter for the Assembly.

Sir Michael Wheeler-Booth

Can I ask just one follow up. You were PPS to the Secretary of State for Wales and so you saw the system working. But, of course, the majority, each end, Cardiff and Westminster, is of a sensible persuasion at the moment. But sooner or later as you infer that is likely not to be the case. How do you think things will then go?

Gareth Thomas

Well I am reminded that there are two things one does not want to inspect too closely and that is the making of sausages and the making of law, Sir Michael. I suspect it will be a rather messy political process and I do not think one can have a template for it frankly. I do think actually that the evidence of Sir Richard Rawlings on trying to establish a Parliamentary convention in terms of draftsmanship, has some merit in it, frankly, because I do think there is a need for a degree of clarity which will withstand the change of governments in either place. But I think it is inevitably a messy process, and I do not think that one can legislate for it as it were.

Ted Rowlands

Let me just ask you, I have looked at the number of Bills since 2001 and the way they have been processed. Where there was an England and Wales Bill, a Health Bill, I must say it was absolutely incredible the way it was covered., It is the Bills where all the implementation and where the operational end is very much - where the Bills have been taken through this house that might cause some concern. For example, if one read the second reading speeches of the Community Care Discharges Bill, the later issue affecting agencies in Wales and responsibilities of the National Assembly, the Secretary of State introducing that Bill, as far as I could see -- I may be wrong -- all the figures that were quoted were English figures, not England and Wales figures. There were not any references to any Welsh dimensions at all. Am I getting the wrong impression? Is it your experience that since devolution where Ministers are introducing Bills they really treat them as English Bills rather than England and Wales Bills?

Gareth Thomas

No, they are very careful to distinguish between English only Bills and England and Wales Bills. I think the Civil Service is very much engaged with that issue.

Ted Rowlands

I must say I have taken a look at two or three -- Community Care Discharges is a good example -- and I have no impression there that the introduction of the Bill, the description of the Bill, its functions, or the arguments that flow from the Bill actually treated it anything rather than an English Bill.

Gareth Thomas

I think that is a criticism that can be levelled at the presentation of the Bill by a particular Minister. I suspect that you may have a point in that respect.

Ted Rowlands

I would like to check and perhaps we will try to check that all the figures that the Secretary of State was quoting in that second reading speech about the number of thousands of people that would be better off. Were they figures in England and Wales or the English figures? Again, the Health Professionals Bill and the Education Bill where there was a very substantial devolvement which everybody welcomed. Again, I think it was Jonathan Jones twice intervened saying surely should we not be explaining the Welsh provisions in this Bill as well as the English provisions and I just wondered --

Gareth Thomas

It is a failing of the particular Minister, with respect, if he or she did not satisfactorily answer that enquiry and that is something that should be addressed, it seems to me.

Ted Rowlands

It is not your experience that now Bills which are England and Wales Bills are basically treated more and more as English Bills?

Gareth Thomas

No, it is not, and I think that is the role of the Wales Office as well to really make it clear and, of course, there is a huge process behind the surface of cabinet subcommittees whereby the details of legislation is ironed out and Welsh Office Ministers sit on those committees and issues to do with the Welsh impact are ventilated fully.

Ted Rowlands

I believe with inter-ministerial relations, there is, it seems to me, a good working relationship with the Government. We are talking about Parliamentary scrutiny where Backbenchers and Members of Parliament are entitled to pitch in, and that was the impression I got from looking at a number of second readings, but it is not your impression.

Gareth Thomas

No, it is not.

Tom Jones (In Welsh - then interpreted)

We now have an Assembly Member in your own constituency who deals with many of the issues: health, education, the devolved issues and are you therefore as an MP having to remember and look at those areas that are not devolved, such as the Home Office, the Chancellor, the transport policy? Are you aware that you as an MP from Wales have to concentrate more on those areas or unsure that there is additional scrutiny in those areas.

The second question is, as someone who has additional information about Northern Ireland, is there anything in the process of Northern Ireland interesting for us as the Commission? Are there additional powers that we should be aware of in Northern Ireland, anything you would like to draw out are attention to?

Gareth Thomas (In Welsh - then interpreted)

Well, if I take your first question as someone who has a very marginal seat we politically must take an interest in all matters that come to my attention and are of interest to the electorate but, having said that, I do accept that the role of MPs has changed. The opportunity that an MP has to directly influence decisions taken on the Health Service or schools has weakened; I accept that, and our influence has weakened, but bearing in mind that the budget is still decided in Westminster and also bearing in mind that the power to legislate continues to reside here in Westminster then I do think that we could say that there is always a justification for our involvement on all matters, including those devolved areas. If I then --

Tom Jones (In Welsh - then interpreted)

Before you finish on that first point, do you not put more emphasis on the areas that are not devolved, because, of course, nobody else in Wales could actually influence those areas. I am talking of the Home Office in particular.

Gareth Thomas (In Welsh - then interpreted)

You might think that should be the case but, from a political point of view, I am very aware that one of the priorities of the people who I represent is the health service, and this is a very contentious issue in Wales. There has been a lot of attention to the issues of waiting lists, so I cannot ignore that, and the same is true of education. So I go back to this fundamental point that the power to legislate in those areas still resides in Westminster and the power to fund those services also reside here, although how that money is actually split from the Welsh block is something for the Assembly to decide.

Lord Richard

On this issue can I just pursue it slightly, the Table Office that I am involved in is pretty difficult about accepting questions from Welsh MPs on devolved matters which have gone down to Cardiff. Is this your experience?

Gareth Thomas

No it is not, because the practice has been adopted in this place that provided the question is phrased in such a way as to ask the Secretary of State for Wales what discussions he has had with other cabinet colleagues, or Assembly Ministers about let us say the state of waiting lists in hospitals in Wales, that is a question which is in order, because of course it is in order to ask any question which is within the competence or jurisdiction of the Secretary of State, and the Secretary of State for Wales's role is a roving roll in the sense that his job, or her job, is to co-ordinate the Government's activity in Wales and to act as a vehicle for inter-Government relations between Wales and London, and in that sense it is a very wide role and it gives one an entre as it were into a whole range of matters even though his responsibility is not directly --

Lord Richard

What about Ministerial replies in constituency issues? What sort of reaction do you get from Ministers?

Gareth Thomas

Somewhat uninformative, one has to say, because if one is simply asking what discussions he has had with them, it is not going to be particularly informative one has to say, but in the context of oral questions I think you have an opportunity in the form of supplementary questions to perhaps get at a point, but there are ways and means for Members of Parliament from Wales to continue to exert influence over bread and butter issues.

Lord Richard

But do you find as a whole that your constituency activities have gone down since devolution?

Tom Jones

Has there been a fall in the amount of constituency work that you have to deal with, since the Assembly was set up?

Gareth Thomas

Slightly, but it is only just beginning to happen. I think the first two or three years there was not a noticeable drop in my casework, but I suppose now one would accept that there has been a slight fall off.

Gareth Thomas - (In Welsh – then interpreted)

The Northern Ireland Assembly has been suspended, as the Commission will be aware. The Assembly in Northern Ireland does have the power to legislate, although the population of Northern Ireland is far lower than Wales and that may be something that is of interest to us, but you also have to bear in mind that the electoral arrangements in Northern Ireland are very sophisticated. The proportional vote is an integral part of the Northern Irish settlement to reflect the different communities and that is why there had to be a strong element of proportional representation in the Northern Ireland context, but is that power to legislate an advantage to Northern Ireland? Well, not at the moment because the Assembly is not actually in session. If it was actually in session, yes, it may well have been, but you will have heard this before, and it is becoming quite a cliche now, the way in which devolution has been implemented in the UK reflects the different demands and the different situations in various countries of the UK, and I do not think there is any inconsistency now.

Peter Price

I would like to return to legislation and the two aspects of getting the slot and the scrutiny of it here, primary legislation. First of all, you have seen the inside of the process from the Secretary of State's viewpoint of negotiating slots, both slots in the sense of Wales only Bills for which there have been very, very few slots and also ways and means of including Welsh clauses in Bills which are England and Wales Bills, but in each case at the request of the National Assembly. Would I be right in thinking that this requires a very active and persuasive participation by the Secretary of State and how do you think that would work if the Secretary of State was of a different party and the extent therefore of the differences which you highlighted, for example, about foundation hospitals a moment ago were much greater? How could such a Secretary of State perform that role in a really positive spirit through the Westminster process?

Gareth Thomas

Well, as you know Parliamentary time is at a premium and I think one of your previous witnesses has said that. You are right to characterise the role of the Secretary of State for Wales as seeking to liaise with the Welsh Assembly Government establishing a dialogue, seeking Parliamentary time with other Parliamentary colleagues for measures which the Welsh Assembly Group in particular would like to see enacted. It is far easier, of course, when the Westminster and the Secretary of State are of the same political party. I do not underestimate the difficulties in carrying out that process as smoothly as it has been hitherto if the political complexion of either or both of those politicians changes in the future.

Peter Price

If I take the second issue then, of the scrutiny, you mentioned a few minutes ago the issue of information available and that sometimes the information available to MPs serving on standing committees dealing with Bills which originated in the National Assembly and have already had a considerable amount of thought at that end. The information here is sometimes inadequate and you would like to see more information, but is not there inherently a weakness in a system when the people who are actually proposing the Bill and can see the whole picture in which this Bill forms a part are not present, cannot be questioned by you in the Standing Committee, are not there to argue their case in the Standing Committee and you have to rely on whether the points have been covered in some private meeting held somewhere else at another time, or a piece of paper that may or may not adequately deal with the issue under discussion.

Gareth Thomas

That is a very good point. Can I say I do not consider it the role of the Secretary of State, whatever --

Peter Price

I am talking about the Members of Parliament now rather than the Secretary of State.

Gareth Thomas

I am going to answer that question in this way: I do not consider it the role of the Secretary of State to necessarily accede to the Assembly's shopping list as far as legislation is concerned. As a matter of fact, that has been the approach, the constructive approach adopted, but it is fair to say that there is frustration and speaking for myself I suppose there is frustration -- the policy decisions are made within the Ministerial loop as it were, about let us go back to that example of foundation hospitals. There are many in Wales who would say the Welsh NHS needs a pretty good shake up and that the Welsh Assembly Government has been rather too close to produce its interests. But the decision has been made and it is almost a fait accompli at that level. Obviously, there is close discussion at Ministerial levels and officials level, and it is transposed into the black letter of legislation. That legislation is still capable of being amended. The Minister presenting it is still called to account in the second reading about the principles of the Bill, is still asked to justify and is called to account and can be asked to explain the reasons for the policy. In that sense that level of Parliamentary scrutiny is still available and, frankly, you know, if one looks back -- I was not around here in the days of the Welsh Office, but really when Wales only Bills were presented by the Welsh Office I cannot see that the level of Parliamentary scrutiny would be any different. Political decisions, policy decisions would be made at a high level by the executive and the legislature would have a look at it. It is not as if we are an American situation where there is co-decision between the executive and the legislature. I do think there is some confusion sometimes about the role of the legislature. It might not be -- some people might not regard it as an extraordinarily good system, but we do not have a fusion between the executive and the legislature. The executive make the political decisions: they draw up the policy, they draw up the legislation, and it is for Parliament to hold them to account, to get them to explain the policy reasons behind it and to go through the clauses of the Bill line by line, not only in this place but also in the House of Lords, and those people who know this place will testify that getting legislation through this place may be only half the battle. Very often the difficulties come further down the corridor.

Peter Price

But you have emphasised the effectiveness of scrutiny of Bills in the Commons. That is exactly what you have just been emphasising. In the course of it you used the term "the Minister" having to explain, but the fundamental difference between the old Welsh Office days and now is "the Minister" who devised the Bill in the wider context was the Minister who was in front of you and there arguing for what he was proposing. Now the Minister in front of you is not that Minister, is somebody who may be part of a Government whose policy is very different, even with the same party on something like foundation hospitals; let alone with a different party. How can the Parliamentary process which you have described as so effective, work when there is nobody there charged in the real sense with representing the people who are putting the Bill forward.

Gareth Thomas

Because it is perfectly legitimate for the Minister presenting the Bill to say, "Well, there have been discussions with the Welsh Assembly. They have looked at this subject in depth. This is what they think is appropriate for Wales. I do not see what is wrong with saying that and I have no doubt that the Minister, if he is doing his job properly, will go to some length to explain that this is a Welsh solution catered to Welsh needs after extensive consultation and, of course, we have forgotten the innovation of draft legislation which is a mechanism for allowing co-scrutiny, albeit perhaps in an informal way, between Assembly Members and members of this place to look at proposals in draft form. I think that is a way of perhaps addressing some of the problems which, Mr Price, you are addressing.

Lord Richard

Can we take it just one stage further and say that, all right, we have this present system that seems to be working you think all right. If you take a Bill, take the Hospital Bill again, take the proposal which emanated from Cardiff which has been administered by Cardiff, which will be paid for out of the budget for Cardiff. What is the justification for Westminster MPs legislating for it? We have to take it that stage. Why is your legislative import so much more important and all the rest of it than the legislative input that would have come from the Assembly if it had the power to do it?

Gareth Thomas

Going back to first principles, the Government of Wales Act has produced a model of devolution which one accepts produces a jagged edge -- I think one of your witnesses has said that. But we have to live with it. I think the complexities of the system are sometimes overstated, I have to say, not least by some of the lawyers who have been giving evidence, and I speak as a lawyer myself. I did not intend it to be a flippant answer. I am sorry if I did not answer it sufficiently.

Lord Richard

No, no, the issue I put to you I think is one issue that at some stage MPs are going to have to answer. Why does the thing have to be done at Westminster? It could be done just as well in Cardiff. If I was a layman, and I am a lawyer as well I am afraid, but looking at it from outside that is just something I ask myself and the Members of Parliament are going to have to say why it is.

Gareth Thomas

Can I address that head on, I do not intend my evidence to be at all complacent because one accepts that in the fullness of time, as I indicated early on in my evidence, it may well be that the Assembly once it has gained greater credibility --

Lord Richard

You are talking about 15 to 20 years.

Gareth Thomas

Yes, I am talking about that being the time, and as far as primary legislative powers are concerned, it was never the intention of the Government in 1997 to confer those powers on the Welsh Assembly. Indeed, as you know, there was a referendum on that very issue, and I suppose one can argue that there would need to be a referendum if the current template is to be changed substantially.

Lord Richard

Certainly that is true. Can I thank you very much for coming. It has been a useful and for my part an enjoyable session and I look forward to seeing you at sometime in the future.