DELEGATION TO COMMITTEES, SUB-COMMITTEES AND STAFF (Hansard, 2 February 1998)

§ Mr. Öpik
I beg to move amendment No. 363, in page 27, line 30, leave out from 'Assembly' to end of line 31.
The purpose of the amendment is to remove the assembly's ability to delegate any function to a member of its staff. We want to ensure that responsibility within the assembly for all activity formally rests with elected representatives and Committees of elected representatives, rather than with those who are employed by the assembly, not elected to it. I see smiles of joy on the faces of Labour Members—[Interruption.] I will happily give way to the hon. Member for Delyn (Mr. Hanson), who cannot contain himself.

§ Mr. Hanson
Why does the hon. Gentleman support co-option, but oppose delegation?

§ Mr. Öpik
Without re-running our previous debate, I remind the hon. Gentleman that had the Committee agreed to co-opted members, that would not have taken away the responsibility of elected Members to vote on matters regardless of the advice of the non-voting, co-opted members. If the hon. Gentleman is now rejecting his former arguments, I invite him to intervene and say that he will oppose this amendment. I shall pursue my argument and then see what he has to say about it.
First, to "delegate any function" to a member of staff is too wide-ranging a provision. Unlike co-option, the clause proposes to delegate actual activities to unelected members of staff. The way in which the clause is phrased ascribes real responsibility and real decision-making powers to people who have not been elected. That contrasts with the situation of co-opted members, who would not have the right to vote, but who would have the right to give advice. That was the core of our previous debate. To be even more specific, the clause does not include a description of what functions can be delegated. Theoretically, at least, anything we could imagine could be delegated to an unelected officer of the assembly.
Secondly, there is no clarity about how such individuals could be seen by voters as being brought to book. As they would be employees rather than elected representatives, they would not have the same responsibility as elected Members to a constituency of support. If the hon. Member for Delyn wants to be consistent, he should support the amendment on the ground that he has been emphatic about his concern that even an assembly Committee with advice givers with no vote would be too strong a departure from responsibility being held by elected Members.
The delegation of any function is non-democratic in the wider sense. Our discussion about co-option has clearly highlighted what certain Labour Members believe. More to the point, the discussion caused excitement and concern that non-voting individuals would have such huge influence, gravitas and sway over elected Members that it could pervert the course of democracy.
If an officer is working on his own or in an unelected team, we do not need to suspect that he will make decisions—the clause overtly provides the authority for him to do so. That is not wrong in itself, but, as a democrat, I feel that it is dangerous to pursue that path because, inevitably, decisions will be made behind closed doors. No doubt, because of the high quality of staff, they will generally be good decisions, but the staff are not ultimately democratically accountable.
My third concern is that with the planned committee structure, there is no need to prescribe the formal delegation of responsibilities to individual members of staff. I shall explain how a business would deal with delegation. The removal of the provision relating to delegation to staff would not mean that the elected Members would have to carry out all the work; it would mean that elected Members and Committees would be responsible for carrying the can for the outcome of any work that was carried out. That is not a subtle distinction; it is a profoundly important one. It means that the buck cannot be passed down to unelected officers if things go wrong. In other words, elected representatives would always be brought to book if things did not go according to plan. That would be common practice in business. If we want to have a businesslike assembly, we should follow that common practice.
787 The debate about co-option was interesting in underlining how all of us are committed to ensuring that democratic processes are not just carried out, but are seen to be carried out. It would be a matter of confidence for the public if they knew that the assembly could not, in theory, delegate wholesale the important decision-making functions to members of staff. In practice, there may be an element of scaremongering by those who suggest that the assembly would be so lazy as not to carry out or take responsibility for the functions carried out by staff. I do not think that that will happen, but there is no point in leaving a hostage to fortune in the wording of the Bill. That is why I tabled the amendment.

§ Mr. Jenkin
We are inherently attracted to the amendment. We cannot understand why the assembly should be allowed to shuffle off its responsibilities on to unelected members of staff. I do not believe, although I stand to be corrected, that the Bill contains a definition of "staff'. Therefore, if we leave the Bill as it is, Parliament's intentions are far from clear.
It is extraordinary that, after all the apparent clamouring for a Welsh assembly, no sooner will the assembly Members have all these responsibilities than they will want to hand them over to their members of staff. That is the implication in the Bill.

Mr. Gareth Thomas
Will the hon. Gentleman give way?

§ Mr. Jenkin
I am always scared when I see a lawyer jumping up in front of me.

Mr. Thomas
Does the hon. Gentleman accept that there is a whole range of mundane functions, such as employing people to repair the roof—to be topical—or to carry out all sorts of ancillary functions, that, on any common-sense view, need to be delegated to the staff? Does it not fly in the face of reality to say that there is strength in the amendment? The clause is purely an enabling measure.

§ Mr. Jenkin
Although—unlike the hon. Gentleman—I am not a lawyer, I do not think that that is what the clause says. It does not say that mundane matters may be delegated to the assembly staff; it says that any function may be delegated. It is perfectly reasonable for assembly staff to act on behalf of elected Members, but it is quite another matter for functions to be delegated formally to staff.
I come back to the point made by the hon. Member for Delyn (Mr. Hanson). Although we are being told that the assembly will provide an escape from the "quangocracy" that has dominated Welsh politics for too long, allowing such delegation would seem to take us in the wrong direction. Undoubtedly, however, the Minister will be able to give us a full and adequate explanation. I look forward to hearing his reply.

§ Mr. Win Griffiths
I thank the hon. Member for Montgomeryshire (Mr. Öpik) for moving the amendment, because it gives us a chance to explain exactly why the Bill makes such provision. As hon. Members know, delegation is the principal mechanism for distributing functions to 788 Committees and to individuals within the assembly. In central government, a principle of constitutional law—known as the Carltona principle—acknowledges that a Minister's functions can be performed on his or her behalf by duly authorised officials.
In considering the assembly, however, the Government had some doubt about whether the Carltona principle would automatically apply in the new and novel circumstances of the National Assembly for Wales. Rather than leaving the matter to chance, we thought that we would include in the Bill a clause dealing with the daily management of government, at least as practised at Westminster.
I should underline the fact that delegating a function to an official does not mean that the assembly Secretary or the assembly will not be responsible if something should go wrong. Some planning appeals provide a simple current example of how a Minister delegates a function. In certain well-defined circumstances, the Planning Inspectorate carries on with the job of dealing with the appeals, and the Minister does not get involved administratively in that part of the procedure.
Clause 55 attempts only to ensure that there is a proper defence for executing government functions in Wales as they are executed in England, Scotland and Northern Ireland. The proposed provision is exactly the same as current provisions applying in the Welsh Office and in relationships between Ministers and civil servants. Responsibility will still rest with the assembly Secretaries or the assembly, and the clause will not permit any passing of the buck. I hope that that explanation of the clause's intention—to clarify the position and to remove a legal loophole—will persuade the hon. Member for Montgomeryshire to withdraw the amendment.

§ Mr. Öpik
The hon. Member for Clwyd, West (Mr. Thomas) painted a graphic picture of assembly Members clambering across the roof to fix it—which would do wonders in improving the public image of politicians, and is perhaps the strongest argument in favour of passing the amendment. Nevertheless, the Minister has very helpfully defined the Government's intention in including the clause in the Bill. On that basis—despite the jangled nerves of the hon. Member for Delyn (Mr. Hanson) in relation to democratic accountability; I hope that he will forgive me for assuming that his nerves have been calmed, as mine have—I beg to ask leave to withdraw the amendment.