HL Deb 24 July 1978 vol 395 cc703-17

54 Clause 60, leave out Clause 60.

55 Clause 62, page 26, line 36, leave out subsection (13).

The Commons disagreed to the above Amendments for the following Reason:

56 Because it is appropriate that the functions of the bodies concerned should he capable of being assumed by the Assembly.

5.24 p.m.

Baroness ELLES

My Lords, I beg to move that this House doth not insist on their Amendments Nos. 54 and 55 to which the Commons have disagreed for the Reason numbered 56, but propose the following Amendments in lieu thereof: Page 25, line 12, leave out ("with the approval of the Secretary of State and") line 16, at end insert— ("(5) No order shall be made under this section unless a draft of it has been laid before and approved by resolution of each House of Parliament.") The effect of my Amendments would be to require the Secretary of State to lay an order before Parliament for approval by affirmative resolution whenever the Welsh Assembly intends to take the actions to which it is empowered under subsection (1) of Clause 60. It is indeed very similar if not identical to an Amendment put down by my noble friend Lord Stanley of Alderley during the Committee stage of this Bill.

There are two aspects I should like to deal with very quickly. One is the procedural aspect and the other is a substantive one. As the clause stands, the Welsh Assembly may make an order to take over the functions and powers of certain statutory bodies. There seem to be only two preliminary requirements before they can do that. The first is to consult the body concerned. It does not need its approval, it merely has to consult with it. Secondly, it must, however, have approval as well as consulting with the Secretary of State. That way of proceeding is, to use the well-worn phrase which has been heard repeatedly throughout debates on this Bill, a recipe for confronation between the Welsh Assembly and the central Government, particularly if there happen to be different political Parties in a majority in Government and in the Welsh Assembly.

My Amendments would mean that the Secretary of State would not have to give his approval to the Welsh Assembly but he would have to draw attention to Parliament of the intentions of the Welsh Assembly and obtain the approval of Parliament before the Welsh Assembly could take over any statutory body whose functions and powers come within Clause 61.

There are two matters to which I should like to refer because I think that absolutely unwittingly the noble Lord, Lord Donaldson of Kingsbridge twice gave us replies which are not in accordance with those which have been given in another place. I feel that I must refer to them, although I am sorry that the noble Lord, Lord Donaldson of Kings-bridge, is not here himself. The first is a reference to a reply he gave in the Official Report in col. 1434 of 22nd June to a question put by my noble friend Lord Stanley of Alderley when he was asking which bodies fell within Clause 60 and he was asking which bodies could be subsumed. He then said: I believe that some of their members are not to be appointed by the Welsh Assembly, although I may not be correct about that. The noble Lord, Lord Donaldson of Kingsbridge, replied: In so far as they have members who are not so appointed, then clearly their powers cannot be subsumed by the Welsh Assembly."—(Official Report, col. 1434.) I believe that that is not the case. As I understand it, it is where a Minister has devolved all his powers to the Welsh Assembly to appoint members to a body then that body can fall within Clause 60. It is only where the Minister himself retains the right of appointment of one or more members to a particular body that the Welsh Assembly would be prohibited under the terms of Clause 60 to subsume their function. I should be grateful if at some stage I could have confirmation of that from the noble Lord who will be replying.

What has been even more revealing has been that when this matter was debated in another place the intentions of the Minister, as we have said earlier, have slowly been revealed one by one—I hate to have to say this but it was rather like a dance of the seven veils, where one gradually sees more and more revealed of what are the intentions of the Government.

When one turns to Hansard of 20th July, col. 804—and I do not intend to quote verbatim—the reply of the Minister was to the effect that the Government were proposing that the bodies that were operating wholly in Wales should be devolved to the Welsh Assembly. It was not only that these bodies should be devolved under Clause 60 but what is even more revealing—this is the next stage of the process—is that if the Assembly decided that it wanted a particular body to stay in being, but to subsume its functions, the Assembly itself could appoint Members from within its own membership to sit on that agency. As the Minister said, that would mean in effect that the Assembly could take over art agency, and keep the identity of that agency with its own Members sitting as the sole members.

This, too, is a new facet which was at no stage revealed by the noble Lord, Lord Donaldson of Kingsbridge, when he replied in our House. I should like to refer to what he said in reply to my noble friend, as reported at column 1442 of the Official Report of 22nd June: Probably what would happen is that almost certainly the same people would continue to do the same work under a different name. That is totally different from the explanation given by the Minister in another place. There is no criticism of the noble Lord, Lord Donaldson, but I feel that when we are debating a matter which is of vital interest to the existing agencies, as well as to the Welsh Assembly and the people of Wales, we should at least be given a correct indication of the Government's intention; and we certainly were not at that stage. It is only because the matter was debated in another place that the Minister was in a position to reveal further intentions down the road of devolution.

If this is what is called democratisation, it is clear that we do not share the same definitions. If this is a pluralist democracy, then my interpretation of the other side's view of a pluralist democracy is that it is to give as many jobs as possible to one person. A Member in another place said that it would not be possible for an Assemblyman to be paid twice because he would not he taking up an appointment under the Crown. That seemed to me to be an extraordinary reason, because surely if an Assemblyman is taking up a paid position on one of the agencies which it is intended to devolve, he would be entitled to such payment as is now given to the chairman, deputy chairman or other member of the agency in question. Perhaps the Minister will he able to confirm that. So long as the body remains a statutory body under an Act whoever fulfils the role will be entitled to payment as by right. So presumably it would mean that an Assemblyman who is appointed to one of the agencies to be devolved would be entitled to another salary. This is of particular relevance to our concern.

Those are the reasons why we have tabled the new Amendments. We hope that they will be accepted. They would enable both this House and another place to consider whether bodies which have been set up by the Houses of Parliament can be dissolved by a totally different body. We should at least have the right to consider in Parliament bodies which have been set up by Parliament. Surely this is a right which we should retain. I be to move.

Moved, That this House doth not insist on their Amendments Nos. 54 and 55, to which the Commons have disagreed for the Reason numbered 56, but propose the Amendments in lieu thereof.—(Baroness Elles.)

5.34 p.m.

Lord STANLEY of ALDER LEY

My Lords, I took an interest in Clause 60, so I should like to say a few words about the matter and support my noble friend in her Amendments. These bodies are becoming—or may already have become—sources of real power and influence in all our lives, to a greater or lesser degree. As a farmer I seem to fall into the category relating to the greater degree. What particularly worries me—and, I believe, many other, non-political people—is that it appears that the appointment to these bodies is becoming increasingly political, rather than technical. It was for that reason that I wished to remove the power to subsume—and, for that matter, the power to appoint—away from the Welsh Assembly which cannot be other than a political creature.

Noble Lords may have read Ronald Butt's article in The Times on Thursday, 20th July, in which he made the point far better than I do about the dangers of political appointments to such bodies. There is the danger that appointments would be changed as the colour of the Party changes. There is also the danger that if people of no experience were appointed to a particular board, such appointments would give rise to even further lack of confidence in that board—and in any event I am no great lover of these boards in their present form. There is also the point that such appointments now being made are in sharp contrast to the appointments made by the founders of such bodies, who were I believe men such as the late Lord Attlee, Mr. Gaitskell, and Mr. Bevan.

I believe that should the Welsh Assembly subsume the powers of any of these bodies, it will move a further step along this very unattractive and slippery path. I therefore hope that your Lordships will support my noble friend in her proposal which of course does not solve all the problems, but it is at least a small step in the right direction.

Lord GORONWY-ROBERTS

My Lords, the House has previously discussed an Amendment similar to those before us today. The noble Baroness has referred extensively to what my noble friend Lord Donaldson had to say on the previous occasion. He said that the Government regarded the orders made under the terms of Clause 60 as being a consequence of devolution, and not therefore appropriate to the Parliamentary scrutiny envisaged in the Amendment. That remains the position. A Clause 60 order is not the same as one made under the terms, of Clause 59. A Clause 59 order is concerned with a body operating in both countries—England and Wales—and it is therefore appropriate that the United Kingdom interest should be accommodated and the order therefore made subject to Affirmative Resolution. The bodies which could be subject to a Clause 60 order are essentially Welsh in character, and the same arguments do not apply.

I now wish to turn to a specific point which the noble Baroness made about the interpretation of Clause 60. I say at once that she is quite right in thinking that Clause 60 cannot operate in regard to a body unless all ministerial powers of appointment are devolved. If one ministerial power of appointment is not devolved, the body cannot be subsumed; and the issue here is subsumation, and the powers of the Secretary of State and the Assembly in relation to that. First, appointments currently made by others (for instance, local authorities) will continue to be so made until the body is subsumed, but I believe that such appointments are irrelevant to Clause 60. Secondly, the Assembly can appoint its own Members to a body prior to a Clause 60 order being made, but such appointments must be subject to the disqualification procedures in Clause 5. I think that that meets the second major point made by the noble Baroness.

I now wish to revert to the central argument she advanced. Your Lordships are aware that the Assembly is statutorily required to consult the body concerned before it makes an order, and then that order has to be approved by the Secretary of State, as the noble Baroness properly pointed out. There is an argument that this is not an adequate safeguard because the Secretary of State may find it difficult to say "No" to the wishes of the Assembly, but under this new dispensation the Secretary of State for Wales, like the Secretary of State for Scotland, will be Members of the Government and of Parliament, and so will be equally aware of the wishes of these Houses and of the Assembly. The pressure (if I may call it that) will not all be from one direction.

I also wish to invite the House to consider the totally new situation in the Wales Bill which the Amendments would create. Your Lordships are already aware from previous discussions that the Assembly, which has executive functions—one might almost say administrative functions—devolved upon it, will not, under the terms of the Bill, have direct access to Her Majesty. Under the terms of the Bill they will be able to approach her only through the Secretary of State. This is part of the nature of the Bill and the extent and character of the devolution to which we are putting our hands, and we should pause to consider very carefully before we introduce any Amendment which might disturb or impair unintentionally the nature and scope of the devolution (or, as I would call it, the decentralisation) proposals.

Similarly, it has been the intention of the Government that the Secretary of State should act as a link between the Assembly and Parliament. That is why all the orders in the Bill subject to Parliamentary scrutiny are orders of the Secretary of State, and not of the Assembly. This Amendment not only gives the Assembly direct access to Parliament, and indeed to the Crown, but also omits the Secretary of State from the procedure altogether, although I followed very closely what the noble Baroness had to say about a residual function, if I may call it that, of the Secretary of State under the new dispensation.

Baroness ELLES

My Lords, would the noble Lord allow me to intervene? I wonder whether I misunderstood him when he said that the orders were by the Secretary of State. In the case of Clause 60(1), is not the order in fact made by the Assembly itself? They are the ones who will be laying the Statutory Instrument before the Welsh Assembly when taking over bodies under that clause.

Lord GORONWY-ROBERTS

Certainly, my Lords; but they will not have this direct access. The relationship with the Assembly will not be that of a subordinate Legislature. It will be a relationship—and I put it in my own words now—which, because of the ministerial channel, gives to the Assembly its proper character of a local administrative body. I do not want to argue this point too much, but I would invite your Lordships to consider very carefully the implications which might arise for the whole intention of Parliament and the whole intention of the country in what it is proposed should be done in what is a very carefully thought-out and modest measure of decentralisation. We should not go beyond that unwittingly by perhaps introducing words or Amendments that might tend in the future to prejudice the nature of the reform proposed.

For those reasons, I would invite the noble Baroness, to whose main points of interpretation I have deferred—I hope she will agree that I have deferred to those points—not to press this; that is to say, to reject the Amendment. I do not want to detain the House as to the view taken in Wales if this possibility of subsumation is struck out of its hand despite the clear and effective safeguards which, as it should be, the Bill provides. I would merely make that appeal and close with this note of information, that Clause 60 orders, I am advised, are not laid before Parliament under the terms of the Bill—I do not say that the noble Baroness was interpreting Clause 60(1) quite in that way at all—and this would be the case only if the noble Baroness's Amendment were accepted. I believe that is what she wanted to convey, and did convey, to me and to the House. Having made these points, which are valid points and points of important interpretation, I strongly suggest that this Amendment should be rejected, and I hope it will be.

Baroness WHITE

My Lords, before my noble friend sits down, may I ask him to clarify one point so that I have it absolutely plain? I have already declared an interest to the House: I am chairman of a body which could be subsumed under Clause 60. I am not concerned with that at the moment, but I am concerned to be absolutely sure that we could not be subsumed by the backdoor, as it were; that is, by the Assembly appointing its own Members and taking us over, so to speak, without the right of consultation or the approval of the Secretary of State. My noble friend referred to Clause 5, and I assume he is referring to Clause 5(1)(c). Do we have a guarantee that there will be an Order in Council which would make anyone appointed to, for example, the Land Authority for Wales disqualified from continuing in membership of the Assembly? Have I got that correct? Because there is no absolute guarantee, as I see it. There may be an Order in Council. But I may have missed something. I am wondering whether my noble friend can give a categorical assurance.

Lord GORONWY-ROBERTS

My Lords, I think the intentions of Clause 5, flowing from subsection (1)(c), is as my noble friend hopes it will be. It says: Subject to section 6 below", which is not relevant to the point she raised, a person is disqualified for membership of the Assembly if… (c) he holds any of the offices for the time being designated by Order in Council as offices disqualifying for membership of the Assembly". I take that to mean, of course, that there would be an order; but it is a point of sufficient importance for me to ask my noble friend whether I could give the necessary assurance in a more formal manner than I have done. I believe I can give the categorical assurance for which she has asked, but having said that as a non-legal Member of this Bench perhaps she will remind me or one of my colleagues that a more formal assurance would be welcome. I believe this is the position. Did my noble friend raise another point before she came to that, about the Land Authority?

Baroness WHITE

No, my Lords. I do not wish to make any comment on the Amendment to Clause 60 which is proposed. I am not quarrelling with that, because that provides that the Secretary of State would have to approve and that the body concerned would have to be consulted. But if this were possible because there was no Order in Council covering the particular body, then, as I say, it would be possible for the Assembly to appoint its own members and take over the body, in effect, while they remained members of the Assembly. I cannot believe that that would be the wish of the Government but I just wanted the assurance.

Lord GORONWY-ROBERTS

My Lords, I cannot frankly believe that it would be the corporate wish of the Assembly, if such a move were made, to take over by stealth what it was clearly not the intention of the Act, and therefore the intention of Parliament, should be taken over. It would certainly be raised in the Assembly by people who did not agree, and most certainly in Parliament; and Parliament has certain powers if it considers that bodies created by it by statute have overstepped the limits of what they ought to do according to the Act under which they were set up.

Baroness ELLES

My Lords, I am very grateful to the noble Lord for having helped me, because this is precisely what I am trying to achieve, that Parliament should be able to discuss what bodies should be subsumed under Clause 60 and who should be appointed. If noble Lords had listened when we were debating Clause 5 they would have heard that we asked the Government to make a list of those bodies in respect of which membership would be disqualified under Clause 5, and this would have helped the noble Baroness considerably; but the Government refused at every point to produce any list or give any indication of the bodies, membership of which would in fact cause disqualification for membership of the Welsh Assembly.

I do not want to continue the debate on this matter for too long; nevertheless, reading carefully what the Minister said on 20th July in another place, he deliberately stated that the Assembly can appoint its own Members and they will remain Members of the Welsh Assembly and they can form a Committee to run their particular agency. It is perfectly clear in my mind what the Minister intends to happen. Before I push my particular Amendment to some decision, the noble Lord might like the opportunity to reply to what I have said.

Viscount TRENCHARD

My Lords, I wonder whether I may add to what my noble friend has said. I am not sure whether she quoted the beginning of column 806 in Hansard for the other place on this issue. The right honourable gentleman the Secretary of State for Wales said clearly that, it could run a specific activity through one of its committees, or in any other way open to it. All these matters would be within the discretion of the Assembly and I should not seek to add to or subtract from what we have proposed in that context. He said a good deal more in Columns 805 and 806, which gives me the feeling that if the Amendment we passed earlier today is negatived in another place we shall be back to a situation where there will be a power to appoint, a power to direct (with certain safeguards which will not work very well) and a power to take over and do the thing yourself. That seems to me—and I hope it will seem to Members of the other place—to be almost non-constitutional and unique. It is, as I have said before, as though the members of the NEB could be appointed by Parliament or a Parliamentary Committee, the NEB could be directed by Parliament—not by the Secretary of State for Industry—and Parliamentary Committees could take over the work of the National Enterprise Board. This to me is an exact parallel if the Amendment passed earlier is not accepted and if Clause 60 stands without this excellent Amendment, which I support.

Lord GORONWY-ROBERTS

My Lords, I think that one of the two points at issue between us is disqualification. I should like to make it clear that all paid appointments will be disqualified—that is, where there is this duality, if it ever arises. A good many of these posts are paid posts. As to the take-over by the back door, as my noble friend described it, and which she fairly described as a very emotive contingency, indeed—and I repeat what I said about the attitude of the Assembly and Parliament to what might be patently outside the intentions of Parliament—subsumation does not mean that a subcommittee of the Assembly is set up to do the job: it means that the Assembly subsumes within itself that function. But it may be that the Assembly would itself appoint (as the Secretary of State does now) one or two or more of its own Members, plus—and any Assembly would be very well advised to do this especially in regard to the kind of specialised work that the kind of body we have in mind is doing in Wales—the appointment, the co-option, the effective co-option, of others from outside.

I do not see the prospect of the Assembly proceeding on the lines which some noble Lords fear that it might. If it were to do so, it would be most unwise to do so. I rather think that the counter-action would begin within the Assembly itself and, certainly, it could be, and would he, raised in Parliament at Westminster. I would suggest that in any case these are not Amendments which could be inserted in the Bill in their present form to achieve purposes better than can be done by the substantial qualifications—and I stress this—the orderly and constitutional ones. This is best done in this way, having regard to the intention of the Bill, which is to set up a non-legislative executive—essentially executive—body.

The Amendments seem to me to invite special criticism because they impinge on the relationship between the Assembly as we conceive it. If you want another Assembly with other powers and another status, well and good! But this is not that sort of Assembly. I think that we should agree among ourselves that, having aired these important questions, these Amendments should not proceed.

Baroness ELLES

My Lords, I am grateful for the comments of the noble Lord and for the support of my noble friend. I know that when we debate foreign affairs the noble Lord is a moderate man. Perhaps he is not aware of the ambitious designs which his colleagues in another place have for the Welsh Assembly. I would refer again to Column 805 where his right honourable friend Mr. Morris specifically said that it may appoint its own Members to be the sole Members of that body. There is no doubt at all in the mind of the Minister as to how he sees the Welsh Assembly developing. He also says that if the Welsh Assembly subsumes (which is a horrible word, but I use it since it is here) the body in question, the Assembly could run its affairs, through one of its Committees or any other way open to it. It is clear how the Minister intends the Welsh Assembly should develop.

We on this side of the House find that this is totally unacceptable. It does not even seem to be clear to your Lordships what is intended to happen to the Welsh Assembly. The least that we can do in order to defend the statutory bodies which have been set up by both Houses

is to ensure that, when these statutory bodies are to be dissolved or subsumed, we should have the right to discuss that before it happens.

5.58 p.m.

On Question, Whether the House doth not insist on these Amendments Nos. 54 and 55, to which the Commons have disagreed for the Reason numbered 56, but propose the Amendments in lieu thereof?

Their Lordships divided: Contents, 94; Not-Contents, 71.

CONTENTS
Alport, L. Faithfull, B. Pender, L.
Amory, V. Fortescue, E. Penrhyn, L.
Ampthill, L. Fraser of Kilmorack, L. Porritt, L.
Atholl, D. Gainford, L. Rankeillour, L.
Auckland, L. Glenkinglas, L. Rawlinson of Ewell, L.
Avon, E. Green way, L. Redcliffe-Maud, L.
Barnby, L. Gridley, L. Reigate, L.
Belstead, L. Hailsham of Saint Marylebone, L. Robbins, L.
Boston, L. Romney, E.
Brougham and Vaux, L. Halsbury, E. St. Aldwyn, E.
Campbell of Croy, L. Harcourt, V. St. Davids, V.
Carr of Hadley, L. Harmar-Nicholls, L. Sandys, L.
Cockfield, L. Hatherton, L. Selkirk, E.
Colville of Culross, V. Hawke, L. Sempill, Ly.
Cottesloe, L. Henley, L. Sharpies, B.
Craigavon, V. Kinnaird, L. Skelmersdale, L.
Croft, L. Kintore, E. Spens, L.
Croham, L. Lauderdale, E. Stanley of Alderley, L.
Cullen of Ashbourne, L. Long, V. Strathcarron, L.
Daventry, V. Lyell, L. Strathclyde, L.
de Clifford, L. Mancroft, L. Strathcona and Mount Royal, L.
Denham, L. Marley, L. Sudeley, L.
Digby, L. Middleton, L. Tenby, V.
Donegall, M. Monk Bretton, L. Trefgarne, L.
Drumalbyn, L.[Teller.] Monson, L. Trenchard, V.
Ebbisham, L. Mottistone, L. Tweeddale, M.
Eccles, V. Mowbray and Stourton, L. [Teller.] Vernon, L.
Elles, B. Vickers, B.
Elliot of Harwood, B. Newall, L. Vivian, L.
Elton, L. Northchurch, B. Wakefield of Kendal, L.
Emmet of Amberley, B. Nugent of Guildford, L. Ward of North Tyneside, B.
Exeter, M. O'Hagan, L. Westbury, L.
NOT-CONTENTS
Annan, L. Dowding, L. Hylton-Foster, B.
Ardwick, L. Elwyn-Jones, L. (L. Chancellor) Jacques, L.
Avebury, L. Foot, L. Kirkhill, L.
Aylestone, L. Gaitskell, B. Leatherland, L.
Banks, L. Gardiner, L. Listowel, E.
Birk B. Gladwyn, L. Llewelyn-Davies of Hastoe, B.
Blyton, L. Gordon-Walker, L. Lloyd of Kilgerran, L.
Boston of Faversham, L. Goronwy-Roberts, L. Lovell-Davis, L.
Brockway, L. Granville of Eye, L. McCarthy, L.
Burton of Coventry, B. Greenwood of Rossendale, L. McCluskey, L.
Castle, L. Hale, L. McGregor of Durris, L.
Collison, L. Hanworth, V. Morris of Borth-y-Gest, L.
Davies of Leek, L. Harris of Greenwich, L. Morris of Grasmere, L.
Davies of Penrhys, L. Hatch of Lusby, L. Murray of Gravesend, L.
Denington, B. Henderson, L. Oram, L.
Diamond, L. Howie of Troon, L. Pannell, L.
Douglas of Barloch, L. Hughes, L. Parry, L.
Peart, L. (L.Privy Seal.) Stamp, L. Wallace of Coslany, L.
Ponsonby of Shulbrede, L. Stedman, B. Whaddon, L.
Ritchie-Calder, L. Stewart of Alvechurch, B. Wigg, L.
Seear, B. Stone, L. Wigoder, L.
Shackleton, L. Strabolgi, L. [Teller.] Winterbottom, L. [Teller.]
Shinwell, L. Swaythling, L. Wynne-Jones, L.
Snow, L. Taylor of Mansfield, L.

On Question, Motion agreed to.

Resolved in the affirmative, and Motion agreed to accordingly.