HC Deb 05 April 1978 vol 947 cc587-94
Mr. Brittan

I beg to move Amendment No. 293, in page 24, leave out lines 8 to 10.

In coming to Clause 61, I suggest that we are at what might be described as, to borrow the phraseology of the hon. Member for West Lothian (Mr. Dalyell), a classic example of a manhole clause, by which, of course, as those who have been present at all our devolution debates will realise, I mean a clause which, on the face of it, seems either completely innocent or so technical as to be incomprehensible but which, when one lifts the manhole cover, proves to disclose principles of considerable importance which, on analysis and examination, prove to be considerably objectionable.

The clause allows a Minister of the Crown to confer on the Assembly powers in relation to certain bodies listed in Schedule 7 which at the moment are exercised in relation to such bodies by a Minister of the Crown. In Schedule 7 one sees listed in Part I the bodies with which I am principally concerned in this amendment. They are bodies of considerable importance and powers at present. They are the British Waterways Board, the Forestry Commissioners, the Housing Corporation, the Inland Waterways Amenity Advisory Council, the Severn-Trent Water Authority and the Welsh National Water Development Authority. Alongside these bodies is a reference to the constituting enactments—that is to say, the enactments which set them up.

Under Clause 61, in relation to these bodies in Schedule 7, including not only the ones I have referred to but the much longer list, which I do not propose to read out, to be found in Part II, a Minister of the Crown may make one of a series of provisions by order which would be subject, as the clause stands, only to annulment, in pursuance of a resolution of either House of Parliament; such an order would not require an affirmative resolution.

The provisions that a Minister of the Crown may make in relation to those bodies are set out in subsection (3). Among the things that a Minister can do in relation to those bodies is to make provisions to enable powers to be exercised or requiring duties to be performed by the Assembly instead of by a Minister of the Crown, or by the one or by the other, or by the Assembly with the consent of a Minister of the Crown. What that means, as I understand it, is that, where at present a Minister of the Crown has powers in relation to such bodies as the Forestry Commissioners, the clause permits a Minister of the Crown by order to enable those powers to be exercised either by the Assembly instead of by the Minister, by the Assembly as well as by the Minister, or by the Assembly with the consent of the Minister.

It really means that, by an order subject only to the negative resolution procedure, considerable further powers may be conferred on the Welsh Assembly in relation to the statutory regulations and control at present exercised by Ministers of the Crown over the various bodies specified in Schedule 7.

The first curious point in relation to this power, which does not arise directly in the amendment but which nevertheless is part of the clause and is, therefore, wholly relevant to the amendment, is that nothing in Clause 61 restricts the transfer of the powers at present exercised by a Minister to powers exercised in relation to the operations of those bodies in Wales. Thus, for example, it would be possible for a Minister to make an order transferring to the Assembly the exercise of powers operated at the moment by a Minister in relation to the Forestry Commissioners, in such a way that the Assembly could exercise powers over forests outside Wales.

Similarly, in the case of the British Waterways Board, a body which operates well beyond the confines of the Principality, there is nothing in Clause 61 to prevent the Minister from changing the arrangements so that the powers at the moment exercised by the same Minister or a different one would be exercisable by the Assembly, irrespective of whether those powers related to what was happening in Wales.

The only protection against an order conferring jurisdiction on the Assembly well beyond the confines of Wales is the very limited and illusory protection of a negative resolution being passed by either House of Parliament. Unhappily, that aspect of the clause to which the amendment relates is even more serious than the aspect of the Bill to which I have already referred. That is the provision in subsection (2), which the amendment would totally delete.

Sir Anthony Meyer (Flint, West)

When my hon. and learned Friend referred to public bodies under Part of Schedule 7, did he intend to deal also with the particular problems raised by the two water authorities which span the borders of Wales? Substantial areas of England are affected by the operations of the Welsh National Water Development Authority. This is an intensely sensitive area on both sides of the border. There will be considerable apprehensions in Wales and the border areas of England if it thought that the clause, and particularly this subsection, will further upset the delicate balance of forces which at the moment is operating tolerably despite grumbles on both sides.

Mr. Brittan

There is no question but that that is possible if the clause becomes law. Unhappily, I can give very little comfort to my hon. Friend. If the amendment is passed, and even if the whole clause is deleted, there are plenty of other clauses—if the guillotine operates as it has already done, we shall not be able to debate them—which will disturb that balance in ways even more serious than this clause would do.

Subsection (2) relates only to the public bodies referred to in Part I of Schedule 7. It says that, in relation to those bodies, a Minister of the Crown may by order modify or exclude any provision of this Act. Let us first note that that order, just as in the case of the other orders to which I have referred, is one which has effect unless it is annulled by resolution of either House of Parliament. Let it also be noted that the effect of that provision is a very considerable one.

10.45 p.m.

The drafting behind the clause is extremely loose but I have no doubt that the idea behind it is that a Minister of the Crown should be able to say, in relation to the bodies concerned, that, although orders may be made transferring to the Assembly powers in relation to such bodies, the provisions affecting the Assembly shall not apply and the Assembly shall not have power. Alternatively, no doubt, it will be argued that, if it is desired to transfer powers to the Assembly, the Minister may be able to do so in a reduced form in regard to these bodies in one way or another.

Unfortunately, what is objectionable is that the subsection as it is worded would enable a Minister of the Crown, without any legislation being passed to alter the present law in such a way that the Welsh Assembly was granted the powers at present exercised by a Minister in respect of these bodies but also granted greater powers in respect of those bodies than the Welsh Assembly generally has in relation to other related matters.

Let us take, for example, the Forestry Commissioners. Suppose that the Minister makes an order transferring to the Assembly the powers exercised by a Minister in respect of the Forestry Commission, or, at least, in respect of the Forestry Commission's operations in Wales. What then happens? In Schedule 2, Part X, on page 54 of the Bill, under "Forestry"—these are the powers conferred on the Welsh Assembly—we find the Forestry Act 1967 specified, and the excluded functions are then set out. In other words, the Assembly has the powers granted except for the excluded functions, and those are clearly set out. It will be observed that the excluded powers are only a small proportion of the totality of the Act. I do not know how many sections there are in that Act, but it is plain that only a limited number of powers are excluded. For the cost part, the Forestry Act 1967 is devolved.

If the powers in relation to the Forestry Commissioners are also transferred in regard to Wales by an order under Clause 61, the Minister may, in respect of that transfer, modify or exclude any provision of this Act Concentrating on the word "modify", what that means, as it applies to the words any provision of this Act". is that it includes the provisions of Schedule 2, Part X, in relation to forestry. Therefore the Minister, by an order of this kind, can modify the excluded functions, reducing the excluded functions, thereby, by a simple order, subject to a negative resolution, increasing substantially the powers of the Assembly.

In that event, the House of Commons will have passed a Bill conferring powers on the Assembly in relation to the Forestry Act in a limited sense, because the powers set out in the right-hand column on page 54 of the Bill will have been excluded. By a stroke of the ministerial pen, the Minister will then transfer powers in relation to the Forestry Commissioners by means of an order under Clause 61, and he will also, by a similar order, modify any provision of the Act which he wishes to modify. He can modify the provisions of Part X of Schedule 2 so as to remove some of the excluded functions and thereby increase the powers of the Assembly.

Similarly, immediately following Part X there is conveniently placed "Water and Land Drainage", to which reference has been made. The Committee will see that the public bodies include the Inland Waterways Amenity Advisory Council, the Seven-Trent Water Authority and the Welsh National Water Development Authority.

If one looks at the provisions of Schedule 2, Part XI, one sees that certain Acts, particularly the Water Act 1973, are devolved to the Welsh Assembly. But substantial powers and functions are excluded because they appear in the right-hand column.

Under Clause 61, however, the Minister may exercise his power virtually unfettered. He may by order transfer the Westminster Government's powers with regard to these water bodies—if one may so call them—to the Welsh Assembly and at the same time modify the provisions of Schedule 2, Part XI, in such a way as to reduce the excluded functions and increase the included functions, thereby substantially increasing the powers of the Assembly

Mr. Dalyell

In order to save my making a speech, may I ask two questions of the Minister and of the Opposition Front Bench? What does one say to people like Mr. Frank Price, of the British Inland Waterways Board—

Mr. John Smith

"Hello."

Mr. Dalyell

—when he says that decision-making on the British Waterways Board by these devolved Assemblies is made far more difficult? The same applies to the Forestry Commission and the actual decision-making in the strategy for forestry in Britain.

Mr. Brittan

One says to him, as one does to forestry people as well, that he is right but that he does not perhaps quite realise just how right he is.

In the representations that I have had from forestry and water interests, all the concentration is on the clauses in the Bill which specifically relate to forestry and water. I myself have not so far had representations which take on board the fact that by this innocent-looking provision in Clause 61(2), under the manhole, so to speak, it is possible for the Minister greatly to extend the powers of the Welsh Assembly in relation to water and forestry—and a whole host of other matters—at the stroke of a pen. It lies innocently latent as a possibility for a Minister to increase the powers of the Assembly.

Therefore, if the people who have made representations about the effects of the Bill on water and forestry matters looked not only at the provisions specifically relating to those matters but also at the potential of Clause 61(2), I think that their representations would be even more vehement and their concern would be even greater about the potential of the Bill.

Later in the amendments relating to Clause 61 there comes an amendment which seeks to alter the basis on which the Statutory Instrument is made. But that would remedy the mischief only in part, which is why we are also putting forward this more far-reaching amendment. The right course is not that the Minister should have to come to the House of Commons to seek to extend his powers under the Bill but that he should not have the power to do that at all. The Bill should state clearly now to what extent powers are to be devolved rather than afford latent powers which lurk under innocent-sounding phrases of provisions appearing towards the end of the Bill, when, no doubt, the Government hope that the Opposition's guard will be lowered.

It is precisely because of the potential of Clause 61 in general and subsection (2) in particular that I move this amendment.

Sir A. Meyer

I confess that there were times when the exposition of my hon. and learned Friend the Member for Cleveland and Whitby (Mr. Brittan) had me floundering, and I suspect that the Minister of State was the only person who fully followed his immensely complex argument. I was absolutely fascinated by it, but I am bound to say that I do not take the same view myself.

On the whole, I am somewhat relieved by the powers that the Minister proposes to retain. I am a little suspicious of the word "modify", but I am a trusting chap and am perfectly prepared to accept an assurance from the Minister of State that "modify" excludes "extend".

The matters covered by Part I of Schedule 7 are rather peculiarly sensitive, and I believe that it would not be wise to allow the Assembly to extend its activities here. These are matters—particularly in relation to the two water authorities and the British Waterways Board, and the Inland Waterways Amenity Advisory Council—which touch on relations between England and Wales.

It is easy, when debating these matters, to say that Wales extends to a certain point and then stops and then England starts. But there are areas on the Welsh side of the border that do not think of themselves as being as Welsh as Ceredigion, for example. Also, there are areas on the English side of the border which have a close affinity with Wales. When I am shopping in Chester, for example, I find an extraordinary amount of Welsh being spoken in the streets there.

Perhaps this betrays my basic lack of confidence in the Assembly as such, but I would rather rely on the sensibilities of a Minister, who is answerable to this place and is faced with both Welsh and English criticism, to balance the very delicate requirements needed to ensure that in dealing with such bodies as the two water authorities and the Waterways Board not only are the relevant needs of England and Wales properly considered, but the subtle gradations which occur as one approaches the border on both sides are not needlessly offended.

This is the sort of area in which competition occurs not for votes but to win the headlines in the Welsh Press to earn the plaudits of one's constituents. This kind of motivation is particularly unhelpful in dealing with matters requiring a sensitive approach. It all depends on which Minister will be responsible in these matters. Some Ministers will show a great deal more sensitivity than others. I am sure that if the Minister of State, Privy Council Office, were in charge of these matters, he would show the utmost sensitivity.

I should like to take up a point made by the hon. Member for West Lothian (Mr. Dalyell), who seemed to imply that Ministers who were unfortunate enough to have to deal with the subject of devolution in the House would see their political career blasted—

It being Eleven o'clock, THE CHAIRMAN left the Chair to report Progress and ask leave to sit again, pursuant to Order [16th November].

Committee report Progress; to sit again tomorrow.