§ Mr. Francis Pym (Cambridgeshire)
I beg to move Amendment No. 225, in page 12, line 6, leave out from 'would' to second 'or' in line 7 and insert'affect, directly or indirectly, any matter with respect to which the Assembly has no power to act'.
§ The Second Deputy Chairman
With this we may take the following amendments: No. 226, in page 12, line 8, leave out 'reserved' and insert 'such'.
§ No. 227, in page 12, line 8, leave out or might'.
§ No. 228, in page 12, leave out lines 27 to 31.
No. 231, in Clause 36, page 13, line 7, leave out 'a reserved matter, whether directly or indirectly' and insert
', directly or indirectly, any matter with respect to which the Assembly has no power to act'.
§ No. 232, in page 13, leave out lines 19 and 20.
§ Mr. Pym
I think that the Committee will have grasped the point by now that my right hon. and hon. Friends and I do not care for the Assembly as proposed in the Bill. There are those in Wales who want it. I understand their 1496 reasons for wanting it and their hopes of it. It is when we begin to investigate the details of what is proposed in the Bill and consider the practicalities and the complications and difficulties that begin to appear that doubts begin to arise. The mere fact that Part III is entitled "Relations with United Kingdom Authorities" suggests problems and potential conflict.
Clauses 35 and 36 represent a weakness in the system of devolution that is proposed. They are likely to lead, to some extent, to disharmony and disenchantment. I believe that more is expected and that more is likely to become expected of the Assembly in Wales, than can be delivered. I visualise that in due course pressure will mount upon it, if it ever is set up, and hopes will be raised to an excessive extent.
I am fearful of the tensions that are likely to grow between the Assembly, if it is ever set up, and Westminster. I think that some sort of industry might develop, which would not help the people of Wales. Where there has been a feeling of sympathy and unity between Wales and England for centuries, I am fearful that there will emerge tensions and jealousies and a tendency towards discord and disunity.
One of the causes of friction will be found in the override powers contained in Clauses 35 and 36. To some extent the powers are directed to safeguard against the underlying dangers, and our amendments are designed to seek to remedy that so far as is possible.
These override powers amount to a veto on any Executive action and any subordinate legislation that the Assembly would be entitled to enact, but they are 1497 also confined to any matter, according to line 29 of the clause "which concerns Wales". In one aspect of what it seeks to achieve this clause is too widely drawn and in another too narrowly drawn. The amendments seek to deal with both shortcomings.
The circumstances in which this veto can be used are very wide indeed. They refer to action whichwould or might affect a reserved matter, whether directly or indirectly".Amendment No. 225 would leave out the words "or might". That is a genuine improvement, of itself, because it must cut out the conjecture and speculation that is bound to arise about whether any action might or might not affect the reserved matters.
The question really is, would it? As the clause is drawn, it is not hard to imagine a range of circumstances in which highly political and contentious decisions could be made by the Secretary of State, especially if the political colour of the Assembly in Wales were different from that of Westminster. Anyway, it seems almost a licence, or at any rate an invitation, to interfere when any matter concerning Wales is affected.
The Government are establishing a Welsh Assembly, accompanied by high expectations of the devolution envisaged, yet in Clauses 35 and 36 they are retaining unto themselves these far-reaching powers. Whenever those powers are used, the action will be controversial, whether it be seldom or frequently. By devolving subordinate legislation to Wales, the Government are creating in Wales a policy-making body, but they seem to have had second thoughts and decided to widen control through these clauses.
I question whether it is wise to try to have it both ways—to create a kind of mini-Parliament with certain powers and then seek to control the way in which it exercises its powers, because that must lead to disagreement and conflict. These clauses will not make the overriding of the Assembly any more politically acceptable. It will, I fear, always be contentious.
I want to now turn to the way in which these reserved powers are defined, because we propose widening that definition to include matters that go beyond 1498 those that concern Wales. Assuming for the moment that the method in the clause is right, surely the safeguard should extend to matters affecting England alone, as was done in the Scotland and Wales Bill. Clause 46 of that Bill was different. The procedure envisaged could have been used where action taken by the Welsh Assembly affected a matter in England, such as, for example, education or health, but I do not think that that applies in this Bill, which is confined to Wales.
Is there not a case for saying that there is more justification for a clause extending to matters affecting England alone than one which extends to matters affecting only Wales? That does not seem to be provided in the Bill.
If a Welsh Assembly action might indirectly affect, say, English education, there would be no requirement for the Welsh Assembly to take that into account; there would be no need for it to worry about any effect beyond Wales. In those circumstances, where an action of the Welsh Assembly indirectly affected a matter in England, it might well be that Parliament would say that the repercussions were of such character that they were unacceptable, that we could not let that action by the Assembly proceed.
As I understand it, that is the central point of the clause, but that possibility is specifically excluded by the words that I have previously quoted. That is unfortunate. In those circumstances, Parliament would have to legislate for England and perhaps for Wales to overcome those difficulties. There would be no other way of taking that action, as the Bill is drawn.
Once again in a matter of legislation, therefore, we come to the English dimension and the effect that the Bill would have upon England. English Members would have no voice in opposing or overriding a Welsh action affecting England, but Welsh Members would have a direct vote in any such question affecting England alone.
A long time ago, the Minister of State said that Government and Parliamentmust have powers available, with reasonable flexibility, to protect interests which have not been devolved of people living in other parts of the United Kingdom."—[Official Report, 16th December 1976; Vol. 922, c. 1747.]1499 That is precisely the point. The Minister could say that under the Scotland and Wales Bill, but I am not at all sure that he can say it, as I read Clause 35, under this Bill. That is what we are seeking to achieve in these amendments.
§ The Minister of State, Privy Council Office (Mr. John Smith)
I think I can say that, with respect, since the important qualification was involved in that statement about matters "which have not been devolved".
§ Mr. Pym
The Minister will no doubt come to that point, but it is drawn in a different way. Whereas the powers to require action are a fine point, this clause confines the action concerned to Wales. Amendment No. 228 would omit subsection (3), nothing like which appeared in the Scotland and Wales Bill.
Those are the two basic changes that we want to bring about—to cut out looseness and the wording "would or might affect…directly or indirectly," and to widen the scope of the use of the clause beyond matters that concern only Wales.
The question of the public interest appears in subsection (1). There will often be argument whether a particular matter does or does not affect a reserved matter, and whether it is or is not in the public interest to veto it. It seems to me that the Welsh Assembly may well claim that it is the best judge whether an action affects a reserved matter in Wales and whether it affects it in such a way that the action is not in the public interest.
How does the Minister intend to interpret the phrase "public interest"? Does he not think that the Assembly in Wales will have a strong view on the question whether or not a matter affects the public interest in the context of this clause?
Then there is the problem of the frequency of the use of which these powers are to be put. If they are to be used frequently they may be justified as one way of overriding the Assembly on a day-to-day basis—perhaps a simpler way than by passing an Act of Parliament each time. But that would be only another way of saying, "You may act only in ways of which we approve." That does not seem to be the intention, although it might be. If, on the other hand, it is intended to use the clause infrequently, 1500 its use will always be a source of major conflict each time that it is used. If it is invoked only occasionally, it would hardly seem enough just to claim that the provision might indirectly affect a reserved matter. That is weak ground on which to put a proposition before Parliament.
The first time that Parliament stepped back from the use of this clause for fear of the consequences, the override powers would lose any deterrent effect which they are supposed to have. If its use is to be infrequent, would it not be better to use a different procedure altogether?
If the Assembly were to act in a way that Parliament could not accept, for any reason, Parliament could enact legislation to put right what it found unacceptable. The legislative process itself would be a safeguard against abuse and would ensure that the issue would be thoroughly considered and not just vetoed by a single vote. That might be a better way of going about the matter.
§ Mr. Timothy Raison (Aylesbury)
I am following my right hon. Friend's argument with interest, but let us, for the sake of argument, suppose that the Assembly were not to implement the existing law of the land. Would we in this House then pass a law saying that the Assembly would have to implement a law that was in being? I do not understand my right hon. Friend's argument.
§ Mr. Pym
My hon. Friend draws attention to an interesting point. There is no specific requirement to compel the Assembly to take such action, but presumably the Government could pass legislation in this House which would apply to Wales, or conceivably one could take the Assembly to court. That point arises in respect of the earlier provisions.
My reading of the situation is that the clause would not be an appropriate way to adjust the provision in a situation, as described by my hon. Friend, in which the Assembly had not fulfilled an obligation imposed upon it by this House.
§ Mr. John Watkinson (Gloucestershire, West)
I am following the argument with interest. The right hon. Gentleman should note that subsection (6) contains means by which this House is to consider the matter and that an order has to be laid. I believe that a resolution has to be approved by each House of Parliament. 1501 Therefore, it appears that the right hon. Gentleman is substituting a more cumbersome process for what would appear to be a simple one.
§ Mr. Pym
Later amendments deal with subsection (6) on the parliamentary aspects. The important point is that Parliament has no right or opportunity to raise this matter. It must be done by the Secretary of State, and by him alone. It is the Secretary of State who must take the decision, make a recommendation, and decide whether the action would or might affect the reserved matter if it were in the public interest. He could then lay an order. There is no other parliamentary procedure by which Parliament can take any initiative or by which the Opposition can say that it is a matter that should be considered. That is one of my criticisms of the clause.
§ 7.45 p.m.
§ Mr. John Smith
My hon. Friend the Member for Gloucestershire, West (Mr. Watkinson) was reasonable in suggesting that what is proposed in the Bill is a relatively simple and convenient method of exercising restraint on the Assembly rather than to going to the extent of introducing full-blown legislation in an Act of Parliament to deal with the position. That appears to be more cumbersome than the method set out in the Bill.
§ Mr. Pym
Does the Minister of State agree that if a matter affecting something in England or some other part of the United Kingdom, the powers in this clause would not apply? In other words, does he agree that the only way in which the Government could adjust something carried out by the Welsh Assembly would be by passing a Bill? That situation did not obtain when devolution proposals were before the House on an earlier occasion. This is an important point. I was arguing that if, in those circumstances, the Government could adjust something that went wrong in England only by passing legislation, that would be a full and proper parliamentary procedure. I was saying that if it were right to take that step in the case of something that happened in England, it would be arguable that one could do so in respect of something that happened in Wales, despite the powers taken in this clause. It would lead to difficulties.
1502 The Government believe that they can oversee these administrative acts without having to employ a substantial number of additional civil servants and without checking what the Assembly does. How, otherwise, will the Government know whether action taken would or might affect a reserve matter, whether directly or indirectly? How will they know, if they do not go through a complicated monitoring process?
In the White Paper "Our Changing Democracy" the Government said that it was not their intention to conduct close monitoring or to look constantly over the shoulder of the Assembly, but it appears to us that if the Secretary of State has to make his decision in the light of what is laid down in the clause there must be certain degree of surveillance before he can take a proper decision.
That is the point of this group of amendments. It appears to us that the override power as drawn here, wide as it is, will lead to contention and disagreement. I hope the Government will accept these amendments. They are genuinely designed to try to make the clause more effective, to apply outside Wales, and to be applied in circumstances that are less vague than the words that I have repeated. I hope that in that spirit the Government will feel able to support us.
§ Mr. John Smith
I draw the right hon. Gentleman's attention to one point of which he will be aware. What he proposes in these amendments is the formulation in respect of override set out in the Scotland and Wales Bill. Can he recall any occasion when he recommended that formulation in debates on that Bill?
§ Mr. Pym
I did not address myself to Clause 46 of the Scotland and Wales Bill. Indeed, on that subject I do not think we got beyond Clause 2. Nevertheless, the Minister of State has acknowledged that there is a substantial difference between what was in the Government's mind on that occasion and the provisions in this Bill. I have been addressing my mind to what we see as weaknesses in these provisions, and I have been seeking to suggest alternative ways in which effective government could be achieved more satisfactorily.
§ Mr. Watkinson
In discussing reserve powers we are dealing with some of the 1503 most complex and difficult provisions in the devolution proposals.
The right hon. Member for Cambridgeshire (Mr. Pym) is right to point out that the conflict which may emerge between a devolved Assembly and the Executive—the Government—can and will be a source of considerable difficulty for the Secretary of State. Nevertheless, if one accepts devolution, it is inevitable to draw certain demarcation lines and to take decisions in judging the matters that fall over those lines.
One method lies in leaving this matter to the judges. I believe that at an early stage in the devolution proposals it was suggested that this matter should be put before the Judicial Committee. I think that the Government were right to move away from a proposition that would have left to the judges the determination of whether the reserved powers had been taken over in any way by a devolved Assembly. I think that would have been wrong.
If this position is accepted, clearly powers have to be given to the Secretary of State to pass judgment. It is unnecessary at this stage to go into the reasons why in the context of Great Britain it would be inappropriate for judges to make decisions of that kind.
§ Mr. Leon Brittan (Cleveland and Whitby)
Is not the hon. Member on a false point? In the Scotland Bill the Government, far from moving away from judicial determination in these matters, moved towards it and laid down a procedure whereby the Judicial Committee should express a view on whether legislation was within the powers of the Assembly; and, afterwards, the courts, including the Judicial Committee, would be able to pronounce whether Acts were ultra vires. Does the hon. Member agree that in this legislation there is no specific pre-Assent consideration? Under this Bill, if something that the Welsh Assembly does is ultra vires, the courts may intervene. Is not the hon. Member wrong to praise the Government for moving away from judicial determination on matters of vires?
§ Mr. Watkinson
I am dealing with the propositions as they relate to the Wales Bill. In my opening remarks I reflected upon whether matters as they relate to the Wales Bill should be determined by 1504 Judicial Committee. I think that they should not.
§ Mr. John Smith
I agree that it is a different proposition to refer pre-Assent scrutiny to the Judicial Committee in the case of the Scotland Bill on the question of vires but a different matter to give to the courts the delicate matter of deciding whether the Government should exercise reserved powers. My hon. Friend is drawing parallels with matters which are not parallel.
§ Mr. Watkinson
I should like to address my remarks to the Wales Bill. I shall deal briefly with the question of "public interest". I accept that there must be a certain amount of opaqueness. It is right that the Secretary of State should be able to make decisions on the public interest. There is a parallel with the role of the Attorney-General when he decides whether it is appropriate, in the public interest, to bring certain matters before the courts. If one wishes to move away from a strict legalistic approach—and I think that we should—there must be an area reserved to the Secretary of State in which he can make decisions about whether an infringement goes against the public interest. One has to accept that it will cause difficulties, but with the constitution that we have that is not inappropriate.
Let us examine the position in the House of Commons. The right hon. Member for Cambridgeshire seemed to be proposing a somewhat cumbersome procedure for dealing with the devolved Assembly when it goes beyond its powers. He suggested that we should have powers to introduce legislation. Presumably that would involve Second Reading, Committee and Report. That would be a cumbersome procedure. Clause 6 deals adequately with this problem.
It must be apparent to the right hon. Gentleman, as it is to me, that our powers are such that it is possible for us to bring before ourselves matters which we consider to be important. I have no doubt that if the Opposition considered that the Secretary of State had acted improperly they could raise the matter on a Supply Day or, if they felt strongly enough, on a motion of censure.
§ Mr. Watkinson
Remedies are available to the House to deal with the situation to which the right hon. Member for Cambridgeshire refers.
The question of whether the Secretary of State has taken a decision in the public interest can be criticised and referred to in the Chamber. Remedies are available. The important thing is that the remedies that are available are such that speedy action can be taken. We should not seek to impose upon ourselves the cumbersome procedures suggested by the right hon. Gentleman. For those reasons, I believe that the provisions in Clause 35 are satisfactory.
§ Mr. Raison
Normally I agree with my right hon. Friend the Member for Cambridgeshire (Mr. Pym), but I am not wholly persuaded by his argument tonight. Nor am I persuaded that the hon. Member for Gloucestershire, West (Mr. Watkinson) has seen the full implications of what will happen.
I shall make a few remarks about the constitutional mechanism. I have no doubt that the Minister of State will accuse me of being Anglo- or Southern Man or that he will attach some other epithet that will show that I am a barbaric Englishman who does not understand. However, one should plan for the worst. One hopes that the worst will never happen. I hope that the Bills will never happen, but if they do I hope that they will work sympathetically.
When talking about reserved powers one must assume that something might go wrong.
§ Sir David Renton (Huntingdonshire)
Does my hon. Friend accept that nearly all legislation plans for the worst? If this were a perfect world there would be no need for legislation.
§ Mr. Raison
This legislation does plan for the worst, and much of it achieves the worst. My proposition is that, far from these reserved powers being too wide, they are too narrow. I do not believe that we are arming ourselves with sufficient reserved powers.
1506 Although the hon. Member for Gloucestershire, West talked about only one aspect, he gave the impression that the Secretary of State will have no say in large areas of dispute but will have a say on points covered by the clause. The hon. Member does not appreciate that during the course of devolution the Government have surrendered to the courts a great deal of the Secretary of State's power.
I can describe the way that this came about by quoting from "Devolution for Scotland and Wales, Supplementary Statement". This simply described a change of heart. It stated that:Paragraph 208 of Cmnd 6348 envisaged a range of general reserve powers which the Government could exercise, with Parliament's approval, in relation to actions of the Welsh Assembly. The Government have decided on two major changes in these powers. Firstly, there will not be a power, as paragraph 208c had envisaged, for the Government to take back devolved functions. Secondly, the remaining powers to give directions or to annul subordinate instruments (paragraph 208a and b) will be available only if their exercise is considered by the Government necessary to prevent unacceptable repercussions on matters for which they remain responsible.That marked a substantial change of policy by the Government. It switched from saying that if something went wrong in generalised terms the Government would have a reserved power to put it right, and it moved to the clauses's much more specific provision that if the Welsh Assembly starts to trespass on reserved matters the Government will intervene. The same would apply it the Assembly got caught up in Community matters.
§ 8.0 p.m.
§ Mr. John Smith
The hon. Member has it right to a certain extent. It concerns the situation where the operation of the Assembly in its devolved area would have unacceptable repercussions upon a reserve matter. That goes slightly wider than just reserve matters.
§ Mr. Raison
I take that point. But the Government have no override or reserved power if they believe that in some way the Assembly is failing to do its duty in respect of matters that are clearly within a devolved area and which do not impinge upon reserved powers. I think that is an accurate statement, which I see the Minister accepts.
1507 I am not happy with the reserved or override powers. I believe that they should be greater than they are. Let me illustrate my argument by moving to an important area—perhaps the most important—that is devolved to Wales, namely education. Section 1 of the Education Act 1944 says that it shall be the duty of the Secretary of State for Education and Science—I think that it has now been amended—to include the Secretary of State for Wales—to promote the education of the people of England and Wales and the progressive development of institutions devoted to that purpose, and to secure the effective execution by local authorities, under his control and direction, of the national policy for providing a varied and comprehensive educational service in every area.That covers the whole of our educational system.
Under Schedule 2, the Education Acts between 1944 and 1976 are devolved. There are one or two respects in which they are not devolved, but in essence education is devolved to the Assembly. As I understand it, that means that the control and direction of any policy referred to in Section 1 of the 1944 Act now goes quite clearly to the Assembly. The Secretary of State is no longer responsible for the control and direction of educational policy in Wales. It goes to the Assembly, but under an earlier clause the Assembly has the power to offer to one of its members—the leader or chairman of one of its committees, or whoever it may be, the functions of the Secretary of State.
I suppose that the Assembly or its Education Minister, whatever he may be called, will therefore have the function of determining national policy. The Act does not say simply that he must supervise that policy; it gives him some role in determining what education policy should be. National policy, however, is not just a matter of what the Secretary of State says it is; it is also a matter of what the Education Acts say policy is. There is a string of Education Acts between 1944 and 1976. All of them, and particularly the last one, make clear policy decisions. The point is that education policy in Wales will be determined by two different sources. One may say that these will be the fons et origo—the fons will be the 1944 and subsequent 1508 Education Acts. The origo will be the Assembly and its representatives.
On the other hand, where there will be two sources of policy in Wales there will be only one guardian or custodian, with a few limited exceptions, and that custodian, the body or person with the job of implementing the policy, will be the Assembly or a Member of it. The Secretary of State can interfere with the Assembly only if it tramples on reserved territory or on the EEC. As I understand it, the Secretary of State will cease to have any say in the normal implementation of policy on education in Wales.
As I indicated in an earlier intervention, it is perfectly possible—here I come back to the point that we do not know what will happen, but we are prepared for things to go wrong—that the Assembly will decide that it does not like Section 76 of the 1944 Act. That section contains some recognition of parental choice. In other words, when parents are choosing a school for their children their wishes are meant to be taken into account.
The Assembly may say that it does not believe in such a doctrine and that therefore it will do nothing to implement that section. Alternatively, there may be a spirited Tameside-like Tory Welsh Assembly—I am not sure that is what we shall have, assuming that we are to have the Assembly—which takes the view that the highly odious provisions of the 1976 Act should not be operated.
Throughout the 1976 Act there is an interplay between the Secretary of State and the local authorities. In future in Wales that interplay will be between the local authorities and the Assembly. If the Assembly does not want to do anything about implementing the 1976 Act, it is hard to envisage that anything will actually happen.
§ Sir Anthony Meyer (Flint, West)
Is my hon. Friend aware that in many parts of Wales the system of selection is creeping back into education? This selection operates through the Welsh language. I do not say that that is a good or a bad thing, but it is a factor that my hon. Friend may care to take into account. Because of the right of Welsh children to be educated in their own language, the process of selection, which provides a qualitative difference between English and Welsh language schools, is creeping back in Wales.
§ Mr. Raison
That is an interesting point, but it is not germane to my arguments, which are of a wholly academic nature. It is true, however, that throughout the world wherever a policy of selection has been abolished and comprehensive education introduced, selection manages to creep back.
§ Mr. D. E. Thomas
Any selection that may operate does so by parental choice, in that parents are given the opportunity in two counties in Wales of selecting for their children a mainly Welsh medium secondary education or an English medium education. That does not reflect a selection on any other basis. It means that it has been possible to provide a broad range of comprehensive education through the medium of established languages in Wales. The basis of the system is still comprehensive, but because of the flexibility operated by the education authority there has been a linguistic choice within it.
§ Mr. Raison
I am tempted only to say that one of the things I particularly like about the Welsh and about taking part in Welsh debates is the magical way in which they manage to get the best of all worlds. Here they have persuaded themselves that they have a truly comprehensive system, but they have allowed selection to come back. We see the same sort of thing in the extraordinary relationship of the Welsh National Party with Westminster, in that the nationalists look to that glorious day when they can recover their identity but still want to retain a mystical umbilical cord. They want to achieve full independence, but they also want a large subsidy from London to keep things going.
I am trying to avoid going into the rights and wrongs of education in Wales. I want, instead, to consider what the clause is all about. Therefore I ask hon. Members not to draw me any further on the specifics of education policy but to allow me to continue to discuss constitutional problems.
§ Mr. Brittan
Before my hon. Friend moves on, will he answer a question that I had in mind about the reserved powers and their lack of impact on this sort of situation? Granted that the reserved powers would not enable the Secretary of State to cause the Welsh Assembly to impose comprehensive education under 1510 the 1976 Act, does not my hon. Friend think that that fact would have meant that if the 1976 Act had been passed at a time when the Welsh Assembly was in existence it would have been necessary for it to be cast in a very different form altogether, much more directorial in impact than the way in which it has in fact been drawn, to have any impact on Wales at all?
§ Mr. Raison
That is an interesting point, which had not occurred to me. It has a great deal of validity.
1 am arguing that I am not persuaded that these reserved powers are adequate. I am not persuaded that the Government's decision in the White Paper from which I have quoted was a wise and sensible one. As I have said, the reserved powers embodied in the clause certainly do not give the Secretary of State the task of seeing that the Assembly operates the law of the land.
That brings me back to the problem on which I touched last night and which seems to me to be the fundamental weakness of the Government's scheme for Wales. I do not believe that it is possible to separate legislation for national policy—we are talking now about the law of the land in respect of Wales—from the execution of national policy. The whole notion in the Bill that legislation and execution can be carried out at quite different levels of government is very hard to justify. I am glad to see the Minister of State perking up. I look forward to hearing his justification.
I shall try to explain the matter. It is perfectly true that a Government can come to power and find themselves saddled with Acts that they do not like. When we Conservatives return to power we shall find on the statute book the Education Act 1976. But we have a very simple remedy—to chuck out that Act. I look forward to doing that. However, the position in regard to Welsh Assembly is that when the Welsh Government—perhaps I may use that term—come to power, they will find themselves having to operate Acts which they may intensely dislike but which they have no chance of getting rid of. They have no power to legislate, as we know, and that is a great difficulty.
Of course, it will be said that local government has always had to operate 1511 under this kind of constraint. I can imagine the argument being put forward that a Socialist local authority has to operate under Tory laws. Of course, that is true, but I do not really think that that is a valid analogy.
For one thing, there is normally an enforcement mechanism for local government. My recollection is that in the Education Act 1944 there is a passage very near the end of the Act which gives the Government some sort of power, in an extreme, to put in a commissioner, or something of that sort. It is something of a model of the power to put in a commissioner that led to some brouhaha concerning the Housing Finance Act 1972.
It would not be wrong to say—I do not think that the Minister would quarrel with me on this—that in many other pieces of legislation there is clearly power for central Government to intervene if local government does not follow the law of the land. Even where that is not spelt out, it is fairly evident that central Government have certain very powerful arm-twisting mechanisms.
Secondly, however—this is the real point; perhaps it is even more important than my previous point—local government has no claim to lay down overall national policy, while the Welsh Assembly is quite specifically to be given the power by, as it were, the acquisition of Section 1 of the 1944 Education Act, to lay down Welsh national educational policy—subject only to what is stated in the law of the land.
In other words, it is what might be called the non-statute making part of national educational policy that represents a collection of very powerful instruments. It enables powerful subordinate legislation to be brought in, and in the case of education and other matters it allows the printing of circulars that are not the law of the land but have, nevertheless, great powers. We know that it includes the operation of the rate support grant, which has pretty powerful implications. I think that I am right in saying that it includes control over capital programmes, and so on and so forth. It can be seen that this adds up to a set of very big powers.
Let me take an extreme example of something that I do not think is likely to happen. Let us suppose that the Welsh 1512 Assembly decided to adopt a rather Quebec-like policy about language. Let us suppose that it said "We shall now operate exactly the same conditions as the Quebec Government have recently introduced, saying that a person can learn English only if his parents learnt English", or something of that kind. I do not think that Plaid Cymru would be so brutal as to wish to introduce something like that. I know that there would not be enough Welsh speakers in Wales for that to be a tenable proposition. There is a different balance from that which exists in Quebec.
Nevertheless, something of that kind might come about. Let us suppose that the Assembly decided to operate a policy of that sort. I believe that it would have a lot of very powerful instruments at its disposal. It would not have the right to pass a law saying that a child could learn English only if his parents were English, or something of that kind, but it would have the right to use all the other devices—rate support grants, circulars, control of the capital programme, and control of all the other bits and pieces of the apparatus that a modern Government, perhaps unfortunately, have at their disposal.
Therefore, as I have said, things could go wrong. In my view, the clause does nothing to resolve this difficulty. It does not provide adequate means for central Government to make sure that both the spirit and the letter of the law of the land in general are being effectively operated under a Welsh Assembly. I believe, therefore, that we need stronger reserved powers to uphold the law and to align policy with the law.
I should like to ask the Minister whether he accepts what I have said as being an accurate factual statement—obviously, he will not agree with the argument—and whether it is the case that the duty of seeing that the law is implemented will now not, in effect, in any way fall on the Secretary of State except in relation to the specific questions of reserved powers and the Community.
I say to the hon. Member for Gloucestershire, West that what emerges from this is that, as a consequence of the Government's change of heart in the White Paper, if there is a dispute about 1513 the law of the land, the body that will decide it is the courts. If the Assembly were failing to implement the Education Act 1944, or something else, the only remedy that anyone would have would be to take the matter to the courts. Therefore, having changed their minds, the Government have enlarged the power of the courts as opposed to that of the Secretary of State.
That must be true. The Minister of State can tell me whether I am wrong but I do not see how it could be otherwise. If, for example, the Welsh Assembly refused to implement Section 76, the section concerning parental choice, which I have quoted, I should have thought that the only remedy that would exist would be for an aggrieved parent to hire my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) as his counsel and to take the matter to the courts. That is not always a very easy thing to do.
§ Mr. Watkinson
Perhaps the hon. Member can clarify my thinking, at least on this matter. I see a difference between something that is ultra vires and something that is reserved. Whether or not matters are ultra vires has always been a question for the courts, but whether a matter is reserved is a new concept, initiated under the devolution Bills.
§ Mr. Raison
I am arguing that the Secretary of State should have a power to intervene if the Welsh Assembly wilfully decides not to implement the law of the land. That is the essence of what I am arguing.
§ Mr. Brittan
Surely the position is that what the hon. Member for Gloucestershire, West (Mr. Watkinson) has said is not correct, because a definition of what a reserved matter is appears in subsection (3). A reserved matter is onewhich concerns Wales…but with respect to which the Assembly has no power to act.It is wrong to say that this is a pure policy matter, because we are talking about something having an effect on a reserved matter, and a reserved matter is therefore defined as something that the Assembly cannot deal with.
Perhaps I may also draw my hon. Friend's attention to Clause 72, which says that 1514Without prejudice to any power exercisable apart from this section, the Attorney General may institute, and the Assembly may defend, proceedings for the determination of any question whether anything done or proposed to be done by the Assembly is within its powers.Therefore, the idea that the courts have no role in this matter is farcical.
§ Mr. Raison
I am grateful to my hon. Friend for that intervention. It would be helpful if the Minister would say something at an appropriate stage, now or later, about the Attorney-General's role, to which my hon. Friend has just referred, and whether that would apply when the Assembly was failing to implement an Act as well as in the circumstances that were read out.
I believe that the courts have a fairly wide power—indeed, in some ways the sole power—in respect of matters that are not reserved. I do not get hysterical at the notion of the courts having a role to fulfil. I think that it is entirely right that they should operate as they always have. What worries me is the rather arbitrary nature of the arrangement. There are some matters which are to be decided by the Secretary of State, and those are covered in the clause. There are others which would have to be left to the courts, whether or not prompted by the intervention of the Attorney-General. My view is that we need stronger and more clear-cut powers than are given to us in the clause, and I regret that the Government should have taken part in the retreat that was outlined in their White Paper.
§ Mr. Ian Gow (Eastbourne)
When my right hon. Friend the Member for Cambridgeshire (Mr. Pym) moved the amendment, with which we are taking a series of amendments affecting Clauses 35 and 36, he asked the Committee what would be the procedure for monitoring whether the Secretary of State ought to take action under those clauses. I think that my right hon. Friend was right to pose that question.
It would be my prediction that the increase by 1,150 in the number of civil servants—the figure which appears in the last paragraph of the Explanatory and Financial Memorandum—will turn out to be a massive understatement, not least because there really will have to be very careful monitoring powers indeed if the 1515 Secretary of State is to carry out the duties laid upon him by Clauses 35 and 36.
At first sight, of course, Clause 35 (1) and Clause 36 (1) appear to be similar, but there is an astonishing difference in the wording. We are told in Clause 35 (1) that the Secretary of State may take actionif it appears to him desirable in the public interest",whereas in Clause 36 the wording isthat the public interest makes it desirable".We appear to have a much more objective test in Clause 36 and a much more subjective test in Clause 35.
In a sense, it is difficult to see how the powers contained in Clause 36 could ever be exercised if the Secretary of State had exercised properly the powers granted to him in Clause 35, because Clause 35 refers to his powers to intervene where there is a proposed action, whereas Clause 36 gives him power to intervene where action has already been taken.
I find it extremely difficult to understand why a Secretary of State should take action under his reserve powers in Clause 36 when an instrument has been made by the Assembly, because surely, if that were ultra vires, he should have taken action already under Clause 35 when the Assembly was proposing to take action. In a sense, Clause 36 is a long-stop to give further powers to the Secretary of State when he has spotted something only when it is de facto and he should have spotted when it was merely a proposal.
I believe that Clauses 35 and 36 will prove to be a recipe for total and continuing conflict. Although my right hon. Friend's amendment diminishes the mischief, the answer is that these clauses, however amended, will put the Secretary of State into a position where he will not exercise a judicial or a quasi-judicial function. It will be essentially a political function, and a political function to a much greater degree in Clause 35 than in Clause 36.
Who decides, under Clause 35, whether the public interest requires the Secretary of State to take action to prevent something which will be ultra vires? It is a breathtaking constitutional position that, where the Secretary of State believes something is to be done which is ultra 1516 vires, nevertheless he is not obliged to take action to prevent something which is unlawful unless it appears to him to be desirable in the public interest to stop the Assembly doing something which is ultra vires and therefore unlawful.
That is an astonishing degree of permissiveness, even for this Government, and there ought to be the most clear-cut formula—I do not see how else it could be done save through the courts—to the effect that when the Assembly is proposing to do something which is ultra vires, as envisaged in Clause 35, or when it is actually doing something which is ultra vires, as envisaged in Clause 36, there must be mechanism to stop the Assembly either proposing or implementing something which is ultra vires.
My hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) referred the Committee to Clause 72, but there is no duty laid upon the Attorney-General in Clause 72. He does not have to decide whether something is in the public interest. It is purely permissive. We could have the position that, although the Secretary of State believes that what the Assembly is proposing to do is ultra vires or that an instrument made by the Assembly is ultra vires, in neither of those two cases was he under an obligation to take action. Under Clause 35 it is only if it appears to him to be in the public interest, and under Clause 36 it is only if the public interest makes it desirable.
Although I agree that the test is more subjective in Clause 35 than it is in Clause 36, and although it could be argued—notably by my hon. Friend—that certainly under Clause 36 the Secretary of State has to exercise his discretion honestly and objectively, I think that even my hon. Friend would be hard put to it to persuade the Court of Appeal that there was not very wide discretionary power given to the Secretary of State under Clause 35.
§ Mr. Brittan
Would not my hon. Friend agree that the matter is made worse by the fact that, as a result of such decisions as that of the House of Lords in the Gouriet case, there is no way of compelling the Attorney-General to exercise his powers under Clause 72 if he does not choose to do so? What is more, there is no right for anyone else to take 1517 action in the courts, because almost certainly there would be no standing for anyone else to do so.
§ Mr. Gow
I agree very much with what my hon. Friend has said. Of course, the position is made even more absurd because, if the Attorney-General has to be brought in under Clause 72, that must mean, almost by definition, that the Secretary of State has failed to carry out the duties laid upon him under Clauses 35 and 36.
What I find so incredible is the fact that we shall have duties laid upon two members of an Administration—the Secretary of State, who presumably, even if the Bill becomes law, will be in the Cabinet, and the Attorney-General as the chief legal adviser to the Cabinet. Surely the Attorney-General should have given advice to the Secretary of State to take action under Clauses 35 and 36 without allowing a situation to develop where he himself would have to come in under Clause 72.
§ 8.30 p.m.
§ The First Deputy Chairman (Sir Myer Galpern)
Order. Although the hon. Gentleman is about to conclude, throughout the whole of his contribution he has referred to Clauses 35 and 36 but has made no reference at all to the amendment under discussion. I may be wrong, but at this stage we are not discussing whether Clauses 35 and 36 should stand part of the Bill.
§ Mr. Temple-Morris
This has been an interesting and not too lengthy debate, even though there has been tortuous discussion in the various contributions that we have had, not least the contributions of my hon. Friends the Members for Eastbourne (Mr. Gow) and Alyesbury (Mr. Raison). With due respect, although I very much support what he said, it seems to me that my hon. Friend the Member for Aylesbury was crying out against the whole principle of the Bill and this form of devolution. I was waiting for him to suggest some sort of out- 1518 come whereby the Assembly could be controlled in the considerable use of its powers as well as in manipulating them to further use than might be intended by this piece of legislation.
§ Mr. Raison
What I did was to pray in aid the Government themselves, who originally intended that they would have to carry out general reserve powers. But the Government then decided to relinquish that intention. I was arguing that I was sorry that these general reserve powers should have been relinquished.
§ Mr. Temple-Morris
That clarifies the matter somewhat more. Doubtless the Minister of State will deal with it.
With respect to my hon. Friend, however, while Amendment No. 225 does not go quite as far as those general reserve powers it goes a considerable way towards them. In many respects my hon. Friend was not relating his argument to the reserve powers as defined in Schedule 2 but rather was relating it to Amendment No. 225, which states:If it appears to the Secretary of State—That goes quite a long way towards what my hon. Friend was saying. He could afford to be more charitable to the amendment. I am glad that my Front Bench agrees with that somewhat loyalist observation.
- (a) that any action proposed to be taken by the Assembly would affect, directly or indirectly, any matter with respect to which the Assembly has no power to act".
I interpreted what my hon. Friend the Member for Aylesbury said as a general cry concerning matters upon which the Assembly would be given powers to act. I shall come in a moment to the powers given in this clause. But things like rate support grant, capital programmes and—with all due respect to the Welsh nationalists—the use of the Welsh language are matters of pure power to be exercised in one way or another by the Welsh Assembly, no more and no less.
I am afraid that the powers given by Clause 35 and covered by these amendments will make very little difference to the use of those powers. I shall deal briefly with Clause 35 as it stands. It seems to me that it is in order to argue—in deference to my hon. Friend the Member for Aylesbury—that they are quite Draconian in their effect. If one goes through Schedule 2 and looks at the 1519 various matters reserved and then turns to the phraseology of Clause 35(1)(a) and (b), it can be argued that the Secretary of State can give directions on a very wide range of matters. I have only to quote Clause 35(1)(a):any action proposed to be taken by the Assembly which would or might affect a reserved matter, whether directly or indirectly".Many matters can be brought within that consideration. I am arguing the Opposite way from my hon. Friend the Member for Aylesbury in taking the clause as it reads; "directly or indirectly" can cover a multitude of matters.
Clause 35(3) concerns Wales. I accept that limitation, but it also includes these words:whether or not it also concerns any other part of the United Kingdom".In arguing that these powers could affect a wide range of matters, I am reinforcing the argument that this is a recipe for clash, and that is the dilemma in which the Minister of State finds himself. At the end of the day he has to say "Here they are. They are such as we have been able to devise; they are not very effective. Take them and vote upon them." He must know that any Secretary of State who gives a direction to an Assembly on education, the rate support grant and so on has to fall back on the House of Commons, because the House of Commons has to approve an order for that direction. That is a recipe for clash and division, which means that Clause 35 and its related and associated provisions will result in impotence. I cannot see those powers ever being used effectively.
I hope that the Minister of State will give examples of how he will attempt to control the more extreme element of Welsh politics if, under the present electoral system, such an element were able in mid-term elections to take control. This can be argued inside or outside, but at the end of the day one comes down to the fact that the Bill is unrealistic. It is not a good piece of legislation. When one gets to the semantics of the argument, one realises how ridiculous the Bill is.
§ Mr. Ian Grist (Cardiff, North)
My hon. Friend the Member for Leominster (Mr. Temple-Morris) is right in saying that the Government do not know whether they are coming or going. At one time 1520 they talked in terms of legislative powers, and that would have been relatively clear-cut. The Government backed away from that and wanted to give executive powers, but they found that that also was difficult, so we are in a half-way house with Clause 35. We have this marvellous language which if one were still doing philosophy one could tear to pieces:if it appears to the Secretary of State…indirectly … might be affected".What do those words mean? What is meant by:desirable in the public interest"?Every politician knows what that means. It is something that is in his political interest, in his electoral interest, in his party's interest. That is what it will always mean. When the party in control of the Assembly is not the party in control at Westminster, it is a recipe for conflict.
My right hon. Friend the Member for Cambridgeshire (Mr. Pym), in moving the amendment, tried to tighten up this state of affairs, although my hon. Friend the Member for Aylesbury (Mr. Raison) thought that the clause was possibly too restrictive. One can argue this case both ways. One can either increase the powers of Westminster or make the Assembly more workable. It is one way or the other. As it is, we have a complete mish-mash. I refer here to the guidelines issued by the Secretary of State for Wales some time ago when he urged us to judge the devolution proposals on the basis that any change proposed should be quite clear. The Secretary of State said that. But clear is the very last thing that the clause can claim to be.
I am not too clear about what is meant byAny action capable of being so taken".Perhaps it refers to some inaction of the Secretary of State, or perhaps it is ultra vires. I simply do not know.
Although the clause and the amendment may be important, there is an air of unreality about this whole debate. We have only one hon. Member from a Welsh constituency present in the Chamber, and he is opposed to the Bill. The Minister is here, and he is only half in support of it—
§ The First Deputy Chairman
I am glad that the hon. Member for Cardiff, North (Mr. Grist) has mentioned that fact, because the hon. Member for Bedwellty 1521 (Mr. Kinnock) seems to have joined the Government Front Bench in support of the Bill.
§ Mr. Kinnock
The problem I have, Sir Myer, is whether I should consider this an elevation or a relegation. Perhaps you could inform me sometime in the future.
§ Mr. John Smith
We have had a short but interesting debate on the amendment moved by the right hon. Member for Cambridgeshire (Mr. Pym). As he conceded, the amendment uses the phraseology of the old Scotland and Wales Bill to define reserve powers. It is interesting that whenever the Opposition criticise something in this Bill they refer to something in the Scotland Bill as if that provided a better solution. I was not aware that Opposition Members had such enthusiasm for the Scotland Bill.
Speeches from hon. Members opposite, particularly the right hon. Member for Cambridgeshire, criticised this form of devolution because it is not legislative. But the right hon. Member had plenty to say about the sins of omission of legislative devolution when we were discussing it under the Scotland Bill.
The hon. Member for Aylesbury (Mr. Raison) said that he hoped that I would not criticise him for being niggling. I shall never criticise him on that score if he will promise me that he will stop referring to Scotland and Wales as "the Celtic fringe". That kind of phrase indicates that he is a Southern man. I do not suppose that he understands that there is anything offensive about it.
§ Mr. D. E. Thomas
Will the Minister of State promise me that in future he will use the word "Celtic" with a hard "C" instead of a soft one?
§ Mr. Smith
Certainly I shall seek to do that, provided that I am allowed to 1522 use a different phraseology when I am talking about a certain football team.
The right hon. Member for Cambridgeshire said that what we put forward in the Scotland and Wales Bill was more meritorious than anything in the Scotland Bill. It is true that we did not discuss the override clauses in either the Scotland Bill or the Scotland and Wales Bill. What attitude he would have taken to the Scotland and Wales Bill had we discussed that formulation when we reached it I do not know.
§ 8.45 p.m.
§ Mr. Brittan
On that point, I am very surprised that the hon. Gentleman should have expressed such ignorance, because in doing so he has shown himself to be less than his usual meticulous self. Although the Government guillotine did not permit discussion on the Scotland Bill, the most cursory glance at all the amendments laid down in the name of the official Opposition will be seen to have raised exactly the same points in relation to the Scotland Bill as are now being raised, but by a more happy coincidence those are actually being reached on the Wales Bill.
§ Mr. Smith
The hon. Gentleman is unfair to me, uncharacteristically, because I was referring not to the Scotland Bill but to the formulation in the Scotland and Wales Bill. He well knows that the formuation in the Scotland Bill is the same as in the Wales Bill. I was pointing out that it would have been interesting to know what the right hon. Gentleman would have said about the override clauses in the Scotland and Wales Bill had we reached them. I suspect that there would have been the gentlest of criticisms of their formulation, had we discussed them. It is a great pity that we did not do so on the Scotland and Wales Bill, but no guillotine can be blamed for that; it was because of the length of time that was taken in discussion and the attitude of the House that we did not reach that. I hope that the hon. Member will not think me over-critical if I am slightly suspicious that the right hon. Gentleman would not have approached it in the same spirit of adoption as he now shows.
§ Mr. Pym
In putting forward these amendments we have taken a constructive approach in trying to make less bad a Bill to which we thoroughly object. We 1523 have not debated Clauses 35 and 46, as in the Scotland and Wales Bill. I addressed my remarks to this group of amendments, as I was entitled to do. It is not right for the Minister to make sweeping generalisations. My hon. Friend the Member for Aylesbury widened the debate to some extent and raised many of the points that would have come up had we debated Clause 46 of the Scotland and Wales Bill, but the hon. Gentleman should not take it that because the form of words used in the Bill was taken from that Bill we would have accepted Clause 46 had we debated it in its full width and breadth, which I did not seek to do this afternoon in moving the amendment.
§ Mr. Smith
I am not seeking to be unfair to the right hon. Gentleman or to make too much of this, but it confirms my view that he would no doubt have been a little critical had we reached that provision in the Scotland and Wales Bill. I am glad that the process of education is going on and that what appeared in the Scotland and Wales Bill is now respectable. I shall explain that to the hon. Gentleman. As the hon. Member for Aylesbury has pointed out, there was a change. It was made clear in the Lord President's statement to the House. In this Bill the matter was formulated differently from the form that was used in the Scotland and Wales Bill.
I do not believe it would be wise for the House to accept the amendment, because the conditions precedent for policy override must of necessity be based on the judgment of the Government, a judgment exercised in the shape of the Secretary of State, and that judgment must inevitably be to a degree subjective. The testthat any action proposed to be taken by the Assembly would affect, directly or indirectly, any matter with respect to which the Assembly has no power to actis too narrow to be effective. There might be too great a burden of proof if the sole test were a requirement to demonstrate in advance that an action of the Assembly would have unacceptable repercussions on a reserved matter and could make policy override difficult to use or perhaps be unnecessarily controversial if used. There is a certain element of judgment in the matter. We would prefer slightly wider powers and would wish to keep the words "or might" in the definition. That 1524 was a point covered by one of the amendments.
The hon. Gentleman raised a point on which he has spoken before. One way of dealing with this is to have legislation and just to use the sovereign power of this Parliament to pass a piece of legislation effectively annulling or overriding something which the Assembly has done. As my hon. Friend the Member for Gloucestershire, West (Mr. Watkinson) pointed out in his speech and in an intervention, we think that this would be an unnecessarily cumbersome procedure. In many cases it might be taking a steam hammer to crack a nut if the matter to which objection were taken was not of very great consequence.
There is also the difficulty that it is not always easy to fit Westminster legislation into the often overcrowded programmes of Governments, irrespective of party. It is easier to use an override mechanism for the procedure, subject to parliamentary approval. Such a mechanism can be initiated only by the Secretary of State, by the Executive here. That is a matter to which we shall come later, since there is an Opposition amendment proposing that this power should rest on a parliamentary initiative. It is better to use the method in the Bill, involving parliamentary procedure, without having to go to the fuss and bother of passing special legislation every time we want to override an action of the Assembly.
§ Mr. Raison
Will the hon. Gentleman say a little about the point that I raised? What would happen if the Assembly failed to carry out its duties? I am not now talking about the reserved powers: I am talking about the general point. What would happen if the Assembly failed to carry out the law of the land? What powers do the Government envisage as existing to remedy that?
§ Mr. Raison
This argument can be taken in two ways. It so happens that one of the provisions of the 1944 Education Act was that there should be a central advisory council for England and Wales. There has not been such a council since 1967. For 10 or 11 years this Government and their Tory predecessors 1525 have failed to carry out the provisions of that Act. The Minister cannot possibly argue that it is automatically the case that the requirements of Acts of Parliament are carried out by Governments, whether national or, in this case, regional.
§ Mr. Smith
We are concerned with a serious breach of the law and not with possibly minor matters which are sufficiently small not to agitate anyone. If the hon. Gentleman is suggesting that we ought to write in powers to enable the appointment of commissioners, I have to say that we do not think that it is necessary to do that. Many constitutions work adequately without formal mechanisms. The hon. Gentleman will be aware that one of the fascinating things about the constitution of the United States is that the United States Supreme Court does not seem to have a mechanism for enforcing its judgments, yet they are universally accepted by the states concerned, although a highly developed concept of the rights of states is a permanent feature of the American political structure. I dare say that it will be possible for the Government to have recourse to the courts in certain circumstances. It would depend upon the situation that arose. I do not think that it is a likely possibility that the Assembly will deliberately defy the law—
§ Mr. Raison rose—
§ The First Deputy Chairman
Order. Before we proceed on this subject in any depth, I would like the Chair to be shown where the question being discussed at the moment arises in the amendment, or even in Clause 35. I do not see it anywhere. This is something that could be dealt with on Report or Third Reading.
§ Mr. Smith
This is not a point related to the amendment. You are absolutely right, Sir Myer, if I may respectfully say so. The hon. Member for Aylesbury asked me an intriguing question and I was seeking to give him an answer. I must accept your stricture and move on to the meat of the amendment.
What we are talking about is not to do with what happens if the Assembly deliberately does not implement the law but whether we should adopt the formula 1526 to override that the right hon. Member for Cambridgeshire is proposing or whether the method already in the Bill is better. To a certain extent this is a matter of judgment. The Government changed the formulation, and that was spelled out in the policy statement to which the hon. Member for Aylesbury referred. The hon. Member does not really want devolution at all; he wants powers considerably greater than those sought even by his own Front Bench. I understand that.
The hon. Member for Aylesbury does not believe in the concept at all. He wants to devolve as little as possible and, having devolved, to keep as much overriding control as can possibly be achieved. But we have to have a balance; we do not want to have powers that would mean that the Assembly could be circumscribed from any effective initiatives and policies of its own.
Devolution involves the granting to the Assembly of effective powers. We have to keep a balance, as we are still very much a United Kingdom and the Assemblies are subordinate institutions. There must be adequate reserved powers for the United Kingdom Government and Parliament to protect United Kingdom interests. On the other hand, there must be sufficient powers for the Assembly to work out its own distinctive policies and a genuine freedom of action and initiative. It is to get that balance right that we are seeking to have these reserved powers.
At one end of the spectrum there is the total unionist, such as the hon. Member for Aylesbury. I am not indicating that there is anything discreditable in that position. There is, at the other end of the scale, the total separatist. That is quite a consistent position to hold. We are neither; we are very much attached to the unity of the United Kingdom, but we do not think that the best way to preserve it is by keeping all the nations of the United Kingdom in the same straitjacket. Therefore, we seek to have some reserved powers consistent with genuine initiative for the Assembly.
In the statement of July 1977 we explained the reasons why we wished to make the change. We do not think that it is necessary to have a power of policy override in respect of the possible repercussions of what might be termed the 1527 English dimension of the devolved matter. One of the merits of devolution, as I have often argued, is that it will allow reasonable diversity within the continuing unity of the United Kingdom.
The Government do not consider that there should be a power of policy override merely because an action of the Welsh Assembly in a devolved area might be inconvenient for the United Kingdom Government of the day. We believe that policy override should be kept in reserve in case it is needed to protect matters which lie at the heart of the continuing unity of the United Kingdom, such as defence, trade, economy, energy, industrial policy, and the like. We do not consider that it is necessary to have a power of policy override, for example, to interfere with something that is done by the Welsh Assembly on education matters simply because it affects English education.
The hon. Member for Aylesbury disagrees with that. He would like power to circumscribe the Assembly in almost every sphere. We differ in judgment on this point. We see it as important to reserve such power on, for example, energy, but not on English education.
§ Mr. Raison
The Minister has misinterpreted my argument. I was saying that we have a law, which the Minister does not deny will continue to apply to Wales just as much as it always applied in the past—namely, the Education Act 1944. I was merely asking how the Government expect to make sure that the Education Act 1944 continues to be implemented in Wales.
The Minister made a comparison with the United States which I do not think was valid. The essence of the United States is that they wish to remain united. The fact about Wales is that there is a group of people who wish to be disunited. There was an occasion when the United States wished to be disunited. That was at the time of the American Civil War, and that showed that the federation was able to take firm action.
§ Mr. Smith
I did not intend that my analogy should go into that area. I was concerned with a very simple point about the enforcement of judgments.
The hon. Gentleman may reflect—I hope that I am not straying too far out 1528 of order—that he is under a misapprehension if he thinks that anything other than a tiny minority of the people of Wales do not wish to maintain fully the unity of the United Kingdom and that the vast majority of the people who would be elected to the Welsh Assembly would not be dedicated to the unity of the United Kingdom. In that respect, it will be the same as the United States, where I accept that the majority of people want to maintain the integrity of the union of the United States of America.
On Second Reading of the Scotland and Wales Bill and in other devolution proceedings there was an argument that the override clause powers in the Scotland and Wales Bill went too wide. It was suggested that we should not have powers as wide as we had in the Scotland and Wales Bill. We listened to that criticism at the time and came to the conclusion that it was wiser to have a more restricted power of intervention on override.
The right hon. Member for Cambridgeshire referred to a slightly wider power in some respects, so that it could include the English dimension, as it were, as well as other matters. But we take a different view. Our judgment was reached some time ago, and the result is in the Bill. The right hon. Gentleman said that we had changed our policy. We have made no secret about that change of policy. We announced it some time ago.
I turn now to the way in which we see the override operating. I hope that it will not be a frequent occurrence. The fact that these powers are present will in many cases resolve any possible conflicts. I am sure that, with these powers in the background, it will be possible to reach a satisfactory conclusion on any disputes between the United Kingdom Government and the Welsh Assembly. I do not imagine for a moment that with split or shared powers there will not be difficulties at the edges. Of course there will be difficulties at the edges, but the benefits to be gained from decentralisation outweigh the difficulties. I believe that it is possible for us to deal with these matters in a constructive spirit of good will and good relationships, which are a feature of our institutions. That applies to Scotland as well as to Wales. However, it is necessary 1529 to have these powers, and I believe that we have the balance just about right.
§ Mr. Grist
The Minister of State referred to some rough edges. It is all very well to talk of the Assembly being set up with the good will of the people of Wales. If such an Assembly came into being, its representatives would come largely from the Labour Party, which is deeply divided on the question whether there should be an Assembly, the Tory Party, which is opposed, the Liberal Party, which wants a federal structure, and Plaid Cymru, which does not want the structure but wants independence. Therefore, there will not be any good will. The rough edges will snarl up the whole system.
§ Mr. Smith
The hon. Gentleman seems to have a curious view of the people of Wales. The Assembly will come into operation only if they approve of it in a referendum. That is the answer to his question. If the hon. Gentleman is suggesting that if the Bill is passed by Parliament and approved by the people of Wales in a referendum, the setting up of the Assembly will be obstructed by Conservative Members or others, because of their views, that will be an unfortunate outlook for Wales. I am sure that people will seek to make the Assembly work—even those who are opposed to its being set up—because they will accept it as a fact of life. The normal spirit of public service will prevail and people will seek to make it work to the best of their ability. Indeed, they may in the process discover that it is not half as bad as they thought when they opposed it.
The right hon. Member for Cambridgeshire said that he hoped that the override power would not be used very often or that it might be thought a licence or an invitation to interfere. The wider or the stronger the reserved powers, the more they look like a licence or an invitation to interfere. We must try to get the balance right. We believe that we have got it right by giving sufficient initiative and power to the Assembly.
I do not know why the hon. Member for Cleveland and Whitby (Mr. Brittan) should find that an odd concept. It is a sensible concept to get the right balance. We believe that we have achieved the 1530 right balance. That is why I recommend this formulation to the Committee.
§ Mr. Brittan
I was going to answer some of these points if I managed to catch your eye at a later stage, Sir Myer. The reason why I demur is that it seems that the Minister is trying to have it all possible ways. On the one hand, it is a question of getting the balance right. On the other hand, he suggests that putting in the stronger power of override is an indication that it will be used often, and therefore it is better not to have such power. That seems an insupportable proposition. It is complete guesswork, when founding a legislative creature such as the Assembly on the basis of speculation, whether a weaker or stronger override power will act as a more or a less effective deterrent. It seems that we are building a constitutional structure on shifting sand.
§ Mr. Smith
I do not agree with the hon. Gentleman. Like most politicians, I am anxious to have it as many ways as I can, but that is not an uncommon feature of the way in which we conduct ourselves in this place. The hon. Gentleman must remember that his right hon. Friend the Member for Cambridgeshire said that the existence of these powers might be construed as a licence or an invitation to interfere. I do not follow that argument. I think that it is necessary to have reserved powers.
§ Mr. Smith
The giving of wider powers of control to include the English dimension as well as the United Kingdom dimension might equally be construed in that way. The formula in the Scotland and Wales Bill was a wider power of override than in this Bill. I suppose that some argument could be made about that.
We have had an opportunity to consider these powers. An opposite formula has come from the Opposition. I believe that the Government are wise to have retained a formula that includes the concept of balance.
§ Mr. Pym
Do the words "public interest" have any significance or meaning? If so, what interpretation does the 1531 hon. Gentleman expect to be put upon those words?
Secondly, does the hon. Gentleman agree that he has not answered my hon. Friend the Member for Aylesbury (Mr. Raison), who asked how the law will be insisted upon and carried out in Wales after the Bill is enacted, if it ever is? My hon. Friend raised various examples, especially in relation to education. I do not think that the Minister has indicated how the law would be imposed and carried out in Wales. He has simply said that in his opinion the Assembly would be of a character that would lead those involved to want to carry out its functions. He has said that they will be responsible people and that the majority of them will want Wales to remain part of the United Kingdom. However, that is no answer to the situation postulated by my hon. Friend. I think that he made his point with great force and accuracy. I am sure that my hon. Friend and the whole Committee would like to know the answer to the question.
§ Mr. Smith
I think that the hon. Member for Aylesbury knows that the Assembly will be responsible in Wales for the carrying out of education policy so far as it affects Wales. If that can be described as a national policy, the Assembly will be responsible for it. It will be a policy for Wales. I said "can be described as" because I believe that the hon. Gentleman was thinking of national policy as being United Kingdom policy. That is probably right. We all know that that is part and parcel of the devolution scheme.
Primary legislation will be carried out by the House of Commons. The Assembly will have to operate within that framework. It will be responsible for education policy within that framework. As I have said, primary legislation will be dealt with by the House of Commons.
The other question raised by the hon. Member for Aylesbury was much more fundamental. He asked what would happen if the Welsh Assembly flatly refused to accept or operate a directive. He wanted to know the mechanism that would be used for enforcing it. That is a deep constitutional stream down which to paddle. I should be out of order if I were to stray into that territory.
The right hon. Member for Cambridgeshire asked how we would interpret the 1532 "public interest". That is extremely difficult to forsee. The term "public interest" is often used in Acts of Parliament. In this instance the Secretary of State has to satisfy himself that a reserved matter would or might be affected and, in addition, whether it would be desirable in the public interest to use the powers that the Bill provides.
It is quite impossible to give a precise definition in advance of how the Secretary of State would interpret "public interest". It is useful for that term to be included, as it means that the Secretary of State need not take action if he thinks that it will not be in the public interest to do so. The important thing is that he will have to come before Parliament and justify the use of these powers. That course will have to be passed by Parliament. Before the Secretary of State decides to intervene and to use the powers he will have to satisfy himself that he has a convincing case for so doing, and a case that will be approved by Parliament.
The Government have put forward a sensible and intelligent way of going about these matters. I hope that the Committee will accept the way in which the Bill stands and that it will not accept the amendment.
§ Sir A. Meyer
The incursions of Scotsmen into Welsh affairs have not always been too happy, to judge by recent events at Cardiff Arms Park, but the Minister of State has handsomely restored the balance. One shudders to think what shape the Bill would be in without his presence.
The Minister has not had much support, however, from his Welsh colleagues. I speak as a representative of the only Welsh party which has half its Members present in the Chamber, and has had throughout these proceedings. Especially noticeable is the total absence at this moment of any Welsh Labour Back Bencher at all and the absence throughout the debate of any Welsh Members favourable to the Bill.
I am a little sorry, Sir Myer, that you did not call me later in the debate, because I have been listening—
§ The First Deputy Chairman
Order. The debate has to finish at 11 o'clock, so I do not know how late I can call the hon. Gentleman. I understood that 1533 the Opposition Front Bench spokesman was prepared to give time for the hon. Member for Flint, West (Sir A. Meyer) to make his speech.
§ Sir A. Meyer
Naturally, I am very grateful to you, Sir Myer, for calling me at all, especially when you have so many to choose from.
I have been listening to the debate, trying to find a solution to this problem which I could find intellectually convincing. Although, when the Committee divides, I shall be supporting my right hon. Friend's amendment, despite its awful syntax—almost as awful as that of the Bill itself—I do not find his set of solutions anything but slightly less bad than the solutions in the Bill.
If I keep asking myself why I can find no satisfactory way of providing for override powers, I am driven back to the point at which I started, perhaps not surprisingly—that the reason why the whole business of override powers is insoluble is that the set-up is absolutely unworkable.
Even before we started on this devolution road, there were already problems of demarcation between English and Welsh administration. Every Welsh Member is only too familiar with them. We are constantly writing letters to Government Departments only to get the reply that the matter is the province of the Welsh Office, which will be replying in due course. That means a further fortnight's delay, and when we get the Welsh Office reply we know that it has been written in an English Department and has merely been given a Welsh Office imprint.
§ The Under-Secretary of State for Wales (Mr. Alec Jones) indicated dissent.
§ Sir A. Meyer
On points of detail, obviously the replies emanate from the Welsh Office, but not when we ask what the Government's policy is, for example, in agriculture, transport or education.
§ Mr. Alec Jones
Surely the hon. Gentleman realises that agriculture has not been a devolved subject until now and that, therefore, it would be completely unreasonable to expect an answer from the Welsh Office. However, with the devolving of agricultural powers, he will receive his substantive answers on agricultural questions from the Welsh Office.
§ Sir A. Meyer
As I understood it, until now agriculture has been a joint responsibility in Wales of the Welsh Office and the Ministry of Agriculture. I am not trying to say that if I have a detailed question of the Welsh Office, I do not get a proper answer. I get very proper and courteous answers. My point, with which every Welsh Member will sympathise, is that we write to a Government Department to ask what is its policy on a particular range of subjects—like education and transport, particularly social services and the whole vast field covered by the Department of the Environment—and are told that they are matters for the Welsh Office. It is only because the question is asked by a Welsh Member that the reply has to come from the Welsh Office.
That shows that there are already demarcation problems between Welsh and English administration. They are not serious and can be sorted out by administrative action. The solution is built into the system, and if there are difficulties they are administrative difficulties. They cause delays and irritation but nothing worse.
§ Mr. Dafydd Wigley (Caernarvon)
Surely the hon. Gentleman has had the same experience as I on this matter—namely, that a question of general principle not related to a geographical area can be raised with the Minister for Housing and Construction. I have raised matters personally and I have always had courteous replies from that Minister. If it is a housing matter related to Wales it is transferred to the Welsh Office, as it should have been in the first place. However, the demarcation is clear.
§ 9.15 p.m.
§ Sir A. Meyer
My experience does not coincide with the hon. Gentleman's. We ask Questions in the House and we receive ministerial answers, but there are occasions when difficulty is experienced. My hon. Friend the Member for Cardiff, North-West (Mr. Roberts), who unfortunately has left the Committee, told me that on a number of occasions recently he tried to obtain an answer on policy from an English Department but has been referred to the Welsh Office purely because he is a Welsh Member. I do not wish to labour the point. I am trying to suggest that the solutions to the problem are built into the existing system, 1535 whereas under the system outlined in the Bill there will be an aggravation of existing demarcation disputes.
In a speech on an earlier amendment, I used the adjective "corrosive" to describe the structure laid down in the Bill. It will corrode the fabric of the United Kingdom. Nowhere is this corrosive effect more apparent than in the area of reserved and override powers. These provisions will build in areas of conflict. There is nothing in the Bill as drafted—or, I regret to say, in the amendment—that will diminish that damaging effect. It is true that an attempt is made in the schedules closely to define the permitted power of the Assembly, but the point has been made in speech after speech on both sides of the Committee, and on both sides of the argument, that whenever a directly elected Assembly is set up it automatically tries to increase its powers.
We have been unable to debate Clause 13, but clearly the Assembly will not content itself with the powers which, alas, we have given to it in the Bill or with making recommendations on the reform of local government but will go on and attempt to put those recommendations into effect, or will demand that right.
I have received a telegram from the Clwyd County Council, which has been somewhat torn in its attitude on this measure. The council finally voted against devolution by a majority. It was not a large majority, but it was unanimous in its view that the Assembly should not be given power to reorganise local government. I do not want to go over this ground again, but I wish to quote one phrase from the telegram:The Council though opposed to the Wales Bill by a majority is totally opposed to Clause 13 which it considers an alien clause leading only to centralisation rather than devolution and the negation of local democracy in favour of a regional power base.The council has put its finger on the vital consideration. I believe that the Assembly will become a regional power base. It will make great play of the fact that it has particular virtue by the very reason of its being directly elected. It will be in a constant state of conflict with the Secretary of State over the override powers. This is what I mean by its being a corrosive process.
§ Mr. Ioan Evans
One of the difficulties felt by the county council is that 1536 the subject committees to be set up by the Assembly will deal with the same subjects as those with which the county council deals—namely, education and other matters. The great fear is that there will be a duplication and that the Welsh Assembly, if formed, will be dealing with the same issues as are now handled at county level. This is why the county councils are making strong representations on Clause 13.
§ Sir A. Meyer
I have not examined that point. I do not know how far these reserved or override powers can be used to avoid conflict between the Assembly and the local authorities, but if I were to embark on that I should stray outside the terms of the amendment.
§ Sir Raymond Gower
My hon. Friend the Member for Flint, West (Sir A. Meyer) said that these were corrosive powers. The Minister of State said that he felt certain that this machinery would seldom be used. I hope that that is not a too optimistic view, because it seems to me that this is the most sensitive part of the legislation. It involves the relationship between Parliament at Westminster and the proposed Assembly. This is an even more delicate matter than the Minister has implied during the passage of the Bill and during our earlier tentious and almost objectionable.
One can imagine what could happen. The least miscalculation by the Secretary of State would arouse major controversy and strong dissident forces within the Assembly. The clause as drafted will enable the Government to override actions or decisions taken by the Assembly. Surely that means that we should frame this so that that would be even more rare than the Minister suggests.
I do not like the element of uncertainty. The Secretary of State will have to make decisions based on opinion and how the matter appears to him. I should have preferred a different machinery. I agree with my hon. Friend the Member for Flint, West that our amendments would have carried us a long way.
The Minister referred to the American Supreme Court. I should have liked us to rely on alternative measures such as the ultra vires doctrine. If the Bill was clearly worded and the reserved powers were clearly defined, as with the major 1537 local authorities, it would be practicable, when the Assembly went beyond its prescribed powers, to decide by a reliance on the doctrine of ultra vires. That could be sustained in some cases by the alternative of resorting to a special court. Unfortunately, that has not been included in the Bill. The Government have decided on this peculiar form which I find contentious and almost objectionable.
The Minister said that reliance on the Secretary of State's decision was all right because he would have to defend that here. That is not the issue. The point is, will it be acceptable to the Assembly? Because a decision has been made by the Secretary of State, the Assembly will argue that is wrong. Assemblymen will argue that it is his decision on what is in the public interest and that it is wrong. There are many grounds for conflict.
§ Mr. Wigley
Does the hon. Member follow the logic of his own argument all the way? If there is to be a constitutional court, which is what he implies, that leads to the question of whether there should be a written constitution. In that context, the issue applies not only to Wales but to the whole of the United Kingdom.
§ Sir R. Gower
Naturally, this is not difficult for me. I have always preferred a federal constitution which almost certainly would involve setting up some machinery in the courts. The Minister will know that. I cannot think of a federal system of any importance in the whole world where there is not some system of resort to a constitutional court to decide a conflict between the supreme Parliament and a regional one. If we had a constitutional system, I would certainly prefer also a system of resort to a constitutional court. That would have been far less objectionable than what we have here.
§ Sir R. Gower
Its coming might be postponed through our setting up a greatly inferior system which could produce a conflict which none of us wants and which the Minister deems undesirable.
My right hon. Friend the Member for Cambridgeshire (Mr. Pym) is confident 1538 that the new form of wording would improve the situation. It might do so marginally, but it is making the most of a basically imperfect solution.
§ Mr. Robin Maxwell-Hyslop (Tiverton)
It is difficult to guess what Clause 35(1)(a) might mean if it is not amended. It readsIf it appears to the Secretary of State—(d) that any action proposed to be taken by the Assembly would or might affect a reserved matter, whether directly or indirectly, or".One then has to look at subsection (3) to see what it is intended to mean. That arrangement is something we should, if possible, avoid in the drafting of legislation. It is a principle of sound legislative drafting that we should be able to look at a subsection and tell, without reference to another subsection, what it means.
§ Sir A. Meyer
Is it not a fact that in this magnificently drafted Bill nowhere does it say how many Members it is proposed should be elected to the Assembly?
§ Mr. Maxwell-Hyslop
I am shocked by this astounding revelation from my hon. Friend, but, shocking as that is, it is in no way surprising. The two words are not synonymous. That method of drafting which I recommend has a great constructional advantage in that one can tell what the subsection means, if it means anything at all, simply by looking at it rather than by referring to the explanatory lines 27 to 31 to which, as the Bill is drafted, reference would have to be made.
Let us assume we leave the clause unamended. What is a matter which might affect a reserved matter? Let us consider Clause 29, which appears to be quite clear. It reads:International affairs. The Assembly shall not in the exercise of its functions conduct relations with any country outside the United Kingdom.So far so good, one might think. But is the Isle of Man a country outside the United Kingdom? Outside the United Kingdom it certainly is. It comes under the Home Office only because the Sovereign happens to be Lord of Man by her ancestor's purchase. But is the Isle of Man a country for the purposes of the Bill? I cannot find a definition of 1539 "country" in any definition clause in the Bill. That being so, does Clause 29 interdict the Welsh Assembly and its Executive from negotiating with the authorities of the Isle of Man on matters which undoubtedly fall within the province of the Welsh Assembly? I honestly do not know. I suspect that the Minister does not know either. [HON. MEMBERS: "Answer."]
If the Minister wants to intervene, I shall gladly listen to his intervention before I continue. But if he cannot tell us here and now the answer to questions such as that, it means that his action is bound to be arbitrary rather than reasonable and predictable.
§ 9.30 p.m.
§ Mr. Wigley
Surely it is perfectly clear. The Isle of Man is outside the United Kingdom for all sorts of purposes, to which the hon. Member has referred, including the purposes of the EEC, and it can be defined as a country, as any other territory, whatever nominal title it might have, would be defined as a country. It is outside the United Kingdom. Although it has more powers over its own affairs than Wales will have under the Bill, it is still outside the scope of the Welsh Assembly being able to do anything about it. I should not have thought that there was any difficulty here.
§ Mr. Maxwell-Hyslop
It is not in dispute between the hon. Member and myself that the Isle of Man is outside the United Kingdom, but I think that some lawyers would hold that the word "country" means "sovereign independent State".
§ Mr. Maxwell-Hyslop
I thought that Wales was a Principality. Incidentally, even after the passage of the Bill it is not intended that it should be a sovereign independent Principality.
The Isle of Man has fulfilled one of the functions of a country, I would guess, in that the Isle of Man declared war on the Imperial German Empire in 1914. That is a historic fact. However, it was not a signatory to the Treaty of Versailles in 1919.
§ Mr. Maxwell-Hyslop
No, it was not Berwick-upon-Tweed. Does that indicate that the Isle of Man was a country in 1914 and not a country in 1919? It was outside the United Kingdom then and it is undoubtedly outside the United Kingdom now. Whatever has happened to Continental Shelves, its location has not changed.
This is an excellent example of how the exercises of these override powers will necessarily be arbitrary—that is, if they are to be exercised at all. If they do not need to be exercised at all, they could be excised rather than exercised. In other words, we could delete Clause 35 altogether, which would possibly save the Committee a certain amount of time.
This is not just a theoretical consideration, because there are functions which the Welsh Assembly might want to operate which could require negotiation with the authorities in the Isle of Man—concerning, for instance, sea fisheries. That is one obvious example. Another example appears on page 62 of the Bill, in Schedule 2, Part XX, General. That is the Tribunals and Inquiries Act 1971, Sections 5(1) and 12. It could well be that matters into which the Welsh Assembly might wish to institute an inquiry under the powers given in the Act might involve some citizens of the Isle of Man who had possibly been wrecked in a fishing vessel or had interfered with harbour navigation in Wales. The Isle of Man is located not so very far from the coast of Wales. That is another example of a matter in which the Welsh Assembly might wish to intervene.
Bearing in mind that some airports are operated by local authorities rather than by the British Airports Authority, it might well be that the Welsh Assembly or the Executive might wish to enter into arrangements, for instance, with the provincial Government in Northern Ireland. That is quite a possible situation. Clearly, that would not be interdicted. It is presumptuous to say "clearly", but that would not be interdicted, I would think, by Clause 29. However, if those negotiations involved the overflight of the sovereign air space of the Republic of Eire, I take it that the Minister's finger might twitch in favour of making a direction under Clause 35(5) which would be binding on the Assembly. Therefore, 1541 although I think we can anticipate certain spheres in which he could use these powers if he wished to do so, the borderline cases would depend entirely on appearances.
I think that the use of the wordsIf it appears to the Secretary of Statemust be regarded as intolerable legislative practice. There are some legislative provisions which can be challenged on the basis that the Secretary of State or the Minister concerned is acting unreasonably, but in such circumstances it would be a reply to any court action to say "I certify that it appeared to me to be desirable to do what I did. However ridiculous it may appear to anybody else, to my deluded mind it had this appearance." He would then have, fulfilled the requirements.
I should have thought that if we are to bring Clause 35 within the reasonable purview of the courts—this is a point of substance—so that a court could, potentially at least, determine whether the Minister was acting ultra vires or intra vires, there should be a very much more positive criterion than the wordsIf it appears to the Secretary of State".Even if it could be proved in court that the action was in no way outside the powers granted by the Bill to the Welsh Assembly or its Executive, as long as the Minister could aver "It appeared to me that that was so, even though I agree with you that it is not so", his override powers would be unimpeachable in any court.
§ Mr. Raison
I was hoping that my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) would intervene on that point. I should have thought that, after the Tameside decision, the assumption which is held in some quarters that what a Minister said was necessarily so—in other words, that the judgment was in the Minister's hands—is no longer as cast iron as it used to be.
§ Mr. Maxwell-Hyslop
No, but I believe this is an attempt, by the use of the wordsIf it appears to the Secretary of State".to make it cast iron. There are no qualifying words such as "If it appears to the Secretary of State upon reasonable grounds". The decision is absolute. It is 1542 at the Secretary of State's unfettered and, if necessary, unreasonable discretion.
I conclude this section of my observations by recommending the amendment on the basis that, although it makes the powers no more reasonable, and although it in no way restricts them, it at least makes the Bill very slightly easier to read. It is a marginal matter, but undeniably it makes the Bill five lines shorter. I would have thought that that must recommend itself to every hon. Member of the Committee. I am happy to say that the other amendments we are discussing have the same effect. As a result of those amendments, page 13 would become two lines shorter.
§ Mr. Wigley
On a point of order, Mr. Murton. Surely we are now suffering an extended filibuster. We have heard from Conservative Members how iniquitous the guillotine is and that there are important matters to be discussed later. Surely this is a classic example of the time of the Committee being wasted on matters of no substance.
§ The Chairman (Mr. Oscar Murton)
The hon. Member for Tiverton (Mr. Maxwell-Hyslop) must be allowed to make his speech in his own way and to advance his arguments.
§ Mr. Maxwell-Hyslop
I am most grateful to you, Mr. Murton, for your stalwart protection, because that was the very first allusion that I made to page 13.
The courts have often criticised verbosity in drafting. If they were to criticise verbosity in other respects, I believe that Ministers would most likely be on the receiving end. Indeed, were the courts to comment on irrelevance I think that Ministers at Question Time would come fairly high up in the list of those criticised. However, if in going though the Bill at each stage we can insert amendments which make the Bill marginally more clear and marginally less long, those amendments stand on their own feet as ones to be recommended.
§ Mr. Brittan
I am not in the least surprised at the lack of enthusiasm shown by some of my hon. Friends for the amendment that we are putting forward. It is put forward as no more than a palliative. We have made it quite clear that we oppose the whole structure of the Bill, and it is quite impossible by amending 1543 one clause to do anything substantial to improve it.
All that I am seeking to persuade my right hon. and hon. Friends is that within the extremely narrow limits provided for us by the structure of the Bill the amendment is a limited improvement. I do not think that any apology is necessary from any hon. Gentleman for the fact that we have had a somewhat protracted debate on these provisions, because they are at the very heart of the Bill.
One of the major criticisms which has been made both of the Scotland Bill and of the Wales Bill is that they provide a real risk of conflict between the devolved Assemblies, Westminster and the United Kingdom Government. At the heart of this crucial question of conflict lies the question of the division of powers between the Assembly on the one hand and the House of Commons and the United Kingdom Government on the other hand.
The mechanism of the override powers is one of the most delicate and crucial ones in determining where the balance lies between the powers of the Assembly and the powers of the House of Commons. Indeed, as the Minister of State in effect recognised, there is a dilemma. Do we make the powers to intervene in the actions of the Assembly very wide, or do we make them narrow? I would tend to disagree with the hon. Gentleman in this respect only. I do not believe that the extent of the conflict will be determined by whether we make the opportunities for intervention wide or narrow. It will be determined by whether we intervene often or infrequently. That is much more likely to be the determining factor of the degree of conflict than is the width of the powers that entitle intervention.
In so far as it is the nature of the powers of intervention that causes conflict or detracts from the extent of conflict, what is important above all is not that the power of intervention should be particularly wide or particularly narrow but that it should be particularly clear. That is one of the major points of criticism of the formulation of powers in Clauses 35 and 36.
It is important that the basis for intervention should be clear and apparent, 1544 that the criteria for judging these powers of intervention should be rational and defensible and that the people of Wales should be able to understand why the House of Commons is seeking to intervene in a particular case. It should not seem to be an arbitrary and capricious intervention on the part of the United Kingdom Government simply because the Government of Wales are doing something of which the House of Commons disapproves.
§ Mr. Cranley Onslow (Woking)
When my hon. Friend is making such extremely important points, will he reflect on the fact that, apart from the three Members on the payroll sitting on the Treasury Bench, the only so-called supporter of the Government who is in the Committee happens to be sitting on the Opposition side, thus indicating the totally uninterested contempt with which the Committee looks at the Bill?
§ Mr. Brittan
That is an important and significant observation, but it is one that could equally have been made at almost any time in the course of our debates. It is a scandal that the Bill should have got so far with that limited degree of support.
In considering the nature of the override powers and their extent, one has to say a word about the relationship between the override power and the question of vires. Although they are technically juridically and constitutionally separate, they are interrelated in the sense that, if there is an effective mechanism for ensuring that the Welsh Assembly does not exceed its legal powers, it may not be necessary to have quite so wide an opportunity for the use of the override powers. If, on the other hand, the powers that exist to prevent the Assembly operating in a way that is ultra vires are inadequate or unclear, it becomes that much more important to have an override provision.
I remind the Minister of State—I hope that I shall carry him with me on this—that the greater the extent to which one can rely on the ultra vires provisions, and the lesser the extent to which one can rely on the override provisions, the healthier will be the constitutional arrangements. The reason is that, although the Government have a schizophrenic attitude towards the courts, they 1545 have been driven to recognise in the evolution of the devolution proposals that it is unavoidable that questions of strict vires should be considered by the courts. The Government having recognised that fact, I suggest to the Minister of State that he would have done better to take more seriously the arguments put forward by my hon. Friend the Member for Aylesbury (Mr. Raison) on this matter and the vivid and apt illustration he gave of the Education Act 1976.
The provisions with regard to vires are inadequate, and that must reflect itself in our consideration of the override powers. My hon. Friend asked the simple question of what the Government would do if the Welsh Assembly failed to carry out the provisions of the Education Act 1976. The Minister did not give a satisfactory intellectual analysis of that problem.
The real position is that there are two possibilities arising here. The first is that in which the Welsh Assembly acts absolutely in conflict with the powers given to it and is in breach of the law. In that case the Minister has his answer in Clause 72, which enables the Attorney-General to institute proceedings against the Assembly to determine whether it is in breach of the law.
The more difficult question arises in the second case when there is an omission rather than a positive act of contravention of the law. In that situation the provisions of Clause 72 are inadequate, and the Minister might have to resort to the override powers. However, that should not be necessary. It should be possible to provide ultra vires determination powers as a much more acceptable alternative.
Even then, a further analysis is required. What may be granted by an Act of Parliament can be either a power or a duty to do something. If the Secretary of State for Education were granted merely a power that it transferred by the Bill to the Welsh Assembly, the answer is simple. The Welsh Assembly is in no sense obliged, except in exceptional circumstances, to exercise a power which is only a power and not a duty.
The 1976 Act is couched in terms of power for the Ministry but duty for local authorities. As far as that Act is concerned, if the Welsh Assembly does 1546 not like it and does not wish to enforce it, the Act will become a dead letter simply because it is couched in terms of power and not duty. That raises echoes of the matter of legislative devolution that we were debating last Thursday. That means that, if the United Kingdom Government in future wish to legislate for comprehensive education for the United Kingdom as a whole, they cannot safely use the form of the 1976 Act because it would put at risk the implementation of the policy in Wales, where implementation is entirely dependent on the discretionary exercise of powers by the Assembly.
There is a profound implication for United Kingdom legislation generally in this, because it means that instead of allowing himself to use a form of legislation of that kind the Secretary of State of the day, if he wished to have his policy effected in Wales, would have to draw it up in a tighter way, imposing duties instead of powers or going into greater detail.
As far as sheer duties are concerned, there is a gap in the Bill. Even if a duty is imposed by the 1976 Act, the Bill is not apt to provide a means of resolving the conflict without resort to the politically charged override provisions.
Clause 72 is the key clause in this. It enables the Attorney-General toinstitute, and the Assembly may defend, proceedings for the determination of any question whether anything done or proposed to be done by the Assembly is within its powers.But I do not find there—and the Committee will look in vain to see it—anything entitling the Attorney-General to institute proceedings to determine whether or not the Assembly is in breach of its duty in failing to act in a particular direction. That seems to me to be an area of conflict which could have been resolved by a simple addition to Clause 72, which would have been wholly consistent with the Government's general conception. I criticise the Government for failing to take on board this point, or to provide for it.
§ Sir David Renton
Has it occurred to my hon. Friend that there is a still further conflict to which reference has not so far been made, arising from the fact that any Attorney-General worth his salt places himself above political considerations in exercising the kind of discretion 1547 which he is sometimes given by statute and presumably is to be given here under Clause 72? There is at least the possibility that an Attorney-General, for good legal reasons, will find himself having to take a different view, on the question of ultra vires, which my hon. Friend has so rightly described as a politically charged decision of the Secretary of State under Clause 35.
§ Mr. Brittan
I absolutely agree, and for my part, in drawing the line I would wish that there were a greater role for the Attorney-General rather than a lesser one, if we are to avoid politically charged intervention.
At this point turn to the question of the extent to which override should operate—whether it should operate in accordance with the amendment proposed by my right hon. Friend or follow the scheme put forward by the Government. The Minister of State engaged in a certain amount of badinage, suggesting that we in this House had nostalgia for the Scotland and Wales Bill. There is certainly a tendency for the passage of time to cast a patina of nostalgia on even the most execrable object, but I can assure the Minister of State that the passage of time in this case has been insufficient to cast any kind of nostalgia on that particular legislative abortion, so he is deluding himself in that respect.
We have been entirely consistent, even if the Minister of State does not give us the credit for that, because although the guillotine did not allow us to raise it then, the very same point has now been raised as was raised on the Scotland Bill. The question is simply this: if one is saying that the Secretary of State can come before Parliament and seek to set aside the action of the Welsh Assembly if it affects a reserved matter, if it affects something with which the Welsh Assembly itself has not the power to deal, why should that right exist if what is affected is something concerning Wales—whether or not it concerns the United Kingdom as a whole—but not if what is affected concerns only England?
The argument in favour of altering the Scotland and Wales Bill formulation is simply insupportable. The Minister of State in seeking to defend it, put it in terms of saying that really only if the United Kingdom's fundamental interests 1548 are affected by Welsh Assembly action should we seek to set aside that action; only it such action affects the United Kingdom as a whole, if matters such as defence are affected, should we have the right to intervene. That was the example he gave in seeking to illustrate circumstances in which the United Kingdom would operate its powers in this regard.
lf, however, one is talking about conflict and about action which is taken by the Welsh Assembly which is likely to have unacceptable implications for this House, I would have thought there could be no clearer example of an action which would be unacceptable to this House than an action of the Welsh Assembly, taken within its own powers but having an effect on England in relation to matters such as housing, education or all other matters in which Wales and the Welsh Assembly do not have a power to act.
I cannot imagine a situation in which the hostility and oppositon to what is being done by the Welsh Assembly would be greater than one in which the Welsh Assembly does something which has an indirect or direct effect upon matters which are exclusively within the power of this Parliament because they affect England alone.
By narrowing the terms of possible override intervention from those obtaining in the Scotland and Wales Bill, the Minister of State has put himself in a position in which all of his strictures about how much better it is to operate the override powers than to intervene by legislation make no sense at all. What he is saying is that in the most delicate political area where the exercise of its powers by the Welsh Assembly has led to unacceptable implications for English education, English housing, the override powers are not available and the Minister has to intervene with the full-blooded Act of Parliament, the full-blooded legislative intervention which he wishes to decry. That seems to be an illogical position.
The Government may understandably have been anxious to alter the Scotland and Wales Bill because of the criticisms made of it. In this case they have altered it for the worse. They seem to have been panicked into making any change rather than a well-thought-out change. What the Minister of State said towards the end of his remarks was that the important thing 1549 to remember was that the fact that the powers were there would lead to their not being used all that much, because the Assembly would know of the powers and would not act in a way which would bring them into play. That argument would carry some weight if the powers were clear-cut, but they are not. They are expressed in vague terms. They talk about reserved matters being affected "directly or indirectly". They talk about a situation not only in which a reserved matter would be affected but one in which a reserve power might be affected.
In that situation the Welsh Assembly could not possibly know whether what it was doing would be regarded by a United Kingdom Secretary of State as
§ acting in a way which brought the override powers into effect. The suggestion that the existence of the powers would lead to the Assembly minding its "ps" and "qs" is entirely dependent on the powers being clear, not vague. However, vague is precisely what they are. For these reasons, although I do not pretend that the amendment moved by my right hon. Friend the Member for Cambridgeshire is more than a tiny improvement to an insupportable part of an indefensible Bill, for what it is worth, I commend it to the Committee.
§ Question put, That the amendment be made:
§ The Committee divided: Ayes 132, Noes 169.1551
|Division No. 142]||AYES||[10.04 p.m.|
|Adley, Robert||Harrison, Col Sir Harwood (Eye)||Onslow, Cranley|
|Atkins, Rt Hon H. (Spelthorne)||Haselhurst, Alan||Oppenheim, Mrs Sally|
|Banks, Robert||Hastings, Stephen||Page, John (Harrow West)|
|Berry, Hon Anthony||Hawkins, Paul||Page, Rt Hon R. Graham (Crosby)|
|Blaker, Peter||Hayhoe, Barney||Page, Richard (Workington)|
|Boscawen, Hon Robert||Hordern, Peter||Pattie, Geoffrey|
|Boyson, Dr Rhodes (Brent)||Howe, Rt Hon Sir Geoffrey||Pink, R. Bonner|
|Brittan, Leon||Hutchison, Michael Clark||Powell, Rt Hon J. Enoch|
|Brocklebank-Fowler, C.||Jessel, Toby||Price, David (Eastleigh)|
|Brooke, Peter||Johnson Smith, G. (E Grinstead)||Pym, Rt Hon Francis|
|Brotherton, Michael||Joseph, Rt Hon Sir Keith||Rathbone, Tim|
|Budgen, Nick||Kaberry, Sir Donald||Rees, Peter (Dover & Deal)|
|Burden, F. A.||Kilfedder, James||Renton, Rt Hon Sir D. (Hunts)|
|Butler, Adam (Bosworth)||King, Evelyn (South Dorset)||Renton, Tim (Mid-Sussex)|
|Bendall, Vivian (Ilford North)||Knox, David||Rhodes James, R.|
|Carson, John||Langford-Holt, Sir John||Ridsdale, Julian|
|Chalker, Mrs Lynda||Lawrence, Ivan||Rifkind, Malcolm|
|Churchill, W. S.||Lawson, Nigel||Roberts, Wyn (Conway)|
|Clark, William (Croydon S)||Lester, Jim (Beeston)||Shaw, Giles (Pudsey)|
|Clegg, Waiter||Lewis, Kenneth (Rutland)||Shepherd, Colin|
|Cockroft, John||Loveridge, John||Sinclair, Sir George|
|Cooke, Robert (Bristol W)||Luce, Richard||Skeet, T. H. H.|
|Cope, John||Macfarlane, Neil||Smith, Timothy John (Ashfield)|
|Dodsworth, Geoffrey||MacKay, Andrew (Stechford)||Speed, Keith|
|Douglas-Hamilton, Lord James||McNair-Wilson, M. (Newbury)||Stanbrook, Ivor|
|Drayson, Burnaby||McNair-Wilson, P. (New Forest)||Stradling Thomas, J.|
|Durant, Tony||Marshall, Michael (Arundel)||Taylor, Teddy (Cathcart)|
|Edwards, Nicholas (Pembroke)||Marten, Neil||Tebbit, Norman|
|Elliott, Sir William||Mather, Carol||Temple-Morris, Peter|
|Eyre, Reginald||Mawby, Ray||Thatcher, Rt Hon Margaret|
|Fletcher, Alex (Edinburgh N)||Maxwell-Hyslop, Robin||Thomas, Rt Hon P (Hendon S)|
|Fookes, Miss Janet||Mayhew, Patrick||Townsend, Cyril D.|
|Forman, Nigel||Meyer, Sir Anthony||Trotter, Neville|
|Fowler, Norman (Sutton C'f'd)||Miller, Hal (Bromsgrove)||Vaughan, Dr Gerald|
|Fox, Marcus||Miscampbell, Norman||Viggers, Peter|
|Fry, Peter||Mitchell, David (Basingstoke)||Walder, David (Clitheroe)|
|Gardiner, George (Reigate)||Moate, Roger||Warren, Kenneth|
|Gardner, Edward (S Fylde)||Monro, Hector||Weatherill, Bernard|
|Goodhew, Victor||Montgomery, Fergus||Wells, John|
|Gorst, John||Moore, John (Croydon C)||Wood, Rt Hon Richard|
|Gow, Ian (Eastbourne)||More, Jasper (Ludlow)||Younger, Hon George|
|Gower, Sir Raymond (Barry)||Morgan, Geraint|
|Grieve, Percy||Neave, Airey||TELLERS FOR THE AYES:|
|Griffiths, Eldon||Nelson, Anthony||Sir George Young and|
|Grist, Ian||Nott, John||Mr. Peter Morrison.|
|Hamilton, Michael (Salisbury)|
|Anderson, Donald||Bean, R. E.||Booth, Rt Hon Albert|
|Archer, Rt Hon Peter||Beith, A. J.||Boothroyd, Miss Betty|
|Ashton, Joe||Benn, Rt Hon Anthony Wedgwood||Bradley, Tom|
|Atkins, Ronald (Preston N)||Bennett, Andrew (Stockport N)||Bray, Dr Jeremy|
|Atkinson, Norman||Bishop, Rt Hon Edward||Brown, Hugh D. (Provan)|
|Bain, Mrs Margaret||Blenkinsop, Arthur||Brown, Robert C. (Newcastle W)|
|Bates, Alf||Boardman, H.||Buchanan, Richard|
|Callaghan, Rt Hon J. (Cardiff SE)||Hunter, Adam||Rose, Paul B.|
|Callaghan, Jim (Middleton & P)||Irving, Rt Hon S. (Dartford)||Ross, Stephen (Isle of Wight)|
|Campbell, Ian||Jackson, Miss Margaret (Lincoln)||Ross, Rt Hon W. (Kilmarnock)|
|Cant, R. B.||John, Brynmor||Rowlands, Ted|
|Cartwright, John||Johnston, Russell (Inverness)||Sandelson, Neville|
|Cocks, Rt Hon Michael (Bristol S)||Jones, Alec (Rhondda)||Sedgemore, Brian|
|Coleman, Donald||Jones, Barry (East Flint)||Sever, John|
|Concannon, J. D.||Jones, Dan (Burnley)||Shore, Rt Hon Peter|
|Cook, Robin F. (Edin C)||Kaufman, Gerald||Silkin, Rt Hon John (Deptford)|
|Cowans, Harry||Kerr, Russell||Skinner, Dennis|
|Cox, Thomas (Tooting)||Lamborn, Harry||Smith, Cyril (Rochdale)|
|Craigen, Jim (Maryhill)||Lamond, James||Smith, John (N Lanarkshire)|
|Crawford, Douglas||Latham, Arthur (Paddington)||Spearing, Nigel|
|Crawshaw, Richard||Lestor, Miss Joan (Eton & Slough)||Stallard, A. W.|
|Crowther, Stan (Rotherham)||Loyden, Eddie||Steel, Rt Hon David|
|Cryer, Bob||Luard, Evan||Stewart, Rt Hon Donald|
|Cunningham, Dr J. (Whiteh)||Lyons, Edward (Bradford W)||Stoddart, David|
|Davies, Denzil (Llanelli)||McDonald, Dr Oonagh||Stott, Roger|
|Davies, Ifor (Gower)||McElhone, Frank||Strang, Gavin|
|Deakins, Eric||MacFarquhar, Roderick||Summerskill, Hon Dr Shirley|
|Dempsey, James||McGuire, Michael (Ince)||Thomas, Dafydd (Merioneth)|
|Doig, Peter||MacKenzie, Rt Hon Gregor||Thomas, Jeffrey (Abertillery)|
|Dormand, J. D.||Maclennan, Robert||Thomas, Mike (Newcastle E)|
|Duffy, A. E. P.||McMillan, Tom (Glasgow C)||Thomas, Ron (Bristol NW)|
|Dunnett, Jack||McNamara, Kevin||Thompson, George|
|Eadie, Alex||Madden, Max||Tierney, Sydney|
|Ellis, John (Brigg & Scun)||Mahon, Simon||Varley, Rt Hon Eric G.|
|Evans, Gwynfor (Carmarthen)||Marshall, Dr Edmund (Goole)||Wainwright, Edwin (Dearne V)|
|Evans, loan (Aberdare)||Marshall, Jim (Leicester S)||Wainwright, Richard (Colne V)|
|Ewing, Harry (Stirling)||Maynard, Miss Joan||Walker, Harold (Doncaster)|
|Ewing, Mrs Winifred (Moray)||Mendelson, John||Walker, Terry (Kingswood)|
|Fernyhough, Rt Hon E.||Millan, Rt Hon Bruce||Ward, Michael|
|Fletcher, Ted (Darlington)||Morris, Charles R. (Openshaw)||Watkinson, John|
|Foot, Rt Hon Michael||Morris, Rt Hon J. (Aberavon)||Watt, Hamish|
|Forrester, John||Murray, Rt Hon Ronald King||Weetch, Ken|
|Freud, Clement||Newens, Stanley||Welsh, Andrew|
|Gilbert, Dr John||Noble, Mike||White, Frank R. (Bury)|
|Ginsburg, David||Ogden, Eric||Wigley, Dafydd|
|Golding, John||Orme, Rt Hon Stanley||Willey, Rt Hon Frederick|
|Graham, Ted||Ovenden, John||Williams, Rt Hon Shirley (Hertford)|
|Grant, George (Morpeth)||Palmer, Arthur||Wilson, Alexander (Hamilton)|
|Hamilton, James (Bothwell)||Park, George||Wilson, Gordon (Dundee E)|
|Hardy, Peter||Parker, John||Wise, Mrs Audrey|
|Harrison, Rt Hon Waiter||Parry, Robert||Woodall, Alec|
|Henderson, Douglas||Panhaligon, David||Woof, Robert|
|Hooson, Emlyn||Rees, Rt Hon Merlyn (Leeds S)||Young, David (Bolton E)|
|Howells, Geraint (Cardigan)||Reid, George|
|Hoyle, Doug (Nelson)||Robinson, Geoffrey||TELLERS FOR THE NOES:|
|Hughes, Rt Hon C. (Anglesey)||Roderick, Caerwyn||Mr. Joseph Harper and|
|Hughes, Robert (Aberdeen N)||Rooker, J. W.||Mr. James Tinn.|
|Hughes, Roy (Newport)||Roper, John|
|Question accordingly negatived.|
§ 10.15 p.m.
§ Mr. Brittan
I beg to move Amendment No. 229, in page 12, line 42, leave out from 'Parliament' to 'and' in line 1 on page 13.
§ The Chairman
With this we may take the following amendments: No. 230, in page 13, line 4, at end add—'() A direction ender subsection (1) of this section shall be given if the House of Commons by resolution so requires, and any direc-
- (a) shall, as regards its terms and the time at which it takes effect and otherwise, be in conformity with the resolution requiring it, and
- (b) shall, for the purposes of subsection (6) of this section, be deemed to have been approved by resolution of the House of Commons.() In the case of any direction under subsection (2) of this section that action shall not be taken, the Assembly or the Attorney General or any other person may, within the period of 28 days beginning on the date on which the direction is given, institute proceedings for the determination of the question whether the action proposed to be taken would be incompatible with any of the obligations referred to in paragraph (a) of the said subsection (2); and, if any such proceedings are instituted, the direction shall cease or (as the case may be) have effect only in accordance with the decision of the court in those proceedings.() A direction under subsection (2) of this section that action shall be taken shall not have effect until the end of the period of 28 (or, if the Secretary of State in the direction certifies that the public interest so requires, 14) days beginning on the date on which the direction is given; but the Assembly or the Attorney General or any other person may, within that period, institute proceedings for the determination of the question whether the action so directed to be taken is required for any purpose referred to in paragraph (b) of the said subsection (2); and, if any such proceedings are instituted, the direction shall take effect (if at all) only in accordance with the decision of the court in those proceedings.'.
§ No. 233, in Clause 36, page 13, line 29, leave out from 'Parliament' to 'or' in line 32.
§ No. 234, in page 13, line 40, leave out from 'Parliament' to 'and' in line 41.
No. 235, in page 14, line 10, at end add—
'() An order under subsection (1) of this section shall be made if the House of Commons by resolution so requires, and any older so required shall, for the purposes of subsection (5) of this section, be deemed to have been approved by resolution of the House of Commons.
() An order under subsection (2) of this section shall not take effect until the end of the period of 28 (or, if the Secretary of State in the order certifies that the public interest so requires, 14) days beginning on the date on which the order is made; but the Assembly or the Attorney General or any other person may, within that period, institute proceedings for the determination whether the instrument which the order revokes is incompatible with any obligation referred to in the said subsection (2) or provides for any such matter as is referred to in that subsection; and, if any such proceedings are instituted, the instrument and the order revoking it shall take effect (if at all) only in accordance with the decision of the court in those proceedings.'.
§ Mr. Brittan
This group of amendments raises two issues of some importance, both of which relate to the exercise of the override powers whereby the House of Commons may intervene and prevent action by the Assembly within its powers if, none the less, those powers as exercised affect, or might affect, a reserved matter. Whereas in the previous debate we were considering the circumstances in which the powers should operate, we are now considering the equally important matter of the manner in which the powers should be operated.
Tucked away within the verbiage of Clause 35 there is a provision that we regard as being extremely objectionable from the general constitutional point of view. I refer to subsection (6).
I remind the Committee that the mechanism of the override power is that if the Secretary of State regards action that has been taken, or is proposed to be taken, as being where the override power is operable, and he regards it as being in the public interest to use his power, he may direct that the proposed action of the Assembly should not be taken. Equally, he may do the reverse and require the Assembly to take action of a specific sort in the exercise of his override powers. However, that directive, whichever form it takes, has only a limited period of life. Under subsection (6) the directive made by the Secretary of State under his override powers ceases to have effect at the expiration of 28 days, beginning with the day on which it is given, unless before the end of that period a resolution approving the exercise of the Secretary of State's powers is passed by each House of Parliament. So far so good—or at least so good if we are to have an Assembly at all and if we are to have this form of override power.
1555 The objectionable part is the sting in the tail. The subsection goes on:A direction … shall cease to have effect … unless … a resolution approving it is passed by each House of Parliament or is passed by the House of Commons and confirmed by it under section 73 below.To see the mischief, one has to turn to Clause 73, which says:Where a resolution passed by the House of Commons … is in pursuance of any provision of this Act capable of being confirmed under this section, it may be confirmed by a further resolution of the House of Commons, but only if—In other words, if the Government seek to use their override powers—this is only one power where this provision applies—and cannot get their resolution through the House of Lords, they can simply come back to the House of Commons and get the same resolution through, using their majority, and that is that.
- (a) a motion for a resolution in the same terms as the original resolution is moved in the House of Lords but the House of Lords rejects it or fails to pass it within the period of ten days beginning with the day on which it is moved; and
- (b) the original resolution was passed before the end of that period of ten days; and
- (c) the further resolution is passed before the end of the period of ten days immediately following …"
That is wholly objectionable. I do not think that, if it is thought right that a resolution of each House should be required in the first place, it should be possible for the House of Lords to be bypassed in this objectionable manner simply by getting the House of Commons to pass another resolution. Some Labour hon. Members are strongly in favour of the abolition of the House of Lords. They can put down a motion to that effect and we should debate it in the confidence that the unwisdom of such a course would be demonstrable. But the right way to go about the process is to put forward formal proposals which can be debated on a proper basis by means of legislation and not to try to begin the process of abolition by a back door in this truncated form of resolution.
Some provisions of the Bill, particularly the financial provisions which require parliamentary resolutions—for example, Clauses 42 to 59—require only a resolution of the House of Commons. Although it is perhaps undesirable for anything 1556 but financial provisions, at least it would have been more honest for the House of Commons to be given power to pass the resolution required rather than going through the charade of sending it to the House of Lords and then allowing the Commons to overrule the Lords instantly by a single resolution of this kind.
If it is right that the House of Lords resolution cannot be got through, and if there should be a full parliamentary procedure, the Government should accept the consequences and know that they cannot get their override. An override is a serious matter and it is not unreansonable that if both Houses are required, prima facie, to pass the resolution, that procedure should be observed.
§ Mr. John Smith
Would the hon. Gentleman make one thing clear about his policy and that of his party? If a resolution is passed by the House of Commons and the House of Lords disagrees, does he believe that the House of Lords should frustrate it?
§ Mr. Brittan
The hon. Gentleman talks in grandiose terms of putting forward the policy of my party. I am flattered that he should think it appropriate that the policy of the Conservative Party should be put forward on this amendment at this hour of night in such a form. I do not think that questions of general policy arise. We have made clear what we think of this Bill and of the override provisions. But, for what it is worth, I can go so far as to say—I do not think it is necessary to go further—that, if there is to be a provision providing that each House of Parliament must pass a resolution, we believe that there should not be a provision to say that, if the House of Lords will not do what is wanted, the House of Commons can forget about it.
§ Mr. Brittan
I do not put the matter that way. If the Minister does not get the answer he would like, that does not mean that I have not addressed myself to the question. He must distinguish between the answer he would like and the answer I propose to give.
1557 The answer I give is that if there is a provision that requires a resolution of each House of Parliament it should not be possible to bypass it, or for the Government to take action unless that is done by a resolution of each House of Parliament. That is what the legislation, prima facie, says. If the Minister does not think it necessary to get a resolution through each House of Parliament, he should not make a provision which, on the face of it, says that there should be a resolution of each House of Parliament. There need be no more complication than that.
However, there is a second important constitutional matter that arises on the override provisions. As the Bill stands, it is the Secretary of State alone who can set in action the override provisions. It is purely a matter for him. The remaining amendments we are debating suggest that if the House of Lords passes a resolution requiring the override provision to be exercised, it shall have the effect of exercising that provision. It should not be necessary for the Secretary of State to introduce it.
I suggest that that is a modest and reasonable addition to the Bill. One must take account of the realistic fact that the Government will normally have a majority in the House of Commons and that a resolution of this kind will not be passed if the Government are totally opposed to it. Therefore, it is not simply a matter of allowing a maverick band of Back Benchers to take control of these delicate constitutional mechanisms, or to interfere in the relationship between the Welsh Assembly and the House. The Secretary of State of the day would be able to persuade the House that if it is firm Government policy, and if he can command a majority of supporters, such a resolution should not be passed.
We are asking for only a small chink in the armour whereby, if the House of Commons addresses its mind to something which the Secretary of State may not regard as appropriate to bring before the House, and if the House does not wish to follow the views of the Secretary of State, the wishes of the House should prevail.
We must also bear in mind that the Government control not only legislation but the overwhelming majority of the time of the Hounse. The prospect of such resolution being debated and passed against the wishes of the Secretary of 1558 State is not likely to occur with any frequency.
We are saying that if the House of Commons feels that the override provision should be exercised and then finds time to debate a resolution to that effect, and if, in spite of the majority of the Government, of whatever party, the House passes a resolution, it is reasonable, if one has any belief in parliamentary government, that the House should be entitled to secure its will.
In proposing this group of amendments we are in the unique position of defending in one debate both Houses of Parliament. We are defending the House of Lords against the exercise of the Draconian and unnecessary power that the Government might have. At the same time we are asserting the right of the House of Commons to secure its will over that of the Secretary of State if he wishes to exercise the override power.
For these reasons, I commend the amendments to the Committee.
§ Sir David Renton
My hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) has pointed out once again the extraordinary confusion in which the Government are placing the Committee. This confusion will persist if by some mischance the Assembly comes into being. The confusion arises from the combination of Clauses 35 and 21. The amendment would do something to reduce the confusion and clarify the position.
I understand that if the Assembly refuses to use the powers in Clause 21, under which it can pass subordinate legislation, it could come into conflict with the United Kingdom Government and their policy by refusing to pass legislation which has been approved by Parliament and laid down in statute. Under Clause 35 the Secretary of State has power to require the Assembly to pass subordinate legislation under Clause 21 which it has refused to pass. He would be required to do so—and I put this in the most favourable light—in order to overcome the conflict. The will of Parliament could prevail.
It is remarkable and without precedent that the Secretary of State should be able to give a direction to another Assembly 1559 to pass subordinate legislation. If there were a precedent, it would help us better to understand the position.
The situation becomes more confusing when we consider the confusion which arises under subsection (6). The House of Commons may by resolution take a decision and the House of Lords may have doubts about it. Under Clause 35 (6) and the combination of that with Clause 73 the House of Lords can decide that the House of Commons should be asked to think again. That is what the other place is for. It is not inhibited as we are by party political considerations—
§ Sir D. Renton
The House of Lords is a place of free thinkers. The mere fact that one party happens to have most Members does not of itself mean to those who understand the place that those Members dominate the scene the whole time. There have been many occasions in recent years when the Cross-Bench members and the non-Conservatives have won the day, irrespective of which party was in power, and have made the House of Commons think again.
The Government are trying to overcome the constitutional power and disregard the duty of the House of Lords. It has a duty to ask the House of Commons to think again if it conscientiously thinks it right to do so. The Government are doing it by what I consider to be a mean and underhand way. They are intentionally raising the conflict between the two Houses that has so far been most wonderfully avoided, whichever party has been in power.
We should bear in mind that when the House of Commons passes an affirmative resolution the House of Lords nearly always agrees. When it does not there has generally been a good reason for the non-agreement and the Government of the day have dropped the matter. But is it intended by the combination of Clause 35(6) and Clause 73 that the Government can create a precedent whereby whenever there is an affirmative resolution in the future the will of this House shall prevail and the House of Lords shall have no say in the matter? If that is what is 1560 intended, that is an important constitutional change. It should not be slipped in in this indirect manner.
I fully support what my hon. Friend the Member for Cleveland and Whitby said. I hope that he will not take it amiss if I express a small doubt about the drafting. A committee of which I was chairman, which considered the legislative processes of the House, heard most interesting evidence from the principal legislative draftsman of the United States Congress, Professor Reid Dickerson, a famous character in the English-speaking world for his expertise on drafting.
When he gave evidence to us, he said "I am an anti-deemer". That was his way of expressing it, in the way in which Americans do. What he meant was that he was against provisions in Acts of Parliament whereby we deem things to happen.
I observe that there is a case of deeming in Amendment No. 230. If the Government or my hon. Friend the Member for Cleveland and Whitby can think of a way around that, it would be an improvement to the drafting.
§ Mr. Brittan
I accept the reproof that has been given by my right hon. and learned Friend. I think that the answer is very simple. That particular subsection of the amendment could readily be dropped. All that would then happen would be that it would be necessary for another resolution to be passed. The purpose of it was simply that it seemed silly that where the direction was imposed by a resolution there should then have to be a second resolution confirming the resolution of the House itself, whereas if the direction was a ministerial direction it was obviously reasonable that it should be confirmed by resolution. But if the deeming is offensive, all that one would need to do would be to drop that, and then the principle of the House of Commons having the right to institute this remains and one merely goes through the formality of the second resolution.
§ Sir D. Renton
I think that I prefer the formality of the second resolution to yet another example of deeming being added to the Bill.
However, the case made by my hon. Friend was one to which the Government should pay heed. Clauses 35 and 36 are among the most unsatisfactory clauses in 1561 the Bill and they are quite unnecessarily complex. They raise constitutional issues which should not be slipped in in the way in which they have been. They underline the whole weakness of the relationship between the Assembly and the Secretary of State. This failure to decide whether the Assembly really has a devolved power is an example of blowing hot and cold. The question of this concurrent jurisdiction must have a means, and necessarily a rather complicated means, of resolution.
My right hon. and hon. Friends have made a valiant attempt to overcome the inherent disadvantages of these clauses by their amendments, and I suggest to the Government that between now and Report they should reconsider them.
§ Sir Raymond Gower
I wonder whether the Minister of State recognises that the way in which the clause has been drawn has placed the Committee in a very difficult position. As has been pointed out, this is at variance with our past procedure. I wonder why the Government have departed from precedent in this case.
Does the Minister know whether there is any precedent for this? I do not know whether my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) or my hon. Friend the Member for Cleveland and Whitby (Mr. Brittany knows of a precedent. I am not aware of any precedent for the use of this procedure in this manner. There is, of course, the procedure under the Parliament Acts and succeeding legislation.
§ Sir R. Gower
Yes, and that is not applicable in a case such as this. But that established that under certain circumstances there was a complete limitation of the power of the House of Lords in relation to financial matters and that there was a substantial limitation of the power of the House of Lords to delay other legislation.
The Minister of State, in an interjection, explained the reason for this unusual procedure by saying—he spoke rather quietly and rather quickly at the time and I hope I am not using the wrong words—that the wish of the House 1562 of Commons should not be thwarted by the House of Lords. If that be the case, was not the term "slipping in" correct? The Minister of State objected to that phrase.
§ Mr. John Smith
I did raise my eyebrows slightly at the phrase "slipping in", because the purpose is very plain and clear on the face of the Bill. Therefore, I cannot see how anything can be said to be slipped in.
§ Sir R. Gower
Yes, but it was fairly obvious that this is an unusual procedure to put in a Bill. It is not altering the general procedure, the general law, but is there merely for the purposes of the Bill.
§ Sir David Renton
It is quite clear that my hon. Friend has understood the position and that the Minister of State has not. I used the expression "slipping in" deliberately, because this is a Bill to establish a Welsh Assembly and it is not the right vehicle for altering the powers of the House of Lords. If the Minister of State, at this time of night, is so dim in his mind that he cannot see that as an example of slipping in, I suggest that he should now take a very well deserved rest and let someone else—perhaps even a Law Officer, at long last—help him out. He has done valiantly, but he really should understand the position that arises on the Bill.
§ Sir A. Meyer
Is it not the case that the Short Title ought to be amended to say "A Bill to provide for changes in the government of Wales and to reduce the power of the House of Lords"?
§ Sir R. Gower
I suspect that when I asked the Minister of State whether he knew of any precedent for this he would, had there been a precedent, have hastened to tell me. I suspect that there is no such precedent.
I should like to hear the answer from the Minister of State before we conclude the debate, because I think it is a very important matter. I challenge him to produce a precedent for the use of the power in this manner. I agree with my right hon. and learned Friend that it is most improper, in a Bill of this nature, 1563 to introduce it in this way. The Government are not merely introducing a Bill to alter the constitutional arrangements for Wales. They are also taking a step which, for the purposes of the measure, will alter the relationship between the two Houses which are part of our constitution.
It would be quite proper for the Government to introduce legislation to alter the relationship between the two Houses, but I respectfully submit that it is improper to do it in the context of the Bill. I hope, therefore, that the Minister will explain why it has been done and why this machinery has been devised.
§ Mr. Temple-Morris
I should like to say a few words on the question of the House of Lords. With respect to the Minister of State, he has not been very convincing so far in leaping up to the Dispatch Box and saying "What if the Lords frustrate?" As I understand the whole wretched measure, the way in which it is to be set up and the electoral system upon which it is to be based are designed to provide a Labour majority for ever. If the Assembly is to get that Labour majority for ever, what is the House of Lords to do? Is it to interfere with a Labour decision in the Assembly?
It seems to me that a little of the Labour dogma as used nationally has crept into the measure with the object of ensuring that there will be a Labour majority in the Welsh Assembly. If there were to be a Labour Government centrally and a Labour majority in the Welsh Assembly, does the Minister of State seriously consider that the House of Lords would interfere? If there is a Conservative majority nationally, it is unnecessary for the House of Lords to interfere anyway.
I stand here as a Conservative who is publicly committed to the reform of the House of Lords. It should be reformed, and it will be for the next Conservative Administration effectively to reform it so that it can perform its dual role with the House of Commons. To treat the House of Lords as an anachronism, to say that within 10 days if it does not come to a decision it shall be completely ignored, is utterly wrong. Whichever party might be in power nationally or locally, if the House of Lords decided with the Welsh 1564 Assembly and was then frustrated, imagine what would happen in Wales. It is a free House, whatever Labour Members may think. If an Upper House, with its inbuilt Conservative majority, were to decide with Wales, Wales being controlled by a Labour or coalition Assembly, what would happen?
§ Sir Raymond Gower
In the circumstances described by my hon. Friend the Member for Leominster (Mr. Temple-Morris) if the Members of the Welsh Assembly had any suspicion about the Secretary of State's action and that action was challenged by the House of Lords, would not their suspicions and their opposition be strengthened?
§ Mr. Temple-Morris
The whole Bill is nonsense. Under these provisions I do not believe that central Government—the House of Commons in particular—will take much action to contravene the wishes of Wales, because this legislation gives enormous power to Wales. The House of Lords is embroiled in such a way that that will merely strengthen the Welsh position.
It is constitutionally wrong to treat the House of Lords in this way. The Government have an obligation to deal with this problem and to produce the necessary legislation to do so. That will be a difficult task. I shall be interested to hear what ingenuity the Minister of State employs with this matter.
What will he say if the House of Lords sides with Wales against a Labour Government in Westminster? What will he say to his Welsh friends if they are supported by a Conservative House of Lords? That is the nonsense of this measure.
§ Mr. Peter Rees (Dover and Deal)
The speech made by my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) in support of the amendment was so lucid, reasonable and compelling that I felt there would be no need for me to intervene, but the Minister of State has proved by his interventions to be so unreceptive to those arguments and so intransigent that I hope I may be forgiven for intervening briefly.
As I understand the provisions of Clause 35 (6), read with Clause 73, they involve a considerable erosion of the position of the House of Lords. I am 1565 almost tempted to invite the Chair to rule whether those provisions are consistent with the Title of the Bill, which is to:Provide for changes in the government of Wales and in the constitution and functions of certain public bodies.I may be that in these contemptuous terms the Minister of State chooses to describe the House of Lords, in which case he is guilty of a grave affront to a body of co-ordinate jurisdiction and function with the House of Commons. I do not think we can dismiss the House of Lords as a "certain public body". If that is so, I venture to suggest—although it must, of course, be a matter for the Chair—that these matters should have been spelt out more properly in the Title.
§ Sir A. Meyer
I apologise for interrupting my hon. Friend's flow of Welsh oratory, but I feel that I must point out that we have at least one Labour Back Bencher, who is a real political heavyweight, joining the Government Front Bench.
§ The First Deputy Chairman (Sir Myer Galpern)
Order. The hon. Member for Bedwellty (Mr. Kinnock) is now a regular member of the Government Front Bench. He has been there before this evening.
§ Mr. Rees
I am sure that the hon. Gentleman's colleagues on the Front Bench are happy to see his elevation. Perhaps I may be the first hon. Member to congratulate him. Whether his elevation is due to his unfailing loyalty to the Government, or his transcendent oratory, I am not in a position to judge. Perhaps he will enlighten us in due course.
I shall now leave this tempting byway, although I am always happy to follow the career of the lion. Member for Bedwellty (Mr. Kinnoch). I prophesy great things for him in the Welsh Office, or maybe even in the Welsh Assembly—who knows?
On this occasion I am very concerned about the position of the House, and maybe the hon. Member for Bedwellty has ambitions in that direction. I am strongly in favour of the bicameral legislature, and I would be happy to debate its composition and powers some time. Whether I am entirely in harmony with 1566 my hon. Friend the Member for Leominster (Mr. Temple-Morris) only time will show. My consistent complaint against the Government is that we are compelled to debate against the clock issues of great political and constitutional moment.
As long as we have a second Chamber and it is an integral part of the legislative process, it must be quite wrong to exclude it from such an important matter as this. Why have this dual process in Clause 73 at all? Why not exclude the House of Lords entirely? Why not simply say that a resolution of this House of Commons would be sufficient to disqualify any motion from the Assembly? Why offer the possibility of the House of Lords, only to snatch it away by another provision?
There is only one representative of the Welsh nationalists here to listen to this debate. That demonstrates the profundity of their commitment to constitutional reform. I know the devotion of the hon. Member for Carmarthen (Mr. Evans) to Welsh culture, but the way in which he associates it with a Welsh Assembly eludes me. Welsh culture will not be preserved, strengthened or amplified by the existence of even a bilingual Assembly in Cardiff, That is irrelevant.
As we are to have a Welsh Assembly, I would suggest that if there is to be a conflict between the Assembly and the Government of the day, which under constitutional functions means between the Assembly and the House of Commons, the Welsh nationalists should feel better if, in that situation a matter of conflict were to be submitted to the cooler, less partisan judgment of the Upper House. Perhaps the hon. Member for Carmarthen should consider that.
If this amendment is forced to a Division, I hope that the Committee will disregard the paranoic obsession of the Government Front Bench with the House of Lords. If that House were reformed—and, who knows, we might have an Upper House elected on some basis or another—it might contain a Labour majority.
Is the Minister therefore concerned to sweep aside that possibility? The hon. Gentleman demonstrates by his rather contemptuous dismissal of that possibility that he is concerned only with the role 1567 of the Upper House to the extent of ensuring the unfettered and unhindered passage of Labour legislation under whatever circumstances, I find that a singularly shortsighted, not to say dishonourable, point of view. I hope that the Committee will not be swayed on these matters but will return again to the cool, limpid oratory—
§ It being Eleven o'clock, The CHAIRMAN left the Chair to report Progress and ask leave to sit again, pursuant to order [16th November]
§ Committee report Progress; to sit again tomorrow.