National Assembly for Wales

Yes, we've had discussions with the WAO about the Llywydd's proposals as well as ours, and I think Matthew had the most recent discussions, so might want to add to that. But, clearly, we haven't asked the WAO to adjudicate on our proposal, but we've made sure that we've satisfied ourselves in the discussions that they're aware of what we're proposing to do, and we've been able to raise any issues along the way.

Just to add to that, yes, we've gone through really to test the logic around the accountability constitutional issue that the Llywydd's proposal would trigger, and, from a point of view of then accounting for funding from the Welsh consolidated fund, the accounts that would need to be prepared then additionally by the Electoral Commission in relation to Welsh expenditure if we were to go down that route. So, we just needed to test that with the auditors of the consolidated fund as well.

I found that last answer strange, and perhaps you can help me out. Because my understanding is that the Commission is made up of representatives of political parties, so how it can be described as not being political is beyond my understanding. Perhaps you could explain it to me. 

Well, I think the Llywydd obviously has a role that is beyond party politics. I think that's what I was referring to. 

But the Commission itself is made up of Commissioners, and the Commissioners are representatives of political parties. 

Yes.

So it's hardly non political. I think the description of the Commission as 'non political' to me seems extremely strange, but I won't pursue that any further. 

What I will pursue, and this really follows on from what the Chair was talking about: we have a situation where both the ombudsman and the auditor general, who are two independent bodies, independent in law, are funded by the Assembly as a whole, so they get scrutinised. Also, they report back to the Finance Committee, who discuss their budget in public. Why is that not suitable for the Electoral Commission? I would have thought that they were no more independent than the ombudsman and the auditor general. 

Well, I think there's a question about adding different—. That requires amendment to legislation, effectively, to put the Electoral Commission on the same status, as I understand it, as the other two bodies that you've mentioned. And that's something that we don't have competence to do. But I think, again, the Electoral Commission itself has indicated, I think, a preference—which I think that you'd probably contest, from your earlier question—for a level of accountability that goes beyond the conventional scrutiny committees, which are obviously comprised on a party basis.

Well, if it's not going to be via the Finance Committee, how is the Assembly Commission going to meet in public so that their decisions on this can be seen? People might find lots of disadvantages to this committee, but people can read the transcripts of it, they can watch us if they so desire, they can turn up in their hoards to attend the meeting, but it's actually taking place in public. How will the Commission meet in public to enable scrutiny for the public to know what is happening about the funding of the Electoral Commission? Remember, it's the public's money.

Indeed, it's the public's money. I would support that. I would welcome the Commission choosing to do that and I can't see any obstacles in their path for that to happen.

I'll take that up later. Thank you. 

Thank you. Mark.

The accounting officer, in respect of the Electoral Commission for Wales, is that going to be the chief executive of the Assembly?

That's the proposal, and they already serve that function in relation to the activities of the Commission under Schedule 2 to GoWA, where grants are paid. That's an existing function. So, the proposal is that that would be the case here as well.

Might it not make sense to have an additional reporting officer specifically for Wales at the Electoral Commission, along the same model that was used for HMRC on the Welsh rates of income tax?

I have heard that suggestion made. I'm not entirely sure it's required under the proposal that we've made. There's an existing arrangement where terms and conditions are attached to grant funding to, indeed, the Electoral Commission and others, which I don't think requires the creation of a new post. But if the committee has a different view, obviously I'd be interested in hearing that. But I'm not myself persuaded that would be necessary.

And the Electoral Commission hasn't yet consolidated a set of accounts for the UK. Do we have any idea what it's spending in Wales? And we need much greater clarity in terms of the audit of that Wales spending.

We do see an important role for the Wales Audit Office in relation to this. We've included a proposal for there to be a duty on the auditor general to examine and report on the Electoral Commission accounts, which will then be audited by the National Audit Office on a UK-wide basis. But we think that's an important role for the auditor general to play in Wales, to give the level of assurance that your question rightly assumes.

And in terms of value for money, you told me a week or two ago, as Counsel General, that the costs of going to the High Court on the Miller thing was just under £9,000. How does that compare to the sort of money that the Electoral Commission has been spending on electoral court cases, against people—? Darren Grimes is one individual, a young chap who they've pursued three times and lost in court. We saw the National Crime Agency decision hidden away yesterday about Arron Banks, whom they've pursued for years, with Carole Cadwalladr putting all this stuff out for them. How much money have they wasted on that? And what sort of controls are we going to have on that type of spending, compared to the relatively good value that you delivered on your case?

Sorry, is your question in relation to the Electoral Commission's activities in Wales?

Yes. Because how are we going to use this legislation to give us more control and oversight to ensure proper spending by the Electoral Commission when we see examples of extraordinary waste of money, particularly on legal cases, which is your particular area of expertise?

I don't want to be drawn into the political point that you're making. But from the point of view of audit, the proposal that we've suggested is indeed an aim to deliver exactly that outcome.

Rhianon Passmore.

Thank you, Chair. Moving swiftly on. There is a difference, isn't there, between £0.5 million and £1.6 million? So with your preferred option and the transfer of functionality to the Assembly Commission, what do you anticipate the discussions with the Treasury to be on the transfer of funding to the Electoral Commission? When do you think that those discussions will be complete, or is there a timescale you can attach to that?

There isn't a precise timescale at this point in time. We had, candidly, anticipated that those discussions would be pursued as part of the spending review. But as you will know, the spending review, sadly, was limited to a year, which doesn't take us into the period that would be engaged by proposals that we're making. So I can't, I'm afraid, give you a timescale at this point, but the discussions are under way.

Sorry, Rhianon, Mike would like to come in on this particular point.

On this point, the previous First Minister was very much against having certain powers transferred to the Assembly because he was of the opinion that the Treasury would not give us adequate funding. And he said that on a number of occasions. That was his argument against transferring administrative control of benefits. And that was one that the Assembly accepted, because they felt that it wouldn't get the right funding. How are we to be certain that we'll get our adequate share of the funding, and is there an appeals mechanism that exists for the finance Minister to appeal if the amount of money we get under a settlement is different to that which they calculate? Is there any appeals mechanism to ensure that if the Treasury says, 'You can have £1 million; that's what we think is your share of it, good luck', is there any means by which we can appeal to ensure that we do get the adequate amount?

I'll ask Matthew to come in on the appeals point. But on the overall point that you're making, the estimates provided by the Commission, just to give a sense of the scale, as context really, the estimates that they've provided are between £600,000 and £1.5 million. It is a more complex question than a straightforward Barnett allocation, as you know, and that would be something that we will be negotiating with the Treasury on. On the question of an appeal mechanism, Matthew. 

There isn't, formally, an appeals mechanism as such, apart from one that is effectively adjudicated by the Treasury. I know we've had disputes in the past and the committee will be very well aware of those. One of the things the Government and other devolved Governments are looking to take forward as part of the discussions, and also the spending round that hasn't yet happened, was to review the statement of funding policy to put in a proper functioning disputes resolution process.

It's not the sum I'm particularly worried about; it's the principle. If we get half of what we should be getting, or three quarters of what we should be getting on this, it's only a couple of hundred thousand pounds; it's hardly going to have a major effect on the Welsh Government. But, on other things that are devolved, if we've accepted three quarters on this, or half on this, the argument for the Treasury could be, 'Well, it worked for this, why can't it work for the other things being devolved?' 

I think you make raise a perfectly valid point, and I agree entirely with you. In fact, that is a challenge across the funding of all devolved competencies, and we, I think, would share the view that the funding system for Wales generally needs pretty fundamental reform. 

Thank you, Mike. Rhianon. 

Well, you've sort of anticipated the question in terms of the mechanism they'll be using to undertake this. And, in regard to that shortfall, I was going to ask how you have negotiated, and you've partly answered this in terms of your previous response. But, are we just accepting that there will be a shortfall, to piggyback on Mike's question around this, because, as he has said, it is really the principle that matters around this?

We're absolutely not accepting there should be a shortfall.

So, you're exhausting all—.

Well, that process is under way at the moment. We were hoping, as I say, that it would have been wrapped up as part of the spending review, but that hasn't been possible because of the time frames that the UK Government have chosen for the review itself. But, I just want to reassure you that we understand, obviously, the issue that you're raising. It isn't simply a Barnett question; it's a broader question than that, and we will absolutely want to make sure that there isn't a shortfall. 

Okay. Finally, then, in terms of working alongside Scottish Government, should we, are we, in terms of the development of a common mechanism for determining the value of such transfers? Could you extrapolate? 

Yes. There have been discussions with the Scottish Government on this, and that, obviously, will be taken forward in conjunction now with your discussions with the Treasury around the transfer itself. 

Okay. Thank you. 

Diolch yn fawr. Nick. 

Diolch, Chair. Morning, Counsel General. You said that you'll need to seek consent for some of the amendments relating to the funding and oversight of the Electoral Commission. Can you tell us what amendments these are?

The consents arise from the amendments already tabled. The provisions, as they have been drafted, require the consents because I think that the formulas [correction: the formula is they] 'confer, impose, modify or remove' functions of the Electoral Commission, but also on the Speaker's Committee, the Comptroller and Auditor General, and the Treasury, and under Schedule 7B to GOWA, they're all reserved authorities. So, consent is required from Ministers of the Crown in order to deliver that. The range and the scope, I suppose, of the consents, we're still working on the detail of that, but it's clear that there will need to be consent. 

Did you say the consent has already been sought?

No. 

It hasn't been sought. So, given the timescales, are you confident that there's sufficient time to obtain them?

Well, there was a discussion about a section 109 Order, which is a much larger, bigger beast, so that would be problematic. There are discussions ongoing at the moment to ensure a smooth process, but, obviously, there's a risk here, isn't there, because it requires—? We don't know what's happening in Parliament in terms of UK Government at the moment, clearly, just to put it at its mildest. So, plainly, that is a risk, but as we stand here today none of us, I think, can evaluate the dimensions of that, but we are very much alive to it.

So, whether we like it or not, is the door open on the timings of Stage 3 being delayed, or being altered in some way?

There isn't much room for that to happen, in terms of the Bill, in terms of slippage. So, we are in constant, ongoing discussion with the Llywydd around the timing of the Bill. If we got to a stage where amendments, having been tabled and passed—the consents weren't forthcoming, then that would not be good. None of us would want to be in that situation. We would need to look at amending the Bill to take them out, I think, at that point. We obviously hope that that doesn't happen, but that would be a possible fallback if it didn't come forward.

It's all sounding like quite a tight timescale.

Yes, well, it is—this is a tight timescale. It's less tight than the section 109 route, which was being discussed earlier. But, ordinarily, it wouldn't be a tight timescale; the issue really arises because of the uncertainty in Westminster and Whitehall at the moment.

Okay. You mentioned the Llywydd. The Llywydd's letter of 13 August sets out her intention to introduce amendments at Stage 2 to remove section 36, relating to the Law Commission's recommendations. Does the Welsh Government intend to introduce any legislation to this effect?

We support removing those provisions, because we don't feel it's appropriate to give Welsh Ministers the powers, the broad powers, that those provisions would have provided us with. I'd just like to note that for the record again.

Very humble. [Laughter.]

Well, there's a constitutional point that I'm sure we all would share. But to the point you're making—does the Government have plans to bring forward, then, primary legislation to give effect to that? The answer, as we stand here today, is that there isn't a plan to bring that forward as part of the Government's legislative programme. Obviously, in my Counsel General capacity, as you know, with the passage of the legislation, the Wales Act 2017, one of the areas that I think it's obvious would benefit from consolidation—in the longer term, certainly—is electoral law. But at this point in time, there isn't a plan to bring forward primary legislation in that field.

Do you think there should be, at some point?

At some point, yes.

Diolch yn fawr. Okay. Any further questions, comments? Rhun.

With regard to your discussions with the Counsel General and the preferred route, from your perspective, around amendment of the Political Parties, Elections and Referendums Act, what has been the reasoning from the Counsel General as to why Welsh Government wouldn’t want to go down that route in terms of the Welsh consolidated fund?

I think that's probably for the Counsel General to answer rather than for us to answer—

But in terms of your interpretation.

In terms of the legal advice that's been given to the Counsel General—I wouldn't have been privy to that, of course.

So, you don't have any understanding or comprehension as to why Welsh Government would prefer that route rather than this. What's the analysis as to why you can't go down this route? There must be some understanding.

Sorry—I misunderstood the last part of that. 

So, in regard to your preferred option compared to the Welsh Government's preferred option, what is the impasse in regard to why you prefer yours compared to Welsh Government preferring theirs?

All right. Well, we believe that the Assembly has competence to fund the Electoral Commission work in Wales directly from the Wales consolidated fund. So, we believe that we have competence to do that. There are then many practical reasons, pragmatic reasons, why we believe that that is the preferred model to follow, and we can go into some of those. If it’s funded via the Assembly Commission as a grant from the Assembly Commission to the Electoral Commission, there are several issues that arise from that. One that I think you may have discussed already is the Assembly Commission was never envisaged to be a grant-giving body of this nature. It doesn't do it currently—it’s novel. But then, just because it’s novel doesn't mean it shouldn't be done. And that applies also to the use of the consolidated fund for funding the Electoral Commission. And, of course, you've heard the Counsel General say in his letter that that’s a novel approach also, and is reluctant for a novel approach in that context. So, all of this is novel. I think we need to just establish that—that all of this is novel and will require a novel route to put it into action. This is a UK body that will remain a UK body—the Electoral Commission—but for its functions within Wales on local government and Assembly elections, it will be accountable through this legislation to the National Assembly, and similarly in Scotland. So, however we devise this, it will be novel.

In terms of some of the pragmatic issues, then, if this is funded from the Assembly Commission, one of them is a timing issue. If the scrutiny is then done by the Assembly Commission itself of the budget estimate, you’ll know that the Assembly Commission budget, in the Standing Orders, needs to be laid by 1 October—next week—and then you as a Finance Committee are responsible for scrutiny of that Assembly Commission budget. The Electoral Commission budget, by the amendments from the Counsel General, will not need to be—the estimates will not need to be given to the Assembly Commission until 1 October, and therefore you instantly have the issue that they will not form part of the Assembly Commission budget that is laid on 1 October. The Electoral Commission have said that they would find it very difficult to provide estimates before that time, because, remember, they have to prepare their UK budget, their budget for Scotland, their budget for Wales, and asking them to do their estimates to Wales in June/July time is, to them, impractical—that’s what they've told us.

So, the Assembly Commission budget would be scrutinised by you. If there is a setting up of a Llywydd committee, which is another model that the Counsel General has agreed, the Llywydd committee would scrutinise the estimates from the Electoral Commission, and then, of course, that would happen in parallel to the Finance Committee scrutinising the Assembly Commission budget. There would be two committees scrutinising what, in the end, becomes the Assembly Commission budget. That’s a model for you to consider whether you think that that will create problems down the line. But also, the further complicating factor in all of this is the role of the Assembly Commission’s—

Accounting officer.

Yes—swyddog cyfrifo. Accounting officer—and the role of the accounting officer. I'm just going to ask Manon to touch on that because it follows from here, if that's okay.

If I could begin, Chair, just by clarifying that I'm not expressing a view on policy or taking a position on policy here, and both the alternatives that are favoured by the Llywydd and that are favoured by the Government are workable; we can make them work in different ways. But there are degrees of complexity and fit with current arrangements that we see as different.

As the Llywydd said, if the responsibility for the Electoral Commission's budget were to be within the Assembly Commission's budget, then I, as accounting officer, would be personally responsible, would assume all the accountability for that. So, it weakens that direct line of accountability between the Assembly and the Electoral Commission because it comes via me. Obviously, it is possible to do that, but I would be just as accountable for that novel arrangement, then, as I am now for the Commission's budget. So, there would need to be extremely robust mechanisms set up to provide me with the assurance, the oversight and the monitoring from year to year.

Now, that is the situation that is proposed in Scotland, but there are precedents in Scotland. There are many other organisations that are funded via the Scottish Parliamentary Corporate Body. So, that is not such a change for them. It would be a significant change for us to set up these new arrangements, whereas if, by contrast, the money was being drawn as a charge on the consolidated fund, the accounting officer would remain the Electoral Commission's accounting officer in London, and that would be a more clear-cut situation. The accounting officer for the Welsh consolidated fund would then be responsible for the cash transactions only, and it isn't as complicated as the option that the Government is proposing.

Diolch. Nick does want to come in as well on this and then we will come back to Alun.

I'm just trying to clarify what's in my head and get things straight. So, under the model that you've just been talking about, the Electoral Commission would be responsible to you, in the first part, as the accounting officer.

Yes. For their Welsh budget.

For their Welsh budget. We, as a Finance Committee, or the Assembly or whatever committee—it would be the Finance Committee—would then scrutinise you. So, if we want to take issue with the Electoral Commission, it would be you who'd signed off what they'd done, so you would be responsible to us for them. Is that right?

Yes. There are a number of models being explored at the moment. I mean, if, for example, there were a Llywydd's committee that was scrutinising the Electoral Commission's budget separately, then I would be talking to you about the Commission's operating budget—the Assembly Commission's operating budget—and I would be talking to the Llywydd's committee about the Electoral Commission's budget. If there wasn't a Llywydd's committee and it was the Assembly Commission itself that was doing the scrutiny, then there would be a slightly difficult to negotiate overlap between the role of the Finance Committee and the role of the Commission. And if there were contrasting recommendations as a result of that scrutiny, we'd need to think through how that was resolved.

Coming back to the point that the Llywydd made about timetabling, there is a very real timetabling issue as to how this would all be done in time. In Scotland, their parliamentary budget is approved much later than is the case here, so it would be a significant problem. It sounds trivial, but it is something that we would have to address.

Oh, no, we're always worrying about timetabling. I'm all for doing novel things, and I don't think that's a bar, necessarily, but my only concern with hearing what you've said is that—. Thinking back to the past, I fully understand that these models have been put forward as a realistic attempt to try and deal with the real problem on the ground, but then, years later, problems could have arisen and then a future Assembly's tried to untangle what a previous Assembly's done and thinks, 'Why on earth did they set about doing it like that?' when at that time, it seemed pretty obvious, or that was the common sense way to do it. I'm a bit concerned about the transparency element, so I think that would all have to be pretty much thrashed out in advance.

I think one way of thinking about it is—. The simplest way of doing this and the way that is most aligned to current practice, referring to the auditor general and the ombudsman, is for funding directly from the consolidated fund and accountability directly to the National Assembly rather than via the Assembly Commission, because that's what the Counsel General model is: that the accountability is to the National Assembly via the Assembly Commission rather than a direct accountability to the National Assembly through the processes that have already been set up and through a Llywydd committee with the finance Chair sitting on that committee.

Okay. Thank you for your patience, Alun.

No, I'm enjoying the conversation. It's an unsatisfactory position that this committee's been placed in. This is not the conversation that's being had in the Dog and Duck. This should be sorted between the Commission and the Government and there should be a consensus, in my view, on what the legal position is. And I know that we discussed this when I was a Minister and I recognise these conversations have been held in good faith on both sides and I recognise that there are conversations being had. But we are running up to a conversation where we need to create statute on this matter now, and it is a matter, I think, of some disappointment that, as a committee, we appear to be placed in a position of having to take a view on different legal interpretations. I don't feel comfortable about being in that position as a committee. 

If you look at the structural lines of accountability that you describe, Llywydd, and that the chief executive has described, I find that a more attractive option. I think it's clearer, it's cleaner and it's a direct line. Your argument in terms of the principle is one that I accept; I think it's a much clearer model of accountability than the position the Government is taking. However, I'm also a pragmatist in the sense of wanting to get this done. We are really in the engine room of constitutionality here, aren't we? We should be able to make these amendments and changes to processes and structures without it being so difficult and painful. And the principle is that of accountability, of devolution of accountability and devolution of responsibility and I think there's wide agreement on that. So, is there any opportunity, do you think, that, perhaps, before Members are placed in quite an invidious position, yourself and the Counsel General could spend some time and find an agreed position to place before this committee and the National Assembly prior to us being placed in a difficult situation, potentially, next week?

I understand the difficulty for this committee, and at the moment, it would be a difficulty that would be also replicated in the committee of the whole house in scrutinising amendments that would come both from the Commission and the Welsh Government, which would have a different policy intent of how this is devolved. So, I understand that point. And certainly, if there is a way that better understanding can be formed between the Government and ourselves on this, then, yes, I'm open to having that conversation. All I can say is that we seem to have issues around the legal interpretation of competence and also the use of the Welsh consolidated fund for this. We haven't managed to get an agreement on this prior to today. 

If I can just say that this isn't just me as the Member in charge saying this at this point. If I can just speak as also the Chair of the Commission, the Commission did discuss this on Monday, and it was the Commission's view as well that the model of the Welsh consolidated fund directly funding the Electoral Commission and then scrutiny directly accountable to the National Assembly was the model that the Commission favoured as well. They saw the many issues that could come before us, both as a Commission and as a National Assembly in the scrutiny via the Assembly Commission. 

I'm surprised, because there's always been a level of tension between Government and the Commission about issues on competence. As a Minister myself, we've had conversations around these areas, but they've never been that difficult to resolve, in my experience. There have been different interpretations, but I can't think, as a Minister, where I've sought to do something where the Commission has questioned our competence to do that—to legislate in that field—and where it's reached an impasse. And so I am somewhat bewildered as to why we're in this position, at the moment. But I don't think we're going to get any much further this morning, Chair. So, it may well be useful that the committee considers this at the end of our session this morning, and considers how we can resolve this matter before this arrives on the floor of the National Assembly. 

Well, that's why we're here, I think, and, yes, although time is against us, I suppose, you make a fair point. Rhun. 

Please correct me if I'm wrong, but aren't we really discussing whether it's funded directly or indirectly from exactly the same money, which is the Welsh consolidated fund? Because the Assembly Commission is funded through the Welsh consolidated fund. So, really, it's come down to whether it's funded directly or indirectly. If it cannot be legally funded directly, how can it be legally funded indirectly?

Well, you're perfectly right in the interpretation that it's the same money and that it's matter of being directly funded to the National Assembly and accountable to the National Assembly, or via the Assembly Commission budget. Our view, clearly, is that the accountability should be directly to the National Assembly.

I agree with you, but the argument that seems to be being made, and it might be one that you might want to—. It's probably a legal question. I mean, how can you not legally fund somebody directly but you can legally fund somebody indirectly?

Well, we certainly believe that it's within competence to fund directly.  You'll have to—. Well, I'm not the person to answer the second part of that.

Okay. And the other question is: is it a fee that we have to pay, or is it part of the budget where we can, as an Assembly, decide that we don't agree with their estimates? Can we change it? If the Commission bring a budget here and you put a 50 per cent increase on it, we may well have a view that that is far too large and that we would like to discuss it and would not be mindful to recommend to the Assembly to give you that 50 per cent increase. If, however, this body comes along and wants a 50 per cent increase, are we, as an Assembly, able to say, 'We're not prepared to fund all that'? Is it just a fee charge to buy them, which is set by them, over which we have no control?

Well, we would have control, yes. Via the scrutiny process of the estimates, the Llywydd committee, then, if it's done via that route, could certainly lay a different budget. 

Which would then go in front of the—

The whole Assembly.

The whole Assembly, which would either agree it or not. If it can be altered—which you just said it can—if it's not a fee or a charge, but it's actually a budget that is part of the overall budget—. I'll put it as a question: can you see why somebody would want to be funded indirectly rather than directly by the body responsible?

You're asking why the Electoral Commission would prefer to—

No, why would we, as an Assembly, want to fund—? If it's changeable—. If it wasn't changeable, it wouldn't matter who funded it, it would just be a charge, and we have that, don't we, with the termination of Members' salaries, et cetera? You have no control over it and we have no control over it. It is a determination and, as such, you put it in your budget and you can't add to it or subtract from it. That's there. If this is not in that situation of being dealt with in exactly the same way, where people are just saying, 'You have to put this money in', and that it can be altered, it's going to end up in front of the Assembly anyway, whether directly or indirectly. So, the Assembly could reject the Commission's budget because they thought that the amount of money being given to the Electoral Commission was too high. So, I'm just saying it puts the whole of the Commission's budget at risk because of something over which we have limited control. Do you see a danger in that?

The point you're making is that, in order to object to the Electoral Commission estimate, the Assembly Commission budget would have to be voted down, then. That's how that—I'm presuming, in terms of timetabling—would work, because there would be no laid budget estimate by the Llywydd committee; it would be via the Assembly Commission. Yes?

The draft provisions that the Counsel General is putting forward—. The Llywydd is right; the Llywydd committee would be able to make modifications to the estimates and lay them before the Assembly, and the Counsel General's proposals are that those estimates are then incorporated into the annual budget motion. So, it's more akin to the ombudsman process, or the Wales Audit Office process. There is a question, of course, and this is one of the complex issues that is left to determine through Standing Orders, potentially, as to whether it becomes part of the Assembly Commission budget when the Commission's budget is voted on, or whether it simply becomes part of the budget later on in the process in the annual budget motion. That's one of the complexities, I think, that needs to be unpicked.

Very briefly, it's not for us, probably, to have a view on this in the Finance Committee, but wouldn't it be easier and simpler if it was dealt with later on in the proceedings? Because it's a budget over which you have no control, as you have no control over the auditor general or the ombudsman, where we do talk to them, we have views on it and we actually make suggestions about how they might want to change it.

That's why the option of a Llywydd committee, rather than the scrutiny itself being also the responsibility of the Assembly Commission, is a preferred model in our thinking as well, even if it's not directly from the Welsh consolidated fund.

Thank you. In regard to the Government of Wales Act 2006, sections 124 and 125, which seem to be the Counsel General's underpinning premise in terms of what can be directly funded, I'm just still trying to get my head around the difference of legal opinion, and we've said that we can do both. Scotland does it, but it's got its precedent there. Is your view, then, that this is just too messy in terms of the Counsel General's view, or is there a wider accountability issue underpinning that in terms of the accounting officer? I'm trying to unpick why you feel so strongly.

Well, we believe that we have the competence to do it via this Bill, so there's a difference of—

It's a huge difference here in terms of the Government of Wales Act. That seems to be fundamental.

—legal opinion on that issue of competence, we believe. But the reasoning that we're outlining for you this morning is that, putting that aside, in terms of the options that we have, we believe that the direct route of accountability straight to the National Assembly is far more straightforward, in line with how the auditor general and ombudsman are currently accountable to the Assembly, via the Finance Committee, and that there is a simplicity to that. And then we've outlined some of the issues that the route via the Assembly Commission provides—problems—especially in terms of the accounting officer role in being responsible both for the Assembly Commission budget, understandably, but also as the accounting officer for the portion of the budget that comes from the Electoral Commission, where the Electoral Commission accounting officer is also responsible for the totality of that budget in the UK.

I just find it concerning, and we know that we get different legal opinions—we all know that—but surely there should be clarity around the Government of Wales Act on which it's predicated, and I'm concerned that there's a view that that isn't at the core of this determination from the Counsel General, but I'll put that to one side. So, in your view, is it appropriate, then, for the Assembly Commission's statutory remit to be extended in such a manner without Stage 1 scrutiny?

Well, I think we rehearsed in the previous committee—it's not ideal for this to be introduced in the context of Stage 2 scrutiny, but I was very clear in that committee and in introducing the Bill that this was under discussion, that these matters were now able to be devolved via this law-making mechanism of this Bill, that everything was not ready for Stage 1, but rather than think of enacting this via a stand-alone Bill, that both the Electoral Commission were keen to see this happening, Welsh Government were keen to see this Bill be the mechanism for that happening, as we were as well. So, yes, I agree, all things being perfect, this should have been part of the Stage 1 scrutiny, but we did make everybody aware that these policy issues were under consideration, and, in fact, they were obviously part of some of the discussion during Stage 1 as well.

So, if the Welsh Government's amendments are accepted, what is your view in terms of the Llywydd's committee? Will that still be necessary?

Obviously, if the Welsh Government amendments are accepted and they form part of the Bill, the Commission will put into action what the National Assembly decides. That's obviously what would happen.

The Welsh Government amendments, of course, allow for at least two options then to be decided through Standing Orders, primarily, and I've talked about those slightly. One is that there would be a Llywydd committee; the other is that the Assembly Commission would be entirely responsible for the scrutiny of the Electoral Commission. We believe that that model—total Assembly Commission responsibility for scrutiny—is not workable due to the timetabling issue I've referred to and the Electoral Commission estimates and therefore there would have to be—. I've always been of the view that there should be a Llywydd committee, as has the Electoral Commission been clear that there should be a Llywydd committee, just as there is a Speaker's committee, to hold the Electoral Commission to account and to scrutinise their estimates in that model.

Okay, thank you.

Thank you. Mark.

Could you clarify the role of the Llywydd's committee and of this committee under your preferred model in terms of (a) authorising and (b) then scrutinising the budget of the Election Commission for its activities here?

Directly from the Wales consolidated fund, the Electoral Commission would be taking their estimates to a Llywydd committee—a Llywydd committee would be set up. The scrutiny of those estimates would then be a matter for the Llywydd committee, and it would involve, then, the UK auditor general view on value for money and also any other scrutiny witnesses that the Llywydd committee would take. The Llywydd committee obviously would meet in public for all of that, and then the Llywydd committee would lay its recommendations directly to the Assembly.

I've said in previous correspondence, I think, following the Stage 1 scrutiny of this Bill that the Chair of Finance Committee would be an ex officio member of the Llywydd committee and that the statement of principles, is it, that you’ve adopted as a Finance Committee would form the basis of the scrutiny work. So, the Electoral Commission would be accountable directly to the Assembly via the Llywydd committee, not via the Finance Committee, as is the auditor general and the ombudsman. So, it does differ in that respect, but you will know that the Electoral Commission itself has said that it prefers for the scrutiny and accountability to be via a committee that is—I don't recall what their terms are, but non-political, or chaired by a non-political office, then, as the Llywydd or Deputy Presiding Officer would be.

The Electoral Commission has spent a significant part of its budget chasing Carole Cadwalladr conspiracy theories. With the National Crime Agency decision yesterday to clear Arron Banks, those cases have completely collapsed. Which of the two models would give us greater assurance that the Electoral Commission couldn't waste public funds in that way here?

Well, I think you've just made the argument as to why the Finance Committee in a party political representative role should not be the committee that scrutinises the Electoral Commission. You've got party politics or issues around the referendum into the discussion on the Electoral Commission this morning, and I think that's why probably a Llywydd committee that has a specific purpose is the mechanism to undertake that.

So, in that context, can I clarify in terms of the invitation—was that from you as Llywydd or from the Assembly Commission, for Carole Cadwalladr to—[Inaudible.]

Sorry, I didn't hear that.

I'm going to have to look at the Chair of the committee—

Surely it is relevant, in terms of assessing who is going to be most dispassionate and most effective in carrying out the value-for-money things—[Inaudible.]—the Electoral Commission.

I think the question we should be asking is who would be on the Llywydd's committee, then, if we need to be confident that there aren't any party political agendas emerging in the Llywydd's committee, because, clearly, somebody made the point earlier that the Assembly Commission is made up, of course, of political AMs, so in what way would the Llywydd committee be different?

Well, I think the point to make about the Commission is that it's set up—yes, it's chaired by the Llywydd, and it then has representatives, members of all political parties, as Commissioners. The remit of those Commissioners is very different to the remit of you sitting around this table as representatives of your political parties in one of the committees of the Assembly, and their role is to undertake the role of Commissioners of the Assembly Commission. The remit of the Llywydd committee, in the context of how the Standing Orders and any description of the Llywydd committee for the purposes of the Electoral Commission, would be outlined in a way—I suspect not in exactly the same way as the Assembly Commission, but in a similar way in terms of what its role would be.

The Electoral Commission is responsible for the running of elections and referenda. It needs to do so in a way that means it is not compromised by party politics in any way. That works in a different context, as we all know, and therefore I think it's important—and that's the model that the Speaker's committee in the UK Parliament has established—that it is taken separately to the usual committees of a Parliament.

Llywydd, some of us consider the Electoral Commission to be completely compromised in how it carries out its functions, so I just wonder, at the inaugural election of the Assembly back in 1999, when I think the roles for the electoral administration oversight were taken by the Home Office, were there any problems in that, do we know, or did that pass satisfactorily and could that be a potential future model?

Well, I have no recollection of whether there were any problems or not at that time. This National Assembly, this Parliament, is a very different body to the one that I was elected to in 1999, and its responsibilities are very different. And I suspect that going back to 1999 is not the way forward.

Can I follow up on Alun's question, or perhaps suggestion, earlier around the different legal advice and position of Welsh Government and the Commission and the difficulties that causes for our committee and, potentially, Plenary? Can I ask what steps have you and Welsh Government taken to try and reconcile your legal advice and positions? Have you shared your legal advice, for instance, with the Government or vice versa? Could your lawyers meet, perhaps, and appoint an agreed person to assist to try and bring them together? Could those assist in taking this forward?

Well, we've certainly had those discussions—I've had them—with the Counsel General. I'm open to having a conversation after this meeting, again, with the Counsel General and officials to see whether there is anything that has been learned as part of the scrutiny this morning. And I'm expecting Welsh Government to have watched some of this scrutiny as we did the scrutiny of the Counsel General, and we will have heard the message that seems to be coming from this committee, that it's not pleased with the invidious position it's been put in by both Welsh Government and the Commission. And I understand that completely, although, after saying all of that, I'd be very keen to hear some of the emerging views that you as a committee have on not just the legal competence issue but more particularly the model that you would favour—setting aside the legal competence issues—the model that you think would be the appropriate one for the scrutiny of the money. It will be the same money, as Mike Hedges has said, but what is the right model to ensure that there is proper scrutiny and accountability of the Electoral Commission to the Assembly?

Finally from me, Chair: which of the two models leads to the greater risk of Electoral Commission funding in Wales being challenged and ruled out of order by the courts?

I have no idea how to answer that question in terms of what the courts would decide, if at all, on this matter. It would, of course, depend on how that legislation was finally framed and what views the courts would have at that point if there was any challenge to it. I think that the Counsel General has also referred to the fact that Minister of the Crown consent is required, also, for these amendments—all of them, whichever model—to be fully enacted.

Thank you.

Diolch yn fawr. Nick.

Thanks, Chair. I think the first of my questions has pretty much been answered. You covered the Scottish situation earlier and the comparisons there.

The second question was to do with the discussions between the Welsh Government and the Treasury regarding the mechanism for transferring funding into the Welsh consolidated fund. Have you been involved in any of those discussions, or is that something that you've left for others?

Well, we're aware of the fact that this requires—. We're obviously aware of the fact that this requires the discussions, both—. There are two aspects to this, of course. One is the inter-institutional formula for the allocation of the estimates and the funding to Wales and Scotland, and then the transfer that would be required to fund that via the Wales consolidated fund from the Treasury. We are involved in the discussion around the formula for basing the allocation to Wales and to Scotland, and the inter-institutional agreement that would be required to do that. It is a matter for Welsh Government and the UK Treasury to be discussing the Wales consolidated fund. I don’t think we’re involved in that, are we? No.

Yes, go on then, Mike.

I'll start off. My personal preference would be for it to be funded through the consolidated fund directly—that’s the simplest method. Has anybody gone to leading counsel to get a definitive opinion—either you or you in conjunction with Welsh Government—whether it can be done that way or not? Because, if it’s not legally able to be done, then it has to be done in the indirect route. But my personal preference is to do it the direct route, and I would suggest that somebody needs to get leading counsel’s opinion on if it’s legal or if it isn’t.

We've not broached that vehicle as a—

But it's—

Yes. As I said, the message has been received.

Chair, if I may—.

Oh, go on then—very briefly; we've got two minutes left.

Sorry, just very briefly—I know we’ve come to the end of the session, and I think that the comments in terms of wider legal interpretation are absolutely at the heart of this, but, in regard to the point that was made on a number of occasions around party political bias and the nature of the Commission and the nature of Commissioners, in your view then, surely that would be much more predicated if it went to the floor of the general Assembly than if it went through an adjunct body.

Well, the accountability via the Wales consolidated fund—from the Wales consolidated fund—would be via a Llywydd committee, which would be chaired by—. The Llywydd committee would be set up in a different way to all other committees of the Assembly—the Finance Committee, for example. So, rather than do it via the Finance Committee, which has been proposed by some at various points, it would be via a Llywydd committee, respecting the fact that it is a pretty unique situation with the Electoral Commission, but then, of course, having the chair of committee on—

Would it be a public committee?

I would expect that any of this, when it comes to scrutiny of the Electoral Commission and its estimates, that it would meet in public, yes. Even if it was the Assembly Commission, it would need to meet in public for that, and the Assembly Commission can do that, if needs be, for any aspect of its work.