SCOTLAND AND WALES BILL (Hansard, 26 January 1977)

Mr. Page
The new Assembly constituencies resulted from a recommendation by the Boundary Commission in accordance with Schedule 1 of the Bill. Schedule 1 appears on page 69 of the Bill, but when one looks to see whether Schedule 1, Part 1—which is the part that is relevant—specifically mentions the making of any order, one is left in some doubt.
Under paragraph 2, Schedule 1, Part I, we are referred to Sections 2(4) and 2(5) and 3 of the House of Commons Redistribution of Seats at 1949. The sections to which we are referred are described in parentheses as dealing with notices of the proposed Boundary Commission report and implementation of the recommendations of that report. There is no mention there of the making of a draft order and therefore one is left in doubt as to what part of the Bill deals with the making of that draft order.
Having been referred in Schedule 1 to these sections of the 1949 Act, one has to turn to that Act to find out what it does and whether we shall really have a chance to debate a draft order in the House. Section 2(4) of the Act deals with the notices by the Boundary Commission that they intend to make a report. Subsection (5), to which we are referred, says: As soon as may he after a Boundary Commission have submitted a report to the Secretary of State under this Act he shall lay the report before Parliament together … with the draft of an Order in Council for giving effect whether with or without modifications, to the recommendations contained in the report. That is as far as we have got. The Secretary of State puts the report before Parliament with a draft of the order. We can then turn to Section 3 of the 1949 Act which deals with reports of the Boundary Commission concerning constituencies of Members of Parliament. It is a 1949 Act and, as such, says that the Boundary Commission shall recommend whether the new constituency shall be a county constituency or a borough constituency. That sounds a little inappropriate. It 1629 deals with the sort of thing which an order may contain and says: If any such draft is approved by resolution of each House of Parliament, the Secretary of State shall submit it to His Majesty in Council. There is no provision that an order cannot be made unless a draft has been laid. The section is peculiarly phrased, and the proviso in subsection (6) says: Provided that the coming into force of any such Order shall not affect any parliamentary election until a proclamation is issued by His Majesty summoning a new Parliament, or affect the constitution of the House of Commons until the dissolution of the Parliament then in being. What does this have to do with an order that creates new constituencies in Scotland and Wales for the new Assemblies? Does it really mean that such an order does not come into effect until the dissolution of the Westminster Parliament and the summoning of a new Parliament?
Clause 2(3) of the Bill refers us to Schedule 1 of the Bill which, in turn, says that we must apply Section 2 of the 1949 Act. That section says that these orders cannot take effect until the dissolution of this Parliament. That seems nonsensical. There are anomalies in the way in which the Bill is drafted with reference to those orders. Does an order under Schedule 1 of the Bill have to comply entirely with the provisions of the 1949 Act—which is not an appropriate measure for this type of Boundary Commission recommendation and the orders that should follow from it? It deals with constituencies of the Westminster Parliament. I should have preferred to see a clause dealing with procedures after the laying of an order following a recommendation from the Boundary Commission relating to the new Assemblies.
I do not believe that I am being over-suspicious in examing the matter in this way, because we have had some difficulty in the application of the 1949 Act in the past. I remember a Labour Government who failed to make an order under the 1949 Act following a recommendation of the Boundary Commission. When they were told that they were obliged to make the order, they laid a draft before the House and put on the Whips to defeat it. Consequently, I am a little suspicious of using the 1949 Act in order to create constituencies for the new Assemblies. I would rather see a new procedure spelled out. It has not been spelled out fully 1630 in the amendment, but I tabled it more to probe the position than to have it accepted word for word. It would need further procedures added.

§ Mr. Dalyell
Ever since I was appointed PPS to Mr. Dick Crossman I have listened to many hours of argument by the right hon. Member for Crosby (Mr. Page) and I have had a sneaking admiration for his capacity—unrivalled in this House—to ferret out orders, schedules and the like which are at fault and to be proved right at the end of the day. His track record in this sort of matter is good. I do not pretend to be able to cast a judgment on the issue that we are debating, but I should like to ask my hon. Friend the Minister of State a direct question. Who will be in charge of the Boundary Commission? Will it be the Assembly or will it be, ultimately, this House? This, it seems to me, is one of the matters which arise out of what we are discussing.
I have a high regard for the Minister of State's capacity as a lawyer, but I must return to the point that the hon. Member for Aylesbury (Mr. Raison) and I have raised. An increasing number of matters coming before us are the business of a Law Officer. No less than the Solicitor-General repeatedly had to come to the Dispatch Box during the passage of the European Communities Act. I do not know what legal advice is readily available to the Minister of State, but either one of the English Law Officers or the Lord Advocate, with the help of their Departments, should be available on such occasions to give an authoritative opinion.
As I have understood it, the Law Officer's opinion is often somewhat different from the opinion of Ministers, even if the Minister concerned is an able lawyer.

§ Mr. Eldon Griffiths
My right hon. Friend the Member for Crosby (Mr. Page), alongside whom I have served on numerous Bills, has clearly shown that to apply the precise language of the 1949 Act in this matter is at best clumsy and at worst could be wholly inappropriate. This is a matter of some importance, because whatever our views of the Bill it is important that if it becomes an Act 1631 it should work well and should be right from the start in its technicalities.
The 1949 Act is to apply, but I understand that there is to be a supplementary report by the Boundary Commission to deal with the Scottish Assembly constituencies and that that supplementary report will be attached to its recommendations on parliamentary seats. If the procedures outlined by my right hon. Friend are to be applied it will be, to put it mildly, a prolonged and complex procedure. It is important that we have a precise legal opinion on this matter to make certain that the procedure will work properly.
There are two other reasons why I am anxious to be assured that an order will be laid before the House under the affirmative procedure.
Those reasons are, first, that when the Boundary Commission is determining constituency limits or parameters it has to have regard to a number of criteria. I refer to two of them. It has to consider the local government areas, which is conventional. That is what all Boundary Commissions seek to do. But in the case of both Scotland and Wales there is a very strong implication, if not a statement, that one of the tasks of the new Assemblies—certainly in Wales—will be to review the local government areas.
I do not know whether I am being unfair to the Secretary of State for Wales, but I have a firm impression that he and others are not satisfied with the local government boundaries in Wales. I believe that he, in common with many Members of the new Welsh Assembly, would regard it as proper that they should reorganise those boundaries at an early stage. That has been strongly implied in many things that have been said.

§ The Secretary of State for Wales (Mr. John Morris)
I have said not that the Assembly should revise the boundaries but that it should reconsider the whole structure of local government and make proposals.

§ Mr. Eldon Griffiths
The right hon. and learned Gentleman has confirmed in broader terms what I said. No one knows better than my right hon. Friend the Member for Crosby and I that we cannot consider the structure of local government 1632 without looking at boundaries and powers. Hon. Members will recall that when we were dealing with local government reorganisation it was impossible to move in the Chamber or in the Tea Room without hearing the opinions of hon. Members about the precise definition of their local government areas because of the inevitable spillover effect on parliamentary boundaries. The Secretary of State's comments have helped me to make my point, which is that it will rapidly become the business of the Welsh Assembly for certain, and the Scottish Assembly in all likelihood, to start examining the structure and, therefore, the powers and boundaries of local government units. It follows, as the schedule sets out, that the new Boundary Commissions must have regard to the boundaries of local government areas. I understand that this is stated in paragraph 8 of the schedule.
Many hon. Members will want to pay very close attention to changes in local government boundaries because, in the long term, their own constituencies will be affected. We are all interested in that and we shall all want to discuss it. I support the view of my right hon. Friend the Member for Crosby that it is imperative that Orders in Council made to give effect to the recommendations of the Boundary Commissions for Scotland and Wales ought to be dealt with in this House and ought to be subject to the affirmative procedure, so that there can be proper debate.
Secondly, Part II of the schedule requires that the Boundary Commissions, in making their supplementary reports in respect of the Scottish and Welsh Assembly areas, will have to work out this complicated mathematical equation that where the electorate in an area is more than 125 per cent. of the average—or the electoral quota—that area will get three Assembly Members, but if it has less than 125 per cent. of the average, the area will get only two. This is a complicated matter, but the Minister has already taken us through the complexities, so there is no need for me to elaborate.
This system can throw up some extraordinary anomalies. At the margins, we may find that an area which has 125 per cent. of the average electorate will have three Assemblymen but that an area 1633 next door, which perhaps has only 120 per cent. of the average, has two Assemblymen. Many people will regard this as unfair. I think it is common ground that our constituency boundaries are already unfair, in the sense that many of them include far more people than do others. My own constituency has probably four times as many electors as the constituencies of many Labour Members who represent cities such as Glasgow, London, Liverpool or Birmingham. Many constituencies in rural or over-spill areas, at least in England, contain many more electors. This is an anomaly that ought to be put right.
The point I wish to emphasise is that here we have a clean slate. We are starting from scratch. We ought not to start by building in unfairnesses in this way. If we have the opportunity to make a fresh start, we ought to eliminate these unfairnesses. We ought to start off with constituencies of approximately the same size, but the proposed formula will not achieve that. Therefore, as my right hon. Friend the Member for Crosby suggested, it is of the greatest importance that Orders in Council should be brought before the House and should be subject to the affirmative procedure, so that we may have full discussion on this matter.
I give notice now that if the Government bring before the House Orders in Council that set up Assembly constituencies in Scotland and Wales that create wild unfairnesses between one area and another, they must expect passionate debate in the House, partly because of the effect on the constituencies of hon. Members and partly because of the inherent injustices, and it may well be that from time to time those Orders in Council will not be approved.
My final point arises from our experience in this matter. The Prime Minister was in charge of the Home Department in 1968—I think it was—when the Boundary Commission's proposals were made, and it became his duty to lay them before the House of Commons. The right hon. Gentleman hovered for quite a long time before doing that. When he was finally prevailed upon to do his duty and lay those proposals before the House—I do not want to use emotive language—he was persuaded, by what he no doubt considered to be the best interests of the Labour Party, not to implement the 1634 Boundary Commission's recommendations.
I shall never forget the scenes in the House when Labour Members were whipped through the Lobbies against the very order that their own Secretary of State was required to make, and it was at his request that they did that. It was not a creditable part of the Labour Party's political history. I do not want to push too hard on this point, because I do not wish to exicite hon. Gentlemen. However, I hope that the Minister will recognise that, against that background, there is a great deal of sensitivity on this issue and that once bitten is twice shy.

§ Mr. Brittan
Does my hon. Friend agree that at that time there was a great deal of concern that the Government were not going to lay the order at all? It was only when there were widespread suggestions that if they failed to do so there would be action in the courts for a writ of mandamus that they took any action at all.

§ Mr. Griffiths
My hon. Friend is right. I remember that affair with the greatest clarity. I was anxious not to upset the Committee more than necessary by going into it as hard as I might have done. I need say no more on that point.
There is great sensitivity because in the past the recommendations of the Boundary Commission were not proceeded with until there was a threat of legal action. We then had that discreditable experience of Labour Members being whipped through the Lobbies to reject the very order that their own Secretary of State had laid before the House. That was for party political reasons. I have said enough on that point.
If the Minister is satisfied that the procedure within the schedule and within Clause 2 will enable the House to look at any supplementary reports to the Boundary Commission's recommendations which affect Assembly seats, there will be no need to press the amendment. But I believe that he needs to be satisfied that it is legally correct and that when the Boundary Commission arrives at conclusions that touch on local government and on the whole complex question of local ties, it will report in such a fashion that the House will be able to debate any recommendations that it makes. This 1635 is a matter of the greatest importance. I hope that the Minister accepts the sincerity with which I have put it forward.

§ Mr. Tebbit
I think that we—I include the Minister and the Government—owe a debt of gratitude to my right hon. Friend the Member for Crosby (Mr. Page) for raising this matter. After all, the Government have not been the luckiest of litigants lately. Unclear legislation often leads to litigation. Indeed, the Government have not been particularly successful legislators in the technical sense. For example, the Aircraft and Shipbuilding Industries Act, the Agriculture (Miscellaneous Provisions) Act, the Child Benefit Act and other matters which are sub judice have given rise to considerable confusion and a degree of embarrassment to the Government because the law has been less distinct than it might have been.
I suppose that is a kind way of saying that it has been possible on numerous occasions recently for citizens to dispute the meaning of legislation which has been enacted by the House of Commons. That seems to me to suggest that we should all agree that there is a need for greater clarity in the law.
My right hon. Friend the Member for Crosby took us through the Acts—the 1949 Act in particular, and the parts of it that are listed in Schedule 1 as having relevant to Clause 2. He made it perfectly plain that it might require a lawyer's brain to be really sure at present just exactly what it is that the Bill is intended to say. In these matters we should not run the risk of making our legislation so complicated that it needs a lawyer to tell us what it means, because, as we all know, if one hires one lawyer to say what an Act means, it is generally possible to hire another lawyer who will say that it means something else.
Once that is done, there is no shortage of people—some might call them busybodies, some might call them patriots—who would leap to the courts, particularly if they did not like this measure, if it becomes an Act, seeing a chance of a fault in the Act, or confusion, or that someone had misapplied a very complicated piece of legislation. I can 1636 imagine someone or other—perhaps a Scottish Association for Freedom or a Welsh Association for Freedom—coming forward—

§ Mr. John Morris
We do not have one.

§ Mr. Tebbit
I deliberately did not use the name of an association that exists at present; I invented one, because I am sure that such an association would very rapidly be invented just for this sort of occasion. It would no doubt find that there were people who were opposed to the whole idea of devolution and who would be able to raise money, hire lawyers, go into court and take us, in the way in which my right hon. Friend the Member for Crosby did, through the 1949 Act—but, being professional lawyers, they would take us through it at much greater length. We have seen recently just how long a very distinguished lawyer can be in discussing what appeared to be at first a fairly straightforward matter of law that he thought that everyone understood. We could go on in that sort of way.
Therefore, I hope that when the Minister of State replies he will allow for the fact that a number of us are not lawyers and yet we shall be taking collective responsibility for this Bill if it ever becomes an Act. If we do not understand it, how shall we be able, with straight faces, to tell people what it means? I hope that the Minister will be able to explain it in words that I understand.

§ Mr. John Smith
Very difficult.

§ Mr. Tebbit
I give the Minister this warning. If he cannot take me through the 1949 Act in a way that leads me to understand it, I may have to return to this point at much greater length, perhaps seeking the guidance of my right hon. Friend the Member for Crosby, if he should catch the eye of the Chair again, until we are all absolutely clear exactly how the Act applies to the Bill.

§ Mr. John Smith
There was one point in the speech of the hon. Member for Chingford (Mr. Tebbit) about which I must sound a small note of dissent. I refer to his very unelevated view of lawyers. I do not think it fair to say that one can hire a lawyer to say one thing and hire another lawyer to say another thing.

§ Mr. Tebbit
Of course one can do that.

§ Mr. Smith
I have sufficient pride in my profession to think that that must be a very unlikely outcome. However, I leave the hon. Member for Cleveland and Whitby (Mr. Brittan) to deal with those in his own party who need some instruction about the ethics of the legal profession.

§ Mr. Tebbit
I am sorry, but here we go again, already. It is my understanding that when a man is brought to court or is accused of an offence, it is very rare not to find a lawyer on each side. Therefore, it is obvious, to me at any rate, that one can usually find a lawyer to say one thing and a lawyer to say another. That is what they are there for.

§ Mr. Smith
The hon. Member for Chingford displays too visibly not only his lack of knowledge in these matters but some of his political technique. He asks me to take him through the Act. He says that, whomever else I might have to persuade, I shall specifically have to persuade him. That might be a challenge that I find too great, but I shall do my best to explain the matter.
The right hon. Member for Crosby (Mr. Page) raised an important point and I shall try to meet his argument directly. The hon. Member for Bury St. Edmunds (Mr. Griffiths) raised a number of matters about the way in which the Boundary Commission will operate. He expressed his fears, and we shall take account of them. We must all learn from the experience of whatever Administration are in power and whatever Act of Parliament an Administration is implementing.
It is right to say that there are difficulties when a percentage factor is involved. One might be slightly over in one instance and slightly under in another. It must be the experience of all of us that it is terribly hard to do perfect justice in respect of constituency boundaries and local government boundaries. We have tried to be fair.
With respect to the hon. Member for Bury St. Edmunds, I think that he was speaking, in a sense, to a different amendment. He was putting forward a solution 1638 to a different problem. The main burden of the debate was put before the Committee by the right hon. Member for Crosby, who is the living embodiment of Parliament keeping a careful watch on the Executive and studying all its moves and proposals.
As the right hon. Gentleman said, the Bill seeks by shorthand, as it were, to import the provisions of the House of Commons (Redistribution of Seats) Act 1949 to apply in the circumstances of the Bill. He carefully set out the provisions. Schedule 1(2) to the Bill states that Section 3 of the 1949 Act shall apply in relation to the reports of the Scottish and Welsh Boundary Commissions specifying Assembly constituencies. The right hon. Gentleman questioned whether the proviso to Section 3(6) applied and asked what its effect would be if it were applicable. It is my understanding that the proviso to Section 3(6) applies solely to parliamentary elections and would have no application in this instance. I am willing to check the matter carefully with parliamentary counsel, but that is my understanding.
I believe that the Bill meets the essential requirement that the hon. Member for Bury St. Edmunds asked about—namely, that the recommendations should be laid before Parliament and approved by resolution of the House before being put into effect. My understanding is that the Bill covers that situation.
I have tried to answer the precise point that the right hon. Member for Crosby raised but I undertake to check it carefully to ensure that my understanding is correct. If it is in any way incorrect and if the provision in the Bill does not meet the reasonable requirement that Members have asked for—namely, that resolutions should be brought before the House and approved by the House—I shall take remedial action as soon as I can.

§ Mr. Dalyell
I have the greatest respect for the professional competence of my hon. Friend, which is considerable, but I repeat what I have said previously about the presence of the Law Officers. There is a difference between a ministerial answer and a Law Officer's verdict.

§ Mr. Smith
I do not want to quarrel with my hon. Friend at this time of night in view of the friendly comments he has 1639 been making throughout the day. I must not damage the slightly unusual mutual appreciation that exists between my hon. Friend and me. However, I think he would admit to pursuing a campaign throughout our consideration of the Bill that we should have a Law Officer present. We have heard about the presence of a Law Officer today and we have heard it on every day of our consideration of the Bill in Committee. I confidently predict that we shall hear the demand for the presence of a Law Officer throughout the Committee proceedings.
I understand that my hon. Friend is in correspondence with my right hon. and learned Friend the Lord Advocate on another matter that he has raised. He should not be too much in awe of and show too much deference to lawyers and Law Officers. Intelligent people such as my hon. Friend are capable of coming to an understanding of what an Act of Parliament means. If we take his argument too far, no one other than a Law Officer will be able to say anything meaningful about the Bill. I refuse to accept, even though I was a lawyer, that view of Members of Parliament. Hon. Members are very intelligent and they can understand matters without the help of Law Officers.

§ Mr. Eldon Griffiths
I thank the Minister for his very reasonable reply. I am grateful to him on two counts: first, for saying that he will consider this matter and assure himself that all is well, and, secondly, for making on behalf of many of us a mini-declaration of independence from lawyers in forming judgments.
When the Minister considers this matter again, will he take in one point of substance? I recognise that it is convenient to parliamentary draftsmen to be able to refer to precedent, in this case the 1949 Act. Much of our legislation is done by reference. However, it is not always wise to put old wine in new bottles. Sometimes when we start from scratch it is appropriate to make new rules to fit new circumstances. I am not sure that the parliamentary draftsmen have been wise to rely wholly on the 1949 Act and apply it mutatis mutandis to this situation.
We are confronted with a clean slate. We can write on it more or less what we 1640 want. Surely it would be more sensible to start with a much more equitable basis in the Assemblies, with a relationship of population to representation, than we have in this Parliament. It is well known that much of the debate about proportional representation and changing the constitution reflects in part the feeling that our present constituencies do not accurately reflect the contemporary distribution of population. There are many anomalies and inequities, and some injustices.
It is proposed basically to import that unfair system into the new one we are creating. I should have thought that, to say the least, we are losing an opportunity. We can write on this clean slate what we wish to write. In fact, what we are writing on it by virtue of this clause and the schedule is the old pattern, which is demonstrably unfair.
When the Minister, who has been very civilised and reasonable, considers the legal point, will he, for the benefit of the Committee and of the Assemblies, see whether he can find a way of getting the constituencies of the Assemblies started on a fairer basis than we shall have if we import the old system into the new one?

§ Mr. Tebbit
The Minister will not be surprised when I say that he has not convinced me. It is not merely a question of his not having a Law Officer here; he does not seem to have a copy of the 1949 Act here. It might be useful to have it.

§ Mr. John Smith
Has the hon. Gentleman a copy here?

§ Mr. Tebbit
We are discussing the Minister's legislation. It is not my job to explain it. If an hon. Member asks a question or two, it is incumbent on the Minister to ensure that he has the relevant documents with which to answer them.
The Minister has said that he will look carefully at the 1949 Act—[Interruption.] I do not want unduly to disturb a private conversation, but it would be better if the Minister listened to what I was saying. He says that he will read—[Interruption.] I do not know whether the Minister is cleverer than I think he is and can talk and listen to a colleague and listen to the debate.
1641 I come back to the point. I understood the Minister to say that he would examine Section 3 of the 1949 Act and come to a conclusion about how it applied. [Interruption.] It is tedious if we have to suffer closure motions when debates have much more run in them and also constant interruptions from the Government's Deputy Chief Whip.
I understood the Minister to say that he would tell us on another occasion whether he was satisfied that the Act meant what he thought it meant. When he has done that and is clear in his mind about how it affects Schedule 1, I suggest that he should write out his conclusions on a sheet of notepaper, hand it to the parliamentary draftsmen and ask them to incorporate it in Schedule 1, so that in future we shall be able to see written down what the Boundary Commission has to do and how the procedure works, without having to go back to other Acts which we agree apply only partially.
It will be a long time before we get to the schedules. I hope that the Minister will take the hint, get this straightened out and re-legislate. I do not accept, as my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) said, that people feel that the procedures operated for parliamentary constituencies are unfair—

§ Mr. Eldon Griffiths
My hon. Friend is not right. I was not suggesting that the procedures of the Boundary Commission were unfair. On the contrary, I referred to the Boundary Commission as one of the organs of the country whose integrity and competence are not in dispute. The unfairness I alluded to was that there are many constituencies with 60,000, 70,000, 80,000 or 90,000 electors and others with 25,000, 35,000 or 40,000 electors. The opportunity exists in the setting up of the Scottish and Welsh Assemblies to bring equity and fairness into the numbers.

§ Mr. Tebbit
Perhaps my hon. Friend and I might discuss that outside the Chamber. The Minister is getting impatient. The Boundary Commission at the beginning set out to achieve that equity.
I hope that the Minister will explain on half of a sheet of notepaper exactly how the procedures will operate, so that when we consider Schedule 1 we might be 1642 able to avoid going through the arguments again because we still do not understand what the Minister wants to do in this legislation.

§ Mr. Graham Page
I thank the Minister for his assurance that he will look again at this matter. Normally I would ask him to be good enough to let those of us who have taken part in the debate know if he is unable to do anything about it in good time before Report. My hon. Friend the Member for Chingford (Mr. Tebbit) said that it will be some time before we get to Schedule 1 where the amendments can be made. I therefore ask the Minister, if he can do something about it, to table amendments to Schedule 1. If he finds that he cannot, will he let those of us who have taken part in the debate know in good time before we reach Schedule 1?

§ Mr. Francis Pym (Cambridgeshire)
Immediately after Clause 2, which we are now considering, we shall come to Schedule 1, so the length of time available is not so great.

§ Mr. Page
I am grateful to my right hon. Friend for putting me right. I did not look properly at the resolution which sets out the procedure. If the Minister cannot do anything, we shall be grateful if he will let us know before Report so that we may put down a further amendment. But I repeat my gratitude to the hon. Gentleman. I beg to ask leave to withdraw the amendment.

§ Mr. Brittan
I beg to move Amendment No. 88, in page 2, leave out line 5.
The words to be left out are simply the provision that the Welsh Assembly shall be a body corporate. This is a probing amendment. Therefore, I cannot tell the Committee whether I am doing a favour or a disservice to Wales in proposing it. It is an inquiry which is of a technical legal kind but raises substantial issues concerning the contrast between the executive operation of the Scottish Assembly and of the Welsh Assembly. or the Scottish Assembly there are to be expressly an Executive, a Chief Executive and other Members. The Welsh Assembly has a committee structure and is of a different kind. We are trying to see 1643 whether the fact that the Welsh Assembly is described as a body corporate whereas the Scottish Assembly is not relates to this distinction or to other matters as well or instead.
The matter can be of some importance. The problem whether public bodies should be created as bodies corporate arises in much legislation. I have an interest of some standing in the matter, because when the House was considering in Committee the Employment Protection Bill one question to be decided was whether the Advisory, Conciliation and Arbitration Service should be a body corporate. I shall not weary the Committee with the details of that discussion, which necessitated investigation of a whole range of other public bodies set up under different Acts and seeing which of them were bodies corporate.
In that somewhat tedious exercise we found that there was no clear, rational distinction between the bodies described to be bodies corporate and those not so described. As a result of that investigation, the parliamentary draftsmen went into the matter and the Minister concerned gave assurances during our later consideration of the Bill that a consistent practice would be followed in future legislation setting up public bodies.
It may not be a world-shaking matter, but it is of some benefit generally if there is consistency. Is the assurance given during the Committee stage of the Employment Protection Bill, together with the principles which presumably were subsequently enunciated by the parliamentary draftsmen, reflected in the decision to make the Welsh Assembly a body corporate while the Scottish Assembly is not? The matter is important for the law, though I do not think it would be right to say that the right to sue or be sued is in itself dependent on the body being a body corporate.
The answer may be that the Scottish Assembly, which is not a body corporate, can be sued in a different manner and that the individual members of the Scottish Executive may be sued rather than any public body as a whole. But the Committee would benefit from an explanation of the position of the Welsh Assembly and whether the position is the same in the bringing of actions.

§ Mr. Eldon Griffiths
Is my hon. Friend suggesting that, for example, in the areas where this House devolved real power to the Welsh Assembly it could be sued for what it did in those areas? That is an extraordinary constitutional proposition.

Mr. Britton
I think that the answer to that is "No". Normally one could not sue the Welsh Assembly because one did not like what it had done or because it had behaved unlawfully. One assumes that in that sense it would have sovereign immunity. On the other hand, if the Assembly happened to have for its domestic use a van which knocked someone over, that person would have to be able to sue someone. The question is, whom would he sue? I think that in the case of the Welsh Assembly he would sue the Assembly itself. But I do not know whom one would sue if one had a similar accident in Edinburgh. I know from my friends in Edinburgh that whomever one sued the damages one would get would probably be substantially less than in Cardiff.

§ Mr. John Smith
That is why we need devolution.

§ Mr. Brittan
For once, a sedentary interruption from the Minister is helpful.
There will not be much time for Scottish legislation in the House as things stand, but I am sure that if the Minister sought to introduce legislation to alter the quantum of damages in personal injury actions in Scotland there are few on this side—I hope I am not speaking out of turn—who would obstruct it. However, one would obviously want to look at the details before making any firm commitment.
There is a serious point about the nature of the Assembly and its rights to sue and be sued. The same point relates to the ownership of property. Of course, are not so legally naive or illiterate as to think that only bodies corporate have such rights, but again the question of in whom property is vested is important. I am sure that the Secretary of State will have little difficulty in dealing with the point, but we shall certainly want a clear answer if we are not to join in the chorus led by the hon. Member for West Lothian (Mr. Dalyell), who calls for expert legal advice beyond the bounds of the present 1645 occupants of the Government Front Bench.
If the Welsh Assembly is a body corporate, property can be vested in it direct, whereas the Scottish Assembly will have no such right and its position is less clear. I do not know whether the members of the Executive would hold the property, but if it was the property of the Assembly as such it would be a strange constitutional doctrine for the members of an Executive to hold property, as it were, on trust for a legislature. I do not know the answer to that, but I am sure that the Secretary of State will be able to deal with that as well.

§ Mr. Graham Page
I am not so sure.

§ Mr. Brittan
I am sorry to hear that. I hope that for once the smallest of wedges may be driven between my right hon. Friend and myself when the Secretary of State shows that my optimism is better founded than my right hon. Friend's pessimism.

§ Mr. Graham Page
It is based on long experience.

§ Mr. Brittan
I am happy to rely on my short experience in these matters and to be optimistic about the outcome.
There are more serious points, from the constitutional point of view, about proceedings of the Scottish and Welsh Assemblies. There are implications in the fact that the Welsh Assembly is to be a body corporate and the Scottish Assembly is not. If one looks at Clause 21, one finds these words: (1) There shall be a Scottish Executive consisting of the Chief Executive and other members. (2) The members of the Scottish Executive shall exercise on behalf of Her Majesty such of her prerogative and other executive powers exercisable in or as regards Scotland as relate to devolved matters. There is a clear creation of a Scottish Executive without any description of its legal status.
When one turns to Wales, one finds a more complex situation: The Welsh Assembly shall exercise on behalf of Her Majesty such of her prerogative and other executive powers exercisable in or as regards Wales as relate to devolved matters. In Clause 36 one finds this provision: The Welsh Assembly may appoint such officers and servants as the Assembly may think 1646 appropriate for the exercise by the Assembly, any committee of the Assembly or any subcommittee or leader of such a committee of the powers exercisable by them respectively. It appears that the Scottish Assembly is to be an Executive, and no one minds saying so. However, the Welsh Assembly is an Executive but somehow it is made to look as if it is not quite that. It is not so clear-cut in the same way.
I realise that there is meant to be a distinction between the operation of the committee system in Wales and the individual ministerial system in Scotland. I understand that. In relation to the question of whether the two Assemblies are a body corporate, however, the two positions require a little more explanation. For example, what happens at a time when the Assembly is not sitting?
Presumably the Scottish Executive continues to exist during recesses, and, indeed, even when there is an interregnum between two Assemblies—such as during an election period. As far as Wales is concerned, I do not know whether Clause 36 is sufficient to enable all the Executive's powers to be exercised during the course of a recess. This is something on which the Secretary of State plainly must give us guidance. It is obviously a matter of importance. The practical business of government must go on. That business includes making orders during an interregnum.
One expects that in the ordinary course of events the Scottish Executive will be like the United Kingdom Government: it will continue to exist during an election period. But what is the position with the Welsh Assembly? One cannot have an Assembly which continues to exist in an election period. That is a contradiction in terms. Yet the Welsh Assembly, claiming to be a body corporate—whether proudly or not we shall see—ceases to exist in an election period, but at the same time it has substantial executive powers to be exercised by the Assembly itself.
11.0 p.m.
No number of committee systems will avoid the problem of what happens when the Welsh Assembly has been dissolved for the purpose of an election. I wondered whether the inclusion of subsection (4), making the Welsh Assembly a body corporate, provided some kind of clue to the answer to the problem. We shall 1647 want an answer to the question: what happens on the exercise of executive powers in Wales during the interregnum between elections?
One possibility that springs to mind as a source of filling what would otherwise be an uncomfortable vacuum is that the Secretary of State might leap into the breach. The right hon. and learned Gentleman chortles, from which I take it that he has a certain reluctance to take on such a rôle, and it would be inconsistent with the whole concept of devolution in Wales. If that is intended, there would have to be specific statutory provisions—provisions for which I have searched but have not found in the Bill.
I hope I have satisfied the Committee that in scrutinising the apparently innocent-sounding provision that the Welsh Assembly shall be a body corporate one finds a whole Pandora's box of problems. There is little doubt that the reason why one is unable to work out answers oneself is that one perhaps has not the time or ability to do so. However, the Secretary of State, with his battery of advisers, will be able at the drop of a hat to provide answers to these conundrums relating to ownership of property, suing, the position of the Scottish Assembly in relation to the Welsh Assembly, the comparative powers of the Assemblies, the situation during recesses and the position in the periods between elections. I look forward to hearing answers to these questions. However, I am not saying that in the absence of such answers I shall advise my colleagues to exclude this provision. We are in the hands of the Secretary of State. I resume my seat confident that my optimism will be confirmed and that—for once—I shall triumph over the pessimism of my right hon. Friend.

§ Mr. John Morris
I was glad to have the hon. Gentleman's assurance that this was a probing amendment. In the course of that probing the hon. Gentleman asked a series of questions. If he were seeking to delete this provision I would have been worried by his approach, but since that was not his purpose I shall seek to give him what assistance I can. Despite the seductive tones of the hon. Gentleman's remarks, I do not promise to give him a dissertation on Scots law but I will seek to confine myself to the problems 1648 arising from the establishment of the Welsh Assembly and from the need to retain this provision.
This provision arises because the duties and obligations in Wales are to be carried out collectively. That is the whole basis of our approach. All the hon. Gentleman's questions and conundrums fall into line once that approach is established. The need for the provision arises because the Welsh Assembly will exercise an executive role. If it is to exercise an executive role—and this relates to the questions about suing, ownership and all the rest—it must have a legal personality, and hence there is a need for this provision to continue in being and to enable the entity to be capable of entering into contracts and also to bind successors. I am advised that the parallel to this situation where executive authority is exercised collectively is in Section 2(3) of the Local Government Act 1972.
I shall refrain from entering into the political arguments and justifications, because the hon. Gentleman said I need not do so. We shall return to that area later.
I was asked what would happen if the Welsh Assembly was not sitting or during an interregnum. The answer is simple. The whole of the responsibilities for executive decision-making will be vested, as I said earlier, in the Assembly as a whole. That is differentiated from the position of Ministers and from what will happen in Scotland, where responsibility will be attached to a Minister or whatever such a person may be called. He will succeed to the responsibilities transferred to him from an appropriate Secretary of State and, similarly, such Ministers will succeed to the responsibilities in turn as one leaves office and is followed by another. That situation will not arise in Wales, however, because the responsibilities will pass from Secretaries of State to the whole Assembly. Whether or not the Assembly is sitting will not matter, because the responsibilities will be vested in the Assembly as a whole during its period in office.

§ Mr. Eldon Griffiths
Can the Minister tell us whether the Clerk of the Welsh Assembly or his officers will enjoy Crown immunity? Will they be Crown servants? Clause 39 states that the Welsh Assembly may institute civil proceedings in its name. If it were a body corporate I could 1649 understand that, but will the Minister confirm that, if that is so, the Assembly could also be sued? Is it not unusual that the Assembly could be sued with reference to areas of power devolved from the House?

§ Mr. Morris
I am trying to explain that. The Assembly will be clothed with the personality of a corporation as a result of the Bill and it will be able to operate as such. The parallel I drew earlier was with bodies set up under the Local Government Act 1972 that are able to do precisely what the hon. Member for Bury St. Edmunds (Mr. Griffiths) was asking.
As to the Clerk and his position, I would want notice to be able to answer on that aspect. That point, however, does not arise from this amendment.

§ Mr. Tebbit
One odd point occurs to me. What would happen if the Welsh Assembly, as a corporate body, attempted to usurp powers that it will not have—that is to say, if it tried to act in a treasonable manner? Hon. Members may laugh, but there is a possibility of this. There is an example of an Assembly which was set up by the House in a country abroad acting in a treasonable manner. No doubt some people would consider it to be the ultimate act of nationalism if the Scottish Assembly did the same. Would the Assembly be acting as a body corporate or as individuals if that happened? Can a body corporate act in a treasonable way?

§ Mr. Morris
We are now in the field of jurisprudence. I would not like to define whether, under the law of treason, a body corporate can commit high treason. The question that the hon. Member for Chingford (Mr. Tebbit) should have asked is whether this body will be subject to the law in the same way as other corporate bodies. The answer is "Yes".

§ Mr. Brittan
Though the question of treason may be fanciful, a real problem remains. If a Minister acts illegally, he can be sued quite simply, whether because his van has run over someone, he has committed an ordinary tort for which he is vicariously liable or because an administrative action is ultra vires, as in the Tameside and Laker cases. But if we make an Assembly a corporate body, a constitutional oddity arises. If an 1650 Assembly committed a tort or exercised powers improperly, it would be odd to have a deliberative, elected Assembly on the receiving end of legal proceedings.

§ Mr. Morris
The Assembly mill be a body subject to the law in the same way as any other corporate body. Local authorities are in a similar position.

§ Mr. Ian Grist (Cardiff, North)
I have been listening carefully to the right hon. and learned Gentleman, but I cannot understand what he is saying. Will the Assembly exist in its own right or in its elected Members? What other elected body is a body corporate?

§ Mr. Morris
The hon. Gentleman was obviously not listening to me. I quoted the parallel of bodies set up under the Local Government Act 1972.

§ Mr. Brittan
I beg to ask leave to withdraw the amendment.