DEVOLUTION TO SCOTLAND AND WALES (Hansard, 28 January 1976)

§ The LORD CHANCELLOR (Lord Elwyn-Jones)

My Lords, in his opening speech yesterday, my noble friend the Leader of the House explained the Government's general approach to devolution. We see it as essentially a process of moving power closer to the people, and bringing bureaucracy and its work more effectively under democratic control. We believe that this change will not only serve to make the conduct of public business more responsive and more acceptable to the people of Scotland and 922 Wales in devolved matters; it will at the same time lighten the excessive load upon Ministers and Parliament, and so help to improve the conduct of matters for which responsibility will still remain with our central institutions. I suspect that none of your Lordships, especially the many who have had experience of Government, will doubt that the central burden is at present too heavy to be carried effectively. The delegation of part of that burden to new democratic institutions, nearer to and with closer involvement and participation by the people, can therefore bring a double benefit.

The Government have done a great deal of work to elaborate this basic philosophy into a detailed scheme, so that debate can focus upon specific practical issues, and not just broad generalities and rhetoric. We are convinced that the broad concept that we bring forward is right, but we do not claim finality for every facet of the proposals. We look forward and shall of course be responsive to the "grand inquest of the nation", conducted particularly through Parliament.

All of us in your Lordships' House will recognise the profound constitutional significance of the enterprise on which we have embarked. As the noble Lord, Lord Home, said yesterday in his notable speech, it raises the greatest constitutional issue which has faced our country since 1707. I am sure we all hope that the continuing public debate will be conducted in an atmosphere of tolerance and calm, as a matter for cool heads, not hotheads, as it was so signally conducted in your Lordships' House yesterday. During the debate, it was approached from all sides in a spirit of seeking to achieve the widest possible consensus and not in any spirit of simply scoring Party points. The quality of the debate underlines the special contribution that your Lordships' House can make in great constitutional issues of this kind.

I should like to begin by considering particular features in the Government's White Paper relating to some of the constitutional issues and to some matters relating to Wales, which took rather a back seat yesterday—not a customary position for Welshmen to occupy. But, first, I think is is important that the general philosophy within which our proposals are 923 intended to work should be fully appreciated. The White Paper makes clear that the schemes for Scotland and Wales are designed to give wide freedom to the new Administration in domestic matters which arc of closest concern to them, while ensuring at the same time that the essential interests of the United Kingdom as a whole are safeguarded. The lines of responsibility between the United Kingdom Government and the Scottish and Welsh Administrations will be as clear as possible. Every effort will be made to avoid overlap and uncertainty. But our researches have shown that, with the best will in the world, it is impossible to define respective responsibilities down to the last detail; and even where that is possible there will still be matters of mutual interest on which London, Edinburgh and Cardiff will wish to keep closely in touch. For these reasons, arrangements will be needed for extensive and flexible consultations at all levels, political and official.

Inevitably, there will be differences of opinion. One of the main reasons why we are setting up the new Assemblies is to enable Scotland and Wales to do things differently if they wish. And it is hardly to be expected that what they propose will always be to the liking of the United Kingdom Government. The Government must obviously be prepared to accept the natural consequences of the new freedom which is being given to Scotland and Wales. But, as the White Paper indicates, that does not mean that the long-standing spirit of partnership within the United Kingdom will be lost. In the Government's view it will be possible—indeed, it will be in the interest of all of us—to develop, in a friendly spirit, effective two-way, or indeed three-way, consultation and co-operation. In the background there will be the Government's continuing responsibility for the essential interests of the United Kingdom as a whole. That responsibility cannot be shed. If you are not to have either complete separation or federalism, then sovereignty remains with the United Kingdom Parliament; and in those circumstances it must follow that, ultimately, the United Kingdom Parliament can pass Acts of Parliament on any matter, whether or not it is devolved.

924 There are in fact more detailed procedures built into the White Paper, proposals which would enable the Government to intervene, subject to the approval of this Parliament, where some act of the Scottish or Welsh Administration would otherwise have harmful consequences for the United Kingdom. But there is no reason why these powers should be a source of conflict. I will come to the details in a moment. The preliminary general point I seek to make is that very substantial powers are being devolved and the Government will be prepared to see them used in ways which they do not necessarily like. If that happens, it will not in the ordinary course be a case for intervention. Such an approach would kill devolution.

Turning now to particular features of the proposals, may I first say a word about what was discussed yesterday; namely, the procedure for checking the vires of Scottish Assembly Bills? It can be seen from paragraph 56 of the White Paper that under our proposals it is envisaged that there will be a good deal of informal checking on the vires of an Assembly Bill, before it gets to the point of being forwarded to the Secretary of State in order that he may submit it for the Royal Assent. As the White Paper says, and I quote: The Assembly's presiding officer, on the advice of his counsel. will report to the Assembly of the viresof a Bill (that is, whether it falls within the devolved powers) when it is introduced, and again before the final Assembly stage; if the report is adverse it will not stop the Bill but will serve as a warning to the Assembly and the Executive. The Government will not be formally involved at these stages, but they will be aware of the Bill and the presiding officer's report and may wish to give informal warning of any difficulties about vires which they foresee. The Scottish authorities will be similarly free, if in doubt, to consult the Government informally. On this basis it may well be that the difficulties which some people foresee will not be as common as has been supposed. The difficult points will be ironed out before the real formalities are reached.

But most discussion has been concentrated on what happens after the Secretary of State receives the Assembly Bill. The White Paper proposes that, at that stage, the Government will then consider, with advice from the Law Officers, whether any part of the Bill is ultra vires. 925 It is pointed out in the White Paper that in accordance with normal legal principles, ancillary provisions reasonably incidental to a main purpose falling within a devolved field will be treated as intra vires, even though they may not strictly relate wholly to devolved subjects. Nevertheless, there is still the possibility that a Bill may appear to be over the borderline. The proposal is that in such a case the Law Officers—who include, of course, the Lord Advocate—will advise the Government on whether the Bill is ultra vires and the Government will then decide.

The question which has been raised in the course of the debate is whether it is right that the decision on vires should rest with the Government of the day. It is argued (and of course there is a great deal of force in this) that vires is essentially a question of law. The powers of the Assembly will be laid down in the Act, and it is said that it is a legal question whether they are, in the case of a particular Bill, exceeded. The argument, therefore, is that the job of checking the vires of a Bill should be given to some independent judicial body—perhaps the Judicial Committee of the Privy Council, perhaps some other regular panel of judges. This was not a matter specifically left open in the White Paper, but the Government are quite prepared to listen further to arguments about it. They are not irrevocably wedded to the idea of vires being entirely a matter for the United Kingdom Government on the advice of the Law Officers. Other possibilities can be looked at.

I say this particularly because the question of vires scrutiny before Royal Assent may well be related to the question of judicial review afterwards. This latter question concerns the application of an Assembly Act in particular cases which may come up after the Act has been passed. In such cases the courts can, of course, interpret the words of the Act, but the further question is whether they can pronounce it invalid on the ground that it exceeds the Assembly's powers. This is a difficult question which the White Paper leaves open for discussion. The opposing arguments are set out in paragraphs 63 and 64 of the White Paper. They were canvassed yesterday in debate and I will not go into them again now.

926 Since the White Paper was published we have received conflicting reactions on the question of judicial review. For example, the higher judiciary in Scotland are unanimously in favour of it and we heard their views powerfully expounded by the noble and learned Lords Kilbrandon and Wheatley yesterday. On the other hand, the Law Society of Scotland firmly oppose it. So far as the Government are concerned, we welcome the arguments that will be brought out for public discussion so that a final decision can be made.

I now turn to what, in many ways yesterday, was the most discussed part of the White Paper; namely, the question of reserve powers exercisable on grounds of policy. As I have explained, if an Assembly or its Executive does something which the Government and Parliament, from the standpoint of their wider view and ultimate responsibility for all of the United Kingdom, judge gravely harmful, Parliament can, in the end, always pass a new, overriding Statute, but that is a ponderous, sweeping and last-resort procedure. There is at least a case that there ought to be some Parliamentary mechanism of a more modest and flexible character. It is on this case that the proposals in the White Paper—paragraphs 58 and 59 for legislative matters relating to Scotland and paragraphs 73 and 208 for executive matters—relating to both Scotland and Wales—are based. Those proposals provide in essence that on a Government Motion Parliament may decide to overrule the devolved Administrations, either on the making of law or on executive acts. The procedure would be broadly analogous to that whereby we deal with Statutory Instruments requiring Affirmative Resolution. The control would be quite clearly in the hands of Parliament. There is no question of its being an unfettered power of the Executive. Let me reiterate, however, that there is no thought whatever that these mechanisms should be invoked simply because a devolved Administration chooses to do something which the Westminster Government of the day happens to find politically distasteful. There is no thought of that approach. The whole point of devolution is the ability to diverge, politically as well as administratively. If the reserve mechanism is misused—if it is not made by constitutional convention a matter of great 927 restraint—the devolution scheme will fail. If the Government intended to use it habitually, we should never have embarked on devolution at all.

I can understand the feelings of those who wish that an arrangement could be found which lent itself to greater formal precision and definition than can this concept of reserve powers, relying as it inevitably does in some degree on constitutional convention which cannot be neatly enshrined in Statute. No one would be happier than the Government if this could be achieved. The more that difficulties at the "interface" between devolved and Central Govrenment can be handled as a matter of legal vires and the less as a matter of awkward policy judgment, clearly the better the Government will be pleased. What, indeed, would please us most would be if the mechanisms for "policy"reserve powers never had to be invoked at all. We hope that this will be, at most, very rare. But to hope that they will never be used is one thing; not even to provide them is, we believe, another.

My noble friend the Leader of the House mentioned yesterday, in the context of the difficulty of devising an acceptable division of sovereignty in a federal system, the great complexity and the constant interactions of the various aspects of a modern industrial society. This fact lies at the root of the present issue also. After a year's intensive and detailed work, the Government simply do not believe it is possible—certainly not possible in a Bill of manageable size and workability and having a reasonably generous approach to devolution—to devise a legal dividing line between devolved and non-devolved business so perfect, so exact and so comprehensive that it will foresee and resolve every possible interaction between the responsibility of the Assembly and the overall responsibility of the Government. We must do our best to make the dividing line as clear and sound as we can, and we intend to do so. But at the end of the day there are bound to be situations, probably unforeseeable, in which the question whether the effects of a particular interaction are tolerable must be left to a policy judgment by Parliament in the light of the practical circumstances. The Government's detailed proposals are intended to provide the procedures by 928 which that judgment can be made openly and carefully, but without excessive constitutional fuss or demand on Parliament's scarce time. Nevertheless, as my right honourable friend the Lord President of the Council made clear in another place, this is a subject which we are prepared to look at again in the light of the views that are expressed in Parliament.

There is one other question, or group of questions, on which I should like to comment. They concern the constitutional role of the Secretaries of State, particularly the Secretary of State for Scotland. Some critics have described it as a "Governor General "role, plumed hat and all. Whether my right honourable friend Mr. Ross would appreciate that adornment I know not; I doubt it very much. But what are the main points at which the Secretary of State would have a constitutional role in relation to the Assembly?

First, there are the matters where the Secretary of State is simply acting as a Member of the Government on a matter of Government policy within the framework of collective responsibility. An example would be any initiation of reserve powers on policy grounds, which I think only a Government could do. Secondly, there are matters where the Secretary of State is the channel to the Crown—for example, when an Assembly Bill is on the way forward for Royal Assent, Advice to the Queen goes formally from her Ministers, and the Secretary of State is the natural person for the job. Whether in this process he should be formally responsible for scrutiny of vires is a matter which I have already touched on and about which we shall be happy to hear comment. Then there are mechanical matters which someone has to do, such as the formal supervision of elections and fixing dates, and setting initial pay arrangements and standing orders to get the Assembly launched, and so on. Here again it is sensible that the Secretary of State should be designated to do those things.

Finally, there is, in Scotland only, the question of getting an Executive formed. The White Paper proposes that the Secretary of State should be the person who invites a suitable Assembly figure to form an Executive team. This is perhaps the aspect on which a good deal of complaint has been focused.

929 In cases where the course is clear—where one Party has a clear overall majority and a plainly acknowledged leader—the job of inviting the appropriate individual is straightforward and formal. The difficulty arises when the task is less simple—when some kind of political judgment is needed, for instance in a situation where no Party has a clear majority. The complaint is, apparently, that such a judgment ought not to be made by a Minister, who is inevitably a political figure. If the choice of someone to form an Executive is liable to be as politically charged as critics suggest, will it not be highly invidious to place it, for example, on one of Her Majesty's judges, or on the Lord High Commissioner to the General Assembly of the Church of Scotland, as some have suggested? It is much better that it should be made by someone whom Parliament can call to account.

In any event, the suggestion that here is a dangerous, unfettered autocratic discretion is, I believe, wide of the mark. The last word on who is to form and lead the Scottish Executive surely lies positively and expressly with the Assembly itself. If the Assembly judges that the Secretary of State has made the wrong choice for Chief Executive, or has wrongly dismissed a previous Chief Executive, it can simply refuse the specific approval required for a proposed new Executive; and the Secretary of State cannot then appoint anything more than a set of caretakers until he gets the answer right to the Assembly's satisfaction. And of course he cannot dissolve the Assembly in search of a more compliant one—no such power exists. Accordingly the true masters of the Executive are the Assembly, not the Secretary of State.

My Lords, I should like now to turn to the Government's particular proposals for Wales. As in the case of Scotland, the Kilbrandon Commission identified over-centralisation, dissatisfaction with Whitehall and a weakening of democracy as the chief causes of discontent with government in Wales. These are the problems which we have sought to tackle through the White Paper proposals. When the Royal Commission reported in 1973 it recommended, in varying forms and with varying powers, the setting up of a directly elected Welsh Assembly. That proposal was endorsed by a large majority 930 of the representative bodies in Wales, including the political Parties, local authorities, both sides of industry and the farming community, which were consulted during the summer of 1974. The Government accepted the Kilbrandon diagnosis and recognised the widespread feeling in Wales as to what should be done to remedy the situation. We therefore committed ourselves to securing increased accountability in a democratic form for major decisions affecting ordinary people.

That commitment was embodied in the White Paper published in September 1974 and endorsed by the electorate in the following month. The detailed proposals contained in the White Paper published in November will, we believe, provide for the greatest involvement of the Welsh people in the process of Government in Wales. I believe that our proposals will mean both more open Government in the Principality and a much fuller discussion of the issues which are important to the people living there. The devolution scheme for Wales differs in some of its features from that for Scotland. These differences reflect the distinctive historical backgrounds, governmental structures and systems of law in the two countries. Wales once upon a time had the laws of Hywel Dda, but long ago they were, alas! superseded. During the Government's consultations in the summer of 1974 the claim for legislative devolution to Wales was advanced by only a small minority; the majority view was for an Executive form of devolution, as we now propose, and we are satisfied that this was a fair reflection of general opinion in Wales. It is not intended therefore that the Welsh Assembly should have powers of primary legislation.

The Assembly will, however, have very substantial policy-making and executive powers over broadly the same range of subjects as its Scottish counterpart, and with wide responsibility for democratic oversight, working within the framework of the Westminster Acts. In controlling the devolved services it will be able in general to do anything central Government can do now as to these, and will take over whatever powers those Acts confer on central Government. We believe that such a body will meet the needs and aspirations of the great majority of Welsh people. Under our 931 proposals it will be the Assembly which will decide, for example, on the construction of motorways and trunk roads and the allocation of resources for this purpose. It will be the Assembly which will choose the policies and priorities to be adopted in such fields as housing, health and education. It will oversee the factory building and derelict land functions of the new Welsh Development Agency. It will take over from central Government powers on environmental matters. It will be responsible for policy and finance for new towns in Wales; for approving structure plans and deciding appeals against the decisions of local planning authorities on development applications, and for regulating atmospheric pollution. It will also be responsible for the well-being of the Arts and the fostering of the Welsh language.

It will certainly, therefore, not be a mere "talking shop ", as has been wrongly suggested, but a powerful executive responsible for virtually all those domestic matters affecting the people of Wales alone. It is because it will have such important functions that we want to ensure full democratic participation in its work and to see Welsh government as open as possible and responsive to all shades of opinion in the Principality. Our proposals therefore seek to balance effective decision-making with genuine democratic control. Executive power will rest in the Assembly, but most of its work will be done through Standing Committees dealing with particular devolved subjects such as health and education. A central Executive Committee will oversee general policy and the allocation of resources.

We also feel the need to extend democracy to the various Government appointed bodies which operate in Wales. If there is anything which causes resentment about the administration of Government in the Principality it is the existence of so many nominated bodies with their limited degree of answerablity. There are proposals in the White Paper to deal with that problem.

Criticism was expressed yesterday in the course of the debate that the new form of administration will lead to over-government in Wales. I believe that to be based on a misunderstanding of what 932 we propose. Not a single new Government function is being created. Each and every function will be transferred to the Assembly from an existing department of central Government such as the Welsh Office, the Department of Education and Science or the Home Office. Every power transferred to the Assembly will be one less to be exercised in Wales by central Government. Our proposals do not therefore add a tier of Government; they improve the democratic control of an existing tier.

Another matter which has caused understandable but, again, I believe, unnecessary concern is the effect of the Government's proposals on the powers and functions of Welsh local authorities. The noble Lord, Lord Heycock, made an eloquent speech on that subject yesterday, as did the noble Earl, Lord Minto, in his notable maiden speech. My noble friend who is winding up the debate will be dealing with aspects of that matter.

My Lords, I should now like to sum up the benefits and advantages which we see as flowing from our proposals for Wales. First, there has been growing concern over the inability of Parliament, and particularly the House of Commons, to discharge adequately all the burdens with which it is now charged. All of us who have been in the other place will know how Members there have to queue up for Questions, the Welsh Grand Committee debates are infrequent and not always well covered by the media. In my view there will be more effective accountability for the devolved subjects to a Welsh Assembly than there is to Parliament now.

Secondly, the decisions now taken about priorities and allocations of resources by the nominated bodies which have stood apart from the pattern of democratic government will be taken under the direct supervision of an Assembly answerable to the people of Wales. Thirdly, there will be more open government in Wales, and a better informed discussion of the issues which are important to the people living there. Fourthly, the Assembly should be in a position to design policies more in tune with Welsh needs and conditions. I believe this should lead to better decisions and better use of scarce resources.

My Lords, the reforms we arc proposing are radical. We believe they will meet the needs of the Welsh people. We are 933 proposing a very big change. It is being done consciously and I believe it follows, in making a basic proposal now, the precept of that great Welshman, Lloyd George, when he said on one occasion: It is undesirable to traverse a chasm in two leaps "— a characteristic contribution of the great man to the simplicity of political judgment! It will be consistent with the emphasis which democratic Socialists have placed at all times on the central importance of democracy. We believe, then, that the Assembly envisaged should bring about greater involvement of the Welsh people in the process of Government.

My Lords, I do not believe that this enhancing of democracy in Wales will weaken the unity of the Kingdom. As a Welsh-speaking Welshman myself, I know the importance that the great majority of Welsh people attach to that unity. It has survived even the annual jousting at Twickenham, Murrayfield and Cardiff Arms Park—if it is not too indelicate for a Welshman to refer to Twickenham in this immediate context. We share a small Island, even though in Wales we claim that we occupy the most beautiful part of it. England and Wales have a closely integrated economy. We inherit a tradition based on the sovereignty of Parliament and the independence of the Judiciary. We share loyalty to the Crown, and are proud of our Prince of Wales. There are also the invisible bonds of family and friendship, and the sense of common purpose in peace and war, which have for so long in the past made Wales part of a United Kingdom.

My Lords, the Government believe that the new proposals will reinforce our unity, the need to maintain which has been the golden thread running through the whole course of our debate yesterday, the debate which so impressively began this grand inquest of Parliament.