HL Deb 29 July 1998 vol 592 cc1517-33

27C Clause 54, page 28, line 12, at end insert— ("( ) A Minister of the Crown may not serve as an Assembly First Secretary or as an Assembly Secretary for a period of more than 12 months from the first sitting of the Assembly.").

The noble Lord said: My Lords, I beg to move the Motion standing in my name. The amendment that we passed in this House at Report stage would have prevented a Minister of the Crown serving as an assembly member. In another place, it was argued that the amendment went far too wide and that there was no reason why ministers should not stand for election.

However, Mr. Peter Hain, speaking for the Government at the start of the debate on 22nd July 1998, correctly identified the fact that in this House we were particularly concerned with the possibility that the Secretary of State wished to combine that office with that of first secretary of the assembly.

The debate that took place on 22nd July was remarkable. The arguments against the proposition that the Secretary of State might serve in both those offices simultaneously, which I had pressed so hard in this House, found support in all parts of another place. The concerns that I had voiced here were repeated again and again, none more powerfully than by the Minister himself. His contribution was in marked contrast to the words uttered by the noble Lord, Lord Williams of Mostyn, in his response at Report stage in this House.

As congratulations are the order of the day, it is time that I congratulated the noble Lord Williams on having edged his way a little further up the slippery pole. I hope that he hangs on to it well and may, in due course, even climb a little higher. We have enjoyed his contributions during the debate on this Bill. We have admired the way he has handled it and we wish him every success in the future.

Having said that, in moving to my new amendment I cannot possibly present a stronger case than was collectively put in another place. Mr. Hain both opened and concluded that debate. Right at the start, he said: I freely acknowledge that quite different constitutional functions will be exercised by the Secretary of State for Wales and the First Secretary of the National Assembly".—[Official Report, Commons, 22/7/98; col. 1173.] He added, at col. 1174: We have never suggested that they could or should be exercised by the same person in perpetuity". I emphasise "We have never suggested." I do not recall many suggestions from Ministers in this House or another place previously that he would time-limit his holding of the two offices. So that was a welcome step forward right at the beginning.

Mr. Öpik, representing the Liberal Democrat Party, who, like his noble friends in this House, supports the dual mandate in general, was also kind enough to say at col. 1177 that the Conservative Party had raised legitimate concerns and that his party would be willing to try having both roles held briefly by one person. So the Liberal Democrats have now altered the argument and concluded that they were only pressing for the particular dual mandate to be held briefly.

Ms Julie Morgan, the Labour Member for Cardiff, North, had rather stronger feelings on the subject. She said that in her view any dual mandate should be for the shortest possible time. At col. 1178 she said: There are strong feelings in the Labour party against any dual mandates". She observed, at col. 1179, that, as her honourable friend the Minister had said, it is obvious that, in practical terms, a member of the British Cabinet could not be at the same time a Member of the Welsh Assembly or First Secretary for anything other than the shortest transitional period because of the conflicting loyalties that would arise. The First Secretary would be voted in as leader of the Assembly by Assembly Members or by her or his political party—it is a bottom-up approach. She or he would then represent those people. The Secretary of State for Wales is appointed by the Prime Minister and is bound by Cabinet collective responsibility. There is a clear conflict between the two roles, which could not be combined other than for the shortest possible transitional period". So once again we have a clear statement that the only acceptable way to proceed would be on the basis that any dual mandate should be for the shortest possible transitional period.

Mr. Alan Williams, a well respected senior member of the Labour Party and the Member for Swansea, West, also had strong views on the subject. He regretted that there had been an attempt to dismiss the matter with what he called "some quite irrelevant comments" because he felt that it struck at the heart of the constitutional basis of Cabinet government. He added, at col. 1180: Under Cabinet government, there is Cabinet responsibility and Cabinet accountability. If a Minister cannot accept what the Cabinet decides, he or she must leave the Cabinet. With all respect to my right hon. friend, how on earth can he give his full loyalty to a separate Assembly that may have different perspectives—although it may have the same political background—on policy, expenditure and so on. How could he give equal loyalty to each or full loyalty to either? When he steps out of No. 10, and is interviewed by the BBC and HTV, how will we know which hat he is wearing? When he disagrees, how will we know whether he is speaking for the Assembly and when he is speaking for the Assembly how will he preserve Cabinet responsibility and accountability?". Those were all the questions which I have asked in this House on a number of occasions, being frequently chided by the noble Lord, Lord Elis-Thomas, for having an obsession.

Then Mr. Hain, the Minister, came to wind up the debate. He started with a remarkable statement—I wish it had been made in this House; we might have saved time. He said, Nobody seriously argues that the same person can be Secretary of State for Wales and Assembly First Secretary in perpetuity. It would be politically unacceptable and constitutionally undesirable". He then went on, There is a very strong case for a transitional period, particularly at the beginning when the Assembly is bedding down and the order transferring the functions of the Secretary of State has still to be implemented"—[col. 1118.]

He is talking there of a pretty short transitional period—only a few months at the outside. At this point I am bound to say that if we have something which is constitutionally undesirable, it seems to me that there is a case to alter the Bill to make sure that it cannot happen. The things that are politically unacceptable we can perhaps leave to others but, if they are constitutionally undesirable, it would be a mistake to pass a Bill that includes them and makes them possible. However, we shall see a little later how far the Minister is prepared to go in dealing with that matter.

The Minister having said that this should happen for only a short transitional period, he was then challenged by the leader of Plaid Cymru, the right honourable Dafydd Wigley, who asked whether he would accept an amendment limiting the period. Mr. Wigley expressed unhappiness that yet again the situation should be allowed to continue for anything but a transitional period. Mr. Hain said that he would not accept such an amendment, but did not give any explanation for his refusal.

We then had a situation in which all the spokesmen—the Conservative spokesman added his support for the proposition—for all the parties in another place had now said that what was proposed, what was possible in the Bill and the proposition to which I objected was undesirable and should be allowed to happen only for a transitional period.

We then reached the end of the debate on 22nd July in another place when the Minister, Mr. Peter Hain, yet again made a remarkable statement. He said of Mr. Ron Davies, to whom he paid tribute—he quoted my tribute too to Mr. Ron Davies, and reminded the House that I had paid such a tribute—that, He is choosing willingly to leave a Cabinet post—one of the highest posts in the Government, to which most Members of Parliament aspire only in their dreams. He is giving that up—at some point in the future—and is prepared to take a salary cut and all the reductions in status that his self-removal from the Cabinet will entail in order to help give birth to Wales's new democracy".— [col. 1184.] Having said all that, he referred to the assurances that he had given.

We now had the situation that there was general acceptance that the dual mandate should be allowed to happen only for a transitional period. We had a statement by the Minister that indicated that Mr. Ron Davies, after an unspecified period, intends to give up the office of Secretary of State and hold only one office.

I tabled an amendment—I believe generously and reasonably framed—to suggest that the transitional period should be no more than 12 months from the first sitting of the assembly. My noble friend Lord Roberts of Conwy takes a more stringent view and tabled amendments for shorter transitional periods, perhaps on the basis that the Government could make a choice. I know that Mr. Wigley in another place favours a shorter period than I do, but I do not want to be difficult at this stage. If we are going to have a transitional period, we do not need to tie it too tightly. All the things that have been argued for could be covered within 12 months.

I would much prefer to see this limitation put into the Bill. If it is then argued, "That is impossible at this stage. We must not prejudice the Bill. We must pass it and cannot risk losing it", I would say that that is not true. To begin with, even if the Bill was delayed until the overspill period, it would not be a disaster—we need only look at the stage which the Scotland Bill has reached. In any case, it would be possible to introduce an amendment. We do not have to spend days ping-ponging backwards and forwards. I well recall sitting in the House of Commons when we adjourned for a short period having sent an amendment down to this place and waited for it to be "ponged" back. That process could be carried out in a single day.

Therefore, if the noble and learned Lord wished to accept an amendment, it could be done perfectly well and in many ways it would be highly desirable that it should be done. We should not allow things that are constitutionally unacceptable to be permitted by the Bills that we pass. However, I know that Mr. Ron Davies is giving a party this evening on the Terrace to celebrate the passing of this Bill. I would not want to upset his entertainment, though if he is there with all his supporters, they could come in, pass the amendment and then have even greater grounds for celebration.

However, the other place was given certain statements—he called them undertakings—by the Minister. They differ considerably from anything that has been said before in this House by the noble and learned Lord, Lord Falconer. I reread the speech that he made at Report stage. I do not know what my noble friend on the Front Bench will do with his amendments. However, if it is accepted that the period should be transitional—I acknowledge the argument that there may be other transfers with responsibility which might conceivably make it desirable for another Minister to come in with responsibility for, say, broadcasting and serve for a brief transitional period; so I am not limiting the argument to the Secretary of State—if we can obtain a clear statement from the Minister that it is the intention of the Government that any Minister coming in in this way will serve only for a transitional period, and if we can obtain a clear statement from the Minister as to what he thinks the maximum transitional period will be, this House may feel that we can leave the matter there. But we need some clear statements. We have some alternative amendments. I do not know what my noble friend will do with his amendments. If we can obtain categoric statements to satisfy the House, I may well be prepared to withdraw my amendment. But if we cannot, then we should go for one of the shorter periods rather than one of the longer. I would then withdraw my amendment with the suggestion that my noble friend should press his.

We have a situation where there is a clear expression of view in the other place. I am merely asking the House to endorse what Ministers and others have said in another place and to write it into the Bill. I await the Minister's response.

Moved, That the House do not insist on their Amendment No. 27 to which the Commons have disagreed for the reason numbered 27A, but propose Amendment No. 27C in lieu thereof.—(Lord Crickhowell.)

3.45 p.m.

Lord Thomas of Gresford

My Lords, in my anxiety to assist the noble Lord, Lord Roberts of Conwy, in the short debate we had on Amendment No. 3, I omitted to add my personal congratulations to the noble Lord, Lord Williams of Mostyn. His elevation is a matter of considerable personal pleasure; it is a pleasure to the people of Wales, to the Welsh circuit and, if I may say so, to the Members of this House who sit on the Liberal Democrat Benches for the way in which he has conducted this Bill.

I say also to the noble and learned Lord, Lord Falconer, that he discovered the way to promotion through attending to Welsh affairs. Your Lordships may recall that on one occasion, as a spectator, I referred to the contest that was taking place between "Taffy" Mackay of Ardbrecknish and "Iestyn" Falconer responding for the Government. It seemed to me that they had adopted Welsh identities in putting forward their respective cases.

I turn to the remarks of the noble Lord, Lord Crickhowell. Our position has been clear throughout. We are of the view that after the first assembly it would be right for the dual mandate to cease. The first Welsh assembly is due to last for a period of four years. We believe that during that period it would be sensible for the Secretary of State for Wales to give his great experience—should he be elected to that assembly and become the first secretary—to ensuring that the position of the first secretary is well bedded down.

I feel sometimes that the noble Lord, Lord Crickhowell, is looking to the past and the days when he was the Secretary of State for Wales. I have paid tribute to the way he conducted that office during that time, when he did a great deal of good for Wales. I think that he sees the position through his eyes at that time, where the responsibilities that he held were so great that it would be impossible to take on other responsibilities. The important point is that the role of the Secretary of State in the Westminster Parliament under the devolution proposals will considerably change. No doubt there will be a period of adjustment in relation to the role that the Secretary of State has to fulfil and the role that the first secretary in the Welsh assembly has to fulfil. If the positions are to be held by one person during that period, it will be to the advantage of the people of Wales.

We cannot support the amendment of the noble Lord. We will vote against it if he presses it. We will do the same in respect of the amendments in the name of the noble Lord, Lord Roberts of Conwy.

Lord Elis-Thomas

My Lords, I agree entirely with my noble friend Lord Thomas of Gresford, although he was third in the Western Mail opinion poll. I do so because I am accused, yet again, by the noble Lord, Lord Crickhowell, of accusing him of having an obsession with Mr. Ron Davies. The noble Lord has, once again, proved the point. He has spoken about Mr. Ron Davies for 15 minutes, I think for the third time. His speeches are now apparently written by Members of all parties in another place. Nothing that has been said in another place is different from what I have said in response to him in the debates here in relation to the matter of transition.

My objection to his amendment, yet again, is that he is legislating for one person in a particular circumstance to prevent the people of Wales from making a democratic choice; to prevent a political party and a certain politician from pursuing a career. That is not a matter for this House. This House is legislating for a new democracy in Wales. The former Secretary of State must understand, as my noble friend Lord Thomas of Gresford, said, that we are in new circumstances.

As I have argued before, the transition that is taking place should enable Ministers of the Crown to move from Whitehall to Cardiff and vice versa. The noble Lord conceded that it might be possible that a DCMS Minister for broadcasting might find him or herself in Cardiff.

Let me remind the noble Lord of what I described in one debate as a "call for Ron" scenario. In other words, a Prime Minister of the United Kingdom might call for a very successful politician from Cardiff, of any party, to join a London administration. That is the order of the day as regards the way that democracies function throughout the European Union.

We are not yet in the Federation of the United Kingdom. Many of us wish we had been at the end of the 19th century. When we are making a democracy of the United Kingdom in its federal relations between nations within that kingdom at the end of the 20th century, let us do it properly. Let us not put on the face of Bills clauses which prevent successful politicians elected to one place from going to serve in another.

Let me declare a personal interest. If this were to become an elected House under a new administration, and if I were elected to Cardiff, I might decide, at the grand old age of 58, after two terms in Cardiff, to test the will of the Welsh electorate to be elected here. The noble Lord, Lord Crickhowell, is against dual mandates, but that is the nature of the position in quasi-federal systems. We should not be trying to legislate again tonight for one person. I understand that the noble Lord, Lord Crickhowell, is already on the record as inviting himself to Mr. Ron Davies' party. I would not want to delay his going.

Lord Swinfen

My Lords, I hesitate to intervene in this Bill. I have not done so before. I wonder whether the noble Lord, Lord Elis-Thomas, is right. When we have a general election for a Parliament in the United Kingdom, it is a new parliament. When there is a general election for the Welsh assembly, it will be a new assembly. Will not this amendment cover each new assembly and not just the very first one?

Lord Dixon-Smith

My Lords, the noble Lord, Lord Elis-Thomas, has rather personalised this debate in a most unfortunate way. Nothing has been said against the question of a dual mandate and a Member being a Member of both the Welsh national assembly and a Member in the other place, or even, if he was fortunate enough—which might indeed become the case—being a Member in this place. The debate is about whether somebody in the Cabinet, with a very specific loyalty, can also serve as the head of the Welsh national assembly at the same time.

We are legislating at a particular point in time. There is only one constitution now involved. It is inevitable therefore that the context is in the context of one person. It is not personal at all. My noble friend Lord Crickhowell is correct: this is a constitutional issue and a matter that stands in its own right. There is no question of personalities being involved.

Lord Hooson

My Lords, perhaps I may briefly intervene here. From the very start of the consideration of this Bill, as I said informally to the Secretary of State, I was not in favour, after the first four years of the assembly, of any Member being a Member of the assembly and a Member of the House of Commons or the European Parliament. In principle I am against a dual mandate of Secretary of State and first secretary.

That does not deal with the problem as I see it. We are embarking on a completely new venture, a devolution of power and administration over the distribution of funds which are raised by Parliament here. It is important that the assembly should have the option of appointing as its first secretary a person, whoever he or she may be, who has had experience of administering the very powers that have been devolved to the Welsh assembly. That period will be a settling-in period.

If the noble Lord, Lord Crickhowell, had put down an amendment that after the first four years of the Welsh assembly nobody could hold a dual mandate, I would have supported it. Everybody generally is agreed that in the longer term it is undesirable, politically and constitutionally, that a person should hold both positions. I anticipate that at the end of four years the position will be very much clearer. I suspect that the Prime Minister will decide during that period whether it is politically acceptable; it depends on how things develop in the Welsh assembly. I think it will generally be thought of as constitutionally unacceptable. That does not mean to say that for the first four years, when we are establishing something entirely new, we should not have the option at least of the existing Secretary of State taking on, for a time, the responsibilities of the first secretary as well. I am not saying necessarily that will happen. It may be that the Prime Minister will not approve of it; one does not know, but the option should be there.

4 p.m.

Lord Davies of Coity

My Lords, these three amendments could perhaps be described as a "strategic retreat". Alternatively one could be complimentary and describe them as a "damage limitation exercise". However, I want to challenge the logic of the amendments because in his Motion (No. 27B) the noble Lord, Lord Crickhowell, states: That this House do not insist on their Amendment No. 27 to which the Commons have disagreed for the reason numbered 27A". The reason given by the Commons is: Because it is not appropriate for Ministers of the Crown to be disqualified from being members of the National Assembly of Wales". That reasoning, which has been accepted also by the noble Lord, Lord Roberts of Conwy, is applicable equally to these amendments because it categorically states that it is not appropriate for Ministers of the Crown to be disqualified from being members of the national assembly for Wales. In that wording, whether the period is three months, six months, nine months or four years is irrelevant.

Lord Crickhowell

My Lords, I am grateful to the noble Lord for giving way, but I should correct this point straightaway. If the noble Lord will read my amendment, Amendment No. 27C, he will see that it no longer states that that person should be disqualified from being a member of the assembly, but simply from being a member of the executive of the assembly or being assembly first secretary. That is a wholly different proposition.

Lord Davies of Coity

My Lords, I thank the noble Lord for that, but the amendment is not as important as the reasoning of the Commons. They have disagreed to the original amendment for exactly the same reason as they would disagree to the current amendments.

Having said that, I should like to take up the point about the new assembly for Wales. It will be a new democracy. That is what we want for the benefit of the Welsh people, and the assembly and the people of Wales can only benefit if, in the formative years of the development of the assembly, the first secretary is also a Minister. That is my view of the matter. I believe that the position will change within four years, as the noble Lord, Lord Hooson, said. However, we need that time because the assembly, and particularly the first secretary, will face considerable difficulties. Those difficulties may be enormous and it can only be helpful if the first secretary is also a Minister of the Crown.

Lord Roberts of Conwy

My Lords, I am sure that I shall be allowed to speak to all of these amendments now, including my own. I find intriguing, to say the least, the reason given by the other place for rejecting my noble friend's amendment. The Commons state: it is not appropriate for Ministers of the Crown to be disqualified from being members of the National Assembly for Wales". That was a substantial part of the argument that was put forward by the Parliamentary Under-Secretary, Mr. Peter Hain, when the Commons considered our amendments on 22nd July. He pleaded for the right of Ministers to stand for the assembly, as did the noble and learned Lord the Solicitor-General in this House and, indeed, the noble Lord, Lord Sewel, last night during the Committee stage of the Scotland Bill in this House. Of course, he was speaking not of the Welsh assembly, but of the Scottish parliament.

During that debate on 22nd July, the Rev. Ian Paisley pointed out: No Member of the European Parliament can hold any office in any Parliament or Assembly".—[Official Report, Commons, 22/7/98; col. 1183.] The foundation of the Rev. Paisley's comment was Article 6 of the 1976 Act concerning the election of the representatives of the European Parliament, which states explicitly: The office of representative in the European Parliament shall be incompatible with that of: —a member of the Government of a Member State". The article goes on to list other incompatibilities.

That and subsequent legislation is summed up by Erskine May as meaning—I quote from page 822: members of national governments are generally held to be ineligible to stand for the European Parliament.

Lord Elis-Thomas

My Lords, I am grateful to the noble Lord for giving way. He may be a Welsh Presbyterian, but it is hardly relevant to quote the Rev. Ian Paisley in this context because the European Parliament is an entirely different structure from an assembly structure within a member state of the European Union.

Lord Roberts of Conwy

My Lords, I am coming to precisely that point. I disagree with the noble Lord about the Rev. Ian Paisley, who participated and intervened in that debate on 22nd July.

The fact of the matter is that the Government are breaking new ground by allowing Ministers of the Crown to stand for membership of the assembly—or by not disqualifying them from doing so. As the noble Lord said, it will be argued that the European Parliament is different from the assembly—as, indeed, it is. However, I wonder whether the differences that exist between the European Parliament and the assembly justify the addition of this particular difference. I believe that that is questionable. Ministers of the Crown bring powers with them. They will certainly be a cut above the ordinary members of the assembly and they will be better placed to secure election or selection to the executive.

Lord Thomas of Gresford

My Lords, I am grateful to the noble Lord for giving way. Does he agree that the role of the Secretary of State for Wales will be dramatically different following devolution and that at this precise moment no one can foresee in just what way the powers will be curtailed or how they will be exercised? Therefore, does not the noble Lord agree that it makes sense in the logic of events that, for the first sitting of the assembly in its first period of four years, a person of experience should be at the helm?

Lord Roberts of Conwy

On the contrary, my Lords. I do not accept what the noble Lord has said. We know perfectly well what the Secretary of State will be doing. We know that according to Clause 22 he will hand over his functions to the assembly. We also know that as first secretary of the executive, under Clause 56 he will then take up those functions. The question is: how can those duties be reconciled?

The question of holding two government posts, as opposed to representative offices, is entirely different from the matter of which I was speaking earlier. We were discussing the role of the dual representative mandate. We are talking now about the dual ministerial mandate. Again, the Government appear to be breaking new ground because paragraph 106 of Questions of Procedure for Ministers 1992 states: When they take up office, Ministers should give up any other public"— I repeat the word "public"— appointment they may hold. Where it is proposed that such an appointment should be retained, the Prime Minister must be consulted". Similar words appear in the 1997 ministerial code. I believe that it was the latter point—that is, the Prime Minister's interest—that the noble and learned Lord the Solicitor-General had in mind when he asked us to consider appointments from that point of view. He said at Third Reading: If the Prime Minister takes the view that a particular person, already serving as an assembly secretary, is the best appointee also to be a Minister of the Crown, I do not see that it is our place, by a provision in this Bill, to deny the Prime Minister that choice".— [Official Report, 15/7/98; col. 328.] It was at that point that my noble friend Lord Crickhowell intervened to indicate that this was a move into very new territory. The noble and learned Lord was quite right to consider the situation from the standpoint of the assembly. He then said: If the assembly is content to have as a member of the executive committee someone who is already a Minister of the Crown, or if it is content to retain as an assembly secretary someone who is subsequently appointed as a Minister of the Crown, why should your Lordships seek to deny that by amendment to the Bill? We are aware that when there is a dual ministerial mandate there is the possibility of a conflict of loyalties.

In the course of our debate reference has been made to split-ticket voting. Here we are talking about split ministerial responsibilities and loyalties. As my noble friend pointed out in a speech earlier this afternoon, the Parliamentary Under-Secretary of State, Mr. Hain, takes a very different line from the noble and learned Lord the Solicitor-General. His is a very different point of view. He stated that it would be politically unacceptable and constitutionally undesirable to have this kind of dual ministerial mandate.

I shall return to that matter in one moment. I should like to deal with the position in which we now find ourselves, my noble friend Lord Crickhowell having proposed an amendment in lieu of the one with which the Commons have disagreed. He has proposed that a Minister of the Crown should not hold office simultaneously as a member of the assembly executive for a period exceeding 12 months from the first sitting. We have given the Government the further choice of six months or three months. Those proposals arise from the statements by the Parliamentary Under-Secretary of State in the other place on 22nd July and the general knowledge that the Secretary of State for Wales appears to be intent on seeking election to the assembly as first secretary. He has let it be known that his holding of the two posts would be temporary. That was reflected in the remarks of Mr. Hain at col. 1181 when he said: Nobody seriously argues that the same person can be Secretary of State for Wales and Assembly First Secretary in perpetuity". Perhaps he meant "permanently". It would he politically unacceptable and constitutionally undesirable".—[Official Report, Commons, 22/7/98; col. 1181] Mr. Hain has been left in no doubt about the validity of that last two-pronged sentence not only by the Conservative spokesman in the other place Dr. Liam Fox but by his own Labour supporters Julie Morgan and the right honourable Alan Williams.

Lord Davies of Coity

My Lords, can the noble Lord explain how the conflict of interest will arise? The noble Lord has said that if a Minister of the Crown is first secretary there may be a conflict of interest. However, Ministers of the Crown are allowed to sit in the Welsh assembly, albeit not as Ministers or as first secretary. In that case is there not a conflict of interest in the noble Lord's argument? Does the noble Lord believe that any possibility of a conflict of interest, which would be a disadvantage, would be outweighed by the enormous advantages that would accrue to Wales and the Welsh assembly by having within it a person of stature in its formative years? The assembly is new and we want it to succeed. Is it not better to leave it to the responsibility of the individual concerned rather than envisage the very rare possibility of a conflict of interest?

Lord Roberts of Conwy

My Lords, I hope that my tongue did not slip. I was talking about a conflict of loyalties. A Minister of the Crown belongs to the United Kingdom Government and shares in the collective responsibility of that government. He has to support the decisions taken collectively by that government. If the same Minister of the Crown is also first secretary of the assembly and executive he will have a collective responsibility to that executive and assembly. It is quite clear that there may be a situation in which a conflict of loyalties arises between the functions of the Secretary of State as a Minister of the Crown and a member of the United Kingdom Government and the functions of the first secretary of the executive of the Welsh assembly.

Having acknowledged that joint office-holding of the kind proposed was fundamentally wrong, Mr. Hain went on to say: There is a very strong case for a transitional period"— we have heard that argument this afternoon— particularly at the beginning when the Assembly is bedding down and the order transferring the functions of the Secretary of State has still to be implemented. There is a great deal of sense in having some continuity in the interests of stability and good government". [Col. 1181]. That view gained a good deal of sympathy. We all have sympathy with that view. But when the Minister was asked by Mr. Wigley, President of Plaid Cymru, whether the Government would consider a time limit on a dual ministerial mandate the answer was a flat no. It is to be hoped that the Government have had time to reflect on that blunt response and consider the wealth of alternatives that we have presented to them. If all of them are refused—the 12 months, the six months and the three months—I shall not know whether to laugh or cry or launch into the slaves' chorus from "Nabucco". The effect of that on this Bill would be the total negation of devolution in any meaningful sense. It would mean a greater concentration of power in the hands of the Secretary of State-cum-First Secretary. Where would his first loyalty lie? Would it be to the assembly and his executive or to the Prime Minister at No. 10? I believe that that would be the reverse of what was intended. We would end up by tolerating what was in effect an elected dictatorship and it would show a complete lack of trust in the judgment of the assembly.

Noble Lords on the Front Bench opposite will realise that our amendment shows a willingness to compromise, even on fundamental principles, in order to ensure a smooth transition of functions from the Secretary of State to the assembly if time alone is required. But one is bound to ask why the Secretary of State is so concerned about the transition of functions and the structure of government proposed under the Bill that he must also hold the first secretaryship. Why is it so important that the two offices should be conjoined even for a time? Are there inadequacies in the Bill? What are the difficulties that the Secretary of State anticipates? Does he anticipate a conflict of wills between himself as Secretary of State and First Secretary—as there was between himself and Mr. Russell Goodway, Leader of Cardiff County Council, about the choice of the location of the assembly? Obviously, it would be desirable for the Secretary of State and the elected first secretary to work closely and harmoniously together. But it is possible that they may not and that in the years to come there will be a clash of personalities. They may end up at loggerheads with each other.

Lord Islwyn

My Lords, is not the noble Lord forgetting about the fact that there are such things as elections? It is certainly not automatic that the present Secretary of State for Wales is going to be leader or first secretary of the new assembly.

Lord Roberts of Conwy

My Lords, the noble Lord is quite right. That is a point that I am coming to as I bring my speech to an end. Perhaps I may just make this point. The relationship between the Secretary of State and the first secretary will, we may be sure, vary considerably over time, but that is no reason for delaying the full implementation of the Bill.

There is a great deal of concern over this matter, as those who have studied proceedings in the other place will be aware. That concern extends far beyond the Opposition Benches both here and there. There is a danger, of course, that the Secretary of State may make a nonsense of devolution by over-centralising power in himself and arrogating too much power to himself. There is also the danger that he may make a fool of himself, as the noble Lord implied, by being thwarted in his ambitions by the will of the assembly and failing to be elected as first secretary. Neither of those scenarios makes for a promising start to the assembly.

Lord Williams of Mostyn

My Lords, I have never approached this question on the basis of personalities. When we discussed this at some length earlier I said that I recognised the principles behind the amendments. I said that I would give them decent regard because I honour the motive that engenders them. That is the way I wish to approach matters.

The noble Lord, Lord Roberts of Conwy, spoke about the fundamental principle. The fundamental principle for which we contend is that this is a devolution measure. That means the devolution of powers; it means the devolution of discretions, of choices or, to use the phrase that the noble Lords, Lord Hooson and Lord Thomas, used, it means the devolution of options.

The noble and learned Lord, Lord Falconer of Thoroton, and I are both retired lawyers, but we are not so long retired that we cannot recognise selective quotation when it is offered before us on a plate. What Mr. Hain said is perfectly correct and I am happy to say that I can endorse fully the comments and assurances made by Mr. Hain in another place. However, what Mr. Hain actually said—I hate to go to accuracy—was this: Nobody seriously argues that the same person can be Secretary of State for Wales and Assembly First Secretary in perpetuity"— I underline those words. It would be politically unacceptable and constitutionally undesirable".— in other words, a permanent dual mandate, in the same way as the Austro-Hungarian Empire wanted to be a permanent dual monarchy.

The important matter is this: the question was then put by Mr. Wigley to Mr. Hain: would the Government in that House consider a limited dual mandate, in effect, on the face of the Bill? Mr. Hain replied: No, we would not be willing to consider that". He developed his reasons. He said that there might be some circumstances in the future where it would be mutually beneficial to the Westminster Parliament and the assembly in Cardiff if a duality were available.

Two institutions have to agree. The assembly has to agree and Parliament here has to agree. If there were the significant prospect, either of a conflict of loyalties, as referred to by the noble Lord, Lord Roberts of Conwy, or a conflict of interests, as referred to by the noble Lord, Lord Davies of Coity, it is for the two institutions respectively to come to their conclusion.

I believe that the approach of the noble Lord, Lord Crickhowell, was intended to be flexible and helpful, and I hope to respond in exactly the same way. I ally my answer to his approach, if I may, to the questions put distinctly by the noble Lord, Lord Roberts of Conwy. He asked what would be the requirement in the earlier transitional periods. It is not a fearful prospect; it is simply that the purpose of a transitional period is to ensure that those things which ought to be done are done efficiently, appropriately and in a timely way, such as the transfer of functions, the adoption of concordats with government departments and making the necessary financial arrangements. I can say with the specific authority of the Secretary of State that I should be very surprised and disappointed if that transitional period extended even as long as 12 months. I hope that I have responded in the spirit in which the noble Lord, Lord Crickhowell, put his questions.

What we are saying is that we do not see the virtue or the value of saying that it will be three months, six months or 12 months. I do not say this tendentiously, but the original amendment, which was carried against the advice from this side of the House, was, as the noble Lord, Lord Davies of Coity, pointed out, a disqualification against the Minister being even a member of the assembly. That has been abandoned. It is possible, and the noble Lord, Lord Crickhowell, very fairly said this, that in the future, if there were transfers of new functions—he gave the example of broadcasting functions—there might be occasions where a duality might be of value to the Westminster Parliament and it might be of value to the Welsh assembly. It works the other way round, of course. There may well be occasions when there are people of outstanding quality, not only holding the function of first secretary—this amendment is wider than that—but of any secretary in the Welsh assembly, and his or her talents might well be wanted in Westminster. Why should we disable the Prime Minister of the day from looking for that source of talent if it would be in the national interest, I readily concede, for a short period of time?

We have discussed over a long period whether there should be a possible duality between being a member of the assembly and any Minister of the Crown. The amendment was not limited to first secretary or Secretary of State for Wales. That has been abandoned or not pursued. What we now have is this position. There is a general recognition, and I do not dissent from it or water it down in the slightest way, that it would not be politically acceptable or constitutionally appropriate for the duality to continue for ever. I do not believe that Westminster would stand for it, and I am quite certain that Cardiff would not stand for it. That, as the noble Lord, Lord Islwyn, said is what elections are for, to correct, if there were any, a tendency towards the elected dictatorship which the noble Lord, Lord Roberts of Conwy, spoke of.

What we are saying is this: if we are approaching this voyage on the basis of trust in devolution we must let the assembly come to its own conclusion. I believe that the questions which have been raised and the amendments which have been put have drawn out sufficient indications, assurances and comments to satisfy the reasonable requirements of those who had conscientious doubts about the scheme of the Bill. The Bill is about devolution. It is about a devolution of options. There might well be a period in five years' time when a short duality, subject to the mandate of both institutions, might well be appropriate. Why should we not trust the assembly to make that choice? In the end, that is the fundamental principle for which I contend. I do not believe that there is a fundamental principle which can be identified in any of the amendments because the internal logical inconsistency cannot be explained away.

4.30 p.m.

Lord Hughes

My Lords, perhaps I may extend to my noble friend dual congratulations. First, I join all other Members of the House in congratulating him on his new appointment. Secondly, although lawyers are not usually accused of brevity, I must congratulate my noble friend on managing to reply to 49 minutes of argument in seven minutes.

Lord Crickhowell

My Lords, in moving the Motion, I paid tribute to the Minister, and repeated a tribute that I had paid previously to the right honourable Secretary of State for Wales which I genuinely meant. I take the opportunity of paying it again. I admire the way in which he has carried through the Bill. To take up a point made earlier in the debate, in pressing the amendment nothing was addressed personally against the Secretary of State.

Having paid my tribute to the Minister, perhaps I may say at once that he has responded in the helpful way I hoped he would. I began by giving a text to the House. I referred to the remark by Mr. Peter Hain in another place: Nobody seriously argues that the same person can be the Secretary of State for Wales and Assembly First Secretary in perpetuity. It would be politically unacceptable and constitutionally undesirable". I cited his argument for a transitional period.

As I observed earlier, it was perhaps a pity that some of those points were not made at an earlier stage by government Ministers. However, we had a clear statement in another place from Mr. Hain and I am extremely pleased that the Minister has gone out of his way to endorse fully and comprehensively the comments of Mr. Hain. That means that both Houses of Parliament have now had the assurances that we have been seeking.

I still feel a slight sense of discomfort that something that is constitutionally undesirable might occur as a consequence of the Bill, but because we all want the Bill to be the basis for a successful assembly we should now be prepared to accept the assurances given. The Minister was particularly helpful in what he said. He went perhaps further than Mr. Hain on this occasion. Mr. Hain was almost as warm in his praise for the Secretary of State as I was, and he brought tears to the eyes of those in another place when he spelt out the sacrifices to be made. However, he did not spell out how long those sacrifices might be postponed.

We have now had a clear statement which has been most helpful. We have been told that certain things need to be done. I refer to the transfer of functions; the concordats that need to be put in place; and the financial arrangements to be made. The Minister said that when he spoke of those matters he was speaking with the authority of the Secretary of State, and that he would be surprised and disappointed if the period was as long as the 12 months that I put as an outer limit in my amendment. In those circumstances, it is right to accept those undertakings and the statement that the Government have now made about their position. I express my gratitude for the fact that they have done so clearly in this House—even more clearly than in another place. On that basis, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

Lord Roberts of Conwy

My Lords, in view of the assurances given by the Minister in reply to our earlier debate, I shall not move the amendments in my name.

[Amendments Nos. 27E and 27G not moved.]

Lord Williams of Mostyn

My Lords, accordingly, I beg to move that the House do not insist on their Amendment No. 27, to which the Commons have disagreed for the reason numbered 27A.

Perhaps I may rectify a gross canard—in fact I shall try to shoot it—which was unloosed earlier by the noble Lord, Lord Elis-Thomas. Should the noble Lord, Lord Crickhowell, and the noble Lord, Lord Roberts of Conwy, be attending and joining us this evening, they are not intruding; they are there as the result of genuinely well-meant invitation.

Moved, That this House do not insist on their Amendment No. 27, to which the Commons have disagreed for the reason numbered 27A.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.