HC Deb 18 April 1978 vol 948 cc388-408

Again considered in Committee.

Sir A. Meyer

As I was saying, there is a potential for conflict here in that if there is a majority in the Assembly which is determined to enforce comprehensive education in the strict sense of the word, it might take objection to the emergence of something that was close to a grammar school. On the other hand if there is a majority that is devoted to the interests of the Welsh language, the structure of Welsh education would move far from the comprehensive principle.

Mr. Raison

I am grateful to my hon. Friend. That is an interesting point.

What would happen if the Assembly rejected the 1976 Act in principle and did not ensure that it was enforced? I do not think that the Assembly will spend all its time refusing to operate the law of the land but there are people wanting such an Assembly whose passionate desire is to leave the United Kingdom. There are some, like the hon. Member for Merioneth (Mr. Thomas), who is sitting on my left, who wants to see Wales as an independent country in some sort of mystical relationship with England. We must recognise that all sorts of things could happen.

When we are making a constitution we should be prepared for difficult moments rather than rely on good will the whole time. There is a serious deficiency in the Bill as it stands. The Attorney-General has power to intervene only when the Assembly commits sins of commission. The fact that the Bill does not apply to the Assembly's failure to carry out the law of the land is a grave deficiency. I hope that the Attorney-General will recognise this and accept my amendment.

Mr. Brittan

I hope that it will be convenient for me to speak also to Amendment No. 342 which is grouped with this amendment so that the Committee may consider them together. I entirely endorse everything that my hon. Friend the Member for Aylesbury (Mr. Raison) has said and I certainly support his amendment and the spirit behind it.

He made some modest disclaimers at the outset of his remarks. He has no need of a lawyer to assist him and we have learnt enormously from his own research into education.

Clause 72 enables legal action to be taken by the Attorney-General to stop the Assembly exceeding its powers but does not provide means for ensuring that the Assembly performs the duties conferred upon it by the Bill. We believe that this is an important gap in the machinery which needs to be filled to ensure that the Assembly can be prevented from not carrying out the duties that are imposed upon it.

The essential difference between Amendment No. 315 and Amendment No. 342 is that the latter amendment gives the right to bring action not only to the Attorney-General but to some other people, the identity of whom I shall go into in a moment. This relate, to the intervention of my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) who pointed out that the clause is permissive in that the Attorney-General is not under any duty to institute proceedings. Even if Amendment No. 315 were accepted and the scope of the clause were extended to non-feasance as well as to malfeasance, it would still not impose a duty on the Attorney-General.

There are two ways in which that problem could be dealt with. One is the way I am proposing in Amendment No. 342 which is, in appropriate circumstances, to give persons other than the Attorney-General the right to take such action. The second alternative, I suppose, would be to impose a duty on the Attorney-General, but as the whole point at issue is whether the Assembly has been in breach of its duties or has failed to carry them out, the only way in which the Attorney-General can have a duty imposed upon him is to use words such as "The Attorney-General shall institute and the Assembly may defend proceedings for the determination of any question if it appears to the Attorney-General that anything done or proposed to be done by the Assembly is not within its powers or that the Assembly has failed to carry out its duties."

That would leave the discretion to the Attorney-General in the sense that he would have to be satisfied in his own mind that there had been a breach of duty because there could be no possibility of an objective requirement that the Attorney-General should institute proceedings if there had been a breach because it could only be his opinion whether there was a breach. It would always be for the courts to decide, in the last analysis, whether that were so or not.

I believe that it is preferable to follow the formula in Amendment No. 342 which gives people other than the Attorney-General the right to attest to the question whether the Assembly has failed to carry out a duty that has been conferred on it.

Before going into the subject of that formulation, I wish to touch on one or two of the other matters dealt with by my hon. Friend the Member for Aylesbury. I should like tentatively to put forward a view and to attempt to answer some of the questions that he raised, if only to give the Attorney-General the opportunity to say whether he accepts what I have said on these points.

Mr. Dalyell

Quite apart from courts of law, can the hon. and learned Gentleman imagine what he would do if he were a Welsh politician elected to the Assembly and wished to make speeches if the Attorney-General sought to interfere with what might be points of law but undoubtedly would be seen to be points of politics?

Mr. Brittan

There would certainly be controversy on any occasion that the Attorney-General sought to exercise either the powers conferred upon him by Clause 72 or the slightly extended powers sought to be conferred on him by both these amendments. There is no way of avoiding that if there is to be devolution of this kind.

There are only two alternatives. Either one does not have a system of judicial review at all, in which case there is nothing to stop the Assembly exceeding its powers and doing whatever it likes, which would be quite intolerable and unacceptable, or alternatively a procedure of judicial review which at least means that in the last analysis the decision whether the Assembly has exceeded its powers is taken by the courts. Nevertheless, the raising of the issue is likely to be highly controversial politically. That is the essence of the scheme. As we are reminded so often, there is no way of avoiding it.

Before dealing with the differences between Amendments Nos. 315 and 342 in slightly more detail, I shall seek to express a view on the issue raised by my hon. Friend the Member for Aylesbury—namely, whether it is right that the Bill seeks to confer on the Assembly the powers of the Secretary of State for Wales.

I venture to suggest that the Bill does much more than that. That is made clear in Clauses 10, 11, 12, 13 and 14. In Clause 10 the Assembly is given the powers as regards the charges given to Ministers of the Crown that are specified in the first column of Schedule 2". In Clause 11 the Assembly is permitted to do anything that it considers appropriate to support museums, art galleries, libraries, the Welsh language, the arts, crafts, sport and other cultural and recreative activities". That is in no way confined to what Ministers may now do.

Under Clause 12 the Assembly may make arrangements for the provision in Wales for services for the war disabled and (b) may make grants towards the carrying on of public passenger transport undertakings in Wales". That is not confined to what Ministers may do. Under Clause 13 the Assembly may review the structure of local government in Wales". I know of no power of a Minister to do that.

Even more important than that, the Committee will recall the debates that we have recently concluded on Clause 61, which enables powers at present exercised by independent bodies of the sort specified in the two parts of Schedule 7 to be transferred to the Assembly. Those powers at present are exercised not by Ministers of the Crown but by bodies such as the Forestry Commission and the Housing Corporation as specified in Schedule 7.

If, therefore, an order is made under Clause 61, there may be a transfer to the Assembly of powers that have never been exercised by a Minister of the Crown. At the end of the day, we have a package of powers that it is fair to say is based upon, and the basic framework of which derives from, powers of Ministers of the Crown, especially the Secretary of State for Wales, but which, on the other hand, are considerably in excess of those powers. I see no move from the Treasury Bench so I suspect that my statement of the position is accurate.

Mr. Raison

I am fascinated and flabbergasted by what my hon. and learned Friend has just said. He has raised something that I had not taken on board. It seems that under Clause 11 the Assembly may do anything it considers appropriate to support museums, art galleries, libraries, the Welsh language, the arts, crafts, sport and other cultural and recreative activities". Surely that deserves, as my hon. and learned Friend is saying, a full explanation. Does it mean that the Assembly may say, for example, that only the Welsh language shall be used in Welsh schools without any statute to back that action? It may be that I have been unobservant but I never appreciated the enormous implications of the clause. We deserve an answer from the Attorney-General.

Mr. Brittan

My hon. Friend has not been in the least unobservant. In fact, there has been nothing to observe. That is not because we have not noticed these matters or because we have not been vigilant. The reason is that the guillotine has fallen in such a way that it has been impossible to debate draconian provisions of the sort that I have outlined. It is at a late stage in our consideration of the Bill that we have to raise fundamental matters by a side wind and through the back door. That illustrates the argument that the hon. Member for West Lothian (Mr. Dalyell) has employed repeatedly and with devastating accuracy—that whatever provision of the Bill we examine there are underlying it problems of constitutional, political and legal magnitude and scope that have not been faced by the Government and which the House of Commons rarely has an opportunity to deal with except on the surface.

I revert to the provisions of Clause 72. As there is no legislative power in the hands of the Welsh Assembly there may be no objection in principle to judicial review. However much the analogy with local government may be painful to those who seek to make political mileage out of the creation of an Assembly which, for political purposes, if it has to have any point at all, must be presented as something more than another tier of local government, in constitutional terms and as a creature of Parliament with no legislative independent existence, it must necessarily be subject to judicial review.

10.15 p.m.

It is interesting that normally the problems whether the Assembly has exceeded its powers will arise in ordinary proceedings between citizens or between a Government Department and a citizen. The point can always be taken that the power that the Department purports to rely upon is ultra vires the Assembly and therefore the law against the individual citizen should not be enforced.

That is the normal way in which questions of vires are likely to arise, but there may be a question of public intervention in advance to stop anything being done or to seek a general determination of vires questions before they have crystallised in a particular case.

I understand that it is to establish the standing of the Attorney-General in bringing such proceedings that Clause 72 has been introduced. Without that clause, it might be argued that he had no standing. However, there seems to be the gap that although this provision could deal with questions of malfeasance, it cannot deal with questions of nonfeasance.

While we are considering the normal way in which judicial review operates, will the Attorney-General explain why in the Scotland Bill special provisions and a whole schedule were introduced to deal with the question of the stage at which the constitutionality of what was being done by the Assembly could be challenged? There is nothing about that in this Bill except the provision that the Attorney-General should institute proceedings that are the equivalent of the taking of the matter to the Judicial Committee of the Privy Council before Scottish Assembly legislation can be enacted.

I take it that the only difference and therefore the only justification for the absence of the special procedure and the Judicial Committee is that there is no legislative devolution to the Welsh Assembly. I see that in relation to the Judicial Committee—it may be thought inappropriate to use the special court in that way—but I do not see how the same point arises in relation to the special procedure for considering questions of vires.

Although the legislative point does not arise, questions of vires will arise and it may not be appropriate to treat the Welsh Assembly which, if it is to be anything at all, will be an expression of national democratic opinion, in the same way as any other body set up by the House where the question of vires is considered in the courts in the ordinary way without any special procedure. I throw that open for consideration.

Mr. Dalyell

During the three recent Divisions, I wandered over to another place where noble Lords were discussing precisely this special procedure in the Scotland Bill—and I heard it being knocked into a cocked hat by Lord Scarman, Lord Wilberforce, Lord Dip-lock and others. I must not talk too much about another place, but this reveals again how many loopholes there are in the Scotland Bill.

Mr. Brittan

I am not surprised to hear the news that the hon. Gentleman brings from elsewhere. I was well aware of the anxieties on those points that were expressed in this House. The problem is that the procedures are full of difficulties, but the political problem is that without such special procedures, difficulties will arise if points of constitutionality or vires arise in ordinary litigation and are dealt with without special procedures.

However, the real point of difference is that Amendment No. 342 is not merely to provide a few more lines of verbiage but to provide an opportunity for persons other than the Attorney-General to institute proceedings to see whether or not the Assembly is in default and has failed to carry out a duty that has been imposed on it.

My hon. Friend the Member for Aylesbury gave examples of duties concerning education which are imposed at present upon Ministers but which will be transferred to the Assembly. One could go further in the same field and refer to Section 100 of the Education Act 1944, which requires the Minister, now the Secretary of State and in future the Assembly for Wales, by regulations to make provision for payments to education authorities for a whole variety of purposes. It may well be that the Welsh Assembly will disagree with some of the purposes prescribed under Section 100 and will feel disinclined to make regulations for such provision.

Similarly, the voluntary schools are totally dependent for the bulk of their payments for their maintenance on a payment by the Secretary of State. If that is transferred to the Welsh Assembly and the Assembly does not support voluntary schools, again, without a power to ensure that the duty is complied with, difficulties—to put it mildly—could arise.

Mr. Ivan Lawrence (Burton)

Will my hon. and learned Friend help me with what I seem to see, at first blush, as a rather strong objection to his amendment? It extends the power of access of criticism to the situation of conflict beyond that of merely the Attorney-General to any other person, bearing in mind the political ramifications that exist, and yet the Attorney-General will have to consider these moves to see whether it is appropriate for the procedures to be followed. Can one not see here an immensely increased burden of work upon the Attorney-General, which it would be impossible for any one man to bear? If he tried to bear it, he would very soon be driven into his grave. If one considers the ramification of that, surely one must conclude that it is a proliferation of assistant Attorneys-General. We might have to get back to a situation in which we have, as in Cromwell's day, an Attorney-General for Wales—

Sir David Renton

Henry VIII.

Mr. Lawrence

—with all the bureaucracy that that involves, and one just gets into a madhouse. Perhaps my hon. and learned Friend will incline his mind to that point.

Mr. Brittan

I am tempted to agree, because the prospect is so horrific that even if there were the faintest chance of it occurring, one would wish to prevent it. However, in candour, I do not think that in this case the Attorney-General would have too great a burden upon him, and certainly no extra burden as a result of the amendment, because I suggest that the burden is on him already under Clause 72. My hon. Friend is right in the sense that the burden is a great one, but it is not rendered greater by Amendment No. 342 because under Clause 72 the Attorney-General may institute proceedings to see whether anything has been done which is in excess of the powers of the Assembly.

It is true that the Attorney-General is not obliged to do that, but I cannot imagine that any responsible Attorney-General would not consider it part of his duty to give serious consideration to the acts of the Welsh Assembly and to take action if he thought that the Assembly was acting in excess of its power and that there was no way of stopping that other than taking legal action.

It may be that the Attorney-General will find it possible to advise the Committee whether he would regard it as part of his duties, under the clause as it stands, to consider whether he should act in relation to the acts of the Welsh Assembly, whatever decision he ultimately comes to.

On the point made by my hon. Friend the Member for Burton (Mr. Lawrence), I do not see that any extra duty is imposed on the Attorney-General by allowing others to institute proceedings. If the Attorney-General has to consider whether to act, that is the end of his duty. But then the question is whether others should be allowed to act. I have confined the definition of persons who may bring proceedings to a limited category— no such proceedings shall be instituted by any person other than the Attorney-General unless that person is or would be aggrieved by such default or has an interest in the fulfilment of such duty. The Attorney-General does not have to consider whether other people have the right to bring such proceedings, because he is not required under the amendment to operate any filter. They do not have to persuade him. They have the right, and the court has to decide whether they have the standing. I recognise that of necessity the language that is used must be of a general kind and cannot precisely describe the people who will have the standing, but the words which are used, as the Attorney-General will know so much better than I do, frequently appear in statutes on a whole variety of matters conferring standing on people. One thinks of local government statutes which talk about "interested people" and other statutes which talk about "aggrieved people". Although those phrases are necessarily general, the courts have not found it an impossible burden to distinguish between those who genuinely have a legal interest or are aggrieved and those who have not.

Without going into the technicalities, one could fairly summarise it by saying that for these purposes persons aggrieved would be persons who would be affected in some way over and above the generality of the population of Wales. Who that would be would depend on the particular Act. But it does not seem that any tremendous harm is done by giving such people at least the opportunity to test in the courts whether the Assembly has failed to carry out its duty. The courts will readily be able to throw out those who either do not have the standing that is required to mount the proceedings or, when they do mount them, are shown to mount a challenge to the authority and vires of the Assembly which, on analysis, does not stand up. If the Assembly plainly has acted within its powers, the court can readily throw out the action.

It seems that unless we are content simply to leave the matter to the Attorney-General without any possible challenge to it other than a political challenge in the House of Commons, it is right that there should be some extra opportunity to take the matter to court. If the Attorney-General questions the wording of the amendment and accepts the spirit of it but would like the benefit of advice from parliamentary draftsmen to alter the phraseology, no one will be more pleased than I.

The alternative is every time to have even more political battles than the hon. Member for West Lothian fears, so that the question whether the Attorney-General ought to have acted but did not act necessarily has to be the subject of a challenge and debate in the House rather than possibly taking some of the wind out of it by having another person who is genuinely interested or aggrieved seeking to move and persuade the court that the Assembly has failed to act.

10.30 p.m.

Mr. Dalyell

The issue raised by the hon. Member for Aylesbury (Mr. Raison) on the sins of omission and commission of the Assembly is very important. Therefore, am I not at once entitled to ask: where are all those people who want it? We have the Attorney-General, my right hon. and learned Friend the Secretary of State for Wales, his PPS, the Under-Secretary of State and no one other than a dissident Scot who, to use the words of Sir George Sharp, the local government heavyweight in Scotland, thinks that the schemes are crazy, impractical and useless.

The Attorney-General must not take it amiss if I say that he is extremely welcome to our debate. It is high time that my right hon. and learned Friend, with all his authority, came here to give authoritative legal opinions. I do not wish to trespass upon order but I must say that I have just been listening to the Lords debating some of the issues which the Commons never discussed. I am not criticising the Commons lawyers, but when I heard the speeches of Lord Wilberforce and Lord Scarman, and the interjections of Lord Diplock and Lord Dilhorne, and the non-answer from the Lord Chancellor—it was a very charming answer but a non answer—I really wondered what sort of mess we have got into.

Once the legal heavyweights applied their minds, it was revealed yet again that there are not manholes but yawning opencast gaps of enormous proportions in what we are discussing. The gaps are as large as the gaps in the Government Benches. I stood at the Bar of the other place and heard these serious men saying that of course this cannot be worked unless we have a constitutional court.

I am not sure that the House of Commons will be pleased when it wakes up and finds that the House of Lords suggests that the only way round the problem is to create a constitutional court as a side-wind to the Scotland Bill—as an afterthought. I have a suspicion that if we are to have a constitutional court in this country it will not come as a sub-amendment at the Report stage of the Scotland Bill. It needs a great deal more discussion.

Mr. Gow

In fairness to the Attorney-General, is it not right to say that this is the first appearance from him on this Bill, that he never appeared at all during the Scotland Bill, and that we had only intermittent appearances from the Lord Advocate? Should not the hon. Member for West Lothian (Mr. Dalyell) pay tribute to his right hon. and learned Friend rather than rebuke him?

Mr. Dalyell

I was welcoming the Attorney-General with the generosity of spirit for which I am well known on this subject. Seriously, it is high time that other Ministers realised what is up. I hope that they have been reading the debates in the other place—particularly the legal contributions—with the assiduity of some of us.

I shall put two questions and then sit down. I shall cut out the long speech that I might otherwise have made. First, is it possible to resolve these problems at all without a constitutional court? I was persuaded by Lords Wilberforce and Scarman—who know far more about these matters than I ever shall—as to the necessity of it. We should have some comment on the question whether the Government at some stage will give their view, in the Commons, about the merits or otherwise of having a constitutional court.

It is fair for a non-lawyer to say that when this case has been deployed powerfully by some of the legal heavyweights in the land at least it requires an answer. I do not put it any higher than that.

Mr. Nicholas Fairbairn (Kinross and West Perthshire)

This matter is more serious even than the hon. Member for West Lothian (Mr. Dalyell) has said. I hope that the Attorney-General will not take it amiss if I say that the major constitutional problems that arise from this Bill, and even more from the Scotland Bill, have not received one whisper of attention from a Government Law Officer. Compare that with what happens when we have a quasi-constitutional court in the other place. It is an abominable fact that the Government are introducing two measures with impossible legal conflicts, and we have not heard so much as a muted word from any of the Law Officers.

Mr. Dalyell

The truth is that the Scotland Bill has been absolutely savaged. As far as I can gather from the Government Front Bench in the other place, there was no answer to the questions. It was floundering in seeking to reply, simply because there was no reply. The Lord Chancellor's reply was charming and ridiculous. I shall leave it at that.

When it comes to a question of this House and the Attorney-General ordering another Assembly not only not to do things but to do things, what kind of reaction is that likely to provoke? Here we come back to the political dimension. The idea of the Government, in the form of the Attorney-General, ordering an Assembly which will undoubtedly eventually be called a Parliament to do certain things will provoke just the kind of resentments upon which the nationalists will feed. Well may the hon. Member for Caernarvon (Mr. Wigley) smile. This will play into his hands. Think of all the speeches that he could make about the way in which the Assembly had been ordered by the Attorney-General to do this or not to do that.

It may not have been the Government's intention, but as I understand it from lawyers this can be construed in a perfectly understandable way to mean that never will Ministers have had such power to order people to do things. These powers will be greater than the powers that they have over local authorities at present. I do not know how Members of the Welsh Assembly will enjoy that. I promised not to make too long a speech, but really, really, really!

Sir David Renton

It may surprise the hon. Member for West Lothian (Mr. Dalyell) to hear me say that, if anything, he has understated the legal complexities with which the Welsh Assembly will be confronted. This clause, under which certain powers are given to the Attorney-General, should require us to take stock of the legal position in which the Assembly will find itself. In spite of the considerable powers which are plainly stated in the Bill, the Assembly will find itself "cabin'd cribb'd and confin'd" in various ways. It will find that Ministers will be competing with it—that Ministers and, necessarily, the ombudsman will be acting as overseers and watchdogs. It will perhaps need what we have not had in this country for 400 years—an Attorney-General for Wales to try to sort out the difficulties for it. I only hope that he will be of greater distinction than the last one—Mr. Rich.

My hon. Friend the Member for Aylesbury (Mr. Raison) invited me to comment on the drafting of his amendment. He has been exceedingly skilful in achieving his purpose with the greatest possible brevity. I hope that I do not appear disloyal if I say that on balance I prefer his two lines to the first five lines of the Front Bench amendment.

On the other hand, the proviso to the Front Bench amendment raises important constitutional issues which the House dare not ignore. It is one of the basic rights, not only of an Englishman or a Welshman but of a Scotsman, to have recourse to the courts and not merely to depend on the Attorney-General to take to court a matter in which he is or would be aggrieved by such default or has an interest in the fulfilment of such duty. The rights to sue, to prosecute, to maintain and defend the basic freedoms are not even granted by Parliament—they have been assumed throughout our long history.

If the Attorney-General—any AttorneyGeneral—is given the sole right in Wales to challenge in the courts any overenthusiastic use of its powers by the Assembly we shall have failed in our duty. I hope that the right hon. and learned Gentleman will comment specifially on the proviso that I have mentioned.

Will the right hon. and learned Gentleman also explain the meaning of the first words of Clause 72— Without prejudice to any power exercisable apart from this section"? What powers are envisaged? Are they the powers of the Secretary of State, for example? In our debates on Clause 35, my hon. and learned Friend the Member for Cleveland and Whitby (Mr. Brittan) referred to the "politically charged decisions" that the Secretary of State would have to make. Are we to assume that when the Secretary of State has exercised a power under the Bill, that is the kind of power that the Attorney-General will have to accept, whether or not, as an honest lawyer, he agrees with it?

That question is basic to the two amendments, to our understanding of the clause, and to the famous position of the Law Officers of the Crown, the best of whom have been prepared to tell the whole Cabinet when they were wrong. That has not often happened, and it has not often needed to happen, but it is vital for the freedom of this country that it should happen. Suppose that the Secretary of State presumes to exercise his powers in a way which unjustifiably interferes with the powers which Parliament will have provided that the Assembly should enjoy—if the Bill gets the Royal Assent and the assent of the people of Wales in the referendum. In such a conflict, where will the right hon. and learned Gentleman stand?

The hon. Member for West Lothian posed a question which I do not think it is really incumbent upon us to answer. He no doubt put it to his right hon. and learned Friend the Attorney-General. But as I have followed the hon. Gentleman in this debate and have so greatly admired his pertinacity over both the Scotland Bill and this Bill in challenging not only the Government but Parliament in order to make sure that what we are attempting to do is right, it may not come amiss if I venture to make a brief comment on the question that he posed.

10.45 p.m.

I am expressing a purely personal opinion when I say this. The courts of this country—the High Court and the Court of Appeal, with final appeal to the House of Lords—are in essence all-embracing in their jurisdiction in terms of the various branches of the law. We have not so far contemplated the idea of a special constitutional court. I think that if we were to have a federal constitution we would have to have that, by analogy, perhaps with the Federal Supreme Court of the United States, in order to see whether vires and the entrenched provisions of such a constitution were being observed.

But when we are devolving to Wales or to Scotland, I would rather see—I repeat that I am speaking purely for myself—the Scottish courts interpreting the application of the devolution Act, if it ever becomes so, in Scotland, and the courts of England and Wales interpreting the devolution Act for Wales. Anyway, it would be very interesting to know whether the Government even have a mind on this matter. If they have, let us know what it is.

The Attorney-General (Mr. S. C. Silkin)

It may be of comfort to the right hon. and learned Gentleman to learn what I am told. I was not present in the other place when my hon. Friend the Member for West Lothian (Mr. Dalyell) was. In relation to what my hon. Friend described as the heavy legal talent in that place, I am told that Lords Wilberforce and Scarman favoured a constitutional court and that Lords Hailsham, Diplock and Morris took a different view. On a Judicial Committee composed in that way, that it is a majority of three to two against.

Sir D. Renton

I am grateful for that intervention. It clears the air a great deal, and it means that we should be discussing the amendments in the context which we all understood when my hon. Friend the Member for Aylesbury moved his amendment, that we are considering powers which might be exercised by an Attorney-General in the courts of this land as they are and not as they might be.

Sir Raymond Gower

Did my right hon. and learned Friend note that the Attorney-General's response did not indicate whether the Government had ever given any thought to this matter?

Sir D. Renton

I had hoped that in the politest way possible I had indicated that one did wonder whether the Government had ever done so.

However, I have said enough. It would be helpful if the right hon. and learned Gentleman were fortunate enough to catch your eye fairly soon, Mr. Godman Irvine, and therefore I shall sit down.

Mr. Peter Thomas (Hendon, South)

My intervention will be very short. It is most unfair that the Attorney-General, who apparently has made his first appearance in the Committee, should have been under attack by both his side and the Opposition. Therefore, it is only right that there should be a short objective intervention.

I hope that the right hon. and learned Gentleman will appreciate that these two amendments are put forward with a great deal of determination that something should be done to remedy a situation that inevitably requires to be changed.

Clause 72 is concerned with the institution of proceedings, and Clause 11 states the powers of the Assembly. My hon. Friend the Member for Aylesbury (Mr. Raison) thought that they were confined to the powers which the Secretary of State has at the moment. The Attorney-General will see that the Assembly may do anything that it considers appropriate to support, inter alia, the Welsh language. Perhaps the Attorney-General will apply his mind to what he might do, in the exercise of the powers set out in Clause 72, if an aggrieved person were to suggest to him that in the exercise of its powers in Clause 11 the Assembly had done something which caused considerable anxiety and distress to one or two people in Wales.

My hon. Friend referred to what might happen in education. This is of some importance, because in Clause 72 the Attorney-General has discretion to institute proceedings. I do not agree with my hon. Friend, who suggests that it would be mandatory. That could not happen. I do not accept that that would be so. But the Attorney-General is placed in an impossible position, is he not, as the Attorney-General for England, if the Assembly, under its powers in Clause 11, does something which causes distress to a large section of the community in Wales?

People may feel aggrieved, in that their interests have been affected and they are unable to take any action, because they believe that what has been done, although within the powers of Clause 11, may be outside what they consider to be the remit—if that is the word—of the Education Act 1944 in relation to the Assembly. There may, therefore, be something for the courts to decide. The Attorney-General would, as I have suggested, he placed in an invidious position. It would be a political issue, and he would have to decide under the discretion given to him in Clause 72.

For that reason, although I had reservations about Amendment No.342 when I first saw it, I believe that it really has force. The power to institute proceedings is limited to a certain category of people, namely, people who are aggrieved and who would have to prove to a court that they were aggrieved before they could proceed. All those people have an interest, and the interest would have to be proved. The Attorney-General should think about this. It is something that may cause a future Law Officer of the Crown in England considerable embarrassment, unless something similar to what is contained in the amendment is accepted.

Mr. Dalyell

Does the former Secretary of State for Wales, from his ministerial experience, envisage any difficulties about an English Attorney-General being seen politically to intervene on what would be interpreted in some quarters as purely Welsh domestic issues?

Mr. Thomas

I envisage that there might be difficulties in certain circum stances. I certainly hope that we are not entering into a period in which Wales will not accept the Law Officers of the Crown, as Wales has in the past. In fact, Wales has accepted not only institutions such as the Law Officers of the Crown but the law of England. Only a few years ago the relevant wording was changed to refer to the Assize Commission of England and Wales. This is something that we not only accept but nurture in Wales.

Whatever development takes place, I hope that this Bill will not cause a rift, so that we shall say that we do not accept the Attorney-General for England and Wales. That is likely to be an embarrassment to the Attorney-General and his successors. I do think that something, such as is proposed in this amendment, should be thought of very seriously.

The Attorney-General

The last remarks of the right hon. and learned Member for Hendon, South (Mr. Thomas) are remarks which must lie at the very basis not only of the Bill as a whole but of the purpose of Clause 72.

Indeed, it is right that when we look at this clause and the powers generally which are thought to be necessary in a situation that we shall be facing when the Welsh Assembly is set up, we should look at it in the way in which the right hon. and learned Gentleman did. We are not facing a situation of, as it were, a hostile tribe; we are facing a situation in which there will be conferred upon the Welsh Assembly powers which are essentially powers of Ministers of the Crown.

That is just as true whether we are looking at the powers of Ministers which are transferred or at the powers of prerogative nature which are contained, for example, in Clauses 11 and 12 and, to a certain extent, Clause 13. Those are the sorts of powers which are exercised by Ministers of the Crown even if they step outside what is perhaps properly or constitutionally the subject of Ministerial powers as such.

That is the first essential which one has to have regard to. As the hon. Member for Aylesbury (Mr. Raison) put it clearly and forcefully at the beginning of his remarks, we are not talking about a super local authority, or anything of that kind; we are talking about powers held, or capable of being held, by a Minister in this country which will be held in the same capacity by the Assembly in Wales as a result of the provisions in this Bill and, of course, of any future legislation under which other powers may be devolved to it.

It is essential that that should be understood and recognised. Indeed, it is for that very reason that it has been thought necessary that this clause should appear in the Bill at all. In the ordinary way, when one is dealing with ministerial powers, one does not have the situation that the Attorney-General has the right to go to the court in order to question whether the use by Ministers of their powers is a proper use or not—whether it is ultra vires or intra vires.

On the other hand, if one is talking about a local authority there is no doubt that Ministers—the Attorney-General in particular—have that right. But here we are talking about ministerial powers—powers which are the exact parallel of the powers which at present are held by Ministers of the Crown—a Secretary of State or other Ministers.

Because it is recognised by the Government that it is desirable, in some way, to determine any conflict that may exist in future on the question whether the powers are those of the Secretary of State in London or those of the Assembly in Wales, notwithstanding that they are ministerial powers, this provision has been inserted in the Bill to enable the Attorney-General to—

It being after 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.