HC Deb 02 February 1998 vol 305 cc788-92
Mr. Livsey

I beg to move amendment No. 27, in page 29, line 12, at end insert— '(3A) No function may be delegated to the Assembly First Secretary under subsection (3) above unless the executive committee (or the sub-committee, as the case may be) decides by no less than a two-thirds majority to make that delagation.'.

The First Deputy Chairman of Ways and Means (Mr. Michael J. Martin)

With this, it will be convenient to discuss amendment No. 198, in page 29, leave out lines 13 to 17.

Mr. Livsey

The Bill would allow the Executive Committee to delegate any function to the First Secretary, in the same manner as it would delegate functions to staff members. We believe that that power is too wide-ranging and perhaps even dangerous. The amendment would prevent delegation to the First Secretary without a two thirds majority vote of the Executive Committee or of the Sub-Committee that is making the delegation. We think that the amendment would prevent one or two Members from deciding very narrowly to delegate functions to the First Secretary and that it would provide a necessary check.

Mr. Letwin

Amendment No. 27 takes us back to our earlier debate on amendment No. 10A—specifically, amendment No. 31, which was tabled by my right hon. Friend the Member for Devizes (Mr. Ancram)—and on the articulation of clause 57 with clause 58. I believe that the Liberal Democrats, in tabling amendment No. 27, are guilty of a certain incoherence. They may share with my right hon. Friend the Member for Devizes and Conservative Members the ambition—which they expressed earlier in the debate—of establishing a cabinet system rather than a committee system, but their amendment will not achieve that effect. Amendment No. 27 would clarify the model that I mentioned earlier in the debate, but it would not help in developing cabinet government.

In the case of one Committee—the Executive Committee—no information has been vouchsafed in the Bill. The Executive Committee is quite the most remarkable Committee that 1 have come across in a piece of legislation. Its powers are entirely indistinct; it may have very great powers or very few powers. The matter will be left entirely to the Standing Orders.

Although the Minister may correct me in his reply, I believe that it would be within the scope of the Standing Orders, as permitted by the Bill, to give the Executive Committee complete power. I can find in the Bill no checks on the Executive Committee. Let us imagine the extreme situation in which the Committee has been given complete power. It would be extraordinarily important to determine whether the Executive Committee could or could not delegate all its functions to the First Secretary, giving him plenary power. As my hon. Friend the Member for Poole (Mr. Syms) said, that would be a case of one man, one vote. The one man would be the First Secretary, who would vote for all on all occasions. It would be the extremity of autocracy.

In a more moderate situation, in which powers have been delegated to a number of Committees and in which the Executive Committee has a defined remit that is not so great as complete power, limiting the Executive Committee's ability to delegate its powers to the First Secretary would make sense only if there were a series of coherent and parallel amendments ensuring that—by a two thirds majority, or by some other qualified majority—the other Committees could delegate their powers to their Secretaries.

Under those circumstances, we would have a coherent Bill as opposed to a mess. The amendment would, indeed, make the Welsh assembly in some respects parallel to local government. The assembly would be governed by Committees, each in turn governed by proportional representation reflecting the composition of the assembly. One could envisage that officers would work for a Committee as a whole, as in local government, and that decisions would be made on a rather muddled, but fairly transparent basis and with the guidance of officers, as in local government.

If, on the contrary, the amendment is not accepted, we shall be in a muddle. One possible resolution of that muddle is to move in the opposite direction. We could have cabinet government, but of an extreme kind and without the accountability that my right hon. Friend the Member for Devizes rightly seeks to have installed in the Bill.

This debate ought to give the Minister a chance to tell us what he so signally failed to tell us in response to the debate on an earlier set of amendments: in which direction the Government intend to go. Do they intend to establish Committees that will govern as Committees, with officers bringing forward matters for open discussion, as the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) suggested, or do they intend to create the opposite system, whereby power is delegated to individual Secretaries or to the First Secretary who will be able to govern without the slightest accountability? Alternatively, do they intend to create something for which the Bill does not provide—a middle course in which a set of people who are not accountable govern Wales? If the third option is what the Government intend, I hope that the Minister, in replying to this rather incoherent, but well-intentioned amendment, will try to come up with a middle course—a system of government for Wales which would be recognisable as effective and accountable.

Mr. Win Griffiths

The amendments give us the opportunity to reconsider delegation as a mechanism for distributing functions to Committees and individuals within the assembly and perhaps also to return to the earlier debate about the nature of the Executive Committee and the constraints on its powers—constraints that the hon. Member for West Dorset (Mr. Letwin) fears do not exist.

The assembly is empowered to delegate functions to the Executive Committee. Subsections (3) and (4) of clause 58 permit the Executive Committee further to delegate functions to the First Secretary, but subsection (4) makes it clear that the assembly can "limit or exclude" the Executive Committee's power to do that in a given case. The Executive Committee does not have a wholly untrammelled right to pass up powers to the First Secretary. The assembly as a whole has a constraining power.

Amendment No. 27 would limit the Executive Committee's ability to delegate to the First Secretary in the first place by requiring a two thirds majority to approve any such delegation. As the hon. Member for West Dorset pointed out, there is a contradiction in that amendment No. 198 would remove the assembly's powers to prevent or limit the delegation of a particular function to the First Secretary. We cannot accept either amendment. Amendment No. 27 would place a wholly artificial constraint on the Executive Committee's power to delegate, whereas our approach is to enable the assembly to develop flexibly to meet the new circumstances that it will face. I remind the Committee that clause 70 explicitly provides for the First Secretary to be held to account through questions, so there is no possibility of the unaccountable delegation of power.

8.15 pm

In an earlier debate, the hon. Member for West Dorset was much exercised about the First Secretary's being able to legislate, as he put it, without any constraints. The hon. Gentleman was, perhaps, in fact considering the exercise of Executive functions, but I point out to him that clause 65(2) requires subordinate legislation to be approved by the assembly.

Clause 66(2)(a) allows for approval by the assembly to be waived if the Executive Committee determines that in particular circumstances it is not reasonably practicable to seek assembly approval. That is a very specific and narrow remit. If that were done, clause 66(3) allows Members within 40 days to move a resolution that the subordinate legislation be revoked. Therefore, there are already a number of checks and balances within the legislation, even if powers are delegated from the Executive Committee to the First Secretary. The assembly is clearly always in control and could take steps to revoke an action or call the First Secretary to account.

Mr. Letwin

What the Minister has just said is very helpful. Much of his argument hangs on clause 65(2), but how wide is the scope of that clause intended to be? For example, would it prohibit the Secretary of a Committee or, in this case, the First Secretary from issuing a circular under the powers that the Secretary of State for Education and Employment has in England and which in Wales lie with the Secretary of State for Wales, and which will, therefore, have been delegated under the transfer order powers? Would it prevent him from issuing a circular or from making discretionary judgments about expenditures, or would it merely prevent him from bringing forward and enacting orders without taking them to the full assembly? If it would simply prevent the latter, would he simply have to do what is done in this House when an order is subjected to the affirmative or negative resolution? If that is the only check—that is, if the First Secretary or the Secretary of a Committee could take matters to the point of laying orders, often subjecting them only to a negative resolution—the democratic check that the Minister is claiming exists is very slight.

Mr. Griffiths

I was replying specifically to the issue that the hon. Gentleman had raised earlier and with which I was not able to deal in the context of that debate because of the time constraint. The First Secretary will not have a free hand in terms of subordinate legislation because it requires the approval of the assembly.

I have to say that I do not believe that a circular is subordinate legislation. Nevertheless, I find it hard to see the First Secretary, having had delegated to him from the Executive Committee the power to issue a circular, issuing circulars that would properly be the domain of the assembly's subject Committees. If that sort of delegation were to happen, the only fallback would be for the assembly to call the First Secretary to account if it believed that that circular was improper or that it provided advice of which the assembly did not approve. The assembly would, therefore, still have a check on the power of the First Secretary under any Executive Committee delegations to him.

Mr. Letwin

I am grateful to the Minister for allowing me to ask a further and final question. Does he agree that the Bill places no limit on the items that can be delegated to the Executive Committee? Although he does not suppose that the power of circular—which might be widely used, not just in matters of education, and might have behind it the power of expenditure—will be delegated to the Executive Committee rather than to a subject Committee, does he accept that it is possible because there is no limit on what can be delegated to the Executive Committee?

Mr. Griffiths

Yes. Technically, under the provisions of the Bill it could happen. However, the hon. Member for West Dorset should ask himself to what extent any politician in any assembly or parliament would be likely willingly to delegate everything upwards through an Executive Committee to one person. In the real world, that is not likely to happen. Even if it did, the assembly would still have the power to call the First Secretary to book and to make changes if the entire assembly disapproved of any decision. In that respect, we can be quite clear that the assembly has a check on the power of the First Secretary.

Amendment No. 198 would prevent the assembly from limiting or excluding delegation to the First Secretary in any given case. It seems to go in the opposite direction. It might well be appropriate for a particularly controversial matter, such as a major town and country planning order, not be delegated to an individual for decision, as is the case now when the Secretary of State can call in an application of enormous significance. We would not want to prevent the assembly or any planning Committee from being able to consider such an issue rather than referring it to the First Secretary. Under subsection (4), the assembly has the right to limit delegation. That is important to cover certain specific controversial points. I hope that, having heard those explanations, the hon. Gentleman will be happy to withdraw the amendment.

Mr. Livsey

I thank the Minister for his explanation which was sincere and meticulous. His answers to the probing questions from the hon. Member for West Dorset (Mr. Letwin) made us realise that there were more than superficial powers controlling the First Secretary in respect of the Executive Committee. However, we must realise that the Executive Committee will be an extremely powerful body in the assembly.

The debate has enabled us to find out more about the powers of the Executive Committee, the checks and balances in relation to the First Secretary and the lines of accountability. I am grateful to the Minister for his explanation and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 58 ordered to stand part of the Bill.

Clause 59 ordered to stand part of the Bill.

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