HC Deb 20 July 1978 vol 954 cc849-73

Lords amendment: No. 78, in page 29, line 16, at end insert— ("(3) Without prejudice to the foregoing, the Attorney General and any other person may institute and the Assembly may defend proceedings seeking a determination of any question whether the Assembly is in default in the fulfilment of any duty placed on it or transferred to it by this Act and seeking an order requiring the fulfilment of such duty, provided that no such proceedings shall be instituted by any person other than the Attorney General unless the person is or would be aggrieved by such default or has an interest in the fulfilment of such duty.")

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

I beg to move, That this House doth disagree with the Lords in the said amendment.

We return to the jejune subject of the Attorney-General, which, amongst other reasons, no doubt accounts for the crowded attendance in the House at present.

Mr. Dalyell

The quality are here, Sam, if not the quantity.

The Attorney-General

I entirely accept that from my hon. Friend—hostile tribes or not.

It might be as well if I reminded the House shortly of the history of the discussions that there have been on what is now clause 70, previously clause 72, which we discussed earlier. When it came before the House, two amendments were moved by Opposition speakers, and between them they contained three essential parts. First of all, there was an amendment which sought to clarify and expand the subject matter of clause 70. Secondly, there was, as part of the second amendment, a proposal to extend the powers to include individuals as well as the Attorney-General. Thirdly, there was a coercive part of the second amendment, a power to give coercive powers both to the Attorney-General and to individuals.

In the course of my reply to the debate —on re-reading it, it appears to have been for the most part generally welcome —I accepted the spirit of the first of those three propositions, and that has just been given effect to by the House, in that the Government put down an amendment in another place and have now agreed to it here, that being Lords amendment no. 77. That amendment enables the Attorney-General to bring proceedings for a declaration as to whether a power or duty resides in the Assembly, whether it is acting intra vires and whether it was failed to discharge a duty placed upon it. Accordingly the clause, as amended, should enable myself or my successors to take proceedings in every conceivable case where there is a question mark over what the Assembly is or is not doing. If it is failing to discharge a duty, this could be established.

6.30 p.m.

The second proposal sought to give a right to an individual similar to that given to the Attorney-General. My reply to that proposal was that in due course the individual would be given the same rights against the Assembly as he has against the Crown by virtue of the Crown Proceedings Act and that this would be carried into effect by an order under a subsequent clause of the Bill which could be made when the Bill became law.

I was asked by the hon. and learned Member for Cleveland and Whitby (Mr. Brittan) whether I could provide a draft of the proposed order. I said that I would do my best but that it did not lie with me. Unfortunately, it has not been possible to provide it in the time available. It is a somewhat complex matter, but there is plenty of time because before we reach the stage when such an order will be necessary the Bill must pass into law and a referendum will be held. The necessity for such an order will depend on the result of that referendum. There is ample time between now and when it will be necessary for a study to be made of this matter.

The intention is that the Assembly will be placed in substantially the same position as regards the Crown Proceedings Act as is a Minister of the Crown. The basis of that has always been that the Assembly is, in essence, an emanation of the Crown. That is the basis on which our discussions of the clause have proceeded.

Mr. Leo Abse (Pontypool)

Do I understand from what the Attorney-General has said that he is asking the House to accept the passage of the Bill in this form, leaving no right available to the individual in Wales to challenge the massive bureaucracy that is being created? Is this important matter to be at large and entirely dependent on what circumstances may or may not arise in future?

Is it the case that, despite all the undertakings that have been given, an oppressive Assembly will be able to act against an individual in Wales and he will not be able to challenge the matter unless some change, which the Attorney-General cannot guarantee, comes into existence, when the Attorney-General hopes that some action will be available to the individual under the Crown Proceedings Act?

The Attorney-General

That was a rather long way of asking me whether the Bill contains amendments to the Crown Proceedings Act to give effect to what I have said will be done by order. It does not. If it did, it would not be necessary for an order to be made in due course. The Bill contains provisions for orders to be made which are consequential upon the carrying into law of the Bill, and it is the Government's intention that, when the Bill becomes law, that necessary order—and, no doubt, many other necessary orders—will be made. The effect will be to provide the individual with those rights. I have no doubt that this Government or any other Government would give effect to that undertaking.

Mr. Peter Thomas (Hendon, South)

I assume that any amendment of the Crown Proceedings Act would be made under clause 78(2). Does the Bill have to become an Act before the Minister of the Crown can make such an order?

The Attorney-General

That must undoubtedly be so. The provisions of that subsection enable an order to be made for the amendment of an Act where it appears to the Minister concerned to be necessary or expedient in consequence of this Act. It must be an Act before that arises.

Mr. Peter Thomas

It is therefore inevitable that there will be a period after the Act has been passed when the individual in Wales will not have remedies under the Crown Proceedings Act should anything happen.

The Attorney-General

There will be an interval, in any event, during which the referendum takes place. The point that the right hon. and learned Gentleman is making could not cause any harm to an individual, because the Assembly will not be in being or capable of doing anything that could prompt an individual to wish to bring proceedings before such an order will have been made.

Mr. Leon Brittan (Cleveland and Whitby)

Once a commencement order is passed, questions of the existence of the Assembly and actions against it arise. Is the right hon. and learned Gentleman at least prepared to give an undertaking that, at the same time as the first commencement order is laid before the House, the Minister will make the order under clause 78(2), extending the Crown Proceedings Act to the Assembly? If the Attorney-General can give an undertaking that the order will be laid no later than when the first commencement order is put before the House, that will assist us to some extent.

The Attorney-General

The question having been put to me only now, it is not possible to give such an undertaking, as the hon. and learned Gentleman will understand. However, I take note of the point and I shall see whether such an undertaking can be given, both as a matter of law and as a matter of what is practicable. I shall do my best to provide the hon. and learned Gentleman with a reply during this debate. If I cannot do that, I will certainly do so in due course.

Mr. Brittan

It might be too late.

The Attorney-General

I hope that it will not be too late. I hope that the House understands that the important question is whether or not these rights are available when the Assembly has done something which might harm or prejudice an individual. It is only then that the need will have arisen.

The third and controversial part of the amendment moved in this place was resisted by the Government then and was not pursued then by the Opposition, although they said that they might wish to come back to it. In another place it was duly returned to twice, and it appears in the form of Lords amendment no. 78. That amendment seeks, first, to give an individual the right to which I have referred and, second, to provide the coercive power which I was not prepared to accept on Report and which the Opposition did not then pursue.

Although I do not want to take unnecessary technical points, the Lords amendment is in any event defective because it substantially duplicates amendment no. 77, which we have already passed. The power given to the individual is unnecessary, because in due course the individual will have the powers provided by the Crown Proceedings Act, and it is on the coercive part that the argument no doubt will primarily turn.

I do not want to repeat all the arguments I put before. I hope that I can deal shortly with this provision. Apart from anything else, I should like to know what new arguments there are for this amendment beyond those advanced here and in another place. I have been unable to find any substantial difference between what was said in both places.

The essential element is the question whether the Bill should make a fundamental change to our system of administrative law—it would be fundamental—to enable either the Attorney-General or an individual to obtain not merely a declaratory judgment as to the vires or the lawfulness of any action or inaction by the Assembly but also a coercive judgment against an emanation of the Crown.

That is perfectly normal in the case of a local authority or some other subordinate authority, but it has never been the position in the case of an emanation of the Crown. So far as the power of the Attorney-General is concerned, it could not be or ever have been, because it would involve one emanation of the Crown obtaining an order from another emanation of the Crown against a third emanation of the Crown. That is a constitutional principle which has never been adopted in this country or in relation to the comparable Assembly in Northern Ireland or in the dominions.

6.45 p.m.

Mr. Abse

I am trying to get Wales to understand what is behind these careful legal arguments. First, I understand, the individual in the Assembly has no right to bring proceedings until an undertaking comes about which is not yet fulfilled. Second, I now learn, as Wales will learn, that if there came into existence a spirited, defiant and politically motivated Assembly—

Mr. Dalyell

As it would be.

Mr. Abse

As it would be, Wales being Wales. If my right hon. and learned Friend takes a proceeding into the court, is he explaining to the people of Wales that the court can make a declaration and that there is no power left to enforce that decision on the Assembly? Is this not another example of the recipe for undoubted conflict which must arise once we have this absurd dissemination of the powers within the Crown?

The Attorney-General

My hon. Friend points precisely to the position which exists today in relation to a remedy against a Minister of the Crown. A declaratory remedy is obtainable, but there is no power in the court to make a coercive judgment. What always happens in practice is that, the court having pronounced on the position in relation to vires or the law, the Government of the day carry that out.

What my hon. Friend seems to be suggesting is that one must and should assume that the Crown, through its emanation as the Welsh Assembly, would be adopting a lower standard in these matters than would a Minister of the Crown at Westminster. That is something that I am certainly not prepared to accept. If one reached that sort of stage—I do not believe that we shall—the power still resides in Westminster, if necessary, to deal with the matter. The ultimate sovereignty continues to reside at Westminster.

Mr. Dalyell

Is it not all too likely in those circumstances, as my hon. Friend the Member for Pontypool (Mr. Abse) said, that with a lively, headstrong Assembly this is exactly the position that we would reach?

The Attorney-General

If a lively, headstrong Assembly acted outside its powers or failed to act according to its powers, it would be possible for me or my successor under the provisions of this clause to have determined by the court that the Assembly had done that or not done it, depending on the circumstances, contrary to the law.

My hon. Friend is putting to me that, given a judgment of the court so declaring that the Assembly had been and was in breach of its statutory duty, one must suppose that it would be necessary, in order to cause it then to obey the law, to give to the court some coercive function. If the Assembly that my hon. Friend contemplates is so headstrong and so wilful that in those circumstances it refuses to obey the law when the law has been declared, I wonder what additional force one would be likely to get by giving coercive powers to the court.

The reality of the matter is that my hon. Friend the Member for West Lothian (Mr. Dalyell) is presupposing a situation which none of us—with the possible exception of my hon. Friend, who looks at these matters in the context of hostile tribes, as he told us on another occasion —believes is likely to happen. In the highly unlikely event of its happening, this House has the ultimate sovereignty and can deal with the matter then.

Mr. Peter Thomas

I accept what the right hon. and learned Gentleman has said, but when the Assembly begins to operate, an order having been made and before an order has been made amending the 1947 Act so as to incorporate the Assembly, what would happen if an official of the Assembly, acting within his powers, behaved negligently and injured an individual? Would that individual have rights against the official only as an individual and not against the Assembly?

The Attorney-General

The right hon. and learned Gentleman will know from his own experience that the answer must be that it all depends. If he is talking about driving a motor car and a motor car accident, of course there would be an action against him as an individual. If he is performing an entirely different function, it may be that there would be no possible procedeings against him and that proceedings would lie, given the amendment to the Crown Proceedings Act, on behalf of the individual against the Assembly.

That gives me an opportuntly to give an answer to the hon. and learned Member for Cleveland and Whitby. I can give an undertaking to this extent. An order applying the Crown Proceedings Act can be made to have effect from the time when the Assembly has effectively come into existence—that is to say, immediately after the first elections. To deal with the difficulty that the right hon. and learned Member for Hendon, South (Mr. Thomas) put to me, it is not necessary that it should come into effect any earlier than that. I can give that undertaking.

Mr. Brittan

I have listened very carefully to what the right hon. and learned Gentleman said. I think he said that an order can be made. Is the undertaking that it will be made at the time specified?

The Attorney-General

I am not sure to whom the hon. and learned Member should be putting that question.

Mr. Brittan

I shall rephrase it. Is the undertaking that the right hon. and learned Gentleman intends it to be made?

The Attorney-General

I think that I can give that undertaking. If I am going too far in undertaking that, given the appropriate circumstances, when that time comes the order will be made at that stage, I shall be corrected very quickly and I shall correct myself. But that is as I understand the position. Who knows? It may be that the question ought to be addressed to the hon. and learned Member for Cleveland and Whitby himself, but that is a matter that we shall see in due course. That is the position at law.

There are those who take the view from a constitutional point of view that there should be coercive powers against Ministers of the Crown and other emanations of the Crown. But, if that be so, the right time and place to consider that and to provide them is not as an offshoot of clause 70 of the Wales Bill as it now is. Clearly, it is necessary that that should be considered as a matter of broad general principle rather than in these circumstances.

Mr. Abse

My right hon. and learned Friend tries to relate this question to a broad principle. We are dealing with a novel situation which, in the opinion of many people, has the seeds of conflict. My right hon. and learned Friend has made an elliptical reference to the possibility of there being another Government. If this wretched Assembly comes into existence, I am certain that the people of Wales will not have a Conservative Assembly. The very circumstances which are now being created is a case where it is likely that conflict will arise. It is no use my right hon. and learned Friend retreating to the general position, saying in this rather deprecating manner that in this clause of a small Wales Bill we cannot deal with this general principle. The fact is that this is a Bill affecting the Principality which is likely to precipitate conflict. My right hon. and learned Friend should direct his attention now to what will happen if the conflict arises between the Assembly and this House.

The Attorney-General

I thought that I had answered that question very fully. it has been put to me already. However, my hon. Friend must allow me to make my speech in my own way.

Mr. Brittan

Too long.

The Attorney-General

I agree entirely. However, time has been taken by long interventions.

Mr. Abse

On important points.

The Attorney-General

I have dealt with the constitutional side, and I now deal with what, in essence, is the effect of the question put to me by my hon. Friend the Member for Pontypool (Mr. Abse), which is the political side.

The political side of the matter is that we are establishing a body intended to have powers which are the powers of the Executive—the powers of Ministers of the Crown—operating in that sense as a Minister of the Crown. From a political point of view, in my opinion and that of the Government, the very worst way in which we could start this body off on its career and the way most likely to cause it to adopt the headstrong path to which my hon. Friend the Member for West Lothian referred is to treat it as though it were not an emanation of the Crown but a mere subordinate local authority. That would be the precise effect of accepting this Lords amendment.

That is the reality of the political side. Both for political and sound constitutional reason, I invite the House to reject the Lords amendment.

7 p.m.

Mr. Brittan

As so often in the debates on these devolution Bills, we start off thinking that we are debating a technical, legal matter, and everyone except the lawyers and a handful of enthusiasts, or enthusiastic opponents, deserts the Chamber. Within five minutes of the debate starting, however, it becomes crystal clear that we are debating fundamental constitutional questions.

It would be difficult to think of anything more fundamental than the right of the individual to sue the Welsh Assembly if he has, or ought to have, a cause of action against it because it has exceeded or abused its power. It would be difficult to think of anything more fundamental as a constitutional question than the relationships between this Government—in the context of the amendment, as represented by the AttorneyGeneral—and the Welsh Assembly.

Here we are, having embarked on these technicalities, instantly unveiling these fundamental points and attempting to deal with them in an hour's debate under the guillotine. Our whole case on this amendment is not essentially a technical one. What we are saying is that the Government have created a creature in the Welsh Assembly but are blinding themselves to the fundamental constitutional consequences of having done so and are refusing to recognise the implications by insisting on maintaining legal and constitutional arrangements which bear no relationship to the change in the constitutional structure created by the erection of an Assembly with powers of this kind.

If we look at the two limbs of the argument, the same fundamental points arise. First, there is the question of the individual having the right to sue the Assembly. When we last debated this, we were told that it was one of the two out of the three points on which the Government accepted the spirit of the argument. It was said that it was right that an individual who had been aggrieved should have the opportunity to challenge the Assembly. Then, rather in the way that a rabbit is produced out of a hat, we were told that this would not be done by amending the Bill now. Instead, it would be done under clause 78 (2), by amending the Crown Proceedings Act. At that stage I asked whether it would be possible to see a draft of such an amendment. No draft was immediately available, and now, weeks if not months later, there is still no draft.

I do not blame the Attorney-General or the draftsmen for that. If it takes as long as that, we are plainly talking about something which could not be described as straightforward and simple. Plainly, the drafting that will be needed will be complex because there are a number of possibilities. What that means is that we have to consider the procedure that occurs when that draft is produced. The procedure under clause 78 (2) is that the Minister of the Crown makes the order, which is then a statutory instrument subject merely to annulment.

The realities and probabilities of the situation are that, if this procedure goes ahead, the Minister will produce his draft and it will never be debated in the House. Yet this is a matter of sufficient complexity to have made it impossible for the Attorney-General to produce the draft on the last occasion when we debated the matter and impossible for him to produce it now. Finally, when the orange is squeezed and the Attorney-General is pressed hard, we emerge with an undertaking that his intention—if he is still in his present position, and he plainly did not think that that was likely—is that he will produce a draft at such time that it will take effect not later than when the Assembly comes into existence.

If the Government are in good faith, if they are quite content that the individual should have the right to challenge the Welsh Assembly, where that Assembly has exceeded its powers, why do we have to go through all this palaver? Why do we need an arrangement of that kind whereby the draft is eventually produced and the order is made when there is a perfectly good Lords amendment dealing with the point now? All the anxieties about the time and the delay could be set at rest.

When the Attorney-General said that the amendment was defective, I thought that at last we were to be shown some fundamental flaw which would prove that the individual would not get the right that I seek on his behalf. That is not what the Attorney-General said. All that he said about the amendment being defective was that it duplicated amendment no. 77. He did not say that it was inconsistent with it, or that it did not confer the right that it purported to confer. He made no criticism of it other than as a measure of duplication. That seems to be a poor basis for rejecting the amendment.

What the Attorney-General has signally failed to do is to explain why we have to wait for the Crown Proceedings Act to be amended rather than have the amendment here and now by way of the Lords amendment. If things were handled in that way, the provision could have effect at once and all the anxieties expressed by the hon. Member for Pontypool (Mr. Abse) and my right hon. and learned Friend the Member for Hendon, South (Mr. Thomas) could immediately be set at rest. We have had no explanation why the cumbersome method, which apparently is to take months, is preferable to the simple method which the Lords have enacted.

Faced with the advocacy by the right hon. and learned Gentleman of so complex and protracted a route instead of the route which the Lords have followed, it is difficult for this House not to be somewhat suspicious about the Government's intentions.

The Attorney-General

Will the hon. and learned Member explain what he means by that? What precisely is he suspicious about—that the Government have no intention of providing individuals with any remedy?

Mr. Brittan

I am suspicious of the ability of the Government to produce in good time the order which the right hon. and learned Gentleman has said it is the Government's intention to produce. That is what I am suspicious of, and it seems that I have every reason to be suspicious. No explanation has been given by the right hon. and learned Gentleman, either in his speech on the last occasion or in his speech today. He certainly took his time over his speech today considering that we are operating under a guillotine. Within that speech there was no attempt to explain why it is that the Lords amendment, which achieves the aim of giving the individual a right of action against the Assembly, could not be accepted and why it was necessary to have this alternative and more cumbersome route. That is something which is of great importance.

Those of us who are concerned to give the individual that right of action feel that in the absence of some adequate explanation the Lords amendment ought to stay in the Bill. No criticism has been made of the Lords amendment as failing to achieve the object which it is designed to achieve.

I turn to the other side of the argument, the question of coercion. It is here —in what is fundamentally a more important aspect of the matter—that the Attorney-General, with great respect, seems to fail to recognise the tremendous change that the Wales Bill has already introduced into the relationship between one part of the Crown, one emanation of the Crown as he puts it, and another. I am surprised that he fails to recognise the change, because that change is reflected in the Bill and in one of the amendments. The whole case of the right hon. and learned Gentleman is that the Assembly is an emanation of the Crown, is therefore totally without precedent and, therefore, this is not an appropriate occasion to embark upon the road of allowing one emanation of the Crown to obtain from the courts coercive relief against another emanation of the Crown. One cannot have that kind of arrangement.

Let us first take account of the fact that this language about emanations of the Crown is constitutional gobbledegook. It totally obscures the reality of the situation, which is that we shall have two separate Governments, often, if not always, of different political complexions, who are elected on a different basis and who have nothing in common, and there is not the slightest reason to believe that they will wish to co-operate or have any kind of agreement. Therefore to talk about them both as being emanations of the Crown and its being a constitutional novelty for one to be allowed to institute action in the independent courts against another is to ignore the realities of the situation.

We are creating something that is new. To fail to accept that it is new and to talk about it as though it were just another department—say, a Post Office —or whether one makes a nationalised industry a Department of State or creates a public body and the extent to which one makes it independent, is to bring in the sort of air of consideration that the Attorney-General has imparted to this debate, when what we are creating is a new, elected Assembly seeking and claiming all the legitimacy that derives from the fact of its election. To give the Assembly substantial powers and then to talk about both bodies as being emanations of the Crown is to descend to the level of absurdity.

Before the Attorney-General intervenes—and I should welcome the opportunity of giving way to him—let me point out that that has already been recognised by the Government. One of the points of great principle is that one Minister of the Crown cannot take action against another Minister of the Crown. A Minister of the Crown is a member of the same Government as the other Minister, and it is inconceivable that they should be locked in legal battle one against the other. That is something that will be determined at the highest levels of Government within the Cabinet.

Mr. Dalyell

And by the Prime Minister.

Mr. Brittan

Yes.

Mr. Abse

Collective responsibility.

Mr. Brittan

That is right, and one cannot have one part of the Government suing another part of the Government. The doctrine of collective responsibility applies. They are emanations of the Crown jointly.

If one looks at Lords amendment no. 77 to clause 70, one finds that the Government support the alteration of the clause so that it reads: Without prejudice to any power exercisable apart from this section, the Attorney General may institute against the Assembly proceedings of the kind specified in subsection (2) below notwithstanding that each of them acts on behalf of the Crown. That gives the game away totally and entirely, because it shows—and if one reads the debate in another place one sees that it was conceded expressly and explicitly—that, because the normal practice is that one emanation of the Crown does not sue another, it is necessary not simply to make a statutory exception and say that the Attorney-General may institute and the Assembly may defend proceedings for the determination of any question, but to elaborate, exculpate and explain that by adding within the Government's own amendment: notwithstanding that each of them acts on behalf of the Crown. The pass is sold in those words.

If the Attorney-General is saying that one Minister who is an emanation of the Crown can sue another body which is an emanation of the Crown, although both purport to act on behalf of the Crown, I must tell him that that is inconsistent with his position on this amendment, where he says that it is inconceivable to make a constitutional departure by granting the courts the right to take action against another emanation of the Crown, yet a Minister is allowed to sue that body. Either one says that they really are emanations of the Crown, in which case one is totally blinding oneself to the reality of the situation, or one accepts that a new constitutional order has been created. Once that is said, the Attorney-General has to be allowed to take action against the Assembly notwithstanding that each of them acts on behalf of the Crown.

Once we allow action of that kind, we cannot say that all we can allow the court to grant is a declaration, because a court cannot grant more than a declaration against an emanation of the Crown, and we accept that every emanation of the Crown obeys the court and a declaration is sufficient to do the trick.

7.15 p.m.

The right hon. and learned Gentleman produced as his final line "What is the point in any event of giving coercive powers against the Assembly, because surely if it will not obey a declaration it will not obey any kind of coercive action?" I disagree totally, because I believe that what one puts in the statute —we are creating something new—affects from the beginning the whole psychology and understanding of these matters. If it is made clear from the outset that the Assembly is a body that has to obey the law as administered and set up by the courts of this land, called into existence by the Attorney-General if necessary, it is much more likely that in the event of conflict all but the genuine revolutionary will say "We must obey the law."

That is what will happen, as compared with a situation whereby the Act that sets up the Assembly itself concedes that no more than a declaration can be given. That is an open invitation to the Assembly to ignore the law if the political momentum that is behind the act of the Assembly that has led to its being brought before the court is sufficiently strong. Therefore, even on the practical grounds it seems to me that the amendment ought to be accepted.

I invite my right hon. and hon. Friends to support the Lords in the amendment, because there is no reason why there should be a delay in giving the individual the right to sue the Assembly in the proper circumstances, and above all because there is no reason why a constitutional myth should be allowed to continue to exist when it has already been exploded by the Government's own amendment. We should not hide under these nonsenses about emanations of the Crown when the reality of the situation is that we are setting up a separate Government in Wales. If we wish to control it, regulate it or limit it in any way, we must accept the fact, not blind ourselves to it and not pretend that we are doing nothing of any consequence in this legislation.

Mr. J. Enoch Powell (Down, South)

The hon. and learned Member for Cleveland and Whitby (Mr. Brittan) was quite right in saying that the fundamental absurdity of what we are attempting to do in the Bill in principle is revealed by the debate on this amendment. We started from a decision to set up two national Assemblies in the United Kingdom. Because the people to be represented were nations in their own right they were to have directly representative Assemblies. By examination of the consequences of that in Scotland, where the Assembly was to be given legislative powers, we made the discovery that it is impossible to divide the legislative power of the Crown inside a unitary State.

That is not, however, the path that we have trod in dealing with Wales. Here it was considered too grandiose, at any rate at first, to endow the national Assembly of Wales with legislative power, so the Government said "Let us just give it executive power". "What?" ran the response, "Is it to be local government?" If it were to be local government for Wales we should have no problems. We should know exactly where we were. It would be like any other local authority, a statutory corporation, and it would be dealt with, in default, where necessary, upon political responsibility by the Crown as the Secretary of State acting ultimately under the sanction of this House.

However, that would not do. One could not set up a directly elected Assembly for Wales because Wales is a nation and then say "Oh, but this is only local government. This is only a regional council." It had to be something different. So, what was there? It was to be given executive powers, but the executive powers of the Crown, or a share in them. The Secretary of State came to the Dispatch Box and said "Look, I am transferring to a directly elected Assembly my own executive powers", that was to say, part of the executive powers of the Crown. So we created this monstrosity, a national Assembly endowed with its authority by the fact of election by the people, exercising the powers or part of the powers of the unitary Crown of the United Kingdom.

Here we run into the consequences of that absurd and contradictory act by a sort of application of the question quis custodiet? The Government have taken the impossible middle course. They have said "We will allow the courts, at the motion of another officer or emanation of the Crown, to determine whether the Assembly has failed to discharge a duty imposed upon it". But then they have shrunk back from the ultimate visible absurdity of giving the court the power of coercion.

The right hon. and learned Gentleman the Secretary of State asked himself how this would be played through in the case of a Minister of the Crown of the United Kingdom who was the subject of a declaration of this kind. He did not answer that question properly, but I shall answer it for him. One of two things would happen. Either the Minister would persist and this House would support him and, if necessary, change the law. Or he would persist and this House would not support him and the Administration would fall.

This House, like all power in this country of any kind, is an emanation of the Crown. We sit here because we were sent for by Her Majesty, by her writ, and her writ was returned. But it is the Crown in its legislative aspect which here confronts the Crown in its executive aspect. However, here we have established not even, as in Scotland, an Assembly which confronts the Executive and which has legislative power. There are difficulties in Scotland, but they are of a different kind. Here with the Welsh Assembly we have established a national elected Assembly, and we make it an executive body. There is therefore no means or mechanism for the executive power to be controlled by the representatiws of the electorate which has constituted that body. The whole thing is a constitutional nightmare. It is impossible inherently and by definition.

So we have made a further major discovery. We had discovered that in a unitary State one cannot divide the legislative power between this House and another Assembly. Now we have discovered that one cannot share the executive power of the Crown and attempt to attribute part of it to an Assembly elected to represent part of the Kingdom. So there is a sort of beautiful consonance between the absurdity of the Scottish Bill and the absurdity of the Welsh Bill.

Mr. Dalyell

After the intellectual tour de force of the right hon. Member for Down, South (Mr. Powell) and the legal tour de force by the hon. and learned Member for Cleveland and Whitby (Mr. Brittan), I feel something like the man from the farmyard who has strode in here with mucky boots. But I am a little less awesome of lawyers than I once was. When one is told by Lord Scarman and Lord Wilberforce that in their legal opinion these Bills are unworkable, one's irreverence vanishes a little.

I have one question to put to the Attorney-General. I do not want to carp, but why are these drafts not ready? This is symptomatic of something that we all suspect, that these matters have not been properly thought through.

It is said that from a political point of view the worst thing of all would be to treat the Assembly not as an emanation of the Crown but as a local authority. But we are setting up in Wales, as is Scotland, a second Government. One Government can take legal action against another Government. Let my right hon. and learned Friend the Attorney-General say whether I have the wrong end of the stick, but is it not true that one Minister in one Government can sue another Department and another Minister in another Government? Is that not something that the House of Commons should debate at some length rather than by a side wind on Lords amendments on the Wales Bill?

Mr. Peter Thomas

I do not wish to prevent the Attorney-General from answering the debate, and so I shall take less than a minute. Will he reply to two questions? First, what is the complication that is taking so long to provide an amendment to the 1947 Act? Second, the Assembly is described in the Bill as a body corporate—in other words, it has a legal entity apart from its members. What is it in law that makes it certain that the Assembly is an arm, in other words, an emanation of the Crown?

The Attorney-General

I want briefly to answer the points that have been raised by the hon. and learned Member for Cleveland and Whitby (Mr. Brittan) and, in so doing, the point just raised by the right hon. and learned Member for Hendon, South (Mr. Thomas).

First comes the question of drafting. A large number of orders will require to be drafted, by virtue of the provisions of the Bill, under the clause to which I have already referred and others. They cannot all be drafted at the same time by the parliamentary draftsmen. Parliamentary counsel have to take them in accordance with the necessities of the case, and, as I have already made clear, those necessities do not arise until the Assembly is in being and until someone is subject to some form of harm or threat as a result of which he may wish to take proceedings against the Assembly.

The hon. and learned Gentleman asked why we do not simply accept the Lords amendment dealing with individual rights. The answer, as he must know, is very simple. If the amendment were accepted, it would provide the individual with rights which are limited in a very curious way in the light of the propositions which he was putting to the House in that, for example, there is no provision for injunctive relief or matters of that kind. I pointed that out to him when I replied to the debate on Report. In the time that has elapsed, nothing has been put in. One must assume that that was intentional.

Taking the other side of the matter, there is provided within the ambit of the amendment an entirely open right which is in no way fettered in the way that the right would be fettered by virtue of the Crown Proceedings Act. Therefore, for example, it would give the individual rights which are expressly debarred to him by virtue of that Act when he is proceeding against the Crown. I have in mind in particular mandamus and other powers which are specifically provided. That is why we say that it is essential that an order should be made which puts the individual, when dealing with the Assembly and with anything that the Assembly may have done which may be at fault, in the same position as an individual when suing a Minister of the Crown.

As to coercion, the simple answer is as the right hon. and learned Gentleman put it, and that is that we wish to start, as he says, in the right way, and the right way is to give to this Assembly the status that it ought to have—

It being half-past Seven o'clock, Mr. DEPUTY SPEAKER proceeded, pursuant to the Order [18th July], to put forthwith the Question already proposed from the Chair.

Question put, That this House doth disagree with the Lords in the said amendment:—

The House divided: Ayes 286, Noes 272.

Division No. 298] AYES [7.30 p.m.
Allaun, Frank Ashton, Joe Barnett, Guy (Greenwich)
Anderson, Donaid Atkins, Ronald (Preston N) Barnett, Rt Hon Joe' (Heywood)
Archer, Rt Hon Peter Atkinson, Norman (H'gay, Tott'ham) Bates, Alt
Armstrong, Ernest Bagier, Gordon A. T. Bean, R. E
Asnley. Jack Bain, Mrs Margaret Beith, A. J.
Benn, Rt Hon Anthony Wedgwood Grimond, Rt Hon J. Mulley, Rt Hon Frederick
Bennett, Andrew (Stockport N) Grocott, Bruce Murray, Rt Hon Ronald King
Bidwell, Sydney Hamilton, James (Bothwell) Newens, Stanley
Bishop, Rt Hon Edward Hamilton, W. W. (Central Fife) Noble, Mike
Blenkinsop, Arthur Hardy, Peter Oakes, Gordon
Booth, Rt Hon Albert Harrison, Rt Hon Walter Ogden, Eric
Boothroyd, Miss Betty Hart, Rt Hon Judith O'Halloran, Michael
Bottomley, Rt Hon Arthur Hattersiey, Rt Hon Roy Orbach, Maurice
Boyden, James (Bish Auck) Hayman, Mrs Helene Orme, Rt Hon Stanley
Bradley, Tom Heffer, Eric S Ovenden, John
Bray, Dr Jeremy Hooley, Frank Owen, Rt Hon Dr David
Broughton, Sir Alfred Hooson, Emlyn Palmer, Arthur
Brown, Robert C. (Newcastle W) Horam, John Pardoe, John
Buchan, Norman Howell, Rt Hon Denis (B'ham, Sm H) Park, George
Buchanan, Richard Howells, Geralnt (Cardigan) Parker, John
Butler, Mrs Joyce (Wood Green) Hoyle, Doug (Nelson) Parry, Robert
Callaghan, Jim (Middleton & P) Huckfield, Les Pavitt, Laurie
Campbell, Ian Hughes, Rt Hon C. (Anglesey) Perry, Ernest
Canavan, Dennis Hughes, Mark (Durham) Prescott, John
Cant, R. B Hughes, Itobert (Aberdeen N) Price, C. (Lewlsham W)
Carmicnael, Neil Hughes, Roy (Newport) Price, William (Rugby)
Carter, Ray Hunter, Adam Radlce, Giles
Carter-Jones, Lewis Irvine, Rt Hon Sir A. (Edge Hill) Rees, Rt Hon Merlyn (Leeds S)
Cartwright, John Jackson, Colin (Brlghouse) Richardson, Miss Jo
Castle, Rt Hon Barbara Jackson, Miss Margaret (Lincoln) Roberts, Albert (Normanton)
Clemitson, Ivor Janner, Greville Roberts, Gwllym (Cannock)
Cocks, Rt Hon Michael (Bristol S) Jay, Rt Hon Douglas Robertson, George (Hamilton)
Cohen, Stanley Jeger, Mrs Lena Robinson, Geoffrey
Coleman, Donald Jenkins, Hugh (Putney) Roderick, Caerwyn
Concannon, Rt Hon John John, Brynmor Rodgers, George (Chorley)
COOK. Robin F. (Edin C) Johnson, James (Hull West) Rooker, J. W.
Corbett, Robin Johnson, Walter (Derby S) Roper, John
Cowans, Harry Johnston, Russell (Inverness) Ross, Stephen (Isle of Wight)
Cox, Thomas (Tooting) Jones, Alec (Rhondda) Ross, Rt Hon W. (Kilmarnock)
Crfagen, Jim (Maryhill) Jones, Barry (East Flint) Rowlands, Ted
Crawshaw, Richard Jones, Dan (Burnley) Ryman, John
Cronin, John Judd, Frank Sandelson, Neville
Crowther, Stan (Rotherham) Kaufman, Rt Hon Gerald Sedgemore, Brian
Cryer, Bob Kelley, Richard Sever, John
Cunnngham, G. (Islington S) Kerr, Russell Shaw, Arnold (ilford South)
Cunningham, Dr J. (Whitsh) Kltfedder, James Shore, Rt Hon Peter
Davidson, Arthur Kllroy-Silk, Robert Short, Mrs Renée (Wolv NE)
Davies, Bryan (Enfield N) Lambie, David Silkln, Rt Hon John (Deptford)
Deviee, Rt Hon Denzil Lamborn, Harry Silkin, Rt Hon S. C. (Dulwieh)
Daves, Ifor (Gower) Lamond, James Silverman, Julius
Davis, Clinton (Hackney C) Latham, Arthur (Paddlngton) Skinner, Dennis
Dean, Joseph (Leeds West) Lee. John Smith, Rt Hon John (N Lanarksh
de Freitas, Rt Hon Sir Geoffrey Lestor, Miss Joan (Eton & Slough) Snape, Peter
Dempsey, James Lever, Rt Hon Harold Spearing, Nigel
Dewar, Donald Lewis, Ron (Carlisle) Spriggs, Leslie
Doig, Peter Litterick, Tom Stallard, A. W.
Dormand, J. D. Loyden, Eddie Steel, Rt Hon David
Dougias-Mann, Bruce Luard, Evan Stewart, Rt Hon Donald
Duffy, A. E. P. Lyon, Alexander (York) Stewart, Rt Hon M. (Fulham)
Dunnett, Jack Lyons, Edward (Bradford W) Stoddart, David
Dunwoody, Mrs Gwyneth Mabon, Rt Hon Dr J. Dickson Stott, Roger
Eadie, Alex McCartney, Hugh Strang, Gavin
Edge, Geoff McDonald, Dr Oonagh Strauss, Rt Hon G. R.
Edwards, Robert (Wolv SE) McElhone, Frank Summerskill, Hon Dr Shirley
Ellis, John (Brigg & Scun) McKay, Allen (Penistone) Swain, Thomas
Ellis, Tom (Wrexham) MacFarquhar, Roderick Thomas, Dafydd (Merioneth)
English, Michael McGuire, Michael (Ince) Thomas, Jeffrey (Abertillery)
Evans, Gwynfor (Carmarthen) MacKenzle, Rt Hon Gregor Thomas, Mike (Newcastle E)
Evans, Ioan (Aberdare) Maclennan, Robert Thomas, Ron (Bristol NW)
Evans, John (Newton) McMillan, Tom (Glasgow C) Thompson, George
Ewing, Harry (Stirling) McNamara, Kevin Thorne, Stan (Preston South)
Fernyhough, Rt Hon E. Madden, Max Thorpe, Rt Hon Jeremy (N Devoi
Fitch, Alan (Wigan) Magee, Bryan Tierney, Sydney
Flannery, Martin Mallalleu, J. P. W. Tilley, John
Fletcher, Ted (Darlington) Marks, Kenneth Tomlinson, John
Foot, Rt Hon Michael Marshall, Dr Edmund (Goole) Tomney, Frank
Ford, Ben Marshall, Jim (Leicester S) Torney, Tom
Forrester, John Maynard, Miss Joan Urwln, T. W.
Fowler, Gerald (The Wrekin) Meacher, Michael Wainwright, Edwin (Dearne V)
Fraser, John (Lambeth, N'w'd) Mellish, Rt Hon Robert Walker, Harold (Doncaster)
Freud, Clement Millan, Rt Hon Bruce Walker, Terry (Kingswood)
Garrett, John (Norwich S) Miller, Dr M. S. (E Kilbride) Ward, Michael
Garrett, W. E. (Wallsend) Mitcheli, Austin (Grimsby) Watkins, David
George, Bruce Mitchell, R. C. (Soton, Itchen) Watkinson, John
Gilbert, Rt Hon Dr John Molloy, William Weetch, Ken
Ginsberg, David Moonman, Eric Weitzman, David
Golding, John Morris, Alfred (Wythenshawe) Wellbeloved, James
Gould, Bryan Morris, Rt Hon Charles R. Welsh, Andrew
Gourlay, Harry Morris, Rt Hon J. (Aberavon) White, Frank R. (Bury)
Graham, Ted Morton, George White, James (Pollok)
G'ont, John (Islington C) Moyle, Rt Hon Roland Whitehead, Phillip
Whitlock, William Wilson, Rt Hon Sir Harold (Huyton) Young, David (Bolton E)
Wigley, Dafydd Wilscn, William (Coventry SE)
Willey, Rt Hon Frederick Wise, Mrs Audrey TELLERS FOR THE [...]ES
Williams, Rt Hon Alan (Swansea W) Woodall, Alec Mr, James Tina and
Williams, Alan Lee (Hornch'ch) Woof, Robert Mrs. Ann Taylor.
Wison, Gordon (Dundee E) Wrigglesworth, Ian
NOES
Abse, Leo Fry, Peter Madel, David
Adley, Robert Galbraith, Hon T. G. D. Marshall, Michael (Arundal)
Aitken, Jonathan Gardiner, George (Relgate) Marten, Nell
Alison, Michael Gardner, Edward (S Fylde) Mather, Carol
Amery, Rt Hon Julian Gilmour, Rt Hon Sir Ian (Chesham) Maude, Angus
Arnold, Tom Gilmour, Sir John (East Fife) Maudllng, Rt Hon Reginald
Atkins, Rt Hon H(Spelthorne) Glyn, Dr Alan Mawby, Ray
Atkinson, David (B'mouth, East) Godber, Rt Hon Joseph Maxwell-Hyslop, Robin
Awdry, Daniel Goodhew, Victor Mayhew, Patrick
Baker, Kenneth Goodlad, Alastalr Meyer, Sir Anthony
Banks,. Robert Gorst, John Miller, Hal (Bromsgrove)
Bell, Ronald Gow, lap (Eastbourne) Mills, Peter
Bendall, Vivian Gower, Sir Raymond (Barry) Miscampbell, Norman
Bennett, Sir Frederic (Torbay) Grant, Anthony (Harrow C) Mitchell, David (Basingstoke)
Bennett, Dr Reginald (Fareham) Gray, Hamish Moate, Roger
Benyon, W. Grieve, Percy Molyneaux, James
Biffen, John Griffiths, Eldon Monro, Hector
Biggs-Davison, John Grist, Ian Montgomery, Fergus
Blaker, Peter Grylls, Michael Moore, John (Croydon C)
Body, Richard Hall-Davis, A. G. F. More, Jasper (Ludlow)
Boscawen, Hon Robert Hamilton, Archibald (Epsom & Ewell) Morgan, Geraint
Bottomley, Peter Hamilton, Michael (Salisbury) Morgan-Giles, Rear-Admlral
Bowden, A. (Brighton, Kemptown) Hampson, Dr Keith Morris, Michael (Northampton S)
Boyson, Dr Rhodes (Brent) Hannam, John Morrison, Charles (Devizes)
Bralne, Sir Bernard Harrison, Col Sir Harwood (Eye) Mudd, David
Brittan, Leon Harvie Anderson, Rl Hon Miss Neave, Alrey
Brocklebank-Fowler, C. Haselhurst, Alan Nelson, Anthony
Brooke, Hon Peter Hastings, Stephen Neubert, Michael
Brotherton, Michael Havers, Rt Hon Sir Michsel Newton, Tony
Brown, Sir Edward (Bath) Hawkins, Paul Nott, John
Bryan, Sir Paul Hayhoe, Barney Onslow, Cranley
Buchanan-Smith, Alick Heath, Rt Hon Edward Oppenheim, Mrs Sally
Buck, Antony Heseltlne, Michael Osborn, John
Budgen, Nick Hicks, Robert Page, John (Harrow West)
Bulmer, Esmond Hlggins, Terence L. Page, Rt Hon R. Graham (Crosby)
Butler, Adam (Bosworth) Hodgson, Robin Page, Richard (Workington)
Carlisle, Mark Holland, Philip Paisley, Rev Ian
Chalker, Mrs Lynda Hordern, Peter Parkinson, Cecil
Clark, Alan (Plymouth, Sutton) Howe, Rt Hon Sir Geoffrey Pattie, Geoffrey
Clark, William (Croydon S) Howell, David (Guildford) Percival, Ian
Clarke, Kenneth (Rushcllffe) Howell, Ralph (North Norfolk) Pink, R. Bonner
Clegg, Walter Hunt, David (Wlrral) Powell, Rt Hon J. Enoch
Cockcrott, John Hunt, John (Ravertsbourne) Price, David (Eastleigh)
Cooke, Robert (Bristol W) Hurd, Douglat Prior, Rt Hon James
Cope, John Hutchison, Michael Clark Pym, Rt Hon Francis
Cormack, Patrick Irving, Charles (Cheltenham) Raison, Timothy
Corn's, John James, David Rathbone, Tim
Costaln, A. P. Jenkin, Rt Hon P. (Wanst'd&W'dt'd) Rees, Peter (Dover & Deal)
Craig, Rt Hon W. (Belfast E) Jessel, Toby Rees-Davies, W. R.
Crouch, David Johnson Smith, G. (E Grinstead) Renton, Rt Hon Sir D. (Hunts)
Crowdar, F. P. Jones, Arthur (Daventry) Renton, Tim (Mid-Sussex)
Dalyell, Tarn Jopllng, Michael Rhodes James, R.
Dean, Paul (N Somerset) Kellett-Bowman, Mrs Elaine Rhys Williams, Sir Brandon
Dodsworth, Geoffrey Kershaw, Anthony Ridley, Hon Nicholas
Douglas-Hamilton, Lord Jamas Kimball, Marcus Ridsdale, Julian
Drayson, Burnaby King, Evelyn (South Dorset) Rlfklnd, Malcolm
du Cann, Rt Hon Edward King, Tom (Bridgwater) Rippon, Rt Hon Geoffrey
Dunlop, John Kitson, Sir Timothy Roberts, Michael (Cardiff NW)
Durant, Tony Knox, David Roberts, Wyn (Conway)
Dykes, Hugh Lamont, Norman Rodgers, Sir John (Sevenoaks)
Eden, Rt Hon Sir John Langford-Holt, Sir John Ross, William (Londonderry)
Edwards, Nicholas (Pembroke) Latham, Michael (Melton) Rossi, Hugh (Hornsey)
Emery, Peter Lawrence, Ivan Rost, Peter (SE Derbyshire)
Evans, Fred (Caerphilly) Lawson, Nigel Sainsbury, Tim
Eyre, Reginald Lester, Jim (Beeston) St. John-Stevas, Norman
Fairgrleve, Russell Lewis, Kenneth (Rutland) Scott, Nicholas
Farr, John Lloyd, Ian Scott-Hopkins, James
Fell, Anthony Loverldge, John Shaw, Giles (Pudsey)
Finsberg, Geoffrey Luce, Richard Shaw, Michael (Scarborough)
Fisher, Sir Nigel McCrlndle, Robert Shelton, William (Streatham)
Fletcher, Alex (Edinburgh N) McCusker, H. Shepherd, Colin
Fletcher-Cooke, Charles Macfarlane, Nell Shersby, Michael
Fookes, Miss Janet MacGregor, John Silvester, Fred
Forman, Nigel MacKay, Andrew (Stechford) Sims, Roger
Fowler, Norman (Sutton C'f'd) Macmlilan, Rt Hon M. (Farnham) Sinclair, Sir George
Fox, Marcus McNalr-Wllson, M. (Newbury) Skeet, T. H. H.
Fraser, Rt Hon H. (Stafford & St) McNalr-Wllson, p. (New Forest) Smith, Dudley (Warwick)
Smith, Timothy John (Ashfield) Taylor, Teddy (Cathcart) Walters, Dennis
Speed, Keith Tebbit, Norman Warren, Kenneth
Spence, John Temple-Morris, Peter Weatherill, Bernard
Spicer, Jim (W Dorset) Thomas, Rt Hon P. (Hendon S) Whitelaw, Rt Hon William
Spicer, Michael (S Worcester) Townsend, Cyril D. Whitney, Raymond
Sproat, Iain Trotter, Neville Wiggin, Jerry
Stainton, Keith van Straubenzee, W. R. Winterton, Nicholas
Stanbrook, Ivor Vaughan, Dr Gerard Wood, Rt Hon Richard
Stanley, John Viggers, Peter Young, Sir G. (Ealing, Acton)
Steen, Anthony (Wavertree) Wakeham, John Younger, Hon George
Stewart, Ian (Hitchin) Walder, David (Clitheroe)
Stokes, John Walker, Rt Hon P. (Worcester) TELLERS FOR THE NOES
Stradling Thomas, J. Walker-Smith, Rt Hon Sir Derek Mr. Peter Morrison and
Tapsell, Peter Wall, Patrick Mr. Anthony Berry.
Taylor, R (Croydon NW)

Question accordingly agreed to.

Mr. DEPUTY SPEAKER then proceeded to put forthwith the Questions necessary for the disposal of the Business to be concluded at half-past Seven o'clock.

Forward to