ADVICE FROM UNITED KINGDOM GOVERNMENT STAFF (Hansard, 2 March 1998)

§ Mr. Wigley
I beg to move, That the clause be read a Second time.
The new clause deals with the important matter of the right of members of the Executive Committee of the assembly to obtain advice from staff of United Kingdom Government Departments, or other public bodies, on matters that are relevant to their functions. Existing, and particularly proposed, legislation on subjects whose executive and administrative dimensions have been devolved will have implications for Wales. A member of the Executive Committee who is in charge of, for example, education or health in Wales might need advice from UK governmental staff in London who are drawing up legislation that affects Wales.

§ Mr. Denzil Davies
I am interested in the right hon. Gentleman's reference to UK Government Departments. 742 He also mentioned education and health. As I understand it, no UK Government Departments will cover education and health in Wales.

§ Mr. Wigley
The right hon. Gentleman may want to move an amendment on Report to deal with that matter if the new clause is agreed to. As he well knows, legislation dealing with education in Wales will be passed at Westminster, not in our National Assembly for Wales. However, a member of the Executive Committee of the assembly will be responsible for the implementation of such legislation in Wales. Particular circumstances in Wales may bear on the framing, content and implementation of such legislation.
I accept that the new clause may be defective because it refers to Government Departments, but it is a probing amendment. We are trying to establish whether the right to advice exists. I hope that the Secretary of State will be able to confirm that such a right exists, or that, if it does not, a provision along the lines of my new clause is needed. If it would better meet the requirements of the right hon. Member for Llanelli (Mr. Davies), a new clause could be tabled, worded differently from mine but at least going in the same direction.
The Bill needs to be clear. Those charged with making decisions in the Cardiff Executive need to know where they stand. The door needs to be open. Subsection (2) of the new clause provides for the drawing up of "a concordat governing arrangements" for that approach to be possible. The concordat is necessary, for the simple reason that there may be an Executive in Cardiff of one political persuasion, and a Government in London of another political persuasion.

§ Mr. Denzil Davies
That is devolution. The right hon. Gentleman wants devolution and a unitary state at the same time.

§ Mr. Wigley
This particular Member of Parliament would he very happy for all the law-making powers to be in our own national assembly in Cardiff, where the problem would not arise. The problem arises because of the split function, and the need to ensure that those in charge of framing legislation have some interface with those who must act on the implications of the legislation. My party would be very happy for the assembly to have the full powers available to the Scottish Parliament to make its own laws on, for instance, education, without having to come to Westminster; but that is not what we are discussing. The new clause tries to deal with the difficulty that may arise because of the split function.
We need a concordat of some kind, although whether it is enshrined in legislation may be another issue. We need ground rules to ensure that those who, from May 1999 onwards, will be carrying out their new responsibilities in the assembly know exactly what they can and cannot do. We do not want their route to be blocked by certain political considerations at Westminster. We want certain rights to be embedded in primary legislation—rights on which they can fall back when necessary.

§ Mr. Denzil Davies
I will speak briefly. The right hon. Member for Caernarfon (Mr. Wigley) became more and more confused as his speech went on—

§ Mr. Wigley
Rubbish.

§ Mr. Davies
That is the kind of reaction that we receive from members of Plaid Cymru—is it still Plaid Cymru?—when we criticise them.
743 The right hon. Gentleman mentioned a split function. There is no split function; there are two separate functions. The right hon. Gentleman is talking about the function of the assembly, and the function of United Kingdom Departments. The Treasury, the Foreign Office, the Home Office, the Department of Social Security, the Department for Education and Employment and the Ministry of Defence will be involved, but I can think of no other functions that will be carried out on a United Kingdom basis.
That goes to the heart of the problem. The right hon. Gentleman says that it is just a matter of drafting, but drafting often shows up defective thinking, and in this instance there has certainly been defective thinking. There is no reason why the assembly should go to United Kingdom Departments for advice. It can go to the Secretary of State for Wales, who presumably is considered to come within the ambit of the phrase "United Kingdom government departments". After all, he will have nothing much else to do.

§ Mr. Wigley
I should have thought that it was fairly clear that the Welsh Office is a UK Department for this purpose. The new clause covers the Secretary of State for Wales, but it also covers other Departments. It includes the Treasury—with which a link may well be needed—as well as Departments such as the Department for Culture, Media and Sport. When it comes to national heritage, the relationship between UK and Welsh responsibilities is very unclear.

§ Mr. Davies
Why on earth should a member of the Welsh assembly be able to demand advice from Her Majesty's Treasury about UK matters? I understand the point about the Secretary of State for Wales. I would not object if the new clause said that a member of the Executive Committee could request advice from staff of the Secretary of State for Wales—although he may not have staff—because, as a member of the Cabinet, he can presumably ask other Departments what effect this or that legislation will have on Wales.
It is being suggested, however, that a member of the assembly should be able to roam around under powers not available to Members of Parliament. I am not in favour of the Official Secrets Act, but it exists. Will members of the assembly sign it when they ask for information? Not only is the new clause misconceived: it shows how much confusion there is.
Subsection (2) asks for a concordat. Apparently, there are to be concordats in any event, because there is a real problem. Perhaps, when he responds to—and, I hope, rejects—this rather silly new clause, my right hon. Friend the Secretary of State will tell us when we shall see those concordats. Will they appear before Third Reading? My right hon. Friend indicates that that is possible. How will we be able to debate them, and with whom will they be drawn up? I cannot imagine that the assembly and the Cabinet Office will have their own little concordat. I do not see where the Cabinet Office comes into it.

§ Mr. Wigley
May I press the right hon. Gentleman, to ensure that I fully understand his objection? Does he object to the fact that we refer to a member of the 744 Executive Committee? Does he assume that there would be some links on a civil service level between those serving the Executive in Cardiff and civil servants here, given that we have a unified civil service?

§ Mr. Davies
That is not what the new clause says.

§ Mr. Wigley
I asked the right hon. Gentleman a question.

§ Mr. Davies
There is not much point in the right hon. Gentleman asking me. We are debating his new clause, and his new clause says that a Member of the Assembly—an elected Member, albeit a member of the Executive—can roam around Departments and ask civil servants for advice. It goes on to ask for a concordat to ensure that that happens. It makes no sense.
I do not want to go on about the drafting, but subsection (2) also refers to public bodies. Who are those public bodies? Again, Members of the Assembly can roam around and ask them questions. Does that apply to all public bodies? The new clause is wholly misconceived, but that is not the point; the point is that there is complete confusion in the right hon. Gentleman's mind—and, indeed, in his party.

§ Mr. Livsey
We support the new clause. The right hon. Member for Llanelli (Mr. Davies) seems almost to be asking whether there is a right to roam among civil servants, but I do not think that that is the context in which the new clause was tabled. I believe that it would give access to UK civil service expertise in regard to, for instance, important Ministry of Defence issues. There is a danger that a camp may be closed in my constituency, which would have a considerable impact on employment in the area. I am curtailing my speech, but I think that Members of the Assembly should have access to expertise on such matters.

§ Mr. Evans
I, too will speak briefly.
The right hon. Member for Caernarfon (Mr. Wigley) referred to the Executive sitting in Cardiff. I am not sure whether such a decision has been made. Presumably that was a Freudian slip, unless there is something going on which we have not yet been told.
Will the Secretary of State clarify the relationship that will exist between his Department, with its own civil service, and the assembly? Obviously, members of the assembly's Executive will make policy at a secondary level, but I suspect that they will want to have constant discussions with the Secretary of State. During our debates, we have been led to believe that there is a great hope that the assembly and the Secretary of State—irrespective of the political colours under which they happen to be flying—will work together in the best interests of the people of Wales. Perhaps he will put some flesh on the bones of the matter to show exactly what the Secretary of State will do after devolution. I suspect that much of his work will be negotiation and consultation with the assembly. Plaid Cymru is trying to have its cake and eat it. It wants the best of both worlds.

§ Mr. Ron Davies
My right hon. Friend the Member for Llanelli (Mr. Davies) was absolutely right in his critique of the new clause. The right hon. Member for Caernarfon 745 (Mr. Wigley) said that there should be consultation between the assembly and Whitehall Departments, but his new clause refers to a member of the executive committee", and that is its weakness.
The hon. Member for Ribble Valley (Mr. Evans) spoke about relationships. Obviously, there will have to be a close working relationship between the Secretary of State and his Department and the assembly. The better, closer and more clearly defined that relationship is, the better will be the government of Wales. I cannot pretend that in my inside pocket I have a list of do's and don'ts or prescriptions or rules that will apply to ensure that relationship. However, the holder of my office when the assembly is in being will realise that there is a heavy responsibility to ensure that the relationship operates as effectively as possible. I shall write to the hon. Member for Ribble Valley if he requires further information.
I understand why the right hon. Member for Caernarfon moved the new clause, but, as I have said, it is defective and does not seem to achieve what he wants. However, it is right to explore the nature of the relationship between the assembly and Whitehall Departments. It is important to remember that the Welsh Office does not operate in isolation from the rest of Government. There was discussion about the continuing role of the Department for Education and Employment and the Health Department. The assembly will derive its changing powers to operate under secondary legislation from the nature of primary legislation that has been passed by Parliament.
It is important that the desires of the assembly should be transmitted to people in Departments that are responsible for drafting legislation to facilitate the assembly's work. There will certainly be a need for a continuing relationship not only on the non-devolved matters that my right hon. Friend the Member for Llanelli spoke about—he mentioned the Home Office, the Treasury and the Ministry of Defence—but on devolved matters. At the moment, departmental work proceeds smoothly because information and professional advice are shared, and policies and secondary legislation are developed in consultation within Government. It is a two-way process.
The assembly will want a framework of liaison arrangements with relevant Departments, and they will be based on the existing positive relationships between civil servants in the Welsh Office and their counterparts in other Departments. Of course, those are relationships between civil servants and not between Executive Committee members or assembly Secretaries. The Government concluded that that relationship is best provided by a series of non-statutory concordats, whose nature has already been debated. My right hon. Friend the Member for Llanelli spoke about those.
It is most unlikely that the concordats will be available before Third Reading, but my right hon. Friend will know, and other hon. Members may be interested to know, that I published on Friday a statement of the principles for drawing up concordats. Copies have been placed in the Library. Hon. Members who wish to get a feel of the Government's thinking on the matter should study that document, which consists of two and a half pages. It could not be classified as a ripping good yarn, but it is worth reading.
746 It will be for the assembly to agree the concordats. In the meantime, we shall work up drafts based on the principle of providing the assembly and Whitehall Departments with the confidence that working relationships will be conducted properly and in accordance with agreed processes such as adequate consultation, and will avoid constraining either the assembly or Whitehall Departments in their fields of competence.

§ Mr. Wigley
Perhaps I could be clear. Is the Minister saying that the non-statutory concordats that may be developed will enshrine a right to ask for advice at civil servant level from Departments other than the Welsh Office if those Departments are in charge of drawing up legislation that may affect Wales? May I take it that that right would not be unreasonably refused?

§ Mr. Davies
As I have said, it will be for the assembly to agree the concordats, so I cannot give the right hon. Gentleman a categorical assurance about a right. I cannot bind the Government or the assembly on that, but I can make it clear that we shall certainly work up the drafts of the principles.
There must obviously be proper working relationships, and they require an exchange of ideas and information. While I cannot say to the right hon. Gentleman that rights will be enshrined in the concordats, which will be non-statutory, I can assure him that the Government wish to make sure that the concordats provide the necessary framework for consultation between the Government and the assembly.

§ Mr. Ancram
Last week, the Secretary of State answered a question on concordats and set out the basis on which they would operate. Am I right in thinking that they will not come before Parliament or, indeed, the assembly for debate?

§ Mr. Davies
We discussed those matters in some detail in earlier proceedings. The concordats will be non-statutory, and they will not be finalised until the assembly is established. As I have said, it will be a matter for the assembly and the Government of the day to decide how those matters are to be presented to Parliament. That is not to say that they will be presented to the House. The concordats will be agreements between the Government and the assembly and will not have any legislative force as a result of measures that have been passed by Parliament. I should be happy to discuss the matter.

§ Mr. Denzil Davies
Will the Minister give way?

§ Mr. Ron Davies
As my right hon. Friend knows, the knife is about to fall, but I shall give way briefly.

§ Mr. Denzil Davies
Will there be separate concordats for each Department or will there be one giant concordat?

§ Mr. Ron Davies
Just as there will be not one giant dome but a dome with a baby, so there will not be one giant concordat. I am not promising baby concordats, but there will be a concordat for each Department. We have already explored the matter. The working relationship between the assembly and the Ministry of Agriculture, Fisheries and Food will be close, and, because of the 747 European dimension, it will be important. The concordat for that Ministry will be different from those for other Departments in which the assembly's involvement will be less. There will be a series of concordats.
I take direct advice on only a few matters from officials in other Departments. We debated forestry policy earlier, and that is a good example, because on that I am advised directly by officials from the Forestry Commission, which is a public body. Of course, I also receive advice from my own officials.
The new clause provides for almost unfettered rights for assembly Secretaries to request advice from officials in any Government Department or public body. That goes far beyond current practice, and risks placing unreasonable work loads on officials in those Departments without any constraints on cost, time or good working practice. On that basis, we cannot accept the new clause as drafted. However, where appropriate, the relevant concordat will provide for assembly Secretaries to have access to advice on the basis on which I have access now, but it will be via civil servants of the assembly. It will be for them to have relationships via the concordats with Whitehall Departments before feeding the information to the assembly Secretaries.
I hope that the right hon. Member for Caernarfon—having initiated the probing debate that he wanted—has been satisfied by that response. I invite him to withdraw new clause 12.

§ Mr. Wigley
I am grateful to the Secretary of State for that response. Obviously, we will have to wait to see the detail of those concordats before we can reach any firm conclusion on them. However, I am glad that this short debate has facilitated an opportunity for the Committee to give some attention to the matter, and for the right hon. Member for Llanelli (Mr. Davies) to ask questions which were clearly worrying him on a matter that would not have been dealt with otherwise in our debates.
On that basis, I beg to ask leave to withdraw the motion.